Washington SCT Restores Yakama Nation’s Challenge to Yakima County Land Use Decision that would Disturb Cemeteries

Here is the opinion in Confederated Tribes and Bands of the Yakama Nation v. Yakima County:


OHA statement on yesterday’s arrest of kūpuna and others on Maunakea

The arrests Wednesday morning happened at the base of Mauna Kea, where an estimated 1,000 Maunakea Kai’i have gathered to try to block construction of the Thirty Meter Telescope (“TMT”). Despite the 33 arrests, the protest at the base of the summit has remained peaceful. Governor Ige of Hawai’i declared a state of emergency following the arrests.

OHA Statement here: “The Native Hawaiian community weeps today.”

State of Hawai’i Emergency Proclamation – Mauna Kea.

More news here.




Conflict on Mauna A Wakea

Hawaii News Now

Video ‘Conflict of Mauna Kea,’ a timeline exploring the history of tension over the Thirty Meter Telescope.

Updates here.

Office of Hawaiian Affairs

Mauna Kea.

OHA testimony on the Mauna Kea admin rules.

Draft rules from UH.

Department of Land and Natural Resources

Documents relating to the Thirty Meter Telescope.

Mauna Kea FAQ.

State of Hawai’i, Office of Hawaiian Affairs: “Mauna Kea is a deeply sacred place that is revered in Hawaiian traditions. It’s regarded as a shrine for worship, as a home to the gods, and as the piko of Hawaiʻi Island.

Mauna Kea is also a critical part of the ceded lands trust that the State of Hawaiʻi must protect and preserve for future generations, pursuant to its kuleana as a trustee.

Despite four state audits and generations of Native Hawaiians expressing concern about the threats to Mauna Kea, the state and the University of Hawaiʻi have continuously neglected their legal duties to adequately manage the mountain. Instead, they have prioritized astronomical development at the expense of properly caring for Mauna Kea’s natural and cultural resources.”

Dispute Between Muscogee and Poarch Creek Regarding Poarch Creek’s Construction of its Casino on Sacred Grounds

Here are the initial materials in the litigation between Muscogee Creek and Poarch Creek alleging the latter Tribe’s construction of a casino on sacred grounds:

Motion for Leave to File Amended Complaint

Amended Complaint & Exhibits

Summary and Pictures from Finland, Sacred Sites Conference

I was lucky to be invited to give a keynote presentation at an International Conference titled “Experiencing and Protecting Arctic Sacred Sites and Culturally Important Landscapes – Creating Partnerships with Mutual Respect”. The 3 day event was held at The Saijos Cultural Centre; the Siida Museum, and Saami Educational Institute, Inari, Lapland, Finland. The purpose of the workshop was to launch the multidisciplinary participatory educational research project “Indigenous Peoples’ Sacred and Cultural Sites – Building Partnerships for Safeguarding and Transmitting Unique Arctic Heritage for Future Generations (ISACUS)”.

The participants included elders, scholars, knowledge holders, poets, drum makers, story tellers, politicians, healers, and traditional singers from Saami Land, North America, Siberian tribes, Russian association of Indigenous Peoples, Komi Republic, Canada, Vienna, Germany, and Finland. Issues were addressed during the conference regarding the proposed diamond mine in Utsjoki (near an important Saami sacred site); a proposed mine near Jokkmokk, Sweden, which threatens traditional reindeer grazing grounds; vandalism and desecration at sacred sites in Finland, Canada, North America and Siberia; International Law; and also the revival of Indigenous culture and traditions around the world.

Look for publications as well as more collaborative projects in the future from this group as it works to both raise awareness and encourage collaboration to protect sacred sites in this region. Thanks to the organizers from Arctic Centre, University of Lapland; Arctic Law  Thematic Network; Université de Montréal; Sámi Education Institute; Sámi Museum of Finland for this great event.

Traditional Saami drum maker playing for us in the opening session.



View from one of the sacred islands.





With some of my new friends from Russia.




More beautiful views.



Demonstrating a traditional yoik (joik).




A sacred spring that is said to never freeze even in the coldest winter temperatures. Sweetest water I have ever tasted.




Young Finnish Saami posing in front of protest art, trying to raise awareness of the fight against mining developments within Saami territory that threaten sacred sites and traditional livelihoods.




Outside of the Saami parliament building where keynote presentations were given on the first day.


