Native American Law Blog

Obama administration: taking "top to bottom review" of gaming policy.

As we have reported earlier, New York Governor Patterson wrote to Interior Secretary Salazar, asking him "to undo a Bush administration policy that restricts taking off-reservation land into trust for gaming and prevents New York tribes from economic development." Patterson urged the Department to reverse the  “guidance memorandum” issued by his predecessor, Dirk Kempthorne, in January 2008. That memorandum cited  “commutability” as a new standard for denying off-reservation trust applications for gaming purposes – even though “commutability” does not appear anywhere in the federal regulations or procedures.

While no decison has been made yet,  Sen. Chuck Schumer (D-New York), called Larry EchoHawk,  the new head of the Bureau of Indian Affairs, this week, to discuss off-reservation casinos in the Catskills region of New York. As reported on Indianz.com, Schumer said that EchoHawk promised to review the land-into-trust process, taking a "top to bottom review" of gaming policy. Schumer went on to say " I hope that with a new administration we have a new way of thinking about applications that are finite, focused, appropriate for the region, and have strong community support." 

The Bush administration rejected two off-reservation casinos in the Catskills,

As promised, we will continue to follow this story. 

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Nebraska Court: ICWA trumps State Law

A Nebraska county judge rejected a motionby the Ponca Tribe, for a child welfare specialist to intervene in a case involving two Ponca children.  The court ruled that a motion to intervene in state custody proceedings should have only been filed by a state licensed attorney, as required by state law.  The Nebraska Supreme Court, however, said that the Indian Child Welfare Act trumps state law. The Court specifically held "We conclude that tribal participation in state custody proceedings involving Indian children is essential to achieving the goals of ICWA." 

See the report HERE. 

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Peter D'Errico, a respected Native American law attorney, comments on the theory behind Federal Indian Law

This is an interesting take on Federal Indian Law - how the basic premise behind ALL of it is flawed.  Here's a sample:

"Indian country needs to strip away the “pretense of conquest” and reveal the underlying reality of federal Indian law: a system designed to suppress sovereignty of Indian nations in keeping with a tradition of Papal Bulls and Christian political theology. Indian country needs lawyers not afraid to argue for indigenous sovereignty and against the “pretense of conquest through discovery.”

Echohawk demonstrated that NARF is not one of the challengers of pretense when he continued, “the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period.”

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law."

We're doubtful that anyone is going to get the US Supreme Court to overturn a couple of centuries worth of Indian law cases......but the whole notion is worthy of discussion and consideration (and stranger things have happened - see Brown v. Board of Education).

See the full editorial HERE on Indian Country Today.

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Decision by BIA head Echohawk puts Cherokee land-into-trust into doubt

The Tulsa World reports: 

BIA head's letter raises questions on rights

By CLIFTON ADCOCK World Staff Writer
Published: 6/26/2009  2:24 AM
Last Modified: 6/26/2009  3:26 AM

A decision by the new head of the Bureau of Indian Affairs puts the Tahlequah-based United Keetoowah Band of Cherokee Indians on equal jurisdictional footing with the Cherokee Nation and states that neither is the historical Cherokee tribe.

"The historical Cherokee Nation no longer exists as a distinct political entity," Larry EchoHawk wrote.

The decision has other implications, as well.

Unlike the Cherokee Nation, the UKB does not have any land in trust, although it has been fighting for that status. The decision by EchoHawk, obtained by the Tulsa World on Thursday, says the Keetoowahs and the Cherokee Nation have equal rights on land-trust issues.

EchoHawk's decision raises questions as to whether a recent U.S. Supreme Court decision prevents either tribe — and many other tribes — from putting land into trust status with the federal government.

See the full story HERE.

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Bureau of Indian Affairs to have "government to government" consultation with tribes to discuss Carcieri

Larry EchoHawk, head of the Bureau of Indian Affairs, has called upon tribal leaders to attend one of three 'consultation sessions' for the purposes of gaining their input as well as working together to "move forward." after the Carcieri decision. The consultations will take place on June 29 in Minneapolis, Minnesota; July 1 in Sacramento, California; and July 8 in Arlington, Virginia.

See Indianz.com for a link to EchoHawk's letter with specific times and locations of the meetings. 

