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".
 

The U.S. Department of Health and Human Services requests proposals for Environmental Regulatory Enhancement. This RFP will the support the development, enforcement, and monitoring of tribal environmental quality and regulatory programs. $750K expected to be available, up to 5 awards anticipated. Responses due 4/1/11. For more info, contact Mark Allender at mark.allender@acf.hhs.gov or go to: http://www.acf.hhs.gov/grants/open/foa/view/HHS-2011-ACF-ANA-NR-0142. Refer to Sol# HHS-2011-ACF-ANA-NR-0142.

Safe Tribal Waters

The U.S. Environmental Protection Agency requests proposals for Support to the National Tribal Water Council. Through this RFP, EPA seeks projects to conduct, coordinate, and promote the acceleration of research, studies, training, and demonstration projects that will support the participation of the National Tribal Water Council and tribes to prevent, reduce, and eliminate pollution to waters, and protect drinking water in Indian Country. $880K expected to be available, up to 1 award anticipated. Responses due 4/11/11. For more info, contact Felicia Wright at wright.felicia@epa.gov or go to: http://water.epa.gov/grants_funding/tribal/. Refer to Sol# EPA-OW-IO-11-01.

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.
 

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.

The U.S. Department of Agriculture (USDA) has announced an historic agreement to settle a decade-long class action lawsuit known as Keepseagle v. Vilsack, wherein Native American farmers and ranchers alleged discrimination in the USDA's farm loan program dating back to 1981.

Under the agreement, the USDA will pay $680 million in damages to thousands of Native American farmers and ranchers and forgive up to $80 million worth of outstanding farm loan debt. The settlement also initiates new programs to improve USDA's farm loan services for Native Americans. Those initiatives include the creation of a Native American Farmer and Rancher Council, where top USDA officials and Native American advocates will collaborate to make USDA's programs more accessible for Native Americans farmers and ranchers, as well as enhanced delivery of technical assistance to Native American borrowers, the creation of sub-offices on tribal lands, a systematic review of the farm loan program rules to improve accessibility to Native Americans and other measures designed to improve the provision of farm loan services to Native Americans.

The Keepseagle lawsuit alleged that Native American farmers and ranchers were denied the same opportunities as white farmers to obtain low-interest rate loans from USDA. Congress has charged the USDA with serving as the "lender of last resort" for family farmers who can't obtain credit from commercial banks. According to an expert report prepared by a former USDA economist, Native Americans suffered actual economic losses amounting to $776 million between 1981 and 2007 as a result of receiving less than their fair share of credit opportunities from the USDA.

Lead plaintiffs Marilyn and George Keepseagle, ranchers in Fort Yates, N.D.,said "We have been waiting nearly three decades for this day to come. This settlement will help thousands of Native Americans who are still farming and ranching. But more important, through this settlement we will leave to our children and grandchildren a farm loan system far more responsive to our community than the system we inherited from our parents."

The settlement has three major components:
1) Payment of $680 million in damages to class members for the economic losses they suffered due to the denial of loans or loan servicing by the USDA.

2) The USDA will forgive up to $80 million in debt currently held by class members who succeed in obtaining damages. Once the Court gives preliminary approval to the agreement, the USDA will establish a moratorium on foreclosures, debt accelerations and debt offsets not already referred to the Treasury Department. The moratorium will last until the debt relief process has concluded and class members' debt has been forgiven. After the debt relief is provided, USDA will engage in a round of loan servicing for all class members who are delinquent on any outstanding USDA farm loan debt.

3) Changes to USDA's farm loan program to improve the delivery and responsiveness to Native American farmers and ranchers, including through the creation of the Native American Farmer and Rancher Council, a new federal advisory committee. The new Council will have 15 members, 11 of whom will be Native Americans or represent Native American interests and four of whom will be top USDA officials. Members will meet at least twice a year for the next five years to discuss how to make USDA's programs more accessible for Native Americans farmers and ranchers, including changes to Farm Service Administration (FSA) regulations and internal guidance. The Council will report its recommendations directly to senior USDA officials.

