Author: bnewland

Miigwetch and Bamaapii.

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This will be my final post to Turtle Talk, as I have accepted a Special Assistant position with the Obama Administration at the Bureau of Indian Affairs in Washington, D.C. I have been assigned to Deputy Assistant Secretary of Interior Del Laverdure, and will begin my new position effective October 13th. My duties as a public servant will preclude me from commenting on nearly all of the issues discussed in this forum.

I want to say chi-miigwetch to those who have read my posts on this site, and to Matthew, Wenona, and Kate for allowing me to participate. Though my contributions to this blog have been small, I hope that I have added something of value to the discussions on several important topics. Great things are happening with the Indian Law Program here at Michigan State, and I am honored to have been a part of that.

I hope to make the most of this new opportunity by doing good work; and, I also hope to make my family, fellow Anishnaabek, and Spartans proud.

Miigwetch and Bamaapii.

– Bryan Newland

Article on Indian Law Cases in New York State Courts

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Law.com has published an article on several Indian law cases that are active in New York state courts, including the Cayuga cigarette tax case and another involving the application of state civil regulatory law to a tort claim arising out of actions that occurred entirely within the Akwesasne Mohawk reservation.

From the article:

Hart’s attorney, John A. Piasecki of Malone, N.Y., said he argued that application of the Labor Law is an administrative action by the state and does not have force in the St. Regis Mohawk territory. Piasecki said he would like to someday argue the point before the U.S. Supreme Court.

“It is larger than mere tribal sovereignty,” Piasecki said Tuesday in an interview. “We have argued that unless a law is specifically adopted on an Indian reservation or specifically imposed on an Indian reservation by a federal act of Congress … New York statutes simply don’t apply within the boundary of the St. Regis Mohawk Indian Reservation.”

The article also notes that the Plaintiff in the litigation surrounding the alleged tort occurring on the Akwesasne reservation made a conscious effort to avoid incorporating the tribe in the lawsuit. Presumably, the Tribe’s attorney would know better than to try to bring this type of case all the way to the U.S. Supreme Court (as presently constituted).

It seems to me that it is these types of cases that present the greatest threat to sovereign authority, because the advocacy of tribal interests is in the hands of a self-interested litigant (perhaps with an attorney not well-versed in Indian law). These types of cases provide the courts with opportunities to limit tribal jurisdiction without the tribe being the primary party in interest a la Hicks, Strate, Means, and Lara (although the latter two did not end too badly for tribal interests).

You can read the entire article here

Initial Reaction to Carcieri Opinion

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I took a deep breath and drafted this initial review of the opinion. The deep breath was to avoid a knee-jerk response here like the one I had after the Plains Commerce Bank decision last year.

The Supreme Court handed down its opinion in the case of Carcieri v. Kempthorne (Salazar), which involed the Narragansett Indian Tribe’s petition to have land placed into trust by the Secretary of Interior. The Court ruled that the Secretary of Interior could not place land into trust for the Tribe under the Indian Reorganization Act, because the Tribe was not recognized at the time the IRA was passed in 1934 (the Narragansett Tribe was finally acknowledged in 1983, after a century-long effort).

The decision was 6-3 in favor of the Governor of Rhode Island, although Justice Stevens was the only justice to fully dissent from the opinion, and drafted an opinion in support of the Tribe.

The IRA states that the Secretary of Interior may place land into trust for tribes “now under Federal jurisdiction.” According to the Court, use of the word “now” means that this provision only applies to tribes under federal jurisdiction at the time the IRA was passed.

You can find the opinion and background materials here.

A couple of quick thoughts on this case:

Continue reading →

Final Stimulus Numbers for Indian Country

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Congress just released the conference report (final version of the bill) on the American Recovery and Reinvestment Act of 2009 (aka “The Stimulus Bill”). I would warn against trying to view the document on the Speaker’s website, as it has been swamped all day. You can read it for yourself here.

The figures here are working from my previous post on the Senate version’s Indian Country Appropriations.

