INDIAN AND INDIGENOUS DEVELOPMENTS

 

 

U.S. Developments

Native American Rights Fund, representing 250 tribes, filed a second trust fund lawsuit against the federal government,  in Federal court,  January 2,  for $337 Billion,  the amount of money it is claimed that all Indian individuals and tribes are owed due to the mismanagement of Indian trust funds over the past 120 years..

Concerning the first lawsuit, the Cobell v. Kempthorne class action case, filed in 1996, on behalf of every Indian with an individual trust account,  for $137 Billion dollars, the 109th Congress adjourned without completing work on Indian trust reform, which the leadership of the Senate Indian affairs Committee had made a top priority. Work on trust reform legislation, including a settlement of the Cobell case, has continued in the new Democratic Congress, but initially at lower priority, as the Democratic leadership has been focused on other matters. One of the reasons for the failure for Congress to complete trust reform legislation is that the Bush Administration did not speak to the matter until very late, and with proposals that then Senate Indian Affairs Committee Chairman John McCain, along with much of the committee and many members of the Native American community, disagreed with (though others found reasonable). The administration proposals would have the federal government withdraw from management of the IIM trust over 10 years, in two phases. The priority of the first phase would be consolidation of fractionated lands by voluntary and involuntary mechanisms. This would include, tribes and individuals retaining land title, with the land remaining inalienable,  in trust,  and not subject to taxation.  The Interior department’s preference would be to purchase the fractionated interests of perhaps all but the top nine or 10 interest owners of an allotment from voluntary sellers, according to Interior Department Secretary Dirk Kempthorne, in January. Failure to settle the suite leaves many Indians without receiving royalty payments. It is estimated that, every year, as many as 5,000 elderly Indians die without having received the trust fund royalties on their land owed to them.

Meanwhile, U.S. District Judge James Robertson, the new judge in the class action lawsuit over the Individual Indian Money accounts, on April 20, ordered the case to trial, beginning Oct. 10, to ''continue as long as necessary.'' Roberston will review the methodology and results of the Interior Department's accounting process in open court, with plaintiffs able to test or challenge both.

          The Mashpee Wampanoag Tribe of Massachusetts was acknowledged as a federally recognized Indian tribe by the BIA on Feb. 15, and the decision was confirmed  in March,  3 decades after the nation applied for federal recognition. In early May, The House passed H.R.1294, the Virginia tribes recognition Act,  and on April 25, the House Natural Resources Committee  approved H.R.1294, H.R.65, a bill to recognize the Lumbee Tribe of North Carolina. Amendments to both measures barred the tribes from engaging in gaming, and the tribes have agreed to the prohibition.

         The Departments of Interior and Energy released the final version of the report to Congress on energy rights of way on tribal lands, on May 14, as mandated by section 1813 of the 2005 Energy Policy Act. The key recommendation is that no legislation is needed relating to energy rights of way on tribal lands, preserving the doctrine of tribal consent in energy rights of way negotiations on tribal lands. This is in agreement with the position of Native nations and organizations, that feared congressional action that  might reduce tribal sovereignty and ability to negotiate fair contracts. The report and transmittal letters are available at: http://1813.anl.gov.

                   A proposal to create an Indian Affairs committee in the House of Representatives  has failed, at least for the time being. Indian issues will continue to be primarily heard by the Resources Committee, which has been criticized, overtly in recent months, for putting Native issues in competition with multiple state-based issues that come before it. With the change in leadership to the Democrats, the House Resources Committee is being chaired by Congressman Nick Rahall (D-WV) during the 110th Congress.

         In a Jan. 10 vote, the Senate dealt a setback to the Vitter amendment that sought to define tribes as corporations under the Federal Election Campaign Act. By tabling the amendment on a 56 - 40 vote, the chamber killed the amendment's chances of being attached to lobbying and ethics reform legislation.    

            H.R. 1328, a Reauthorization of the Indian Heath Care Improvement Act (IHCIA, S.1607) was reintroduced in the House, March 6, and by late April, the bill had unanimously passed the first of three committees necessary to send it to the House floor, with the House Committee on Natural Resources sending H.R. 1328 forward on April 25. In March, hearings were being held on it in the Senate as S.4122, and it passed out of the Committee on Indian affairs on May 10. The new chairman of the Senate Indian Affairs Committee,  Byron Dorgan (D-ND) is pushing for passage of the bill, in a strong form, to encourage more low-cost health care options for American Indians. He would like to increase clinic hours and doctor availability on reservations. He stated in January, "I'd like to see a different model that provides more access for more hours and more days with walk-in health clinics." Dorgan said the committee also will push initiatives to help the many Indians who suffer from diabetes, and to curb teen violence and boredom on reservations. The Senate passed S. 1200 May 10. In December, at the end of the 109^th congress, S.1607 was very close to unanimous passage in the Senate except for two holds placed by individual senators, one of which FCNL and Indian advocates successfully lobbied to remove. However, in the last days of the session, the Department of Justice sent a memo to Congress that derailed the bill. During the period between the 109th and 110th Congresses, issue advocates worked closely with the administration and key congressional committees to resolve disputes, rework the legislation, and lobby for action. Advocates point out to the need for reauthorization and considerably more funding. Indian health care is financed, currently, at the lowest percapita rate for any group in the U.S., including inmates of federal prisons. As of Late April: the Me Wuk tribe of California was receiving less than half the health care aid necessary to meet its needs, in part because the level of federal funding hasn’t changed since 2001 when Congress allowed the Indian Health Care Improvement Act to expire. The bill has been criticized for disparity in funding levels for different regions. In California, where there are no fully funded Indian Health Service hospitals, aid meant for specialist care gets used to pay for standard needs like blood tests and x-rays. The gap comes primarily from the priority given to fund facilities in regions with dense American Indian populations. While there are more American Indians in California than in any other state, some states in the Southwest have 16 times the population density. Despite the lack of well-financed facilities in California, the state’s tribes receive half as much money for specialist care as those in states who already have access to Indian Health Service hospitals and clinics. However, the bill ensures that any California tribes that remain unrecognized by Congress will not risk benefit cuts. Also, the

            The Improving Head Start Act of 2007 (H.R. 1439) passed the  House, May 2. The bill would establish a 3.5 percent set-aside for Indian Head Start, up from the current level of 2.7%. Its companion bill in the Senate, the Head Start for School Readiness Act (S. 556) seems likely to come up in June. Funding for the entire Head Start program was cut in FY 06 and the President proposed a further cut for FY 08. To view the bill go to: http://capwiz.com/fconl/issues/bills/?bill=9473051.

                        As in FY2007, The White House has proposed no funding for the Johnson O’Malley (JOM) program, for FT2008, which provides supplemental financial assistance to public institutions and communities serving Native children. The program, begun in 1934, makes available academic services, such as tutoring and counseling,  and cultural programs to the 500,000 American Indian children attending public schools. The act is set to expire at the end of September 2007. The House Education and Labor Committee and the Senate Health, Labor, Education, and Pensions Committee, which have jurisdiction over NCLB, have both named reauthorization of NCLB as one of their top priorities. The reauthorization process provides an opportunity to introduce provisions to NCLB for improving elementary and secondary education in Indian Country, which is being sought by advocates, with the hope of allowing Indian educators to attain the academic goals set forth by NCLB, while encouraging the use of traditional native knowledge, languages and history, which are not measured by the test. For more information go to the National Indian Education Association’s legislative tracking information web site: http://www.niea.org/sa/uploads/legislativetracking/

42.53.NIEA_Briefing_NoChild_2-9.pdf. Also, the NIEA’s Preliminary Report on No Child Left Behind in Indian Country is at http://coe.asu.edu/cie/29.23.NIEANCLBreport_final2.pdf.

            The Esther Martinez Native American Languages Preservation Act (H.R. 4766), which became law in December, authorizes expansion of current native languages programs to emphasize fluency, in such ways as creating language nests for preschool children by surrounding them with native speakers and immersion programs for school children. The Languages Preservation Act expands the current programs, funded at about $6 million, through a competitive grants process to experiment with new approaches to rapid language acquisition, with funding authorized through FY 2012.

            The Improving Head Start Act of 2007 (H.R. 1439), introduced by Senator Dale Kildee (MI), passed the House, May 2. The bill would establish a 3.5% set-aside for Indian Head Start, compared with the current 2.7% level. Its companion bill in the Senate, the Head Start for School Readiness Act (S. 556),  was introduced by Senator Edward Kennedy (MA.

         Representative Rick Renzi, (R-AZ) proposed amendment to H.R. 6344, which passed both the House and the Senate, in December, mandating a study by the Office of National Drug Control Policy that will yield recommendations for enlisting tribal governments in federal anti-meth efforts, particularly involving the Navajo Nation, the San Carlos Apache, the White Mountain Apache, the Yavapai Apache and the Tohono O'odham Nation, in Arizona,  as the state is particularly susceptible to the large amount of methamphetamine coming from Mexico.

