Feds Flout Bald Eagle Protection & Tribal Consultation

By Amber Penn-Roco

The American Bird Conservancy (ABC) recently filed a Complaint in the U.S. District Court for the Northern District of California against the U.S. Fish and Wildlife Service (USF&W) and the U.S. Department of the Interior, challenging a final rule that loosened protections for bald and golden eagles for the sake of wind energy developers.

The Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act prohibit the killing of bald and golden eagles without a federal permit.  In the Complaint, ABC challenged a rule that extended the total maximum duration of the federal permits, from 5 years to 30 years.  ABC alleged that the final rule violates the National Environmental Policy Act, the Bald and Golden Eagle Protection Act and the Administrative Procedure Act.  ABC alleged that the rule was “promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles.”  ABC argued that by extending the length of the permit, the rule eliminated the need for wind companies to renew permits.  The renewal applications would have required agency decision-making processes, necessitating public comment.  Therefore, ABC argued that the rule interferes with the ability of the public to participate and meaningfully advocate for eagles.

The rule has rightfully drawn opposition from Indian Country. The USF&W initially attempted to consult with Indian Country; the agency met with the National Congress of American Indians.  The meeting did not appear to be effective, as one month later the NCAI passed a resolution accusing the USF&W of failing to meaningfully consult with tribes.  The Nez Perce, San Carlos Apache, Sault Ste Marie Chippewa Indians and Hopi Tribes each submitted public comments opposing the rule, in part due to  of the lack of effective tribal consultation.

Outreach to NCAI is by no means the consultation required by federal law.  Indeed, as one federal court explains: “grouping tribes together (referring to consultation with ‘tribes’) is unhelpful: Indian tribes aren’t interchangeable, and consultation with one tribe doesn’t relieve the [Fed] of its obligation to consult with any other tribe that may be a consulting party.”  See Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dept. of Interior (S.D. Cal. 2010).  Not to mention, NCAI isn’t even a tribe.

ABC’s lawsuit will hopefully force the United States to reconsider the impacts of the rule on tribally sacred bald and golden eagle populations.  However, none of the plaintiffs in the lawsuit are tribes, and, therefore, the lawsuit may not reflect Indian interests.  Tribes may be formulating their own challenges to the final rule.  Alternatively, as the record reflects a lack of government-to-government consultation, tribes should consider using this as a basis to intervene in ABC’s action.  Unfortunately, as the final rule has been promulgated, tribes must now look to litigation to ensure that tribal interests are considered.

Amber Penn-Roco is an Associate with the Seattle office of Galanda Broadman, PLLC.  Amber’s practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  She is an enrolled Chehalis Tribal Member.

Interior's Indian Land Buy-Back Plan: More Sketchy By the Day

Consider the highlights--or lowlights--of Interior's latest "plan" for Indian land "buy back." First, "the program will exclude reservations east of the Mississippi and in Alaska" according to Interior's appraisers. In addition, Western states with high concentrations of Indian lands, most notably California, are not on Interior's priority list for federal buy back funding.

Second, according to Interior's latest plan, "once fair market value determinations have been made, the Department will mail offer packages to individuals with ownership interests in those valued tracts and seek to acquire those interests that individuals are willing to sell."

In other words, Interior expresses no intention of consulting in person with individual Indian landowners to ensure they understand the proposed purchase and sale transaction. That despite a clear ruling in Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004) that such sales "require communication between individual Indian trust-land owners and agents of Interior.” Mass mailings are simply not the communication or consultation that is required to cause Indians to fully understand the consequences of signing boilerplate papers that will cause them to cede their ancestral lands.

Third, nowhere in the plan does Interior "respond to concerns about the conflict of interest it will face during either voluntary or forced sale—meaning how it will simultaneously fulfill its trust responsibility to both a tribal government buyer and a tribal member seller."

Indeed: "On the issue of fair market value alone, that conflict cannot be avoided. Even a willing member seller will want the purchase price to be as high as possible, while both the tribal buyer and Interior will want the price to be lower, in the interest of spreading as far as possible the $1.55 billion allocated for land consolidation." So much for the federal trust responsibility owed to tribal members, or the so-called "lessons learned" from Cobell.

