Though higher now, reflecting a more accurate statistic, there seems to be no affect in limiting pollution
By Andrew Gobin, Tulalip News
Today, Governor Jay Inslee met with tribal leaders before holding a briefing on Washington’s Fish Consumption Rate (FCR) and water quality. The new FCR, now set at 175g per day, comes with the compromise that increases allowable pollution 1000 percent.
Originally set at 6.5g per day, Puget Sound tribes, with the support of the public minority, have been pushing to reexamine the FCR, seeking a number that more accurately reflects the amount of fish consumed by Washington residents per capita. The rate of 6.5g per day specifically included a section that mitigated the high consumption of seafood by tribal communities, allowing for a low number to be reached. The new rate of 175g per day is a more realistic representation of the seafood consumed by all Washington residents.
The FCR is a measurement used to gauge the impacts of water pollution on the public. Former standards stated that the acceptable level of toxins allowed could only lead to one in one million people to develop cancer. The FCR that was set at 6.5g was intended to allow for a tenfold increase in pollution and water toxin levels.
Although Washington’s FCR is now almost 30 times higher than what it was, the agreement to increase the FCR was achieved through a compromise, bargaining to increase the acceptable persons to get cancer from one in one million, to one in 100,000. That means that the acceptable level of pollution would be ten times higher.
In the NWIFC statement Lorraine Loomis, vice chair of the Northwest Indian Fisheries Commission and fisheries manager for the Swinomish Tribe, said, “This is a political decision, not one based on sound science. While a toxics control effort is needed, it is not an effective replacement for strong water quality rules and standards. We cannot continue with a pollution-based economy.”
“We’ve been working with the state on this issue for more than 20 years. We need action,” she added.
Tribes will be meeting with the EPA to review the proposed changes and evaluate their next move.
Andrew Gobin is a staff reporter with the Tulalip News See-Yaht-Sub, a publication of the Tulalip Tribes Communications Department. Email: agobin@tulalipnews.com Phone: (360) 716.4188
The King County Medical Examiner’s Office is asking for the public’s help to find who donated three human skulls to a Bellevue thrift store.
There is no information about who donated the skulls to the Bellevue Goodwill or how they came to be in the donor’s possession.
The KCME said two of the skulls of from adults and were clearly used in a medical clinic or teaching setting.
The third skull is very old and appears to be the fragile remains of a Native American child.
According to state law, the Native American skull must be returned to its tribe of origin, but the ME needs more information to identify the correct tribe.
The office is asking that the person who donated the skulls come forward, without penalty, to provide more details about where the skull came from.
The skulls were donated in June to the Goodwill at 14515 NE 20th Street in Bellevue. Employees there realized the skulls were human remains and contacted the Medical Examiner’s Office and police.
Washington’s clean-water regulations to ensure the safety of eating fish from local waters are indefensibly lax, everyone agrees. That’s about to change, but without broader cleanup, water will still be polluted.
New proposed water-quality standards expected to be issued soon by the state are intended to more accurately reflect how much fish people eat. These fishermen were trying their luck for salmon running in the Duwamish River last September. MARCUS YAM / The Seattle Times, 2013
Eat only as much fish as the state assumes you do every day, and you’d starve, for sure: It’s a chunk not much bigger than a Starburst candy.
But that could be about to change, under new regulations in the works at the state Department of Ecology. Washington seems likely to follow Oregon’s lead and set a water-quality standard for daily fish consumption at 175 grams, or about 6 ounces, per day.
The level is set not to regulate how much fish people eat, but how clean water needs to be. The standard sets pollution cleanup and control limits for industry, municipal sewage plants and other dischargers to local waters.
While it sounds like a modest step forward, implementing more realistic fish-consumption standards — Washington’s current standards are based on an outdated national average — has been a battle, chewing up years of effort and the political capital of two governors.
That’s because municipal sewage plants, pulp mills and other dischargers fear the cost of tighter pollution standards. Boeing famously entered the fray last year in widely reported warnings about the potential effect of unreasonable standards on its continued business operations.
“We support a water quality standard that protects human health and the environment, while at the same time, allows for the growth of our business and the state’s economy,” Boeing spokeswoman Megan Hilfer wrote in a statement to The Seattle Times in an email July 1.