In addition to the Council, the USDA will: 1) create 10 to 15 USDA regional sub-offices that will provide education and technical assistance to Native American farmers and ranchers and their advocates; 2) undertake a systematic review of its farm loan policies to determine how its regulations and policies can be reformed to better assist Native American farmers and ranchers; 3) create a customer guide on applying for credit from the USDA; 4) create the Office of the Ombudsperson to address concerns of all socially disadvantaged farmers and ranchers; and, 5) regularly collect and report data on how well Native Americans fare under USDA's farm loan programs.
 

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."

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

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

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

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

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


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

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

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

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

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

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

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

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

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.

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.
 

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.
 

In her critique of the Cobell settlement, she notes that the normal rules for class-action lawsuits appear not to have been followed in the case, depriving individual plaintiffs of the right to “opt-out” of the case.  This prevented individual Native Americans from pursuing their own separate legal remedies for the government’s alleged mismanagement of Native trust accounts and lands. She asserts that when the $1.4 billion allocated to trust account payments is broken down among the number of Native Americans with claims, the per-person dollar amount averages out to a mere $1,000.00 – with some plaintiffs to receive as little as $500.

Based on the above, I call the Cobell Proposed Settlement a scam. As a Dakota woman, a lawyer, and a law professor, I am appalled that the U.S. government would attempt to push this through Congress. The U.S. government has imposed the trust relationship on Indian peoples in mid-North America. Surely, the highest fiduciary duty is owed to individual Indians whose lands are managed by the U.S. At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. Here in the latest round, Interior wants to sneak through this proposed settlement and stop the accounting, the claims for mismanagement, and the rights of those who are most at the mercy of the U.S. trust responsibility. This would be on par with the bleakest eras of U.S. Indian policy such as removal, assimilation and termination. We need the eagle whistle-blowers to come forth in Indian country to stop this great wrong from being perpetrated by the U.S. government. – Angelique EagleWoman

Duwamish River Bank Near Seattle

To resolve a multi-party federal lawsuit, the Boeing Company will pay $2 million to remediate environmental damage in Seattle’s Duwamish waterway, the ancestral grounds for the Duwamish, Muckleshoot, and Suquamish Tribes. Joining as plaintiffs with several federal and state agencies, the Muckleshoot and Suquamish brought the suit to fund the cleanup of the site where Boeing built many of the B-17 bombers used during World War II. Solvents, oils and other chemicals polluted the property and leached into groundwater that migrated to the Duwamish waterway.

Boeing has agreed to undertake two habitat-restoration projects to benefit salmon and birds. The company will create nearly five acres of new wetlands, restore a half-mile of waterway, and establish a holding area for young salmon. It also will demolish several buildings that were partially constructed on pilings over the waterway during the 1930s and early 1940s. "We'll be taking the pilings out and restoring the bank," said Blythe Jameson, a spokeswoman for Boeing.

In addition to the Tribes, the settlement resolves claims against Boeing by the National Oceanic and Atmospheric Administration, the Department of Interior, U.S. Fish and Wildlife Service, the Washington State Department of Ecology, and the Washington State Department of Fish and Wildlife. The agreement includes the creation of a permanent stewardship fund for the remediation projects. Boeing says cleanup and restoration activities are scheduled to begin in 2012, and will take several years to complete.
 

A new deadline of May 31, 2010 has been agreed to by the plaintiffs and the federal government, but it will likely be the last extension. “The district judge [Judge James Robertson, U.S. District Court for the District of Columbia] declared that he does not want further extensions of the December 7, 2009 settlement agreement, and he set a date certain in that regard,” says Dennis Gingold, lead counsel for the plaintiffs.

