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Objections mount as FDA reviews genetically engineered salmon

Published: March 5, 2013

WASHINGTON — Every summer since 1979, Kim Hubert has fished for sockeye salmon in Alaska’s Bristol Bay. It’s a family business in tiny Togiak that has, from time to time, also employed his wife and three children.

Hubert and his 21-year-old daughter work the nets now. They’re small permit holders who may catch and sell thousands of salmon in their nets each year, depending on the success of the run.

“We’ve got a fish camp out there, we enjoy the people and the bay and the work,” said Hubert, 58, a retired schoolteacher who lives in Eagle River. “Some years we lose a few bucks, and some years we make a few.”

They and other fishermen have been casting a wary eye on Washington, where the Food and Drug Administration is considering whether AquaBounty, a Massachusetts-based company with a lab on Prince Edward Island in Canada and growing facilities in Panama, may sell genetically engineered salmon to consumers in the United States.

More than 33,000 fishermen, environmentalists, food safety advocates and others have written to the FDA with concerns about the agency’s preliminary findings. Among the worries is that the genetically engineered fish might escape and mix with wild salmon. The company says that’s unlikely, not only because the fish are sterile but also because of its production process.

But there’s a reason that Alaska bans salmon fish farms in the state, the Sitka Conservation Society, an environmental group in southeast Alaska, said in its letter to the FDA. They fear that the company will expand to the U.S., where the fish would be closer to native salmon populations.”

These farms pollute water with concentrated fish waste and feed, spread sea lice and ultimately lead to escapement and interbreeding,” the organization said. “If genetically modified salmon are permitted, it will be only a matter of time before they are muddling the pure wild population in Alaska.”

Mostly, though, fishermen in Alaska fear that the new, faster-growing farmed fish would threaten their livelihood eventually by flooding the market with cheap fish. They’re also pressing for the AquaBounty salmon to be labeled as genetically engineered because they think that their wild-caught, more expensive product is superior. They want no confusion in the marketplace.”

In some ways I felt threatened,” Hubert said. “The threat may not be immediate, but I think down the line there could be some repercussions. We’ve had a lot of issues with labeling, and the ability (of consumers) to choose and know where the fish come from: what kind of stocks, whether they’re farmed or wild fish.”

Aqua Bounty has applied for federal approval to commercially produce a growth-enhanced, transgenic Atlantic salmon (Salmo salar). At 18 months, the transgenic fish is clearly much larger than the same-age normal fish. But overall growth of the same generation of fish evens out by 36 months. (Image Credit: Aqua Bounty Technologies)

The AquaBounty fish are Atlantic salmon that have been genetically altered with growth genes from a Chinook salmon and a sea eel. That makes them grow faster than other farmed Atlantic salmon, although they don’t get any bigger than regular salmon.

The FDA issued a preliminary finding in late December that the fish, known as the AquAdvantage Salmon, is as safe as eating conventional Atlantic salmon and that there’s a reasonable certainty of no harm in consuming it. The agency also issued a draft environmental assessment that there’s little chance of environmental harm from farming the fish.

However, after pressure from Congress — especially from Alaska lawmakers — the FDA in February extended the public comment period on its findings by 60 days. People have until April 26 to weigh in, and after that the agency will decide whether to issue a final report or pursue a more comprehensive environmental impact statement.

AquaBounty executives aren’t currently granting interviews. The company’s last public statement came in mid-February, when the FDA announced that it would extend the comment period. AquaBounty Chief Executive Officer Ron Stotish said at the time that they weren’t pleased with the delay.

Some food safety advocates are pushing for the FDA to do a full environmental review. They’re also petitioning the agency to consider the AquaBounty fish as a food additive rather than as an animal drug. The FDA uses its animal drug process to consider the safety of all potential genetically modified animals sold as food.

That change would make the approval process more transparent, as well as focus on the safety of the salmon as food, said Patty Lovera, the assistant director of Food & Water Watch. It joined Consumers Union, which is the advocacy division of Consumer Reports, and the nonprofit Center for Food Safety to petition the FDA.”

We just think it’s really deficient on the food front,” Lovera said. “What do we really know about allergies? What do we know about nutrition profile? That stuff’s really sketchy in that application that they put in. And we’d like to see a lot more of that, considering you’re going to eat the whole thing.”

People and animals already consume plenty of genetically modified grains, which aren’t required to be labeled in the U.S. A ballot measure requiring such labeling failed recently in California.

But the fish are the first genetically engineered animals being considered for human consumption in the U.S., and the approval process is being closely watched in the biotech field.

There’s a huge market for heart-healthy fish: Salmon is the second most popular seafood consumed in the U.S., behind tuna. And an estimated 91 percent of the seafood consumed in this country is imported; about half of that is from aquaculture.