No one contests that the new levels will in some cases result in setting pollution-discharge limits too tiny even to measure with existing technology.
Gov. Jay Inslee and the state Department of Ecology are expected to announce the new proposed standard Wednesday and to work toward issuing a draft rule after that. The regulations will go through a lengthy public-comment period and be finalized only with the approval of the U.S. Environmental Protection Agency, probably sometime next year.
The importance of water-quality standards to human health is well known, especially to people who eat a lot of fish. Because pollutants find their way from the uplands to the water, ultimately everything, for better or worse, winds up in the tissues of fish. Pollutants such as mercury and PCBs can cause a variety of serious illnesses and impairments, from cancer, to permanent IQ reduction in children. Pregnant women, the young and the frail are most at risk.
As the state develops commercially, the abundance of healthy fish from the state’s home waters has been slipping away. Toxics are just part of the problem. Habitat, every scientific report on salmon recovery shows, is the most important thing to securing abundant runs of fish for people and wildlife.
Yet the state is losing ground, literally, in runoff caused by development of uplands and cutting of forests.
And even as Seattle and King County water and sewer ratepayers spend hundreds of millions of dollars to clean up Puget Sound, the city of Victoria, B.C., continues to spew untreated sewage directly into the Salish Sea — prompting a dust-up with Inslee, but still no resolution of the problem.
Inslee inherited the fish-consumption wrangle from former Gov. Chris Gregoire, who failed to implement new regulations amid scorching opposition from businesses. As the struggle to get the standards updated roils behind the scenes in Washington, regulators in Oregon, and business leaders, are carrying on with that work behind them.
The Oregon Department of Environmental Quality has issued dozens of discharge permits since updating its standards in 2011, including permits for more than a half-dozen municipalities, a meatpacking plant and other industrial users. The path forward in Oregon required implementation of flexibility in setting timelines for compliance and variances, said Jennifer Wigal, water-quality program manager at the department.
A similar approach is in the works in Washington. Kelly Susewind, director of Washington Department of Ecology’s water-quality program, charged with drafting the regulations, said he wants to take the five-year time limits off compliance schedules and variances, to give regulators and dischargers a way to work out realistic solutions under new, more exacting standards.
Dennis McLerran, regional administrator for the Region 10 office of the U.S. Environmental Protection Agency, whose approval is required for Ecology’s regulations, said he backs flexible implementation.
“We are interested in working with the state on a package of implementation tools that includes compliance schedules, variances, intake water credits, even how you look at some chemicals. But we want to make progress. Otherwise, why do it?”
One place he is not inclined to budge, though, McLerran said, is cancer risk, because implementing a higher risk would allow bigger inputs of some pollutants to local waters. That could put people who eat a lot of fish at higher risk — and compromise treaty-protected fishing rights.
“Some of our high fish consumers when they signed on to transfer (their) lands, signed on to continue to harvest and eat fish, and when and if they can’t, then the treaty right is a bit vacuous,” McLerran said.
“From my perspective we want a standard that is protective, and protective of all people.”
A daily consumption standard of a little over 6 ounces of fish as set forth by Oregon — the highest standard in the country — is less than a typical half-pound filet an adult would have for dinner. And it’s a snack, compared with the estimated 2.2 pounds a day that the ancestors of Washington tribes were counting on when they signed the treaties with the U.S. government ceding tribal lands for non-Indian settlement.
People shouldn’t be afraid to eat fish now, Susewind said. The increased risk of cancer from eating fish today is almost zero — compared with a background risk of cancer from all causes of about 1 in 2 for men, or 1 in 3 for women.
And many common foods, from butter to chicken to tuna, have more PCBs in them than Puget Sound coho, according to an Ecology analysis.
The ubiquity of pollution is one reason Christie True, director of King County Natural Resources and Parks, said she hopes new state regulations don’t just crank down on pollutants at tiny levels in sewage discharges and other so-called point sources, but instead go after bigger sources of trouble in Puget Sound, including stormwater.
Just making compliance schedules workable doesn’t address the problem if the regulations misdirect spending and effort, she said.
“We want to make sure whatever investments we are making make a substantial improvement in water quality,” True said. “If we just focus on the point-source discharge, we are missing huge opportunities. All of these things, arsenic, PCBs, dioxins, those are coming through our watershed through street runoff and rain runoff, these are getting washed into our water without any kind of control.”
