Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

The long-awaited amendments to the Tribal Law and Order Act of 2009 have been completed and passed by both the House and Senate, and President Obama is expected to sign the bill into law shortly. The new law enacts numerous changes to the rules, process, and funding for the administration of justice in Tribal communities, and it specifically --

Increases the maximum authorized criminal sentence in a Tribal Court to three years, if the defendant has or is provided an attorney and other federal criminal procedure rules are followed.

Replaces the Division of Law Enforcement Services in the Department of the Interior with the Office of Justice Services in the Bureau of Indian Affairs, and sets forth duties including - (1) communicating with tribal leaders, tribal community and victims' advocates, trial justice officials, and residents of Indian land on a regular basis regarding public safety and justice concerns; (2) providing technical assistance and training to tribal law enforcement officials for gaining access to crime information databases; (3) collecting, analyzing, and reporting data on crimes in Indian country on an annual basis; (4) sharing with the Department of Justice crime data received from tribal law enforcement agencies on a tribe-by-tribe basis; and (5) submitting to the House Committee on Natural Resources and the Senate Committee on Indian Affairs a spending report on tribal public safety and justice programs and a report on technical assistance and training provided to tribal law enforcement and corrections agencies.

Directs the Secretary of the Interior to submit to Congress a long-term plan to address incarceration in Indian country.

Authorizes BIA law enforcement officers to make warrantless arrests in Indian country based on probable cause for misdemeanor offenses involving controlled substances, firearms, assaults, or liquor trafficking.

Expands requirements for reporting by federal law enforcement officers, the Federal Bureau of Investigation (FBI), and United States Attorneys to Indian tribes on decisions not to investigate or prosecute alleged violations of federal criminal law in Indian country.

Requires the Attorney General to submit annual reports to Congress on investigations and prosecutions in Indian country that were terminated or declined.

Authorizes the Attorney General to appoint tribal prosecutors and other qualified attorneys to assist in prosecuting federal crimes committed in Indian country. Requires each United States Attorney whose district includes Indian country to appoint at least one assistant United States Attorney to serve as a tribal liaison for specified purposes, including coordinating the prosecution of federal crimes that occur in Indian country, combating child abuse and domestic and sexual violence against Indians, and providing technical assistance and training on evidence gathering techniques.

Establishes in the Executive Office for United States Attorneys the position of Native American Issues Coordinator, to coordinate with United States Attorneys in prosecuting crimes in Indian country.

Directs the Secretary of Health and Human Services to: (1) establish a prescription drug monitoring program at the health care facilities of the Indian Health Service, tribal health care facilities, and urban Indian health care facilities; and (2) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on such program.

Directs the Attorney General, in conjunction with the HHS Secretary and the Secretary of the Interior, to: (1) conduct an assessment of the capacity of federal and tribal agencies to carry out data collection and analysis relating to prescription drug abuse in Indian communities; (2) provide training to Indian health care providers and other Indian tribal officials to promote awareness and prevention of such abuse and strategies for improving agency responses to addressing it; and (3) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on prescription drug abuse prevention activities.

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Mount Taylor, New Mexico

Thousands of feet under the sands of New Mexico lies a deposit of uranium that could revive a struggling local economy. The mining industry and residents eager for jobs see the plateau around Mount Taylor as a powerful economic opportunity. Yet for local Native Americans whose ancestors lived in the area centuries before European settlement, Mount Taylor is a central part of their culture and religion. They are fighting to ensure that archaeological sites, their cultural heritage, and water supply are protected.

Members of local Tribes stress Mount Taylor's importance to their cultural heritage, and many say mining threatens the mountain and its environs, despite industry assurances to the contrary. While state and federal agencies recognise their cultural claim to the land, the law gives them virtually no power to halt mining. "As an Indian nation, we're taught to respect mother earth, and [when] you see somebody doing that, it's like somebody putting a knife in you," said Albert Riley, a Laguna Pueblo tribal official and religious leader.

