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Indian Law Blog

Grants Expert Ron Flavin Featured on Smoke Signals Blog

Posted in Communications, Shout Out, Smoke Signals, Telecommunications

On October 15, Ron Flavin, will be a featured panelist at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort, Tulalip, WA.

Ron Flavin is an internationally acclaimed Business Organizational Strategist who has specific expertise in developing and writing grant proposals for businesses of all sizes as well as for non-profit organizations, government agencies and educational web trading platform in Nigeria institutions. To date, Ron Flavin has helped his clients secure more than $175 million in funding and develop successful, sustainable short and long term business growth strategies.  Due to his knowledge and contacts, Ronald Flavin is the bridge between two worlds: big businesses and organizations of all sizes, including NGOs and small businesses.

According to Ron Flavin, “Many entrepreneurs and organizations may not be aware that they are good candidates to secure millions of dollars in grants funding. The problem is a shrinking pool of dollars and few tribes are able to develop competitive applications that get funded. Compounding the problem further, many grant applicants do not follow the directions in their grant applications. They don’t develop solid proposals. And they don’t plan for the strategic development of the proposal. It’s surprising how many grant applicants do not do the research they need to do to get the accurate and current information that could win the grant. “

He has a successful track record in getting grants for tribal initiatives related to telecommunications. Clients include the Klamath River Rural Broadband Initiative (KRRBI) for the Karuk Tribe (California). He has also had a 100% success rate with the USDA’s Community Connect program and obtained a $1.4 million award for the Confederated Tribes of the Colville Reservation (Keller, Washington).

Ron Flavin stated, “At the conference, I want the participants to understand the most common reasons why tribal proposals do not get funded. They’ll have a better understanding of why some proposals get funded and others don’t. They’ll learn strategies or tips for strengthening their proposals. And finally, the participants will benefit by learning how they can improve their access to broadband funding.”
NOTE: Ron Flavin recently wrote the grant and consulted to the Three Rivers Valley Educational Foundation. The grant awarded was $10.8M.

As the author of Business Grants: Everything you need to know to connect with local, state and federal grants for business,he is known for identifying potential revenue streams in any organization and implementing a plan to develop these new sources of revenue. Flavin frequently announces current grants opportunities on his highly popular blog that is located at http://www.rflavin.com/ or on Twitter @rflavin.

Andrea Alexander Featured on Smoke Signals Blog

Posted in Communications, Economic Development, Shout Out, Smoke Signals, Telecommunications, Tribal Culture, Tribal Government

On October 15-16, Andrea Alexander (Makah) will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort, Tulalip, WA.

Andrea Alexander has over 30 years experience of development in the native community and runs her own business, Energy Innovation Foundation. Her firm provides strategic planning and project development for Tribal governments and non-profit organizations. Andrea Alexander has been a native community activist for 10 years for telecommunications and energy and stays current on the policy & programs that impacts the tribes.

Andrea Alexander commented on the problem facing native communities: The lack of reliable broadband has an adverse impact on the many services each Tribal government has to deliver in aspects of healthcare, education, transportation and commerce.

According to Andrea, “My tribe doesn’t have full access to broadband. The current policy depends on the private sector to build the infrastructure, but if the population is too small, the investment will not happen. It’s a huge problem and we’re in a huge crisis situation. The fact that our children can’t take the required state tests because we don’t have 4G has helped to motivate leadership to take action and give new to life to this important policy issue. We are seeking economic parity to broadband to gain full access to the internet as well as broader cell phone coverage for all rural tribal communities.”

Andrea has served as the Director of Energy for the Affiliated Tribes of Northwest Indians, Deputy Director for the Washington State Office on Indian Affairs, and her own tribe, the Makah Nation to create public/private partnerships in the Northwest. As the current Co-Chair for the ATNI Telecommunications Committee, she hopes the conference attendees will help:

“Recruit new stakeholders to this issue that will travel to Tulalip and learn about our issues. The conference location will help attract active allies willing to help northwest native people address the growing technology issues we face. We need help in building a broad-based, diverse movement committed to solving the lack of connectivity. In today’s world, all services and businesses are dependent on the internet and without it the people who live and work in these areas are at a distinct disadvantage. The fact that we still have large areas without broadband service is a form of economic racism and is essentially redlining these communities.”