            The Akaka Bill,  named for Sen. Daniel Akaka (D-Hawaii), H.R. 835, S. 710, that would authorize a process leading to the federal recognition of a Native Hawaiian governing entity, has been reintroduced in both houses, and passed the Senate Committee on Indian Affairs in May. H.R. 835, a bill reauthorizing Department of Housing and Urban Development programs for Native Hawaiians, that would increase affordable housing and loans for home ownership for low-income Hawaiians, passed by simple majority vote in the House of Representatives, March 28, and passed the Senate Committee on Indian Affairs in May.

            Representative James P. Moran (D-VA) reintroduced the Thomasina E. Jordan Indian Tribes of Virginia Recognition Act, in March, that would, grant six Virginia Indian tribes federal recognition: the Chickahominy, Eastern Chickahominy, Upper Mattaponi, Rappahannock and Nansemond tribes, and the Monacan Indian Nation. The bill passed the House, on May 8.

         In a sign of Democratic empowerment,  a bill proposed in the House of Representatives Jan. 5 would define the Arctic National Wildlife Refuge on Alaska's north coast as wilderness, effectively sealing it off from oil drilling.

         Legislation settling San Ildefonso Pueblo’s decades-old claim to thousands of acres of ancestral land in northern New Mexico was signed into law by President Bush, in September. The settlement includes land transactions affecting San Ildefonso and Santa Clara Pueblos, Los Alamos County and the U.S. Forest Service. The pueblos will be able to add land to their boundaries, and the county can protect its water wells. The settlement resolves the last remaining claim before the Indian Claims Commission, which was established in 1946.

Congress, in September, approved reauthorization of the Promoting Safe Families Act, in S3525, increasing tribal funding by more than 200%, while allowing tribal consortiums in the lower 48 states to be eligible applicants. On May 3, the House passed HR 1429, the Head Start Act of 2007, reauthorizing Head Start, including Indian Head Start. The numerous changes in the legislation include a requirement that the Secretary of Education carry out annual regional consultations with tribal leaders, and somewhat broader eligibility for participating children. The Utu Utu Gwaltu Piaute Tribe Trust Act, PL 10-421 (HR 854), became law December 20, directing the Department of the Interior to take 420 acres into trust for the tribe on the Benton Paiute Reservation, but barring class II and III gaming on those lands. The Fort McDowell Indian Community Water Rights Settlement Act, PL 109-373 (S 2464), became law November 27, canceling the obligation of the Fort McDowell Yavapai Nation to repay the loan to the tribe under the tribe’s 1990 water settlement act, and relieving the Secretary of the Interior from obtaining or maintaining additional farm land as part of the same settlement. Pl109-410, the Fort Peck Water Rights Leases Act, became law on December 19, authorizing the Assinboine and Sioux Tribes on the Fort Peck Reservation in Montana to lease water, for a limited period of up to 100 rights years, to the Dry river Rural Water Association.

            The Adam Walsh Child Protection and Safety Act of 2006, which became law July 26,  increases the longer jail terms for Native Americans than for other persons, in many instances, by cretin mandatory sentences: for aggravated sexual abuse, 30 years, and for using a weapon in a crime of violence against a person under 18, 10 years.

The Trail of Tears National Historic Trail Amendments, PL 109-378 (HR 3085), signed by he President December 1, directs the Secretary of the Interior to complete the remaining criteria and submit to Congress a study involving the feasibility and suitability of designating as additional components of the Trail of Tears National Historic Trail several routes and land components by which the Cherokee Nation was removed to Oklahoma, without additional appropriations for this purpose. In September, the Senate passed a bill that would allow congress to honor all American Indian Code Talkers who served in the armed forces in the Twentieth Century.

         As of early May, The House Committee of Natural Resources had approved, and the Senate Committee on Indian Affairs was holding hearings, on versions of the Akaka Bill, H.R.505 and S.210, the Native Hawaiian Governance  bill. The Tribal Government Equity Act of 2007, S.792, was introduced in the Senate on March 6 with the aim of fixing the onerous effects on tribes of the 2006 Pension Protection Act (PL 109-280) that while allowing Native nation to have favorable pensions for “government plans” excludes employees of tribal enterprises from those plans. S.792 would extend the pension plans covered to any tribal entity and its employees (including tribally owned businesses). In June, the House version, H.R. 2119, failed when Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, ruled it out of order in an Iraq supplemental spending bill, despite a provision for labor pensions inserted by Miller into the same bill. A new attempt is likely to be made next year.

         The Proposed HR 1873, the Small Business Fairness in Contracting Act, would limit the size of government contracts eligible for sole source federal contracting to Native Americans under the Native 8(a) program of he Small Business administration. The proposed reduction is, in part, in response to the success of Alaska Native Corporations under the program, who placed in five of the top 10 slots for federal 8a contracts awarded to disadvantaged minority small businesses in fiscal year 2004. That was the same year total 8a contract awards from federal agencies to Alaska Native Corporations grew to $1.1 billion, from $265 million in FY 2000.

         The House approved a bill, in October, that would allow the Pascua Yaqui Tribe of Arizona to consolidate its land holdings. At issue is tribal land comprising more than 400 acres next to the tribe’s reservation near Tucson. After purchasing the land from the state, the tribe applied to have it placed into trust by the federal government. The Bureau of Indian Affairs approved the tribe’s application for trust status, but the state objected.

         Hope MacDonald-Lone Tree, chair of the Navajo Nation Public Safety Committee, told the House Appropriations Commerce, Justice and Science Subcommittee, which provides funding for the Department of Justice, in late April, "Perpetrators of domestic violence, DUI, child sexual abuse, battery and other crimes are released before finishing their sentences because we have no jail space," Navajo Nation, like many tribes, has insufficient and deteriorating detention facilities. MacDonald-Lone Tree requested additional funding to improve the dangerous situation.

         As Senetor Jeff Bingaman (D-NM) introduced a bill in the Senate asking for congressional approval of the 1995 Navajo-New Mexico water rights settlement, dividing up the long-contested waters of the San Juan River Basin between the tribe and state, Gallup, NM officials indicated that they have found some of 7,500 acre feet per year of San Juan water that they are entitled to in the settlement, with the aid of the Navajo Nation lending some of its water rights to the city.

         Representative  Jo Ann Davis of Virginia reintroduced a joint resolution in the House of Representatives. January. 4 that would grant an apology from Congress to American Indians for numerous abuses committed against them, and support better relations with American Indian nations. 

            The Senate confirmed Carl Artman as the next Assistant Secretary for Indian Affairs, heading the Bureau of Indian Affairs (BIA), by a vote of 87 – 1, March 5. Tom  Dowd was named Director of the Bureau of Indian Education.      

On March 9, The Department of Homeland Security issued a notice pf proposed rulemaking on “Minimum Standards for Driver’s Licenses and identification cards,” for the REALIDEA Act of 2005, that would not accept tribal ID’s, but would require a birth certificate or a valid passport, which many tribal members do not have. Since the idea of the REAL ID is to require it for official purposes, it is possible that a Native person without one could be barred from an IHS clinic or a BIA office, as well as from getting on an airplane, and conceivably from voting. However, enough states have said no to the plan, largely because of cost, so that it is likely dead, at least for the time being.

            The Immigration and Naturalization Service 15 person American Indian staffed Shadow Wolves, tracking smugglers on the U.S. border with Mexico since 1970, has been expanded to 21 officers, while a similar unit is being considered to patrol the Canadian boarder on the Blackfeet Reservation in Montana, to combat growing drug smuggling. The Departments of State and Defense have arranged for the Shadow Wolves to train boarder guards in other countries, including Tajikistan and Uzbekistan, along their boarders with Afghanistan.

         James Cason, Associate Deputy Secretary of the Interior Department, wrote, in May, to Ron Suppah, chairman of the Confederated Tribes of the Warm Springs Reservation, and to other tribes, warning that new planned BIA rules could make it more difficult for tribes to take land into trust, and might affect Suppah's application for a casino in Cascade Locks and all ''fee-to-trust'' applications pending nationwide.

            The Departments of Interior and Commerce have filed the final mandatory terms and conditions that must be met in order for PacifiCorp to relicense the Klamath Dams. Although the agencies do not have the authority under the Federal Power Act to mandate dam removal, they can and did mandate fishways and ladders. Klamath Basin Tribes and other dam removal advocates are pleased, since the cost of the prescribed ladders and fishways makes dam removal an economically favorable alternative to relicensing, as a December California Energy Commission and the U.S. Department of Interior economic report, filed with the Federal Energy Relicensing  Commission, concluded that dam removal would be cheaper,  by $100 million, than relicensing, including the cost of replacing  the electricity the dams generate, from other currently available  sources. The depatments’ decision rejected Pacific Corp’s proposed alternative  of catching and trucking fish around the dams. For more information and previous press releases from the Karuk tribe, go to: http://www.karuk.us/press%20&%20campaigns/press.php.

