Tribes scramble to avoid $1 million in fines under Affordable Care Act

Diabetes patient Jay Littlewolf says he sought medical help for a diabetic ulcer at a Billings hospital after not receiving "adequate health care through the IHS in Lame Deer." He wants reimbursement from the IHS and sought Sen. Jon Tester's assistance.Photo/Larry Mayer, Gazette staff

Diabetes patient Jay Littlewolf says he sought medical help for a diabetic ulcer at a Billings hospital after not receiving “adequate health care through the IHS in Lame Deer.” He wants reimbursement from the IHS and sought Sen. Jon Tester’s assistance.
Photo/Larry Mayer, Gazette staff

By Tom Lutey, The Missoulian

BILLINGS – Montana’s Indian tribes, which until recently thought the Affordable Care Act would pass them by, could face fines exceeding $1 million for not offering insurance to employees.

Beginning in 2016, businesses with 50 or more full-time workers will have to offer at least a minimum amount of health insurance to employees. Those who don’t comply face tax penalties, and that includes tribal governments.

The requirement has been a surprise to tribes, said George Heavy Runner, Blackfeet Insurance Services health and wellness coordinator. As individuals, American Indians have the option of choosing not to follow Affordable Care Act rules. Many assumed tribal governments, which are sovereign, had that same option.

“We thought this was a ship kind of passing us by,” Heavy Runner said. “But it’s not just a ship passing through the night. We have been identified in this legislation, just not where we thought we would be.”

Tax penalties facing the Blackfeet Tribe for not complying could be as high as $1.1 million. Crow Tribal Chairman Darrin Old Coyote said the size of the fee depends on how many people a tribal government employs.

“If we don’t do the mandate, we’re going to be fined for the number of employees we have, and that number could be up to $1.5 million,” Old Coyote said. “We pay federal tax, and our employees pay federal tax and so we’re part of the large employer mandate.”

The tribes can avoid the fees by offering the insurance to their workers. Old Coyote said the Crow have hired a benefits manager to do just that.

***

The change caught tribes off-guard because American Indians by treaty receive health care via the Indian Health Service on reservations. IHS is much maligned by tribal members for not providing adequate health care and for not covering services by specialists outside the IHS program.

Because IHS is limited, tribal members who work for their government would benefit from having other health care, Old Coyote said. The challenge is having a health care plan to offer by next year.

Suing to get off the employer mandate has already been tried. In February, Wyoming’s Northern Arapaho Tribe failed to convince a federal judge to block the employer mandate. The Northern Arapaho argued that subjecting tribes to the employer mandate was an oversight that overlooked treaty rights related to Indian health care, while also stating that tax credits and benefits granted to Indians under the Affordable Care Act would be denied.

Earlier this month, U.S. Sen. Steve Daines, R-Mont., and U.S. Rep. Ryan Zinke, R-Mont., announced a bill to exempt tribes from the employer mandate. Daines called the mandate a job killer for tribal governments, who wouldn’t hire as many employees if they had to pay significant penalties.

Other sponsors of the bill, such as Republican Sen. John Thune, of South Dakota, said it was unfair to exempt individual tribal members and not exempt tribal governments as well.

However, exempting tribes from the employer mandate won’t help the nagging problems with Indian health care, said a representative for Sen. Jon Tester, D-Mont.

“This bill does nothing to solve the underlying problem, which is crisis-level health disparities among Native Americans,” said Marnee Banks. “If we are serious about increasing access to quality health care in Indian Country, we will expand Medicaid and adequately fund the Indian Health Service.”

***

IHS spending on Indian patients was $2,741 per person in 2013, according to the National Congress of American Indians, which asserts that IHS is severely underfunded. Medicaid spending, by comparison was $5,841.

The state of Montana is awaiting federal approval of the state’s plan to begin offering Medicaid to Montanans earning up to 138 percent of the federal poverty level.

Medicaid expansion would extend benefits to as many as 11,000 tribal members over the next four years, said Jon Ebelt of Montana’s Department of Public Health and Human Services. The program would benefit tribal health care in general, Ebelt said.

“Medicaid expansion revenue will be critical for building health infrastructure, expanding the workforce, and keeping health care providers in tribal communities,” Ebelt said. “Medicaid revenues will bring new funds to the programs and further investment in the Indian health system infrastructure and workforce. This is an opportunity to provide more health care services, create more jobs and employ more Native Americans in tribal communities.”

Old Coyote said he’s concerned that state benefits representatives won’t be able to clearly explain the expanded Medicaid program to some Crow Indians who speak Crow as their primary language. He’s asked the state to provide a benefits representative who is fluent in Crow.

Ebelt said the state is able to provide translation assistance if necessary and in determining an outreach plan with members of the Indian Health Service at Crow Agency.

Alaska Native tribes no longer have to register restraining orders with state

By Matt Buxton, Newsminer.com

FAIRBANKS — Alaska Native tribes will no longer have to jump through extra hoops to have their domestic violence restraining orders enforced by the state.

A legal opinion issued by Alaska Attorney General Craig Richards ruled Alaska law was out of line with the federal Violence Against Women Act, clearing the way for a direct link between tribal courts and state troopers.

“This opinion provides clear direction to officers on the ground as well as the victims they seek to protect,” Richards said in a news release. “There should now be no doubt that these protection orders must be enforced.”

The legal opinion found an Alaska law requiring tribal court-issued restraining orders be registered with courts before they could be enforced was superseded by federal Violence Against Women Act.

The Violence Against Women Act specifically says protective orders issued by Alaska Native tribes, other tribes and other governments do not need to be registered to be enforced.

