Washington State Implements New Indian Child Welfare Act

The State of Washington has passed into law its own Indian Child Welfare Act, designed to better protect the rights and preserve the cultural heritage of the state’s Native American children who are not able to live with their biological parents.

In the preamble to the new Act, the state declares:

The legislature finds that the state is committed to protecting the essential tribal relations and best interests of Indian children by promoting practices designed to prevent out-of-home placement of Indian children that is inconsistent with the rights of the parents, the health, safety, or welfare of the children, or the interests of their tribe. Whenever out-of-home placement of an Indian child is necessary in a proceeding subject to the terms of the federal Indian child welfare act and in this chapter, the best interests of the Indian child may be served by placing the Indian child in accordance with the placement priorities expressed in this chapter. The legislature further finds that where placement away from the parent or Indian custodian is necessary for the child's safety, the state is committed to a placement that reflects and honors the unique values of the child's tribal culture and is best able to assist the Indian child in establishing, developing, and maintaining a political, cultural, social, and spiritual relationship with the child's tribe and tribal community.

The full text of Washington’s new ICWA can be accessed HERE.
 

Podcasts: Serving The Legal Needs Of Urban Native Americans

Video and audio podcasts are now available from the landmark legal seminar/webinar “Serving The Legal Needs of Urban Native Americans”, held on 31 March 2011 in Seattle. The program was hosted by the law firm of Foster Pepper PLLC, in partnership with the Northwest Justice Project and the American Bar Association Section of Individual Rights and Responsibilities’ Committee on Native American Concerns.

Tens of thousands of Native Americans live in and around America’s major cities, often far removed from their ancestral Tribes and families. Often battling poverty and discrimination, many urban Native Americans see their legal and civil rights undermined by a lack of resources and effective advocacy. The presentations in the podcasts demonstrate how specialized non-profit legal clinics in the Northwest are providing much-needed guidance and resources to urban Native Americans, and how this success can be replicated in cities throughout the US.

PODCAST PROGRAMS
(Audio files are in .mp3 format and require an Audio player or you can listen via iTunes.)
(Video files are in .mp4 format and require a media player.)

Welcome and Introduction - (AUDIO  |  VIDEO)

  • Greg Guedel, Chair, Foster Pepper PLLC Native American Legal Services Group

Recognizing The Need – Legal Issues for Urban Native Americans  -  (AUDIO  |  VIDEO

  • Millie Kennedy (Tsimshian), Native American Advocacy Coordinator, NW Justice Project
  • Jenine Grey (Tlingit), Chief Seattle Club

Addressing the Need -- Chief Seattle Club, NW Indian Bar Association and NW Justice Project  -
(AUDIO  |  VIDEO

  • Bree Kame’enui-Ramirez (Native Hawaiian), President, NW Indian Bar Association
  • Christina Parker (Chippewa Cree), Tulalip Tribal Attorney
  • Brooke Pinkham (Nez Perce), CLEAR Native American Advocate, NW Justice Project

Under Fire: Relations Between Urban Native Americans, Police, and City Government  -  
(AUDIO  |  VIDEO

  • Chris Stearns (Navajo), Hobbs Straus Dean & Walker; Seattle Human Rights Commission

Bridging The Gap — The Attorney’s Role of Engaging and Serving Urban American Indian clients  -  (AUDIO  |  VIDEO

  • Christina Parker (Chippewa Cree), Tulalip Tribal Attorney

A New Beginning – The Tahoma Indian Center  -  (AUDIO  |  VIDEO

  • Joan Staples-Baum (White Earth Chippewa), Director, Tahoma Indian Center
  • Chrishendra Tucker, Field Attorney, NW Justice Project Tacoma Office

You can access the podcasts by clicking the AUDIO (.mp3) and/or VIDEO (.mp4)  links, and through Foster Pepper’s iTunes page.
 

LISTEN to all the AUDIO (.mp3) files and subscribe to the RSS feed.
WATCH all the VIDEO (.mp4) files and subscribe to the RSS feed.

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".
 

Legal Help Needed For White Swan Fire Victims


A house burns as winds spread fire throughout White Swan on Saturday, Feb. 12, 2011. (Sara Gettys/Yakima Herald-Republic)
 

A terrible fire that broke out this past week has destroyed dozens of homes in the White Swan community located within the Yakama Nation. Many Native American families lost both their residences and important family legal documents such as wills, powers of attorney, and membership papers. In addition to the need for basic relief, a call is being made for legal assistance to help families with their damage claims and the reconstruction of their legal paperwork.

The relief effort will be coordinated by the Yakama Nation, and contact information for the Nation's logistics officer will be distributed as soon as available.  In the interim, if you are able to assist with direct legal work or other support, please contact:

Patrice Kent
PO Box 17798
Seattle, WA 98127
Tel: (206) 915-1529
Fax: (206) 339-0605
mpatricekent@clearwire.net

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.

USDA Settles Native American Farmer Discrimination Lawsuit for $760 Million

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.
 

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."

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.

$495 Million in Federal Funding Available for Tribal Energy And Environmental Projects

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


EPA Funding for Facilitating Tribal Climate Change Adaptation Planning and Communicating Climate Change Impacts - $550,000
Application Due: July 30, 2010

Eligible Entities: States, local governments, territories, Indian tribes, and possessions of the United States, including the District of Columbia; international organizations, public and private universities and colleges, hospitals, laboratories, other public or private nonprofit institutions.

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


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

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

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

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

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


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

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


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

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


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


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

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

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

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.
 

Washington State Schools Improve Tribal History Curriculum

Although Washington state has 29 federally recognized Tribes, most public school students learn little of the history and culture of Native communities in their standard curriculum. Some middle school textbooks end their discussion of Native history around 1877. Thanks to an effort that began nearly seven years ago, this situation is now starting to change for the better.

In 2004, Rep. John McCoy, a member of the Tulalip Tribes, introduced a bill in the state legislature that would have required public school districts to teach Tribal history and culture. The bill did not pass, but the next year legislators approved a bill that encouraged districts to do so. For the past two years, Tribes, the state and 14 schools have worked together to create a curriculum module covering Tribal history, culture, and sovereignty, and to establish partnerships between Tribes and school districts. This fall, the ground-breaking curriculum will be available online for any teacher or school to use.

The goal is to increase understanding about Tribes among young people. "We really want to break down a lot of the stereotypes and misconceptions that people have about the Tribes and Tribal people," said Denny Hurtado, state director of Indian education. "People were saying things like, 'Why do these Indians have special rights?' If they really understood the history and the truth, they would understand that we've always had these rights."

When the curriculum becomes available online in the fall, McCoy hopes it will come into wide use in schools, and is working to raise money to open six training centers around the state where teachers can learn how to use it. "This is to get everyone to understand that because these treaties were signed, they are the law of the land," he said. "And consequently, Tribes are sovereign nations. There are so many people that don't understand that."
 

