Here.
NYTs’Op/Ed: “Selling Off Apache Holy Land”
Here.
News
NPR on Climate Change at Navajo
News Coverage of Controversies at Lower Brule
Principal Defendant in South Dakota ICWA Suit is Replaced as Seventh Circuit Chief Judge
Here.
Department of Justice Proposes Legislation to Empower Tribal Governments in Selecting Polling Places
Today the Department of Justice proposed legislation that would require states or localities whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected by the tribal government. “The Department of Justice is deeply committed to ensuring that every eligible individual is able to exercise his or her fundamental right to vote,” said Attorney General Loretta E. Lynch. “That’s why, today, I am calling on Congress to help remove the significant and unnecessary barriers that for too long have confronted American Indians and Alaska Natives attempting to cast their ballots. The legislation we recommend today will make this nation stronger by extending meaningful voting opportunities to native populations, by encouraging full participation in our democratic institutions, and by bringing us closer to our most cherished ideals.”
“As citizens of a nation founded upon the principles of liberty and equality, Native Americans have faced unacceptable barriers to participating in the franchise, a situation aggravated by a history of discrimination, poverty and — significantly — great distances from polling places,” said Acting Associate Attorney General Stuart Delery. “In spite of many reforms made possible by the Voting Rights Act and other measures, voting rates among Native Americans remain disproportionately low. The legislation proposed today would address this unacceptable gap and we look forward to working with Congress to see it enacted.”
American Indians and Alaska Natives have faced significant obstacles that have prevented them from enjoying equal access to polling places and equal opportunities to cast a ballot. In addition to suffering from a long history of discrimination, the distance many American Indian and Alaska Native citizens must travel to reach a polling place presents a substantial and ongoing barrier to full voter participation. Following formal consultations with Indian tribes, the Department of Justice believes that there is a pressing need for federal legislation to ensure equal access to voting by Native American voters.
Today, the Department of Justice sent a letter to Congress with a legislative proposal, which would ensure that American Indian and Alaska Natives have access to at least one polling place in their communities to cast their ballots and require a number of additional obligations to ensure parity with other polling places.
This legislative proposal, a stand-alone bill, would:
Enable Native Americans to vote on or near tribal lands, by requiring any state or local election administrator whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected, and made available for the purpose of conducting elections, by the tribal government.
Require states to make voting machines, ballots, and other voting materials and equipment available at these tribally located polling places to the same extent that they are available at other polling places in the state.
Require states to provide compensation and other benefits to election officials and poll workers at these polling places to the same extent as at other polling places in the state.
Require states to use the same voting procedures at these polling places as at other polling places in the state — potentially including election-day voting, early voting, the hours during which polling places are open, the operation of voting mechanisms or systems, and same-day registration.
Allow states to meet their obligations by either creating new polling places or relocating existing ones.
Allow tribes with larger populations or land bases to request more than one polling place.
Make the states’ obligations contingent on the tribe filing a timely request and certifying that it has arranged for access to, and appropriate staffing for, the polling facility.
Require the tribe to ensure that the staffers for the polling place are properly trained.
Require the tribe to ensure that the polling place will be open and accessible to all eligible citizens who reside in the precinct, regardless of whether they are Indians or non-Indians.
The Department of Justice is committed to ensuring equal access to voting for Native American voters. This proposal would address serious voting obstacles faced by citizens who are members of Indian tribes and Alaska Native villages; provide equal access to polling places for all eligible citizens, including members of tribes and villages; reinforce our nation’s commitment to the fundamental right to vote; and strengthen the government-to-government relationship between the United States and tribal nations.
In 1975, recognizing the barriers to full participation that Native Americans continued to confront, Congress expressly included American Indians and Alaska Natives as protected groups under the special provisions of the Voting Rights Act. Sections 4 and 5 of the Voting Rights Act prohibited many jurisdictions with large American Indian or Alaska Native populations from changing their voting laws until they could prove that the change would not create new barriers to effective participation. A number of jurisdictions with large Native American populations that have limited English proficiency — in six states, including Alaska — are also covered by Section 203 of the Voting Rights Act, which requires bilingual election materials and assistance.
Despite these reforms, participation rates among American Indians and Alaska Natives continue to lag behind turnout rates among non-Native voters. For example, in Alaska, turnout among Alaska Natives often falls 15 to 20 or more percentage points below the non-Native turnout rate. The causes of these disparities are complex, but the reality is that political participation by Native Americans consistently trails that of non-Natives and unequal access to polling places is a significant contributing factor.
Review the legislation at http://www.justice.gov/tribal/department-justice-proposes-legislation-improve-access-voting-american-indians-and-alaska.
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Cherokee Nation seeking hunting & fishing compact with OK
Here.