Even if the AquaBounty fish is approved, however, supermarkets won’t be flooded with genetically engineered fish anytime soon, said Gregory Jaffe, the director of biotechnology at the Washington-based Center for Science in the Public Interest, an advocacy organization. Jaffe was on the FDA advisory panel that reviewed the safety of the salmon in 2010 and found no cause for alarm.

AquaBounty would have to reapply to the FDA to expand operations.

“They talked about hundreds of tons of salmon a year. We import hundreds of thousands of tons of salmon a year,” Jaffe said. “So maybe it’ll be slightly easier to eat one of these salmon steaks than to win the lottery. But if someone wanted to find one of these salmon steaks out there to eat, it’s going to take a little effort.

“That hasn’t stopped lawmakers from Western states from fighting the FDA findings — or at a minimum, seeking a requirement that genetically engineered salmon be labeled. Consumer groups are making the same push.

“Any fish that is labeled as wild-caught, or Alaskan, might see some of its market actually go up,” said Michael Hansen, a senior scientist for Consumers Union. “Since this will not be labeled, people would not know whether the regular salmon they’re buying is engineered or not.

“In his mid-February statement, AquaBounty’s Stotish noted that no new facts had been introduced since the FDA’s findings late last year and that the company doesn’t think the additional comment period “materially affects our chances for approval.”

“There has been neither new information nor a clear legal or regulatory issue raised by the FDA since that time,” he said in the statement.

AquaBounty says in its press materials that it wants its fish to be labeled “Atlantic salmon.” The company says the nutritional and biological composition of its AquAdvantage Salmon is identical to Atlantic salmon, and therefore doesn’t require additional labeling based on its method of production.

The company notes that it supports voluntary branding by the farmers who grow its salmon, to identify what it calls “the environmentally friendly benefits of this product.”

An FDA spokeswoman, Theresa Eisenman, said a decision hadn’t yet been made regarding labeling AquAdvantage Salmon.

The FDA since 1992 has considered bioengineered foods to be no different from other foods “in any meaningful or uniform way.” The agency supports voluntary labeling that provides consumers with such information, however.

Email: ebolstad@mcclatchydc.com

Energy nominee favors all-of the-above approach

President Barack Obama’s choice to lead the Energy Department advocates an all-of-the-above approach to energy and favors natural gas as a “bridge fuel” to help the country develop clean energy.

By Matthew Daly, Associated Press

WASHINGTON — President Barack Obama’s choice to lead the Energy Department advocates an all-of-the-above approach to energy and favors natural gas as a “bridge fuel” to help the country develop clean energy.

Ernest Moniz, a physics professor at the Massachusetts Institute of Technology, leads the MIT Energy Initiative, a research group that gets funding from BP, Chevron and other oil industry heavyweights for academic work aimed at reducing greenhouse gases blamed for global warming. A former energy undersecretary, Moniz has advised Obama on numerous energy topics, including how to handle the country’s nuclear waste and the natural gas produced by the controversial technique of hydraulic fracturing.

“Ernie knows that we can produce more energy and grow our economy while still taking care of our air, our water and our climate,” Obama said Monday as he introduced Moniz and two other candidates for top-level positions.

Gina McCarthy, an assistant EPA administrator, was chosen to lead the Environmental Protection Agency. A 25-year veteran of environmental policy and politics, McCarthy has worked for Republicans and Democrats, including Obama’s presidential rival, Mitt Romney, who tapped her to help draft state plans for curbing the pollution linked to global warming when he was governor of Massachusetts.

Sylvia Mathews Burwell was nominated to direct the White House Office of Management and Budget. Burwell held several posts during the Clinton administration, including deputy director of the OMB. She currently heads the Wal-Mart Foundation, the philanthropic arm of the retail giant, and previously served as president of the Gates Foundation’s Global Development Program.

Moniz, 68, whose specialty is nuclear physics, has drawn fire from some environmental groups for his views on natural gas, especially that produced from shale, a gas-rich rock formation thousands of feet underground. The gas is freed through a process called hydraulic fracturing, or fracking, in which large volumes of water, plus sand and chemicals, are injected to break the rock apart. Advances in technology have unlocked billions of dollars of gas reserves, leading to a boom in production, jobs and profits, as well as concerns about pollution and public health.

At a forum last year at the University of Texas, Moniz said natural gas, which emits fewer greenhouse gases than oil or coal, is likely to be part of the nation’s energy solution for years to come.

As a nation, the U.S. “should take advantage of the time to innovate and bring down the cost of renewables” such as wind and solar, Moniz said. “The worst thing would be to get time and not use it.”

Those and other comments have made some environmental groups wary of Moniz, who also has supported development of nuclear power, along with renewable energy sources such as wind and solar.

“Ernest Moniz has a history of supporting dirty and dangerous energy sources like gas and nuclear power with polluting partners including BP, Shell, Chevron and Saudi Aramco,” said Courtney Abrams of the group Environment America. “Given this concerning track record, we hope Dr. Moniz will focus on clean, renewable ways to get our energy that don’t put our families and our environment in harm’s way.”

