Legal

April 25, 2014
By:
Ruth Hopkins

Cannabis legalization is a hot topic. After decades of collective societal distain for the plant ala Reefer Madness, public opinion now seems to be swaying in favor of its use, especially where its medicinal properties are concerned.

April 17, 2014
By:
Jay Daniels

While the Cobell Settlement, approved on November 24, 2012 by the U.S. Congress, allocated $3.4 billion to the plaintiffs in the landmark Indian case, the disbursement of the money is still in process. Recently the Washington, D.C.

March 17, 2014
By:
Steve Russell

No, not those Black Robes. I’m sure priests have secrets in addition to those involving child abuse, but I am not privy to them. I mean legal profession priests, The Judges. I was at a judicial conference recently in Texas, a state that practices partisan election of judges.

March 03, 2014
By:
Gabriel S. Galanda

The U.S. Department of the Interior’s Indian Land Buy Back Program has been lauded as the “hallmark” of the $3.4 billion Cobell v. Salazar settlement. As the Buy Back Program now lifts off in hurried fashion at Makah and Pine Ridge, the program dishonors both the letter and spirit of Cobell.

Cobell settled more than 500,000 tribal members’ trust land and asset mismanagement claims, dating back to the 1890s. Not tribal government claims; tribal member claims. Now, $1.9 billion in tribal member settlement monies has been allocated to help tribes “buy back” those members’ allotted or restricted fee lands. In practice, these “buy backs” are accomplished through the forced sale of tribal members’ ancestral lands. Injustice to individual Cobell class members aside, assuming that financially supporting a tribe will benefit that tribe’s members, one would hope that the buy-back wealth would be spread throughout Indian Country. After all, those 500,000 members of the Cobell class surely represent the vast majority of the 566 federally recognized tribes.

But it has recently come to light that Interior has limited the lion’s share of the $1.9 billion in buy back funding to only 40 tribes. Interior’s outside appraisers recently let it slip that “the program will exclude reservations east of the Mississippi and in Alaska.” Interior was quick to retract that statement, but the genie was already out of the bottle. If that were not bad enough, other swaths of Indian Country with large Indian populations west of the Mississippi, like all of California Indian country (save the Washoe Tribe, which is headquartered in Nevada), are excluded from the program.

Cobell, for better or worse, was fought for all of Indian Country, not just 40 tribes. For the sake of the 500,000-plus Cobell class members whose land and related claims were extinguished for eternity, tribal communities west of the Mississippi, in Alaska and California, and elsewhere, all deserve to share in the Buy Back wealth.

The fact is that the Buy Back Program and its goal to consolidate fractionated Indian lands have little to do with what is right or fair. The program is not really about affording “benefits of those lands for the tribes and their members” as Interior Deputy Secretary David Hayes once professed; or “expand[ing] tribal economic development opportunities across Indian Country” as Assistant Secretary Kevin Washburn said more recently. The program is designed to serve the best interests of the United States; to resolve “enormous administrative difficulties for the government” – and related liability – caused by fractionation. 
Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009). To feign otherwise is dishonest.

As to the letter of the law that is Cobell, the Buy Back Program fares no better. In 2004, the U.S. District Court for the District Court of Columbia in Cobell v. Norton, affirmed that “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” 225 F.R.D. 41 (D.D.C. 2004). However, the court went on to hold that the United States’ trust-fiduciary responsibility requires that the “individual Indian owner of trust lands . . . give truly informed consent to the sale of trust corpus” before any sale is approved by Interior.

The Cobell court made clear that any such sale requires clear “communication between individual Indian trust-land owners and agents of Interior” and that “trust beneficiaries ought not have to make the decision to sell trust assets without access to all the relevant information,” including answers to any questions or concerns they may have. More generally, legal scholar Derek Haskew explains that the United States’ fiduciary duties to tribal member landowners includes consultation, which “can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” 24 AM. IND. L. REV. 21 (2000).

March 02, 2014
By:
Christine Smith McFarlane

This slogan has stirred up a lot of controversy and one of the creators of this slogan, Jeff Menard, has been featured in the news several times because of the reactions it has received from mainstream society. But first, little background on what happened.

In mid-January 2014, 13-year-old Tenelle Starr, a First Nations student in Saskatchewan, was told not to wear the “Got Land? Thank An Indian” hoodie to school after some parents, students and school officials took offense.

Starr, a member of the nearby Star Blanket First Nation, goes to school in Balcarres about 90 kilometers northeast of Regina. “ I wear it proudly around the school,” she told CBC News, even though some students told her the message was “cheeky” and “rude."

RELATED: 'Got Land?': Hoodie Orders Flood in After School Controversy

The controversy was eventually resolved through meetings between the school and Star Blanket First Nations’ leaders, leading to greater understanding and acceptance about Star’s sweatshirt, and its message. I still find the whole situation infuriating on so many levels.

The first issue is the right to have the fundamental freedom to express oneself. According to Section 2 of the Canadian Charter of Rights and Freedoms, there fundamental freedoms we Canadian citizens are allowed, including: freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and lastly, freedom of association.