“The State should not enforce or apply the provisions of state law that conflict with VAWA,” the opinion said, “and should investigate and prosecute violations of tribal and foreign protection orders that meet the full faith and credit requirements set forth in VAWA.”

Tanana Chiefs Conference President Victor Joseph applauded the decision, saying it will help curb domestic violence and empower tribes.

“This will no doubt add to the protection of our Native women and children in our villages,” he said. “It is one less step victims will have to take in order to get the protection from law enforcement that they deserve. It is also a step in the right direction needed to lower the high rates of domestic violence as recognized by the Indian Law & Order Commission’s report.”

The protective orders must still comply with the guidelines set out in the Violence Against Women Act. Those include the tribe having the appropriate jurisdiction over the issue and provide due process.

The protection orders must be for “the protection of victims of domestic violence, sexual assault, dating violence, or stalking,” according to the federal law.

The order still encourages the tribes to register protection orders with the state court system.

“While not required for enforcement, registration of tribal and foreign protection orders helps officers to protect and serve the public,” the order explains.

The opinion was requested by Department of Public Safety Commissioner Gary Folger.

The jurisdiction of tribal courts is likely to continue to be an important issue in Alaska in coming years.

North Pole Republican Sen. John Coghill has introduced a bill that would give tribal courts jurisdiction over misdemeanor crimes. He said it not only lessens the cost for the state to enforce misdemeanor laws in rural Alaska, but importantly is a better tool to address problems in rural Alaska than the traditional court system.

“The tribal courts are using a restorative justice model that really suits many small villages,” he said. “To be fair, there are some that do it well and some that are not doing it as well as others, but the reality is something has got to happen in the rural communities to allow people to hold each other accountable.”

Granting tribes greater jurisdiction over criminal and civil issues has been a prickly issue for many legislators and administrations, but Coghill said there’s a compromise that can and should be struck.

“We have such a diversity in Alaska,” he said, “and if you can’t find a way to work in those diverse conditions, I think we’ve failed.”

Next week the Tanana Chiefs Conference will be hosting its annual Tribal Court Development Conference in Fairbanks.

New Senate committee incorporates tribes into policymaking

By Eastern Arizona Courier

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

PHOENIX — A new state Senate committee made its debut July 15.

The Senate Ad-Hoc Committee on Indian Affairs is designed as a joint undertaking between the state and the tribes. State Sen. Carlyle Begay, D-Ganado, said he launched the committee as a way to foster crucial relationships and open communication between tribal leaders and state government.

“There are 22 tribal communities in Arizona, and it’s essential that we bridge the gap between the tribes and state government so we can work together on some of Arizona’s prominent issues, such as Indian gaming and water rights,” Begay said. “This committee seeks to improve communications and build a sense of trust between Arizona’s tribal citizens, communities and governments.”

Tribal issues often cut across party lines, so with this in mind, the committee was formed with Democrats, Republicans and tribal leaders as members to ensure balanced views and perspectives.

“I want to thank the state Senate for establishing the Senate Ad-Hoc Committee on Indian Affairs and including tribal leaders. Today our discussions centered on Indian education, and I am hopeful that this is a new era of collaboration between the state of Arizona and Indian tribes. This will not only provide education and awareness, but a joint partnership on improving relations between governments,” said San Carlos Apache Tribal Chairman Terry Rambler,

During the first meeting, the committee received reports from the Arizona Department of Education on the status of Native American education, on the activities of the ADE Native American Advisory Council and from the Arizona State Board for Charter Schools.

The committee also heard presentations regarding Native American Joint Technical Education District (JTED) program funding and the Indian School Bus Routes Maintenance Program. Representatives from the Goldwater Institute updated the committee on the status of the Indian Child Welfare Act lawsuit. Finally, the committee heard testimony from the public.

The next Senate Ad-Hoc Committee on Indian Affairs will be in August.

9th Cir. Hammers Out Tribal Fishing Rights

By JUNE WILLIAMS, Courthouse News Service

(CN) – A Ninth Circuit panel ruled the Suquamish Indian Tribe aren’t barred from fishing in areas the Tulalip Tribe claims as their own.
Monday’s decision is the latest in a lengthy dispute going back to a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington that affirmed certain tribal fishing rights the state had been denying.
Among numerous sub-proceedings, the Tulalip in 2005 requested a permanent injunction to prevent the Suquamish from fishing in waters outside their usual and accustomed grounds, an area determined by the Ninth Circuit in 1990.
The Suquamish were accused in that case of fishing on the east side of Puget Sound, in violation of court order.
U.S. District Judge Ricardo Martinez last year clarified “the geographic scope” of the Suquamish fishing grounds in Bolt’s decision. He said Bolt “relied heavily” on the reports of anthropologist Dr. Barbara Lane, who testified about various tribes’ traditional fishing areas in the 1974 case.
Martinez said it was “nearly certain” Bolt intended to include Possession Sound and waters at the mouth of the Snohomish River as the Suquamish’s usual and accustomed grounds.
“On the other hand, there is an absence of evidence in her report regarding Suquamish fishing in the waters on the eastern side of Whidbey Island such as Skagit Bay, Saratoga Passage and its connecting bays Penn Cove and Holmes Harbor, and Port Susan,” the July 29, 2013, ruling says. “Therefore the court finds that Judge Bolt did not intend to include these areas in the Suquamish U&A.”
The Tulalip appealed.
On Monday, a three-judge panel of the Ninth Circuit affirmed the lower court’s decision, finding The Tulalip “did not meet its burden to demonstrate that there was no evidence before Judge Bolt supporting Suquamish fishing or traveling through the western contested waters.”
Circuit Judge Richard Paez, writing for the panel, said the panel drew on other litigation between tribes stemming from Bolt’s 1974 decision. To win exclusive fishing rights, the moving tribe must prove the encroaching tribe’s usual and accustomed fishing grounds were ambiguously determined by the court.
The moving tribe must also show there was no evidence before Bolt that indicated the contested area was included or excluded in the determined fishing area of the encroaching tribe, Paez said.
The panel found that there was evidence the Suquamish fished or traveled in the eastern and eastern waters contested by the Tulalip.
“This general evidence, too, constitutes some evidence before Judge Bolt and supports the district court’s determination that Judge Bolt did not intend to exclude these contested bay areas from Suquamish’s U&A,” Paez wrote.
Tulalip’s attorney, Mason Morisset did not immediately return a request for comment.
In a statement, Suquamish Tribal Council chairman Leonard Forsman said, “”We appreciate the court’s work on this litigation and look forward to continuing our role as a co-manager of our treaty resources in our usual and accustomed fishing areas.” 