“On October 16, there will be an ATNI Technology Committee work session to bring the common policy issues to light and build the necessary consensus to create strategies to overcome obstacles in the technology field. Once we get people to agree on the problem, then we can work on developing a shared strategy to overcome any barriers. Funding for broadband initiatives is our biggest challenge right now; the lack of funds and the high level of complexity in the application process is one area we can address right away. We have a short game and long game for policy change. As northwest native people, we linked to our sense of place - we will always be here. I have been taught by my Elders, success is not just about big money or big politics, it is also being committed to hanging in over the long haul. We always look forward to the great hospitality of our Tulalip brothers and sisters & thanks to all the organizers”.

Andrea gained her philanthropic experience through the First Nations Development Institute, than as the Director of Grants for Social Justice Fund Northwest, as a volunteer for the

Philanthropy Northwest Grantmakers of Color and as the founder for the Potlatch Fund. Here are her comments about the need for new funding for technology training programs.

“We need new sources of funding so any rural community, tribal or not can apply to get access to technology training. Technology is changing so rapidly and a native led effort will ensure we can keep up. We are developing the Tribal Technology Training Program or T3 to educate people at the grass roots level with tech skills that will support their educational and employment potential. One of the main outcomes I’d like to see is direct financial support for T3 initiatives. The technology training needs to happen now.”

Andrea Alexander and her husband Mike, a Haida tribal member, along with their 13 year old daughter, Antonia, reside in the Seattle area.

For further information contact Andrea Alexander, aalexander795@gmail.com.

Senator John McCoy Featured on Smoke Signals Blog

Posted in Communications, Shout Out, Smoke Signals, Telecommunications

On October 15, Senator John McCoy (Tulalip), Washington State Legislature, will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort, Tulalip, WA.

John McCoy represents the Everett, Marysville, and Tulalip communities, and neighborhoods of Snohomish County in the Washington State Senate. John was elected to the House of Representatives in 2003, and appointed to the Senate in November 2013.

John served in the United States Air Force for 20 years, retiring in 1981 and went to work as a computer technician in the White House, where he stayed from 1982 to 1985, continuing his career in computer programming and operations and management in the private sector.

He returned to his home state almost two decades back to help bring the Tulalip community into the digital world. John was instrumental in the development of the Quil Ceda Village Business Park. John and his wife, Jeannie McCoy, make their home in Tulalip. Bringing the tribe and other underserved areas of Snohomish County fully into the 21st century with high speed broadband access to the Internet has been one of the driving goals for John since coming home.

“There are still many areas of Washington State where being underserved or not served by broadband is still a prevalent problem,” said McCoy recently. “We still have neighborhoods in Seattle that do not have broadband. For example in there are pockets in the 11th legislative district in South Lake Union, close to where Amazon is located, that do not get broadband. The problem is how to get broadband in there.

“There are wide expanses of rural areas that are going without broadband. For example on the Makah reservation the connectivity issue has been moving forward and making progress and yet, on the day the students have to take tests online, the tribal government has to shut down so the kids have bandwidth to take their tests. Another example is when high school seniors from Davenport had to drive 35 miles to Spokane to find Wi-Fi hotspots, and stop in parking lots so they could do their homework and get their senior projects done.”

McCoy said he can point to other areas of the state where the situation is the same. In the 1980s and 1990s, he points out, the term “Digital Divide” was being used to refer to individuals – who had broadband and who did not. These days, however, it means whole areas that are underserved or not served at all.

“When I served in the United States Air Force,” he recalled, “I learned technology from the ground floor. When I came home to the Tulalip Reservation, Stan Jones [Chairman of the Tulalip Reservation Board of Directors] recruited me to build an economy. I grew-up in technology but all I had on the reservation was dial-up. I had to figure out how to get the latest technology on the reservation.”

“When it comes to being wired,’ he said, “people claim 90 percent of Washington State had broadband connectivity, but the majority live in Seattle, Tacoma, Bellingham, Everett, and in the small cities and towns between Seattle and Olympia.” Places outside of these areas, he said, have pretty sparse connectivity. “In the Tri-cities, they have holes in their network too,” McCoy said. “This is a statewide problem and we need to fix it.” In some places, city and county codes are keeping broadband out for aesthetic reasons. Cities and the counties both need to address this problem and fix it, he said.

