Limits on Access to Eagle Feathers Questioned

By Cameron Langford, Courthouse News Service

(CN) – The Interior Department may be infringing on the religious freedom of Native Americans by limiting the right to possess eagle feathers to federally recognized tribes, the 5th Circuit ruled.
Understanding golden and bald eagles are essential for the religious practices of many American Indian tribes, Congress amended the Eagle Protection Act in 1962, adding an exception “for the religious practices of Indian tribes.”
Under the law, Native Americans could apply for a permit to take and possess eagles by attaching a certificate from the Bureau of Indian Affairs that verified them as Indian to their application.
Interior Secretary Bruce Babbitt narrowed the eligibility in 1999 to members of federally recognized Indian tribes.
The National Eagle Repository in Colorado takes in dead eagle parts and distributes them to qualified permit applicants, with whole bird orders taking more than three years to fill, and loose feather requests taking about six months to turn around, court records show.
At a 2006 powwow a U.S. Fish and Wildlife Service agent found Robert Soto in possession of eagle feathers.
Soto told the agent he was a member of the Lipan Apache Tribe, and after the officer determined the tribe is not federally recognized, he met with Soto, who voluntarily gave up his eagle feathers in return for the government dropping its criminal case against him.
As pastor of the McAllen Grace Brethren Church and the Native American New Life Center in McAllen, Texas, Soto uses eagle feathers for his ministry’s religious ceremonies.
Soto “has been a feather dancer for 34 years and has won many awards for his Indian dancing and artwork at various powwows throughout the nation,” according to his self-published biography.
After the Interior Department denied Soto’s petition for the return of his feathers, he and 15 other plaintiffs sued, claiming the feather confiscation violated religious freedoms established by the First Amendment.
U.S. District Judge Ricardo Hinojosa sided with the feds and Soto appealed to the 5th Circuit in New Orleans.
Writing for a three-judge panel of the appellate court, Judge Catharina Haynes found the government had not carried its burden of showing its regulations are the least restrictive means of protecting what it claims are its compelling interests: protecting eagles and fulfilling its responsibility to federally recognized tribes.
Noting that the 1962 Amendment to the Eagle Protection Act “did not define ‘Indian Tribes,'” Haynes wrote on Wednesday, “We cannot definitively conclude that Congress intended to protect only federally recognized tribe members’ religious rights in this section.”
She added: “The Department has failed to present evidence at the summary judgment phase that an individual like Soto-whose sincerity is not in question and is of American Indian descent-would somehow cause harm to the relationship between federal tribes and the government if he were allowed access to eagle feathers, especially given congressional findings that the exception was born out of a religious concern.”(Emphasis in original.)
The law also grants the Interior Secretary authority to OK the taking of eagles or eagle parts for public museums, scientific groups, zoos, wildlife and agricultural protection.
Haynes took issue with the fact that the government did not bring up these various nonreligious exceptions to the law.
The feds additionally argued that removing barriers to possession would lead to a spike in poaching to supply a black market in eagles and eagle feathers.
But Haynes dismissed that as “mere speculation” by the federal agents who testified in the case.
“This case involves eagle feathers, rather than carcasses. It is not necessary for an eagle to die in order to obtain its feathers. Thus, speculation about poaching for carcasses is irrelevant to Soto’s request for return of feathers,” the 25-page ruling states.
In coming down on the side of religious freedom, the panel relied heavily on the Supreme Court’s recent Hobby Lobby ruling, which found that requiring some corporations to supply contraceptives to their employees against their religious objections violates the Religious Freedom of Restoration Act.
The panel reversed and remanded the case to Hinojosa and urged the government to prove the permitting system does not violate the RFRA.
In a one-page concurring opinion Judge Edith Jones said the ruling should be read to only apply to American Indians.
“Broadening the universe of ‘believers’ who seek eagle feathers might … seriously endanger the religious practices of real Native Americans,” she wrote.

Two Obama Cabinet members make visit to Passamaquoddy tribal school

The secretaries of education and the interior convened a study group last year to assess schools funded by the federal Bureau of Indian Affairs.

By The Associated Press

PERRY – U.S. Education Secretary Arne Duncan and Interior Secretary Sally Jewell took a firsthand look at a tribal school as they promoted President Obama’s goals for education reform.

