Federal Indian Law Newsletter Board William Wood Holland & Knight LLP Ed It O R in Ch I E F Dawn Baum Co N T R I B U Ti N G Ed It O R , Wa S H I N G T O N , D.C

Fede r a l Indi a n Law Newsletter of the Federal Bar Association Indian Law Section Summer 2009 Issue u u A Wo r d Fr o m t h e Ch a i r Committee have been discussing potential panel topics By Elizabeth Ann Kronk and speakers for the 2010 Greetings! As you may know, I have been serving as the acting Annual Conference. If you chair of our section for the past few months, as our section chair, have any ideas to share, please Allie Greenleaf Maldonado, recently gave birth to a beautiful send your feedback to the baby girl. Although we miss Allie’s leadership, we are all incred- Annual Conference chair, ibly happy for Allie and wish her and her family all the best. Prof. Kristin Carpenter, at [email protected]. D.C. Midyear Conference It has been a truly humbling experience to serve as your acting Congratulations To The chair even these past months as there is so much going on within Newsletter Committee! our section. Our section Midyear Conference co-chairs, Heather On Sept. 12, 2009, Fed- FBA Pr e s i d e n t La w r e n c e Ba c a Dawn Thompson and Katie Morgan, have put together what prom- eral Indian Law received the a n d El i z ab e t h Kr o n k a t t h e FBA ises to be a stellar conference in Washington, D.C. We will return Outstanding Newsletter An n u al Me e t i n g a n d Co n v e n t i o n i n Okla h o ma Ci t y to the National Museum of the American Indian for the Midyear Award at the national FBA Conference, as it was an excellent venue last year. Our Midyear Annual Meeting and Convention in Oklahoma City. This is Conference is scheduled for Friday, Nov. 13, 2009. Our conference a great honor, as the section has never previously received this co-chairs have put together a wonderful day of panels, including: award and our section newsletter “beat out” many other excellent Ethics: Inter-Tribal Investment and Ownership; Tribal Bankruptcy: newsletters for the award. We all owe our Newsletter Committee Options During Difficult Economic Times; Beyond Land-Into-Trust: a tremendous amount of gratitude for the time and effort they Creative Land Ownership Options for Tribes; Civil & Regulatory give to creating this now award-winning newsletter that is of great Jurisdiction Fix; and a short panel on a federal court update. I am benefit to us all. Please join me in congratulating the members of confident that this year’s Midyear Conference will be an excellent our Newsletter Committee: Trent Crable, Neal DuBois, Tim educational opportunity for all, as well as the fun experience that Evans, Kate Fort, Cameron Fraser, Vanessa Ray-Hodge, Casey we have all come to expect from FBA Indian Law Section events. I Ross-Petherick, and Ann Tweedy. KUDOS! If you are interested look forward to seeing you in D.C. on November 13! in contributing to our award-winning newsletter, please contact the editor in chief, Bill Wood, at [email protected]. 2010 Annual Conference Our Annual Conference chair, Professor Kristen Carpenter, is Section/Division Leadership Training Program Update also already hard at work planning our Annual Conference, which In August, I had the opportunity to attend the annual sec- will once again take place at the Hilton Buffalo Thunder Resort tion and division leadership training program at the FBA on the Pueblo of Pojoaque (just north of Santa Fe, N.M.) on April Headquarters. As always, I was truly impressed with the dedication 9–10, 2010. Professor Carpenter is working with three co-chairs— Professor Angela Riley, Paul Spruhan, and Tracy Toulou—to Ch a i r continued on page 12 plan this year’s Annual Conference. Our conference chair and co- chairs bring a wealth of knowledge and experience to our Annual In s i d e Th i s Is s u e Conference, and I am confident that the Annual Conference will only continue to exceed expectations. This year’s conference Indian Law Cases, News, and Notes also promises to be our best one yet because it is our 35th Annual Supreme Court Update...... page 3 Conference. In recognition of this auspicious event, we have Inside the Beltway Update...... page 4 formed an Advisory Committee of some of the foremost experts in Southeast Update...... page 6 Indian law to work closely with our wonderful Annual Conference Southwest Update...... page 7 Co-chairs in planning the upcoming Annual Conference. The California and Hawai’i Update...... page 8 35th Anniversary Advisory Committee, chaired by Lawrence Pacific Northwest Update...... page 9 Baca, is composed of: Bob Clinton, Sam Deloria, John Echohawk, Feature Articles Walter Echo-Hawk, Doug Endreson, Paul Frye, Carole Goldberg, Tribal Leaders Weigh In on Climate Change Legislation...... page 10 Heather Kendall-Miller, Arlinda Locklear, Wilson Pipestem, Negotiations to Resume on Draft of the American Judith Royster, Gloria Valencia-Weber, and Sue Williams. The Declaration on the Rights of Indigenous Peoples...... page 11 Annual Conference co-chairs and 35th Anniversary Advisory is published by the Federal Bar Association Indian Law Section. ©2009 The Federal Bar Assoc Bar Federal The ©2009 Section. Law Indian Association Bar Federal the by published is Law Indian Federal

Federal Indian Law Newsletter Board William Wood Holland & Knight LLP Ed it o r In Ch i e f Dawn Baum Co n t r i b u ti n g Ed it o r , Wa s h i n g t o n , D.C. Trent Crable Law Offices of Kyme A.M. McGaw PLLC Co n t r i b u ti n g Ed it o r , No r t h w e s t Re g i o n Neal DuBois Taleff Law Office P.C. Co n t r i b u ti n g Ed it o r , Ro c k y Mo u n t a i n Re g i o n Timothy Q. Evans Holland & Knight LLP Co n t r i b u ti n g Ed it o r , So u t h e a s t Re g i o n Kate Fort Michigan State University College Of Law Fe a t u r e s Ed it o r Cameron Fraser Michigan Indian Legal Services Co n t r i b u ti n g Ed it o r , U.S. Su p r e m e Co u r t iation. All rights reserved. The opinions expressed herein are solely those of the authors unless otherwise specified. Sarah Perlman, Managing Editor. Managing Perlman, Sarah specified. otherwise unless authors the of those solely are herein expressed opinions The reserved. rights All iation. Vanessa Ray-Hodge Akin Gump Strauss Hauer & Feld LLP Co n t r i b u ti n g Ed it o r , Ca l if o r n i a /Ha w a i ’i Casey Ross-Petherick Native American Legal Resource Center, Oklahoma City University School Of Law Co n t r i b u ti n g Ed it o r , Ok l a h o m a Ann Tweedy California Western School Of Law Co n t r i b u ti n g Ed it o r , U.S. Su p r e m e Co u r t

FBA Indian Law Section Executive Board Elizabeth Ann Kronk University of Montana School of Law Ch a i r

Jennifer Harvey Weddle Greenberg Traurig LLP De p u t y Ch a i r

Heather Dawn Thompson Sonnenschein Nath & Rosenthal LLP Se c r e t a r y

Matthew L.M. Fletcher Michigan State University College of Law Tr e a s u r e r

D. Michael McBride Crowe & Dunlevy, P.C. Im m e d i a t e Pa s t Ch a i r Lawrence R. Baca Ch a i r Em e r it u s a n d FBA Pr e s i d e n t