$500,000 grant for Tribal Heritage Project to be used at Grand Canyon’s Desert View

Grand Canyon National Park’s Desert View Watchtower and overlook area. Loretta Yerian/WGCN

Grand Canyon National Park’s Desert View Watchtower and overlook area. Loretta Yerian/WGCN

By Grand Canyon News

GRAND CANYON, Ariz. – ArtPlace America recently announced that the American Indian Alaska Native Tourism Association (AIANTA), on behalf of the tribal heritage project partnership, received a grant of $500,000 to further arts and culture at Desert View inGrand Canyon National Park.

The grant will transform Desert View into a place to celebrate, share, and learn about inter-tribal cultural heritage.

AIANTA, along with Grand Canyon National Park and the park’s Inter-tribal Advisory Council (ItAC), will specifically use the grant to preserve murals inside the historic Watchtower, continue the Cultural Demonstration Series, and develop inter-tribal tourism opportunities.

In addition to ArtPlace America and AIANTA, Grand Canyon Association and the Bureau of Indian Affairs have partnered with Grand Canyon National Park on the reinvigoration of Desert View.

A signature project for next year’s National Park Service Centennial, the revival of Desert View as a cultural heritage site will provide opportunities for the public to connect with Grand Canyon’s traditionally associated tribes.

This transformation also ensures that future generations of tribal members and visitors will have an opportunity to make and share meaningful experiences and stories.

“This project re-envisions how visitors experience Desert View and the entire park and will lead us and the NPS into the next century. We are grateful for the support of ArtPlace America and the American Indian Alaska Native Tourism Association and the hard work of our Inter-tribal Advisory Council,” said Park Superintendent Dave Uberuaga.

Grand Canyon’s ItAC, established in 2013, is composed of representatives from the park’s 11 traditionally associated tribes who collaborate with the NPS on issues that affect each of the tribes and the park. Those tribes-Hopi, Navajo, Zuni, Havasupai, Hualapai, Yavapai-Apache, and five bands of Southern Paiute represented by the Kaibab Paiute-work with the park on programs such as youth development, tribal tourism opportunities and cultural demonstrations.

One of the programs, the Ancestral Lands Conservation Corps, supported by the NPS Washington Office of Youth Programs, employed 10 Navajo and Hopi students for 12 to 22 weeks. The hope is to develop the program further to engage youth from the traditionally associated tribes.

Working with Arizona Conservation Corps, the crew worked on multiple projects throughout Grand Canyon, ranging from trail maintenance to creating interpretive programs, as part of the ongoing changes at Desert View.

The Desert View area has been used as a gathering place for thousands of years. Visitors can see a glimpse of the ancient past at the Tusayan Ruin and Museum. Architect Mary Colter modeled Desert View’s centerpiece, the Watchtower, after the architecture of the Ancestral Puebloan people of the Colorado Plateau.

Today Desert View represents the physical and cultural gateway from Grand Canyon National Park to the Navajo and Hopi reservations.

Desert View is the eastern entrance into Grand Canyon National Park. It is located on the South Rim approximately 45 minutes east of Grand Canyon Village. To plan your visit to Desert View, go to www.nps.gov/grca/planyourvisit/placestogo.

For more about ArtPlace America visit www.artplacearmerica.org.

To see some of the projects from the Arizona Conservation Corps, check out www.azcorps.org.

California Indian Tribe Pursues Rights to Groundwater

Photo © Brent Stirton/Reportage by Getty Images for Circle of BlueA groundwater recharge facility for the Coachella Valley adds water imported from the Colorado River to the valley’s main aquifer and prevents the land from sinking and damaging the surrounding infrastructure.

Photo © Brent Stirton/Reportage by Getty Images for Circle of Blue
A groundwater recharge facility for the Coachella Valley adds water imported from the Colorado River to the valley’s main aquifer and prevents the land from sinking and damaging the surrounding infrastructure.

A court test of federal water law by the Agua Caliente Band of Cahuilla Indians has implications for the American West.

By Brett Walton, Circle of Blue

As California implements a landmark law to balance demand for groundwater with available supplies, an Indian tribe’s lawsuit in federal court has the potential to add new layers of complexity to managing a prized resource that is in short supply during California’s worst ever drought.

