Environmental Developments

Environmental Developments, Summer 2012

Adam Dunstan, Department of Anthropology, SUNY-Buffalo

Environmental Policy in an Election Year

My job writing this column gives me some insight into the nature of environmental policy in the U.S.: always complicated, always changing. That is perhaps never truer, and never more important, than in an election year. As we consider our choices in the November elections, as well as other elections to come, it might be useful to turn a thoughtful gaze to the environmental headlines from the last few months, which I have written on in this column. We might ask what these mean for us as individuals that are civically involved both through our research and our voting. We might ask what they mean for the indigenous communities we work with. And we might honestly ask ourselves what political interests best serve both the environmental and the sovereignty challenges facing native North American communities.

In tribal news, we find that while there have been steps towards granting more environmental decision making sovereignty to the tribes, the legal system is still often stacked against the tribes when they advocate for protection of their natural and spiritual resources, such as sacred spaces. The tribes are often in a disempowered place as far as protection and/or use of their local environments, and we might ask what potential there is for this landscape to change over the next several years.

On the national scene, the Obama administration has made several wise decisions in their environmental stewardship, but also ones that we might consider unwise. The EPA has released several new standards to improve the climate change situation, such as power plant CO2 emission standards. Branches of the government, such as the National Park Service and the military have made explicit efforts to be greener. On the reverse side, it seems very possible that President Obama will approve Keystone XL, a gigantic pipeline that many environmentalists and Native Americans are more than a little wary of.

The already large pile of evidence that human beings play an important role in causing global climate change and that it is already having dramatic effects across the globe has been further added to in the last several months. How have politicians faced up to this evidence? How might they, if properly encouraged?

Finally, internationally, we see important conferences and agreements, such as Rio+20 and the G8 summits, which could have far-reaching environmental impacts. Such international efforts and agreements will be increasingly necessary in addressing environmental challenges that do not conveniently stop at nation-state borders. It is important to ask what politicians will be most likely to deal on the international stage in conservation matters.

As usual, I’ve divided up this “Environmental Development” column into three sections: Tribal News (starting on page 2), National News (page 7), and International News (page 13). Each section contains my summaries of what I considered some of the most important or insightful news stories published on environmental news from January to June 2012. I hope they are useful to you in your research or person enrichment. If you have further questions, please reach me at adamduns@buffalo.edu.

Kindly,

Adam Dunstan

Tribal News

Native Americans respond to 2,000-mile long Keystone XL pipeline

Several Native Americans protested as President Obama visited Cushing, OK to announce his strong support for the Keystone XL pipeline (see “President Obama in difficult situation with Keystone XL pipeline” below) on March 22nd. Local authorities told the indigenous peoples to hold their planned protest in a park miles from the presidential speech in a “cage”, according to activists. The pipeline would transport a half million gallons of oil daily from “tar sands” in Alberta, Canada to refineries in Texas and along the Gulf Coast.

Native American organizers have expressed concern that the impacts both of the oil sand mines (in Alberta, Canada) and the pipeline on indigenous communities and their sacred places have been ignored. Marty Cobenais, from Indigenous Environmental Network, said “Tar sands [are] devastating First Nations communities in Canada already, and now they want to bring that environmental, health and social devastation to U.S. tribes.” Early Hatley said that the First Nations living in Canada downstream from the oil sand mines have experience spikes in their incidences of several forms of cancer – an alarming health crisis that has been ignored by the Canadian government and oil companies.

The pipeline could also have serious impacts on archaeological/heritage sites. The Oklahoma Archaeological Survey has identified 88 archaeological sites threatened by construction of the Keystone XL pipeline. TransCanada, the mining company proposing the pipeline, submitted a new route for the pipeline in March which is slightly modified from the original, but it still leaves 71 archaeological sites at risk. Activists say they have asked for a list of these sites and to oversee pipeline operations that might threaten burial grounds, but that request has not been honored.

Keystone XL could also potentially damage drinking water. The pipeline would cross a water table that provides irrigation and drinking water for seven of the nation’s food-producing states. TransCanada already has a pipeline, Keystone I, which pumps tar sands oil from Alberta to Cushing allegedly had at least 14 leaks in its first year of operations. Its construction was opposed by a lawsuit from four Sioux tribal governments.

In other efforts to stop Keystone XL, a delegation from First Nations in Canada met with European government officials, political leaders and trade leaders to try and convince them not to purchase “tar sands oil” on the grounds that it has negative climate effects. They visited Paris, London, Berlin and The Hague, Netherlands from March 19-26.

(New York Times, “Keystone XL Pipeline”, 05/22/212 http://topics.nytimes.com/top/reference/timestopics/subjects/k/keystone_pipeline/index.html?8qTalli Nauman, Native Sun News, “Native Sun News: Activists plan Keystone XL hunger strike”, 05/28/12, http://64.38.12.138/News/2012/005098.asp)

San Francisco Peaks snowmaking battle continues as construction begins

Despite several rounds of legal debate, the Arizona Snowbowl ski area near Flagstaff began construction of a pipeline for artificial snow made from treated wastewater in early May. The proposal to use artificial snowmaking on the Peaks has been protested, denounced, and litigated against by several Native Americans because it occurs on a mountain, the San Francisco Peaks, which is sacred to at least 13 tribes.

During the early part of the year, tribal activists lost another lawsuit in the Ninth Circuit Court of Appeals against the snowmaking proposal. The lawsuit alleged that environmental health risks of human ingestion of artificial snow had not been properly considered during the federal government’s environmental assessment of the procedure. The lawsuit was filed after litigation attempting to halt snowmaking as a violation of religious freedoms failed to stop the proposal.

Attempts to stop snowmaking continue. LeRoy Shingoitewa, Hopi tribal chairman, hired SWCA Environmental Consultants to look at the effects of snowmaking on endangered species; SWCA found that there might be significant effects for one listed species, the San Francisco Peaks Ragwort, an alpine plant, also known as groundsel. One of the consultants states that he started out feeling “very doubtful that there were any particular environmental effects of using the treated wastewater to make snow. After I had done all my due diligence, I became increasingly apprehensive about some of the long-term effects that could really happen to this plant.” Shingoitewa notified officials from the Forest Service and the Fish and Wildlife Service of these findings in early April and asked that the federal agencies reopen consultation regarding snowmaking.

Meanwhile, activists have continues to attempt to stop snowmaking through public opinion. Two Flagstaff residents announced at a Flagstaff City Hall meeting that they would embark on a hunger strike to oppose snowmaking. Meanwhile the Protect the Peaks group is asking for a Call to Action Week from June 18-22, requesting that people call the companies responsible for the actual snowmaking infrastructure construction to express their disapproval. Please visit www.protectthepeaks.org for more information and ways to be involved.

(Anne Minard, Indian Country Today Media Network, “Construction begins on San Francisco Peaks; controversy far from over”, 05/12/12, http://indiancountrytodaymedianetwork.com/2012/05/12/construction-begins-on-san-francisco-peaks-controversy-far-from-over-112682; Anne Minard, Indian Country Today Media Network, “Flagstaff residents embark on hunger strike to oppose snowmaking on San Francisco Peaks”, 06/07/12, indiancountrytodaymedianetwork.com/2012/06/07/flagstaff-residents-embark-on-hunger-strike-to-oppose-snowmaking-on-san-francisco-peaks-117035ICTMN Staff, Indian Country Today Media Network, “Sacred Sites: Groups continue to call for action on San Francisco Peaks”, 06/17/12, http://indiancountrytodaymedianetwork.com/2012/06/17/sacred-sites-groups-continue-to-call-for-action-on-san-francisco-peaks-118830)

Grand Canyon uranium mining ban

Secretary of the Interior Ken Salazar has withdrawn a million acres of federal land near the Grand Canyon from future uranium mining. In the area of the ban new uranium mining claims will not be permitted for at least the next 20 years; this comes with a caveat – the ban can be overturned by future Secretaries of the Interior. The area of the ban is regarded by many as both a national and international treasure. Salazar said “A withdrawal is the right approach for this priceless American landscape. People from all over the country and around the world come to visit the Grand Canyon. Numerous American Indian tribes regard this magnificent icon as a sacred place and millions of people in the Colorado River Basin depend on the river for drinking water, irrigation, industrial and environmental use.”

President Ben Shelley of the Navajo Nation applauded the move, noting that the Navajo Nation banned uranium mining in 2005, and that the federal ban, which includes a prohibition uranium mining on certain lands adjacent to the Navajo Nation, was a good move due to the health and land issues related to radioactive material mining. Jan Brewer, Governor of Arizona, had a different take, decrying the ban and stating that it will result in a loss of $10 billion to the state of Arizona and a loss of jobs. It is worth noting that the move does not cancel existing mines or mining claims - because of this, the Obama administration says that mining in the area will actually remain at a constant level or even increase – the ban simply withdraws certain areas from any future mining.

(Cindy Yurth, Navajo Times, “Diné politicians applaud uranium ban”, 01/13/12, http://navajotimes.com/news/2012/0112/011212Ban.php)

Housing development approved on sacred land in California

Several Indian bands protested unsuccessfully against a residential development in the San Luis Rey river valley in southern California, arguing that the development would occur on part of a large portion of land sacred to southern California tribes and which plays a role in their creation stories. Chris Dever, formerly chairman of the Pauma Band of Mission Indians, told the board of San Diego County Supervisors that ancient human remains were found in the area under an access road and that tribes would prefer these remains not be disturbed. The developer, Pardee, has set aside an acre to re-inter the remains, but Devers brought up the potential of the area filling up, and noted “If you [had] a road built over your grandmother, how would you feel?”

Meanwhile, attorneys for the Pechanga tribe said that environmental studies done regarding the development had considered the archaeological, but not the cultural, value of the sites and asked the board to delay a decision until the site could be investigated further; Supervisor Dianne Jacob said that while she sympathized with the indigenous peoples’ concerns, she was not sure what difference a delay in the development would make, since Pardee had spent years getting to the point of development and had involved Native American bands in the decision process. County staff said that the environmental impact reports met all state and federal laws. Ultimately the Meadowood development was approved by the board.

(Alison St. John, KPBS, “Meadowood approved over objections from Native American Indians”, 01/11/12, http://www.kpbs.org/news/2012/jan/11/meadowood-approved-over-objections-native-american/)

Quechan Tribe fights wind development project

The Quechan Indian Tribe sued the Department of the Interior for giving a right-of-way to a wind farm developer. The 112 turbine project would be built east of Ocotillo in California. Tribes claimed that the project would permanently impact cultural and archaeological resources, that mitigation was lacking, and that the development process had not engaged in meaningful consultation with them. The project is also opposed by some Ocotillo residents and some environmentalists.

The Quechan tribe requested a temporary restraining order, but it was denied by the judge, who deemed that there had been sufficient protection of cultural resources. The judge considered the memorandum of agreement (MOA) between the Bureau of Land Management and Pattern Energy (the wind developer) as sufficient in regards to the archaeological remains. The tribes commented on, but were not required signatories of, the MOA, meaning that in the words of one indigenous commentator, they were not really legal parties to the MOA. The tribes are now pursuing a full injunction against the project, which is a lengthier court process.

(Alejandro Davila, Imperial Valley Press, “Ocotillo Wind Express construction to continue”, 05/23/12, http://www.ivpressonline.com/news/ivp-ocotillo-wind-express-construction-to-continue-20120523%2C0%2C2563863.story)

After protest movement, sacred site protected in Mexico

The Mexican government announced that it would protect a half-million acres of land held sacred by the Huichol Indian tribe after a protest movement inspired by the tribe had garnered support from Mexican civic groups, artists and intellectuals. The area includes Cerro Quemado, a mountain that the Huichol hold to be the birthplace of the sun. The Huichol still conduct ceremonies and make an annual pilgrimage to this place. The protest was against a Canadian company which held silver-mining concessions in the area. First Majestic Silver Corp. is now giving up its concessions in the area, and the Mexican government has said that it will not authorize new mining permits.

(Associated Press, “Mexico promises to protect Huichol Indian lands”, 05/24/12, http://seattletimes.nwsource.com/html/nationworld/2018281812_apltmexicoindianprotest.html).

Tribe approaches UN in effort to halt mining near sacred sites in Great Lakes region

The Keweenaw Bay Indian Community in Michigan has appealed to the United Nations as part of an effort to stop sulfide mining. The Keweenaw feel that sulfide mining produces sulfuric acid which threatens sacred places and leads to water pollution. The group has been fighting the Eagle Mine, a new copper and nickel mine owned by Kennecott Eagle Minerals – a company which says it is leading a resurgence of mining in the Upper Peninsula region. One of the issues with the mine is its closeness to Eagle Rock, an area used for sacred ceremonies. The Keweenaw Bay Indian Community sent a document to the United Nation outlining this and other concerns. They hope that this might lead to an international agreement signed by the Obama Administration, which could strengthen their efforts to stop sulfide mining in the region.

(Interlochen Public Radio, “Tribes appeal to United Nations over UP mines”, 05/02/12, http://ipr.interlochen.org/ipr-news-features/episode/tribes-appeal-united-nations-over-mines/2012-05-02)

Blackfeet Tribe receives approval to administer own water quality standards

In a move for sovereignty in environmental law, the Blackfeet Tribe of the Blackfeet Indian Reservation in Montana was given legal authority from the U.S. Environmental Protection Agency (EPA) to administer the Water Quality Standards program (under the Clean Water Act) in its jurisdiction. The purpose of the Clean Water Act is to restore and protect the integrity of the nation’s waters and includes measures such as water quality goals for surface waters, assessment standards, and discharge permits. The tribe has specific water quality standards consistent with the EPA’s water quality standards and similar to the state of Montana which are currently being revised and publically reviewed, and likely to be submitted to the EPA during the summer or fall of this year. The Blackfeet Tribe is the fourth tribe in Montana to gain authority to self-administer the Water Quality Standards program. The tribe has a population of 10,000 with 8,500 enrolled members.

(U.S. EPA, “EPA approves Blackfeet Tribe’s Water Quality Standards program”, 05/02/2012, http://yosemite.epa.gov/opa/admpress.nsf/0/b0207814c5b2abdb852579f20064051a?OpenDocument)

Hopi Tribe sues BIA over uranium-contaminated landfill

In December, the Hopi Tribe sued the U.S. Bureau of Indian Affairs (BIA) over a uranium-polluted landfill, the latest move in an effort over the past 10 years by both the Navajo and Hopi to have the landfill cleaned up.

Drinking water for 1,800 people is reportedly in danger of contamination due to a moving plume of underground uranium at the site. Two Hopi villages rely on wells for drinking water that are located less than half-a-mile from the dump. According to Lionel Puhuyesva of the Hopi Tribe’s Water Resources Program, uranium concentrations have been found at about 7 times the EPA maximum contaminant level, a finding corroborated by the EPA. According to the EPA, ingestion of high levels of uranium can increase the risks of cancer and liver damage. The uranium plume is also moving towards a spring sacred to the Hopi.

The landfill, located near Tuba City, AZ was operated by the BIA for nearly 50 years, and the Navajo and Hopi claim that the BIA allowed a uranium mill to dump radioactive materials at this landfill in the 1950’s and 1960’s. In contrast, the BIA has hired U.S. Geological Survey (USGS) geologists, who concluded that uranium contaminated dust came from abandoned uranium mines 30 miles away. Lionel Puhuyesva responded “It seems like our word isn’t good enough for them or our data isn’t good enough. We’re like little kids being pushed aside from the table and told to sit at the little kid table while the big people talk”.

(Shelley Smithson, “EPA, BIA & tribes clash over radioactive dump cleanup”, 01/18/12, http://www.fronterasdesk.org/news/2012/jan/18/epa-bia-tribes-clash-over-radioactive-dump-cleanup/#.T9puErUi7_g)

Gray Wolves and Ojibwe tied together

In a letter to the editor in the Lakeland Times, Amanda McCoy, Ojibwe, responded to the recent delisting (on January 27th) of the Gray Wolf (Canis lupus) as an endangered species in the Great Lakes area (Minnesota, Wisconsin, Michigan). The wolf population there is just over 4,000, the original conservation management goal, and has therefore been delisted. However, McCoy expressed concern over the long-term survival of the wolf and the implications that might have for Native peoples, noting “The wolf plays a cultural, historical, spiritual, and traditional role to many Native American tribes throughout the United States….I feel the delisting will be detrimental to my tribe, along with the Gray Wolf itself…The Creator sent the wolf to keep man company while on his journey. During their travels they grew close to each other and treated one another as brothers…It is legend that the destiny of the wolf will be the destiny of the Ojibwe people.” She notes that a de-listing in the area was tried in Wisconsin in 2004, but the species had to be emergency re-listed 19 months later due to the adverse effects of land owners and hunters on the wolf population.

(Amanda McCoy, Lakeland Times, “Today will be a day for the Ojibwe to remember” 01/27/12, http://www.lakelandtimes.com/main.asp?SectionID=11&SubSectionID=11&ArticleID=14621)

National News

New survey reveals most Americans believe protecting environment creates jobs

A poll released by Yale University and George Mason University researchers found that a surprising number of Americans believe protecting the environment makes financial sense:

-58% believe that protecting the environment creates jobs and benefits economic growth, while only 17% believe it hurts economic growth and job creation (25% said there was no effect).

-79% of Americans (including 74% of Republicans) said that they support research and development into renewable energy sources.

-68% of Americans favor medium or large-scale efforts by the U.S. to reduce global warming.

Surprisingly, 62% felt that if protecting the environment and economic growth were in conflict, environmental protection should win out.

The poll showed a high degree of agreement between the two parties and highlighted the potential for the public to support strong environmental protections even with the current economic climate.

(Gina-Marie Cheeseman, “Majority of Americans agree: protecting the environment creates jobs”, 05/21/12, http://www.triplepundit.com/2012/05/majority-americans-protecting-environment-creates-jobs/)

Warmest March on record for continental United States

March, 2012 was the warmest March on record for the continental United States, according to the National Oceanic and Atmospheric Association (NOAA). According to NOAA, which has kept records since the 1800’s, the average temperature for March 2012 was 51.1°F, a shocking 8.6° higher than the average for the month of March throughout the 20th century. 15,000 local temperature records were broken, and 25 states experienced their warmest March on record. Warmer conditions in the eastern United States made for severe thunderstorms and tornados, which caused $1 Billion in damages and 40 fatalities.

(David Gabel, Environmental News Network, “It’s official: March was warmest ever in United States”, 04/10/12, http://www.enn.com/climate/article/44246)

Wind power rising, coal declining, reports Earth Policy Institute

One of the most important aspects of our environmental impacts are where our power comes from, and the electricity production picture in America has changed rapidly over the last several years, according to data from the Earth Policy Institute. The amount of electricity coming from coal peaked in 2007, and has been declining by 4% annually since then. Nuclear energy also fell slightly from 2007 to 2011. Natural gas increased by about 3% annually.

During the same time, as the coal industry was experiencing a decline, renewable sources of energy experienced a significant uptake. Hydropower generation increased by 7% annually during that period. Wind was the most significant surprise, increasing by 36% annually. It still, however, accounts for a relatively minor amount of the U.S.’s total electricity use at 2.9%. The picture is variable across the states, however, with some getting a significant amount of their power from wind. In five U.S. states, wind power accounts for over 10% of electricity, and in South Dakota, 22% of their power now comes from wind. 29 states now have renewable portfolio standards (RPS), which require that a certain amount of the power used in the state come from renewable sources by a certain date, which will likely encourage investment in wind energy, as will the federal production tax credit, which is not set to expire until 2020.

(J. Matthew Roney, Earth Policy Institute, “Wind Tops 10 Percent Share of Electricity in Five U.S. States”, 04/04/12, http://www.earth-policy.org/data_highlights/2012/highlights27)

President Obama in difficult situation with Keystone XL pipeline

One of the most prominent environmental issues this quarter has, of course, been the Keystone XL pipeline. The 2,000 mile pipeline would run from oil sands in Alberta, Canada to oil refineries around Houston and the Gulf of Mexico, and would transport over half a million barrels of oil a day. It would extend through Montana, South Dakota, Nebraska, Kansas, Oklahoma and Texas. The pipeline has been a hot button issue, pitting those who advocate for job creation and energy security against those concerned with the environmental risks at stake in transporting crude oil of this type across such huge areas. The New York Times calls it “a potent symbol in a growing fight that pits energy security against environmental risk.”

The Keystone proposal crosses an international border and therefore requires the approval of the Obama administration. The Republican-controlled congress set a 60-day deadline for President Obama to decide on the proposal, but in mid-January the State Department said that they could not recommend approval for the pipeline. Mr. Obama noted the lack of sufficient time to do environmental review. The company, TransCanada, has re-filed since then, with a plan that slightly alters the route of the pipeline to avoid some of the most environmentally sensitive portions of Nebraska. They have also started on the portion of the pipeline extending from the Gulf of Mexico to Cushing, Oklahoma. Mr. Obama visited Cushing in March and expressed his strong support and prioritization of the project, stating “I’m directing my administration to cut through the red tape, break through the bureaucratic hurdles and make this project a priority, to go ahead and get it done.”

Mr. Obama is stuck between a political rock and a hard place: Republicans critique him for not going forward with a plan that could lower gas prices and create jobs, while many liberals and environmentalists have long expressed concerns that oil sand crude is particularly corrosive to pipelines and is difficult to clean up; that, combined with the size of the pipeline and the small size of the federal agency tasked with overseeing it, would make for an unwieldy project liable to environmental disaster, they claim.

Regarding the argument that it would Keystone XL would help lower gas prices it is interesting to note that 98% of economists, in a recent University of Chicago poll, said that high gas prices were due to market factors rather than federal economic or energy policies.

Some feel betrayed by Mr. Obama’s gestures towards approving the project. RoseMary Crawford of the Center for Energy Matters notes “The people who voted for this president did so believing he would help us address the global environmental catastrophe that our pollution is creating. He said he would free us from ‘the tyranny of oil’. Today that campaign promise is being trampled to boost the president’s poll numbers. We can’t stop global warming with more fossil fuel pipelines.” Meanwhile, Marty Cobenais from Indigenous Environmental Network said, “President Obama is an adopted member of the Crow Tribe, so his fast-tracking a project that will desecrate known sacred sites and artifacts is a real betrayal and disappointment for his Native relatives everywhere.” The pipeline would be the longest of its type outside of Russia and Canada.

(New York Times, “Keystone XL Pipeline”, 05/22/212 http://topics.nytimes.com/top/reference/timestopics/subjects/k/keystone_pipeline/index.html?8q; Talli Nauman, Native Sun News, “Native Sun News: Activists plan Keystone XL hunger strike”, 05/28/12, http://64.38.12.138/News/2012/005098.asp)

EPA releases proposed standards for CO2 from power plants

On March 27th, the EPA proposed standards for CO2 emissions from power plants. The rule sets a standard that each plant must produce no more than 1,000 lbs. of CO2 per megawatt-hour. The law does not apply to existing power plants, but to ones that will be built in the future. It is expected to favor natural gas production as coal-fired power plants would need to implement carbon capture and storage to meet the standard. The standards come in response to a lawsuit filed against the EPA in 2006 by state and environmental groups. As part of the settlement for that lawsuit, the EPA also committed to setting CO2 standards for existing power plants, standards which have yet to be released.

(Vicki Shiah, Sive Paget & Riesel P.C., “EPA proposes carbon dioxide emissions standards for new fossil fuel power plants”, 04/12, http://blog.sprlaw.com/2012/04/epa-proposes-carbon-dioxide-emissions-standards-for-new-fossil-fuel-power-plants/; U.S. EPA, “EPA FACT SHEET: Proposed carbon pollution standard for new power plants”, http://epa.gov/carbonpollutionstandard/pdfs/20120327factsheet.pdf)

Congress cuts funding for light bulb phase-out

The House of Representatives voted on June 5th to block funding for enforcement of new energy efficiency promoting standards for light bulbs. The so-called light bulb “ban”, originating in 2007 under the Bush Administration, does not target any particular technology but increases energy efficiency standards for all light bulbs, effectively resulting in a phase-out of conventional incandescent bulbs starting January 1st. Conventional incandescent bulbs are known to convert about 10% of electricity into light, and a shocking 90% into wasted heat. In the June 5th vote, the House amended the 2012 Energy and Water Spending Bill to gut the enforcement money for the light bulb efficiency standard – leaving the phase-out, which still stands, without any money to implement it.

However, the lack of enforcement money might be a moot point, given the fact that the lighting industry has voluntarily been developing much more efficient light bulbs, partly with Department of Energy funding, such as enhanced incandescent bulbs and advanced LED technology, and retailers such as Ikea are already self-enforcing the new standards. Meanwhile, while the House cuts funding to enforce lighting efficiency standards, the Department of Energy has pledged 7 million to help companies develop more effective and less costly LED systems.

(Tina Casey, “Congress revives zombie light bulbs as Energy Dept. funds new tech”, 06/11/2012, http://www.triplepundit.com/2012/06/doe-funds-new-light-bulb-research-despite-balky-congress/)

EPA considers ban on sex-reversing herbicide

The EPA is weighing the possibility of banning atrazine, an herbicide linked to reproductive problems and even sex reversal in frogs and fish. The agency held a Scientific Advisory Council public meeting on June 12th about the ecological risks of atrazine. The herbicide has been banned in the European Union since 2004 but 80 million pounds of it are still applied annually to corn, rice, sugarcane, and sorghum in the United States, where it remains legal. Kerry Krieger, Executive Director & Founder of SAVE THE FROGS! also notes that epidemiological studies have linked areas with high Atrazine usage to high rates of breast and prostate cancer as well as impaired fertility in human beings.

(Mongabay.com, “EPA considers ban on herbicide that triggers sex reversal in frogs”, 06/08/12, http://news.mongabay.com/2012/0607-atrazine-epa.html#)

NOAA annual report shows six fish populations have returned to healthy levels

The annual National Oceanic and Atmospheric Association (NOAA) report for 2012 shows that six fish populations have rebounded to healthy levels in 2011, bringing the total number of “rebuilt” fisheries since 2000 to 27. David Gabel of the Environmental News Network (ENN) notes “All are aware of the tragic loss of biodiversity that this planet is…going through…however, [the new NOAA report] shows that when good policies are in place, natural ecosystems can support themselves and thrive.” Samuel Rauch, assistant NOAA administrator for fisheries, attributed the success to annual catch limits and the commitment of fishermen to rebuilding stocks. Besides fishing, other factors affecting fish populations include pollution, invasive species, disease, environmental factors, and habitat degradation. NOAA researchers predict that fully restored fisheries in the U.S. could add over $30 billion to the economy and add 500,000 jobs beyond the $184 billion and 1.5 million jobs that the commercial and recreational fishing industries already provide for the economy, making the restoration of healthy fish populations high priority for the environment and the economy.

(David A Gabel, Environmental News Network, “NOAA: Six fish populations restored to healthy levels in the US”, 05/16/12, www.enn.com/wildlife/article/44407)

Bill to end fossil fuel subsidies introduced to Congress

Senator Bernie Sander (I-VT) and Representative Keith Ellison introduced a bill to congress, the End Pollution Welfare Act, which would eliminate subsidies for fossil fuel industries by removing tax breaks, “special financing”, and taxpayer-funded research and development for these industries. Sanders claims that fossil fuels are subsidized at a rate 6 times higher than renewable energy by the federal government, having received $72 billion from 2002 to 2008 (in contrast to renewable energy’s $12.2 billion). A 2011 Yale survey found that 70% of Americans, including 67% of registered Republicans, were opposed to subsidies for fossil fuels. A petition to support the bill can be found at http://www.sanders.senate.gov/end-polluter-welfare/.

