Spilyay Tymoo, Warm Springs, Oregon
January 1, 2020
Page 7
Indian Child Welfare Act court hearing scheduled for January
Oral arguments in a
closely-watched Indian Child
Welfare Act case are set for
January 22, 2020. The case
is Brackeen v. Bernhardt, and
will go before a panel of
judges in New Orleans,
where the first round of ar-
guments took place earlier
this year.
The initial hearing resulted
in a major victory for the
#DefendICWA campaign.
A panel of three judges
largely upheld the law, en-
acted in 1978 to address the
high rates of Indian children
being taken from their fami-
lies without consideration of
the impact on their tribal
nations.
Over the last 40 years,
ICWA has been held up as
the “gold standard” in child
welfare policy. But some
state governments, along
with non-Indians who are
trying to adopt, or have al-
ready adopted, Indian chil-
dren claim the law violates
the U.S. Constitution because
it takes race into account.
Some time ago, a federal
judge stunned tribes and
their advocates by agreeing
with the race-based premise.
Indian Country quickly
came together and appealed
the disastrous decision to the
5th Circuit.
“This is what we need to
do when sovereignty is
threatened: to come to-
gether,” Gil Vigil, a citizen
of the Pueblo of Tesuque
who serves as president of
theNational Indian Child
Welfare Association, said at
the National Congress of
American Indians Seventy-
Fifth annual convention,
where the case was a major
topic of discussion. The
two organizations are
among those leading the
ICWA defense.
The stakes are higher now
that ICWA is being presented
to a larger group of judges,
increasing the chances of a
negative ruling for Indian
Country. Regardless of the
way the en banc panel rules,
experts believe an appeal to
the U.S. Supreme Court is all
but certain.
“No matter who wins at
the 5th Circuit, we are cer-
tain that the losing side is go-
ing to try and bring this case
to the Supreme Court,” Dan
Lewerenz, a citizen of the
Iowa Tribe of Kansas and
Nebraska and a staff attor-
ney at NARF, said at NCAI’s
meeting in Albuquerque.
NARF is another partner in
the #DefendICWA cam-
paign.
The Cherokee Nation,
the Morongo Band of Mis-
sion Indians, the Oneida
Nation and the Quinault
Nation have been allowed to
intervene in the case, as has
the Navajo Nation. Addi-
tional copies of the tribal
briefs—22 to be exact—
were circulated among the
judges on the 5th Circuit last
month in preparation for the
upcoming hearing.
The defendants in
Brackeen are officials at the
Department of the Interior
and the Department of
Health and Human Ser-
vices. The Trump adminis-
tration has defended ICWA
at every step of the case.
The plaintiffs challenging
ICWA are the states of
Texas, Indiana and Ohio,
along with several non-Indi-
ans. The lead named plain-
tiffs are Chad Brackeen and
Jennifer Brackeen, who
have had two Navajo Na-
tion children—siblings—in
their care. They have suc-
ceeded in adopting the boy
sibling and are attempting to
adopt his sister.
Senators announce bill that would increase IHS funding
Tribal health care ser-
vices would see an increase
in funding under a federal
bill introduced in December.
Oregon’s U.S. Senators
Jeff Merkley and Ron
Wyden made the announce-
ment last week.
Specifically, the Indian
Health Service received
$6.047 billion, $243 million
more than fiscal year 2019.
IHS provides health care
to thousands of Oregon
tribal members. Other tribal
program aspects of the
spending bill:
The Bureau of Indian
Affairs and Bureau of In-
dian Education would re-
ceive $3.223 billion, an in-
crease of $142 million to
the fiscal year 2019 level.
Some other key provi-
sions in the bill impacting
tribes and Oregon:
Forest health restora-
tion:
The bill includes funding
increases for several pro-
grams that reduce the risk
of catastrophic wildfires on
public and private lands.
The U.S. Forest Service
and Bureau of Land Man-
agement received an addi-
tional $19 million and $5
million, respectively, for haz-
ardous fuels reduction,
bringing the total funding
level to $639 million.
In addition, the bill main-
tains funding for the Col-
laborative Forest Landscape
Restoration Program at $40
million.
Wildfire management:
In anticipation of the
next fire season, the bill in-
cludes $1.414 billion for fire
suppression at the Forest
Service and Department of
the Interior.
Fiscal year 2020 is also
the first year that the bipar-
tisan ‘fire borrowing fix’
comes into effect, resulting
in $2.25 billion of additional
funds available for fire sup-
pression and other priorities
within the Interior bill.