Finally, Interior continues to feign that "the Buy-Back Program is strictly voluntary." It is not. As Buried towards the end of the plan is this cryptic disclaimer: "Under the terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary...The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy-Back Program."

In more meaningful words, under 25 U.S.C. 2204 tribes have the right to force the sale of their members' land interests. "Make no mistake about it: while Interior’s plan now disclaims that it will facilitate forced sales under 25 U.S.C. 2204, the buy back program will catalyze controversial intra-tribal forced sales." It is sketchy to feign or suggest that it won't.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Freedom’s Just Another Word: The BIA’s FOIA Debacle

The Bureau of Indian Affairs needs an attitude adjustment when it comes to freedom of information. That is because the BIA, or at least its Pacific Northwest Region, stifles the spirit of the Freedom of Information Act (FOIA), including when it comes to the agency’s trust responsibility to Indian people. Any tribal official or citizen who has sought information from the federal Indian trustee, knows that the Bureau does everything in its power to choke the flow of information to tribal government and citizens. Having had clients in search of needed information, outright disrespected by the BIA, the Bureau’s illegal practices must be brought to light – and halted by the Assistant Secretary of Indian Affairs for the Department of Interior.

During his first term in the Oval Office, President Obama issued an Executive Order, mandating that when “responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.” 74 Fed. Reg. 4693 (Jan. 21, 2009). Yet despite this order that the BIA cooperate in service to the public, consider two recent examples of how uncooperatively the Bureau’s Pacific Northwest Regional Office treated tribal parties seeking information critical to them.

Last year a tribal enterprise requested information about Bureau commercial regulatory practices regarding Tribal trust resources. That information should have been produced without a FOIA request, because the United States’ fiduciary responsibility affords tribal trust beneficiaries “government documents prepared in aid of trust administration,” and “the requirements of FOIA serve different policies and interests” than does the execution of that duty. Osage Nation v. U.S., 66 Fed.Cl. 244 (Fed. Cl. 2005).

Even so, the Bureau required a FOIA request, as it typically does. Then, after the tribal entity wrote the BIA pursuant to FOIA, the Regional Director (or his Solicitor) glibly replied, and I quote:

The law is clear that the FOIA is not meant to have federal agencies become the research arms of other entities.

What gall, especially because the law could not be more clear: FOIA is in fact designed to cause federal agencies to be research arms – of the taxpaying American public, including Indians.

More recently members of a tribal council requested from the BIA all documents regarding a Secretarial election. In order to receive 1,000 pages of information, the BIA assessed them fees of over $10,000 – an astonishing $10 a page. What Indian or Tribe has $10,000 lying around, especially for purchase of their own federal documents?

After the Councilpersons requested a fee waiver, explaining that they needed the election records to for fundamental governmental purposes, the Regional Director (or his Solicitor) deemed the request one of “commercial interest” and reasoned:

'This request concerns individuals that would derive benefits from being enrolled in a specific tribal government and disclosure provides specific information on how individual tribal members voted. As such, your commercial interest in these disclosures is your primary interest and clearly outweighs any public interest’ in disclosure.

Again, what gall, to insult tribal citizens by declaring their governmental concerns a matter of monetary interest. Imagine the BIA offering the same explanation to a U.S. Senator asking for governmental documents.

It is time for Assistant Secretary Kevin Washburn to change the attitude of the BIA’s career employees regarding disclosure of information to the tribal public. This spring, Secretary Washburn remarked that the recent Cobell settlement allows the United States and Indian Country to “hit the reset button” on the federal Indian trust relationship. The reset button must also be hit as to Interior’s role as trustee of Indian records and information.

Indeed, “[t]he common law recognizes an obligation on the part of the trustee to provide full and accurate information to the beneficiary on his management of the trust.” Martin v. Valley Nat'l Bank of Arizona, 140 F.R.D. 291, 322 (S.D.N.Y. 1991); see also Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004). The two anecdotes I share suggest that Interior has not sufficiently learned its lesson from Cobell about tribal access to trust-related information.

