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NYTs Article on Havasupai Settlement

April 22, 2010Matthew L.M. Fletcher

From the NYTs (slideshow; related article):

SUPAI, Ariz. — Seven years ago, the Havasupai Indians, who live amid the turquoise waterfalls and red cliffs miles deep in the Grand Canyon, issued a “banishment order” to keep Arizona State University employees from setting foot on their reservation — an ancient punishment for what they regarded as a genetic-era betrayal.

Members of the tiny, isolated tribe had given DNA samples to university researchers starting in 1990, in the hope that they might provide genetic clues to the tribe’s devastating rate of diabetes. But they learned that their blood samples had been used to study many other things, including mental illness and theories of the tribe’s geographical origins that contradict their traditional stories.

The geneticist responsible for the research has said that she had obtained permission for wider-ranging genetic studies.

Acknowledging a desire to “remedy the wrong that was done,” the university’s Board of Regents on Tuesday agreed to pay $700,000 to 41 of the tribe’s members, return the blood samples and provide other forms of assistance to the impoverished Havasupai — a settlement that legal experts said was significant because it implied that the rights of research subjects can be violated when they are not fully informed about how their DNA might be used.

The case raised the question of whether scientists had taken advantage of a vulnerable population, and it created an image problem for a university eager to cast itself as a center for American Indian studies.

But genetics experts and civil rights advocates say it may also fuel a growing debate over researchers’ responsibility to communicate the range of personal information that can be gleaned from DNA at a time when it is being collected on an ever-greater scale for research and routine medical care.

“I’m not against scientific research,” said Carletta Tilousi, 39, a member of the Havasupai tribal council. “I just want it to be done right. They used our blood for all these studies, people got degrees and grants, and they never asked our permission.”

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News Coverage on Michigan Gaming Proposals

April 22, 2010Matthew L.M. Fletcher

From K’zoo Gazette, via Pechanga:

KALAMAZOO — A pair of proposals to expand gambling in Michigan would be bad for the state because they would strip away local residents’ ability to have a say in whether a casino is opened in their community, opponents say.

“We are working to preserve the right of each community to have a vote on gaming expansion,” James Nye, spokesman for Protect MI Vote, told the Kalamazoo Gazette’s Editorial Board on Tuesday.

Nye also serves as spokesman for the Gun Lake Tribe of Pottawatomi Indians, which is constructing the Gun Lake Casino in Wayland Township.

Daniel Adkins, spokesman for the pro-expansion group Racing to Save Michigan, said Nye’s arguments are undermined by the fact that Nye’s group receives money from casinos.

“The man’s goal is to make sure there is no competition. That’s the goal,” said Adkins, who is also vice president and chief operating officer of Hazel Park Harness Raceway.

A 2004 amendment to the state constitution requires that both state and local voter approval be given for any expansion of electronic gaming in Michigan. The requirement does not extend to casinos on tribal lands.

Adkins said he believes local residents would continue to have a say. Adkins’ group wants to allow casinos at five Michigan horse racing tracks, and at three other locations.

The other pro-expansion group, Michigan is Yours, proposes seven casinos in communities that have expressed interest, such as Muskegon, Lansing and Benton Harbor, said group member Trevor Sarter.

“We didn’t want it to be a situation where we are trying to push this down anyone’s throat,” Sarter said.

The groups need to collect more than 380,000 valid signatures by early July to get their measures on the November ballot.

Havasupai Press Release on the Arizona State DNA Settlement

April 21, 2010April 21, 2010Matthew L.M. Fletcher

Here (Havasupai ASU Press Release):

FOR IMMEDIATE RELEASE CONTACT (Plaintiffs): Shayna Samuels, 718-541-4785

April 21, 2010 CONTACT (ABOR): Katie Paquet, 602-229-2543

Havasupai Tribe and Arizona Board of Regents Resolve Lawsuit, Announce Future Collaborations

(April 21, 2010 — Phoenix, AZ) – Yesterday the Arizona State Legislature’s Joint Legislative Budget Committee approved a settlement agreement between the Havasupai Tribe and the Arizona Board of Regents resolving litigation involving allegations of unauthorized genetic studies of Havasupai people.

