A Congressional Remedy for Oliphant?

A Congressional Remedy for Oliphant?

Thirty years ago the Supreme Court ruled in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) essentially that Native Nations had no jurisdiction over non-Indians who committed crimes on tribal land. Justice Rehnquist wrote the majority opinion which held that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This decision arguably left a jurisdictional gap that in many cases has not been adequately filled. Yesterday, the Senate Committee on Indian Affairs held hearings on a bill designed to give Native American courts and law enforcement broader authority to combat violent and sex-related crimes. Senator Byron Dorgan (D-ND) and 12 co-sponsors introduced the Tribal Law and Order Act on Wednesday. Joining Dorgan as co-sponsors to this legislation are Senators Murkowski, Biden, Domenici, Baucus, Bingaman, Lieberman, Kyl, Johnson, Smith, Cantwell, Thune, Tester.

If passed, the bill would give American Indian courts authority to impose stricter sentences, expand the courts' jurisdiction to cover more non-Indian suspects, and provide for additional law enforcement training and federal cooperation in addressing the crimes.In a prepared statement for the hearing, National American Indian Court Judges Association Vice President Roman Duran commented:

"Tribal courts agonize over the very same issues state and federal courts confront in the criminal context, such as, assault and battery, predatory crimes, hate crimes, child sexual abuse, alcohol and substance abuse, gang violence, violence against women, and now methamphetamine along with the social ills that are left in its wake. These courts, however, while striving to address these complex issues with far fewer financial resources than their federal and state counterparts must also 'strive to respond competently and creatively to federal and state pressures coming from the outside, and to cultural values and imperatives from within.' ... Judicial training that addresses the present imperatives posed by the public safety crisis in Indian Country, while also being culturally sensitive, is essential for tribal courts to be effective in deterring crime in their communities."

Jurisdictional Variation in American Indian Criminal Justice: An Argument for Stronger Understanding and Better Methods

Amnesty International Report: MAZE OF INJUSTICE - The failure to protect Indigenous women from sexual violence in the USA

Native Peoples Law Caucus Meeting in Portland

Hello NPLCers,
Don't forget to attend our annual meeting in Portland, Oregon. We will be meeting on Sunday, July 13, at 12noon - 1:15pm. We will be meeting in Room E143 at the OCC. Be sure to check out our table in the Exhibit Hall for a copy of this year's newsletter. See you all in Oregon!
Cheers,
Faye Hadley

Scary Dangerous Legislation

My question to these legislators is - "Where are the Native Americans supposed to go?" Um, I believe that they were here first. Granted, Natives have been determined (by the Supreme Court in Morton v. Mancari) to be a political group not a racial group, but I'm sure that the Native American Law Students Association would be banned along with the Black Law Students Association and the Hispanic Law Students Association and the Asian American Student Association. This is scary stuff! Where in the world do these idiots get their notions of American values?
Cheers,
Faye Hadley

April 18, 2008

Arizona Proposal Would Prohibit Race-Based Student Groups
http://chronicle.com/news/index.php?id=4338&utm_source=pm&utm_medium=en

An Arizona legislative committee has passed an amendment to a routine homeland-security bill that would prohibit students at the state's public universities and community colleges from organizing groups based on race.

The amendment was approved by the Arizona House Appropriations Committee on Wednesday. It still awaits a vote by the state's full House and Senate.

The amendment, introduced by State Rep. Russell K. Pearce, a Republican, would also allow state officials to withhold funds from public schools sponsoring activities that "denigrate American values and the teachings of Western civilization."

The proposal was added to Senate Bill 1108, a measure that has nothing to do with education but was intended to allow designees of mayors and police chiefs to serveon homeland-security advisory councils.

"This bill basically says, 'You're here. Adopt American values,'"State Rep. John Kavanagh, a Republican, told The Arizona Republic."'If you want a different culture, then fine, go back to that culture,'" he said.

—JJ Hermes

'Special master' may determine American Indian payouts

Mon April 7, 2008
'Special master' may determine American Indian payouts
By Chris Casteel
Washington Bureau

WASHINGTON — If a federal judge agrees that the government owes Indian trust account holders billions of dollars, he would then have to determine how the money should be allocated among nearly 300,000 people, their attorney said.

The American Indians suing the government over the way their accounts have been managed asked U.S. District Judge James Robertson to approve $58 billion in "relief" to the trust. According to the plaintiffs, the government benefited improperly by that amount over more than 100 years by not paying out all of the money collected for Indian trust account holders.