In all, when responding to requests under the FOIA, the BIA should start acting promptly and in a spirit of cooperation, recognizing that the agency is a servant of the American Indian public. Perhaps then freedom of federal Indian information will reign.

Gabriel S. Galanda is a Round Valley Indian Tribal member and a partner with the Seattle office of Galanda Broadman, PLLC. Gabe has sued the Department of the Interior and BIA for freedom of federal Indian information. He can be reached at gabe@galandabroadman.com.

Nez Perce v. Megaloads: Another Treaty-Based Consultation Victory

On September 12, an Idaho federal district court stopped massive industrial equipment headed for the Alberta Tar Sands -- now commonly known as the Megaloads -- from traversing Nez Perce Treaty-protected ceded lands. The federal court's decision affirms the power of Indian Treaties and the intrinsic consultation requirements of those sacred pacts. Article III of the Treaty with the Nez Perces of 1855 reserved for Nez Perce Indians the “right of taking fish at all usual and accustomed places” and “the privilege of hunting . . . upon open and unclaimed land.” As the court explained: "Although the Nez Perce ceded the lands now encompassing the Nez Perce Clearwater National Forests to the United States, 'they did not relinquish rights to hunt, fish, and gather, or to practice traditional religious and cultural ceremonies on these ancestral homelands.'”

Critically, even though Article III of the Nez Perce Treaty does not mention the word "consultation," the federal court ruled that: The duty of the Forest Service to conduct a consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by Treaty rights" – "there is no discretion to refuse consultation." And "[w]hen the duty to consult runs to a Tribe, the federal agency generally must consult with the Tribe before taking the action at issue." Indeed, "meaningful consultation takes place “typically before undertaking a course of action” (emphasis in original).

The Nez Perce Megaloads decision is at least the second recent decision from the federal courts, affirming Treaty-based consultation requirements over ceded or off-reservation lands, even though the Treaty Articles at issue do not mention the word "consultation." In 2010, a Washington State federal court enjoined the United States from allowing a private garbage contractor from importing municipal waste from the Hawaiian Islands into the Yakama Nation's ceded lands and fishing, hunting and gathering areas. That court ruled that there were "serious questions about whether Defendants adequately consulted with the Yakama Nation as required by [Article III] of the Yakama Treaty of 1855," even though that Treaty Article, too, does not expressly require consultation.

Under international legal norms, "the treaty obligation to consult that is intrinsic in any bilateral agreement between nations." G. Galanda, "The Federal Indian Consultation Right: No Paper Tiger," Indian Country Today; see Restatement (Third) Foreign Relations Law of the United States §§ 325, 337 (1986).  When will the United States begin to truly honor this norm?  Indeed, Nez Perce v. Megaloads, like the Yakama Hawaiian garbage case and the Quechan solar power case, illustrate how even the "pro-tribal" Obama Administration will flout federal Indian consultation rights in order to cut red tape for, and otherwise fast-track, pet projects like Tar Sands.

In fact, when the political and economic stakes are high, and the choice must be made between siding with either mega-corporations, or Indians, the United States and its President will always -- ALWAYS -- side with almighty corporate interests, and ignore guaranteed Indian rights. That paradigm is nothing new to Indian Country; it has been happening for centuries. What is new is the United States talking out of both sides of its mouth about tribal consultation.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda Addresses NAFSA Regarding Tribal Online Lending Precautionary Defense Measures

Today, Gabe Galanda addressed the Native American Financial Services Association (NAFSA), in a presentation titled, "A Quick History Lesson: Foundational Elements of Tribal Sovereignty, Tribal Self-Governance and the Government to Government Mandate." He delivered his remarks (slides here) at the Tribal Government Online Lending Symposium Presented by the Online Lending Association and NAFSA. Gabe specifically discussed notions of inherent sovereignty and preemptive consultation as means of countervailing federal and state attacks against tribal online lending activities.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe assists tribal governments and businesses in all matters of tribal economic development and diversification, including entity formation and related tax strategy. He also helps tribes and tribal businesses and joint ventures withstand attack from federal, state and local government. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

State-Tribal Consultation Right Crystallizing

Last week, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, urged “local and state authorities in South Dakota” to address concerns expressed by the Sioux Nations regarding the impending private land sale of Pe’Sla, a sacred site of the Lakota, Dakota and Nakota Peoples, in the Black Hills. While the federal Indian consultation right is now entrenched in federal law, the Special Rapporteur’s pronouncement of a state-tribal consultation right is profound. 

