Northwest Indian Law & Business Advisor

Honoring Elouise P. Cobell

Debora Juarez — Tue, 01 May 2012 11:06:16 -0800

At this year's RES 2012 in Las Vegas, Williams Kastner held a reception to honor Elouise P. Cobell, Yellow Bird Woman, of the Blackfeet Indian Tribe of Montana. Ms. Cobell was the lead plaintiff in the groundbreaking class-action litigation Cobell v. Salazar, a lawsuit against the U.S. government for mismanagement of trust funds belonging to more than 500,000 individual Native Americans. After 15 years of litigation, the federal government agreed to pay a $3.4 billion settlement in 2009, a major portion of which will be used to buy back lands and restore them to the Native American tribes. Ms. Cobell passed away of cancer on October 16, 2011.

Many of Ms. Cobell's friends and family, including her son, Turk Cobell, attended the reception, as well as friends from other tribes who came to remember Ms. Cobell. The podium had a continuous stream of individuals who publicly honored Ms. Cobell and shared their fond memories of her, including her staff from the Blackfeet reservation, colleagues, friends, and family.

At the reception was a bouquet of yellow roses, in memory of Yellow Bird Woman, and margaritas, Ms. Cobell's favorite drink.

The [Sister] Sky's The Limit

Quanah Spencer — Fri, 09 Dec 2011 11:18:25 -0800

A great big congratulations go to Williams Kastner's client, Sister Sky! This innovative retailer was honored on Thursday, December 8, 2011, as a winner in the University of Washington's Minority Business of the Year Awards.

"Sister Sky, a retail business selling natural bath and body care products inspired by Native American herbal wisdom, was started by sisters Monica Simeon and Marina TurningRobe, members of the Spokane Tribe and who operate the business on the Spokane Reservation. With 2010 revenues of $500,000 the company announced a new distribution partnership that will help deliver its lotions and products to major national hotel chains beginning in 2012. The awards are presented by the UW’s Business and Economic Development Center and Foster School of Business. Six other Washington businesses also received awards, including Indian Eyes LLC of the Tri-Cities; Macnac Construction of Lakewood; Revel Consulting of King County; Hughes Group LLC of Tacoma; Sam and Jenny, Inc., of Bellevue; and Del Sol Auto Sales of Everett." Spokesman-Review, December 9, 2011

Future of Tribal Internet Gaming Subject of Oversight Hearing

Quanah Spencer — Thu, 17 Nov 2011 13:32:16 -0800

On November 17, 2011, the Senate Committee on Indian Affairs is conducting an oversight hearing to discuss the future of tribal Internet gaming. There are several witnesses from government regulatory agencies, tribal governments and gaming associations, and the gaming industry who will offer testimony regarding the use of the Internet to serve tribal gaming operations in the future. The Internet is a largely unregulated medium which has seen increased use by commercial interests to conduct business operations and exchanges. Recently, in the case of Comcast v. FCC, the federal Court has held that the FCC lacks the ability under the FCC’s ancillary authority in the Communications Act, to regulate Internet Service Providers like Comcast. In the Comcast case, the FCC attempted to prevent Comcast from using network management operations which allegedly excluded non-Comcast applications from its Internet network. Comcast challenged the assertion of FCC authority in regard to regulating the Internet under the Communications Act. Prior to this case, the FCC classified the Internet as an informational service as opposed to a common carrier like a traditional telephone company. Under the Communications Act and FCC regulations, a common carrier is subject to a wider range of FCC regulation than is an informational service. The decision by the Court in Comcast upheld the classification of the Internet as an informational service and as a result, the Court determined that the FCC had no authority to regulate the Internet, such that it could impose punitive action against an Internet Service Provider such as Comcast.

On a similar front, states are generally allowed a minimal role in regulation of the Internet. States are permitted to regulate the Internet only so far as the action to be regulated occurs entirely within the state and the action does not involve interstate commerce. Thus, many tribes are not subject to state regulatory jurisdiction when it comes to the Internet. A question which may be raised as a part of the discussion about to occur in the Senate this week should involve the ability of the states to regulate gaming if it occurs over the Internet on an Indian Reservation or gaming facility. The push to regulate Internet gaming may also raise questions about the Communications Act and whether it will have to be amended to allow federal agencies an expanded role in regulating the Internet. There are no Internet Service Providers who appear to be testifying at the upcoming Senate hearing and it would likely be prudent at some point to include them in future discussions. After all, it is the Internet Service Providers who will provide gaming operations with the connectivity to the Internet, service the Internet connections to ensure reliability and speed, and most importantly, provide the necessary Internet security to prevent cyber attacks or the loss of customer personally identifiable information.

DOD Cyberspace Strategy Envisions Tribal Issues

Quanah Spencer — Mon, 18 Jul 2011 09:59:58 -0800

In July 2011, the Department of Defense (DOD) announced a broad strategy for operating within cyberspace. The DOD cyberspace strategy now recognizes that cyberspace is another platform that will play host to warfare and that the warrior in this battlefield may not have to utilize an expensive, gigantic system to deliver a devastating blow to critical infrastructure. While the high level of devastation to critical infrastructure may increase in today’s attack, the small-scale technologies behind these attacks may have an impact which is disproportionate to their size. In its strategy, the DOD has acknowledged that DOD and Defense Industrial Base networks suffered cyber attacks and that information and systems were compromised as a result. The DOD also acknowledged that there may be malicious code or activities on DOD systems which have not yet been detected and thus, pose a national security risk to sensitive and classified networks in both the government and private sectors.