I believe that all Canadian citizens should have freedom of expression in a manner that is conducive to invoking discussion and proactive action. I don’t condone harmful words, but that’s another story. The key question I have is why was mainstream society so troubled by a 13-year-old girl wearing a hoodie? The slogan on her hoodie is not the only slogan on other merchandise that can be seen as “cheeky.” Just conjure up the infamous image of Geronimo on the T-shirts labeled “ Homeland Security, Fighting Terrorism since 1492.” No one has been getting up in arms over that slogan.

RELATED: 'Got Land?': From T-Shirts to Teach-Ins, Idle No More Calls for Day of Action

I find it most disturbing that the fiasco was created by the actions of Vancouver-based Michelle Tittler, 59, who runs End Race Based Laws (ERBL) that was created a year ago in reaction to the Idle No More Movement. Tittler had the nerve to go on a 13-year-old girl’s Facebook page and leave such harassing posts that the girl’s parents felt the need to shut down her account in order to protect her.

According to CBC, Tittler is known for aggressive online trolling, and for posting inflammatory comments about Aboriginal issues and people that led to at least two police probes.

An ongoing investigation of this woman found that Tittler has a history of harassing people. “In 2006, a criminal court judge in B.C. granted a peace bond against Tittler after a neighbor complained of harassment,” according to the CBC. Yet this hasn’t deterred Tittler from harassing people through BRBL, a not-for-profit organization.

ERBL’s Facebook page has 3,330 likes and Tittler told the CBC that “she is unemployed and spends most of her time online denouncing Aboriginal treaties, posting rants on YouTube, and engaging in caustic debates with vocal critics.”

March 01, 2014
By:
Oliver J. Semans

Indian country saw a landmark victory last month in California v. Miami Nation Enterprises, et. al, which ruled against the state of California in favor of two tribal online lenders, the Miami Tribe of Oklahoma and the Santee Sioux Nation of Nebraska.

The California Court of Appeals affirmed the dismissal of a suit by the State of California against online lenders owned by the two federally recognized Indian tribes who were represented by Fredericks Peebles & Morgan. The suit was an attempt by the state to shut down the sovereign tribes’ online lending businesses and impose penalties for alleged failure to comply with the California laws governing short-term loans.

This case comes in the wake of a series of other states’ efforts to shut down various tribal lending operations around the country. States have mounted campaigns to restrict and control tribal lending operations in their state even though federally recognized Indian tribes are not subject to state laws in general and are regulated primarily through Federal Indian law. This issue has gained widespread publicity around the country in the last several months.

This California case has now re-affirmed that federally recognized Indian Tribes are sovereign nations, not subject to state control. The court decision will significantly impact other states and other Tribes throughout the country as the issue of tribal sovereignty has been under attack on many fronts over the last several years.

In this case, California claimed that loans made by the tribes are not enforceable under California law because the tribes are not licensed in California and the loan fees exceed California’s enforceable rates.

In a ruling issued on January, 21, 2014 the Court of Appeals rebuffed the state’s claims, finding that the tribes’ lending activities “are subject to tribal laws governing interest rates, loans and cash advance services,” and that California’s lending laws are not enforceable against the tribal lenders. The Court went on to find that “there can be little question” that the tribally owned lenders “function as arms of their respective tribes” and therefore are not subject to California’s jurisdiction.

February 20, 2014
By:
Peter d'Errico

While we wait for the U.S. Supreme Court opinion in the case of Michigan v.

January 25, 2014
By:
Charles Kader

The announcement by New York State Gov. Andrew Cuomo to allow 20 hospitals in the state to dispense medical marijuana is a sea-change shift in policy. The Democrat is up for re-election this year and is going against the grain in the state known for the strict Rockefeller drug laws.

January 08, 2014
By:
Walter Lamar

Despite delays, shutdowns, underfunding and bureaucratic tangles, the bipartisan Indian Law and Order Commission has spent the past several years steadily gathering data on how to fix the dire public safety crisis that plagues tribal lands.

January 07, 2014
By:
Steve Russell

The American Legislative Exchange Council (ALEC) is God’s gift to corporate America, tying it directly to elected legislators and providing the vehicle for the interests of corporate persons to trump the interests of human persons.

January 06, 2014
By:
Peter d'Errico

The stage is set to determine whether the U.S. Supreme Court will expand its effort to out-do Dr. Frankenstein.

December 23, 2013
By:
Peter d'Errico

Confusion abounded on a crucial point during oral argument in the U.S. Supreme Court case of Michigan v. Bay Mills Indian Community on December 2, 1013.

December 18, 2013
By:
Charles Kader

Can Indians still make decisions for themselves on their own homeland? That question was recently deliberated in a case involving four men from the Akwesasne Reserve.

December 17, 2013
By:
Steven Newcomb

This column is about oral arguments at the U.S. Supreme Court that took place on December 2, 2013 in the case Michigan v. Bay Mills Indian Community, Et Al. By way of introduction, a description of what brought the parties to the U.S. Supreme Court.

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