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.
 

Is the Cobell Settlement Another Bad Deal For Native Americans?

In a pointed editorial in Indian Country Today, Angelique EagleWoman criticizes the $3.4 billion settlement between the federal government and the Cobell lawsuit's Native American trust account plaintiffs as “a scam”.  Ms. EagleWoman is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota, is an attorney licensed in Washington, D.C., Oklahoma, North Dakota and South Dakota, and teaches Civil Procedure and Native American Law at the University of Idaho.

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

Tribal Agreement With Boeing Produces $2 Million For Environmental Cleanup Of Ancestral Duwamish Waterway

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.
 

Another Deadline Passes, But Congress Still Has Not Ratified Cobell Settlement

Despite the passage of three deadlines agreed to between the federal government and the plaintiffs, Congress has still not ratified the landmark $3.4 billion settlement in the decades-long Cobell Native American trust litigation. The previous deadlines for congressional ratification were December 2009, February 2010, and April 2010.

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.

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.
 

Podcast: Non-Profit Organizations In Tribal Communities

Free podcasts from the informative Tribal non-profit organizations seminar in Seattle are now available for you to download from this website. The sessions include:

The Need for Fostering Non-Profits in Indian Country:

Ken Gordon, Executive Director, The Potlatch Fund

Non-Profit Law in Indian Country:

Millie Kennedy, Native American Unit, The Northwest Justice Project
Don Chalmers, President, SparrowHawk Consulting Company
Timothy Brewer, Reservation Attorney, The Tulalip Tribes

Shana Barehand, Tribal Liaison for the WA Department of Revenue

Dispute Resolution in the Tribal Context: “Cultural Awareness and Strategic
Planning”:

Michele Vendiola, Consultant/Facilitator, Community Alliance & Peacemaking
Project
Christina Parker, Field Attorney, The Northwest Justice Project
Greg Guedel, Chair, Foster Pepper PLLC Native American Legal Services
Group

You can access the podcasts below and through Foster Pepper’s iTunes page.

PODCAST - AUDIO
(Audio files are in .mp3 format and require an Audio player or you can listen via iTunes.)

The Need for Fostering Non-Profits in Indian Country:

  • Listen to Ken Gordon, Executive Director, The Potlatch Fund

Non-Profit Law in Indian Country:

  • Millie Kennedy, Native American Unit, The Northwest Justice Project
  • Listen to Don Chalmers, President, SparrowHawk Consulting Company
  • Listen to Timothy Brewer, Reservation Attorney, The Tulalip Tribes
  • Listen to Shana Barehand, Tribal Liaison for the WA Department of Revenue
  • Listen to the Non-Profit Law Panel

Dispute Resolution in the Tribal Context: “Cultural Awareness and Strategic Planning”:

Listen to all the audio files and subscribe to the RSS feed.

PODCAST - VIDEO
(Video files are in .m4v format and require QuickTime.)

The Need for Fostering Non-Profits in Indian Country:

  • Watch Ken Gordon, Executive Director, The Potlatch Fund

Non-Profit Law in Indian Country:

Dispute Resolution in the Tribal Context: “Cultural Awareness and Strategic Planning”:

Watch all the video files and subscribe to the RSS feed.

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.
 

$84 Million Federal Grant To Boost Broadband Access In Tribal Areas

U.S. Commerce Secretary Gary Locke has announced a $84 million Recovery Act investment to help the Northwest Open Access Network (NoaNet) deliver new and enhanced broadband capabilities to some of the more remote regions of Washington state. The grant will finance the addition of 830 miles of fiber optic cable and eight new microwave sites to NoaNet’s existing high-speed network. Among other benefits, the project plans to directly connect the Jamestown S’Klallam Tribal Center, library, and clinic, and the Shoalwater Tribal center and clinic, as well as provide connection opportunities for the Makah Tribal center and clinic.

“This critical investment will expand high-speed Internet service access to Washington libraries and hospitals, and eventually homes and businesses, helping to make them full participants in today’s 21st century information economy,” Locke said. “Having access to the Internet’s economic, health and educational benefits will help to improve the quality of life in these communities.”

The Department of Commerce’s National Telecommunications and Information Administration’s (NTIA) Broadband Technology Opportunities Program (BTOP), funded by the Recovery Act, provides grants to support the deployment of broadband infrastructure, to enhance and expand public computer centers and to encourage sustainable adoption of broadband service.

“This grant will help NoaNet take a major step forward in extending its broadband network to rural and underserved areas in Washington, including tribal centers for the Makah, Jamestown S’Klallam and Shoalwater Bay Tribes on the Olympic Peninsula,” U.S. Rep. Norm Dicks said. “This was the goal of our effort 10 years ago to make available excess BPA fiber capacity for this publicly-operated, non-profit project to drive broadband access beyond the major cities in the Northwest.”

Another Tribal broadband project currently awaiting NTIA funding is the Washington Rural Broadband Cooperative (WA-RBC), a non-profit agency started by the Tulalip Tribes. The WA-RBC project is an extremely high bandwidth initiative which delivers 10 Gb/s service to community anchor points (schools, tribal centers, libraries, and chambers of commerce), and leverages significant investments already made by the Tulalip Tribes in a data center and fiber optic infrastructure that can extend to other tribes and rural communities.
 

Second Billion-Dollar Tribal Economic Development Bond Allocation Announced

The second billion-dollar tranche of Tribal Economic Development Bonds has now been allocated by the federal government, with the funding authorization being spread over 76 projects for Tribes throughout the country. The largest dollar allocation for any single project in this financing tranche is $30,000,000.00, which was authorized for five projects, with the remainder receiving smaller authorizations.

Examples of approved projects in the second allocation round include:

Campo Band of Mission Indians in California: $30,000,000.00 for Renewable Energy, Tourism, and Wastewater Facilities

Delaware Nation in Oklahoma: $27,253,437.90 for Retail, Industrial, Tourism, Housing, and Renewable Energy Facilities

Ohkay Owingeh in New Mexico: $22,913,488.65 for Refinancing, Recreational, Governmental, and Commercial Facilities

Yankton Sioux Tribe in South Dakota: $10,934,616.39 for Retail, Farming, Renewable Energy, Tourism, and Governmental Facilities

Confederated Tribes of the Umatilla Indian Reservation in Oregon: $5,330,048.86 for Health Facilities

Skokomish Indian Tribe in Washington: $1,822,436.05 for Refinancing

The complete list of Tribal projects authorized for bond issues in this second phase is available HERE.
 

 

New York Times: Twilight And New Moon "Sucking The Quileute Dry"

This site has commented previously on cultural issues arising from the blockbuster film Twilight and its recent sequel New Moon. This week the New York Times features commentary by Angela R. Riley regarding the economic impact of the film and book series on the Quileute Nation, whose members are portrayed as shape-shifting wolf people locked in a centuries-long battle with local vampires.

