Indian Health Service Partners with Bureau of Indian Affairs and Bureau of Indian Education to Increase Access to Behavioral Health Services for Native Youth

Sarah M Donnelly

Download(PDF): IHS-Indian Affairs joint news release

Excerpt:

“In keeping with President Obama’s Generation Indigenous initiative to improve opportunities for Native youth and the BIA’s Tiwahe initiative to strengthen Native families, this interagency agreement will enable the BIA and BIE to work collaboratively with IHS to bring much-needed behavioral health resources to Native youth,” said Lawrence S. “Larry” Roberts, Principal Deputy Assistant Secretary for Indian Affairs in the U.S. Department of the Interior.

WaPo: Ryan Zinke Named as Interior Secretary Nominee

Matthew L.M. Fletcher

Here.

Ninth Circuit Rules against Yakama/King Mountain in Tax Dispute with Federals

Matthew L.M. Fletcher

Here is the opinion in Confederated Tribes and Bands of the Yakama Indian Nation v. Alcohol and Tobacco Tax and Trade Bureau.

Briefs and lower court materials here.

2016 BIA ICWA Guidelines Released

Kate Fort1 Comment

Here are the 2016 Guidelines. For those keeping track at home:

February 2015, Updated Guidelines replacing the 1979 Guidelines (No Longer in Effect)

June 2016, Federal Regulations released (Became Binding on December 12)

December 2016, Updated Guidelines replacing the February 2015 Guidelines

What this means:

25 USC 1901 et seq (ICWA) has not changed in 1978, and provides the minimum federal standards for Indian families. State ICWA laws (and corresponding court rules) that provide higher standards still apply. The federal Regulations are now binding and are like the federal law. The December 2016 Guidelines are now in effect and are non-binding interpretation of the Regulations (given the way they are drafted).

 

Cherokee Nation AG Opines that Cherokee Constitution Protects Fundamental Right to Marriage; Same-Sex Marriage Legal at Cherokee

Matthew L.M. Fletcher6 Comments

Here is the opinion:

Hembree Opinion

An excerpt:

For the reasons discussed below, it is the official opinion of the Attorney General that the Cherokee Nation Constitution protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of the Nation’s marital laws. The Nation may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage based solely upon the sex of the persons in the marriage union. Therefore, Section 1 of the Cherokee Nation Marriage and Family Act (“Act”), which defines marriage as “a civil contract between one man and one woman,” is  unconstitutional. Likewise, Section 3 of the Act, which prohibits marriage “between parties of the same gender,” is also unconstitutional. 

President Obama Signs Executive Order on Northern Bering Sea Climate Resilience

Sarah M Donnelly

Downloads: Executive Order, Bering EO – Map

THE WHITE HOUSE
Office of the Press Secretary

FOR IMMEDIATE RELEASE
December 9, 2016

FACT SHEET: White House Announces Actions to Protect Natural and Cultural Resources in Alaskan Arctic Ocean

Since taking office, President Obama has worked to protect the Arctic’s natural and cultural resources and the communities that rely upon them through the use of science-based decision making, enhanced coordination of Federal Arctic management, efforts to combat illegal fishing, and revitalization of the process for establishing new marine sanctuaries.  Building on this effort, today, President Obama is announcing new steps to enhance the resilience of the Alaskan Arctic environment and the sustainability of Alaskan native communities with the creation of the Northern Bering Sea Climate Resilience Area.

In addition to today’s protections, the Obama Administration is announcing approximately $30 million in philanthropic commitments for projects in rural northern Alaska and Canada.  These projects include investments over the next three years related to shipping, ecosystem science, community and ecological resilience, and tribal engagement.  Earlier this week, the Department of Commerce deployed an Economic Development Assessment Team to Nome, Alaska to help the region diversify, grow its economy, and address challenges related to climate change and community resilience.

