Hopi Tribe attempts to stop French sales of sacred masks

The Hopi Tribe has filed suit in a French court to attempt to stop the Drouot auction house from selling 32 sacred tribal kachina masks. The Tribe attempted in April to halt a similar sale of 70 masks but a Paris court ruled that the sales were legal. The Tribe and its advocates argue that the masks represent ancestral spirits and cannot be treated like merchandise.

The Tribe considers the masks as communal property which have never belonged to anyone. The auction house say they belong to a private collector and are not stolen property.

The Paris court held a hearing on the lawsuit on Tuesday and a verdict is expected as early as today. Lets hope the Tribe prevails in this latest effort to protect its cultural patrimony.

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American Indian economic development conference Feb. 27-28 ASU College of Law

The Indian Legal Program at the Sandra Day O’Connor College of Law is hosting a conference entitled “Sustaining the Reservation: Creating Tribal Economies” on February 27-28, 2014. The conference will be held on the main ASU campus in Tempe, Arizona. Speakers include Assistant Secretary of Indian Affairs, U.S. Department of the Interior, Kevin Washburn, Patrice Kunesh, Deputy Undersecretary U.S. Department of Agriculture, President Diane Enos, Salt River Pima-Maricopa Indian Community, Dean Stacy Leeds, University of Arkansas, and professors and attorneys from across the country.

Get more information at: http://law.asu.edu/ilp/TheIndianLegalProgram/UpcomingILPEvents.aspx

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Catholic groups call for Pope Francis to rescind 15th Century papal bulls on Discovery

Yesterday, thirteen Catholic groups requested that Pope Francis formally rescind the 15th century papal bulls that provided the basis for the international law Doctrine of Discovery and the legalized colonization and subjugation of most of the world by Europeans.

This call was made by the Loretto Community and the elected leadership of the Sisters of Mercy of the Americas, the 19 member congregations of Dominican Sisters Conference, the Sisters of St Francis (Rochester, Minn.), Sisters of St. Joseph (Concordia, Kan.), Sisters of St. Joseph (Philadelphia), Sisters of Charity of Leavenworth (Kan.), the Congregation of Sisters of St. Agnes (Fond du Lac, Wis.), Institute of the Blessed Virgin Mary (Casa Loreto, Rome), Sisters of St. Joseph and Associates of Buffalo New York; Pax Christi International; as well as the 8th Day Center for Justice; and the Franciscan-founded Nevada Desert Experience, in collaboration with Chief Johnnie L. Bobb of the Western Shoshone National Council.

The request by these groups stands in solidarity with indigenous peoples’ requests to every pope since 1984 to do the same. The 13 groups call upon Pope Francis to start a new era of justice with a public declaration that formally rescinds the Dum Diversis Bull of 1452, which ordered Europeans “to capture, vanquish and subdue the Saracens, pagans and other enemies of Christ and put them into perpetual slavery and to take all their possessions and their property,” and the Inter Caetera Bull of 1493, which divided the world for Spain and Portugal to “take all lands and possessions” and to colonize and convert indigenous peoples.

These 13 Catholic groups join other church denominations who have called for a repudiation of the Doctrine of Discovery and the settler-colonial thinking that the Doctrine spawned and sanctioned.  The other religious groups include the World Council of Churches, the Episcopal House of Bishops, the Philadelphia, New York, and Canadian Yearly Meetings of the Religious Society of Friends and the Boulder Friends Meeting (Quakers), the United Methodist Church, Unitarian Universalists and others.

Read the entire Loretto Community press release at:


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Klamath Tribes invoke water rights

Big news in Oregon water issues is the fact that the Klamath Tribes are exercising their water rights and the federal government will support those rights by limiting irrigation water to cattle ranchers and farmers in the Klamath basin this summer.  The water will be used to protect the Tribes' traditional fishing grounds and two species of fish that are on the endangered species list.  Scott Learn, Tribes invoke water rights, Oregonian, June 11, 2013, at A1.

As I understand it, the State of Oregon refused to enforce anyone's water rights while the 38 year long Klamath basin stream adjudication went through the Oregon administrative process. Obviously, during that long period of time, other people were using water that has now been determined to belong to the Klamath Tribes. Now that the Tribes' water rights are quantified, and will be protected, it is largely their decision on how their 1864 treaty reserved water rights will be exercised.

The Oregon process, however, allows the administrative decision to be challenged in Oregon courts and apparently some cases are already underway.

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Indian Mascots and schools

An oped article in today's Portland Oregonian addresses the possible veto by Gov. Kitzhaber of a bill just enacted by the Legislature to allow a sort of local choice for public schools to use Indian mascots.