Ms. Riley is Associate Director of the American Indian Studies Center at UCLA. Her analysis of the economic circumstances of the Nation is succinct:

“Twilight” has made all things Quileute wildly popular: Nordstrom.com sells items from Quileute hoodies to charms bearing a supposed Quileute werewolf tattoo. And a tour company hauls busloads of fans onto the Quileute reservation daily. Yet the Tribe has received no payment for this commercial activity. Meanwhile, half of Quileute families still live in poverty.

Tribal Stimulus? South Dakota Sioux Left In The Cold

(Central Connecticut State University)

“They're out there melting snow and keeping a look out for any water they can use.”

“Schools have been out of session for a week and will likely be unable to open their doors for at least another week.”

“These events are showing just how painfully inadequate our emergency response capabilities are.”

In the midst of one of the worst winter storms in memory, the members of the Cheyenne River Sioux Tribe are struggling for survival. Located roughly 200 miles northeast of Rapid City, South Dakota, the Cheyenne River Reservation is home to 10,000 residents who have been without electricity and potable water for days. Worse still, the storms have critically damaged what little energy infrastructure the Tribe did have, making restoration of power and heat even more difficult. Freezing rain and wind have snapped off wooden power poles carrying the transmission wires. “Because of one ice storm, we had over 3,000 downed electrical lines and mass power outages," said Tracey Fischer, chief executive and president of First Nations Oweesta Corporation, a national nonprofit working on economic development in Native communities.

The problems from a lack of power in winter are compounded by the lack of running water. Although much has been said regarding the federal stimulus package and its components designed to assist Tribes with needed infrastructure, the Cheyenne River Tribe has for years asked Congress for funds to restore its ancient water system, which is decades overdue for an upgrade. The total cost would be about $65 million, but so far no allocation of federal funds has been made for the project.
 

Tribe Signs Landmark Union Labor Contract For Casino Dealers

The Mashantucket Pequot Tribal Nation has reached a tentative agreement with the United Auto Workers Union (UAW) for a labor contract and collective bargaining on behalf of 2500 of table-game dealers at Foxwoods Resort Casino in Connecticut. The agreement is unique both for its scale – Foxwoods is billed as the largest resort casino in the United States – and for the fact that it was negotiated in the context of Tribal law rather than federal labor law.

The agreement has several facets that differ significantly from typical union labor contracts. The Nation’s laws prohibit strikes by workers and lockouts by owners, so the contract does not contain a strike provision. In the event of a labor dispute that cannot be resolved through negotiation, the matter will be submitted to private arbitration for resolution. The contract provides an average 12 percent increase in dealers' wages over two years, changes the distribution of tips for dealers, includes programs to reduce repetitive stress injuries, and creates a 24-table smoke-free gaming pit for workers and customers who prefer a smoke-free environment.

For the UAW, the agreement is being heralded as a major victory in their union organizing efforts. "Working together, we proved casino workers can successfully exercise their right to have a union under tribal law," said UAW Region 9A Director Bob Madore. "Our settlement demonstrates what we have known all along: that tribal sovereignty and employee rights need not be inconsistent. We value the investment and jobs the Mashantucket Pequot Tribe has brought to Connecticut, and we look forward to promoting this exciting resort as a destination of choice for working families and union members across New England."

For the Mashantucket Pequot Nation, the agreement may provide a measure of financial predictability for its casino operations. The casino, by far the Nation’s largest revenue source, is behind in its debt repayments and has been working with creditors to restructure its financing. The agreement with the UAW sets wage and benefit rates for two years, and eliminates the potential for labor unrest or further legal battles with the union or the federal government.
 

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.
 

Podcast: Legal Issues For Native-Owned Small Businesses

Native Talk Radio has aired an hour-long program regarding legal issues affecting Native-owned small businesses, and the unique factors of conducting business in and around Tribal communities. Host Annie O’Brien interviewed Foster Pepper’s Native American Legal Services Chair Greg Guedel on start-up considerations, contracts, government procurement programs, legal disputes, and a range of other topics pertinent to Native business ventures.

Download the podcast HERE, on Foster Pepper’s iTunes page, or from the Native Talk Radio homepage.
 

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.”

Podcast: Details and Depth On The $3.4 Billion Cobell Native American Trust Lawsuit Settlement

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 Slope Native Association Launches Major Native Hospital Construction Project

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.”
 

Back To The Future? Canadian First Nation To Implement Land Allotment Policy

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.

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.
 

400 Years Later, A Church Apologizes For Abusing Native Americans

West End Collegiate Church, New York City

On Native American Heritage Day, the Collegiate Church officially apologized for massacring and displacing Native Americans 400 years ago.

"We consumed your resources, dehumanized your people, and disregarded your culture, along with your dreams, hopes, and great love for this land," the Reverend Robert Chase told members of the Lenape Tribe. "With pain, we the Collegiate Church, remember our part in these events."

The apology was offered in front of the Museum of the American Indian in lower Manhattan, where Dutch colonizers took up residence in Native lands near what is now Wall Street. The Collegiate Church was a fundamental part of spiritual life in the new colony, whose members subsequently expanded their territorial control and subdued the Native population by force.

During the ceremony Native music was featured, children exchanged gifts, and Reverend Chase embraced Ronald Holloway, Chairman of the Sand Hill Band of Lenape. "After 400 years, when someone says 'I'm sorry,' you say, 'Really?' " Holloway said. "There was some kind of uneasiness. But then you've got to accept someone's sincere apology; they said, 'We did it.' We ran you off, we killed you.'

The church plans to sponsor educational activities and exhibits to teach children history - including Native views on preserving the purity of the land taken over by the Dutch colonists.
 

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.
 

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.
 

Tribal Economic Development Featured On National Public Radio


This week the National Public Radio program “All Things Considered” airs a two-episode series on Tribal economic development in the Southwest. The programs highlight the diverse issues, challenges, and opportunities for Tribes in different locations and which possess different levels of resources. The program focuses on two particular Native economic development models: The Navajo Nation and The Salt River Pima – Maricopa Indian Community.

Interviews include:

Joe Shirley, Navajo Nation President

Martin Harvier, Vice President of the Salt River Pima – Maricopa Indian Community

Quannah Dallas, Salt River Pima’s Economic Development Manager

Brett Isaac, Shonto Community Development Corporation

Joseph Kalt, Director of Harvard University’s American Indian Economic Development Project

Greg Guedel, Chair of Foster Pepper PLLC’s Native American Legal Services Group


Part I of the program, focusing on the Navajo Nation, can be downloaded HERE.

Part II of the program, focusing on the Salt River Pima – Maricopa Indian Community, can be downloaded HERE.

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.
 

