Kevin Washburn Archives

Goldwater Institute challenges Indian Child Welfare Act

Suzette Brewer, Indian Country Today Media Network

PHOENIX, Ariz. – On July 7, the Phoenix, Arizona-based Goldwater Institute announced the filing of A.D. v. Washburn in the United States District Court for the District of Arizona, a class-action lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) based on its contention that the federal legislation “discriminates against Native children.”

Secretary of the Interior Sally Jewell, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn, and Gregory McKay, director of the Arizona Department of Child Safety (DCS) were named as defendants in the case.

The suit is being filed on behalf of “all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, pre-adoptive or prospective adoptive parents of these children,” according to the organization’s press release. “This case will not impact current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction; it will change the law so that state courts and agencies cannot discriminate against Native American children.”

Washburn marks the third major legal challenge to the 38-year-old federal law since the Bureau of Indian Affairs published new ICWA guidelines in the Federal Registry in February of this year, followed by the agency’s declared intention to seek a federal rule, which would make the statute more enforceable on state courts and social service agencies.

“While we have not yet reviewed the filing, we understand that a lawsuit challenging ICWA was filed yesterday. In matters in litigation, we will speak primarily through our briefs in court, but I want to assure the public that we will defend the Indian Child Welfare Act,” said BIA assistant secretary Washburn in a written statement. “Nearly 40 years ago, Congress determined that Indian children were being treated unfairly in the context of foster care and adoption. Congress determined that ‘an alarmingly high percentage of [Indian] children’ were subjected to ‘unwarranted’ removal from their homes and that a federal law was needed to protect Indian children. This law has been an important feature of the legal landscape for many years now and we firmly believe that the protection of the best interests of Indian children continues to be important today.”

According to the suit, the plaintiffs are seeking declaratory and injunctive relief against “certain provisions of ICWA and the accompanying BIA guidelines” on behalf of “A.D.,” a 10-month-old baby girl who is an enrolled member of the Gila River Indian Community. Another child plaintiff is a 4-year-old boy who is a member or eligible for membership in the Navajo Nation. The birth parents of both children have had their parental rights terminated by the state and both children reside off-reservation in Arizona. The Navajo Nation, as outlined in the brief, has repeatedly attempted to find ICWA-compliant homes for the boy – all of which were rejected by the state as “inappropriate” placements. If not for the Indian Child Welfare Act, according to the brief, the boy would already be in a permanent home under “race-neutral” Arizona law.

“When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest,” said Darcy Olsen, president of the Goldwater Institute in the organization’s press release. “We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children – the right to be placed in a safe home based on their best interests, not based on their race.”

But the original author of the Indian Child Welfare Act, retired South Dakota Sen. James Abourezk, took the Goldwater Institute to task for its attempt to overturn one of his signature legislative achievements during his time in the United States Senate. Ironically, Abourezk’s late friend and colleague Sen. Barry Goldwater actually voted in favor of ICWA when it was approved by the Senate in 1977.

“I knew Barry Goldwater – he was my friend and often came to me for advice on most tribal matters,” said Abourezk from his home in Sioux Falls, South Dakota. “I wish he were alive to see this travesty because he would never approve of it and you can quote me on that and make sure you emphasize the word ‘never.'”

Tribal leaders, their legal teams and ICWA advocates across the country seem universally opposed to the litigation. They view with skepticism adoption practices in the United States, and the economic factors and profits at play.

“The Native American Rights Fund is closely following the lawsuits filed in Virginia, Minnesota, and now Arizona,” said NARF staff attorney Matthew Newman. “What is abundantly clear is that these lawsuits are part of a coordinated, well-financed attack on the rights of tribal nations to protect their children. It is open season on the Indian Child Welfare Act.”

“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, staff attorney and adjunct professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”

Stephen Pevar, senior counsel for the American Civil Liberties Union, says the whole point of enacting ICWA was to end decades of unnecessary removals of Indian children from their homes and communities.

“Congress held years of hearings [before enacting ICWA] and many Indians who were victims of state foster care cases testified,” Pevar said. “Based on that testimony and other research, Congress found that it is in the best interests of Indian children to be raised in an Indian home except in extraordinary circumstances. Therefore, the Goldwater Institute is wrong in saying that Congress overlooked the ‘best interest’ standard. Instead, Congress accepted that standard and concluded that there’s a presumption that it’s in the best interest of Indian children to be raised in an Indian home. In addition, the Supreme Court has already rejected the notion that ICWA creates racial discrimination when it imposes minimum federal standards on state courts in their handling of Indian child custody cases.”