Two decades ago, two former Arizona State University (ASU) researchers collected hundreds of blood samples from Havasupai members, in connection with diabetes research. According to the Havasupai, without their consent or knowledge, the samples also were used in DNA studies that conflicted with Havasupai cultural beliefs, identity and privacy.

Carletta Tilousi, lead Plaintiff and Councilwoman for the Havasupai Tribe said, “We are glad to have come to a resolution with ASU, and hope that this experience helps create better awareness, understanding and cooperation between this institution and our people, and helps us to rebuild what we have lost.”

The Arizona Board of Regents (ABOR) and Arizona State University have formally apologized to the Havasupai people, and the Tribe has acknowledged that great efforts have been made to improve the oversight and conduct of human subject and biomedical research at ASU as a result of the lawsuit.

Key elements of the settlement include return of blood samples to the Havasupai Tribe, monetary compensation to the 41 individual plaintiffs, and collaborations between ABOR and the Havasupai people in areas such as health, education, economic development, and engineering planning. For example, the Havasupai will collaborate with ASU, the largest public research university in the United States, to seek third party funding to build a new health clinic and a high school. Havasupai Tribal Members will also be eligible for scholarships at ASU, the University of Arizona and Northern Arizona University.

Ernest Calderón, President of the Arizona Board of Regents, said that “The Board of Regents has long wanted to remedy the wrong that was done. This solution is not simply the end of a dispute but is also the beginning of a partnership between the universities, principally ASU, and the Tribe.”

The Havasupai Tribe lives at the base of the Grand Canyon in Arizona, a place reachable by an hours-long hike or mule ride, or in the modern era, a helicopter. Currently the Tribe is composed of about 650 registered members. The remoteness of their location has allowed them to retain a strong cultural identity as well as the native Havasupai language.

“This is much more than a settlement; it is a victory for the Tribe,” said Robert Rosette, Attorney for the Havasupai Tribe. “This is an opportunity to partner with the largest research institution in the United States to create programs which will help the Tribe build a stronger sovereign nation.”

“As we see it, this settlement is far more than dismissing a lawsuit; the settlement is the restoration of hope for my people, and the beginning of Nation Building for my Tribe” said Chairwoman Bernadine Jones.

# # #

Congrats to the Havasupai tribe and people, and to their lawyers at Rosette and Associates.

Settlement in Havasupai blood samples lawsuit

April 21, 2010Singel

The New York Times reports that the Havasupai have settled their lawsuit over the misuse of tribal members’ blood samples by ASU researchers for $700,000. ASU has also agreed to return the samples and help build a high school and health clinic for the tribe.

From the New York Times:

http://www.nytimes.com/aponline/2010/04/21/us/AP-US-Havasupai-Lawsuits.html?_r=1&ref=global-home

ICT Article on the Next Supreme Court Justice

April 21, 2010Matthew L.M. Fletcher

From ICT’s Rob Capriccioiso:

WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.

Stevens, who announced April 9 he would retire in late June or early July, has served on the court since 1975. A member of the court’s liberal voting bloc, he slowly grew stronger on tribal issues, including sovereignty, during his tenure, legal observers said. Still, the consensus is, he had a long way to go.

“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a commissioner with the Seattle Human Rights Commission. “His 35-year tenure on the court meant he was involved in some of the most significant cases in Indian law history.

“He wrote the Supreme Court’s [1979] opinion affirming the Boldt decision upholding Washington tribal fishing rights and rejecting the state of Washington’s appeal led by then-Attorney General Slade Gorton. That case remains one of the most profound recognition of the power of treaties.”

Stearns added that Stevens was “the lone voice of reason” on the court during the controversial Carcieri decision of 2009, in which he argued in favor of the Narragansett Tribe’s position.