The authors wrote, in part: "Gov. John Kitzhaber has gone on record as saying he will veto Senate Bill 215. This bill, which has passed the House and Senate, would effectively overturn the Oregon Board of Education's 2012 decision to eliminate the use of Native American mascots in Oregon schools.

At issue here are both group and individual rights — sovereign tribal cultural property rights, and Native students' human and civil rights. Exposing individual Native students to mascots, targeting and bullying for sport, recreation and entertainment is not dignified or honoring, and is race-based discrimination. . . . "

Read the entire piece: http://www.oregonlive.com/opinion/index.ssf/2013/07/native_mascots_dishonor_oregon.html

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U.S. Supreme Court decides Indian Child Welfare Act case

On June 25, the Supreme Court decided only its second case interpreting the Indian Child Welfare Act (ICWA) (in 1989 the Court strongly upheld the Act in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)).

In the 2013 case, the Court continued to apply ICWA but its restrictive interpretation of the Act seems to have limited Congress' original intentions for ICWA to protect Indian children from adoptions to non-Indian families and tribal community interests in protecting and retaining their youngest citizens.

The Association on American Indian Affairs wrote about the case, in part:

the case involves a dispute between a Cherokee father, Dusten Brown, and a non-Indian prospective adoptive couple seeking to adopt his child. The South Carolina courts had applied the Indian Child Welfare Act (ICWA), held that the father was a fit parent, and returned custody to him about 18 months ago. By a 5-4 vote, the Supreme Court reversed the South Carolina Supreme Court and remanded the case for further hearings before the South Carolina trial court to determine who should have custody of Veronica. . . .
Jack Trope, Executive Director of AAIA [said] "It is unfortunate, however, that the uncertainty regarding Veronica's future has been prolonged by the decision and that the Court adopted a problematic interpretation of some ICWA provisions. The Court did not adopt arguments asserting that ICWA is unconstitutional, however, so the decision is narrower than it could have been."
In short, the Court held that
  • the heightened standard of proof for termination of parental rights in ICWA does not apply when a parent has never had prior legal or physical custody (although Justice Breyer in his concurrence suggests that there may be exceptions to this rule),
  • active efforts are not required to prevent the breakup of an Indian family when a parent abandons a child before birth and has never had physical or legal custody of the child, although the section may apply to a non-custodial parent in other factual circumstances, and 
  • adoption placement preferences are not triggered until a party within the placement preferences (relative, tribal member, or other Indian person) seeks to adopt the child.
Contrary to some media reports, the Court did not adopt the Existing Indian Family Exception (EIF). The EIF, which has been followed by a small minority of states, provides that the Act does not apply when there has not been a prior Indian family. Rather, the Court appeared to accept the dissent's view that many provisions of the Act, such as the notice, transfer and consent provisions, would still apply in cases involving biological fathers regardless of whether they ever had custody."

Read more: http://hosted.verticalresponse.com/978547/ae5823b8df/1660541583/c46d284ff2/

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President Obama creates a White House Council on Native American Affairs

On June 26, the President issues an executive order creating a White House Council on Native American Affairs.  I have reprinted the order below.

 Executive Order — Establishing the White House Council on Native American Affairs

Executive Order — Establishing the White House Council on Native American Affairs

– – – – – – –


By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote and sustain prosperous and resilient Native American tribal governments, it is hereby ordered as follows:

Section 1. Policy. The United States recognizes a government-to-government relationship, as well as a unique legal and political relationship, with federally recognized tribes. This relationship is set forth in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. Honoring these relationships and respecting the sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity.

As we work together to forge a brighter future for all Americans, we cannot ignore a history of mistreatment and destructive policies that have hurt tribal communities. The United States seeks to continue restoring and healing relations with Native Americans and to strengthen its partnership with tribal governments, for our more recent history demonstrates that tribal self-determination — the ability of tribal governments to determine how to build and sustain their own communities — is necessary for successful and prospering communities. We further recognize that restoring tribal lands through appropriate means helps foster tribal self-determination.

This order establishes a national policy to ensure that the Federal Government engages in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including by better carrying out its trust responsibilities. This policy is established as a means of promoting and sustaining prosperous and resilient tribal communities. Greater engagement and meaningful consultation with tribes is of paramount importance in developing any policies affecting tribal nations.