IRS Allocates First Billion In Tribal Economic Development Bonds

The first billion-dollar tranche of Tribal Economic Development Bonds has now been allocated by the federal government, with the funds being spread over 58 projects for Tribes throughout the country.  The largest dollar allocation for any single project in this financng tranche is $22,565,088.46, which was authorized for over 30 projects, with the remainder receiving smaller authorizations. 

Examples of approved projects in the first financing round include:

Confederated Tribes of the Warm Springs Reservation of Oregon: Water Infrastructure and Tourism Facility Improvements -- $22,565,088.46

Lummi Nation (Washington): Environmental and Transportation Infrastructure -- $22,565,088.46

Santee Sioux Tribe of Nebraska: Health Facility -- $13,539,053.08

Pueblo of Acoma (New Mexico): Manufacturing Facility -- $8,273,865.77

Mille Lacs Band of Ojibwe (Minnesota): Education Facility -- $6,279,393.17

The first tranche of bond authorization was significantly oversubscribed, with the IRS receiving many more applications for projects than the available funding could support.  In an unusual move, rather than reject certain projects completely, the IRS imposed an across-the-board percentage cut to nearly all projects that were approved.  As a result, many projects did not receive the full amount of funding sought, and Tribes may need to revise the scope of work to achieve completion with available funds.

The complete list of Tribal projects authorized for bond issues in this first phase is available here.

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
 

Cohesive Tribal Government Is Critical For Economic Development

(Ken Lambert/Seattle Times)

While the appropriateness of government intervention in private business is a hotly-debated topic around the world, a clear truth is emerging closer to home: cohesive and sound governance is a crucial element for economic development in Native American communities. The proof comes both from success stories such as Tulalip and Pechanga, as well as the cautionary tale currently playing out within the Snoqualmie Tribe.

The Snoqualmie Tribe regained federal recognition in 1999 and last November opened a showpiece casino a half-hour from downtown Seattle The casino, financed with $375 million in debt, was conceived as a means of bringing prosperity to the Tribe's approximately 600 members. Instead, political infighting has brought turmoil, reduced revenue, and uncertainty regarding the Tribe’s economic future.

The problems stem from socio-political divisions that divided the Tribe’s governing body and rendered it unable to function effectively. "They were a split council and would not come together for joint meetings off and on since May," said Judy Joseph, superintendent for the Bureau of Indian Affairs (BIA) Puget Sound Agency. "To maintain a government-to-government relationship, they have to be a viable Tribal government," Joseph said. "If there is any question about that, it causes red flags to go up, and they were split, they were not meeting."  In August, the Tribe's administrative offices were padlocked and some of its federal funds frozen. Elders stepped in to dissolve the council and take charge until new elections could be held — but they had no constitutional authority to do that. The Tribe was facing the prospect of the U.S. government assuming administrative control of the Tribal government. The BIA offered mediation this month, which resulted in reinstatement of the council that was in place before the disputed May election.

Meanwhile, the new casino has only been producing one-fourth of the revenue originally budgeted, and its operations are mired in administrative and regulatory problems. Unresolved federal audit findings could expose the Tribe to significant liability, and until recently federal funds allocations to Snoqualmie were frozen by the U.S. government. To address these significant issues, the Tribe's general membership will meet this month to consider election procedures and set a date for a new council election.

While dissension and differences of opinion are common for any political entity, the need for Tribes to maintain a solid, functioning government structure is of paramount importance for both political and economic purposes. Both the federal government and private investors are wary of contributing capital in places where leadership is in doubt, making it crucial for Tribes to demonstrate that their decision making bodies and procedures are stable.

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.
 

Accounting Ordered For Federal Trust Land Mismanagement

Eloise Cobell (Photo by Karen Kuehn)

A class-action suit regarding mismanagement of lands affecting 500,000 Native Americans recently got a boost, as the U.S. Court of Appeals for the D.C. Circuit has ruled in the Cobell litigation that the federal government must provide an accounting for land royalties owed to individual plaintiffs.

The lawsuit was filed 13 years ago and claims compensation for Native Americans for land-related royalties from the profits of oil, gas, grazing, and timber – commodities that were taken from Tribal lands that the government has managed in trust for Tribal members since the 19th Century. In 2008, U.S. District Judge James Robertson ruled that an accurate accounting by the Department of Interior was impossible, and awarded the group of plaintiffs $455 million, a fraction of the $47 billion+ being claimed in the lawsuit.

The U.S. Court of Appeals for the D.C. Circuit disagreed with this result, and found that the lower court erred in eliminating the government accounting. Chief Judge David B. Sentelle said the decision essentially allowed the Interior Department "to throw up its hands and stop the accounting." "Without an accounting, it is impossible to know who is owed what," Sentelle wrote. "The best any trust beneficiary could hope for would be a government check in an arbitrary amount."

The D.C. Circuit panel acknowledged that the task is complicated and the Interior Department should focus on the "low-hanging fruit", dealing with clear cases where compensation is owed. "We must not allow the theoretically perfect to render impossible the achievable good," Sentelle wrote.
 

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.
 

 

Stimulus Funds For Native American Community Water Projects Announced

The United States government has identified the following Native American and Alaska Native communities to receive $90 million in federal stimulus funds for water and wastewater projects:

Alaska - $3,918,750 for the native Village of Buckland for a lift station, sewer and forcemain, serving 105 homes.

Arizona - $1.14 million to the San Carlos Apache Tribe for regional water system improvements, serving 1,055 homes.

California - $6,371,470 to the Tule River Tribe for a wastewater treatment plant, serving 268 homes.

Kansas - $55,000 to Kickapoo Tribe to rehabilitate tanks, serving 200 homes.

Michigan - $190,600 to the Bay Mills Indian Community for pumphouse upgrades, serving 153 homes

Montana - $1,033,610 to the Crow Tribe for the first phase of a sewer lagoon, serving 564 homes.

New Mexico - $991,700 to the Mescalero Apache Tribe for a windmill water main, serving 612 homes.

New York - $349,000 to the St. Regis Mohawk Indians for water treatment plant upgrades, serving 1,146 homes.

North Carolina - $442,700 to the Eastern Band of Cherokee Indians to repair a leaking storage tank, serving 1,826 homes.

South Dakota - $1,010,300 to the Cheyenne River Sioux Tribe for backwash piping, serving 549 homes.

Utah - $139,000 to the Ute Indian Tribe to restore an old lagoon site, serving 70 homes.

Washington - $1,052,100 to Lummi Tribe for a water main, serving 1,053 homes.
 

Further program allocation details are available here.

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.”
 

IRS Provides Guidance And Applications For Tribal Economic Development Bonds

The IRS has just released Notice 2009-51 soliciting applications for and providing interim guidance on the $2 billion of Tribal Economic Development Bonds authorized in the American Recovery and Reinvestment Tax Act, and providing an application form for Tribes to use.

Tribal Economic Development Bonds can be used to finance on a tax-exempt basis anything that a State or local government could finance on a tax-exempt basis, whether with tax-exempt governmental bonds or tax-exempt private activity bonds, except for any portion of a building in which gaming is conducted or any property actually used for gaming and facilities not located on the reservation.