(Gina-Marie Cheeseman, Triple Pundit, “Bill To end fossil fuel subsidies introduced into Congress”, 05/14/12, http://www.triplepundit.com/2012/05/bill-fossil-fuel-subsidies-introduced-congress/; “Support the End Polluter Welfare Act, http://www.sanders.senate.gov/end-polluter-welfare/, accessed 06/14/2012)

EPA issues new air quality standards for oil and natural gas wells

In April, EPA finalized new standards designed to reduce air pollution from oil and natural gas production. The new standards, which were court mandated under the Clean Air Act, would reduce emissions leading to smog and health problems by 95%, and they reduce the cost of implementation by making use of technology already in use in half of the operating wells in the U.S. The pollution reduction is done in part by capturing natural gas leaked during the mining process. EPA Administrator Lisa P. Jackson notes: “By ensuring the capture of gases that were previously released to pollute our air and threaten our climate, these updated standards will not only protect our health, but also lead to more product for fuel suppliers to bring to market. They’re an important step toward tapping future energy supplies without exposing American families and children to dangerous health threats.” The EPA estimates that these standards will result in $11 to $19 million in savings for industry annually.

(Enesta Jones, Scott Fraser, U.S. EPA, “EPA issues updated, achievable air pollution standards for oil and natural gas / Half of fractured wells already deploy technologies in line with final standards, which slash harmful emissions while reducing cost of compliance”, 04/18/12, http://yosemite.epa.gov/opa/admpress.nsf/0/C742DF7944B37C50852579E400594F8F)

NPS goes green

On April 19th, the National Park Service (NPS) announced new plans to be more sustainable in all of its operations. The NPS oversees 84 million acres of land across 397 federal units. The new plans focus on conserving energy and water, limiting waste, and reducing its greenhouse gases (GHG) emissions. Some of the new goals include: reducing GHG emissions from on-site fossil fuel and electricity use by 35% below 2008 levels by 2020, reducing fossil fuel consumption by NPS vehicles 20% below 2005 levels, diverting 50% of annual solid waste away from landfills by 2015, and reducing water use intensity by 20% below 2007 levels by 2020. This transition will not be easy given the budget restraints of the NPS, which have prevented them from such measures in the past. Examples of the new green NPS include solar power units in a National Monument in Oregon, a solar array in a National Recreation Area in California, and green vehicles in a National Park in Kentucky.

(Rob Lovitt, msnbc.com, “National Park Service touts green themes and waives fees”, 04/19/12, http://itineraries.msnbc.msn.com/_news/2012/04/19/11289065-national-park-service-touts-green-themes-and-waives-fees?lite)

GMO labeling to go before voters in California

California is the world’s eighth-largest economy, and it is worth keeping an eye on what environmental and consumer rights laws pass in this area. A proposal may be voted on in November in California to require labels on foods that contain genetically modified ingredients. 1 million signatures in support of the referendum were submitted to state officials on May 2nd. However, Stop the Costly Good Labeling Proposition, a group backed by the biotechnology and grocery industries, has started a formal campaign against the proposed legislation. Monsanto, the world’s largest producer of genetically modified seed, said the labels were misleading and expensive and could lead to litigation against farmers. Meanwhile, on the national front, the Washington-based Center for Food Safety submitted a 1.1 million signature petition to the U.S. Food and Drug Administration (FDA) asking for mandatory national labeling for genetically modified products.

(Georgina Gustin, STL Today, “Labeling to go before voters”, 05/03/12, http://www.stltoday.com/business/local/labeling-to-go-before-voters/article_41306174-94a5-11e1-9f9f-001a4bcf6878.html)

The greening of the military

Much of the government is waiting nervously for November’s elections and the effects they will have on the fate of green technology, but according to panelists at the “Mission Critical: Clean Energy and the U.S. Military” event, the military is moving forward with its commitment to reduce its use of fossil fuels, no matter which politicians are voted in. Senator Mike Udall of Colorado cited several reasons for the greening of the military: the military accounts for 25% of the government’s energy use, 1 out of 50 convoys (such as those to get fuel to the front lines) result in a casualty, resulting in 3300 deaths since 2001, there are incredibly high costs for oil use by the military, and the Pentagon is the biggest consumer of fossil fuels in the entire world, using 300,000 barrels of oil per day, at a cost of $30 million daily. Clearly, measures to reduce fuel use by the U.S. military are both incredibly needed, and could have an incredibly large impact.

Measures to reduce fossil fuel consumption will include purchasing hybrid and electric vehicles for non-combat uses as well as microgrid systems for bases, leading to more self-sufficiency. Meanwhile, Fort Bliss (El Paso, TX) and Fort Carson (CO) have both achieved a “net zero” on water, energy, and waste, an unusually challenging feat.

While the move toward sustainability is being justified on financial and security reasons as well as (perhaps most importantly) its potential to save human lives, it is also incredibly important for the beneficial impact it could have on the health of the climate. The military is taking direction in its fuel use that could have dramatic, potentially positive, impacts on reducing climate change, if the changes are significant enough.

(John Gartner, Matter Network, “U.S. military not retreating on clean energy”, 05/15/12, featured.matternetwork.com/2012/5/us-military-retreating-clean-energy.cfm)

International News

Global warming primarily due to human influences, according to study

Forget sunspots and glacial age cycles. The warming observed over the last 50 years is largely due to human influence, according to a study recently published in the journal Nature Climate Change. The researchers examined warming in the upper layers of the ocean and found that the observed warming is not consistent with models that only take into account natural climactic variations, which some critics of global warming have tried to attribute it to. Peter Gleckler, lead author and climate scientist at Lawrence Livermore National Laboratory, states “The bottom line is that this study substantially strengthens the conclusion that most of the observed global ocean warming over the past 50 years is attributable to human activities...We found no evidence that simultaneous warming of the upper layers of all seven seas can be explained by natural climate variability alone. Humans have played a dominant role.”

(Science Daily, “Humans are primary cause of global ocean warming over past 50 years, research shows”, 06/12/2012, http://www.sciencedaily.com/releases/2012/06/120611153234.htm)

Ocean conservation a top priority at Rio+20 Conference

In June, in Brazil the United Nations is holding its Rio+20 Conference, a meeting of the UN Conference on Sustainable Development held on the 20th anniversary of the famous 1992 Rio Conference, which set many environmental goals for the international community. With the conference approaching, scientists, lobbyists, and many coastal developing nations have expressed confidence that ocean conservation will be a top priority. “Overall, the importance of the oceans for human welfare now has a momentum that has been likened to that of the rainforest campaign of 20 years ago,” writes Prime Sarmiento of the Science and Development Network. However, some environmental lobbyists remain unsure – the World Wide Fund for Nature notes that there seems to be an absence of time frames and action-oriented text in the pre-conference negotiation documents.

Still, there seems to be a movement towards more serious consideration of ocean health as part of international conservation. While the oceans were once an afterthought (for example, at the 1992 Rio conference) they will likely play a major role in the upcoming conference. Many goals set at the 1992 and 2002 UN Conferences on Sustainable Development regarding oceans have yet to be met, in part due to global climate change, rising resource demands due to an increasing population, and a lack of standardized oceanic data and public awareness of biodiversity concerns. Some of the needs that many hope will be addressed at the upcoming conference including technology transfers to coastal developing nations, aid to help coastal nations develop police forces to prevent illegal uses of the ocean, international monitoring of ocean acidification and the state of the high seas. The high seas (non-coastal waters) are not dealt with by current international ocean conservation law, which is 30 years old, but recent research has shown they play an important role in the health of shoreline environments used by human beings.

(Prime Sarmiento, Science and Development Network, “Will Rio+20 commit to protecting the oceans?”, 06/08/12, www.scidev.net/en/science-and-innovation-policy/science-at-rio-20/features/will-rio-20-commit-to-protecting-the-oceans-.html)

G8 agrees to focus on reducing climate change pollutants – neglects CO2

At the Camp David summit in May, G8 leaders agreed to take action to address climate change and air pollution, specifically focusing on soot (black carbon), hydrofluorocarbons (HFC’s), and methane. CO2, however, was not addressed. The chemicals being dealt with are more potent than CO2, but remain in the atmosphere less time, and CO2 is still a main greenhouse gas pollutant.

(Edward Strouger, “G8 leaders agree to act on climate, air pollution”, 05/23/12. http://blog.cleantechies.com/2012/05/23/g8-leaders-agree-to-act-on-climate-air-pollution/)

Tropical zone extending due to global warming induced climate change

The tropics are expanding: since 1979 the tropic zone increased its spread by 0.7 degrees latitude per decade. Scientists believe that the cause is a heating atmosphere resulting in climate change, and we are now learning more details on how this occurs. A recent study by Robert J. Allen at University at California-Riverside and colleagues published in the journal Nature showed using climate models that two of the primary drivers of tropic expansion in the northern hemisphere are back carbon (soot) and tropospheric ozone, two products of incomplete fossil fuel combustion which, while short-living in the atmosphere, have dramatic heat absorptive properties. Meanwhile, in the southern hemisphere, a depletion of the ozone layer seems to be largely to blame for the expansion of the tropics.

(Sarah Simpson, Discovery News, “Pollutants mucking with food production”, 05/24/12, http://news.discovery.com/earth/manmade-pollutants-muck-with-food-120524.html#mkcpgn=rssnws1)

Microsoft announces carbon neutrality

Microsoft has committed to carbon neutrality starting July 1st, the beginning of its new fiscal year. The move will affect the corporation’s operations in 100 different countries. The keystone of the commitment is a new accounting system which will assess different divisions a fee for their carbon use. Each division will be asked to find ways to cut down on fuel consumption and air travel, and the company will make moves towards greater energy efficiency. Microsoft has committed that the carbon use that cannot be cut out will be offset through purchasing carbon offsets and renewable energy credits.

(Leon Kaye, “Microsoft commits to carbon neutrality”, 05/19/12, http://www.triplepundit.com/2012/05/microsoft-carbon-neutral/)

Mexican government passes law to address climate change

By an overwhelming majority of 128 for, 10 against, the Mexican legislature passed a new law setting aggressive goals to reduce climate change-causing pollutants. The bill mandates that Mexico reduce its CO2 production by 30% below “business-as-usual” levels by 2020, and 50% below 2000 levels by 2050, both significant drops. It also requires that by 2024 Mexico get 35% of its electricity from renewable sources. Some have expressed concerns, however, about how well the new law will be implemented, particularly in the light of the fact that the only oil producing company in Mexico is state owned, so a decline in fossil fuel use might mean a decline in state profits. Mexico is the world’s 11th largest economy and greenhouse gas producer.

(Tim Wall, Discovery News, “Mexico passes climate change Law”, 04/24/12, http://news.discovery.com/earth/mexican-climate-change-law-120424.html#mkcpgn=rssnws1; Erik Vance, Nature, “Mexico passes climate-change law”, 04/23/12, http://www.nature.com/news/mexico-passes-climate-change-law-1.10496)

Climate change doubles cost of conserving species

Environmentalists have long warned that climate change could significantly increase the difficulty of conserving wild landscapes and endangered species. In fact, conservation costs to the world could very possibly double in some areas due to climate change, according to three studies published in the journal Conservation Biology in April. One study looked at 74 plant species in Madagascar and confirmed what has often been warned of by environmentalists: climate change will cause species that are currently in protected reserves to be forced to areas outside of protection. Another study looked at 11 species in California and found that by 2050 costs of conserving these species would be 150% higher with climate change, and that due to climate change it would be up to 220% higher to conserve these species by 2100 than if there had been no climate change. The nuts and bolts of the California situation is that climate change would increase costs for conserving these species by $2.6 billion dollars. Finally, conservation costs could be increased by as much as $1 billion in South Africa due to climate change. Ultimately costs in conservation could skyrocket as species migrate due to changing climactic conditions, causing the need for renegotiation and purchasing of new reserve lands.

(ARKive, “In the News: Climate change doubles cost of conserving nature”, 04/18/12, http://blog.arkive.org/2012/04/climate-change-doubles-cost-of-conserving-nature/)

Wind power twice as cheap to produce as solar in developing nations

A study of alternative energy in 6 developing countries, published on April 15th in the journal Nature Climate Change, found that generating wind energy is more than twice as cheap as photovoltaic (PV or solar) energy production. Wind was cheaper than PV by 2.2 – 4.5 times, depending on the country. The cost of implementing the initial switch-over to wind, however, would be very different depending on the country. Countries such as Kenya and Nicaragua would gain money by switching over, while Brazil, Thailand, and India would have much higher costs. Studies like this are providing much needed information on how to allocate funds for such programs as the Green Climate Fund, which is expected to raise up to $100 billion per year by 2020.

(María Elena Hurtado, “Wind power 'can be cheaper' than photovoltaic, study says“, 04/23/12 http://www.scidev.net/en/climate-change-and-energy/energy-policy/news/wind-power-can-be-cheaper-than-photovoltaics-study-says.html)

Climate change dramatically affecting water cycle

We all learned the water cycle as school children. What we did not learn is the way that a warming climate has interfered with this cycle. A paper published in April 27th in the highly journal Science shows that climate change has dramatically affected the global water cycle. The study looked at the changing patterns of salinity in the global ocean during the past 50 years – a clear sign that the rainfall and evaporation cycle has dramatically increased. The study looked at ocean salinity patterns as well as the relationship between salinity, evaporation, and the water cycle in climate models. The cycle has become 4% stronger from 1950-2000, meaning rates of precipitation and evaporation have increased. The practical effect of this will be arid regions becoming drier and wetter regions becoming wetter. This study predicts an 8% increase in the water cycle for every degree warming experienced. This means that with the projected 3°C increase in temperature by the end of the century, there could be 25% increase in the water cycle. So whether or not 3°C sounds like a large increase to the public, the effects – drier deserts, wetter forests – could be dramatic.

(Anne M Stark, Lawrence Livermore National Laboratory, “Atmospheric warming altering ocean salinity and the water cycle”, 04/02/12, https://www.llnl.gov/news/newsreleases/2012/Apr/NR-12-04-02.html)

Additional Environmental Developments

Steve Sachs

Indigenous Peoples Say No to REDD+ and Durban Climate Agreement, Cultural Survival, December 13, 2011, http://www.culturalsurvival.org/news/none/indigenous-peoples-say-no-redd-and-durban-climate-agreement, reports the findings of the Indigenous Environmental Network, “NO REDD Resources,” http://noredd.makenoise.org/, “Indigenous leaders returning from Durban, South Africa condemn the fiasco of the United Nations climate change talks and demand a moratorium on a forest carbon offset scheme, Reducing Emissions from Deforestation and Forest Degradation, called REDD+ which they say threatens the future of humanity and Indigenous Peoples’ very survival. During the UN climate negotiations, a Global Alliance of Indigenous Peoples and Local Communities against REDD+ and for Life was formed to bring attention to the lack of full recognition of Indigenous rights being problematic in the texts of the UN climate negotiations. ‘It was very disappointing that our efforts to strengthen the vague Indigenous rights REDD safeguards from the Cancun Agreements evaporated as the Durban UN negotiations went on. It is clear that the focus was not on strong, binding commitments on Indigenous rights and safeguards, nor limiting emissions, but on creating a framework for financing and carbon markets, which they did. Now Indigenous Peoples’ forests may really be up for grabs,’ says Alberto Saldamando, legal counsel participating in the Indigenous Environmental Network delegation. Berenice Sanchez of the Mesoamerica Indigenous Women’s Biodiversity Network says, ‘Instead of cutting greenhouse gas emissions 80% like we need, the UN is promoting false solutions to climate change like carbon trading and offsets, through the Clean Development Mechanism and the proposed REDD+ which provide polluters with permits to pollute. The UN climate negotiation is not about saving the climate, it is about privatization of forests, agriculture and the air.’ Tom Goldtooth, Director of Indigenous Environmental Network based in Minnesota, USA does not mince words. ‘By refusing to take immediate binding action to reduce the concentration of greenhouse gas emissions, industrialized countries like the United States and Canada are essentially incinerating Africa and drowning the small island states of the Pacific. The sea ice of the Inupiat, Yupik and Inuit of the Arctic is melting right before their eyes, creating a forced choice to adapt or perish. This constitutes climate racism, ecocide and genocide of an unprecedented scale.’ Of particular concern for indigenous peoples is a forest offset scheme known as REDD+ (Reducing Emissions from Deforestation and Forest Degradation). Hyped as a way of saving the climate and paying communities to take care of forests as sponges for Northern pollution, REDD+ is rife with fundamental flaws that make it little more than a green mask for more pollution and the expansion of monoculture tree plantations. The Global Alliance of Indigenous Peoples and Local Communities against REDD+ and for Life, formed at the Durban UN climate negotiations, call for an immediate moratorium on REDD+-type projects because they fear that REDD+ could result in “the biggest land grab of all time,” thus threatening the very survival of indigenous peoples and local communities. ‘At Durban, CDM and REDD carbon and emission offset regimes were prioritized, not emission reductions. All I saw was the UN, World Bank, industrialized countries and private investors marketing solutions to market pollution. This is unacceptable. The solutions for climate change must not be placed in the hands of financiers and corporate polluters. I fear that local communities could increasingly become the victims of carbon cowboys, without adequate and binding mechanisms to ensure that the rights of indigenous peoples and local forested and agricultural communities are respected,’ Goldtooth added. ‘We call for an immediate moratorium on REDD+-type policies and projects because REDD is a monster that is already violating our rights and destroying our forests,’ Monica González of the Kukapa People and Head of Indigenous Issues of the Mexican human rights organization Comision Ciudadana de Derechos Humanos del Noreste. The President of the Ogiek Council of Elders of the Mau Forest of Kenya, Joseph K. Towett, said ‘We support the moratorium because anything that hurts our cousins, hurts us all.’ ‘We will not allow our sacred Amazon rainforest to be turned into a carbon dump. REDD is a hypocrisy that does not stop global warming,’ said Marlon Santi, leader of the Kichwa community of Sarayaku, Ecuador and long time participant of UN and climate change meetings.

Drew Shindell,*, Johan C. I. Kuylenstierna, Elisabetta Vignati, Rita van Dingenen, Markus Amann, Zbigniew Klimont, Susan C. Anenberg, Nicholas Muller, Greet Janssens-Maenhout, Frank Raes, Joel Schwartz, Greg Faluvegi, Luca Pozzoli, Kaarle Kupiainen, Lena Höglund-Isaksson, Lisa Emberson, David Streets, V. Ramanathan, Kevin Hicks, N. T. Kim Oanh, George Milly, Martin Williams, Volodymyr Demkinehttp://www.sciencemag.org/content/335/6065/183 - aff-12, David Fowler, “Simultaneously Mitigating Near-Term Climate Change and Improving Human Health and Food Security,” issue of Science January 13, 2012, http://www.sciencemag.org/content/335/6065/183, makes a proposal to slow global warming by one-third, by taking low cost, in themselves economically beneficial steps, in the face of the difficulty in getting people to take short to medium high cost actions against a medium to long run extremely costly threat. This proposal comes from an international team of researchers in climate modeling, atmospheric chemistry, economics, agriculture and public health examined ways to slow global warming while also reducing the soot and smog that are damaging agriculture and health. A significant portion of global warming is believed to be caused by black carbon, the technical term for the soot emitted by diesel engines and traditional cookstoves and kilns, that has been blamed for a sizable portion of the recent warming in the Arctic and for shrinking glaciers in the Himalayas and elsewhere. Snow ordinarily reflects the sun’s rays, but when the white landscape is covered with soot, the darker surface absorbs heat instead. Another major source of global warming, and hence climate change, is methane, many times more atmospheric warming than carbon dioxide, released from farms, landfills, coal mines and petroleum operations, which also contributes to ground-level ozone associated with smog and poorer yields from crops. After looking at hundreds of ways to control these pollutants, the researchers determined the 14 most effective measures for reducing climate change, including encouraging a shift to cleaner diesel engines and cookstoves, building more efficient kilns and coke ovens, capturing methane at landfills and oil wells, and reducing methane emissions from rice paddies by draining them more frequently. The authors find that widespread application of these measures would reduce global warming in 2050 would be reduced by about one degree Fahrenheit, roughly a third of the warming projected if nothing is done. This impact on temperatures in 2050 would be significantly larger than the projected impact of the commonly proposed measures for reducing carbon dioxide emissions. Most important, these measures to bring about reductions in low-level ozone and black carbon would yield many of benefits long before 2050. Because people would be breathing cleaner air, 700,000 to 4.7 million premature deaths would be avoided each year while the improved crop yields would allow farmers to produce at least 30 million more metric tons of food annually on currently farmed land, making the measures economically and humanly desirable even without their reducing global warming (see also, John Tierney, “Climate Proposal Puts Practicality Ahead of Sacrifice,” The New York Times, January 16, 2012, http://www.nytimes.com/2012/01/17/science/countering-climate-change-without-waiting-for-a-payoff.html?_r=1&ref=science).

The report from the Intergovernmental Panel on Climate Change, “Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation,” or SREX, released in late March, finds that while there is insufficient data collected over too short a period of time to say with a high degree of certainty how much of the increased extreme weather and climate changes of the last few years are due to global warming, and thus it is difficult to predict future weather patterns with great certainty, it is clear that at least some of the more intense weather and other changes of weather patterns, of the last few years is a result of global warming, including extremes such as heat waves, record high temperatures and, in many regions, heavy precipitation, and that many such changes will continue, and oceans will continue to rise if significant actions are not taken to greatly reduce green house gas emissions and otherwise counter global warming. The report suggests approaches for managing risk and mitigating the impacts of ongoing climate change. The Summary Report is available at: http://www.ipcc-wg2.gov/SREX/images/uploads/SREX-SPMbrochure_FINAL.pdf, and the Full Report an other information at: http://www.ipcc-wg2.gov/SREX/. It has long been known that many tribal nations and Indigenous Peoples, who generate fewer greenhouse emissions than any other group, could be among communities hit the hardest. Dr. Garrit Voggesser, national director of the National Wildlife Federation Tribal Partnerships program, and author of the Facing the Storm report, notes, “Extreme weather events can be very destructive for Tribes, many of whom are already suffering from lack of resources to begin with.” Heat waves and droughts can exacerbate plant and wildlife mortality, heighten the risk of wildfires and habitat loss, and compromise tribal lands.” Voggesser says power disruptions from storms, long dry spells and heavy floods can be difficult to recover from, especially for people who live close to the land and have limited economic resources. “The Indian Nations face profound challenges to their cultures, economies and livelihoods, because of climate change,” says Voggesser. “Yet tribal peoples possess valuable knowledge and practices of their ecosystems that are resilient and cost-effective methods to address climate change impacts, for the benefit of all peoples. This study is a clear call for the Administration, Congress, state and local governments, and all peoples, to support and join tribal efforts to stem climate change.” Seattle-based NWF scientist and climate researcher Dr. Patty Glick comments, “One thing that we have learned from past extreme events, such as major floods, here in the Pacific Northwest is that even if there is a small chance of such an event occurring, the impact on our communities can be disastrous, This new IPCC report really underscores the importance of heeding precaution and being prepared, especially in anticipation of even greater risks in an era of climate change.” A report from Colorado State University says temperature and precipitation will intensify over the entire Great Plains area, with the implication that in South Dakota, the Lakota face the prospect of even harsher winters. A news report from the New York Times says Lake Superior, upon which the Great Lakes tribes depend for food resources, “is running a fever.” The Southwest faces increased drought and climate Dust Bowl conditions with serious health implications for its peoples. Sea levels on all coasts in the U.S. and North America are predicted to rise and in some cases the rise will be catastrophic. Permafrost melting under villages in Alaska is tumbling their inhabitants into the ocean. The Swinomish Indian Tribe in Washington State, after perceiving from an earth-based view the serious disruptions already taking place, initiated a scientific study that resulted in their 2008 “Swinomish Climate Change Initiative,” making them the first tribal community to be adaptation-, mitigation-, and resilient-ready (Terri Hansen, “Adapt to Climate Change, Now,” Indian Country Today, March 30, 2012, http://indiancountrytodaymedianetwork.com/2012/03/30/adapt-to-climate-change-now-105694).