“My frustration is that so many schools are doing without broadband connectivity, especially when the Washington state Board of Education is pushing for wide scale electronic testing. How can they implement that requirement when there are so many areas without broadband?

As the ranking Democrat on the Senate Energy, Environment & Telecommunications Committee, Sen. McCoy is in a better situation than many to try to address this problem.

“The problem with the lack of broadband has been identified,” he said. “Now, there will be a lot of conversation on what kind of funding the government will provide. How do we get funding? How do we get the big telecoms to play? The telecom companies will not go to an area unless it’s financially feasible. At what point should they do something because it’s the right thing to do?”

Wherever broadband goes, business follows, he points out. “Broadband is an economic engine. Let’s take a look at the Quil Ceda Village Business Park that was developed in 2000. The Quil Ceda Village business park has become vital to building and sustaining the Tulalip culture and regional economy. Today the Quil Ceda Village is a popular destination for thousands of shoppers and provides a highly visible opportunity for a variety of businesses.

Today, thanks in large part to the efforts of John McCoy, the entire area in and around the Tulalip Reservation is double ringed in fiber. Tulalip owns its own phone and broadband Internet providers, an HDTV company and a fiber optic company.

“Once the latest technology was adopted, many businesses came knocking on our door and said they wanted to be there because the infrastructure was there,” said McCoy. “We think our success can be shared and serve as an example to many other areas on the state of Washington.”

Sen. McCoy also serves on the Senate Government Operations Committee and the Senate Rules Committee. He is an active member of four National Conference of State Legislatures (NCSL) panels. John is a co-chair of the NCSL committee on the Environment, and he’s also a member of the NCSL Labor & Economic Development Committee; the NCSL Communications, Financial Services & Interstate Commerce Standing Committee, and the NCSL Environmental Management Legislative Roundtable.

John and Jeannie McCoy have three daughters, nine grandchildren, and two great-grandchildren.

Monica L. Babine Featured on Smoke Signals Blog

Posted in Communications, Smoke Signals, Telecommunications

On October 15, Monica Babine, will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort, Tulalip, WA. 

Monica Babine leads the Program for Digital Initiatives at Washington State University (WSU) Extension’s Division of Governmental Studies and Services. A Senior Associate with WSU, she works with business, government, economic and community development organizations on promotion, research and technical assistance to increase broadband awareness, access and adoption. Monica assists with broadband planning in several rural areas in Washington. Prior to joining WSU, Monica led a consulting firm that provided presentations, consultation and training on telework, compressed workweeks, flextime as well as community and economic development for public, private and non-profit organizations.

“From my standpoint, access is both availability of the network and the ability for people to afford it,” said Monica. “Many tribal lands and rural communities in Washington still have needs related to increasing broadband awareness, access, and adoption,” she observes.

“Here’s what I mean by each of these:

Broadband awareness – There is still a need for better understanding of the relevance, the benefits broadband provides individuals and organizations.

Access – which includes middle and last-mile infrastructure, but also the technology needed to use these services.

Adoption – Broadband is not a field of dreams. Just because you build it doesn’t mean people will use it. Adoption is the ability to use the resources (infrastructure and technology) which often includes training and technical assistance.”

“Over the past few years I have been supporting broadband projects in rural areas of Washington State. I manage the WSU Program for Digital Initiatives, where I focus on business, community and economic development.”

“Through American Recovery and Reinvestment Act funds, the Washington State Department of Commerce’s Broadband Office  awarded approximately a dozen Local Technology Planning Team grants,” Ms. Babine said. “I supported five of those including the West Olympic Local Technology Planning Team project (WOLTPT) which involved several tribes in Clallam and Jefferson counties.”

According to Monica, “An important opportunity for folks at the Taking Smoke Signals Digital Conference to take actions on technology policy issues and training needs is to attend the Affiliated Tribes of Northwest Indians Telecommunications Committee strategy session on October 16, from 3 to 5 pm.” Topics to be discussed include broadband and cell phone access and infrastructure build out issues; EMS planning needs such as those Washington OneNet/FirstNet is addressing; and, next steps for the T3. The last ATNI Annual Conference, and the Tribal Technology Training (T3) Kick-Off held at Microsoft, linked tribes and Native people with IT resources, and identified these as the areas to be addressed next.