Mount Taylor - known as "Tsibina" to the Laguna and "Tsoodzil" to the Navajo - lies in the heart of the Grants mineral belt, the site of one of the richest hauls of uranium of the cold war era. For decades, Native Americans enjoyed steady work in uranium mining jobs, and the local economy was fuelled by mine workers who were well compensated for their dangerous occupation.
Beginning in the 1980s, a decades-long depression in uranium prices, provoked in part by concerns over the safety of nuclear power, closed the mines and left the area in an economic slump. However, as China and India are ramping up nuclear power programmes - and the US considers building new nuclear power plants - uranium companies hope to restart mining here. "The world is going nuclear whether the US wants to or not," says David Miller, chief executive of Strathmore Minerals, a Canadian firm seeking to mine in New Mexico. He says that if regulators hinder uranium exploration, "we won't have the high paying jobs supporting a higher quality of life for all the local people".

The area contains an estimated 341 million pounds of uranium reserves, valued at over $3.1billion. Uranium companies say mining and processing will create more than 8,000 jobs. But the promise of new jobs is not enough for members of the Acoma, Hopi, Laguna, Navajo and Zuni Nations who are wary of the effect new mining will have on the environment. The Navajo Nation banned uranium mining from land under its control, only to see a court rule last month that uranium extraction could resume on disputed territory near Church Rock, New Mexico. Industry officials say advances in mining technology and practices would preclude the ill environmental and health affects of the cold war era.

One of the principle proposed mining projects in the area would threaten ancient archaeological sites and would drill thousands of feet into land that the state of New Mexico has recognised as the Tribes' traditional cultural property. Last year, the US national trust for historic preservation listed Mount Taylor as one of the 11 most endangered historic sites in the country. Meanwhile, New Mexico has designated the mountain and its surroundings as a "traditional cultural property" and added it to a register of historic cultural lands. A coalition of mining companies and landowners are challenging that designation in court.

Still, questions about the safety and preservation efforts of the proposed mining persist. "Even if the archaeological sites are avoided by direct impacts from construction, they could be adversely affected by indirect impacts from erosion, drainage, water run-off, etc," says Michelle Ensey, a state archaeologist. "I am not convinced that the industry has put the time and research and money into mining in ways that don't impact the environment," said June Lorenzo, a Laguna lawyer. "It's irresponsible to dive in, just looking with dollar signs in our eyes, and say it'll bring employment."
 

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Native Lacrosse Players, Circa 1845

UPDATE: The State Department has now agreed to allow Iroquois players and team officials to travel under Iroquois Nation passports, which clears the way for the team's participation in the tournament.  The team still needs to catch a trans-Atlantic flight on Wednesday July 14th to compete in its first game on the 15th.

A thousand years ago, the Iroquois Nation invented the game of lacrosse. Yet despite having created the game and shared it with the world, the Iroquois may be kept out of this year’s World Championship for their sport due to U.S. visa problems.

Teams from 30 nations are scheduled to participate in the World Lacrosse Championships in England. In a positive example of international recognition of Native sovereignty, the Iroquois participate at every tournament as a sovereign nation. The problem this year is a dispute regarding the players’ passports. The 23 players have passports issued by the Iroquois Confederacy, a group of six Tribal nations stretching from upstate New York into Ontario, Canada. The U.S. government says it will let players back into the country only if they have U.S. passports. The British government, meanwhile, won't give the players entry visas if they cannot guarantee they'll be allowed to go home.

The team has been traveling on Iroquois passports for the past 20 years, and Iroquois passport-holders have been using them to go abroad since 1977, said Denise Waterman, a member of the team's board of directors. Within the last year, colleagues used their Iroquois passports to travel to Japan and Sweden, she said. In the past, U.S. immigration officials accepted the Iroquois passports when they obtained visas — including trips to Britain in 1985 and 1994, and in 2002 to Australia. The 2006 tournament was in Canada, and the team had no cross-border issues.