Fred Krupp, president of the Environmental Defense Fund, said Moniz “has recognized that there are environmental issues – real issues, serious issues – with natural gas.”

When Moniz says issues with natural gas are manageable, “he quickly adds that just because they are manageable doesn’t mean they are managed,” Krupp said. “To me that’s actually a very full understanding that he brings to this role.”

As energy secretary, Moniz would not have direct oversight over fracking, which is primarily left to state and local governments. Even so, the Energy Department has a huge research budget, and current Energy Secretary Steven Chu has been criticized for focusing too much on renewables and not enough on natural gas, which has emerged in recent years as an energy powerhouse that has threatened the dominance of coal, the leading source of electricity in the U.S.

Like Chu, Moniz is an academic with a doctorate in physics. Unlike Chu, who led an Energy Department lab before becoming energy secretary, Moniz has extensive political experience, having served in the Clinton administration as undersecretary of energy and as a White House science adviser.

“The really good thing about Ernie is he’s been there, so he can hit the ground running,” said Carol Browner, a former Obama energy adviser who worked with Moniz when she headed the Environmental Protection Agency under President Bill Clinton.

John Deutch, an MIT colleague and former CIA director, called Moniz a “brilliant choice” to lead the Energy Department.

“I think that President Obama has chosen the most qualified individual in the United States for the position of secretary of energy,” said Deutch, who led a review of shale-gas drilling for the Energy Department in Obama’s first term.

Deutch, who has known Moniz for 30 years, said his longtime colleague has the potential to be “one of the greatest energy secretaries the country has ever had.”

Thomas Pyle, president of the Institute for Energy Research, a conservative advocacy group, set his sights a little lower.

If confirmed, Moniz will “inherit an agency with a tarnished record for picking losers and not winners in the energy market,” Pyle said. “It is our hope that Dr. Moniz will avoid opportunities to repeat the well-documented mistakes of his predecessor and refuse the temptation to let political pressure trump sound science and economics.”

Associated Press writer Dina Cappiello contributed to this report.

President of Quinault Nation to attend VAWA signing ceremony

Reported by Indianz.com

Tuesday, March 5, 2013

Fawn Sharp, the president of the Quinault Nation of Washington, will attend the signing of S.47, a bill to reauthorize the Violence Against Women Act, on Thursday. Sharp was invited to join President Barack Obama for the ceremony. “I wouldn’t be anywhere else,” she said.

The bill includes landmark provisions that recognize tribal jurisdiction over non-Indians who commit domestic violence offenses. “The very moment that President Obama signs that bill will be one that should be memorialized in history as a turning point in Indian/non-Indian relations in this country,” Sharp said.

American Indian and Alaska Native women suffer from the highest rates of violence, according to government statistics. Most of the perpetrators are non-Indian.

“Our tribal police will be able to arrest, and our tribal courts will be [able] to legally prosecute those who have literally gotten away with murder and rape for years,” Sharp said.

“This is a time to celebrate a hard-earned victory. We are so grateful for those who have helped make this happen—the tribal leaders as well as the congressional leaders and, of course, the President. He stood up for this, strongly and consistently, and I am honored to be able to join him at the signing,” Sharp concluded.

The ceremony is due to take place at the main Interior Department building on Thursday afternoon.

4 in Congress back bill to halt removal of wilderness lookout

A bill in Congress would overturn a court order to remove the historic Green Mountain lookout.

By Gale Fiege, Herald Net

DARRINGTON — Lawmakers are pushing to protect the Green Mountain forest fire lookout and establish federal wild-and-scenic status for Illabot Creek, both in the Mount Baker-Snoqualmie National Forest.

Four members of Washington state’s congressional delegation — Democratic U.S. Sens. Patty Murray and Maria Cantwell and Democratic Reps. Suzan DelBene and Rick Larsen — introduced legislation this past week.

In the case of Green Mountain Lookout, the aim is to protect the lookout, located in the Glacier Peak Wilderness. The legislation comes after a Montana-based group filed a lawsuit against the U.S. Forest Service for using a helicopter and machinery to repair the lookout, in violation of the federal Wilderness Act.

The Forest Service maintained that the lookout’s historical significance made it an allowable project. As a result of the lawsuit, the U.S. District Court in Seattle ordered the Forest Service to remove the lookout from the 6,500-foot mountain.

George Nickas, director of Wilderness Watch, the group that sued, says the proposed legislation picks away at the Wilderness Act.

Federal wild-and-scenic status for Illabot Creek would protect it as an important habitat for threatened wild chinook salmon, steelhead, bull trout and other wildlife, while maintaining recreational opportunities such as hunting and fishing, said Murray’s staff in a joint press release from the four law makers.