The strategy announced by the DOD is squarely focused upon five strategic initiatives that may provide opportunities to tribal businesses, tribal entrepreneurs and tribal members interested in a career in cyber security. In particular, Strategic Initiative 3 calls for the DOD to partner with other agencies and tribal governments to ensure a whole-of-government approach to cyber security. Under Strategic Initiative 5, the DOD recognizes and embraces that it will have to develop small businesses, entrepreneurs and people to pursue new technology and innovations in cyber security and defense. With the large number of attacks to DOD systems, the DOD remains focused upon building and leveraging the technological prowess of the public and private sectors through investments in people, research and technology. The Section 8a program may be an avenue for tribal businesses and entrepreneurs to explore this emerging national security industry sector. The tribal governmental and educational sectors may be able to direct the investment of DOD resources to the development of tribal people who will be the next generation of cyber warriors protecting our nation’s critical infrastructure from a catastrophic attack.

Tribal Cyber Security: Hacking Away At An Undefined Threat

Quanah Spencer — Tue, 14 Dec 2010 12:03:48 -0800

Nationally, the internet and communications infrastructure is an essential tool for ensuring the reliability of our emergency services to coordinate efforts, our financial system to complete transactions, and our economy to maintain business operations. Disruption to this infrastructure would wreak havoc on our population and require a monumental commitment of resources to recover from disruptive effects. Currently, the Department of Homeland Security is largely responsible for protective and responsive actions to cyber threats that face the Federal Executive Branch civilian networks. The authorities which outline the DHS role and responsibility for cyber security are in the Homeland Security Act of 2002 and the Federal Information Security Management Act of 2002. Homeland Security Presidential Directives (HSPD) further focus DHS’s role. HSPD 7 compels DHS to operate a central point for coordination of cyber security across federal departments and agencies, state and local governments, and the private sector. In response to HSPD 7, DHS created the U.S. Computer Emergency Readiness Team (US-CERT) to serve as the central point for responding, reporting, and analyzing cyber security issues.

The funding of DHS cyber security initiatives is risk driven and not threat driven, as stated by DHS Secretary Napolitano at a recent hearing before the subcommittee of the House Committee on Appropriations regarding DHS Appropriations for 2010. In that hearing, tribal cyber security issues were discussed and Congressman Steven Kirk asked whether there was any specific threat or risk information for cyber attacks related to tribal governments. Secretary Napolitano acknowledged that she did not have a specific report detailing the cyber threats which confronts tribal governments. Herein lies the challenge for Indian country: there is a constant threat of attacks to internet and communications systems, which tribal governments, businesses, and people utilize every day. However, there is no specific report or centralized point where the threat or the attack by cyber warriors is catalogued, categorized, and compiled. The $15 million set aside in the DHS 2010 appropriations bill may not be enough to manage the threat and it may not be geared toward truly protecting against the attacks to critical tribal infrastructure. It is not clear whether or not US-CERT has even provided access to its services by tribal governments who largely partner with other governments including the federal government when it comes to preparedness and response actions under HSPDs.

The time is now to develop the capacity and the expertise in tribal communities to identify, manage, respond, and recover from cyber attacks. The price of not doing so could result in the next cyber attack being launched from tribal computers or servers without the knowledge that hackers have hijacked tribal resources to carry out these attacks. The risk is there and it should be addressed at some level without creating a new bureaucracy to oust existing DHS or tribal government agencies who may be in a prime position to implement the EINSTEIN and its progeny into tribal systems. Tribes must be included in the National Infrastructure Protection Plan and the related Sector-Specific Plans when it comes to protection of the internet and communications systems.

Quanah M. Spencer Selected as NCAIED "40 Under 40"

Debora Juarez — Thu, 30 Sep 2010 10:12:38 -0800

The National Center for American Indian Enterprise Development ("NCAIED") has selected Williams Kastner tribal practice attorney, Quanah M. Spencer, as one of their 2010 "Native American 40 Under 40 Recipients."

The Native American 40 Under 40 recipients are "outstanding young Native American who have shown excellence in community and/or profession." The winners will be recognized at a special reception that will be held prior to the Indian Progress in Business Awards Banquet (INPRO 2010), on October 21, 2010 at the Hard Rock Hotel & Casino in Albuquerque, New Mexico. For more information, please visit the NCAIED website.

Client Ryan Craig (left) of
the award-winning Rezhogs,
with Quanah Spencer.

Seattle member Debora Juarez to Present at 7th Annual Women's Leadership Forum and Enduring Spirt Awards

Debora Juarez — Fri, 24 Sep 2010 14:05:39 -0800

Seattle member Debora Juarez will be presenting "Defining our Future - Tribal Sovereignty," at the 7th Annual Women's Leadership Forum and Enduring Spirit Awards sponsored by the Native Action Network, Sept. 27 & 28.

For more information about this event please visit the Native Action Network website.

Network Neutrality Debate Heating Up

Quanah Spencer — Wed, 04 Aug 2010 15:55:05 -0800

Federal Communications Commission Chairman Julius Genachowski, recently conducted meetings with many industry and advocacy groups regarding the pending reclassification of the Internet for regulatory purposes under the Communications Act of 1934. It is likely that these meetings were in response to the recent decision in Comcast v. FCC, where the FCC was found to lack ancillary jurisdiction to regulate the network management actions of an internet service provider. The FCC asserted it possessed the ability to regulate the Internet based upon its ancillary jurisdiction. Therefore, the FCC could require Comcast to grant it the authority regarding the creation of Comcast network management policies so as not to impede access to the Internet by non-Comcast applications. The D.C. Court of Appeals determined the FCC lacked the ancillary jurisdiction to regulate the Internet because the FCC assertion was based solely upon policy statements contained within the Communications Act of 1934 and not specific statutory power contained within the Act. The ruling rejected the FCC’s claim to have authority to regulate the Internet through policy pronouncements and specific congressional approval contained within legislation. FCC network neutrality policy after the Comcast decision was found to be without support or authority.

It is likely that Chairman Genachowski’s meetings were intended to predict political climate which might result if the FCC pursues a reclassification of the Internet. Currently, the Internet is classified as an information service as opposed to a common carrier. Common carriers, are subject to more detailed regulation when it comes to topics such as rates charged for utilizing the communication system, universal service, accessibility, and other network management issues.