The IRS notice appears to establish that no portion of a building may be financed with these bonds if gaming is conducted in any other portion of the same building, even if those portions are physically discrete from each other. The notice provides a safe harbor under which a structure will be treated as a separate building if it has an independent foundation, independent outer walls and an independent roof. Connections such as doorways, covered walkways or other enclosed common area connections between two adjacent independent walls of separate buildings may be disregarded as long as such connections do not affect the structural independence of either wall.

Other notable points from the IRS guidance include:

The volume cap for these bonds will be allocated in two $1 billion tranches.

Applications for an allocation from the first tranche must be filed with the IRS by August 15, 2009, and the bonds must be issued by December 31, 2009.

Applications for an allocation from the second tranche must be filed with the IRS after August 15, 2009 and before January 1, 2010, and the bonds must be issued on or before December 31, 2010.

No single Tribal government may be awarded more than $30 million from the first tranche, but there is authorization for projects to be financed jointly. If the total of applications for the first tranche exceed $1 billion each award will be reduced pro rata so the total does not exceed $1 billion.

A similar limit is expected to apply to applications for the second tranche, but the IRS reserves the right to change or eliminate the limit.

Unused volume cap for these bonds would carry over to future years under a process to be determined at some future date.

 

For further information on accessing funding and developing projects through Tribal Economic Development Bonds, contact William Tonkin.

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.

Secretary Sebelius Promises Improved Health Care For Native Communities

HHS Secretary Kathleen Sebelius (mediamonarchy.com)

Health and Human Services Secretary Kathleen Sebelius says she will launch a new multiyear effort to improve health care for Native Americans, calling previous federal programs a "historic failure."  Recruitment of health care providers for reservations and preventive care for Tribal members are top priorities. "(We need to) begin to lay the groundwork with Congress right now to say here's where we need to be," Sebelius said. "I think often the Tribal issues just fade away."

Dating back to a treaty signed in 1787, the federal government assumed an obligation to provide Native Americans with health care on reservations. Yet the chronically-underfunded Indian Health Service only has about half of the money it needs, often leaving Tribes in remote areas with severely substandard care.

President Barack Obama campaigned notably in Tribal communities and promised better health care for Native Americans. The 2010 federal budget includes an increase of $454 million, or about 13 percent, for IHS funding and the stimulus bill signed earlier this year provided for construction and improvements to health clinics on reservations.

Nevertheless, Sebelius says the funding increase still falls well short of the IHS’ actual needs. "One of my challenges to the new head of the Indian Health Service is that we need a multiyear strategy, we need an end goal," she said. "The most severe disparity between quality care and what goes on with health outcomes is in the Native American population."
 

Major Tribal Economic Development Conference At Tulalip, 1-2 June 2009

Tribal leaders and business experts from across the nation will gather at the Tulalip Resort June 1-2 for the Northwest Native American Economic Development Conference.  Speakers include:

    • Mel Sheldon, Chairman, Tulalip Tribes of Washington

    • Chief J. Allan, Chairman, Coeur d'Alene Tribe

    • Cedric BlackEagle, Chairman, Crow Nation

    • Bob Garcia, Chairman, Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians

    • Ralph Sampson Jr., Chairman, Yakama Indian Nation

    • Edward K. Thomas, President Emeritus, Central Council Tlingit & Haida Indian Tribes of Alaska & Board of Directors - Sealaska Corporation

    • Jerry Lamb, Director of Economic Development, Confederated Salish and Kootenai Tribes

    • Kary Nichols, Director of Business Development, Colville Tribal Enterprise Corporation

    • Professor Ron Whitener, University of Washington Native American Law Center

The conference will cover a vast array of topics relating to the development of economic enterprises in Native lands, including:

    • Tribal Leaders Roundtable: Defining Economic Development

    • Tribal Economic Development Bonds: Strategic Financing for Business Ventures

    • Tribal Gaming Outlook: Planning for the Future

    • Reinventing your Casino & Resort Facilities

    • Housing & Infrastructure Projects on the Reservation

    • Renewable Energy Projects

    • Taking Care of Your Own: Community Member Wealth

For anyone interested in the development of Tribal economies, this seminar is not to be missed. 

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.
 

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."
 

 

 

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.
 

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.
 

From Native Lands To Corporate Pockets -- Navajo Coal Royalty Claim Rejected

Coal Mine In Navajo Territory (Youth Climate Movement)

Stating that “This case is at an end”, Supreme Court Justice Antonin Scalia closed the books on the multi-decade effort by the Navajo Nation to obtain a greater share of mineral royalties from the coal that is mined from their lands by non-Native corporations. The Nation’s claim was for back-royalties in excess of $600 million. The result: No acknowledgement of government wrongdoing, no renegotiation of the mineral lease terms, no more money for the Nation.

The Court’s holding in United States v. Navajo Nation dismissed the Nation’s assertion of a breach of fiduciary duty by the Secretary of the Interior, arising from his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964.  The lease allowed the corporation currently known as the Peabody Coal Company to engage in coal mining on a tract of the Navajo reservation in exchange for royalty payments to the Tribe. After the initial 20-year lease elapsed in 1984, the Nation requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds.  However, the actual new royalty rate was set significantly lower, under circumstances the Nation found highly suspicious. In particular, the Nation alleged that the Secretary, following improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Nation to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Tribal members’ best interests.

Although it did little to dispute the facts alleged in the Complaint, the Supreme Court rejected the Nation’s argument and claim. Scalia’s opinion holds that “The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. “ The Court ruled that the Nation was required to identify an explicit statutory provision that created a particular trust obligation, rather than relying on the long-standing principles on which the trust relations between the federal government and Native communities has been based.  “Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common law trust principles matter.”

This case and its ultimate decision highlights the continuing tension between Tribes and the Department of Interior regarding the management – both environmental and financial – of natural resources in Native lands. Although certainly a disappointment for the Navajo Nation and other Tribes seeking to realize fair value for their mineral wealth, the Court’s opinion actually provides a roadmap for correcting the apparent inadequacy of federal fiduciary responsibilities to Tribes. Native communities and their representatives should initiate federal legislation that clarifies and explicitly enumerates the obligations of the federal government in handling Tribal resources, and provides meaningful and efficient remedies for a breach of trust that damages or materially undervalues Native resources.

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.
 

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. 

IRS Ruling Provides Good News For Tribal Energy Bonds

Reservation Energy Projects - Oneida Tribe of Indians

A recent Private Letter Ruling by the IRS has held that for certain purposes related to government finance, Native American Tribes are to be treated like states. This allows Tribes to issue financially-attractive tax exempt bonds to finance projects related to “essential government functions”. Normally, commercial or industrial activity by Tribes is not considered an “essential” function of Tribal government, thereby precluding the issuance of tax exempt bonds for such activities. However, the IRS ruling states that an exemption to this rule exists for utilities “if the activity provides substantially all of its service on (a) tribe’s reservation. A utility-type activity includes the furnishing or sale of electrical energy, gas, water, or sewage disposal services.”

