DOJ Punts Tribal SORNA Implementation to States

A deadline is approaching for tribes to implement the sex offender registration requirements (SORNA) of the Adam Walsh Act, a 2006 bill aimed at enhancing the powers of states and law enforcement states to monitor and civilly commit "sexually dangerous persons."

Tribes who enact their own systems will retain a degree of autonomy, although at least five tribes have explicitly opted out of implementing the requirements independently, and nine tribes have allowed the option to lapse by failing to file a Resolution of Other Enactment. These tribes will have their SORNA requirements handled by the states, after consultation with the Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehension, Registering and Tracking (SMART). Persistent ambiguity in tribal law can lead to ad hoc transfers of power and jurisdiction, in this case from from the Attorney General to the states. Even tribes who opted in to the program, but who have failed to implement according to the DOJ's timeframe, will lose their sovereignty to the states in this case.

The deadline to implement, or be deemed capable of doing so in a reasonable amount of time, is July 27, 2011.

Tribes Seek Protection Of Native Health Care Gains In "Obamacare" Lawsuit

The National Indian Health Board and a consortium of Tribes and Tribal agencies have filed an amicus brief in the “Obamacare” lawsuit, where a federal judge in Florida ruled the federal government’s landmark healthcare reform unconstitutional. The lawsuit was filed after President Obama signed into law the Patient Protection and Affordable Care Act, which is designed to provide health care coverage to all Americans.

The primary issue in the lawsuit, which is now on appeal, is whether the Constitution allows the federal government to require individual Americans to purchase health care insurance. Over two dozen states joined together to oppose the reform legislation, arguing that the federal government does not have the power to compel individuals to purchase health care insurance. The lawsuit was filed in federal court in Florida, and the trial judge ruled the legislation unconstitutional. The matter is now being reviewed by the 11th Circuit Court of Appeals.

Within the federal health care reform legislation, there are sections that provide significant benefits for Native American health care programs. The legislation permanently re-authorized the Indian Health Care Improvement Act, which provides funding and administrative support for health care in Native communities throughout the country. In their amicus brief, Tribes have asserted that the portions of the health care legislation that impact Native Americans are constitutional and should be “severed” from any portions of the legislation that are ultimately determined to be unconstitutional. That would allow for funding and other improvements to Tribal health care to continue even if other portions of the new law are overturned.

Interestingly, the portions of the law applicable to Native American health care actually provide and exemption for Native Americans from the individual insurance purchase requirement – which is consistent with the goals of the states seeking to have the new laws overturned. This provides a potential opportunity for agreement between the states and Tribes, where all sides could concur on the validity of the sections that improve health care for Native communities.

Alaska Native Village Asks United Nations To Help Stop Open Pit Coal Mine In Tribal Territory

Open Pit Coal Mine (Tribal Energy and Environmental Information Clearinghouse)

Chickaloon Native Village, a federally-recognized Athabascan Indian Tribal government in Alaska, filed a communication to the United Nations Independent Expert on the human right to water and sanitation, seeking help in stopping a new open-pit coal mine in the Village’s traditional territory.

Chickaloon Village’s submission asserts that the new mine proposed by the Usibelli Corporation would contaminate local drinking water sources as well as rivers, streams and groundwater that support salmon, moose and other animals and plants vital for subsistence, religious and cultural practices. The US Federal Government and the State of Alaska have, to date, not responded to Chickaloon’s firmly-stated opposition to the mine.

The visit to the US by the Independent Expert, Mrs. Catarina de Albuquerque, a Portuguese human rights expert appointed by the UN Human Rights Council, includes stops in Washington DC, Boston Massachusetts and Northern California, where she will meet with the Winnemem Wintu and other Indigenous representatives. Her US visit will end on March 2, 2011.

Mrs. De Albuquerque will meet with the US State Department and relevant Federal agencies as well organizations, communities and experts to receive information regarding the human right to water and sanitation and the federal and state policies and practices that affect this right. She is expected to make recommendations to the US government at the conclusion of her visit.

Explaining the reasons behind Chickaloon’s filing, Traditional Chief Gary Harrison stated: "International standards like the UN Declaration on the Rights of Indigenous Peoples recognize our inherent sacred right to protect our water and keep it clean for the animals, fish and future generations of our Nation. Our right to water is the same as our right to life. We can’t sit back and allow our human right to water to be violated again".
 

President Obama Announces US Support For The UN Declaration On The Rights Of Indigenous Peoples

The President has announced a change to the United States’ status as the sole holdout in supporting the UN Declaration on the Rights of Indigenous Peoples, stating:

“And as you know, in April we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this Declaration.”

The President’s remarks came during the close of the second Tribal Nations Conference held by the White House. His full statement on the Declaration and other Tribal issues can be viewed HERE.

While the statement declares a change in US policy, there will be much practical work required to implement the provisions of the Declaration and assess its impact on relations between the federal government and Tribal communities.

Tribal Building Code Legislation Urged To Protect Sovereignty

The International Code Council is mounting an effort to create an amendment to Section 408(d) of the Tribal Self Government Act of 2010, HR4347, that has passed the House and is currently pending in the Senate Indian Affairs Committee. The purpose is to help preserve the sovereign right of Tribes to establish building codes that best serve their infrastructure development needs, rather than having these codes dictated by the Bureau of Indian Affairs.

Currently, HR 4347 Section 408(d)(1) provides:

"d) Codes and Standards- In carrying out a construction project under this title, an Indian tribe shall--
(1) adhere to applicable Federal, State, local, and tribal building codes, architectural and engineering standards, and applicable Federal guidelines regarding design, space, and operational standards, appropriate for the particular project…"

This language assumes that the codes and standards adopted by the Bureau of Indian Affairs (BIA) are the same as, or consistent with, the codes and standards adopted by the Tribes, or by the jurisdictions in which Tribal construction projects are taking place. This is not always the case, as the BIA has adopted a building code (NFPA 5000) that is not currently in use by Tribes. If the BIA requires compliance with this code, which is inconsistent in certain areas with the International Building Code used by many Tribes, it could cause significant delays and increase the Tribe’s design and engineering costs.

The language the ICC is recommending to amend H.R. 4347 is as follows, to be added at the end of the first sentence of Sec 408 (d)(1):

"Where the applicable Federal guidelines or building code conflict with the building code adopted by the Tribe, the Tribal code shall be adhered to."

The adoption of by Tribes of civil codes for building projects and other activities is an important measure for the preservation of sovereignty. Federal agencies will more readily seek to impose their authority on Tribal activities if a Tribe does not have its own regulations in place to govern that activity. More information on this legislative effort regarding Tribal building codes is available from the ICC’s website.
 

Seattle University Publishes Landmark Legal Treatise On Tribal Trust Land

Eric Eberhard, Distinguished Indian Law Practitioner in Residence at the Seattle University Center for Indian Law and Policy, has published an 862-page treatise on the principles and issues involved in Tribal trust lands. The treatise was produced in conjunction with the University’s law conference entitled “Perspectives on Tribal Land Acquisitions in 2010: A Call to Action”, and provides in-depth discussions of the legal background and current developments of Tribes’ quest to preserve and protect their traditional lands.

The treatise can be downloaded HERE, and CD copies can be obtained by contacting the Seattle University Center for Indian Law and Policy.

Professor Eberhard also serves as Vice-Chair of the American Bar Association’s Native American Concerns Committee, and is leading the organizational effort to create a new academic law journal focused exclusively on legal issues affecting Native Americans.

Fake Snow On Sacred Peaks: "It's Like Bombing A Church"

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."

Improving Native Child Welfare Services - Your Input Is Needed

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.
 

Judge Dismisses Federal Lawsuit To Recover Geronimo's Remains

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. 

Tribal Law And Order Act Set To Become Federal Law

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.

US Rules May Keep Iroquois Team Out Of World Lacrosse Championship

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.
 

History And Property Rights Questions Being Raised From Pequot Battlefields

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.

White House Releases Tribal Nations Progress Report

“I am absolutely committed to moving forward with you and forging a new and better future together. It’s a commitment that’s deeper than our unique nation-to-nation relationship. It’s a commitment to getting this relationship right, so that you can be full partners in America’s economy, and so your children and grandchildren can have an equal shot at pursuing the American dream.” -- President Obama

 
During the White House Tribal Nations Conference in November 2009, President Obama met with leaders invited from all 564 federally recognized Tribes to forge a stronger relationship with Tribal governments. Acknowledging the history of marginalization of Native people, of promises broken and treaties violated, and of failed government solutions, President Obama called for a new and better future in which Tribal nations are full partners.

The President signed a memorandum at the conference directing Federal agencies to submit detailed plans of actions on how they intend to secure regular and meaningful consultation and collaboration with Tribal officials for policy development. Agencies are currently in the process of implementing these plans. In the interim, the White House has released a Progress Report that provides details on the status of federal programs designed to address issues of concern for Tribal communities. The report can be accessed HERE.
 

EPA Loses Bid To Regulate Uranium Mining Near Tribal Lands

Open Pit Uranium Mine, Wyoming

The U.S. Court of Appeals for the 10th Circuit has rejected the EPA’s claim that it has primary permitting authority over uranium mining on property near Tribal lands, limiting the federal government’s reach over this controversial mining in major uranium producing states – many of which are also home to Tribal communities.

The Court’s June 16, 2010 ruling in Hydro Resources, Inc. (HRI) v. EPA, et al., sides with industry arguments that the site of a particular uranium mine in New Mexico is not located on Tribal land because it falls outside the Navajo Nation’s boundaries. The EPA had argued for a broader standard which would allow it to regulate uranium mining anywhere that is considered “Indian Country” under federal law, even if the property was outside the defined boundaries of a Reservation. A result of the Court’s decision is that regulation of such mines will be left to state law, which is not consistent from state to state.

In its published opinion, the Court noted: “EPA argued . . . that we should cast our gaze beyond the particular land in question. In the Agency’s view, because some sufficiently significant (though unspecified) percentage of neighboring lands -- what EPA calls ‘the community of reference’ -- is Indian country, HRI’s land must be considered Indian country, too.” The Court stated that the EPA’s analysis presupposes “that every piece of land is part of some community of reference,” but the Court rejected that argument.

The ruling is particularly significant because it was issued by the court which oversees Oklahoma, Wyoming, Kansas, Colorado, Utah and New Mexico, all of which are important energy and mineral-producing states and which also have large regions of Tribal lands.
 

2010 Census Count Improving For Native Americans

Responding to chronic failures to accurately account for Native populations in past years, the Census Bureau has actively sought to improve its outreach for the 2010 Census. The Bureau got an early start and partnered with Tribes throughout the country to connect with Tribal members. The initial results indicate a significant increase in the response rate for Tribal members, which should result in better federal representation for Native communities. The information the Census collects helps to determine the allocation of more than $400 billion dollars of federal funding each year, for projects such as hospitals, schools, emergency services, and transportation.

The Bureau partnered with groups such as the National Congress of American Indians and took a government-to-government approach, making formal presentations to all 564 federally recognized Tribes and asking permission to conduct operations on Tribal lands.

A prime example of the improved accounting in Native communities is found with the Tulalip Tribes, whose Census return rate by last month had hit 70 percent — even before Census workers started their direct outreach to individual Tribal members. In 2000, the Tulalip final return rate was 54 percent.

The Tulalip Tribes plan a news conference to thank the Bureau for its efforts. "We're deeply appreciative of the Census Bureau for understanding that Indian Country was underrepresented 10 years ago," said Tulalip Tribal Chairman Mel Sheldon. "We do not forget our history, it hasn't always been the best of relationships ... but there's a new era here, and we're looking forward with optimism." 

Obama Administration Issues Final Columbia River Salmon Plan

Seigning Salmon In The Columbia River, Circa 1914

The federal government has issued its final program for restoring endangered salmon on the Columbia River -- a plan that will have substantial impact on the rights and livelihood of the Tribes that comprise the Columbia River Inter-Tribal Fish Commission.

The administration’s revised plan has been updated to reflect new scientific studies and incorporate a flexible "adaptive management" strategy for quick implementation of stronger protective measures if needed. Officials hope that will be sufficient to prevent another rejection of its plans by the federal court overseeing the matter. "While much attention has focused on the courtroom, the region should be proud of what the federal government, states, Tribes and communities together have accomplished for fish," the agencies said in a statement releasing the opinion. "Last year alone, 9,609 miles of wetland habitat were protected and 244 miles of streams were reopened to fish. We've made much progress, and completion of this legal process now prepares us to make much more."

Conservationists had hoped the plan would be much bolder, with less emphasis on hatchery fish and stronger attention to the possibility of breaching dams on the Snake River in eastern Washington that cut off salmon from miles of pristine potential habitat.  The primary argument against the removal of dams is the negative impact on electricity generation, since the Northwest receives a significant portion of its power from hydroelectric sources.

The Columbia River Inter-Tribal Fish Commission is comprised of the fish and wildlife committees of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. The Tribes have treaty-guaranteed fishing rights and management authority in their traditional fishing areas.
 

National Native American Bar Association Issues Statement On Kagan Nomination To Supreme Court

May 11, 2010

The Honorable Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500

RE: Solicitor General Elena Kagan’s Nomination to the Supreme Court

Dear Mr. President:

Congratulations on your nomination of Solicitor General Elena Kagan to the United State Supreme Court. We are pleased you chose a woman, and clearly General Kagan is a well qualified jurist.
NNABA does not currently have a position on General Kagan’s nomination. We are not yet familiar with her experience with Tribal nations or Federal Indian law. However, we very much look forward to hearing from General Kagan about her views on the Constitutional status of Tribes and the protection of Native American rights. We would like to extend an invitation for General Kagan to meet with NNABA and invite her to Indian Country to visit one of our Nations, to visit our Tribal courts, and meet with our elected Tribal leaders.

Importance of Working Knowledge of Federal Indian law.

Due to the unique Constitutional status of Native American Tribes, a disproportionate percentage of cases before the Supreme Court deal with Tribes and Indian law issues. In addition, federal court decisions often disproportionately affect Natives. Most Indian reservation lands continue to be under “federal trust” and federal criminal law applies in conjunction with tribal law. The Supreme Court oversees this relationship with Tribes and the Federal treaty and trust responsibility to Tribal citizens. There are over 560 federally-recognized Tribes in the United States, located in 35 out of the 50 states.