Congrats to Jeremy Brave-Heart, New Klamath Chief Judge
Here is “Tribal chief judge sworn in — Judge Jeremy Brave-Heart travels monthly to Chiloquin court.”
Izhaadaa giizhigowande!
Charles Edwardsen Walks On
Article on Yesterday’s Public Hearing on Proposed ICWA Regulations
Here, via NICWA.
“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”
Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.
The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.
“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”
Do you have your written comments in yet? They are due May 19.
Navajo Law and Order Committee Recommends Removal of Chief Justice Yazzie; Matter Moves to Full Council
Here:
Previously, a member of the Navajo council had drafted a proposal to remove Chief Justice Yazzie:
Proposed removal of Navajo Nation Chief Justice
Politics is a beast. Judicial administration is incredibly difficult.The list of the six allegations against Chief Justice Yazzie demonstrates how these two can interact into an ugly stew. Whether these allegations are rooted in politics I am in no position to opine. But I have a few comments on the independence of the tribal judiciary that I imagine are implicated here:
- Removing a judge because the political branch disagrees with decisions on substantive law made by the judge is simply a violation of the separation of powers and a direct attack on the independence of the tribal judiciary.
- Removing a judge because the political branch disagrees with the administration of the judicial branch by the judge can be a violation of separation of powers and judicial independence, and such a judgement depends on the degree of proven maladministration.
- Removing a judge for poor administration shortly after a series of controversial decisions on substantive law issues by the judge suggests that the reasons for removal may be pretexts for removal on the basis of disagreements on the substantive law, which would be a violation of separation of powers and judicial independence.
- Maintaining judicial independence and separation of powers is not easy, and judges may make decisions on substantive law that are unpopular with the political branches of government, and with the populace. That’s the job. Removing an unpopular judge is a violation of separation of powers and judicial independence.
Here are the six allegations, as summarized by the law and order committee:
- Inaction to establish a Judicial Conduct Commission despite receiving $100,000 in the current year’s budget
- Violation of basic fundamental due process rights by finding a criminal offense against members of the Navajo Nation Board of Election Supervisors, without formal complaint and without a hearing
- Failure to designate a third justice on numerous occasions, as mandated by 7 N.N.C. §301 (A), which “prevents the Supreme Court from being supplied with additional legal analysis when addressing issues before the Court”
- Violation of Navajo Nation laws and separation of powers, asserting authority over the Office of Hearings and Appeals (an executive branch entity), by appointing a District Court Judge to preside over a hearing before the Office of Hearings and Appeals
- Failure to uphold Diné bi beenahaz’áanii, the laws of the Navajo Nation, by wrongfully interpreting the laws of the Nation causing unnecessary expenses, violation of people’s rights, uncertainties, overreaching (separation of powers violation), and confusion on the Navajo Nation and in the legal communities
- Violation of separation of powers and due process of law by disbarring former Chief Legislative Counsel Frank Seanez, without referring the issue to the Navajo Nation Bar Association and denied a fair hearing. The allegation states that the Chief Justice was the accuser, the trier of fact, and the decision-maker in the case
On their face, some of these allegations appear to be rooted in maladministration. The first, for example, may be exactly that. But others appear to be likely rooted in political disagreements with the judge’s views on substantive law, most notably, the fifth and sixth allegations. All of them appear to be mixtures of both administration and substantive law.
Elsewhere in the committee release, the committee notes that public commentary was overwhelmingly in opposition to the Chief Justice. The Navajo Nation, I understand, had made a judgment that tribal judges were entitled to life tenure to prevent their removal for making controversial decisions. This information alone seems meaningless and irrelevant, and its inclusion frankly suggests political motivations.
It is very possible that these allegations may be proven to the extent that the Chief Justice is effectively found guilty by an impartial tribunal of “malfeasance, misfeasance, and serious neglect of duty” (to quote the committee’s release). I further realize that a judge may abuse his or her power and improperly interfere in the political process, perhaps justifying removal in extreme circumstances. It can be a fine line for the judge. The next step here looks like simple legislation to me, not due process. I’m not on firm ground here — I know nothing about the Navajo Tribal Council’s process in the context of judicial removals — but there mere fact that it is the tribal council considering this judicial removal process as mere legislation, according to the committee’s release, does not bode well for due process. It looks to me like politics.
These two documents, which are allegations and mere summaries of allegations, plus my own outsider knowledge of several very controversial decisions reached by the Navajo Supreme Court in recent years, compels me to see the makings an unfortunate effort by the political branches of government to remove the Chief Justice of the Navajo Supreme Court. I hope this is not the case, and that the Tribal Council affords proper due process rights to the Chief Justice.
I write this with deep respect for the Navajo Nation, the Navajo Tribal Council, and the Navajo judiciary.
Turtle Talk 
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