“I have enjoyed working with local and regional leaders to increase broadband awareness, access and adoption in our state and hope this conference leads to continued opportunities to support this important need,” said Babine.

Monica Babine is on the Washington OneNet team, providing outreach and engagement regarding FirstNet in the state. She was an active member of the Washington State Broadband Advisory Council and currently serves on the Washington State Library Digital Literacy Advisory Team, Telework Coalition, and the Mobile Work Exchange Visionary Committee.

Monica is the Vice Chair of the Inland Northwest Partners and on the Advisory Board for the National e-Commerce Extension Initiative. She was at a major telecommunications company in Washington for fourteen years working in operator services, accounting, marketing and public affairs.

Monica has a BA from Eastern Washington University in Social Work and worked in several social service agencies.

For further information, contact Monica L. Babine,  babinem@wsu.edu.

 

UPDATE! Speakers Confirmed for 2014 “Taking Smoke Signals Digital” Telecom Conference

Posted in Communications

You are Invited

2014 “Taking Smoke Signals Digital”
Telecom Conference

October 15-16, 2014

Please RSVP here by October 5, 2014

Speakers:

Senator John McCoy (Tulalip), Washington State Legislature
Howard Brown, Tulalip Data Services
Chris St. Germain, Nez Perce Tribe, Broadband Coordinator
Randy Harris, Quinault Indian Nation
Andrea Alexander (Makah), ATNI Telecommunications Committee, Moderator
Brian Howard, NCAI Legislative Associate
Chairman TJ Greene, Makah Nation
Kevin Lenon, Vice Chair, Sauk-Suiattle Tribe
Monica Babine, OneNet
Judy Endejan, Garvey Schubert Barer
William Cornelius (Oneida), Baker Tilly
Trudy Skari, MT Broadband
Ron Flavin, Growth & Funding Strategist
Valerie Fast Horse (Coeur d’Alene), IT Director, Coeur d’Alene Tribe
Bob Walsh, GCI
Kevin Bearquiver, BIA Deputy Regional Director, Trust Services, Pacific Region
Anika Evans (Gila River), Highliner Consulting Group
Lael Echo-Hawk (Pawnee), Garvey Schubert Barer
Andrea Alexander (Makah), ATNI Telecommunication Committee
Matt Rantanen (Cree, Finnish & Norwegian), Tribal Digital Village
Traci Morris (Chickasaw), Director, American Indian Policy Institute, Arizona State University

Conference Highlights:  Presentations by Geoff Blackwell, Chief, FCC Office of Native American Affairs and Policy, USDA and Washington Onenet representatives.

When:  October 15-16, 2014

Where:  Tulalip Resort, Tulalip, Washington

October 15, 2014
8:00  Registration

8:30  Introduction & Welcome

8:45  Success Stories: Tribes that built their own communications infrastructure tell their stories of how tribal economy, public safety, education and health systems improved.

10:30  Communication Challenges facing Indian Country:  Learn about the challenges facing Indian Country such as limitations on ability to educate tribal students, job creation, economic development, and health care.

11:45  Lunch – Geoff Blackwell (Chickasaw), Chief, FCC Office of Native Affairs and Policy

1:00  FirstNet/One Net presentation.  Developing a First Responders Network in Indian Country.

2:00  Paths to Meeting Tribal Needs:  What are the “Nuts & Bolts” of wired, wireless, and broadcast opportunities?  How does my tribe or tribal organization become an Eligible Telecommunications Carrier (ETC) or create a telco?  Why partner with communications providers?  This session will cover operating entity formation, regulatory clearances, technical and operational issues.

3:45  How to Pay for It: Finding buckets of money to help build communications infrastructure. Find out what kind of funding is available at various government agencies and private sources to support broadband in the schools and libraries, Rural Healthcare, Rural Telecom, and Tribal Mobility Funds.

5:30  Reception

October 16, 2014
8:30  Bringing Broadband to Indian Country: Learn how Tribes can build the necessary infrastructure to truly go Digital by doing it themselves or developing partnerships with carriers. Understand the “dirt” issues that might slow progress and how to navigate through them.

10:45  Collaboration into the Future: What can Indian Country do to address the lack of access to broadband?

12:00  Lunch – On Your Own

1:30 – 3:00  Wrap Up: Discussion on role of tribal sovereignty and how to address the cultural issues faced while going digital.

