indian law winter 07-v2
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A Word From
THE CHAIR
By D. Michael McBride III
New Energized Committees! Look for exciting changes inthe FBAs Indian Law Section. With new bylaws approved pro-
viding for eight substantive com-mittees last summer, this sectionis energized for important workand contributions to the field offederal Indian law and policy.Inside this issue, you can learnthe newly appointed and electedofficers and committee chairs. Ifyou have interest in participatingin any of our substantive work, Iwould strongly encourage you tocontact the committee chairs.We are very fortunate to havesome of the leading people in thefield of federal Indian lawinvolved in leading the sectionscommittees and conferences.
The Committee on the Development of Federal IndianLaw, chaired by Professor Kevin Gover, is an importantthink tank committee that monitors critical developmentsin Indian law. That committee will research reported casesinvolving issues of federal Indian law, recommend and draftpositions that could be taken as amicus in federal appellatecourts, including United States Supreme Court. Kevin is theformer assistant secretary for Indian Affairs, Department of
Interior and teaches at the Sandra Day OConnor College ofLaw, Arizona State University.
Denette Dennie Mouser is the chair of the Committeeon Public Education. Dennie is chief justice of the Muscogee(Creek) Nation Supreme Court, a board member of the National Judicial College and a lawyer for Wal-Mart. Thiscommittee is responsible for drafting and recommendingstatements to be made in the name of the section, which willaddress public misperceptions of federal Indian law and otherissues involving American Indians and Alaska Natives. Thecommittee will also work with the editorial board of TheFederal Lawyer to assure regular submissions of articles on fed-
eral Indian law to The Federal Lawyer.The Committee on Tribal Justice, chaired by Professor
Frank Pommersheim, will coordinate with other legal associa-tions including the National Native American Bar Associationto develop programs that will aid in the improvement of tribaljustice systems and/or tribal state and federal relations. Frank isa professor of law at the University of South Dakota and aJustice of the Mississippi Choctaw Supreme Court.
The Committee on Legislation, chaired by ElizabethHomer, will monitor legislation concerning AmericanIndians and draft and recommend positions that may be takenin the name of the section or propose to be taken in the nameof the association as testimony in either written or oral form.Elizabeth is a former commissioner of the National IndianGaming Commission and a former federal prosecutor.
The Committee on Indian Law and State Bar Examschaired by Professor Gloria Valencia-Weber, is an action com-mittee that will share information and coordinate effortsamong Indian law leaders within the many states to encouragestate bar exam authorities to include aspects of Indian law inthose jurisdictions containing Indian country. Professor Weberis working on a law review article currently addressing theseissues. To date, I understand that Washington, New Mexico,and South Dakota have agreed to include Indian law on the barexam. I am also informed that Oklahoma included one aspectof a question on the July 2006 bar exam relative to Indian law.
We all owe a debt of gratitude to Gabe Galanda, a lawyerand bar leader from Seattle, Wash. Gabe has championed thecause of getting Indian law on the bar exam first in
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FEDERAL INDIAN LAWNewsletter of the Federal Bar Association
Indian Law Section
Winter 2007 Issue
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INSIDE THIS ISSUE
Indian Law Cases, News, and Notes ......................page 2Supreme Court UpdateOklahoma UpdateMidwest Region UpdateRocky Mountain Region UpdatePacific Northwest Region UpdateSouthwest Region UpdateInside the Beltway
Paternalism Provokes DebateControversy SurroundsApproval Requirement ..........................................page 7
continued on page 6
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INDIAN LAW CASES,
NEWS, AND NOTES
Supreme Court UpdateTo date, the Supreme Court has
decided one Indian law-related case dur-
ing the 2006-2007 term. The Courtdecided BP America v. Burton, et al. onDec. 11, 2006. The Supreme Courtaddressed whether the limitations peri-od expressed in 28 U.S.C. 2415(a),the time for commencing actionsbrought by the United States, applies tofederal agency orders requiring paymentof money under a lease. The District ofColumbia Court of Appeals determinedthat the Department of Interior had rea-sonably interpreted the Mineral LeasingAct, which was at issue, that the result
was not an action for money damagesrequiring the filing of a complaint, and,therefore, 28 U.S.C. 2415(a) did notapply. The Supreme Court agreed withthe lower courts, finding that paymentorders issues by the department assessingroyalty underpayments on oil and gasleases were not covered until 28 U.S.C. 2415(a).