“That is a fair decision in view of representations made by the government that our settlement would be ratified by Congress on or before the end of December 2009. If the settlement agreement expires, plaintiffs will resume intense litigation against Treasury and Interior on all matters relevant to the case, including the renewal of matters that remain unresolved and the refiling of motions that have been dismissed without prejudice as a necessary predicate to settlement.”

The settlement agreement calls for the federal government to provide $1.4 billion in compensation for individual Native American trust fund beneficiaries, and $2 billion for a land consolidation program to be overseen by the Department of the Interior to buy back fractionated trust lands.

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.
 

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.
 

The University of California Irvine radio station KUCI’s legal program The Docket has aired an extended segment on the settlement of the landmark Cobell lawsuit between 300,000+ Native Americans and the U.S. government. Host Evan Simon interviewed Foster Pepper PLLC’s Native American Group Chair Greg Guedel regarding the background of the case, the details of the settlement, his discussion with lead plaintiff Eloise Cobell, and what work remains to complete the settlement and lay the groundwork for improved relations between the federal government and Native Americans. The interview can be accessed HERE, or via the Foster Pepper podcast page on iTunes.

Arctic Ocean Beach in Barrow, Alaska (Nels Akerlund)

In a landmark event that will provide a quantum leap forward in health care for Alaska Natives residing above the Arctic Circle, the Arctic Slope Native Association (ASNA) has issued an $82 million contract for construction of a modern hospital in Barrow, Alaska – the northernmost city in North America. ASNA’s project team worked for more than a decade in cooperation with the federal Indian Health Service to plan, design, and obtain funding for the facility, which will provide much-needed health services to Native communities located in Alaska’s northernmost region.

After signing the historic contract, ASNA President and CEO Marie Carroll stated:

“The ASNA Board of Directors from the Native communities in the Arctic region are happy to see progress on a long-awaited project, which will replace a 2x4 constructed, 45-year old hospital opened in 1964. Everyone in our region is looking forward to having a modern hospital to go to where there are no other options for primary care or hospital services -- the next closest hospital is nearly 300 miles away in Fairbanks, Alaska.”

In addition to the ultimate goal of improved health care for the local Native communities, the project will provide a significant economic stimulus to the region during the two-year construction period. Another noteworthy aspect of the project: the prime contractor that will build the hospital is a joint venture between UIC Construction LLC and SKW/Eskimos, Inc. – both of which are Native-owned businesses. Foster Pepper attorney Greg Guedel, who served as ASNA’s legal advisor during the contract negotiations, noted: “This project is an inspiring example of Native government, Native-owned businesses, and the federal government working together to improve the quality of life for Alaska Natives. The benefits of this work will accrue to the Native communities in the region for generations.”
 

Flag of the Nisga'a Nation (University of Victoria)

In a break from long-standing land control policies, the Nisga’a First Nation in British Columbia is set to begin allotting property to its members, who can then mortgage, lease, or sell it – even to non-Nation members.

The new policy is part of an ongoing effort to improve the economic circumstances of the Nisga’a. After three years of study, the Nisga’a government has concluded that restrictions on private property ownership by its members has been a significant obstacle to financial growth. The new policy will provide Nisga’a members with freehold title to their homes, which they can then sell or mortgage as they please, and the policy may soon be extended to the Nation’s commercial and industrial properties.

This new policy from a First Nation in Canada will contrast sharply with policies among Tribal nations located within the United States. The property allotment policy implemented by the federal government during the 20th Century is generally viewed as having been an economic and social disaster for Native communities. The selling off of Tribal lands, typically at below-market value in order to obtain much needed cash, resulted in the “checkerboarding” of Native reservations and an alienation of Native peoples from their traditional homelands. Tribes also lost control of significant mineral wealth and water/mining rights due to the loss of ownership of their lands.  Most Tribes within the U.S. have spent the decades since the end of allotment trying to regain lost lands and return them to permanent Tribal status.

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.
 

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