Items that were cut or reduced from the version that passed the Senate on Tuesday:

$422 million for the Bureau of Indian Affairs for “Construction” (Reduced from $522 million in the Senate version – The Conference report specifies that these funds are for repair & restoration of roads, replacement school construction, school repairs, and detention center maintenance and repairs).

$310 million for the Indian Reservation Roads Program (Reduced from $320 million in the Senate version – the Secretary of Interior may use up to 4% of these funds for program administration and oversight, and may redistribute unobligated funds within the program).

$225 million to the Office of Justice Programs – Assistance to Tribes for grants under Title II of the Violent Crime Control and Law Enforcement Act of 1994 (Reduced from $300 million in Senate – reduction eliminates funding for the Tribal Courts Initiative and tribal alcohol and substance abuse reduction grants, which both received $25 million under the Senate version).

$85 million for Indian Health Service – for Health Information Technology (Reduced from $135 million in Senate version – eliminates provision of $50 million for Contract Health).

$40 million for the Bureau of Indian Affairs for “Operation of Indian Programs (This funding remains the same from the Senate version; however, the Conference Report eliminated the separate line item for the Indian Housing Program and rolled it into this line item. The Senate Bill provided $20 million for the BIA’s Indian Housing Program).

$8 million to Community Development Financial Institutions for financial assistance, technical assistance, training, and outreach programs that benefit tribal communities (Reduced from $20 million in Senate version).

Here are the funding items that were untouched from the final Senate version to the Conference Report:

$510 million for the Native American Housing Block Grant ($255 million of this amount must be distributed according to the same funding formula used in FY 2008 (NOTE: Tribes must obligate 100% of funds within one year. 50% of funds must be spent within 2 years, and 100% of funds must be spent within 3 years. Failure to comply may result in Secretary of HUD recapturing unexpended balance.)

$400 million for the Bureau of Indian Affairs schools facilities (with $200 million appropriated in each FY 2009 and FY 2010).

$60 million for Tribal Clean Water Grants (1.5% set-aside from the $4 Billion appropriated for State Revolving Funds under the Water Pollution Control Act)

$10 million for the Indian Loan Guarantee Program

$5 million for the Food Distribution Program on Indian reservations.

Finally, here are provisions that were increased or added to the final version from the Senate’s version:

$415 million for Indian Health Facilities (Increased from $410 million – $227 million is dedicated to complete to “priority list” projects that are already under construction)

$17.25 million for Tribal Transit from the Federal Transit Administration (The final bill appropriates $6.9 Billion to the FTA, 10% of which – $690 million – is allocated according to the FTA’s “rural formula.” The bill provides that 2.5% of the rural funds are dedicated to tribal transit)

$1 Billion for COPS grants to state, local, and tribal governments to hire additional law enforcement officers (the final bill does not specify how much funding is directed to tribal police departments)

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The final Stimulus Bill also retained the provisions for the expansion of tribal tax exempt bonds. I’m disappointed in some of the cuts, but am very pleased about the funding increase for health facility construction. I am also pleased with the decision to keep the tribal tax exempt bond provisions in the final draft.

If you decide to read the final bill for yourself, PLEASE post any corrections in the comment section and I will try to add them later. Also, there are many other non-appropriation provisions in the stimulus bill that affect Indian Country (like tax-exempt bonds and Medicaid eligibility). I will try to get those posted here at a later time.

Indian Country Provisions in the Economic Stimulus Bill

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I’ve compiled a list of the direct-funding items in the latest version of the American Recovery and Reinvestment Act (the one that passed the Senate on Tuesday). Keep in mind that there are a number of other appropriations and benefits that are not specific to tribes, but for which tribes may be eligible. I will post an updated version as soon as the Conference Report is released (the final version on which both the House and Senate will soon vote). Here are the Indian Country provisions – totaling more than $2.7 Billion:

$522 million to the Bureau of Indian Affairs for “Construction”

$510 million for the Native American Housing Block Grant – $255 million of this amount must be distributed according to the same funding formula used in FY 2008 (NOTE: Tribes must obligate 100% of funds within one year. 50% of funds must be spent within 2 years, and 100% of funds must be spent within 3 years. Failure to comply may result in Secretary of HUD recapturing unexpended balance.)