The Agua Caliente Band of Cahuilla Indians filed the suit on May 14, 2013 against the Coachella Valley Water District and the Desert Water Agency, two water suppliers in the tribe’s southern California desert region near Palm Springs. The case, straightforward in its goals, addresses two primary concerns: halting groundwater levels that have declined at an average rate of more than one meter per year since 2000, and stemming pollution in the groundwater beneath the 12,545-hectare (31,000-acre) reservation.

The Agua Caliente complaint reflects the growing willingness of Indian tribes across the American West to pursue, by court action or negotiated settlements, clear legal recognition of water rights that are held in trust by the U.S. government. The flexing of tribal legal muscle, which occurred first for surface water rights in the 1980s, has now expanded to seeking more authority over the use of groundwater. The result of these actions is that a new era of water management in the West is taking shape, one in which the old brokers — the cities, counties, and irrigation districts — will have to make room for another seat at the table.

Just like the tribal lawsuit, California’s 2014 law to fortify supplies and improve distribution of groundwater was prompted by rapidly diminishing aquifers and inadequate authority by local or state officials to curtail indiscriminate use. The convergence of the new state law and the federal lawsuit, along with helping to clarify who in California has access to and control of groundwater, has other wide-ranging implications. The Agua Caliente case could be a model for tribes in California that seek greater influence in water management decisions. And the tribe’s suit could set a precedent for how groundwater rights for Indian tribes are interpreted nationally.

Some see the case, now in the Ninth Circuit Court of Appeals, eventually reaching the U.S. Supreme Court. “The lawsuit is very significant,” Anecita Agustinez, tribal policy advisor for the California Department of Water Resources, told Circle of Blue, explaining that the case could prompt other tribes in California to file claims to groundwater. “I believe you can’t have groundwater management unless you have tribal participation. They live on significant rivers and watersheds.”

Tribes Pursue Water Rights

California is an important legal testing ground. The state is home to more than 100 federally recognized Indian tribes, from the Karuk reservation near Oregon to the Campo reservation on the Mexican border. The Agua Caliente is perhaps the first in the state to seek official recognition and quantification of its legal rights to groundwater. The tribe, by suing for its rights, wants a greater say in how water is managed in the valley.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Tribal Chairman Jeff Grubbe said in a statement in March, referring to the shrinking aquifer and decline in water quality. “We called out this detrimental practice and brought it to the attention of the water districts over and over for years simply to be ignored.”

The Lawsuit

The Agua Caliente lawsuit covers a few exacting points of jurisprudence — legal ownership, for example, of the space between soil particles that could be used for storing water underground. But the lawsuit makes two broad claims about water quantity and quality that could rebalance current management practices in the region and state.

The first claim is that the tribe has a federal reserved right to groundwater from two basins beneath the Coachella Valley. A federal reserved right was established in the seminal 1908 Winters decision in the U.S. Supreme Court, which found that the U.S. government, by establishing a reservation, implicitly set aside enough water for the tribe to make a living from the land. On March 20, 2015, the U.S. District Court of the Central District of California ruled that the Agua Caliente do have a reserved right to groundwater. An appeal of that ruling is being heard by the Ninth Circuit.

The second broad claim is that the valley’s two water agencies — Coachella Valley Water District and Desert Water Agency — are polluting the aquifer with imported Colorado River water, which is saltier than the local sources. The agencies pour Colorado River water, which is delivered by canals, into sandy-bottomed percolation basins throughout the valley to bolster sagging groundwater levels. The agencies acknowledge that the Colorado River supplies are saltier but do not admit that the practice of recharging the aquifer has increased its salinity. The Agua Caliente argue that their groundwater rights entitle them to water without added salts. This claim is being litigated in a second phase of the lawsuit.

A third phase of the lawsuit will consider numbers: How much groundwater do the Agua Caliente own? Do they have a right to water of a certain quality? What should the standard be? Only phase one — the determination that the tribe does indeed have a right to groundwater – has been completed by the district court.

Local and State Implications

The lawsuit makes the Coachella Valley water agencies nervous. The changes that are in store if the Agua Caliente are granted rights to a significant portion of the aquifer could be substantial.

Photo © Brent Stirton/Reportage by Getty Images for Circle of BlueChris Thomas, 44, works as a zanjero, or ditchrider, who regulates waterflow to agriculture in the Coachella Valley. Zanjeros deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. Click image to enlarge.

Photo © Brent Stirton/Reportage by Getty Images for Circle of Blue
Chris Thomas, 44, works as a zanjero, or ditchrider, who regulates waterflow to agriculture in the Coachella Valley. Zanjeros deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. 

“There’s a great deal of speculation,” Katie Ruark, spokeswoman for Desert Water Agency, told Circle of Blue. “The tribe hasn’t said what they plan to do with their rights.” Ruark mentioned water rate increases — if the agency was forced to buy back water from the tribe — as one potential effect. Then there is the tribe’s well-documented displeasure with the decline in groundwater levels, which could prompt a reduction in pumping.

Agua Caliente’s spokeswoman Kate Anderson referred Circle of Blue to the tribe’s website and did not respond to follow up questions about the tribe’s role in managing the region’s aquifers and what changes it would like to see.

The lawsuit coincides with a transition in California’s groundwater practices. The state’s groundwater reserves plunged to record lows in the last four years of drought. Little snowmelt or rainfall percolated into the ground while prodigious amounts of water were pumped out to sustain the country’s largest agricultural economy. Thousands of rural wells have gone dry.

Farmers and cities in most of the state were allowed to pump without limits because there was no authority to regulate groundwater. That changed last September when Gov. Jerry Brown signed the Sustainable Groundwater Management Act, which requires the state’s most important groundwater basins to form management agencies by 2017 and align water withdrawals with water availability by 2040.

