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December 2013

Law: Most Peninsula tribal reservations will ban marijuana as it legalizes in state - If you live on or visit a reservation on the North Olympic Peninsula, don’t bring marijuana. At least four of the six tribes in Clallam and Jefferson counties will not recognize Washington state’s 2012 legalization of recreational marijuana. The use and possession of pot will remain illegal on tribal lands controlled by the Makah, Lower Elwha Klallam, Jamestown S’Klallam and Quileute tribes, their representatives told the Peninsula Daily News. The Hoh tribe in West Jefferson County has yet to make a decision.

October 2013

Law: Feinstein Battles With Obama Over Casinos Using 1934 Law - The Mashpee Wampanoag Tribe wants to build an S-shaped casino that would rise from a forested area in Taunton, Massachusetts, and, Indian leaders say, lift them out of poverty. One hurdle in their way is U.S. Senator Dianne Feinstein, a West Coast Democrat who is seeking to curb tribal gaming expansion in her state of California, which is stalling casino projects throughout the country.

Law: So Close! How the Senate Almost Passed a Clean Carcieri Fix - Sen. Dianne Feinstein (D-Calif.) is again making headlines for her opposition to a clean Carcieri legislative fix to a controversial 2009 Supreme Court decision that limited the U.S. Department of the Interior’s ability to take lands into trust for tribes recognized after 1934.

Law: Federal Indian Law Is Really Anti-Indian Law - How is it that human rights are missing in federal Indian law if these rights are built into the foundation of U.S. governance? Put differently, if the U.S. system is premised on human rights, then how is it these human rights are missing from U.S. federal Indian law? How is it possible for a government to be “founded on human rights principles” and at the same time enact an entire system of law that violates those principles as the U.S. has done with federal Indian law?

Law: How to Protect Tribal Lands From Our Deadliest Enemies - In 2001, the U.S. Supreme Court dealt a severe below to Indian sovereignty when it decided Nevada v. Hicks, suggesting to states and counties that when their cops are investigating off-reservation crimes, they need not obtain tribal court warrants to conduct searches or arrests on tribal land. The reach of Hicks, however, has been greatly exaggerated, most notably by state cops and prosecutors.

Law: Tribes Continue To Establish Sex Offender Registration And Notification Systems To Protect Communities - July 27 marked seven years since Congress established the Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006, a comprehensive national system for the registration and community notification of sex offenders. The Act is named in memory of Adam Walsh, a 6-year-old boy, who was abducted from a mall in Hollywood, Fla. July 27, 1981.

Law: Idaho can regulate tribal cig shipments - Idaho Supreme Court justices bolstered the state's power to regulate cigarettes shipped to Indian-owned businesses in a ruling concluding Native American sovereignty in this case didn't pre-empt state law.

August 2013

Law: Tribal Membership Revocations: Dialing For Dollars? - Over the past several years, there have been a series of publicized tribal enrollment revocations of enrolled members - including former tribal leaders - and their entire families. While this phenomenon was extremely rare in the past, it is becoming increasingly and disturbingly common. Many in Indian Country openly trace this activity from the date on which the Indian Gaming Regulatory Act became law in 1988 and tribes too often spending large amounts of their casino revenues in per capita payments to tribal members.

June 2013

Law: Indian country torn over gay marriage - The Coquille Indian Tribe in Oregon became the first in the nation to approve a gay-marriage law. But of the 566 federally recognized tribes, the majority have stayed silent. Ron Whitener, the executive director of the Native American Law Center at the University of Washington School of Law in Seattle, predicted that would change quickly if the Supreme Court or Congress threw out the Defense of Marriage Act and made same-sex marriage a universal right.

January 2013

Law: Obama urges Congress to pass Carcieri fix ‘right away’ - President Barack Obama hosted his fourth annual Tribal Nations Conference at the United States Department of the Interior last week, where the negative effects of the Supreme Court’s Carcieri decision and need for a legislative remedy remained an overarching theme. In closing remarks at the conference, President Obama said, “With some tribal nations unable to put their land into federal trust, we’re pushing Congress to pass the Carcieri fix right away.”