Additionally, the Court granted apetition for certiorari in an Indian-lawrelated case, Zuni Public School District,et al. v. Dept of Education. In Zuni PublicSchool District, et al. v. Dept ofEducation, the Court granted the peti-tion for certiorari from the TenthCircuit Court of Appeals to decide twoissues. First, the Court will determine ifthe case presents a situation where theCourt should exercise supervisory juris-diction correcting errors affecting feder-ally-connected children in all stateschool districts. Second, the Court willconsider whether the Secretary ofEducation has the authority to impose
his equalization formula over onedeveloped by Congress, with the effectof diverting impact aid subsidies to NewMexico. The Tenth Circuit Court ofAppeals upheld the Secretary ofEducations imposition of the equaliza-tion formula in New Mexico.
Furthermore, petitions for certio-rari have been filed and are pending infive Indian law-related cases: Murphy v.Oklahoma, San Carlos Apache Tribe v.
Arizona, Phelps Dodge Corp. v. San
Carlos Apache Tribe, Burrell v. Armijoand New Mexico v. Del E. Romero. OnMay 3, 2006, petition for writ of certiorari was filed in Murphy v. Oklahomafrom the Oklahoma Court of CriminaAppeals. The case involves a murderthat occurred on a road allotted to anIndian and involves criminal jurisdic-
tional issues.On Aug. 1, 2006, petition for cer-
tiorari was filed in San Carlos ApacheTribe v. Arizona. San Carlos ApacheTribe raises two primary issues. First, theSupreme Court is asked to decidewhether the Arizona Supreme Courterred when it affirmed the trial courtsdecision on res judicata groundsSecond, the Court was asked to consid-er whether the due process and equaprotection clauses of the Fifth andFourteenth Amendments violated by
applying an affirmative defense of resjudicata to preclude the United Statesas trustee of the tribe, and the tribefrom adjudicating reserved aboriginaand other water rights in state courtunder the McCarran Amendment.
On Sept. 5, 2006, petition for certiorari was filed in Phelps Dodge Corp. vSan Carlos Apache Tribe. Phelps DodgeCorp. involves water rights associatedwith the San Carlos Indian IrrigationProject. The Supreme Court has beenasked to decide whether the ArizonaSupreme Court erred when it foundthat claim preclusion did not bar theSan Carlos Apache Tribe from seekingadditional water rights to the GilaRivers tributaries. Below the SupremeCourt of Arizona found the San CarlosApache Tribes claims under an inter-locutory appeal from an order issued inthe Gila River general stream adjudication were precluded.
On Nov. 21, 2006, petition for certiorari was filed in Burrell v. Armijo. In
Burrell, the Court is asked to address asuit brought by farm lessees who suedan Indian tribe and tribal officialsalleging violations of civil rights and abreach of the farm lease. Below, theTenth Circuit held that the tribe didnot waive tribal court jurisdiction overthe lease dispute. Also, the court foundthat the tribal court ruling did not havepreclusive effect until the lessees had afull and fair opportunity to litigate theirclaims in tribal court. The tribe did not
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Elizabeth Ann KronkEDITOR IN CHIEF
University of Montana Law SchoolMissoula, Mont.
Michelle CarrCONTRIBUTING EDITOR
General Counsel, Aqua Caliente Tribe
Kimberlee DunlopCONTRIBUTING EDITOR
Associate, Holland & Knight [email protected]
Casey Ross-PetherickCONTRIBUTING EDITOR
Native American Legal Resources CenterOklahoma City University School of Law
Colette RoutelCONTRIBUTING EDITOR
Faegre & Benson LLP
Brian McClatcheyCONTRIBUTING EDITOR
Workland & Witherspoon [email protected]
Marren SandersCONTRIBUTING EDITOR
University of [email protected]
Federal Indian Law is published by theFederal Bar Association Indian LawSection. 2007 The Federal Bar
Association. All rights reserved. The opin-ions expressed herein are solely those ofthe authors unless otherwise specified.Karla Smith, Managing Editor.