Anecita Agustinez, the state’s tribal policy advisor for water, said that how the tribes fit into the evolving management picture is still being discussed. Tribes are not allowed to form their own groundwater management agency, but they can participate in a joint effort with cities, farm districts, and other local agencies. She called the integration of tribal authority a “potential hurdle.”

“It’s all very new,” Agustinez said. “We’re working on guidelines now.” She said that the documents that local agencies must fill out when they form a management body asks whether they consulted with tribes.

Integrating tribal claims represent a new demand in the system and could displace existing water uses, not just for California but for all western states, according to Steve Greetham, chief general counsel for the Chickasaw Nation, in Oklahoma. “It’s a challenge when looking at potentially thousands of property owners who have a stake in the outcome,” he told Circle of Blue.

In Arizona, which has settled more Indian water claims than any other state, the tribes have emerged as co-managers and essential partners with the state’s cities and water agencies.

If the Agua Caliente are granted rights to a certain quantity and quality of water, as they seek in the lawsuit, they will force the issue in the Coachella Valley and potentially open a door for other groundwater claims in California.

Federal Implications

How a groundwater right would work in practice in California, where “pump as you please” is the current operating principle, is an unresolved question. Courts elsewhere have faced the same issue and have ruled in favor of tribes. In the last 15 years, the Arizona and Montana Supreme Courts, and a U.S. district court in Washington State determined that Indian tribes do have rights to groundwater based on the reserved rights doctrine. The U.S. district court decision in the Agua Caliente case follows that precedent.

“There’s a trend toward the courts finding that tribes have a right to groundwater,” Ryan Smith, a lawyer at Brownstein, Hyatt, Farber, and Schreck who specializes in Indian law, told Circle of Blue.

The U.S. Supreme Court has not heard a case pertaining to groundwater for tribes. Though it ruled in 1976, in Cappaert v. United States, that groundwater is a reserved right, the nation’s highest court has not set a national standard for applying the reserved right doctrine to groundwater. Without a clear national definition, each state divides its groundwater for tribes in a different way. Arizona, for instance, says that tribes have groundwater rights only when surface water is insufficient for the reservation.

The lack of a standard has “muddied the waters” at the state level, Greetham asserted. “As a tribal advocate, I think that’s terrible,” Greetham told Circle of Blue. “[The states] don’t all apply the doctrine with the same rigor.”

The variability is one reason that the U.S. Supreme Court could take up the Agua Caliente case. Roderick Walston, the attorney representing Desert Water Agency, told Circle of Blue he thinks that the losing side will appeal to the U.S. Supreme Court and there is a good chance the justices will review it. Smith agreed, saying that the court might want to conclusively settle the matter.

Others argue that the precedent set by the lower courts is compelling evidence that a groundwater right does exist and that any U.S. Supreme Court decision would refine the definition of how to apply it.

“I think there is a certain level of optimism on the part of non-tribal actors that the Supreme Court will address Winters rights and more narrowly define them,” Greetham said. “Non-tribal actors are fooling themselves if they think the Supreme Court will issue more restrictive rights.”

The legal right to groundwater, in other words, is likely to be upheld. For California agencies, it is another factor to consider as they follow the long path toward groundwater sustainability.

Tribal Labor Sovereignty Act moves forward after markup session

capitol hill, congress

By Kim Morrison, World Casino News

H.R.511 gains momentum as members of the House Committee on Education and the Workforce attend the July 22, 2015 markup session which was packed with members of the National Indian Gaming Association in Washington, D.C., for a legislative summit.

The Act which exempts tribes and their casinos from the National Labor Relations Act (NLRA), the Tribal Labor Sovereignty Act was passed on Wednesday at the short markup session on Capitol Hill.

According to the Chairman of the Committee, Rep. John Kline (R-Minnesota) who introduced the bill, “it’s not about big business versus big labor and it’s not about Republican versus Democrat.”

Kline went on to add that “the bill we are considering today is about whether Native Americans should be free to govern employee-employer relations in a way they determine is best for their workplace.”

In what Rep. Todd Rokita (R-Indiana) described as a “bipartisan, commonsense proposal that will provide legal certainty to the Native American community,” the Act would exempt tribes and their casinos from the National Labor Relations Act (NLRA), and prohibit the National Labor Relations Board from asserting jurisdiction at those businesses.

Rokita also went on to state that the Act would give authority back to tribal leaders and end the National Labor Review Board’s (NLRB) overreach, and restore the standard that was in place long before the National Labor Relations Board made the misguided decision to change course. An amendment in the nature of a substitute to clarify that tribal governments are also exempt from the NLRA, was offered by Rokita.

Opposition to the Sovereignty Act was voiced by the only Democrats present, Rep. Mark Pocan (D-Wisconsin), Rep. Joe Courtney (D-Connecticut) and Rep. Ruben Hinojosa (D-Texas), who accused Republicans and their allies of using tribal sovereignty as a smokescreen to attack the NLRB.

Representative Pocan accused proponents of the bill, such as the U.S. Chamber of Commerce, of endorsing the bill in an attempt to help destroy the NLRB rather than support for the sovereignty of the tribes.

The three also noted that most employees of tribal casinos are non-Indians and argued that the bill will degrade labor standards Indian Country.

Although it hasn’t been taken up by the full Senate, on June 10th the Senate Indian Affairs Committee approved S.248, its version of the bill which is gaining traction among lawmakers from both parties.

At that legislative summit which opened Tuesday on Capitol Hill (hosted by the National Indian Gaming Association (NIGA)), Sen. Heidi Heitkamp (D-North Dakota) stressed that every conversation about gaming should begin by stating that gaming is not something that the federal government authorized you to do, but a sovereign right.