Supreme Court adds another Indian
Country jurisdiction case to docket
The U.S. Supreme Court
Justices agreed in Decem-
ber to hear McGirt v. Okla-
homa, an Indian Country
criminal jurisdiction case.
The McGirt case had
not been one of the more
prominent Supreme Court
Indian cases: Tribes had
been paying more attention
to Shar p v. Mur phy, a crimi-
nal jurisdiction case that was
heard over a year ago.
The justices shocked In-
dian Country by failing to
issue a decision in the
Mur phy at the end of their
term this past summer.
The nation’s highest
court further kept tribes and
their advocates in the dark
by failing to schedule a new
hearing for Murphy.
Even though the Octo-
ber 2019 term began two
months ago, the case has so
far not appeared on the ar-
gument calendar, which cur-
rently runs through early
March.
McGirt vs. Oklahoma
Jimcy McGirt is cur-
rently serving time in the
Oklahoma correctional sys-
tem for crimes committed in
1997.
McGirt is a 71-year-old
inmate at the James Crabtree
Correctional Center in
Helen, Oklahoma. McGirt
and the Supreme Court sur-
prised tribes and legal schol-
ars by granting his petition—
which he filed from prison
himself—despite repeatedly
putting it off since early Sep-
tember.
And while the Seminole
Nation citizen has been con-
victed of heinous crimes—
the sexual assault of a
child—his case might finally
answer the question that’s
been on a lot of minds: Is
about half of Oklahoma still
Indian Country?
Murphy was supposed to
have resolved the issue on
behalf of Patrick Dwayne
Murphy, a citizen of the
Muscogee (Creek) Nation
who is on death row in Okla-
homa. He was convicted in
state court of murdering a
fellow Creek citizen in 1999.
Two years earlier, McGirt
was convicted in state court
of crimes involving a four-
year-old Indian girl. But
since the incident occurred
within the boundaries of the
reservation that was prom-
ised to the Muscogee
(Creek) Nation by treaty,
and since the reservation
has
never
been
disestablished or diminished
by Congress, he argues that
the federal government—
not Oklahoma—has juris-
diction over the matter.
“Oklahoma courts have
a long history of ignoring
federal statutes,” McGirt as-
serted in the petition he
wrote to the Supreme
Court.
“States have no author-
ity over Indians in Indian
country, unless it is expressly
conferred by Congress,” he
added.
Murphy had already ad-
vanced similar arguments to
the Supreme Court last
year. Since his 1999 crime
occurred on an Indian allot-
ment within the Creek Res-
ervation, and since both the
victim and the offender are
Indians, he believes the state
lacks jurisdiction.
The high stakes have
many worried: In addition
to the Muscogee (Creek)
Nation, the Cherokee Na-
tion, the Chickasaw Nation,
the Choctaw Nation and the
Seminole Nation signed
similar treaties with the U.S.
that promised them reser-
vations in eastern Okla-
homa—an estimated 19
million acres altogether.
But the justices couldn’t
come to a clear conclusion
in Murphy. It didn’t help
that the case was down to
just eight of them, follow-
ing the recusal of Neil
Gorsuch, whose knowledge
of Indian law and policy is
unprecedented in Supreme
Court history.
Without his influence
and experience—during his
time on the 10th Circuit
Court of Appeals he ruled
favorably when another
tribe’s reservation was ques-
tioned by a state govern-
ment—his colleagues ap-
peared to be deadlocked,
confused, or worse.
Rick Hill, former head of NIGA, passes suddenly
Rick Hill, for mer
leader of the National
Indian Gaming Associa-
tion, died suddenly De-
cember 12 at his home.
He was 66.
Mr. Hill was also a
former chairman of the
Oneida Nation, and film
producer. He served as
executive producer for
Bright Path, a motion
picture film currently in
production.
Under Hill’s leader-
ship, NIGA became a
nationally recognized
voice in Washington,
D.C., and successfully
initiated the develop-
ment of a national set of
minimum regulatory stan-
dards and policies for tribal
governmental gaming.
After he retired from
Oneida politics, Hill worked
on various economic devel-
opment projects, including
negotiating tribal investment
in the first ever off-reser-
vation hotel in Washington,
D.C. The Residence Inn by
Marriot is a 13-story, 233
room, 24,000-square-foot
hotel.