On the other hand, Stearns noted that Stevens sometimes dissented against tribal interests in cases favoring tribes, such as Cabazon, which involved gaming, and Holyfield, which involved the Indian Child Welfare Act.

Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, expanded on Stevens’ anti-tribal decisions, saying that his legacy in Indian law is “very, very bad.”

Fletcher said that Stevens was particularly tough in the area of federal Indian law preemption cases, where all tribal taxation cases fit.

“During the 1970s and through the 1980s, the tax cases were hit and miss because the court was unsure how to handle them. But in 1989’s Cotton Petroleum case (authored by Stevens), the court placed the advantage squarely with the states and local governments. From then on, the court only took cases far out of step with its settled understanding. …”

Fletcher also believes Stevens would “have eviscerated tribal sovereign immunity long ago,” since he often has argued against any form of immunity, tribal, federal and state, for decades, to little or no avail.
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More News Coverage of Rincon Band Decision

April 21, 2010Matthew L.M. Fletcher

From the San Diego Union-Tribune:

California can’t force Indian tribes to share gambling profits to repair the state’s budget problems, the 9th U.S. Circuit Court of Appeals said Tuesday.

In a stunning blow to Gov. Arnold Schwarzenegger’s tactics when dealing with tribes wanting casinos, a divided, three-judge panel of the appeals court said the governor can’t ask for money for the state’s general fund without offering something of value in return because that amounts to an illegal tax.

The court upheld a 2008 ruling by a federal judge in San Diego that the governor was playing dirty in his negotiations with North County’s Rincon Indian band.

“This is a great, big message to the state,” Rincon Chairman Bo Mazzetti said. “Your days of trying to bully tribes around … those days are over.”

In the decision, Pasadena-based Judge Milan Smith Jr. compared the state’s efforts to those of the federal government when it took land from the Sioux after Lt. Col. George Custer reported finding gold in the Black Hills of South Dakota.

“Today, many tribes have struck figurative gold with casino gaming, and again, some state governments, just like their predecessors, are maneuvering to take, or at least share in, some of that figurative gold,” Smith wrote for a two-judge majority.

In his dissent, Judge Jay Bybee said tribes with casinos here and around the country have agreed for years to share revenue with state governments, just as Schwarzenegger was seeking.

“The holding … does not just upset the apple cart — it derails the whole train,” Bybee wrote. “If the majority is correct, then there is nothing for California to do but to authorize whatever (slot machines) the band wants. The band wins. Everything.”

The state will seek to have Tuesday’s decision reviewed by a larger panel of 9th Circuit judges, said Jeff Macedo, a spokesman for Schwarzenegger.

Legal experts disagreed on whether the case would be reviewed by a larger panel, or by the U.S. Supreme Court, should it be asked.

Macedo said the governor sees this as federal meddling.

“We still believe we were negotiating in good faith,” Macedo said. “This amounts to the federal courts again telling the state what it can and can’t do, and it’s not allowing the state the ability to negotiate these compacts.”

The ruling has big implications for Schwarzenegger, who campaigned on a promise to make tribes “pay their fair share” for casino expansions.

“It’s about millions and millions of dollars to the state of California,” said Matthew L.M. Fletcher, a law professor at Michigan State University who follows Indian legal issues nationally.

The ruling could affect other casino negotiations, he said.

The issue comes down to the kind of bargain that tribes and states can strike. The federal 1988 Indian Gaming Regulatory Act, known as IGRA, laid out how tribes can set up Las Vegas-style casinos. It said such gambling requires state approval, but that states can’t tax the profits.

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Mark Trahant on Detroit’s Indian Health Clinic…

April 20, 2010April 20, 2010Matthew L.M. Fletcher

And our own Jerilyn Church, ILPC’s former program director!

Here:

DETROIT – It’s hard to communicate the failure of public policy in this great American city (especially in a few hundred words). A drive around town highlights the consequences from decades of neglect: Abandoned and burned out homes, office buildings as ruins (and dangerous playgrounds), near-permanent unemployment, and thousands of empty lots capped with mounds. These mounds are burial sites of sorts because when a building was destroyed the rubble was left in a pile until time and grass shaped each into a small hill.