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waive its sovereign immunity and thetribal officials had no liability under 1983. Finally, the breach of lease claimwas barred by failure to seek review of afederal administrative determinationthat lessees breached the lease.
Finally, on Nov. 28, 2006, petitionfor certiorari was filed inNew Mexico v.
Del E. Romero. In New Mexico, theCourt is asked to review the NewMexico Supreme Courts ruling thatthe state lacked jurisdiction to prose-cute Indian defendants when thecrimes were committed within theboundaries of pueblos and that con-veyance of land in Indian Country tonon-Indians did not extinguish the sta-tus of the land as Indian Country.
Oklahoma UpdateIn this Novembers election, seven
American Indian candidates won seatsin the Oklahoma Legislature, bringingthe total number of American Indiansup to 21 or 14 percent of the OklahomaLegislature.1 These new members-electwill join the 14 American Indian offi-cials already serving in the 149 memberOklahoma Legislature.
Furthermore, in November, TomCole, Republican Congressman fromthe 4th District of Oklahoma, won re-election to the U.S. House ofRepresentatives. Cole, who is the onlyAmerican Indian member of the U.S.Congress, won by a 65 percent marginagainst his Democratic opponent HalSpake. On November 17, CongressmanCole was elected as chairman of the National Republican CongressionalCommittee, making him the fourthhighest ranking member of Republicanleadership. Cole has served theRepublican party in many positions,including as chief of staff of theRepublican National Committee, and
as executive director of the NationalRepublican Congressional Committee.
Midwest Region UpdateOn Oct. 19, 2006, the Minnesota
Supreme Court issued a decision in Inre Welfare of T.T.B. and G.W., ___N.W.2d __, 2006 WL 2975290 (Minn.2006). In T.T.B., mother, father and theYankton Sioux Tribe moved to transferstate court child protection proceedingsto Tribal Court, pursuant to the Indian
Child Welfare Act. The district courtdenied the parents and Tribes unop-posed motions, claiming that goodcause existed to refuse transfer becausethe case was at an advanced stage. TheMinnesota Court of Appeals reversed,but the Minnesota Supreme Courtagreed with the district court. The
Court noted that the BIAs Guidelinesfor State Courts in Indian ChildCustody Proceedings agreed that arequest to transfer jurisdiction shall bemade promptly after receiving notice ofthe proceeding,and here, althoughthe case had com-menced on Dec.31, 2003, the par-ents had not peti-tioned for transferuntil July 2004.
Rocky MountainRegion Update
In In re Peopleex rel. S.R.M., ___P.3d ___, 2006 WL3437650 (Colo.App. 2006), the Citizen PotawatomiNation appealed a judgment terminat-ing rights to a child to the ColoradoCourt of Appeals. The CitizenPotawatomi Nation seeks to overturnthe judgment because there was notproper notice to the tribe, as requiredby the Indian Child Welfare Act.
Pacific Northwest Region UpdateSeveral cases with Indian law
implications were decided in the dis-trict courts. InAdams v. Tunmore, 2006U.S. Dist. LEXIS 64289 (E.D. Wash.2006), the court found that an employ-ee of the Pascal Sherman IndianSchool on the Colville Reservation, atribally-controlled school operating
under a BIA grant, was an employee ofthe federal government for purposes ofthe FTCA and acting within the scopeof her employment when driving a bus.The reasoning for this holding was thatit is the performance of functions underthe grant, not the source of the employ-ees compensation, which determineswhether someone is a federal employeefor purposes of the FTCA. The employ-ee was also acting within the scope ofher employment by performing actions,
under Washington law, for the benefitof her employer.