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Casino lawsuit stalled by fight over evidence

As reported in the Native Times, "A lawsuit alleging the state has unfairly prevented the Flandreau Santee Sioux Tribe from adding slot machines to its casino is temporarily stalled by a dispute over access to possible evidence, including some records from former Gov. Bill Janklow’s administration held up by claims of executive privilege."

See the full story HERE.

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Followup - Feds ask for dismissal of lawsuit over remains of Geronimo

The NY Daily News reports:  "The U.S. Justice Department is asking a federal judge to dismiss a lawsuit brought by descendants of Native American leader Geronimo, whose remains were purported to be stolen by members of a secret society at Yale University.
The government filed the motion June 10 to oppose a lawsuit filed in February by 20 of Geronimo's descendants, who want to rebury the Apache warrior near his birthplace in southern New Mexico's Gila Wilderness."

See the full story HERE.

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Senate Indian Affairs Committee to hold hearing on Tribal Law and Order Act 2009

As reported back in April, the Senate Committee on Indian Affairs introduced major bi-partisan legislation April 2 of this year, to strengthen law enforcement and justice in Indian communities. The hearing is scheduled for Thursday, June 25,  and takes place at 2:15pm in Room 628 of the Senate Dirksen Office Building. According to the committee website, the hearing will be webcast at 2:15 EST. 

In a previous press release, the Chairman of the Committee, Senator Byron Dorgan, explained that the bill, S.797, was introduced in "response to violent crime that officials say have reached “epidemic” levels on some reservations due to chronic underfunding of law enforcement and justice programs, and a broken, divided system for policing Indian lands. The legislation is designed to boost law enforcement efforts by providing tools to tribal justice officials to fight crime in their own communities, improving coordination between law enforcement agencies, and increasing accountability standards." 

Dorgan went on to say that "American Indians deserve to feel safe in their homes, and safe in their communities . . . and the federal government has treaty and trust obligations that are supposed to see that they do. This legislation will not solve every problem over night, but it is an important effort to significantly change things for the better in many communities."

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Oregon Group allowed to challenge gambling compact

A group called PACT, People Against A Casino Town, seeks to challenge the gaming compact signed by former Gov. John Kitzhaber. They unsuccessfully sought to challenge the compact since before it was signed on the ground that the state consitution bans casinos and therefore, the governor had no authority to sign the Class III gaming compact. The group brought action in Lane County Circuit Court, U.S. District Court and the Oregon Court of Appeals. It wasn't until they brought it to the Oregon Supreme Court that they got the go ahead to have their day in court.   

Bob Garcia, spokesman for the Coos, Lower Umpqua & Siuslaw Indians said "We're disappointed in the decision . . . But it doesn't change the basic facts which are as long as the state engages in gaming under the Indian Gaming Regulatory Act, the tribes have the absolute right to engage in the same gaming the state does." He is referring to the 1988 provision in the Indian Gaming Regulatory Act that "requires a state to negotiate a compact with the tribe if the state already permits the type of gambling the tribe seeks to establish."

You can read the full story on OregonLive.com.

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August 28, 2009 National Native American Law Student Association Job Fair

Save the date!

The job fair will take place on Friday, August 28, in Washington D.C. Further details to follow. 

Turtle Talk has a link to the announcment HERE.

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Tribes will be able to offer online poker games under a bill being considered in California.

California is considering a bill which would allow Tribes with Class III gaming compacts (and non-Indian card clubs) to offer online poker. Federal law bars Internet gaming but contains certain exceptions for Indian gaming.

Jim Tabilio, president of Poker Voters of America said, “It’s a case of writing the bill so that it [maximizes] revenue to the state and participating tribes and clubs. Once that is successful, it becomes a simple matter of having the vote because if everyone is in [favor] of it, it will pass. This means we’re probably going to be able to get the bill through in mid-summer."  According to Tabilio, the bill has a lot of  support  in both the Assembly and the Senate. 

You can read the full story HERE.

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First ever Indian senior policy advisor for Native American affairs at the White House

For sure there are some moves that the Obama administration may be making that will not sit well with the Native American community, for instance, the possible removal of Diane Humetewa, U.S. Attorney for Arizona; but here is one that will: Kim Teehee, a member of the Cherokee Nation of Oklahoma and a former White House staffer, has been named as senior policy advisor for Native American affairs at the White House. 