            Representatives of the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS), Farm Service Agency (FSA), and the  Bureau of Indian Affairs (BIA) signed a Memorandum of Understanding, December 6, at the Indian Nations Conservation Alliance annual meeting, to facilitate the coordination, planning and implementation of USDA conservation programs on Indian lands, recognizing the role of American Indians and Indian tribes as landowners, land users, and as sovereign governmental entities with authority and responsibility for the development and administration of natural resource programs on Indian lands, with whom consultation should be undertaken on all agency decisions concerning their land. For more information: go to http://www.nrcs.usda.gov,  or http://www.fsa.usda.gov.

     The Environmental Protection Agency,  August 21, published notice of a comment period on two proposed rules under the Clean Air Act, for Indian Country, with commentary extended to January 19, that would allow tribes to develop New Source Review programs for air pollution with a source on tribal land, that are not otherwise covered by EPA regulation.

            The Department of Health and Human Services published rules to implement Sec. 506 of the Medicare Modernization Act, June, 4, to become effective July 5, that places a cap on the amount hospitals that participate in the Medicare program can charge for services provided to Native patients referred by Indian Health Service (IHS), tribal, and urban Indian organizations. The regulations are at: 72 Fed. Reg. 30706. Although Senate Indian affairs chairman Byron Dorgan (D-ND) stated in a hearing, March 7, that under current law, anyone with Native American Ancestry is entitled to health care by, or paid for by, HIS, saying “We shouldn’t be having people turned away from these health clinics because they don’t have a piece of paper,” IHS regional offices around the U.S. have sent letters to off reservation clinics telling them not to provide free health services to members of unrecognized tribes or to people who do not have a BIA identification card. In March  there were a number of reports of people with Indian ancestry being turned away by health providers for lack of a BIA ID.

            The U.S. Agency for International Development announced, February 21, that it has an institutional structure in place to monitor the impact of its projects on indigenous peoples, and stated its willingness to participate in workshops on indigenous peoples and issues, offered by the Indian Law Resource Center.

            The Navajo Nation and the Federal Emergency Management Agency have signed an agreement that will make the tribe eligible for federal funding to cover the costs of handling a disaster,  clearing the way for federal relief when the next flood, fire or devastating snowstorm happens and a state of emergency is declared.  This is the first agreement of its kind to combine two states, New Mexico and Arizona, making the process simpler by having one point of contact. Leaders of the Navajo and Hopi tribes and the Department of the Interior signed an agreement, November 3, ending the 40 year old Navajo-Hopi land dispute and allowing development  on 700,000 acres of land that both claim as their own.

            It has been reported that one of the illegal actions of vote suppression in New Mexico in the 2004 presidential was for certain election officials with a Republican Party orientation to either prevent American Indians and Latinos from voting,  or to prevent their votes from being counted.

         Five Native members of the Washington state Legislature took office Jan. 8: Claudia Kauffman, Nez Perce, (D-Kent) - first Native woman elected to the state Senate in Washington history; Don Barlow, Ottawa, (D-Spokane)- elected to his first term in the state House. John McCoy, Tulalip, (D-Tulalip)-elected to his third term in the state House; Jeff Morris, Tsimshian (D-Mount Vernon) - elected to his sixth term in the state House, chairman of the Technology, Energy and Communications Committee; Jim Dunn, Inuit (R-Battle Ground) - elected to his fifth term in the state House. Oklahoma has 18 Native members of its legislature (including: Al McAffrey (D) – Choctaw - representing downtown Oklahoma City, District 88, District 36 Representative, Scott Big Horse (Osage), D-Pawhuska, House District 6 Representative, Chuck Hoskin (Cherokee), D-Vinita, Senator Sean Burrage (Choctaw), D-Claremore, and Senator John Sparks (Cherokee), D-Norman), Alaska has nine, Montana has 10 – all Democrats, including  three Senators: Carol Juneau (Blackfeet) of Browning, Frank Smith and Gerald Peas - and New Mexico has six, according to the National Conference of State Legislatures and Indian Country Today, November 17. Several Indians were elected to county and municipal offices in Montana, including Glacier County Commissioner Ron Doore (Blackfeet). Washington State Representative Jeff Morris, Tsimshian, was elected by lawmakers from across the nation to chair the Council of State Governments - WEST. In Oklahoma, Tom Cole,  (Chickasaw) R-Moore, won re-election to the 4thU.S. Congressional District.

         63% of Rhode Island voters, in November, said no to a referendum question that would have allowed the Narragansett Indian Tribe to open a casino with its partner, Harrah's Entertainment.  However,  a poll published in March, shows that Rhode Islanders by a majority of 2 to 1 support federal legislation to return the tribe's right to conduct gaming on its reservation.

         The ''Prez on the Rez'' debate of Democratic presidential candidates, is scheduled for August 23 at the Morongo reservation in California. New Mexico Governor Bill Richardson was publicly sworn in for his second term, on January 1, by Governor Joe Garcia of Ohkay Owingeh Pueblo, president of the National Congress of American Indians and the incoming chairman of the All Indian Pueblo Council. It was the first time a New Mexico governor has been sworn in by an American Indian governor.

 

 

 

Federal Indian Budgets

             FY2007 was funded by continuing resolutions (CR), with the final bill, from March 1 to end of year at FY2006 levels, minus earmarks, but it ws not clear what is and is not an earmark – including for Indian funding. The Democratic majority in the House has made reforming ''earmark'' appropriations a priority, but, “for lack of time,” with the House not yet having agreed on a definition of “earmark,” earmark reform is planned to apply to the FY2008 budget. American Indian, Alaska Native and Native Hawaiian programs stand to lose considerable funding if the earmark reform movement in the House carries over to the Senate. Many other national programs, including Safe and Secure Rural Roads and Boys and Girls Clubs, would also lose funding if the moratorium on earmarks goes forward. Funding federal programs at FY '06 levels is also sure to damage some Indian programs, few more so than the National American Indian Housing Council. The organization, authorized under the Native American Housing Assistance and Self-Determination Act, provides training and technical assistance to potential Native homeowners through tribal housing authorities. A Senate Appropriations Committee report has authorized FY '07 funding. But under Title I, Section 112 of the House resolution, the appropriation in the report is defined as an earmark. As matters stand now, the $4 million approved by Senate appropriators will not be available in 2007. That means it would be altogether scrubbed, because appropriations for FY '08 will have to be debated all over again. 

            In the field of health, Indian country fared better under the joint resolution. The Indian Health Service (IHS) received a boost in funding of $125 million over its FY '06 level,  to pay government salary increases and to maintain clinical services. Indian education programs also seemed to emerge from the joint resolution without dramatic cutbacks. Lillian Sparks, executive director of the National Indian Education Association, said federally funded Indian elementary and high schools should receive FY '06 funding, and in some cases more. Johnson O'Malley, a supplemental Indian education program, is the main concern here. Last year, the president's proposed budget zeroed out Johnson O'Malley's $16.4 million budget for FY '06. The BIA has discretion to restore it under authority of the joint resolution, Sparks said. But if the BIA has other shortfalls to make up for, President Bush's priorities may also color its decisions. NIEA has counseled its members to contact the BIA with the message that Johnson O'Malley funding should be preserved. Tribal colleges and universities also come out comparatively well under the joint resolution. Most of them are land-grant institutions,  that received increases over FY '06 in their equity grants, extension and research programs. The United Tribes Technical College in North Dakota and Crownpoint Institute of Technology in New Mexico, both zeroed out annually in the president's budget requests, may benefit from the resolution's clear directive to fund projects at the funding level enacted for FY '06, as Congress funded both institutions in FY '06. In addition, The lack of congressional directives in the new CR presented a potential difficulty for programs that the Administration proposed eliminating or drastically reducing for FY 2007 and/or FY 2008,  as the Administration is not obligated to fund these programs under the new CR. This includes BIA's Johnson O' Malley Grant Program which was marked for elimination in the President's FY 2007 budget. NIEA joined with the National Congress of American Indians and the National Johnson O'Malley Association to request from the Department of Interior full funding the Johnson O'Malley (JOM) program at the FY 2006 level in the remaining months of FY 2007, while requesting the Senate Committee on Indian Affairs and the Native American Caucus assistance in ensuring that the Department of Interior provides funding at least at the FY 2006 level.