The United Nations Environmental Program (UNEP) released a 500 page report, June 6, 2012, on the state of the world’s environment prior to the UN Conference on Sustainable Development, Rio+20 (http://www.unep.org/newscentre/Default.aspx?DocumentID=2688&ArticleID=9158&l=en), saying the World Remains on Unsustainable Track Despite Hundreds of Internationally Agreed Goals and Objectives: Ambitious Set of Sustainability Targets Can be Met, But Only with Renewed Commitment and Rapid Scaling-Up of Successful Policies. The world continues to speed down an unsustainable path despite over 500 internationally agreed goals and objectives to support the sustainable management of the environment and improve human wellbeing, according to a new and wide-ranging assessment coordinated by the United Nations Environment Programme (UNEP). The fifth edition of the Global Environmental Outlook (GEO-5), launched on the eve of the Rio+20 Summit, assessed 90 of the most-important environmental goals and objectives and found that significant progress had only been made in four.” “These are eliminating the production and use of substances that deplete the ozone layer, removal of lead from fuel, increasing access to improved water supplies and boosting research to reduce pollution of the marine environment - for a full list of goals and status of implementation, visit: www.unep.org/geo/pdfs/geo5/Progress_towards_goals.pdf. Some progress was shown in 40 goals, including the expansion of protected areas such as National Parks and efforts to reduce deforestation. Little or no progress was detected for 24 - including climate change, fish stocks decline, and desertification and drought. Further deterioration was posted for eight goals including the state of the world's coral reefs while no assessment was made of 14 other goals due to a lack of data. The report cautions that if humanity does not urgently change its ways, several critical thresholds may be exceeded, beyond which abrupt and generally irreversible changes to the life-support functions of the planet could occur. ‘If current trends continue, if current patterns of production and consumption of natural resources prevail and cannot be reversed and 'decoupled', then governments will preside over unprecedented levels of damage and degradation,’ said UN Under-Secretary General and UNEP Executive Director Achim Steiner. But it's not all bad news. The report says meeting an ambitious set of sustainability targets by the middle of the century is possible if current policies and strategies are changed and strengthened, and gives many examples of successful policy initiatives, including public investment, green accounting, sustainable trade, the establishment of new markets, technological innovation and capacity building. GEO-5 also points out that where international treaties and agreements have tackled goals with specific, measurable targets-such as the bans on ozone-depleting substances and lead in petrol-they have demonstrated considerable success. For this reason, GEO-5 calls for more specific targets, with quantifiable results, across a broader range of environmental challenges. ‘GEO-5 reminds world leaders and nations meeting at Rio+20 why a decisive and defining transition towards a low-carbon, resource-efficient, job-generating Green Economy is urgently needed,’ said Mr. Steiner. "The scientific evidence, built over decades, is overwhelming and leaves little room for doubt.’ ‘The moment has come to put away the paralysis of indecision, acknowledge the facts and face up to the common humanity that unites all peoples,’ he added. ‘Rio+20 is a moment to turn sustainable development from aspiration and patchy implementation into a genuine path to progress and prosperity for this and the next generations to come.’ The report also calls for a greater focus on policies that target the drivers of environmental change - such as population growth and urbanization, unsustainable consumption patterns, fossil fuel-based energy consumption and transport, and globalization. In particular, globalization has made it possible for trends in drivers to generate intense pressures in concentrated parts of the world very quickly, as in the case of increased demand for biofuels leading to land clearance and conversion. Although reducing the drivers of environmental change directly may appear politically difficult, it is possible to accomplish significant indirect benefits by targeting more expedient objectives, such as international goals on human well-being, the report says. Data Gaps and Measuring Progress: Keeping track of the state of the global environment relies heavily on data and statistics collected by national governments. Data gaps in a number of key issues (chemicals/waste and freshwater pollution being two glaring examples) make it very difficult to measure progress towards goals in these areas. In the area of chemicals and waste, for example, keeping up with the ever-growing number of chemicals used in commerce and the lack of sufficient information on contaminated sites challenges many governments and hampers response efforts. At the same time, it is impossible to assess global trends in freshwater pollution because of inadequate data. GEO-5 notes that linking environmental data with national statistics can place the environment at the heart of national priorities and policy making. State of the Environment: Scientific evidence shows that Earth systems are being pushed towards their biophysical limits, with evidence that these limits are close and have in some cases been exceeded. Atmosphere: Of the nine internationally agreed atmospheric goals reviewed, significant progress has been made in eliminating substances that deplete the ozone layer and the phase-out of lead in gasoline, but there has been little or no progress on serious issues such as indoor air pollution and climate change. Ozone: The world has nearly eliminated the production and use of ozone depleting substances, under the Montreal Protocol. It is estimated that implementation of the Protocol will result, in the United States alone, in 22 million fewer cases of cataracts in people born between 1985 and 2100, and 6.3 million fewer skin cancer deaths by mid-century. While further expansion of the Antarctic 'ozone hole' has been halted, full recovery is not expected until mid-century or later. One group of ozone replacement chemicals – hydroflurocarbons (HFCs) - still needs to be phased out due to many having a high global warming potential. Lead in Gasoline: Nearly all countries have phased out lead in gasoline. Reduced health risks due to the phase-out have estimated economic benefits of US $2.45 trillion a year, or roughly 4% of global GDP. Climate Change: Under current models, greenhouse gas emissions could double over the next 50 years, leading to rise in global temperature of 3°C or more by the end of the century. Four independent analyses show that 2000-2009 was the warmest decade on record and in 2010, the rate of emissions from fossil fuel burning and cement production was the highest ever recorded. The annual economic damage from climate change is estimated at 1-2% of world GDP by 2100, if temperatures increase by 2.5⁰C. Air Pollution: Air pollution is among the main causes of premature deaths and health problems, especially in children. Indoor air pollution from particulate matter is responsible for nearly 2 million premature deaths annually - including 900,000 deaths in children under the age of five. Out-door particulate matter may be responsible for around 3.7 million deaths annually. Ground-level ozone is responsible for 700,000 respiratory deaths, over 75% per cent of which occur in Asia. Global economic losses due to reduced agricultural yields caused by air pollution are estimated at US $14-26 billion annually. Biodiversity: The world failed to reach the Millennium Development Goal (MDG) target of a significant reduction in the rate of biodiversity loss by 2010. Around 20% of vertebrate species are under threat. The extinction risk is increasing faster for corals than for any other group of living organisms, with the condition of coral reefs declining by 38% since 1980. Rapid contraction is projected by 2050. With more than 30% of the Earth's land surface used for agricultural production, some natural habitats have been shrinking by more than 20% since the 1980s. However, there has been some progress in terms of policy responses, such as increasing the coverage of protected areas and sharing access and benefits of genetic resources. Access and Benefit Sharing: The Nagoya Protocol on access and benefit sharing of genetic resources - due to enter into force in 2015 - is unprecedented in its recognition of the rights of indigenous and local communities to regulate access to traditional knowledge in accordance with their customary laws and procedures. For example, in the field of pharmaceuticals, ten countries own 90% of patents related to marine biodiversity. Complete data is not yet available on the number of agreements, the number and distribution of beneficiaries and the nature, extent and sustainability of benefits from genetic resources. Protected Areas: Protected areas cover nearly 13% of the world's land surface, but only 1.6% of the marine area - compared to the 17% and 10% respectively, identified by the Aichi targets set for 2020 and agreed two years ago. Data gaps on location, extent, legal status and effectiveness, as well as security concerns undermine conservation efforts. Priorities for action include allocation of adequate resources, clear management arrangements and indicators to assess the effectiveness of protected areas. Fish Stocks: The last two decades witnessed unprecedented deterioration in fish stocks. Though catches more than quadrupled from the early 1950s to the mid-1990s, they have stabilized or diminished since then - despite increased fishing. In 2000, catches could have been 7%-36% higher were it not for stock depletion. This translated into economic losses to the value of US $6.4 - 36 billion. Commercial fisheries and overfishing are the main threat to stocks. Fish products certified by the Marine Stewardship Council constituted only 7% of global fisheries in 2007. Marine protected areas have proven in many cases to be effective conservation tools, with recent surveys showing higher fish populations inside reserves than in surrounding areas and in the same areas before reserves were established. Water: Of the 30 environmental goals examined in relation to water, only one goal - that of increasing access to clean drinking water - shows significant progress. But less progress has been made in rural areas, especially in Africa and the Pacific. Water Quality and Quantity: Despite some improvements, water quality remains the largest cause of human health problems worldwide. At the same time, climate change and further population growth are likely to result in even greater water shortages in many regions. Water quality in at least parts of most major river systems still fails to meet World Health Organization (WHO) standards. More than 600 million people are expected to lack access to safe drinking water by 2015, while more than 2.5 billion people will lack access to basic sanitation. As water scarcity increases, some regions will be forced to rely more on energy- intensive desalination technologies. By 2030, an estimated US $9-11 billion will be spent annually on additional infrastructure to provide sufficient quantities of water, especially in developing countries. Curbing water pollution could result in health benefits of more than US $100 million in large OECD economies alone. Nitrate concentrations are projected to increase due to water pollution from fertilizers and inadequate sanitation, resulting in serious threats to human health and aquatic life. Although freshwater pollution seems to be on the increase, proper monitoring has declined in many regions. Ground Water Depletion: Further deterioration of groundwater supplies has been recorded since 2000, while global water withdrawals have tripled over the past 50 years. Agriculture accounts for 92% of the global water footprint and many global agricultural centers are particularly dependent on groundwater, including northwest India, northeast Pakistan, northeast China and western United States. Integrated Water Management: Integrated water management and monitoring tools need to be developed and strengthened if the world is to better manage current and future water challenges. At present, about 158 of the 263 international freshwater basins still lack cooperative management frameworks. Other obstacles to better water management include: Insufficient data, the absence of comprehensive monitoring systems and water security indicators to track trends over time. Marine Pollution: Little or no progress has been achieved in preventing, reducing or controlling pollution of the marine environment. The number of coastal dead zones has increased dramatically in recent years. Out of the 169 coastal dead zones worldwide, only 13 are recovering and 415 coastal areas suffer from eutrophication. Around 80% of marine pollution is caused by land-based activities. Of 12 seas surveyed between 2005 and 2007, the South-East Pacific, North Pacific, East Asian Sea and Caribbean contained the most marine litter. Ratification of the MARPOL convention by 150 countries is resulting in reduced pollution from ships despite gaps in implementation. Governance of marine areas beyond boundaries is weak and fragmented. Extreme Events: GEO-5 emphasizes the need to step up efforts to prevent and mitigate the impact of extreme events, including climate change-induced disasters. River channelization, floodplain loss, urbanization and changing land-use are important environmental factors increasing the impacts of floods and drought. The number of flood and drought disasters rose by 230% and 38% respectively between the 1980s and 2000s, while the number of people exposed to floods rose by 114%. The cost of coastal adaptation to climate change is estimated to reach between US $26 billion and US $89 billion by the 2040s, depending on the magnitude of sea-level rise. Land: Some progress has been made to ensure better access to food, although combating desertification and droughts has seen little or no progress. Competing demands for food, feed, fuel, fiber and raw materials are intensifying pressures on land, helping to drive deforestation. There has been some progress on deforestation at the global level: annual forest loss decreased from 16 million hectares in the 1990s to approximately 13 million hectares between 2000 and 2010. Africa and Latin America and the Caribbean together accounted for the loss of over seven million hectares annually between 2005 and 2010. Improved governance and capacity building are crucial to fulfilling the potential for more sustainable land management and systems. Chemicals and Waste: There has been some progress is dealing with heavy metals, persistent organic pollutants and radioactive waste. However, more than 90% of water and fish samples from aquatic environments are contaminated by pesticides. Pollution with persistent organic pollutants (POPs) is also widespread, in particular affecting remote areas such as the Arctic and Antarctic. Emerging issues requiring attention include accelerating the sound management of electronic and electrical waste (e-waste) and the challenges of endocrine-disrupting chemicals, plastics in the environment, open burning, and the manufacture and use of nanomaterials. Regional Outlook:” “Africa, Asia and the Pacific and Latin America and the Caribbean share the common problems of population growth and increasing consumption, worsened by rapid urbanization in Africa and Asia and the Pacific, placing growing stress on dwindling natural resources. Climate change is an overarching problem. However, examples of success - from a renewed understanding of the value of forests to ecosystems in Kenya, to the introduction of payments for ecosystem services in Vietnam to policies that have reduced deforestation rates in the Amazon - show progress is possible. Europe and North America continue to operate at unsustainable levels of consumption, and North America in particular has seen limited growth in the renewable energy industry. Yet policies to cut greenhouse gas emissions in Europe, such as congestion taxes, show change is achievable, as do policies in North America, such as improving the flexibility of grids to allow renewable sources more access and the implementation of carbon taxes in Quebec and British Colombia. West Asia is facing worsening water scarcity, land degradation and sea level rise, but can point to water resources management in Yemen, Saudi Arabia and Bahrain and rangeland rehabilitation in Syria as policies that can be replicated. Recommendations: GEO-5 outlines ways in which the race for development needs not be at the expense of the environment or the populations which rely upon it. Indeed, many of the projects that the publication analyses prove that development can be boosted through better understanding the value of natural resources. Above all, a redefinition of wealth that goes beyond Gross Domestic Product to a more sustainable metric could boost the quality of life and well-being of all communities, especially those in developing nations. The report makes the following specific recommendations: More reliable data are needed to make informed decisions about environmental resources and to measure progress towards meeting internationally agreed goals. There is a need for clear long-term environment and development targets and for stronger accountability in international agreements. Capacity development to support environmental information, especially in developing countries, needs to be stepped up significantly. Changes need to be both short- and long-term, and to combine technology, investment and governance measures along with lifestyle modifications grounded in a mindset shift towards sustainability- and equity-based values. Transformation requires a gradual but steadily accelerating transition process. Some successful policy innovation is already happening but need to be mainstreamed. International cooperation is essential, since environmental problems do not follow national boundaries. Global responses can play a key role in setting goals, generating financial resources and facilitating the sharing of best practices. Even though national and regional responses have shown success, a polycentric governance approach is needed to attain effective, efficient and equitable outcomes. Improving human well-being is dependent on the capacity of individuals, institutions, countries and the global community to respond to environmental change. Rio+20 provides an opportunity to assess achievements and shortcomings, and stimulate transformative global responses. The full report is downloadable at: http://www.unep.org/geo/pdfs/geo5/GEO5_report_full_en.pdf. Regional summaries for: Africa, Asia Pacific, Europe, Latin America and the Caribbean, North America and West Asia, as well as the GEO-5 Meeting Progress Report and related press releases, documents and a GEO-5 video at: http://www.unep.org/newscentre/Default.aspx?DocumentID=2688&ArticleID=9158&l=en. The companion report, Measuring Progress: Environmental Goals and Gaps - Reviews and illustrates the world's progress towards meeting international environmental goals for a set of critical issues and highlights gaps in our ability to measure progress, including the absence of clear numerical targets and important data gaps on many issues: http://www.unep.org/geo/pdfs/geo5/Measuring_progress.pdf. Keeping Track of our Changing Environment: From Rio to Rio+20 - is a compilation of facts and figures that track the environmental changes that have swept the planet over the last twenty years: http://www.unep.org/GEO/pdfs/Keeping_Track.pdf. For more information contact: In Brazil: Nick Nuttall, Spokesperson and Acting Director, UNEP Division of Communication and Public Information, Tel. +41 795 965 737 or +254 733 632 755 or e-mail: nick.nuttall@unep.org, Or, Amanda Talamonte, UNEP Brazil Office, Phone: +55 61 3038 9237, Email: comunicacao@pnuma.org; At UNEP HQ, Nairobi: Shereen Zorba, Head, UNEP News Desk, and Tel. 254 788 526 000, or e-mail: shereen.zorba@unep.org.

Rio+20, The United Nations Conference on Sustainable Development, took place in Rio de Janiero, Brazil, June 20-22 2012, with world leaders, along with thousands of participants from governments, the private sector, NGOs and other groups – nearly 50,000 people in all, coming together to shape how to reduce global poverty, advance social equity and ensure environmental protection on an ever more crowded planet. The Conference focused on two themes: (a) a green economy in the context of sustainable development poverty eradication; and (b) the institutional framework for sustainable development. The preparations for Rio+20 highlighted seven areas in need of priority attention; these include decent jobs, energy, sustainable cities, food security and sustainable agriculture, water, oceans and disaster readiness. However no significant progress on any of the main issues was accomplished at the conference. The antipoverty organization CARE called the meeting “nothing more than a political charade,” while Greenpeace said the gathering was “a failure of epic proportions.” The Pew Environment Group was only slightly more charitable, saying, “It would be a mistake to call Rio a failure, but for a once-in-a-decade meeting with so much at stake, it was a far cry from a success.” The summit meeting’s 283-paragraph agreement, “The Future We Want,” lacks enforceable commitments on climate change and other global challenges, while the outcome reflects big power shifts around the world. These include a new assertiveness by developing nations in international forums and the growing capacity of grass-roots organizations and corporations to mold effective environmental action without the blessing of governments. Outside the meeting, hundreds of side agreements that do not require ratification or direct financing by governments were negotiated that offer the promise of incremental, yet real progress. For example, Microsoft announced it would establish an internal carbon fee on its operations in more than 100 countries, part of a plan to go carbon-neutral by 2030. The Italian oil giant Eni said it would reduce its flaring of natural gas. Femsa, a Latin American soft-drink bottler, said it would obtain 85% of its energy needs in Mexico from renewable sources. The Indian Ocean island nation of the Maldives, already experiencing dangerous sea-level rise, announced what it said would become the world’s largest marine reserve, encompassing all 1,192 of its islands by 2017. A group of development banks announced a $175 billion initiative to promote public transportation and bicycle lanes over road and highway construction in the world’s largest cities. However, many corporate statements of “advancing sustainable development” were mere P.R. For details on Rio+ 20, visit: http://www.uncsd2012.org/rio20/index.html (Simon Romero and John M. Broder, “Progress on the Sidelines as Rio Conference Ends,” The New York Times, June 23, 2012, http://www.nytimes.com/2012/06/24/world/americas/rio20-conference-ends-with-some-progress-on-the-sidelines.html?_r=1&ref=world).

New research published in an article, with Paul J. Durack, a researcher at the Lawrence Livermore National Laboratory, the lead author, in Science, April 27, 2012, in addition to confirming previous research, suggests that global warming is causing the cycle of evaporation and rainfall over the oceans to intensify more than scientists had expected, that may indicate a higher potential for extreme weather in coming decades, while dry areas become even dryer, and wet areas even wetter, than previously predicted. The researchers measured changes in salinity on the ocean’s surface, finding that water cycle had accelerated by about 4% percent over the last half century, twice the figure generated from computerized analyses of the climate. If the estimate holds up in future studies, the implication is that the water cycle could accelerate by as much as 20% later in this century as the planet warms, potentially leading to more droughts and floods. A large acceleration of the water cycle could feed greater weather extremes. Perhaps the greatest risk from global warming, could be that important agricultural areas could dry out, hurting the food supply, as other regions get more torrential rains and floods (Justin Gillis, “Study Indicates a Greater Threat of Extreme Weather,” The New York Times, April 26, 2012, http://www.nytimes.com/2012/04/27/world/study-hints-at-greater-threat-of-extreme-weather.html?_r=1&ref=todayspaper).

The June 16, 2012 issue of Science, “By the Numbers,” reported that the International Energy Agency announced, May 24, 2012, that in 2011 the world produced a record 31.6 billion tons of carbon dioxide, with a 9.3% increase in China more than offsetting decreases of 1.7% in the United States and 1.9% in Europe. Also, the Proceedings of the National Science Foundation reported a study finding that at current ground water depletion rates 35% of land in the U.S. Southwest will not be able to sustain irrigation within 30 years, greatly reducing agricultural production in those areas.

Assessment of Climate Change in the Southwest United States?, “Summary for Decision Makers,” was released in mid-June in Tucson, Arizona, during the Southwest Climate Summit at the Southwest Climate Science Center of the University of Arizona. The full report to be available summer 2012 will be 800 pages. Lead author Jonathan Overpeck, of the Southwest Climate Science Center, stated, “We need to be worried about climate change because it’s clearly already affecting our region in ways that impact many areas—we’re seeing landscapes burning, dying because of heat and dryness. We’re seeing reservoirs that were full just ten years ago now only half full on the Colorado. These are visible harbingers of what might come. What we need to do as a society is talk about it and figure out how to deal with these challenges.” The report focuses on the six states in the Southwestern U.S. (Arizona, California, Colorado, Utah, Nevada and New Mexico), which are “considered to be one of the most ‘climate-challenged’ regions of North America.” Nearly 150 participants, including resource and environmental managers from several tribal entities, spent two days discussing environmental history, current status and future predictions. Funded by the U.S. Geological Survey, tribal representation attended from the Hopi, San Carlos Apache, White Mountain Apache, Gila River Indian Community, Pascua Yaqui, and Tohono O’odham of Arizona, as well as New Mexico’s Pueblo of Nambe and the Shivwits Band of Paiutes in southwest Utah. The changes discussed by Overpeck and others were ominous, and quite evident on Native lands. Lawrence Snow, Land Resources Manager for Utah’s Shivwits Band of Paiutes, noted, “Our 30,000-acre reservation is pretty dry because of drought. Wildfires in the last decade have burned half our acreage and changed the landscape. We’ve got less trees, and bark beetles are trying to kill off the ones we do have. Once the fires happened and took out the ground cover, major storms brought big flooding. Seasons have changed; winter hangs around now until May. It’s weird the way the weather is changing.” Delegate Francie Spencer of Arizona’s San Carlos Apache Tribe, who works in economic development, concurred. “Our existence is still based on practices rooted in the land,” Spencer said. “There’s a water shortage across the reservation and because cattle are still one of our top economic drivers, without water, our stock numbers have been reduced. Unwanted nuisance vegetation along our rivers has been brought here by climate change. And we don’t have a lot of scientists to help us.” The full report finds that Native regions face a higher climate-change burden than other areas. “Native American lands, people and culture are likely to be disproportionately affected by climate change,” the authors state in one section, Unique Challenges Facing Southwestern Tribes—Impacts, Adaptation, and Mitigation. “Effects are likely to be greater than elsewhere because of endangered cultural practices, limited water rights and social, economic, and political marginalization—all of which are relatively common among indigenous people.” Dan Ferguson of the University of Arizona Institute of the Environment edited that portion of the report, stated, “Disproportionate impact on Native peoples is true around the world,” citing “marginal landscape on a lot of reservations in the U.S., particularly the Southwest with some of the driest and resource-poor areas established by policy, not by coincidence” (Lee Allen, “Southwest Tribes Struggle With Climate Change Fallout,” Indian Country Today, June 14, 2012, http://indiancountrytodaymedianetwork.com/2012/06/14/southwest-tribes-struggle-with-climate-change-fallout-118386).

Bärbel Hönisch, a paleoceanographer at Columbia University, led a study funded by the U.S. National Science Foundation showing that the specific effect of increased carbon emissions on the seas has been an increase in acidity of the oceans by 30% over the lest 100 years, a spike that may not have a historical precedent. The study examined carbon dioxide levels and ocean acidification over the last 300 million years, and found just one other time when oceans acidified at the rate we’re seeing now. Hönisch said. “We know that life during past ocean acidification events was not wiped out—new species evolved to replace those that died off. But if industrial carbon emissions continue at the current pace, we may lose organisms we care about—coral reefs, oysters, salmon.” Ocean acidification is such a concern that the National Resources Defense Council has set up a web page and produced a documentary to educate the public on “the hidden side of the world’s carbon crisis.” The page at nrdc.org/oceans/acidification/ explains the situation and the consequences, including this unpleasant scenario: “The polar regions will be the first to experience changes. Projections show that the Southern Ocean around Antarctica will actually become corrosive by 2050” “Study Finds Possibly Unprecedented Rate of Ocean Acidification,” Indian Country Today, March 2, 2012, http://indiancountrytodaymedianetwork.com/2012/03/02/study-finds-possibly-unprecedented-rate-of-ocean-acidification-101148).

Are We in the Midst 
Of a Sixth Mass Extinction?The New York Times, June 1, 2012, http://www.nytimes.com/interactive/2012/06/01/opnion/sunday/are-we-in-the-midst-of-a-sixth-mass-extinction.html, reported that recently, The International Union for Conservation of Nature evaluated 52,205 species for their ability to survive. Of the 99% of known bird species assessed, 1253, or 13% of 9854 were threatened with extinction. 25% of mammal species (85% of the known species), 1138, of 4786 were under threat. 41% of amphibians – 1917 of 4684 species were threatened with extinction. Of the 29% of known reptiles, 772 of 2733 species (28%) were under threat. Of 23% of known fish species, 2028 of 7374 (28%) were threatened. Of the 5% of Mollusks analyzed, 1673 of 3619 species (46%) were at risk. Among the .3% of crustaceans considered, 596 of 1520 species (39%) were endangered. Of the 3% of known insects evaluated, 741 of 2863 species were endangered (26%). Of arachnid species, 19 of 34 (.02% of known species) – 56% - were threatened. Of the 5% of known flowering plants evaluated, 8527 of the 11972 species (71%) were under threat. Of the 3% of nonflowering plants examined, 629 of 1345 (47%) species were threatened. Of the .5% of other known species evaluated, 277 of 766 (36%) were threatened. Commenting on the study, Richard Pearson, “Protecting Many Species to Help Our Own,” The New York Times,: June 1, 2012, /www.nytimes.com/2012/06/03/opinion/sunday/are-we-in-the-midst-of-a-sixth-mass-extinction.html?_r=1, commented., “Nearly 20,000 species of animals and plants around the globe are considered high risks for extinction in the wild.” “By generalizing from the few groups that we know fairly well — amphibians, birds and mammals — a study in the journal Nature last year concluded that if all species listed as threatened on the Red List were lost over the coming century, and that rate of extinction continued, we would be on track to lose three-quarters or more of all species within a few centuries. We know from the fossil record that such rapid loss of so many species has previously occurred only five times in the past 540 million years. The last mass extinction, around 65 million years ago, wiped out the dinosaurs. The Red List provides just a tiny insight into the true number of species in trouble. The vast majority of living things that share our planet remain undiscovered or have been so poorly studied that we have no idea whether their populations are healthy, or approaching their demise. Less than 4% percent of the roughly 1.7 million species known to exist have been evaluated. And for every known species, there are most likely at least two others — possibly many more — that have not yet been discovered, classified and given a formal name by scientists.” “ So we have no idea how many undiscovered species are poised on the precipice or were already lost. It is often forgotten how dependent we are on other species. Ecosystems of multiple species that interact with one another and their physical environments are essential for human societies. These systems provide food, fresh water and the raw materials for construction and fuel; they regulate climate and air quality; buffer against natural hazards like floods and storms; maintain soil fertility; and pollinate crops. The genetic diversity of the planet’s myriad different life-forms provides the raw ingredients for new medicines and new commercial crops and livestock, including those that are better suited to conditions under a changed climate. This is why a proposed effort by the I.U.C.N. to compile a Red List of endangered ecosystems is so important. The list will comprise communities of species that occur at a particular place — say, Long Island’s Pine Barrens or the Cape Flats Sand Fynbos in South Africa. This new Red List for ecosystems will be crucial not only for protecting particular species but also for safeguarding the enormous benefits we receive from whole ecosystems. Another important step was the recent creation of a new Intergovernmental Platform on Biodiversity and Ecosystem Services. The organization, created under the auspices of the United Nations, will provide the scientific background for international policy negotiations affecting biodiversity. Do we need to protect so many species? Or can we rely on ecosystems with a depleted number of parts? Recent results from a study of grassland ecosystems shed important new light on these questions. Seventeen grasslands with different numbers of species were created and then studied over many years. The analysis, published in Nature last fall, showed that more than 80% of the plant species contributed to the effective functioning of the ecosystems, causing, for instance, a greater buildup of nutrients in soils. Another study, published in Science in January, showed that more species allow for better functioning in arid ecosystems, which support nearly 40% of the world’s human population. The bottom line is that many species are needed to maintain healthy ecosystems, and this is especially the case in a rapidly changing world, because species take on new roles as conditions change. Benefits provided by ecosystems are vastly undervalued. Take pollination of crops as an example: according to a major United Nations report on the Economics of Ecosystems and Biodiversity, the total economic value of pollination by insects worldwide was in the ballpark of $200 billion in 2005. More generally, efforts to tally the global monetary worth of the many different benefits provided by ecosystems come up with astronomically high numbers, measured in tens of trillions of dollars. These ecosystem services are commonly considered “public goods” — available to everyone for free. But this is a fundamental failure of economics because neither the fragility nor the finiteness of natural systems is recognized. We need markets that put a realistic value on nature, and we need effective environmental legislation that protects entire ecosystems.”

The use of coal in the United States has reached a moment of significant decline, as new regulations from the EPA on reducing carbon emissions combined with cheap natural gas prices have brought numerous electric power generating companies to begin switching from coal to natural gas, even in the heart of the coal industry at the Big Sandy plant in Kentucky. More than 100 of the 500 or so coal-burning power plants in the United States are expected to be shut down in the next few years, as coal drops from generating nearly half (four years ago) to about a third of the country’s power. On the lobbying front, this development is dividing previously allied coal and power companies, as environmental groups campaigning against the burning of coal have recently been aided by Michael R. Bloomberg, the billionaire mayor of New York City, who views the campaign as part of a public health effort, donating $50 million, and $26 million from the top official of a natural gas company. The environmentalists calculate that that if they can shut down a third of the nation’s coal burning plants by 2020, emissions of greenhouse gases in the United States could be cut at least as much as they would have under a landmark 2009 climate bill that died in Congress. The coal industry is responding by lobbying attempts at influencing legislation, litigation and a multimillion-dollar advertising campaign trumpeting the benefits of ‘clean coal’. In Kentucky and other coal producing areas one impact is the laying off of coal miners (Eric Lipton, “Even in Coal Country, the Fight for an Industry,” The New York Times, May 29, 2012, http://www.nytimes.com/2012/05/30/business/energy-environment/even-in-kentucky-coal-industry-is-under-siege.html?hp).

Numerous experts say that If solar energy is to be able to generate a significant portion of the nation’s electricity, the industry must find a way to store it for use when the sun isn’t shining. To meet that challenge, two California companies are planning to employ solar thermal, which makes electricity by using the sun’s heat to boil water. The water can be used to heat salt that stores the energy until later, when the sun is down and households power up their appliances and air-conditioning at peak demand hours in the summer. SolarReserve is building a plant in the Nevada desert scheduled to start up n 2013, while BrightSource plans three plants in California that would begin operating in 2016 and 2017. Together, the four projects will be capable of powering tens of thousand of households throughout a summer evening. If these plants are successful, it may lead to a vast expansion of solar power use. So far, companies such as Google, Chevron and Good Energies are investing in solar thermal, and the utilities NV Energy and Southern California Edison have signed long-term contracts to buy power from the new power plants preparing to come on line Matthew Wald, “Storehouses for Solar Energy Can Step In When the Sun Goes Down,” The New York Times, January 2, 2012, http://www.nytimes.com/2012/01/03/business/energy-environment/building-storehouses-for-the-suns-energy-for-use-after-dark.html?_r=1&ref=todayspaper).

