YAKIMA, Wash. — Federal officials have accepted a petition that will give Yakama Nation authorities exclusive jurisdiction for certain cases on tribal land, and will have the State of Washington withdraw from any authority.
The United States Department of the Interior said in a news release Monday that ‘retrocession’ has been granted, and tribal police and courts will have full authority over civil and criminal cases involving members of the nation.
The federal government will retain their authority over the Nation, and Yakama Nation authority will remain the same. The removal of state authority over tribal persons is the only change to come from this decision.
The state will keep jurisdiction over those involving non-tribal defendants, plaintiffs or victims.
As part of the agreement the federal Office of Justice Services (OJS) assessed the Yakama Nation’s court system and offered recommendations for improvements to their tribal court operations, as well as helped develop a 3-5 year plan.
The Yakama Nation also created ten new police officer positions, in preparation of having more cases to handle.
OJS also donated $149,000 to the help bolster the tribal court system by improving the court’s infrastructure, increase pay for law-trained judges, hire a legal assistant and court administrator, and provide training to tribal judges, prosecutors, and defenders on issues like domestic violence, child abuse, and neglect.
Washington lawmakers established a process for tribes to ask for exclusive jurisdiction in 2012. Washington has become the sixteenth state to rescind its authority over tribal court proceedings involving only tribal members.
Governor Jay Inslee agreed to the Yakama Nation’s petition last year. The change will officially take effect in April.
The Nooksack River Casino’s days could be numbered, pending a ruling in Whatcom County Superior Court later this year.
Since at least 2011, the Nooksack Business Corporation an entity owned by the Nooksack Indian Tribe, has tried to shirk its responsibility to pay back about $15 million in loans it obtained from now-defunct BankFirst in 2006. The corporation, owner and operator of Nooksack River Casino, got the loan to pay off some debt and renovate its Deming casino.
The corporation made payments for about a year before it went into default, kicking off the first of three agreements it would make with Outsource Services Management, a loan servicing company. After the casino failed to make payments under each agreement, Outsource sued for breach of contract in Whatcom County Superior Court.
Though the tribe agreed it had waived its sovereign immunity, it tried to argue the Superior Court didn’t have jurisdiction over the case, and moved for dismissal.
After the case made its way to the Washington State Supreme Court, it was decided in August 2014 that the tribe could not claim its sovereignty trumped the terms of the loan contract, and the case was sent back to Superior Court.
On Friday, April 17, Whatcom County Superior Court Judge Deborra Garrett heard from lawyers for both sides.
Lawyer Jerome Miranowski argued on behalf of Outsource, asking for a summary judgment of $20.7 million in past-due loan payments, fees, and interest. Lawyer Connie Sue Martin, on behalf of the tribal corporation, argued that Outsource had failed to show the casino had actually made any money on top of what it deemed necessary for daily operations, and therefore had failed to show that anything was owed under the terms of the loan.
But Outsource argued that there were agreed-upon base payments to be made each month under the loan agreement, and then on top of that, certain profits would be added to those payments.
In court documents, the tribe alleged that even without making payments on the loan since 2010, the casino had operated at a loss and is currently $2 million in the hole, aside from the loan. The tribal corporation asked for a ruling on what the consequences of closing its casino would be.
“It is an inescapable truth that the River will never, ever generate sufficient revenue to repay the original balance of the loan, much less the additional almost $6 million OSM contends has accrued in penalties, interest and fees,” the corporation’s court documents state. “It cannot be questioned that OSM would not have the right or authority to compel NBC to continue operating the casino simply to pay a judgment to OSM.”
But Miranowski said that was not the issue.
“The issue is whether some money will be generated, to pay some part of the debt, at some time,” he said in court Friday afternoon.
The loan stipulates that Outsource could go after gaming machines and the furnishings inside the casino, along with enterprise accounts, but otherwise is limited. Likewise, the corporation argued that if the casino were to close tomorrow, Outsource could go only after those few items.
“If we close the casino and turn over all the property, then it’s done,” Martin said.
Miranowski explained that the lender wouldn’t want the casino to close.