The new dispute can be traced to the Western Hemisphere Travel Initiative, which went into effect last year. The new rules require that Americans carry passports or new high-tech documents to cross the border. "Since they last traveled on their own passports, the requirements in terms of the kind of documents that are necessary to facilitate travel within and outside the hemisphere have changed," Crowley said. "We are trying to help them get the appropriate travel documents so they can travel to this tournament."

Iroquois team members born within U.S. borders have been offered U.S. passports, but the players refused. They see the documents as an attack on their identity, said Tonya Gonnella Frichner, a member of the Onondaga Nation who works with the team. "It's about sovereignty, citizenship and self-identification," said Frichner, who also is the North American regional representative to the U.N. Permanent Forum on Indigenous Issues.

One Iroquois player, Brett Bucktooth, said he would rather miss the tournament than travel under a U.S. passport: "That's the people we are, and that's our identity."

Today, the Iroquois team is ranked No. 4 by the Federation of International Lacrosse and represents the Haudenosaunee — an Iroquois Confederacy of the Oneida, Seneca, Mohawk, Tuscarora, Cayuga and Onondaga nations.
 

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The federal government has announced the availability of nearly $495 million in current or upcoming funding opportunities for state, local, and Tribal governments from the U.S. Department of Transportation (DOT), U.S. Department of Housing and Urban Development (HUD), U.S. Department of Agriculture (USDA), the U.S. Department of Energy (DOE), and the U.S. Environmental Protection Agency (EPA) that can be used to support climate and energy initiatives including energy efficiency, regional planning, and community education. For further information on the application process, please contact Greg Guedel.


EPA Funding for Facilitating Tribal Climate Change Adaptation Planning and Communicating Climate Change Impacts - $550,000
Application Due: July 30, 2010
Eligible Entities: States, local governments, territories, Indian tribes, and possessions of the United States, including the District of Columbia; international organizations, public and private universities and colleges, hospitals, laboratories, other public or private nonprofit institutions.

EPA announces the availability of funding to facilitate, communicate, and put in motion tribal climate change adaptation planning to respond to the projected impacts of climate change. The Agency expects to award approximately one to three cooperative agreements ranging from approximately $50,000 to $150,000 per year up to five years. EPA requests proposals to provide direct training, technical assistance, and outreach aimed at increasing and enhancing tribal expertise in adaptation planning and climate change risk communication. For more information, visit: http://www.epa.gov/air/grants_funding.html

DOE Weatherization Assistance Program - $210 million
Application Due: Ongoing to August 1, 2010
Eligible Entities: Agencies responsible for administering annual WAP formula allocation

DOE requests proposals for Weatherization Formula Grants. Weatherization Assistance Program (WAP) funds are used to increase the energy efficiency of dwellings owned or occupied by low-income persons, reduce their total residential expenditures, and improve their health and safety. WAP assists persons who are particularly vulnerable, such as the elderly; persons with disabilities; families with children; high residential energy users; and households with high energy burdens. Prime applicant eligibility is restricted to agencies responsible for administering the annual WAP formula allocation. Fifty-eight awards are anticipated. The response due date depends on the fiscal year end of the prime applicant, with range of 2/15/10 – 8/1/10.
For more info, go to:
https://www.fedconnect.net/FedConnect/?doc=DE-FOA-0000216&agency=DOE

EPA Grants and Cooperative Agreements for Greenhouse Gas Reporting Systems: Outreach to Reporting Facilities and Analysis of Greenhouse Gas Mitigation Opportunities - $2 million
Informal Notice of Intent to Apply: July 16, 2010; Application Due: August 9, 2010
Eligible Entities: States; local governments; territories; Indian tribes; and possessions of the United States, including the District of Columbia; international organizations; public and private universities and colleges; hospitals; laboratories; other public or private non-profit institutions.

EPA is soliciting proposals for communicating to affected facilities the requirements of state greenhouse gas reporting systems compared with those of U.S. EPA’s Final Mandatory Reporting of Greenhouse Gases Rule (MRR), and to identify options for how the data collected through state reporting requirements and the MRR may be used to facilitate state- and facility-based greenhouse gas programs.