But ICWA has come under assault in courts all over the country in the last several months, say legal experts, in states unwilling to deviate from the “business-as-usual” approach, in which an average adoption can bring anywhere from $40,000 to 100,000 in fees and costs for private adoptions, depending on various factors, including living expenses for the birth mother.

In May, for example, Washington, D.C.-based attorneys Lori McGill and her husband, Matthew McGill, filed suit in federal court in Virginia seeking to challenge the new BIA guidelines which they believe impose “federalism” on state courts regarding the adoption of Indian children. Mrs. McGill, who played a key role in Adoptive Couple v. Baby Girl in 2013, told the National Law Journal in May that she gets emails on a weekly basis “from lawyers and adoptive parents telling me how ICWA is ripping their families apart.”

That same month, the Oklahoma Court of Civil Appeals openly dismissed the new BIA guidelines in a case involving a 4-year-old Cherokee girl who had been placed in a non-Indian foster home during emergency proceedings in 2013. At the time, an ICWA-compliant home was not available, though a year later the tribe filed a motion to transfer the girl to a Cherokee family that the tribe had located. In ordering the girl to stay with her foster parents over the tribe’s objection, the court’s contempt for the new guidelines was palpable.

“The BIA guidelines’ intentional disregard of these factors results in a one-size-fits-all approach to the placement of children with any tribal affiliation,” the judges wrote. “That result may bear little resemblance to what is really in the child’s best interests, despite the self-serving pronouncements of the BIA guidelines.”

In June, adoption attorneys representing tribal parents in Minnesota filed another suit, Doe v. Jesson, in which they argued the Minnesota Indian Family Protection Act (MIFPA) violates constitutional due process in requiring notice of adoptions to the tribe. However, the Minnesota District Court denied a preliminary injunction based on state law requiring notice to tribes. The Court ruled that the MIFPA posed no threat of irreparable harm to the two tribal plaintiffs in complying with notice requirements. The tribe in the case, the Mille Lacs Band of Ojibwe, have declined to intervene.

But the litigation, said observers, strikes at the heart of not only of the Indian Child Welfare Act, but also the keystone of tribal sovereignty as a whole – the right of Indian tribes to determine their own membership and raise their children in their home communities.

“Using tragic stories to try to destroy the constitutionality of ICWA is not appropriate. As we know from Morton v. Mancari, Native status is a political identity not racial or ethnic, so laws that give any type of Indian preference or preferential treatment are not in violation of the equal protection clause,” said Victoria Sweet, a program attorney for the Reno, Nevada-based National Council of Juvenile and Family Court Judges. “It’s ironic that [the Goldwater Institute] would argue that Native children get less protections when they actually get more and it is disingenuous to suggest otherwise when the reality is clearly the opposite. We are not yet at a point where the initial purpose of ICWA has disappeared. We still need this law. It still protects Native children.”

“It’s 38 years later and I still get mail from Indian people who tell me how important this legislation is,” Abourezk said. “The tribes need to mount a unified attack against this lawsuit because it’s good law and what they’re doing is wrong. It would be an enormous tragedy to see them overturn it.”

Approval given for gambling compacts with New Mexico tribes

SUSAN MONTOYA BRYAN, Associated Press

ALBUQUERQUE, N.M. (AP) — Gambling compacts negotiated by the state and a handful of American Indian tribes have cleared their final hurdle.

The U.S. Interior Department reviewed the compacts but took no action. Under federal law, the agreements are considered approved by the agency as long as they’re consistent with the Indian Gaming Regulatory Act.

The assistant secretary for Indian Affairs, Kevin Washburn, spelled out some concerns the department had with the compacts in a four-page letter sent Tuesday to Gov. Susana Martinez and tribal leaders.

Washburn pointed to an apparent increase in revenue sharing rates for some tribes, but he acknowledged that the agreements had the support of the tribes.

Under the compacts, the Navajo Nation, Jicarilla and Mescalero Apache nations and three pueblos can operate casinos for another two decades.

Connecticut presses BIA to scrap Indian recognition proposal

By Ana Radelat, The Connecticut Mirror

Washington — The administration of Gov. Dannel Malloy has asked the federal Bureau of Indian Affairs to scrap proposed rule changes the state believes could lead to recognition of additional Indian tribes in Connecticut.