She added that, “If the Indian Gaming Regulatory Act went away tomorrow, you would still be able to conduct gaming,”

Exemption from the NLRA has been sought after by the tribes ever since a 2004 ruling in which the NLRB asserted jurisdiction over Indian Country for the first time in decades, but efforts to address the issue ran into serious opposition from Democrats and their labor union allies at that time.

Since that 2004 ruling, tribes have won support from key Democrats by pitching the issue as one of parity with other governments, and with Republicans in control of the House and Senate, the bill has moved quickly in the 114th Congress.

The bill would resolve uncertainties like the one that arose in early June when the NLRB declined to assert jurisdiction at the WinStar World Casino and Resort, a casino owned by the Chickasaw Nation of Oklahoma, citing the tribe’s treaty-protected right to self-governance.

Less than a week later, the 6th Circuit Court of Appeals backed the NLRB’s jurisdiction over the Little River Casino and Resort, a casino owned by the Little River Band of Ottawa Indians in Michigan, and three weeks later, expressing serious doubts about the application of the NLRA in Indian Country, the same court rejected the treaty claims of the Saginaw Chippewa Tribe, also in Michigan.

The U.S. federal law that establishes the jurisdictional framework that governs Indian gaming, the Indian Gaming Regulatory Act (IGRA), has been a source of extensive controversy and litigation since it was passed in 1988.

Indian tribes set to begin marijuana sales

Tony Reider, president of the Flandreau Santee Sioux Tribe, wants to make his tribe the first in the nation to sell recreational marijuana. Here he’s shown under the grow lamps of a medical marijuana growing facility in Phoenix in March 2015.PHOTO COURTESY OF TONY REIDER — Handout

Tony Reider, president of the Flandreau Santee Sioux Tribe, wants to make his tribe the first in the nation to sell recreational marijuana. Here he’s shown under the grow lamps of a medical marijuana growing facility in Phoenix in March 2015.
PHOTO COURTESY OF TONY REIDER — Handout

BY ROB HOTAKAINEN, Sun Herald

WASHINGTON — Tourists soon may be able to go to a South Dakota Indian reservation, buy a cigarette-sized marijuana joint for $10 to $15 and try their luck at the nearby casino.

In December, the Flandreau Santee Siouxexpect to become the first tribe in the nation to grow and sell pot for recreational use, cashing in on the Obama administration’s offer to let all 566 federally recognized tribes enter the marijuana industry.

“The fact that we are first doesn’t scare us,” said tribal president Anthony “Tony” Reider, 38, who’s led the tribe for nearly five years. “The Department of Justice gave us the go-ahead, similar to what they did with the states, so we’re comfortable going with it.”

The tribe plans to sell 60 strains of marijuana. Reider is hoping for a flock of visitors, predicting that sales could bring in as much as $2 million per month.

“Obviously, when you launch a business, you’re hoping to sell all the product and have a shortage, like Colorado did when they first opened,” he said.

Other tribes have been much more hesitant.

“Look at Washington state, where marijuana’s completely legal as a matter of state law everywhere, and you still have tribes adhering to their prohibition policies,” said Robert Odawi Porter, former president of the Seneca Nation of New York.

It comes as no surprise to Washington state Democratic Rep. Denny Heck, who says he works on tribal issues every day.

“Not once has anybody ever brought up that they wanted to go down this track,” he said.

Heck speculated on one possible reason: “We’re all aware of the painful history of alcoholism in Indian Country.”

Tribes won the approval to sell pot in December, when the Justice Department said it would advise U.S. attorneys not to prosecute if tribes do a good job policing themselves and make sure that marijuana doesn’t leave tribal lands.

But federal prosecutors maintain the discretion to intervene, a worrisome prospect for many.

“This administration is very pro-tribes, very supportive. What if the next one isn’t?” asked W. Ron Allen, chairman of the Jamestown S’Klallam Tribe in Washington state.

He said many of the state’s 29 tribes also want assurances from federal officials that they won’t lose millions of dollars in grants and contracts if they sell a drug banned by Congress.

“We’re not getting definitive answers back,” Allen said. “There’s a number of tribes that are very aggressively looking into it and trying to sort through all the legal issues. The rest of us are just kind of on the sidelines watching.”

 

Many tribal officials took note earlier this month when federal authorities seized 12,000 marijuana plants and more than 100 pounds of processed marijuana on tribal land in Modoc County, Calif.

Federal authorities said they raided the operation because the tribes planned to sell the pot on non-reservation land.

“That’s a warning shot to Indian County that this isn’t carte blanche to do whatever you want, even in a place like California,” said Blake Trueblood, director of business development for the National Center for American Indian Enterprise Development, based in Arizona.

Trueblood said marijuana could give tribes an economic boost, much like gaming. He said tribes will have the best opportunities in states such as Florida and New York, where demand for pot is high but the drug has not been legalized for recreational use by state voters.

“Ultimately, I think you’ll see legal marijuana in every state,” Trueblood said. “I think that’s fairly inevitable, even in very conservative places like Florida.”

 

Reider said his tribe plans to sell both medical and recreational marijuana. Minors will be allowed to consume pot if they have a recommendation from a doctor. Under a tribal ordinance passed in June, adults 21 and over will be able to buy one gram of marijuana at a time for recreational use, no more than twice a day.

“We really don’t want the stuff getting out to the street,” Reider said. “So we’re going to have like a bar setting where they’ll be able to consume small amounts while on the property.”

Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana, said the California raid shows that it’s still “an extremely risky venture” for any tribe to start selling marijuana. And he said pot sales would fuel more addiction.

“If we think alcohol has had a negative effect on young people on tribal lands, we ain’t seen nothing yet,” Sabet said.

 

As part of his homework, Reider said, he traveled to Colorado, the first state to sell recreational pot last year. He said he does not smoke marijuana but has concluded that it’s safer than alcohol, citing the behavior he witnessed at the Cannabis Cup, a marijuana celebration held in Denver in April.

“It was a peaceful environment,” he said. “Everybody was overly friendly, overly talkative to each other and respectful of each other. Where if you go to a concert where there’s a lot of alcohol, you typically see fights and arguments.”

 

Reider said the tribe plans to begin growing 6,000 marijuana plants in October and is renovating a bowling alley to house a new consumption lounge that will include four private rooms. He said the tribe may consider allowing marijuana consumption in its casino in the future.

Reider acknowledged that it’s “kind of an awkward feeling” to start selling pot, but he figures the tribe is well-equipped.

“When we started looking into it, it’s comical at first, but then you realize it’s an amazing business,” he said. “It’s highly regulated, and we’re used to the regulation from operating our casino. We’ve got security and surveillance.”

Reider said profits from pot sales will be used to help tribal members. He said that could include the construction of a facility for those addicted to alcohol, prescription drugs or methamphetamine.

“We don’t have a recovery treatment center on the reservation right now,” Reider said. “Potentially we could look to fund one of those operations, and not just for marijuana addiction.”

Read more here: http://www.sunherald.com/2015/07/29/6341934/indian-tribes-set-to-begin-marijuana.html#storylink=cpy

 

Goldwater Institute challenges Indian Child Welfare Act

Suzette Brewer, Indian Country Today Media Network

PHOENIX, Ariz. – On July 7, the Phoenix, Arizona-based Goldwater Institute announced the filing of A.D. v. Washburn in the United States District Court for the District of Arizona, a class-action lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) based on its contention that the federal legislation “discriminates against Native children.”

Secretary of the Interior Sally Jewell, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn, and Gregory McKay, director of the Arizona Department of Child Safety (DCS) were named as defendants in the case.

The suit is being filed on behalf of “all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, pre-adoptive or prospective adoptive parents of these children,” according to the organization’s press release. “This case will not impact current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction; it will change the law so that state courts and agencies cannot discriminate against Native American children.”

Washburn marks the third major legal challenge to the 38-year-old federal law since the Bureau of Indian Affairs published new ICWA guidelines in the Federal Registry in February of this year, followed by the agency’s declared intention to seek a federal rule, which would make the statute more enforceable on state courts and social service agencies.

“While we have not yet reviewed the filing, we understand that a lawsuit challenging ICWA was filed yesterday. In matters in litigation, we will speak primarily through our briefs in court, but I want to assure the public that we will defend the Indian Child Welfare Act,” said BIA assistant secretary Washburn in a written statement. “Nearly 40 years ago, Congress determined that Indian children were being treated unfairly in the context of foster care and adoption. Congress determined that ‘an alarmingly high percentage of [Indian] children’ were subjected to ‘unwarranted’ removal from their homes and that a federal law was needed to protect Indian children. This law has been an important feature of the legal landscape for many years now and we firmly believe that the protection of the best interests of Indian children continues to be important today.”

According to the suit, the plaintiffs are seeking declaratory and injunctive relief against “certain provisions of ICWA and the accompanying BIA guidelines” on behalf of “A.D.,” a 10-month-old baby girl who is an enrolled member of the Gila River Indian Community. Another child plaintiff is a 4-year-old boy who is a member or eligible for membership in the Navajo Nation. The birth parents of both children have had their parental rights terminated by the state and both children reside off-reservation in Arizona. The Navajo Nation, as outlined in the brief, has repeatedly attempted to find ICWA-compliant homes for the boy – all of which were rejected by the state as “inappropriate” placements. If not for the Indian Child Welfare Act, according to the brief, the boy would already be in a permanent home under “race-neutral” Arizona law.

“When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest,” said Darcy Olsen, president of the Goldwater Institute in the organization’s press release. “We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children – the right to be placed in a safe home based on their best interests, not based on their race.”

But the original author of the Indian Child Welfare Act, retired South Dakota Sen. James Abourezk, took the Goldwater Institute to task for its attempt to overturn one of his signature legislative achievements during his time in the United States Senate. Ironically, Abourezk’s late friend and colleague Sen. Barry Goldwater actually voted in favor of ICWA when it was approved by the Senate in 1977.

“I knew Barry Goldwater – he was my friend and often came to me for advice on most tribal matters,” said Abourezk from his home in Sioux Falls, South Dakota. “I wish he were alive to see this travesty because he would never approve of it and you can quote me on that and make sure you emphasize the word ‘never.'”

Tribal leaders, their legal teams and ICWA advocates across the country seem universally opposed to the litigation. They view with skepticism adoption practices in the United States, and the economic factors and profits at play.

“The Native American Rights Fund is closely following the lawsuits filed in Virginia, Minnesota, and now Arizona,” said NARF staff attorney Matthew Newman. “What is abundantly clear is that these lawsuits are part of a coordinated, well-financed attack on the rights of tribal nations to protect their children. It is open season on the Indian Child Welfare Act.”

“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, staff attorney and adjunct professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”

Stephen Pevar, senior counsel for the American Civil Liberties Union, says the whole point of enacting ICWA was to end decades of unnecessary removals of Indian children from their homes and communities.

