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

San Francisco Peaks, Arizona (Al Hikes)

The legal battle over whether fake snow can be sprayed by a ski resort in Arizona’s 12,000-foot-high San Francisco Peaks has a new venue: the Flagstaff City Council. Tribal elders, U.S. senators, federal judges and senior Obama Administration officials all have weighed in on the controversy of artificially applying frozen water to land where the Hopi, Navajo and 11 other tribes trace their origins. Many Native Americans believe it is sacrilege for skiers and snowboarders to use the area for recreation, and more so for the ski resort owners to tamper with the natural surroundings. The Arizona Snowbowl resort says it's just trying to run a business.

The Snowbowl ski area is located on 777 acres in the Coconino National Forest. Tribes have been battling the resort since the 1970s. For the second time in 20 years, the U.S. Supreme Court last year refused to hear their case, and now the matter will be reviewed by the Flagstaff City Council. Local officials are to vote on whether to pump potable recycled water to the resort to make snow. It's unclear whether this will be acceptable to the Tribes, who were infuriated by a previous plan to use treated sewer water.

"This mountain is where life began; it created us," says Rex Tilousi, a leader of the Havasupai tribe. Native Americans journey to the peaks to collect herbs for traditional healing and worship deities they believe dwell there. Dumping artificial snow there, says Mr. Tilousi, is "like bombing a church."

For the operators of Snowbowl, artificial snow is necessary to ensre a steady ski season, which is the basis for hundreds of local jobs. "If you don't have snowmaking, the question is not if you will go out of business; it's when you will go out of business," says Eric Borowsky, the resort's owner. "We only occupy 1% of the peaks. Can't we share this?"

After years of environmental review detailed in a 600-page report, the U.S. Department of Agriculture's Forest Service, which oversees the federal land that the resort sits on, approved the artificial snow plan in 2005.  If the new plan to use potable water goes through, the federal government may contribute funds to off set the cost increase compared to the use of treated sewage. Arizona Senators John McCain and Jon Kyl sent a letter in March condemning "the use of taxpayer dollars to subsidize snowmaking at Arizona Snowbowl." At the same time, they called on the government to grant Snowbowl permission to start its expansion "immediately."

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The new National Child Welfare Resource Center for Tribes has joined the federal Children's Bureau Training and Technical Assistance (T/TA) Network to assure that Tribal child welfare systems have access to the free assistance provided by the T/TA Network. The NRC4Tribes invites your input in a national Tribal Child Welfare TA Needs Assessment survey, which will help improve the quality and accessibility of child welfare services for Native communities.

You can complete this needs assessment survey online HERE, or through the NRC4Tribes website: www.NRC4Tribes.org.  Please note that the deadline to complete the NRC4Tribes TA Needs Assessment has been extended to September 7th.

We encourage you to submit your comments and forward this survey to anyone in your community who has an interest in child and family services for Native communities, including:

* Tribal leaders
* Tribal child welfare staff
* Tribal law enforcement personnel
* Tribal court personnel, health service agency staff
* Tribal community program staff
* Tribal families involved in the child welfare system
* Tribal foster parents, kinship providers, youth, community members,
* Anyone interested in Tribal child welfare services

For more information concerning the NRC4Tribes and/or the NRC4Tribes TA needs assessment, please see www.NRC4Tribes.org.
 

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"There are not enough words to say that you're sorry"

"We're hoping that this is a day of healing"

"We must heal with friendship because we are all Americans. It is important that we work together as a people"

These sentiments were heard among those gathered in Seattle recently to mark the signing of the Treaty of Point Elliott 155 years ago, wherein numerous Native American Tribes ceded land to the federal government in exchange for reservations and fishing rights.

The event was held in the same location as the original treaty signing, and the more than 200 people who gathered included a fourth-generation descendant of Chief Sealth. During the ceremony, representatives from eight Tribes performed songs and chants and dressed in period clothing. The treaty deprived generations of Native Americans of their historic rights and assets, many attendees said.  "Treaties are supposed to be the law of the land, but we owned all the land before this," said emcee Larry Campbell, a historian for the Swinomish Tribe.

