People of the Northwest... A Look at ATNI Priorities

THE AFFILIATED TRIBES OF NORTHWEST INDIANS

People of the Northwest A LOOK AT ATNI PRIORITIES

Cover: Canoe and Bulk Carrier at Cowichan Bay, B.C. Š 2008 www.klahowya.ca Fishing Skagit River and Scenic Skagit courtesy of Swinomish Indian Tribal Community

ATN I In 1953 farsighted tribal leaders in the Northwest formed the Affiliated Tribes of Northwest Indians, and dedicated it to tribal sovereignty and self-determination. Today, ATNI is a nonprofit organization representing 57 Northwest tribal governments from Oregon, Idaho, Washington, southeast Alaska, Northern California and Western Montana. ATNI is an organization whose foundation is composed of the people it is meant to serve — the Indian peoples.

In acting upon these principles ATNI has taken as its purpose to: provide a forum for sharing information on matters of interest to its member Tribes, develop consensus on matters of mutual importance, assist member Tribes in their governmental and programmatic development consistent with their goals for selfdetermination and self-sufficiency and provide for effective public relations and education program with the non-Indian communities.

Through its conferences, forums, networks and alliances, it is the intent of ATNI to represent and advocate for the interests of its member Tribes to national Indian and non-Indian organizations and governments.

Generation after generation we have fought to protect all that is important to us, our way of life.

Photo courtesy of Swinomish Indian Tribal Community

2

Contents TRUST REFORM... 4 TRUST REFORM II... 5 INDIAN COUNTRY BUDGET... 6 VIOLENCE AGAINST WOMEN ACT... 7 CARCIERI FIX... 8 TAXATION... 9 CLEAN WATER AND THE COAL INDUSTRY... 10-13

3

Trust Reform ISSUE Indian Trust Asset Reform Act of 2012 FRIENDS Senator Crapo (R-ID), Congressman Mike Simpson (R-ID) CURRENTLY Being introduced in both the Senate and the House in the 112th Congress

Photo courtesy of Swinomish Indian Tribal Community

PROBLEMS The federal government (Interior, BIA and OST) has failed miserably at managing Indian Trust Assets (ie. Cobell, Tribal Trust Settlements) AT ISSUE This bill represents the first step to meaningful reform of the federal government’s management of Indian trust assets ACTION REQUEST Ask House and Senate Members to Support the Bill SYNOPSIS The Act would do two things: First, it would establish a demonstration project within the Department of the Interior (DOI) that would allow Indian tribes to have a more direct role in how the United States manages their trust assets.

The demonstration project would allow participating tribes to submit plans detailing how they would like DOI to manage their trust assets (or a particular trust asset), and DOI would need to approve the plan before it is implemented. The demonstration project would be voluntary, would not require new funding to implement, and would encourage economic development by directing DOI’s resources to those assets that tribes wish to develop.

Second, the Act would accomplish an objective that Indian tribes in the Pacific Northwest and nationally have sought for years: eliminating the Office of the Special Trustee (OST). OST was created in 1994 to implement certain trust reforms but over the years has developed into a much larger bureaucracy.

The Act would eliminate OST and transfer OST functions to a new Under Secretary for Indian Affairs within DOI. The Under Secretary would have authority to consolidate or discontinue duplicative programs and activities and would also coordinate Indian-related activities of other agencies and bureaus within DOI. The Under Secretary would have the authority to make sure that OST functions that work well continue uninterrupted while ensuring that management of tribal trust assets is handled by a single entity within DOI. Most of the bill text was adopted from the Indian Trust Reform Act of 2005 (S.1439), which was introduced by Senator John McCain in the 109th Congress. Indian tribes in the Pacific Northwest worked closely with Senator McCain’s committee staff in the development of S.1439.

The Act would be the first bill introduced in Congress in more than seven years to address trust reform.