No Native American Supreme Court Justice, Federal Judge, Or Supreme Court Clerk.

A Native American has never served on the Supreme Court, there is not currently a Native on the federal bench and to the best our knowledge there have been almost no Native American Supreme Court clerks.

NNABA continues to be hopeful that your administration will nominate a Native to the federal bench, and we appreciate any efforts to ensure that all of your federal nominees have a strong working knowledge of Federal Indian law.

Respectfully,

Lael Echo-Hawk
President, National Native American Bar Association

Despite Tribal Opposition, US Government Approves Cape Cod Wind Farm

Secretary of the Interior Ken Salazar has approved the nation's first offshore wind farm, despite strong opposition from the Mashpee Wampanoag Tribe and environmental groups. The 130 turbines are to be located several miles from the Massachusetts shore in the waters of Nantucket Sound, which Wampanoag consider part of their sacred cultural heritage.

Salazar declared that Cape Wind, as the project is known, is the start of a "new energy frontier."
"Cape Wind will be the nation's first offshore wind farm, supplying clean power to homes and businesses in Massachusetts, plus creating good jobs here in America," he said. "This will be the first of many projects up and down the Atlantic coast."

"The United States is leading a clean energy revolution that is reshaping our future," Salazar said in announcing the project’s approval. "Cape Wind is an opening of a new chapter in that future, and we are all part of that history."

He did not make reference to another history – the Wampanoag spiritual ritual of greeting the sunrise which requires unobstructed views across the sound, and that their ancestral burial grounds are located in the area. The Wampanoag tribes — whose name translates to “people of the first light” — said their view to the east across Nantucket Sound was integral to their identity and cultural traditions. “Here is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the season,” wrote Bettina Washington, historic preservation officer for the Aquinnah Wampanoag, in a letter to federal officials. The Tribes also argued that the wind turbines, which will be 440 feet tall, could destroy long-submerged tribal artifacts from thousands of years ago, when the sound was dry land. Such artifacts could “yield further confirmation of our cultural histories,” according to Ms. Washington.
 

Will New Supreme Court Justice Reverse The Trend Against Tribes?

With Justice John Paul Stevens announcing his retirement from the US Supreme Court this year, the Obama administration will have the opportunity to appoint a second new jurist to the bench. The Tribal Supreme Court Project is hoping the new appointee will help reverse a disturbing trend – Tribal interests losing nearly every case that comes before the Court.

"We view this Court as not favorable on our issues," explained Richard Guest, senior staff attorney at the Native American Rights Fund. "We had a winning percentage from 2001 to 2005 but now we're back to a situation where we are zero for five."

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States. "If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases," said Guest.

This view is supported by a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: "Factbound and Splitless: Certiorari and Indian Law." From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases. Since the Cabazon decision, the Supreme Court has decided against tribal interests in more than 75 percent of cases.
 

Canada's Seal Hunt Begins - With An Inuit Lawsuit Against EU Restrictions

(Itsnature.org)

Canadian Inuit have filed a lawsuit in the European General Court to overturn EU legislation banning the import of seal products into EU countries. The lawsuit seeks annulment of Regulation (EC) No 1007/2009 of the European Parliament and Council of September 16, 2009 on trade in seal products. The lawsuit comes as the annual seal hunt in the Canadian arctic is beginning, with the Canadian government authorizing hunters (including Inuit) to take up to 330,000 seals.

In adopting its seal products trade legislation, the EU held out the possibility of a partial exemption for seals hunted by Inuit. While the prospect of this exemption may have persuaded many EU Parliamentarians to vote for the ban, legislation was developed without the involvement of Canadian Inuit, and the EU continues to develop implementation measures affecting Canadian Inuit without the fair and informed participation, let alone consent, of Inuit.

The events surrounding the EU seal products trade ban have contributed to a sharp drop in seal pelt prices in markets relied upon by Inuit and in turn a reduction in the ability of Inuit to provide for their families in the challenging economic climate of their homelands. The Government of Canada is currently challenging the EU seal products trade ban under World Trade Organization (WTO) rules.

Mary Simon, President of Inuit Tapiriit Kanatami, said

"Inuit have been hunting seals and sustaining themselves for food, clothing, and trade for many generations. No objective and fair minded person can conclude that seals are under genuine conservation threat or that Inuit hunting activities are less humane than those practiced by hunting communities all over the world, including hunters in Europe. It is bitterly ironic that the EU, which seems entirely at home with promoting massive levels of agri-business and the raising and slaughtering of animals in highly industrialized conditions, seeks to preach some kind of selective elevated morality to Inuit. At best this is cultural bias, although it could be described in even harsher terms.

 

US Government Studies Tulalip Tribes' Labor Relations Model

This week Assistant Labor Secretary Jane Oates visited with board members and staff of the Tulalip Tribes to learn how the Tribes dealt with labor agreements during the construction of their casino and resort hotel complex in Washington state. Oates offered praise for the way Tulalip handled labor agreements on the reservation and ensured Tribal members have employment opportunities.

“We hear nightmares about how some Tribes are not able to negotiate with labor unions,” Oates said. “The Tulalip Tribes did an amazing job, and we are here to learn from them.”

Oates’ tour included a visit to the Tulalip Tribal Employment Rights Office, which has a mission to protect preferential employment for tribal members and contracting rights on the reservation. The office also works to improve wages, training and career and contracting opportunities.  Unemployment on reservations throughout the nation is a concern in President Barack Obama’s administration, Oates said. “It’s unacceptable that unemployment in Indian Country is five times what it is among non-Natives,” she said.

Tulalip board member Glen Gobin told Oates that myths, stereotypes and misconceptions about the tribal work force were dispelled during construction projects on the reservation. “We know that our Tribal members are our most valuable resource,” Tulalip Chairman Mel Sheldon said.
 

9th Circuit's Maggi Decision - You're Only An "Indian" If The US Government Says So

The latest foray by federal courts into the anachronistic (and often bizarre) legal analysis of who qualifies as an “Indian” comes from the 9th Circuit Court of Appeals in its decision in the case of United States v. Maggi. The bottom line: unless you are a member of a federally-recognized Tribe, you are not an “Indian” under federal law.

As with most of the cases that analyze the issue of who is an “Indian”, the Maggi case arises from a dispute over whether a federal court or Tribal court has jurisdiction over a person accused of committing a crime on Tribal lands. Under current federal law, Tribal courts can only hold jurisdiction over people who qualify as “Indian”.  Tribes are not allowed to exercise jurisdiction over people who are not considered “Indian” by the federal government -- making Tribal courts the last legal venue in the US where race determines access to justice.

In determining that the defendants in the Maggi case were not “Indian” and therefore not subject to Tribal court jurisdiction despite committing crimes on Tribal land, the 9th Circuit quoted from LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993):

“Is the Indian group with which (a person) claims affiliation a federally recognized Indian tribe? If the answer is no, the inquiry ends. A defendant whose only claim of membership or affiliation is with an Indian group that is not a federally acknowledged Indian tribe cannot be an Indian for criminal jurisdiction purposes.”

The extreme difficulty for unrecognized Tribes to obtain federal recognition is well known – it can take decades just to receive a “no” from the federal government. The Maggi decision reinforces the courts’ brutal concept that unless you’re a member of a federally recognized Tribe, not only are you unable to obtain sovereign rights through your Tribe – you’re not even considered an “Indian”.
 

This Week: Tribal Law Conference At Gonzaga University

This Thursday, March 18, 2010 Gonzaga University School of Law in Spokane, Washington will be the site for a far-ranging conference on legal issues of importance to Tribal communities and their advocates. Hosted by the Indian Law Section of the Spokane County Bar Association, the conference features nationally-recognized experts in numerous areas of law that are critical to Tribes. The conference itinerary includes:

The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts)

Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)

Labor and Employment Law Issues for Tribes (FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)

Issues Regarding Multi-Jurisdictional Regulatory Oversight

Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law

Registration information is available HERE.
 

Mashantucket Pequot Reaches Deal To Extend Foxwoods Casino Debt Forbearance

The Mashantucket Pequot Tribal Nation, owner of Foxwoods Resort Casino, has reached a new agreement in principle with its senior lenders to extend a debt forbearance agreement. The agreement is designed to provide more time to improve the casino’s cash flow and repayment ability as it works to restructure $2.3 billion of debt. The existing forbearance agreement would have expired January 20th; the new agreement extends the timeline to April 30, 2010.

The agreement in principle has been made with a majority of the Tribal nation’s lenders and will be finalized and executed shortly, according to the Tribe’s spokesperson.  The statement emphasized that the Nation's debt restructuring efforts are separate and distinct from operations at Foxwoods and will not have any impact on guests, employees, suppliers or business partners at Foxwoods or MGM Grand at Foxwoods.

“Foxwoods remains committed to providing its guests with its signature guest service, unparalleled gaming options, the very best in entertainment, and world-class services, dining and amenities,” according to the statement.
 

NAFOA Issues Statement On Controversial Tribal Bond Repayment Case

Bill Lomax, President of the Native American Finance Officers Association, has issued the following statement regarding the recent federal court decision in the Lac du Flambeau bond repayment case.

Dear Tribal Leaders and Finance Officers,

I am writing to inform you about a case concerning a Tribal bond issuance that has recently been decided and, in theory, has potential implications for any Tribe that currently has financing or may be seeking financing for a Tribal project.

The Decision:
On January 6, 2010, the United States District Court for the Western District of Wisconsin (the “Court”) issued an order in the case of Wells Fargo Bank, National Association, as Trustee v. Lake of the Torches Economic Development Corporation. This order invalidates the trust indenture for $46,615,000 of bonds issued by a tribal corporation of the Lac du Flambeau Band of Lake Superior Chippewa Indians (“LDF”) for the refinancing of the Lake of Torches Casino and other LDF debt. In this order, the Court ruled that the indenture amounted to a management contract and is void due to failure to seek the required National Indian Gaming Commission approval.

Some have suggested that this case may have dire consequences for all Tribes seeking financing. We have consulted with some of the top attorneys in Indian country and believe that this case is “sui generis” or unique in its facts and are hopeful that it will not have widespread application to the Native American community.


The Risk of Existing Tribal Trust Indentures or Financing Agreements Being Invalidated as Management Contracts:

The Indian Gaming Regulatory Act prohibits Tribes from entering into management agreements for casinos without review and prior approval by the Chairman of the NIGC. A financing arrangement risks being invalidated in its entirety if it includes provisions that could be construed as providing the lender with rights of management. The Court concluded that the bond indenture in the LDF financing does not comply with NIGC guidelines related to impermissible elements of management control.

Some have suggested that this case could lead to other Tribal trust indentures and financing agreements being invalidated as management contracts. We at NAFOA do not think this is the case. The trust indenture in the LDF case includes several critical provisions not commonly found in Tribal gaming financings.

One highly experienced Indian country attorney we consulted has suggested that “the trust indenture is like none [he has] ever seen and clearly does not conform with the standards set by the NIGC.” For example, according to the pleadings in this case, the indenture included provisions: 1) requiring bondholder approval of changes to specified senior management of LDF’s casino operation; 2) permitting bondholders to direct LDF to hire new management in the event of default by LDF; 3) upon certain financial covenant violations, requiring LDF to retain an independent gaming management consultant and thereafter use “best efforts” to implement the recommendations of such consultant; and 4) permitting the appointment of a receiver over casino revenues and casino equipment in the event of a default by LDF. The Court concluded that these provisions, among others, overstep NIGC rules concerning a lender’s ability to assert management powers within a financing agreement.

We believe that few trust indentures or other financing agreements in Indian country are likely to have provisions similar to the ones mentioned above and we think this will limit the applicability of this case to other Tribes. Thus, it is our hope that Tribes and their lenders need not be concerned about the validity of their financing agreements.

We do however have some concerns about the broad language used by the Court in this case. In addition to the provisions noted above, the Court included references to some commonly used provisions often found in trust indentures and loan agreements. We are hopeful that the National Indian Gaming Commission will provide some guidance so as to avoid confusion about which of the provisions, taken together or separately, would constitute a management contract if included in a trust indenture or loan agreement.
 

For detailed information on Tribal bond issues and the impact of current legal decisions, contact Jeff Nave, Marc Greenough, or Bill Tonkin.

Ruling In Lac du Flambeau Casino Bond Case Highlights Tribal Sovereignty Power Against Creditors

When the Lac du Flambeau Tribe fell behind on repaying $50 million in bonds that financed its casino in northern Wisconsin, bond issuer Wells Fargo asked a federal judge to appoint a receiver to run the casino and increase payments on the debt service. As reported on Turtletalk, the judge refused based on principles of Tribal sovereignty, leaving the bank and bondholders with few legal options other than negotiating with the Tribe.

In 2008, the Lac du Flambeau issued bonds to provide capital for the construction and operation of its casino. The bonds carried interest at 12% and required a monthly payment from the Tribe of approximately $800,000. With the economy plunging and over $46 million still to be repaid on the bonds, the Tribe stopped setting aside money to service the debt. Wells Fargo then filed suit in federal court to appoint a receiver to run the casino, in accordance with the terms of the bond agreement the Tribe executed with the bank.

The Tribe argued that the receivership clause in the bond agreement was so broad that it was actually a management agreement that would require approval by the National Indian Gaming Commission. The Commission had not been involved in negotiating the deal and did not provide any approval, therefore the Tribe argued that the agreement was void. The judge’s refusal to appoint a receiver essentially validated that position, leaving Wells Fargo with no direct ability to take control over the casino’s operations. “The entire agreement is a void issue,” said Tribal administrator William Beson.

The judge’s decision means the Tribe is not legally responsible to pay back the money, said Monica Riederer, the Tribe’s attorney. However, she said that does not mean the Tribe will completely renege on the debt. “They will do whatever they’re legally required to do,” Riederer said. Meanwhile, investors and Tribes across the country will no doubt closely monitor the impact this situation has on the ability of Tribal entities to obtain future bond financing. Having no ability to enforce collection of a bond debt is “a nightmare for investors,” said Megan Neuburger, an analyst who follows the Indian gaming industry for Fitch Ratings. “It’s sort of an investor’s worst-case fear.”