The two members of Obama’s Cabinet on Monday visited the Beatrice Rafferty School, located on the Passamaquoddy Pleasant Point reservation, which serves more than 100 students. They were joined by Bureau of Indian Affairs Director Monty Roessel, along with Pleasant Point Chief Clayton Cleaves and Principal Mike Chadwick.

The two secretaries convened a study group last year to assess issues within Bureau of Indian Education-funded schools, which are among the lowest-performing schools in the country.

Last month, the study group issued a Blueprint for Reform. Goals for the 183 elementary and secondary schools and dormitories that are part of the Bureau of Indian Education include high-speed Internet, additional training for teachers and greater spending flexibility for tribal schools when it comes to meeting education goals.

The Beatrice Rafferty School, which was built in the 1970s, is due for replacement with federal funds. The funding was announced by Reps. Mike Michaud and Chellie Pingree earlier this year.

Tribe: Problems linger with child protection

By HENRY C. JACKSON, Associated Press

WASHINGTON (AP) – The chairman of the Spirit Lake Indian Tribe said Tuesday that his reservation in northeastern North Dakota still has difficulty handling child protection issues and finding resources.

“The problems still remain,” Leander R. McDonald told a House subcommittee hearing organized by U.S. Rep. Kevin Cramer. “We continue to struggle to meet the child protection needs of our community.”

McDonald said the Spirit Lake Indian Reservation is trying to change its culture and improve the way it handles justice and child care issues. But he said tribal officials have struggled to fill key social worker positions and have found limited help from the federal government.

Cramer, a North Dakota Republican, said he pushed for the hearing because he is trying to gauge whether Congress needs to take action in order to improve conditions at the reservation. He said he was disturbed by repeated cases of child abuse and two cases involving child deaths on the reservation.

“The system is failing,” he said.

Spirit Lake has had numerous documented cases of child abuse, and last year federal prosecutors successfully tried two cases involving child deaths on the reservation. The tribe has ousted a former chairman and taken other steps to fix what officials have called a broken child protection system, since it initially came under fire in 2012.

Last year, the federal Bureau of Indian Affairs intervened, taking over some operations to try and improve conditions. The agency assigned seven agents to the reservation.

Tribal members agreed about a year ago to remove Chairman Roger Yankton Sr. in a recall vote, saying his administration was corrupt and ineffective and had allowed a culture of child abuse and child sexual abuse to worsen on the reservation. Yankton has denied the allegations.

Members of Congress seemed skeptical Tuesday that enough was being done to correct dire problems on the reservation. Earlier in the hearing, Cramer and other members of the House Natural Resources subcommittee on Indian and Alaska Native Affairs pressed federal officials about why more wasn’t being done.

Rep. Don Young was dismissive when addressing remarks from Michael S. Black, director of the Bureau of Indian Affairs. Young said he was annoyed the bureau had not accomplished more during its stewardship of Spirit Lake.

“This is good words,” the Alaska Republican said. “It doesn’t necessarily accomplish something.”

Black and another federal official, Joo Yeum Chang, an associate commissioner with the Administration for Children and Families, defended the federal response and said they were doing the best they could with limited resources.

Black said conditions had improved but that his agency simply didn’t have enough resources to deal with all of Spirit Lake’s issues.

“We’re reaching a point where we’re talking to other tribes to try and recruit some of them,” he said. “To have them come up and address issues they can help us resolve.”

He added, “I think we as a community have been making progress.”

Asáásyi Lake Fire grows to about 1,000 acres

By Alastair Lee Bitsoi and Terry Bowman, Navajo Times

After three days of charring approximately 1,000 acres, the Asááyi Lake Fire has reached the summit of the Chuska Mountains and the inferno is moving in a northeastern direction toward the communities of Naschitti and Sheep Springs, N.M.

The fire will be categorized as a Type II National and State Level Fire, according to the Southwest Area Incident Management Team.

“I got scared,” said Eleanor Largo, who had to evacuate her summer sheep camp near the area locals call Green Meadows.

Green Meadows, which is about 11 miles west of Naschitti, is on the part of the Chuska Mountains known as Biita’dah in Navajo. It’s a region of the mountain where locals have summer camps, and consists of canopies of pinion, juniper and pine trees.