As Indianz.com reports, "Teehee joins Jodi Gillette, a member of the  Standing Rock Sioux Tirbe, as the Native American staffers at the White House. Other Native appointees to the Obama administration include: Larry EchoHawk, a member of the Pawnee Nation of Oklahoma, as head of the Bureau of Indian Affairs;  Yvette Roubideaux, a member of the Rosbeud Sioux Tribe of South Dakota, as director of the Indian Health Service; and Mary Smith, a member of the Cherokee Nation, as assistant attorney general for the Department of Justice." 

Teehee will serve on the White House Domestic Policy Council and will advise Obama on Indian issues. She will play a role in the first-ever Tribal Nations Conference, which will be held at the White House this fall.

Read about it HERE.

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President Obama to replace only Native American US Attorney

In yet another slam to Native American interests for reasons of political patronage, President Obama is reported to be on the verge of removing the only Native American ever appointed to be a U.S. Attorney, Diane Humetewa, currently the US Attorney for Arizona.

She will be replaced by Dennis Burke, Obama campaigner and the former chief of staff to former Arizona governor, Janet Napolitano, who herself currently serves in the top position in Homeland Security for the Obama Administration.

Humetewa has so far declined to comment on the matter.

See the full story HERE in the Arizona Republic.

twp

Local newspaper posts story on American Indian Justice Conference

Having been at the conference, your erstwhile editor would say that this newspaper story doesn't give the entire picture of what went on at the conference in Ignacio this month.....but it does give an interesting perspective.  Here's a piece of the story from the Cortez Journal and Durango Herald:

"Tribes seek judicial autonomy

By Shane Benjamin
Durango Herald Staff Writer

Native American tribes across the country are fighting for more autonomy when it comes to managing their own judicial systems.

As it is now, the federal government largely stipulates how tribes must administer justice on reservations and to what extent they can apply the law.

Some tribes would like to do away with the Western model for adjudicating crime and practice a more traditional, peace-making approach - whereby criminal offenders avoid prison by participating in special programs, such as sweat lodges or exercise courses, as punishment. Other tribes want to tinker with the Western model and adjudicate more serious crimes.

The different approaches were discussed last week at the second annual American Indian Justice Conference held at the Sky Ute Casino in Ignacio."

You can find the rest of the story HERE.

twp

UPDATE: If Seminoles and State can't agree on gambling deal; Seminoles to ask Feds to govern gaming

Yesterday, as expected, Governor Crist signed the proposed gaming compact passed by the state legislature last month. Now the governor and the tribe have until August 31 to negotiate a final compact.

As reported last week, the tribal leaders are concerned about the deal because the tribe would have to give up some if its Class III games but still be required to share revenues, $150 million minimum annual payment to the state, for a total of $2.3 billion dollars. The tribe is also concerned about the fact that the deal does not guarantee exclusivity.  "Federal regulations state that tribes do not have to give any money to the state, except in exchange for such exclusivity." The attorney for the tribe said "If we cannot successfully achieve a compact, then we will seek federal authorization directly to engage in (Class III) gaming.” If that happens, the tribe would not only be able to bypass the state, but the tribe would also not have to hand over any money to the state.

The governor is hopeful that an agreement will be reached.

Read the story HERE.

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We've been wondering what's been going on with the Hopi Tribal government.....

......and we finally have a little bit of a clue.

Now, mind you, this is a LETTER to the EDITOR of the Navajo Times.  But it's the only news we've heard about what has, at least allegedly, been going on with the Hopi Tribal government, as reported here much earlier, in considerable disarray due to the resignations of the Tribal Chairman and Vice Chairman.

Anyway, here's the first part of the letter:

"Hopi council dodging constitution

On June 1 the so-called tribal council of the Hopi Tribe, after about an hour, decided to recess till June 26. As a result, no action was taken on agenda item 12-2009, "to conduct a special election due to the resignations of the Chairman and Vice-Chairman." On June 4, a special session of this body was called but again the agenda item 12-2009 was not mentioned.

After an investigation, I am convinced that this council will not allow 12-2009 to be approved. From my sources, I have learned that a few council representatives and the general counsel of the tribe decided in December that there was no need for a special election. As a result of this decision, 007-2009 was drafted and approved Dec. 28, 2008.

By this decision, these representatives and the general counsel deliberately decided to violate the amendment to the Hopi Constitution approved by the members of the tribe in August 1969 and also approved by the secretary of the Interior. Since 1969, this has been and continues to be the law of the tribe. This is a fact and not just my opinion.