 

Tribes Work Through National Park Service To Block Windfarm In Traditional Native Waters

 

A controversial wind farm project to be located off Cape Cod, Massachusetts has been stalled after local Tribes convinced the National Park Service to declare Nantucket Sound eligible for listing in the National Register of Historic Places. The Mashpee Wampanoag and the Aquinnah Wampanoag applied for the listing last fall, stating that the 130 proposed wind turbines would interfere with their spiritual ritual of greeting the sunrise which requires unobstructed views across the sound, and disturb ancestral burial grounds. The project has been in development since 2001 and is supported by state authorities.

The decision by the National Park Service does not terminate the project, but it requires more negotiations and potential changes to the project and/or its location. Interior Secretary Ken Salazar set a deadline of March 1, 2010 for the Tribes and the project’s developer, Energy Management Inc., to reach a compromise. Cedric Cromwell, chairman of the Mashpee Wampanoag tribe, said the decision confirmed “what the Wampanoag people have known for thousands of years: that Nantucket Sound has significant archaeological, historic and cultural values and is sacred to our people.”

Nantucket Sound, which encompasses more than 500 square miles, is by far the largest body of water ever found eligible for listing on the national historic register. “The decision is without precedent in terms of implicating many square miles of what is, legally speaking, the high seas,” said Ian A. Bowles, the Massachusetts Secretary of Energy and Environmental Affairs.

In seeking the historical designation, the Wampanoag tribes — whose name translates to “people of the first light” — said their view to the east across Nantucket Sound was integral to their identity and cultural traditions. “Here is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the season,” wrote Bettina Washington, historic preservation officer for the Aquinnah Wampanoag, in a letter to federal officials. The Tribes also argued that the wind turbines, which would be 440 feet tall, could destroy long-submerged tribal artifacts from thousands of years ago, when the sound was dry land. Such artifacts could “yield further confirmation of our cultural histories,” according to Ms. Washington.
 

US Census Promises Special Focus On Native Population Count

The once-per-decade United States Census kicks off in April 2010, and the manager for the U.S. Census Bureau’s American Indian/Alaska Native Program is leading a focused effort to obtain an accurate count of the Native American and Alaska Native populations within the United States.

Program Director Curtis Zunigha, a member of the Delaware Tribe of Indians in Oklahoma, is already undertaking population counts in isolated sectors of Alaska, even though Census Day is April 1. “We’re actually beginning our remote Alaska operation in January. Many of the Alaska Natives engage in subsistence hunting and fishing in the spring in camps that our enumerators wouldn’t be able to find and they’re not going to get anything in the mail, so we’re going in early to the Native village of Noorvik. They’re a partner and the Tribal leadership has agreed to host the very first enumeration.”

Partnership is the key to a successful census, Zunigha said.

“After the first enumeration in Noorvik, we’ll be going village to village all across those remote areas all through the State of Alaska and getting these people counted early. And all the work that’s gone into building relationships and partnerships with the Native tribes and villages, all the outreach that’s gone into it to make people aware of the census, hiring people from the villages to be enumerators – all of that is a model of what we’re doing all across Indian country. If it happens the way we’ve planned in Noorvik, I expect a very positive response from Indian country over all.”

Data from the census is a primary element in determining the distribution of more than $400 billion in federal funding nationwide. For Native communities, that means funding for Indian Child Welfare, Children and Family Education, employment assistance, food distribution, Temporary Assistance for Needy Families, housing, community development block grants, and numerous other programs. The data will affect policy and resource allocations for human service programs for Native communities throughout the country.

According to Zunigha, one of the most challenging aspects of census taking in Native communities is establishing trust.

“The whole idea of mistrust of the federal government – that’s no secret in Indian country – but I think the best thing to overcome that is to emphasis the partnership aspect of the way we’re doing the census in Indian country.”

“Tribal leaders know true tribal sovereignty and self-determination means you don’t let somebody else come in and figure out this data for us. We do it ourselves and we can do our own planning and development for business and communities. I fully expect tribal demographers and data analysts to be using the reports that will be generated. You can bet the people like Harrahs and Bally's and other casino companies are using census data to do long range planning for site locations and businesses. So a good and successful census for Indian country only helps support tribal sovereignty and self-determination.”

Tribes Turn To Federal Court In Pacific Fishing Rights Dispute

In a case with implications for more than twenty Tribes in the Pacific Northwest, the issue of Native American fishing rights and boundaries in the Pacific Ocean has been brought before the federal District Court for the Western District of Washington.

In an earlier proceeding, the Court determined that the Makah, Quileute, and Quinault nations had usual and accustomed fishing grounds in the Pacific Ocean. It was determined that the Makah’s usual and accustomed fishing grounds “included the waters of the Strait of Juan de Fuca . . . extending out into the ocean to an area known as Swiftsure and then south along the Pacific coast to an area intermediate to Ozette village and the Quileute Reservation,” as well as certain rivers and lakes. The Court determined that Quileute usual and accustomed grounds included certain rivers, lakes and streams and “the adjacent tidewater and saltwater areas”, and that the Quinault utilized “ocean fisheries” in “the waters adjacent to its territory.” See 384 F. Supp. at 374 (FF 120).

However, the Court did not define the precise boundaries of the nations’ “usual and accustomed fishing grounds” in the Pacific Ocean, and the Court’s decision was limited to waters within the jurisdiction of the State of Washington and within three miles of shore. The question of precise ocean boundaries for the nations’ respective fishing rights remains unresolved. The Request for Determination filed by the Makah Tribe alleges:

On the basis of the information Makah assembled in response to the threat posed by Quileute’s and Quinault’s intent to participate in the Pacific whiting fishery in the manner described above, it appears that Quileute and Quinault have authorized and currently are conducting fisheries for salmon, halibut and black cod outside of their actual usual and accustomed fishing areas. Although Makah, Quileute and Quinault have been able to resolve disputes over these fisheries in the past, the Quileute and Quinault fisheries for these species compete directly with Makah fisheries for the same species.

It is interesting to note that the nations had previously worked out such issues through direct negotiation, but now have placed the power over their respective jurisdictions and economic rights in the hands of a federal judge.
 

Cobell Trust Lawsuit Resolved In Multi-Billion Dollar Settlement

Secretary of the Interior Ken Salazar and Attorney General Eric Holder today announced a settlement of the long-running and highly contentious Cobell class-action lawsuit regarding the U.S. government's trust management and accounting of over three hundred thousand individual American Indian trust accounts. Also speaking at the press conference today were Deputy Secretary of the Interior David Hayes and Associate Attorney General Tom Perrelli.

“This is an historic, positive development for Indian country and a major step on the road to reconciliation following years of acrimonious litigation between trust beneficiaries and the United States,” Secretary Salazar said. “Resolving this issue has been a top priority of President Obama, and this administration has worked in good faith to reach a settlement that is both honorable and responsible. This historic step will allow Interior to move forward and address the educational, law enforcement, and economic development challenges we face in Indian Country.”

“Over the past thirteen years, the parties have tried to settle this case many, many times, each time unsuccessfully," said Attorney General Eric Holder. "But today we turn the page. This settlement is fair to the plaintiffs, responsible for the United States, and provides a path forward for the future.”

Under the negotiated agreement, litigation will end regarding the Department of the Interior’s performance of an historical accounting for trust accounts maintained by the United States on behalf of more than 300,000 individual Indians. A fund totaling $1.4 billion will be distributed to class members to compensate them for their historical accounting claims, and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets.

In addition, in order to address the continued proliferation of thousands of new trust accounts caused by the "fractionation" of land interests through succeeding generations, the settlement establishes a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.

By reducing the number of individual trust accounts that the U.S must maintain, the program will greatly reduce on-going administrative expenses and future accounting-related disputes. In order to provide owners with an additional incentive to sell their fractionated interests, the settlement authorizes the Interior Department to set aside up to 5 percent of the value of the interests into a college and vocational school scholarship fund for American Indian students.

The settlement has been negotiated with the involvement of the U.S. District Court for the District of Columbia. It will not become final until it is formally endorsed by the court. Also, Congress must enact legislation to authorize implementation of the settlement. Because it is a settlement of a litigation matter, the Judgment Fund maintained by the U.S. Departments of Justice and Treasury will fund the settlement.

“While we have made significant progress in improving and strengthening the management of Indian trust assets, our work is not over,” said Salazar, who also announced he is establishing a national commission to evaluate ongoing trust reform efforts and make recommendations for the future management of individual trust account assets in light of a congressional sunset provision for the Office of Special Trustee, which was established by Congress in 1994 to reform financial management of the trust system.

The class action case, which involves several hundred thousand plaintiffs, was filed by Elouise Cobell in 1996 in the U.S. District Court for the District of Columbia and has included hundreds of motions, dozens of rulings and appeals, and several trials over the past 13 years. The settlement funds will be administered by the trust department of a bank approved by the district court and distributed to individual Indians by a claims administrator in accordance with court orders and the settlement agreement.

Interior currently manages about 56 million acres of Indian trust land, administering more than 100,000 leases and about $3.5 billion in trust funds. For fiscal year 2009, funds from leases, use permits, land sales and income from financial assets, totaling about $298 million were collected for more than 384,000 open Individual Indian Money accounts and $566 million was collected for about 2,700 tribal accounts for more than 250 tribes. Since 1996, the U.S. Government has collected over $10.4 billion from individual and tribal trust assets and disbursed more than $9.5 billion to individual account holders and tribal governments.

The land consolidation fund addresses a legacy of the General Allotment Act of 1887 (the “Dawes Act”), which divided tribal lands into parcels between 40 and 160 acres in size, allotted them to individual Indians and sold off all remaining unallotted Indian lands. As the original holders died, their intestate heirs received an equal, undivided interest in the lands as tenants in common. In successive generations, smaller undivided interests descended to the next generation.

Today, it is common to have hundreds—even thousands—of Indian owners for one parcel of land. Such highly fractionated ownership makes it extremely difficult to use the land productively or to provide beneficial use for any individual. Absent serious corrective action, an estimated 4 million acres of land will continue to be held in such small ownership interests that very few individual owners will ever derive any meaningful financial benefit from that ownership.

Additional Information is available at the following sites: www.cobellsettlement.com.
The Department of the Interior website: www.doi.gov. The Office of the Special Trustee website: www.ost.doi.gov
 

Waiting Game: Tribal Law And Order Act In Senate Limbo

 

While crime continues to be a blight on Native lands, The Tribal Law and Order Act of 2009 (S.797) is currently awaiting action in the United States Senate. This bill was considered in committee, which has recommended it be considered by the Senate as a whole. Although it has been placed on a calendar of business, the order in which legislation is considered and voted on is determined by the majority party leadership, which is currently led by Democrat Harry Reid of Nevada. In the midst of intensive debate regarding health care reform, the chances for the Act to become law are unclear.

The Act would amend the Indian Law Enforcement Reform Act to make a variety of changes to increase Tribes' law enforcement powers, and increase federal powers and responsibilities regarding crimes on Native land. The Act’s provisions include:

(1) Allowing federal officials, with the consent of the Tribe, to investigate offenses against Tribal criminal laws;

(2) Providing technical assistance and training to Tribal law enforcement officials regarding use of the National Criminal Information Center database;

(3) Requiring federal and local officials, when they decline to investigate crimes on Native land, to report to Native officials and requiring such officials, when they decline to prosecute, to turn over evidence to Native officials;

(4) Establishing in the criminal division of the Department of Justice an Office of Indian Country Crime to develop, enforce, and administer federal criminal laws in Tribal territories;

(5) Authorizing, at the request of a Tribe, concurrent federal-Tribal jurisdiction;

(6) Authorizing grants to state, Tribal, and local governments that enter into cooperative agreements, including agreements relating to mutual aid, hot pursuit of suspects, and cross-deputization;

(7) Requiring the Attorney General to allow Tribal and Bureau of Indian Affairs law enforcement agencies to directly access and enter information into federal criminal information databases (under current law, such access is limited); and

(8) Increasing the criminal sentences Tribal courts may impose.

The bill is supported by numerous agencies including the National Congress of American Indians, National American Indian Court Judges Association, National Indian Gaming Association, and Amnesty International. No organizations have registered a formal objection to the legislation.
 

New Treatise Explores Navajo Common Law And Court System

The Navajo Nation court system is the largest and most established Tribal legal system in the United States. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed Tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

In the new book published by the University of MinesotaNavajo Courts and Navajo Common Law, Justice Raymond D. Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

Justice Austin, always a trailblazer, is one of the main architects of Navajo common law. Now he has given us a comprehensive explanation of his nation’s common law in all its power, fairness, and beauty. This book should be read by people the world over who believe in searching out the authenticity of law and society in its truest and most profound meanings.”  Charles Wilkinson, author of Blood Struggle: The Rise of Modern Indian Nations.

Justice Austin is the Indigenous Peoples Law and Policy Program’s Distinguished Jurist in Residence at the James E. Rogers College of Law at the University of Arizona. A member of the Arizona and Utah state bars and the Navajo Nation Bar Association, he served on the Navajo Nation Supreme Court from 1985 to 2001. Justice Austin is Diné from the Navajo Nation.
 

40th Anniversary of Native American Occupation of Alcatraz

(Britannica.com)

November marks 40 years since Native American activists seized the former federal island penitentiary of Alcatraz and used it to raise the national consciousness on issues facing Native communities.

In November of 1969, Richard Oakes led a landing party named “Indians of All Tribes” onto boats and took up residence on Alcatraz. The prison had been closed six years earlier and was considered surplus property by the federal government. Citing treaty language from the 19th Century that indicated the US government’s intent to set aside such properties for Native peoples, the group occupied the island “to focus attention on broken treaties, broken promises and termination of tribal areas," says Professor Troy Johnson, chairman of the American Indian studies program at California State University. The U.S. 16 years earlier had begun a policy of terminating Indian reservations and relocating the inhabitants to urban areas.