2 Federal Indian Law In d i a n La w Ca s e s , Ne w s , a n d No t e s the exceptions in Montana v. United Sates and the role that tribal ownership of the land plays in establishing tribal Supreme Court Update est fire. In an attempt to attract the jurisdiction. Concluding that tribal The big news from the Supreme attention of the helicopter, she set a court jurisdiction was colorable under Court was the confirmation of Justice signal fire which grew into the Chediski the circumstances, the court noted that Sonia Sotomayor on Aug. 6, 2009. In forest fire that later combined with the tribe made “a compelling argu- addition, three petitions for certiorari the Rodeo fire. The combined Rodeo- ment that the regulations at issue are of particular interest to Indian County Chediski fire caused millions of dol- intended to secure the tribe’s political have been filed so far in the 2009-2010 lars in damage and burned more than and economic well-being, particularly term: Harjo v. Pro-Football Inc.; Elliot 400,000 acres. The White Mountain in light of the result of the alleged vio- v. White Mountain Apache Tribal Court; Apache Tribe brought eight claims lations of those regulations in this very and Barrett v. United States. against Elliott in tribal court, including case: the destruction of millions of dol- On Sept. 14, 2009, petition for alleged violations of tribal executive lars of the tribe’s natural resources.” certiorari was filed in Harjo v. Pro- orders, the tribal game and fish code, Elliott asks the Supreme Court to Football Inc. from the Court of Appeals the tribal natural resources code, and resolve the following question: “Can for the District of Columbia Circuit. common law negligence and trespass. a tribal court assert jurisdiction over a In the late 1990s, a group of Native Elliott brought a motion to dismiss for nonconsenting non-Indian and force Americans petitioned to cancel the lack of jurisdiction, which the tribal her to defend against civil claims in Washington Redskins football team’s court denied; she then sought inter- that unfamiliar forum when it is plain trademark registrations on the grounds locutory review with the tribal appel- that the tribal court has neither regula- that the registrations disparaged Native late court, which denied her request on tory nor adjudicatory jurisdiction and peoples. In 1998, the Trademark Trial the ground that the tribe’s code did not where the conduct at issue by the non- and Appeal Board cancelled the regis- grant the court with jurisdiction to hear consenting non-Indian on tribal land trations, and the team sought judicial interlocutory appeals. does not and cannot ever threaten or review. The district court granted sum- Elliott next sought injunctive and directly effect the tribal political integ- mary judgment in favor of the team declaratory relief from the U.S. District rity, economic security, or the health or and Pro-Football Inc., thereby revers- Court for the District of Arizona. The welfare of the tribe?” ing the Trademark Trial and Appeal district court dismissed the case with- The White Mountain Apache Tribe Board’s order scheduling cancellation out prejudice because Elliott had not filed a brief in opposition to Elliott’s of the disputed marks. The district exhausted her tribal court remedies. petition for certiorari on October 16. court found that the doctrine of laches Elliott then appealed to the Ninth Petition for certiorari in Barrett v. precluded consideration of the can- Circuit, which upheld the district United States, an appeal from the Tenth cellation petition. After appeal and court’s dismissal of her federal court Circuit, was filed on June 6, 2009. John remand, the district court again granted case for failure to exhaust tribal rem- A Barrett Jr., the chair of the Citizen summary judgment for the team. The edies. The Ninth Circuit noted that Band Potawatomi Indian Tribe, argued appeals court then affirmed the district exhaustion of tribal remedies is a pre- that his salary as chair should be exempt court’s decision, and the Native plain- requisite to federal court jurisdiction from federal income taxes because he tiffs filed a writ of certiorari with the under Iowa Mutual v. LaPlante and was paid from a trust fund established Supreme Court. rejected Elliott’s arguments that either by the secretary of the Interior with Harjo and the other petitioners ask of the four exceptions to the exhaus- money awarded to the tribe as a result the Supreme Court to address “whether tion of remedies doctrine applied: the of various claims brought before the the doctrine of laches is applicable to court found that (1) the tribal court’s Indian Claims Commission. In 1983, a a cancellation petition filed pursuant assertion of jurisdiction was not “moti- plan was established for distributing the to Section 1064(3) of the Lanham Act vated by a desire to harass or … con- funds pro rata to tribal members and for despite the plain meaning of the statu- ducted in bad faith”; (2) that the tribal tribal programming, and the plan pro- tory language stating that such a peti- court action was not “patently violative vided that “[n]one of the[] funds distrib- tion may be filed ‘at any time.’” of express jurisdictional prohibitions”; uted per capita or made available under On Aug. 11, 2009, petition for certio- (3) that exhaustion would not be futile this plan for programming shall be sub- rari was filed in Elliot v. White Mountain for lack of an adequate opportunity to ject to Federal or State income taxes.” Apache Tribal Court from the Ninth challenge the tribal court’s jurisdic- In 1996, the trust fund was transferred Circuit. In 2002, Valinda Jo Elliott, tion; and (4) that it was not “plain” from federal to tribal management, with a non-Indian, and her employer were that tribal court jurisdiction was lack- yearly audit reports to be submitted to driving within the White Mountain ing (such that the exhaustion require- the secretary of the Interior. The Tribal Apache Reservation when they ran out ment “would serve no purpose other Business Committee, with the member- of gas and got lost. After being sepa- than delay”). In rejecting Elliott’s argu- ship’s approval, began to pay Barrett’s rated from her employer and wandering ment under the fourth exception, the salary from the trust fund without with- for three days, Elliott spotted a news Ninth Circuit analyzed whether the helicopter reporting on the Rodeo for- tribal court lacked jurisdiction under Ne w s continued on page 4

