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Native Law & Policy Journal

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Washington Prepares for a new President
$850 Billion Stimulus Plan
Regulatory Changes
Sovereignty under Scrutiny by the Courts
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    Walker Law LLC is initiating THE NATIVE LAW AND POLICY JOURNAL, a newsletter to clients, friends and others who have an interest in issues affecting Native communities.  The newsletter will post updates on current issues before Congress and Federal Agencies related to Native Americans, Native Businesses and those doing business in Indian Country.  It will track events/conferences, and provide helpful links.  News articles of special interest will be posted.  Our goal is to provide Washington updates on key issues of interest on a variety of important Native law and policy topics.

    We hope to receive your suggestions for additional topics of particular interest.  Please contact us if you have topics you would like included in future issues.

    Please update your email and contact information with the link that says "join our mailing list".  If you do not wish to receive future mailings, we have made it easy to unsubscribe. 

   On January 1, 2009, our shipping and mailing addresse will change as noted in the heading above.  Our office location, however remains the same in Old Town Alexandria, Virginia, just a few minutes from Reagan National Airport, and Washington, DC.

   Thank you for taking the time to review our new NATIVE LAW AND POLICY JOURNAL.  We look forward to providing this service and hearing your suggestions.


   With warm regards,

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    Liz Walker

   Attorney At Law

  January 2009                                         


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                                      Photo Rueters /JimYoung

Washington prepares for
a New President

   The transition of President Elect Barack Obama, is dominating headlines and the conversations of many around the country.  With the change from one political party to another, every agency and function of government is affected.  Briefing papers from industry groups, on issues of importance are prepared and discussed with the Transition team, and names are being collected for consideration for every conceivable position. 

   The first order of business for the new President elect is to name his choice for key positions in the White House, Cabinet and as Economic stimulus advisors.  Obama is moving at nearly record speed.  And no one doubts that our stressed economy is demanding that the newly elected President move fast to name the brain trust who will focus on the world wide economic crisis. 

   The National Congress of American Indians and the National Indian Gaming Association are staying close to the Obama Transition team on appointments that affect the Department of the Interior and other agencies that impact the Native Communities.  Recently, Senator Ken Salazar from Colorado was appointed as the new Secretary of Interior. John Podesta chief of staff to former President Bill Clinton heads the Obama overall transition Team, and is unfortunately very familiar with the Native American community.  Read more about Salazar. 

  John Podesta was quoted as saying that Trust Reform and fee to Trust issues, will be a top priority Native American issue for the new Administration.  There is also belief that the new president will push hard for badly needed legislation for Native Health care authorization, that Senator Dorgan successful moved through the Senate last session.  Read more. 


You can stay up to date on the Transition Team. 

Updates on Inauguration Events.


     The Obama transition team is working with Congress on an economic stimulus plan that will take effect over the initial two years of the new administration.  While the current stimulus package is estimated at $850 billion, its exact size is speculative, ranging from $600 billion based on expectations in the House of Representatives to $1 trillion recommended by some economists.  The Washington Post reports that allocations from the stimulus plan include at least $100 billion for state governments and at least $350 billion for investments and infrastructure.  Specifically, the stimulus package is intended to help state governments cover the expenses of Medicaid and possibly increases in state block grants and other programs to prevent local government layoffs or tax increases.  Allocations for investments include public works projects involving roads, bridges, alternative energy, healthcare technology, school modernization and expansions in unemployment insurance and food stamp benefits.   
Read full article.
    NCAI is working with Wizipan Garriott who is Obama's First Americans Public Liaison on Indian Country projects for review and consideration in the economic stimulus plan.  All projects are scheduled to receive review by January 20, 2009. 
Federal Acknowledgment Process 
 In May, the Department of the Interior published new guidance on its approach to streamlining the petition process.  Pursuant to the policy that "the Department does not recognize parts of an Indian tribe," petitions from "splinter groups" will either not be processed or may result in a negative finding.   In this publication, the Department announced its new policy of expedited processing, effectively denying recognition to petitioners that are deficient in the any of the mandatory criteria during the early stages of active consideration. 