4

Trust Reform II ISSUE Trust Reform FRIENDS Salazar, Washburn, Senators Inouye, Udall CURRENTLY Tribal proposals and recommendations are being developed by Northwest tribes to present as a unified voice for current trust reform efforts.

PROBLEMS Changes in appearance and style do not solve the problems of a failed trusteeship, which is concluded in the Cobell v. Salazar decision.

AT ISSUE Tribes currently have a unique opportunity to have a voice in implementing changes to the trust relationship with the United States.

ACTION REQUEST Tribes must be prepared to clearly articulate their perspectives, concerns and solutions with regards to problems with DOI and OST, and to assist in defining the trusteeship and creating a nation-to-nation process for tribal relations with the United States that elevates each tribe to a position of political equality.

SYNOPSIS Northwest tribes through ATNI and individually have been developing and clarifying their stance on trust reform in order to implement needed changes within the DOI, and the relationship of tribes with the United States as a trustee.

There are many obstacles to moving this issue of trust reform including bureaucratic inertia within the BIA, tribal concerns about losing assistance from the US, redefining and diminishing the trust through Supreme Court interpretations of the law, among others.

The trusteeship itself and what its goals are must be changed to fully respect the sovereign development and authority of tribal communities.

An ultimate goal of the trusteeship must be to elevate the status of Indian nations to a position of political equality, and allow each such entity to determine its own future on a nation-to-nation basis through the full exercise of its governing authority.

Photo courtesy of Swinomish Indian Tribal Community

Ideally, a comprehensive reform and improvement of the trust responsibility that holds the US accountable to its obligations to tribes and at the same time makes it possible for tribal governments wishing to assume responsibility for its own trust resources to do so without jeopardizing the government-to-government relationship with the US. Additionally, it will include establishing “free, prior and informed consent�

by Indian nations in the administration of the trust responsibility.

5

Indian Country Budget ISSUE Federal Budget: “Deficit Reduction and the Federal Trust Relationship” PROBLEMS Pending deficit reduction plans will adversely impact Indian Programs AT ISSUE Deficit reduction does not honor the legal and moral responsibilities of the Federal Trust Relationship ACTION REQUESTED Request President to support and Congress to enact an Amendment to the Budget Control Act of 2011 to fully exempt the IHS and BIA budgets from sequestration; and Enact a legislative package that has a balanced approach to budget reductions and revenue measures to achieve deficit reduction, while protecting the IHS and BIA budgets.

SYNOPSIS This past summer, Congress passed and President Obama signed into law the Budget Control Act of 2011 (BCA).

The BCA allows the President to increase the debt ceiling by up to $2.8 trillion, but also requires that the federal deficit be reduced by $2.3 trillion over 10 years. Even without the BCA, most budget analyst generally agree that allowing the national debt to grow faster than the economy will eventually bankrupt the Country, and that the deficit must be reduced over and above the spending caps imposed by last year’s BCA. What this means for all government programs and Indian Country is that a serious effort is underway to reduce spending.

This is important for Indian health programs because a significant portion of these cuts must come from discretionary programs. The BCA and its deficit reduction targets will have an adverse impact on IHS and BIA programs. If Congress fails to enact legislation negating the government-wide sequestration of FY 2013 appropriations, the IHS and BIA budgets will be subject to an 8.2 percent reduction. This would result in reduction of $355 million for the IHS budget and approximately a $212 million loss for the BIA budget.1 These spending caps, coming on top of the spending cuts that policymakers enacted in annual appropriations bills beginning in fiscal year 2011, will cut discretionary funding by a total of $1.5 trillion over ten years. This will shrink non-defense discretionary spending to its lowest level on record. The caps have already forced substantial reductions in housing and community development assistance, and they will likely put intense pressure on the budget of the Department of Housing and Urban Development (HUD) over the next decade. If the HUD budget fell in proportion to the BCA caps, that would mean a $2.5 billion annual funding cut by 2021, which is equivalent to eliminating housing voucher assistance for more than 300,000 low-income families, or to reducing funding for the three large block grants — CDBG, HOME, and the Native American Housing Block Grant —by 55 percent. 2 This impact would also be seen by IHS and BIA budgets.

