Advising the Advisor to the President: My Experience with Federal Governmental Advisory Committees

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

There are experiences in life that you have to be there to believe. So often in Indian Country, we recount the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) failures without any appreciation of the people who create these organizational structures and buildings in Washington DC and all over the United States.

Two of the major players that you read about in Congressional Testimony, court filings and national media headlines are:

  • Kevin Washburn – Assistant Secretary, Indian Affairs for the US Department of the Interior
  • Yvette Roubideaux – Acting Director, Indian Health Service

This time last week, I worked side-by-side with the DOI Self-Governance Advisory Committee and the Indian Health Service (IHS) Tribal Self-Governance Advisory Committee to participate in the consultation process between tribal leaders and the federal government. They are empowered with the task of advising both Secretary Washburn and Dr. Roubideaux on a myriad of multifaceted policy topics including advanced appropriations, contract support costs, Ebola preparedness, third-party collections and grants for school boards. In turn, Secretary Washburn and Dr. Roubideaux advise the President.

These two aren’t figureheads. They are engaging and passionate leaders. Both confident, respectful and open to learning. They exemplify the spirit of consultation and what a government-to-government relationship should look like; in this room one could imagine observing the G8 Summit. This work group feels more like a peer group than a representational sampling of sovereigns. Perhaps it is because we are all related – by definition a tribe is a family of families. I realize that I am kinfolk to at least three people in the room before lunch. Governance changes when you have to answer to the taxpayers and to Great Aunt Pearl on Sunday. Both want answers.

I leave day two especially thankful policy work groups like this exist to ensure the mundane (think FY 2016 appropriations) are in line and the urgent (imagine Ebola isolation units at your local IHS facility) are anticipated. It is the work of these leaders in Indian Country that we are protected, represented and heard by the federal decision makers on the most important issues facing our families, neighbors and communities.

This was true consultation – one that can’t be codified by law. It can only be done out of genuine respect for self-governance and by a true statesman (or stateswoman). It’s refreshing to see the head of these agencies – sitting in a circle – with tribal leadership. They joke. They laugh. They are serious, focused and respectful. This wasn’t just a stop on a busy agenda of meetings but a place where a team of advisors met to hold each other accountable and generate solutions to Indian Country’s top problems.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

The IGRA as Protector: DOJ Weighs in on Duluth-Fond du Lac Casino Dispute

By: Tyler Fish | Guest Contributor
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The U.S. Department of Justice this week submitted a cross-motion for summary judgment in City of Duluth v. National Indian Gaming Commission (D.C.). The case concerns attempts by the City of Duluth to maintain influence over economic development efforts by the Fond du Lac Band of Lake Superior Chippewa in downtown Duluth, MN. The DOJ’s cross-motion affirms NIGC’s regulatory authority and promotes one of Congress’ original intentions in passing the Indian Gaming Regulatory Act: to protect tribal gaming interests from outside influence.

Disputes regarding the Fond-du-Luth Casino facility have been ongoing since a 1986 agreement between the band and the city was found to violate IGRA in 1993. The NIGC then issued a violation notice of IGRA’s tribal “sole proprietary interest” requirements, which ensure that revenues from gaming enterprises are used to promote the general welfare and economic development of the tribe and not a third-party interests. Pursuant to NIGC’s violation notice, the band and the city amended the agreement in 1994. However, in 2011, the NIGC reviewed the 1994 amendments and again found IGRA violations from the city’s potential for undue influence over the band’s gaming operations.

In the present case, the City of Duluth has challenged NIGC’s authority to review agreements that impact gaming operations and economic development ventures in Indian Country. The DOJ’s cross-motion rightfully supports NIGC’s oversight authority to limit influence over the band’s sovereign gaming rights. In a related case, the city has brought suit directly against Fond du Lac claiming that the band’s right to enter land into trust was contractually subverted to the city’s interests in the 1986 and 1994 amended agreements. Should an agreement between a city and an Indian tribe relieve the NIGC of its oversight authority under IGRA? Can a city possess “sole discretion to disapprove” tribal trust land acquisitions? Congress created the IGRA to regulate gaming in Indian Country, but also, to protect tribal rights to generate gaming revenue free from adverse, third-party influence.

Links

https://turtletalk.wordpress.com/2014/08/14/federal-cross-motion-for-summary-judgment-in-city-of-duluth-v-nigc/

https://turtletalk.wordpress.com/2014/04/04/city-of-duluth-sues-fond-du-lac-band-over-proposed-trust-land-expansion-at-carter-hotel-property/

http://www.northlandsnewscenter.com/news/local/Duluth-files-lawsuit-against-Fond-du-Lac-Band-253654851.html

Tyler Fish is a citizen of the Cherokee Nation and a graduate of the University of Oklahoma College of Law and has devoted his personal and professional ambitions to public service and protection of the sovereign rights of Native people and tribal governments. Before attending law school, Tyler served his tribal nation as a legislative officer and government representative in Washington, D.C. Tyler followed the footsteps of his grandfather by enlisting in the United States Marine Corps. During six years of service, and a tour of duty in support of Operation Iraqi Freedom, Tyler concurrently earned a Bachelor’s Degree in Sociology with minors in International Studies and Political Science. Tyler is a Gates Millennial Scholar and an alumnus of the Morris K. Udall Native American Congressional Internship program.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Benefits Abound for Tribes Looking to Operate Their Own Utility

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

If you want something done right, you have to do it yourself, or so the saying goes. It’s a saying that couldn’t be more apt for those tribal governments who have created their own utility company. Plagued by high electricity costs for some tribal citizens, no electricity access for others, and a disinterested non-Tribal utility serving their reservations, a handful of tribal governments have asserted their power as sovereigns in this way and are better for it.

The process of Tribal utility conversion is no simple task. It requires the creation of Tribal law and ordinances, the establishment of a general plan and a board of directors to execute it, the acquisition of equipment necessary to bring power to Tribal land, and, of course, money. But the benefits have largely proven to outweigh these downsides. For example, utility costs for the Fort Mojave Indian Tribe have decreased 15-20% since conversion, and the Tohono O’odham Nation has employed over one hundred people and vastly improved service from that provided by the non-Tribal utility.

What’s more, there are a whole host of federal programs for tribal governments to take advantage of in jumping those hurdles to market entry. Those run by the Rural Utilities Service and the National Rural Utilities Cooperative Finance Corp. make low-interest loans to tribal governments for the purpose of obtaining equipment. Others provide at-cost energy for use on reservation lands, like the hydroelectric power generated by federal dams and distributed by the Bonneville Power Administration.

One important fact for a tribal government to keep in mind as it considers this undertaking is that conversion doesn’t require tribal governments to self-generate power. A tribal government could, for instance, install a solar farm on its property to improve cost-effectiveness and eco-friendliness, but it could also simply purchase power from the same providers as the previous utility. There is no wrong way for a tribal government to go about conversion, and however it’s accomplished, it has the potential to vastly improve both the quality of life for individual members and the status of the tribal government as an independent sovereign.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.