Land into trust
  On October 8, 2008, the Department of the Interior released new guidance on the regulations concerning on-reservation discretionary trust acquisitions of land into trust, in the form of a Fee-to-Trust Handbook.  This Handbook standardizes numerous processes utilized when taking land into trust under the 25 CFR regulations, giving tribes a better idea of how to craft an effective application. 
The Secretary did not comment on the more controversial issue of off-reservation land acquisition for gaming purposes, which was the subject of the Carl Artman memo released in January.  This information will be contained in a future publication.
Gaming on Lands Acquired After IGRA
 In May, the BIA published regulations implementing section 2719 of IGRA, known commonly as "section 20."  If a tribe does not fall within certain exceptions, then, Class II and Class III gaming on lands acquired after the October 17, 1988 effective date of IGRA is prohibited.  These exceptions are the "settlement of a land claim" exception, the "initial reservation" exception, the "restored lands" exception, and where a tribe does not qualify under one of these exceptions, they must file for a Secretarial Determination and the Governor's Concurrence.  A 25-mile radius restriction permeates these new regulations. 

Tribal Revenue Allocation Plan Guidelines
In September, the Office of Indian Gaming proposed new Tribal Revenue Allocation Plan guidelines.  Of particular note are clarifications of the tax consequences carried by per capita payments, restrictions on payment to individual members, limitations on tribal discretion to allocate net gaming revenues, creation of new accounting duties to encourage record-keeping and transparency, and specific empowerment of individual tribal members to ensure compliance with the revenue established allocation plan.  Further agency action on revisions to RAP regulations is pending review by the Obama Transition team, however, the Agency believes the process will resume with the new administration to address the Inspector Generals findings.
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Carcieri v. Kempthorne:  The Narragansett Case

  The outcome of this case may have repercussions as to land acquisitions to tribes not recognized in 1934.  The controversy began when the State of Rhode Island sued the Secretary of the Interior after it notified the State of its intent to take land in trust for the Narragansett Tribe pursuant to the Indian Reorganization Act (IRA).  The State lost at the trial and appellate levels, but the Supreme Court granted cert. on two questions presented: (1) Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934; and (2) whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian Country there.  On November 3, the Supreme Court heard oral arguments on this case, taking particular interest in the issue of who is an "Indian" for the purposes of the IRA.  As a matter of statutory construction, this issue concerns whether Congress intended the IRA to apply to Indians recognized after the 1935 effective date of the Act.  A decision from the Court is expected by March 2009.
U.S. v. Navajo Nation: Indian Trusts
  The Court granted the government's petition for certiorari in this Indian trust case, following an appellate reversal and remand of a lower court decision concerning the existence of a trust managing natural coal resources for the benefit of the Navajo Nation.  Oral argument is scheduled for Monday, February 23, 2009.  The outcome of this case may have immediate ramifications for the precedent-setting Indian trust case, Wolfchild v. U.S., which is currently on interlocutory appeal in the United States Court of Appeals for the Federal Circuit.  The basis for appeal in the Wolfchild suit is the question of whether the Court of Federal Claims erred in finding that Congress created a trust for the benefit of the lineal descendants of the Loyal Mdewakanton Sioux, who allege that the government is in breach of its fiduciary duty to fulfill the terms of that trust.
Vann v. Kempthorne: Cherokee Freedmen Case
  The controversy arose over the alleged disenfranchisement of tribal citizens of black heritage called Freeman by officers of the Cherokee Nation. The outcome of this case at the appellate level was declared a win by both sides insofar as it affirmed tribal sovereign immunity and at the same time provided a potential remedy against individual tribal officers for the Freeman.  The case was reversed in part and remanded to the district court, where the matter is pending.  This case was part of a recent Native American Calling Radio discussion, where Liz Walker was one of the panelist who analyzed the opinion.
   Thank you or reading our newsletter. We hope it was informative.  Please let us know any areas of interest you would like us to add in future issues.  Many of you may be coming to Washington to join in the Inauguraton activities.  If you need assistance finding accomodations or have other questions about how to participate, please contact us.  We will be happy to assist in finding the information you need.
We look forward to hearing from you,
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 The Native Law & Policy Journal (NLPJ) is published by Walker Law LLC, a law firm that provides law and government representation services to those connected to Native American issues, including, Tribal entities, commercial businesses, government contractors, non-profit organizations and those individuals who are a part or otherwise  connected to Native American communities.  The NLPJ's mission is to inform Native Americans and those interested in the development and preservation of the culture about legislative and regulatory issues that could impact their interests.   Elizabeth T. Walker,  edits the Newsletter.   However,  this publication is for informational purposes only and does not constitute legal advice. Transmission of the information is not intended to create, an attorney-client relationship between the sender and receiver.