It is uncertain if Native American Tribes or Tribally owned telecommunications companies have been included in Chairman Genachowski meetings. Although the policy and legal discussion will still be sent back to Congress for consideration before the FCC can proceed with the reclassification of the Internet, the initial salvo has already begun in important Senate and House Committees. In mid-June, a letter sent from Senator Dorgan to Senator Inouye expressed concern that someone may seek to attach a rider to the 2010 appropriations measure which would severely restrict the FCC’s authority when it comes to network neutrality. In the letter, Dorgan specifically states that the FCC “must move forward to ensure solid legal footing” for policies which reform universal service to support broadband and connectivity to Native Americans on tribal lands among other issues. Tribal interests in the future of the Internet have already been sidelined in favor of large corporate interests because large businesses have established platforms which now control access to the internet, which has become an important part of daily life. Tribal governments and tribally owned telecommunications companies should be focused upon engaging with both the FCC and Congress on the future of the Internet and Network Neutrality.

Tribal Broadband and Indian Preference

Quanah Spencer — Tue, 29 Jun 2010 09:21:02 -0800

On June 28, President Obama signed an executive memorandum which commits the government to expand the amount of broadband spectrum available for wireless communications. This follows on the release of the National Broadband Plan by the Federal Communications Commission and the Department of Commerce earlier this spring. The Plan will serve as the basis for the continued development and expansion of wireless communications. The F.C.C. issued action items within the National Broadband Plan which calls for the availability of 500 MHz of spectrum for broadband use within the next ten years. Approximately 300 MHz of the 500 MHz is in the high value spectrum between 225 MHz and 3.7 GHz where mobile use is prevalent. The time frame for making the high value spectrum available for commercial use is within the next five years.

Tribal economies are becoming increasingly dependent upon access to wireless communications such as cellular phones and wireless internet connectionsfor daily business operations. Greater access to broadband spectrum will be essential in providing more avenues for business transactions and economic growth. Wireless communication and internet service providers profit from broadband spectrum as it determines the rates which they can impose upon customers.

Currently, the National Broadband Plan allows for the creation of a Native Nations Broadband Task Force, Office of Native American Affairs, and an increase in mobile communication opportunities within tribal communities. Both this Plan and the Communications Act lack a clear and defined strategy to develop broadband capabilities within tribal communities. One way for tribal entities to increase their bidding power is by utilizing the Tribal Lands Bidding Credits available to them. This tool grants significant discounts to companies bidding on radio spectrum who will be providing improved telecommunications. Without more credits, however, the level of broadband penetration within tribal communities will likely fall by the wayside similar to the manner in which telephone service failed to reach a majority of Native American people. Tribal governments and tribal entrepreneurs have an opportunity here to persuade Congress to adopt tribal prerogatives when it comes to the development and expansion of broadband. The Plan will inevitably be considered by Congress in the near future and tribal broadband advocates should be in a position to influence future legislation. It may be advantageous for tribal governments and tribal entrepreneurs to advance the position that the F.C.C. should make certain spectrum available for sole source bidding by tribal governments and small and disadvantaged business concerns. This position would be similar to preferences in contracting awarded under the Section 8a program.

While consultation with the F.C.C. regarding the Plan is an aspirational goal, the compressed time frame for the auctioning of high value spectrum will force tribal governments and tribal entrepreneurs to bid on spectrum without the F.C.C. having had ample time to develop a clear and defined policy under the Plan for Native Americans. When it comes to the regulation of broadband and net neutrality, tribes should be wary of the F.C.C. overreaching its regulatory authority. In the Comcast v. F.C.C. decision, the court of appeals held that the F.C.C. lacked the ancillary jurisdiction to regulate and impose punitive measures upon an internet service provider when it engages in network management over internet communications. Therefore, logic dictates that tribal governments and tribal entrepreneurs are the most informed and best suited advocates for the use of broadband spectrum within tribal communities.

Ctizens United and November 2010 Washington Senate Election

Quanah Spencer — Tue, 08 Jun 2010 13:50:52 -0800

Washington Senate campaign launches a Dash for Cash. With the entrance of Dino Rossi as the Republican candidate into Washington state’s Senate race against incumbent Democratic Senator Patty Murray on May 26, the ground has been set for the ensuing battle which will be influenced on a national level. The Democrats and Republicans both view the Washington Senate campaign as a skirmish where the balance of power may shift away from the Democratic majority in Congress. Both parties have observed that the mood of this year’s electorate is shaped by mounting budget deficits, lackadaisical employment numbers and an administration which is struggling to cobble together a unified strategy to address the Gulf Coast oil debacle. Campaign contributions will also flavor the tone, pace and results of this fall’s elections because of the decision reached by the Supreme Court when its verdict was announced in the Citizens United v. FEC case. In the Citizens United decision, the Supreme Court overruled the ban which prevented corporations from using funds from their general treasury to make independent expenditures and electioneering communications in federal elections.

The Supreme Court determined that a ban based upon the identity of the speaker was impermissible because it sought to restrain political speech without a justifiably compelling interest, particularly when it involved a prohibition directly levied on corporate political speech. After the decision, the Federal Election Commission stated that it would not enforce statutory provisions or its regulations that had prohibited corporations or labor organizations from making independent expenditures and electioneering communications. The Court’s decision and the FEC’s position together mean that corporations and labor organizations are free to pay for political tools essential for candidates reaching and persuading the electorate via media communications. This freedom to pay for communications may prove to be the difference between the electorate choosing Dino Rossi or Patty Murray to represent Washington in the U.S. Senate for the next six years.

