Social and Economic Challenges on American Indian Reservations: Recent Statistical Study

October 24, 2017 Comments Off on Social and Economic Challenges on American Indian Reservations: Recent Statistical Study

Social and economic development on tribal land has always been difficult. The reasons for this are complex and rooted in historical and cultural conflict. But census and other survey data show that Indian tribes have made some gains in recent decades, while still lagging other minorities in the United States.

In 2014, Randall K.Q. Akee and Jonathan B. Taylor published a study entitled, Social and Economic Change on American Indian Reservations: A Databook of the U.S. Census and the American Community Survey, 1990-2010. Akee and Taylor concluded that, although American Indians living on reservations have a per capita income that is less than half the U.S. average, tribes have experience an increase in income and in other areas. A brief summary of their findings are:

  • By 2010, most tribes could be considered gaming tribes, and some 92% of Indians lived on reservations with gaming operations.
  • Per capita income and median household income increased in the 1990s, but slowed in the 2000s.
  • Gains in family and child poverty improved in the 1990s, but the improvement slowed in the 2000s.
  • Unemployment among Indians on tribal land fell in the 1990s and fell only slightly more in the 2000s, while labor force participation remained about the same from 1990 to 2010.
  • Housing improved on most Indian reservations, but remain worse than housing in the U.S. overall.
  • The number of Indians on tribal land with high school and college degrees has increased since 1990, but is not at parity with the U.S. average.

A summary of the Databook is available here. The full Databook is available here.

The improvement in these statistical measurements may well have been fostered by the policy of self-determination and the development of Indian gaming, but additional gains are necessary to improve social and economic conditions for Indians living on tribal land to a level on par with the U.S. average.

If you have any questions about federal Indian law, tribal law, or general business or employment law, please contact me at Mangum, Wall, Stoops & Warden, PLLC by using the contact information provided below.

James D. Griffith is an Associate Attorney at Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts. For information on the legal services offered by Mr. Griffith, please call (928) 779-6951 or toll free at (800) 514-6064 or through the “Contact Us” page at the website for Mangum, Wall, Stoops & Warden.

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DEVELOPING ENVIRONMENTAL LAW IN INDIAN COUNTRY

September 30, 2013 Comments Off on DEVELOPING ENVIRONMENTAL LAW IN INDIAN COUNTRY

Professor Elizabeth Ann Kronk Warner recently posted a working paper, entitled Examining Tribal Environmental Law, that reviews the existing tribal laws governing environmental protection and provides some initial thoughts on further development of tribal environmental law.[1] In this article, Professor Kronk (Director of the Tribal Law and Government Center at the University of Kansas School of Law) surveyed the publicly available tribal laws and found that just over one-half of all federally recognized Indian tribes have enacted an environmental law in at least one of four categories (air, water, solid waste, and environmental quality). She also found that only the Navajo Nation has enacted tribal environmental laws in all four categories.

After discussing the legal and jurisdictional context for tribal environmental law, and the results of her survey of existing tribal codes, Professor Kronk provides three initial thoughts on the development of tribal environmental laws. First, she suggests that, because some tribes may not be ready to enact fully developed environmental laws (due to financial considerations, small land bases, limited natural resources, or other tribal priorities), tribes may want to consider codifying their environmental ethic without implementing a full environmental code. At a minimum, codifying an environmental ethic will provide an important interim statement and emphasize the tribe’s intrinsic connection with the land, water, plants, and animals on tribal land and elsewhere.

Second, tribes may want to craft tribal environmental laws that will apply to non-Indians and non-member Indians who are acting on non-Indian lands within tribal land. Professor Kronk bases this suggestion directly on the Montana rule,[2] which holds that Indian tribes do not have jurisdiction to regulate the activities of non-members who act on non-Indian land within a reservation’s boundary. Notably, however, the Montana rule has two exceptions that will permit the tribe to regulate non-members acting on non-Indian fee land if: (1) the non-member has significant commercial dealings with the tribe or tribal members; or (2) the non-member’s activities threaten the political, economic, or welfare interests of the tribe. Professor Kronk contends that a tribe can obtain jurisdiction over the non-member by enacting tribal environmental laws requiring that permits for the discharge of pollution affecting tribal land be issued only if the non-member agrees to tribal jurisdiction (under the first exception to the Montana rule). Further, she suggests that tribes can invoke the second exception by drafting tribal environmental laws designed to protect the health and welfare interests of the tribal community.