Dianne Barton, water-quality coordinator for the Columbia River Inter-Tribal Fish Commission, which pushed Oregon to get started on updating its standards, and is deeply involved with other Washington tribes in setting new standards in Washington, said tribes want progress, but not at any price.
In many rural and suburban areas of the Northwest, tribes are among the largest employers, running all kinds of industries themselves, and they want cost-effective solutions that make a true difference too, Barton said.
“The tribes have always believed that this is not something we are going to achieve overnight,” Barton said. “We can get creative.
“Whether as we move forward that includes variances or resources we haven’t developed yet, we are committed to being actively engaged so we can move the (Columbia) Basin forward.”
EVERETT — Snohomish County has started mailing millions of dollars in property-tax refunds to building owners on tribal land, as a result of a court case with nationwide implications.
Big-box retailers such as Wal-Mart and Home Depot at the Tulalip Tribes’ Quil Ceda Village along I-5, plus some 1,200 homeowners, are in line for about $5 million in combined payments, county officials said
The money will come out of budgets for schools, fire departments and other taxing districts.
Local governments stand to recoup some lost revenue, but property owners who aren’t exempt from the ruling will be left with a larger share of the future tax burden.
“That will be a shift,” county Assessor Cindy Portmann said.
The changes under way here, and elsewhere in Washington, stem from a legal fight over a resort in Thurston County.
Thurston County had been collecting property taxes on Great Wolf Lodge, the water park resort midway between Seattle and Portland. Great Wolf Lodge occupies federal land held in trust for the Chehalis Tribe, which owns 51 percent of the local partnership.
Thurston County started assessing property taxes on the resort buildings in 2007. In 2008, the year the resort opened, the Chehalis Tribe sued, arguing the property should be exempt from property taxes. Though the tribe lost an initial battle in federal district court, the 9th U.S. Circuit Court of Appeals last year decided in its favor.
Tulalip tribal leaders view the court’s decision as a long-overdue correction to an injustice.
“(It’s) a great victory for Indian Country for the federal government to finally recognize its obligations under the treaties they established with Indian nations giving us the right to exist as sovereign nations,” said Les Parks, vice chairman of the tribes’ Board of Directors.
A 1955 federal law established that sovereign Indian nations are exempt from paying local or state taxes on federal lands held in trust for tribes. As a result, the land itself was exempt from county property taxes. Buildings and other improvements on that land also were considered exempt, if owned by Indians.
That wasn’t the case for buildings and other improvements owned by non-Indians. Counties considered that property taxable, and acted accordingly.
Last year’s federal court decision stopped that practice. It made property taxation uniform on the trust lands, regardless of who owns any buildings.
County assessors in Washington are just now figuring out how to comply.
The approximately 1,400 taxpayers in line for a refund include Seattle Premium Outlets, Wal-Mart and Home Depot, among other businesses located on Tulalip tribal land fronting I-5. Of the total, some 1,200 are homeowners, including non-tribal residents living on leased land around Tulalip Bay. What they have in common is that none are tribal members but all own improvements — mainly buildings — on land that the federal government holds in trust for the tribes.
“The buildings were taxable, but now they are exempt,” Portmann said.
The court decision is retroactive to the second half of 2011. It covers any 2014 property taxes already paid to the county.
Commercial properties on Tulalip property along I-5 are owed nearly $2.7 million combined, treasurer Kirke Sievers said. The total does not include the Tulalip Resort or Cabela’s buildings, which are owned by the Tulalips and were previously considered exempt.
A typical homeowner with one of the affected properties could receive a $2,500 refund for the three years.
“That’s strictly an eyeball look at what I’m seeing going across my desk,” Sievers said.
The treasurer said it likely will take his staff a few months to complete mailing all of the refunds.
The revenues now being returned had been collected for fire protection, education, libraries and a host of other countywide services.
Some districts have the ability to recoup the revenue in 2015 — but it would be borne by taxpayers in the form of higher bills. The potential revenue estimates are worst-case scenarios, because county hasn’t had time to calculate variables such as delinquent payments and exemptions.
A refund levy allows taxing districts to raise their levy amounts to recover past losses, if they don’t exceed their maximum rate.