Fall 2009 3 Ne w s continued from page 3 holding federal income taxes. The IRS NCAI, was held on November 3. Also economic development (DAS-PED) determined that the chair’s compen- on November 3, Health and Human has become the principal deputy assis- sation was subject to federal income Services Secretary Kathleen Sebelius tant secretary (PDAS). The PDAS is taxes and issued a notice of deficiency. hosted tribal leaders in Washington, responsible for the Office of Indian Barrett paid the amount due and filed a D.C. Gaming; the Office of Self Governance; complaint in federal district court seek- On October 30, in another his- the Office of Federal Acknowledgment; ing review of the IRS’s determination. toric move, President Obama issued a and the Office of Regulatory affairs and On summary judgment, the district proclamation declaring November as Collaborative Action, an office that court agreed with the IRS and upheld Native American Heritage Month. The was added to oversee new and revised the additional penalty. Barrett then proclamation recognized the prominent federal regulations. A new position appealed to the Tenth Circuit, which role that American Indians and Alaska of deputy assistant secretary for pro- affirmed the lower court. The Tenth Natives have played in the history of grams (DAS-PRO) has been added to Circuit reasoned that any exception America as “inventors, entrepreneurs, oversee the Office of Indian Energy from federal income taxes should be spiritual leaders, and scholars.” and Economic Development (formerly clearly expressed; that the exception On June 24, the newly sworn-in under the DAS-PED); the Office of contained in the 1983 plan did not assistant secretary for Indian affairs Facilities, Environmental and Cultural encompass the compensation paid to at the Bureau of Indian Affairs, Larry Resources (formerly under the deputy Barrett as chair; and that, even if it EchoHawk, issued an opinion on a assistant secretary for management); did, the tax exemption in the plan was land into trust application by the and the Office of Trust Policy and not sufficiently specific to exempt his United Keetoowah Band of Cherokee Rights Protection, a new office created salary. Indians. The opinion reversed the to oversee trust resource programs and Barrett appealed to the Supreme regional director’s past decisions that help tribes manage their trust lands and Court and the presented the fol- the Cherokee Nation of Oklahoma assets. A new chief of staff will over- lowing questions: (1) “Whether an has exclusive jurisdiction within the see the assistant secretary’s immediate Indian tribe can use Indians Claims historical boundaries of what the opin- staff, the Office of Counsel, the Office Commission Act funds, appropriated ion the called “the historical Cherokee of Public Affairs, and the Office of by Congress and distributed to the tribe Nation,” to which the opinion found Congressional and Legislative Affairs. with a specific exemption from federal both the United Keetowah Band and (The latter two offices were previously income tax, to pay federal income tax the Cherokee Nation of Oklahoma combined in the Office of External exempted salaries to elected officials to be modern successors. The United affairs under the PDAS.) The deputy the tribe is required to have under its Keetoowah Band organized in 1950 assistant secretary for management con- tribal constitution;” and (2) “Whether under the Oklahoma Indian Welfare tinues to be responsible for the Office of the imposition of a penalty by the Act, a federal law similar in purpose to the Chief Financial Officer, the Office Internal Revenue Service against the the Indian Reorganization Act. And, of Human Capital Management, and tribal chair for sovereign legislative according to the opinion, the Cherokee the Office of Chief Information Officer. actions of the tribe improperly infringes Nation of Oklahoma formed in 1975. Also, the director of the Bureau of on the tribe’s sovereign powers.” The The opinion signals a possible change Indian Affairs and the director of the Court, however, denied his petition on in policy that could affect land rights Bureau of Indian Education will now October 13. and other rights of tribes that have report directly to the assistant secre- reorganized their governments under tary. Inside the Beltway Update provisions of these two laws, particu- Fe d e r al Go v e r n m e n t Re c o g n i t i o n Both the executive and legislative larly where more than one tribe claims a n d Re s t o r a t i o n o f In d i a n Tr i b e s branches of the federal government origins in a single historical tribal gov- On July 15, the House Natural have been active in Indian affairs this ernment. Resources Committee held a hearing on summer and fall. On August 10, EchoHawk issued a federal recognition with testimony con- On November 5, President Obama proclamation setting aside a reservation cerning the situations of the Duwamish hosted the Tribal Nations Conference for the Match-e-be-nash-she-wish Band Tribe, the Burt Lake Band of Ottawa at the U.S. Department of the Interior of Pottawatomi Indians of Michigan, and Chippewa, the Chinook Nation, auditorium, the first of the annual meet- also known as the Gun Lake Tribe. The and the Little Shell Chippewa Tribe of ings he pledged to hold with tribal lead- tribe broke ground in September on its Montana. On July 22, Environmental ers during his campaign. In conjunc- new casino project. Protection Agency Administrator Lisa tion with the historic conference, the Jackson reaffirmed the EPA’s long- National Congress of American Indians Ne w s f r o m Wi t h i n t h e BIA standing Indian Policy recognizing held a Tribal Leaders Pre-Meeting and EchoHawk approved a reorganiza- the right of tribes, as sovereigns, to Reception on November 4. Also, a cer- tion of the bureau’s central office orga- self-determination; acknowledging the emony for the opening of the Embassy nizational and reporting structure. The federal trust responsibility to Indian of Tribal Nations, which will house the deputy assistant secretary for policy and tribes; and pledging to continue the

4 Federal Indian Law government-to-government relationship on Indian Affairs held an oversight hear- On September 24, 2009, Sen. Byron with tribes to protect the land, air, and ing on federal recognition. Dorgan (D-N.D.) introduced a technical water in Indian Country. amendment to the Indian Reorganization Secretary of Interior Kenneth Salazar Gam i n g Re g u la t i o n s Act (S. 1703), affirmatively clarifying announced on August 7 a new policy On August 25, the day before the the authority of the secretary of the to provide regular status updates to the regulations were scheduled to take Interior to take land into trust for all American public on Indian trusts, which effect, the National Indian Gaming tribes, regardless of when recognized. are currently estimated to include $3.5 Commission extended the effective date This legislation is commonly known billion in funds and 56 million acres of of its amended regulations to Dec. 31, as the Carcieri-fix bill. Legislation to land. 2009. The amended regulations clarify address the Supreme Court’s decision in The Department of Interior restored appellate procedures; update various Carcieri v. Salazar was also introduced the Delaware Tribe of Oklahoma by cost, fee, and reporting provisions; and in the House in October by, respective- certifying the tribe’s election adopting a add gaming on ineligible lands to the ly, Rep. Dale Kildee (D-Mich.) (H.R. new Constitution under the Oklahoma class of substantial violations warrant- 3742) and Rep. Tom Cole (R.-Okla.) Indian Welfare Act, and the Delaware ing immediate closure. On October 7, (H.R. 3697). On November 3, top offi- Tribe was included on the revised list of the commission announced a one-year cials from the Obama administration federally recognized Indian tribes issued extension, to Oct. 13, 2010, of the effec- announced the White House’s support on August 11. The Wilton Rancheria tive date of the final rule for Minimum for a legislative fix to address Carcieri, was also added to the list under a court- Internal Control Standards (MICS) for and on November 4, the House Natural ordered settlement stipulation. (A Class II gaming. In other developments Resources Committee held a hearing on local city and county are petitioning regarding the NIGC, chair Phil Hogen H.R. 3742 and H.R. 3697. to reopen a lawsuit challenging the announced his retirement, and there are On October 15, Senator Dorgan intro- Wilton Rancheria’s recognition in the two new commission members. George duced a new version of the Indian Health U.S. District Court for the Northern Skibine, principal deputy assistant sec- Care Improvement Reauthorization District of California.) On August 17, retary for Indian affairs, will serve as and Extension Act (S. 1790), which in the first decision by the Office of chair until a permanent appointment is co-sponsored by 15 other Senators. Federal Acknowledgment issued under is confirmed. Steaffani Cochran, a citi- The House Committee on Energy and the Obama Administration, the Bureau zen of the Chickasaw Nation, has been Commerce–Subcommittee on Health of Indian Affairs issued a proposed find- appointed as an associate member of the held a hearing on the Indian Health ing against acknowledgment of the commission. Care Improvement Act Amendments of Brothertown Indian Nation (a 180-day And, on August 31, the White House 2009 (H.R. 2708). comment period follows the proposed Domestic Policy Council and Office of finding). Public Engagement held two listening Se n a t e He a r i n g s On October 1, Del. Deni Faleoavaega sessions that brought together several An oversight hearing to examine fed- (D-American Samoa) introduced the dozen tribal leaders and White House eral tax treatment of health care benefits Indian Tribal Federal Recognition officials to discuss the process of tribal provided by tribal governments was held Administrative Procedures Act, a bill consultation. on Sept. 18, 2009, and was followed by whose stated purpose is to provide for an amendment proposed by Sen. Kent an improved administrative process Ne w s f r o m Cap i t o l Hi ll Conrad (D-N.D.) to America’s Healthy for federal recognition. On October Sen. Al Franken (D-Minn.) joined Future Act that excludes future tribal 22, the Senate Committee on Indian the Senate Committee on Indian Affairs health benefits from being treated as Affairs passed S. 1178, the Indian Tribes (SCIA) in early July, shortly after being taxable income. On September 10, the of Virginia Federal Recognition Act sworn into office. The SCIA held several SCIA held a hearing on the Indian of 2009 (which would recognize the hearings and approved several pieces of Youth Suicide Prevention Act (Senate Chickahominy Tribe, the Chickahominy legislation—one of which was an apol- Bill 1635). On August 6, the Senate Tribe–Eastern Division, the Upper ogy resolution (Senate Joint Resolution Committee held a hearing the Native Mattaponi Tribe, the Rappahannock 14, titled “A joint resolution to acknowl- Hawaiian Government Reorganization Tribe, the Monacan Nation, and the edge a long history of official depreda- Act (Senate Bill 1011), where Deputy Nansemond Tribe) and S. 1735, which tions and ill-conceived policies by the Associate Attorney General Sam Hirsch would extend federal recognition to Federal Government regarding Indian voiced the Department of Justice’s sup- the Lumbee Tribe of North Carolina. tribes and offer an apology to all Native port for Native Hawaiian self-gover- On October 27, the Department of the Peoples on behalf of the United States”) nance. The SCIA held a hearing to Interior issued a final determination not that was passed by the full Senate on examine the increase of gang activity to acknowledge the Little Shell Tribe. October 6 as part of the defense spend- in Indian Country on July 30. And, fol- On the same day, Sens. Max Baucus ing bill. lowing a July 16 hearing on no-bid (D-Mont.) and Jon Tester (D-Mont.) The SCIA approved six bills on federal contracting preferences for introduced S. 1936, a bill to recognized September 10, including the Tribal Law Alaska Native corporations under the the Little Shell Tribe of Montana. And and Order Act (S. 797) and several on November 4, the Senate Committee water rights acts. Ne w s continued on page 6