Air quality and the rate of carbon emissions is improving somewhat in the U.S. as older, low efficiency – high polluting, coal fired power plants are closing as a result of competition form lower cost natural gas and tighter air pollution standards, but there is a temporary local economic cost from job losses in those plants, until new hiring in green electric generation replaces them and crates many additional new jobs. Aging coal plants closing include a Dominion plant in Salem, MA six Midwestern and Eastern coal plants owned by FirstEnergy Corp. (including the State Line Power Station in Hammond, IN), the and, potentially, the Fisk and Crawford plants in Chicago in coming years (Kari Lydersen, “Power Station’s Closing Could Create Problems,” The New York Times, February 11, 2012, http://www.nytimes.com/2012/02/12/us/closing-of-state-line-power-station-on-illinois-indiana-border-is-expected-to-leave-problems-behind.html?ref=todayspaper).

A shift is taking place in Brazil away from conservation of the Amazon and protection of Indian Nations. During the six years prior to the election of current President Dilma Rousseff, the government moved to conserve the Amazon rain forest, reducing deforestation by 80% by regulation supported by police raids of illegal cutting, and setting aside about 150 million acres of forest for conservation. Since the election of the new President in late 2010, the government has been granting more flexibility on environmental licensing for large infrastructure projects, and a provisional measure allows the President too remove forest from protection. Also, there is a proposal to give the Congress a veto over the recognition of Indigenous territories (Alexei Barrionuevo, “In Brazil, Fears of a Slide Back for Amazon Protection,” The New York Times, January 25, 2012). Brazil’s Congress, following lobbying by major agricultural groups, passed a bill, in late May 2012, that would have opened up large protected areas of the Amazon rain forest to deforestation for agricultural development. However, on May 24 President Dilma Rousseff vetoed 12 articles of the bill’s new Forest Code, a bill drafted to open big areas of protected forests to large-scale agriculture, including a provision that effectively granted amnesty to landowners who illegally deforested some areas. The official text of Ms. Rousseff’s alterations, which include dozens of suggested changes to the bill in addition to the vetoed portions, was expected to be published on May 28. The bill had provoked outrage among environmentalists, some business leaders and cultural icons. Responding to these concerns, Environment Minister Izabella Teixeira said the president’s line-item vetoes ruled out amnesty. Still, Ms. Rousseff’s action fell short of the expectations of environmental groups, which had wanted her to veto the entire bill (Simon Romero, “Brazil: President Vetoes Major Parts of Bill to Open Up Forests,” May 25, 2012, http://www.nytimes.com/2012/05/26/world/americas/brazil-president-vetoes-parts-of-bill-to-open-forests.html?ref=world).

Huge tracts of the Paraguay's Chaco forest are being razed by cattle ranchers from Brazil, Paraguay’s giant neighbor, and German-speaking Mennonites, descendants of colonists, with at least 1.2 million acres of the Chaco have been deforested in the last two years, according to satellite analyses by Guyra, an environmental group in Asunción, and 10% of the forest being cut down in the last five years. American anthropologist Lucas Bessire states that so much land is being bulldozed and so many trees are being burned that the sky sometimes turns “twilight gray” during daytime, and, “One wakes with the taste of ashes and a thin film of white on the tongue.” Not only is this a global warming increasing and local environmental disaster, it also is destructive of Indigenous people living in the area (Simon Romero, “Vast Tracts in Paraguay Forest Being Replaced by Ranches,” The New York Times, March 24, 2012, http://www.nytimes.com/2012/03/25/world/americas/paraguays-chaco-forest-being-cleared-by-ranchers.html?src=me&ref=world).

The United States, as of mid-February was experiencing an unusually warm winter, 3.8 degrees F. above average in December and January, with little snow in the North East, and much less ice on northern lakes than normal (Monica Davey, “The Warmth of Winter Is Casting a Chill on Ice Fishing,” The New York Times, February 18, 2012, http://www.nytimes.com/2012/02/19/us/warm-winter-is-casting-a-chill-on-ice-fishing.html?ref=todayspaper), while the winter was extremely dry, putting 61% of the lower 48 states in drought conditions, making the U.S. the driest it has been in five years, following the terrible drought in the Southwest and south of 2011, that brought record wildfires and $10 billion in agricultural losses (Doyle Rice, “Drought condition spreads over USA,” USA Today, April 13-15, 2012). Meanwhile, extreme weather consistent with global warming caused climate change has continued. Tornado season, with an increased number of stronger – more destructive tornadoes – again came two months early to the Midwest, at the end of February, with deadly twisters killing at least 12 people. Just a few days later another huge storm again unleashed a string of powerful tornados across the Midwest and South, killing at least 27 people (six in Harrisburg, IL), as the circular storms hit in areas from Kansas to Kentucky (Monica Davey and A.G. Sulzberger, “In Illinois, a Curfew Lifts and a Tornado’s Devastation Sinks In,” The New York Times, March 1, 2012, http://www.nytimes.com/2012/03/02/us/in-illinois-tornados-devastation-sinks-in.html?ref=us; Kim Severson, “Deadly Tornadoes Pound the South and the Midwest,” The New York Times, March 2, 2012, http://www.nytimes.com/2012/03/03/us/deadly-tornadoes-pound-the-south-and-the-midwest.html?ref=todayspaper). The increased number of Tornadoes across the U.S. Midwest and South, some of which stay on the ground for several miles – which used to be unusual – continued twice, in early and Mid April, 2012, but fortunately with few deaths (Manny Fernandez and Matt Fleugenheimer, “100 Tornadoes in 24 Hours, but Plenty of Notice,” /, http://www.nytimes.com/2012/04/16/us/violent-storms-cut-across-the-central-plains.html). The increased number of Tornadoes across the U.S. Midwest and South, some of which stay on the ground for several miles – which used to be unusual – continued twice, in early and Mid April, 2012, but fortunately with few deaths (Manny Fernandez and Matt Fleugenheimer, “100 Tornadoes in 24 Hours, but Plenty of Notice,” The New York Times, http://www.nytimes.com/2012/04/16/us/violent-storms-cut-across-the-central-plains.html). The unusually warm weather in the U.S. has brought about larger and often a month earlier return of insects this spring, causing health and comfort problems for people and animals (e.g. an increase in the dear tick population), as well as difficulties for agriculture (Karen Ann Cullotta, “The Downside of a Balmy Winter? Long Walks with the Dog Aren’t Carefree,” The New York Times, March 19, 2012). The earlier return of insects has not been positive for all species, however. Bees, for example, coming out early have been finding no flowers yet open, causing wide spread bee starvation. The drier weather in the Southwest, including Texas, reduced agricultural production, including hay for cattle, which is in short supply bringing sharply higher prices. Ranchers in Texas complained of not being able to acquire hay, either using substitutes or selling off cattle. In December, the Navajo Agricultural Products Industry (in New Mexico and Arizona) was concerned that it would not have enough alfalfa for the winter (“Navajo agriculture group warns of hay shortage due to drought,” News From Indian Country, December 2011). An Ontario apple grower reported to this writer that the warm winter bringing early budding of apple trees, followed by an extremely cold snap in March, killed off 90% of this years apple crop from at least Pennsylvania, and possibly Michigan to the Canadian Maritime provinces and New England. The continued drying and warming of the Southwest had already brought a serious new fire season by late May, 2012. In southwestern New Mexico, more than 1,200 firefighters were continuing to battle the Whitewater-Baldy Complex blaze, that had become the largest fire, in the state’s history – surpassing the record Las Conchas fire burned more than 150,000 acres near Los Alamos National Laboratory in 2011 - in the Gila National Forest that was sparked by a pair of lightning strikes and has since burned 170,272 acres, and was still totally uncontained. At that point, the blaze had burned 12 homes and 8 other structures, leading to evacuations in the small communities of Mogollon and Willow Creek. Smoke from the fire could be seen throughout New Mexico — as far north as Santa Fe and as far south as Las Cruces — prompting the state’s Environment and Health Departments to issue an air quality advisory for the entire state on May 24. Two, much smaller, fires whipped by unusually dry conditions and high winds around the Rockies, were being fought in Colorado. Meanwhile, in Michigan’s Upper Peninsula, the third-largest fire in that state’s history had burned more than 21,000 acres since May 23 after a lightning strike, damaging 41 homes in a rural region north of Newberry, an area near Lake Superior. Recent rains, absent in New Mexico, were aiding firefighting efforts, that on May 30 had achieved 55% containment. Tahquamenon Falls State Park, which had been closed because of the fire, reopened (Dan Frosch, “Lightning Strikes Feed Volatile Fire Season,” The New York Times, May 30, 2012, http://www.nytimes.com/2012/05/31/us/wildfires-plague-new-mexico-michigan-and-colorado.html?_r=1&ref=todayspaper). However, as the fire season continued into the dry days of June, the situation worsened, as the fast-growing High Park fire, sparked by a lightning strike two days earlier, raged through dry forests and hillside subdivisions near Fort Collins in northern Colorado, charring homes and forcing hundreds of families to evacuate in the worst fire in the area in twenty years, consuming 60 square miles in 72 hours. Meanwhile, In south central New Mexico, hundreds of people were forced to flee a new uncontrolled fire near Ruidoso, that by June 11 had engulfed 54 square miles as it obliterated home after home. In Gila National Forest in southwestern New Mexico, fire crews were still battling the Whitewater-Baldy Complex blaze the, already the largest blaze in the state’s history in May, but officials reported that after burning for nearly a month across 434 square miles, the fire was 37 percent contained (Jack Healy, “Wildfires Engulf Forests and Homes in the West,” The New York Times, June 11, 2012, http://www.nytimes.com/2012/06/12/us/wildfires-rage-in-colorado-and-new-mexico.html). Meanwhile, several smaller fires were already burning in Arizona, in mid-May, including the Bull Flat fire on the Fort Apache Reservation, that has burned nearly three square miles and was about half contained, on May 15, and the Ellwood Fire on the San Carlos Apache Reservation, that had burned nearly two square miles at that time (“Wildfires Burning on San Carlos Apache and Fort Apache Reservations,” Indian Country Today, May 16, 2012, http://indiancountrytodaymedianetwork.com/2012/05/16/wildfires-burning-on-san-carlos-apache-and-fort-apache-reservations-113391). Numerous other, mostly relatively small, fires have been burning across the west. But some larger ones also were springing up and exploding, in late June, particularly in Colorado, amidst an extreme heat wave that has threatened to further fan the flames, including the Waldo Canyon Fire, in Manitou Springs near Colorado Springs, had burned about 3,500 acres by June 25, forcing the evacuation 11,000 people, until it was sufficiently contained – only to be exploded by wind, June 27, into Colorado Springs suburbs and the Air Force Academy – causing 32,000 people to evacuate and burning about 350 homes, while a huge fire roared near Mancos, CO (among others in the state), and the by then the more contained Whitewater-Baldy Complex fire in New Mexico had consumed nearly 300,000 acres, And in Utah, firefighters were nearing full containment of the Dump Fire, allowing thousands of people to return home (Dan Frosch, “Heat-Driven Wildfires Continue to Consume the West,” The New York Times, June 26, 2012, http://www.nytimes.com/2012/06/26/us/heat-driven-wildfires-continue-to-consume-the-west.html?ref=todayspaper; Dan Frosch, “Thousands Flee Colorado Springs Area as Winds Fuel Wildfire,” The New York Times, June 27, 2012, http://www.nytimes.com/2012/06/28/us/furious-wildfire-in-colorado-leaves-destruction-in-its-wake.html?_r=1&ref=todayspaper).

The extreme drought in the Southwest caused both San Juan County Utah, and the Navajo Nation’s Mexican Water Chapter in Northern Arizona, to declare drought emergencies in late June, in hopes of receiving funding assistance. At Mexican Water it is reported that blowing sands have come close to making some roads impassible, while sheep and cattle are finding it difficult to find forage (Bill Donovan, “Mexican Water Chapter declares emergency, The Navajo Times, June 21, 2012).

A study published in the journal Ecosphere, of the Ecological Society of America, projected that by 2100 wildfires will increase in frequency throughout most of North America and Europe (“Mother Earth Burning: Climate Change Will Increase Wildfire Frequency, Researchers Say,” Indian Country Today, June 13, 2012, http://indiancountrytodaymedianetwork.com/2012/06/13/mother-earth-burning-climate-change-will-increase-wildfire-frequency-researchers-say-118250).

Northern Canada suffered from the unusually warm weather in early winter as Manitoba aboriginals have been cut off from needed supplies to 30,000 people in 20 remote communities because it has been impossible to construct ice roads in the warmer temperatures. At Berens River First Nation the high temperatures have created a health emergency, in early January 5, when the community ran out of gasoline and could not fuel its ambulances, while health workers were unable to reach home-care patients and said that 30 residents may have to evacuate. The unseasonably warm weather also meant weeks of delay for $5.5 million in supplies that were scheduled to be trucked in to help residents of the four First Nations communities of Island Lake obtain long-awaited running water, where most Island Lake homes “lack indoor plumbing, and many residents have less access to clean water each day than is recommended by the United Nations for refugee camps.” The higher-than-usual temperatures were also keeping people off lake and river ice, particularly for fishing, as the Royal Canadian Mounted Police (RCMP) have warned people away from such bodies of water. Meanwhile, at Attawapiskat, in Ontario, First Nations were suffering from an unusual cold weather combined with shoddy housing (“Manitoba Aboriginals Roadless, on Thin Ice as Temps Soar,” Indian Country Today, January 6, 2012, http://indiancountrytodaymedianetwork.com/2012/01/06/manitoba-aboriginals-roadless-on-thin-ice-as-temps-soar-70864).

Mexico has been suffering the worst drought ever recorded, which combined with unusually cold weather has left two million people without access to water and devastated agriculture in almost half of the country. While the state of Zacatecas received its first rain in 17 months, January 29, it is only slightly better off than the other 18 of Mexico’s 31 states facing serious problems. Within the five worst-affected states, the more seriously affected communities are tribal areas of the Tarahumara indigenous community in the Sierra Madre, in the north. Known for endurance running and self-reliance, the Tarahumara are among Mexico’s poorest citizens. When false reports of a mass suicide brought on by hunger surfaced recently, journalists and aid organizations poured in to shed light on the situation. The government, in late January, authorized $2.63 billion in aid, including potable water, food and temporary jobs for the most affected areas, rural communities. But officials warned that no serious relief was expected for at least another five months, when the rainy season typically begins in earnest (Karla Zabludvsky, “Food Crisis as Drought and Cold Hit Mexico,” The New York Times, January 30, 2012, http://www.nytimes.com/2012/01/31/world/americas/drought-and-cold-snap-cause-food-crisis-in-northern-mexico.html?_r=1&ref=todayspaper).

Kent Paterson, “Mexico Climate Politics Heats Up,” AmericasProgram, January 20, 2012, http://www.cipamericas.org/archives/6325, comments, “History has not been kind to the indigenous Raramuri people of the northern Mexican state of Chihuahua. Pushed to remote mountains of a harsh land by Spanish and mestizo colonists, the Raramuri managed to hang on to their culture while eking out an existence based on rain-fed farming and small herd grazing. In recent decades their lands have been invaded again, this time by cattlemen, loggers, miners, dope growers, tourism developers, and soldiers. According to Mexican analyst and farm activist Victor Quintana, the United Nations named six municipalities with a large Raramuri presence as among the 10 least-developed indigenous municipalities in Mexico in 2005. Ironically, Quintana wrote in a recent column, the Raramuri suffer water shortages and malnutrition while from their Sierra Tarahumara springs the headwaters of rivers that nourish commercial, export-oriented agriculture in the “fertile valleys” below.” “In another metaphoric twist to the Raramuri crisis, Chihuahua state officials are considering slaughtering thousands of wild pigs that regularly cross the border from Texas and devour what little cover is left on a rain-starved land. The meat, which one state official insisted was “tasty” and low in fat content, would then be shipped to hungry indigenous communities in the mountains. The Raramuri are fast becoming a political football in a sharpening national struggle ostensibly over climate change and agricultural policy, but also intimately tied to free trade, food sovereignty and corporate consolidation of the food supply. Recently, Mexican media have been filled with stories about drought and hunger devastating the homeland of a people known for their long-distance running skills and passionate Easter season festivities.” “ In fact, drought has been a recurrent problem in the Sierra Tarahumara since at least the 1990s, and thousands of Raramuris have since fled their homes for Ciudad Juarez, Chihuahua City and other urban refuges. The degree to which Raramuris have become pawns in an ongoing chess game of socio-politics was amply exhibited earlier this month when hundreds of indigenous residents of the Sierra Tarahumara were transported en masse to an event attended by Chihuahua Governor Cesar Duarte and Enrique Pena Nieto, the 2012 presidential candidate of the Institutional Revolutionary Party (PRI). Although the event organizers said their intention was to familiarize national leaders with the Raramuri’s plight, indigenous people who attended the meeting were quoted in Mexico’s Proceso newsweekly saying they had no idea why they were brought to it.” “Despite its spectacular and even surreal elements, the Raramuri episode was but the latest chapter in a deep-seated rural crisis worsened by climate change and neo-liberal economic policies. A triple plague of floods, drought and freezes slammed nearly 70 percent of the country’s 26 million arable hectares in 2011 according to government officials, academic researchers, and farm organizations cited in the media. While drought alone has been particularly severe in the northern states, the lack of rainfall is also creating emergency situations for producers in places like Jalisco and Aguascalientes. The federal Secretariat of Agriculture, Livestock and Fisheries (Sagarpa) acknowledges that 19 Mexican states are affected by the worst drought in 70 years. Nationwide, upwards of a half-million cattle have died and some water wells have dried up, according to a slew of reports. In 2011 an estimated 20 percent of Mexico’s vital corn crop withered up in the face of adverse weather, according to the Mexican newspaper La Jornada. Production of another food staple, beans, is also down. Climate disasters have contributed to pushing up food prices across the country.“ “Both farmers and consumers are already feeling a stinging pinch. A wave of price increases for eggs, beans and tomatoes, as well as the gasoline and the highway tolls required to get products to market, slapped Mexicans at the end of 2011 and the beginning of 2012. Perhaps most wrenching was yet another jump in the cost of staple corn tortillas, which rose in price from about 6 pesos per kilo at the end of 2006 to more than 12 pesos in many cities surveyed by the Economy Ministry at the end of last year. During the same time period, the average minimum wage increased from 48.67 pesos to 59.82 pesos; the ability of a daily minimum wage to purchase tortillas plummeted from 8.1 kilos in 2006 to 5.3 in 2011. To compensate for a corn production downturn, Mexico is importing the product from abroad, especially from the United States. Corn imports surged 69.6 percent from January to September 2011, costing Mexico about $2.1 billion, an amount sharply up from the approximately $1.2 billion spent on imports during the same period in 2010. Mexico’s experience is similar to that of many other developing nations, according to a new report by the Institute for Agriculture and Trade Policy and the Global Development and Environment Institute. The report blamed commodity speculation, biofuel production and “land grabs” for big hikes in global food prices from 2007 to 2008 and again from 2010 to 2011. While governments have taken some positive steps to address the food crisis, no real structural reforms to avert “another devastating spike in global food prices” have been undertaken, the report’s authors concluded. Not everyone is losing out from a spiraling price cycle. The increase is connected to environmental issues, but it’s also heavily influenced by the gambles of finance capital, the hegemony of free trade and the corporate domination of the food chain. Foreign food exporters, large domestic food processors and multinational and national supermarket chains all stand to gain from a loss in food self-sufficiency. Big box stores like Walmart sell tortillas at a lower price than do the mom-and-pop stores traditionally frequented by Mexicans. For instance, the US-based giant sells tortillas in a Puerto Vallarta store for 9.90 pesos per kilo, compared with the 14-15 pesos a kilo charged by the smaller tortilla outlets.” “Mexico’s food crisis has yet to acquire the status of a primary national issue, but different forces are beginning to push the issue into the center stage of national political life. In what is likely to be the largest protest of its kind since 2008, Mexico’s main farm organizations plan to converge on the capital city during the last days of January to demand more government assistance. ‘This is the first social movement that the country sees rising up because of climate change,’ wrote analyst Victor Quintana. ‘More and more will rise up even stronger if the government continues on without understanding what is happening.’ Sparking the protests was President Calderon’s veto last month of an extra assistance package for Mexican farmers valued at about $900 million and approved by the opposition-controlled lower house of the Mexican Congress. In an election year such as 2012, the issue of who has control over government spending is a touchy matter as different political forces always suspect rivals of using their offices and budgets to influence voters. The domestic battle contrasts with the Calderon administration’s support for extra funding from developed nations for the Green Climate Fund. And as the new president of the G-20 group of nations, Mexico is likely to lobby for more climate aid from the wealthier members. The Calderon administration considers Mexico to be in the vanguard of ‘green growth.’”

Victor M. Quintana, “How to Pay a Debt Past Due,” AmericasProgram, March 2, 2012, http://www.cipamericas.org/archives/6450, reports, “The famine in the Sierra Tarahumara reveals a problem that goes beyond the current crisis— it demonstrates the structural exploitation of the Rarámuri, O’odam, Warixó and Odame peoples. Faced with an outpouring of solidarity and concern in the local, national and international public, the Governor of Chihuahua, Cesar Duarte, has said recently that both the government and society owe a “historical debt” to the Indian people of Mexico’s largest state.” “For half a millennium, indigenous people have been ransacked and the looting only stops when there is nothing left to take and no one left to drive out. What should be debated today is how those historical debts will be paid. The debts to indigenous peoples cannot be paid with food and blankets, and much less with speeches. They must be paid with effective and efficient public policy; with decisions, budget allocations, legal reforms that are enforced and affirmative actions.” “The government of Bolivia, headed by President Evo Morales, serves as an example of how to address historical debts with native peoples. Bolivian Vice President Alvaro García Linera lucidly lays out what must be done in an interview with Luis Hernández Navarro of La Jornada. García Linera starts off with a fact: colonization did not end with political independence from Spain. Consequently, the governments that want to do justice to the indigenous peoples must involve themselves in a process of decolonization. The vice president maintains that “it is a process of disengaging from the institutional, social, cultural, and symbolic structures that subordinate the everyday lives of the people to the interests of the hierarchies and the narratives imposed by external powers. Colonialism is a relationship of territorial domination that is imposed by force, but eventually becomes normalized in the ‘regular behavior’ of the dominated peoples.” The basic steps in the process of decolonialization begin with recognizing that indigenous peoples have become political actors, with access to real, institutional power. They make political decisions and exercise a voice. The indigenous movement has pushed the State to recuperate control of natural resources that had formerly been in foreign hands, such as oil, gas, water, and parts of the country’s electrical gridding. Other resources, like land and forests, have been passed back directly to indigenous and peasant communities. ‘Thanks to these actions, to the leadership of the indigenous community, who are the majority of the population of Bolivia, indigenous persons who were once predestined to be peasants, laborers, bellboys, or waiters, are now government ministers, legislators, CEOs, judges, governors, and even president,’” “It might be unrealistic to attempt that level of change in Chihuahua, but if we are really serious about recognizing the long-standing debts we owe to the Indian peoples in our state and making good on our rhetoric, we must make drastic demands. The first would be to dismantle the colonial attitude that continues to subjugate our indigenous communities. Their lands should be returned to them, and they should be the ones who decide if and how they are going to exploit the forest—their forest. They should be the ones to decide if and how they want to plan and develop tourism projects. The monumentally erroneous law that gives priority to mining activities over the rights of the communities to do what they want with their own land should be eliminated. When that land and what’s beneath the surface is given to foreign mining companies, the law is even more outrageous. Paying the past due debt to the Rarámuri and other indigenous peoples of Chihuahua goes far beyond “creating” sources of work for them or “bringing” them roads and hospitals. It demands the political will to recognize their full citizenship, with full equality and all the rights and privileges the come along with it. It demands ceasing to treat the Sierra like a protectorate in the hands of mestizo foster parents, even if well-intentioned. It means removing barriers so that indigenous communities can become conscious political actors, responsible for their own economic, ecological, political, cultural, and social affairs.

The number and extent of extreme weather conditions consistent with global warming has been continuing to increase as the Earth warms further and the level of greenhouse gasses in the atmosphere continues to rise. For example, an unusually brutal cold wave in Eastern Europe, in the last week of January 2012, killed at least 58 people, as has temperatures fell to 17 degrees below zero in some areas. Ukraine has been particularly hard-hit, with as many as 30 people having died there, and more than 540 have been hospitalized with hypothermia and frostbite (“At Least 58 Killed in Eastern European Cold Wave,” The New York Times, January 31, 2012, http://www.nytimes.com/2012/02/01/world/europe/at-least-58-killed-in-eastern-european-cold-wave.html?_r=1&ref=todayspaper). By January 5, the unusually deep cold snap was producing problems all over Europe as Elisabetta Povoledo, “Hundreds of Deaths as Europe Struggles With Snow Amid an Intense Cold Snap,” The New York Times, February 5, 2012, http://www.nytimes.com/2012/02/06/world/europe/europe-struggles-to-deal-with-cold-and-snow.html?_r=1&ref=todayspaper, reported, “Extreme cold and heavy snow buried parts of Europe over the past few days, claiming the lives of hundreds of people, straining utilities in France, snarling transportation in Britain and leaving people in cities like Rome stymied. Eastern Europe was particularly hard hit. Ukraine’s Ministry of Emergencies reported that at least 131 people had died during a cold snap that has lasted more than a week in which night temperatures have dropped well below freezing. Hundreds have been treated for hypothermia or frostbite.” The cold and snow were particularly brutal to homeless people in Eastern Europe. In Poland, Prime Minister Donald Tusk asked local authorities to waive the ban on admitting inebriated people to homeless shelters after eight more people died, raising the death toll from the storm to 53 in the country. Meanwhile, the Bosnian government employed helicopters to carry food and supplies to remote villages buried under six feet of snow, as more than 10,000 people were isolated, and rescuers saved dozens of people trapped in their cars for 20 hours from avalanches in eastern Bosnia. The Bosnian capital, Sarajevo, reported more than three feet of snow. In Serbia, the government worked to help 70,000 residents cut off by the snow, while the extreme cold caused the death of at least three people in Hungary, and at least five people froze to death in Lithuania. At least 11 people died in Italy – where there were lengthy power failures, and much of Rome was shut down for several days - and 5 died from the weather in France. “In Switzerland, falling temperatures turned snow-covered cars into Seussian ice sculptures as some areas were engulfed in record-breaking frigid weather,” with temperatures falling to as low as 22 degrees below zero in southern Switzerland. “By many standards, London’s snowfall was relatively light, three to six inches. Yet problems arose nonetheless. Still, officials seemed determined to avoid a repeat of the debacle of December 2010 when cold and a few inches of snow closed highways, brought 4,000 flights to a halt and snarled global air traffic. About half of Sunday’s 1,300 flights at Heathrow Airport near London were canceled,” the result of a backlog created by the previous day’s cancellations based on forecasts before the snowfall, , in an effort to avoid repeating past mistakes. Gatwick Airport reported only a few cancellations, because of its recent investment of $12.6 million to buy plows, snow blowers, de-icing agents and other equipment in the wake of the 2010 snowfall.

Extreme temperatures combined with heavier than normal snowfall brought deadly avalanches in Afghanistan, in March, 2012, followed by serious flooding (Grajam Bowley, Avalanche Exposes Afghans’ Vulnerability to Vagaries of Climate and of Aid,” The New York Times, March 7, 2012, http://www.nytimes.com/2012/03/08/world/asia/afghanistan-avalanche-death-toll-rises.html?ref=todayspaper).