Adam Fortunate Eagle released a public declaration of the group's intentions. To the amusement of local Bay Area residents and the chagrin of federal authorities, he recounted European exploitation over the centuries, and stated that the Native group claimed Alcatraz by “right of discovery” and that they would pay for the island with $24 worth of goods – equal to the amount paid by the Dutch to acquire Manhattan Island from Native peoples in 1626.

At the height of the occupation, 400 Native Americans were in residence on Alcatraz, receiving regular news coverage and logistical assistance from many quarters. In 1971, authorities peacefully ended the occupation after 19 months by going in when the group was at its smallest. President Nixon ended the U.S. tribal termination policy in June 1970, while they still were on the island. Fortunate Eagle says the occupation was the most significant event in Native American history since the 1876 Battle of the Little Bighorn: "It brought the Indian issues to the forefront of the public awareness."

President Obama's Memorandum On Tribal Relations

In conjunction with the 5 November 2009 Tribal Nations conference, President Obama has issued a White House Memorandum on Tribal Consultation to all executive departments and federal agencies. The Memorandum can be accessed here, and its full text is below:

The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.

History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.

My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its plan.

Each agency's plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175.

In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report.
The terms "Indian tribe," "tribal officials," and "policies that have tribal implications" as used in this memorandum are as defined in Executive Order 13175.  The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

BARACK OBAMA
 

War On Drugs Opens New Front: Tribal Lands

Washington State Patrol Officers Seize Marijuana On Reservation

The Wall Street Journal reports that Mexican drug gangs are attempting to increase profits and eliminate clashes with border police by growing more marijuana inside the United States – and specifically in remote areas of Native American reservations. In Washington state alone, the number of marijuana plants seized on Tribal lands has increased by a factor of 10 since 2006.

Drug growers typically seek to operate in geographically remote areas that are rarely inspected by law enforcement. In past years, America’s large National Parks were a prime growing area until federal enforcement was stepped up to curtail the practice. Isolation and lack of law enforcement funding has now placed many Tribal territories on the list of desired drug growing locations. For example, the Colville Reservation in eastern Washington state encompasses 2,200 square miles but is patrolled by only 19 Tribal police officers. Many reservations have thousands of acres of uninhabited land that usually go unnoticed by local residents and police, making them desirable target areas for drug growers.

While the upswing in drug growing activity is a troubling development, efforts to counter the trend may also provide an opportunity to improve public safety on reservations. The chronic lack of state and federal funds for law enforcement on Tribal lands has long contributed to increased crime rates and a backlog of unresolved cases. Now that Native American reservations have become part of the front line of the war on drugs, perhaps increased resources will be applied to raise the standard and efficiency of law enforcement activity in Tribal territories.
 

Indigenous Groups Oppose 2010 Winter Olympics On Native Lands

Citing negative impacts including homelessness, ecological destruction to Native lands, huge public debt, and a greatly expanded police state, a movement of Indigenous groups has arisen to challenge the Olympic industry and specifically the 2010 Winter Olympics that will be held in British Columbia, Canada.

Organizers from No2010, an Indigenous anti-Olympics organization, will travel the West Coast of the US to conduct a speaking tour on the resistance to the 2010 Olympics.  The stated agenda is to promote an anti-colonial and anti-capitalist convergence that will coincide with the opening ceremonies of the Games in February, 2010 in Vancouver.

According to the group's website:

Although it can be said that all of the Americas is land stolen from Indigenous peoples, 'British Columbia' is unique in Canada in that virtually no treaties were made in the process of colonization & settlement. Treaties were required under British, and later Canadian, law prior to any trade or settlement (i.e., the 1763 Royal Proclamation). Although today the government seeks 'modern-day treaties' with its Indian Act band councils, the fact is in 'BC' the land is clearly occupied by an illegal colonial system. The slogan 'No Olympics on Stolen Native Land' is a way to raise anti-colonial consciousness about the true history of 'BC'.

After Federal Recognition Is Denied: "Why Didn't They Just Tell Us 'No' 30 Years Ago?"

You have your community and your place to go.  We don't have that.  But we're still together…


They've got their rules, and you've got to fit into the slot.   But we know who we are.


It kind of hurts, naturally, but it's not the end of the line…

These sentiments were expressed by members of Montana's Little Shell Tribe, after receiving notice this week that their petition for federal recognition had been denied – more than 30 years after it was first filed.

The Bureau of Indian Affairs’ 242-page rejection decision acknowledged that 89 percent of the Little Shell can trace their lineage to the Pembina Band of Chippewa Indians, but stated the Little Shell had failed to show enough "cohesion" during the early 1900s, after many of the Tribe's members had been uprooted and migrated between northern Montana and southern Canada. The Tribe has not had a secure homeland since the late 1860s, when Chief Little Shell and his people were excluded from a federal treaty signed with related Tribes.

As discussed previously on this site, the BIA uses an extremely complex and subjective set of criteria in analyzing petitions for federal recognition. For Little Shell, the BIA decided that members of the Tribe in Montana lived primarily in "already existing, largely multiethnic settlements." According to the BIA, "In none of these multiethnic settlements did the petitioner's ancestors constitute a majority or even a significant percentage of the population." Little Shell’s petition was thus denied based on a perceived lack of social and political cohesion.

For Tribes like Little Shell, the next step in the struggle for recognition is to seek legislative backing in Congress, in the hope that recognition can be obtained through pressure and laws enacted by elected representatives. Hopes for progress in this area were briefly raised by the announcement of President Obama's upcoming Tribal Nations conference in November. Unfortunately, invitations to the event were only sent to a select group of Tribes – those that already possess federal recognition.
 

Tribes Sue To Improve Fish Habitat

Culvert for Fish Passage (ADF&G)

In a landmark 1974 ruling, U.S. District Judge George Boldt ruled Tribes located near Puget Sound in Washington State hold treaty rights to half the region's fish resources. Thirty-five years later, another federal judge is presiding over a Tribal lawsuit to enforce the state's obligation to actively protect fish habitat. "The judge has already found that there's a treaty right to protect fish habitat," said Robert Anderson, director of the University of Washington's Native American Law Center. The question now is "how far the federal courts are willing to go to compel that result."

U.S. District Judge Ricardo Martinez ruled in 2007 that treaty rights required the state to take action to enhance salmon runs and fish habitat. He urged the state and Tribes to work together on solutions, but negotiations proved fruitless. More than 1,000 culverts between the Columbia River and British Columbia, most of them owned by the Washington Department of Transportation, are presently blocking or limiting access by fish to hundreds of miles of streams. The cost to implement repairs and provide fish with a smooth and unobstructed water flow may exceed $1.5 billion.

"The problem is the cost is just huge," Washington State Department of Transportation Secretary Paula Hammond said. "We already don't have enough money to maintain and preserve our existing highway system." The Tribes want the culverts fixed within two decades, but state lawyers say that would cost $165 million every two years — 10 times what the state spends fixing culverts now. The state's alternative plans wouldn't likely change the costs, but the work would take 50 or more years to complete.
 

Details On White House Tribal Nations Conference - 5 November 2009

(Dailyyonder.com)

President Barack Obama will host a White House Tribal Nations Conference  on November 5, 2009 from 9 a.m. – 5:30 p.m., with leaders of all 564 federally recognized Tribes invited.  Each federally recognized Tribe can send one representative; it is unclear whether Tribes that do not yet have federal recognition can attend. Indian Country Today reports that the meeting will be held at the Sidney R. Yates Auditorium of the Department of the Interior in Washington D.C..

“I look forward to hearing directly from the leaders in Indian country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said. “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”

W. Ron Allen, a member of the executive board of the National Congress of American Indians and Chairman of the Jamestown S’Klallam Tribe, said the White House would have been a more impressive setting, but believes it’s important to hold the meeting in an environment that will be conducive to constructive dialogue. Allen emphasized that Tribal leaders expect to be able to present their views and receive specific answers and policy outlines from the President. “We do not want this to be a photo op.”

Allen said many NCAI members want the President to begin showing action on campaign promises to advance self-determination, self-governance and self-reliance for all 564 American Indian and Alaska Native nations. “We are hopeful that he will reaffirm and strengthen his administration’s commitment to the ‘government-to-government’ relationship including clear instruction to all departments and agencies under his executive authority,” Allen said.

MyTribeTV, a Native-owned business in Seattle, will provide online coverage of the conference. The event will be streamed at tribalsummit.mytribetv.com.
 

ACLU Alleges Widespread Voting Rights Problems In Native Communities

In its new report entitled "Voting Rights In Indian Country", the American Civil Liberties Union states that Native Americans continue to face a a variety of discriminatory election practices, including: at large elections; redistricting plans that diluted Native American voting strength; the failure to comply with one person, one vote; unfounded allegations of election fraud on Indian reservations; discriminatory voter registration procedures; onerous identification requirements for voting; the lack of minority language assistance in voting; and the refusal to comply with the preclearance provisions of Section 5 of the Voting Rights Act.  The report's findings are based on the ACLU's investigations conducted for voting rights litigation cases in Colorado, Montana, Nebraska, South Dakota, and Wyoming.

The report recounts a litany of abuses endured by Native communities throughout the 19th and 20th Centuries, and draws a line of impact to the present day.

One consequence is a depressed socio-economic status that limits the ability of tribal members to participate effectively in local, state, and national elections and to enforce the anti-discrimination provisions of the Voting Rights Act and other federal laws protecting minority voting rights. Voting is significantly polarized along racial lines, and little meaningful interaction exists between the Indian and non-Indian communities, especially in the towns and communities that border the reservations. This lack of interaction and access to the majority community makes it very difficult for Indians to elect candidates of their choice to office in jurisdictions in which they are a numerical minority.

Indian political participation is further diminished by the disproportionate number of tribal members disfranchised for commission of criminal offenses. There is a pattern of racial profiling of Indians by law enforcement officers, the targeting of Indians for prosecution of serious crimes, and the imposition of lengthier prison sentences upon Indian defendants. These injustices result in the higher incarceration of Indians and dilute the overall voting strength of Indian communities.

Obama To Host National Tribal Nations Conference - 5 November 2009

(Resource Centre for The Rights Of Indigenous Peoples)

President Barack Obama will host a Tribal Nations Conference discussing issues of importance to Native Americans on November 5, the White House announced Monday.  Representatives from each the country’s 564 federally recognized tribes will be invited to participate.


“I look forward to hearing directly from the leaders in Indian Country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said in a written statement.  “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”
 

American Indian Movement Statement On Free Speech And Indigenous Rights

The Grand Governing Council of the American Indian Movement (AIM) has released the following statement in response to President Obama's recent address before the United Nations General Assembly in New York.

In President Obama's speech to the United Nations on September 23, 2009, he spoke of a 'new direction'. Two years ago, four solitary nations voted against the United Nations Declaration on the Rights of Indigenous People, they were Canada, Australia, New Zealand, and the United States of America. The Australian government has since reversed its vote and now support the international human rights standard toward Indigenous people. The American Indian Movement asks the question of the Obama Administration: Will his administration recognize and support the international standard approved by the vast majority of the world's nations?

The United Nations' 64th year brings world leaders together to our sacred homeland to discuss the effects of the world's problems to humankind. The American Indian Movement respects the right of all world leaders to speak. We support the right of Moammar Al Gathafi, leader of Libya. We respect the right of Evo Moralas, President of Bolivia. We respect the right of Hugo Chavez, President of Venezuela. We respect the right of Mahmoud Ahmadinejad, President of Iran. We respect the right to speak at the United Nations of all the world leaders visiting our homeland.

We often talk in terms of the first world, or the west; or the second world, the east; or the third world, or the non-aligned nations. Another important dimension to this concept is the fourth world of natural and Indigenous people. Peoples whose populations oftentimes go beyond geo-political boundaries. While these struggles have been going on for hundreds of years, the international community has, for the most part, ignored this reality. One of the greatest crimes against humanity occurred right here in the United States of America. Support for the Declaration on the Rights of Indigenous People is a start to right this great wrong.

AMERICAN INDIAN MOVEMENT GRAND GOVERNING COUNCIL
MINISTRY FOR INFORMATION
P.O. Box 13521
Minneapolis MN 55414
612/ 721-3914 . fax 612/ 721-7826
Email: aimggc@worldnet.att.net
Web Address: http://www.aimovement.org

Clyde Bellecourt, co-founder American Indian Movement
612.251.5836

Bill Means, International Indian Treaty Council
612.386.4030

Chief Terrance Nelson, Vice Chairman American Indian Movement
204.782.4827
 

New Federal Policy May Open Door For Off-Reservation Casinos

As reported in the Wall Street Journal, the Department of Interior is reconsidering a Bush administration policy that limited Tribes from developing off-reservation casinos unless the sites were within “commuting distance” of the reservation. The new policy would eliminate that proximity requirement and allow Tribes to build casinos on trust land farther from their reservations – and thereby likely closer to larger population centers that would offer more customers. Some areas Tribes are considering are actually on their ancestral lands, but were separated from the Tribe’s main land base through 19th Century treaties.

Over 20 Tribal casinos on non-reservation land exist, and about 20 tribes have off-reservation plans in the works. The Confederated Tribes of Warm Springs of Oregon want to develop a casino along the Columbia River Gorge, and the St. Regis Mohawks have plans for a site in the Catskill Mountains, about 350 miles away from the Tribe's reservation -- but less than a two-hour drive from New York City. Some state governors such as David Paterson of New York and Arnold Schwarzenegger of California have come out in favor of certain projects in recent months.

Despite concerns about the economy, some off-reservation casino projects near major population centers have been able to line up financing for construction and operations. A private investment company that has financed start-ups of major Indian casinos in Connecticut and New York, is acquiring a near 50% stake in Empire Resorts Inc., the company that has been working with the St. Regis Mohawks on plans for a casino in Monticello, N.Y.

Tribes across the country have opened hundreds of casinos since the 1987 U.S. Supreme Court ruling that loosened state restrictions on Tribal gaming. In 1988, Congress authorized development off-reservation casinos. Interestingly, some Tribes that developed the first casinos are now working to block off-reservation gaming by other Tribes, and Senators from Nevada, California and Arizona wrote Interior Secretary Ken Salazar to oppose off-reservation gaming, saying it "violates the spirit" of Tribal gaming law.