To honor treaties and recognize tribes' inherent sovereignty and right to self-government under U.S. law, it is the policy of the United States to promote the development of prosperous and resilient tribal communities, including by:

(a) promoting sustainable economic development, particularly energy, transportation, housing, other infrastructure, entrepreneurial, and workforce development to drive future economic growth and security;

(b) supporting greater access to, and control over, nutrition and healthcare, including special efforts to confront historic health disparities and chronic diseases;

(c) supporting efforts to improve the effectiveness and efficiency of tribal justice systems and protect tribal communities;

(d) expanding and improving lifelong educational opportunities for American Indians and Alaska Natives, while respecting demands for greater tribal control over tribal education, consistent with Executive Order 13592 of December 2, 2011 (Improving American Indian and Alaska Native Educational Opportunities and Strengthening Tribal Colleges and Universities); and

(e) protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures.

Sec. 2. Establishment. There is established the White House Council on Native American Affairs (Council). The Council shall improve coordination of Federal programs and the use of resources available to tribal communities.

Sec. 3. Membership. (a) The Secretary of the Interior shall serve as the Chair of the Council, which shall also include the heads of the following executive departments, agencies, and offices:

(i) the Department of State;

(ii) the Department of the Treasury;

(iii) the Department of Defense;

(iv) the Department of Justice;

(v) the Department of Agriculture;

(vi) the Department of Commerce;

(vii) the Department of Labor;

(viii) the Department of Health and Human Services;

(ix) the Department of Housing and Urban Development;

(x) the Department of Transportation;

(xi) the Department of Energy;

(xii) the Department of Education;

(xiii) the Department of Veterans Affairs;

(xiv) the Department of Homeland Security;

(xv) the Social Security Administration;

(xvi) the Office of Personnel Management;

(xvii) the Office of the United States Trade Representative;

(xviii) the Office of Management and Budget;

(xix) the Environmental Protection Agency;

(xx) the Small Business Administration;

(xxi) the Council of Economic Advisers;

(xxii) the Office of National Drug Control Policy;

(xxiii) the Domestic Policy Council;

(xxiv) the National Economic Council;

(xxv) the Office of Science and Technology Policy;

(xxvi) the Council on Environmental Quality;

(xxvii) the White House Office of Public Engagement and Intergovernmental Affairs;

(xxviii) the Advisory Council on Historic Preservation;

(xxix) the Denali Commission;

(xxx) the White House Office of Cabinet Affairs; and

(xxxi) such other executive departments, agencies, and offices as the Chair may, from time to time, designate.

(b) A member of the Council may designate a senior-level official, who is a full-time officer or employee of the Federal Government, to perform his or her functions.

(c) The Department of the Interior shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations.

(d) The Council shall coordinate its policy development through the Domestic Policy Council.

(e) The Council shall coordinate its outreach to federally recognized tribes through the White House Office of Public Engagement and Intergovernmental Affairs.

(f) The Council shall meet three times a year, with any additional meetings convened as deemed necessary by the Chair. The Chair may invite other interested agencies and offices to attend meetings as appropriate.

Sec. 4. Mission and Function of the Council. The Council shall work across executive departments, agencies, and offices to coordinate development of policy recommendations to support tribal self-governance and improve the quality of life for Native Americans, and shall coordinate the United States Government's engagement with tribal governments and their communities. The Council shall:

(a) make recommendations to the President, through the Director of the Domestic Policy Council, concerning policy priorities, including improving the effectiveness of Federal investments in Native American communities, where appropriate, to increase the impact of Federal resources and create greater opportunities to help improve the quality of life for Native Americans;

(b) coordinate, through the Director of the Office of Public Engagement and Intergovernmental Affairs, Federal engagement with tribal governments and Native American stakeholders regarding issues important to Native Americans, including with tribal consortia, small businesses, education and training institutions including tribal colleges and universities, health-care providers, trade associations, research and grant institutions, law enforcement, State and local governments, and community and non-profit organizations;

(c) coordinate a more effective and efficient process for executive departments, agencies, and offices to honor the United States commitment to tribal consultation as set forth in Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation); and

(d) assist the White House Office of Public Engagement and Intergovernmental Affairs in organizing the White House Tribal Nations Conference each year by bringing together leaders invited from all federally recognized Indian tribes and senior officials from the Federal Government to provide for direct government-to-government discussion of the Federal Government's Indian country policy priorities.

Sec. 5. General Provisions. (a) The heads of executive departments, agencies, and offices shall assist and provide information to the Council, consistent with applicable law, as may be necessary to carry out the functions of the Council.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) For purposes of this order, "federally recognized tribe" means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.

(e) For purposes of this order, "American Indian and Alaska Native" means a member of an Indian tribe, as membership is defined by the tribe.

(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


         June 26, 2013.

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