“The situation, your honor, with lenders to Indian casinos is this: Lenders have very limited remedies, no mortgage on the property, they can’t manage the casino itself, so it’s a symbiotic relationship where essentially the lender and NBC have to get along, because the lender has sort of an ultimate ability to effect whether the casino operates,” Miranowski said. “It doesn’t want to do anything to damage the casino, but if they have no other remedy they have to consider that.”
In 2012 when Outsource tried to get the tribe’s other casino, Northwood, which was then Northern Crossings, to cough up roughly $26 million it had borrowed from a different bank to design and build the casino, the tribe dissolved its ownership entity Nooksack Business Corp. II and transferred all that casino’s assets to another entity, court documents allege.
“That’s why we’re pushing for a judgment, so we get protections,” Miranowski argued. “The tribe was very bold to simply dissolve the Crossings corporate entity and transfer to another one not subject to the judgment.”
Garrett said she read the loan agreement as prohibiting that, but opted to enter an order Friday or within a week that would prohibit the tribal corporation from transferring “all or substantially all of its assets to another entity.” The parties were to work out the exact order and get back to the judge.
Along similar lines, Martin said that in the Northwood case, Outsource had wrongfully garnished accounts not belonging to Nooksack Business Corp. II, but belonging to the River casino, and some of the tribe’s other properties.
“We’re trying to prevent that,” Martin said.
So Garrett also said Outsource was not allowed to try to collect money until a judgment is made.
Both sides are expected back in Garrett’s courtroom in May or June, when a judgment could be issued.
Read more here: http://www.bellinghamherald.com/2015/04/17/4247084_lawyer-nooksack-river-casino-unable.html?rh=1#storylink=cpy
New York Court of Appeals says local communities can ban controversial oil and gas drilling methods. such as fracking.
Perforating tools, used to create fractures in the rock, are lowered into one of six wells during a roughly two-week hydraulic fracturing operation at an Encana Corp. well pad near Mead, Colo. (AP/Brennan Linsley)
In a victory for fracking opponents, towns in New York today won the right to ban oil and gas production operations from their communities. The ruling may have widespread effects on the drilling industry as towns continue to file moratoriums on the environmentally harmful process.
The decision sets a precedent for environmental activists in New York as more than 170 of the state’s other municipalities wait for legal action to be taken on anti-fracking measures in their communities as well. Towns in Colorado, Ohio, California, Pennsylvania and Texas are also beginning to pursue oil and gas production bans, public interest law firm Earthjustice reports.
The New York Court of Appeals ruled 5-2 that the communities of Dryden and Middlefield can use zoning laws to prohibit heavy industry within municipal borders. The decision rested in large part on preserving the quality of life and “small town character” of both towns, which are situated in rural areas of New York and have not been historically associated with the oil and gas industry.
Industrialization, particularly fracking, would “irreversibly overwhelm” the rural character of these communities, the court stated.
The seven-judge panel said that its ruling was not a statement on the safety of the controversial practice of fracking, but about the division of state and local government power.
“These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits,” Associate Judge Victoria Graffeo wrote for the majority opinion.
“These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities,” she said.
Still, many activist groups see the decision as a victory for the environment.
“The decision by the Court of Appeals has settled the matter once and for all across New York State and has sent a firm message to the oil and gas industry,” said Earthjustice managing attorney Deborah Goldberg.
Dryden recently garnered the attention of the natural gas industry for its proximity to the Marcellus Shale, a methane-heavy formation that covers large areas of land in New York, Pennsylvania, Ohio and West Virginia. Middlefield, while not in shale territory, is primarily an agricultural community that was recently evaluated as a potential natural gas resource.
John McMillan/NOAA Northwest Fisheries Science Center A wild steelhead, relocated to the Little River, a tributary of the Elwha River, and tagged so it can be tracked. Notice the radio tag.
SAN FRANCISCO –– A confederacy of wild-fish advocates has asked a federal appeals court to stop the release by federal agencies of hatchery steelhead into the Elwha River, saying they could damage wild populations.
The appeal was filed after the advocacy groups failed to stop a release of hatchery salmon last week.