But the brief filed last month does not suggest how the money should be distributed. There are about 280,000 American Indians with government-run trust accounts. Most have land-based accounts; they own land and can collect money from leasing it for oil and gas drilling, grazing, mining or other uses.

There are an estimated 53,000 account holders in Oklahoma.

Dennis Gingold, one of the lead attorneys for the Indians in the case, which has been in federal court here for nearly 12 years, said last week, "The allocation issues are determined by the court, not by us."

Gingold said if Robertson decides the government owes money to trust account holders, he may then appoint an expert, or "special master," to make recommendations to him about distributing the money.

"Most courts don't want to be caught up in that kind of detail," Gingold said.

The Interior Department is expected to submit a response this week to the Indians' argument that the government should pay $58 billion in "equitable relief" to the trust account holders.

Complex trustAt a hearing in March, a government attorney argued to Robertson that the case should not involve any financial remedies because the suit filed in 1996 didn't seek damages. Robert E. Kirschman, a Justice Department attorney, said the plaintiffs sought reforms of the system and an accounting of their funds.

Robertson, the second district judge to preside over the case, ruled this year that an accurate accounting would be impossible.

The trust account system was set up in the late 19th century when millions of acres — estimates range from 40 million to 54 million — were allotted in parcels to individual Indians and the government promised to manage the land. Counting land owned by tribes, it is the biggest trust in the United States.

Gingold called it "the most complex trust in the United States" since it involves so many people and so many activities — such as oil and gas drilling — and said it's being run by people with no expertise in trust management.

Two U.S. district judges and the U.S. Court of Appeals here have ruled that the government failed to properly manage the trust.

Since ruling that an accounting was impossible, Robertson, anxious to resolve the controversial and highly contentious case in the next few months, has been looking for a remedy.

Gingold said last week, "Where an accounting is impossible, you're looking at real rough justice."

The government's own figures, he said, show that an average of 65 percent of the money collected for the Indians has been paid out. While holding on to the rest — more than $3 billion — the government has been able to lower its borrowing costs to finance its debt. Spread out over more than 100 years, that has allowed the government to benefit to the tune of $58 billion, the Indians say.

Gingold said he expected the government to argue that Robertson can't award damages against the federal government. But he said the Indians aren't asking for damages.

"We're seeking the benefit the government gained as a result of its breach of trust," Gingold said. "You're not allowed to benefit from your improper accounting."

The Indians are also asking that Robertson return all the land originally in the trust unless the government could prove it was sold at fair market value. Of the original acreage — much of which was in what is now Oklahoma — only about 10 million acres remain.

Gingold said he expects the judge to say that it wasn't practical to try to return land sold to third parties. But he said the judge could look at land that was owned by Indians that is now being used by the government.

Robertson has scheduled a trial for early June on the proposals for resolving the case.

Navajo Nation likely to lose Internet service

Navajo Nation likely to lose Internet service

Confusion over billing, bid process means tribe's Internet provider not getting paid
Provider OnSat says it's already $4 million in the hole, so it's going to stop service
U.S. agency that administers service wants tribe to show it chose best provider
Many Navajos use tribe's Wi-Fi signal for work, education, officials say

ALBUQUERQUE, New Mexico (AP) -- The thousands of Navajo Nation residents who rely on the Internet to work, study and communicate across their 27,000-square-mile reservation will be out of luck Monday, if their service provider shuts access as planned.

Residents of the Navajo Nation are likely to be without Internet service starting Monday.

"It's going to be a sad day," said Ernest Franklin, director of the tribe's Telecommunications Regulatory Commission.

A tribal audit last year revealed that Utah-based provider OnSat Network Communications Inc. may have double-billed the tribe, and it raised questions about how the tribe requested bids for the Internet contract.

Those discoveries led the Universal Service Administration Co., which administers the service under the Federal Communications Commission's E-rate program, to tell the tribe March 28 that it would withhold $2.1 million from OnSat.

Jim Fitting, an attorney for OnSat, said the delay in payment means it can't pay subcontractor SES Americom for satellite time.

"With USAC taking this particular position, it doesn't look like we're going to get paid in the foreseeable future," Fitting said. "We're already $4 million in the hole, so why should we continue doing it?"

Most evenings, when residents get off work, the reservation's chapter houses are closed, but their wireless signals remain live. So it's common to see residents with laptops sitting outside the chapter houses in cars, working away, a local official said.

Through the Washington, D.C.-based USAC, the FCC reimburses 85 percent to 90 percent of the costs for Internet service to 70 of the tribe's 110 chapter houses, which operate like city governments. The Navajo Nation covers the other 10 percent to 15 percent of the cost and offers service inside the chapter house and nearby through Wi-Fi.