In a recent statement, it was declared that the Rossi campaign had raised $600,000 from individual donors in the wake of his entrance into the race on May 26. The figure quoted by the Rossi campaign is dwarfed by the $5.47 million on hand for the Murray campaign as of the last report filed with the FEC at the end of March 2010. Both the Rossi and the Murray campaigns will likely experience a surge in donations from individuals, corporations and labor organizations as the end of the race gets closer, the rhetoric gets deeper, and the price of political ads gets steeper. The price tag for the 2010 election cycle in Washington State just went up and it will likely be influenced by out-of-state donors as the share of in-state donors reaches contribution limits. The voice that interested parties will exercise in the electoral process is directly attributable to the impact that the funding of independent expenditures and electioneering communications have upon a candidate’s cause.

National Broadband Plan Still Relevant Despite Net Neutrality Ruling

Quanah Spencer — Mon, 12 Apr 2010 15:07:18 -0800

In a recent decision from the U.S. Court of Appeals for the District of Columbia, the Court held that the Federal Communications Commission lacked the statutory authority under section 4(i) of the Communications Act of 1934 to regulate an Internet service provider’s actions regarding its network. The case was initiated by the Comcast Corporation to challenge the validity of an adverse order issued to it by the FCC in response to Comcast’s interference with its subscribers’ use of peer-to-peer networking. The FCC order was based upon its assumption of ancillary jurisdiction over the issue under section 4(i) and its determination that Comcast’s action violated the FCC’s internet policy statement adopted in 2005. The Court of Appeals overturned the FCC’s assumption of ancillary jurisdiction over Comcast’s interference with its subscribers’ use of peer-to-peer networking applications because the Court held that the FCC lacked the specific delegated powers under the Communications Act of 1934 to regulate an information service provider. Thus, the FCC internet policy statement did not, in and of itself, confer any authority to the FCC that could be tied directly back to a specific provision in the Communications Act of 1934. The clear impact of the decision places doubt upon the FCC’s ability to prescribe net neutrality rules and enforce them on Internet service providers such as Comcast when they restrict access to their network.

The recent decision has led to reservations about the ability of the FCC to complete its activities associated with the development of a national broadband plan, which was unveiled earlier this year. In its national broadband plan, the FCC has created specific recommendations for Congressional consideration when developing national telecommunications and Internet systems. The plan represents a determined shift by the FCC away from traditional wire transmittal methods to the wireless broadband spectrum. Because the plan focuses on broadband as the medium for future Internet systems and applications, the FCC has specifically recommended in Chapter 4 of the plan that Congress consider enacting policies which spur broadband competition and innovation policy. The Comcast decision should do little to deter continued dialogue on the national broadband plan, but it clearly places pressure upon Congress to review the future development of the Internet and to determine what regulatory authority it will allow the FCC to pursue when ensuring open access to the Internet by users and applications. While the effort to adopt a national broadband plan is not dead, a major lobbying battle will likely ensue as those for and against net neutrality will have a new forum to debate its provisions.

There are other areas of the national broadband plan that industry groups, internet service providers, schools, tribal governments, hospitals, and entrepreneurs should be reviewing to create their legislative agendas when Congress convenes to take up the legislation that is likely to follow in the wake of the FCC’s recommendations for policy action. The Law, Legislative and Government Affairs Practice Group at Williams Kastner can assist you in formulating and submitting your legislative agenda to members of Congress for inclusion into legislation when the debate on the future of the Internet and wireless broadband communications begins on Capitol Hill.

PACT Act Cuts Tribal Commerce

Quanah Spencer — Wed, 24 Mar 2010 11:29:01 -0800

On March 19, 2010, the U.S. Senate presented S.1147, the Prevent All Cigarette Trafficking Act of 2009, or PACT Act, to the President to sign into law. The bill sailed through Congress with little debate and provided no opportunity for Indian Country to submit its comments regarding the bill through the hearings process. The PACT Act would modify the Jenkins Act. Under the Jenkins Act, distributors of cigarettes are required to file records with state tax administrators when transporting cigarettes within a state or face sanctions for failure to comply with reporting requirements. The PACT Act would now require common carriers transporting both cigarettes and smokeless tobacco in commerce to file information with states, federal, and tribal government authorities. The PACT Act also requires common carriers and other transporters of these products to file records with the U.S. Attorney General in order to preserve their status as an approved compliant delivery seller. These increased regulatory hurdles and record keeping rules will cost Tribal entrepreneurs and Tribal enterprises more money to maintain the records and adhere to reporting requirements. The increased costs will undoubtedly end up in the price per pack of cigarettes and smokeless tobacco products raising the price paid by consumers. This has the effect of leveling the price of Tribal products with the price charged by the big four tobacco companies and could wipe out the profit margin that small Tribal owned businesses need to compete in the tobacco market place. The PACT Act prohibits the U.S. Postal Service from transporting cigarettes and smokeless tobacco products along with online sales. These two methods of transporting and selling cigarettes and smokeless tobacco will effectively destroy the Tribal tobacco industry as their methods of delivery of Tribal tobacco products to the consumer is now strangled off.

Although the bill apparently maintains both state and tribal sovereign immunity from lawsuits, the PACT Act provisions allow state governments the ability to share information with the federal government in the event that states learn of non-compliance with the Act. States would then have the ability to initiate a civil action against an offending party in U.S. District Court in order to enforce the provisions of the PACT Act. The federal government would also have the ability to initiate its own civil and criminal actions against an offending party for violation of the requirements of the Jenkins Act as modified by the PACT Act. In short, the implications of concurrent state and federal enforcement against tribal manufacturers, tribal distributors, tribal entrepreneurs, and tribal enterprises with the PACT Act could tip the scale against tribal governmental sovereignty to engage in commerce as a business entity or dictate its own requirements as a regulator. Tribal governments would then face a choice between engaging in commerce and regulating tribal commercial transactions involving tobacco under Tribal law or facing the possibility of state and federal enforcement with the threat of a Jenkins Act proceeding if the state or federal authorities believe that a violation has occurred.