“He was a skilled nego-
tiator, politician, leader and
jokester. Most importantly,
he was a loving brother to
us all,” said the Oneida Na-
tion. “The Oneida Nation
circle of generational lead-
ership will be greatly im-
pacted by the passing of
one of our most respected
and prominent leaders.”
Mr. Hill’s latest en-
deavor involves telling the
Jim Thorpe story in a way
that honors his legacy.
The film Bright Path is
co-produced by actress
Angelina Jolie and award-
winning producer Todd
Black with funds from nine
different tribes. It is named
for Thorpe’s Sac and Fox
name, Wa-Tho-Huk, which
means ‘Bright Path.’
The film’s production
crew—including executive
producer
Martin
Sensmeier, who also will
play the role of Jim
Thorpe—spent much of
last week at the Forty-
Third Annual Lakota Na-
tion Invitational filming
basketball games, as well
as other sports and aca-
demic competitions.
Speaking before hun-
dreds of students, fans
and educators last week,
Nedra Darling, B r i g h t
Path executive producer,
described Mr. Hill’s pass-
ing as a “true loss to In-
dian Country, and he will
be in our hearts forever.”
Columbia River basin
restoration program:
The EPA will receive
$1.2 million to continue
implementation of the Co-
lumbia River Basin Restora-
tion Program. Merkley cre-
ated this program, and has
secured funding since fiscal
year 2019 to provide grants
to business owners, farmers,
ranchers, local govern-
ments, and others in the
Columbia Basin to clean up
and reduce toxics for a
cleaner, healthier basin.
Klamath Basin water
and wildlife conservation:
In continued efforts to-
ward a long-term solution in
the Klamath Basin, the bill
includes $6.5 million—a $2.5
million increase—to support
strategies to restore fish
habitat and scale up ongo-
ing efforts to restore healthy
populations of shortnose
and Lost River sucker fish.
The agreement also included
$5 million habitat restoration
in advance of the removal
of Klamath River dams.
Addressing addiction,
mental health in
Indian Country
Before leaving Washington, D.C., for the congres-
sional Christmas recessto, a number of senators in-
troduced a bill to help tribal communities across the
country access resources support people who are
struggling with mental health issues or substance use
disorders.
Tribal communities have been hit hard by the opioid
epidemic. According to a leading health agency, Ameri-
can Indians and Alaska Natives experience some of
the highest drug overdose death rates. However, many
tribal communities don’t have the resources they need
to tackle this public health crisis.
The bill—The Native Behavioral Health Access Im-
provement Act—would create a behavioral health pro-
gram to help tribes develop solutions that include cul-
turally-appropriate efforts aimed at prevention, treat-
ment, and recovery.
The bill would set up the Special Behavioral Health
Program for Indians—the SBHPI—modeled after the
successful Special Diabetes Program for Indians.
“Native communities have been hit hard by the
opioid epidemic, yet too many aren’t able to access
the behavioral health services necessary to tackle these
challenges,” said Sen. Tina Smith of Minnesota, a
member of the both the Senate Health and Indian
Affairs Committees.
“Tribes need to be able to access the resources
necessary to address the opioid crisis, and other men-
tal health and substance use crises. I’m putting this bill
forward to help leaders in Indian Country, and those
closest to the work, create programs that leverage
their unique strengths and cultural resources.”
“Far too many families in Native communities
Indian Country have been hurt by the opioid crisis,
suicide, and other behavioral health emergencies,” said
Sen. Tom Udall of New Mexico, vice chairman of
the Senate Committee on Indian Affairs. “Any suc-
cessful response to behavioral health and substance
abuse issues in Indian Country must be driven by
tribes. That’s why I’m proud to join Senator Smith on
this bill to give Tribes the resources to design treat-
ment and prevention solutions that work for their
communities.”
“The federal government has an obligation to em-
power tribal nations with the resources they need to
address mental health and substance use in Indian
Country,” said Sen. Elizabeth Warren of Massachu-
setts. “I’m glad to join my colleagues on a bill to help
tribal nations develop and implement behavioral health
programs that best suit the needs of their communi-
ties.”
“Substance use disorder has touched every corner
of this nation, but few communities have been hit as
hard as Native Americans and Native Alaskans. This
legislation will empower tribes to provide quality, cul-
turally competent care to treat addiction and behav-
ioral health issues and help individuals on the path to
recovery,” said Sen. Chatherine Cortez Masto of
Nevada.