In United States v. Mahoney, 2006U.S. Dist. LEXIS 66382 (E.D. Wash2006), a challenge arguing that theContraband Cigarette Trafficking Act18 U.S.C. 371, 2342(a) (CCTA),was unconstitutionally vague as applied
to Indians under Washington law wasrejected. Nearly all challenges to thisstatute were disposed of by the courtscontinued reliance on United States v.Baker, 63 F.3d 1478, 1492-93 (9th Cir.
1995). The argument that theSupremacy Clause of the UnitedStates Constitution preempts the
Washington cigarette taxstatutes was foreclosed by
Baker. Also, the court reliedupon Bakers holding that
the CCTA was a law of
general applicabilitypresumed to apply
with equalforce toIndians, avariation onthe so-called
Tuscarora rule. Baker was also used toforeclose the argument that the CCTAinfringes on an express treaty right totrade. Finally, against the challenge tothe CCTA was based on the treatyright to travel, as defined in Cree v.Flores, 157 F.3d 762 (9th Cir. 1998), thecourt disposed of the argument by not-ing that an indictment for possessingand delivering unstamped cigarettes didnot implicate the treaty-protected rightto travel without restriction.
Shoshone-Bannock Tribes of the FortHall Reservation v. United States, 2006U.S. Dist. LEXIS 75496 (D. Idaho2006) concerned the issue of whetherthe United States explicitly consentedto suit. The plaintiffs made their claim
with reference to 25 U.S.C. 403 (pro-viding for short-term leasing of Indianallotments and requiring proceeds ofleased land to go to the allottee) and 25C.F.R. Part 162 (providing regulationsregarding the terms and conditionsunder which such lands may be leased),as creating a specific duty on the part ofthe government. The governmentargued, however, that neither provisioncreates a money-mandating duty tomake the distribution of lease income
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within a prescribed time, which is thepremise of plaintiffs breach of trustclaim.
In reaching its decision, the courtrelied on United States v. Mitchell, 445U.S. 535, (1980) (Mitchell I), and UnitedStates v. Mitchell, 463 U.S. 206 (1983)(Mitchell II), for the proposition that, in
order for a fiduciary duty to be enforce-able through an action for money dam-ages, the relevant statutes and regula-tions must unambiguously provide thatthe United States has undertaken fullfiduciary responsibilities as to the partic-ular aspect of the relationship com-plained of. Wright v. United States, 32Fed.Cl. 54, 56 (1994) (internal quota-tions and citations omitted).Additionally, the plaintiffs claim forbreach of the trust responsibility basedon the claim that the federal govern-
ment failed to pay them their lease pro-ceeds in a timely manner pursuant to 25C.F.R. 162.108 (which requires thegovernment to promptly initiate appro-priate collection and enforcementactions) was rejected because that provi-sion does not place on the governmentthe duty to pay lease proceeds to allot-tees within a prescribed time.
Moreover, state court cases recentlydecided in the Pacific Northwest Regionalso relate to Indian law topics. A mem-orandum of understanding (MOU)between a county and a tribe in
Alexanderson v. Board of Clark CountyCommners., 144 P.3d 1219 (Ct. App.Wash. 2006) was held to be a de factoamendment to the countys comprehen-sive plan, thereby granting the countysland use board jurisdiction to hear apetition opposing the MOU. The tribesought the transfer of over 150 acres ofland into trust status, after which, thetribe and the county entered into aMOU, which was intended to mitigate
the impacts of proposed tribal develop-ment. Because the land would be held intrust for the benefit of the tribe, andwould therefore be exempt from stateregulation under the doctrine of tribalsovereign immunity, the MOU was thecountys attempt to impose some stateregulations on the tribal development.
In Wright v. Colville Tribal Enters.Corp., __ Wn.2d ___ (2006), theWashington Supreme Court held that a
corporation owned by the ColvilleTribes that engaged in commercialactivities off reservation was entitled tosovereign immunity. The corporationin question was chartered under thegovernmental corporation provision inthe tribal code, and was later sued by aformer employee. The supreme court
followed U.S. Supreme Court prece-dent, such as Kiowa Tribe v.Manufacturing Techs., 523 U.S. 751, 754(1998), Santa Clara Pueblo v. Martinez,436 U.S. 49, 59 (1978), and Okla. TaxCommn v. Citizen Band PotawatomiIndian Tribe, 498 U.S. 505, 509 (1991),in finding that sovereign immunityapplied. The court concluded thatthere are only two ways in which tribalsovereign immunity can be divested: byexpress congressional statement or byexpress tribal waiver. Finding that nei-
ther of these existed, the WashingtonSupreme Court held that the tribalenterprises as well as its supervisory per-sonnel (acting within the scope of hisemployment) were immune from suit.
