Coastal Tribes Scoring Export Win With Geoducks

Bloomberg BusinessWeek magazine is featuring Tribes in the Puget Sound area that have successfully captured export markets in China and elsewhere with a unique product: the massive Geoduck clam. This unusual natural resource has become highly profitable due to growing consumer demand in Asia, and effective management and marketing by coastal Tribes has created a flourishing multi-million dollar industry. 

Foster Pepper Native American Group attorneys Greg Guedel and Ron Whitener are quoted in the article, which discusses the treaties and court decisions that affirmed Tribes' rights to Geoducks and other marine resources in their traditional lands. After solidifying their legal rights, Tribes that harvest Geoducks implemented strong monitoring and environmental protection for key marine areas, helping ensure the vitality and sustainability of this industry. With Geoduck habitat confined to the Northwest coast and a small area in California, Puget Sound Tribes are shaping the growth of this beneficial industry from a dominant market position.

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.
 

Robert Anderson Named Oneida Nation Visiting Professor of Law at Harvard

Robert Anderson, associate professor of law at the University of Washington and Director of the University’s Native American Law Center, will be the Oneida Nation Visiting Professor of Law at Harvard Law School for the next five years.

“I am delighted that Bob has accepted our invitation,” said Dean Martha Minow. “He will bring so much to HLS: his strong knowledge of the law, his extensive and significant practice experience both in government and in the private sector, and his ability to create and run the Native American Law Center at the UW, which includes a leading clinical component.”

Nationally renowned for his expertise in Native American legal issues and for his excellence in teaching, Anderson has taught federal Indian law, advanced courses and seminars in Indian law, public land law, property law, and water law at the University of Washington since 2001. He will retain his position at the University of Washington while teaching at Harvard.

“It’s a tremendous honor for me to join the Harvard law faculty as a visiting professor,” said Anderson. “I am most pleased that Harvard Law School recognizes the importance of the study of federal Indian law and I look forward to being part of this great university.”

Anderson is a co-author and a member of the Executive Editorial Board of Cohen’s Handbook of Federal Indian Law, as well as a new casebook in the field, American Indian Law: Cases and Commentary. He has published a number of law review articles in the field, including most recently, a forthcoming article on water rights in the California Law Review; “Alaska Native Rights, Statehood and Unfinished Business,” 43 Tulsa Law Review 17 (2007); “Indian Water Rights and the Federal Trust Responsibility,” 46 Natural Resources Law Journal 399 (2006); and “Indian Water Rights: Litigation and Settlements,” 42 Tulsa Law Review 23 (2006).

An enrolled member of the Bois Forte Band of the Minnesota Chippewa Tribe, Anderson serves as Chief Justice of the Court of Appeals of the Pokagon Band of Potawatomi Indians and as an appellate judge in the Northwest Intertribal Court of Appeals. He holds a B.A. from Bemidji State University and a J.D. from the University of Minnesota Law School.

Survey Launched For New Native American Law Journal

The Center for Indian Law and Policy at Seattle University School of Law is in the process of starting an online American Indian Law Journal. This project is designed to enhance students' legal education by providing them with an opportunity to develop and perfect their research, writing and analysis skills. The journal will consist of a mixture of professors’, practitioners’ and students' legal analysis and commentary on current issues and policy within the American Indian legal practice. The online journal will serve as a great resource for students and professionals who have an interest in contemporary American Indian legal issues.

In order to gauge interest in the online journal, the Center has compiled 7 questions which are listed HERE.  Please take a moment to click on the link and respond to the survey, as your answers will have a big impact in the development of this much-needed legal resource.

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."
 

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.
 