If you would like to attend this event, or know someone from your organization that may be interested in attending, please RSVP here by October 5, 2014.

If you have questions or need additional information, please contact Lael Echo-Hawk at (206) 816-1355. Space is limited and RSVP is required.

A Changing Landscape for Property Taxes on Tribal Lands

Posted in Tax

Friends, after many many years of advocating for the right of tribes to tax non-tribal businesses or vendors on tribal land, Indian Country is finally seeing some momentum.  With the passage of the 2014 Tribal General Welfare Exclusion Act , the IRS will no longer be able to tax individual Indians who receive the benefit of  tribal “general welfare” programs such as education and healthcare.  The recent 11th Circuit District Court in a tax dispute at Seminole FL held that certain state taxes on leases at the Seminole property were preempted by the comprehensive leasing regulations adopted by the Obama Administration.  Agua Caliente is challenging a similar state tax at the 9th Circuit and while those cases will certainly be subjected to additional litigation, the landscape is clearly shifting towards respecting a tribe’s right to impose its own tax on its own land.  My colleague Miriam Woods blog below elaborates on these cases and discusses how the recent legislation enacted in Washington State is also moving the ball forward.  Now is a perfect time to begin reviewing your lease agreements and tax structure to come up with a plan to successfully begin to exercise what is a critical right of sovereignty – to determine and impose your own tax while driving economic development in Indian Country.

Comment, tweet @laeleh, message me on LinkedIn lechohawk, or shoot me an email if you have questions or want to explore this concept further, L

Throughout the nation legislators and courts are revisiting the state and local taxation of tribal land leased to non-tribal members. In late 2012, after finding that even the possibility of a state or local tax on leases by tribes may stop the tribes from imposing their own taxes, the Bureau of Indian Affairs (BIA) revised its regulations on the leasing of Indian land. Now, when a tribe leases tribal land to a non-Indian, the lease interest cannot be taxed by any state or local government.[1]

Shortly after the BIA revisions were enacted, the U.S. District Court for the Southern District of Florida struck down a rental tax applied to commercial property on leased tribal land.[2] The Court found that the tax was expressly prohibited under the new regulations. And “[i]f Florida’s Rental Tax does not apply, an entity leasing tribal land will have additional money in its pocket—money that would then be available to the Tribe, either through negotiated higher rent or through a tribal tax.”[3]

Earlier this year the Agua Caliente Band of Cahuilla Indians sued Riverside County, California for collecting a possessory interest tax from leaseholders of Indian land, stating the tax infringes on tribal sovereignty: “Riverside County uses the money collected on the Reservation to benefit people living in other cities and areas far away from where the taxes are collected,” said Agua Caliente Chairman Jeff Grubbe. The complaint, filed Jan. 2 in the U.S. District Court for the Central District of California, states that the tax increases the tribe’s economic burden and devalues Indian land leases.[4] And the tax limits the tribe’s income—the tribe agreed to forgo its own tax to avoid a double tax on its leaseholders.[5] County officials insist the tax is valid under the new regulations.[6]

Here in Washington, Gov. Jay Inslee signed a new bill into law[7] last April that aims to subject Indian tribes to the same conditions as state and local governments with respect to property owned exclusively by the tribes. The law expands an existing tribal property tax exemption, imposes a leasehold excise tax (LET) obligation on leasehold interests of exempt tribal property, and imposes a payment in lieu of tax (PILT) obligation with respect to exempt tribal property if there is no taxable leasehold interest in the property for LET purposes.  The Department of Revenue published a chart[8] to help taxpayers determine whether their property is taxable under the new law:

Tribal Property Owned in Fee Inside Reservation Outside Reservation
Non-Economic Development Property
*Property owned by the tribe and used to provide an essential government service other than economic development.
Eligible for Exemption Eligible for Exemption
Economic Development Property
*Property owned by the tribe on or before March 1, 2014 and occupied by the tribe for economic development purposes.
Eligible for Exemption
*Annual Renewal Required
Eligible for Exemption
*PILT agreement is a requirement for exemption

*Annual Renewal Required
Economic Development Property
*Property owned by the tribe on or before March 1, 2014 and occupied by a tenant for economic development purposes.
Eligible for Exemption
*Upon exemption, non-tribal tenant is subject to LET