Martha Rasmussen, the head of the volunteer group Darrington Area Friends for Public Use, said she has a mixed reaction to the proposed legislation.

Rasmussen and many people in Snohomish County support the protection of the Green Mountain lookout, one of few surviving fire lookouts in the West, she said.

“It’s a shame that those who want it torn down pit history and heritage against wilderness. The effort to save the lookout failed in court because of the language presented. It needs to be challenged,” Rasmussen said.

Illabot Creek is actually in the Skagit County part of the forest, but it always has been a destination from Darrington, she said.

“The thing I worry about with the wild-and-scenic designation is that repairs to access roads may be too expensive or not be allowed in the protected area, so we stand eventually to lose Illabot as a destination,” Rasmussen said. “I don’t want the designation.”

Green Mountain’s lookout was built in the 1930s by the Civilian Conservation Corps. Along with its use as a key fire lookout in the logging heyday, Green Mountain also was an early warning station for aerial attacks during World War II. The lookout is on national and state registers of historic places.

Illabot Creek flows into the Skagit River watershed, which includes parts of northeast Snohomish County. The watershed supports one of the largest concentrations of wintering bald eagles in the country.

The National Wild and Scenic Rivers System was created by Congress in 1968. It prohibits dams and other water projects that impair the free-flowing nature of listed rivers and establishes a protected corridor on both sides of the river.

The proposed laws are the same as those that were presented last year, according to Larsen’s office. The bills expired at the end of the past congressional session and had to be re-introduced. Green Mountain and Illabot Creek now are in DelBene’s 1st Congressional District, redrawn last year and removed from Larsen’s 2nd district.

Celebrating the Historic Ties of Native Americans to the Bison

Posted by Wildlife Conservation Society on March 1, 2013

By John Calvelli

[Note: This is the third in a series of blogs by Calvelli celebrating the history and conservation of the American Bison.]

Native American groups joined with bison producers and conservation organizations in 2012 to initiate a campaign called Vote Bison. The campaign, which grew to include 35 coalition members across the nation, had a simple goal: to urge all members of the U.S. Congress to support the National Bison Legacy Act, which would designate the American bison as our country’s National Mammal.

The Vote Bison campaign continues in 2013 and is currently working with Congressional champions in the 113^th Congress.The participation of Native American tribes derives from cultural and spiritual connections to the American bison, or buffalo, spanning many centuries – one that is richly reflected in Native American historical and religious narratives.

Read the rest of the article here.

A pair of American Bison at the Bronx Zoo. (Julie Larsen Maher/WCS)

Cobell Deadline March 1 for Trust Administration Class Payments

Rob Capriccioso of ICTMN

February 27, 2013

The second Cobell settlement deadline is approaching on March 1. Indian class members must have submitted their applications for the second payments of the settlement, the trust administration class payments, by that date.

“Any claim forms must be postmarked by March 1, 2013,” according to a notice posted on indiantrust.com, the website established by the Cobell lawyers. Claim forms can be found on the site.

In December, historical accounting class payments of $1,000 started going out to beneficiaries who had registered their correct addresses with the federal government, the Cobell lawyers and/or the Garden City Group, the settlement administration company managing the two-part settlement payments process at the direction of the overseeing court.

Some of these payments were sent to wrong addresses, so it is important to contact the Garden City Group to be sure that correct information is in place for the second payment, officials with the National Congress of Americans (NCAI) said during a January conference call with tribal representatives regarding the process.

The number for the Garden City Group is 1-800-961-6109, and their e-mail is info@IndianTrust.com .

NCAI officials estimated that most beneficiaries would receive about $800 under this second payment process, but some could receive more. The calculation is based on the level of activity in beneficiaries’ Indian Money (IIM) accounts, held with the Bureau of Indian Affairs (BIA).

The Garden City Group is expected to calculate the amount of the second payments, and the Cobell lawyers expect the payments to be sent by fall. Some $265 million of the $3.4 billion overall settlement has been released to date, according to the lawyers. Of that, $1.9 billion was released to the U.S. Department of the Interior to run a land-consolidation program over the next 10 years. Approximately $100 million was scheduled in to be divvied among the lawyers in the case. Some lawyers continue to battle over their share, according to court documents and press accounts. Lead lawyer Dennis Gingold left the case in December.

On December 17, the U.S. District Court for the District of Columbia appointed Judge Richard A. Levie to become a special master during the payments process. Levie will oversee appeals of payments and other issues surrounding them. Appeals questions should be directed to the Garden City Group.

Rape on the Reservation

By Louise Erdrich

Published: February 26, 2013

As featured in:

The New York times Opinion Pages

MINNEAPOLIS

TWO Republicans running for Congressional seats last year offered opinions on “legitimate rape” or God-approved conceptions during rape, tainting their party with misogyny. Their candidacies tanked. Words matter.