This Week: Tribal Non-Profit Conference In Seattle

This week in Seattle, Foster Pepper PLLC’s Native American Legal Services Group partners with the Washington State Bar Association’s Indian Law Section, WAACO, the Northwest Justice Project, and the Potlatch Fund to present the all-day legal seminar:

Nonprofit Law in Indian Country
Wednesday, March 24, 2010
9:00 a.m. – 4:00 p.m.
Foster Pepper PLLC
1111 Third Avenue, Suite 3000
Seattle, Washington 98101
www.foster.com

 Discussion topics include:

Incorporation and Other State Law Issues

Application for Tax Exempt Status

Compliance Issues for Public Charities

Fostering Nonprofits in Indian Country

Nonprofit Law in Indian Country

Cultural Awareness while Representing Native Americans

The program offers CLE credit for practicing attorneys, and podcasts of the sections will be available on this website following the seminar. Download the registration information HERE, or contact Jean Seeley at jeans@nwjustice.org or 206-464-1519, ext. 631.
 

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.
 

Tribal Non-Profit Organizations Seminar - 24 March 2010 In Seattle

Wednesday, 24 March 2010 is the date for a full-day seminar on developing and operating non-profit organizations in Native communities. Presented in partnership by the Washington State Bar Association’s Indian Law Section, Washington Attorneys Assisting Community Organizations, the Native American Unit of the Northwest Justice Project, and Foster Pepper PLLC, the seminar will cover numerous topics to assist those interested in forming charitable and other non-profit organizations, including: 

  • Incorporation and Other State Law Issues
  • Application for Tax Exempt Status
  • Compliance Issues for Public Charities
  • Fostering Non-Profits In Indian Country
  • Cultural Awareness In Dispute Resolution

Program and registration forms are available HERE, and podcasts of the seminar presentations will be available on this website after the program.
 

Gonzaga University Hosts Major Tribal Law Conference -- 18 March 2010

On 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.  Registration information is available HERE.  The conference itinerary and speaker list includes:

Thursday, March 18, 2010
8:00 a.m. Registration and Coffee

8:30 a.m. Introduction and Conference Overview
George Critchlow, Acting Dean, Gonzaga University School of Law, Spokane, WA
Juliana C. Repp, Esq., Chair, SCBA ILS, Spokane, WA
Moderator
Jessica Lee-Domebo, Esq., Chair Elect, SCBA ILS, Spokane, WA

8:40 a.m. The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts; status of Washington state programs)                                                                                                                                             Lorraine Parlange, Kalispel Tribal Attorney
Ricki Peone Haugen, M.S.W., Indian Child Welfare Expert, Spokane, WA
Buffy Nicholson, Social Worker III, CFS, Colville Tribes
Brandelle Whitworth, General Counsel, Shoshone-Bannock Tribes
Jodi Felice, Assistant Attorney General for State of Washington
 

10:15 a.m. Break (hosted by Crowell Law Offices)

10:30 a.m. Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)
Juliana C. Repp, Attorney at Law, Spokane, WA
Trudy Flamand, Chief Judge, Colville Tribal Court
Suzanne Ojibway Townsend, Chief Judge, Confederated Tribes of the Grande Ronde Community of Oregon Tribal Court
Winona Tanner, Chief Judge, Confederated Salish and Kootenai Tribal Court

11:45 a.m. Lunch

12:45 p.m. Labor and Employment Law Issues for Tribes
(FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)
Greg Guedel, Foster Pepper, PLLC
Julie Kebler, Foster Pepper, PLLC
Scott Wheat, Crowell Law Offices

2:00 p.m. Break (hosted by the Kootenai Tribe)

2:15 p.m. The Spokane River – Keeping it Clean: Issues Regarding Multi-Jurisdictional Regulatory Oversight
Michael Chappell, Esq., Director of the Environmental Law Clinic, Gonzaga University School of Law
Rick Eichstaedt, Esq., Spokane Riverkeeper, Center for Justice
Brian Crossley, Water and Fish Program Manager, Spokane Tribe of Indians

3:30 p.m. Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law
Brian McClatchey, In-house Counsel, Coeur d’ Alene Tribal Casino

4:30 p.m. Adjourn
4:35 p.m. Meeting and Elections for the Spokane County Bar Association, Indian Law Section
5:00 p.m. Reception hosted by Gonzaga University School of Law

 

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.
 

