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Updates from day 2 of National Congress of American Indians winter session

Thursday, February 26, 2015

Deborah Parker of Tulalip Tribes of Washington at the NCAI winter session in Washington, D.C. Seated is NCAI President Brian Cladoosby. Photo by Indianz.Com

Some highlights from the second day of the National Congress of American Indians winter session in Washington, D.C.

Contract Support Costs
After years of lobbying and litigation, tribes finally won a commitment from the federal government to fully fund contract support costs in self-determination contracts. The fiscal year 2016 budget request ensures the Bureau of Indian Affairs and the Indian Health Service carry out that promise.

But Indian Country needs to do even more work to resolve the situation on a permanent basis. Ron Allen, the chairman of the Jamestown S'Klallam Tribe of Washington, urged tribes to lobby Congress to categorize contract support costs as a mandatory part of the federal budget so they won't be subject to political whims or funding limits.

Ron Allen, the chairman of the Jamestown S'Klallam Tribe of Washington. Photo by Indianz.Com

"Today is an opportunity," Allen told tribal leaders. But to ensure mandatory funding in fiscal year 2017, tribes must act quickly in order to avoid being consumed by the presidential election.

"If this gets deferred till next year, you're going to get in the middle of election stuff and then everything kind of gets on hold," Allen said, echoing a sentiment raised on Tuesday regarding the landscape on Capitol Hill.

Violence Against Women Act
Two years have passed since the reauthorization of the Violence Against Women Act and a leader of the Tulalip Tribes was on hand to share some key experiences with Indian Country.

S.47 recognizes tribal authority to arrest, prosecute and punish non-Indians for certain domestic violence offenses. The landmark provisions go into effect next month but three tribes -- including Tulalip -- were able to start sooner as part of a pilot program at the Department of Justice.

Deborah Parker, a Tulalip council member whose personal story helped spur action on Capitol Hill in 2013, said her tribe has successfully prosecuted five non-Indians as part of the pilot project. She pointed out that the cases were carefully selected -- there are in fact more instances of domestic violence and sexual assault on the reservation.

"I want to make that clear," Parker said. "This is happening all over Indian Country."

Of the five cases, Parker said four took place in homes where children were present. VAWA, however, does not allow tribes to prosecute non-Indians for threatening minors.

Restoration of Native Sovereignty and Safety for Native Women, a publication of the National Indigenous Women's Resource Center. Photo by Indianz.Com

"At this point, we have to refer [those cases] to the federal government and hope and pray that prosecution occurs," Parker told NCAI.

In addition to going through the criminal system, Parker said the tribe has banished three non-Indians from the reservation and plans to banish a fourth non-Indian who is accused of holding a tribal woman captive for a week and threatening her and her child. Federal prosecutors are taking up the last case, she said.

"I would hope as a tribal leader that we are in the business of making our homes safe," Parker said. "It is our business to go in and make sure our families are protected, that our women are protected."

Supreme Court Struggles
The Native American Rights Fund and the National Congress of American Indians have been closely monitoring litigation before the U.S. Supreme Court for more than a decade but an attorney said the effort has seen mixed success.

Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine, Richard Guest of NARF said. Up until 2012, tribes hadn't even won a single case, he noted.

So the Roberts era has turned out to be far worse than the record under the late William H. Rehnquist, Guest said. The Tribal Supreme Court Project started in 2001 and was able to see some improvements up until 2005.

Richard Guest of the Native American Rights Fund. Photo by Indianz.Com

"We were winning at the Supreme Court more than we were losing at the Supreme Court," Guest told NCAI of the first few years of the project.

But if there is a bright spot, Guest said fewer petitions in Indian law cases are ending up before the court. That means there is less of a chance for the justices to issue a disastrous ruling, such as Carcieri v. Salazar, a land-into-trust case from 2009, and Adoptive Couple v. Baby Girl, an Indian Child Welfare Act case from 2013.

"This is good news," Guest observed. "We're not sure why that situation exists but this will be the third year in a row where fewer cert petitions are being filed, giving less opportunity for this court to do damage in Indian Country."

Still No Carcieri Fix
Speaking of Carcieri v. Salazar, Indian Country just passed the six-year anniversary of the February 24, 2009, decision that has generated significant uncertainty. Even though the case only involved one tribe, it's being cited in lawsuits around the nation and it's being used to create delays in the land-into-trust process at the Bueau of Indian Affairs.

“This is a disastrous decision," said Kitcki Carroll, the executive of the United South and Eastern Tribes, "Every day that goes by, the disaster keeps getting worse.”

Due to weather-related travel issues, Chairman Bill Iyall of the Cowlitz Tribe of Washington was unable to address NCAI. The tribe has survived the first post-Carcieri challenge in federal court but the decision is being appealed.

The issue could be resolved easily with a legislative fix to ensure that all tribes, regardless of the date of federal recognition, can follow the land-into-trust process. Congress, however, has not enacted a Carcieri bill, a situation that's being attributed to a lack of consensus in Indian Country.

"I don't know what more you need to be hit with to recognize the seriousness of this decision," said Randy Noka, a council member for the Narragansett Tribe of Rhode Island, whose tribe was the one involved in the original case.

Randy Noka, a council member for the Narragansett Tribe of Rhode Island. Photo from Indianz.Com

Noka offered a passionate plea for unity on a fix after NCAI heard about other cases in which Carcieri is being used to question the very existence of certain tribes. In one instance, a tribe in California could lose its rights to a property that was placed in trust in 1994, long before Carcieri was an issue.

"I don't know what it takes for Indian Country to step up," Noka said. "If we don't stand together, we certainly are going to fall apart."

A Look Ahead
NCAI concluded its winter session yesterday. But look for another update tomorrow with some additional information and all of the best jokes.