The Marysville School District expects to make up most, if not all of its lost revenue through a refund levy, said Jim Baker, executive director for finance and operations.
“This issue should be a short-term ‘cash flow’ issue not a total loss of local property taxes for the district,” Baker wrote in an email.
The Marysville Fire District, on the other hand, probably doesn’t have enough levy capacity to make up much of its loss.
“We know we won’t be able to get all of it back,” finance manager Chelsie Reece said.
The Tulalip Tribes want to work with affected districts to help manage any negative impacts, Parks said.
“We’re all partners in the same community,” he said. “We’ll fully research what the impacts are going to be and minimize those impacts.”
The tribal government hopes to set up its own assessor’s office over the next few months to start collecting property taxes for government services, Parks said. Though they could have assessed property taxes in past years, he said, they opted against it to avoid double-taxing property owners.
American Indian leaders and Native-focused legislators are pushing President Barack Obama to use his executive powers to establish a tribal economic development council made up of actual tribal leaders.
Such a move, say advocates of the seemingly common-sense idea, would illustrate that Obama and his administration are serious about creating an overarching economic plan for Indian country, and it would put more weight behind a series of disjointed initiatives his team has already offered.
They note, too, that the President of late has been willing to face scrutiny from Republicans by expanding his use of executive powers on immigration reform, health care, and other issues, so they wish he would add this pressing area to his agenda. And there’s already a model in place for him to do so, exemplified by his creation of the President’s Council of Advisors on Science and Technology through executive order in 2010.
“It’s time to diversify the conversation,” says Gary Davis, president and chief executive officer of the National Center for American Indian Enterprise Development, who noted the idea was seriously discussed at the organization’s recently-concluded Washington, D.C.-based Reservation Economic Summit. “We need the Native people who are advancing economic develop in Indian country every single day weighing in, making sure that the proper tribal perspective is being offered.”
Indian leaders know full well that the president has already created a White House Native American Affairs Council, but they widely lament that it is made up mainly of non-Indian agency officials spread throughout the vast administration who don’t have the on-the-ground experience rooted in the realities of tribal economies.
It makes for a good photo op when the administration’s council gets together, Tex Hall, chairman of the Three Affiliated Tribes, has said, and agency officials can therefore say they are focused on tribal economic development, as well as a bevy of other tribal issues. However, given the limited tribal input built in to this system, tribal leaders have feared that the council misses major opportunities to improve struggling reservation economies.
To be fair, the administration and the council have indeed reached out to tribal leaders to solicit their ideas for bold and wide-sweeping improvement. During last year’s White House Tribal Nations Summit, for instance, Obama held a meeting with a small group of Indian leaders who suggested that the federal government encourage more collaboration between private business and tribes by convening a gathering of such entities. Ray Halbritter, Oneida Nation representative and CEO of Nation Enterprises, parent company of Indian Country Today Media Network, said after that presidential meeting, which he attended, that an advantage in having the administration facilitate such an endeavor is that it has power that tribes and Indian organizations lack.
“If the administration backed such a plan, there would be an automatic serious nature to it,” Halbritter said at the time. “Businesses would perhaps feel more obliged to collaborate and to find ways to partner with Indian nations.”
The administration has already made tentative and limited progress in improving reservation economies. During the president’s June trip to the Standing Rock Sioux Reservation, the White House noted in a press release that the administration has in several instances already partnered with Native communities by granting multi-millions of dollars in funding, by providing increased technical assistance on various federal-tribal programs, and by pushing for legal and regulatory tribal economy-focused improvements.
New initiatives are also in the pipeline, the White House said, noting that the administration wants to remove regulatory barriers to Indian energy and infrastructure development, increase tribal land development opportunities, and make federal data focused on tribal economic development easier to find and use by tribes. Encouraging the use of tax-exempt bonds for tribal economic development, growing Native small businesses, and supporting Indian veterans were also on the agenda.
Brian Patterson, president of the United South and Eastern Tribes, says he is supportive of the administration’s efforts to date and its plans for the future. “However,” he adds, “none of this will transform the situation without the full engagement of Indian country as an equal partner.”
Says Chris Stearns, a Native affairs lawyer with Hobbs Straus: “[W]ithout the direct input of tribal leaders, scholars, and activists into federal policy, you tend to wind up with piecemeal fixes that are not linked together in a way that makes them effective.