$410 million for Indian Health Facilities – Spending caps for the purchase of medical equipment do not apply.

$400 million for Bureau of Indian Affairs schools facilities – $200 million is appropriated in each FY 2009 and FY 2010.

$320 million for the Indian Reservation Roads Program – the Secretary of Interior may use up to 4% of these funds for program administration and oversight.

$300 million for the Office of Justice Programs, Assistance to Tribes – $250 million is dedicated to grants under Title II of the Violent Crime Control and Law Enforcement Act of 1994; $25 million is dedicated to the tribal courts initiative; and, $25 million is dedicated to tribal alcohol and substance abuse drug reduction assistance grants.

$135 million for the Indian Health Service (NOTE: $85 million is dedicated to Health Information Technology and $50 million is dedicated to Contract Health).

$60 million for Tribal Clean Water Grants – The legislation appropriates $4 Billion for State Revolving Funds under the Water Pollution Control Act, of which 1.5% is set aside for tribal grants.

$20 million to Community Development Financial Institutions for financial assistance, technical assistance, training, and outreach programs that benefit tribal communities.

$20 million for the Bureau of Indian Affairs Housing Improvement Program.

$5 million for the Department of Agriculture’s Food Distribution Program on Indian Reservations, for the costs of administrative expenses associated with the program.

The Recovery and Reinvestment Act also appropriates $1.4 Billion to the Bureau of Reclamation for various activities, including participation in fulfilling related Federal responsibilities to Native Americans, and related grants to, and cooperative and other agreements with, State and local governments, federally recognized Indian tribes. It does not specify how much of this funding is directed to tribes.

Economic Stimulus Bill Expands Tribal Tax Exempt Bonding

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The version of the American Recovery and Reinvestment Tax Act of 2009 (Stimulus Package) passed by the Senate on Tuesday contains language that comes closer to putting tribes on par with state and local governments for the purpose of issuing tax exempt bonds. This has long been a sore spot for tribes, as the IRS has interpreted existing law to prohibit tribes from issuing tax exempt bonds in the same manner as state and local governments.

The Internal Revenue Code allows tribes to issue tax exempt bonds for an “essential government function,” which is defined as a function that is customarily performed by a state or local unit of government with general taxing powers. The IRS has seized upon the word “customarily” to prohibit tribes from issuing tax exempt bonds from certain projects, such as golf courses, hotels, and other revenue-generating facilities – even where there are cases of states and cities issuing tax exempt bonds for the exact same types of projects. According to the IRS, the fact that states and cities sometimes issue tax exempt bonds for these types of projects does not mean that they are functions that they customarily perform.

The Stimulus Package addresses this issue by amending the Internal Revenue Code to allow tribes to issue “Tribal Economic Development Bonds.” (Note: The language of this amendment closely mirrors that of the Tribal Tax Exempt Bond Parity Act, which was introduced in the last Congress by Senators Max Baucus (D-MT) and Gordon Smith (R-OR).)

The amendment defines a “Tribal Economic Development Bond” as a bond issued by a tribe where the interest would be exempt from taxation if issued by a state or local government.

This amendment comes with three important caveats:

1.) The bonds cannot be used to finance any portion of a building in which Class II and Class III gaming is conducted, or any property used in the conduct of gaming;

2.) The bonds must be used to finance facilities located on the reservation; and,

3.) There is a national cap on the total value of Tribal Economic Development Bonds at $2 Billion, which must be allocated among tribal governments in the manner deemed appropriate by the Secretaries of Treasury and Interior.

While this amendment isn’t perfect, it is a significant and important step toward increasing access to the debt market for tribes and putting tribes on par with state and local governments. I hope that the Stimulus Package Conference Committee retains this amendment, and that the Secretaries engage tribal leaders in meaningful consultation when allocating the national cap among the tribes.

Please check back later for updates on the Stimulus Package and its Indian Country provisions.

Michigan Senate Approves Gun Lake Gaming Compact – What Next?

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Cross-posted with American Indian Policy Blog.