Today’s actions are also supportive of the March 2016 U.S.-Canada Joint Statement on Climate, Energy, and Arctic Leadership and make substantial progress on its objectives of  conserving Arctic biodiversity through science-based decision-making, incorporating indigenous science and traditional knowledge into decision-making, and supporting strong Arctic communities. These actions employ science-based leadership to improve marine and coastal resilience and sustain our Nation’s precious natural resources.

Executive Order Creating the Northern Bering Sea Climate Resilience Area

Native villages in the northern Bering Sea region of Alaska largely practice a subsistence-based lifestyle that is inextricably tied to the rich marine ecosystem of the Bering Sea.  Warming ocean temperatures, sea ice loss, and increasing ship traffic all threaten the subsistence practices and food security of these communities.  The coastal tribes along the northern Bering Sea and the Bering Strait have requested that the Federal Government take action to protect the health of the marine ecosystems of the Northern Bering Sea and Bering Strait while maintaining opportunities for sustainable fishing and sustainable economic development.

In direct response to these requests, the President signed an Executive Order creating the Northern Bering Sea Climate Resilience Area.  This area, encompassing 112,300 square miles, represents a hugely productive, high-latitude ocean ecosystem and supports one of the largest seasonal marine mammal migrations in the world, including thousands of bowhead and beluga whales, hundreds of thousands of walruses and ice seals, and millions of migratory birds.  It is home to more than 40 tribes of coastal Yup’ik and Inupiaq peoples whose way of life has been linked with the marine environment for thousands of years.

The Northern Bering Sea Climate Resilience Area is delineated for the purpose of focusing a locally-tailored collection of protections related to oil and gas, shipping, and fishing. The order also establishes a Task Force charged with coordinating Federal activities in this area to enhance ecosystem and community resilience, conserve natural resources, and protect the cultural and subsistence values this ecosystem provides for Alaskan native communities. Further, agencies are directed to consider traditional knowledge in decision making and establish a formal consultative mechanism for engaging with regional tribal governments to seek their input on Federal activities.This action advances science-based decision-making and engagement with Alaska Native peoples in addressing the changing Arctic consistent with the Joint Statement signed at the White House Arctic Science Ministerial and consultation with Alaska Natives in preparation for the Ministerial.

Shipping

In recognition of the increase in shipping through the Bering Strait, the Coast Guard is nearing completion of a Port Access Route Study (PARS) for the region.  A PARS is the first step in assessing the need for vessel traffic control measures and developing a set of recommendations. Any recommended international routing measures would be submitted to the International Maritime Organization (IMO) which sets international rules for maritime commerce.    The Executive Order directs the Coast Guard to give careful consideration to community recommendations regarding environmentally sensitive Areas to Be Avoided (ATBAs) and to publish its initial findings by the end of 2016 and to move its conclusions to the International Maritime Organization for action by 2018.

Fishing

Sea bottom habitat is extremely important to the ecosystem in the Northern Bering Sea and helps to support the incredible abundance of marine mammals and sea birds in the region, including critical subsistence resources.  In recognition of these connections, bottom trawling is already banned in the region to protect the sea floor.  The Executive Order makes it Federal policy to support the continued prohibition on bottom trawling, which destroys sensitive benthic ecosystems.

Oil and Gas

Under the Outer Continental Shelf Lands Act, the President has withdrawn Norton Basin planning area and portions of the St. Matthew-Hall planning area from future oil and gas leasing to further protect the regional ecosystem and coastal communities.  The five year leasing plans issued by the Department of the Interior do not include plans for leasing in the withdrawn areas, so there will not need to be changes to those plans to reflect the withdrawal.  The total area withdrawn from leasing through this Executive Order is 40,300 square miles.