The USAC told Navajo President Joe Shirley Jr. in a March 28 letter that it is withholding money for OnSat for 2006-07 because of the possible overbilling and because the tribe didn't comply with federal rules that require it to select the most cost-effective service or equipment through a fair, open and competitive bidding process.

The USAC asked the tribe to prove OnSat provided the service it is billing for and has not overbilled.

OnSat won a preliminary injunction last July in Window Rock District Court barring the tribe's auditor from further disseminating the audit, said Fitting, the OnSat lawyer.

"We don't believe this audit is valid," Fitting said.

The Navajo Nation has until May to respond to USAC's letter, and the USAC can release full or partial funding or continue to withhold funding, said spokeswoman Laura Betancourt.
Tribal regulator Franklin said he has given the USAC documents detailing how OnSat was selected and has shown USAC personnel the service operating last year at sites they randomly selected.

"We proved that we are delivering the bandwidth and that we went through the proper procurement system," he said. "We had to dig up all these documents."

OnSat will continue to provide Internet services for the tribe's Division of Public Safety and the Office of the President and Vice President, offices whose satellite service isn't dependent on FCC funding, Fitting said.

Each Navajo chapter received a grant for computers and Internet access from the Bill and Melinda Gates Foundation's Native American Access to Technology Program in 2000. But it wasn't possible to establish dial-up access -- or create a wireless grid -- because the reservation largely lacked wired telephone service.

So the tribe's Division of Community Development contracted with OnSat in 2001 to provide satellite Internet service to the chapter houses -- even though satellite Internet technology is costly, slow and unreliable.

The tribe eventually would have stopped using OnSat, Franklin said, but it needed to sustain the satellite connections for at least two years until a wireless grid is completed on the reservation.
"It's not like it's not being used and it's just going to go away," he said. "It's used tremendously by the public. It's just sad that this has to happen."

Navajo President Shirley said reservation residents have come to rely on Internet access to improve their professional and educational lives.

"It would be a very sad day for the children and people of the Navajo Nation if the dark clouds descend, the lights go out, and access is denied to the chapter houses on the reservation, in large part, because USAC has failed to timely fund our application," Shirley said in a December letter to Mel Blackwell, vice president of USAC's Schools and Libraries Division.

Inscription Chapter House community services coordinator Victoria Bydone said she is bracing for a backlash from residents who typically park outside her chapter house in the evening.

"It's going to be unfortunate," she said. "It's not going to be very good."

Australia Apologizes to Aborigines

Australia apologizes for Aborigines' pain

NEW: PM Kevin Rudd apologizes to thousands of Aborigines
NEW: Rudd: "For the indignity and degradation on a proud people we say sorry"
NEW: Apology included plans to improve education, healthcare for Aborgine children
"I hope this will be a new start -- a new way," says Mike Williams, an Aborigine

SYDNEY, Australia (CNN) -- The Australian government apologized Wednesday for years of "mistreatment" that inflicted "profound grief, suffering and loss" on the country's Aboriginal people.

New Prime Minister Kevin Rudd read the apology Wednesday to Aborigines and the "Stolen Generations" of children who were taken from their families.

"To the mothers and fathers, to the brothers and sisters we say sorry. And for the indignity and degradation on a proud people and a proud culture we say sorry."

For 60 years, until 1970, the Australian government took mixed-race Aboriginal children from their families and put them in dormitories or industrial schools, claiming it was protecting them.

As a result of the policy, "stolen" children lost contact with their families and heritage, received poor education, lived in harsh conditions, and often endured abuse.

"There is nothing I can say today that will take away the pain... Words are not that powerful," Rudd said in the Australian Parliament. Watch Rudd apologize »

He said that the apology was the start of a new approach towards Aborigines which included helping them find their lost families, closing pay gaps and a 17-year difference in life expectancy between Aborigines and white Australians.

He said new policies would be introduced to provide better healthcare and education to Aborigines.

"The mood of the nation is for reconciliation now," Rudd said.

The policy was largely a secret until a decade ago, when a government inquiry and high-profile movie exposed it. That sparked a mass movement, supported by many white Australians, demanding an apology.

Former Prime Minister John Howard refused to offer an apology, saying the current generation should not be held accountable for past misdeeds. He instead issued a statement of regret.

Rudd, who defeated Howard last November, made an apology part of his election campaign. Howard's successor as leader of the Liberal Party, Brendan Nelson, supported the apology Wednesday.

"The apology ... is ... very much just the first step," said a spokeswoman for Jenny Macklin, the minister for Families, Housing, Community Services and Indigenous Affairs.