Another area of concern is the non-compliant delivery sellers list that the PACT Act creates and that the U.S. Attorney General will be responsible for maintaining. The list would be used by the U.S. Attorney General to promote enforcement of the Jenkins Act against carriers or other transporters of cigarettes or smokeless tobacco. The Jenkins Act list looks similar to the list of certified manufacturers maintained by each state as a result of the Master Settlement Agreement (MSA). The MSA was a settlement between 46 state attorneys general and the big four tobacco companies (Tribes were not consulted or included in the MSA) in 1998 that was centered on recovering billions of dollars from the companies to cover health care and other costs for the treatment of conditions caused by smoking cigarettes. As a result of the MSA, any non-participating manufacturer (who was not one of the big four tobacco companies) of cigarettes must register with each state and pay a specified amount of money into an escrow account (which arguably would include Tribal entities since they are considered a non-participating manufacturer). Failure to register and pay the amount of escrow required for inclusion on state lists of certified tobacco manufacturers under the MSA can result in a manufacturer’s product being deemed contraband by state officials and seized. The Jenkins Act appears to be an effort on the part of state governments to have a new federal compliant delivery seller list which is similar to the MSA certified tobacco manufacturer list. The federal list will act as a lynchpin to imploring federal authorities to bring Tribal entities in line with state MSA related statutes, which are clearly inapplicable to Tribal entities or governments. States and Tribes which have tobacco compacts in place will have to determine if the PACT Act changes the equation with regard to reporting requirements and enforcement authorities. Interested parties should weigh in with the White House soon as the President still must sign the bill.

Focus Upon Jobs: The Day After

Quanah Spencer — Fri, 29 Jan 2010 13:55:09 -0800

Creating jobs was the overriding subject of Wednesday’s State of the Union Address. The President acknowledged that job creating and growth will be the primary focus of his administration in 2010, in order to restore prosperity to America’s middle class. While the President acknowledged that the national unemployment rate of ten perecent was unusually high, he did not mention that in some areas of Indian Country, the unemployment rate has consistenly hovered at 50 to 70 percent for many years. Senator Dorgan and fellow members of the Senate Committee on Indian Affairs conducted a hearing Thursday that launched a dialogue addressing the high unemployment in Indian Country. The panel of witnesses at this hearing included key leaders in the federal government, tribal government, and several corporations based in Alaska, but did not include business owners from privately-held tribal member-owned entities. As many economists have detailed in reports and the President stated Wednesday night, government programs designed to bolster the nation’s small businesses will help set the country on a speedier path to an economic recovery. Nationwide, small businesses compose about 50 percent of the country’s total number of business enterprises.

Small businesses deserve a place at the table both in the nation’s dialogue on economic recovery and in the dialogue addressing Indian Country’s battle with high unemployment. Williams Kastner represents one such company—Sister Sky—which took the initiative to draft and send its comments to Capitol Hill for inclusion in a discussion on how to build commerce within Indian Country. Sister Sky is a Native women-owned company with headquarters on the Spokane Indian Reservation. They provide high-quality natural bath products and employ a workforce largely composed of Native Americans in a community where jobs are scarce. The company owners believe that its business success can be useful to fostering job creation within tribal communities. Sister Sky executives crafted their comments to lawmakers in D.C.with the desire to participate in a dialogue that will be both good for businesses nationwide and good for their local tribal community. Following Sister Sky’s lead, tribal entrepreneurs and tribal-owned entities should direct their comments on building sustained tribal economies to members of Congress and the Senate Committee on Indian Affairs so that their insights may be included in this important economic policy discussion.

In addition to Sister Sky’s participation in plans for economic revitalization, the Pathways to Prosperity Program, operated by the United Indians of All Tribes Foundation, is sponsoring a career fair on February 4, 2010, in order to connect employers with job seekers. The career fair is scheduled to be held at the Daybreak Star Indian Center located in Discovery Park, Seattle. There will be state, county, and tribal governments present to recruit potential applicants. This event has, in the past, also attracted the likes of non-tribal businesses such as REI and Starbucks so it should prove useful for all types of applicants seeking work.

Issues to Think About When the President Delivers State of the Union Address.

Quanah Spencer — Wed, 27 Jan 2010 10:28:09 -0800

On Wednesday evening, the President is scheduled to deliver his annual State of the Union Address before a joint session of Congress as the nation watches live on TV. The President delivers his address amidst an economic crisis which is compelling Americans to look to the President to provide specific and directed policy initiatives that will help create more jobs and bolster the country’s economy. After a severe and protracted defeat of the health care reform legislation, combined with the retirements of several key Democrats who were up for reelection in 2010, the nation is poised to hear solutions to real problems facing America’s families. In response, the President has announced that he will seek an immediate freeze on the federal budget as it relates to discretionary spending programs. The President will likely go into detail about this new initiative during his address as well as announce how he intends to pursue policies designed to spark the nation’s stalled economic engine.

As the President’s budget proposal currently stands, the federal budget would amount to $1.3 trillion for Fiscal Year 2010. At the end of 2009, the public-held debt stood at $7.5 trillion, and it is projected to double by 2020 if all laws and policies remain intact. The most recent report issued by the Congressional Budget Office indicates that the American economy will continue its slow climb out of the recession, with low job growth, stagnant growth in the financial markets, and elevated home foreclosures lingering. Federal sources of revenue are expected to increase slightly as several tax provisions expire in 2010, including the Economic Growth and Tax Relief Reconciliation Act of 2001, the Jobs and Growth Tax Relief Reconciliation Act of 2003, and the Making Work Pay tax credit. The $1.3 trillion budget that will be at the center of the President’s address includes $687 billion for national defense ($130 billion in 2010 and another $50 billion a year from 2011 to 2019 for the military operations in Iraq and Afghanistan) and $562 billion for non-defense programs.