Coordination and Consultation

This Order also advances the Administration’s priorities of elevating traditional knowledge in decision making and coordinating Federal efforts in the Arctic.  Today’s actions establish a Federal Task Force on the Northern Bering Sea Climate Resilience Area (Bering Task Force), under the Arctic Executive Steering Committee (AESC) established by Executive Order 13689. The Bering Task Force will coordinate Federal activity and consider additional mechanisms to reduce impacts to subsistence and cultural activities within the Northern Bering Sea Climate Resilience Area.  The Executive Order also formally elevates the voice of Alaskan native tribes and the role of indigenous knowledge in decision-making within the region by mandating that the Task Force establish and engage in regular consultation with a Bering Intergovernmental Tribal Advisory Council, which will consist primarily of tribal government representatives with participation from Federal, state, and local officials for coordination purposes. Together, these two groups will guide the incorporation of valuable traditional knowledge and science into Federal resource management in the northern Bering Sea region, thus preserving this unique ecosystem and the indigenous peoples who rely upon it.

Commitments to Rural Northern Alaska and Canada

Today, in support of the U.S.-Canada commitments to a Shared Arctic Leadership model, the philanthropic community is pledging approximately $30 million for projects in rural northern Alaska and Canada.

  • The Arctic Funders Collaborative (AFC), a group of eleven U.S., Canadian and international philanthropic foundations, is announcing that a subset of its members will coordinate and mobilize resources through grant programs across the Arctic at a projected $27 million over the next three years in the following areas:
    • Community-led planning and monitoring initiatives that foster adaptation and resilience to a changing Arctic climate
    • Low-impact shipping corridors in Arctic Alaska and Canada,  including routing and mitigation measures to help improve maritime safety and spill prevention
    • Northern-led policy development informed by indigenous knowledge and science
    • Fostering connections between Northern priorities and social finance institutions in ways that support culture, community resilience and sustainable economic opportunities
    • Building in-region capacity of indigenous-led organizations and emerging leaders across the Arctic

Priority geographic areas for marine stewardship support include the northern Bering Sea and the Bering Strait, the Chukchi and Beaufort Seas, the Northwest Passage, Lancaster Sound, Baffin Bay, the Davis Strait, and Hudson Bay.

  • Today, the Gordon and Betty Moore Foundation is announcing a $3.7 million grant to support research that couples state-of-the-art geophysical observations from unmanned aerial systems with a community-engaged research approach to bridge scientific and indigenous understanding of sea ice change in the Alaskan Arctic. Led by the University of Alaska Fairbanks, Columbia University, and Kotzebue residents, the project will research changing patterns of Arctic ice and other physical characteristics in Kotzebue Sound and the Chukchi Sea, using a combination of traditional knowledge and sensing technologies in modules carried by drones. From the beginning of the work – including development of the research design – the project will involve local experts who have sea ice experience and other environmental knowledge.

New Disenrollment Scholarship: “Citizenship, Disenrollment & Trauma” by Dr. Deron Marquez

Sarah M Donnelly

Download: Citizenship, Disenrollment & Trauma

Deron Marquez served as chairman of the San Manuel Band of Mission Indians from 1999
through April 2006. In addition to leading the seven-member Business Committee, he was
instrumental in designing and directing a progressive agenda of social, economic and governance development for the tribal government and community. Under his leadership, the Tribe has entered into successful business ventures with the goal of securing critical government revenues well into the future. The Tribe also enhanced its governance capabilities, instituted public services for tribal citizens and solidified intergovernmental relations at the local, state and national levels under his leadership. Marquez is a nationally-recognized speaker and lecturer on such issues as economic development, tribal governance and tribal sovereignty. He earned his undergraduate degree from the University of Arizona, a Masters degree in Politics and a Ph.D. in community health, politics and public policy from Claremont Graduate University.

EPA Issues Water Quality Regulation to Protect the Penobscot River

Sarah M Donnelly

Link: Bangor Daily News article by Judy Harrison,

Download: Promulgation of Certain Federal Water Quality Standards Applicable to Maine (Final Rule), Fact Sheet: Final Rule on Certain Federal Water Quality Standards Applicable to Maine, Response to Public Comments

EPA Issues Water Quality Regulation to Protect the Penobscot River

On Thursday, the EPA issued water quality standards governing the Penobscot River to protect the sustenance fishing rights of the Penobscot Nation.  Penobscot Chief, Kirk Francis, praised EPA.  “This is great news for the Penobscot River, the Penobscot People, and the State of Maine,” said Francis.  “This brings us one step closer to restoring the fish habitat of the Penobscot River for the betterment of all who use this extraordinary River.”