Southwest Region UpdateOn Sept. 14, 2006 Arizona
Governor Janet Napolitano signedExecutive Order 2006-14 Consultationand Cooperation with Arizona Tribes.Recognizing the right of the tribal gov-ernments to exercise sovereign authorityover their members and their territoryand the benefits continuing govern-ment-to-government relationships bet-ween the State of Arizona and ArizonaTribes, the order directs all ExecutiveBranch agencies to develop and imple-ment tribal consultation policies and, tothe best of their ability, integrate theinput generated from tribal consultationinto their decision-making processes toachieve mutually acceptable solutions.
In United States. v. Tawahongva,
___ F. Supp. 2d __, 2006 WL 2619174(D. Ariz. 2006) the defendant, BerraTawahongva, was an enrolled memberof the Hopi, a federally-recognizedAmerican Indian tribe, and was eligibleto receive a permit to collect goldeneagles as part of his religious duties asan elder in the One-Horn kiva ofMishongnovi. Although Tawahongvadid not have a permit to collect goldeneagles, he testified that he believed his
permission to take eagles was conferredby his acting in accordance with thetenets of his religious faith, i.e., thatproperly preparing feathers and prayerobjects prior to taking the eagles, as hewas taught by his uncles, should be theonly permit required to take theeagles. Tawahongva also contended
that the Religious Freedom RestorationAct of 1993 (RFRA) barred his prose-cution for violation of the MigratoryBird Treaty Act (MBTA) because thegovernment had not established a com-pelling interest in protection of thegolden eagle. He asserted that the fed-eral permitting requirement was unnec-essary because the Hopi taking of gold-en eagles had never endangered thespecies existence and that any govern-ment interest in protecting the goldeneagle was outweighed by the right of
individual Hopi people to observetheir ancient religious practices.
The court found that Tawahongvadid not have standing to raise the argu-ment that the MBTA permit system wasunconstitutional, as managed by theHopi tribal government and as it hadbeen applied to him, because he did notapply for a permit to possess the birdsand had not shown that the permittingsystem or the MBTA was facially unconstitutional. Additionally, Tawahongvasprosecution did not violate his FirstAmendment right to the free exercise ohis religion because, although slightlyburdened, his interest was not substan-tially burdened by the requirement thathe acquire a permit from the Hopi tribethe governments interest in protectinggolden eagles was compelling, and thepermit requirement was the least restrictive means of preserving eagle popula-tions, particularly in light of evidencethat the current Hopi tribal governmenhad not denied anyone a permit to take
golden eagles.In Fallon Paiute-Shoshone Tribe vUnited States Bureau of LandManagement, ___ F. Supp. 2d ___, 2006WL 2934094 (D. Nev. 2006), the tribechallenged the BLMs decision not torepatriate pursuant to NAGPRAancient human remains known as theSpirit Cave Man found in a cave adjacent to tribal land. The BLM arguedthat the controversy was not ripe for
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review because its finding of non-affili-ation was not final. The tribe arguedthat the BLM had failed its duty to con-sult under NAGPRA because they didnot consult in any manner after thetribe retained experts to present theiropinions on the affiliation issue. Thetribe also contended that the BLM did
not observe the procedures required by NAGPRA by failing to properlyengage in the proceedings of, and con-sider the recommendations made by,the Review Committee. Finally, thetribe attacked the BLMs determina-tion that the Spirit Cave Man remainswere not affiliated to any present day Native American tribe claiming thatdecision was arbitrary and capricious.