The BIA has been considering the rule changes for months. The state says the changes could open the door to large land claims and expanded Indian gaming in Connecticut. Yet Kevin Washburn, Assistant Secretary of Indian Affairs, has said he’s determined to fix what he’s called a “broken” federal recognition process.

The federal tribal recognition rules in place require a tribe to prove its continuous community and political authority since first contact with European settlers. Washburn’s proposal would change that to allow a petitioning tribe to demonstrate it has maintained a state reservation since 1934. Washburn‘s new regulation would also allow tribes that have been denied recognition to apply again.

“The proposed rules represent a dramatic departure from the standards and process governing acknowledgment decisions for nearly 40 years,” Connecticut Attorney General George Jepsen said in comments filed before a midnight deadline Tuesday. “If adopted as proposed, petitioners could gain recognition in circumstances completely at odds with fundamental principles of tribal acknowledgement. These proposals…are unjustified and should be rejected.”

A new, final Indian recognition rule will be posted within 60 days. It could be modified again based on the comments of the Malloy administration and others, including Connecticut’s tribes.

Gov. Malloy, the Connecticut congressional delegation and most of the state’s political establishment, have pushed back harder than anyone on the proposed rules, even after the BIA changed them to include a provision aimed at blocking three tribes that have long sought recognition in Connecticut — the Eastern Pequots, the Schaghticokes and possibly the Golden Hill Paugussetts.

The BIA had given the Eastern Pequot and Schanghticoke tribes acknowledgement, then withdrew it after an appeal by the state.

At the behest of Connecticut officials, the proposed rules were modified so those who opposed the tribes’ recognition previously would have veto power over a new attempt at recognition.

That infuriated Connecticut’s tribes.

“The BIA failed to consider the long, oppressive history of the state of Connecticut,” wrote Kathleen Sebastian Dring, an elder of the Eastern Pequot Tribal Nation, in her comments to the agency.

Dring told the BIA that, “The third-party veto undermines the BIA’s attempt to create an equitable and objective process for the tribes” and was “imposed by the BIA after political pressure from Connecticut.”

“As citizens [Eastern Pequot tribal members] are entitled to the equal protection of laws in accordance to the U.S. Constitution,” Dring said.

Chief Richard Velky of the Schaghticoke Tribal Nation told the BIA that giving third parties the right to object to new petitions for federal acknowledgement “does not, I believe, comport with the due process and equal protection principles of our Constitution.”

“Nor does the U.S. Constitution provide that a state and its political subdivisions may exercise an absolute veto over the exercise of constitutional authority vested exclusively in the United States government,” Velky wrote.

Meanwhile, Jepsen said the veto provision isn’t a comprehensive enough protection to keep the Connecticut’s tribes from suing the state if it doesn’t consent to recognition, and “the outcome (of the litigation) is uncertain.”

Jepsen also said he is concerned the proposed regulations wouldn’t block “splinter groups” of Indian tribes from seeking recognition.

Under the proposed rules, the Schagticoke Indian Tribe, a group of Indians that rejected the leadership of the Schagticoke Indian Nation, might be able to apply for federal acknowledgement – and since they were never denied recognition, no veto provision would apply.

Jepsen also called the proposed elimination of the Board of Indian Appeals, which allowed Connecticut to challenge the Eastern Pequot and Schaghticoke recognitions “patently unfair.”

The BIA had granted a Malloy administration request for more time to submit its public comments. The deadline was pushed back from Aug. 1 to Sept. 30.

The entire Connecticut congressional delegation signed a letter that supported the administration’s objections to the proposed recognition rules.

“We…agree the process should be improved,” the letter said, but it recommended more transparency and perhaps a bigger budget, instead of “weakening the longstanding standards for federal recognition.”

The letter backed all of the Malloy administration’s objections and asked the BIA to eliminate the proposal that allowed rejected tribes to petition again for recognition, because the consent requirement or third-party veto, would be challenged in court.

“We note that at least one party is objecting to the consent requirement, contending it may be unconstitutional,” the lawmakers’ letter said.

In all, 255 comments were filed. Many came from tribes and most, like the comment from the National Congress of American Indians, supported Washburn’s efforts.

“Connecticut politicians and their special interests seek to derail justice for Native Americans,” said an unsigned comment. “Please don’t allow the process to become politicized by special interests BIA. Stick to what you believe is fair to Native American tribes.”

