News & Updates
Conference of Western Attorneys General
November 8, 2023
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NATIVE AMERICAN HERITAGE MONTH |
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Utah Celebrates American Indian Heritage Month
During November, the Utah Attorney General’s Office celebrates National American Indian Heritage Month, a time to honor the rich and varied cultures, traditions, and contributions of Native Americans and Alaska Native peoples which enrich our nation and the great State of Utah.
Throughout his tenure, the Attorney General has been committed to upholding Native American culture. In defending the Indian Child Welfare Act, he protected tribal sovereignty while preserving the interests of Native American children. Additionally, the AGO has fought against federal overreach regarding national monument designations to safeguard the cultural heritage and sacred traditions of Utah tribal communities as well as secure major hunting rights for the Northwestern Band of the Shoshone Nation.
This month, we encourage the exploration of the invaluable impact Native Americans have made throughout history. Through this collective recognition, we can honor their contributions to our society and ensure a brighter future for us all.
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Not Invisible Act Commission Transmits Recommendations to Address Missing and Murdered Indigenous Peoples and Human Trafficking
The Not Invisible Act Commission (NIAC), a cross-jurisdictional advisory committee composed of law enforcement, Tribal leaders, federal partners, service providers, family members of missing and murdered individuals, and survivors, transmitted its congressionally mandated recommendations to the Department of the Interior, Department of Justice, and U.S. Congress. Federal responses to the Commission’s recommendations are due within 90 calendar days.
The Commission was created by the Not Invisible Act. Its mandate was to develop recommendations on actions the federal government can take on six focused topics to help combat violent crime against Indigenous people and within Indian lands and to address the epidemic of missing and murdered Indigenous peoples (MMIP), and trafficking of American Indian and Alaska Native peoples, as specified under the law. The Departments will carefully consider the NIAC’s recommendations, which will help further the administration’s work to advance and invest in public safety in Indian Country.
Since the establishment of the NIAC in 2020, the Justice Department has made strides in implementing systems aimed at preventing new instances of MMIP, locating individuals who are reported missing, and, where a crime has occurred, investigating, and prosecuting those responsible. Earlier this summer, the Department launched an MMIP Regional Outreach Program. This program places attorneys and coordinators at U.S. Attorneys’ Offices across the United States to help prevent and respond to cases of missing or murdered Indigenous people.
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Online database launched to track missing and murdered Indigenous people
As thousands of cases of missing and murdered Indigenous women go untracked, officials in one state are trying to help fill the information vacuum and prompt closure and accountability. Colorado authorities have launched an online dashboard that tracks cases and the results of investigations, such as whether a missing person has been found, whether an arrest has been made and the disposition of any charges. It includes information about the victims, including tribal affiliations, photos and what happened, and has resources for family members.
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Idaho’s Indigenous women look for answers for the high missing persons rate.
A 2021 Boise State University report found that 75% of Idaho’s missing Indigenous people are female. In the state of Idaho, Indigenous people go missing at nearly twice the rate of other people. That number comes from a 2021 report out of Boise State University that also found that on average in Idaho, officials add 81.6 Indigenous missing persons entries into the National Crime Information Center, or NCIC, each year. NCIC is a system used for sharing information about people reported missing. Idaho’s average rate of missing persons is about 10.59 per 100,000 persons. The average rate for Indigenous people leaps to 18.99 per 100,000 people.
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Washington State Leaders Hold Summit on Missing and Murdered Indigenous Women
Washington State held a two-day summit to bring awareness of murdered and missing indigenous people. Currently, there are 133 indigenous people who are missing. The Washington State Missing and murdered indigenous people and Women Task Force held their second annual summit. Leaders say its aim is to bring diverse voices together from government speakers to families of survivors.
Speakers from different tribes were able to share their approach as they look into why Indigenous people make up more than four percent of the state's total homicides. Some tribal leaders revealed their efforts to use cameras and license plate readers to monitor the reservations. Others are focusing on the training of how to respond to victims and their families. Leaders hope these summits continue to encourage people to become more educated and aware of this crisis, keeping these people and their families don't continue to fall through the cracks.
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This November, AGA partner WilmerHale is proud to honor Native Americans by celebrating #NativeAmericanHeritageMonth and their many contributions by recognizing and celebrating the stories, traditions, and culture of Native American communities around the nation.