Fall 2009 5 Ne w s continued from page 5

Small Business Administration’s 8(a) On the appointments front, Paxton of the Crow Tribe, was appointed as Business Development Program, Sen. Myers, a member of the Eastern Band of principal deputy assistant secretary of Claire McCaskill (D-Mo.) dropped an Cherokee Indians, replaced Kim Teehee Indian affairs on Aug. 4, 2009. amendment that would have instituted (who now serves as the senior policy • Sonia Sotomayor was confirmed as a cap on federal contracts for Alaska advisor for Indian affairs at the White U.S. Supreme Court Justice on Aug. Native corporations at $5.5 million. House Domestic Policy Council) as 6, 2009. (Sen. McCaskill vowed to continue to Rep. Dale Kildee’s (D-Miss.) advisor • Pilar Thomas, a member of the work on reform.) on Native American affairs, beginning Pasqua Yaqui Tribe, was appointed Sept. 15, 2009. Other appointments and deputy solicitor for Indian affairs at En e r g y , En v i r o n m e n t , a n d Na t u r al confirmations made for various indi- the Department of Interior Office of Re s o u r c e s Is s u e s viduals who will influence Indian affairs the Solicitor on Sept. 21, 2009. The SCIA also held several round- include the following: • Lilian Sparks, a Lakota woman of the table meetings to discuss Indian energy: Rosebud and Oglala Sioux Tribes, was in Tulsa on September 25; Albuquerque • Sandra Henriquez was confirmed as nominated as the commissioner of the on September 28; Washington, D.C., on HUD’s assistant secretary for pub- Administration for Native Americans September 30; Palm Springs on October lic and Indian housing on May 21, at the Department of Health and 13; Portland on October 19. Also, the 2009. Human Services on October 27. committee released an Indian Energy • Clara Pratte, a member of the Navajo and Energy Efficiency Concept Paper Nation, was appointed by the Small Several key Indian affairs positions on September 10 (available on the com- Business Administration to nation- remain unfilled, including the special mittee’s Web site at indian.senate.gov/ al director of the Office of Native trustee for American Indians at the public/), and is seeking comments in American affairs on May 29, 2009. Department of the Interior and the person or in writing. • Ignacia Moreno was nominated on chair of the National Indian Gaming On September 30, the House Natural June 8, 2009, for assistant attorney Commission. Resources Committee approved three general for environment and natural tribal water settlements bills (H.R. resources, but has not yet been con- Southeast Update 4065, H.R. 3254, H.R. 3342) for, respec- firmed. The Court of Appeals for the Eleventh tively, the White Mountain Apache • Mary Smith, a citizen of the Cherokee Circuit issued its opinion in Friends of Tribe; Taos Pueblo; and the Pueblos of Nation, was nominated for assistant the Everglades v. South Florida Water Nambe, Pojoaque, San Ildefonso, and attorney general for the Tax Division Management Dist., 570 F.3d 1210 (11th Tesuque. On September 21, Rep. Bob and reported out of the Senate Cir. 2009), a case involving the trans- Bennett (R-Utah) introduced legisla- Judiciary Committee on June 11, but fer of polluted canal water by pumps tion that would give control over the she has not yet been confirmed. operated by the South Florida Water Utah Navajo Trust Fund, a currently • Kim Teehee, a citizen of the Cherokee Management District into nearby Lake state-managed fund managing royalties Nation, was appointed as senior policy Okeechobee. The Miccosukee Tribe of from oil and gas production, to the advisor for Indian affairs at the White Indians of Florida participated as an Utah Dineh Corporation (the fund has House Domestic Policy Council on intervenor-plaintiff in the litigation. At been the subject of long-standing litiga- June 15, 2009. issue was whether the transfer was a “dis- tion over alleged mismanagement by • Elsie Meeks, a member of the Oglala charge of a pollutant” under the federal the state of Utah). The bill has been Sioux Tribe, was named state direc- Clean Water Act and thus whether the assigned to the Senate Committee on tor of the USDA Rural Development Water Management District would have Indian affairs. in South Dakota Office on July 27, to obtain a National Pollution Discharge On October 7, the House Natural 2009. Elimination System permit. That issue Resources Committee held a hearing on • Tracie Stevens, a member of the in turn depended on the meaning of the Native American Graves Protection Tulalip Tribes, was named senior “discharge,” defined in the Clean Water and Repatriation Act, at which witness- advisor to the assistant secretary of Act as “any addition of any pollutant to es discussed the inadequate funding of Indian affairs at the Department of navigable waters from any point source.” NAGPRA grants and the length of time Interior on July 30, 2009. Finding the definition of “discharge” and expenditure of resources required to • Paul Tsosie, a member of the Navajo in the act to be ambiguous, the court go through the repatriation process. And Nation, was named chief of staff to turned to EPA regulations adopted dur- on October 21, the Natural Resources the assistant secretary of Indian affairs ing the course of the litigation, under Committee held a legislative hearing on July 30, 2009. which the transfer of pollutants from one on H.R. 2523, the Helping Expedite • Wizipan Garriott, a member of the navigable body of water to another is not and Advance Responsible Tribal Rosebud Sioux Tribe, was tapped for an “addition of [a] pollutant to navigable Homeownership (HEARTH) Act. policy advisor to assistant secretary of waters.” The court held that the regula- Indian affairs on July 30, 2009. tions were entitled to Chevron deference Go v e r n n m e n t App o i n t m e n t s • Donald “Del” Laverdure, a member as a reasonable and therefore permissible