The rejected the BLMs argumentthat the matter was not ripe for reviewbecause there was not final agency
action. Because all of the relevant evi-dence had already been submitted, thecourt stated that the BLM had made afinal determination. Additionally, thecourt concluded that, under the facts ofthe case, the BLM had complied withthe minimum participation require-ments NAGPRA imposed on partieswhen dealing with the Review Com-mittee. While it was not disputed thatthe BLM failed to attend the ReviewCommittee hearing in which the tribepresented its evidence for affiliation,there was nothing in the statutes or reg-ulations involved that mandated actualphysical presence at the hearing. Thecourt also found no error in the BLMsfailure to reconsider its decision purelyon the basis of an adverse ruling by theReview Committee. The Review Com-mittee was an advisory board and noth-ing in the statutes or regulations com-pelled a government agency to follow itsdirectives. The court noted that thisfinding did not mean that the Review
Committee findings carried no weight orwere insignificant in the overall schemeof NAGPRA, however, the value of theReview Committees findings did notcreate an independent duty for govern-ment agencies to review or amend theirfindings merely because the ReviewCommittee disagreed with them.
Finally, quoting Bonnichsen I thatthe failure of an agency to gather or toconsider relevant evidence may result
in the decision being set aside and thatin considering the relevant evidence anagency must articulate a satisfactoryexplanation of its action including arational connection between the factsfound and the choice made, the courtfound that the BLM dismissed the evi-dence provided by the tribe in support
of its repatriation request, including
that evidence which arose through theReview Committee proceedings, with-out fully explaining the reasons behindits actions. NAGPRA required theBLM to fully and fairly consider thisevidence and to uphold or reverse itsdetermination of non-affiliation basedon a reasoned and coherent discussionof the evidence and BLMs reasons forbelieving or disbelieving it. This discus-sion never occurred, necessitating afinding that the BLMs determinationwas arbitrary and capricious.
Inside the BeltwayThe mid-term elections on
November 7 resulted in a drasticchange to the political landscape inWashington, D.C., with the victory forthe Democrats, who gained control inboth the House and the Senate. As aresult, the chair of all committees willnow be held by Democrats, with
Republicans serving as ranking mem-bers in the minority. In the Senate,Sen. Byron Dorgan (D-ND) will serveas chairman of the Committee onIndian Affairs while Sen. CraigThomas (R-WY) will serve as rankingmember. In addition, Sens. elect JonTester (D-MT) and Claire McCaskill(D-MO) will join the committee. Thecommittee is expected to address theIndian Health Care Improvement Act,
which is long overdue for reauthoriza-tion, and S. 1439, the Indian TrustReform Act. During the Novemberrecess, the committee hosted severaltribal consultation sessions to discussnew provisions to the trust reform billproposed by the administration.
In the House, current Ranking
Member Nick Rahall (D-WV) isexpected to become chairman of theResources Committee. Meanwhilethe National Congress of AmericanIndians and tribal leaders continue topush for the creation of a House com-mittee counterpart to the SenateCommittee on Indian Affairs, or asubcommittee of the HouseResources Committee, which couldbe chaired by Rep. Dale Kildee (D-MI).
The 110th Congress is expected
to return to Washington, D.C., inearly January with an aggressive plan
to work through February 16. Democratshave pledged to work longer periodswith less recess, as evidenced by the ini-tial schedule released to the public. Oneof the first orders of business for the110th Congress will be to address the FY2007 appropriations bills, which werenot finalized but instead temporarilyfunded through a ContinuingResolution by the 109th Congress.However, Democratic Leadership havealready indicated that they will pass along term Joint Resolution that will con-tinue to fund programs at the FY 2006level, eliminating earmarks and increas-es to some programs.
At the agency level, the Section1813 Energy Rights of Way Study con-ducted by the Department of Interiorand Department of Energy is expected tobe released to the public for comment in January 2007 and a final report tCongress by March 2007. The report
originally due to Congress on Aug. 8,2006, was initiated at the request ofindustry leaders, who urged Congress toenact legislation to remove tribal con-sent for energy rights of way on Indianlands. The final report is expected topermit, but not require, Congress tointervene in unsuccessful negotiationsbetween the industry and a tribe.