Having lost the votes of many women, Republicans now have the chance to recover some trust. The Senate last week voted resoundingly to reauthorize the Violence Against Women Act, the 1994 law that recognized crimes like rape, domestic abuse and stalking as matters of human rights.

But House Republicans, who are scheduled to take up the bill today and vote on it Thursday, have objected to provisions that would enhance protections for American Indians, undocumented immigrants and gay, lesbian, bisexual and transgender youth, among other vulnerable populations.

Here in Minneapolis, a growing number of Native American women wear red shawls to powwows to honor survivors of sexual violence. The shawls, a traditional symbol of nurturing, flow toward the earth. The women seem cloaked in blood. People hush. Everyone rises, not only in respect, for we are jolted into personal memories and griefs. Men and children hold hands, acknowledging the outward spiral of the violations women suffer.

The Justice Department reports that one in three Native women is raped over her lifetime, while other sources report that many Native women are too demoralized to report rape. Perhaps this is because federal prosecutors decline to prosecute 67 percent of sexual abuse cases, according to the Government Accountability Office. Further tearing at the social fabric of communities, a Native woman battered by her non-Native husband has no recourse for justice in tribal courts, even if both live on reservation ground. More than 80 percent of sex crimes on reservations are committed by non-Indian men, who are immune from prosecution by tribal courts.

The Minnesota Indian Women’s Resource Center says this gap in the law has attracted non-Indian habitual sexual predators to tribal areas. Alexandra Pierce, author of a 2009 report on sexual violence against Indian women in Minnesota, has found that there rapes on upstate reservations increase during hunting season. A non-Indian can drive up from the cities and be home in five hours. The tribal police can’t arrest him.

To protect Native women, tribal authorities must be able to apprehend, charge and try rapists — regardless of race. Tribal courts had such jurisdiction until 1978, when the Supreme Court ruled that they did not have inherent jurisdiction to try non-Indians without specific authorization from Congress. The Senate bill would restore limited jurisdiction over non-Indians suspected of perpetrating sex crimes, but even this unnerves some officials. “You’ve got to have a jury that is a reflection of society as a whole, and on an Indian reservation, it’s going to be made up of Indians, right?” said Senator Charles E. Grassley of Iowa, the top Republican on the Senate Judiciary Committee. “So the non-Indian doesn’t get a fair trial.”

Leaving aside the fact that most Native defendants tried in the United States face Indian-free juries, and disregarding the fulsome notion that Native people can’t be impartial jurists, Mr. Grassley got his facts wrong. Most reservations have substantial non-Indian populations, and Native families are often mixed. The Senate version guarantees non-Indians the right to effective counsel and trial by an impartial jury.

Tribal judges know they must make impeccable decisions. They know that they are being watched closely and must defend their hard-won jurisdiction. Our courts and lawyers cherish every tool given by Congress. Nobody wants to blow it by convicting a non-Indian without overwhelming, unshakable evidence.

Since 1990, when Joseph R. Biden Jr., then a senator from Delaware, drafted the original legislation, the Violence Against Women Act has been parsed and pored over. During reauthorizations in 2000 and 2005, language on date rape and orders of protection was added. With each iteration, the act has become more effective, inclusive and powerful. Without it, the idea that some rape is “legitimate” could easily have been shrugged off by the electorate.

Some House Republicans maintain that Congress lacks the authority to subject non-Indians to criminal trials in tribal court, even though a Supreme Court opinion from 2004 suggests otherwise. Their version of the bill, as put forward by the majority leader, Eric Cantor of Virginia, would add further twists to the dead-end maze Native American women walk when confronting sexual violence. John Dossett, general counsel for the National Congress of American Indians, said it would create “more off ramps for defendants by adding multiple levels of removal and appeal, including the right to sue tribes.” A compromise backed by two other Republicans, Darrell Issa of California and Tom Cole of Oklahoma, is vastly preferable to the Cantor version. It would offer a non-Indian defendant the right to request removal of his case to a federal court if his rights were violated.

What seems like dry legislation can leave Native women at the mercy of their predators or provide a slim margin of hope for justice. As a Cheyenne proverb goes, a nation is not conquered until the hearts of its women are on the ground.

If our hearts are on the ground, our country has failed us all. If we are safe, our country is safer. When the women in red shawls dance, they move with slow dignity, swaying gently, all ages, faces soft and eyes determined. Others join them, shaking hands to honor what they know, sharing it. We dance behind them and with them in the circle, often in tears, because at every gathering the red shawls increase, and the violence cuts deep.

Louise Erdrich is the author, most recently, of “The Round House.”

Feinstein, Young Question Interior’s New Tribal Land Acquisition Policy; Feinstein’s Motives Under Scrutiny

By Rob Capriccioso, Indian Country Today Media Network

Two members of Congress, Sen. Dianne Feinstein (D-Calif.) and Rep. Don Young (R-Alaska) are questioning a policy the U.S. Department of Interior has proceeded with in recent weeks involving its tribal land acquisition policies.