Stating that “we find the ownership, operation, and financing with proceeds of tax-exempt bonds of the facilities of municipal power utilities to be both sufficiently prevalent and sufficiently longstanding among state and local governments to be considered customarily performed by state and local governments.” Since Tribes and states are treated the same by the IRS in this context, the IRS held that Tribal utility projects may be financed with tax-exempt bonds when they are “not a commercial activity, (are) indistinguishable from public works projects...focus on benefits to local citizens, and are not in competition with other businesses.” The ruling also allows for some energy generated by Tribal projects to be sold to off-reservation users, so long as “the electrical power generated by (the Tribe) will be used to service the local population with only minimal amounts of power sold to customers in the immediate vicinity of the Reservation that are not adequately served by other power providers.”

At a time when interest in and opportunities for generating renewable energy on Tribal Lands are beginning to soar, the ability of Tribes to finance such projects with desirable tax-exempt investment vehicles will help raise necessary capital even in the current economic climate.
 

Health Care Reform Desperately Needed For Native Americans

Nespelem Tribal Health Center, Confederated Tribes of the Colville Reservation

Health care reform is touted as a top priority by the Obama administration, and one need only look to Tribal reservations to see the urgency. Treaty obligations and acts of Congress require the United States to provide health care for Native Americans, but in 2004 a Civil Rights Commission report found the government spent more per capita on health care for federal prisoners than for Native Americans.

In addition to the lack of direct funding, Tribal members suffer from a lack of access to rural doctors and clinics. As reported by The Seattle Times, two years ago Michael Buckingham of the Makah Tribe lost two fingers in a fishing accident in the waters off his reservation, in the isolated coastal town of Neah Bay, Washington. Buckingham needed physical therapy for a third finger that was severely injured, but couldn't afford the gas to make 70-mile trips to the closest therapy clinic in Port Angeles. "If I can't get it fixed, I'm just ready to have it cut off, because it's too painful," Buckingham said.

The lack of federal funding for health care has resulted in many Native Americans being forced to live with chronic pain, forgo prenatal care, and suffer from untreated depression. The Indian Health Service presently operates only 31 hospitals nationwide, less than one per state.  President Obama has proposed a $4 billion budget for the IHS, a $700 million increase. Yet with federal spending at an all time high and Congress focused on the country’s financial condition, it is uncertain how quickly new funds to improve Native health care will emerge.
 

The Law As A Weapon Against Alcoholism

 

In an effort to combat the ravages of alcoholism, the Tulalip Grassroots Committee, an organization of members of the Tulalip Tribes, will soon present an initiative to the Tribe’s General Council calling for a ban on the sale of beer, wine, and other alcohol anywhere outside the Quil Ceda Village shopping area on the Tulalip Indian Reservation. The new legal policy would also prohibit restaurants and businesses within the reservation from advertising alcohol on signs. If the initiative is approved, the state-run liquor store near the Tulalip Casino would be forced to remove alcohol advertising signs from its window, and two stores near the reservation's western edge would no longer be allowed to sell beer and other alcohol.

According to the Centers for Disease Control and Prevention, nearly 12 percent of all Native American deaths are linked to alcohol, roughly twice the rate of alcohol-related deaths for the rest of the U.S. population. "Indians have a lifelong battle with alcohol," said Les Parks, who leads the Tulalip Grassroots Committee.

Tribes across the country have previously attempted to utilize legal measures to reduce alcohol consumption by Tribal members, with mixed results. In 2000 the Yakama Nation banned alcohol sales on Tribal lands and unilaterally imposed a tax on alcohol sales on private land within the reservation, drawing fury from non-Native business owners and the State of Washington, which holds a monopoly on the sale of bottled liquor. The history of Prohibition within the United States reflects the difficulty of using the law alone to battle socio-medical problems on a broad scale. While legal measures may heighten awareness of issues and raise obstacles to obtaining alcohol, the complexity of alcoholism in Native communities will undoubtedly require the concerted effort of legal scholars, social scientists, and traditional healers to resolve.
 

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.

Mining Leases On Tribal Lands Produce Cash And Questions

 

(Crow Nation gas well - Reuters)

After years of legal wrangling, the Anadarko Agency office of the Bureau of Indian Affairs recently held the largest-ever auction of oil and gas mining leases on Tribal land. The auction offered mining lease rights on over 1500 plots located on Kiowa, Comanche, Apache, Fort Sill Apache, Caddo, Delaware, and Wichita Tribal and allotted lands. The sale netted just over $6 million in purchases, with the majority of the lease rights going to the Sodak, Marathon and Chesapeake oil companies.

Revenues like this are certainly much-needed in Native communities, but the money does not go directly into Native hands. The funds will be managed by the BIA in trust for the Tribes whose lands underlie the mining leases. As the claims in the Cobell litigation highlight, the fiduciary relationship between the BIA and Tribal members has been marred by allegations of mismanagement and breach of trust.  It will be incumbent upon Tribal governments and their members to monitor the revenue flow from these leases to ensure the funds are properly used for Tribal needs. A further question arises regarding future revenue streams from the mineral resources the leases are designed to produce. Whether Tribes will receive royalty payments from wells that begin pumping oil and natural gas on their lands – and how much money can be expected – is undetermined at this time.

Indian trust beneficiaries who have questions about this sale may contact their fiduciary trust officer using the interactive map on the OST Web site , or call OST’s Trust Beneficiary Call Center at 1-888-678-6836
 

Tribal Energy Development - Learning The Rules For Producing The Power

(Solar Panels for Tribal Housing, Romona Band of Cahuilla Indians, Anza, California)

When it comes to developing energy resources, many Tribes appear to be in the right place at the right time in 2009. Native communities blessed with wind, water, solar, or geologic resources are likely to see broad demand for their development, as the United States pushes for increased domestic energy production in general and of alternative/renewable sources in particular. The Department of Energy is actively seeking Tribal participation in energy development, the federal economic stimulus packages currently being debated in Congress contain funding and tax credits for energy projects on reservations, and private entities are realizing and pursuing the untapped energy sources present in many Native lands.

While the potential benefit to Tribes and the rest of the country from this energy drive appears vast, realizing that potential requires navigating various federal laws and regulations. Recent federal legislation such as the Indian Tribal Energy Development and Self-Determination Act, 25 U.S.C. §§ 3501–3506 (ITEDSA) sets forth rights and procedures for Tribes to pursue development of energy resources on their lands. Through ITEDSA, Tribes can negotiate energy resource agreements (“TERAs”) with the Department of the Interior, which provide authorization for Tribes to pursue energy development and transmission activities of all kinds. The newness of ITEDSA – the final regulations for which came into effect in 2008 – presents both a challenge and an opportunity for Tribes. Tribes that have a firm grasp of both the nature of their natural resources and the rules for negotiating TERAs can put themselves in the forefront of new energy production, thereby producing a vital resource for their members and new revenue from power sales to outside entities.