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Meanwhile, the National Congress of
American Indians and tribal leaders
continue to push for the creation of a
House committee counterpart to the
Senate Committee on Indian Affairs,
or a subcommittee of the House
Resources Committee.
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Endnotes1In the Oklahoma State House, the
winners were: Scott Bighorse, a memberof the Osage Nation, Democrat-Pawhuska; Chuck Hoskin, a member of
the Cherokee Nation, Democrat-Vinita,Cherokee Nation Tribal Council; AlMcAffrey, a member of the ChoctawNation won the democratic primary in July, and ran the rest of his campaignunopposed; Skye McNeil, of NativeAmerican descent, Republican- Bristow;
and T.W. Shannon, of Chickasawdescent, Republican- Lawton. In theOklahoma State Senate, the winnerswere: Sean Burrage, a member of theChoctaw Nation, Democrat-Claremoreand John Sparks, a member of theCherokee Nation, Democrat-Norman.
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D. Michael McBride IIICHAIR
Sneed Lang PCTulsa, Okla.
(918) [email protected]
Heather Dawn ThompsonDEPUTY CHAIR
National Congress of American IndiansWashington, D.C.
Elizabeth Ann KronkSECRETARY
University of Montana Law SchoolMissoula, Mont.
Allie Greenleaf MaldonadoTREASURER
Harbor Springs, [email protected]
Lawrence R. BacaCHAIR EMERITUS
Washington, [email protected]
Annual Indian Law ConferenceMATTHEW L.M. FLETCHER, chair
East Lansing, [email protected]
JENNIFER WEDDLE, co-chairDenver, Colo.
JOHN WERNETT, co-chairLansing, Mich.
DONALD "DEL" LAVERDUE, co-chairCrow Agency, Mont.
Annual Washington, D.C. Indian Law
ConferenceDANNA R. JACKSON, chair
Washington, [email protected]
Committee on the Development of Federal
Indian LawKEVIN GOVER
ASU School of [email protected]
Committee on Public EducationDENETTE MOUSER
Chief Justice, Muscogee (Creek) NationSupreme Court
Wal-MartBentonville, Ark.
Committee on LegislationELIZABETH HOMER
Homer Law CharterWashington, D.C.
Committee on Tribal JusticeFRANK POMMERSHEIM
University of South Dakota, School of LawVermillion, S.D.
Committee on Programming and Legal
EducationHEATHER DAWN THOMPSON
Committee on MembershipO. JOSEPH WILLIAMS
Pitchlynn & Associates PANorman, Okla.
Committee on Indian Law and
State Bar Exams
GLORIA VALENCIA-WEBERUniversity of New Mexico School of Law
Albuquerque, [email protected]
Committee on Nominations and Elections
LAWRENCE R. BACA, chairHEATHER DAWN THOMPSON, deputy chair
INDIAN LAW SECTION LEADERSHIP
Washington and in helping to lay theground work elsewhere. He and othershave advocated through articles, semi-nars, letters and personal meetings tostart this trend. Other states with signif-icant Indian Country are sure to follow.
The Membership Committee,chaired by O. Joseph Williams, willsponsor activities to maintain member-ship and conduct outreach to potential
new members. Joe is a lawyer withPitchlynn & Associates in Norman,Okla. and serves as our sections liaisonto the joint drafting committee on uni-form tribal laws. The committee hasrecently conducted advanced drafting ofa model tort claims act for tribal govern-
ments and for tribal commercial opera-tions.
Finally, the Godfather of theIndian Law Section, our chair emeritus,Lawrence Baca, has agreed to chair the Nominations and Elections Committeetogether with deputy chair, HeatherDawn Thompson. Lawrence is deputydirector of the Office of Tribal Justice andHeather is a lawyer for the NationalCongress of American Indians.
Conference Chairs. Matthew
Fletcher, a professor at Michigan StateUniversity, serves as senior chair for the32nd Annual Indian Law Conference tobe held in Albuquerque, N.M., on April1920, 2007. He is joined by JenniferWeddle, a Denver lawyer with Hollandand Hart, Donald Del Laverdure, a
tribal attorney for the Crow Nation inMontana and John Wernet, legal counselfor the Michigan governor. Danna Jackson, a lawyer with Akin, GumpStraus, Hower & Feld in WashingtonD.C., will serve as chair of the 9thAnnual Washington, D.C. Indian LawConference in October 2007.
