Another Deadline For Cobell Settlement Approval To Expire

Despite a July 9 deadline from the parties, approval by Congress of the landmark settlement in the Cobell v. Salazar Native trust asset case is not imminent.  The tax-related legislation to which the approval amendment was attached has stalled in the Senate, and the recent death of Senator Robert Byrd made passage of the bill by the latest deadline essentially impossible. 

A half-dozen deadlines set by the Cobell legal team have now come and gone, and the settlement is no closer to Congressional approval than it was nine months ago.  The deadline concept has no discernible impact on the members of Congress, and setting unenforceable deadlines appears to have become a waste of time.  A change in tactics is clearly needed, either through attaching the settlement authorization to legislation that is ready for near-term passage, or by calling on President Obama to utilize his political capital to push for Congressional approval.

Cobell Settlement Deadline Extended Again, Now 15 June 2010

Congress failed to act prior to the Memorial Day recess to approve the $3.4 billion settlement in the Cobell v. Salazar lawsuit, so the deadline has again been extended to June 15, 2010. This is the fourth extension of the deadline for Congress to approve the settlement. Although the House of Representatives voted to approve the deal prior to the deadline, the Senate did not.

Dennis Gingold, the lead lawyer for the Native American plaintiffs, previously said that if Congress did not meet the May 28 deadline that had previously been set, the case would proceed toward trial. However, the plaintiffs agreed to another extension in light of the perception that Congress is close to approving the deal.

The Senate returns to business on June 7, but a list of other items -- such as confirmation hearings for President Obama’s Supreme Court nominee – may be acted on first. Also, Vice Chairman of the Senate Committee on Indian Affairs John Barrasso (R-Wy) has expressed concern about aspects of the deal such as attorney fees and incentive awards for the lead plaintiffs, and may seek to have the deal modified in the Senate legislation.
 

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.
 

For Native Hawaiians, An Apology Does Not Return The Land

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

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

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

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

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

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

$8.5 Million For A Tribal Embassy?

Proposed NCAI "Embassy of Tribal Nations"

In the midst of the worst global economic crisis since the Great Depression, and with poverty still endemic in Tribal communities, officials with the National Congress of American Indians have announced they are close to spending $8.5 million to acquire a building to serve as an “Embassy of Tribal Nations” in Washington D.C..  Located at 1514 P Street N.W. in the Dupont Circle area near Embassy Row, the facility has a 17,000 square foot office complex situated on an 8,500 square foot lot. The compound contains three office buildings, three carriage houses, and boasts an executive suite. The interior of the building features high ceilings, hardwood floors, remodeled baths, two new kitchens, and parking space for 22 vehicles.

Tex Hall, former president of NCAI, stated that

In the end, this will be a visual example of what NCAI represents: sovereign nations. If we got something much cheaper, how would that make us look?”  He also observed: “There is big unemployment and poverty among our people – just getting by is the predominant issue. I think there has to be a targeted effort to help educate Indian country why this is worth it.

Commenting on the current state of Native American communities, the NCAI notes

the reality is that Indian reservations have a poverty rate of 26% -- the highest poverty rate of any ethnic grouping in America. Indian unemployment is disproportionately high. Indian health, education and income statistics are the worst in the country.”

The NCAI’s website indicates that the organization is devoted to, among other goals, “Indian health care”, “affordable housing”, “Indian education”, and “protection of programs and services to benefit Indian families”. NCAI’s public information sources do not indicate how much money is budgeted toward these programs, or what percentage of its program funding the $8.5 million being spent on an Embassy might represent.

 

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.

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.