Tribes support changing feds’ recognition process

By PHILIP MARCELO, Associated Press

MASHPEE, Mass. (AP) – American Indians attending a Tuesday hearing at the Mashpee Wampanoag community center on Cape Cod said they support the federal government’s plan to make it easier for tribes to gain federal recognition.

But the tribal representatives, from New Jersey, Virginia, Missouri, New England and elsewhere, urged the U.S. Department of the Interior to go further.

They called for setting a time limit on the review process, which can sometimes take decades.

“There’s something wrong when a process takes more than a generation to complete,” said Cedric Cromwell, chairman of the tribal council for the Mashpee Wampanoags, which won federal recognition in 2007 after a 30-year quest.

Federal recognition brings tribes increased government benefits and special privileges, including seeking commercial ventures like building casinos and gambling facilities on sovereign lands.

Tribal leaders also strongly objected to a proposal they said effectively gives “veto power” to certain “third parties” when a tribe seeks to re-apply for recognition.

Dennis Jenkins, chairman of the Eastern Pequot Tribal Nation in Connecticut, said the provision would allow states, municipalities and other organizations that oppose tribal recognition to stand in the way of the federal decision-making process.

“It would be next to impossible for us to re-apply if this proposal goes through,” he said.

One attendee, meanwhile, suggested the proposed changes would “devalue” federal tribal recognition by setting the bar too low.

“The current process was not intended to create a tribal existence where none had existed,” said Michelle Littlefield, Taunton resident who has been an outspoken opponent of the Mashpee Wampanoags’ plan to build a $500 million resort casino in that city. “It is meant to protect the integrity of the historical Native American tribes that have an honored place in our nation’s history.”

The hearing was the last in a series of nationwide meetings on the proposal, and the only one held on the East Coast.

Assistant Secretary of Indian Affairs Kevin Washburn said the department believes it can make the tribal recognition process less costly and burdensome to tribes and more predictable and transparent without “sacrificing rigorousness.”

The Mashpee, who hosted the meeting, are among only 17 tribes that have been recognized by the Interior Department since the process was established 35 years ago.

The majority of the 566 federally-recognized tribes in the U.S. earned that status through an act of Congress.

The Interior Department proposes, among other things, lowering the threshold for tribes to demonstrate community and political authority.

Rather than from “first sustained contact” with non-Indians, tribes would need only to provide evidence dating back to 1934, which was the year Congress accepted the existence of tribes as political entities.

Washburn said that proposal, in particular, could help “level the playing field” among tribes.

Eastern tribes, he said, would otherwise need to provide a much more exhaustive historical record – sometimes dating as far back as 1789 – than their western counterparts.

“We’ve heard over and over that the process is broken,” Washburn said. “We’re going to do something.”

Descendants of Freedmen sue U.S. government

BY RYAN ABBOTT, Courthouse News Service

WASHINGTON – The U.S. government turned its back on the descendants of freed slaves of Native Americans, swindling them out of lucrative land royalties allotted to them as children, a class action claims in federal court.

Leatrice Tanner-Brown and the Harvest Institute Freedman Federation sued Secretary of the Interior Sally Jewel and Assistant Secretary of Indian Affairs Kevin Washburn, seeking an accounting of revenue from leases on land promised to children of Freedmen, who were liberated by citizens of the so-called “Five Civilized Indian Tribes” or Cherokee, Choctaw, Creek, Chickasaw and Seminole nations.

According to the complaint: “The Five Civilized Tribes allied themselves with the Confederacy during the Civil War and attempted to maintain slaves following the War. As a result of the Tribes’ disloyalty to the United States during the Civil War all territory owned by the Tribes was forfeited. The status of the Tribes was reestablished under treaties entered in 1866.”

Some of the forfeited land was allotted to the freed slaves and their descendants.

The Department of Interior in 1908 agreed to keep track of revenue from leases on land granted to Freedmen minors or their descendants.

“Notwithstanding demand from plaintiffs for an accounting of revenue from leases on restricted lands during the period that these lands were held by Freedmen minors and not subject to alienation, defendants have failed to provide the requested accounting,” the complaint states.

“Under the Act of May 27, 1908, restrictions against alienation of Freedmen allotments … were not removed. Accordingly, any royalties derived from leases on [Freedmen] allotments should have been accounted for by the Department of Interior under the terms of the Sections 2 and 6 of the 1908 Act,” according to the complaint. “These failures were not innocent. They were the result of a deliberate strategy to swindle land and money from Freedmen.”