“I can’t imagine that a Council on Native American Affairs led by the tribes themselves wouldn’t be able to come up with 10 times more than what a roomful of federal officials has been able to do so far,” Stearns adds.
One of the reasons the administration has been reluctant in some cases to solicit stronger tribal input on economic development issues is the fact that many tribal leaders want federal laws that they feel impact their growth relaxed or removed. Progressive laws, like the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA), are hindrances to development on many reservations, several tribal leaders have testified before Congress.
“These and other laws create conflicting allegiances for the federal Indian trustee, bogging down tribal development decisions to the point that tribes cannot compete fairly in most private sector markets,” says Philip Banker-Shenk, a Native Affairs lawyer with Holland & Knight. “It may be audacious to think the role of the federal Indian trustee should trump laws like the APA, NEPA, or ESA, but it is no more audacious than the present paralysis caused by how those laws now neuter the federal Indian trusteeship.”
Rep. Don Young (R-Alaska), chairman of the House Subcommittee on Indian and Alaska Native Affairs, is one who believes the administration has been slow in supporting economic self-determination for tribes because that goal often conflicts with its more progressive ideals. For instance, the congressman’s recent Native American Energy Act received tribal support from its conception to its passage in the House as part of a larger bill, yet the administration has opposed it all along the way. The bill, if ever signed into law by the president, could open up many opportunities for tribal energy development – both of the renewable and non-renewable type – yet it would also give tribes more of an ability to challenge NEPA and other regulations that hold them back from such development. Thus, the administration has been opposed—a major source of consternation to tribal advocates who note that Indian oil, gas and construction in aggregate garnered copy5 billion for a select group of tribes in 2013. Many more tribes could be able to benefit if Young’s legislation became law.
“The administration continues to focus on endless discussions, but rarely takes actions,” says Matt Shuckerow, a spokesman for Young. “Truly promoting economic self-sufficiency for tribes takes more than hosting a tribal summit each year. The administration should actively work with Congress to allow for responsible development of natural resources on tribal lands.”
Such criticism from a Republican is perhaps expected in partisan Washington, but Jon Tester (D-Montana), chairman of the Senate Committee on Indian Affairs (SCIA), agrees that the progress of both the administration and current Congress has been too sluggish and not focused on supporting true tribal self-determination.
Tester says that the federal government sometimes holds tribes back from self-determination opportunities, adding that he has tended to see more economic successes from tribes that have been able to take increased responsibility over programs that support their lands and citizens. How to get all tribes to be able to take increased responsibility is one of the major dilemmas of this situation, he says. “Make no mistake, I know how difficult it is,” he adds. “When you’re poor, you’re poor.”
A step in the right direction, Tester says, would be for the president to create a permanent Cabinet-level Native affairs advisor position that could elevate these issues to the highest level of federal government in conjunction with appointing a tribal economic development council to inform such an advisor.
“If in fact this is something that can happen, we will talk about it as a committee, and send a letter off,” Tester says.
Davis, fresh from testifying before SCIA on economic development challenges facing tribes in late-June, says he’d be more than willing to join such a council. “As it is now, I worry we may not be looking as far to the left as we can, nor as far to the right as we can,” he says. “We need to be open-minded, we need to take responsibility, and we need to have a real seat at the table.”
The Department of the Interior has reaffirmed its commitment to restore bison to “appropriate and well-managed levels on public and tribal lands” by working with states, tribes and other partners.
“The Interior Department has more than a century-long legacy of conserving the North American bison, and we will continue to pursue the ecological and cultural restoration of the species on behalf of the American public and American Indian tribes who have a special connection to this iconic animal,” said Secretary of the Interior Sally Jewell in a June 30 statement announcing the release of a report, DOI Bison Report: Looking Forward, which outlines plans to work with tribes, states, landowners, conservation groups, commercial bison producers and agricultural interests to restore the bison population to a “proper ecological and cultural role on appropriate landscapes within its historical range,” the DOI statement said.
“This report reaffirms our commitment to work with many partners to ensure healthy, ranging bison contribute not only to the conservation of the species, but also to sustainable local and regional economies and communities,” said Acting Assistant Secretary for Fish, Wildlife and Parks Rachel Jacobson in the statement.