6 Federal Indian Law construction of the statutory language, guilty in a related criminal action) but not federally-recognized, has no function- in part because the EPA adopted in the instead remains intact until sentencing ing judiciary for resolution of intra-tribal regulations one of two constructions the (since Scanlon’s eventual sentencing disputes to which disputes can be referred court itself had considered. The court’s in the criminal case in the U.S. District prior to litigation, and has as its sole holding allows the Water Management Court for the District of Columbia could source of legal authority the state statute District to make the transfer without be adversely affected by his answering granting the tribe state recognition. obtaining a water discharge permit under the potentially-incriminating questions the Clean Water Act. in the deposition). Southwest Update At the district court level, the U.S. In a straightforward application of the The U.S. Court of Appeals for the District Court for the Western District doctrine of tribal sovereign immunity, Ninth Circuit decided two cases involv- of Louisiana issued an opinion in the court in Perry v. Seminole Tribe of ing the authority and immunity of tribal Coushatta Tribe of Louisiana v. Abramoff, Florida, No. 8:08-CV-2455-T-17TBM, police officers, and in particular claims No. 07-1886, 2009 WL 2406303 (W.D. 2009 WL 2365892 (M.D. Fla. July 30, for rights violations under Bivens v. Six La. July 31, 2009), part of the ongoing 2009) granted the tribe’s motion for Unknown Agents. Bressi v. Ford, 575 F.3d litigation regarding the Coushatta Tribe dismissal under Fed. R. Civ. P. 12(b)(1) 891 (9th Cir. 2009), arose out of a stop of of Louisiana’s claims against, inter alia, for lack of subject matter jurisdiction. a non-Indian by tribal police officers at Jack Abramoff, Michael Scanlon, and The case stemmed from the plaintiff’s a roadblock on a state highway crossing the tribe’s former law firm, Greenberg arrest at the tribe’s Tampa Reservation the Tohono O’Odham Nation Indian Traurig LLP, as an outgrowth of the Seminole Hard Rock Casino on DUI Reservation. When stopped at the road Jack Abramoff lobbying scandal. The and resisting arrest charges. The plain- block, which was set up under tribal parties settled the underlying litigation tiff, who had been acquitted in criminal authorization, Bressi refused to present by agreement, but there remained a court, then brought a civil case against his driver’s license or other identification dispute regarding Greenberg Traurig’s the tribe. The Court summarily found or give his name to the officers. After he and the firm’s insurers’ (insurer defen- that there had been no clear and express was cited by the officers for violating cer- dants) coverage and defense costs under waiver of immunity by the tribe or tain state laws, Bressi filed suit under 42 the firm’s professional liability insur- by Congress and therefore granted the U.S.C. § 1983 and Bivens, seeking relief ance policies. The insurer defendants tribe’s motion to dismiss. In light of its against the officers for his arrest (he also filed motions to stay the litigation and Rule 12(b)(1) dismissal for lack of sub- sought relief against the United States compel arbitration as to the coverage ject matter jurisdiction, the court denied under the Federal Tort Claims Act based dispute, and these motions were grant- as moot the tribe’s motion to dismiss for on a malicious prosecution claim arising ed. The tribe, Greenberg Traurig, and failure to state a claim under Fed. R. Civ. out of his aborted prosecution). Scanlon sought to have the underlying P. 12(b)(6) on the basis that 42 U.S.C. The district court granted summa- litigation dismissed based on the settle- § 1983 did not apply to the tribe or its ry judgment for the officers, finding ment agreement, but the insurer defen- individual defendant employees. that the operation of the roadblock was dants opposed dismissal until they were And in a state court case involving “purely a tribal endeavor” and that tribal permitted further discovery, including the rights of state recognized tribes, the sovereign immunity therefore barred deposing Scanlon. The judge allowed North Carolina Court of Appeals issued Brassi’s claims against the officers. (The the deposition of Scanlon to go for- its opinion in Meherrin Indian Tribe v. court also dismissed his claims against ward but stayed all other discovery. Lewis, 677 S.E.2d 203 (N.C. Ct. App. the United States because there was an During his deposition, Scanlon asserted 2009). Alleged newly-elected tribal offi- independent prosecutorial decision to the Fifth Amendment privilege against cers brought suit against purported for- pursue the complaint against Bressi.) self-incrimination and refused to answer mer tribal officers to quiet title to tribal The Ninth Circuit disagreed with the questions pertaining to information he property held by the former officers and district court’s finding that the road- disclosed to Greenburg Traurig attorneys seeking declaratory and injunctive relief. block was a purely tribal endeavor and during a Jan. 23, 2004, meeting. The The trial court denied the defendants’ found that it was improper for the dis- insurer defendants moved to compel pre-answer motion to dismiss for, inter trict court to grant summary judgment Scanlon to answer deposition questions alia, lack of personal and subject matter on the basis of the officers’ sovereign about the substance of the conversa- jurisdiction based on the assertion of immunity. The appeals court found that tions at the January 2004 meeting, but sovereign immunity. The appeals court because the officers’ inquiry went beyond the court denied the motion, sustained held that a motion for dismissal based determining whether Bressi was Indian Scanlon’s objection to questioning based on sovereign immunity must allege a or not—which, along with searching on his assertion of the Fifth Amendment lack of personal jurisdiction rather than non-Indians for evidence of crime or privilege, and released him as a witness. subject matter jurisdiction, and on the detaining them for obvious violations for Notably, the court upheld Scanlon’s merits found that the former officers of delivery to state officers, is all the court assertion of the privilege against self- the Meherrin Tribe, which is recognized said tribal officers can do with respect incrimination by pointing to a presump- by the state of North Carolina but not to non-Indians based on “purely tribal tion against waiver and finding that the by the federal government, could not authority”—and because the officers privilege is not waived or extinguished assert the defense of sovereign immunity by entry of a guilty plea (he had pleaded because the tribe has no reservation, is Ne w s continued on page 8