The Kaw Nation enterprise Southwind Energy has collaborated with Pioneer Technology Center and Ponca City Energy to create and install a wind and solar lighting unit requiring virtually no maintenance, using low energy, and long lasting LED lights in Ponca City, Oklahoma, and provided Ponca City Energy career tech students and instructors with hands-on experience assembling and wiring the turbine and solar panels (“Southwind Energy Helps Install Wind and Solar Lighting Unit in Ponca City,” Indian Country Today, June 1, 2012, http://indiancountrytodaymedianetwork.com/2012/06/01/southwind-energy-helps-install-wind-and-solar-lighting-unit-in-ponca-city-116052).

The International Energy Agency issued a report, May 29, 2012, “Golden Rules for a Golden Age of Gas,” (available along with the presentation made at its release and related documents at: http://www.worldenergyoutlook.org/goldenrules/#d.en.27023) setting out what is necessary gas production facilitated by hydraulic fracturing, or fracking, is carried out with environmental integrity. The report builds an economic case for adopting practices and technologies that limit chances of water or air pollution and produce adequate transparency to gain public confidence, finding that to drill responsibly would add just 7% to drilling costs. On the other hand, unchanged practices could, by generating public distrust and resistance, limit the potential harvest. As the agency’s chief economist, Fatih Birol (also the report’s lead author) put it in a statement, “If this new industry is to prosper, it needs to earn and maintain its social license to operate. This comes with a financial cost, but in our estimation the additional costs are likely to be limited.” Michael Levi of the Council on Foreign Relations notes the report is a rough sketch, and the costs of best practices and regulations could be higher or lower. But he largely endorsed its findings (Andrew Rivkin, “Energy Agency Finds Safe Gas Drilling is Cheap,” The New York Times, May 29, 2012, http://dotearth.blogs.nytimes.com/2012/05/29/energy-agency-finds-safe-gas-fracking-is-cheap/?src=recg).

The international Keystone Pipeline, proposed to bring extremely tar sands oil from Alberta to U.S. refineries on the Gulf Coast for processing and export, opposed by numerous First Nation and Indian Nations and organizations, as well as by environmentalists, was at least temporarily stopped by President Obama, though he did approve one section to carry other oil within the southern United States (“Campaign Update – USA: Obama Rejects Keystone XL Pipeline,” Cultural Survival, January 20, 2012, http://www.culturalsurvival.org/news/campaign-update-usa-obama-rejects-keystone-xl-pipeline; “Campaign Update – USA: TransCanada to Proceed with Southern Leg of Keystone XL Pipeline,” Cultural Survival, March 1, 2012, http://www.culturalsurvival.org/news/campaign-update-usa-transcanada-proceed-southern-leg-keystone-xl-pipeline).

Gazprom, the major financer for Russia’s natural gas pipeline that would bisect the Ukok Plateau, going through the sacred site of the Telengit people, where they carry out their ancient rituals amid the burial mounds, stone stellae, and petroglyphs in the” Golden Mountains of Altai" World Heritage Site, en route to China, appears to have dropped the project for 2012. Gazprom’s investment program and financial plan for 2012 doesn’t include the Altai pipeline (“Campaign Update – Russia: Altai Pipeline Investors Back Down During 2012,” Cultural Survival, January 9, 2012, http://www.culturalsurvival.org/news/russia/campaign-update-russia-altai-pipeline-investors-back-down-during-2012; and http://www.culturalsurvival.org/take-action/russia/2/reroute-gas-pipeline-construction).

An Ecuador appeals court, at the beginning of 2012, denied Chevron Corp.’s effort to overturn the $18 billion judgment that was handed down February 14, 2010, for the firm’s predecessor’s massive pollution in the Amazon that seriously impacted thousands of Indigenous and mestizo farmers. An appeal to a higher court in Ecuador is still possible (“Chevron’s Appeal in Ecuador Denied,” Indian Country Today, January 4, 2012, http://indiancountrytodaymedianetwork.com/2012/01/04/chevron’s-appeal-in-ecuador-denied-70607).

Brazilian prosecutors filed criminal charges, in late March, 2012, against Chevron Corp, Transcom Ltd., and their top executives in the country, for an offshore oil spill, in November, 2011 (Matthew Cowley and Daniel Gilbert, “Brazil Charges Chevron,” The Wall Street Journal, March 20, 2012). Earlier, A Brazilian court ruled, in mid-March, that 17 employees of U.S. companies Chevron and rig operator Transcom must remain in Brazil until it can be determined what their liability is for an off shore, recent, oil spill. Criminal charges are possible, and an $11.2 billion civil damage suite has been filed against the companies (Simon Romero, “Oil Workers Must Stay in Brazil After Spill,” The New York Times, March 19, 2012).

A group of 35 Nigerian villages brought suit in Britain against Royal Dutch Schell, in late March, 2012, claiming the slow response of the company to a 2008 oil spill destroyed the environment in part of the Nigerian Delta, and destroyed the livelihoods of the villagers (Nigeria: Villagers Sue Shell Oil,” The New York Times, March 24, 2012). groups, which had wanted her to veto the entire bill (Simon Romero, “Brazil: President Vetoes Major Parts of Bill to Open Up Forests,” May 25, 2012, http://www.nytimes.com/2012/05/26/world/americas/brazil-president-vetoes-parts-of-bill-to-open-forests.html?ref=world).

The Ogoni People in Nigeria established the Ogoni Environmental Protection Agency, in December 2012, to make sure that oil companies face compelling action, holding them responsible for environmental crimes in the Ogoni area and insure a healthy environment. The Agency is collaborating with other Ioni and international organizations (“Ogoni Establish Environmental Protection Agency,” Cultural Survival, March, 2012).

The Obama administration issued a proposed rule governing hydraulic fracturing for oil and gas on public lands, May 3, 2012, that will for the first time require disclosure of the chemicals used in the process, however, in a significant concession to the oil industry, companies will have to reveal the composition of fluids only after they have completed drilling, rather than according the government’s original proposal which would have required disclosure of the chemicals 30 days before a well could be started (John M. Broder, “New Proposal on Fracking Gives Ground to Industry,” The New York Times, May 4, 2012, http://www.nytimes.com/2012/05/05/us/new-fracking-rule-is-issued-by-obama-administration.html?ref=todayspaper).

EPA, in mid April, began requiring oil and gas companies in the U.S. to capture climate altering and toxic gasses from wells, pipelines and storage facilities under new air quality standards (John M. Broder, “U.S. Caps Emissions in Drilling for Fuel,” The New York Times, April 19, 2012).

Members of the presidential panel that investigated the 2010 BP oil rig disaster in the Gulf of Mexico criticized Congress, in mid April, for failing to act on its recommendations for regulations on deepwater oil drilling (John M. Broder, “Panel Faults Congress for Inaction on Drilling,” The New York Times, April 18, 2012)

TransCanada submitted a new application for the Keystone XL pipeline to the U.S. State Department, May 4, 2012. The proposed pipeline route goes around the environmentally sensitive Sand Hills region of Nebraska. The State Department, which reviews pipeline projects that cross national borders, will probably need at least until the first quarter of 2013 to finish reviewing the new application (Dan Frosch, “New Application Is Submitted for Keystone Pipeline,” The New York Times, May 4, 2012, http://www.nytimes.com/2012/05/05/us/transcanada-submits-new-application-for-keystone-project.html?ref=todayspaper).

Alena Byx and Joyce Tait, “Ethical Framework for Biofuels,” Science, April 29, 2011, in an analysis of both the value and problems of biofuel development set out an ethical framework for policy in growing, processing and using biofuels: 1. Biofuels development should not be at the expense of people’s essential rights. 2. Biofuels should be environmentally sustainable, 3. Biofuels should contribute to net reduction of GHC [greenhouse gas] emissions. 4. Biofuels should recognize the rights of people to just reward. And 5. Costs and benefits of biofuels should be distributed in an equitable way.

“Great Pacific Garbage Patch Bigger Threat Than Tsunami Debris: Scientists,” Indian Country Today, June 8, 2012, http://indiancountrytodaymedianetwork.com/2012/06/08/great-pacific-garbage-patch-bigger-threat-than-tsunami-debris-scientists-117267, reports, “As worrisome as tsunami debris is to West Coast officials and residents, the so-called Great Pacific Garbage Patch that is trapped in the gyre 1,000 miles off California poses even more of a threat, marine scientists say.” A study published in the journal Biology Letters in May by the Scripps Institution of Oceanography at the University of California at San Diego, finds the huge field of trash swirling aimlessly in the middle of the ocean has grown 100-fold over the past 40 years. “The Great Pacific Garbage Patch is stationary and stable enough to serve as a breeding ground for sea skaters, or water striders, a marine insect that lays its eggs on floating objects.” Providing the insect fertile ground in the shards of plastic that are just as good for laying eggs on as are its usual seashells, seabird feathers, tar lumps and pumice, greatly increasing the insect’s population that could affect animals all through the marine food web. Moreover, at least nine percent of fish that Scripps captured to study had plastic waste in their stomachs. Most of the plastic floating in the ocean is broken-down bits the size of a fingernail floating across thousands of miles of open ocean. This may have broad effects on ocean life.

Australia announced plans, in Mid June, to create the world’s largest network of marine parks, protecting waters covering an area as large as India while banning oil and gas exploration and limiting commercial fishing in some of the most delicate areas. The country’s marine reserves will increase to 60 from 27 under the new plan, covering more than 1.2 million square miles, or one-third of its waters (“Extensive Network of Marine Parks to Be Created,” The New York Times, June 13, 2012, http://www.nytimes.com/2012/06/14/world/asia/extensive-network-of-marine-parks-to-be-created.html?ref=todayspaper).

Canada’s 2012 Budget Bill Guts Fisheries Act, a Cornerstone of Environmental Protection: Critics,” Indian Country Today, June 4, 2012, http://indiancountrytodaymedianetwork.com/2012/06/04/canadas-2012-budget-bill-guts-fisheries-act-a-cornerstone-of-environmental-protection-critics-116127, reports, “Scientists, First Nations leaders and even former ministers are askance at provisions in the budget bill of Prime Minister Stephen Harper’s Conservative government that would dismantle much of the country’s Fisheries Act, a cornerstone of federal environmental policy. The policy in question is the current ban on any activity that harms, disrupts or destroys fish habitat. It is being replaced, the Vancouver Sun and other media report, by a focus on fish and their value rather than on habitat. The changes are part of the same bill that another chief already said is taking the teeth out of environmental legislation as a whole.” “’This revision will remove habitat protection for most of Canada’s freshwater fish,” wrote Dalhousie University professor Jeffrey Hutchings in a letter to Ottawa on behalf of the 1,000 scientists belonging to the Canadian Society for Ecology and Evolution (CSEE).”

Cultural Survival reported, December 21, 2011, that “the world’s largest reindeer herd has plummeted in size, with local indigenous people blaming the spread of massive industrial projects in the area. The George River herd, which once numbered 8-900,000 animals, stands today at just 74,000 – a drop of up to 92%. The herd roams the vast tundra of Quebec and Labrador in eastern Canada. Known as caribou in North America, the animals are central to the culture of the Cree Innu people of the region.” Innu Elder and Chief Georges-Ernest Gregoire pointed out, 'The caribou (reindeer) is central to our culture, our spiritual beliefs and to our society as hunters that have lived on our homeland, Nitassinan [Quebec-Labrador peninsula], for thousands of years. “But all the massive industrial ‘development’ projects that have been imposed on our land in the last forty years have undoubtedly had a cumulative impact on the size of the caribou herd. That is why we need real control over our territories and resources, and why we must be involved as equals in decisions that affect our lands and the animals that live there.” For more information contact, in England, Chloe Corbin:

T (+44) (0)20 7687 8734 or (+44) (0)7504543367, c.corbin@survivalinternational.org, or in the U.S., Tess Thackara (after 12 pm EST), T (+1) 415 503 1254, tt@survivalinternational.org, http://www.survivalinternational.org/news/7967.

Citrus Greening disease, carried by insects, which originated in Asia, and has killed millions of citrus trees around the world, has been spreading in California, and threatens to kill off the citrus trees owned by 70% of California residents, while commercial growers are spraying to try to prevent the disease (Ian Lovett, “Threat to California Citrus May Finish Backyard Trees,” The New York Times, April 18. 2012).

A unanimous three-judge panel of the Court of Appeals for the District of Columbia said, June 9, 2012, that the Nuclear Regulatory Commission acted hastily in concluding that spent fuel can be stored safely at nuclear plants for the next century or so in the absence of a permanent repository, and it must consider what will happen if none are ever established. The court noted that the commission did not carry out an analysis of individual storage pools at reactors across the country, treating them generically instead, and did not adequately analyze the risk that cooling water will leak from the pools or that the fuel will ignite. The commission has relied on its conclusion that spent fuel rods can be safely stored at plants to extend the operating licenses of dozens of power reactors in recent years and to license four new ones. The decision appears to require the commission to make the detailed analysis and present it publicly. The plaintiffs in the case were four states, environmental groups and an American Indian organization (Matthew L. Wald, “Court Forces a Rethinking of Nuclear Fuel Storage,” The New York Times, June 8, 2012, http://www.nytimes.com/2012/06/09/science/earth/court-says-nuclear-agency-must-rethink-fuel-storage.html?src=recg).

Under intense public pressure, Japan’s leaders reluctantly shut down the last of the country’s 50 functional commercial reactors, at least temporarily, May 4, 2012. The shutdown will be costly, as Japan’s once favorable balance of trade, already deteriorating, will get worse from increased fuel imports, while the prospect of summer power shortages could cause still more factories to close or move abroad. In late May, although the danger of a major nuclear accident is considerably reduced, the appearance of bulges in the wall of the damage and leaning, though now reinforced, reactor building number 4 at the Fukushima Daiichi plant, on whose roof is an open tank containing many spent fuel rods in a cooling pool of water, raised new public fears, even as steps were being taken to shore up the building where the bulges are (Martin Fackler, “Japan’s Leaders, Pressed by Public, Fret as Nuclear Shutdown Nears,” The New York Times, May 3, 2012, http://www.nytimes.com/2012/05/05/world/asia/japans-leaders-fret-as-nuclear-shutdown-nears.html?_r=1&ref=todayspaper; Hiroko Tabuchi and Matthew L Wald, “Spent Fuel Rods Drive Growing Fear Over Plant in Japan, The New York Times, May 26, 2012). However, despite public objection Japanese Prime Minister Yoshihiko announced, in mi-June, that 2 atomic reactors at the Ohi plant in Western Japan will be restarted to meet the higher summer electric demand. Work has been done to strengthen the plant to make it more resistant to natural disaster (Martin Fackler, “Japan Public Still Divided As 2 Reactors To Be Opened,” The New York Times, June 17, 2012).

Melissa Eddy, “German Plan to Abandon Its Nuclear Energy Lags,” May 30, 2012, http://www.nytimes.com/2012/05/31/world/europe/german-plan-to-abandon-its-nuclear-energy-lags.html?ref=world, reports, “More than a year after pledging to drop nuclear power, Chancellor Angela Merkel has acknowledged that her ambition for a Germany that runs on renewable energy is falling behind schedule and faces a range of obstacles, not least the revamping of the energy grid at a cost of billions of Euros. In recent weeks, Ms. Merkel has redoubled her efforts to push Germany’s troubled energy transformation, replacing her environment minister and declaring that she would make a new priority of the project, which foresees replacing nuclear power with renewable energy sources within a decade.”

The Excelon Nuclear power plant in northern Illinois shut down, January 30, 2012, after losing power, and radioactive steam was vented to reduce pressure. It was not immediately clear how much radioactivity was vented, though the company said the levels were not dangerous (“Illinois: Reactor Is Shut After Power Loss,” The New York Times, January 30, 2012, http://www.nytimes.com/2012/01/31/business/energy-environment/illinois-reactor-is-shut-after-power-loss.html?ref=todayspaper).

A Department of Energy finding, in early May, that uranium at nearly twice the legal safe drinking limit had been found in the tap water of four households on the Wind River Reservation in Wyoming, showed that despite improvement, the aftermath of the Susquehanna-Western uranium mill, that ceased operation on the reservation in 1963, continues to provide dangers and difficulties. When the mill closed, it left behind nearly two million cubic yards of contaminated tailings—unlined, in the open, and subject to rain and snowfall for over 20 years. In 1988 the Department of Energy moved the contaminants to the gas hills and announced that the site would clean itself up after 100 years. But in 1998, the Department returned to the reservation telling residents that they shouldn’t drink from their water wells for fear of contamination (Tristan Ahtone, “Uranium-Tainted Water Still a Concern on Wind River Reservation,” Indian Country Today, May 21, 2012, http://indiancountrytodaymedianetwork.com/2012/05/21/uranium-tainted-water-still-a-concern-on-wind-river-reservation-113198).

Elisabeth Rosenthal, “Nigeria Tested by Rapid Rise in Population,” The New York Times, April 14, 2012, http://www.nytimes.com/2012/04/15/world/africa/in-nigeria-a-preview-of-an-overcrowded-planet.html?src=me&ref=world, reports, “In a quarter-century, at the rate Nigeria is growing, 300 million people — a population about as big as that of the present-day United States — will live in a country roughly the size of Arizona, New Mexico and Nevada. In this commercial hub, where the area’s population has by some estimates nearly doubled over 15 years to 21 million, living standards for many are falling. Lifelong residents like Peju Taofika and her three granddaughters inhabit a room in a typical apartment block known as a “Face Me, Face You” because whole families squeeze into 7-by-11-foot rooms along a narrow corridor. Up to 50 people share a kitchen, toilet and sink — though the pipes in the neighborhood often no longer carry water. At Alapere Primary School, more than 100 students cram into most classrooms, two to a desk. As graduates pour out of high schools and universities, Nigeria’s unemployment rate is nearly 50% for people in urban areas ages 15 to 24 — driving crime and discontent. The growing upper-middle class also feels the squeeze, as commutes from even nearby suburbs can run two to three hours. Last October, the United Nations announced the global population had breached seven billion and would expand rapidly for decades, taxing natural resources if countries cannot better manage the growth. Nearly all of the increase is in sub-Saharan Africa, where the population rise far outstrips economic expansion. Of the roughly 20 countries where women average more than five children, almost all are in the region.”

The EPA was reviewing allowable amounts of selenium to be emitted into water, in late February, and a controversy was raging amongst Federal and private agencies and groups after the release of a scientific study with photographs of variously mutated brown trout commissioned by the J. R. Simplot Company, whose mining operations have polluted nearby creeks in southern Idaho (Leslie Kaurfman, “Mutated Trout Raise New Concerns Near Mine Sites,” The New York Times, February 22, 2012, http://www.nytimes.com/2012/02/23/science/earth/mutated-trout-raise-new-concerns-over-selenium.html?ref=us).

“Judge Upholds Uranium Mining Ban in Colorado” Center for Biological Diversity, March 8, 2012, www.BiologicalDiversity.org, reports, “Uranium won't be mined anytime soon near two of Colorado's most stunning waterways. A judge has upheld a ban on the U.S. Department of Energy's 42-square-mile uranium leasing program near the Dolores and San Miguel rivers -- a ban first obtained by the Center for Biological Diversity and four other environmental groups on a lawsuit we filed in 2008 -- even in the face of what the Center's Taylor McKinnon called the ‘Department of Energy's legal shenanigans.’" Judge Martinez found that the department violated environmental laws when it approved the leasing program, threatening rivers with uranium, selenium, manganese, vanadium, arsenic and other pollutants. Selenium and arsenic have been implicated in the decline of four endangered fish, the Colorado pike minnow, humpback chub, razorback sucker and bonytail chub, and may still be impeding the fishes' recovery. The injunction will help protect and restore what McKinnon calls "two of the West's loveliest little rivers."

The Navajo Nation and the U.S. Environmental Protection Agency (EPA) are concerned that there are still unmarked and dangerously radioactive uranium mines scattered across the Navajo Nation, that have yet to be cleaned up. So far EPA and the Department of Energy have evaluated 683 mine sites on the reservation (at a cost of $60 million for the EPA’s share of the survey) and have selected 34 structures and 12 residential yards for remediation. It would cost many millions of dollars to clean up all of the mines and the radioactive tailings from them (“Uranium Mines Dot Navajo Reservation, Neglected and Still Perilous,” The New York Times, April 1, 2012).

With the drier weather in the western U.S. in recent years, Southern California is suffering water shortages, higher water prices, and political battles over water (Adam Nagourney and Felicity Barringer, “Fees and Anger Rise on California War, “The New York Times, April 24, 2012).

The United States and Mexico came to an agreement, February 20, 2012, to undertake joint inspection of oil drilling in the Gulf of Mexico along their maritime boarder. If ratified by legislators in both countries, a million additional acres of sea bottom could be opened up for gas and oil drilling (John M. Broder and Clifford Krauss, “U.S. in Accord with Mexico on Drilling,” The New York Times, February 21, 2012).

Lake Titicaca, on the border between Peru and Bolivia, once a sacred place to the Inca – and still considered sacred by local Indigenous people - that has supported indigenous farming and fishing communities for thousands of years, is now in danger from pollution, as population growth in the Titicaca watershed overwhelms the area’s infrastructure. Over the past decade Aymara Indian farmers from all over Bolivia’s high plains were drawn to the city of El Alto in search of education and employment, raising the population of that city to more than one million people. The City, with an inadequate budget, struggles to provide basic services. Like many Bolivian cities, it does not treat much of its wastewater, which ends up in Lake Titicaca, just 40 miles away. About 80% percent of the people in El Alto have access to potable water, but at most, 50% of its homes and businesses connect via sewers to the city’s only wastewater treatment plant. The rest of the water goes directly into rivers, which now display a sickly rainbow of colors—red with blood from slaughterhouses, green with chemicals from tanneries, and a deep orange from mineral processing waste. Their banks are lined with trash—from tires to bottles to dead dogs—and the rivers are also toilets for many people who don’t have bathrooms in their homes, and the water continues to become dirtier, sometimes bringing deadly results. Children playing along the riverbanks and families picking through the piles of garbage are exposed to chemicals and feces, causing many people to carry harmful intestinal parasites and thousands of children to die each year from diarrhea related to inadequate sanitation. A second wastewater treatment plant for the city, which will rely largely on international funds for completion, is planned. But that addition may not be enough to deal with industrial pollutants. The problems are compounded by pollution from other towns being dumped into the river and flowing down to the Lake. Fishermen are also affected as Lake Titicaca shallow shore water is a breeding ground for several species of fish that locals depend on for their livelihood. As a result of the pollution, young fish that formerly grew to maturity in warm shore waters have migrated deeper into the lake, resulting in diminished population and size, which combined with serious overfishing, has caused many former fishermen to migrate to cities in search of work. Because Lake Titicaca is larger than the state of Delaware, most of the lake’s water is still clean, but its condition is deteriorating. A myriad of small projects are underway to improve the situation. One organization, Fundación Sumaj Huasi, helps people without sewer service build ecological toilets. Another project helps dairy farmers maintain healthy herds of cows and build compost centers where, instead of washing into the lake, manure is collected and later sold as fertilizer. However, unless El Alto moves to treat all its wastewater, the deterioration of the Lake will continue. Some laws have been passed to bring change, but have not been put into practice. For instance, in 2004 the government of then-president Carlos Mesa passed a law declaring four rivers, including the Pallina, environmental disaster zones. When action didn’t follow the law, people who live near the Pallina blocked a key highway leading toward Bolivia’s capital and demanded a cleaner river. Although the protest called attention to the issue of pollution, the Pallina remains a foamy, opaque green. Rivera Ballesteros, the engineer, says better cooperation between organizations working on water pollution and trash collection would be a step in the right direction. “There are institutions doing this kind of work, but it would be good to have more coordination, to work together, form teams and join forces,” he says. Rocio Butron, who works for the municipality of Pucarani, Bolivia agrees that more cooperation is essential. She says local governments often lack the trained staff to take on large environmental projects, and, as in El Alto, key issues such as health care and education take precedence over sanitation in the municipal budget. “There should be a bigger push from the central government and the departmental government to tackle these issue and get the municipalities involved to contribute,” she says

A study by the Biodiversity Institute, Hidden Risk, published in January 2012, finds that methylmurcury – which is harmful to people - in the emissions of power plants is increasing, not only in waters, but in forests and across lands, causing harm to a wide variety of wildlife, including song birds (Anthony DePalma, “Mercury’s Harmful Reach Has Grown, Study Suggests,” The New York Times, January 24, 2012).

Two recent studies indicate that an important factor in the decline of bees in North America and other parts of the world is their exposure to even low levels of the common pesticides of the neonicotinoid variety (Carl Zimmer, “2 Studies Point to Common Pesticide as a Culprit in Declining Bee Colonies,” The New York Times, March 30, 2012).

Members of the Penobscot Indian Nation of Maine performed a ceremony as preparations were made to take down the 200 year old Great Works Dam on Maine's Penobscot River near Bradley to improve spawning of salmon (who still have healthy runs on the river), shad, sturgeon, alewives, eels, and smelt (Murray Carpenter, “Dam Removal to Help Restore Spawning Ground,” The New York Times, June 12, 2012).

Billy Frank, Jr. “We Need to Win the Battle for Salmon Recovery,” Indian Country Today, February 9, 2012, http://indiancountrytodaymedianetwork.com/ict_sbc/we-need-to-win-the-battle-for-salmon-recovery,” comments: The battle is being lost for salmon recovery in western Washington State because salmon habitat is being destroyed faster than it can be restored. Despite massive cuts in harvest, careful use of hatcheries and a huge financial investment in restoration during the past four decades, salmon continue to decline along with their habitat. As the salmon disappear, so do local tribal cultures and treaty rights. The situation is critical, and time to act sufficiently running out. For that reason, the Northwest Indian Nations are asking the federal government to come to align its agencies and programs, and lead a more coordinated salmon recovery effort. The United States is being asked to lead salmon recovery because it has the obligation and authority to ensure both salmon recovery and protection of tribal treaty rights.

Nate Schweber, “As Bison Return to Prairie, Some Rejoice, Others Worry,” The New York Times, April 26, 2012, http://www.nytimes.com/2012/04/27/us/bison-return-to-montana-prairie.html?ref=todayspaper, reports, “Sioux and Assiniboine tribe members wailed a welcome song last month as around 60 bison from Yellowstone National Park stormed onto a prairie pasture that had not felt a bison’s hoof for almost 140 years. That historic homecoming came just 11 days after 71 pureblood bison, descended from one of Montana’s last wild herds, were released nearby onto untilled grassland owned by a charity with a vision of building a haven for prairie wildlife. Some hunters and conservationists are now calling for bison to be reintroduced to a million-acre wildlife refuge spanning this remote region.” Some agribusiness people are objecting to the bison reintroduction in Montana, expressing fears that the heard will be mismanaged.

The red knot is a sea bird that every year migrates arrive every spring more than 9,000 miles, from the southern tip of South America to the Canadian Arctic, stopping on the beaches of Delaware Bay off New Jersey to feast for a few weeks on horseshoe crab eggs and, in the process, double their body weight, necessary for their migration and survival, which is now endangered. Their numbers have dropped from more than 100,000 in the 1980s to only about 30,000 today, largely because over fishing the crabs for bate has greatly reduced a key portion of the red knot’s food supply, and wildlife biologists in New Jersey worry that without stronger protections, they could become extinct (Lisa W. Foderaro, “A Bird, a Crab and a Shared Fight to Survive,” The New York Times, June 5, 2012, http://www.nytimes.com/2012/06/06/nyregion/red-knots-horseshoe-crabs-and-fight-to-survive-in-delaware-bay.html?ref=nyregion).

