Feds ditch rule that foiled Indian tribes’ plans for off-reservation casino in Catskills
By Associated Press, Published: June 14
ALBANY, N.Y. — The Obama administration announced Tuesday it has rescinded a rule that blocked Indian tribes from building casinos far from their reservations, reviving hopes among local officials for casino gambling in the Catskills.
Assistant Secretary for Indian Affairs Larry Echo Hawk announced the policy change to tribal leaders at the National Congress of American Indians in Milwaukee.
The change overturns the so-called commutability rule, created in 2008 by then-Interior Secretary Dirk Kempthorne. According to the rule, a casino beyond reasonable commuting distance from a tribe’s reservation was damaging to life on the reservation because its residents would move to follow the new jobs.
“The 2008 guidance memorandum was unnecessary and was issued without the benefit of tribal consultation,” Echo Hawk said. “We will proceed to process off-reservation gaming applications in a transparent manner, consistent with existing law.”
Strange how the rules change from administration-to-administration. This rule originally imposed under the Bush Administration when Carl Artman was Assistant Secretary. This does little to remove the obstacles to siting an off-reservation casino.
The U.S. Supreme Court v. Jicarilla Apache Nation in what can only be
described as a trust diminishment case added one more link in the chain of abrogation. In a 7 to 1 decision written by Justice Alito, the Supreme Court held that the fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Native American tribes.
Although a disappointment for Indian country, Justice Sotimior dissent was a breath of fresh air.
The Wisconsin Court of Appeals in the matter of Kroner v. Oneida Seven Generations Corporation, Appeal No. 2010AP2533 (June 1, 2011), upheld a transfer of jursidiction from a Wisconsin State Court to an Oneida Tribal Court.
Kroner, the former CEO of a tribal corporation appealed his dismissal in the Wisconsin State Court alleging a breach of contract and failure to follow tribal policies as forth in the Oneida's employee manual. The CEO was not a member of the tribe.
In lieu of answering the complaint the Onedia moved to dismiss. Seven Generations Corporation is an Onedia tribally chartered corporation. The Circuit Court Judge Donald Zuidmulder reserved ruling on the motion and made a request to the Oneida Tribal Judicial System to transfer it under Wis. Stat. § 801.54. The transfer statute provides cases where there is concurrent jurisdiction between a circuit court and a tribal court, the circuit court may in its discretion, transfer the action to the tribal court. In order to transfer there must be an initial determination that concurrent jurisdiction exists. Here the Court of Appeals found that concurrent jurisdiction existed.
The Court held that the Tribe's involvment both from a control and operational standpoint, is so pervasive, the tribal court must have jurisdiction over this claim. Further, because Kroner bases his claim on violations of tribal employment law, the tribal court not only has jurisdiction, but is the preferred forum for trial, because the Tribe is in the best position to rule on the interpretation and application of the manual that governs tribal employees. In view of that fact alone, concurrent jurisdiction exists, as found by the court.
Wis Stat. § 801.54 is a codification of what is commonly called the Teague Protocol. In Teague, the court was satisfied the tribal court had both personal and subject matter jurisdiction over the nontribal member plaintiff, where the contracts were signed on the reservation, the services were to be performed on the reservation and Teague was in charge of the tribe’s biggest business. Like Teague, Kroner the fired Oneida CEO was in charge of what he has himself portrayed as a business that grew to significant levels under his management. There was no written contract governing Kroner’s employment, but to the extent Kroner relies on the Oneida tribal employment law, the controlling law is a purely tribal creation.
This should get those anti-Oneida forces in the Town of Hobart up in arms!
You can find the brief on turtletalk
Courtesy of American Indian Report (https://www.americanindianreport.com)
The Bureau of Indian Affairs has approved the United Keetoowah Band of Cherokees Indians trust application to place 76 acres of land near Tahlequah, Oklahoma. The Cherokees have bitterly contested the application since its original submission in 2004. The parcel has a community service center, wellness center, elder center, and gathering place-no commercial facilities. The Cherokees oppose this as they have exclusive jurisdiction and treaty rights within its boundaries.
WASHINGTON — The U.S. Environmental Protection Agency has established a National Tribal Toxics Committee (NTTC) to give Indian tribes greater input on issues related to chemical safety, toxic chemicals and pollution prevention. This effort will further empower tribal communities to protect their health and environment from the risks of toxic chemicals. Creation of the NTTC is part of EPA Administrator Lisa P. Jackson's emphasis on improving chemical safety, building strong tribal partnerships and expanding the conversation on environmental justice. The NTTC will hold its first meeting in Washington, D.C. on June 1-2.
"As we focus on chemical safety and identify ways to reduce exposure to toxic chemicals and prevent pollution in Indian Country, it is absolutely critical that we listen to our tribal partners," said Steve Owens, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention. "We want to ensure that we address the ways that tribal members are affected by toxic substances and promote pollution prevention efforts that reflect their interests and needs."
EPA believes that expanding tribal partnerships is important given the uniqueness of tribal cultures, communities, and environmental problems, and the need to respect tribal sovereignty, culture and heritage. The NTTC will help EPA better tailor and more efficiently address a variety of issues, including preventing poisoning from lead-based paint, expanding pollution prevention and safer chemical initiatives in Indian country, and better evaluating chemical exposures that may be unique to tribes and their members.
Tribal courts are court of general jurisdiction, much like State courts which simply means they probably have the authority to grant a divorce and divide marital property. The similarities to State courts stop when your talking about splitting a retirement account, 401K, or pension. Before February 2, 2011, this probably wasn't a problem since the courts generally treated tribal court order as "domestic relations orders." This stopped when the Department of Labor interpreted a Navajo Nation tribal court order as a judgment not made pursuant to State domestic relations law with the meaning of section 206(d)(3)(B)(ii) of ERISA. Under ERISA a domestic relations order, is an an order withing the meaning of section 206(d)(3)(B)(ii) of ERISA, which means made according to State domestic relations law.
The Department of Labor looked to the definition of State under ERISA in Section 3(10), "[t]he term 'State' includes any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, and the Canal Zone." The Department recognized tribal sovereignty stating that federal law generally does not treat Indian tribes as States, or as agencies or instrumentalities of States. NLRB v, Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002). See also Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 181 (2nd Cir. 1996) ("[T]ribes are not States under OSHA").
So unless your State has adopted a law to address tribal court jurisdictional issues relating to domestic relations orders, you may have to find a different way to split that 401 K.
Swimmer Law Offices, LLC can you help you solve these tricky family law issues in tribal courts. For more information check my website at Swimmerlaw.com or call me at 414-380-2433.