The Penobscot River, the aboriginal homeland of the Penobscot Indian Nation, historically supported the largest habitat for sea run salmon in the North Atlantic.  The Penobscot River has also supported robust populations of shad, eel, alewives, blueback herring and multiple other species that the Penobscots have relied upon for food.

The Atlantic salmon is an anadromous fish, which typically spends 2-3 years in freshwater before migrating to the ocean, where it also spends 2-3 years before returning to its natal river to spawn.  Although the Atlantic salmon has been listed on the endangered species list since 2009, the State of Maine, a number of US agencies, NGOs, and the Penobscot Nation are working together in an internationally-recognized river restoration project to improve fish habitats in the Penobscot River through dam removals and other efforts.

“The federal and private investment of millions of dollars to restore the Penobscot River’s migratory fisheries is now resulting in rebounding runs of herring, shad, sturgeon, and over time we expect, Atlantic salmon.” said Andrew Goode, Vice President of the Atlantic Salmon Federation.  “The EPA’s water quality standards are an important contribution to the restoration of these fisheries for the benefit of the Penobscot Indian Nation and the people of Maine.”

A year ago, the EPA disapproved human health criteria that Maine used in its water quality standards because they exposed Penobscot tribal members and other Maine Indians to cancer risks, given tribal fish consumption rates.  Maine used a fish consumption rate of 32.4 grams per day for Native populations.  The EPA found that rate erroneous and adopted water quality standards to protect the health of tribal members at a consumption rate of 286 grams per day.

Historically, Penobscot tribal members have consumed fish and other food sources from the Penobscot River at much higher rates.  In the 1980s and early 1990s, for example, Penobscots relied upon the River for food sources at the rates averaging up to 750 grams per day. But those consumption rates went down in the face of dioxin and other pollutant contamination in the River.

“We still have a ways to go to restore the health of the River,” said Chief Francis, “but EPA’s water quality standards are a huge step forward to ensure that Penobscot people can safely eat from the River as we have done for centuries.”

In 1980, upon settling land claims of the Penobscot Nation and other tribes, the US Congress confirmed that the tribes would have a right to take fish within their reservations for sustenance.  Last year, the EPA, backed by the US Department of the Interior, told Maine that the law required the existence of fish of a quality to eat at meaningful levels of consumption.  Maine officials have, in the past, taken the position that the Tribes’ sustenance fishing rights do not guarantee a fish habitat.

Public support for EPA’s water quality standards is overwhelming:  of the 107 comments provided to the Agency, 101 were in favor of the standards and only 6 voiced concerns. EPA’s standards protect the fishing rights of all Maine tribes.

“As indigenous people, we have long known that water is life,” said Chief Francis.  “EPA’s water quality standards protect life; it’s as simple as that.”

Second Circuit Rejects Another Challenge to Oneida Trust Acquisition

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Central New York Fair Business Assn. v. Jewell (PDF).

Briefs:

Appellants Brief

Federal Brief

Oneida Brief

Appellants Reply

Lower court materials here.

Split Cal. COA Holds Gov. Brown’s Concurrence in North Fork Compact is Invalid

Matthew L.M. Fletcher

Here are the opinions in Stand Up For California v. State of California (PDF). An excerpt from the lead opinion:

The judgment is reversed. The Governor’s concurrence is invalid under the facts alleged in this case. Plaintiffs have stated a cause of action for a writ of mandate to set the concurrence aside on the ground that it is unsupported by legal authority. The matter is remanded for further proceedings, and the trial court is directed to vacate its order sustaining the demurrers and enter a new order overruling them.

Briefs:

Appellant Brief

California Brief

Reply Brief

Appellant Supplemental Brief

California Supplemental Brief

North Fork Supplemental Brief