Understanding the federal laws and procedures for energy development is critical for Tribes not just to speed up the development process, but also to protect their legal and resource rights. Professor Judith Royster’s recent article regarding Tribal sovereignty and implementation of ITEDSA highlights previous instances when Tribes lost hundreds of millions of dollars in potential energy revenues, primarily due to having less information than their non-Tribal lessees regarding the true nature and extent of the Tribe’s natural resources. While the provisions of ITEDSA are designed to help prevent these egregious scenarios and create a “level playing field” for all parties, it is crucial for Tribes to be knowledgeable of their rights and opportunities -- and to be proactive in exercising them.
 

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?
 

Can Spirituality (And The Law) Save The Environment?

(photo: Genesis Realty)

The San Francisco Peaks in Northern Arizona are considered sacred lands by more than a dozen Tribes in the region. Stunningly picturesque, the Peaks are also home to the Arizona Snowbowl – a popular ski resort that attracts thousands of people to its slopes each year. Tourism in sacred Tribal lands is often a source of socio-political tension, but when the proprietors of the Snowbowl sought a special permit from the US Forest Service to begin spraying the Peaks with artificial snow made from treated sewage water, the Navajo Nation and other local Tribes were moved to action.

Instead of utilizing typical principles of environmental law, the Tribes took a different approach. They petitioned for an injunction against the Snowbowl under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, a federal law enacted in 1993 to prevent government actions that would substantially burden a person's free exercise of religion. The RFRA prohibits the federal government from placing a “substantial burden” on a person’s exercise of religion unless the government’s action furthers a “compelling government interest” or “is the least restrictive means of furthering that compelling government interest.” It also reinforces the “strict scrutiny” test for any governmental action that would tend to impinge on religious freedom – this is the most stringent and demanding standard for governmental actions, requiring that any the action be closely tied to a compelling government interest in order to be legal.

The Tribes argued that spraying “snow” made of treated sewage effluent on the sacred Peaks was both an unreasonable interference with their religious practices and not sufficiently related to a compelling government interest. Since the Snowbowl is located on land controlled by the US Forest Service, the issuance of a permit for the artificial snow is a governmental action subject to scrutiny under the RFRA. The Tribes succeeded in convincing a 9th Circuit panel that the spraying was a violation of the RFRA, but the decision was reversed by the full 9th Circuit Court of Appeals. The Tribes then petitioned the US Supreme Court and are currently awaiting review.

As global climate change increasingly calls into question modern pollution-producing lifestyles, it is interesting to ponder ancient Native philosophies regarding the environment. In Pre-Columbian times, Native American Tribes created communities that lived in remarkable harmony with nature. The Anasazi cliff dwellings in Canyon de Chelly provide a striking example of people building and operating a society based on knowledge of and respect for their natural surroundings. Those familiar with Native American culture know that this approach was based on something far deeper than mere geographic expediency; Native people viewed the earth as sacred, and embraced its preservation as a spiritual imperative.

Using legal tools like the RFRA, contemporary Native communities can work to heighten awareness and protection of lands that have ritual and religious significance – and at the same time make positive contributions to the environment for the benefit of all people.

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.

Congress Seeks $2 Billion For Tribal Economic Development Bonds

The House and Senate are closing in on final draft legislation that would authorize the issuance by Tribes of up to $2 Billion worth of tax-exempt government bonds for economic development projects. The provisions are included in the “American Recovery and Reinvestment Tax Act of 2009” (H.R. 598) sponsored by Representative Charles Rangel of New York, a broad package of stimulus measures and tax credits designed to spur public infrastructure works and economic growth throughout the country.

Section 1532 of the Bill provides for federal support to “Indian Tribal governments” to issue up to $2 Billion in tax-exempt “Tribal economic development bonds”. The bonds will pay interest to investors who purchase them, but that interest will not be subject to federal taxes. The revenue generated by Tribes through the sale of these bonds may be used to provide capital for Tribal infrastructure projects and essential governmental functions. Tribes will not be permitted to apply such revenues to “any portion of a building in which class II or class III gaming is conducted”, nor for “any facility located outside the Indian reservation”.

The use of tax-exempt bonds by Tribal governments has increased significantly in recent years, as they provide both needed capital for Tribes and are attractive securities for tax-conscious investors. If signed by the President and fully implemented, H.R. 598 will provide significant assistance to Native communities in accessing capital markets for development projects in 2009.

Obama Put To Early Test By Tribes

The new Secretary of the Interior Ken Salazar recently told Tribal leaders in Washington D.C. that "First Americans will have their place at the table in the Obama administration."  Less than 24 hours after President Obama took office, Tribes throughout America have put that policy to the test.

The Northwest Indian Fisheries Commission, which represents 20 Tribes in the Pacific Northwest including the Tulalip, Stillaguamish, and Sauk Suiattle, submitted a 16-page request to President Obama for additional funding and the adoption of a formal policy supporting Tribal management of natural resources. The Commission's request also seeks:

1. The issuance of an Executive Order reaffirming the government-to-government relationship between Tribes and the US government.

2. An additional $12 million per year in funding for the Commission and an extra $4.5 million per year for the Columbia River Inter-Tribal Fish Commission.

3. Restoration of expansive water rights to Tribes; and

4. Enhanced legal protections for Tribal resources such as salmon and shellfish.

The Commission’s requests were followed closely by a letter to the President from a group of US Senators representing Native constituencies throughout the country, seeking significant new funding for infrastructure and social/educational programs in Native communities. The Senators’ requests included:

• $1.2 billion for Tribal health facilities construction and support;

• $360 million for construction of Tribal justice infrastructure and support;

• $568 million for construction of road and bridge projects on reservations;

• $658 million for construction of Tribal schools and colleges;

• $50 million for housing construction, weatherization, and heating in Native Communities;

• $80 million for Native job training and business development;

• $600 million for water infrastructure development in Tribal lands;

• $4.4 million for energy development on reservations; and

• $50 million to address Tribal land fractionation.

The proposal was submitted by Senators Tim Johnson, D-S.D., Byron Dorgan, D-N.D., Jeff Bingaman, D-N.M., Mark Begich, D-Alaska, Thad Cochran, R-Miss., Maria Cantwell, D-Wash., Jon Tester, D-Mont., Tom Udall, D-N.M., Ron Wyden, D-Oregon, Kay Hagan, D-N.C., Lisa Murkowski, R-Alaska, Daniel Akaka, D-Hawaii, Roger Wicker, R-Miss., and Chris Dodd, D-Conn.