*Annual Renewal Required
Eligible for Exemption
*Upon exemption, both tribal and non-tribal tenants are subject to LET

*Annual Renewal Required
Economic Development Property
*Property acquired by the tribe after March 1, 2014 and occupied for economic development purposes.
Not Eligible for Exemption Not Eligible for Exemption

Some tribes, including Tulalip, are developing their own property tax provisions and enforcement regimes now that the concern of double taxation is beginning to subside. And for now exempt improvements on tribe-owned land, taxpayers may qualify for refunds from the county on prior years’ property taxes. This is a good time for tribes and lessees alike to review the new tax provisions and the terms of their leases. Please contact Miriam Woods to discuss how these developments may apply to your specific situation.

____________________________________________

[1] 25 CFR 162.017.
[2]
Seminole Tribe of Florida v. Florida Department of Revenue, 2014 WL 4388143 (S.D. Fla. May 5, 2014).
[3]
Id. at 6.
[4]
Brief of Plaintiff at 5, Agua Caliente Band of Cahuilla Indians v. Angulo, No. 14-00007 (C.D. Cal. Jan. 2, 2014).
[5]
Id.
[6]
Brief of Defendant, Agua Caliente, No. 14-00007 (C.D. Cal. Jul. 28, 2014).
[7]
Ch. 207, Laws of 2014.
[8] DOR Legis. Update, Subjecting Federally Recognized Indian Tribes to the Same Conditions as State and Local Governments for Property Owned Exclusively by the Tribe at 2 (Jul. 2, 2014), available at http://dor.wa.gov/Docs/Pubs/SpecialNotices/2014/SN_14_FedRecogIndianTribes.pdf. 

AK GOP Candidate Threatens Native Rights – The Native Vote Counts!

Posted in Native Rights

Please see the article HERE on the threat to Native rights posed by Alaskan GOP candidate Sullivan. The Native community in Alaska made their voice heard by going to the polls and writing in Lisa Murkowski. She won. We must continue to educate our community on the importance of voting and the importance of educating ourselves about the candidates who will speak on our behalf on local, state and national matters that impact Indian Country. Thanks Heather and Lloyd for the great analysis.

#GetOutTheVote
Lael

Tribal Sovereignty Means Making Decisions for Ourselves. Period.

Posted in Indian Law

On August 21, 2014, the Washington State Supreme Court ruled that the State court has jurisdiction over civil cases arising on Indian reservations between a tribal enterprise and a non-tribal vendor.  In Outsource Serv. Mgmt., LLC v. Nooksack Business Corporation, the Nooksack Business Corporation, and entity of the tribal government, signed an irrevocable limited waiver of sovereign immunity which among other things, consented to be sued in “any court of general jurisdiction in the State.” The Court did not buy the Tribe’s argument that because the matter arose on the reservation and was between the Tribe and a non-tribal vendor, the waiver was irrelevant and exertion of State Court jurisdiction over the matter would infringe on tribal sovereignty.

Practice Tip:  Make sure your Tribal clients understand that if they sign a waiver consenting to suit then courts will honor that provision even if the dispute arose on tribal land and was between the Tribe and/or its business entity and a non-tribal vendor. The Montana “consensual relationship” exception will not save you.

In fact, the Court said that “ignoring the tribe’s decision to waive sovereign immunity and consent to state court jurisdiction would infringe on the tribe’s right to make those decisions for itself.”  The dissent agrees that there was an effective waiver, but disputes that the waiver by itself gives the State courts jurisdiction over the Tribe.

Here’s the deal, tribal sovereignty is ability to make decisions for ourselves. Good or bad, advised or ill-advised – that is the whole point of sovereignty.  As trusted advisors to tribal governments, we need to be prepared to provide tribal councils with the pros, cons and potential outcomes for the decision so that they can make informed decisions.

Sovereign immunity is an established principle of jurisprudence that holds a sovereign cannot be sued without its consent and permission. Or in other words, “the King [or Chief] can do no wrong.” But the sovereign CAN waive that right.

The question I’ve been interested in lately is the mechanism by which a tribe can waive their sovereign immunity.

For a business, anyone with “apparent authority” from the outside vendor’s perspective who signs a contract can obligate the company to the terms of the contract even if that person was not authorized to sign the contract. But this is not true when dealing with a government, including tribal governments.