Fall 2009 7 Ne w s continued from page 7 treated Bressi’s refusal to show his driv- of whether the officers were acting as trict court’s order pending a decision on er’s license as a violation of state law, the federal agents or exclusively as tribal appeal, but the district court denied the roadblock functioned “not merely as a agents acting within the scope of their state’s motion. The state then filed a tribal exercise, but also as an instrument authority when they engaged in the motion for an emergency stay with the for the enforcement of state law.” Citing activity that was the subject of plaintiff’s Ninth Circuit, which was also denied. Oliphant v. Suquamish Indian Tribe, the Bivens claim. On October 5, the California Gambling court stated that “[i]n the absence of The Ninth Circuit also decided Elliott Control Commission held a drawing at some form of state authorization ... tribal v. White Mountain Apache Tribal Court, which 1,878 licenses were issued. (The officers have no inherent power to arrest 566 F.3d 842 (2009), a case involving licenses will be revoked if the Ninth and book non-Indian violators of tribal claims brought by the White Mountain Circuit overturns the district court’s law.” According to the Ninth Circuit, Apache Tribe in tribal court against ruling.) “a roadblock on a public right-of-way Valinda Jo Elliott, a non-Indian who In developments regarding Hawai’i, within tribal territory, established on set a signal fire which grew into a fire the Native Hawaiian Government tribal authority, is permissible only to that caused millions of dollars in damage Reorganization Act of 2009 (S. 1011), the extent that the suspicionless stop to and burned hundreds of thousands also known as the Akaka Bill, was intro- of non-Indians is limited to the amount of acres on the tribe’s reservation. The duced by Sens. Daniel Akaka (D-Hawaii) of time, and the nature of inquiry, that Ninth Circuit found that tribal court and Daniel Inouye (D-Hawaii) in May. can establish whether or not they are jurisdiction was colorable under the cir- The Senate Committee on Indian affairs Indians.” The court also found that since cumstances, and thus that the plaintiff held a hearing on the bill on August 6. the tribal officers were enforcing state had to exhaust her remedies in tribal As promised by President Obama on law and therefore acting under the color court. Elliott filed a petition for certiora- the campaign trail, the administration of state law they were required to abide ri with the U.S. Supreme Court, and the testified in support of the bill’s pas- by constitutional standards applicable to tribe has filed a brief in opposition. The sage and federal recognition of Native state officers enforcing roadblocks, stat- Elliott case is discussed in more detail in Hawaiians. As stated in the act, its ing “[i]f a tribe wishes to avoid such con- the Supreme Court Update. purpose is to reaffirm the United States stitutional restraints, its officers operat- special “political and legal” relationship ing roadblocks will have to confine California—Hawai’i Update with Native Hawaiians and to “pro- themselves, upon stopping non-Indians This California update focuses on the vide a process for the reorganization of to questioning to determine non-Indian latest developments in ongoing litiga- the single Native Hawaiian governing status and to detention only for obvious tion between several California tribes entity. The act would also establish a violations of state law.” and the state of California regarding the Office for Native Hawaiian Relations In Murgia v. Reed, No. 08-15618 (9th number of slot machines allowed under within the Office of the secretary of Cir. June 30, 2009), the defendants, who the 1999 tribal-state gaming compact, Interior and would require interagency were tribal police officers with the Gila under which most tribes in California coordination and consultation with the River Indian Community, appealed from operate. The federal district court in Native Hawaiian governing entity for the district court’s denial of their motion Cachil Dehe Band of Wintun Indians of the purposes of providing services to Native to dismiss for lack of subject matter Colusa Indian Community v. California, Hawaiians. And, the act would establish jurisdiction. (The Ninth Circuit permit- No. 2:04 civ. 02265 (ED. Cal. Aug. 19, a commission for purposes of developing ted the interlocutory appeal because 2009), issued a ruling which made final a roll of adult Native Hawaiians that the motion to dismiss was based on the court’s April 22 order directing the elect to participate in the reorganiza- tribal sovereign immunity.) The plaintiff state to issue 10,549 additional Class tion of the Native Hawaiian governing filed a Bivens action against the officers, III gaming licenses to eligible tribes. entity. Significantly, the act prohibits who moved to dismiss on the basis of (The court also ruled that the California the Native Hawaiian governing entity their being protected by tribal sovereign Gambling Control Commission has the from gaming under the Indian Gaming immunity and being exclusively tribal authority, under the compact, to oversee Regulatory Act, prohibits the secretary actors, not federal actors as required the draws for slot machine licenses; that of Interior from taking land into trust under Bivens. The district court found Colusa should be placed in a higher pri- and expressly states the Indian Non- that the officers were not entitled to sov- ority tier for future draws; that the fees Intercourse Act does not apply to past, ereign immunity because the complaint paid by tribes to enter draws for licenses present or future lands in the State of named them in their individual capaci- are not refundable; and that each ter- Hawaii. Lastly, the act states that noth- ties. But the appeals court reversed, cit- minal of a multi-station game should be ing in the act provides authorization for ing Ninth Circuit case law holding that counted as a separate gaming device for the Native Hawaiian governing entity or the fact that a tribal officer is sued in his licensing purposes under the compact.) its members from participating in federal individual capacity does not, without The state of California appealed the dis- Indian programs for which they are not more, establish that he lacks the protec- trict court’s ruling to the Ninth Circuit otherwise already eligible. tion of sovereign immunity. The court Court of Appeals on Sept. 2, 2009. The remanded the case for a determination state also filed a motion to stay the dis-

8 Federal Indian Law Pacific Northwest Update holding did not change, much of the he did not speak. And we pretend to The Court of Appeals for the Ninth more controversial dicta was removed determine what the Indian tribes did Circuit issued several decisions worthy from the court’s opinion. 150 years ago at a time for which there of note. On June 11, 2009, the Ninth In North Country Community Alliance is no evidence of especially high reliabil- Circuit amended its January 20, 2009 v. Salazar, 573 F.3d 738 (9th Cir. 2009), ity and little evidence of any kind. This decision in Phillip Morris v. King Mountain the court rejected a claim that the exercise is not law, and is not a reliable Tobacco, 569 F.3d 932 (9th Cir. 2009), National Indian Gaming Commission way to find facts, so it is hard to see why a case involving Phillip Morris’s federal and the Department of the Interior vio- courts are doing it and how it could be and state law claims for trade infringe- lated the Indian Gaming Regulatory Act preferable to the Indian tribes working ment against King Mountain Tobacco, by not making an “Indian lands determi- some dispute resolution system out for a corporation owned by Yakama Tribe nation” before approving the Nooksack themselves.” members and operated on the Yakama Tribe’s gaming ordinance or licensing At the federal district court level, Reservation. After Phillip Morris sued the tribe’s casino. The group of indi- the U.S. District Court for the Eastern King Mountain in federal court, King viduals that brought the suit also argued District of Washington in Pakootas Mountain filed an action for declara- that the approvals violated the National v. Teck Cominco Metals Ltd., 632 F. tory relief in Yakama tribal court, and Environmental Policy Act (NEPA). Supp. 2d 1029 (E.D. Wash. 2009), Phillip Morris asked the federal district The Ninth Circuit held that the federal dismissed Teck Cominco’s counter- court to enjoin the tribal court proceed- agency defendants did not need to make claims against the Confederated Tribes ings. In its January decision (discussed an Indian lands determination before of the Colville Reservation, finding in the Summer 2009 edition of Federal approving the tribe’s gaming ordinance that tribes are not “persons” subject Indian Law), the Ninth Circuit held that and license, and that NEPA did not to the Comprehensive Environmental exhaustion of tribal remedies was not apply. The court distinguished Citizens Response, Compensation, and Liability required, finding that under Montana v. Against Casino Gambling in Erie County v. Act of 1980 (CERCLA). The tribes United States the Yakama Tribal Court Kempthorne, a 2007 case from the United and some of their members sued Teck “d[id] not have colorable jurisdiction over States District Court for the Western Cominco, a metal smelter operat- nonmember Philip Morris’s federal and District of New York which held that ing in Canada, for contaminating the state claims for trademark infringement the NIGC chair had a duty to determine Columbia River, which serves as the on the Internet and beyond the reserva- whether a tribe’s proposed gaming would eastern and southern border of the tribes’ tion.” Perhaps the most interesting aspect occur on Indian lands before affirma- reservation. Teck Cominco asserted two of the January decision was not the court’s tively approving an ordinance for that CERCLA counter-claims, arguing that ultimate holding, but rather the major- gaming, by noting that the ordinance the tribes caused and contributed to ity’s attempt—in the words of concurring there was site-specific (that the compact the contamination. The court held that Judge William Fletcher—to “undermine there named specific locations where the definition of “persons” liable under the longstanding presumption of Williams the facilities could be built) whereas the CERCLA does not include Indian tribes, v. Lee. …” regarding the rights of Indian Nooksack Tribe’s ordinance was silent as rejecting Teck Comnico’s argument that tribes to make their own laws and govern to location. the term “municipalities” in CERCLA their members accordingly. In his con- And in United States v. Washington, should include tribes because tribes are curring opinion, Judge Fletcher criticized 573 F.3d 701 (9th Cir. 2009), the Ninth included in the definition of “munici- the majority opinion for discussing at Circuit affirmed the dismissal of the palities” in other environmental laws. length what it saw as the near irrelevance Skokomish Tribe’s request for a deter- In Lil’ Brown Smoke Shack v. Wasden, of which side of the litigation the non- mination seeking an equitable appor- No. CV 09-044, 2009 WL 2044409 (D. member was on and finding that the tionment of the Hood Canal Fishery. Idaho July 7, 2009), a tribally-owned Montana test applied in the same way The decision is notable if for no reason smoke shop brought suit seeking a declar- regardless of whether the nonmember other than its dicta. The appellate panel atory judgment that Idaho’s Minors’ was the plaintiff suing a tribal member concluded its decision by expressing sur- Access Act (I.C. §39-5701 et seq.), which or a tribal member suing a nonmember. prise that the district court’s continuing places certain registration and report- Judge Fletcher viewed this as unnecessary jurisdiction still exists, and essentially ing requirements on businesses that sell dicta that was not only a jab at Williams suggested that it should not. The court tobacco products to Idaho consumers, v. Lee but also in clear conflict with the noted that the U.S. District Court for could not be enforced against the smoke Ninth Circuit’s recent en banc decision the Western District of Washington shop because it is tribally owned and in Smith v. Salish Kootenai College. The has been acting as a fisheries regulating licensed and is located on tribal land amended June 11 decision addresses, at agency for more than 35 years, a job it is outside of the state. The defendants—the least to some extent, the issues raised by not suited for nor supposed to perform. Office of the Idaho Attorney General, Judge Fletcher: it notes that the case deals In the words of the Ninth Circuit: “It the Idaho attorney general as an indi- with only off-reservation activity, and is hard to see what we achieve in our vidual, the Idaho Department of Health the language that Judge Fletcher viewed continuing adjudications. We pretend and Welfare, and the director of the as an attack on Williams and in conflict to be able to read the mind of the Idaho Department of Health and Welfare with the en banc decision in Smith was long deceased district judge who initially removed. Thus although the ultimate issued the decree on matters of which Ne w s continued on page 10