Kent Paterson, “Mexico Climate Politics Heats Up,” AmericasProgram, January 20, 2012, http://www.cipamericas.org/archives/6325, comments, “History has not been kind to the indigenous Raramuri people of the northern Mexican state of Chihuahua. Pushed to remote mountains of a harsh land by Spanish and mestizo colonists, the Raramuri managed to hang on to their culture while eking out an existence based on rain-fed farming and small herd grazing. In recent decades their lands have been invaded again, this time by cattlemen, loggers, miners, dope growers, tourism developers, and soldiers. According to Mexican analyst and farm activist Victor Quintana, the United Nations named six municipalities with a large Raramuri presence as among the 10 least-developed indigenous municipalities in Mexico in 2005. Ironically, Quintana wrote in a recent column, the Raramuri suffer water shortages and malnutrition while from their Sierra Tarahumara springs the headwaters of rivers that nourish commercial, export-oriented agriculture in the “fertile valleys” below.” “In another metaphoric twist to the Raramuri crisis, Chihuahua state officials are considering slaughtering thousands of wild pigs that regularly cross the border from Texas and devour what little cover is left on a rain-starved land. The meat, which one state official insisted was “tasty” and low in fat content, would then be shipped to hungry indigenous communities in the mountains. The Raramuri are fast becoming a political football in a sharpening national struggle ostensibly over climate change and agricultural policy, but also intimately tied to free trade, food sovereignty and corporate consolidation of the food supply. Recently, Mexican media have been filled with stories about drought and hunger devastating the homeland of a people known for their long-distance running skills and passionate Easter season festivities.” “Drought has been a recurrent problem in the Sierra Tarahumara since at least the 1990s, and thousands of Raramuris have since fled their homes for Ciudad Juarez, Chihuahua City and other urban refuges. The degree to which Raramuris have become pawns in an ongoing chess game of socio-politics was amply exhibited earlier this month when hundreds of indigenous residents of the Sierra Tarahumara were transported en masse to an event attended by Chihuahua Governor Cesar Duarte and Enrique Pena Nieto, the 2012 presidential candidate of the Institutional Revolutionary Party (PRI). Although the event organizers said their intention was to familiarize national leaders with the Raramuri’s plight, indigenous people who attended the meeting were quoted in Mexico’s Proceso newsweekly saying they had no idea why they were brought to it. “Reportedly, the man in charge of the acarreo–the Mexican word for carting people in to buff up political campaign events–was a former mayor of Guadalupe y Calvo, a violence-torn town located in heart of the Sierra Tarahumara’s narco country.” “The Raramuri episode was but the latest chapter in a deep-seated rural crisis worsened by climate change and neo-liberal economic policies. A triple plague of floods, drought and freezes slammed nearly 70% of the country’s 26 million arable hectares in 2011 according to government officials, academic researchers, and farm organizations cited in the media. While drought alone has been particularly severe in the northern states, the lack of rainfall is also creating emergency situations for producers in places like Jalisco and Aguascalientes. The federal Secretariat of Agriculture, Livestock and Fisheries (Sagarpa) acknowledges that 19 Mexican states are affected by the worst drought in 70 years. Nationwide, upwards of a half-million cattle have died and some water wells have dried up, according to a slew of reports. In 2011 an estimated 20% of Mexico’s vital corn crop withered up in the face of adverse weather, according to the Mexican newspaper La Jornada. Production of another food staple, beans, is also down. Climate disasters have contributed to pushing up food prices across the country.” “Max Correa, general secretary of the Central Campesina Cardenista, told La Jornada that price hikes of agricultural products could range from 100 to 150% this year. Both farmers and consumers are already feeling a stinging pinch. A wave of price increases for eggs, beans and tomatoes, as well as the gasoline and the highway tolls required to get products to market, slapped Mexicans at the end of 2011 and the beginning of 2012. Perhaps most wrenching was yet another jump in the cost of staple corn tortillas, which rose in price from about 6 pesos per kilo at the end of 2006 to more than 12 pesos in many cities surveyed by the Economy Ministry at the end of last year. During the same time period, the average minimum wage increased from 48.67 pesos to 59.82 pesos; the ability of a daily minimum wage to purchase tortillas plummeted from 8.1 kilos in 2006 to 5.3 in 2011. To compensate for a corn production downturn, Mexico is importing the product from abroad, especially from the United States. Corn imports surged 69.6% from January to September 2011, costing Mexico about $2.1 billion, an amount sharply up from the approximately $1.2 billion spent on imports during the same period in 2010. Mexico’s experience is similar to that of many other developing nations, according to a new report by the Institute for Agriculture and Trade Policy and the Global Development and Environment Institute. The report blamed commodity speculation, biofuel production and “land grabs” for big hikes in global food prices from 2007 to 2008 and again from 2010 to 2011. While governments have taken some positive steps to address the food crisis, no real structural reforms to avert “another devastating spike in global food prices” have been undertaken, the report’s authors concluded. Not everyone is losing out from a spiraling price cycle. The increase is connected to environmental issues, but it’s also heavily influenced by the gambles of finance capital, the hegemony of free trade and the corporate domination of the food chain. Foreign food exporters, large domestic food processors and multinational and national supermarket chains all stand to gain from a loss in food self-sufficiency. Big box stores like Walmart sell tortillas at a lower price than do the mom-and-pop stores traditionally frequented by Mexicans. For instance, the US-based giant sells tortillas in a Puerto Vallarta store for 9.90 pesos per kilo, compared with the 14-15 pesos a kilo charged by the smaller tortilla outlets. Taking a cue from the profit-making trick of leading buyers to think they have gotten a bargain by simply selling less for more, the rapidly expanding OXXO convenience store chain now sells three-quarter kilo packages of tortillas for 10.50 pesos. Mexico’s food crisis has yet to acquire the status of a primary national issue, but different forces are beginning to push the issue into the center stage of national political life. In what is likely to be the largest protest of its kind since 2008, Mexico’s main farm organizations plan to converge on the capital city during the last days of January to demand more government assistance. ‘This is the first social movement that the country sees rising up because of climate change,” wrote analyst Victor Quintana. “More and more will rise up even stronger if the government continues on without understanding what is happening.’ Sparking the protests was President Calderon’s veto last month of an extra assistance package for Mexican farmers valued at about $900 million and approved by the opposition-controlled lower house of the Mexican Congress.” “The domestic battle contrasts with the Calderon administration’s support for extra funding from developed nations for the Green Climate Fund. And as the new president of the G-20 group of nations, Mexico is likely to lobby for more climate aid from the wealthier members. The Calderon administration considers Mexico to be in the vanguard of ‘green growth.’” “At home, the Calderon administration is aggressively defending its domestic climate actions. ‘Addressing the effects of the drought is a priority for the administration of President Felipe Calderon because it affects a good portion of the population, in particular, the most vulnerable Mexicans,’ said Sagarpa Secretary Francisco Mayorga. As evidence of the federal government’s attentiveness, Sagarpa said about $1.3 billion had been budgeted for mitigation and prevention programs in 2012. Among the measures already in motion or in the works for the coming days are crop substitution, water harvesting, pasture re-planting, sustainable range management and temporary employment. Also, the government plans on spending about $90 million on catastrophic insurance for “climatic and natural phenomena. Whether the government’s rural rescue policies can even lay the basis for turning around the countryside is another matter entirely. Under the current rules of the economic game, Mexico’s agricultural economy is ruled by free trade agreements, especially NAFTA, while middle-men merchants and big corporations control the transport and marketing of products as they travel from the country to the city. On the land, the bigger and politically-connected farmer associations stand poised as always to benefit from any further injections of government aid. Large tracts of irrigated land and pasture are devoted to supplying the US market. Last November alone, 189,000 cattle were shipped north across the border, according to the beef industry publication Drovers Cattle Network. The Mexican government’s rural relief package will not disturb any of these profitable but increasingly ecologically-harmful economic arrangements. It’s still too early to tell if the new farm protest movement will sow a seed for a 21st century agricultural model based on domestic marketplace reform, trade renegotiation and sustainable farming practices.”

In Peru in May, there was public concern over, first, hundreds of dead dolphins washing up on beaches, and, second, thousands of dying seabirds. While the cause is not yet finally determined, preliminary findings are that dolphins are dying of a virus, and seabirds are starving from a drop in the anchovy population (David Jolly and Andrea Zarate, “Dead Dolphins and Birds Are Causing Alarm in Peru,” The New York Times, May 8, 2012).

U.S. Developments

Many of the reports in this issue of U.S. government legislation, agency action, and court decisions are informed by electronic flyers from Hobbs, Straus, Dean and Walker, LLP, 2120 L Street NW, Suite 700, Washington, DC 20037, http://www.hobbsstraus.com, provided by Americans for Indian Opportunity.

U.S. Government Developments

Presidential Actions

President Barack Obama signed an executive order, “Improving American Indian and Alaska Native Education Opportunities and Strengthening Tribal Colleges and Universities,” December 2, 2011, establishing a White House Initiative on American Indian and Alaska Native Education, which the Secretary of Education and the Secretary of the Interior will co-chair, to carry out efforts to affirm the federal government’s commitment to Native education. Secretary of Education Arne Duncan will appoint an executive director to lead the initiative. The order is meant to improve educational performance and options for Native American and Alaska Native students from early education through college. The signing was done in conjunction with Obama’s third White House Tribal Nations Conference, which saw hundreds of tribal leaders gather at the Department of the Interior’s headquarters to hash out Indian issues with administration officials. The order reads, in part: “It is the policy of my Administration to support activities that will strengthen the Nation by expanding educational opportunities and improving educational outcomes for all AI/AN students in order to fulfill our commitment to furthering tribal self-determination and to help ensure that AI/AN students have an opportunity to learn their Native languages and histories and receive complete and competitive educations that prepare them for college, careers, and productive and satisfying lives.” “My Administration is also committed to improving educational opportunities for students attending TCUs [Tribal Colleges and Universities]. TCUs maintain, preserve, and restore Native languages and cultural traditions; offer a high-quality college education; provide career and technical education, job training, and other career-building programs; and often serve as anchors in some of the country’s poorest and most remote areas” (Rob Capriccioso, “Obama Signs Executive Order on Education and Tribal Colleges,” Indian Country Today, December 5, 2011, http://indiancountrytodaymedianetwork.com/2011/12/05/obama-signs-executive-order-on-education-and-tribal-colleges-65644; and “President Obama Signs Executive Order Creating White House Initiative on American Indian/Alaska Native Education,” Hobbs Straus General Memorandum 11-148, December 13, 2011, downloadable at: GM_11-148_ExecOrder_Ed.pdf).

The Department of the Interior, in December, appointed five members of the Secretarial Commission on Indian Trust Administration and Reform: Chair – Fawn R. Sharp, the current president of the Quinault Indian Nation, the current President of the Affiliated Tribes of Northwest Indians, and a former administrative law judge for the State of Washington and Governor of the Washington State Bar Association; Dr. Peterson Zah, an established leader in Native American government and education circles, who was the last chairman of the Navajo Tribal Council and the first elected President of the Navajo Nation; Stacy Leeds, a citizen of the Cherokee Nation, Dean and Professor of Law at the University of Arkansas School of Law and former Director of the Tribal Law and Government Center at the University of Kansas School of Law; Tex G. Hall, current chairman of Three Affiliated Tribes and past President of the National Congress of American Indians, currently serving as Chairman of the Inter Tribal Economic Alliance and is the Chairman of the Great Plains Tribal Chairmen’s Association; and Bob Anderson, an enrolled member of the Minnesota Chippewa Tribe (Bois Forte Band), with six years of experience working at the Department of the Interior from 1995-2001 as Associate Solicitor for Indian Affairs and as counselor to the Secretary of the Interior on Indian law and natural resource issues. He is currently a Professor of Law and Director of the Native American Law Center at the University of Washington, and holds a long-term appointment as the Oneida Indian Nations Visiting Professor of Law at Harvard Law School. According to Interior, members of the team were selected after a public solicitation for nominations and, in consultation with trust beneficiaries, evaluated the candidates on the basis of their expertise and experience, including in government and trust, financial, asset and natural resource management. Members will serve without compensation. The team is expected within two years to “complete a comprehensive evaluation of Interior’s management and administration of the trust assets and offer recommendations of how to improve in the future” (Rob Capriccioso, “Obama’s Indian Trust Commission Takes Form,” Indian Country Today, December 1, 2011, http://indiancountrytodaymedianetwork.com/2011/12/01/obamas-indian-trust-commission-takes-form-65253).

The White House Domestic Policy Council (DPC) and the Office of Management and Budget (OMB) sought tribal comments on the implementation of President Obama's February 28, 2011, Memorandum to federal agencies entitled Administrative Flexibility, Lower Costs, and Better Results for State, Local and Tribal Governments. As a result of tribal comments received by federal agencies regarding the Memorandum, the DPC and OMB convened five interagency working groups to address issues which were identified as priorities to tribes. The framing paper on the priorities that the working groups are tasked with addressing is attached. Comments on the interagency working groups or the President's Memorandum were due by January 20, 2012. The five interagency working groups are: Housing, Loans and Credit, Training and Employment, Broadband Service, and Workforce Development. The Departments of Interior, Housing and Urban Development, Veterans Affairs, Treasury, Commerce, Education, Labor, Energy, Agriculture and Health and Human Services, as well as the Small Business Administration and the Federal Communications Commission are participating as members of the working groups. The working groups were seeking comments on how best to accomplish cost effective results by: consolidating, streamlining, or eliminating data and administrative requirements; improving and better coordinating training and technical assistance; and improving the application, documentation and approval processes for federal programs (“Tribal Comments Sought on Implementation of President's Memorandum on Administrative Flexibility,” Hobbs Straus General Memorandum 12-006, January 13, 2012, downloadable at: GM_12-006_TribalCommentsSought_onPresidentsMemorandum_onAdministrativeFlexibility.pdf).

President Obama appointed former Crow attorney Del Laverdure, April 9, 2012, to replace Larry Echo Hawk as Assistant Secretary of Interior for Indian Affairs. Lavaverdure has been Deputy Assistant Secretary since 2999 (“Former Crow attorney to fill top BIA post,” News From Indian Country, May 2012), and named Jodi Gillette (Standing Rock Sioux) to serve as White House senior policy advisor for Native American affairs, April 27, 2012, serving on the White House Domestic Policy Council. Gillette previously worked on Indian issues at the Department of Interior (“Obama names Gillette to Native American post,” News From Indian Country, May 2012).

Legislative Actions

President Obama signed the Hoover Power Allocation Act, December 20, 2011, for the first time providing tribe access to power generated at Hoover Dam. A provision of the act sets aside 5% of power generated through 2067 for additional entities, including tribes (Hoover Dam Bill becomes law,” Navajo Times, January 26, 2012).

The Senate approved legislation, S 1925, April 26, 2012, which would reauthorize the Violence Against Women Act (VAWA) that would authorize tribes (but not Alaska Native villages) to exercise concurrent criminal jurisdiction over domestic violence cases with provisions to ensure that tribes protect the rights of defendants. The bill does so in a way similar to the so-called \"Duro fix\" that recognizes the pre-existing criminal jurisdiction of Indian tribes so that the enumerated criminal jurisdiction is not construed as a grant of new powers to Indian tribes. It would also clarify the authority of Indian tribes to issue and enforce protection orders against anyone in a tribe's Indian Country or otherwise within the authority of the Indian tribe. Section 904 of the Senate bill allows Indian tribes to prosecute non-Indians for three crimes that occur in Indian Country: (1) domestic violence; (2) dating violence; and (3) violating a protection order. In addition, the Senate bill requires that the non-Indian defendant have significant ties to the Indian tribes such as living in Indian Country, working in Indian Country, or being the spouse or intimate partner of a tribal member. Finally, in order to prosecute anyone for a crime, the Indian tribe must provide due process protections to a defendant in court. Those protections include the rights to counsel, a speedy trial, and an impartial jury, which does not systematically exclude non-Indians. Following the Senate Judiciary Committee mark-up of the bill, several provisions were added to prevent Alaska Native tribes from exercising criminal jurisdiction. Those provisions possibly had the unintended effect of eliminating current civil powers and as a result, Alaska tribes and organizations objected to the provisions. Senator Murkowski (R-AK) successfully offered a technical amendment on the floor that restored the authority of Alaska Native tribes to issue civil protective orders. Nevertheless, the Senate bill does not allow Alaska Native tribes (with the exception of the Metlakatla Indian Community) to exercise any of the new criminal jurisdiction provided in the bill. Section 905 provides a disclaimer that \"Nothing in this Act, including an amendment made by this Act, alters or modifies the jurisdiction or authority of an Indian tribe in the State of Alaska under section 2265(e) of title 18, United States Code (as in effect on the day before the date of enactment of this Act).\" Furthermore, Section 910 provides, \"Nothing in this Act or any amendment made by this Act limits, alters, expands, or diminishes the civil or criminal jurisdiction of the State of Alaska, any subdivision of the State of Alaska, or any Indian tribe in the State of Alaska.\" S 1925 would also reauthorize a number of grant programs to combat domestic violence and provide victim services; authorize a new grant program to strengthen tribal criminal justice systems in order to exercise special domestic violence criminal jurisdiction; increase funding for tribal domestic violence coalitions; provide for research on violence against Native women; extend the life of the Indian Law and Order Commission by an additional year; and amend the federal assault statutes to bring them in line with similar state statutes with regard to punishment. The final Senate bill did restore concurrent tribal criminal jurisdiction over all persons who commit misdemeanor domestic and dating violence in Indian country and clarified tribal court authority to issue and enforce civil protection orders. Additionally, it strengthens federal authority to address violent felonies on Indian reservations. (“Senate Approves Violence Against Women Reauthorization Bill with Tribal Jurisdiction; Alaska Tribes Excluded from Criminal Jurisdiction,” Hobbs-Strauss General Memorandum 12-057, April 27, 2012, which can be downloaded at: GM_12-057_VAWA_PassesSenate..pdf; Rob Capriccioso, “Senate Women Safety Legislation to Exclude 40 Percent of Tribes” Indian Country Today, April 24, 2012, http://indiancountrytodaymedianetwork.com/2012/04/24/senate-women-safety-legislation-to-exclude-40-percent-of-tribes-109930; and http://www.ncai.org/news/articles/2012/04/26/senate-passes-vawa-including-protections-for-native-women). The House of Representatives approved by a vote of 222–205, HR 4970, legislation to reauthorize the Violence Against Women Act (VAWA), May 16, 2012, without the expansion of tribal jurisdiction over misdemeanor domestic violence crimes on tribal lands by non-Indians that is included in the Senate-approved VAWA bill (S 1925), nor does it include other provisions some consider controversial from the Senate bill related to immigrant and gay, lesbian, and transgender individuals. However, the bill does contain a new provision granting federal court authority to issue protection orders against perpetrators of domestic violence in Indian Country. The House vote was largely along party lines with 23 Republicans voting for the bill and six Democrats voting against it. Substitute amendments to HR 4970 that would have mirrored the Senate bill, including the tribal jurisdiction provisions, were offered but rejected by both the House Judiciary Committee and the Rules Committee. The White House supports the Senate bill and has indicated that the President would likely veto the final VAWA bill if it is like the House version. The bill was considered on the House floor under a closed rule (meaning no further amendments could be offered). On May 15 the House Rules Committee, which sets the rules for floor debate and amendments, added as part of the manager's package of amendments a provision relating to federal protection orders involving Indians in Indian Country. The provision would authorize domestic violence victims, or an Indian tribe on behalf of a victim, to seek protection orders from United States district courts against Indian or non-Indian abusers if the victim is an Indian who lives or works in Indian Country and the person against whom the order is sought is alleged to have committed an act of domestic violence in Indian Country. As part of the protection order, the federal court would be authorized to bar the alleged offender from the Indian Country of the tribe involved. Violation of those orders would be a federal crime. During the one hour of floor debate that was permitted on HR 4970, Democrats argued that the bill would be a retreat from the protections against domestic violence offered by current law, in particular for immigrant victims, and from protections offered in the Senate-approved VAWA bill. They repeatedly cited a list of 325 national organizations that support the Senate's bill, but oppose the House bill. Republicans countered that the provisions in the Senate bill relating to particular categories of victims (such as gay or lesbian or Native American victims) were not necessary because, in their view, the bill's protections already apply to all persons who are victims of domestic violence. Several Republicans also questioned the constitutionality of the Senate bill's tribal jurisdiction provisions, while a number of Democrats spoke in favor of the tribal jurisdiction provisions. The National Congress of American Indians (NCAI) expressed great concern about the House-passed VAWA bill, both because it does not contain expansion of tribal jurisdiction and because it would bring federal courts into what is now the tribal arena with regard to protection orders. In an action alert transmitted on May 15, NCAI said that Indian victims can already seek civil protection orders in tribal courts regardless of whether the perpetrator is Indian or non-Indian, and that the federal protection order provision could cause federal courts to question tribal courts' power to issue such orders. NCAI also stated that the provision strays from VAWA's traditional victim-centered approach and that federal courts are often too far away to provide effective protection to domestic violence victims on Indian reservations. As of the end of May, the House and Senate had yet to resolve the differences between their two bills in a conference committee. House Rules Committee Chairman Dreier (R-CA), in ordering a closed rule on the House bill, said that outstanding VAWA issues could be addressed in conference and suggested that the final bill could move closer to the Senate-passed version. However, conferees had not yet been named for the VAWA conference, and House Speaker Boehner had notified the Senate that its VAWA bill is in violation of the rules. The Senate bill contains a revenue provision (a fee on immigrant visas), and under the Constitution revenue measures are to originate in the House. This procedural issue could delay the conference and/or tilt the conference toward the House measure (“House Narrowly Approves VAWA Legislation without Tribal Jurisdiction Provisions; Adds Federal Court Authority to Issue Protection Orders,” Hobbs Straus General Memorandum 12-067, May 18, 2012, downloadable at: GM_12-067 VAWA bill approved by House.pdf).

The House of Representatives unanimously passed HR 205, the "Helping Expedite and Advance Responsible Tribal Homeownership" Act (HEARTH Act), May 15, 2012, sponsored by Representative Heinrich (D-NM), that would amend 25 U.S.C. § 415, the statute that serves as the primary authority for leasing Indian trust lands, subject to approval by the Secretary of the Interior. As provided in the bill, a new subsection 415(h) would authorize any tribe, at its own option, to lease its tribal trust land without Secretarial approval, subject to certain limitations. To avail itself of this option, a tribe would have to adopt regulations governing the leasing process, which would be subject to approval by the Secretary. The standards for Secretarial approval of a tribe’s regulations would be set out in paragraph (3) of the new subsection 415(h). The Secretary is directed to approve a tribe’s regulations if they: (i) are consistent with any regulations issued by the Secretary under subsection (a) [of section 415] (including any amendments to the subsection or regulations); and
(ii) provide for an environmental review process that includes –
(I) identification and evaluation of any "significant" effects of the proposed action on the environment; and
(II) a process for ensuring that –
(aa) the public is informed of, and has a reasonable opportunity to comment on, any "significant" environmental impacts of the proposed action identified by the Indian tribe; and
(bb) the Indian tribe provides responses to relevant and substantive public comments on any such impacts before the Indian tribe approves the lease. The bill calls for an environmental review process under tribal law because, in the absence of a requirement for Secretarial approval, the review processes under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) would not apply, unless, that is, the proposed action requires some other federal agency action or involves federal funding. If a proposed action does involve federal funding, the bill would allow a tribe to rely on the federal agency's environmental review process in lieu of the process under the tribal regulations. In addition, the bill would authorize the Secretary, at the request of a tribe, to provide technical assistance for developing a regulatory environmental review process. Leases for business and agricultural purposes could be for a term as long as 25 years and could include an option to renew for up to two additional terms. Leases for public, religious, educational, recreational, or residential purposes could be as long as 75 years, if authorized in tribal regulations. Leases for exploration, development, or extraction of any mineral resources are excluded from the authority provided in the bill. Leases of individually owned allotted Indian lands are also excluded. If the bill becomes law, such leases will still require Secretarial approval. The exclusion of leases for energy minerals from the bill would not prevent tribes from leasing land for renewable energy purposes. As noted in the statement by Representative Markey (D-MA) in the Congressional Record, tribes could use the new leasing authority to expedite renewable energy projects such as solar and wind. The bill includes language on the federal trust responsibility, explicitly providing that the United States will not be liable for losses sustained by any party. In addition, the Secretary could enforce or cancel a lease if necessary to fulfill the trust obligation. The bill would allow an interested party, after exhaustion of tribal remedies, to petition the Secretary to review a tribe's compliance with its regulations. If the Secretary were to find a violation, approval of the tribal leasing program could be rescinded, after a hearing on the record and an opportunity for the tribe to cure the alleged violation. In addition to the amendments to the leasing statute, HR 205 would direct the Bureau of Indian Affairs to consult with tribes who have chosen to assume operation of the Indian Land Title and Records Office, and then prepare a report to Congress concerning the history and experience of those tribes. On the Senate side, a nearly identical bill, S 703, was marked-up in the Senate Committee on Indian Affairs on July 28, 2011, although a Committee report had not yet been issued, as of May 18, 2012. In mark-up, that Committee added an amendment by Vice Chairman Barrasso (R-WY) making some technical revisions, as well as an amendment by Chairman Akaka (D-HI) that would enact a fix for the Supreme Court’s decision in the Carcieri case (“Would Authorize Tribes to Lease Trust Lands without Secretarial Approval,” Hobbs Straus General Memorandum 12-066, May 18, 2012, downloadable at: GM_12-066_HEARTH_ActPassed_by_ House.pdf).

The House, February 6, 2012, approved a bill sought by the Quileute Tribe of Washington for 50 years, authorizing the tribe to move its school house and other buildings out of the tsunami danger zone and up into 785 acres of the Olympic National Park provided the tribe in the bill. A similar bill was pending in the Senate (“U.S. House OKs bill for Quileute move out of tsunmizone,” News From Indian Country, February 2012).

The Senate Committee on Indian Affairs and the House Resources Committee have been awaiting tribal approval of the proposed Little Colorado River Settlement Act of 2012 (SB 2109) before completing work on the water settlement act, but there is intense debate at both the Navajo and Hopi Nations on whether to approve the water rights settlement, as a number of public hearings and discussions have been unfolding at both nations. Navajo Nation Assistant Attorney General Stanley Pollack (whose views, whether correct or not, illuminate the arguments over the settlement and act in both nations) stated that he believed most of the objections to the settlement legislation were based on the following misconception: that the tribes were giving away water rights (because of the language of the bill about waving future claims in making the settlement. What is established are decreed water rights, recognized in court, that the tribes could not previously exercise). Pollack stated that the settlement provides for the construction of ground projects to supply the Navajo Leupp and Dilkon areas from the C-aquifer plus an unlimited amount of ground water in the area. In addition, the Navaho Nation can take as much water as it can capture from the Little Colorado River where it runs through the reservation, while the settlement prohibits upstream users from taking any more water than they are now using fron the river for irrigation, and non-Indian users of the river must obtain the consent of the Navajo Nation before building a new reservoir. There has been concern about limits on the Nation’s right to suit if there is environmental degradation of the water. Pollack says that the only limit is against suit if existing pollutants in the water become more concentrated because there is less water as a result of its use. The tribes maintain environmental protections in the settlement, and can act against any polluters. There is concern about provisions in SB 2109 concerning Peabody Coal and NGS, but these are not part of the settlement. Pollack says that these provisions say that if Navajo Nation does not renew the NGS lease, it will not receive water it has a right to by way of the Navajo-Gallup water supply for use at Window Rock. There is a concern that the Navajo Nation’s right to water is not quantified. Pollack says, in this case such a limit would limit the Nations’ water right to the specific number, which is not the case because the non-Indian users are specifically limited, leaving the tribes to use as much of the river as they wish to capture. There is concern that Congress will not allocate the money for the projects in the settlement. If it goes through, and Congress fails to budget for the money by 2022, the project is canceled. Not included in the settlement or the bill, according to other commentators, are two other proposed Navajo water projects, one in the Leupp/Dilkon area, one in the Ganado area. Similarly, Pollack says if Congress fails to do other specified things necessary for the nations to receive their water rights the settlement is canceled. This is a protection against abuse that Indian nations have suffered in the past, which concerns many tribal members in coming to a settlement. Also, the current settlement is separate form other not yet reached or existing settlements, including the San Juan settlement. On the Hopi side, the settlement would include a water project to bring water to all villages on its mesas. There are similar concerns among Hopis as among Navajos. In addition, long term internal Hopi political disputes are also involved. This includes Hotevilla’s village board rejecting the settlement for a number of reasons, and saying that the village, not the tribal council has authority over water and other local resources. This appears to be consistent with a 2010 Hopi appeals court decision finding “that the village of Hotevilla’s ‘aboriginal sovereignty’ is ‘outside the scope of authority of the Hopi Tribal Council’” (All from the Navajo Times: Alistair Mountz, “Water Attorney: We’re not giving anything away,” Alistair Mountz, “Questions continue at water bill town halls,” Candice Begody, “Shelly receives cool reception at Ganado,” and Alistair Mountz , “Much hurt, a little light at Pinion meeting,” April 26, 2012; Alistair Mountz, Hotevilla village board rejects water settlement,” May 31, 2012; Bill Donovan, “Tribe hires lobbyist to help sell Kyl bill,” Alistair Mountz, “Protests, rhetoric,” and Alistair Mountz, “Pressure on to approve water deal,” April 12, 2012; Marley Sherala, “Kyl-McCain water bill drawing fire,” and Alistair Mountz, “Hopis question pos and cons of water deal,” March 29, 2012; and Alistair Mountz, “Little Colorado settlement bill worries some leaders,” March 15, 2012).