For more information, visit:
http://www.epa.gov/air/grants_funding.html (RFP# EPA-OAR-CCD-10-05). A direct link to the RFP is: http://www.epa.gov/air/grants/ccd-10-05_mrr_state_grant_rfp_r1.pdf


Joint HUD and DOT Community Challenge and Transportation Planning Grants - $75 million
Pre-Application Due: July 26, 2010; Full Application Due: August 23, 2010
Eligible Entities: State and local governments, including U.S. territories, tribal governments, transit agencies, port authorities, metropolitan planning organizations, other political subdivisions of state or local governments, and multi-state or multijurisdictional groupings.

For the first time ever, DOT and HUD will join forces to award up to $75 million in funding: $35 million in TIGER (Transportation Investment Generating Economic Recovery) II Planning Grants and $40 million in Sustainable Community Challenge Grants for localized planning activities that ultimately lead to projects that integrate transportation, housing and economic development. For more information, visit:
http://www.hud.gov/offices/adm/grants/nofa10/huddotnofa.cfm

HUD Sustainable Communities Regional Planning Grant Program - $100 million
Application Due: August 23, 2010
Eligible Applicants: Multijurisdictional and multisector partnerships consisting of a consortium of government entities and non-profit partners

HUD is currently accepting applications for the Sustainable Communities Regional Planning Grant Program. This program will support metropolitan and multijurisdictional planning efforts that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments in a manner that empowers jurisdictions to consider the interdependent challenges of economic competitiveness and revitalization; social equity, inclusion, and access to opportunity; energy use and climate change; and public health and environmental impact. For more information, visit http://www.hud.gov/offices/adm/grants/nofa10/scrpg.cfm 

EPA Black Carbon, Climate and Air Quality- $7 million
Application Due: September 22, 2010
Eligible Entities: State and local governments and others

The U.S. Environmental Protection Agency requests proposals for Black Carbon’s Role in Global to Local Scale Climate and Air Quality. This RFP will support areas including, but not limited to, emission source research, the global- to local-scale emissions inventory, and co-pollutants. This RFP will also support opportunities for early career projects. $7 million is expected to be available, and up to 9 awards are anticipated. For more information, contact Bryan Bloomer at bloomer.bryan@epa.gov or go to: http://www.epa.gov/ncer/rfa/2010/2010_star_blackcarbon.html. Refer to Sol# EPA-G2010-STAR-L1 and EPA-G2010-STAR-L2.
 

EDA Global Climate Change Mitigation Incentive Fund - $14.7 million
Application Due: September 30, 2010
Eligible Entities: State and local governments, nonprofit organizations

The U.S. Department of Commerce’s Economic Development Administration (EDA) advances economic growth by assisting communities experiencing chronic high unemployment and low per capita income to create an environment that fosters innovation, promotes entrepreneurship, and attracts increased private capital investment. EDA requests proposals for the following programs: Public Works, Planning, Local Technical Assistance, and Economic Adjustment Assistance. Under the Economic Adjustment Assistance program, EDA has allocated $14.7 million to the Global Climate Change Mitigation Incentive Fund, which supports projects that foster economic competitiveness while enhancing environmental quality. Proposals are being accepted and are being reviewed on an ongoing basis. For more info, including contact info, go to: http://www.grants.gov/search/search.do?mode=VIEW&oppId=48106.
 

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In 1637, the land that is now known as the town of Mystic, Connecticut was the site of a fierce battle between the Pequot Nation and English settlers resulted in an historic massacre that shaped future relations between Tribes and colonists. Today, researchers are combing the site with metal detectors and archaeological tools to unearth the history behind one of the pivotal events of pre-American history in the region.

The work is funded through grants from the National Park Service’s American Battlefield Protection Program, and is designed to map the battlefields of the Pequot War and unearth artifacts for historical display. Consistent with a Congressional report that found 62 percent of known American battlefields are located on private lands, much of the Pequot battlefield area is now residential property. This has caused some homeowners to fear that the government or the neighboring Pequot Tribes may seek to seize their land if historic materials are found. In reality, researchers only access sites with the express permission of landowners, and none of the land is taken over or otherwise restricted by the government.