We are very excited about the lead-ers in place and the work of our substan-tive committees. I encourage you to joinin!
D. Michael McBride III, section chair,directs the Indian Law and GamingPractice Group at Sneed Lang PC, and alsoserves as a justice for the Pawnee NationSupreme Court.
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The 32nd AnnualFederal Bar Association
For further information contact theFederal Bar Association, (202) 785-
1614, (202) 785-1568 (fax), fba@fed-
bar.org, www.fedbar.org.
Full agenda, travel, and registration infor-mation to follow in early 2007.
Save the Date
APRIL 1920, 2007
Federal and state Indian law and policy often remains anchored to 19th cen-
tury stereotypes about Indian people and Indian culture. Federal and state
judges sometimes decide hard Indian law cases by relying on their viscera
reaction to the facts, relying on unsupported assertions of lawlessness in Indian
Country or misunderstandings about tribal religions and customs. Lawmakers
seem to rely on the rhetoric of John Wayne westerns, labeling tribal interests
as outsiders seeking to take away the civil rights and property interests of non-
Indians, in crafting law and policy on Indian affairs.
The 2007 Federal Bar Associations Annual Indian Law Conference will
provide the framework for establishing political and legal relationships that are
based on reality and facts, not assumptions and perceptions. This years con-
ference provides a focus on the presence of non-Indians in Indian Country,
especially their political and legal footprint in tribal politics. The conference
offers a fresh look at the commercial relationships of non-Indian businesses
involved in complex tribal court litigation. Another topic presents several per-
spectives on the current disputes over preserving tribal cultural property inrelation to sacred sites and scientific research. The conference next offers a
discussion of the legal framework for tribal, state, and local government coop-
eration. Finally, with trust reform a developing and critical issue, the confer-
ence provides different perspectives from the tribal, federal, and non-Indian
sides on the impact of the Cobell litigation, federal energy legislation, and
other trust reform proposals.
The intent to is acquaint judges and policy-makers with the facts about
Indian Country, giving decision makers fewer chances to rely upon misin-
formed or incorrect information and instead rely upon and understand
modern Indian law and policy.
The Albuquerque Marriott2101 Louisiana Boulevard, NE
Albuquerque, NM(505) 881-6800
The Real World: Indian Country
Indian Law Conference
Paternalism Provokes
DebateControversy
Surrounds Approval
Requirement
By Casey Ross-Petherick, assistant director,Native American Legal Resources Center,Oklahoma City University School of Law
Several tribal governments inOklahoma are expressing their frustra-tion with the Bureau of Indian Affairsapproval process.
The governing documents of sever-al of the 39 federally recognized tribeslocated in Oklahoma require Bureau of
Indian Affairs, Department of Interioror presidential approval for changes totribal constitutions, codes and yeseven for certification of tribal elections.Often times, these approval require-ments have been in place since earlyOklahoma statehood, when the federalgovernments policy on Indian affairs
was ignorantly paternalistic in nature.How can the policy of paternalismremain in the age of sophisticated trib-al self-governance? The two are indirect conflict, and the outdated ideol-ogy behind the federal governmentsdecision making has no place withintribal governance.
Tribal governments throughout theUnited States are experiencing thesesame complications as they go aboutgoverning and protecting sovereignty
in everyday practice. The vast majorityof tribes are trying to work through theprocess, but to no avail. The litany ofcomplaints include frustration over theexperience of sending governing docu-ments for approval and waiting for overfive years with no response; calling forassistance and being handed off to ten
different people in charge at the BIAonly to end up at the first person in lineall over again; finding the one personwithin the structure who seems helpful,only to call one day to find out he hasfallen victim to the high turnover rateThese are hardly symptoms of healthygovernance, and tribes have far moreimportant things to do than jumpthrough arbitrary paternalistic hoops.
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