They violated this amendment in two places. First, they violated Article IV, section 7, which reads as follows: "The Chairman and Vice-Chairman shall be elected by secret ballet by all members of the Hopi Tribe." This provided that the presiding officer of the tribal council, who is the chairman, shall no longer be elected from within the council as was done in the past. 007-2009 violated this law of the tribe by allowing the council to elect a presiding officer from the council.

Second, they violated Article V, section 5, which reads, "Vacancies occurring for any reason in the offices of Chairman and Vice-Chairman or in the office of any other officer shall be filled for the rest of the term in the same manner as those officers are ordinarily chosen."

This section continues to be violated because the general counsel and the members of the council are unwilling to allow a special election to take place. They interpret this section to mean that it does not authorize a special election because the word "special" is not in the section. Therefore, they reason that these vacancies can only be filled at the general election in November because this also said "in the same manner as those officers are ordinarily chosen."

You can read the full letter HERE......and we're happy to have anyone point us at any other information on this, too......you can see, also, a lengthy comment made on this matter posted in connection with our previous story on the topic from a Mr. Bill Havens.

twp

Turtle Talk: Tribes worse off under Robert's Court

Turtle Talk has posted a review of what the Court has done in Indian Law this term and the author provides a discussion of how "the Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse." 

Get the story HERE.

ddg

A reminder....National Tribal Trial College hosting conference on domestic violence in Indian Country

National Tribal Trial College
Domestic Violence: Advanced Issues For Tribal Prosecutors, Courts,
Law Enforcement, and Advocates
July 6-8, 2009

Mayflower Park Hotel
405 Olive Way
Seattle, Washington

The National Tribal Trial College is hosting a free 2 ½ day training for Indian Country criminal justice professionals, judges, and victim advocates July 6-8, 2009 in beautiful downtown Seattle, Washington. Participants will learn ways to improve tribal responses to crimes against Native women in a small, supportive, interactive environment led by nationally recognized experts in the field.

See more at www.swclap.org....

twp

Follow Up: Seminole Tribe not likely to approve Florida gambling deal

As reported last month, the gambling deal, now on Governor Crist's desk awaiting his signature, gives the Tribe blackjack, baccarat and other table games at two Hard Rock resorts as well as other casino's in Broward.

So what are the problems with the proposed gambling deal? The Tribe's attorney, Barry Richard, said that there are two are two problems: it seems that the legislature increased the Tribe's annual payment to the state -- to $150 million -- and left a loophole that would allow for future gambling expansion at racetracks and other facilities, which alters the tribe's exclusive right to offer blackjack and slots outside South Florida, all without voiding the state's deal with the Seminoles. Richard said he hopes to sit down with the Governor and representatives from the Legislature to work out a new deal that makes everyone happy. 

However, the leading legislator on the issue, Rep. Bill Galvano, said he doesnt want to reopen the gambling discussions and that he'd "advocate a hardball route if the tribe balks at the Legislature's deal: lobbying the federal government to enforce the state's current gambling laws, which ban blackjack." He went on to say: "If we're talking about filling in details or making a policy tweak, that's not going to be very difficult. . . But if the tribe expects that we would come back to the Legislature with major structural changes, I think the more appealing route would be to just let the feds enforce."

The Tribe and the Governor have until August 31 to finalize the deal.

We will continue to provides updates as they become available. 

You can read the full story HERE. 

ddg

South Dakota Law Review Call for Papers: Employment Division v. Smith

As posted on Turtle Talk this morning:  

"From the South Dakota Law Review:

The South Dakota Law Review is pleased to announce that it has
selected the 20th anniversary of the Employment Division v. Smith
decision as the topic for its annual symposium issue.  The Smith
decision remains central to our understanding of the scope of religious
protection Americans enjoy and continues to provoke much debate.  The
anniversary provides an occasion for scholars to engage the decision,
its impact on Free Exercise doctrine, and the subsequent actions by
Congress and the federal courts in the area of Free Exercise.

The Law Review invites the submission of abstracts on any facet of policy
or law research relating to the symposium topic.  The topic will
encompass diverse areas of religion and the law, with an emphasis on Indian law and constitutional law.

To submit an abstract for publication consideration, send an electronic copy of the abstract by email to kelly_jo_minor@yahoo.com by August 10, 2007.  All abstracts must contain original work that has not previously been published."

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