The position of Tribal leaders throughout Indian Country is that the IHS and BIA appropriations are not “discretionary” by their mere classification in the appropriations process. This funding is provided in fulfillment of the United States federal trust responsibility based on treaty obligations that the United States Congress entered into with Indian Tribes. This makes it appropriate to exempt IHS and BIA programs from sequestration.

The Administration and Congress should also exempt IHS funds under the Indian Health Care Improvement Act’s, Declaration of National Indian Health Policy, in which the Congress declares it the policy of the United States—in fulfillment of its special trust responsibilities and legal obligations to Indians—to ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy.

OMB Report Pursuant to the Sequestration Transparency Act of 2012 (P. L. 112–155).

“Deficit Reduction Deal Without Substantial Revenues Would Almost Certainly Force Deep Cuts in House Assistance.” November 26, 2012. Center on Budget Policy & Priorities.

1 2

6

AT ISSUE Violence Against Women Act (VAWA) Reauthorization of 2012 FRIENDS Senators Boxer, Cantwell, Klobuchar, Murray, Murkowski CURRENTLY Senate Passed S.1925, 68-31, on April 26, 2012 with Tribal Provisions intact IMPACT House version does not include Tribal provisions

Violence Against Women Act

ISSUE Tribes have no jurisdiction over non-Indian offenders on Tribal lands RECOMMENDATION Tribes have no jurisdiction over non-Indian offenders on Tribal lands SYNOPSIS Some members of the House fear they don’t have the power to fix the problem or are afraid non-Natives will be subject to tribal law and not guaranteed their constitutional rights.

The Tribal provisions of VAWA are fully constitutional and offer every safeguard provided by U.S. courts – more importantly they are vital to curtailing a very real problem.

The Supreme Court in U.S. v. Lara, 541 U.S. 193 (2004), held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.”

Photo courtesy of Swinomish Indian Tribal Community

The VAWA provisions at issue are limited to only crimes of domestic violence or dating violence committed in Indian country, where the defendant is a spouse or established intimate partner of a tribal member.

Defendants prosecuted under these provisions would be entitled to the full array of constitutional protections; dueprocess rights, an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards, and as the proposed law states, “all other rights whose protection is necessary under the Constitution of the United States.” This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, a right of which the prosecuting tribe must timely notify the defendant.

Finally, any non-Indian defendant prosecuted under these new provisions has the right to a trial by jury drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians.

7

Carcieri Fix FRIENDS Senators Akaka, Baucus, Conrad, Franken, Inouye, Johnson, Kerry, Stabenow, Tester, Udall CURRENTLY In anticipation of difficulties garnering the 60 votes needed for passage in the Lame Duck session, the bill will be taken up with the new Congress.

PROBLEMS The loss of Senator Akaka’s vote due to his retirement and who had been a champion of the issue, and Senator Reid stating that he is ‘negotiating’ the issue which indicates he is not supporting a ‘clean’ fix.

AT ISSUE The Supreme Court’s Carcieri decision risks the creation of two classes of Tribes with different sets of rights: 1) those that were under federal jurisdiction in 1934, and 2) those that were not under federal jurisdiction in 1934. This leads to unequal treatment of federally recognized Tribes – with some Tribes eligible to take advantage of the benefits of the IRA while others cannot – which is contrary to federal law.

ACTION REQUEST Stand firm supporting ‘clean’ fix and oppose any amendments to IGRA SYNOPSIS Some members of the House fear they don’t have the power to fix the problem or are afraid non-Natives will be subject to tribal law and not guaranteed their constitutional rights.

The Tribal provisions of VAWA are fully constitutional and offer every safeguard provided by U.S. courts – more importantly they are vital to curtailing a very real problem.

The Supreme Court in U.S. v. Lara, 541 U.S. 193 (2004), held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.”