Largo reported to the Navajo Times Sunday night that the fire was north of her summer residence, before she was told by fire officials to depart the mountain. She left her dog and cat behind and sought refuge at the command center and shelter in Naschitti.

“My daughter was crying,” she added, while wiping away tears from her face and having her vitals checked by a first responder.

“Sparks were going toward my house,” she added.

More than 250 firefighters from Bureau of Indian Affairs, including the Navajo Scouts and Navajo Hotshots are battling the blaze. They are being assisted by the Navajo Volunteer Fire Department and the Helitrack Crew.

Fire crews from all over the Navajo Nation and Southwest region of the U.S. are also helping manage the blaze.

According to the Southwest Area Incident Management Team, about close to 1,000 acres have been consumed by the fire that started Friday afternoon north of Asááyi Lake in Crystal, NM.

Dangerous high winds reaching to up to 60 mph in the Chuska Mountains have played a key role in keeping the fire alive.

In response to the growing fire, emergency management centers have been set up at Crystal and Naschitti Chapter Houses.

Once seeing the fire reach the summit and moving down from Biighaadi, the very top of the mountain, Gloria Dennison, of Naschitti, knew the fire was “very serious.”

A wild land firefighter, right (in yellow), can be seen walking in the direction of the fire as a helicopter drops water onto the flames Friday evening on the Chuska Mountains near Asaayi Lake, which is east of Navajo Pine, N.M. Fire officials said they did not know what caused the fire. It is continuing to be investigated.

A wild land firefighter, right (in yellow), can be seen walking in the direction of the fire as a helicopter drops water onto the flames Friday evening on the Chuska Mountains near Asaayi Lake, which is east of Navajo Pine, N.M. Fire officials said they did not know what caused the fire. It is continuing to be investigated.

“Some people left their livestock up there,” she said.

She added that the way fire has shifted with the wind is scary.

“This is not going to stop because of the wind,” the former chapter president said.

Melvin Stevens, a community member and president of the Authorized Local Emergency Response Team in Naschitti, said that the fire is between Whiskey Lake and Sand Springs, N.M., an area where locals also have summer sheep camps.

There is “heavy smoke and flames,” Steven said, adding that the fire has also moved down from the summit, or Biighaadi, to the region of the mountain known as Biita’dah.

“We’re trying to get organized to get people off of the mountain and keep them away from where the fire is at,” Stevens said.

“You can see the flames on our side of the mountain,” Steven said, adding, “This is one of the largest fires we had and its pretty dry up there.”

Residents are advised to stay out of the Crystal/ Asááyi Lake area. Highway 31 from Crystal to Sheep Springs is closed, as well as Highway 30 going to Mexican Springs. Route 321 coming down from Crystal Chapter to Asááyi Lake is also closed.

People are asked by the SWA Incident Management Team to avoid these roads because the dangers of the fire and the unnecessary traffic for fire crews.

photo-2The cause of the fire is still unknown at this time, and authorities aren’t ruling out the possibility of it being human caused, said Regional Fire Management Officer Dale Glenmore, who added the fire is currently being investigated by Navajo Nation authorities.

Glenmore, who briefed fire crews at the SWA Incident Management Team command center at Navajo Nation Museum in Window Rock Sunday afternoon, explained that fire crews from Zuni, Fort Apache, Black Mesa, Mount Taylor, Prescott, Morman Lake, Globe and Blue Ridge are fighting the blaze.

The Southwest Region Team 3 will take over control of fire operations Monday morning. The fire crews will began work at 6 a.m. according to a Bea Day, Instinct Commander of the Southwest Region Team 3.

For more info, call the Bureau of Indian Affairs Division of Forestry and Wildland Fire Management (928)729-23007 or the Navajo Nation Police Department (928) 871-6111.