3rd Annual Native American Economic Development Conference, 16-18 September In Las Vegas

Foster Pepper PLLC and KeyBank are Co-Sponsors of the huge Native American Economic Development Conference to be held at the Westin in Las Vegas September 16-18, 2009. The far-ranging seminar will cover topics of immense importance to Tribal economies, including:

  • Tribal Leaders Roundtable: The Impact of President Obama’s Administration
  • Economic Development Bonds and the Federal Stimulus Package: Effects on Tribal Financing
  • Tribal Enterprises Facing Bankruptcy
  • CEO Roundtable: Private Enterprise Boards vs. Tribal Governments
  • CFO Roundtable- External Diversification vs. Internal Reinvestment: Weighing Risk Management Issues
  • Economic Development Roundtable: Stimulating Revenue Growth
  • Effective Master Planning
  • Design and Construction Roundtable: Climbing out of a Recession
  • Strategic Marketing in a New Economic Era
  • Using Sports and Entertainment to Maximize Casino Traffic
  • Planning for Retirement in Indian Country

The conference presenters possess unparalleled expertise in Tribal economic development issues, and include:

  • Mellor Willie, Executive Director, National American Indian Housing Council
  • Elaine Fink, Chairperson, Northfork Rancheria of Mono Indians
  • Henry Cagey, Chairman, Lummi Nation
  • Bob Garcia, Chairman, The Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians
  • Robert Martin, Chairman, Morongo Band of Mission Indians
  • Georgia Noble, Chairperson, Sac & Fox National Business Enterprise Board
  • Mel Sheldon, Chairman, Tulalip Tribes of Washington
  • Glenn Hall, CEO, Bishop Paiute Tribe
  • Robert Mele, CFO, Seneca Construction Management Corporation
  • Robert Winter, CEO, Navajo National Gaming Enterprises
  • Chris Kelley, CFO, Viejas Band of Kumeyaay Indians
  • Eletta Tiam, CFO, Nisqually Tribe
  • Michael Marchand, President, Affiliated Tribes of Northwest Indians Economic Development Corporation
  • Virgil Moorhead, Chairman, Big Lagoon Rancheria
  • Morris Reid, Chairman, Picayune Rancheria of Chuckchansi Indians
  • Ivan Posey, Chairman, Shoshone Tribe of the Winder River Reservation
  • Theresa Two Bulls, President, Ogalala Sioux Tribe of The Pine Ridge Reservation
  • Cedric Black Eagle, Chairman, Crow Nation
  • Louis J. Manuel Jr., Chairman, Ak-Chin Indian Community
  • Michael Broderick, Director of Marketing, Lake of the Torches Resort Casino
  • Mary Galbraith, Director of Strategic Marketing, Cherokee National Entertainment
  • Michael L. Bearhart, Director of Gaming, St. Croix Casino & Hotel
  • Scott Eldredge, General Manager, Santa Ana Start Casino

Additional conference information and registration information can be accessed through Pier Conference Group.

 

 

 

 

Tribal Casino Defaults Raise Big Questions On Bankruptcy Laws

The economic downturn is opening some previously-uncharted legal territory - the question of applicability of federal bankruptcy laws and procedures for troubled Tribal enterprises. 

The Mashantucket Western Pequot Tribal Nation, owner of the massive Foxwoods Resort Casino, is seeking to restructure at least $1.45 billion in debt.  With gaming revenues in steep decline due to a lack of players, Foxwoods is at risk of becoming the biggest Tribal casino company to default on its debt. 

The looming cash crunch highlights the different economic and legal landscape in which Tribal enterprises operate. “They can’t do the types of things other debtors can in a restructure,” says Megan Neuburger, an analyst at Fitch Ratings in New York. “Tribal casinos can’t do a debt-for-equity swap. They can’t raise cash by selling off assets on Tribal land to repay creditors."  Standard & Poor’s has cut its Mashantucket rating four steps to CCC and placed the debt on credit watch.  Creditors probably can’t take over assets or operations of casinos on Tribal land, which are sovereign nations, as they may with commercial bankruptcies, Neuburger said. That leaves them little choice other than to restructure debts and work with the Tribe.

No Tribal casino has yet tested federal bankruptcy laws.  “Bankruptcy law does not apply to Tribal situations in the same way it does to a commercial situation,” Neuburger said.  Michael Thomas, chairman of the Mashantucket Pequot Tribal Council, told members that the Tribal government would be paid first, before bankers or bondholders.  “It might be posturing, but the Tribe is indicating that it might put itself, the equity holder, ahead of the debt, ignoring corporate law,” said Lawrence Klatzkin of municipal bond broker Chapdelaine Credit Partners. “It probably won’t happen, but if it does, who’s to say other Tribes don’t say, ‘If Foxwoods doesn’t need to meet its U.S. legal obligations, maybe I don’t either.’”

 

Major Native American Economic Development Conference, 16-18 September 2009 At Caesar's Palace

Foster Pepper PLLC and KeyBank are Co-Sponsors of the huge Native American Economic Development Conference to be held at Caesar's Palace in Las Vegas September 16-18, 2009.  The far-ranging seminar will cover topics of immense importance to Tribal economies, including:

  • Tribal Leaders Roundtable: The Impact of President Obama’s Administration
  • Economic Development Bonds and the Federal Stimulus Package: Effects on Tribal Financing
  • Tribal Enterprises Facing Bankruptcy
  • CEO Roundtable: Private Enterprise Boards vs. Tribal Governments
  • CFO Roundtable- External Diversification vs. Internal Reinvestment: Weighing Risk Management Issues
  • Economic Development Roundtable: Stimulating Revenue Growth
  • Effective Master Planning
  • Design and Construction Roundtable: Climbing out of a Recession
  • Strategic Marketing in a New Economic Era
  • Using Sports and Entertainment to Maximize Casino Traffic
  • Planning for Retirement in Indian Country

The conference presenters possess unparalleled expertise in Tribal economic development issues, and include:

  • William "Mike" Lettig, Executive Vice President & National Executive, KeyBank
  • Mellor Willie, Executive Director, National American Indian Housing Council
  • Elaine Fink, Chairperson, Northfork Rancheria of Mono Indians
  • Henry Cagey, Chairman, Lummi Nation
  • Bob Garcia, Chairman, The Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians
  • Robert Martin, Chairman, Morongo Band of Mission Indians
  • Georgia Noble, Chairperson, Sac & Fox National Business Enterprise Board
  • Mel Sheldon, Chairman, Tulalip Tribes of Washington
  • Glenn Hall, CEO, Bishop Paiute Tribe
  • Robert Mele, CFO, Seneca Construction Management Corporation
  • Robert Winter, CEO, Navajo National Gaming Enterprises
  • Chris Kelley, CFO, Viejas Band of Kumeyaay Indians
  • Eletta Tiam, CFO, Nisqually Tribe
  • Michael Marchand, President, Affiliated Tribes of Northwest Indians Economic Development Corporation
  • Virgil Moorhead, Chairman, Big Lagoon Rancheria
  • Morris Reid, Chairman, Picayune Rancheria of Chuckchansi Indians
  • Ivan Posey, Chairman, Shoshone Tribe of the Winder River Reservation
  • Theresa Two Bulls, President, Ogalala Sioux Tribe of The Pine Ridge Reservation
  • Cedric Black Eagle, Chairman, Crow Nation
  • Louis J. Manuel Jr., Chairman, Ak-Chin Indian Community
  • Michael Broderick, Director of Marketing, Lake of the Torches Resort Casino
  • Mary Galbraith, Director of Strategic Marketing, Cherokee National Entertainment
  • Michael L. Bearhart, Director of Gaming, St. Croix Casino & Hotel
  • Scott Eldredge, General Manager, Santa Ana Start Casino

Additional conference information and registration information can be accessed through Pier Conference Group.

 

Federal Gaming Regulators Under Fire From Tribes

The National Indian Gaming Association has asked the Obama administration to replace the chairman of the National Indian Gaming Commission immediately, and stop the current commission from publishing proposed revisions to gaming regulations until the new official is in place. In a letter to the President, NIGA asserts the Commission violates government-to-government consultation rules and is revising gaming machine regulations that would impose huge and unnecessary compliance costs on Tribal gaming operations, and “overreaching” because they exceed the NIGC’s statutory authority.

NIGA is a nonprofit organization representing Tribal nations and businesses engaged in gaming enterprises, and acts as an educational, legislative and public policy resource for tribes, policymakers, and the public on gaming issues and Tribal community development. NIGA has asked Obama and Interior Secretary Ken Salazar to immediately replace NIGC Chairman Philip Hogen, who “is holding out for almost five years past his original term,” and appoint a new commissioner to fill a seat that has been vacant for years. The Chairman’s position is a Presidential appointment approved by the Senate.

Barbara Kyser-Collier, Quapaw Tribal Gaming Agency director, has written to Obama seeking “urgent action” in appointing a new NIGC chairman. “It is beyond understanding that a federal agency established to protect tribal gaming as a source of revenue for tribal governmental services and functions, in fact, would persist in efforts to disseminate regulations that will inflict financial damage to Native American tribes,” Kyser-Collier said.

The proposed new gaming rules would also extend NIGC’s authority beyond its statutory limits, Kyser-Collier wrote. For example, NIGC has inserted into the proposed regulations a new technical standard that would require a jackpot payout be validated by the backroom accounting system. This would require a type of technology that is usually patented in a manufacturer’s gaming system, requiring the gaming operation either to have that particular manufacturer’s system or to pay the manufacturer a royalty fee to use its proprietary technology. “The NIGC characterizes these potential regulations as ‘internal control standards,’ when in fact they constitute product standards. A most important danger is that such rules could favor certain manufacturers and drive tribal costs higher,” Kyser-Collier said.
 

Indian Law Resource Center Releases Annual Report

The Indian Law Resource Center has released its annual report highlighting work undertaken to defend the rights of Native American nations and other indigenous peoples in the Americas.  Attorneys and Board Members from the ILRC played a central role in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, and are working to educate and encourage Native communities to use the Declaration to strengthen their rights of self-determination, protect their human rights, and control their own land and natural resources.

Blackfeet Nation Enters Into Cross-Border Law Enforcement Pact

The Blackfeet Nation has entered into a ground-breaking agreement with neighboring Glacier County for fully reciprocal cross-deputization, a law enforcement pact that both parties called unprecedented. "This is truly a historic document," Tribal Attorney Sandra Watts told the Blackfeet Business Council. "It goes beyond anything else in the nation. In the past, there have been one-way agreements, but nothing that's truly reciprocal."

The agreement formalizes a working agreement that's been in effect for the past month, but it's also limited to the next 60 days as a trial period. "When their deputies come onto our reservation, they become officers of the Tribe and they can enforce both the tribal and state laws," Watts told the council. "And when our Tribal police officers are off the reservation in Glacier County, they can enforce state laws."

Previously, county deputies had been issued commission cards from the Tribe allowing them to enforce state law on non-Indians living on the Blackfeet Indian Reservation, but those cards were revoked last year. That left deputies unable to arrest non-Natives living on the reservations who committed crimes or who had warrants against them in state courts. The major difference is that race is a factor on the reservation — Native Americans are issued warrants for Tribal Court, while non-Natives are issued warrants for magistrate court or district court . Off the reservations, all warrants are for magistrate or district court.
 

Tulalip Elder Court Members Honored With Local Heroes Award

 

The seven Tribal members who make up the Tulalip Elder Court have been honored by the Washington State Bar Association with its Local Hero Award. The award recognizes the Court’s effective work in reducing recidivism in young offenders, and its focus on cultural and spiritual integration in the legal system.

First-time offenders between the ages of 18 and the mid-20s who face misdemeanor charges in Tulalip Tribal Court can elect to appear before the Elder Court instead. There, the young offenders are required to fulfill a series of requirements that often more resemble tribal traditions than standard punishments. A young adult in Elder Court could be asked to create a family tree by interviewing older family members, or to attend a traditional event in the tribal longhouse. It’s not unusual for young adults who create family trees to discover that they are related in some way to Court members. Such realizations foster the understanding that an entire community is relying on them to be a productive member of society.

Each youth is required to meet regularly with the Elder Court as he or she moves through the process of turning away from crime. Court statistics reflect that fewer than 10 percent of the youth who proceed through Elder Court are returned for subsequent offenses.
 

Duwamish Federal Recognition Hearings Underway

Duwamish Tribal Dancers

Duwamish Tribal leaders and Rep. Jim McDermott will testify before the U.S. House Committee on Natural Resources this week, seeking federal recognition for the Tribe. The Duwamish Tribe’s ancestral homeland is located in present-day Seattle, which takes its name from the Tribe’s legendary Chief Si’ahl.

The Duwamish were signatories to the Treaty of Point Elliott in 1855, which guaranteed fishing rights and reservations for all Tribes who were party to the agreement.  However, in 1916 the construction of the ship canal connecting Lake Washington to Puget Sound ultimately forced the Duwamish to leave their traditional territory and move to places like the Muckleshoot and Tulalip reservations.

In the closing hours of President Bill Clinton's administration the Duwamish were granted federal recognition but that decision was reversed by President George Bush's administration. A Bush appointee decided that that the Tribal members no longer exist as a distinct political and social unit, primarily because of what administration officials characterized as a lapse in Tribal government and social cohesion from 1916 to 1925. The Duwamish's approximately 600 members have since sued the U.S. Department of Interior to reverse its ruling and restore federal recognition.

The website for the House Committee on Natural Resources will have a link to video footage of the hearings after their completion.
 

 

Senator Inouye Seeks To Exempt Tribes From The NLRA

 

The proposed federal Employee Free Choice Act (EFCA) introduced in the House of Representatives earlier this year is designed to aid the organization efforts of labor unions. Among other provisions, the current version of EFCA would eliminate secret-ballot elections for union certification and allow a union to be established through a “card check” system similar to gathering signatures for a petition. In conjunction with the 2007 decision in San Manuel Indian Bingo & Casino v. NLRB that applied the National Labor Relations Act (the NLRA) to Tribal casinos, the likelihood of union organization activity in Tribal jurisdictions would increase significantly. In response, Senator Daniel Inouye (D-Hawaii) has stated his intention to propose an amendment to EFCA that would expressly exclude any federally recognized Tribe or Tribal entity from coverage by the NLRA.