The claims says many of these allotments were for oil-rich land, and the government allowed grafters and speculators “anxious to obtain oil-rich lands for little or no payment to allottees” to exploit the often unsophisticated and uneducated Freedmen.

According to the complaint, there were 23,405 Freedmen in 1914.

“Defendants breached their duty to avoid conflicts of interests and to monitor Freedmen allotments in favor of alienation of European settlers, Oklahoma statehood, and corporate interests,” the class claims.

They want an accounting of money collected from the allotted lands and declaration of the government’s fiduciary duties.

They are represented by Paul Robinson Jr. of Memphis, Tenn.

US Interior Dept. poised to let West Valley casino move forward

By Mike Sunnucks, Phoenix Business Journal

A controversial casino development in the West Valley is taking a big step forward.

The U.S. Department of the Interior is notifying Arizona lawmakers and other Native American communities that it is looking favorably on an effort by the Tohono O’odham Nation to take a parcel of land at 91st and Northern avenues into trust. The Southern Arizona tribe wants to develop a $500 million casino on the parcel.

This move sets the stage for full federal approval, according to an official familiar with the casino plans.

“The handwriting is on the wall,” the official said.

U.S. Department of the Interior Assistant Secretary of Indian Affairs Kevin Washburn told other tribes of his decision to approve the O’odham’s application for the land to be an extended part of their reservation.

This would propel the casino toward construction after a prolonged legal fight.

“Today’s ruling by the Department of the Interior allows the Nation to move another step closer to benefiting from the United States’ promise to the Nation that we would be able to replace our destroyed reservation lands. The Nation is eager to move forward to use our replacement land to create thousands of new jobs in the West Valley,” Tohono O’odham Nation Chairman Ned Norris, Jr. said in s statement.

The O’odham casino has faced opposition — including lawsuits and legal appeals — from some state lawmakers as well as the Salt River Pima-Maricopa Indian Community and the Gila River Indian Community. Those two tribes, which already operate casinos in the Phoenix area, cite concerns about the O’odham casino’s impact on state gaming compacts.

A federal 1986 law allows the O’odham to replace lands lost to a federal dam built in Southern Arizona with unincorporated parcels in the Phoenix area. The tribe quietly bought the West Valley parcel in 2003.

The O’odham have prevailed in lawsuits brought against the project, and efforts by U.S. Rep. Trent Franks to change the 1986 law have not progressed in Congress.

Officials involved in the casino scrap were still trying to figure out the implications of the federal actions today.

Interior officials and some Arizona players involved in the issue either could not be reached or declined requests for comment.

Salt River Pima Maricopa Indian Community President Diane Enos voiced disappointment with the ruling.

““The Community absolutely disagrees with Washburn’s decision for both legal and policy reasons. The Tohono O’odham Nation has asserted a right to create three additional Indian

reservations on county islands in Maricopa County to locate casinos. This is why many Valley mayors have been standing by tribes in asking for a resolution by Congress, fearful that their

city is next,” Enos said.

Gila River Indian Community Governor Gregory Mendoza released the following statement Friday:

“While our Community is disappointed by today’s decision, we are not surprised. As Assistant Secretary Washburn noted, he was faced with interpreting an ambiguous provision of a law passed by Congress decades ago. That’s precisely why our Community believes Congress is the best entity to decide this matter and uphold the will of Arizona’s voters. We hope voters across the state will contact their members of Congress to weigh in on this matter.

“It’s also critically important to note that this decision does not give the Tohono O’Odham Nation permission to game on this land. The Department of Interior has yet to decide that point and the majority of tribes in Arizona – including non-gaming tribes – remain opposed to the Nation’s casino because it poses a direct threat to the balance of tribal gaming in our state.

“We will review this decision thoroughly in the coming days and decide whether to take legal action.”

Flathead Reservation in next phase of $1.9B land buy-back program

By Matt Volz, Associated Press

Elouise Cobell, right, looks on as Deputy Secretary of the Interior David Hayes testifies in December 2009 during a Senate Indian Affairs Committee hearing in Washington, D.C. EVAN VUCCI/Associated Press — Elouise Cobell, right, looks on as Deputy Secretary of the Interior David Hayes testifies in December 2009 during a Senate Indian Affairs Committee hearing in Washington, D.C.
EVAN VUCCI/Associated Press

HELENA – The Flathead Reservation is among 21 Indian reservations that will be the focus of the next phase of a $1.9 billion program to buy fractionated land parcels owned by multiple individuals and turn them over to tribal governments, Interior Department officials said Thursday.