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Gray wolves are officially back on ESA list
The gray wolf is formally back on the federal books as an endangered species thanks to a court order the Fish and Wildlife Service recently announced. The decision does not change the actual Endangered Species Act protections already in place, but the federal agency officially reinstated threatened status for the gray wolf in Minnesota and endangered status for the gray wolf in all or portions of 44 other states. The administrative action follows up on a court order issued early last year, after environmental groups successfully challenged the Fish and Wildlife Service's earlier proposal to delist the gray wolf. Technically, this means FWS is updating regulatory language to reflect the gray wolf's current ESA status. In 2020, the agency published a rule to remove the gray wolf's various populations from the Endangered Species Act list. Three lawsuits subsequently challenged the 2020 delisting rule. When a district judge vacated that rule, the gray wolf immediately regained its legal ESA protections that were in place previously.
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Delisting Plant Species Arrives as Endangered Species Act Celebrates 50 Years
Two plants that live on California’s Channel Islands of the Santa Cruz Island Dudleya and island bedstraw have been declared fully recovered by the U.S. Fish and Wildlife Service due to the collaborative efforts of conservation partners and no longer require Endangered Species Act protections.
The successful recovery of the two plants adds to the list of species that have now successfully recovered on the islands. The ESA has been highly effective and credited with saving species from extinction. Thus far, more than 100 species of plants and animals have been delisted across the country based on recovery or reclassified from endangered to threatened based on improved conservation status, and hundreds more species are stable or improving thanks to the collaborative actions of Tribes, federal agencies, state and local governments, conservation organizations and private citizens. In 1997, the Service determined 13 plants on California’s northern Channel Islands needed ESA protections. In 2000, the Service worked with botanists and land managers to publish a recovery plan that would guide future recovery efforts for the imperiled plants. The delisting is a result of collaborative partnership and research across multiple agencies and organizations.
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Pacific Northwest Dam Dispute has the Justice Department and Plaintiffs Seeking a December 15 Deadline
The current administration revealed it is near a settlement in the long-running legal battle over the future of 14 controversial dams in the Pacific Northwest and expects to reach an agreement in the case by mid-December. In a joint motion filed in the U.S. District Court for the District of Oregon, the Justice Department (DOJ) asked for six weeks to seek final approval on the expected settlement.
The lawsuit centers on the 2020 federal plan for hydropower operations on the Snake and Columbia rivers, and the impacts of those facilities on restoring the region’s endangered salmon and steelhead. DOJ and the plaintiffs in the case including the Nez Perce, Yakama, Warm Springs and Umatilla tribal nations, the National Wildlife Federation, and other conservation groups represented by Earthjustice have sought repeated delays in the lawsuit since 2021 to allow settlement negotiations to proceed.
In its latest motion, DOJ wrote that if the settlement is approved, all parties involved in the lawsuit will seek a “multi-year stay of the litigation” to allow time for those agreements to be executed.
But if the settlement is not approved by parties, including the states of Oregon and Washington, tribal nations and other plaintiffs, the lawsuit will resume. The tribe continues to advocate for the removal of the four lower Snake River structures: the Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams.
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Klamath River Salmon, the Yurok Tribe, and the Dams Coming Down: A Conversation with Miss Indian World 2023–2024
In the first weeks of the COVID-19 pandemic, Tori McConnell took on an assignment for her environmental law class at the University of California, Davis. As she started sketching with colored pencils, the picture that took shape reflected the “undamming of the Klamath River.” At the time, a long-debated proposal to remove outdated dams from the river was beginning to move forward. The Klamath River had once provided her Yurok Tribe with an unending supply of wild West Coast salmon.
The image that came to McConnell like a gift is now coming to life as the largest salmon recovery effort ever on the West Coast. Four of the Klamath dams are coming down just as McConnell herself holds the title of Miss Indian World. She serves as a tribal ambassador representing the Gathering of Nations Powwow and Native American, indigenous, and First Nations cultures to the world. She is the first-ever Yurok and the first member of a California tribe in 14 years to hold the role. The alignment of her reign with the dam removals is fitting. The Yurok Tribe suffered mightily from the damming of the Klamath River but always remembered the salmon they are now helping to bring back.
McConnell entered the competition for Miss Indian World after meeting her first teacher’s assistant at UC Davis, who had held the title and inspired her upcoming journey. After graduating and moving home, McConnell was selected as Miss Indian World. Besides her current reign, she is seeking her master’s degree in Environment and Community at Cal Poly Humboldt.
Salmon was passed down directly from her parents because her parents’ grandparents are boarding school survivors, all of them. There are things that were eliminated like the language and certain aspects of culture. But for some reason the thing that survived is the salmon. That is the foundation of who they are.