Hearing set on Spirit Lake child protection

By Associated Press

FILE - This undated file photo provided by the Cass County (N.D.) Jail shows Valentino Bagola who was convicted in September 2013 in the brutal killings of two children on the Spirit Lake Indian Reservation in May 2011. A U.S. House subcommittee has scheduled a hearing on June 24, 2014, on child protection and the justice system on the Spirit Lake Indian Reservation. Republican Rep. Kevin Cramer requested the hearing saying he wants to assess whether congressional action is warranted to address problems with child abuse and deaths that have plagued the reservation. Jail, File) Photo: Courtesy Of The Cass County (N.D., AP

FILE – This undated file photo provided by the Cass County (N.D.) Jail shows Valentino Bagola who was convicted in September 2013 in the brutal killings of two children on the Spirit Lake Indian Reservation in May 2011. A U.S. House subcommittee has scheduled a hearing on June 24, 2014, on child protection and the justice system on the Spirit Lake Indian Reservation. Republican Rep. Kevin Cramer requested the hearing saying he wants to assess whether congressional action is warranted to address problems with child abuse and deaths that have plagued the reservation. Jail, File) Photo: Courtesy Of The Cass County (N.D., AP

BISMARCK, N.D. (AP) — A U.S. House subcommittee has scheduled a hearing for later this month on child protection and the justice system on the Spirit Lake Indian Reservation in northeastern North Dakota.

U.S. Rep. Kevin Cramer, R-N.D., requested the hearing, saying he wants to assess whether congressional action is needed to address problems with child abuse and deaths that have plagued the reservation in recent years.

“The recurring deaths and child abuse cases on Spirit Lake are unacceptable,” he said. “Clearly the current system is failing our children.”

The Spirit Lake tribe has been overhauling its child protection system, which came under fire in 2012. The federal Bureau of Indian Affairs stepped in late that year to bolster and oversee the system. The agency late last year assigned seven agents to the reservation.

Federal prosecutors last year successfully tried two cases involving child deaths on the reservation. Valentino “Tino” Bagola was sentenced to life in prison after being convicted in September of killing his 9-year-old niece and her 6-year-old brother, who were stabbed a combined 100 times. In November, Hope Louise Tomahawk Whiteshield was sentenced to 30 years in prison for the death of her nearly 3-year-old step-granddaughter, who died after being thrown down an embankment.

Tribal members about a year ago also ousted Chairman Roger Yankton Sr. in a recall vote, saying his administration was corrupt and ineffective and had allowed a culture of child abuse and child sexual abuse to worsen on the reservation. Yankton denied the allegations.

The hearing of the House Natural Resources Subcommittee on Indian and Alaska Native Affairs is set for June 24 in the Longworth House Office Building in Washington, D.C.

Embattled Nooksacks win delay in loss of membership

By John Stark, The Bellingham Herald

DEMING – The 306 people facing loss of Nooksack Indian Tribe membership have won a round in tribal court, getting a judge to order the tribal council to stop its latest effort to oust them.

The Thursday, June 12, ruling from Tribal Court Chief Judge Raquel Montoya-Lewis stems from a March 2014 Nooksack Court of Appeals ruling. The appeals judge panel had ordered a halt to the process of removing people from tribal enrollment rosters until the tribal council could draw up an ordinance spelling out the procedures for stripping people of tribal membership. Such an ordinance also would require approval from the U.S. Bureau of Indian Affairs, the appeals court ruled.

But in mid-May the tribal council began sending out new notices to some members of the affected families, scheduling July disenrollment hearings before the tribal council under the terms of a 2005 tribal membership ordinance that received BIA approval in 2006. Gabe Galanda, the Seattle attorney representing the threatened families, went back to court to challenge the legality of that maneuver.

After an earlier hearing, Montoya-Lewis agreed that the tribal council was out of bounds.

“This approach appears to be an attempt to circumvent the very clear holdings of the Court of Appeals,” Montoya-Lewis wrote.

While the judge’s ruling delays the move to strip the 306 of tribal membership, it likely will not stop it. There appears to be no legal obstacle to the process, once the tribal council passes the necessary ordinance and gets federal approval. Nooksack Tribal Council Chairman Bob Kelly, who has pushed for the disenrollment, was recently reelected and has the support of a majority of council members.

The disenrollment controversy began in early 2013 after Kelly and a majority of other council members agreed that members of the Rabang, Rapada and Narte-Gladstone families had been incorrectly enrolled in the 2,000-member tribe in the 1980s, and their enrollments should be revoked.