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.
 

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.
 

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.

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.
 

Major Tribal Law Conference In Seattle May 8th

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

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

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

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

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

Snoqualmie Members Overturn Banishment In Federal Court

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

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

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

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.
 

AALS Honors Professor Ron Whitener

Picture of Ron  Whitener

The Association of American Law Schools has selected Professor Ron Whitener as the 2009 recipient of the M. Shanara Gilbert “Emerging Clinician” award for excellence in clinical legal education. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at University of Washington School of Law, is Of Counsel to the law firm of Foster Pepper PLLC in Seattle, and serves as Chief Judge for the Confederated Tribes of the Chehalis.


The AALS award announcement states:

Through the Tribal Court Criminal Defense Clinic, Ron Whitener has made access to justice a reality for countless clients and has helped to train a new generation of advocates for American Indians. For many American Indians, the Tribal Court Criminal Defense Clinic is the only source of representation for those facing criminal charges because tribal courts are not required by law to provide legal representation. Professor Whitener saw this pressing need, started this clinic, and has helped to expand its reach through fundraising. In addition, Professor Whitener has helped to build the clinical program at University of Washington and has been a resource to other clinical programs. Professor Whitener also is an engaged scholar, authoring or co-authoring three journal articles focused on legal and health issues affecting American Indians.

 

Professor Whitener is actively involved in American Indian legal issues. He began his career as Legal Counsel to the Squaxin Island Tribe, of which he is a member, and he has done lay advocate and other legal training for nearly a dozen other tribes in addition to direct representation of clients. He frequently speaks about treaty rights, tribal jurisdiction, and other legal issues affecting American Indians. He has also promoted international clinical legal education efforts through his collaboration with the Afghan Legal Educators Program, a program of the Asian Law Center at the University of Washington. Afghan law faculty participating in that program visited tribal courts and attended meetings with faculty and students in the Tribal Court Public Defense Clinic.

 

The M. Shanara Gilbert Award will be presented at the Conference on Clinical Legal Education at a special ceremony on Friday, May 8, at 9:00 a.m., in Cleveland, Ohio. We look forward to seeing you in Cleveland and honoring Professor Whitener for his creativity in addressing a pressing legal need for an underserved community and his outstanding contributions to clinical legal education.

Northwest Tribes Sue To Protect Salmon

Click for a bigger picture!

Salmon-friendly culvert - Thurston County, Washington

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

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

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

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

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.
 

Gonzaga University Launches Native American Law Program

Gonzaga Law School (November.org)

Under the leadership of Professor Jay Kanassatega, a new Federal Indian Law Program has been created at Gonzaga University's law school. The program is designed to foster the development of both future attorneys and Native governmental leaders. For law students, the program will provide intensive instruction and practical experience in legal matters affecting Native communities. For Tribal governments, the program focuses on analysis and development of effective policies and their interaction with the national political system. The new Federal Indian Law Clinic, created in partnership with the Kalispel Tribe, offers Gonzaga students the opportunity to handle active legal matters in Tribal and state courts. The program’s next goal is the creation of the Institute for Development of Economic Policy for Indigenous People, which will focus on furthering economic self-reliance for Native people. The program will also be partnering with private law firms and other entities to take on federal cases of national import to Tribes and their members.

Professor Kanassatega comes to Gonzaga from private practice with the firm of Leonard, Street and Deinard in Minneapolis, where he focused on complex commercial litigation on behalf of Tribes and commercial entities. He previously served as the first Solicitor General of the Non-Removable Mille Lacs Band of Ojibwe, and was instrumental in helping the Band design, draft legislation, and implement the first separation-of-powers Indian government in Minnesota, including the Band's first court system. Prior to serving as Solicitor General, he served the Band as its Commissioner of Judicial Affairs, administered its Office of Management and Budget and served as its Economic Development Planner.