            The White House budget recommendations for FY2008 proposes spending much less on health and other domestic programs. With the Bureau of Indian Affairs receiving close to the same level of funding as in FY2007, while  141 Indian related programs are recommended to be reduced in funding or eliminated. Indian the Indian Health Service (IHS) is proposed to receive about a 7% increase,  but this amount  does not begin to cover costs or needs. Some specifics of the BIA budget proposal, in historical perspective are:

   Bureau of Indian Affairs  
2006 actual:                     $2,256 billion
2007 Estimate:                 $2,230 billon
2008 President proposal: $2,229 billion

  Office of the Special Trustee 
2006 actual:                     $226 billion
2007 Estimate:                 $181 billion
2008 President proposal: $196 billion 

  Indian guaranteed loan program
2006 actual:                      $62 billion
2007 Estimate:                 $91 billion
2008 President proposal: $84 billion

         The Administration proposed increasing the Indian Health Service in FY2008 to $2.932 billion, up from FY2006 enacted  at $2.048 billion. Hospitals and Clinics are recommended increased to $1.494 billion, up from FY2006 enacted $1.339 billion. Dental Services are proposed to go up to $$135.8 million from FY2006 enacted $1.17.7 million. Mental Health and Social Services are recommended to raise to $64.5 million from FY2006 enacted $58.5 million and substance abuse programs to $162 million from FY2006 enacted $143 million. IHS Facilities budget is recommended dropped $14 million from enacted FY2006 to $339 million. Built in costs increases are proposed to be funded as: pay raises: $41 million, non-medical inflation: 2.4%, medical inflation: 4.2%. As in FY2007, no funding is proposed for urban Indian Health Programs, which last year Congress restored to FY2006 enacted levels of $32.744 million. Contract Health Services were proposed to rise to $569.5 million in FY2008 from FY2006 enacted $51.2 million. The Bush administration proposes: a statutory cap on IHS contract support at $$271.6 million; extend the limits of FY2006 to FY2007 on IHS and BIA to fund past year shortfalls; discontinue language that prohibits IHS from imposing a personnel ceiling that would reduce FTEs below the FY2002 level. Medical equipment is proposed to increase to $21.3 million from FY2006 enacted $20.9 million. Construction of Health Care Facilities was proposed to be reduced to $12.7 million from FY2006 enacted $36.8 million and FY2005 enacted $88.6 million, and construction of sanitation facilities to $88.5 million from FY2006 enacted $92.1 million.

            The President's FY 2008 budget request for Indian Education is funded at the FY2007 level of $118.7 million, with $95.3 million allocated to grants for Local Educational Agencies, $19.4 million allocated for Special Programs for Indians, and $4 million allocated for National Activities. Impact Aid is proposed to be funded at $1.228 billion, a $29million decrease from the FY2007 continuing resolution level,  with facilities construction allocated at only $17.8 million compared to the proposed continuing resolution level for FY2007 of $46.6 million. Title I received an increase of $1.2 billion that will focus on providing additional resources and reforms at the high school level as well as grants to help states turn around low-performing schools and students who need additional instruction to succeed.

            Indian related Programs proposed for elimination under the Department of Education include, Alaska Native Education Equity, previously funded at $33.9 million, Education for Native Hawaiians, previously funded at $33.9 million, Strengthening Alaska Native and Native Hawaiian Serving Institutions, previously funded at $11.8 million, and Exchanges with Historic Whaling and Trading Partners, previously funded at $8.9 million. The rationale for the elimination of Alaska Native Education Equity, Education for Native Hawaiians, and Strengthening Alaska Native and Native Hawaiian Serving Institutions is based on the claim that these programs duplicate programs under Title I (Alaska Native Education Equity and Education for Native Hawaiians) and Title III of the Higher Education Act (Strengthening Alaska Native and Native Hawaiian Serving Institutions).

         New Native education programs proposed in the President's FY2008 budget request include: school improvement grants for schools not making AYP for at least two consecutive years; (scholarships for students for low income students to attend private or out of district public school or to receive supplemental educational services;  Math Now programs for elementary and middle school students; and an Adjunct Teacher Corps focusing on getting individuals to teach abstract mathematical concepts or scientific principles in hard to fill teaching positions.

            The President’s FY 2008 budget request for the Bureau of Indian Education (BIE) Elementary and Secondary programs, including education management, proposes a total of $562 million, an increase of approximately $26 million. Funding for post-secondary education is proposed to be cut by $4.6 million to $98.5 million. The education construction account includes an increase of $8 million for facilities improvement and repairs and reductions of $21.7 million for replacement school construction and $4.2 for replacement facilities construction. Included in increased funding for elementary and secondary education is $5.8 million for education management and $19.1 million for forward funding. This includes the Indian Education Initiative of $15 million, which "focuses on management of Bureau of Indian Affairs schools by targeting school programs to improve student achievement and address transportation needs." The Improving Indian Education Initiative consists of the following increases:  $5.3 million for education program enhancements targeted to lower performing BIE schools to improve performance; $4.25 million for student transportation, resulting in an increased per mile rate of $2.87 that will address some of the deferred maintenance needs and higher fuel costs; $3.6 million for education program management to add educational specialists in the BIE revamped education line offices and the central office; and $1.8 million for the Native American Student Information System to maintain a school and student statistics information system currently being established with start up funding from the Department of Education. The Institute of American Indian and Alaska Native Culture and Arts Development was proposed to be increased to $7.247 million for FY2008, from $6.207 million enacted for FY2006.

            The Johnson O’Malley program (JOM) is again slated for total elimination. Previously, JOM has been funded at $16.4 million. The budget proposes eliminating $7.7 million in Johnson O’Malley grants funded in Self-Governance compacts and Consolidated Tribal Government Program contracts with the repeated rationale from 2006 that the JOM programs are duplicative of grants available from the Department of Education. While it may appear that JOM is losing only half of the funding, the FY08 budget is based on the FY 2007 President's budget, which only proposed elimination of JOM funding in the Tribal Priority Allocation account (so, this reduction would have only affected direct service tribes). The $7.7 million decrease for FY 2008 takes an additional step and eliminates JOM from self-governance compacts and consolidated tribal grant program contracts also. Congress put back the Presidents cuts in JOM last year, and is likely to put back at least some of the cuts this year.

            Indian funding in the Presidents proposed FY2008 Department of Health and Human Services budget reflects flat funding for the Head Start Bureau, to be continued at $6.8 billion, of which American Indian and Alaska Native Head Start programs currently get about 2.7% of the Head Start funds ($183.6 million). The Administration for Native Americans (ANA), including Native language grants, one of which is the set of programs provided for under the new Esther Martinez Act, is also flat funded at $44 million. The Office of Navajo and Hopi Relocation was proposed to receive $9 million, up from $8.474 million enacted for FY2006.

            The Environmental Protection Agency, which offers many grants for which tribes apply, but few tribal specific programs,  is proposed to be cut to $7.2 billion in FY2008, down from a FY2007 CR level of $7.49 billion and $8.09 billion enacted in FY2006. A major cut is proposed in funding for rural Alaska and Alaska Native village drinking water and waste disposal infrastructure to $15.5 million after being $34 million in FY2006. Tribal General Assistance grants to build capacity to administer  environmental regulatory programs is proposed to be at the FY2007 CR level of $56.93 million, down from FY2006 enacted $60.01 million. Tribal Air Quality Management is to be at the FY2007 CR level of $10.94 million, down from FY2006 enacted $11.72 million (but up $.5 million from the President’s FY2007 request).

         The Bush administration FY2008 budget calls for $234 million for Public safety and Justice, compared to $214 million fir CR FY2007. This includes $16 million to initiate a Safe Indian Communities Initiative that will increase law enforcement presence and training on tribal lands to combat the production and distribution of methamphetamine, and enhance the staffing and training of detention officers in response to the increase in violent offenders incarcerated in Indian detention facilities. As with FY2007, the White House calls for no funding for Tribal courts. Funding for tribal public safety and justice construction is proposed to remain at $11.6 million.

         The administration proposes to reduce the Indian Housing Improvement  Program (TPA) by $18.85 million and Self Government Contracts (HIP reduction) by $4.27 million. Contract support would be cut $2 million from CR FY2007. Community and Economic Development funding is requested at $39.1 million, compared to the FY2007 CR level of $39.2 million and the $51.8 million enacted for FY2006. The Indian Land Consolidation Program (purchasing small shares of allotments) is requested at $10 million, compared with the $59.4 million FY2007 CR level and $34 million enacted for FY2006.

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         On April 27, the House Native American Caucus, co-chaired by Representatives Dale Kildee (D-MI) and Rick Renzi (R-AZ), sent letters requesting funding for the Esther Martinez Native American Languages Act and the Johnson O'Malley program to the House Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies and to the Subcommittee on Interior and Related Agencies. The letter to the Subcommittee on Labor, HHS, and Education, requested $10 million in the Administration for Native Americans (ANA), Administration for Children and Families, portion of the Department of Health and Human Services (HHS) budget for FY 2008 for the purpose of funding Native American language immersion and language restoration programs at ANA. The letter to the Subcommittee on Interior and Related Agencies requested restoration of funding for the Johnson O'Malley (JOM) program at the Bureau of Indian Affairs, Department of the Interior, to the FY 2006 enacted level of $16.4million. This program was eliminated in the President's FY 2008 budget. Copies of the letter may be viewed by clicking on this link: SIGNATURES at: http://www.niea.org/history/research.php. A House appropriations subcommittee, June 7, marked up an extra $3 million for the Administration on Native Americans to implement the language immersion learning and revival programs of the Esther Martinez Native American Languages Preservation Act, almost doubling the language budget to $7 million.  

            Several sources for more Indian budget information are: http://www.indianz.com/News/2007/000743.asp?print=1; http://appropriations.house.gov/pdf/CRSummary.pdf, http://www.whitehouse.gov/omb/budget/fy2008/interior.html,  http://www.doi.gov/budget. For continuing information on urban Indian health: http://www.ncuih.org/. For budget (and other) information on Indian education contact NIEA (202)544-7290, niea@niea.org, http://www.niea.org.