December 2012

Law: The Great Land Rush: Fractionated Land Issues at the Center for Katrina Jim Descendants and Tulalip Tribes - Fractionated land trust issues have bedeviled tribal nations, individual owners and the BIA for generations. Thanks to the legislation of the Indian Land Consolidation Act in 1983 (ICLA), if a tribe acquires a 51 percent interest in a parcel of land, the BIA would compel the sale of the other 49 percent. Thanks to the legislation of the Indian Land Consolidation Act in 1983 (ICLA), if a tribe acquires a 51 percent interest in a parcel of land, the BIA would compel the sale of the other 49 percent. With $1.8 billion of Cobell settlement monies allocated for the purpose of land consolidations, the subject of "forced sales" and fractionated land issues has the potential to impact the course of economic development in large portions of Indian country.

Law: Carcieri Fix: Still Time to Pass the Bill - On the eve of President Obama’s 4th Annual White House Tribal Nations Summit, there is still time for a legislative solution to Indian country’s top priority: fixing the U.S. Supreme Court’s devastating ruling that denies the Interior Secretary’s authority to take land into trust for Indian tribes that were not “under federal jurisdiction” almost 80 years ago.

Law: Carcieri Fix Delayed; Around 16 Democrats Missing on Carcieri Fix - The Carcieri fix has been set aside pending further negotiations. S. 676, an amendment to the 1934 Indian Reorganization Act, is the “clean Carcieri fix” Indian country has been awaiting for almost four years. The bill reaffirms the Interior Secretary’s authority to take land into trust for Indian tribes and individuals, repairing a devastating U.S. Supreme Court ruling in February 2009, which denied that authority.

November 2012

Law: Akaka to Push Passage of Carcieri and More in Lame Duck Session - Senator Daniel Kahikina Akaka and Loretta Tuell, his chief of staff and chief counsel on the Senate Committee on Indian Affairs, said they won’t stop working to pass a clean Carcieri fix and other important legislation during the lame duck session until the final pounding of the gavel closes the 112th Congress.

Law: U.S. Rep. Tom Cole Says There’s Bipartisan Support for American Indian Causes - Is there going to be a fix of Carcieri v. Salazar? The administration has been very helpful, but we’ve had a Democratic Senate that has been unable to do it. It is the fault of the Senate leadership and two Democratic senators in Rhode Island who think the Narragansetts should have a separate legal status than all other tribes. We have a lot of people who confuse this with gaming; it’s not about that. Rhode Island’s senators [Reed and Whitehouse] are asserting something that has national implications, that is hurting Indians all across America for some petty local dispute, where, honestly, the tribe is in the right. It was a terrible Supreme Court ruling. It tells me how little the U.S. Supreme Court understands Indian sovereignty. They overturned 80 years worth of precedent of both Democrats and Republicans putting land into trust for tribes. I don’t think that 80 years of work was wrong. I think the Supreme Court made a really stupid decision. Is a clean Carcieri fix possible this year? I’m not optimistic.

October 2012

Law: ‘Carcieri Fix’ Slated For Senate Vote - A prominent Democratic senator will work for a vote to overturn, or “fix,” changes in Indian reservation approval rules caused by the landmark 2009 Carcieri v. Salazar United States Supreme Court decision, a Senate aid said this week. The push is expected during the upcoming lame duck session of Congress, between the election and the end of the year.

September 2012

Law: Experts Urge Congressional Carcieri Fix—Again - More than a dozen lawsuits are clogging federal and state courts in what Native American Rights Fund (NARF) Executive Director John Echohawk called “a judicially-created crisis precipitated by the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar.” Echohawk made a powerful argument to the Senate Committee on Indian Affairs (SCIA) for the quick passage of a “clean Carcieri fix” to affirm the Interior Secretary’s authority to take land into trust for all federally acknowledged Indian nations.