For years, Interior has operated under a “self-stay policy,” which prevented the Department from putting land into trust for tribes while another party was suing over that decision. The idea behind the policy was that if the land was already taken into trust, any court case against the decision would be mooted, and therefore a litigant would be denied his or her day in court.

But the game changed in 2012, when the U.S. Supreme Court ruled in Salazar v. Patchak that a litigant could sue for up to six years after Interior takes lands into trust for tribes. In response, Interior officials decided this year that they would end their “self-stay policy” and put lands into trust, regardless of litigation, since litigation can happen for up to six years anyway.

“Interior is in effect saying that because there can be a suit anyway at any point, even after land is conveyed, then why not convey it right away,” said Michael Anderson, owner of Anderson Indian Law. “It makes a lot of sense for the Department and for tribes.”

And there are more possible changes to come. Kevin Washburn, assistant secretary for Indian Affairs at Interior, suggested another proposed policy modification at a January gathering of the National Congress of American Indians, saying that the Department was considering ending a 30-day period meant to notify the general public of land-into-trust decisions. Post Patchak, some Interior officials no longer believe the announcement period is necessary.

These policy shifts are an attempt by Interior to put a Band-Aid on the controversial U.S. Supreme Court Carcieri decision of 2009 and its piggybacking Patchak decision of 2012. Carcieri limited Interior’s ability to take land into trust for tribes not “under federal jurisdiction” in 1934; Patchak allowed a lawsuit to go forward challenging a tribal casino in Michigan from opening based on the Carcieri decision. The Patchak lawsuit – filed three years after Interior took land into trust, which the Supreme court affirmed was okay – argued in part that the tribe in that case, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, was federally recognized after 1934, so the same Carcieri rule should apply to it.

Interior has not officially announced any of the Patchak-centric changes, but their existence came to be known during recent proceedings involving the North Fork Rancheria of Mono Indians, a California tribe that has long been proposing an off-reservation casino. Interior officials told the North Fork Rancheria in January that the Department did not plan to wait for a lawsuit to play out before taking the land into trust for the tribe. As a result, U.S. District Judge Beryl A. Howell recently denied a challenge by the Picayune Rancheria of the Chukchansi Indians’ to stop the land from going into trust. He noted in his ruling that if the North Fork Rancheria ends up losing the suit to the other tribe, “the government may have to contend with legal claims against it.”

“Interior has defended the policy’s application to the North Fork Rancheria on the grounds that the tribe knows what it is doing, so there is little federal liability,” Anderson said, further estimating that “dozens and dozens” of tribes could find the change beneficial, since it is not solely intended for gaming land acquisitions, but all Indian trust lands, such as ones that have come under litigation for housing, health, cultural, and other non-gaming developments.

For a true Patchak fix to occur, and not just a patch, Anderson said that Congress would need to pass a law that would limit all post-land acquisition lawsuits.

Greg Smith, a lawyer focused on Indian affairs with Hobbs, Straus, Dean, & Walker, said that Interior’s decision to proceed with taking land into trust, even in the middle of lawsuit challenging that decision, has sound legal underpinnings, as the Department had voluntarily imposed upon itself the restriction to not take land into trust during litigation in the first place.

“They weren’t prohibited from taking the land into trust by the law, so they are free to change their ‘self-stay policy’ and now start taking that land into trust during litigation,” Smith said.

Still, Feinstein has many concerns. In a letter sent to Interior on January 31, she asked outgoing Interior Secretary Ken Salazar “to clarify several points of concern and allow stakeholders an opportunity for comment before this policy change is implemented.” She called it an “abrupt change in policy has caught many who follow this issue, including many within the Native American community, by surprise.” And she raised several questions, asking if there is a potential for federal liability, if the Department is ready to protect federal liability, if the Department has a procedure for removing lands from trust, and whether the change is necessary at all.

“Have you consulted with tribes and other stakeholders to determine if it is feasible to maintain your voluntary stay policy, with additional conditions?” Feinstein asked in the letter. “Given the significant unanswered questions and the lack of consultation as recommended by Executive Order 13175 which calls for ‘meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications,’ I urge you to open a formal rulemaking process to resolve these outstanding issues prior to implementing this new policy.”

Brian Weiss, a spokesman for Feinstein, said his boss has yet to receive the answers she is looking for. “The policy change is significant and was done without consultation,” he said. “The purpose of the letter was to ask some questions.”