"We have serious inequalities between indigenous and nonindigenous Australians. The apology is symbolic, but there's a lot of hard work to be done to reverse those inequalities."

Mary Farrell-Hooker counts herself among the Stolen Generations and is now a spokeswoman for an Aboriginal activist group. The Stolen Generation became Australia's controversy

She is of mixed race and was one of 12 children of alcoholic parents. Her father was in jail for raping her sister when her mother was hospitalized after a suicide attempt.

"The police came to the school and told me they were taking me to the hospital to see my mom," Farrell-Hooker told CNN. "We never went to the hospital."

Instead, Mary, then 12, was taken to a series of foster centers. At one of them, she said, she was repeatedly raped by a white "house father."

"He would actually come into the room and force himself onto me, rape me, molest me," she said.
"If I didn't do what he wanted, he would threaten to do the same to my sister and (threaten to) split us up."

Her parents came to find her, she said, but were repeatedly turned away. She tried to run away but said the police always returned her to her tormentor.

Aboriginal people have been waiting decades for an apology, and the Australian public appear to welcome the government's move, according to CNN's Jacqueline Head in Sydney.

Head said many Australians believe saying sorry is long overdue, but some doubts remain over what it will achieve in the long term -- whether it will help open doors for Aboriginal people seeking rights and compensation or whether it will fail to secure indigenous people a better future.

Some white Australians don't believe the apology will bring about reconciliation.

"I think Australians will be sorry for many generations for offering this apology now," said Piers Akerman, a conservative commentator.

He said Aboriginal compensation claims will now gain new vigor.

To symbolize what the government hopes will be a fresh approach to the future, a group of indigenous Australians performed a traditional welcome ceremony Tuesday of dancing and singing to mark the start of parliament's new session. As the traditional owners of the land which parliament sits on, the performers "welcomed" the lawmakers onto it.

"For thousands of years, our peoples have observed this protocol," said Matilda House, an Aboriginal elder at the ceremony. "It is a good and honest and decent and very human act to reach out to make sure everyone has a place and is welcome."

CNN's Jacqueline Head and Hugh Riminton contributed to this report

All About Kevin Rudd • John Howard

Full text of Australia's apology to Aborigines

Bush Seeks Cuts in Vital Indian Programs

Bush Seeks to Cut Vital Indian Programs
By Kevin Abourezk

You couldn't hardly have scripted a more insulting response to last week's State of Indian Nations Address.

On Monday, President George W. Bush presented his budget for fiscal year 2009, which begins Oct. 1. In the final budget of his presidency, Bush proposed serious cuts in federal spending to many programs vital to Indian Country.

In his annual address last Thursday, President Joe Garcia of the National Congress of American Indians spoke about the need for economic development, health care reform, public safety funds and education reform for Indian Country.

"Through the eyes of a child, we see too much hurt, and regret, and loss," he said. "But through our own eyes, we can see opportunity, find answers and make lives better."

So it came as a slap in the face when Bush's budget Monday proposed cuts to many Indian programs, including:

• The Bureau of Indian Affairs education construction fund, which would be slashed by $177 million less than Congress appropriated for it this year, if Bush has his way. His budget sets aside just $140 million for that fund.

• The Indian Health Service's Urban Indian Health Program, which serves Indians in South Dakota communities like Sioux Falls and Pierre, would not be funded, and likely be eliminated, under Bush's proposed budget. Congress set aside $35 million for the program this fiscal year.

• The Indian Health Facilities fund, which would see a $22 million decrease under Bush's proposed budget and receive just $362 million for the next fiscal year. That account supports construction, repair and improvement of Indian Health Services facilities.

• Three Department of Justice programs that service Indian Country, which would be zeroed out under Bush's plan. Those programs provide for incarceration on tribal lands, tribal courts and grants for tribes. Congress provided $33 million for the programs for the current fiscal year.

• Two U.S. Department of Education programs that provide financial support to tribal colleges, universities and technical institutes would see none of the more than $30 million that Congress appropriated to them this fiscal year under Bush's budget.

• The Native American Housing Block Grants program, which Congress funded for $681 million this fiscal year, would see $54 million less under the president's budget.

Sen. Tim Johnson, D-S.D., sounded the alarm Monday about Bush's proposed cuts to Indian programs.

"The President's budget ... ignores the treaty and trust responsibility of the federal government," the senator said in a news release. "I will use my seat on the powerful Senate Appropriations Committee to work to restore these programs this year."

While Bush has never been considered a friend to Indian Country, it's difficult to recall a time when the president has so blatantly shown his disdain for Native people as he has in recent weeks.