 

In the Courts

The U.S. Supreme Court

 

         The U.S. Supreme Court,  Nov. 27, let stand a 1^st Circuit Court of Appeals ruling that the state of Rhode Island can enforce all of its laws on the Narragansett Indian Tribe's settlement land, in denying the Narragansett's petition for a writ of certiorari. The case arose from a controversial raid by the Rhode Island State Police on the tribe's smoke shop in 2003 in which Narragansett Chief Sachem Matthew Thomas and seven other tribal members were arrested. The police claimed the tribe's sale of tax-free cigarettes was illegal and shut down the shop, seizing cigarettes, documents and money during the raid. In a 4-2 decision, the circuit court held that the e police raid violated tribal sovereignty,  but the state could impose taxes on the reservation,  because the Narragansetts waived their sovereign immunity in a 1978 land claim settlement act between the tribe and the state. The two dissenting judges argued that the decision ignored Supreme Court precedent regarding tribal sovereign immunity, and in doing so put into jeopardy other tribes with settlement acts and tribes falling under Public Act 280 that permits states to have some limited criminal and civil jurisdiction over reservations. Meanwhile, two related cases - one criminal and one civil - are moving forward in court. On April 10, the tribe's lawyers argued in front of U.S. District Court Judge William E. Smith against a motion by state attorneys to dismiss a civil rights lawsuit filed by seven tribal members last July against Rhode Island Gov. Donald Carcieri, state Attorney General Patrick Lynch, State Police Col. Steven Pare and more than a dozen troopers. 

         The U.S. Supreme Court declined,  in October, to hear a 16-year-old case,  allowing 91 acres of Lower Brule Sioux Tribe land along Interstate 90 near Oacoma may be taken into trust for the tribe by the federal Interior Department, in the course of allowing to stand an 8th U.S. Circuit Court of Appeals ruling rejecting a State of South Dakota claim that the federal government had no authority to take land into trust outside the contiguous borders of a reservation.

         The U.S. Supreme Court, March 5, let stand a ruling that the state of New Mexico lacks jurisdiction to prosecute American Indians for alleged crimes on private land within pueblo boundaries, upholding a June 2006 ruling by the New Mexico Supreme Court that such cases fall under tribal or federal jurisdiction, depending upon the crime.

         The U.S. Supreme Court refused to hear an appeal, in November, denying the Michigan State Tax Commission's attempt to have reviewed a decision by the 6th Circuit Court of Appeals that refuted the state’s claim of authority to collect property taxes assessed on reservation property. In affirming the treaty rights and sovereignty of Keweenaw Bay Indian Community, who reside on the L'Anse Reservation, the circuit court held that no taxes can be collected on any land, and in this case fee land within the boundaries of the L'Anse Reservation.

         The U.S. Supreme Court, on October 2, declined, without comment, to hear a case involving a member of the Mashantucket Pequot who had claimed she does not have to pay state income taxes, letting stand the Connecticut Supreme Court ruling of December 2005, that Jo-Ann Dark-Eyes, a Mashantucket Pequot tribal member who did not live on the reservation must, pay state income taxes.

            The Supreme Court, in October, overruled a temporary injunction by the 9th Circuit Court of Appeals, allowing picture I.D.s to be required for voting in Arizona, under Prop. 200, until the district court decided  the case on the merits, which was not until after the November election.

            The U.S. Supreme Court refused to hear Russell Means appeal, challenging the Navajo Nation court’s jurisdiction over Indians who are not member of the Navajo Nation, in October, upholding the 9th Circuit Court of Appeals rejection of the claims, in Means v. Navajo Nation, No. 05-1614. The case involves Mean's being charged with assault and battery against his father-in-law, Mr. Leon Grant, who is an elder of both the Omaha and Dine Nation, and is 80 years of age and has an artificial arm.

 

Lower Federal Courts

 

         A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected arguments from by the San Manuel Band of Mission Indians of California tribe that as a sovereign government, it should not be subject to labor laws, February 9. The ruling stemmed from an organizing dispute at a casino run by the nation, 60 miles east of Los Angeles, where a union filed a complaint with the National Labor Relations Board arguing that another union was getting preferential access.  San Manuel contested the complaint by asserting the labor board lacked jurisdiction because of the federal sovereignty recognition.

            The 8th Circuit Court of Appeals reversed the lower court's decision, on December 5, ordering city officials of Martin, SD to redraw city council district lines to correct violations of the Voting Rights Act that prevented Native Americans from having an equal opportunity to participate in the political process and elect representatives of their choice. The court found that: “There is a long, elaborate history of discrimination against  Indians in South Dakota in matters relating to voting in South Dakota." "Indians in Martin continue to suffer the effects of past discrimination,  including lower levels of income,  education,  home ownership, automobile ownership, and standard of living." "Martin city officials have taken intentional steps to thwart Indian voters from exercising political influence." "[T]here is a persistent and unacceptable level of racially polarized voting in the City of Martin." The circuit court remanded the case back to the district court for final action consistent with the appeals court ruling. The ACLU brought the lawsuit in April 2002 on behalf of two Native American voters who claimed the redistricting plan adopted by the city that year had the purpose and effect of diluting Native American voting strength. American Indians made up approximately 45% of the city's population, but would have been unable to elect any candidates of their choice to the city council because the redistricting plan ensured that white voters controlled all three city council wards.  Since 1999, the ACLU has brought and won seven voting rights lawsuits in federal court on behalf of Native American voters in South Dakota. The December 5 decision is available online at: www.aclu.org/votingrights/minority/27624lgl20061206.html.  In February, the U.S. District Court followed up by ordering that Martin City Council representatives will be elected at large.

            The 9th Circuit Court of Appeals, on November 9, in Pitt River Tribe vs. U.S. Forest Service, stopped geothermal energy development at sacred Medicine Lake Highlands, near Mt. Shasta, CA, in reversing a lower court ruling and rejecting renewed energy leases made by the federal government to a private company. The court ruled that the actions of the forest Service, the Advisory Council on historic Preservation and the Bureau of Land Management violated the National Environmental Policy Act, the National Historic Preservation Act, and the agencies’ minimum fiduciary duty to the tribe. The case was brought by the Pit River Tribe along with the Native Coalition for Medicine Lake Highlands Defense and the Mount Shasta Bioregional Ecology Center, who were represented by the Stanford Legal Clinic at Stanford Law School.

            The 9th Circuit Court of Appeals, on March 12,  unanimously overturned a lower court ruling in stopping a plan to spread treated sewage water from the city Flagstaff, AZ, to produce artificial snow at the nearby Snowbowl ski resort, in the Coconino National Forest, on the nearby San Francisco Peaks, sacred to 13 Indigenous nations. The court held that the plan violates the Religious Freedom Restoration Act.

         A three judge Circuit Court of Appeals panel ruled, Oct. October 20  that the National Indian Gaming Commission has no regulatory authority in Class III gaming, involving  slot machines, roulette, blackjack and other ''house-banked'' games of chance,

The 4^th Circuit Court of Appeals held. In May, in Aleman v, Chugach Support Services,  that while Alaska Native corporations, like federally recognized tribes, are immune from suit for employment discrimination under Title VII of the Civil Rights Act of 1964, they can be sued  for such action under the 1870 Civil Rights Act (43 U,S,C, § 1981). Other lower courts have held differently, and this may lead to a Supreme Court case.

            The 10th Circuit court of Appeals ruled, February 6, that the State of Kansas must honor motor vehicle registration titles issued by the Prairie Band of Potawatomi Nation, holding that Kansas may not interfere with the Nation’s sovereign right to regulate tribal motor vehicles, even when those vehicles travel off reservation. The court found, applying the balancing test from White Mountain Apache v Bracker (448 US 136, 1980), that tribal and federal interests in tribal self-government outweighed unsupported state safety concerns, noting that titling and registering motor vehicles was “a traditional government function,”

            The 9^th Circuit Court of Appeals ruled 8-7, in December,  that students without Hawaiian ancestry could be denied admission by the private Kamehameha Schools in Hawaii, based on their race, without violating civil rights law. The majority cited what it said were unique factors in the history of Hawaii, the plight of Native Hawaiians and the schools’ distinctively remedial mission, in ruling that “The schools [established for Native Hawaiians under the will of 19th-century Hawaiian princess, Bernice Pauahi Bishop] are a wholly private K-12 educational establishment, whose preferential admissions policy is meant to counteract the significant, current educational deficits of Native Hawaiian children in Hawaii.” The private Kamehameha Schools in Hawaii announced , in late May, that they had settled the civil rights lawsuit brought against them by a student denied admission because he did not possess Hawaiian ancestry, to avoid the possibility of a decision by the United States Supreme Court on the status of Native Hawaiians.