Lower Elwha Klallam tribal hatchery managers released 77,000 coho smolt into the river, beginning the process just before a judge ruled that federal agencies and conservation groups should discuss how many smolt should be released.
Last Wednesday, U.S. District Court Judge Benjamin Settle rejected seven of the advocacy group’s eight motions to stop a hatchery plan that had been developed by several federal agencies to help Elwha River fish runs recover after the removal of the Elwha and Glines Canyon dams.
Settle did rule that federal agencies must review their plans, saying they had not adequately studied the effects of large-scale release of hatchery-reared salmon on wild-fish populations.
Settle ordered the two sides to confer to find a compromise between the government’s plan to release 175,000 hatchery steelhead and 425,000 hatchery coho and the conservation groups’ proposed release of 50,000 of each species before the spring fish runs begin, and to establish a plan for the fall runs.
According to emails filed in U.S. District Court on Thursday and Friday of last week, attorneys for the conservation groups were informed of the hatchery coho release when they attempted to set up a meeting to discuss release numbers.
Court filings showed that tribal fisheries managers began releasing coho smolt March 24 and finished March 27.
Since then, conservation groups Wild Fish Conservancy, Conservation Angler, Federation of Fly Fishers Steelhead Committee and Wild Steelhead Coalition have asked the U.S. 9th District Court of Appeals to issue an emergency injunction to stop the planting of steelhead, a large seagoing trout, from a $16.5 million hatchery built to stock the river.
Settle rejected such an injunction March 12.
“Hatchery fish, even those from wild parents, are far less successful surviving and reproducing over time than wild fish,” said Kurt Beardslee, executive director of the Duvall-based Wild Fish Conservancy.
“Left to their own devices, wild fish are already making it through the sediment plume and reaching spawning grounds.”
The release of the coho was “unfortunate,” Beardslee said, adding that the groups now are focused on the steelhead appeal.
Attorneys for several federal agencies and the Lower Elwha Klallam tribe told the court in responses filed Monday that wild species of Elwha River fish could die off without the introduction of hatchery fish.
“Numerous reviews and a broad consensus of scientists have found that hatcheries are necessary during dam removal to prevent the wild Elwha salmon and steelhead populations from being extinguished by sediment as the dams come down,” said Jim Milbury, spokesman for the National Oceanic and Atmospheric Administration’s West Coast fisheries program.
The groups’ original lawsuit, filed in February 2012, named the federal National Park Service, Department of Commerce, Department of the Interior, NOAA’s Fisheries Service and U.S. Fish and Wildlife Service, saying they should stop planting fish reared in the hatchery.
The groups’ claim against the tribe was dismissed in February 2013.
As part of the largest dam-removal project in U.S. history, federal and tribal agencies developed a plan to restore the fish runs and built a $16.4 million hatchery west of Port Angeles.
The Elwha River once produced 400,000 spawning fish, a number that declined to fewer than 3,000 after the Elwha and Glines Canyon dams were built without fish passage structures in the early 20th century.
In a declaration to U.S. District Court filed Friday, Larry Ward, manager of the tribe’s hatchery, said the coho released in March were “of optimal size and coloration for release” last week. He added that conditions of the river were favorable.
Lower Elwha Klallam attorney Steve Suagee said the goal of the hatchery is to provide a “gene bank” for the wild species.
“The fish that are being produced in the hatchery are all native genetically to the Elwha,” Suagee said. “If we don’t release the smolts and the wild fish are killed by the sediment, then you’ve lost the wild fish.”
Suagee said Tuesday a decision on the injunction could come as soon as next week.
Suagee said the fish were released then to avoid putting them in the river while it was filled with sediment that had built up behind the dams and is now being carried down the river, what he called “the single biggest threat to the fish.”
“For the coho, everything came together last week,” Suagee said. “It was time to go.”
Lawsuit questions whether transport is more good than harm
By George Plaven, East Oregonian
PENDLETON, Ore. — A third and final shipment of massive oil refinery equipment is bound for Canada after departing the Port of Umatilla earlier this week. But while the convoy lumbers south on Highway 395, opponents representing environmental and tribal concerns filed a petition in Marion County Circuit Court that would keep future loads off the road without increased public input.