The reductions recommended in the President’s budget include discretionary spending in energy (48.8% reduction); education, training, employment, and social services (14.8% reduction); and natural resources and the environment (7.4% reduction). Many federal programs supporting American Indians are discretionary spending measures and would likely be reduced per Obama’s new budget. Some programs which are completely eliminated or reduced under the President’s budget, as well as a list of government departments that will face steep budget reductions, include: public broadcasting grants, the Department of Agriculture, public telecom facilities, the Department of Commerce, rural community facilities, the Department of Health and Human Services, state grants given to establish safe and drug-free schools and communities, the Department of Education, water infrastructure earmarks, the Environmental Protection Agency, work incentive grants, the Department of Labor, and targeted funding for Alaska Native Village infrastructure, ($9 million reduction).

Ultimately, Congress must take into consideration the current economic situation when debating the proposals set forth in the President’s address. Lawmakers will enter the appropriations process with some sobering facts and a policy proposal which will likely force them to play with the hand they have been dealt.

2010 Elections and Washington State Legislature Update Part 2

Quanah Spencer — Fri, 22 Jan 2010 15:54:05 -0800

Health care, in this session of Congress, is not likely to fare well. Speaker Pelosi has stated that there is virtually no way to gather enough votes for the House to pass the Senate version of the health care reform bill before the mid-term elections. This essentially means that the health care reform initiative as it currently stands is likely to be dead before arrival. However, it appears that after the election of Senator Brown in Massachusetts, the President is seeking to seize upon voter frustration with in the typical standoff between Democrats and Republicans which results in lack of progress in our nation’s capital. The President announced that he would seek further regulation of Wall Street financial institutions in the form of imposing new restrictions upon banks engaging in proprietary trading. Congress will likely have to review and amend legislative initiatives currently being deliberated in order to accomplish the President’s new focus upon strengthening regulatory mechanisms over Wall Street’s financial institutions.

On January 28, 2010, the Senate Committee on Indian Affairs will conduct a hearing on proposing solutions to the high unemployment rates on Indian reservations. Yesterday, the House approved three water rights bills: H.R. 1065, H.R. 3254, and H.R. 3342. The direction of Indian country priorities will likely face shifting political emphasis after the State of the Union address and submission of the President’s budget.

Washington Legislature

The Washington Legislature continues to face mounting challenges in order to balance the state’s $31 billion budget. The source of state revenue continues its decline as the economy suffers through job losses in 2009 that reached 106,000. The forecast for the state’s economy shows that there will continue to be slow recovery, stagnant job growth, high unemployment, and less revenue collected. The state will be reliant upon Federal sources of funding and will be forced to implement policies that expand job opportunities and investment in state business development. Some notable bills to monitor include the following:
HB 2411: A bill to address subarea plan proposals as part of comprehensive land use planning.
HB 2493: A bill to address the taxation of cigarettes and other tobacco products.
HB 2749: A bill to address local government taxation. HB 2650: A bill to address utility taxes.
HB 1191: Incentives to support renewable solar energy. HB 1610: Incentives for use of biomass in renewable energy production. HB 1658: Incentives for utilities to promote renewable energy.
HB 1699: Implementing a high-speed internet deployment and adoption strategy for the state. HB 1249: Concerning internet and mail order sales of tobacco products.

2010 Elections and Washington State Legislature Update

Quanah Spencer — Fri, 22 Jan 2010 15:50:40 -0800

The next ten months will be very interesting as Congress deliberates after the President’s State of the Union Address. The balance of power has been impacted in the Senate as the Democrats hang on to a 59-seat majority with a Republican margin of 41 seats. The mid-term elections for Congress are scheduled for November 2010 and in the meantime Congress will address the federal budget, debate any jobs related policiesand determine the future of the health care reform bill. The position and the discussion that will ensue during the next ten legislative months will likely set the tone and agenda for issues which will be used by voters in determining their elected officials. The following information is a brief synopsis of a few of the key gubernatorial and congressional races in the western United States.

Washington

There is no scheduled gubernatorial race for Washington state in 2010 as current Governor Christine Gregoire’s term does not expireuntil 2012. In the Senate race, Senator Patty Murray is seeking reelection in 2010 and has enjoyed broad support from Democratic voters in the state. Sean Salazar, a chiropractor, and Wayne Glover, a trucker, have announced that they will challenge Senator Murray in the upcoming election on the Republican ticket. Some Republicans areintending to mount a serious challenge to Senator Murray by mobilizing voter turn-out and by encouraging high profile candidates such as Attorney General Rob McKenna or 8th Congressional District Representative Dave Reichert to enter the race.

Idaho

The Republican incumbent Governor C.L. “Butch” Otter is set to mount a reelection campaign in 2010 on favorable polling numbers. The challenger, Keith Allred, is a political novice when it comes to electoral politics and will face an electorate that is known for supporting conservative, Republican candidates. In the Senate, Senator Mike Crapo is seeking reelection in 2010 and has yet to see a serious challenge from the Democrats in Idaho.

Oregon

Former Governor John Kitzhaber is a favored candidate on the Democratic side of the ticket and he faces a challenge in the primary by former Secretary of State Bill Bradbury. The Republicans have several candidates which include Allen Alley, Bill Sizemore, and former State Senator John Lim. In Oregon’s Senate race, Senator Ron Wyden is seeking reelection in a heavily leaning Democratic state. Some Republican pundits have suggested that former Senator Gordon Smith would be a strong candidate to challenge Senator Wyden.

California

Jerry Brown has re-surfaced, again, as the Democratic candidate for Governor in the nation’s most populous state. The Republicans have some serious challengers among their candidates which include former eBay CEO Meg Ryan and State Insurance Commissioner Steve Poizner. Senator Barbara Boxer is seeking reelection for the U.S. Senate and faces a challenge from several high profile Republicans. Carly Fiorina, former CEO of Hewlett Packard; State Assemblyman Chuck DeVore; and former U.S. Representative Tom Campbell have all surfaced seeking the U.S. Senate seat for the Republicans.