The Senate Committee on Indian Affairs issued a report, May 17, 2012, explaining the need for legislation aimed at fixing the controversial 2009 U.S. Supreme Court Carcieri decision, while offering a strong rebuke of the court’s rationale, in the course of reporting out bill S 676 to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes. The purpose of the legislation is to clarify that the Secretary of the Interior, under the Indian Reorganization Act (IRA) of 1934, can legally take land into trust for all tribes that are federally recognized on the date their land is placed into trust. An amendment added to the bill, proposed by Senator Barrasso, would require a study by the Department of the Interior that “would identify the impact of the Carcieri decision on Indian tribes and tribal lands and publish a list of each affected Indian tribe and parcel of tribal land.” A pair of companion bills were introduced in the U.S. House in 2011 by Reps. Dale Kildee (D-MI) and Tom Cole (R–OK). The U.S. House Committee on Natural Resources held a legislative hearing on those bills in July 2011. Similar Carcieri fix bills introduced in the previous Congress did not become law (Rob Capriccioso, “Senate Carcieri Report Blames Supreme Court for Mess in Indian Country,” Indian Country Today, May 24, 2012, http://indiancountrytodaymedianetwork.com/2012/05/24/senate-carcieri-report-blames-supreme-court-for-mess-in-indian-country-114861).

The House Transportation and Infrastructure Committee voted to approve HR 2903, the FEMA Reauthorization Act of 2011, March 8, 2012, which contains a provision for Indian tribes to directly request a declaration of a disaster from the President rather than making this request indirectly through a state government. This provision has bipartisan support in the House of Representatives and the Obama Administration. It had not yet been considered by the Senate. On March 9, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), addressed the National Congress of American Indians echoing the President's support for the provision in HR 2903 and announcing the availability of a new Tribal Resource Guide on the agency's website. Previously (on March 1), the House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management marked up the bill. At the markup, Subcommittee Chairman Denham
(R-CA) offered an amendment in the nature of the substitute. This amendment included much of Congressman Rahall's (D-WV) tribal specific bill (HR 1953) to provide for Indian tribes to directly request a declaration of a disaster from the President. The substitute amendment was agreed to by voice vote. Under current law tribes must request that a disaster be declared through the state government. This not only flies in the face of the government-to-government relationship, but has led to delays in emergency assistance reaching affected tribes. Federal resources available cannot be released until a disaster has been officially declared by the President. The intent of the Rahall bill was to ensure that tribes have quick, direct access to federal assistance following a natural disaster. Inclusion of this language in the amendment offered by Chairman Denham signaled bipartisan support for the measure. Additional language included in HR 1953 dealing with waivers on cost sharing for tribes did not make it into the Denham substitute because it would have caused a score to the bill which would have then required spending offsets. However, the full Committee agreed to an amendment offered by Congressman Rahall, which would ensure that tribes are eligible for any cost sharing waivers or adjustments that are otherwise made available to state and local governments. HR 2309 provides for the reauthorization of the Federal Emergency Management Agency at current funding levels and would reauthorize the Dam Safety Program. Additionally, it includes a new provision that would modernize the Integrated Public Alert and Warning System (IPAWS) and integrate "comprehensive and periodic" IPAWS training for state, local and tribal officials into the current National Incident Management System (NIMS). The DHS's newly released Tribal Resources Guide was developed through the agency's Office of Intergovernmental Affairs to highlight some of the resources available to tribes including links to training; publications; guidance; alerts; newsletters; programs; and services. The DHS has indicated that this document is designed to be a "living document" that is regularly updated. The Tribal Resource Guide is available for download at the following link: http://www.dhs.gov/files/publications/tribal-resource-guide.shtm (“Bipartisan Bill to Authorize Tribes to Directly Request Disaster Declaration Advances; Secretary of Homeland Security Announces New Tribal Resource Guide,” Hobbs Straus General Memorandum 12-038, March 9, 2012, downloadable at: GM_12-038_FEMA.pdf).

Gale Courey Toensing, “Proposed IGRA Amendment Would ‘Sanction’ Extortion of Tribes,
Indian Country Today, February 16, 2012, http://indiancountrytodaymedianetwork.com/2012/02/16/proposed-igra-amendment-would-sanction-extortion-of-tribes-98401), reports that Representative John Sullivan (R-Oklahoma) introduced H.R. 4033, Giving Local Communities a Voice in Tribal Gaming Act, Feb. 15, 2012. that would amend the Indian Gaming Regulatory Act to give local governments veto power over Indian casinos offering Class III gaming even if the casino has been vetted and approved by the Interior Department and had a negotiated tribal-state gaming compact with the state. Many experts see the proposed act as an anti-Indian casino bill that would give local governments the power to shake down Indian nations for money. The proposed legislation states, “No Class III gaming activities may commence, irrespective of an approved Tribal-State Compact, unless the elected governing body and elected executive officials of each county, city, or other general purpose political subdivision in which a class III gaming activity under the Tribal-State Compact is to occur have approved the Class III gaming facility.” The bill would apply only to gaming to compacts entered into after January 1, 2011. Sullivan said the bill is intended to stop the Kialegee Tribal Town’s construction of the Red Clay Casino, a facility that was under review by Assistant Secretary-Indian Affairs Larry Echo Hawk. Meanwhile, the State of Oklahoma filed a lawsuit, February 8 to stop the Kialegee Tribe from continuing the construction, claiming that operation of a Class III casino on the Broken Arrow site would violate IGRA and a gaming compact between the Kialegee Tribal Town and the state signed, April 2011, because the property is not on the Kialegee Tribe’s “Indian lands.”

Oliver J. Semans New Land Bill Will Affect Tribes,” Indian Country Today, March 12, 2012, http://indiancountrytodaymedianetwork.com/ict_sbc/new-land-bill-will-affect-tribes, comments, that as initially developed by the U.S. House of Representatives on H.R. 1505, the National Security and Federal Lands Protection Act, should be called “Federal Land Grab” act, and if enacted as is, would have negative consequences for Indian nations, as well as for others, as it does not honor tribal sovereignty, and was drawn up without any consultation with Indian tribes, or invitation to testify at legislative hearings. “The sponsors of H.R. 1505 Representative Rob Bishop, a Republican of Utah District 1 as well as 54 other representatives’ cosponsors, want to give the U.S. Department of Homeland Security unprecedented power to build roads, fences, buildings, or even watchtowers on public land administered by the Departments of Interior and Agriculture. In fact here is what the bill reads; “States that the Secretary shall have immediate access to any public land managed by the federal government in order to conduct activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use patrol vehicles, and set up monitoring equipment.” The 28 Indian nations that would be impacted by the bill, including whose sacred sites could be plowed over, are: Bay Mills Indian Community (Michigan), Blackfeet Tribe (Montana), Grand Portage Band of Chippewa (Minnesota), Red Lake Band of Chippewa (Minnesota), Sault Ste. Marie Chippewa Tribe (Michigan), St. Regis Mohawk Tribe (New York), Aroostook Band of Micmac (Maine), Bad River Band of Lake Superior Chippewa (Wisconsin), Boise Forte Band of Chippewa (Minnesota), Confederated Tribes of the Colville Reservation (Washington), Fort Belknap Indian Community (Montana), Fort Peck Assiniboine & Sioux Tribes (Montana), Houlton Band of Maliseet (Maine), Jamestown S’Klallam Tribe (Washington), Kalispel Tribe (Washington), Keweenaw Bay Indian Community (Michigan), Kootenai Tribe (Idaho), Lower Elwha Klallam Tribe (Washington), Lummi Nation (Washington), Makah Tribe (Washington), Nooksack Tribe (Washington), Passamaquoddy Tribe (Maine), Penobscot Nation (Maine), Red Cliff Band of Lake Superior Chippewa (Wisconsin), Seneca Nation (New York), Swinomish Tribe (Washington), Tonawanda Seneca Tribe (New York), Turtle Mountain Band of Chippewa (North Dakota), Tuscarora Nation (New York), and Upper Skagit Tribe (Washington).

The American Indian Empowerment Act of 2011, H.R. 3532, was introduced in the U.S. House of Representatives November 30, 2011. The bill would, first, allow for federally recognized Indian tribes to request that lands held in trust for the tribe be conveyed to the tribe under restricted-fee status. Once the governing body of a tribe makes a request in writing, the Secretary of the Interior would have 180 days to complete the mandatory transfer. The tribal trust land would then be a restricted-fee parcel, subject only to restrictions against alienation and taxation. Second, the bill provides that the change in status of the land from trust to restricted-fee land would not affect its status as "Indian country" as defined in 18 U.S.C. § 1151. The bill contains two additional provisions on tribal authority over the restricted fee lands. An Indian tribe may lease, or grant easements and rights-of-way, on the restricted fee lands without any approval or review from the Secretary of the Interior. Finally, tribal law would preempt any federal law regarding the use of the restricted fee land. In order for tribal law to have such effect over federal law, however, the Secretary must publish the tribal laws in the Federal Register within 120 days after receiving a copy of the tribal laws from the tribe. (“Representative Young Introduces Legislation to Allow Tribes to Request, Accept, and Lease Restricted Fee Lands,” Hobbs Straus General Memorandum 11-145, December 8, 2012, downloadable at: GM 11-145 Rep. Young Introduces Bill on Restricted Fee Lands.pdf; and Rob Capriccioso, “American Indian Empowerment Act Introduced,” Indian Country Today, December 1, 2011, http://indiancountrytodaymedianetwork.com/2011/12/01/american-indian-empowerment-act-introduced-65350).

Representative Don Young (R-AK), Chairman of the House Subcommittee on Indian and Alaska Native Affairs introduced HR 3973, the Native American Energy Act, February 7, 2012, intended to spur conventional and renewable energy production on tribal lands by streamlining burdensome procedures. Section 3 of the bill would speed up the Department of the Interior's appraisal process for determining fair market value of lands or tribal assets by allowing a tribe to conduct its own appraisals or contract out the study to a third party. If a tribe were to conduct its own study, or hire a third party to conduct the study, then upon submission of the results to the Secretary of the Interior (Secretary), the Secretary would have 60 days to approve or disapprove the results. If the Secretary were to fail to act within 60 days, the appraisal would be deemed approved. In addition, a tribe could choose to waive an appraisal entirely by submitting a tribal resolution to the Secretary asking for the waiver and including an express waiver of any future claims for damages against the United States because the tribe did not get an appraisal. Section 4 of the bill would direct the Secretary to implement a uniform system of reference numbers and tracking systems for oil and gas wells. Section 5 of the bill would amend section 102 of the National Environmental Policy Act (NEPA), the statute that requires the preparation of an environmental impact statement (EIS) for any federal action that would "significantly affect the quality of the human environment." The bill's language would make some major changes to the review process when an EIS is required for a proposed federal action on Indian lands by providing that such an EIS would only be made "available for review and comment by members of the Indian tribe and by any other individual residing in the affected area." This change would apply to all federal actions that require an EIS, not just tribal energy development projects on Indian lands. The bill would also direct the Council on Environmental Quality (CEQ) to revise its regulations to implement this provision. Under the CEQ regulations, when an EIS is required, the lead federal agency must request comments from other federal, state, and local agencies, affected Indian tribes, the applicant, and the public. Moreover, the standard practice now is to post the EIS on the web. Section 6 of the bill would create at least five regional "one stop" Indian Energy Development Offices within the Interior Department. The Secretary is to consult with tribes before deciding where to locate the offices. The new offices would be responsible for streamlining the complex oil and gas permitting process by serving as a "one stop" shop for the rapid processing of all applications, permit, and licenses a tribe needs for an energy project from the Bureau of Indian Affairs, the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the Minerals Management Service, and the Office of Special Trustee for American Indians. Section 7 of the proposed legislation would prevent the BLM from collecting fees for (1) applications for permits to drill on Indian lands, (2) oil and gas inspections on Indian lands, and (3) nonproducing acreage on Indian lands. Limiting Lawsuits. Section 8 of the bill would discourage lawsuits or administrative challenges brought to block or delay tribal energy projects. The bill would require plaintiffs who lose their challenge to pay damages to defendants who were harmed by delays caused by the lawsuit. The bill would also require plaintiffs to post a bond equal to 30% of that amount that the court or agency considers is sufficient to compensate each defendant opposing the preliminary injunction or administrative stay for damages. The bill would also prevent successful plaintiffs from collecting attorney fees under the Equal Access to Justice Act. On February 15, 2012, the House Subcommittee on Indian and Alaska Native Affairs held a hearing in which all six tribal witnesses supported the bill. The witnesses were representatives of the Southern Ute Indian Tribe, the Northern Ute Indian Tribe, the Mandan, Hidatsa & Arikara Nation, the Arctic Slope Regional Corporation, the Shinnecock Nation, and the Navajo Nation Oil and Gas Exploration and Production Company. On April 19, 2012, the Senate Committee on Indian Affairs held a hearing on a related bill, S 1684, the Indian Tribal Energy Development and Self-Determination Act Amendments of 2011. The bill was introduced by Senate Committee on Indian Affairs Vice Chair John Barrasso (R-WY). The witnesses were representatives of the Southern Ute Indian Tribe, the Northern Ute Indian Tribe, the Mandan, Hidatsa & Arikara Nation, Colville Confederated Tribes, and the Navajo Nation Oil and Gas Exploration and Production Company. We will report on S 1684 separately (“Native American Energy Act Introduced in House of Representatives,” Hobbs Straus, General Memorandum 12-054, March 12, 2012, witch may be downloaded at: GM_12-054_IndianEnergyBillRepYoung.doc.pdf). The House Committee on Natural Resources, May 16, 2012, marked up HR 3973, the Native American Energy Act. At the mark up, the Committee adopted by voice vote an amendment offered by Representative Young (R-AK) which would exempt Indian lands from rules governing hydraulic fracturing unless a tribe first consents to the rules. The mark up followed an April 19, 2012 oversight hearing by the subcommittee on the BLM proposed rule on hydraulic fracturing. Representatives of seven Indian tribes and the National Congress of American Indians (NCAI) testified, and all expressed objections to the proposed regulations. Written testimony for this hearing is available at: http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=289030. A common objection was that BLM and the Interior Department did not properly consult with tribes as required by Executive Order 13175 and Departmental policy. (In the preamble of the proposed rule, BLM refers to tribal consultation as an ongoing process and notes that four tribal consultation meetings were held in January 2012, but it is apparent that quite a lot of work had been done on the proposed rule prior to those meetings.) Several tribal witnesses objected to BLM's proposal to apply standards developed for public lands to Indian lands. One witness, representing the Eastern Shoshone Tribe of the Wind River Reservation, where fracturing has been linked to contamination of ground water, questioned the ability of BLM to enforce compliance with the new rule and called for a stronger regulatory role for tribes. Another witness, representing the Turtle Mountain Band of Chippewa Indians, testified that the Tribe has banned fracturing on its reservation until it can be proven that it can be done without any impacts to water and it meets the Tribe's environmental laws. Nevertheless, the Tribe still objected to the proposed rule, regarding it as an intrusion on tribal sovereignty (“BLM Proposes New Rules on Hydraulic Fracturing on Public Lands and Indian Lands; House Natural Resources Committee Bill Would Exempt Indian Lands,” Hobbs Straus General Memorandum 12-068, May 25, 2012, downloadable at: GM_12-068_ProposedBLM_FrackingRules_forPublic_andIndianLands.pdf).

Representative Conyers (D-MI) introduced the End Racial Profiling Act, HR 3618, with 37 co-sponsors, December 8, 2011, that would ban racial profiling by police when making pedestrian or traffic stops, conducting investigations, or other activities that use race as a basis for taking an action. The bill would apply to all law enforcement agencies including tribal law enforcement. It would be enforceable by lawsuits for declaratory or injunctive relief but not money damages. Section 102 would authorize an individual or the U.S. Department of Justice to file a lawsuit for relief. Anticipating that a tribe could be sued for alleged racial profiling, Section 602 of the bill expressly states that it does not waive tribal sovereign immunity unless the tribe consents to the suit. Thus, the legislation would not allow an individual to sue a tribe as a result of alleged racial profiling by that tribe's police department without the tribe's consent. However, the U.S. Justice Department would be free to sue the tribe. Section 2(7) defines racial profiling as:
"…the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion - (i) in selecting which individual to subject to routine or spontaneous investigatory activities; or (ii) in deciding upon the scope and substance of law enforcement activity following the initial investigatory activity… [except] when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, gender or religion to an identified criminal incident or scheme." Section 2(8) explains that routine or spontaneous investigatory activities include interviews, traffic stops, pedestrian stops, frisks, consensual or nonconsensual searches, data collection and analysis, border entries, and immigration-related workplace investigations. Section 301 would require tribal law enforcement agencies seeking Department of Justice funds under either the Edward Byrne Justice Assistance Grant Program or Cops on the Beat Program to enact polices that (1) prohibit racial profiling; (2) include training for law enforcement on racial profiling; (3) collect data on routine investigatory activities; and
(4) participate in an administrative complaint procedure or independent audit program (“Racial Profiling Legislation Introduced in Congress,” Hobbs Straus General Memorandum 12-023, February 10, 2012, downloadable at: GM_12-023_RacialProfilingLegislation.pdf).

The U.S. Senate Committee on Indian Affairs held an Oversight hearing to discuss improvements to U.S. Government programs and services that assist American Indian, Alaskan Native and Native Hawaiian veterans, May 25, 2012, shortly ahead of Memorial Day, Chaired by a Veteran, Senator Daniel Akaka (D-HI). During the hearing, committee members, representatives of the Veterans Administration, Indian Health Services and other tribal leaders in Indian country acknowledged the contributions of and discussed several topics affecting Native veterans. Testimony was presented on the need for better access to health care for Native vets in rural areas, affordable and adequate housing and improved communications between the Veterans Administration and Indian Health Services. Among those offering commentary to the committee was Veterans Administration Office of Tribal Government Relations (OTGR) Deputy Director Stephanie Birdwell, who stated the VA was honoring President Obama’s Memorandum on Tribal Consultation as a “critical ingredient of a sound and productive Federal-Tribal relationship” and that the OTGR has been charged to develop partnerships with tribal governments to enhance access to services and benefits for Native veterans. Testimony was given stating that Native veterans living in rural areas are at a disadvantage because IHS facilities were often closer than VA facilities and eligibility for benefits were inconsistent between the two. One possible solution offered by the IHS is a VA Reimbursement for Services Provided by IHS to eligible American Indian and Alaska Native veterans. Currently, the IHS and the VA are reviewing tribal input and plan to proceed soon with the demonstration and national implementation of the reimbursement agreement (Vincent Schilling, “Senate Committee on Indian Affairs Oversight Hearing Addresses Needs of Native Veterans,” Indian Country Today, May 28, 2012, http://indiancountrytodaymedianetwork.com/2012/05/28/senate-committee-on-indian-affairs-oversight-hearing-addresses-needs-of-native-veterans-115096).

Federal Agencies

The Department of Justice (DOJ) announced a pilot program, June 6, 2012, establishing joint tribal-teams on six reservations in Montana, over the following six months, to reduce the high rates of sexual assault that plagues Indian Country. The teams will be composed of federal and tribal prosecutors, victims advocates, law enforcement officials, health care providers and others (“New Teams to Counter Sex Crimes on Reservations,” The New York Times, June 7, 2012).

The United States attorney for South Dakota, after repeated requests to the DOJ from the Oglala Sioux Tribal Government and tribal members, reopened enquiries into a series of deaths in open cases on the Pine Ridge Reservation from the 1970s, when the reservation was embroiled in political violence (Timothy Williams June 19, 2012, “New Inquiry of Deaths on Reservation in the 1970s,” The New York Times, June 19, 2012, http://www.nytimes.com/2012/06/20/us/new-inquiry-of-deaths-on-reservation-in-the-1970s.html?_r=1&ref=todayspaper).

The National Indian Gaming Commission (NIGC), after an extensive consultations process published discussion drafts of a set of regulations encompassing Technical Standards and Minimum Internal Controls (MICS). for Class II gaming, to receive comment until April 16, 2012, and then extended to April 27, 2012. The Technical Standards set the minimum requirements that manufacturers of Class II hardware and software must build into their products. This newest draft would modify existing regulations with the aim of providing increased clarity and direction. For more information go to the NIGC website at NIGC.gov (Joseph Valandra, “On Class II Gaming Regulations,” Indian Country Today, April 4, 2012, http://indiancountrytodaymedianetwork.com/ict_sbc/on-class-ii-gaming-regulations). NIGC is holding five consultations in June and July as part of its continued Regulatory Review process, offering an opportunity for tribal leaders and regulators to provide substantive input to the Commission on Group 3 regulations. The consultations are in Green Bay, Wisconsin on June 7; in Norman, Oklahoma on June 11; in Chandler, Arizona on June 27; in Brooks, California on July 11; and in Shelton, Washington on July 19 (”NIGC to Hold Regulatory Review Consultations in June and July,” Indian Country Today, May 4, 2012, http://indiancountrytodaymedianetwork.com/2012/05/04/nigc-to-hold-regulatory-review-consultations-in-june-and-july-111303).

The National Indian Gaming Commission ruled, in late May, that the Kialegee Tribal Town does not have the right to proceed with their planned Red Clay Casino on a privately owned Indian allotment in Broken Arrow, Oklahoma, because the commission determined the plot of land does not belong to the tribe. The parcel is allotted to the Muscogee (Creek) Nation. While the Kialegee is a branch of the tribe, the rule is that gaming cannot occur on Indian land that does not belong to the exercising tribe (“NIGC Rules Against Kialegee’s Controversial Red Clay Casino,” Indian Country Today, May 29, 2012, http://indiancountrytodaymedianetwork.com/2012/05/29/nigc-rules-against-kialegees-controversial-red-clay-casino-115396).

The Oglala Sioux Tribe and the National Park Service, after 40 years of discussion, were close to completing plans for a jointly administered 133,300 acres Badlands National Park on the Pine Ridge Indian Reservation, in the South Unit of Badlands National Park, the area lies entirely within the Pine Ridge Indian Reservation. If the completed co-management arrangement is approved by Congress, this would be the first Indian nation national park in the U.S. (“A Park on Pine Ridge: A Longtime Partnership May Finally Lead to the United States’ First Tribal National Park,” Indian Country Today, April 19, 2012, http://indiancountrytodaymedianetwork.com/2012/04/19/a-park-on-pine-ridge-a-longtime-partnership-may-finally-lead-to-the-united-statess-first-tribal-national-park-109076).

The annual, Lakota, Salt Creek, IN Sun Dance, after being in the Hoosier National Forest, near Freetown, IN, for 20 years, moved to private land in southern Indiana, ceremony leaders say, because increasing Forest Service regulation made it impossible to continue the ceremony in the Hoosier National Forest. A Sun Dance leader stated that in the early years the forest’s management was very supportive of the ceremony, but with a change in management came increasing regulation, making it more difficult to carry out the ceremony and leave the site as it had been found. The final regulation, forcing the move, was a requirement that the site be vacated fully within six days of the ceremony’s completion, on a Saturday. As most of the people involved work, that would have made it impossible to complete a thorough cleanup, including taking down the arbor, which would have had to have been accomplished on the following weekend (E-mail communication from Salt Creek Sun Dance Leaders).

U.S. Department of the Interior Secretary Ken Salazar announced, March 6, that three sites significant to American Indians were added to the registry of National Historic Landmarks, the Theodore Roosevelt School in Fort Apache, AZ, Deer Medicine Rocks in Rosebud County, MT and the Akima Pinšiwa Awiiki in Fort Wayne, IN (“Three Sites Important to Native History Named National Landmarks,” Indian Country Today, March 16, 2012, http://indiancountrytodaymedianetwork.com/2012/03/16/three-sites-important-to-native-history-named-national-landmarks-103172).

Larry Echo Hawk, the Interior Department’s Assistant Secretary for Indian Affairs, announced, December 20, 2011, that the Bureau of Indian Affairs (BIA) had approved a land-into-trust application for gaming for the Keweenaw Bay Indian Community of Michigan, for off reservation trust land for a proposed casino in Marquette County, MI, and had denied an application for the Cayuga Nation of New York for the acquisition of trust land for a casino in Seneca County, NY, because it was incomplete, but the nation could submit a new application when it was able to address all of the application requirements (Gale Courey Toensing, “EchoHawk Approves One Gaming Site, Rejects Another,” Indian Country Today, December 29, 2011, http://indiancountrytodaymedianetwork.com/2011/12/29/echo-hawk-approves-one-gaming-site-rejects-another-70001). The Department of the Interior (DOI) announced in the Federal Register, February 3, 2012, the draft plan for implementation of the Cobell Land Consolidation Program is available for review and comment; with the first meeting of the National Commission on Indian Trust Administration and Reform (Commission) scheduled for March 1-2, 2012 in Washington, DC, at the Department of the Interior, and open to the public. The draft plan sets forth the proposal for spending the $1.9 billion set-aside (less $60 million to be transferred for an Indian scholarship fund) from the $3.4 billion Cobell settlement that will be used for the voluntary buy-back and consolidation of fractionated land interests which will then be transferred to tribes. The draft plan was developed in consultation with tribes and individual Indians. The 36-page draft plan is available at http://www.doi.gov/cobell/upload/FINAL-DRAFT-Cobell-Land-Consolidation-P.... The DOI news release states that the Commission is to complete a "comprehensive evaluation of Interior's management and administration of the trust assets, as well as recommendations for improvement." Members of the Commission are: Fawn R. Sharp, Commission Chair and President of Quinault Indian Nation; Dr. Peterson Zah, former President of the Navajo Nation; Stacy Leeds (Cherokee Nation), Dean and Professor of Law at the University of Arkansas School of Law; Tex G. Hall, Chairman of Three Affiliated Tribes; and Bob Anderson (Minnesota Chippewa Tribe), Professor of Law and Director of the Native American Law Center–University of Washington (“DOI Seeks Comments on Draft Cobell Land Consolidation Plan; First Meeting of National Commission on Trust Reform Scheduled,” Hobbs Straus General Memorandum 12-019, February 3, 2012, downloadable at: GM_12-019TrustLandMtg-plan.pdf). On May 25, 2012, The BIA announced that Acting Assistant Secretary for Indian Affairs Donald “Del” Laverdure has approved the Ione Band of Miwok Indians’ application to have approximately 228 acres of land in Amador County, California, taken into trust on its behalf for gaming purposes, under the “equal footing exceptions” provision of the Indian Gaming Regulatory Act (IGRA), while announcing the denial an application from the Scotts Valley Band of Pomo Indians to take approximately 30 acres of land into trust for a gaming facility under IGRA’s “restored lands” provision, in an unincorporated area of Contra Costa County, approximately 80 miles south of the tribe’s headquarters near Lakeport, CA (Gale Courey Toensing, “BIA Approves Ione Band’s Gaming Land Application; Denies Scotts Valley Band,” Indian Country Today, May 27, 2012, http://indiancountrytodaymedianetwork.com/2012/05/27/bia-approves-ione-bands-gaming-land-application-denies-scotts-valley-band-115280).