August 2012

Law: Protect Indian women without diluting Bill of Rights - Native American women suffer outrageous rates of rape and domestic violence. The problem could be targeted far more effectively by taking political agendas out of the equation – and by taking the Constitution more seriously. The U.S. Senate has proposed a remedy in its update of the Violence Against Women Act: It wants to give tribes the authority to prosecute and try non-Indians accused of beating or raping Indian spouses or partners on tribal reservations. This might work if done right; if done wrong, it could strip American citizens of key constitutional protections. Unfortunately, Democrats are framing the issue in simplistic, election-year slogans: House Republicans with misgivings about the plan supposedly either hate women or want to coddle abusers.

Law: Tobacco Tax Case Against Tribes Running on Fumes - Native American tribes in Washington have monopolistic control over cigarette taxes, smoke shop owners and customers argued in a 9th Circuit hearing. The Puyallup and Colville Tribes have an agreement with the state allowing the tribes to collect taxes on cigarettes sold on their reservations. In exchange, Washington collects 30 percent of tribal cigarette revenue and waives its right to collect taxes on the cigarettes. Two federal complaints were filed in 2011 by tribal members who owned retail stores on tribal land and nontribal members who bought cigarettes at the stores. Both suits make similar claims about the illegality of tribes taxing nonmembers, raise antitrust issues and demand refunds of the taxes paid. Both cases were dismissed on the basis of tribal sovereign immunity. U.S. District Judge Ronald Leighton meanwhile ruled the Puyallup have a "legally recognized authority to impose taxes."

Law: Tribal law alert: all Indian tribes can lease tribal land without BIA approval - On July 30, 2012, President Obama signed the HEARTH Act of 2012, Public Law No. 112-151, amending the Indian Long Term Leasing Act, 25 U.S.C. § 415. The HEARTH Act authorizes Indian tribes to lease tribal land for business and other purposes for up to 75 years (25-year base term with two renewal terms of 25 years each for business and agricultural leases) without review and approval by the Secretary of the Interior, acting through the Bureau of Indian Affairs (BIA). The HEARTH Act eliminates delays, costs, federal environmental reviews, federal administrative and judicial litigation, and risks associated with BIA review and approval of tribal leases of tribal land.

June 2012

Law: Supreme Court Rules Feds Must Pay Up On Contracts With Tribes - Northwest tribes stand to receive big payments from the federal government after a U.S. Supreme Court decision Monday. Here’s the upshot of the ruling: the government has to uphold contracts with American Indian tribes -- even if Congress shortchanges those deals. Many tribes have taken over services that the federal government used to provide -- like education and law enforcement. But legally, the government is still required to foot the bill. So it contracts with the tribe itself to provide the services. Except -- the federal government’s checks have frequently come up short.

Law: Supremes’ Ruling Opens Floodgates to Challenges of Indian Land Trust Acquisition - The U.S. Supreme Court has ruled that an individual has standing to sue the Interior Department for taking land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, to build a casino in Wayland County, Michigan. The decision, issued on June 18, could have ramifications far beyond one tribe because it means that the status of Indian trust lands is no longer secure, and it opens the floodgates to legal challenges to Interior’s trust acquisitions for six years after the department acquires trust land for an Indian tribe.

January 2012

Law: DOMA is not a tribal issue - Passing a tribal ordinance to grant marriage licenses to same-sex couples is grandstanding because the stated purpose can be accomplished without defying federal law. And it puts tribal sovereignty at risk by inviting a federal lawsuit that would further erode the sovereignty of all tribes. Same-Sex couples in Washington state have been getting married since the 1970s. The real issue is the marriage license. Even here, the issue is not about real inequality, since, gay or straight, we all have precisely the same rights. As every tribal council knows, benefits can be extended to non-member partners (married or not, same-sex or not) by a tribal resolution under the principle of "close socio-economic ties." In this way, tribes can confer legal recognition on same-sex marriages without defying DOMA, and without putting the tribal sovereignty of all tribes at risk.