The VAWA provisions at issue are limited to only crimes of domestic violence or dating violence committed in Indian country, where the defendant is a spouse or established intimate partner of a tribal member.

Defendants prosecuted under these provisions would be entitled to the full array of constitutional protections; due-process rights, an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards, and as the proposed law states, “all other rights whose protection is necessary under the Constitution of the United States.” This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, a right of which the prosecuting tribe must timely notify the defendant.

Finally, any non-Indian defendant prosecuted under these new provisions has the right to a trial by jury drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians.

8

Photo this page courtesy of Swinomish Indian Tribal Community

Taxation ISSUE Taxation of Trust Revenues FRIENDS Assistant Secretary Washburn, Senator Patty Murray NON-SUPPORTERS Internal Revenue Service, Senators Barrasso (probable) and Feinstein CURRENTLY NCAI, ATNI, USET, AFOA have all called for a moratorium with a request for negotiation of individual tribal tax compacts.

AT ISSUE The IRS has unconstitutionally, unlawfully and unilaterally made decisions to impose taxes on tribal trust resources and failed in its duty and responsibility to engage in government-to-government consultation, ignoring the sovereign status of tribal governments within the United States.

PROBLEMS Between 2 June 2012 when contacts were made to the present date, the US government has not responded.

Internal Revenue Service has continued audits of tribal programs and challenging individual Indians on payment of taxes on per capita distributions from trust resources.

ACTION REQUEST Elevate the issue to the Department of Treasury and to the President of the United States to impose a three-year moratorium on IRS actions and to halt existing efforts to audit tribal programs and unlawfully impose taxes.

SYNOPSIS The Internal Revenue Service has instituted taxation on tribal trust resources prohibited by federal law, and such taxation constitutes a direct encroachment into Indian governments’ sovereign sphere of governance. If not halted, the IRS action opens the doors for further taxation of individual Indians and tribal government transactions.

The IRS has taken the position that when tribal governments make payments (in cash or in kind) to tribal members made for reasons other than financial need, they do not fall under the general welfare doctrine, a doctrine that applies to State and local governments, not to tribal governments.

Ignoring treaties, the United States Constitution, and a long history of federal policy addressing the tax status of Indian trust resources and individual Indians, The IRS now views tribal government benefits as being taxable to the member unless they meet one of the following three exceptions: nations to a position of political equality, and allow each such entity to determine its own future on a nation-tonation basis through the full exercise of its governing authority.

Ideally, a comprehensive reform and improvement of the trust responsibility that holds the US accountable to its obligations to tribes and at the same time makes it possible for tribal governments wishing to assume responsibility for its own trust resources to do so without jeopardizing the government-to-government relationship with the US. Additionally, it will include establishing “free, prior and informed consent” by Indian nations in the administration of the trust responsibility:

• they fall within a specific statutory exclusion in the Tax Code; or • they are provided to students and families based on financial need; or • they are the type of benefits “routinely provided” by a state or local government, including public school systems

9

ATNI has always focused on the protection of our environment and natural resources. We believe our culture, human health, treaty rights and way of life depend on the heath of the Northwest. We are facing two critical challenges that we need addressed; one is clean water and the coal industry in the Northwest.

Coal Train Š Daniel Dancer

10

Coal

THE ISSUE In light of the track record of existing coal export terminals worldwide, will the United States work with sovereign Indian nations to ensure that no new coal or energy transport or export facility will be approved in the Northwest is further degrades threatened tribal resources and human health under federal trust and treaty obligations?

STATUS Federal permit applications filed for three coal terminals (Longview and Cherry Point, WA and Port of Morrow, OR). USACE, BLM and Surface Transportation Board are lead agencies for various aspects of coal mining, transport and export. Environmental review not yet integrated to assess cumulative impacts.