Yet the geography of despair includes many seeds of hope.

One east side neighborhood is transformed by inspiring folk art that brings humor and zest to several city blocks through The Heidelberg Project. Or there is the Community Health Awareness Group’s efforts to exchange needles so that drug users on the streets won’t as easily share disease. The program resulted in a drop of HIV infections from drug users from 33 percent to 17 percent. (And that, too, is the paradox because while an exchange is effective, it’s also difficult to fund). Then there’s the Earthworks Urban Farm. Detroit is a city without large chain grocery stores – only discount stores and “party stores,” or neighborhood enterprises that sell more liquor than protein. Access to fresh fruit and vegetables is a regular barrier for a family trying to eat healthier. But at Earthworks more people – at least in this one neighborhood – are growing their own access to healthy foods.

The trip was a Kaiser Family Foundation site visit for media fellows. We looked at Detroit and its health system in depth. Before the trip, I expected the unfamiliar, an urban landscape that was different and bleak. But I quickly found there is a connection with the policy failures found here with those from Indian Country. At the end of that rope: Deep, structural poverty and a health system where disparity is dismissed casually, as if it’s a fact that must be. To me that reflects a serious shortage of money from the state and federal governments – and just as important – a policy deficit where ideas, innovation and execution don’t get the support that’s needed.

Consider the tale of two clinics.

American Indian Health and Family Services helps the 57,000 Native Americans living in the greater Detroit area. Services are delivered at an old church and rectory donated by the Detroit Archdiocese in 1993. Jerilyn Church is the executive director of AIHFS. She’s Minnecoujou Lakota, born and raised on the Cheyenne River Sioux reservation in South Dakota. When she moved to Detroit she says she “wasn’t prepared” for the same type of unemployment as back home on the reservation.

“Yet despite our surroundings, we get a lot done with little resources,” Church says. “We could write a book about it.”

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What’s Going on with the Lumbees?

April 18, 2010April 18, 2010Matthew L.M. Fletcher

From the Fayetteville Observer via Pechanga:

Bad bet: Tribe gambles its assets on recognition bid.

It appears that Lumbee leaders have decided it’s acceptable to bet a big piece of the tribe’s net worth on one game of chance.

It’s not surprising, though, that many of the people they represent are outraged. They should be.

On March 12, the Lumbee Tribal Council, meeting at a conference in Raleigh, abruptly dumped longtime Lumbee lawyer Arlinda Locklear, who had worked – for free – for more than two decades to achieve full federal recognition for the tribe. Recognition would bring hundreds of millions of federal dollars to the tribe, to improve housing, education and health care, and to create new and better jobs.

The recognition effort has made good progress in the current Congress, winning approval in the House and clearing the Senate’s Indian Affairs Committee. The measure has President Obama’s support and both this state’s senators believe it has a good chance of Senate approval.

That may be out the window now, because the Tribal Council hired a Nevada gaming consultant to take Arlinda Locklear’s place. That means (although the council won’t say as much) that the tribe’s pledge to forsake casino operations, as a condition of recognition, is also out the window. The tribe wouldn’t hire a specialist in casino development if it wasn’t planning to get into the gambling business. That sudden change of course may be enough to kill any chance of Senate approval this year – or any other year.

And then it gets worse.

The Tribal Council’s contract with Lewin International includes penalties of $35 million if the council can’t get the tribe to agree to gambling once federal recognition is in place. If the penalty is assessed, most of the tribe’s assets – including housing and public buildings – could be at risk.

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More News Coverage of Ed DuMont’s Nomination to the Federal Circuit

April 16, 2010Matthew L.M. Fletcher

I like him more every day.

From How Appealing:

“Breaking Barriers: Edward DuMont, praised by colleagues as ‘brilliant,’ would be the first openly gay federal appellate judge in the country.” Chris Geidner has this article online at the web site of Metro Weekly, Washington, DC’s gay & lesbian news magazine.