Feinstein’s letter came at an interesting time, being sent very soon after Interior announced its decisions to take land into trust for the North Fork Rancheria of Mono Indians, as well as the Enterprise Rancheria of Maidu Indians—both California tribes that she has been scrutinizing. The senator is well known for opposing Indian gaming interests in her state, and she has received criticism for offering legislation in 2011 that would amend Section 20 of the Indian Gaming Regulatory Act (IGRA) to make it very difficult for some tribes to open casinos. She has also been called out for attempting to secure a compromised Carcieri fix to a controversial 2009 Supreme Court ruling that called into question Interior’s ability to take land into trust for tribes recognized by the federal government after 1934.

Young, chairman of the House Subcommittee on Indian and Alaska Native Affairs, is also requesting clarity on the policy change. In response to an inquiry from Indian Country Today Media Network about Feinstein’s letter, Young’s office said that he is concerned that Interior has not shared the change with him or his office. His spokesman said that Interior has not consulted with, nor informed, the congressman of the changes, and that Young would like to see a response from Washburn on this matter.

Nedra Darling, a spokeswoman for Interior, said that she could not comment on the letter: “We are reviewing the letter, but the Department does not comment on matters of litigation.”

Sen. Maria Cantwell, D-Wash., chair of the Senate Committee on Indian Affairs, has yet to respond with her thoughts on her Democratic colleague’s concerns; her staff has been studying the letter for many days without comment.

Several Indian affairs lobbyists and lawyers in Washington believe the shift in Interior’s policy is good for Indian country as a whole, and they fear that Feinstein, at least, is attempting to once again negatively tie Indian gaming to Interior’s ability to take land into trust for tribes.

“Interior is being fairly proactive about allowing land to be conveyed, and Sen. Feinstein has been on the record – probably at the behest of D.C. lobbyists and those who have opposed the North Fork and Enterprise projects – against Indian gaming interests,” said Anderson. “She’s opposed to gaming, period.”

Anderson said the issue goes far beyond gaming, however, adding, “There are tribal advantages to having land into trust immediately, including tax advantages, grant opportunities, and all the other opportunities of having a land base. It would be nice to see the senator support these outcomes.”

Joe Valandra, a tribal consultant, said he finds the substance of Feinstein’s letter to be “at best disingenuous” with an underlying motive of “dividing and conquering” Indian country on Patchak and other trust and gaming issues.

“This letter continues the point of view that land should almost never be taken into trust and when it is, it should be subject to every political whim and pressure available,” Valandra said, adding that Feinstein implies that the change in policy is a negative for tribes, but what he thinks she really means is that it is negative for some gaming tribes that wish to limit competition from other tribes on this front.

Valandra said that if she had real concerns in this area for all tribes, “she would be advocating for legislative fixes to remedy the effects of the Carcieri and Patchak decisions. She would also be supportive of the change in policy at BIA that is attempting to bring certainty to land in to trust decisions at an earlier time.”

Valandra said that Feinstein’s federal liability concerns are “spectacularly disingenuous,” adding, “the cost to tribes because of uncertainty about future landholdings and the ability to engage in economic development is the real cost.”

Other lobbyists, including those from firms representing some wealthy California tribes, are less alarmed by Feinstein’s letter because they see her as a person who needs to be worked with if important Indian country legislation is to pass the Senate, and they view her as a friend on issues they are passionate about.

Belonging to that camp is Larry Rosenthal, owner of the Ietan tribal lobbying firm, who said his firm consulted with Feinstein before her letter was sent. “She tends to see these issues through the prism of gaming because she has had a lot of issues with gaming in her state over the years,” Rosenthal said. “She has never liked gaming, and she has always been anti-gaming.

“At the same time, she is not anti-Indian. We have worked well with her on a variety of issues, like the tribal components of [the Violence Against Women Act] and Internet poker.”

To those who think he is befriending an enemy of Indian country, Rosenthal said, “It’s important to note the distinction between being a realist versus being a defender. I am not defending Sen. Feinstein; I’m just being a realist about who you have to work with to get things done.”

But Valandra cautioned that those who help Feinstein in her efforts are not looking out for the good of Indian country as a whole. “I am not inclined to pigeon hole, but the tribes that generally would benefit from the fruits of this letter are those that have a perceived economic interest to protect,” Valandra said.

“They are doing their job,” Anderson said of lobbyists who have supported Feinstein’s Carcieri and Patchak tinkering. “They are trying to achieve an ends for their clients, which is to stop competitive projects. Their goals are narrow.”

Valandra added that tribal policy at the federal level is based on consultation and consensus, but he believes that this idealistic ideology is hampered when it involves the divergent interests of the 566 federally recognized tribes today.

“Not all tribes agree, and most will never,” Valandra said. “This not for lack of incentive or trying, rather it is the same reason not all states and cities agree—diversity of ideas, geography, history and economic conditions. The policy dilemma is that when Feinstein (and others) use the divide and conquer strategy, it works. When consensus is not achievable, policy making/implementation almost always grinds to a halt, or is left to the loudest or most politically persuasive voice.”