Ship Loading Coal © Paul K. Anderson

The idea of a half- dozen new coal export terminals in western Washington and Oregon – and the hundreds of trains and barges running from Montana and Wyoming every day to deliver that coal – would threaten our environment and quality of life like nothing we have seen before. Coal may be a cheap source of energy for other countries, but these export facilities and increased train traffic would come at a great cost to our health, natural resources and communities.

–Billy Frank Jr., Chairman of the Northwest Indian Fish Commission IMPACTS • Environmental justice – disproportionate impact on salmon people; disruption of traffic, affecting reservation economic investments; added health care costs; • Treaty reserved fishing rights – vessel traffic, collisions, fuel spills, dirty runoff; • Treaty reserved hunting and gathering rights – coal dust, runoff, derailments; • Human health – coal dust, increased diesel emissions, water quality contamination, interference with traditional fishing, hunting and gathering; • Climate change – carbon emissions, pollution migration from Asia; • ESA protected species – water degradation adversely affecting Orcas, Salmon; • Cultural resources – Cherry Point archeological area; Columbia River fishing sites; hunting, gathering and sacred sites on train routes and crossings; and • Lack of government’s capacity to monitor, enforce and cleanup RECOMMENDATION • Propose new legislation and policies setting water quality standards for coal transport and export; • Proposed new legislation restricting exports of coal to any country not meeting U.S. emission standards (California State Assembly model).

• Ensure CEQ oversight to require full analysis of cumulative impacts, alternatives.

• Direct federal agencies to immediately participate in a tribal multi-agency permit team for regular discussions on water quality, health, and other scientific/technical baselines for DEIS. This model augments but does not replace consultations with elected tribal leaders and individual tribes.

11

Clean Water

THE ISSUE Clean water FRIENDS Senators Cantwell, Murray and Representative Kilmer BACKGROUND As sovereign nations, Indian tribes signed treaties with the United States, ceding most of the land that is now western Washington, but reserving rights to harvest salmon and other natural resources. Today those fishing rights are being rendered meaningless because the federal and state governments are allowing salmon habitat, including water quality to be damaged and destroyed faster than it can be restored.

Photo courtesy of Swinomish Indian Tribal Community

Tribal harvest has been reduced to levels not seen since before the 1974 U.S. v. Washington ruling that reaffirmed tribal treaty-reserved rights and status as co-managers with the right to half of the harvestable salmon returning to Washington waters. As the salmon disappear, tribal cultures, communities and economies are threatened as never before. Some tribes have lost even the most basic ceremonial and subsistence fisheries that are a foundation of tribal life.

FISH CONSUMPTION RATE DEVELOPMENT IN WASHINGTON STATE WATER QUALITY STANDARDS ISSUE Region 10 is in a battle for the survival of healthy salmon and the human health of each state’s citizen that consumes salmon and shellfish. We need federal support form CEQ to EPA to support a regional approach to establishing a regional state fish consumption rate of no less than 175 grams per day, and ensure water quality standards and sediment standards are put in place and implemented in a timely manner.

IMPACT Tribal Treaties Resources are at risk; human health of not only tribal citizens are at risk; but all people who consume fish or shellfish.

CURRENT STATUS Washington State did not fulfill its commitment to change the fish consumption rate or adopt water quality standards at the end of an 8-year collaboration with Tribes. After 10 years, Oregon has passed a fish consumption rate of 175 grams per day, and adopted new water quality standards; but the implementation of the new law is being challenged by industry. Idaho moved to adopt 17 grams per day for fish consumption; however based on the reality that citizens of the tribal, hunting and sports fishing lifestyle dominate Idaho’s population; EPA Region 10 has rejected the rate and is currently financing science studies in the state to access the appropriate fish consumption rate. The State of Alaska will be addressing fish consumption standards in their upcoming water quality standards review and adoption; and will be working with tribes and citizens to address this issue.

