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Updates from NCAI's annual winter session in DC

Wednesday, March 5, 2008

Updates from the 2008 winter session of the National Congress of American Indians in Washington, D.C.

Tribal Supreme Court Project
Tribes and their advocates were able to rest a little bit last year when the U.S. Supreme Court refused to hear any Indian law cases for the first time in decades. But two cases on the docket this year are raising alarms about some key sovereignty issues.

The first is Plains Commerce Bank v. Long, a case from South Dakota. Plains Commerce, a non-Indian bank, is challenging the jurisdiction of the Cheyenne River Sioux Tribe after a tribal jury awarded a nearly $900,000 verdict to a tribal couple.

The bank's consensual ties with the Long couple were cited as grounds for tribal jurisdiction by the 8th Circuit Court of Appeals. But the justices could overturn the decision and restrict the ability of tribes to regulate business and other types of activities on their reservations.

"This case has potentially huge ramifications for Indian Country," said attorney David Frederick.

The second case is Carcieri v. Kempthorne. In it, the state of Rhode Island is challenging the ability for the Interior Department to acquire land in trust for the Narragansett Tribe.

The case, however, could affect dozens of other tribes because the state claims that the land-into-trust provisions of the Indian Reorganization Act apply only to tribes that were federally recognized as of 1934. At least 50 tribes have been recognized in the last 70 years.

"If the state argument wins, all of these lands going in trust, they're in peril," said Randy Noka, the first council member for the Narragansett Tribe.

A second issue in the case affects a handful of tribes in New England and South Carolina who accepted state jurisdiction on their reservations in exchange for settling their land claims. The state claims that tribes whose aboriginal rights were extinguished by acts of Congress cannot follow land-into-trust process.

Hiawatha Brown, another Narragansett council member, said these acts have been wrongly used to strip tribes in these states of their sovereign status. "The worst we gave to the state was concurrent jurisdiction," he said.

If the state wins the case, Brown predicted a "domino effect" on other tribes with land claims settlement acts. Tries in Maine and Massachusetts have already seen a slew of unfavorable decisions in the courts, though two tribes in Connecticut so far have escaped any negative effects.

Oklahoma Rumblings
Tribes last week celebrated Senate passage of the Indian Health Care Improvement Act, but Jefferson Keel, the first vice president of the National Congress of American Indians, wasn't happy that both Senators from his state of Oklahoma were among the 10 who voted against the bill.

"Those Senators have no regard for Indian Country," said Keel, who serves as lieutenant governor for the Chickasaw Nation in Oklahoma. "Their minds are already made up."

Even those members of Congress who claim to be friends of Indian Country don't always follow through on their pledges, Keel added. "They love us, they support us, but they don't fund us," he said during a tribal leaders' discussion on legislative and other issues.

Action in the House
On Monday, tribal leaders heard about the Senate's agenda Yesterday, two members of the House said they are moving forward with some key Indian legislation.

Rep. Dale Kildee ( (D-Michigan), the co-chair of the Congressional Native American Caucus, said the Indian Health Care Improvement Act remains a top priority. "We hope to move on that soon, said Kildee, who also touted a $50 million investment for Indian Country in the Head Start reauthorization bill under consideration.

Rep. Frank Pallone (D-New Jersey), a top member of the House Energy and Commerce Committee, vowed action on IHCIA as well. But when asked by Buford Rolin, the chairman of the Poarch Band of Creek Indians of Alabama who serves as co-chair of a national steering committee on the bill, to commit to a markup on March 13, Pallone said some issues still need to be addressed.

However, Pallone said one controversy has been resolved for now. "We've got the Freedmen issue behind us," he said, referring to the status of Freedmen, the descendants of former slaves, within the Cherokee Nation of Oklahoma. He didn't elaborate but indicated the tribe wasn't completely satisfied with the outcome.

Labor Reaches Out
It may be late coming but the National Labor Relations Board is working to improve its relationship with Indian Country, said general counsel Ronald Meisburg. He said he has directed NLRB's 32 regional directors to reach out to tribes, for the first time in the board's 70-plus year history.

"The world has changed a lot since 1935," said Meisburg, referring to the date of passage of the National Labor Relations Act.

NCAI President Joe Garcia pointed out that the Indian Reorganization Act was passed just a year earlier. He noted that tribal governments and their enterprises are not mentioned anywhere in federal labor law.

"It would almost seem clear ... that we need to be engaged a lot more," Garcia said.

Meisburg spoke about the three "eras" in Indian affairs at the NLRB. For more than thirty years, the board stayed away entirely from tribal enterprises because they were considered similar to government entities, which are exempt from federal labor law.

The second era came in the 1990s, when the board started to assert authority over tribal enterprises that were operating off the reservation. Then, in a highly controversial ruling in 2004, the board claimed jurisdiction over on-reservation tribal enterprises in cases where non-Indians are affected and where the activity is of a commercial nature.

Upcoming
Today is the last day of the winter session. NCAI will meet in the morning and recess in the afternoon for Congressional visits. The mid-year conference takes places June 1-4 in Reno, Nevada.

Other important events include the Bureau of Indian Affairs Tribal Budget Advisory Council next week in Washington, D.C., and the BIA Modernization Initiative meeting in Denver, Colorado, on March 17-18.

Relevant Links:
National Congress of American Indians - http://www.ncai.org