A key component of the report addresses recent developments regarding brucellosis quarantine that could allow for the relocation of Yellowstone bison outside the Greater outside the Greater Yellowstone Area, if they are quarantined and determined to be brucellosis-free. A new protocol developed by the Wildlife Conservation Society (WCS) and introduced in February strongly suggests that this is indeed possible.
“The results of this study indicate that under the right conditions, there is an opportunity to produce live brucellosis-free bison from even a herd with a large number of infected animals like the one in Yellowstone National Park,” said Dr. Jack Rhyan, APHIS Veterinary Officer, in a WCS statement in February. “Additionally, this study was a great example of the benefits to be gained from several agencies pooling resources and expertise to research the critical issue of brucellosis in wildlife.”
The new information “raises the potential that for the first time in over a half century, Yellowstone bison could once again contribute to the broader conservation of the species beyond the Greater Yellowstone Area without spreading brucellosis,” the DOI said in its statement. “When evaluating whether to implement a brucellosis quarantine program in the future, Interior will follow all necessary processes to ensure full involvement by states, tribes, and the public.”
As such, the department said it was unwaveringly committed to working with tribes to restore bison on public and tribal lands “because of its cultural, religious, nutritional, and economic importance to many tribes.”
The American buffalo, which numbered an estimated 40 million when Europeans first arrived on Turtle Island, had been reduced to 25 by the late 19th century, Interior noted. Since then many parties have worked hard to bring them back from the brink of extinction and reintroduce them to tribal lands.
“Interior lands now support 17 bison herds in 12 states for a total of approximately 10,000 bison over 4.6 million acres of Interior and adjacent lands, accounting for one third of all bison managed for conservation in North America,” the department said.
The Indian Health Service (IHS) has launched a Veterans Hiring Initiative with the goal of increasing veteran new hires from 6 percent to 9 percent over the next two years. Veterans hired by the agency would increase by 50 percent with this initiative.
The IHS will recruit veterans by setting hiring goals, engaging in active outreach, and using existing and new partnerships to create additional career opportunities. Earlier this year, the IHS and the Department of Veterans Affairs (VA) signed a Memorandum of Understanding to assist veterans in finding employment and help achieve President Obama’s National Strategy to Hire More Veterans.
As part of its Veterans Hiring Initiative, the IHS will collaborate with the VA on federal recruitment events targeting veterans. Additionally, the IHS will partner with the Department of Defense on recruitment of separating active duty service members through the Transition Assistance Program and through marketing and media outreach campaigns. The IHS will also partner with tribes in recruitment outreach efforts targeted at tribal members who are active duty or veterans. Finally, the IHS is developing its own nationwide public service announcement radio and print campaign customized to markets with large populations of military personnel.
The agency website will be updated with more resources and information for veteran candidates, and the IHS will post recruitment information on the Native American Veterans website hosted by the VA. The IHS will also be interviewing veterans who have successfully transitioned from the military to the IHS or tribal positions and post these stories on IHS and partner organization websites.
The IHS, an agency in the U.S. Department of Health and Human Services, provides a comprehensive health service delivery system for approximately 2.1 million American Indians and Alaska Natives who are members of federally recognized tribes.
In wake of the 5 – 4 decision by the Supreme Court in Burwell v. Hobby Lobby issued June 30, political commentary on religious freedom, abortion rights, and the war on women has been endless.
Less talked about in the mainstream has been that the court used an Indian-centric law, the Religious Freedom Restoration Act (RFRA) of 1993, to help it come to its opinion, which said that some family-owned and other closely held businesses, like the Hobby Lobby craft store, are allowed to opt out of the federal Obamacare mandate requiring such companies to pay for contraceptives in health coverage for their workers.
As the conservative justices wrote for the majority, the RFRA was enacted by Congress in 1993 in response to a 1990 high court decision, Dept. of Human Resources of Ore. v. Smith, which found that a state could deny unemployment benefits to a person fired for using peyote, even if the drug was used as part of a religious ritual.
The Smith case came to fore after two members of the Native American Church were fired for ingesting peyote for sacramental purposes and then were later denied unemployment benefits by the state of Oregon because consuming peyote was against the law there.
Enter Congress and its RFRA, aimed at preventing such religious-based discrimination. It passed with almost unanimous support in both the House and Senate, and President Bill Clinton signed it into law in 1993.