         The U.S. District Court for the District of Columbia ruled on Dec. 19 that the Cherokee Tribe and its officials are not immune from lawsuit ''in these circumstances,'' which involve Cherokee Freedmen, the descendants of slaves to the Cherokee or of free blacks who intermarried with Cherokees, whose membership in the nation was part of a treaty with the U.S. government at the end of the Civil War, suing the tribe and its officials for excluding them from 2003 elections that sought to limit citizenship to Indians in a way that again left out the Freedmen, denying them tribal citizenship ''as a matter of policy by restricting citizenship to the descendants of citizens with Indian blood according to the “blood rolls.” The recent vote by the Cherokee  Nation Amending its constitution to limit membership to those on the “blood rolls,” again disfranchising Freedmen, is likely to lead to a new law suit.

         U.S. District Court Judge Janet Bond dismissed all of the remaining land claims filed by the Golden Hill Paugussett Tribe, which had sought to use as leverage to acquire land for a casino in Bridgeport, in late November, ruling that the Trumbull-based tribe cannot pursue land claims in court because it is not recognized as an American Indian tribe by the federal government.

         A South Dakota district court has ruled for American Indian students in the Winner School District, in a case brought by the ACLU, complaining that Native students, only, are sent to law enforcement authorities over disciplinary issues. The school district will have to change the way it treats American Indian students. Court requirements include that any American Indian student who is called into a principal's office must be accompanied by a parent or tribal official.

            U.S. District Court judge Garrett Penn threw out a lawsuit filed by the anti-Indian casino group MichGO against the U.S. Department of Interior, freeing the federal agency to take 146 acres in Bradley, in southwestern Michigan, into trust for the Gun Lake Tribe's long-planned gaming and entertainment project, holding that MichGO could not prove any of the facts that it alleged.

         The Seneca Nation of New York was enjoined,  in June, by Disrict Court Judge William M. Skretny, from opening its off-reservation Cobblestone Casino, in downtown Buffalo, which is virtually ready to commence operations, until the National Indian Gaming Commission Rules that the trust land it is on is Indian land eledgeble for a casino. The suit was brought by Citizens for a Better Buffalo and other casino opponents. The Commission is reevaluating the Senaca Buffalo casino application.

         U.S. District Judge William Downes, saying the federal government pays no more than lip service to respecting the religious beliefs of American Indians, dismissed criminal charges, in October, against, Winslow Friday, a Northern Arapaho man who shot a bald eagle in March 2005, on the Wind River Indian Reservation in Wyoming, for use in his tribe's Sun Dance. Downes dismissed the charge after lawyers for Friday and his tribe argued that the U.S. Fish and Wildlife Service generally refuses to grant permits allowing tribal members to kill eagles, even though federal regulations say such permits should be available.  Lawyers for Indian groups say the order by U.S. District Judge William Downes should prompt the federal government to streamline its program of parceling out dead eagles and eagle feathers to Indians, and should prompt federal officials to begin a serious dialogue with tribes about allowing tribal members to kill some eagles for religious purposes. Federal officials, however, filed notice in November that they intend to appeal the judge's order.

            The District Court for the Eastern District of California, on February 28, ordered the Indian Health Service (IHS) to enter into and completely fund a Compact and funding agreement, under Title V of the Indian Self-Determination Act, with the Susanville Indian Rancheria,  holding that it was legal for the tribe to charge a co-pay for pharmacy services, for which IHS provided no funding. IHS had refused to contract for the program because of the pharmacy services with a co-pay.

            Kickapoo Tribe of Kansas Filed Lawsuit in Federal Court seeking enforcement of promises made 30 years ago by the United States, the State of Kansas, and others to provide meaningful access to water for the Kickapoo people by building the Plum Creek Reservoir Project in Northeast Kansas. 

         Black Mesa Trust is offering its support to Hopi tribal members on whose behalf a lawsuit was filed, in April, against the U.S. Interior Department's Office of Surface Mining. The class action lawsuit alleges that OSM violated traditional Hopis' religious freedom when the office scheduled the comment period on the draft environmental impact statement for the Black Mesa Project during January and February, a period during which Hopi religion requires that people attend primarily to their religious obligations to the exclusion of public matters. For information Contact: Vernon Masayesva 928/734-9255 or go to: www.sacredland.org/endangered_sites_pages/black_mesa.html.

         The first of seven law suites against subprime lenders for allegedly redlining Indian land (refusing to provide mortgages on reservations) was settled in June with an agreement, signed by Houston-based Aegis Mortgage Corp. and the National Community Reinvestment Coalition, that will cost the subprime lender $475,000 to settle the charges. Provision H of the settlement states: ''Improved real property shall not be ineligible to secure a residential mortgage loan solely because it is located on Native American tribal lands.''

         The Flandreau Santee Sioux Tribe of South Dakota, owners of Royal River Casino and Hotel,  filed a lawsuit in federal court, in April, accusing South Dakota Gov. Mike Rounds of not negotiating new gaming compacts in good faith. The Flandreau have tried to negotiate a new compact that would allow for additional gaming devices, but Rounds has stuck to his commitment not to allow additional slot machines for the tribal gaming operations. The nation asked the court to order the state to negotiate a conclusion within 60 days or be subjected to mediation, which is in accordance with the Indian Gaming Regulatory Act.

         An Inupiat family, descendants of Andrew Oenga, may be the first family ever to file suit against the federal government for allegedly mismanaging a lease agreement with an oil company, claiming that the Department of the Interior and BIA, failed to properly protect the family's right to equitable lease payments for oil that passed over the property.  

 

 

 

State and Local Courts

 

        In a ruling on a motion denying summary judgment,  Virginia Circuit Court Judge Charles Poston stated that an Indian tribe's reserved water rights claim cannot be dependant upon a tribe's federal recognition status alone, holding that the ''Winter's Doctrine,'' gives American Indian reservations first water rights and could be applicable to tribes in the Eastern United States. The case involves a suite by the Mattaponi Indian Tribe against the City of Newport News, VA, as part of its effort to prevent the building of a dam and a reservoir on the Mattaponi River. The river serves as a primary source of income for the Mattaponi Indians, whose members operate a shad hatchery on their reservation adjacent to the river. Opponents to the reservoir construction argue that the withdrawal of water from the river for the reservoir would adversely affect the shad spawning, harming the Mattaponi's economic,  cultural and religious practices.  Judge Poston also ruled that a tribe must show a necessity for water before making such a claim, and asked the tribe to specify how the state's riparian water laws wouldn't protect its water rights, as well as protect its cultural practices. The Mattaponi were amending their complaint to specify the necessity for the tribe having reserved water rights. However, in April, the Mattaponi Indian Tribe agreed to dismiss its lawsuit against the city of Newport News, Va., over a reservoir in return for a payment of $650,000 from the city. ''One of the tribe's reasons for not going forward in the suit is the treaty belongs to all of the Virginia tribes, not just the Mattaponi, and they were afraid the lawsuit would affect the treaty adversely,'' said Emma Garrison, Mattaponi attorney with the Georgetown University Law Center's Institute for Public Representation. ''There's always a chance a judge could interpret the treaty, limiting treaty protections. They wanted to make sure the treaty remained protected and intact.''

         A South Dakota Circuit Court denied a petition from a number of plains tribes for a writ of mandamus that would have compelled Meade County to hold a referendum vote on issuing malt beverage licenses  with in sound and sight of the sacred site  of Bear Butte,  three miles from Sturgis, SD, where 50,000 bikers converge every summer. Entertainment facilities that can accommodate 30,000 people are being built, or are in operation, in the Bear Butte area. The noise is disruptive of vision quests and ceremonies held at Bear Butte. An appeal to the South Dakota Supreme court was filed by petitioners on January 14. As of January,  it was possible that Bear Butte might get some protection from additional biker bars and mega-entertainment venues, with the help of Ellsworth Air Force Base. as The Meade County commissioners were considering zoning restrictions to protect the base, and the zoning could also be extended to the area around Bear Butte. As of June, zoning has not occurred, but Meade County commissioners have rejected a malt beverage license for the Broken Spoke campground, a popular biker hangout near Bear Butte during the annual Sturgis Motorcycle Rally in August, on grounds that the owner is not of good character, evidenced by his delinquency in paying business bills.

         The Washington Supreme Court ruled for the first time,  December 7, that an Indian tribe's sovereign immunity from lawsuits also shields the tribe's business ventures, barring a racial discrimination lawsuit filed against two Colville tribal corporations by Christopher Wright, a white construction worker.  

         The New Mexico Supreme Court ruled, in March, that under gambling compacts with the state,  New Mexico courts have jurisdiction over personal injuries at tribal casinos. The decision involved  two suits, one involving allegations of injury to two people from slipping on a floor mat and falling at a San Felipe Pueblo casino, and the other an alleged sexual assault of a 15 year old girl, after abduction from the Santa Clara Pueblo gaming facility.

         The state of Connecticut filed an action in state Superior Court in Hartford, Ct on Dec. 14 on behalf of the Division of Special Revenue Executive Director Paul Young, against the Mashantucket Pequot Tribal Nation's Foxwoods Resort Casino, claiming that the value of the ''Free Slot Play'' coupons, worth between $5 and $1,000, given to patrons of should be included in the slot machine revenues that the tribe pays to the state.