Associate Professor George Critchlow summed up the impetus behind the University’s new program. “Here at the law school we’ve been aware that we’re surrounded by tribes. It seemed to us this was a logical place to have an Indian law program and to put more emphasis on training students, both Native as well as non-Native, about the legal needs of the tribes and individual Natives to equip them with not only theoretical knowledge, but some of the skills and cultural information that would be useful in terms of being effective lawyers in representing Indian interests.”
 

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.
 

Washington State Extends Sentencing Enforcement To Tribal Lands

In a reversal of the decision of the state Court of Appeals, the Supreme Court of Washington has ruled that prohibitions entered against a Tribal member in civil court sentences can be enforced by the state on Tribal lands. In State v. Cayenne, a prohibition against the defendant’s use of gillnets for fishing in state rivers was enforced when he subsequently used a gillnet within his Tribe’s territory.

Gerald Cayenne is an enrolled member of the Chehalis Indian Tribe, which has its reservation in southwest Washington. The Chehalis Tribe enjoys an exclusive right to fish within its reservation boundaries. As a non-treaty Tribe, Chehalis members are subject to state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers alleged that Cayenne unlawfully used gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, the State charged him with two counts of felony first degree unlawful use of nets to take fish, and a jury convicted him on one count.

As part of Cayenne's eight-month sentence, the trial court prohibited him from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007).

Neither party disputed the power of the trial court to impose crime-related prohibitions on non-Tribal lands. However, Cayenne argued that the trial court lacked authority to extend the prohibition to his activities within the boundaries of the Chehalis Indian Reservation. This position was based on the opinion in State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), which held that “the non-treaty fishing rights of the Chehalis Tribe are subject only to reasonable and necessary conservation regulations and that burden is on the State to demonstrate the regulation is reasonable and necessary.” Under this standard, it was argued that the state did not meet its burden of proving a connection between Mr. Cayenne’s gillnetting and a legitimate conservation concern, and therefore the state had no legal basis for regulating Cayenne’s conduct in waters running through Chehalis lands.

The state Supreme Court rejected this approach. The Court held that :


“the crime-related prohibition on gillnets is merely a sentencing condition placed on a convicted felon (who happens to be a tribal member) for an off-reservation crime. Notwithstanding Stritmatter, the defendant was personally before the trial court and subject to its full authority, which includes crime-related prohibitions. Limiting the trial court's sentencing authority, as Cayenne requests, would create the unwanted result of permitting tribal lands to be havens for criminals avoiding justice after violating state laws. As such, we hold when sentencing a tribal member for an off-reservation crime, the trial court may impose crime-related prohibitions to the extent they serve the purpose of sentencing and the crime related-prohibitions follow the individual during the prohibition's validity.”

The Cayenne decision raises significant jurisdictional and sovereignty questions, as well as issues of basic equity. The holding extends state court authority over the conduct of Tribal members on Tribal lands, yet Tribal Courts still possess little to no legal authority to punish non-Native actors who commit crimes within Tribal territory. It also impacts federal treaty rights negotiated between the Tribes and the US government (e.g. the right of Tribes to fish their waters according to their custom), and the extent to which concurrent jurisdiction can be used as a basis for increased state control over Tribal activity.

 

Washington State Moves To Protect Tribal Shellfish

A pollution-control agreement between the State of Washington and cruise lines operating in the waters off Western Washington has been expanded to protect shellfish beds, and could become state law during the next year.  Coastal Tribes located near Puget Sound utilize shellfish for food, economic development activities, and cultural purposes.  The state’s prior agreement with the cruise lines allowed cruise ships to dump raw sewage near the coast, posing a significant threat to the natural habitat and the quality and quantity of Tribal shellfish harvests.

The revised agreement prohibits cruise ships carrying 250+ people from releasing sewage within 1/2 mile of commercial or Tribal shellfish beds, requires the installation of pollution monitors to detect discharges, and implements mandatory and immediate reporting requirements for improper discharges. If state lawmakers turn the agreement into law during the next legislative session, cruise ships could face fines and other penalties for not respecting the Tribal shellfish harvest.

 More information on the agreement can be found at the Northwest Indian Fisheries Commission