Third, Professor Kronk suggests that tribes may want to consider tribal customs and spirituality when developing tribal environmental laws. In so doing, each tribe’s environmental laws will reflect the environmental ethic of that tribe. Federal environmental laws do not regulate to protect cultural and religious interests, and thus, federal law does not preempt or prevent Indian tribes from exercising their sovereignty and regulating for such purposes. Thus, a tribe could enact an environmental law to protect a cultural or sacred site that is within the boundaries of its reservation.

Finally, Professor Kronk contends that, although many reasons exist for tribes to adopt environmental laws, tribe may want to consider adopting environmental laws for two main reasons. First, tribal environmental laws will promote both tribal sovereignty and tribal environmental ethics. Second, tribal environmental laws are necessary because of current environmental issues and the development of natural resources.

The research of Professor Kronk and others on tribal environmental law seems particularly relevant today as tribes seek to develop natural resources and green energy as well as protect tribal environmental, cultural, and religious interests. A copy of this paper can be downloaded from the Social Science Research Network.

We hope that this summary has been informative and helpful. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

Endnotes

[1] Elizabeth Ann Kronk Warner, Examining Tribal Environmental Law (Sep. 7, 2013) (unpublished working paper), available at http://ssrn.com/abstract=2322322.

[2] Montana v. United States, 450 U.S. 544, 564-66 (1981).

NAVAJO NATION HUMAN RIGHTS COMMISSION MEETS WITH UN WORKING GROUP

June 9, 2013 Comments Off on NAVAJO NATION HUMAN RIGHTS COMMISSION MEETS WITH UN WORKING GROUP

Earlier this month, Indian Country Today reported on a meeting between the United Nations Working Group on Business and Human Rights and the Navajo Nation Human Rights Commission (NNHRC). On April 27, the UN Working Group and NNHRC met to discuss the effects of two (non-Indian) business activities on the human rights of Navajos. First, the meeting addressed the use of treated wastewater to make snow at Arizona Snowbowl on the San Francisco Peaks. Second, the meeting examined the predatory auto sales and lending practices of Santander Consumer USA in light of language and cultural barriers.

The UN Working Group met with the NNHRC while on an official visit to the United States. After visiting other countries, the UN Working Group will prepare and publish a report, which is expected in June of 2014.

As part of an initial response to the meeting with NNHRC, the UN Working Group identified both governmental and business sector deficiencies with regard to the human rights of indigenous peoples. The initial response states:

While several federal initiatives and measures to protect the rights of indigenous peoples have been put in place in the United States in recent years, many stakeholders have indicated that more needs to be done to … protect the rights of indigenous peoples with regards to impacts of business activities . . . . We notice that when it comes to contexts such as those of the Native Americans, the weakness of protection afforded by the state against human rights violations is often regrettably reciprocated by commensurately poor understanding of the intent of corporate responsibility in respecting human rights. This results in significant challenges to turn appropriate human rights policies into effective practice.

In other words, the Working Group suggested that poor efforts by the federal government to protect the human rights of Native Americans are compounded by a poor understanding of the questionable (if not irresponsible) lending practices of some non-Indians businesses.

Although the federal government has some responsibility, could tribes also take steps to protect tribal members from predatory lending practices by non-Indians? Perhaps, yes. For example, a tribe could form a tribal corporation that offers auto and other loans to its members, thereby removing the non-Indian lender from the loan transaction. Existing tribal laws governing secured transactions, or adoption of the Model Tribal Secured Transactions Act (discussed here), could be used to enforce the loans while also protecting tribal members from non-Indian predatory lenders. Some means of regulating the tribal corporation (the lender) would be necessary, but that would be under the control of the tribe.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

UPDATED: PENDING ARIZONA LEGISLATION AFFECTING INDIAN TRIBES

February 26, 2013 Comments Off on UPDATED: PENDING ARIZONA LEGISLATION AFFECTING INDIAN TRIBES

UPDATE 04/29/2013: Only two of the bills listed below have survived the legislative process so far. Versions of House Bill 2205 have passed in both the House and the Senate, and a conference committee is currently working on amendments to which both the House and the Senate can agree. HB 2205 places restrictions on ATM and point-of-sale terminals at tribal gaming facilities (see below for more information on this bill). Senate Bill 1317 passed in the Senate and is now being considered by the House. SB 1317 would authorize distributions from the State Aviation Fund for aviation facilities on tribal land (see below for more information on this bill).