Petitioners Peter Goodman, with the nonprofit organization Act on Climate, and Carl Sampson, headman-chief of the Walla Walla Tribe, allege the Oregon Department of Transportation didn’t properly consider public interest when permitting the loads hauled by Hillsboro trucking company Omega Morgan.
State law allows ODOT to issue variance permits for oversize loads “if it determines the public interests will be served.” Yet the department declined to hold public hearings, provide notice or allow any opportunity for comments, according to the petition.
If the petitioners succeed, a judge would order ODOT to set aside permits for megaloads until determining actual public interest. Goodman and Sampson are also asking for a permanent injunction against new variance permits until the department establishes rules for public involvement.
Patrick Cooney, ODOT communications director, did not discuss litigation but said the agency issues 100,000 permits every year. In broad terms, public interest is served by allowing movement of freight and commerce across the state, he said.
“We do that in such a manner that there’s no damage caused to the system by oversize loads,” Cooney said.
The petitioners, however, claim it is not enough to find something in the public interest by only examining potential damage to highways. It requires that, overall, more good than harm is done as a result of the loads.
Megaloads will eventually supply the tar sands of Alberta, Canada with machinery necessary to extract and ship oil, Goodman said, leading to global climate change.
“The cargo is so damaging to the environment,” he said. “The end result for climate change is really disastrous.”
At approximately 400 feet long, 22 feet wide and weighing more than 900,000 pounds, the megaloads take up both lanes on two-lane highways and are too big to fit under interstate bridges. The route being used now instead runs indirectly south into the John Day Valley and east toward Homedale, Idaho, before cutting back north through Montana and into Canada.
The loads travel approximately 35 mph, and are not permitted to drive in hazardous weather. Numerous delays have already slowed the first two shipments, which Omega Morgan began moving in December.
Protesters also held several demonstrations throughout the region, resulting in some arrests.
In addition to increased carbon emissions from tar sands oil, members of the Confederated Tribes of the Umatilla Indian Reservation oppose megaloads on their ceded territory.
Sampson — known ceremonially in the Walla Walla Tribe as Peo Peo Mox Mox, or Chief Yellowbird — asked how decades of government-to-government relations can simply be ignored to accommodate these loads in his affidavit to the court.
“Help me understand why we, the people of this land, have not had voice on such an important matter,” Sampson said. “The simple passage of these loads alone is an affront to the traditional values and ecological integrity of the lands I have been stood up by my people to protect. We have a strong tribal culture that will suffer irreparable damage if the megaload is not stopped.”
Omega Morgan project manager Erik Zander has said there is no plan to use the route as a long-term industrial corridor through Oregon. Goodman said they remain concerned about the possibility, especially as oil sands deposits are developed in Utah.
That’s why the public needs a voice in the ODOT permitting process, he said.
“We feel the citizens of Oregon should have a say,” Goodman said. “It is not worth risking planetary climate chaos for profit for relatively few people.”
_ Read more on eastoregonian.com. Contact George Plaven at gplaven@eastoregonian.com or 541-564-4547.
During a impersonation of President George Bush Sr. on Saturday Night Live some years ago, comedian Dana Carvey made the following joke: “We have learned well the simple lesson of Vietnam: Stay out of Vietnam!”
Indian law experts are giving the same advice about United States courts, but it’s no laughing matter.
Since John Roberts was made chief justice of the U.S. Supreme Court in 2006, Guest said, “We’ve had one win and nine losses in front of the Roberts court. And our message as we sat in Reno at the mid-year [NCAI] meeting and we‘d just been handed the decision in the Baby Veronica case – that message is still true here today: Stay out of the courts!”
“The federal courts are not your friends anymore,” Guest continued. The majority of judges sitting on the lower federal courts were appointed by Bush II – very conservative, have no understanding of Indian country at all. No interest in your issues. And that can be said of the Roberts court as well. It’s a very difficult place for tribes to secure victories.