Miss pic 1

Student Note on Tribal Consultation and Sacred Sites

The University of Colorado Law Review has published “Meaningful Consultation with Tribal Governments: A Uniform Standard to Guarantee that Federal Agencies Properly Consider Their Concerns.” Here is the abstract:

The obligation that federal agencies consult with Indian tribes regarding undertakings that impact tribal interests is grounded in various statutes, implementing regulations, and Executive Order 13,175. Currently, tribes confront a variety of approaches to consultation because each agency develops its own standards for conducting consultation. Once an agency has reached a final decision on a proposed undertaking, any consultation that occurred to comply with Executive Order 13,175 will not be reviewed in court because Executive Order 13,175 and the consultation policy that an agency developed as required by Executive Order 13,175 do not provide tribal governments with a cause of action to challenge the adequacy of consultation. While courts will review tribal-agency consultation mandated by a federal statute or implementing regulation, judicial review tends to focus on the procedural aspects of consultation rather than examining the substantive decision made by an agency. Thus, Indian tribes are unable to challenge whether an agency’s final determination adequately considered the concerns that tribal governments raised during the consultative process. In recognition of the federal government’s general trust responsibility to protect the general welfare of tribes and the government-to-government relationship that exists with Indian tribes, Congress should enact a statute that creates a uniform standard for agency-tribal consultation. The statute will create one standard for conducting tribal consultation. Additionally, the consultation statute will permit judicial review of the procedural and substantive aspects of the interaction between tribal governments and federal agencies. To ensure agency decisions adequately consider tribal interests and concerns, agencies will have to overcome a rebuttable presumption that will be granted to tribal assertions raised during consultation. If an agency cannot produce sufficient evidence to support its determination, a federal court will have the power to overturn the decision. The statutory approach to agency-tribal consultation will ensure the federal government honors the unique relationship it has with Indian tribes.

Press Release: “Keweenaw Bay Indian Community stands 500 strong at Eagle Mine Court of Appeals Hearing”

Keweenaw Bay Indian Community stands 500 strong at Eagle Mine Court of Appeals Hearing (PDF)

For Release: June 5, 2014

Contact: Donald Shalifoe, Sr., Tribal President

Phone: 906-353-6623

Baraga, MI — About 500 members of the Keweenaw Bay Indian Community (KBIC) KBIC Drummingstood united around the importance of keeping their waters clean from contamination associated with sulfide mining on June 3, 2014 at the Michigan Court of Appeals.  Oral arguments were heard involving the Eagle Mine, Michigan’s first permitted sulfide mine in the Upper Peninsula.

“This is the first time in our generation that the community as a whole came together to fight for true sovereignty and engage in spontaneous government participation.  The goal of the new moving-forward Tribal Council is to bring transparency and involvement to the Anishinaabeg (the people),” said Donald Shalifoe, Sr., KBIC’s Ogimaa (Chief).

Many tribal members carpooled and traveled about eight hours to line up for the 10:00 a.m. Lansing hearing.  KBIC’s remarkable presence overwhelmed the Michigan Hall of Justice whose staff reported it was their largest turn out ever for a court hearing.

Tribal leaders and elders observed the hearing from within the court room, while hundreds watched and listened to the proceedings in an overflow video conferencing room.  Traditional drumming and singing resounded outside the building following the hearing.

KBIC’s Vice President Carole LaPointe remarked “it was a very educational experience for our membership and youth.”

The Anishinaabeg band has opposed the Eagle Mine development, located on Treaty of 1842 ceded homeland, since it was first permitted by the Michigan Department of Environmental Quality (MDEQ) in 2006.

Unsettled concerns involve the mining regulatory process, improper permitting and inadequate assessment of impacts to the area environment, cultural resources and water quality, including groundwater contamination and the potential for perpetual acid mine drainage upstream from Lake Superior.

Tribal member Jeffery Loman said “the hearing today is another testimony to the fact that inadequate regulation and collusion between industry and government results in endless litigation.”

One aspect of the evolving case questions what qualifies as a “place of worship” under Michigan’s sulfide mining statute.  An initial ruling by Michigan Administrative Law Judge Richard Patterson recommended mitigation of impacts to an Anishinaabeg sacred place, Migi zii wa sin (Eagle Rock), but the MDEQ made a final permit decision asserting only built structures are places of worship.

Discriminatory enforcement of Michigan law has led to substantial degradation to KBIC’s sacred site.  This includes obtrusive mine facilities and a decline access ramp into the base of Eagle Rock, non-stop noise and activity, and hindered traditional access and use.  Spiritually significant high places like Eagle Rock are used in solitude by the Anishinaabeg for multi-day fasting, vision quest and ceremony.

Despite the passage of the American Indian Religious Freedom Act of 1978, Native people still struggle to protect their remaining sacred places in the face of extractive development agendas.  “It is a shame that the United States of America, proudly founded upon values of religious freedom, has trouble guaranteeing this right to all of its nation’s first people,” said tribal member Jessica Koski.

KBIC anticipates a decision from the Michigan Court of Appeals within six months.  The Eagle Mine’s timeframe for production start-up is the end of 2014.  “While the court deliberates, it is important to remember that regardless of the outcome, we are in the right for standing up for the Yellow Dog Plains.  We hope the court understands their decision will have long lasting implications for this place, as well as other areas that are slated for mining,” said Emily Whittaker of Big Bay, Michigan who gathered alongside KBIC and other locally affected residents.

The Michigan Court of Appeals ruling will be an important precedent for additional sulfide mining proposals threatening Michigan’s Upper Peninsula and waters of the Great Lakes.