During his campaign, President Obama stated:

The American Indians I have met across this country will be on my mind each day that I am in the White House. You deserve a president who is committed to being a full partner with you; to respecting you, honoring you and working with you every day. That is the commitment I will make to you as President of the United States.”

On the strength of such pledges, Obama received the endorsement of over 100 Tribal leaders throughout America. The coming weeks and months will reveal the true strength behind these promises, and provide a realistic view of the future for Native communities.
 

DOE Asks Tribes To Help Develop Alternative Energy Sources

The Department of Energy (DOE) has issued a Request For Information seeking feedback from Tribes and other parties interested in the deployment of renewable energy in Indian Country in the contiguous 48 States. The information will be used by DOE for internal planning and decision making under the federal Tribal Energy Program. Although Tribal Trust land comprises 5% of the land area in the United States (55.7 million acres) and contains an estimated 10% of all energy resources in the United States, (both conventional and renewable), less than a few hundred megawatts of renewable energy has been developed in Indian Country. Moreover, most of those are land lease deals as opposed to Tribes having ownership positions in the projects.

The information sought in the RFI is intended to assist DOE in determining barriers to renewable energy deployment and the most beneficial and efficient way for DOE to help accelerate the deployment of renewable energy in Indian Country. Energy development in Indian Country holds the possibility of providing energy to power local economic development, supporting the growing Native American population, creating businesses resulting in local jobs, or creating a revenue stream to help overcome some of the poverty that exists in many Native communities. Importantly, energy produced locally can also support Tribal sovereignty.

The Emergency Economic Stabilization Act of 2008 extended Production Tax Credits (PTCs) for one year and broadened the eligible technologies, along with provisions for the long-term extension of Investment Tax Credits (ITCs) for renewable energy projects. As non-taxable entities, however, Tribes are not eligible for these credits unless they partner with a for-profit entity with tax liability. This restriction limits the ability of Tribes to have ownership positions in Tribal renewable energy projects. Further, the extension of PTCs and ITCs may limit renewable energy hardware availability and transmission capacity even for those Tribes that have investment funds.

Legislation has recently been introduced which may have enabled Tribes the ability to have ownership positions in energy development in Indian Country by allowing Tribes to transfer their PTCs to a taxable partner. These bills, however, have not been enacted. Hence, current Federal policy has not supported Tribally-owned renewable energy project development from a tax-mitigation perspective. Tribes now have an opportunity to highlight these discrepancies to the DOE and provide advice on how to eliminate current obstacles to energy development on Tribal lands.

Tribes and other interested parties should send responses to the RFI (one attachment only) via email with the title “RFI Response” to tribal@go.doe.gov. Responses should be submitted in Microsoft Word or PDF as an email attachment to the address above and received no later than 8:00 PM Eastern Daylight Time on February 28, 2009.
 

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.
 

Parting Shot? Bush Administration Removes Uranium Mining Restrictions Near Tribal Lands

Sweetwater Oit

Just weeks before the new Presidential administration takes over in Washington DC, the federal Bureau of Land Management eliminated a regulation that provided congressional committees the power to require the Secretary of Interior to set aside public lands from uranium mining. The Bush administration’s decision may result in uranium mining on public lands near the Grand Canyon, in areas that are the traditional and spiritual home for numerous Tribes. Given the renewed interest in uranium mining as a source of alternative energy, Tribes in the Western United States are expressing concern about the potential environmental risks to their lands.

Charles Vaughn, chairman of the Hualapai Tribe, had previously offered pointed testimony on the issue before the House Subcommittee on National Parks, Forests and Public Lands and the House Subcommittee on Energy and Mineral Resources:

“Although we understand that this industry may provide clean energy for the world market, it is the aftermath of this endeavor that is of grave concern to my people. We do not want to see the byproducts of uranium production stored in places like Yucca Mountain for the remainder of our lifetimes and leave others with the concern of the potential harm this would bring to our progenitors Grandfather Water and Mother Earth. We as an indigenous people are taught to respect and hold sacred those elements that provide the essence of our life. It is out of this belief that we share our concerns for proposed uranium mining near Grand Canyon National Park.”

Rep. Raúl M. Grijalva, D-Ariz., authored a resolution through the House Committee on Natural Resources that required the Department of Interior to protect lands around Grand Canyon National Park from uranium mining. He expressed regret at the administration’s action to override the resolution:

“I am disappointed that the Interior Department under the Bush administration has chosen to throw out federal rules it finds inconvenient to its goal of allowing uranium mining within a few miles of our nation’s premiere National Park, the Grand Canyon. This last minute change puts at risk the health of millions of citizens of the West who rely on the Colorado River of the Grand Canyon for their drinking water supply, as well as visitors to the park and Tribal communities within and around the Grand Canyon.”

In contrast, Rep. Don Young, R-Alaska and the ranking member on the House Natural Resources Committee, applauded the new policy. “We cannot afford to have more of our nation’s vital minerals and energy supplies to be locked up by the ill-advised actions of a single Congressional Committee,” said Young.
 

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.”
 

Tribal Housing Authorities Sue HUD Over Funding Cuts

A growing number of Native American housing agencies are initiating legal action against the U.S. Department of Housing and Urban Development and its Office of Native American Programs, claiming the annual block-grant funds the Tribes receive from the agency under federal law have been illegally reduced. Over 30 reservation-based housing agencies are currently suing HUD to recover funds allocated to Tribal housing programs which HUD then retracted after conducting financial audits.

The first Tribal housing agency to sue HUD over the issue was the Fort Peck Housing Authority, which filed an action in the 10th Circuit in January 2005. The new lawsuits were prompted by Congress’ reauthorization of the Native American Housing and Self-Determination Act earlier this year. The legislation, which was signed into law by President Bush on Oct. 13, placed a November 28, 2008 deadline for Tribal housing authorities to file suit against HUD for any earlier actions by the agency that are subject to dispute.

The Tribal agencies assert that HUD has unlawfully “recaptured” funds allocated to Tribes, and thereby significantly impaired the housing authorities’ ability to provide housing for Tribal members. The agencies allege that HUD recaptured funds by reducing future Native American Housing and Self-Determination Act allocations to Tribal housing agencies in light of internal audit findings the early 2000s.

Recent new plaintiffs suing the department include the Sicangu Wicoti Awanyakapi Corporation of Rosebud, S.D.; Oglala Sioux (Lakota) Housing of Pine Ridge, S.D.; Turtle Mountain Housing Authority of Belcourt, N.D.; Winnebago Housing & Development Commission of Winnebago, Neb.; Lower Brule Housing Authority of Lower Brule, S.D.; Metlakatla Housing Authority of Annette Island, Alaska; Spirit Lake Housing Corporation of Ft. Totten, N.D.; and the Trenton Indian Housing Authority of Trenton, N.D..
 

Bureau of Indian Affairs house, Pine Ridge Reservation, South Dakota