Fwd: NCAI Letter to Ross Swimmer regarding Title 25 Proposal {html}

[Use-Author-A...@127.1]

>Date: Mon, 11 Nov 2002 11:50:12 -0500
>To: Nat...@yahoogroups.com
>From: "Ishgooda, Senior Staff"
>Subject: NCAI Letter to Ross Swimmer regarding Title 25 Proposal {html}
>
>
>NCAI Letter to Ross Swimmer regarding Title 25 Proposal
>
>ORIGINAL PDF FORMAT HERE:
>http://www.ncai.org/main/pages/issues/other_issues/documents/t25_final_response_11-04-02.pdf
>
> *Pages 1--4 from þÿ*
>N A T I O N A L C O N G R E S S O F A M E R I C A N I N D I A N S E X E C U T I V E C O M M I T T E E
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>PRESIDENT
>Tex G. Hall Mandan, Hidatsa, Arikara Nation
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>FIRST VICE-PRESIDENT
>Joe A. Garcia Ohkay Owingeh
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>( Pueblo of San Juan)
>RECORDING SECRETARY
>Colleen F. Cawston Colville Confederated Tribes
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>TREASURER Alma Ransom
>St. Regis Mohawk Tribe
>A R E A V I C E P R E S I D E N T S
>ABERDEEN Harold Frazier
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>Cheyenne River Sioux
>ALBUQUERQUE John F. Gonzales
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>San Ildefonso Pueblo
>ANADARKO James M. Potter
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>Prairie Band Potawatomi
>BILLINGS Geri Small
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>Northern Cheyenne Tribe
>JUNEAU Mike Williams
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>Yupiaq
>MINNEAPOLIS Bob Chicks
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>Stockbridge-Munsee Band of Mohican Indians
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>MUSKOGEE Jefferson Keel
>Chickasaw Nation
>NORTHEAST Kevin Seneca
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>Seneca Nation
>PHOENIX Evelyn B. Juan-Manuel
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>Tohono O'Odham Nation
>PORTLAND Ernie Stensgar
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>Coeur d'Alene Tribe
>SACRAMENTO Juana Majel
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>Pauma-Yuima
>SOUTHEAST Eddie Tullis
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>Poarch Band of Creek Indians
>EXECUTIVE DIRECTOR
>Jacqueline L. Johnson Tlingit
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>NCAI HEADQUARTERS
>1301 Connecticut Avenue, NW
>Suite 200
>Washington, DC 20036 202.466.7767
>
>
>202.466.7797 fax
>w w w .n c a i .o r g
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>
>November 4, 2002
>Mr. Ross Swimmer, Director Office of Trust Transition
>Department of Interior Washington, D. C. 20240
>
>
>Re: Title 25 Proposal Comments
>Dear Director Swimmer:
>InJune of this year, your office mailed a packet to tribal leaders containing a list of proposed repeals and amendments to what was identified as outdated or conflicting statutes contained in Title 25 of the United States Code. The accompanying letter stated that DOI intended to use the packet as a guideline for proposed legislation to amend Title 25 that would be advanced to Congress in February 2003.
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>NCAI formed a workgroup of tribal attorneys to review this proposal, and the workgroup subsequently met with Kathleen Supernaw from the Department to learn more about the proposed changes. As a result of this review, it is our belief that moving forward with this broad proposal for overhauling the entire title of the United States Code devoted to federal Indian law is not in the best interests of Indian tribes, nor of the Department of Interior, and we respectfully ask that the proposal be withdrawn.
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>The proposal is breathtaking in its scope. It suggests that Congress simultaneously repeal or amend 280 separate laws governing Indian affairs across an extremely broad span of issues ­ including education, taxation, irrigation, oil & gas, organization of the BIA, trust funds management, reindeer farming, banking, timber, subsistence, and many others. These proposals are not simply repeals of outdated statutes -many of the laws identified for repeal or amendment are in active use today. Many thousands of hours would be required from tribal leaders, attorneys, DOI, and Congress to adequately and responsibly review the proposed changes.
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>Even if we could find the time, personnel, and wisdom to complete such a project, we do not believe that it should be a priority for either the tribes or for the Department. In the end, all that is likely to be accomplished would be a repeal of a much smaller number of outdated statutes that contribute very little harm to the management of Indian Affairs. Indian people have the highest rates of poverty, the lowest rates of educational attainment, the shortest life spans, and some of the most severe health problems of any identifiable group in the country. Right now the Department and tribes are engaged in very serious efforts to address issues such as trust reform and economic development, among other things. These issues have a real and daily impact on the lives of Indian people and should be the 1
>Director Ross Swimmer November 4, 2002
>Page 2
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>priorities of both tribal leaders and the Department, rather than a time-consuming and mostly cosmetic improvement of Title 25.
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>We also counsel against a proposal to sweepingly reform Title 25 because it contains the history of tribes and the laws that govern the relationships between tribes, their neighbors and the federal government. Each tribe has a unique legal relationship and history with the federal government and its neighbors. Individual tribes and tribes from different regions of the country are going to have unique concerns. Determining which la ws are in fact "archaic" is a substantially subjective exercise. We would doubtlessly make many costly mistakes and overlook some tribes, somewhere, that are using a particular statute to order their affairs.
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>This danger is underscored by the proposal itself. A quick glance at the list of statutes selected for repeal or amendment shows that many of these laws are not outdated or conflicting. In fact, many of the statutes included in the list are among the cornerstones of Federal Indian law. There are at least dozens of mistaken legal assumptions in the proposal and it is marked by a blind disregard for the complexity and history of the legal relationships between Indian tribes and the federal government. It is our understanding that the proposal was not reviewed by the Solicitor's office prior to the presentation to tribes. Moving forward a proposal so steeped in legal issues without sound legal assessment of the potential impact by both the Department and tribes would be a profound mistake.