I’ve been looking at cases where a waiver of sovereign immunity was signed by Joe So-and-So in the Tribal finance department who signed a contract and the court has to grapple with whether a waiver included in that contract waiver was effective.

Case law is clear that in order to be effective, a tribal waiver of sovereign immunity must be explicit and should be strictly construed.  However, even when the tribal waiver is clear, it must be signed by a duly authorized tribal representative to be effective – even if this means the other party cannot enforce the terms of the contract.

Recommendation? Tribes should develop clear guidelines for how and when sovereign immunity can be waived.

  1. Draft an ordinance or resolution that clearly specifies how and when the Tribe’s sovereign immunity can be waived; and
  2. Diligently comply with that process. (And I do mean, Diligently!)

Tribal sovereignty is under attack. We dodged a bullet in Bay Mills (although the SCOTUS included some zingers in that opinion. Ex Parte Young anyone?) Indian Country must be fastidious about protecting this inherent right. There are many reasonable reasons, particularly in a business context to consider limited waivers of sovereign immunity, but understand that once it is waived, courts will respect that decision. We have to be smart, do good business, and by all means, protect our right as tribal governments to make our own decisions.

Questions? Ideas on how to protect our rights? Add your comment!

RESCHEDULED - “Taking Smoke Signals Digital” Telecom Conference

Posted in Communications

Due to scheduling conflicts and interest from other organizations interested in collaborating in the event, we are rescheduling for late Fall or early Spring 2015. If you are interested in attending or sponsoring or have ideas about additional agenda topics, contact Lael Echo-Hawk at echohawk@gsblaw.com.

Stay tuned!!
Lael

Date TBD
Presented by Garvey Schubert Barer

What:
You’re invited to the 2014 Telecom Conference
Taking Smoke Signals Digital: A Practical Toolkit for Tribes

Conference Highlights:
Conference will include presentations by Geoff Blackwell, Director, FCC Office of Native American Affairs and Policy and a representative from the USDA.

When:
TBD

Where:
Tulalip Resort, Tulalip, Washington
If you are interested and would like to attend or sponsor this event, or know someone from your organization that may be interested in attending, please email Lael Echo-Hawk at echohawk@gsblaw.com.

Breaking Barriers – Architect Johnpaul Jones (Cherokee/Choctaw) Awarded the National Medal of Humanities

Posted in Culture

This week, Architect Johnpaul Jones (Cherokee/Choctaw) received the National Medal of Humanities Medal from President Obama.  I was introduced to Mr. Jones by my colleague, Barbara Holland, and was struck by his humility and gracious spirit.  For those of you who are not familiar with his name, you will likely be familiar with his work.  He was lead consultant on the National Museum of the American Indian, Chief Seattle Club and more recently worked on the Tanana Chiefs Conference Clinic in Fairbanks, Alaska.  Mr. Jones creates beautiful spaces that exude peace and tranquility in an often hectic, stressful environment.

He was awarded the Medal for his work as an Architect, “for honoring the natural world and indigenous traditions in architecture. A force behind diverse and cherished institutions, Mr. Jones has fostered awareness through design and created spaces worthy of the cultures they reflect, the communities they serve, and the environments they inhabit.”

As I watched the presentation, I was struck by the historic moment I was watching – a Native American man receiving a National Medal of Humanities by an African American President.  I have been a HUGE supporter of President Obama – I even caucused for him during the first election.  I froze my tushie off in the D.C. cold during his first inauguration and was slightly less cold during his second.

But I have to admit, I was a cynic on Election Day.  I never believed that this country with its oh-so-complicated history of race relations would strive for change and actually accomplish it.  As the numbers began to come in and it became clear that a BROWN man would become the President of the United States, I became very emotional as I was struck by the thought that now my beautiful brown nephews and nieces could also one day achieve this very thing.

We are in the midst of the debate about the “R******n” mascot name.  A righteous battle.  But I wanted to take a moment from that discussion and honor a true Native American role model, Mr. Johnpaul Jones.

Today, glass ceilings and artificial restrictions designed to oppress the “minority” are being smashed into oblivion by people like Johnpaul Jones and President Obama.  And as we continue the good fight, acknowledging each milestone, we continue to pave a smoother way for our young people.  What could possibly be better than that??

#NotYourMascot

L

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