The Hydaburg Cooperative Association, the city of Hydaburg, the Central Council Tlingit and Haida Indian Tribes of Alaska, the Organized Village of Kake, Alaska Community Action on Toxics and the Southeast Alaska Conservation Council sued the state, Sept. 29, claiming the Department of Environmental Conservation ignored overwhelming public opposition in issuing a permit allowing Klukwan Inc., A Native corporation, to spray to suppress red alder and salmonberry, two native species that limit regrowth of conifer trees on the clear-cut  land,  from the air on close to 2,000 acres of Long Island near Prince of Wales. The groups claim aerial spraying of poison could affect fishing waters and wildlife habitat.

 

Tribal Courts

         The Navajo Supreme Court heard oral arguments February. 12 in Navajo Transport Services Inc. v. Schroeder, raising the question of whether the Schroeders, whose liquor store is located 25 miles from Dine' Bikeyah (Navajoland) in Colorado, can be sued in tribal court for selling a case of beer to Navajo resident Amos Yellowhair, who caused a head-on collision June 28, 2001, on Navajo land, killing himself and his infant son, and permanently disabling Walter Belin. Yellowhair was driving under the influence of alcohol, according to the police report. Oral arguments were heard by Navajo Supreme Court justices and their staff at Dartmouth College, in New Hampshire as part of an educational project to raise awareness about Indian nations and their status as sovereign entities with a government-to-government relationship with states and the federal government. The event was sponsored by Dartmouth College and Vermont Law School. The court has traveled to Harvard, Stanford, the University of Colorado and other institutions of higher education.

            On Dec. 18, 2006, William Boyum was sworn in as the first tribal member to become Chief Justice of the seven-year-old Eastern Cherokee Nation Supreme Court.

 

 

States, Localities, and Indian Nations

The Maine legislature is considering a resolution ''To Continue the Tribal-State Work Group,'' with a legislative stamp of approval of the group that was created last summer by an executive order from Gov. John Baldacci. The work group consists of two state senators; two state representatives; seven representatives from the Aroostock Band of Micmacs, the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe of Indian Township, the Passamaquoddy Tribe at Pleasant Point and the Penobscot Nation; one governor-appointee; and one representative from the Maine Indian Tribal-State Commission. The group will review the Maine Implementing Act, which was passed to put into action the Maine Indian Land Claims Settlement of 1980, a precedent-setting land claim lawsuit that was the first to use the 1790 Non-Intercourse Act. Differences in interpretation of the act have been a cause of state-tribal friction for more than25 years. The work group has an early January 2008 deadline to produce a report of its findings and recommendations for legislative action. Tribal leaders hope the group will effect revisions to a state law that will affirm tribal sovereignty and usher in the government-to-government relationship the tribes and state should enjoy under the law.

         The Connecticut legislature's House passed a bill to create a state commission on Native American Affairs, to replace the Connecticut Indian Affairs Council, which is embedded in the state Department of Environmental Protection, but the legislative session ended before the senate could vote on it, killing the measure for the time being. Many tribal leaders believe that launching the new commission would be a first step in reconciliation between the state and its three unrecognized tribes.

            Patricia DePerry, chairman of the Red Cliff Band of Ojibwe in Wisconsin, delivered the 3rd Annual ''State of the Tribes'' address to the Wisconsin State Assembly regular session on March 1, calling for cooperative action between tribal and state legislators.

            The Arizona Department of Economic Security and the Navajo Nation signed an agreement, in December, ensuring that Navajo children needing foster care will be raised and cared for by their relatives. The arrangement  allows the nation to be reimbursed hundreds of thousands of dollars in foster care for Navajo children, and provides for training and licensing families related to the foster children to enable them to be raised in a home environment with relatives.

         New York  Governor Eliot Spitzer has proposed a settlement in the long dispute between the state and local Indian nations over the state’s attempt to collect cigarette taxes on tribal sales to non-Indians. Spitzer has suggested a tax on Indian cigarettes that would end the tribes' price advantages over non-Indian competitors, but share the revenue with Indians, on March 20. At the same time, in a change from previous promises and threats  to collect state taxes on tribal cigarette sales, the New York state attorney general's office is seeking a declaratory judgment verifying that tribal nations and the distributors who sell them cigarettes are exempt from paying tobacco excise taxes. If such a ruling were given, it could be a de facto affirmation of tribal sovereignty and immunity; however, tribal leaders expressed wariness in their response to the legal action, perceiving the state's motion is not motivated by support of Indian sovereignty and immunity, but more likely aimed at avoiding further lawsuits from the big tobacco companies. Meanwhile, a March 15 letter from Interior Department Deputy Solicitor Lawrence Jensen gave the state and the Oneida Indian Nation until April 30 to begin negotiating a new compact on its Turning Stone Resort and Casino in central New York. If they do not, the department will announce its ruling on whether Turning Stone can be allowed to remain open by June 14. Jensen stated that state compact negotiations with the Oneidas need to be concluded and a compact submitted for department review no later than Oct. 1. On June 13, the Department of the Interior announced its decision that the Oneida Indian Nation of New York's Turning Stone Resort and Casino will remain open. A court decision ruled the original compact negotiated by the tribe with the state’s then governor illegal because it was not approved by the New York legislature. In March, A decades-old proposal for a casino in the Catskills took a major step with Governor Spitzer signing an agreement with the St. Regis Mohawk tribe, under which the nation will to build and operate a gaming center at Monticello Raceway, with the state receiving 20% of the revenue from slot machines for the first two years, 23% for the next two years and 25% percent after that, and state tax, labor and health laws applying at the facility. A court decision ruled the original compact negotiated by the tribe with the state’s then governor illegal because it was not approved by the New York legislature. In March, A decades-old proposal for a casino in the Catskills took a major step with Governor Spitzer signing an agreement with the St. Regis Mohawk tribe, under which the nation will to build and operate a gaming center at Monticello Raceway, with the state receiving 20% of the revenue from slot machines for the first two years, 23% for the next two years and 25% percent after that, and state tax, labor and health laws applying at the facility. A month after declaring travel on the stretch of New York State Thruway that crosses its reservation, an ''ongoing act of trespass,'' the Seneca Indian Nation said, May 16, it will charge the state a $1 toll for each vehicle traveling the highway.  

         Governor Bill Richardson and 11 of New Mexico's 13 gaming tribes reached an agreement, in February, that would allow more state oversight and a higher revenue-sharing rate in exchange for a longer gaming compact.  The new compact would continue until 2045,  raising the state share of casino profits from 9.25% to 10.75%, and would limit each tribe to two casinos, with the exception of Laguna Pueblo, which already has three. Approval was still needed from the state legislature and the BIA.

The Agua Caliente Casino and new $205 million hotel, to open March 2008, will now be within the boundaries of the city of Rancho Mirage, under an annexation agreement reached by the city and tribe. The city will annex the 40 acres of Agua Caliente Band of Cahuilla trust land along Interstate 10 and Rancho Mirage will receive more than $5 million in tribal impact fees. The city will also receive about $600,000 in annual bed tax revenue The deal leaves tribal sovereignty intact while guaranteeing public safety services and road improvements for gambling resort guests.

The Vermont Commission on Native American Affairs, in April, asked the state legislature to clarify who has the authority to recognize the state's Abenaki tribes and bands for the purpose of labeling Native artists and artisans' work under the federal Indian Arts and Crafts Act of 1990. 

         Washington Department of Revenue officials said, February 8, that they intend to terminate a cigarette tax agreement with the Yakama Nation because the tribe has failed to adhere to the compact, as cigarettes continued to be sold on the reservation without valid tribal tax stamps, in violation of the agreement. Two sets of rules that the Oklahoma Tax Commission passed last year to prevent tribally licensed tobacco stores from improperly selling cigarettes with a lower, 6-cent tax stamp, that's meant for products sold near Oklahoma borders are no longer operational. The first rule was suspended after the Osage Nation filed its lawsuit. The second rule, which went into effect in June, has been withdrawn pending arbitration to determine if it and another rule violate tribal tobacco compacts.

         The New Mexico Indian Affairs Commission, in November, approved $400,000 toward the $1 million construction of a new chapter house at the Upper Fruitland Navajo chapter in northwestern New Mexico.

         The State of Wyoming has signed an agreement with the Northern Arapaho Tribe, formalizing the delivery of social services to needy families by the Wyoming Department of Family Services to the tribes since the 1970s, which is currently undertaken through the federal Temporary Assistance for Needy Families program

         The Wampanoag Tribe of Gay Head (Aquinnah), on January 6,  approved the ''Intergovernmental Agreement on Cooperative Land Use and Planning Between the Wampanoag Tribe of Gay Head (Aquinnah) and the Town of Aquinnah, MA. aimed at easing what have been troubling jurisdictional battles over land use and establishing a dispute resolution scheme to help keep both governments out of court. The town's Board of Selectmen scheduled a special town meeting to vote on the document on March 8.