The NARF still wins about 50 percent of its cases in federal courts, Guest said, but the challenge is in determining which cases will go up to the U.S. Supreme Court.“There are a lot of cases to keep track of that may be headed toward the Supreme Court and that’s one of the things the Tribal Supreme Court Project does,” Echohawk said. The project works with the tribal parties involved to brief the issues and bring all the experts – Indian law attorneys, Supreme Court practitioners – together in the hope of changing the losing record, he said.
There was no reason for the Supreme Court to grant review in the Adoptive Couple v. Baby Girl case, Guest pointed out. Although he did not claim outright that the high court’s decision to grant cert was politically influenced, his descriptions of the powerful players brought in by the plaintiffs suggest that the fix was in for that to happen. “The petitioners secured the assistance of a Supreme Court practitioner, Lisa Blatt, who wrote a brilliant amicus brief. She brought in Paul Clement, the former solicitor general of the United States, along with Gregory Garre, another solicitor general of the U.S. under the Bush administration. And they wrote amicus briefs on behalf of the adoptive couple, on behalf of the baby girl, on behalf of the birth mother, all indicating reasons why the court should grant review.”
Foremost among the amici’s strategies was to use the scare tactic of promoting the idea that the Indian Child Welfare Act, which seeks to protect Indian children by keeping them with Indian families, was unconstitutional – that Indians do not deserve special treatment or protections under federal law, Guest said. “And as soon as they got review granted they backed away from that position. But it was a case that should never have gone to the Supreme Court of the United States. Having those nine justices decide whether Baby Girl belongs with father or with adoptive couple in South Carolina – why is that an issue for the U.S. Supreme Court?”
The same goes for Michigan v. Bay Mills Community, Guest said. The U.S. Supreme Court will decide whether a state can challenge a tribe’s right to open a casino in this case, which involves a three-year old conflict over an off reservation tribal casino in northern Michigan. The high court will not rule on whether the off reservation casino is legal; it will decide whether the state has the legal standing to challenge a tribe’s right to open the casino. The ruling can potentially impact tribal sovereignty throughout Indian country and be as devastating as the Supreme Court’s 2009 Carcieri ruling, which limited the U.S. Department of the Interior’s ability to take lands into trust for tribes recognized after 1934, Guest said.
“When you have states or local governments on one side [of a case] and Indian tribes or tribal interests on the other side, [the Supreme Court is] interested,” Guest said. “They’re interested in being able to define what state authority is going to be over Indian activities.”
The Tribal Supreme Court Project attorneys are asking tribes not to file individual briefs in the Bay Mills case but rather to sign on to the project’s amicus brief on the “strength in numbers” theory. For more information contact Guest at Richard.g@narf.org or Dossett at jdossett@ncai.org.
NESPELEM, Wash. (AP) – A tribal court will hear a civil complaint Wednesday claiming the Colville Confederated Tribes should have distributed to tribal members all of a $193 million settlement with the U.S. government.
The Wenatchee World reports that tribal member Yvonne L. Swan filed the complaint in May on behalf of herself and 2,700 tribal members who had petitioned to have the entire settlement distributed to tribal members.
The money is part of a $1 billion settlement from the U.S. government with American Indian tribes whose trust lands were mismanaged by the Bureau of Indian Affairs.
The tribe’s Business Council pledged to spend half of the settlement on senior centers, health clinics, and other programs. The council distributed the rest in two separate payments, giving about $10,000 to each of about 9,500 members.
A Chilean appeals court ruled against the world’s largest gold mining company on Monday, favoring Chilean Indians who accuse Barrick Gold Corp. of contaminating their water downstream and creating more doubts about the future of the world’s highest gold mine.
The judges in the northern city of Copiapo unanimously ruled that Barrick must keep all its environmental promises before moving forward with construction of the Pascua-Lama mine at the very top of Chile’s mountainous border with Argentina. They also said Barrick must monitor the condition of three glaciers next to the mine project.
Chile’s environmental watchdog agency already ordered construction stopped until Barrick builds systems to keep the mine from contaminating the watershed below, and Barrick executives have publicly committed the company to fulfilling the requirements of its environmental permit.