Since then, members of the affected families have mounted a vigorous legal and public relations effort to retain their Nooksack membership. That membership entitles them to a wide range of benefits, among them fishing rights, health care, access to tribal housing and small cash payments for Christmas and back-to-school expenses.

Those facing the loss of tribal membership have based their membership claim on their descent from Annie George, who died in 1949. Members of those three families have introduced evidence that Annie George was Nooksack, but those who want the three families out have noted that George’s name does not appear on a list of those who got original allotments of tribal land or on a 1942 tribal census, and those two criteria determine legal eligibility for membership.

Tribal members petition Bureau of Indian Affairs over Tribal Council makeup

Demand Tribal Council makeup be put to a vote

By Chip Thompson, Red Bluff Daily News

20140612__RDN-L-petitions-0612~1_GALLERY

Courtesy photo Members of the Paskenta Band of the Nomlaki Indians delivered petitions Thursday to the Central California office of the Bureau of Indian Affairs.

SACRAMENTO >> Around 120 members of the Paskenta band of Nomlaki Indians, led by Chairman Andrew Freeman, traveled by bus Thursday to deliver petitions to Central California Superintendent of the Bureau of Indian Affairs Troy Burdick calling for affirmation of a Tribal Council elected in May.

The group is demanding the BIA allow the tribe to exercise its sovereign right to determine the tribe’s governing body, according to a press release issued Thursday morning.

The move comes in response to a letter Burdick issued Monday recognizing Freeman and four ousted members of the tribe as the last uncontested, duly elected Tribal Council.

David Swearinger, vice chairman; Leslie Loshe, treasurer and Geraldine Freeman, secretary were removed from the Tribal Council during an April 12 General Council meeting of the tribe. Allen Swearinger, member at large, did not attend a subsequent meeting in May and was replaced on the Tribal Council as a result.

A “Tribal Police” force of about 30 armed men in uniform representing the ousted members attempted early Monday to shut down Rolling Hills Casino, which is owned by the tribe and remains open under those aligned with Andrew Freeman. Armed security employed by the casino prevented the shutdown, but a standoff continues at the Corning property.

The tribal members aligned with Andrew Freeman claim the tribe’s constitution allows the voting members of the tribe to submit 30 percent of their signatures in order to propose legislation for the tribe. The signatures of members were gathered to be submitted to Geraldine Freeman, whom Burdick’s letter recognizes as secretary.

Under the tribe’s constitution, when 30 percent of the tribe’s eligible voters sign an initiative it must be certified by the tribal secretary and voted on by the Tribal Council. If the Tribal Council rejects the initiative, then the tribal members must be provided the opportunity to vote on the matter, according to the release.

Upon receipt of the signatures, the BIA is prohibited from interfering with or disrupting the tribal process, thereby allowing the tribe to resolve the dispute pursuant to the tribe’s own governing documents and processes, the release said.

Training begins for Hardin jail; no inmates yet

 

This 2009 photo shows the entrance to the Two Rivers Detention Center in Hardin. / AP Photo/Matthew Brown, File

This 2009 photo shows the entrance to the Two Rivers Detention Center in Hardin. / AP Photo/Matthew Brown, File

By Matthew Brown, The Associated Press

BILLINGS — A private corrections company from Louisiana is starting to train guards — but still doesn’t have any inmates — for a jail in Hardin that has sat vacant since it was built in 2007, company and town officials said Monday.

Steve Afeman with Emerald Correctional Management said a warden and other personnel have been hired and about 30 guards will be training through the week at the 464-bed Two Rivers Detention Facility.

The company intends to solicit inmates from Native American tribes, counties and the U.S. Marshals Service, Afeman said.

No agreements have been reached, and Chief Deputy Rod Ostermiller with the Marshals Service in Billings said he is not aware of any discussions between his agency and the Lafayette, Louisiana-based company.

The $27 million jail rose to notoriety in recent years after its backers failed to get any contracts for inmates, prompting desperate Hardin officials at one to point to offer to take in suspected terrorists held in Guantanamo Bay, Cuba. A California man later duped officials with a grandiose plan to turn the jail into a military training camp.

The jail is owned by Hardin’s economic development agency, Two Rivers Authority. Emerald signed an operating contract with the authority on May 6 to run the jail, Two Rivers Chairman Jon Matovich said.