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Utah Appeals Monuments Case to 10th Circuit
Utah Attorney General announced that his office filed a brief in Utah v. Biden over the president’s designation of the Bears Ears and Grand Staircase-Escalante National Monuments. The legal action was filed in the United States Court of Appeals for the Tenth Circuit after a District Court Judge ruled against the State’s position in August. Utah’s challenge argues that the size of the two national monuments, covering vast landscapes of a combined 3.2 million acres, violated the Antiquities Act of 1906.
Both national monuments were created by other presidential administrations. Approximately 1.7 million acres for the Grand Staircase-Escalante National Monument and about 1.35 million acres were reserved. In October 2021, two proclamations were issued that substantially enlarged the borders of both National Monuments. Under the new designations, the land included in the Bears Ears National Monument was 1.36 million acres, and the land included in the Grand Staircase-Escalante National Monument was 1.87 acres. Combined, the 3.23 million acres of land encompassed by the reservations were twice as large as Delaware, four times larger than Rhode Island, and just shy of the size of Connecticut.
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The EPA will Review Tire Preservative
The Environmental Protection Agency (EPA) will review a chemical known as 6PPD used in tire production in response to a petition from three Native American tribes that cited its history of killing salmon. California’s Yurok Tribe, Washington state’s Port Gamble S’Klallam Tribe and Puyallup Tribe petitioned the agency this summer to consider prohibiting the use of 6PPD (6PPD stands for the chemical N-(1,3-dimethylbutyl)-N' phenyl-p-phenylenediamine) a rubber preservative used in most tire production that prevents automotive tires from degrading and helps them last longer, due to its damage to local salmon populations.
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The Secretary of the Interior did not act arbitrarily or capriciously in concluding that the United States could, under the terms of the Indian Reorganization Act, acquire land and hold it in trust for the Mashpee Wampanoag Indian Tribe, because the Tribe existed and was under federal jurisdiction at the time of the IRA’s enactment in 1934, and the Tribe could conduct gaming activities on the land taken into trust because the land qualified as the Tribe's “initial reservation” under the Indian Gaming Regulatory Act (“IGRA”).
The Historical Eastern Pequot Tribe, the subject of a 2005 decision by the Assistant Secretary for Indian Affairs finding that the Tribe did not meet the criteria for federal recognition, was precluded from asserting that the Office of Federal Acknowledgment delayed in acting on administrative judge’s Recommended Decision concluding that the Tribe's later
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2016 request for recognition should be dismissed for lack of jurisdiction, because the Department of the Interior, in a 2019 letter to the State of Connecticut, confirmed that the matter was closed.
While verbal confirmation by identified tribes that a child is not a member is insufficient to satisfy the rigors of the Indian Child Welfare Act (ICWA), the District court’s determination that there was no reason to know Z.N. was an Indian child was harmless error, given that the Department of Child and Family Services contacted four tribes identified by mother, each tribe failed to respond or intervene, and the Department verbally confirmed non-membership with each Tribe.
The court was required to dismiss discrimination claims brought by the former employee of a subsidiary of an Alaska Native Corporation because, under the terms of the Alaska Native Claims Settlement Act, Native Corporations possess a non-
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waivable exclusion from the definition of “employer” in Title VII of the Civil Rights Act of 1964.
When prosecuting a crime under 18 U.S.C. § 1152, the government need not prove the non-Indian status of the defendant and the Indian status of the victim to establish subject matter jurisdiction of the federal courts but must prove such status as elements of the crime charged.
The fact that the Department of Health and Welfare’s efforts to reunite Indian child with her mother were, aside from coordination with mother’s Tribe, similar to efforts that Department typically made in cases involving non-Indian families, did not lead to an inference that the Department’s efforts did not fulfill the Indian Child Welfare Act’s requirement that active efforts must be made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.
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Each year we sponsor a 90-minute webinar on current Indian issues in conjunction with the publication of the American Indian Law Deskbook by Thomson Reuters. This year’s webinar will focus on dispute resolution issues and identifying an effective mechanism that often requires addressing forum selection, choice of law, and sovereign immunity. The difficulty in addressing these issues often discourages public and private entities from entering into agreements with Tribes, stifling economic development and discouraging the coordination of law enforcement and other governmental services. The knowledgeable speakers will be Assistant Professor Adam Crepelle of Loyola University Chicago School of Law, and former CWAG Director Tom Gede who is currently Counsel at Morgan, Lewis & Bockius LLP.
The webinar will be held on December 7, 2023, at 1:00 PM EST.
You can register for the webinar at the West LegalEdCenter using the link below.
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All summaries are posted in CWAG's Google Docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at [email protected] with questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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