The NLRA prohibits employers from interfering with employees' efforts to organize, and EFCA would stiffen enforcement, requiring employers to pay fines and increased back pay for violating employee rights. EFCA’s most controversial provision would allow a union to be recognized as the sole collective bargaining unit for employees based strictly on a majority of employees have signing forms in favor of the union, rather than through a secret ballot election. EFCA additionally provides for mandatory binding arbitration if the employer and the union cannot reach a collective bargaining agreement. The arbitrator could — without employer consent — set terms and conditions of employment that would be binding on the employer for two years.

As the federal legislation continues to develop, it behooves Tribes to create their own labor and employment policies and procedures to govern conduct within their jurisdiction. Federal intervention in Tribal legal affairs is often based on a Tribe’s lack of specific regulations addressing topics (e.g. labor and employment); conversely, federal agencies are often less likely to assert authority over Tribal affairs when the Tribe at issue has its own well-defined legal policies that render federal involvement unnecessary. For additional information on the creation of Tribal labor and employment policies, contact attorneys Katheryn Bradley or Julie Kebler.
 

 

Probate of Native American Trust, Personal, and Real Property Under AIPRA

As is frequently the case with issues dealing with Tribal law, the question of what court has jurisdiction to probate a decedent’s assets -- and which law that court will apply -- is much more complicated for an Native American decedent than it is for non-Native citizens. Three different sovereigns may have jurisdiction and control over the property – a Tribe, a state, or the federal government. Which court will have jurisdiction, and which law will apply, depends on the nature of the property (personal, real, or trust), where the decedent lived and was domiciled, and where the property was located at the time of death. Trust property is handled exclusively by federal government under the American Indian Probate Reform Act (AIPRA), while a Native decedent’s personal and real property is distributed under either Tribal or state law.  Duncan Connelly's article provides an overview of how AIPRA governs the probate process for trust or restricted land, and describes the established, albeit complicated, system of probate for an Native American decedent’s non-trust land personal and real property. The issues discussed warrant careful consideration as Tribes and their members work to implement personal and collective priorities regarding the protection of cultural resources and Tribal assets.
 

Court Holds Tribes Immune To CERCLA Liability

The Federal Court for the Eastern District of Washington has held that Native American Tribes are exempt from potential liability under 42 U.S.C. Section 9601 et seq., the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

The Court first reviewed the statutory construction of CERCLA and the definitions of its applicability:

“42 U.S.C. Section 9607 imposes liability upon certain “persons” (i.e, owner/operator, arranger, transporter) for costs incurred in responding to a release of hazardous substances. “Person” is defined in Section 9601(21) as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” “Indian tribe” is not expressly included in this list and indeed, is defined separately at Section 9601(36)…CERCLA’s definition of “person” is plain. It does not include “Indian tribes.”

The Court then reviewed the legislative history of CERCLA with an eye to Congress’ intent:

“Congress has had more than an adequate opportunity to address any oversight regarding liability of Indian tribes under CERCLA. If Congress intended to make Indian tribes liable under CERCLA, one has to ask why it did not specifically include “Indian tribes” among the entities covered by the term “person” in Section 9601(21), nor specifically define “municipality,” “association,” or “consortium” to include “Indian tribes.” It seems extremely implausible that Congress would simply leave it to chance that some court would conclude an Indian tribe qualifies as one of those entities subject to CERCLA liability…the plain language of CERCLA reveals that Indian tribes are not subject to liability under that statute.”
 

Should Tribes Be Allowed To Tax Trust Lands?

(Photo courtesy of Martha Lou Perritti)

In nearly every jurisdiction throughout the United States, local governments derive a significant portion of their operating revenue from property taxes.  The money land owners pay in property taxes goes to fund basic infrastructure such as roads and schools and services such as police and fire protection.

There is however one jurisdiction within which the local government cannot collect property taxes: Tribal lands held in federal trust.

Tribal governments cannot impose property taxes on reservation land that has been taken into trust by the federal government, which is typically most if not all of the land owned by Tribal members within the bounds of a reservation.  Tribes are thus deprived of the benefit of countless millions of dollars in revenue that would normally be available to any other municipality.  With poverty and sub-standard facilities still endemic on reservations throughout America, there is a sad irony in the fact that the place where property taxes could do the most good are the only places they cannot be collected and put back into the community.

The denial of taxing authority to Tribes also has another negative impact on Native Communities, this time in the context of the national consciousness.  In order to make up for unavailable property tax revenue, many Tribes utilize alternative income sources such as casino gaming and discounted tobacco products to finance basic services within their reservations.  Since in most states these offerings are only available within the sovereign territory of a Tribe, many Americans hold an ill-informed view that Native Americans enjoy "special privileges", and that other benefits and services to Tribes should therefore be curtailed.  The lack of understanding of why these alternative revenue sources are necessary could perhaps be overcome by touring the decrepit infrastructure with which many Tribal Communities continue to be saddled, but such ventures by non-Natives are far from routine.

There's no insurmountable obstacle to allowing Tribes to tax land within their jurisdictions.  The federal government could enter into taxing agreements with Tribes that would allow for collection of some form of property tax, which Tribes could help structure so as to increase revenue without placing an undue financial burden on Tribal members.  Numerous models for such agreements already exist, in the form of retail sales tax compacts between state and Tribal governments for business activities occurring on reservations.

Sea Otter Hunt Raises Culture And Controversy For Nuu-chah-nulth Tribal Council

In a move that puts traditional Native rights at odds with animal rights advocates, the Nuu-chah-nulth Tribe of Vancouver Island is planning to reinstate sea otter hunts, after reaching a tentative agreement with the Canadian Department of Fisheries and Oceans. The deal will allow the members of the Nuu-chah-nulth Tribal Council to hunt roughly one per cent of the sea otter population in their territory on the central section of the west coast of Vancouver Island every year. Based on current figures, the take would amount to approximately 20 otters per annum.

Cliff Atleo, president of the Nuu-chah-nulth Tribal Council, stated: "For us, it's not about the numbers. It's about reconnecting with the pelts worn by our chiefs, the heads of our governments," Council Member Keith Atleo said expects opposition to the hunt, especially since sea otters are known for their cute looks, but said the hunt is necessary to stop the sea otters from decimating sea urchin and shellfish stocks, which are a valuable source of food for First Nations communities and commercial fishermen. "We have a lot of cute children in our community that depend on the seafood, and we'd rather they have a good future. Sea otters have affected the balance in our food, traditionally and culturally," he said.

Sea otters were hunted out of existence in British Columbia during the lucrative fur trade between colonialists and West Coast natives in the late 1700s and 1800s. In the 1960s and 1970s, animals from the surviving population in Alaska were reintroduced to the B.C. coast. The otter population is now estimated at 3,500 and the species is now listed as "at risk," rather than endangered. The Nuu-chah-nulth otter hunt agreement still is awaiting final approval from First Nations leaders and the Canadian government, and the hunt is not yet scheduled.
 

Redskins 1 - Dignity 0? Native Americans Lose Offensive Mascot Lawsuit

(Courtesy of Citizens Against Racism and Discrimination)

A federal court has handed the Washington Redskins a legal victory in a 17-year fight with Native American plaintiffs who contend the football team's mascot and logo are racially offensive. The decision issued by the U.S. Court of Appeals in Washington doesn't address the question of racism, but rests instead on the legal theory of laches – the plaintiffs waited too long to commence their lawsuit to ban the trademark.

The team first received federal trademarks on the name “Redskins” in 1967. The Native American plaintiffs were initially successful in attacking the brand -- the U.S. Patent and Trademark Office panel canceled the trademarks in 1999. U.S. District Judge Colleen Kollar-Kotelly overturned that decision in 2003 in part because the suit was filed decades after the first Redskins trademark was issued. The U.S. Court of Appeals then remanded the case back to Kollar-Kotelly, noting that the youngest of the plaintiffs was only 1-year-old in 1967 and therefore could not have taken legal action at the time. Kollar-Kotelly’s new ruling rejected that argument, finding that the youngest plaintiff turned 18 in 1984 and therefore waited almost eight years beyond the age of majority to join the lawsuit. The ruling does not address whether the “Redskins” name is offensive or racist, and the holding states that it is not commenting on "the appropriateness of Native American imagery for team names."

The team’s attorney Bob Raskopf says millions have been spent on the "Redskins" brand and the team would have suffered great economic loss if they lost the trademark registrations. "It's a great day for the Redskins and their fans and their owner Dan Snyder," he said. However, a new group of Native American plaintiffs ranging in age from 18 to 24 have filed a nearly identical case. "We're hopeful that case will lead us ultimately to a ruling on the merits," said Philip Mause, attorney for the plaintiffs. "We're very confident about our position on the merits. We think this term is disparaging of Native Americans."
 

Homicide Now A Top-10 Cause Of Death For Native American Women

Photo Courtesy of HomeLand Colors

Data recently released from National Centers for Disease Control shows homicide as the 9th leading cause of death for Native American women from ages 1 to 65.  For Native American women in certain age groups, that ranking is higher still.

Jacqueline Agtuca of the Tribal non–profit group called Clan Star studies issues of safety and health for Native American women.  She says few murders, rapes, or assaults occurring in Tribal communities are ultimately prosecuted to conviction.  Across the country, less than one-third of all criminal cases referred to federal prosecutors by the BIA or FBI result in any prosecution at all.  "Until we have that response on a national level from the federal government who handles these cases, we are not going to see a decline."
 

 

 

Major Tribal Law Conference In Seattle May 8th

On Friday, May 8, 2009, the Washington State Bar Association’s Indian Law Section will hold its 21st Annual Conference and continuing legal education seminar in Seattle. Co-hosted by the law firm of Foster Pepper PLLC, the day-long program will cover cutting-edge legal issues affecting Native American communities, including:

  • Federal Tribal trust funds mismanagement
  • Revisiting the issue of Native American civil rights and Tribal sovereignty
  • Examining the Duwamish Tribe and other federal recognition cases
  • Native American policy under the Obama administration
  • Juvenile justice in Native communities
  • Tax planning for Tribal construction and economic development projects

The panel of presenters features numerous acclaimed experts on Tribal issues, including:

  • Diana Bob, National Congress of American Indians, Washington D.C.
  • Melody McCoy, Native American Rights Fund, Boulder, Colorado
  • Rob Roy Smith, lead counsel in the ground-breaking Snoqualmie Tribal banishment case
  • Tom Schlosser, advocate and educator on Tribal legal affairs
  • Jeff Nave, national Tribal finance and tax credit expert

The program also includes a traditional dance performance and cultural competency presentation by “One Crazy Raven” Gene Tagaban. You can follow the program during the day via this site's Twitter updates @nativelegal.
 

Snoqualmie Members Overturn Banishment In Federal Court

In a legal first, Tribal members have been victorious in Federal court challenging a Tribal banishment action.  

On April 30, 2009, the U.S. District Court for the Western District of Washington granted the Petition for a Writ of Habeas Corpus filed by nine Snoqualmie Tribe members challenging a banishment imposed by the government of the Snoqualmie Tribe in May last year. A copy of the Findings and Conclusions may be read here.  The Court held that the Tribe's government violated the Petitioners' due process rights under the Indian Civil Rights Act and vacated the full banishment.  As a result, the Petitioners' membership in the Tribe, as well as their benefits, are restored.  The Court also imposed a time restriction on a pre-existing social banishment that prevented the Petitioners from coming onto Tribal land and attending Tribal events. The Court also reduced the open-ended social banishment to 90 days. 

The decision comes after the first trial held in Federal court under the 1968 Indian Civil Rights Act seeking relief from a tribal banishment action. This is the first Federal court decision to overturn a banishment after trial upon a finding of a denial of due process. As previously discussed on this site, banishment is increasingly being employed by various Tribes to deal with disciplinary and other control issues.  The Snoqualmie decision could have profound effects on the way Tribal governments deal with political and criminal issues involving their members, with banishment decisions now being scrutinized in federal courts.

Yakama Nation Enacts Sex Offender Registration Requirements

The Confederated Tribes and Bands of the Yakama Nation have passed a resolution requiring any sex offender who lives or works on the Yakama Indian Reservation to register with the Nation’s law enforcement agencies. The Yakama Nation is the first government in the Yakima Valley of Washington State to require sex offenders to not only register if they live on the reservation, but also if they live elsewhere but are employed on the reservation.

The registration requirement applies to all persons whether Native or non-Native, and carries penalties of up to one year in jail and a $5,000 fine for non-compliance.
 

Navajo Public Defenders Undertake Intensive Skills Training

Attorneys from Navajo Public Defender, Foster Pepper, and UW Native American Law Center

Attorneys of the Navajo Nation’s Office of the Public Defender are participating in advanced litigation skills training seminars this week in Window Rock, Arizona, sharpening their skills in criminal case investigation and pre-trial evidentiary practice.

The training program is conducted jointly by the University of Washington’s Native American Law Center and Foster Pepper PLLC’s Native American Legal Services Group, and provides in-depth instruction and practical exercises in strategic case planning, conducting discovery, motions practice, and the role of Navajo Fundamental Law in the contemporary judicial system. The program culminates at the Supreme Court of the Navajo Nation, where the Public Defenders will observe and analyze oral arguments before the Nation’s highest court on issues pertaining to defense of those accused of Navajo Criminal Code violations.
 

MacArthur Foundation Grant Awarded To UW Native American Law Center For Tribal Youth Justice Program

Picture of Ron  Whitener

Professor Ron Whitener - UW Native American Law Center

The John D. and Catherine T. MacArthur Foundation has just announced a $225,000 grant award to the University of Washington’s Native American Law Center, which will fund the Center’s ground-breaking new program to help Tribal communities develop strategies to address the needs of Native American children in state and Tribal juvenile justice systems. The program and grant were conceived and will be managed by Professor Ron Whitener, a Director of the University’s Native American Law Center. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at the University, is Of Counsel to the law firm of Foster Pepper PLLC in Seattle, and serves as Chief Judge for the Confederated Tribes of the Chehalis.