The Special Rapporteur’s proclamation follows a Resolution passed by the National Congress of American Indians in March 2011, whereby NCAI resolved that much like the United States’ consultation obligations to tribes, “states and local governments [must] meaningfully consult with tribal governments, on a government-to-government basis, regarding any matter of tribal implication, in order to allow any affected tribal government to express its views and assert its rights in advance of any non-tribal governmental action or decision-making.”

Indeed, much like the international norm of indigenous consultation and the federal Indian consultation right have each crystallized through non-tribal governmental actions and proclamations, a state-tribal consultation right is forming.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe is currently writing a piece for Indian Country Today, tentatively titled, "Developing and Enforcing the State-Tribal Consultation Right." He can be reached at 206.691.3631 or gabe@galandabroadman.com.

Gabe Galanda to Stump on Federal Indian Consultation at the Silver State Mining & Tribal Forum

Gabe Galanda will stump on the federal Indian consultation right at the 2012 Silver State Mining & Tribal Forum, via Skype to Winnemucca, Nevada on April 17, 2012. His remarks will focus on customary international law requiring consultation with and informed consent by indigenous peoples, as embodied in the United Nations Declaration on the Rights of Indigenous Peoples. In late 2010, Gabe published a three-part series in Indian Country Today titled, "The Federal Indian Consultation Right: No Paper Tiger." He has since been cited as a leading commentator on the topic of federal Indian consultation, in papers like "Tribal Consultation in the 21st Century" by Professors Colette Routel and Jeffrey Holth; and in the latest edition of Steven Pevar's book, "The Rights of Indians and Tribes."

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe helps tribal governments and Indians citizens defend against tribal and indigenous rights violations by federal, state and local government actors. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Seattle Native American Attorney Gabe Galanda to Deliver Speech to University of Arizona Indigenous Law Students

Gabe Galanda will speak to the Indigenous Peoples Law and Policy Program at his alma mater, the University of Arizona College of Law on October 27. His speech is titled, "The Federal Indian Consultation Right: What's Old is New." Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.

Peru: Vanguard In Indigenous Land Consultation

States and the federal government could take a lesson from Peru, which recently passed a law guaranteeing indigenous communities the right to be consulted about development on their lands. Peru President Ollanta Humala signed the law requiring companies to seek agreement with rural communities for projects that affect communities or ancestral territories. The former president of Peru had blocked a similar law, claiming that it would chill investment. Besides respecting the inherent right of tribes to be consulted regarding their sovereign interests, states, and the federal government should recognize what President Humala rightly observed: consultation laws reduce conflicts between industry and indigenous peoples. Rather than chilling investment, such laws encourage it. Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or anthony@galandabroadman.com, or or via galandabroadman.com.

Has California Consulted With Tribes Regarding MPLA Closures?

California tribal members gathered to protest proposed MLPA closures on June 18, and they will raise their concerns at the California Fish & Game Commission (CFGC) meeting in Stockton on June 29-30. But has the CFGC consulted with California tribes regarding proposed restrictions on coastal gathering proposed under the Marine Life Protection Act (MLPA) Initiative? Make no mistake, even though California tribes' treaties weren't ratified, the state of California still must consult with those tribes regarding state laws and policies that will detrimentally impact the tribal religious, cultural and subsistence practices of gathering food from the sea.

Government-to-government consultation is a fundamental aspect and necessary component of tribal sovereignty that has never been extinguished – explicitly or implicitly – by the federal government. California tribes should demand consultation from CFGC regarding the proposed coastal gathering restrictions, to the extent the state has not yet provided that opportunity to affected tribes.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.