One year later, the House Subcommittee on Native American Affairs and the Senate Committee on Indian Affairs further dealt with the narrow issue of Smith on the specific issue of the sacramental use of peyote.
“We amended the American Indian Religious Freedom Act [AIRFA] in 1994 to allow for the sacramental use of peyote,” says Tadd Johnson, former director of the subcommittee and now the head of the American Indian studies department at the University of Minnesota at Duluth. “President Clinton signed it into law. This AIRFA amendment on peyote still stands.”
Using Peyote to Prevent Birth Control
Fast forward 20 years: The owners of Hobby Lobby and two other closely held for-profit corporations who believe life begins at conception and that it would violate their Christian beliefs to pay for birth control, sued the federal government under the auspices of RFRA.
Writing for the majority, Justice Samuel Alito agreed with their argument: “As applied to closely held corporations, the [Department of Health and Human Services] regulations imposing the contraceptive mandate [of Obamacare] violate RFRA,” he wrote. “RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel.”
The high court further offered that the federal government could find ways to pay for birth control coverage if it wishes to do so.
And that is how a law rooted in protecting Indian religious freedom was successfully used by major companies to shield them from having to pay for birth control for employees covered under the companies’ health plans.
Say What?
It was a shocking development to many Indian-focused legal experts who were working in the trenches during the peyote-based foundations of RFRA, and who have since seen that very law applied by the federal courts in ways that they feel are unjust toward American Indian religious practices involving sacred sites.
Stephen Pevar, a lawyer with the American Civil Liberties Union (ACLU) who has long argued in favor of protections for Indian religious practices, said he never envisioned that the RFRA would be used for such a purpose. “[I]t never occurred to me,” he said. “I doubt if it occurred to anyone.”
Pevar followed the drafting of the RFRA and early Indian advocacy for it by respected Native American legal scholars including Jack Trope, director of the Association on American Indian Affairs, and Walter Echo-Hawk.
Trope, too, was surprised to see the RFRA used in such a manner. “I can’t say that I ever really thought about the issue of for profit corporations utilizing RFRA until these cases came up,” he says.
Using RFRA Against Indians & Women
In 1997, Indian-focused legal advocates were disturbed to see the RFRA watered down by the Supreme Court, which ruled then in City of Boerne v. Flores that the law was applicable to the federal government but not to the states. Thus, tribal citizens who have their religious freedoms usurped by states, as happened in the original Smith Peyote case, are left unprotected by federal law.
Of more concern to such advocates is that the high court has never used the RFRA to do what it was intended to do: protect Indian religious freedoms. Yet now, it is using the law to limit the rights of women who want to use their healthcare coverage to buy birth control.
Pevar sees a parallel between how the high court treats Indians and women. “The Supreme Court, with rare exceptions, has been insensitive to women’s issues, and the Court’s record is even worse—far worse—on Indian issues,” he says. “In the last 30 years, Indians and tribes have lost at least 75 percent of their cases in the Supreme Court. The Supreme Court is asked to review some 7,000 cases a year but selects fewer than 100.
“The fact that the Court selects so many Indian cases and then rules against Indians in those cases suggests a desire to harm Indian interests.”
A Silver Lining for Sacred Sites?
If there is any good news for Indians to come from the case, Trope says that it provides an outline to allow Native-focused lawyers to strengthen their arguments in the federal courts regarding the use of RFRA to protect sacred sites in future cases.
Trope notes that in the recent Navajo Nation case before the Ninth Circuit focused on the tribe’s contention that the San Francisco Peaks are sacred to the tribe and thus corporate development on them should be limited, “one of the main arguments made against us was that RFRA was meant to turn back the clock to the day before the Smith decision in 1990.”
Such rationale meant that decisions like the Supreme Court’s in the 1988 Lyng case – which interpreted the First Amendment in a way that did not provide protection to Indian sacred sites – would still be good law, despite the existence of RFRA. (The Lyng case centered on an American Indian religious-based challenge to the development of a road for timber harvesting.)
But “[t]he court in the Hobby Lobby case rejected the idea that the intent of RFRA was only to restore the law as it was in 1990 before Smith,” Trope says. “Instead, the court essentially held that RFRA provides broader protection than was provided by the First Amendment prior to the Smith case.”