Electoral Fallout Amidst Challenging Economic Reality

Quanah Spencer — Thu, 21 Jan 2010 08:53:29 -0800

On January 19, 2010, there was a special election held in Massachusetts for the U.S. Senate seat vacated by the death of former Senator Edward M. Kennedy. The campaign for the vacant seat was marked by fierce political fighting within the Democratic party in order to craft a message which resonated with voters who are currently facing huge economic challenges, a burgeoning federal deficit, and widespread disagreement over the Obama Administration’s strategy to enact health care reform. The Republican party focused upon a candidate and a campaign which leveraged on voter anger at large Wall Street bail outs, high rates of unemployment, and potentially large deficit spending to accomplish health care reforms. Senator-elect Brown gathered 51.9% of the vote compared with the 47.1% accumulated by the Democratic challenger Martha Coakley. The election attracted voter turnout to the tune of 2.25 million people, which was about 73% of the total voters who turned out in the 2008 presidential election. The consequences of this election are significant, as the Democratic Party has lost its supermajority of 60 seats in the U.S. Senate, an advantage that allowed votes to be conducted on a party line basis and limited Republican filibusters.

The legislative agenda adopted by the Democratic leaders in Congress and the President is now largely at risk of being irrelevant in the remainder of the Congressional session leading up to mid-term elections in November 2010. The Administration and Democratic members of Congress will now likely be forced to appeal to moderate Republicans in the hopes of passing any legislation designed to address a wide range of issues including job creation, financial industry regulations and health care. For the time being, Democratic leaders have insisted that it is their intent to move the health care reform measure through Congress quickly. Some members of the House have indicated that they will adopt the Senate version of the bill and attempt to gather the 218 votes needed to clear the House. In order to move the House-passed bill, the Obama Administration and Senate Majority Leader Reid (D-NV) would have to pass a corrections bill through Congress by using budget reconciliation procedures. Budget reconciliation procedures only require 51 votes to pass a bill.

The health care reform debate may begin anew if the House cannot agree to adopt and pass the Senate version of the bill. The focus of the Administration and Congress may subtly shift to engaging on public policy debates to shore up an ailing economy and provide a responsive set of policy initiatives designed to increase jobs. The economic downturn which has resulted in sustained unemployment at levels not seen since the Great Depression is only adding to the desire of many politicians seeking reelection in 2010 to address employment and job issues. The upcoming State of the Union Address by the President will likely be the Democrats first opportunity to unveil any new economic and legislative initiatives. The Republican Party may be poised to gather more seats in Congress in the 2010 elections by focusing upon progressive policies tailored to improve the economy and spearheading efforts to ensure that Americans return to the workplace at a higher pace.

Governor Gregoire's State of the State Address

Quanah Spencer — Thu, 14 Jan 2010 08:53:29 -0800

On January 12, 2010, Governor Christine Gregoire delivered the State of the State address to the 61st Washington State legislative session. This year’s legislative session is slated to be a 60-day session that will likely be marked with frenzied activity and decision making that will provide deep cuts to an already deficit laden budget. The supplemental budget proposed by Governor Gregoire in December 2009 requested reductions in government services or programs to patch an expected $2.6 billion gap in funding. At the opening of her address, the Governor acknowledged all of Washington’s tribal leaders and recognized those in attendance including: Carol Hatch, Chairperson of the Quileute Tribe; Charlotte Williams, Chairperson of the Muckleshoot Tribe; and Mel Sheldon, Chairman of the Tulalip Tribes. Chairman Brian Cladoosby, Swinomish Tribe, gave the opening prayer to the address where he emphasized a humble and gentle approach to governing during this session of the legislature since many of Washington’s families are struggling to survive in the state’s depressed economy.

The Governor’s address focused upon the challenging economy and the difficult decisions ahead while asking for the legislature to have compassion when adopting legislative policy to implement cuts requested in the budget. The Governor sharpened her pledge to have a leaner and efficient government bureaucracy where she would reduce the size of the state government agencies by one-third and eliminate an additional 78 boards and commissions. In addition to bureaucratic reductions and eliminations, the Governor stated that it was the creation of jobs which would bring the state out of the current recession. Governor Gregoire suggestedthat adopting public policy in renewable energy, health care, technology, biotechnology, education, and public safety showed promise in developing jobs and securing the future economy of the state. Although the specifics of each public policy area were not detailed in her address, the Governor indicated that she would support a tax credit for small businesses that hire new employees, spur business development in renewable energy industries through infrastructure investment in the smart electrical gridand the streamlining of government permitting programs. Collectively, it is hoped that these measures will result in the creation of 40,000 new jobs with a commitment of $2 billion in capital investment from non-state government sources. Tribal businesses, tribal entrepreneurs, and other businesses wishing to do business in Washington should be formulating a position on these economic policies.

The Senate Ways and Means Committee began receiving testimony today on the proposed supplemental budget and will likely move the measure forward in an expeditious manner in the shortened time frame provided by this legislative session. The state budget along with the other measures introduced in this legislative session will set the tone and pace for Washington’s programs and policies for many years to come. The state’s economic and natural resources are facing a tough financial reality for the immediate future. Now is the time for state policy to incorporate tribal economies into the equation of developing and expanding opportunities to generate revenue and jobs in the state. The advantages of doing business with Washington’s tribes should be a factor when the state legislature is looking to offer incentives when attracting capital investment and business activity.