Two Rivers would receive 50 cents per day for every inmate under the terms of the deal, Matovich said.

“Everything is signed, the ball’s in (Emerald’s) court and they’re doing a great job,” Matovich said. “Anything that goes on at the facility from now on is Emerald’s stuff. As soon as they get their staff trained and get things rolling, I’m sure they will have some inmates.”

Afeman said representatives of Emerald planned to meet with leaders of tribes from Wyoming, Montana and the Dakotas beginning Wednesday to gauge their interest.

Afeman said in April that the company had reached a memorandum of understanding with the U.S. Bureau of Indian Affairs in which the agency endorsed the company’s plans. But on Monday, Afeman said there was no agreement with the federal agency and that Emerald was working directly with the tribes.

A former employee of the Wyoming Department of Corrections was hired as warden, Afeman said. Kenneth Keller spent three decades with the state agency and in 2008 was appointed warden of the Wyoming Honor Farm, a minimum security facility in Riverton for inmates preparing to re-enter society.

More forestry funding needed on Indian lands, tribal leader says

By Kate Prengama, Yakima Herald-Republic

Phil Rigdon, the director of  Yakama Natural Resources Program and president of the Intertribal Timber Council

Phil Rigdon, the director of Yakama Natural Resources Program and president of the Intertribal Timber Council

Federal funding cuts pose dire consequence for the ability of tribes to manage their land and reduce wildfire risks, a Yakama Nation leader told a U.S. Senate hearing Wednesday in Washington, D.C.

Phil Rigdon, the director of the Yakamas’ natural resources program and president of the Intertribal Timber Council, told the Senate Committee on Indian Affairs that programs that once kept tribal forests healthy are now “running on fumes.”

“The consequences of chronic underfunding and understaffing are materializing,” Rigdon told the committee. “The situation is now reaching crisis proportions and it’s placing our forests in great peril.”

There are more than 18 million acres of tribal forest lands held in trust by the federal government, but the Bureau of Indian Affairs gets far less funding per acre for forest management and fire risk reduction than national forests.

Funding has fallen 24 percent since 2001, Rigdon said, and that can have dire consequences.

For example, last year when the Mile Marker 28 Fire broke out off U.S. Highway 97 on the Yakama reservation, only one heavy equipment operator and one tanker truck were able to respond immediately because that’s all the current federal budget supports, Rigdon said in an interview before the hearing.

“Back in the early 1990s, when I fought fire, we would have three or four heavy equipment operators,” he said. “Someone was always on duty. That’s the kind of thing that’s really changed.”

The Mile Marker 28 Fire eventually burned 20,000 acres of forest.

Rigdon noted that the dozens of tribes around the country that are represented by the Timber Council are proud of the work they do when resources are available.

“If you go to the Yakama reservation and see our forests, we’ve reduced disease and the risk of catastrophic fire. If we don’t continue to do that type of work — if we put it off to later — we’ll see the types of 100,000- or 200,000-acre fires you see other places,” Rigdon said.

Currently, there are 33 unfilled forestry positions at the BIA for the Yakama Nation, he added. That limits the program’s ability to hit harvest targets, which hurts the tribe economically and affects the health of the forest.

A 2013 report from the Indian Forest Management Assessment Team found that an additional $100 million in annual funding and 800 new employees are needed to maintain strong forestry programs on BIA land nationwide. The current budget is $154 million.

In addition to the concern over future funding, other members of the panel also discussed the different approaches to forest management by tribes and the Forest Service.

“We’ve done a good job maintaining a healthy forest on a shoestring budget, but the Forest Service is not maintaining its adjacent lands,” said Danny Breuninger Sr., the president of the Mescalero Apache Nation in New Mexico.

Committee member Sen. John McCain, R-Ariz., cited a 2011 Arizona fire as an example of how tribal efforts can succeed. In the wake of a 2002 fire, the White Mountain Apache conducted salvage logging and thinning work while the adjacent national forest did not. When fire hit the region again, federal forests were devastated, but the treated tribal forests stopped the fire’s spread.

Jonathan Brooks, forest manager for the White Mountain Apache, told McCain that lawsuits prevent the Forest Service from doing similar work.