Coupled with his threatened veto of the Indian Health Care Improvement Act last month, Bush's proposed budget cuts can be seen as nothing less than evidence of an Indian fighter displaying his true nature.

There was one project familiar to Indian people for which Bush proposed increased funding.
Under his budget, the Yucca Mountain nuclear waste dump in Nevada would see an additional $108 million in funding for the next fiscal year. Long opposed by tribes, the dump's elevated status in the Bush budget plan further demonstrates the president's lack of sensitivity to tribal concerns.

On the bright side, the president's budget is likely to see drastic changes before both Democratic-controlled Houses of Congress pass it.

And senators and congressional leaders friendly to Indians, like Johnson, already have vowed to seek fewer cuts to much needed social programs.

Kevin Abourezk, Oglala Lakota, is a reporter and editor at the Lincoln (Neb.) Journal Star. He is a reznet assignment editor and teaches reporting at the Freedom Forum's American Indian Journalism Institute.

Please, if you live in a state that is having a primary election today - go out and vote!!!

Important Victory in Cobell Litigation

Judge calls Cobell historical accounting 'impossible'

Yesterday, Judge James Robertson ruled that a government accounting is impossible after hearing arguments in a ten day trial last next October. After 11 years of litigation in the courts and debate in Congress, Judge Robertson on Wednesday declared a historical accounting of the Indian trust "impossible." Robertson took over the case after Judge Royce Lamberth was removed by the U.S. Court of Appeals for the District of Columbia Circuit in July 2006, which said he had lost his objectivity.

The government had asked that Lamberth be replaced after the Judge Lamberth lambasted the Interior Department, writing in a decision that labelled the Department of Interior "is a dinosaur _ the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago."

In his decision, Robertson detailed the extensive background of the case, saying that it would "stretch the limits of understatement" to say the case's history has been exhaustively chronicled in district court. He noted there are 3,504 entries on the case's docket and 10 circuit judges have been engaged in the case. His opinion will have the shorthand of "Cobell XX," he noted.

In a 165-page decision, Judge James Robertson said the Interior Department is "unable to perform an adequate accounting" of the Individual Indian Money (IIM) trust. The government "has not" and "cannot" cure its breach of trust to hundreds of thousands of Indian beneficiaries who have never been told how much money they are owed for the use of their land, he wrote."

Indeed, it is now clear that completion of the required accounting is an impossible task," said Robertson, who describe the breach of trust as "irreparable."

The upshot of this historic decision is to finally establish a powerful place from which Native plaintiffs may negotiate with the federal government who has been one of the most egregious foot-dragging defendents in the history of all litigation. The Cobell Lawsuit (AKA the Trust Fund Litigation) is a class action lawsuit filed in 1996 by Elouise Cobell on behalf of herself and thousands of other similarly situated Natives across America which asked that the federal government account for all outstanding Individual Indian Money funds that have been "held in trust" or otherwise (mis)managed under the guise of the "Trust Responsibility" established through treaties and other agreements with Indian people.

"This is a great day in Indian Country," Cobell said yesterday. "We've argued for over ten years that the government is unable to fulfill its duty to render an adequate historical accounting, much less redress the historical wrongs heaped upon the individual Indian trust beneficiaries."

"Instead of truthfully seeking to remedy the government's admitted historical mismanagement, the government elected to fight plaintiffs every step of the way," she said. "Judge Robertson has settled the debate in favor of plaintiffs and found that an adequate historical accounting is, in fact, impossible."

The government proposed paying $7 billion partly to settle the Cobell lawsuit in March 2007, but that was rejected by the plaintiffs, who estimate the government's liability could exceed $100 billion. The Interior Department estimates that it has spent $127 million on its accounting in the past five years.

Sen. Byron Dorgan, D-N.D., chairman of the Senate Indian Affairs Committee, said Wednesday that he hopes the judge's decision is a catalyst for a settlement."Ultimately the question is going to be for the administration and the Justice Department, are they willing to settle for all of these years of mismanagement," he said.

Judge Hits Gov't on Indian Money Delay (Washington Post, January 30, 2008)

For complete access to all of the documents filed in over eleven years of litigation, please visit: Indian Trust: Cobell v. Kempthorne

Pioneer Editorial: Judge gives the Dickens to Interior (Bemidji Pioneer, January 31, 2008)

New Oglala Sioux Nation Web Site Goes Online

Hello NPLCers,
Here's a new web site that is definitely worth a look: www.oglala-sioux-tribe.org. Check it out and congratulations to the Oglala Sioux Nation for posting this excellent resource.
Cheers,
Faye Hadley