The Michigan State Senate voted to approve the Tribal-State Gaming Compact between the Match-E-Be-Nash-She-Wish (Gun Lake) Band of Potawatomi Indians and the State of Michigan. The Gun Lake Band reached agreement on this compact with Governor Jennifer Granholm in 2007, and the Michigan House of Representatives approved this agreement by resolution – consistent with its practice of approving gaming compacts by resolution – later that year.

Interestingly, the Senate acted today in a new legislative session, which began on January 14, 2009. The House of Representatives’ approval of this compact occurred in the previous legislative session. Will the Gun Lake Band return to the House of Representatives, which is under the same leadership as in 2007 when it originally approved the compact, for another approval in this legislative session? Or, will the Band make the argument that since both houses of the Legislature have given their approval, the compact is now in effect?

From Gongwer News Service:

Senate Approves Gun Lake Compact
On a voice vote the Senate has approved the state’s compact with the Gun Lake tribe of Pottawatomie Indians, effectively the last state hurdle towards the tribe building and opening a casino.

The Senate approved SR 11 without debate, though opponents outlined their objections afterwards. The chamber, which had held off acting on approving the compact reached with Governor Jennifer Granholm in 2006, acted a few weeks after the U.S. Supreme Court refused to hear an appeal to block the casino.

New York Times – “Return of the Natives”

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Timothy Egan writes an interesting piece in the New York Times Op-Ed section describing Indian Country’s guarded optimism about President-Elect Obama. Among one of the better lines in the piece:

“In less than a week’s time, the Great White Father will be black.”

Read “Return of the Natives“.

Two Jobs Well Done

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I could not let this election pass without a word on two good friends and the jobs they have done over the past two years.  Wizipan Garriott (Sicangu Lakota) and Nicole Willis (Cayuse, Yakama, Nez Perce, Oglala Lakota) have been heading up Barack Obama’s Native Vote Operation since 2006.  They have traveled the country and worked countless hours to turn out Native voters for Senator Obama’s campaign.  They were with Senator Obama long before his victory was a sure thing – way back in 2006 when Hilary Clinton was still the “inevitable” Democratic Nominee.  Their efforts have helped Barack Obama generate unprecedented enthusiasm in Indian Country for the Presidential race, and just may make the difference in several key states.  Regardless of the outcome of today’s election, Wizi and Nicole deserve great applause (and rest) for their efforts.  Miigwetch!

Be Careful of “Indian Country”

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Something got stuck in my craw this morning and I couldn’t help but post on the topic.  I was watching the Today Show while drinking my coffee before work and saw a segment on a couple of American tourists who were brutally attacked on a beach in Ecuador by a local gang (“savagely,” according to an NBC correspondent).  Part of the segment involved an interview of Clint van Zandt, a former criminal profiler with the FBI.  Near the end of Mr. van Zandt’s explanation of the crime he warned viewers to (paraphrasing from memory) “be careful when you travel abroad or you could end up in Indian Country pretty quickly.”

This isn’t the first time that I’ve heard this phrase.  My brother-in-law, an Iraq war veteran who served two tours , has told me that commanders over there refer to hot-spots as “Indian Country.”  When soldiers leave the safety of their bases, they go on missions into “Indian Country.”

This phrase has always bothered me.  The fact that it was tossed around on the Number One morning news show in America by a former FBI agent bothers me even more, as the FBI is responsible for law enforcement in the real, non-hostile “Indian Country” here in the U.S.

The use of this phrase, and similar language (like that used by Justice Kennedy explaining that the second amendment was added to the Bill of Rights to allow settlers to defend themselves from wolves, bears, and “hostile Indians”) is symbolic of a view of the real Indian Country that has not yet faded from American consciousness.  More than that, however, I think that this type of language, along with mascots and similar imagery, feeds back into this view of Indian Country.

The fact that our military, federal law enforcement agency, and Supreme Court conflate Indians and Indian Country with dangerous wild animals, foreign gangs, and enemies of the state is evidence that we are still viewed as dangerous outsiders in our own country – even by those charged with preserving the security of, and administering equal justice in, the real “Indian Country.”