Besides the Confederated Salish and Kootenai Tribes, other Montana participants are the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation; Crow Tribe; and the Fort Belknap Indian Community of the Fort Belknap Reservation of Montana.

Government officials will work with tribal leaders to plan, map, conduct mineral evaluations, make appraisals and acquire land on the reservations from Washington state to Oklahoma in this phase, which is expected to last through 2015.

Other reservations could be added to the list, but the 21 named Thursday meet the criteria, particularly tribal readiness, said Assistant Secretary for Indian Affairs Kevin Washburn.

“We knew it wouldn’t be successful unless tribal leaders were interested in the program,” Washburn said.

The land buyback program is part of a $3.4 billion settlement of a class-action lawsuit filed by Elouise Cobell of Browning, who died in 2011. The lawsuit claimed Interior Department officials mismanaged trust money held by the government for hundreds of thousands of Indian landowners.

The 1887 Dawes Act split tribal lands into individual allotments that were inherited by multiple heirs with each passing generation, resulting in some parcels across the nation being owned by dozens, hundreds or even thousands of individual Indians.

Often, that land sits without being developed or leased because approval is required from all the owners.

The land buyback program aims to consolidate as many parcels as possible by spending $1.9 billion by a 2022 deadline to purchase land from willing owners, then turn over that purchased land to the tribes to do as they see fit.

So far, the program has spent $61.2 million and restored 175,000 acres, said Interior Deputy Secretary Mike Connor. To buy even that much land, officials had to locate and contact owners in all 50 states and several countries to find out if they were willing to sell, Connor said.

The work primarily has been focused on South Dakota’s Pine Ridge Reservation until now.

Last month, tribal leaders from four reservations criticized the buyback program’s slow pace and complained they were being shut out of decisions over what land to buy. The leaders from tribes in Montana, Oklahoma, Oregon and Washington state spoke before a U.S. House panel.

Rep. Steve Daines, R-Montana, who called for the congressional hearing, said he welcomed Thursday’s announcement by the Interior Department.

“However, I am concerned their efforts here may not provide tribes with the necessary tools to ensure the Land Buy-Back program is properly implemented,” Daines said in a statement.

He said the Interior Department should use its authority to give tribes more flexibility, and it should move swiftly to address consolidation problems on other reservations not included in the announcement.

Washburn said Thursday that his agency has entered into or is negotiating cooperative agreements with many tribes in the buyback program, though others say they want the federal government to run the program.

21 reservations next up in consolidation program

These are the American Indian reservations the Department of Interior plans to focus on in the next phase of a $1.9 billion buyback program of fractionated land parcels to turn over to tribal governments. The program is part of a $3.4 billion settlement over mismanaged money held in trust by the U.S. government for individual Indian landowners.

– Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana.

– Cheyenne River Sioux Tribe of the Cheyenne River Reservation, Wyoming.

– Coeur D’Alene Tribe of the Coeur D’Alene Reservation, Idaho.

– Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana.

– Confederated Tribes of the Umatilla Reservation, Oregon.

– Crow Tribe, Montana.

– Fort Belknap Indian Community of the Fort Belknap Reservation of Montana.

– Gila River Indian Community of the Gila River Indian Reservation, Arizona.

– Lummi Tribe of the Lummi Reservation, Washington.

– Makah Indian Tribe of the Makah Indian Reservation, Washington.

– Navajo Nation, Arizona.

– Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.

– Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota.

– Prairie Band Potawatomi Nation, Kansas.

– Quapaw Tribe of Indians, Oklahoma.

– Quinault Tribe of the Quinault Reservation, Washington.

– Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.

– Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, North Dakota and South Dakota.

– Squaxin Island Tribe of the Squaxin Island Reservation, Washington.

– Standing Rock Sioux Tribe of North Dakota and South Dakota.

– Swinomish Indians of the Swinomish Reservation, Washington.