What Tribes Need to Know About the Quick-Moving Cobell Settlement

Quanah Spencer — Fri, 11 Dec 2009 12:01:21 -0800

On December 8, Secretary of the Interior Ken Salazar and Elouise Cobell jointly announced that the United States and Cobell plaintiffs had entered into a settlement agreement to conclude the decades-old Cobell litigation. The case was filed in 1996 on behalf of a class of Indian plaintiffs who had Individual Indian Money (IIM) accounts managed by the Department of the Interior. The plaintiffs sought remedies against the United States resulting from breaches in the management of IIM accounts. Among other things, the Cobell plaintiffs sought an accounting of the trust corpus to determine its value.

The settlement requires the creation of: (1) an Accounting/Trust Administration Fund with an infusion of $1.4 billion to settle individual Indian claims; (2) a Trust Land Consolidation Fund with an infusion of $2 billion; (3) a Secretarial Commission on Trust Reform paid for by money in the Trust Land Consolidation Fund; and (4) a mechanism for unused funds in the settlement to be set aside for Indian education scholarships. The settlement does not require the federal government to admit fault and it resolves all individual Indians’ IIM-related claims that have or could have accrued as of the date of the settlement.

Importantly, the settlement is contingent upon Congress enacting legislation to approve the settlement, including the appropriation and payment of federal funds under 31 U.S.C. § 1304. The timeline allotted in the settlement agreement for Congress to do so is extremely ambitious since it anticipates congressional authorization by December 31, 2009. While Congress debates the highly controversial health care reform legislation, Senator Reid and Speaker Pelosi will be hard pressed to schedule time for authorization of a multi-billion dollar settlement before recessing at the end of the year.

Of significance, there is no language in the settlement or the legislation that appears to resolve the tribal trust mismanagement cases, including the one-hundred plus cases filed by tribal governments in addition to the Cobell litigation, which are pending before various federal courts. The tribes’ cases, according to former Attorney General Alberto Gonzales in 2005, could result in liability to the United States in excess of $100 billion.

Tribes and individual Indian allottees must carefully scrutinize the $2 billion set aside for land consolidation pursuant to the Indian Land Consolidation Act. The consolidation would seek to consolidate all 128,000 individual Indian allotments into an Indian-owner-managed trust that could include tribal governments as owners in common with individual Indians. The Secretary would be authorized to use fair market value to consolidate the estimated 3.6 million fractionated Indian land interests, into what the federal government appears to believe would be a more efficient and beneficial owner-managed trust.

The proposed Secretarial Commission on Trust Reform is not fully detailed in the settlement or the proposed authorizing legislation. There are reports that this Commission would somehow “sunset” the Office of Special Trustee (OST), but there is not operative language that would make this a reality. Unless the role and the authority of the Commission are detailed in the legislation, there is always the possibility that the Commission will be just another bureaucratic creation with no mission other than to amorphously serve as “trust reformer.” At a minimum, it seems appropriate that when discussing trust reform, the legislative initiative should follow a tribal-driven set of recommendations, similar to that undertaken in the 109th Congress with S.1439.

The three-week timeline for Congressional approval of the Cobell settlement is extremely ambitious, but should nonetheless cause tribal governments and Indian allottees to think twice before supporting or rejecting it outright. Indian Country must demand that key issues related to any consolidation of Indian land interests or reformation of the federal/tribal trust relationship be completely explained, before Congress does anything, whether by December 31 or afterwards.

Native Wireless Broadband: Communications and Communities

Quanah Spencer — Tue, 08 Dec 2009 10:50:11 -0800

While many tribal consumers have a vast array of opportunities to access the seemingly unlimited information on the Internet, many Indian consumers still do not have access to traditional telephone lines for dial-up Internet connection. The gap in access results from the remote location of Indian reservations, and the high cost of running line to homes and businesses there. Broadband services and applications present a solution that could bridge this connectivity gap in Indian Country.

A Wall Street study recently cited by the FCC in a report on wireless broadband access found that consumers increasingly rely upon wireless devices and applications to access the Internet to complete commercial transactions and gaming activities. Tribal governments and entrepreneurs and Indian Country’s other capital investors should focus on developing wireless broadband access on reservations in order to reach tribal consumers and further inject commerce into tribal markets. Indian Country most certainly has the land base, population and energy resources needed to positively impact the Internet network and become a member of the Internet Protocol for transmission of data via the Internet.

One area that should be developed in Indian Country are mesh and edge networks, otherwise known as server farms, which store content for access by end users. The stored content and deployment of high speed fiber optic links connecting various servers to a central database will prevent congestion at choke points in the Internet. This allows the end user to access content and information at faster and more reliable speeds. Server farm projects could be developed using a mixture of tribal, private and federal Recovery Act funding. Tribal entities that become Internet service providers (or “ISPs”) should also explore setting fees for use of the Internet network based upon tiered access. Tiered access would allow a flat fee for a certain level of Internet traffic per month, but impose additional fees for access to extra bandwidth needed to transmit higher volumes of data over the Internet.

The network neutrality debate happening before the FCC is also key for Indian Country. The FCC regulates ISPs as informational service providers, not common carriers. As the FCC has ancillary authority to regulate ISPs, market forces impose conditions, rates and terms upon ISPs’ delivery of Internet access to end users. While an open market should encourage tribal development of ISPs, there are open questions regarding the extent, nature and scope of state regulatory authority of ISPs operating within Indian Country. The federal Communications Act reinforces the view that states have an important and preeminent role in regulating intrastate communications. I fear that if the FCC decides that ISPs are common carriers, rather than informational service providers, such may inadvertently cause state regulation over Tribal ISP transactions occurring on tribal lands within a particular state. Tribal advocates must focus on the net neutrality debate insofar as state, and thus tribal, regulatory authority over Internet communications are concerned.

In sum, Indian Country and potential tribal ISPs can and should seek to influence federal policy by or through advocating for tax incentives to develop broadband capabilities in underserved reservation areas; establishing partnerships with current ISPs to take advantage of Internet-related business opportunities; and pronouncing a clear position on net neutrality and related regulatory issues to the FCC and other policymakers.