The MacArthur Foundation is an international organization that supports creative people and effective institutions committed to building a more just, verdant, and peaceful world. In addition to selecting the MacArthur Fellows, the Foundation works to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society.
 

9th Circuit Holds Tribes Subject To Fair Labor Standards Act - Including Federal Inspections

In its just-released opinion in Solis v.Matheson, the 9th Circuit Court of Appeals has held that the federal Fair Labor Standards Act (FLSA) applies to Tribal businesses, whether located on-Reservation or not, and that federal enforcement agencies can enter upon Tribal lands and search records to determine compliance.

The Solis case involves a claim for payment of overtime wages by an employee of a Native-owned retail operation. The Puyallup Tribe in Washington state has a store known as Baby Zack’s Smoke Shop located on trust land within its Reservation. Baby Zack’s sells tobacco products and sundries to both Tribal members and non-Natives, and regularly employs both Native and non-Native workers. An employee filed a claim for unpaid overtime wages against the owner of Baby Zack’s, and the Federal District Court entered judgment concluding that the FLSA applied to the shop, and that the failure to pay overtime wages violated the FLSA. The judgment enjoined the owners of Baby Zack's from violating the FLSA and ordered payment of $31,339.27 in overtime wages.

On appeal, the 9th Circuit not only affirmed the applicability of the FLSA to on-Reservation Tribal businesses, but went farther by specifically authorizing federal searches on Tribal lands as part of enforcement practices.


We conclude that the overtime requirements of the FLSA apply to the retail business at issue in this case. Because the FLSA applies to the retail business, we conclude that the Secretary had the authority to enter the Indian reservation to audit the books of the business, as she would regularly do with respect to any private business.

Accordingly, because the FLSA overtime provisions apply to the (shop), we conclude that the Secretary was authorized to make entry on to the reservation in order to locate records via her regular procedure in her effort to enforce the statute in question.

Unless the decision of the 9th Circuit is overturned by the US Supreme Court, Tribes and Native Corporations must now comply with the requirements of the FLSA, and assume they are subject to intrusive inspections by federal regulators. It therefore behooves Native entities to craft and adopt employment and labor policies that will serve their business interests while avoiding conflict with federal standards.
 

New PBS Series Highlights Native Sovereignty

The week of 13 April 2009, PBS will premier its television series We Shall Remain, a five-part documentary on Native American history. The series will focus on the sovereign status and societal structure of Native American nations from before the arrival of the Mayflower through Wounded Knee and beyond. Beginning with Massasoit’s dealings with early English colonists, the programs feature in-depth analysis and historical reenactments of the complex and turbulent relations between Native communities and European settlers, and the enduring efforts of Tribes and their members to preserve and enhance their sovereignty in North America.

We Shall Remain is the product of collaboration between PBS and Native filmmakers, in coordination with the ReelNative film project. The American Library Association’s President Loriene Roy (White Earth Anishinabe) has developed companion-piece literature that will be distributed to 17,000 public libraries throughout the United States.
 

For Native Hawaiians, An Apology Does Not Return The Land

Ko`olau pali at Kane`ohe Bay (koolaupokohcc.org)

In its recent decision in State of Hawaii v. Office of Hawaiian Affairs, the U.S. Supreme Court ruled that the 1993 apology by the US Congress for the overthrow of the Hawaiian monarchy in 1893 does not prevent the State of Hawaii from selling 1.2 million acres of land obtained after that “regime change”. The Court held that “nothing in the resolution was intended to serve as a settlement of any claims against the United States”, and that it provided no legal authority for a return of government-managed land to Native Hawaiians.

Congress issued the Apology Resolution on the 100th anniversary of the removal of Queen Liliuokalani as monarch of the Hawaiian Nation. The apology acknowledged the illegality of the U.S. government’s actions in overthrowing Hawaii’s sovereign government, creating a “provisional government”, and five years later passing the Newlands Resolution, which annexed Hawaii as a U.S. territory. The Apology noted that “the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land.” Congress further apologized “to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination” and recognized that “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

Hawaii Attorney General Mark Bennett, who argued the state’s case in front of the U.S. Supreme Court, said he was “very pleased with the nine to nothing ruling by the Supreme Court in our favor. The ruling addressed our two points on appeal. The first, that the apology resolution does not in any way affect the state’s legal rights, and, second, that the state has the same absolute deed title to the public lands that the United States had, and the Supreme court confirmed that very clearly in its opinion. The state owns these lands in fee for the benefit of all of the people of Hawaii.”

Native Hawaiian activists and supporters remain unconvinced. “If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawaii does?” said J. Kehaulani Kauanui, associate professor of American Studies and Anthropology at Wesleyan University.

This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom." Professor Kauanui stated. "The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.”
 

Lack Of Funding Hampers Enhanced Tribal ID Card Development

In order to comply with the Western Hemisphere Travel Initiative and the Real ID Act, travelers seeking entry into Canada from the United States must present either a current passport or a security-enhanced ID card by June 1, 2009. The federal government has provided millions of dollars to state governments to develop the chip-embedded ID cards and supporting database systems – but no money has been provided to Tribes to equip their members with the necessary cards and support.

Many Tribal members prefer to utilize ID cards issued by their Tribal governments when traveling internationally, to reflect the sovereignty of their Tribes. Despite the 1794 Jay Treaty that guarantees indigenous peoples the right to move freely between Canada and the U.S., if Tribal governments can't issue security-enhanced ID cards by June 1, Tribal members attempting to enter Canada with standard IDs will likely be turned back at the border. Tulalip Tribal leaders have agreed to develop ID cards for several Northwest Tribes, along with a database that would link to computers at the border, but it appears unlikely the systems will be on-line in time. "We're racing the clock right now," said Theresa Sheldon, a Tulalip policy analyst who has worked on the border security issue for several years. "The only way we would be able to make it by the deadline is if they gave us an extension."

The National Congress of American Indians has filed a request with the federal government for a $20 million grant to help Tribes create their own enhanced IDs. However, even if that request is approved, the money will likely not become available to Tribes until 2010.
 

Blackfeet Launch First Strike Against Oliphant

  

Fed up with crimes on Tribal lands that go unpunished in state or federal courts, the Blackfeet Nation has resolved to challenge the legal authority that limits Tribal Court jurisdiction and punishments.  Blackfeet Tribal Resolution No. 98-2009 calls on Montana’s Congressional Delegation to sponsor a bill to allow Tribes to remedy Oliphant v. Suquamish, 435 U.S. 191 (1978).

As previous articles on this site have discussed, the Oliphant decision and the Indian Civil Rights Act together limit Tribal Court jurisdiction over "non-Indians" and allow Tribal judges to impose only a maximum one-year prison sentence for any crime, no matter how violent or damaging to the Tribe. Currently, the sole authority to prosecute major felony crime lies with the federal government, yet from 1997 to 2006 federal prosecutors rejected nearly two-thirds of the reservation cases referred by FBI and BIA investigators.

This year Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act of 2009. If enacted, the law would make incremental steps to an Oliphant remedy in the following areas: 1) Allowing Tribal Courts to impose up to 3 years in prison or a fine of up to $15,000 for major crimes; 2) Increasing funding for Tribal Courts and law enforcement departments; and 3) Creating a new Law and Order Commission to study issues of jurisdiction, investigation, and prosecution of reservation crimes and the impact on residents of Tribal land. The Commission would have two years from the enactment of the legislation to issue a report to Congress. 

Northwest Tribes Sue To Protect Salmon

Click for a bigger picture!

Salmon-friendly culvert - Thurston County, Washington

Nineteen Tribes have teamed up to bring federal litigation against the State of Washington to speed up the pace of dealing with more than 1,800 fish barriers associated with state highways, which block more than 3,000 miles of potential stream habitat for salmon. Washington’s legislature has funded culvert replacement since 1991, but the current pace of construction could take up to 100 years to fix the problems.

The Tribal consortium previously prevailed in litigating a preliminary issue regarding the state’s duty to protect and enhance salmon runs. In 2007, U.S. District Judge Ricardo Martinez ruled that treaties signed in the 1850s impose a duty on the state to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” Tribes and the state have worked to craft a acceptable settlement since then, but lack of progress and funding prompted a new round of claims.

Dan O’Neal, chairman of the Washington State Transportation Commission, expressed little hope for a legislative solution in the near term.

“The Legislature right now is dealing with all kinds of issues. From a transportation standpoint, revenues are down. Gas taxes aren’t producing as much revenues because people are driving less or using more efficient cars or whatever. I don’t think this thing, frankly, has percolated to the top of legislators’ lists, I don’t think they will change anything unless the court directs it.”

Should Federal Courts Intervene In Tribal Banishments?

Image

Banished Snoqualmie Tribe Members at Seattle's Federal Courthouse (Seattle Times)

"It's just like death" 

"We were treated like criminals" 

“It’s ripping a big family apart”


These comments from Linda Sweet-Baxter, Carolyn Lubenau, and Anita Christansen arose from a recent court hearing on the banishment orders issued by the Snoqualmie Tribe, affecting nine (now “former”) Tribal members. Along with the substantive and cultural issues involved in the banishments, another point of interest was the venue for the hearing – the Federal Court for the Western District of Washington.

The banished members brought legal action in federal court under the Indian Civil Rights Act, alleging the leadership of the Snoqualmie Tribe denied them their right of due process, including adequate notice and an opportunity to speak on their own behalf. The challenges facing the Court went beyond the legal principles at issue, as the non-Native judge, court reporter, and lawyers struggled throughout the hearing to pronounce words in the Tribe’s Lushootseed language.

While federal courts are well-equipped to deal with issues of Constitutional, federal, and even state law, their ability to deal effectively with the political, cultural, and familial complexities of Tribal banishment cases is a significant concern. On a more fundamental level, there is a question of sovereignty involved in reviewing a Tribe’s decision regarding who is and is not one of its members. With the increasing use by Tribes of banishment as a method of criminal (and sometimes political) punishment, legal scholars and advocates must analyze and establish the appropriate boundaries between federal protection under ICRA and a Tribe’s inherent jurisdiction over its membership.
 

A Tax On The Checkerboard

Fractionation of Pine Ridge Reservation (Villageearth.org)

The exterior boundaries of Tribal reservations are usually fairly well defined, and provide a delineation for when one is leaving state land and entering “Indian Country”. However, the ownership and control of land within the bounds of the reservation is often far less clear. Through previous federal policies such as allotment and termination, much Native land was alienated from Tribal ownership. As a result, ownership maps of present-day reservations often resemble a “checkerboard”, with plots of non-Native-owned land interspersed with Tribal trust lands.

For many Tribes, reacquiring the land within reservation boundaries is both an economic and cultural imperative, and Tribal leaders seek creative legal and business methods of eliminating the checkerboard. The Tulalip Tribes in Washington are presently considering a unique economic tool in this regard: imposing a tax on sales of land by Tribal members to non-Natives. The Tulalip Grassroots Committee, an organization of Tribal members, has proposed a 17 percent tax on the land value on real estate transactions to discourage Tribal members from selling land to non-Native buyers. "We believe the reservation is sacred and we wanted to make sure that not as much land goes out of trust status," states Tulalip Chairman Mel Sheldon.

With real estate prices plummeting nationwide in the tumult of the current economic crisis, Tribes with cash are positioned to more quickly eliminate checkerboard spaces within reservations. While a tax such as that proposed by Tulalip may help reduce alienation of Tribal lands, there is also risk of alienating the surrounding business community by raising a new barrier to transactions on reservations. Balancing the interests of internal cohesiveness and positive external relations will become increasingly important as Tribes navigate through the current nationwide economic crisis.
 

Tribes' "Special Privileges" Under Attack In Oklahoma

"It is simply unfair..."  Rep. David Dank

Assailing what he calls “special privileges that give (Native Americans) unique advantages” and declaring “It’s time for our Legislature to restore sanity to Oklahoma’s dealings with the Tribes”, Oklahoma state Representative David Dank has introduced three bills before the state Congress: 1) a constitutional amendment to give private businesses the same right to make corporate campaign contributions as Tribes; 2) a second amendment requiring compacts between Tribes and state government be ratified by the state Legislature; and 3) a bill giving private businesses located close to competing Tribal stores the same sales tax exemptions as the Native-owned businesses. Dank outlines his plan and purpose in an article in this week’s Oklahoman newspaper.

Dank’s reasoning is based on his view that:

Tribes collect no sales taxes on items sold from their grocery and convenience stores, or other Tribal businesses. They collect about half of normal tobacco taxes from Indian smoke shop sales. Tribal businesses pay no property taxes, the state receives little or nothing from Tribal auto tags, and Tribes, unlike private businesses, are free to make millions in corporate campaign contributions.

Meanwhile, the Tribes reap millions from a state-issued monopoly on casino gambling in Oklahoma because of a 15-year compact that cannot be altered.

These are tax exemptions and breaks that siphon tens of millions of dollars each year from local school districts, city and county governments and our state treasury. Non-Tribal citizens and businesses are being taxed to make up those losses. In some cases, non-Tribal businesses are being driven into bankruptcy by the unfair competition made possible by these special privileges.

Dank’s article neglects to mention some other ways in which Native American Tribes are “special”. Unlike every other municipality in the country, and despite being recognized by the US government as sovereign, Tribal governments are not allowed to levy property taxes on the Tribe’s own land. This state of affairs deprives Tribes of untold millions in revenues each year that other municipalities use for roads, police, and other civic services. For Tribes fortunate enough to be located near population centers or interstate highways, gaming revenue is but a partial substitute for the lack of taxing authority, as illustrated by the endemic poverty and substandard infrastructure on reservations.

The private sector of Oklahoma’s economy also reflects a “special” place for Native Americans. As he laments the Tribes’ “special financial privileges” that “cost state and local governments millions and damages competing private businesses”, Dank omits the fact that Native American and Alaska Native householders in Oklahoma had a median income 18.1 percent less than the median level for all households, and an overall decline in median income of 24.2 percent since the year 2000 – the biggest drop of any demographic group in the state. Meanwhile, the Caucasian demographic in Oklahoma has realized a 42.8 percent increase in household income level since the year 2005.