Fall 2009 9 Tribal Leaders Weigh In on Climate Change Legislation By Kirsten Matoy Carlson, Indian Law Resource Center

s debate over the American Clean Energy and Security importance of tribal participation in Act of 2009 (ACESA) intensifies, Indian and Alaska assessing and addressing climate change ANative leaders are pushing members of Congress and by including them as participants in President Obama to ensure that tribes are treated as full sover- planning and programs related to car- eign partners in the national effort to curb climate change. bon capture and sequestration, hous- Climate change disproportionately affects Indian tribes and ing energy efficiency, loans for renew- Alaska Native villages throughout the United States. Flooding able energy activities, natural resources, and erosion caused by climate change threatens 86 percent of smart grid development, smart way all Alaska Native villages. Of the 184 Alaska Native villages transportation, transmission siting, and imperiled by rising sea levels, 12 have already asked to be water efficiency. permanently relocated. Throughout the hemisphere, climate The provisions of the ACESA bill dealing with interna- change has caused major shifts in wildlife migration patterns tional carbon offsets and deforestation activities also implicate and growing seasons, critically impacting the diet, cultural the rights of indigenous peoples outside the United States. In traditions, and livelihoods of Indian tribes and Alaska Native anticipation of and in conjunction with the Senate’s debate villages. and discussion on the bill, NCAI, NARF, and the Indian Law This summer, the House of Representatives narrowly passed Resource Center, among others, have been reviewing the bill’s the ACESA, the first comprehensive piece of legislation language to ensure that indigenous rights are respected and pro- aimed at addressing climate change and restricting uncon- tected as a condition of all projects qualifying for international trolled greenhouse gas emissions. The National Congress of carbon offsets and activities aimed at reducing deforestation American Indians (NCAI) is collaborating with the National and encouraging forest preservation. Deforestation activities, Tribal Environmental Council, Native American Rights Fund which account for nearly 20 percent of all carbon emissions, (NARF), and the National Wildlife Federation to provide undermine the ability of indigenous peoples to preserve and leadership and influence the direction of many provisions in protect their territories, natural resources, and culture. Strong the bill. language is needed in the ACESA to protect indigenous rights Tribes have been included in many sections of the 1,400- throughout the Americas, prevent further deforestation, and page bill, which provides tribes with access to many of the foster the forest stewardship and preservation activities that same resources for addressing climate change as state and local many indigenous peoples are already managing. governments. Tribes share in allowances made available for The bill was introduced in the Senate on September energy efficiency and renewable energy projects, domestic 30, and passed out of the Senate Environment and Public adaptation to climate change, natural resources adaptation Works Committee on November 5, ahead of next month’s activities, woodstove replacement programs, and residen- United Nations Summit on Climate Change in Copenhagen, tial energy efficiency programs. The bill also recognizes the Denmark, in December. w

Ne w s continued from page 9 as an individual—moved to dismiss the appeals, which held that the trial court are the “realtor” and the “defendant.” case, arguing that the suit was barred by erred when it dismissed a writ of manda- The court, noting that the tribe would the Eleventh Amendment and that the mus which sought to bar state officials clearly be a necessary party to a declara- court should abstain under the abstention from carrying out a gaming compact with tory judgment action seeking to invali- doctrine in Younger v. Harris. The court the Confederated Tribes of Coos, Lower date the compact, further held that a held that the Eleventh Amendment Umpqua, and Suislaw Indians. Oregon’s declaratory judgment action was not an required the dismissal of the Office of the procedural rules permit writs of manda- adequate alternative in the case because Attorney General and the Department mus only when there is no “plain, speedy the tribe could prevent the action from of Health and Welfare, but not the indi- and adequate remedy in the ordinary going forward by asserting its immunity vidual defendants, and that abstention course of the law[,]” and the trial court from suit and, according to the court, under Younger was not appropriate “in had dismissed the action after finding therefore had complete control over light of the predominant federal question that the realtors (the persons seeking the whether a declaratory judgment action regarding the State of Idaho’s jurisdiction writ) had a plain, speedy, and adequate could go forward. The court’s ruling is to enforce the [Minors’ Access] Act.” remedy in the form of a declaratory significant because it allows persons to In state court, the Supreme Court judgment action. The Supreme Court of bring writ of mandamus actions against of Oregon in State ex rel Dewberry v. Oregon held that the standard joinder Oregon state officials without joining Kulongoski, 210 P.3d 884 (Or. 2009), rules do not apply in mandamus pro- Indian tribes, thus preventing dismissals affirmed the decision of the court of ceedings since the only necessary parties for failure to join a necessary party. w