Nevertheless, the attendees at the ceremony offered peace. The Rev. James Kearny, a descendant of Thomas Phelps, the commodore of the ship who enforced the treaty against Native Americans, came to offer his apologies. "When you do any reconciliation, you expect anger," Kearny said. "But we are dealing with this directly, saying, 'Teach me. Let's start again.' " 

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Federal Judge Richard Roberts has dismissed a lawsuit filed by 20 descendants of legendary Apache leader Geronimo to recover partial remains they allege were stolen by the Skull and Bones Society at Yale University.  Skull and Bones is famous for well-connected members such as both Presidents Bush, and the society's lore claims that the organization possesses Geronimo's skull.

The lawsuit alleged that Geronimo's remains were stolen in 1918 from his burial plot at Fort Sill, Oklahoma, where he died in 1909.  The decision to dismiss was based in part on the Judge's finding that the law under which the plaintiffs sought to recover the remains only applied to Native artifacts that were improperly appropriated after 1990. 

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     COMMITTEE ON NATIVE AMERICAN CONCERNS

The American Bar Association has appointed Greg Guedel, Chair of Foster Pepper’s Native American Legal Services Group, as Chair of the ABA’s national Native American Concerns Committee. The Committee works to harness the vast resources of the ABA to guide the development of federal law in support of Tribal sovereignty and self-governance, and furthers the federal trust responsibility and government-to-government relationship between Tribes and the United States. Committee members educate elected officials, the federal judiciary, and legal professionals on pressing issues of law and policy that affect Native Americans throughout the country.

“The coming decade will present both significant challenges and unprecedented opportunity for Native American communities,” Greg said. “The Native American Concerns Committee will work closely with Tribes and their partners to enhance social justice, health, economic development, and cultural preservation for all Native Americans.”

For 2010-11, Greg has set an ambitious agenda for the Committee, including:

• Creating a new electronic communications infrastructure to connect the Committee with every federally-recognized Tribe in the United States.

• Conducting global education webinars on current legal developments, featuring internationally-recognized experts on Indigenous rights issues.

• Partnering with national Native advocacy organizations to promote legal and legislative initiatives furthering Tribal political, social, and economic priorities.

• Working with law schools to develop the next generation of Native legal advocates, and connecting students with Tribes and supporting organizations to staff current legal programs.

The website for the ABA’s Native American Concerns Committee can be accessed HERE.
For more information on Foster Pepper’s Native American Legal Services Group, click HERE.

Contact Greg Guedel (206.447.8931 or guedw@foster.com) for more information.

 

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The Treasury Department is seeking comments from Tribal Governments and interested individuals regarding the ability of Tribes to issue tax-exempt bonds. This includes Tribal Economic Development Bonds (TEDBs) that were authorized by ARRA. The attached PDF document contains the Treasury Department's notice, and comments are due by September 10, 2010.

Questions posed by the Department include:

Are there any specific additional types of projects or activities beyond those allowed for State and local governments for which Indian tribal governments should be authorized (or not authorized) to use qualified tax-exempt private activity bonds (i.e., in which private business ownership, leasing, or other private business use of the bond-financed projects would be permitted) in light of their special needs or unique circumstances?

Should the limitation on use of Tribal Economic Development Bonds to finance projects that are located outside of Indian reservations be modified to address special needs or unique circumstances of Indian tribal governments?

Should consideration be given to changing the law permanently to authorize Indian tribal governments to use qualified tax-exempt private activity bonds for the same types of projects and activities as are allowed for State and local governments?

Many Tribes and their partners have chafed over the past decade as the IRS introduced, largely on a retroactive basis through its audit program, new requirements that prohibited Tribes from issuing debt on a tax-exempt basis (e.g. there could be no commercial aspects of a bond-financed project and a tribe would need to prove that numerous state and local governments had been financing similar improvements with bonds over long periods of time).

Comments can include real-life examples of projects that Tribes had to forego (or finance on a more expensive taxable basis) because the current tax laws prohibited tax-exempt financing. It may also be helpful to identify frustrations Tribes have encountered trying to use TEDBs, and debunk the myth that tribes are mainly focused on casinos.

For more information regarding how to help influence the Treasury Department to improve its Tribal bond program, contact Foster Pepper’s Jeff Nave.
 

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