Law: Leaders Place New Emphasis on Indian Perspective - The National Congress of American Indians (NCAI), the National Indian Gaming Association (NIGA), and the United South and Eastern Tribes (USET) all shared the same overlapping concerns in 2011 – the (priority) of seeking land restoration through a "clean Carcieri fix," the four "e’s" – economic development, education, energy, and the environment – taxation issues, Internet gaming, and the perennial concern with protecting sovereignty. But a different tone entered the discourse in 2011 as leaders began to place a new emphasis on seeing and addressing issues and relationships from an Indian perspective – a perspective detailed in the U.N. Declaration on the Rights of Indigenous Peoples.

December 2011

Law: Not a Good Year for Indian Country in the Courts or Congress - The year began with a ruling from the U.S. Court of Appeals for the District of Columbia Circuit giving a Michigan resident standing to sue the Interior Department for taking land into trust for the Gun Lake Tribe. A coalition filed a Carcieri challenge to block the federal government’s decision to take 152 acres of land into trust as an initial reservation for the Cowlitz Indian Tribe. Congress failed to pass a clean Carcieri fix. Congress passed the Nation Defense Authorization Act (NDAA), which will give the president unilateral authority to detain anyone indefinitely without charge or trial. Senators Dianne Feinstein and John McCain introduced bills that would make it almost impossible to take off-reservation land into trust. And the U.S. Supreme Court upheld a decision denying justice to the Oneida Indian Nation for more than 260,000 acres stolen by the State of New York.

Law: $30 million jury award against tribe that owns Red Hawk Casino - A jury has awarded $30 million to the former business partner of the Shingle Springs Band of Miwok Indians, which owns Red Hawk Casino. The tribe argued that because of sovereign immunity it couldn't be sued. The court disagreed, and the lawsuit went ahead. By law, said Dennis Whittlesey, a Washington lawyer who specializes in tribal gaming issues, Sharp Image can't seize tribal property, including the casino itself. On the other hand, said Nelson Rose, an Indian gaming law expert at Whittier College, the tribe can't simply escape the claim.

Law: Stage could be set for fight on Mdewakanton land trust request - A U.S. Supreme Court decision, Carcieri vs. Salazar — limiting the federal government’s authority to place land in trust to tribes under federal jurisdiction before a 1934 federal act — could come into play as the Shakopee Mdewakanton Dakota Community seeks to place an additional 156 acres of land into federal trust.

Law: Supreme Court agrees to review fee-to-trust decision - December 12, 2011, the Supreme Court granted the petitions to review the D.C. Circuit Court of Appeals decision in Patchak v. Salazar. The Secretary of Interior accepted 147 acres of fee land in Wayland Township, Michigan, into trust in 2009 for gaming purposes. Patchak, a neighboring land owner, challenged the Secretary's decision on the ground that the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians was not under federal jurisdiction as of the date the IRA was enacted, as required pursuant to the Supreme Court's 2009 decision in Carcieri v. Salazar.

Law: Job Creators Paralyzed by Supreme Court’s Carcieri Decision - The uncertainty created by the Carcieri decision paralyzes economic development because banks and other financing sources are hesitant to back tribal businesses; it is impossible to tell whether a tribe will be affected by the Carcieri ruling.

Law: Northwest Gaming Law Summit Focuses On Indian Country - At the 9th Annual Northwest Gaming Law Summit held in Seattle last Thursday and Friday, several speakers also discussed the ongoing failure of Congress to implement a fix to the Carcieri decision, which has been the subject matter of several articles by Dennis Whittlesey in prior editions of this newsletter.

Law: Carcieri: Indian Country’s ‘Number One Priority’

Law: New Law Attempts to Bring Justice to Indian Country

November 2011

Law: Knowledge Is Power: Plenary Power Is False

Law: Towards a Carcieri Fix - Are We There Yet?

Carcieri: Resolving Carcieri crisis would create jobs, cost taxpayers nothing

Law: Tribal courts lack power over non-Indian abusers

October 2011

NIGA Meeting Echoes Urgency to 'Fix Carcieri'

Reversing trust land decision is Obama administration's top priority for Indian Country

Supreme Court ruling on tribal trust land needs remedy

The Political Economy of the Carcieri Fix

Woman behind Cobell Indian trust case remembered for grit


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Rod Van Mechelen, Publisher & Editor, Cowlitz Country News

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