Spokane County seeks second federal study of Airway Heights casino

By Mike Prager, Tom Sowa, The Spokesman-Review

Spokane County commissioners are asking the U.S. Bureau of Indian Affairs to take a new look at possible negative impacts of a proposed Spokane tribal casino on Fairchild Air Force Base.In a recent letter to the BIA, commissioners said information has surfaced indicating that an “accident potential zone” could be extended into the area where the tribe is proposing its casino-resort.The commissioners’ letter says new information provided to the county under the Freedom of Information Act supports their request for another look at the project. They want a new study to include “outstanding questions regarding the safety of the Spokane Tribe’s proposed casino-resort project in Airway Heights,” the letter said.County commissioners have hired the law firm of Perkins Coie LLP with experts in Washington, D.C., to prepare their challenge to the casino project, as well as former U.S. Rep. George Nethercutt, of Spokane.

Commissioner Al French said he didn’t have the cost of hiring those outside consultants immediately available, but confirmed it is a substantial amount.

“This is something we are very concerned about as a board,” French said, pointing out that Fairchild contributes $1.3 billion to the region’s economy each year.

Spokane Tribe officials say the casino – part of its Spokane Tribe Economic Project – would create jobs and benefits for tribal members and attract more businesses to Airway Heights, where the proposed project would be built.

The tribe also commissioned a detailed study, prepared by Madison Government Affairs, which claimed the casino would have no adverse effects on the air base.

A spokeswoman for the Bureau of Indian Affairs said Tuesday that the agency received the commissioners’ letter and added it to the official record being reviewed.

A year ago, county commissioners submitted more than 50 pages of comments against the casino proposal, arguing it could endanger the future of Fairchild, the area’s largest employer.

The BIA allowed comments for and against the proposal to be submitted through May 1, 2013.

Since then, the tribe’s application has been reviewed by the Office of Indian Gaming in Washington, D.C. The department has not said when it might issue a ruling on the application. If approved by Kevin Washburn, assistant secretary for Indian Affairs in the Interior Department, the casino would also require approval by Washington Gov. Jay Inslee.

Commissioners say new reviews of Fairchild flight paths suggest the proposed casino would be inside an accident potential zone that wasn’t identified in the initial environmental impact statement.

Fairchild has established accident potential zones at the end of the base runway that extend in a straight line from the runway through portions of Airway Heights, south of U.S. Highway 2. The tribe’s environmental impact statement relied on the existing crash zones, which the commissioners now argue are inadequate.

Those accident zones were based on a 2007 study, which did not account for prevalent training patterns to the north of Fairchild, the commissioners’ letter said.

Charts of flight patterns show that pilots using visual flight rules often make sharp turns over the proposed casino site during takeoffs and landings. The racetrack-shaped pattern on the north side of the main runway goes directly over the casino site.

“The casino project is located right under that racetrack,” French said.

The amount of overhead air traffic qualifies the casino area for protection as an accident potential zone, commissioners argued in the 63-page letter.

County officials said they recently discovered a 2011 Department of Defense instruction that says, “Where multiple flight tracks exist and significant numbers of aircraft operations are on multiple flight tracks, modifications may be made to create (accident potential zones) that conform to the multiple flight tracks.”

The letter also states that comments from the Air Force obtained through the federal Freedom of Information Act show the flight-pattern conflicts are more extensive than indicated in the final environmental impact statement.

Civilian encroachment is one factor considered by the Air Force in its periodic reviews of air bases for potential closure.

The commissioners have taken steps in recent years to address encroachment by leading a multiagency rewrite of zoning laws to provide buffers for Fairchild. Last fall, they asked voters to raise their property taxes to buy manufactured home parks in the existing crash zones, but the measure was rejected. However, a state grant is being used to buy the former Solar World housing, which has been cleared of occupants.

Indian affairs receives 1.2 increase in fiscal 2015 budget request

By Ryan McDermott, Fierce Government

Bureau of Indian Affairs programs would receive a 1.2 percent increase over this year’s enacted amount under the White House budget proposal for the next fiscal year.

The budget request totals $2.6 billion for Indian Affairs – $33.6 million more than fiscal 2014 enacted, said Interior Department Assistant Secretary Kevin Washburn during a Senate Indian Affairs Committee Wednesday hearing.

Tribal self-determination and self-governance programs have eclipsed direct service by the Indian Affairs Bureau at DOI, Washburn said.

More than 62 percent of the appropriations are provided directly to tribes and tribal organizations through grants, contracts and compacts for tribes to operate government programs and schools, Washburn said.

But committee Chairman Jon Tester (D-Mont.) said the budget request isn’t enough.

“Every line item is deficient,” Tester said. “1.2 percent is not right. This needs some work.”