“Active management gets environmental activists angry,” Brooks said. “But what’s more hurtful to the resources: logging, thinning and prescribed fire, or devastating fires?”

Rigdon said the Intertribal Timber Council would like to see increased abilities for tribes to work with neighboring national forests on management projects like thinning, which could support tribe-owned sawmills and reduce fire risks.

The Yakama Nation is working with the Forest Service on developing such a collaborative project, as part of a new program known as “anchor forests.” It’s a pilot program currently being used on a few reservations, and the panelists at the hearing supported expanding it to more regions.

Anchor forests are intended to balance the economic and ecological needs of a forest through a collaborative effort involving tribes, the BIA and local, state and federal agencies.

Tribes and federal government begin settling decades-long contract disputes

 

Norma Thomas, a resident of Owyhee on the Duck Valley Indian Reservation, talks with David Simons, a doctor at the Shoshone-Paiute Tribes Owyhee Community Health Facility in Nevada on Nov. 25, 2013. (Darin Oswald for The Washington Post)

Norma Thomas, a resident of Owyhee on the Duck Valley Indian Reservation, talks with David Simons, a doctor at the Shoshone-Paiute Tribes Owyhee Community Health Facility in Nevada on Nov. 25, 2013. (Darin Oswald for The Washington Post)

By Kimberly Kindy

The Washington Post May 1, 2014

After decades of underfunding hundreds of contracts with Native Americans, the federal government over the past several months has reached settlement agreements on 146 claims, totalling $275 million, government records show.

The settlements for health and social service contracts represent about 10 percent of all outstanding tribal claims with the federal Indian Health Service. The unpaid contract expenses were the subject of two U.S. Supreme Court rulings, the latest in June 2012, in which both IHS and the Bureau of Indian Affairs (BIA) were ordered to pay outstanding claims on the self-determination contracts.

The disputed contracts have their origins in the 1975 Indian Self-Determination Act, which gives tribes the option of receiving federal funding to run their own education, public safety and health-care programs. Those services — which were promised in perpetuity in tribal treaties — historically were delivered by the IHS and BIA.

The unpaid claims are for “contract support costs,” which include travel expenses, legal and accounting fees, insurance costs and workers’ compensation fees. Such costs typically account for between 10 to 20 percent of the value of a contract.

“The federal government has a trust responsibility to provide health care for this nation’s First Peoples and it’s about time it steps up to pay legal and contractual obligations to those tribes that choose to take over this responsibility through self-governance contracts and compacts,” Sen. Mark Begich (D-Alaska) said in a prepared statement.

Through letters and public hearings, Begich and several other members of Congress have pressured IHS and BIA to resolve past unpaid claims since the last Supreme Court ruling nearly two years ago.

IHS is working through thousands of disputed claims in more than 200 lawsuits filed by tribes, which are being individually negotiated. BIA is dealing with a single class-action lawsuit, which includes unpaid claims for hundreds of tribes, which has not yet been resolved.

The largest IHS settlement of $96 million went to Southcentral Foundation in Anchorage. The organization operates several health-care facilities, including a portion of the Alaska Native Medical Center, and serves more than 60,000 Alaska Natives and American Indians.

Llloyd Miller, an attorney in the Supreme Court cases, who is also representing 55 tribes in the settlement talks, said progress is being made, but at the current pace it would take IHS another three years to resolve all outstanding claims.

“It’s an enormous breakthrough because, over the past two years, little in the way of settlements have been achieved,” Miller said. “The challenge for the agency is to resolve the remaining 90 percent in a coherent time frame.”

In February, both agencies committed for the first time in decades to fully fund the self-determination contracts in their 2014 revised budgets. The revisions followed a Washington Post article in December that detailed the administration’s plans to impose spending caps on the contracts, despite two U.S. Supreme Court rulings ordering the government to fully compensate the tribes.

Federal contractors have carefully monitored the case because they worried that if federal agencies were able to not pay contract support costs for tribes, it could set a dangerous precedent for non-tribal service contracts with federal agencies.

In a friend-of-the-court brief to the Supreme Court in 2012, the U.S. Chamber of Commerce said: “The government’s position would have the effect of making contracts illusory by giving it a broad right to refuse payment at the stated price for services rendered.”