10 Federal Indian Law Negotiations to Resume on Draft of the American Declaration on the Rights of Indigenous Peoples By Kirsten Matoy Carlson, Indian Law Resource Center

n June, the General Assembly of the Organization of United States has and influence them to adopt laws and policies American States (OAS) reaffirmed its commitment to nego- more favorable to Indian tribes and Alaska Native villages. Itiate and adopt an American Declaration on the Rights of The on-going negotiation of the draft of the American Indigenous Peoples (the American Declaration). The American Declaration provides Indian tribes and Alaska Native villages Declaration is a regional human rights document establishing with an opportunity to craft the emerging international jurispru- the human rights of Indian tribes, Alaska Natives, and other dence of indigenous peoples’ rights. In 1999, the OAS established indigenous peoples throughout the Americas. Once adopted, it a working group to review and make changes to the declaration. will complement and strengthen the United Nations Declaration From the very beginning, indigenous representatives insisted that on the Rights of Indigenous Peoples that was adopted in 2007. these working group meetings be open to them. Currently, indig- The current draft of the American Declaration affirms the right enous representatives, including the governments of the Navajo of self-determination, treaty rights, rights to lands, territories, and Nation and the Six Nations Confederacy, attend the negotiation natural resources, cultural rights, and much more. A copy of the sessions of the working group to debate the articles and ensure most recent draft of the American Declaration on the Rights of that the declaration accurately reflects their interests. Indigenous Peoples can be found on the OAS Web site at scm. Tribal governments are welcome to participate in all working oas.org/doc_public/ENGLISH/HIST_08/CP20518E07.DOC. group meetings on the draft of the American Declaration and do Once adopted, the American Declaration may have the not have to register with the OAS to attend these meetings. The greatest practical and long-term impact of all the interna- working group negotiation sessions are usually convened at OAS tional mechanisms available to Indian tribes and nations in headquarters in Washington, D.C., but are sometimes hosted by North America—for several reasons. First, a strong American other OAS countries. Each negotiation session consists of a week Declaration will address particular regional issues in the Americas of discussions regarding the form and content of the articles of that are not dealt with in the UN Declaration. The draft of the the declaration, with the objective of reaching consensus between American Declaration already includes strong provisions on gen- country delegations and indigenous representatives. These ses- der equality and violence against Native women that were not sions are important not only for resolving differences regarding included in the UN Declaration and are particularly important to the text of the declaration, but also for advancing international Indian tribes and Alaska Natives in the United States. Second, thought and collaboration surrounding these fundamental rights. the OAS already has a good monitoring and complaint mecha- The OAS General Assembly has scheduled the first working nism in the Inter-American Commission on Human Rights, and group meeting on the draft of the American Declaration for the American Declaration would provide it clear rules to apply. Nov. 30–Dec. 2, 2009, in Washington, D.C. Another working Finally, because the draft of the American Declaration is still group meeting will be held before March 2010. More information under negotiation, it presents an important opportunity to get the regarding upcoming sessions can be found on the OAS Web site support of the United States and Canada, both of which voted at www.oas.org/consejo/cajp/working%20groups.asp#indigenous. against the UN Declaration and feel they are not bound to honor Tribal governments can also participate in the meetings con- it. An American Declaration passed with their support would vened by the Indigenous Caucus, an ad-hoc gathering of indig- hasten the establishment of binding, customary international law. enous participants that usually convenes two or three days prior Adoption of an American Declaration in the OAS with the sup- to the official working group meetings in order to consult with port of the United States and Canada could become the legal and each other and, where possible, develop common strategies and moral foundation for changing racist federal laws that undermine proposals for the negotiation sessions. These meetings are loosely the sustainability and threaten the existence of Indian nations organized and completely open to tribal governments and other and tribes in the Americas. indigenous representatives. As the American Declaration has yet to be adopted by the A special fund administered by the OAS is available to OAS, Indian tribes, and Alaska Native villages can influence facilitate indigenous participation in the working group. Tribal the draft text to ensure that it adequately protects their rights. governments may seek economic support from this specific fund Such international advocacy by Indian tribes and Alaska Native for travel and per diem expenses related to their participation in villages can be an important part of a multi-faceted, long-term the meetings. The criteria for receiving this support are available strategy for protecting tribal governments, lands, and resources. at www.oas.org/consejo/resolutions/res873.asp. Tribal govern- International legal standards, such as those in the draft American ment representatives who wish to apply should contact Luis Toro Declaration, can provide new legal and political arguments or Johanna Salah at the OAS Office of International Law: via for the protection of tribal rights to self-determination, land, phone at (202) 458-6377, by fax at (202) 458-3292, or by e-mail resources, and more. While tribes cannot usually expect courts in at [email protected] and [email protected]. the United States to enforce or rely solely on international law For more information on the American Declaration on the in their decisions, it can strengthen and complement domestic Rights of Indigenous Peoples and the Organization of American legal strategies. International advocacy can also educate elected States, contact the Indian Law Resource Center at mt@indian- government officials about the international obligations that the law.org. w

Fall 2009 11 Ch a i r continued from page 1 displayed by the FBA executive director, Jack Lockridge, and those of us in the audience, Lawrence’s installation as president staff members Stacy King and Adrienne Woolley. I enjoyed was truly a touching and memorable moment. In celebration of meeting the other section and division chairs and discussing pos- his installation, the Indian Law Section played a large role in the sible partnership opportunities for our section. I was also excited convention and hosted six panels, including: Criminal Jurisdiction to learn about many new possibilities for the Indian Law Section. in Indian Country; The Cherokee Freedmen; Issues and Ethics In particular, we are interested in mobilizing to our section com- for Lawyers Working with Corporate and Tribal General Counsel mittees and possibly developing webinars on topics of interest Parts I and II; Delivery of Veterans Services in Indian Country; to our membership. If you are interested in increasing your par- and The Roberts Court on Indian Law. A big thank you goes to ticipation in the FBA Indian Law Section, please contact me at Jennifer Weddle, who served as the liaison between the section [email protected]. and annual convention planners. It was truly a spectacular convention—in large part because of the tremendous role our section Update From FBA Annual Meeting and Convention and all of Indian Country played in making it a reality! Along with the section secretary-elect, Prof. Matthew Fletcher, It is an exciting time for the FBA Indian Law Section, and I immediate past section chair, Mike McBride, and current section have greatly enjoyed serving as your acting chair for the past few secretary/deputy chair elect, Jennifer Weddle, I attended the FBA months. I sincerely look forward to the possibility of serving you Annual Meeting and Convention held Sept. 9-13 in Oklahoma more in the future. Please feel free to contact me at any time with City. The FBA installed Lawrence Baca, the founder of our sec- questions or concerns at [email protected]. tion, as its first American Indian president on September 12. For Chi Miigwetch! w

(Le f t ) Pi n g a n d Mi k e McBr i d e , Wal t e r Ec h o -Ha w k , Co n v e n t i o n Ch a i r Wi ll Ho c h , a n d Pa u l i n e Ec h o -Ha w k ; (Ri g h t ) Si x j u d g e s i n d u c t e d La w r e n c e Ba c a a s FBA p r e s i d e n t : (l t o r) Ju s t i c e Wal t e r Ec h o -Ha w k , Pa w n e e Su p r e m e Co u r t ; Ch e i f Ju d g e Vi c k i Mi l e s - LaGr a n c e , We s t e r n Di s t r i c t o f Okla h o ma ; Ju d g e Bo b Ba c h a r a c h , We s t e r n Di s t r i c t o f Okla h o ma ; Ju d g e Mi c h e ll e Bu r n s , Di s t r i c t o f Ar i z o n a ; Ma g i s t r a t e Ju d g e Gu s t a v o Ge lp i , Di s t r i c t o f Pu e r t o Ri c o ; a n d Ju s t i c e D. Mi c h a e l McBr i d e , Pa w n e e Su p r e m e Co u r t .

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