Special indeed.

Wondering If You're An "Indian"? Ask The Ninth Circuit

                                                                            

 (Billy Mills; Sitting Bear

Articles on this site have previously commented on the troubling fact that race continues to be an actively-considered element in both substantive and jurisdictional issues of law affecting Native Americans. The recent 9th Circuit case of United States v. Cruz demonstrates that the phenomenon of “race laws” continues to haunt the national landscape.

The Cruz case involves the analysis of whether a criminal defendant could be tried by a federal court under the laws of the United States. The federal government contended that Mr. Cruz is an “Indian” and committed an assault on Tribal land, thereby subjecting him to federal jurisdiction under 18 U.S.C. § 113(a)(6). Mr. Cruz appealed, alleging that he is not an “Indian” and therefore not subject to federal jurisdiction under the statute. The 9th Circuit Court of Appeal offered the following preface to its analysis:

“At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.”

The Court then plunged into an analysis of Mr. Cruz’s racial heritage, determining that

“His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.”

The Court ultimately found that the evidence in the case “does not demonstrate that Cruz is an Indian”, and remanded the matter back to the lower court with directions to acquit Mr. Cruz of the federal charges.

The Cruz case is merely the latest in a long series of cases where judges have attempted to determine who is and is not Native American through subjective racial analysis. Leaving aside the glaring issue of why race is a jurisdictional factor in the first place, courts have also failed to create any uniform standard for this tortured arithmetic. In Sully v. United States, 195 F. 113 (8th Cir.1912). 1/8 “Indian” blood was held sufficient to be Indian; in Vezina v. United States, 245 F. 411 (8th Cir.1917), women 1/4 to 3/8 Chippewa were held to be Indian; in Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968), 1/4 Makah blood sufficient to satisfy the “Indian blood requirement”, in Goforth v. State, 644 P.2d 114, 116 (Okla.Crim.App.1982), the requirement of Indian blood was satisfied by testimony that a person was slightly less than one-quarter Cherokee; and in St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988), 15/32 of Yankton Sioux blood was held sufficient to establish one as an “Indian”.

Conducting mathematical calculations on a human being’s racial ancestry for the purpose of deciding which laws apply to that person harkens back to the darkest days of American jurisprudence. For those who thought America had moved beyond Plessy v. Ferguson, when the Supreme Court decided that a person who was “7/8ths White” could be consigned to both a separate train car and a separate legal standard, it is clear that much work still remains to be done. It has become typical for courts to “punt” the obvious problems with race laws involving Native Americans by saying “it’s Congress’ responsibility, not the courts.” This justification for abdicating judicial responsibility is not only legally fallacious, it directly contradicts the clear legal precedent of cases such as Brown v. Board of Education where legal policies based on race were declared inherently unconstitutional. Courts clearly have the legal authority to put an end to race-based laws, all they need is the courage.

A far better way for Tribal/federal jurisdiction questions to be analyzed is based on treaty status, with Tribal members being subject to either Tribal or federal jurisdiction based on agreements between their Tribe and the US government.  These are the same principles used when citizens of Canada, Mexico, or other sovereigns  are charged with crimes within the United States, and the procedures for determining jurisdiction are well established. Such a policy would properly acknowledge the sovereign status of Tribes, and eliminate the embarrassing and intellectually-unsupportable notion that a person’s race should determine their legal status in America.
 

Why Are Tribal Courts Restricted To One-Year Criminal Sentences?

(Tribal Courthouse - Saginaw Chippewa Indian Tribe of Michigan)

In 1968, Congress passed legislation codified as 25 U.S.C. §§ 1301-03, better known as the Indian Civil Rights Act (ICRA). Modeled after various portions of the amendments to the US Constitution that comprise the Bill of Rights, ICRA mandates protections for Tribal members such as freedom of speech, religion, press, and assembly. Subparagraph 7 of Section 1302 of ICRA provides that Tribal Courts shall not require excessive bail, impose excessive fines, impose cruel or unusual punishment, “and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.”


Murder, rape, armed robbery – a Tribal Court can only impose a maximum one-year jail sentence for these or any other crimes committed on a reservation. If the Tribe views such punishment as inadequate for what in most jurisdictions would be capital crimes, its only option is to surrender jurisdiction to a state or federal court and allow the matter to be adjudicated in those systems.


Why?


In the 21st Century, what legal, intellectual, or philosophical justification exists for restricting the power of Tribal Courts to administer reasonable justice in their sovereign territory? Outside the realm of Tribal lands, courts in even the poorest and least-educated counties in America have the full sentencing panoply (including life sentences and capital punishment) available to deal with criminal acts occurring within their jurisdictions. Yet Tribes with hundreds of millions of dollars in revenue and sophisticated judicial systems are only permitted to issue sentences equivalent to that which non-Native courts impose on habitual traffic offenders.

The ability to make and enforce laws to protect the security and possessions of the members of a nation is a basic and fundamental element of sovereignty. When a capital crime is committed on Tribal lands, the Tribe suffers twice – first from the act itself, and then from the humiliation of having to hand over jurisdiction to a foreign court as the only means to pursue reasonable justice. At what point do federal/Tribal relations move beyond the Oliphant standard, wherein Tribes are given authority only to the point “consistent with the safety of the white population with which they may have come in contact”? In the era when the United States has finally proven itself “ready” to elect a person of color to the highest office in the land, is it also now ready to provide Tribal Courts the same basic legal authority as any other tribunal in the land?
 

Ghosts of Pine Ridge: AIM Murder Trial Postponed Again

(photo: AIM-Arizona Chapter)

The violent events associated with Wounded Knee, Pine Ridge, and the American Indian Movement (AIM) have proved to be among the most haunting chapters in modern Native American history. A recent court decision ensures this controversial book will remain open longer still, as U.S. District Judge Lawrence Piersol has delayed again the trial of two men charged in the slaying of a fellow AIM member 33 years ago.

John Graham and Richard Marshall were scheduled to stand trial Feb. 24 in Rapid City, South Dakota on charges they committed or aided and abetted the first-degree murder of Annie Mae Aquash on the Pine Ridge Indian Reservation in 1975. Ms. Aquash was among the militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973, that included exchanges of gunfire with agents who surrounded the village.

Arlo Looking Cloud, a Lakota who was living homeless in Denver, was convicted in 2004 for his role in the murder and sentenced to life in prison. He is now stated to be cooperating with the government in its case against Graham and Marshall, leading to their indictments. Witnesses at Looking Cloud's trial said he, Graham and Theda Clarke drove Ms. Aquash from Denver in late 1975 and that Graham shot her as she begged for her life. Prosecution witnesses accuse Marshall of providing the handgun and shells Graham used to killed Ms. Aquash, allegedly on orders from AIM leaders who suspected she was a government informant.

Graham has denied the killing but acknowledged being in the car from Denver. He was scheduled to stand trial in October, but the indictment was dismissed because it didn't show that either Graham or Ms. Aquash belonged to a federally recognized Tribe – a prerequisite for federal criminal jurisdiction. Graham descends from the Tsimshian Tribe in the Yukon and fought his extradition from Canada for more than four years. He was extradited in December 2007 after the Supreme Court of Canada refused to review his case. Ms. Aquash was a member of Mi'kmaq Tribe of Nova Scotia.

The trial is being delayed because Marshall's attorney filed a motion in January requesting at least another two months to prepare the case, stating that the trial likely will include testimony about AIM, Wounded Knee, the 1975 slaying of two FBI agents and other events. Judge Piersol’s ruling states: "The Court agrees with counsel for Marshall that this case presents complex legal and factual issues. The crime involves multiple defendants and allegedly occurred as part of a wide-ranging conspiracy arising out of the AIM movement of the 1970s." For those whose lives and families were shattered by the blood that was shed more than 30 years ago, the ghosts of Pine Ridge are about to rise once again.

A Hunter's Lament: When Tribal Rights Clash With The Law Of The Land

Recent articles on this site have detailed a trend among Tribes to expand their wild game hunting activities beyond the boundaries of reservations. Tribal hunters in various regions are exerting long-held treaty rights and are pursuing game on land owned by the government or private parties, but within the Tribe’s traditional hunting grounds. Not surprisingly, this has become a source of friction between Tribal hunters and their and non-Tribal counterparts, who are obliged to obey a different set of regulations and restrictions for their hunts. One instance of such friction is reflected in the following letter, sent from a non-Tribal hunter in Washington state:

The Tribes feel they should be allowed to hunt on the same land we do, using their laws. I have seen first hand what these rights amount to. I elk hunt in the Colockum Wildlife Area. My family settled in this area around 1880. My Uncle owns the land that remained, and he sees what goes up and down the road. What they saw a lot of this summer was truck loads of dead elk. Starting at the end of July, as soon as antlers mature and harden, local Tribal hunters are decimating the Colockum elk herd. On the last Friday of deer season in the area, my dad and brother saw Indian hunters with a very large 7 point bull in the back. Nothing was open at the time for elk, but the elk was dead nonetheless. Relatives have seen truck loads of spikes, the only size bull us non-Indians are allowed to shoot. Just when we thought the practice of not shooting big bulls was starting to pay off, the Tribe is decimating them. Hunting in this area has been going downhill for the past 3 years. Now we know why. Soon, elk in the Colockum will go the way of salmon, crab, and the Nooksack elk herd, which was nearly wiped out by Tribal hunters.

These are strong opinions – which are of course countered by equally strong opinions regarding Tribal rights and past injustices. As Tribes and their members seek to more fully exercise sovereign or treaty rights – particularly in an era of economic distress and diminishing natural resources - clashes of interests with non-Tribal entities are likely to become more frequent. Legal battles are divisive and expensive, and rarely produce a completely satisfactory outcome for any party. With regard to the expansion of hunting rights, it may well profit everyone concerned to instead seek both communication and compromise, and find ways to share the bounty of the land without battling in court.

Models do exist for such cooperation, interestingly enough in closely-related areas such as fishing. Numerous agreements exist between Tribal and federal/state governments for the management and utilization of fish and shellfish resources, with a resulting balance that allows for reasonable annual catches for Tribal and non-Tribal fishermen alike. Applying these concepts to hunting, Tribes may have an opportunity to partner with non-Tribal hunters in developing game ranges for mutual benefit. Tribes blessed with lands populated with game have both a natural and economic resource which, if properly managed, could bring significant revenue from hunters and tourists while preserving and enhancing the environment and wildlife population. There are no significant legal impediments to such partnerships – it is only a matter of will.
 

Why Are Tribal Courts The Last Race-Based Jurisdiction In The United States?

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system.  But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

 

None whatsoever.

 

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members.  Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant.  Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts.  Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions.  In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"?  Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system?  What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts.  It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened.  Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization."  The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).   The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy?  Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation.  Thirty years later, Congress has obviously failed to take the hint.  In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.

New York Pursues Tobacco Tax Revenue From Tribes

In what is viewed as a direct challenge to Tribal sovereignty and trade rights, New York Gov. David Paterson has signed a new law to impose and collect state sales taxes on tobacco products sold to non-Indians on Tribal land. With New York facing a multi-billion dollar budget deficit, revenue officials estimate the state could realize more than $62 million in new tax collections each year from the tobacco trade on reservations.

At the press conference announcing the new law, Gov. Paterson stated:

We profess great respect for the Indian sovereign nations and we expect to continue to demonstrate that respect for them, and what we are going to do today is try to alleviate an issue that’s existed for a very long time and we won’t be able to alleviate it just today, but we hope we’re taking steps in what will be a process that will reach that goal and that end. With the current financial situation, this tax will help bring extra revenue for the state.”

The new law requires tobacco wholesalers to sign an oath, under penalty of perjury, stating that the cigarettes they sell will not be resold untaxed in violation of state law. A state appeals court enjoined a similar law in 2006 because the state had not developed a coupon system for reservation retailers to claim tax refunds on cigarettes sold to Tribal members. Gov. Paterson stated that the new law is intended to circumvent that particular issue and collect the tax without addressing it.

Seeing that we can’t get around that encumbrance, (the state) introduced legislation that we will now ask for certification under penalty of law to those wholesalers that sell without collecting taxes. That’s in simple (terms) what the bill does. This is a new approach and we hope this will be an effective approach to solve this problem.”

Business leaders in the Haudenosaunee Confederacy have vowed to collaboratively battle any attempt by New York State to interfere in the Indian tobacco trade. Mark F. Emery, director of media relations in the Oneida Nation Public Affairs Department, stated that the new law will be immediately challenged in court.

None of the state’s other efforts to infringe on sovereignty have worked, and there is no reason to believe this will work either. If the state is serious about resolving this issue, it will negotiate with Indian nations rather than constantly attacking them.”
 

White Earth Band of Chippewa Seek Retrocession of P.L. 280

In a bid to assert control over law enforcement in their lands, leaders of the White Earth Band of Chippewa are seeking retrocession from Public Law 280 and are writing a new criminal code to replace state law for members of the Band.

Crossing three counties in northwest Minnesota, the White Earth Reservation has been subject to the jurisdiction of multiple non-Tribal law enforcement agencies since Public Law 280 was enacted in 1953. Minnesota is one of six states where the federal government mandated compliance with P.L. 280 on nearly all reservations. Nationwide, an estimated 70 percent of American Indian tribal members are under P.L. 280.

White Earth is seeking retrocession of the authority of P.L. 280 on the reservation, a move that will require the consent of Minnesota Governor Tim Pawlenty and approval from the federal government. The Tribe currently has a police force and a Tribal Court, and White Earth attorney Joe Plummer has stated that the Tribe never surrendered its right to judicial independence. As a result, the Tribe intends to implement its new criminal code without waiting for federal approval. “The Council plans on enacting a Tribal Criminal Code that’s been in development for two years now,” Plummer said. “Once that’s done, the officers will enforce it and individuals will be prosecuted through the Tribal Court.”

Further information can be found at White Earth Band of Chippewa.