But Monday’s ruling goes beyond that by demanding repairs to damage in the watershed below, by calling for increased monitoring of the impact on surrounding glaciers, and by opening up the project’s environmental license for review. The judges found no evidence of contamination due to mine construction, but said the watershed could face “imminent danger” without more environmental protections.Attorney Lorenzo Soto, who represents about 550 Diaguita Indians in the case, said this review might even kill the $8.5 billion mine, which has been under development for more than seven years. “The project’s conditions aren’t the same as they were in 2006. New conditions could be established, and we don’t discard any scenario, including the closing of the project,” Soto said.Scarce river water is vital to life in Chile’s Atacama Desert, and the Diaguitas fear that the Pascua-Lama mine above them is ruining their resource.Barrick acknowledged the ruling in a statement late Monday that did not say whether or not the company would appeal.
The company said it “is committed to diligently working to complete all of the projects the regulatory requirements” and is working with Chile’s environmental regulator to construct a water management system by 2014, after which time it expects to renew construction on the actual mine.
Still, the ruling could mean more lengthy delays for the binational mine, which was initially expected to be producing gold and silver already. While Argentine officials are eager to keep building, most of the ore is buried on the Chilean side. On the Argentine side, where Barrick fuels a third of San Juan province’s economy, officials have been watching closely and trying to figure out how to preserve thousands of jobs.
Barrick’s stock traded up slightly Monday at $15 a share after reaching near-historic lows due to falling gold prices and Pascua-Lama setbacks.
After getting another rebuff in tribal court, Nooksack Indians facing loss of their tribal membership have filed a new lawsuit in U.S. District Court in Seattle.
Seattle Attorney Gabriel Galanda filed the federal suit Monday, June 17, on behalf of Rudy St. Germain and Michelle Roberts, two tribal council members who are among the 306 who could be stripped of their tribal membership because the validity of their Nooksack lineage has been called into question.
The suit declares that the move to purge the 306 is based on “racial animus,” because all 306 are part-Filipino. That charge is hotly denied by Nooksack Tribal Chairman Bob Kelly and his supporters, who have noted that many other Nooksacks have Filipino ancestors but can demonstrate their Nooksack lineage in a way that meets the requirements of tribal law.
But as Galanda and his clients see it, Kelly and the other five members of the council are in the process of changing that law to keep them out.
The Bureau of Indian Affairs of the U.S. Department of the Interior is currently supervising a mail-in constitutional amendment election that could make it more difficult to qualify for Nooksack membership. Kelly and his five supporters on the council have asked voters to repeal a constitutional provision that makes tribal membership available to anyone who has at least one-fourth Indian blood, plus Nooksack ancestry “to any degree.”
That election is scheduled to conclude June 21.
Galanda’s lawsuit argues that repeal of that provision of the tribal constitution would make it more difficult for his clients and other challenged Nooksacks to re-enroll in the tribe if the current effort to strip them of membership succeeds.
That, the suit contends, denies the affected Nooksacks the right to equal protection under law and is therefore a violation of the Indian Civil Rights Act. Galanda wants the judge to order federal officials to halt the constitutional election.
All of the 306 facing loss of membership are descendants of the late Annie George. Tribal officials contend that George did not qualify as Nooksack under tribal law, because her name does not appear on a tribal census of 1942 or on the list of those who got an allotment of tribal lands. Galanda and his clients have submitted other records and letters from anthropologists indicating that Annie George was, in fact, a Nooksack.
Also on Monday, Nooksack Court Tribal Chief Judge Rachel Montoya repeated the legal arguments of her earlier rulings and refused to stop the constitutional election. She found that a majority of the tribal council was acting within its proper authority in launching the constitutional election to change the membership rules.
The 306 challenged Nooksacks face loss of housing and medical benefits, tribal hunting and fishing rights, tribal jobs and other benefits if they are pushed out of the 2,000-member tribe.
Read more here: http://www.bellinghamherald.com/2013/06/17/3056967/nooksack-tribal-dispute-heads.html#storylink=cpy