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Despite a July 9 deadline from the parties, approval by Congress of the landmark settlement in the Cobell v. Salazar Native trust asset case is not imminent.  The tax-related legislation to which the approval amendment was attached has stalled in the Senate, and the recent death of Senator Robert Byrd made passage of the bill by the latest deadline essentially impossible. 

A half-dozen deadlines set by the Cobell legal team have now come and gone, and the settlement is no closer to Congressional approval than it was nine months ago.  The deadline concept has no discernible impact on the members of Congress, and setting unenforceable deadlines appears to have become a waste of time.  A change in tactics is clearly needed, either through attaching the settlement authorization to legislation that is ready for near-term passage, or by calling on President Obama to utilize his political capital to push for Congressional approval.

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As the blockbuster Twilight film series continues its box office dominance with the summer release of Eclipse, it’s worth taking a break from the hype to examine how Native Americans are portrayed in this franchise. The general storyline is familiar to many at this point: vampires living near Forks, Washington have a volatile coexistence with shape-shifting wolf-people of the local Quileute Tribe, with the teenage protagonist Bella Swan as the center around which they all revolve. Previous articles regarding Eclipse predecessors Twilight and New Moon have noted the ill-informed but all too common stereotypes of Native people reflected in the films. Unfortunately, the latest installment does little to reverse this trend.

Eclipse offers a central role to the character Jacob Black, a teenage Quileute member who was revealed in the previous movie as embodying the wolf transformation gene. In the current film, his fiery but unrequited love for Bella takes front stage. Keeping with the stereotypical tendency toward domestic violence that was proffered in New Moon, Jacob’s affectionate advances to Bella are physically forceful and anything but tender, resulting in a punch from Bella that breaks her hand. Naturally, Bella cannot reciprocate Jacob’s love, for she has pledged her heart to the whiter-than-white vampire Edward Cullen – “It’s always been him.” She will, however, continue to lead Jacob on with a seductive kiss in order to keep his mind right for the upcoming battle to protect her. Jacob is thus consigned to the old-Hollywood role of the “noble savage” – good enough to fight, kill, and die for the white female, but beyond that they can be nothing more than “friends”.

Numerous tired stereotypes of Indigenous people appear throughout the film, some more subtle than others. Quileutes are repeatedly referred to by vampires as smelling like wet dogs – indeed, so powerful is their pungent odor that vampires cannot locate luscious Bella if she’s being carried by a wolf-member. When Jacob is injured in battle, his life must be saved by the vampire doctor Carlisle Cullen – because of course Western medicine is far superior to Native healing practices that have sustained Indigenous communities for thousands of years. Jacob’s single-minded focus on Bella causes him to pass up opportunities for leadership among his fellow wolf-protectors, and he cedes his “Alpha” position in the clan so as to have more time to pursue and protect his fair-skinned obsession.

One aspect of Eclipse actually rings true from an historical perspective – white settlers enlisting Native people to fight their battles for them. In Eclipse, when the Cullen clan is threatened by a army of rogue vampires from the mean streets of Seattle, they turn to the Quileute wolves to rescue them. The climactic battle scene shows the vampire army being decimated by the ferocious Quileute attack, for which the interlopers were singularly unprepared. This premise has in fact played itself out innumerable times in the history of North America. Whether French versus British, British versus colonial Americans, or American forces versus other Tribes, settlers from abroad have long sought to employ Indigenous fighters’ skills, courage, and tactical experience as a decisive weapon of war. The other common pattern, both in Eclipse and real history: the reward to Native warriors for their bravery and sacrifice on behalf of occupying powers is rather difficult to discern.

The Twilight saga has a final installment, Breaking Dawn, that will be presented as two separate films over the next two years. For the series’ producers, this represents two more chances to break free from stereotypes and embrace a dignified portrayal of Native people and culture.
 

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