He said the percentage increase for Indian Affairs pale in comparison to increases at other part of the DOI. The National Park Service request is for 22.2 percent more than this year and the Land Management Bureau request is 6.1 percent more.

But Washburn argued that Indian Affairs budgets under Obama have been larger in the last five years than another other parts of the DOI. The BIE budget request for fiscal 2015 makes up $2.6 billion of the agency’s $11 million total request.

Other parts of the DOI might see a larger percentage increase under the request, Washburn said, but they make up much smaller parts of the agency so the comparison is apple to oranges.

For more:
– go to the hearing page (webcast and prepared tstimony available)

Washburn Finalizes Administration’s Patchak Patch

By Rob Capriccioso, Indian Country Today Media Network

Assistant Secretary – Indian Affairs Kevin Washburn announced November 12 a finalized rule that aims to resolve some problems created for tribes by a recent U.S. Supreme Court decision, which said that a litigant can sue for up to six years after the U.S. Department of the Interior takes lands into trust for tribes.

The court ruled in June 2012 in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that the law does not bar Administrative Procedure Act challenges to the Department of the Interior’s determination to take land in trust even after the United States acquires title to the property, unless the aggrieved party asserts an ownership interest in the land as the basis for the challenge. In the case at hand, it allowed a lawsuit to go forward challenging a tribal casino in Michigan from opening, despite the suit being filed three years after Interior took land into trust for the tribe. More broadly, it left the door open for costly lawsuits years after tribal projects, including casinos, housing and healthcare facilities, have broken ground.

The new rule partially addresses the issues by ending a 30-day waiting period Interior established in 1996 for the assistant secretary to take land into trust for tribes wanting to develop casinos on such land. That so-called “self-stay policy” was meant to give parties a heads up in case they wanted to file suit. The rule clarifies that the assistant secretary’s decision is final, and it allows the assistant secretary to take the land into trust with no waiting period. Lawsuits, though, are still a possibility.

“The reason for staying is just not so compelling anymore,” Washburn told Indian Country Today Media Network in May when he proposed the rule that has now been finalized. “Our argument is that people can still bring their action if they want to after we’ve taken the land into trust—at least that’s what Patchak says.”

The new rule also includes a 30-day appeal period for Bureau of Indian Affairs land-into-trust decisions that do not involve casinos. If parties do not file an appeal within 30 days before the Interior Board of Indian Appeals, then they will lose the right to do so ever.

“If they don’t appeal, then they are out of luck,” Washburn told ICTMN in May. “Kind of like when the minister says, ‘Speak now or forever hold your peace.’”

“If an appeal isn’t filed in 30 days, it’s golden—the land is in trust, and it’s secure [for tribes],” Washburn added.

Washburn previously admitted that there are shortfalls for tribes here because, under the rule, Interior will be providing wider notice of its decision to acquire land. He said the benefit of the rule outweighs that risk: “If people have concerns, we need to get them out of the bushes and get them to raise their concerns within 30 days—not wait 5 years and 11 months,” he said.

He predicted that critics of the administration’s tribal land-into-trust policies, including Sen. Dianne Feinstein (D-Calif.), will appreciate that the policy codifies that parties in opposition will be contacted by Interior. “I think that’s a change that she will appreciate,” he said.

An Interior press release said the new rule “demonstrates the Obama Administration’s continuing commitment to restoring tribal homelands and furthering economic development on Indian reservations.”

Beyond the administration, tribal advocates have been asking Congress to pass a true “Patchak patch” that would say that once the United States takes land into trust for tribes, the decision is completely immune from lawsuits whether the lands are intended for casinos or other uses.

“But we can’t wait for Congress to do that,” Washburn said in May. “We don’t know if they will. We certainly would support such legislation, but, in the meantime, we have to figure out how we protect tribes now.”

According to the Department, 38 tribes and tribal organizations commented on the proposed rule before it was finalized, while 16 from state, county, or local governments and organizations representing such governments commented and 12 members of the public, including individuals, advocacy groups and other organizations commented. Most tribal commenters were supportive of the rule, although there were some tribal objections, while most state, county, or local governments and organizations and members of the public were opposed to the rule.

Michael Anderson, an Indian affairs lawyer with Anderson Indian Law, said the new rule is a positive one for tribes.

“This is a good development and could shorten the current six-year statute of limits under the Administrative Procedure Act to challenge Interior land-into-trust decisions,” Anderson said.

The final rule is online here.