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The legislation introduced in the current session of the Arizona Legislature includes a number of bills that relate to Indian tribes and Indian affairs. The following lists the major bills introduced, provides a brief summary of each bill and how it affects Indian affairs, and gives the current status of each bills. The list does not include all bills in the Arizona Legislature related to Indians and tribes.

SB 1431: Special License Plates for American Indian Veterans National Memorial

This Senate bill authorizes the Department of Transportation to issue special license plates honoring American Indian Veterans if a non-governmental entity pays an initial $32,000 to the Department and provides an acceptable design for the plate. The bill would also establish an American Indian Veterans National Memorial Fund. For each license plate, a $25 special fee would be charged, and $17 out of each $25 fee would be allocated to the Fund. The bill calls for the first $32,000 contributed to the Fund to be reimbursed to the entity that paid the initial $32,000. After the reimbursement, all other money deposited into the Fund would be used to support an in-state institution dedicated to Indian art and history that has a memorial honoring American Indian veterans. The bill is currently in committee. Click here to read the bill.

SCM 1002: Cabinet-Level Indian Affairs Department

This concurrent memorial (a type of resolution) was introduced in the State Senate and urges the Governor to establish a cabinet-level Indian Affairs Department. As support for the creation of an Indian Affairs Department, the memorial notes that Arizona is home to more than 294,000 American Indians and 22 Indian nations and tribes, and that these Indians and tribes contribute significantly to Arizona’s economy. The memorial also recognizes that New Mexico, with a smaller Indian population, established an Indian Affairs Department to address policies and programs affecting Indians and to promote a “strong, respectful and productive relationship” with Indians and tribes in New Mexico. The memorial is currently in committee. Click here to read the memorial.

HB 2522 / SB 1319: Allocation of Transaction Privilege Tax Revenue for Telecom Infrastructure and Community Development on Tribal Land

This bill was introduced in both the House and the Senate and allocates certain tax revenue for telecommunications infrastructure and community development on tribal land. Under A.R.S. § 42-5029(A)(3), the state is required to separately account for tax revenues collected from sources on Indian reservations in Arizona. This bill adds a new subsection to § 42-5029 that requires fifty percent of all transaction privilege taxes collected under § 42-5029(A)(3) be given to the Indian tribe on whose reservation the transaction occurred. Notably, the amendment also requires that the tribe use the revenue for telecommunications infrastructure and for community development. Please note that state taxation in Indian Country is a complex area of law and that the collection and sharing of revenue with an Indian tribe may require a state-tribal compact. Both the House Bill and the Senate Bill are currently in committee. Click here to read HB 2522 and here to read SB 1319.

HB 2205: Restrictions Affecting ATM and Point-of-Sale Terminals at Tribal Gaming Facilities

This house bill applies to “electronic benefit transfer” cards, or EBT cards, issued to persons who receive cash assistance under a state welfare program. Specifically, the bill would prevent a person to whom an EBT card is issued from redeeming the EBT card at ATM and point-of-sale terminals located at liquor, gaming, and adult entertainment facilities. In addition, the bill would require Indian tribes to enact a tribal ordinance that (1) prohibits placing an ATM near any gaming device, and (2) prohibits placing an ATM or point-of-sale terminal that accepts EBT cards in a gaming facility. After amendments to the bill’s language, the bill cleared the Reform and Human Services and Rules Committees and was reread on the House floor. Click here to read the bill, as amended.

SB 1317: Distributions from State Aviation Fund to Indian Tribes for Aviation Facilities on Tribal Land

Senate Bill 1317 permits Indian tribes to receive money from the State Aviation Fund if the funds are used for the planning, development, land acquisition, and construction of airport facilities. The airport must be publicly owned and operated on land that is owned by an Indian or owned by an Indian tribe. This bill now proper for consideration by the State Senate. Click here to read the bill.

HB 2338: Partnerships to Establish Regional Water Augmentation Authorities

This bill allows for the formation of Regional Water Augmentation Authorities (RWAA) by two or more public and private organizations, including Indian tribes. An RWAA may also partner with an Indian tribe as part of its work in the delivery and treatment of water. The bill is still in committee. Click here to read the bill.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

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