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National Briefs: January 2015
Tuesday, January 13 2015
 
Written by The Circle Staff,
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DOJ DECIDES TRIBES CAN LEGALIZE MARIJUANA

WASHINGTON – In a memo released on Dec. 11, the U.S. Justice Department outlined new policies allowing tribes to grow and sell marijuana on reservation lands.

The new federal policy will allow tribes interested in growing and selling marijuana to do so, if they maintain "robust and effective regulatory systems," John Walsh, the U.S. attorney for Colorado, told media. Tribes will need to avoid eight enforcement triggers that currently apply to state marijuana sales, including a prohibition on sales to minors and the diversion of marijuana to states where it remains illegal under local law.

Of the 326 federally-recognized reservations, many are in states that currently do not allow marijuana for medical or recreational use, such as Oklahoma, Utah and the Dakotas.

“The tribes have the sovereign right to set the code on their reservations,” U.S. attorney for North Dakota Timothy Purdon, chairman of the Attorney General's Subcommittee on Native American Issues said.

In a statement, the Department of Justice said U.S. attorneys will review tribal marijuana policies on a case-by-case basis and that prosecutors retain the right to enforce federal law.

“Each U.S. attorney will assess the threats and circumstances in his or her district, and consult closely with tribal partners and the Justice Department when significant issues or enforcement decisions arise in this area,” the statement reads.

While possession of marijuana is still a federal crime, the department announced in August 2013 it would allow states to regulate recreational marijuana sales. The nation's first recreational pot stores opened in Colorado and Washington in 2014. Residents of Alaska, Oregon and the District of Columbia voted in November to also legalize marijuana, though Congress appears likely to block sales in the nation’s capital.

FEDERAL OFFICIALS WARN TRIBES ABOUT FUNDING MISUSE

WASHINGTON – The Office of Inspector General at the Department of Health and Human Services issued a warning to tribes about the misuse of federal health care funds.

In a Nov. 24 alert, the OIG said it has conducted investigations that uncovered misspending. None of the affected tribes or tribal organizations were identified but agents are worried that the money isn't being used to provide health care in Indian Country.

"In the most egregious cases, funds were converted to personal use, leaving the tribes with dangerous shortages in health care funding for its members," the alert stated.

Gerald Roy, a special agent at OIG, pointed out that tribal officials and employees in Montana and South Dakota have been indicted and convicted for musing federal funds. “Most of those people who have given us the most pushback are either in jail or headed to jail," Roy said.

The alert was directed at tribes that enter into contracts with the Indian Health Service under the Indian Self-Determination and Education Assistance Act. Tribes that receive Medicare, Medicaid and Children’s Health Insurance Program funds must ensure they are being used properly, it stated.

"Recent OIG investigations have uncovered instances in which tribes used ISDEAA funds to support unauthorized activities. In some cases, shared costs were not allocated correctly between IHS and other activities," the alert said. "In others, ISDEAA funds were 'borrowed' to meet other tribal expenses."


BIA FINALIZES RUL TO ADD ALASKA TRIBES TO LAND-INTO-TRUST PROCESS

WASHINGTON – The Bureau of Indian Affairs has finalized a regulation that allows Alaska tribes, for the first time, to follow the land-into-trust process.

For decades, the BIA argued that the Alaska Native Claims Settlement Act of 1971 prevented Alaska tribes from acquiring trust lands. But a federal judge threw out that argument, paving the way for the new rule.

“This marks a major step forward in federal policy in Alaska. Our aim is to make it possible to secure tribal homelands, which in turn advances tribal sovereignty and economic development, promotes the health and welfare of tribal communities, and protects tribal culture and traditional ways of life,” Assistant Secretary Kevin Washburn, the head of the BIA, said in a press release on Dec. 18. “Restoring tribal lands to trust status furthers tribal self-governance."

The Native American Rights Fund represented four tribes and one Native individual in the lawsuit that challenged the Alaska exclusion. Attorney Heather Kendall-Miller praised the rule, which will be sent to the Federal Register for publication.

Kendall-Miller called the rule “an extraordinary step forward in the longstanding battle of Alaska Tribes to secure greater tribal self-determination, to protect their lands and way of life in perpetuity, and to enjoy the same basic privileges and immunities enjoyed by all other Native American tribes.”

Despite the announcement of the rule, the BIA cannot actually approve any Alaska land-into-trust applications under orders of Judge Rudolph Contreras. He put a hold on any decisions in order for the state of Alaska to take the case to the D.C. Circuit Court of Appeals.


TRIBE BEGINS POTENTIALLY LUCRATIVE SETTLEMENT TALKS

WASHINGTON – Millions of dollars could be at stake as representatives from a South Dakota tribe join talks to settle 24-year-old litigation.

The Oglala Sioux Tribe, including residents of the Pine Ridge Indian Reservation, is a plaintiff with other tribes in a lawsuit against the federal government that dates to 1990. The tribes won a U.S. Supreme Court decision in 2012 and have been working to receive payments ever since.

The dispute is over contract money that the federal government pays tribes to operate federally supported programs. The tribes successfully claimed the payments were insufficient. There are some hints in legal documents, including the federal government’s petition to the Supreme Court in 2011. "The accumulated tribal requests for unfunded contract support costs are estimated to exceed $1 billion,” the government’s lawyers wrote at the time, “and the problem grows worse with each federal budget cycle.”