Because the application of RFRA to Native sacred sites has been unresolved to date – notwithstanding the Ninth Circuit’s toiling in Navajo Nation’s San Francisco Peaks case – Trope finds in the latest decision a reason to be hopeful.
“[O]nly time will tell whether the interpretation of RFRA in Hobby Lobby turns out to be helpful in future sacred sites cases or whether courts will continue to find ways to reject Indian religious freedom claims,” says Trope.
In this June 23, 2011, file photo, Chief Judge Richard F. Cebull makes a speech during a naturalization ceremony at the federal courthouse in Billings, Mont. (AP Photo/Billings Gazette, James Woodcock, File)
By MATTHEW BROWN, Associated Press
BILLINGS, Mont. (AP) — A group of American Indians wants a court to preserve and eventually release an investigative file containing inappropriate emails sent by a federal judge, including a racist message involving President Barack Obama.
Two Indian advocacy groups from Montana and South Dakota and a member of the Crow tribe filed a petition in U.S. District Court in California asking for the file to be preserved as evidence.
The groups want to know if Chief District Judge Richard Cebull made biased decisions from the bench. Their next step will be to file a lawsuit seeking public release of the documents, plaintiffs’ attorney Lawrence Organ said Wednesday.
Cebull was investigated after forwarding a racist message involving Obama. A judicial review panel found he sent hundreds of emails from his federal account that showed disdain for blacks, Indians, Hispanics, women, certain religions and others. He was publicly reprimanded and retired last year.
The investigation found no evidence of bias in his rulings. Organ said the only way to know that for sure is through the release of the emails.
“The fundamental principles of our entire legal system fall apart if a judge doesn’t come in with a neutral position,” Organ said. “If there are other decision makers involved, we’re not asking for their private email accounts. All we want to see are the emails accounts they used as government officials.”
The 9th U.S. Circuit Court of Appeals has said its file on Cebull is confidential.
Plaintiffs in the case are South Dakota-based advocacy group Four Directions, Montana-based Indian People’s Action, and Sara Plains Feather, a member of southeastern Montana’s Crow Tribe.
Four Directions was involved in a voting rights lawsuit that sought to force several Montana counties to establish satellite voting districts on reservations. Cebull ruled against the Indian plaintiffs in that case, which was later settled after the 9th Circuit overturned his ruling.
Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported the judge forwarded an email in February 2012 that included a joke about bestiality and Obama’s mother. Cebull apologized to Obama after the contents of that email were published.
The investigation looked at four years of Cebull’s personal correspondence sent from his official email account.
Cebull told the 9th Circuit panel that his “public shaming has been a life-altering experience.” Nominated by former President George W. Bush, he received his commission in 2001 and served as chief judge of the District of Montana from 2008 until 2013.
Named as defendants in the case were the office of 9th Circuit Executive Cathy Catterson and the Committee on Judicial Conduct of the Judicial Conference of the United States.
Ninth Circuit spokesman David Madden said he could not comment on the pending petition.
The plaintiffs attempted in May to directly petition the 9th Circuit. That was rejected by the court’s clerk, who said the petition needed to be filed first at the district court level.
A Northwest lawmaker’s battle against toxic algae blooms won the support of President Barack Obama Monday, when he signed into law a bill aimed at controlling such outbreaks.
Oregon congresswoman Suzanne Bonamici and Florida Sen. Bill Nelson co-sponsored the bill, which authorizes $82 million dollars for new research meant to control toxic algae blooms nationwide.
The advocacy group Ocean Champions applauded the effort from Congress and the White House. The group’s president, David Wilmot, issued a statement saying it costs the nation about $100 million dollars a year to deal with toxic algal blooms.
Bonamici said during her floor testimony in the House that she got behind the legislation after learning that toxic algal blooms were leading to yearly die-offs of Dungeness crabs in Oregon. She also said climate change was making the problem worse.
“This will become increasingly important as coastal populations increase and changes in the environment, such as warmer water temperatures, have the potential to alter the growth, toxicity and geographic distribution of algal blooms,” Bonamici told her House colleagues.
Northwest waters have been hit by a number of these outbreaks in recent years. Toxic algae has contaminated Washington’s Puget Sound and several lakes in Oregon, including Fern Ridge and Lost Creek reservoirs.