SYNOPSIS The Washington Department of Ecology announced in July that they would not be setting a fish consumption rate in Sediment Management Standards (for toxic site cleanup) or Water Quality Standards (preventing pollutant discharge into water bodies) in 2013. This decision represented a reversal of previous commitments to tribes and delays the adoption of a protective rate indefinitely. Tribes have communicated their reaction to Ecology and EPA through several letters, which indicated that they would not participate in stakeholder discussions and requested government to government consultation.

Tribes have asked EPA to take a more active role in the adoption of state or regional standards incorporating a more protective fish consumption rate. Tribal leaders met with EPA Regional Administrator Dennis McLerran in September at the EPA office and at the fall conference of ATNI in Pendleton. At these meetings, Administrator McLerran asked the tribes to look for a way to work with the state on this issue, and as the federal trustee he is committed to providing support through a governance structured process with Washington State and Tribes.

12

SHELLFISH PROTECTION ISSUE Treaty tribes in western Washington commercially harvest manila, native littleneck and geoduck clams, oysters, crab and shrimp throughout Washington coastal areas and Puget Sound. Contaminants from point and nonpoint sources of pollution are threatening tribal access to this important treaty-reserved resource.

IMPACT Shellfish have been a mainstay of western Washington Indian tribes for thousands of years and remain important today for economic, subsistence and ceremonial purposes. As co-managers of the shellfish resource, each treaty Indian tribe maintains a shellfish program and manages its shellfish harvest cooperatively with other tribes and the state. Loss of shellfish or contaminated shellfish have immediate negative consequence on the health and welfare of tribal people.

CURRENT STATUS Tribes have two distinct types of shellfish harvest – commercial and ceremonial/subsistence. Shellfish harvested during a commercial fishery are sold to licensed shellfish buyers who either sell directly to the public or to other distributors. Ceremonial and subsistence harvests of shellfish, which have a central role in tribal gatherings and daily nutrition, are for tribal use only.

Shellfish beds in western Washington were closed to harvest as early as the 1950’s. Today shellfish resources continue to be threatened by point and non-point sources including agricultural runoff, failing septic systems and stormwater.

WATER TEMPERATURE – RIPARIAN PROTECTION ISSUE Diminished riparian forests in the lowlands of Western Washington continue to impair habitats critical to the recovery of the region’s anadromous salmon. Degraded riparian conditions, reduce shading so allow for increased water temperatures killing fish outright or rendering them more vulnerable to other threats. Functioning riparian habitats provide shade, bank stabilization, filtration, flood control, food sources and wood recruitment for healthy stream functions.

“Since statehood in 1889, Washington has lost an estimated 70% of its estuarine wetlands, 50% of its riparian habitat, and 90% of its old-growth forest” (NMFS, 2011 Implementation Report). “Although focusing growth inside UGAs (Urban Growth Areas) is required by GMA (Growth Management Act), the protection of forest cover has not been met by existing regulatory tools. Growth pressures clear land in UGAs, even along riparian corridors and other areas important for salmon habitat” (NMFS, 2011 App A) IMPACT The diminished riparian function in all watersheds and marine shoreline results in decreased water quality, temperature regulation, cover, bank stability, LWD recruitment, sedimentation, detrital/nutrient input and impacts to other biotic and abiotic conditions for salmon and their supporting environment. While population growth will likely continue, its effects on riparian areas must be mitigated/managed to ensure recovery of vital salmonid habitat. NMFS has identified “Degraded Riparian Areas” as a limiting factor to the recovery of Chinook salmon.

CURRENT STATUS TRiparian forests are an essential component of healthy fish habitat, providing shade, temperature regulation, streambank stability and food supply. However, riparian buffers along most fish-bearing streams lack necessary vegetation because of poor protection and proper management. For example, in the Stillaguamish, only 23% of the 1,777 acres of riparian area within the floodplain currently have any forest cover. In the Snohomish River basin, the Salmon Conservation Plan recommends that 150-foot buffers on both sides of fish-bearing streams be at least 65% forested. In 2006 those buffers were just 41% forested, with no gain since 1992 and little increase since that time.

13

ATNI 2012