The litigation’s roots extend to 1975, when Congress passed the Indian Self Determination and Education Assistance Act that allowed tribes to take over some programs previously run by the federal government. Instead of operating the programs directly, the government would provide funding to tribes through contracts.

Tribes claim the contract amounts were insufficient to cover some of the peripheral costs associated with running programs. For the Oglala Sioux Tribe, an example is its police department. The federal contract to fund the department paid for major expenses like officer salaries, but the tribe contended the contract was insufficient to cover overhead costs like managing the payroll, buying uniforms, maintaining patrol cars and operating a telephone system.

The peripheral expenses outside of the main contract costs are called “contract support costs.” In 1988, Congress mandated that contract support costs be covered, but according to some tribes, neither the Interior Department and its Bureau of Indian Affairs, nor the Department of Health and Human Services and its Indian Health Service, carried out the congressional mandate.

In 1990, the Ramah Navajo Chapter in New Mexico filed a lawsuit seeking full payment of contract support costs. In 1999, the Oglala Sioux Tribe joined a then nine year-old lawsuit filed by the Ramah Navajo Chapter seeking full payment by the federal government. The tribes won a $80 million settlement that year and another settlement of $29 million in 2002 on a portion of their claims. Their attorneys collected a combined $14 million in fees.

But the litigation, already 12 years old at that point, was not over. In 1994, Congress had capped the total amount of money available for contracts with tribes. The cap on contract payments opened a new legal front in the case that reached the U.S. Supreme Court in 2012. The tribes won a 5-4 decision upholding their claim that the government owed them full payment of contract support costs.

The only thing left to decide now is the amount owed to the tribes. Representatives of the parties involved in the lawsuit met on Dec. 15 in Albuquerque, N.M. for a settlement conference.


WASHINGTON TEAM MASCOT GARNERS CONTINUED ATTENTION

NEW YORK – The CBS “Late Show” host David Letterman, weighed in on the Washington NFL team mascot issue.

In a skit on a Dec. 15 show, Letterman, suggested that rather than a name change, a mascot change to red skin potato. He said the nickname for the team could be “spud.”

While the suggested logo change began in 1987, Letterman's spin on the issue marks one more celebrity who has offered support to change the mascot, which also includes representatives of the United Nations, members of Congress and President Barack Obama.

In his show, Letterman said, “Indigenous people of America believe that the term Redskins is offensive. Now, I myself – not being an indigenous people, but know enough about what the white man did to the indigenous people – I'm with the American Indians. If they find this offensive, by God so do I. Haven't they suffered enough? I mean, it’s one indignity after another, and for the love of God, if this is any small measure – and it’s impossible to set the balance accurately – but if this makes anyone feel better about who and what they are, by God, do it, change the name. Change the name. There’s a million names.”

Additionally, team mascot opponents staged a rally on Dec. 28 near FedEx Field, a significant protest directly targeting the team's stadium. More than 100 people gathered in a grass lot across from Jericho City of Praise, a church less than a mile away from the stadium.
Organizers had decided not to march around the church, as originally planned, and to stage the entire rally inside the empty lot. But then there was another change of plans: the march was on. At one point, the march halted traffic headed toward the stadium. The rally has been mostly peaceful, but at least one Redskins fan expressed discontent, shouting expletives at protesters.

As at a large protest in Minneapolis on Nov. 2, mascot opponents wore burgundy and gold shirts with words written on the front in team font: “RENAME, RETHINK, REPLACE.” A few fans holding signs — “STOP THE RACISM”; “CHANGE THE NAME” – also lined up along the sidewalk.

There was another event nearby going on at the same time – a fundraiser that infuriated the organizer of the name rally. The original name of the other event, which was changed after The Washington Post reported it, was “Scalp Out Cancer: Because Bald is Beautiful.”

“Scalp” was replaced with “Shave.”


COURT RULES IN FAVOR OF OMAHA TRIBE'S CASE

ST. LOUIS, Mo. – The Omaha Tribe of Nebraska's reservation has not been diminished, the 8th Circuit Court of Appeals ruled on Dec. 19.

In a unanimous opinion, the court said Congress did not change the boundaries of the reservation when it opened part of the tribe's land base to non-Indian settlers in 1882. The ruling was only five pages but it upheld the findings of a federal judge who "thoroughly, thoughtfully, and accurately" examined the law and other evidence at issue in the dispute.

"The court carefully reviewed the relevant legislative history, contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends, and did so in such a fashion that any additional analysis would only be unnecessary surplus," Judge Clarence Arlen Beam wrote, referring to the lower court's decision.

Ever mindful to 'resolve any ambiguities in favor of the Indians,' there is nothing in this case to overcome the 'presumption in favor of the continued existence' of the Omaha Indian Reservation," Beam continued.

The decision means the village of Pender remains part of the reservation as the tribe has always contended. More significantly, it means a group of non-Indian businesses must comply with the tribe's liquor laws and regulations, including a 10 percent tax on sales.

The non-Indian plaintiffs, however, could ask the U.S. Supreme Court to review the matter. A reservation diminishment case hasn't been heard by the justices since South Dakota v. Yankton Sioux Tribe, a 1998 decision cited by the 8th Circuit.


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