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>One of the most critically overlooked matters is the role that federal statutes play in preempting the application of state laws in Indian country. The limited role of state government in Indian Country results from both retained inherent tribal sovereignty as well as the operation of the Supremacy Clause on the comprehensive federal legislative system that has been enacted in Indian affairs. 1 Many of the statutes that have been identified for repeal in the proposal are the same ones that are used to demonstrate federal preemption over use and alienation of Indian property and control over trade and economic development. The repeal of these statutes would strike a severe blow to tribal self-government.
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>One statute proposed for repeal deserves particular attention because it illustrates this danger so acutely. 25 U. S. C. 177, commonly known as the Non-Intercourse Act, is one of the most fundamental statutes in federal Indian law. Passed by the first Congress of the United States on July 22, 1790, it was the first act that specifically defined substantive rights and duties in the field of Indian affairs. The statute invokes federal authority under the Constitution over the sale or conveyance of Indian lands and serves as the bedrock of federal law that protects Indian lands. The United States Constitution is very old law, but no one has suggested its repeal merely because of age. The early acts of Congress that
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>1 See, F. Cohen, Handbook of Federal Indian Law (1982 ed.), 270-279.
>2
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>Director Ross Swimmer November 4, 2002
>Page 3
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>interpreted the Constitution to define the fundamental relationship with the Indian nations deserve this same respect.
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>Because of examples such as this, we do not believe that the shotgun approach utilized in the DOI proposal is the proper way to proceed. We do not deny that there is some appeal in removing statutes such as 25 U. S. C. 101 --Payment for wagon transportation. However, keeping this statute on the books does no harm.
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>And for every one of the statutes that truly is outdated, there is another that only appears outdated, such as 25 U. S. C. 48 --Right of tribes to direct employment of persons engaged for them. While the Department proposes repeal, the statute serves an important purpose in demonstrating Congressional support for tribal self-determination as early as 1834.
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>The overall proposal demonstrates a confusing mix of purposes. It seems to have focused initially on older trust management statutes, then moved on to all older statutes viewed as outdated, then proceeded to draft amendments on a number of modern statutes to advance Departmental priorities. For example, the proposal would give new fire suppression authority to the Department in timber management and remove the Bureau of Indian Affairs from trust funds management. Some of these proposals are controversial, making the stated intent of this effort appear disingenuous.
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>We also have serious concern that the Office of Indian Trust Transition is handling such a broad proposal for reforms in all areas of Indian Affairs. The Office of Indian Trust Transition is a temporary office intended to guide the development of an organizational structure for management of Indian trust assets.
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>The Title 25 proposal is much broader than the scope of your office, reaching into nearly every area of Indian affairs. We strongly believe that matters such as these should be handled with the Office of the Assistant Secretary for Indian Affairs, which has the staff, the expertise, the authority and the approval from Congress to address general Indian affairs matters.
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>Given the extremely broad scope and critical legal issues in the Title 25 proposal, the process for tribal leaders to review the Title 25 proposal does not properly comply with the Executive Order 13175 or the BIA Government to Government Consultation Policy. These policies apply to legislative proposals and require the Department to engage in a consultation process that is more than simply the opportunity to supply written comments. Perhaps most importantly at this stage, tribal leaders should have an initial opportunity to consult on the scope of the proposal before consulting on the merits of the proposal. Following that, there should be a great deal more process that would allow focused discussions on the merits of the proposals. We do not see how that can be accomplished in the present format.
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>We do not believe that the current proposal will receive support from the tribes or from Congress. Proceeding with a proposal for sweeping reforms will only breed controversy, while withdrawing the proposal would build considerable good will.
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>3
>Director Ross Swimmer November 4, 2002
>Page 4
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>For the reasons listed above, we respectfully request that the Title 25 proposal be immediately withdrawn so that the Department can reconsider the priorities and pursue targeted policy development in particular issue areas in a process that is focused on consultation and consensus-building with the tribes.
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>There are features in the DOI proposal that many tribes would be interested in discussing. There is great interest in Indian Country in the development of a federal policy regarding the protection and enhancement of tribal tax bases. Such a discussion could be, of course, linked to an amendment to the Indian Trader Act as suggested in the DOI's proposed revisions to 25 U. S. C. 261. However, the Indian Trader Act also serves as a consumer protection statute in Indian Country, and amendments would need to protect this important purpose. In addition, the status of rights of way also deserves some attention after the case of Strate v. A-1 Contractors, in which Supreme Court held that a tribal court lacked jurisdiction over a civil case arising out of a vehicle accident on a state highway traversing the reservation. Finally, amendments related to trust reform are clearly needed and should be discussed as a separate topic.
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>NCAI would be pleased to work together with you and with tribal leaders in discussing any of the areas suggested above. We will contact your office to discuss these suggestions in the upcoming weeks. Thank you for your consideration of our views.
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>Sincerely,
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>Tex G. Hall, President
>cc: The Honorable Gail Norton, Secretary of Interior The Honorable Neal McCaleb, Assistant Secretary for Indian Affairs
>The Honorable Daniel K. Inouye, Chairman, Senate Committee on Indian Affairs
>The Honorable Ben Nighthorse Campbell, Vice Chairman, Senate Committee on
>Indian Affairs
>4
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>Proposed updates to Title 25 {HTML FORMAT}
>http://escribe.com/culture/native_news/m38607.html
>
>ORIGINAL PDF HERE:
>http://www.ncai.org/main/pages/issues/other_issues/documents/t25_review_with_explanation.pdf