         Charles Mix County, SD, home of the Yankton Sioux Reservation,  which  was recently forced by the U.S. district Court to create one district with a large number of American Indian voters, under the federal Voting rights Act of 1964,  voted in December to increase the number of county commissioners from three to five, which would water down the American Indian say in county government from one commissioner (an American Indian represents the district with a large Native population) in three, to one in five. The American Civil Liberties Union's Voting Rights Project, said the organization has considered blocking the new plan.

         Discrimination and racist acts against Native people, though less than some years ago, continues to be a serious problem in Farmington, NM, bordering the Navajo Reservation. In October, the Navajo Nation Council began considering a report prepared by People's Legal Services on the problem, and what might be done about it. ''One solution might well be for the Navajo Nation Council to provide a forum for such reporting, internal to the Navajo government, one in which the Dine' can feel safe to come and state what has happened to them.'' Another proposal was for a joint panel made of border town officials and Navajo officials and legal assistance for Navajos to pursue claims. The council already had on its agenda another suggestion, development of a human rights commission.

            The North Dakota State Historical Society Board passed a resolution, January 5, to return 5 acres of land known as the original grave site of Sioux Chief Sitting Bull to the Standing Rock Sioux Tribe, following a request from the Tribe. The land had been donated to the state in 1956 to establish a state historic site.

            The Tomah, WI School District voted, October 19 to retire its “Indians” logo and mascot at the end of the school year. The decision came after the State Department of Public Instruction urged all Wisconsin school districts to drop Indian nicknames.

 

 

Tribal Developments

          A very important research breakthrough has been made that may lead to a cure for diabetes, which is a terrible health problem for many Native Americans. A Toronto hospital reported, December 15, that they have proof the body's nervous system helps trigger diabetes, opening the door to a potential near-cure of the disease. Diabetic mice became healthy. virtually overnight. after researchers injected a substance to counteract the effect of malfunctioning pain neurons in the pancreas. For more information, see, Tom Blackwell, “Diabetes breakthrough: Toronto scientists cure disease in mice”, National Post, , December 15, 2006. The Indian Health Service reported a 30% increase in methamphetamine patients seen from FY2004 to FY2005, and (tentatively – data is not yet complete) an additional 15% rise in Meth contacts in FY2006.

         Amnesty International (AI) issued a report, in late April, on the failure to protect Indigenous women from sexual violence in the United States, and steps that can be taken to change the situation. AI communicates that one in three American Indian or Alaska Native women are raped at some point in their lives. Most do not seek justice because they know they will be met with inaction or indifference. “The right to exist in a world free from violence is a basic tenet in many indigenous cultures and governments. The epidemic of sexual violence perpetrated against Native American women in the United States reflects a fundamental breakdown in the cultural and legal norms that have served to provide protection to Native women from time immemorial.” AI states that first steps to stop the violence are that comprehensive data collection must be undertaken to establish the extent of the problem, and adequate law enforcement and access to forensic examinations must be made available.  The report and other materials are available at: http://web.amnesty.org/actforwomen/usaindigenous-

240407-editorial-eng. 

         According to Department of Justice, 2006 statistics using the National Crime Victimization Survey, from 1993-2004, the domestic violence rate for nonfatal, intimate partner violence for women was highest for Native American women, of all groups measured, at 18.2 victimizations per 1000, more than 7 times that of the U.S. average for women. The rate per 1000 during the same period was: 8.2 for Blacks, 6.3 for Whites and 1.5 for Asians. Other studies show that more than 60% of Native American women will be victims of assault in their lifetimes.

            Stephanie M. Schwartz reports on conditions on the 11,000-square mile (approximately 2.7 million acres) Pine Ridge Reservation in South Dakota, home to approximately 40,000 persons, 35% of whom are under the age of 18, in one of the poorest counties in the United States. The latest Federal Census puts the median age at 20.6 years. The population is slowly increasing as a growing number of Oglala Lakotas return home from far-away cities to live within their societal values, be with their families, and assist with the revitalization of their culture and their Nation. Approximately half the residents of the Reservation are registered tribal members of the Oglala Lakota Sioux Nation. The most recent Federal Census, indicates that 58.7% of the grandparents on the Reservation are responsible for raising their own grandchildren. Median annual income at Pine Ridge is approximately $2,600 to $3,500, while the unemployment rate on is said to be around 83-85%, but higher during the winter months when travel is difficult to impossible. As of 2006, some 97% of the population was living below Federal poverty levels. There is little industry, technology, or commercial  infrastructure on the Reservation to provide employment. There are few improved (paved) roads on the reservation and most of the rural homes are inaccessible during time, is120 miles from Pine ridge, while the nearest large city,  Denver, Colorado is some 350 miles away,  so that there is little nearby employment opportunity for largely isolated people, with little reliable transportation, on a reservation with poor and undeveloped infrastructure. There is no public transportation available on the reservation, and only a minority of reservation residents own an operable automobile, so that the predominant forms of travel are walking and hitchhiking. There is one very small airport on the reservation, with no commercial flights, servicing  both the Pine Ridge Reservation and Shannon County. The nearest commercial airport and/or commercial bus line is 120 miles from Pine Ridge, in Rapid City.

            Life expectancy on the Pine Ridge Reservation is variably reported as averaging 45 years over all, to being 48 years old for men and 52 for women. Current USDA Rural Development  documents show that the Lakota have the lowest life expectancy of any measured group in America, well below the 77.5 years average  life expectancy for the country as a whole. The teenage suicide rate on the Pine Ridge Reservation is 150% higher than the U.S. national average. The infant mortality rate is the highest in North America and is about 300% higher than the U.S. national average. More than half the Reservation's adults battle addiction and disease, with alcoholism, diabetes, heart disease, cancer, and malnutrition  pervasive. The rate of diabetes on the Reservation is reported to be 800% higher than the U.S. national average, with 50% of the adults on the Reservation over the age of 40 having diabetes As a result, diabetic-related blindness, amputations, and kidney failure are common. The tuberculosis rate on the Pine Ridge Reservation is approximately 800% higher than the U.S. average. Cervical cancer is 500% higher than for the U.S, as a whole. It is reported that at least 60% of the homes on the Pine Ridge Reservation are infested with Black Mold (Stachybotry), which causes a number of serious health problems, including an often-fatal condition with infants, children, elderly, those with damaged immune systems, and those with lung and pulmonary conditions at the highest risk. Exposure to this mold can cause hemorrhaging of the lungs and brain, as well as cancer. The mold infestations are so serious that the only solution would be to destroy the house, but there are no insurance or assistance programs to replace them. A Federal Commodity Food Program is active, but supplies mostly inappropriate foods that are high in carbohydrate and/or sugar, which is very unhealthy  for the largely diabetic reservation population.  A small non-profit food co-op provides healthier food on the reservation, at less than commercial prices, but many people do not have the money to participate. Many Pine ridge residents live without health care due to long travel distances from homes to Indian Health Service facilities, which are under-funded, under-staffed, and suffer from outdated or non-existent medical equipment. Preventive healthcare programs are rare. There is one small independent (non-IHS) clinic on the reservation at the community of Porcupine, founded and controlled by the Lakota community.  Despite a small budget, it recently obtained its first dialysis machine and runs an aggressive program to combat diabetes. 

            Alcoholism affects eight out of ten families at Pine Ridge. The death rate from alcohol-related problems on the reservation is 300% higher than rest of the U.S. population. The Oglala Lakota Nation has prohibited the sale and possession of alcohol on the Pine Ridge Reservation since the early 1970's. However, the town of Whiteclay, NB (which sits 400 yards off the Reservation border in a contested "buffer" zone) has approximately 14 residents and four liquor stores, which sell over 4.1 million cans of beer each year, resulting in a $3million annual trade. The school drop-out rate is over 70%. The Bureau of Indian Affairs (BIA) reports, that Pine Ridge Reservation schools are in the bottom 10% of school funding by the U.S. Department of Education and the Bureau of Indian Affairs. Teacher turnover is 800% that of the U.S. national average.

            The small BIA/Tribal Housing Authority homes on the Pine Ridge Reservation are overcrowded and scarce, resulting in many homeless families who often use tents or cars for shelter. Many families live in old cabins or dilapidated mobile homes and trailers. According to a 2003 report from South Dakota State University, the majority of the current Tribal Housing Authority homes were built from 1970-1979. The report brings to light that a great percentage of that original construction by the BIA was "shoddy and substandard." The report also states that 26% of the housing units on the Reservation are mobile homes, often purchased or obtained (through donations) as used, low-value units with negative-value equity. Even though there is a large homeless population on the reservation,  most families never turn away a relative no matter how distant the blood relation, so that many homes are extremely overcrowded with about 17 people living in each family home, which may only have two to three rooms.  Some larger homes, built for 6 to 8 people, have up to 30 people living in them.  The tribal council recently estimated a need for at least 4,000 new homes to combat the homeless situation. Over-all, 59% of the reservation homes are substandard, while more than 33% lack basic water and sewage systems, and 39% have no electricity. Water systems are inadequate,  so that many residents must carry often contaminated water from the local rivers daily for their personal needs. Some reservation families are forced to sleep on dirt floors.

            Many wells and much of the water and land on the Reservation is contaminated with pesticides and other poisons from farmin