“Congress held years of hearings [before enacting ICWA] and many Indians who were victims of state foster care cases testified,” Pevar said. “Based on that testimony and other research, Congress found that it is in the best interests of Indian children to be raised in an Indian home except in extraordinary circumstances. Therefore, the Goldwater Institute is wrong in saying that Congress overlooked the ‘best interest’ standard. Instead, Congress accepted that standard and concluded that there’s a presumption that it’s in the best interest of Indian children to be raised in an Indian home. In addition, the Supreme Court has already rejected the notion that ICWA creates racial discrimination when it imposes minimum federal standards on state courts in their handling of Indian child custody cases.”

But ICWA has come under assault in courts all over the country in the last several months, say legal experts, in states unwilling to deviate from the “business-as-usual” approach, in which an average adoption can bring anywhere from $40,000 to 100,000 in fees and costs for private adoptions, depending on various factors, including living expenses for the birth mother.

In May, for example, Washington, D.C.-based attorneys Lori McGill and her husband, Matthew McGill, filed suit in federal court in Virginia seeking to challenge the new BIA guidelines which they believe impose “federalism” on state courts regarding the adoption of Indian children. Mrs. McGill, who played a key role in Adoptive Couple v. Baby Girl in 2013, told the National Law Journal in May that she gets emails on a weekly basis “from lawyers and adoptive parents telling me how ICWA is ripping their families apart.”

That same month, the Oklahoma Court of Civil Appeals openly dismissed the new BIA guidelines in a case involving a 4-year-old Cherokee girl who had been placed in a non-Indian foster home during emergency proceedings in 2013. At the time, an ICWA-compliant home was not available, though a year later the tribe filed a motion to transfer the girl to a Cherokee family that the tribe had located. In ordering the girl to stay with her foster parents over the tribe’s objection, the court’s contempt for the new guidelines was palpable.

“The BIA guidelines’ intentional disregard of these factors results in a one-size-fits-all approach to the placement of children with any tribal affiliation,” the judges wrote. “That result may bear little resemblance to what is really in the child’s best interests, despite the self-serving pronouncements of the BIA guidelines.”

In June, adoption attorneys representing tribal parents in Minnesota filed another suit, Doe v. Jesson, in which they argued the Minnesota Indian Family Protection Act (MIFPA) violates constitutional due process in requiring notice of adoptions to the tribe. However, the Minnesota District Court denied a preliminary injunction based on state law requiring notice to tribes. The Court ruled that the MIFPA posed no threat of irreparable harm to the two tribal plaintiffs in complying with notice requirements. The tribe in the case, the Mille Lacs Band of Ojibwe, have declined to intervene.

But the litigation, said observers, strikes at the heart of not only of the Indian Child Welfare Act, but also the keystone of tribal sovereignty as a whole – the right of Indian tribes to determine their own membership and raise their children in their home communities.

“Using tragic stories to try to destroy the constitutionality of ICWA is not appropriate. As we know from Morton v. Mancari, Native status is a political identity not racial or ethnic, so laws that give any type of Indian preference or preferential treatment are not in violation of the equal protection clause,” said Victoria Sweet, a program attorney for the Reno, Nevada-based National Council of Juvenile and Family Court Judges. “It’s ironic that [the Goldwater Institute] would argue that Native children get less protections when they actually get more and it is disingenuous to suggest otherwise when the reality is clearly the opposite. We are not yet at a point where the initial purpose of ICWA has disappeared. We still need this law. It still protects Native children.”

“It’s 38 years later and I still get mail from Indian people who tell me how important this legislation is,” Abourezk said. “The tribes need to mount a unified attack against this lawsuit because it’s good law and what they’re doing is wrong. It would be an enormous tragedy to see them overturn it.”

Wyoming gunman who shot two men was ‘hunting’ for homeless people: prosecutor

By David Ferguson, Rawstory

A Riverton, Wyoming man reportedly broke into a detox center over the weekend and shot two sleeping men in the head, killing one, because he was tired of cleaning up after homeless people.

The Associated Press reported that Roy Clyde, a 32-year-old city parks employee, was resentful of the homeless people he has to clean up after as part of his daily duties.

Riverton Police Department spokesman Capt. Eric Murphy told the AP that Clyde snuck into the Center of Hope recovery facility and shot the two men as they slept. Clyde is a 13-year city employee and was apparently acting out of rage at people known as “park rangers,” Native Americans who leave nearby Wind River Indian Reservation — where drinking is illegal — to drink in the city’s public parks.

“(B)asically he was angry at that, and that’s what precipitated him to go and do this violent act,” Murphy said.

After shooting the men, Clyde called police on himself and surrendered when they arrived, not far from Center of Hope.

Murphy told the AP that neither of the two victims nor anyone else at Center of Hope is currently homeless. The recovery center specializes in detox and addiction therapy and serves recovering people from all walks of life.

Wind River Reservation is home to both Northern Arapaho and Eastern Shoshone Native Americans. A spokesperson for the reservation said that both of the shooting victims were Northern Arapaho.

Clyde told police that he was specifically targeting “park rangers” and would have gunned down anyone he met who matched that description, but that whether they were white or Native American was immaterial.

Murphy told the AP that police bring all kinds of people with substance abuse problems to Center of Hope.

“They have different levels of treatment,” he said. “If they encounter somebody who’s intoxicated, they can take them there for the evening until they sober up.”

Prosecutor Patrick LeBrun argued for no bond in the case on Monday, accusing Clyde of going “hunting for people.”

“There’s no other way to say it,” he said.