Native American Heritage Day

By Monica Brown, Tulalip News Writer

The House Bill 1014 passed Wednesday Feb 20^th with a vote of 93-4. The bill was sponsored by Tulalip Tribal member and Representative John McCoy along with 26 other representatives. The bill names the state legal holiday on the Friday immediately following Thanksgiving as “Native American Heritage Day.”

The state currently observes 10 legal holidays, most of which are designated for some commemorative distinction and includes the day immediately following Thanksgiving Day, but has no corresponding name or distinction.

“This is a respectful way to acknowledge Native American heritage. The recognition is consistent with the recognition of long-term contributions of tribes, including tribes located outside of Washington with treaty rights and aboriginal land inside the state. It addresses the stigma associated with Thanksgiving Day,” was stated within the bill.

There are 29 federally recognized tribes in the state and many other tribal communities that are not federally recognized as well as individuals who claim Native American ancestry who may or may not be enrolled members of a tribe.

Native American Heritage Day has been recognized as a state holiday in Maryland since 2008. States California, Tennessee and South Dakota also have an American Indian Day or a Native American Day

In 2008 President George W. Bush signed a joint resolution by Congress designating Friday, November 28, 2008, as Native American Heritage Day, and encouraged federal, state, and local governments to observe the date as tribute to the contributions Native Americans have made to the United States. In 2010 President Barack Obama proclaimed November 2010 as Native American Heritage Month, and called upon all Americans to celebrate November 26, 2010, the day after Thanksgiving, as Native American Heritage Day.

Census Bureau reports American Indian and Alaska Native poverty rates

CB13-29

Contact: Melanie Deal
Public Information Office
301-763-3030

WEDNESDAY, FEB. 20, 2013 – The poverty rate for American Indians and Alaska Natives in Rapid City, S.D. (50.9 percent) was around three times the rate in Anchorage, Alaska (16.6 percent) and about 30 percent or greater in five other cities most populated by this group (Gallup, N.M.; Minneapolis; Rapid City, S.D.; Shiprock, N.M.; Tucson, Ariz.; and Zuni Pueblo, N.M.), according to American Community Survey data collected from 2007 to 2011 by the U.S. Census Bureau. See figure.

Nine states had poverty rates of about 30 percent or more for American Indians and Alaska Natives (Arizona, Maine, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Utah).

“With the American Community Survey, we can look at the poverty rates for even the smallest race and Hispanic-origin groups,” said Suzanne Macartney, an analyst in the Census Bureau’s Poverty Statistics Branch.

These figures come from Poverty Rates for Selected Detailed Race and Hispanic Groups by State and Place: 2007-2011, an American Community Survey brief that presents poverty rates by race and Hispanic origin for the United States, each state and the District of Columbia. For the nation and each state, poverty rates are summarized for the major race groups. For the nation, each state and selected places, poverty rates are summarized for American Indians and Alaska Natives, detailed Asian groups with populations of 750,000 or more, Native Hawaiian and Other Pacific Islander groups with populations of 25,000 or more and Hispanic-origin groups with populations of 1 million or more.

Two race groups had poverty rates more than 10 percentage points higher than the national rate of 14.3 percent: American Indian and Alaska Native (27.0 percent) and black or African- American (25.8 percent). Rates were above the overall national average for Native Hawaiians and Other Pacific Islanders (17.6 percent), while poverty rates for people identified as white (11.6 percent) or Asian (11.7 percent) were lower than the overall poverty rate. Poverty rates for whites and Asians were not statistically different from each other. The Hispanic population had a poverty rate of 23.2 percent, about nine percentage points higher than the overall U.S. rate.

Other highlights:

According to the 2007-2011 American Community Survey, 42.7 million people in the United States, or 14.3 percent, had income below the poverty level.
For the Asian population, poverty rates were higher for Vietnamese (14.7 percent) and Koreans (15.0 percent) and lower for Filipinos (5.8 percent). Poverty rates for Vietnamese and Koreans were not statistically different from each other.
For Asians, nine states had poverty rates below 10 percent (Connecticut, Delaware, Hawaii, Maryland, Nevada, New Hampshire, New Jersey, Virginia and South Carolina).
Among Hispanics, national poverty rates ranged from a low of 16.2 percent for Cubans to a high of 26.3 percent for Dominicans.

The American Community Survey provides a wide range of important statistics about people and housing for every community across the nation. The results are used by everyone from town and city planners to retailers and homebuilders. The survey is the only source of local estimates for most of the 40 topics it covers, such as education, occupation, language, ancestry and housing costs for even the smallest communities. Ever since Thomas Jefferson directed the first census in 1790, the census has collected detailed characteristics about our nation’s people. Questions about jobs and the economy were added 20 years later under James Madison, who said such information would allow Congress to “adapt the public measures to the particular circumstances of the community,” and over the decades allow America “an opportunity of marking the progress of the society.”

Source: U.S. Census Bureau