The Office of the Assistant Secretary–Indian Affairs published a notice, March 12, 2012, in the Federal Register, announcing that a series of tribal consultations will be held on several issues that impact Indian Affairs (IA), Bureau of Indian Affairs (BIA), and the Bureau of Indian Education (BIE). Specifically, tribal/tribal organization input is sought on: 1) Administrative Organizational Assessment Draft Report which is a third-party evaluation of administrative support structures for the BIA and BIE that resulted in a "baseline analysis and initial conclusions that alternative options should be considered" for such structures. The draft report also identifies possible service delivery options, provides recommendations, and best business practice options, including peer agency (IHS, Fish and Wildlife Service, National Park Service, Forest Service, and Executive Office for the United States Attorneys) best practices that could be adapted to Indian Affairs. Section III of the report presents the evaluator's findings regarding IA's operational efficiency and effectiveness; delivery options to address the findings; and recommendations on a course of action, including an implementation plan, in the areas of budget and financial management; acquisition and contract management; property management and building maintenance; human resources; safety management; and communications. The draft report is available at http://www.indianaffairs.gov/idc/groups/public/documents/text/idc017342.pdf. 2) BIA Streamlining Plan, with particular focus on consolidation of agency or field offices with minimal staffing and/or services, and consolidation of regional office programs or services to achieve efficiencies. The streamlining efforts are, in part, driven by the FY 2013 Indian Affairs budget proposal that an anticipated $15 million reduction in administrative costs would be realized through department-wide and program streamlining efforts. A proposed streamlining plan has not yet been released. 3) BIE Streamlining Plan, with particular focus on efforts that would help meet "imminent budgetary constraints" and improve the educational program quality. The BIE is also expected to meet administrative costs reductions totaling $5 million. A proposed streamlining plan had not yet been released but the Assistant Secretary has stated in a memorandum to employees that some ideas include:
-- creating up to four regional comprehensive educational centers aligned with the current Associate Deputy Directors offices
-- eliminating Education Line Offices in lieu of creating the regional comprehensive educational centers
-- realigning BIE Division of Performance and Accountability and Division of Administration staff to the centers
-- transferring some key staff from both of the above-mentioned Divisions to BIE Central Office-Washington. 4) Johnson-O'Malley (JOM) Student Count Update, as required by the FY 2012 appropriations House Report, tribal input is sought on the updating on the number of students eligible for the JOM program. No proposed process on which to comment was provided. 5) Draft SF42B Assurance Statement–Non Construction Programs, which is used with Tribally Controlled Grant Schools to transfer funds. The draft SF42B had not been provided but comments are sought on the proposed assurance statement: Will comply with all applicable statutory and regulatory requirements of the Elementary and Secondary Education Act (ESEA), also known as the No Child Left Behind (NCLB) Act of 2001, and Individuals with Disabilities Education Act (IDEA). The dates and places of the consultations were: April 12–13, 2012 Miami, FL – Miccosukee Resort and Gaming April 19–20, 2012 Scottsdale/Fountain Hill, AZ – Radisson Fort McDowell Resort Hotel April 26–27, 2012 Airway Heights, WA – Northern Quest Resort & Casino May 3–4, 2012 Rapid City, SD – Holiday Inn Rapid City-Rushmore Plaza May 10–11, 2012 Durant, OK – Choctaw Casino Resort May 17–18, 2012 Lincoln, CA – Thunder Valley Casino Resort (“Indian Affairs to Hold Tribal Consultations on Draft Organizational Assessment Report, BIA Streamlining, BIE Streamlining and other BIE Topics,” Hobbs Straus General Memorandum 12-041, March 16, 2012, downloadable at: GM_12-041_IAconsultation.pdf).

The Department of the Interior published a notice in the Federal Register, May 3, 2012, announcing a proposed new categorical exclusion to be added to the procedures of the Bureau of Indian Affairs compliance with the National Environmental Policy Act (NEPA). 77 Fed. Reg. 26314 (copy attached), with comments accept until June 4, 2012. This proposed categorical exclusion was previously announced in a "Dear Tribal Leader" letter dated March 7, 2012 (see Hobbs Straus General Memorandum 12-045, March 23, 2012, which discusses this proposal in detail). The proposed wording of the new categorical exclusion, which is identical to the wording in the Dear Tribal Leader letter, is as follows: "Approvals of leases, easements, or funds for single-family home sites and associated improvements, including, but not limited to, homes, outbuild- ings, access roads, and utility lines, which encompass five acres or less of contiguous land, provided that such sites and associated improvements do not adversely affect any tribal cultural resources or historic properties and are in compliance with applicable Federal and tribal laws." "The intent of this categorical exclusion is to improve the efficiency of a routine environmental review process for approval of new home construction on Indian land." The practical effect of adopting this new categorical exclusion would be that compliance with NEPA would no longer require an environmental assessment (EA). In addition to reducing the time needed for BIA approval, this should avoid the costs associated with preparing an EA (“Proposed Categorical Exclusion for Indian Homesites Published for Comments,” Hobbs Straus General Memorandum 12-060, ay 4, 2012, downloadable at: GM_12-060_BIApublishesExclusion_forHomesites.pdf).

The Deputy Solicitor for the Department of the Interior (DOI) wrote to the National Labor Relations Board (NLRB), December 7, 2011, requesting a meeting to discuss whether the NLRB would reconsider its position on its jurisdiction over Indian tribal gaming enterprises. Deputy Solicitor Patrice Kunesh explained that she was prompted to write the letter in light of the productive tribal leaders summit with the White House in early December and the Obama Administration's reaffirmation of its commitment to tribal sovereignty (a copy of the letter is in the download). In 2004, over tribal opposition, the NLRB concluded in the San Manuel decision that it had jurisdiction over tribal gaming operations. The U.S. Court of Appeals for the D.C. Circuit upheld the decision in 2007. Since 2004, numerous bills and floor amendments have been introduced in Congress to stay or overturn the NLRB decision but none have been successful. For instance, in this Congress, Representative Kristi Noem (R-SD) has introduced HR 2335, the Tribal Labor Sovereignty Act of 2011 (See our General Memorandum11-085 of June 30, 2011). The DOI is seeking an opportunity to convince the NLRB to change its position in favor of tribes. The Department cited the Tenth Circuit Court of Appeal's view that the NLRB does not have jurisdiction over tribes expressed in its 2002 San Juan decision and reiterated in its 2010 Dobbs decision (resolving an Employee Retirement Income Security Act claim). The Department did not cite a 2011 federal district court decision, Chickasaw Nation v. NLRB, in which the court issued a preliminary injunction against the NLRB from proceeding with an unfair labor practice hearing against the Chickasaw Nation. See our General Memorandum 11-089 (July 15, 2011). The Department also asks that the NLRB stop filing unfair labor practice charges against tribes and drop current charges that have already been filed. Tribes generally find the letter a welcome development, and while it is uncertain whether the NLRB will accept the DOI's request to meet, the letter signals a strong element of support for tribes from within the Obama Administration. Hobbs Straus notes “that there is a serious question as to whether the NLRB even has the necessary quorum to issue decisions or reverse previously taken positions. On January 4, 2012, President Obama made three recess appointments to the NLRB while the Senate was on break but still holding pro forma sessions to avoid going into recess. Republican leaders argue that those appointments are invalid. The appointments are likely to be challenged in court” (“Interior Department asks NLRB to Exempt Indian Tribes from Regulation,” Hobbs Straus General Memorandum 12-008, January 13, 2012, downloadable at: GM 12-008 DOI-NLRB Ltr.pdf).

The Bureau of Indian Affairs (BIA) published a proposed rule, November 29, 2011, to make amendments to 25 CFR Part 162, governing the review and approval process for leases of Indian lands (76 Fed. Reg. 73784). The BIA consulted with tribes on a pre-publication draft of the proposed rule (See Hobbs Straus General Memorandum 11-034, March 18, 2011). The proposed rule reflects numerous comments from tribes. The proposed rule and several related documents are available on the BIA website at: www.bia.gov/WhoWeAre/AS-IA/Consultation/index.htm. The other documents on the website are: a Dear Tribal Leader letter; Tribal Consultation Supplement (which summarizes the proposed rules); BIA Responses to Comments Received during Tribal Consultation Comparison Chart between Existing Rule and Proposed Rule; Frequently Asked Questions; and Redline Version of Part 162 Showing Proposed Changes. The deadline for filing comments was January 30, 2012. The proposed rule would make extensive changes in Part 162. In the existing regulations, all leases for non-agricultural purposes are subject to the same regulations. The proposed would add new separate subparts to address residential leases, business leases, wind resource evaluation leases, and wind and solar resource development leases. The existing subpart for non-agricultural leases would be removed. The proposed rule would make a number of important changes, including establishing deadlines for BIA action and limiting the grounds on which BIA could disapprove lease documents. Certain kinds of subleases would no longer require BIA approval; other kinds of subleases would be deemed approved if not expressly disapproved within the specified deadline. Permits for temporary uses of Indian land would no longer require BIA approval as would certain kinds of land assignments. In the matter of determining the amount of rent for leased land, the existing rule requires an appraisal unless BIA grants a waiver; the proposed rule would defer to a tribal decision for tribal land and would provide some flexibility for individually-owned Indian land. The proposed rule would also allow BIA to waive the requirement for a performance bond and would eliminate the performance bond requirement for leases for housing for public purposes. With respect to enforcement of compliance with leases, the proposed rule would require BIA to consult with landowners prior to taking certain kinds of enforcement actions. The proposed rule states that improvements on trust or restricted land are not taxable by states or localities, without regard to ownership. Proposed §§ 162.315(c), 162.415(c), 162.515(c). This point is discussed in the preamble to the proposed rule (76. Fed. Reg. 73785) as follows: These regulations are intended to preempt the field of leasing Indian lands. The Federal statutory and regulatory scheme for leasing, including the regulation of improvements, is so pervasive as to preclude the additional burden of State taxation. The assessment of State taxes would obstruct Federal policies supporting tribal economic development and self-determination, and tribal interests in effective tribal government and economic self-sufficiency. New Subpart C – Residential Leases would govern leases for single family homes and housing for public purposes. There are two key features of the proposed rule that are of particular importance to tribal housing programs. First, the proposed rule would establish timelines for BIA to act on leases, lease assignments, amendments, and subleases. For residential leases and assignments, BIA would be required to act within 30 days (with one 30 day extension), and BIA's failure to act on a lease or assignment within that time period, could be appealed by the tribe or tribally designated housing entity (TDHE) pursuant to 25 C.F.R. part 2. For residential lease amendments and subleases, the proposed rule would adopt a "deemed approved" framework: if BIA does not take action within a specific timeframe (30 days plus one 30 day extension), the amendment or sublease will be "deemed approved." In the earlier draft, leasehold mortgages were also subject to the "deemed approved" approach; in the new draft, leasehold mortgages can no longer be "deemed approved," because BIA received comments indicating that lenders who seek leasehold mortgages rely on BIA approvals. The Administration has touted this provision in its press statements on the proposed rule, and this addresses one of the key concerns raised in the comments on the draft: that BIA takes too long to approve leases and that such delays substantially impair development of housing (as well as business activities under other regulatory provisions). The proposed rule also states, however, that any provisions of the lease that are not consistent with federal law will not be considered to have been "deemed approved," leaving some uncertainty as to just what has been approved in the "deemed approved" process. A second important feature of the proposed rule is that it would exempt subleases for public housing purposes from the requirement for BIA approval. This means that any lease between a TDHE and a low-income tenant or homebuyer (which is technically a sublease from the master lease between tribe and TDHE) would not require approval. In order to be exempt from BIA approval requirements, however, the sublease must meet three conditions: (1) the master lease must expressly state that BIA approval of subleases is not required; (2) BIA must have "approved a general plan for development" for the parcel, and (3) BIA must have also approved a sublease form and general rent schedule. These conditions, the terms of which are not described in any detail, would appear to involve BIA playing a not insignificant role in affordable housing activities by tribes and TDHEs. New Subpart D – Business Leases would govern leases for commercial or industrial leases for retail, office, manufacturing, storage, biomass energy, waste-to-energy, and other business purposes. In addition, this subpart would govern leases for: (1) residential purposes not covered by Subpart C; (2) business purposes not covered by Subpart E (wind energy evaluation, wind and solar resource development; and (3) religious, educational, recreational, cultural, and other public purposes. For leases covered by Subpart D, BIA would have 60 days to make a decision on a complete lease application, although BIA could notify the applicant that it needs more time. Failure by BIA to meet the deadline could be appealed. Subpart E – Wind and Solar Resource Leases would establish procedures for obtaining BIA approval of wind energy evaluation leases (WEELs) and wind and solar resource (WSR) development leases. A WEEL would be a new kind of short term lease to allow for possession of Indian land for the installation of equipment such as meteorological towers to evaluate the wind resource. The environmental review for a WEEL could be limited to the impacts of doing the evaluation, i.e., it need not consider the impacts of developing the wind resource. For solar resource development, the proposed rule would not establish such a two-step process because evaluating the solar resource does not require taking possession of the land. The approval timeframe for a WEEL is 30 days; for a complete WSR development lease application it would be 60 days. In response to tribal concerns that certain provisions could be interpreted to render state law applicable, proposed section 162.013 was revised to say that state law applies only "in the specific areas and circumstances in Indian country where Congress or a Federal court has made it expressly applicable." In addition, proposed section 162.014 was revised to say that, unless "contrary to Federal law," BIA will comply with tribal laws, including those relating to land use, environmental protection, and historic or cultural preservation. A number of changes have been made in the proposed rule in response to tribal comments on valuation and fair market rental. One change was to separate the requirements for tribal land from the requirements for individually-owned Indian land. The basic reasoning is that if a tribe agrees to accept less than fair market value, BIA should defer to the tribe's judgment. The "Response" document also clarifies that it is permissible for a tribe to negotiate developer fees under tribal law. With respect to adjustments of rent, the proposed rule has been changed to allow tribes to include automatic adjustment clauses and thereby avoid periodic review of the adequacy of rent. A number of changes were made in the provisions relating to residential leases in response to comments from tribes and coordination with the Department of Housing and Urban Development (HUD). The revisions are summarized in a table in the "Response" document. Among other changes, the proposed rule was revised to allow for assignments and subleases without BIA approval in certain circumstances. The new subpart relating to Wind and Solar Resource leases was substantially changed in response to tribal comments. One such change is that a short-term agreement for evaluation of a wind resource is now recognized to be a kind of lease; such agreements had been called "permits" in the pre-publication draft. In response to tribal comments regarding compliance with the National Environmental Policy Act (NEPA), the "Response" document notes that the environmental review for an evaluation lease can be less detailed than for a development lease. A point not raised is that BIA could consider a revision to its NEPA implementing procedures (516 DM 10) to establish a categorical exclusion for wind energy evaluation leases. Such a change is outside the scope of the proposed rule but would be a complementary action to expedite BIA approval of such leases. The "Response" document discusses a number of other topics, including mandatory lease provisions; bonding and insurance; surveys; enforcement; due diligence; payment; improvements on leased land; the applicability of the regulations (and the range of tribal activities that are not covered); compatible uses; appeals; the "general" provisions; and cross-cutting issues. As announced in the Dear Tribal Leader letter, three consultation sessions were planned: Seattle, WA, January 10; Palm Springs, CA, January 12; and Rapid City, SD, January 18m with Written comments due by January 30 deadline (“BIA Publishes Proposed Rule Amending Leasing Regulations; 60-Day Comment Period,” Hobbs Straus General Memorandum 11-147, December 13, 2011, downloadable at: GM_11-147_BIA_ProposedLeasingRegs.pdf).

The Crow Tribe Apsáalooke Nation, the U.S. Department of the Interior, and the State of Montana signed the Crow Tribe-Montana Water Rights Compact in Washington, D.C., April 27, 2012. The compact seeks to resolve more than three decades of controversy, ensure safe drinking water for the reservation, and provide for the rehabilitation of the Crow Irrigation Project according to a release prior to the event (“Crow Tribe Signs Water Rights Compact With Montana and US,” Indian Country Today, May 2, 2012, http://indiancountrytodaymedianetwork.com/2012/05/02/crow-tribe-signs-water-rights-compact-with-montana-and-us-111098).

The Fish and Wildlife Service (FWS) published a notice of proposed rule changes to its regulations establishing permit conditions for the non-purposeful taking of bald and golden eagles under the Bald and Golden Eagle Protection Act (Eagle Act) in the Federal Register, April 13, 2012, with comments on the proposed changes to be submitted by May 14, 2012. In a separate Federal Register notice the FWS requests comments on three other questions related to the permitting process under the Eagle Act, with the deadline for comments July 12, 2012. The FWS proposes to amend the regulations as follows, in order to "facilitate the responsible development of renewable energy and other projects designed to operate for many decades":
(1) Extend the term of a "programmatic" take permit to up to 30 years. The current maximum term is 5 years.
(2) Incorporate additional mitigation measures that would be triggered if eagle takings are more than the anticipated levels at the time of the permit being granted, to account for the maximum term being increased. The FWS has not specified what types of mitigation measures would be required.
(3) Amend the rules on rights of succession and transferability of Eagle Act programmatic permits to be more analogous to "incidental take" permits under the Endangered Species Act.
(4) Substantially increase permit and administration fees. However, government agencies, including tribal government agencies, would still be exempt from these fees. Private entities would be subject to as much as a $35,000 or more increase in fees. The second FWS notice requests comments on other areas of the Eagle Act permit regulations that are not addressed above. The FWS lists three areas in which comments would be helpful: (1) Clarifying the criteria for issuance of programmatic and standard permits, (2) Compensatory mitigation, and (3) the Eagle Act preservation standard (“Fish and Wildlife Service Proposes Changes to Programmatic Take Permit Regulations under the Bald and Golden Eagle Protection Act,” Hobbs Straus General Memorandum 12-053, April 20, 2012, which may be downloaded at: GM_12-053_EagleActTakingsPermitProposedRuleChanges.pdf).

The U.S. Fish and Wildlife Service (USFWS) has inviting federally recognized tribes to submit project proposals for the Tribal Wildlife Grant (TWG) program to be submitted through Regional USFWS offices and must be postmarked no later than September 4, 2012.. The TWG program is designed to fund tribal projects which benefit wildlife and their habitat, particularly to protect those species which have cultural or traditional importance and are not hunted or fished. In FY 2012, TWG program funding was $4.2 million and 23 projects were funded. This is a decrease from FY 2011 when program funding was $6.9 million and 38 projects were funded. Congress has not yet agreed to FY 2013 spending levels but the USFWS notice assumes that the funding level for this program will be similar to the FY 2012 level. The maximum project award size is $200,000 and $25,000 is the minimum. Due to the large number of applicants each year, less than 20% of proposals are funded. The full FY 2013 TWG Application Kit may be found at: http://www.fws.gov/nativeamerican/graphics/TWG_APPLICATION_KIT.pdf (“U.S. Fish and Wildlife Service Seeks Project Proposals for Tribal Wildlife Grant Program,” Hobbs Straus, General Memorandum 12-059, May 4, 2012, downloadable at: GM_12-059_USFWS_FY 2013TWGsolicitation.pdf).

The Environmental Protection Agency (EPA) published a final rule, effective on the date of publication, in the Federal Register, April 19, 2012, which requires the owners or operators of facilities located in Indian Country to report the use of toxic chemicals to the appropriate tribal government of their relevant area, rather than the state. The new rule also clarifies that tribal governments may request that EPA require a non-covered facility located in Indian Country to submit Toxics Release Inventory (TRI) forms. Tribes also may petition EPA to add a chemical to the TRI list, or to delete a chemical from the TRI list, just as states are authorized to do. The requirement that facilities located in Indian Country report to the affected tribal government is effective beginning with reporting year 2012, for which TRI reports will be due by July 1, 2013. The final rule is adopted under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), which establishes requirements for federal, state and local governments, Indian tribes, and industry regarding emergency planning and publicly available information on hazardous and toxic chemicals. Section 313 of EPCRA establishes that facilities using hazardous chemicals at quantities above specific threshold levels must complete a TRI Form annually. The report must include the name and location of the business; whether the chemical is manufactured, processed or otherwise used; the amount of the chemical present during the preceding year; the quantity of the chemical entering the air, land and water annually; and waste treatment and disposal. EPA maintains a national TRI database summarizing all of the information reported which informs government officials and the public about releases and other waste management of toxic chemicals in their locality, Indian Country area, and the state. The EPCRA, EPA rules and guidance, as well as the related Chemical Accident Prevention Program (authorized under the Clean Air Act), have a number of other important provisions regarding planning and preparing for chemical hazards and release emergencies, including: authorizing tribes to appoint Tribal Emergency Response Commissions (TERCs), to ensure the development of a contingency plan for the community to prepare for and respond to emergencies in the event of a chemical accident; requiring submittal of information about chemicals to TERCs and local fire departments; notification requirements for chemical releases above certain threshold levels; authorizing tribes to be treated as states under the Clean Air Act for purposes of the Chemical Accident Prevention Program. The information required by EPCRA and the Chemical Accident Prevention Program offers tribes, tribal communities, and local fire departments a better understanding of chemical risks within Indian Country and adjacent state lands, as well as the ability to play a significant role in planning for emergencies. The following is a link to an EPA fact sheet \"Chemical Emergency Preparedness and Prevention in Indian Country\": http://www.epa.gov/emergencies/docs/chem/tribalalert.pdf. Finally, under the new rule, tribes may choose how they would like to receive reports. EPA will request that tribes provide a mailing address and contact name to be published on the TRI Web Site. Tribes can also choose to allow electronic submittal of TRI reports. If a tribe becomes a member of the internet-based TRI Data Exchange, then the facility can meet its dual EPA and Tribal reporting requirements by submitting its TRI report to EPA via web-based site. This option is further explained in the preamble portion the final rule (“EPA Issues Rule Requiring Toxic Release Inventory Reporting to Tribal Governments,” Hobbs Straus General Memorandum 12-056, April 27, 2012, which may be downloaded at: GM_12-056_EPA_IssuesFinalRule_onToxicReleaseInventoryReporting_forTribes.pdf).

The Office of Indian Energy Policy & Programs, announced the addition of three Tribes to the Department of Energy’s (DOE) Indian Country Energy & Infrastructure Working Group (ICEIWG) on Energy.gov, June 20, 2012, the Ho-Chunk Nation of Wisconsin, Crow Tribe of Montana and Tlingit and Haida Tribes of Alaska. The working group, now composed of eight Indian nations, was created, in May 2011, to unite American Indian and Alaska Native Tribes from across the country to accelerate clean energy project development in Indian Country, currently through the Strategic Technical Assistance Response Team (START) Program of DOE, to share best practices and discuss emerging markets and opportunities for innovative public-private partnerships, (See the blog, “Tackling Energy Problems for America’s Tribal Nations” (“Three Tribes Join Working Group to Advance Clean Energy Development in Indian Country,” Indian Country Today, June 22, 2012, http://indiancountrytodaymedianetwork.com/2012/06/22/three-tribes-join-working-group-to-advance-clean-energy-development-in-indian-country-119828).

The Bureau of Land Management (BLM) published a proposed rule, May 11, 2012, to update its regulations governing oil and gas operations on public lands and Indian lands in order to regulate hydraulic fracturing with a deadline for filing comments of July 10, 2012. The proposed rule was the subject of an oversight hearing by the House Committee on Natural Resources, Subcommittee on Indian and Alaska Native Affairs, followed by the Committee taking action to exempt Indian lands from the proposed rule (reported above in Legislative Actions). Hydraulic fracturing, a process that involves the injection of fluids under high pressure to extract oil and gas from rock formations, has become an increasingly common practice in several regions of the country. BLM estimates that, at present, fracturing is used in 90% percent of wells drilled on public and Indian lands. The growth of this practice has been accompanied by growing public concern about impacts on the environment and on human health. As summarized by BLM, these concerns include: "whether fracturing can allow or cause contamination of underground water sources, whether the chemicals used in fracturing should be disclosed to the public, and whether there is adequate management of well integrity and the 'flowback' fluids that return to the surface during and after fracturing operations." In addition to regulating the extraction of oil and gas on public lands, BLM also regulates oil and gas operations on trust and restricted Indian lands, exercising the authority of the Secretary of the Interior pursuant to the Indian Mineral Development Act of 1982. The existing regulations governing both public and Indian lands (43 C.F.R. part 3160) include some provision on hydraulic fracturing, provisions that have been unchanged since 1988. BLM now proposes to update these regulations to take into account the expansion in the use of hydraulic fracturing in recent years. BLM proposes to establish the same set of standards for public lands and for Indian lands. States and tribes could establish more stringent requirements. Key features of the proposed regulations include: Fracturing (and other well "stimulation" activity) would require prior approval by BLM (which, for new wells, would be combined with the application for permit to drill); Wells used in fracturing would be required to meet construction standards; Public disclosure of chemicals used in fracturing would be required after, but not before, operations; and
• Operators would be required to have plans for managing "flowback" waters (“BLM Proposes New Rules on Hydraulic Fracturing on Public Lands and Indian Lands; House Natural Resources Committee Bill Would Exempt Indian Lands,” Hobbs Straus General Memorandum 12-068, May 25, 2012, downloadable at: GM_12-068_ProposedBLM_FrackingRules_forPublic_andIndianLands.pdf).

The Office of Personnel Management (OPM) released a Dear Tribal Leader letter, December 21, 2011, regarding the implementation of Section 409 of the Indian Health Care Improvement Act (IHCIA), Access to Federal Insurance. The Letter along with all attachments discussed below may be viewed at www.opm.gov/tribalprograms. Section 409 of the IHCIA provides that tribes and tribal organizations carrying out programs under the Indian Self-Determination and Education Assistance Act (ISDEAA), and urban Indian organizations carrying out programs under Title V of the IHCIA, are eligible to purchase Federal Employee Health Benefits and Federal Employees Group Life Insurance (FEGLI) coverage. Implementation of the FEGLI program will follow after implementation of the FEHB Program. 1. Upcoming Deadlines for FEHB Coverage: Tribes carrying out programs under the ISDEAA and Title V may begin to enroll their employees on March 22, 2012, for an effective date of coverage on May 1, 2012. All tribes, tribal organizations, or urban Indian organizations that wish to participate in the FEHB Program with a May 1, 2012, effective date must notify OPM by February 1, 2012. To notify OPM, please email tribalprograms@opm.gov. Tribal employers choosing not to purchase coverage during the initial enrollment period may choose to do so at a later date in accordance with the deadlines shown in the Timeline. For example, tribal employers that wish to participate in the FEHB Program with an effective date of June 1, 2012, must notify OPM of their intent to participate by March 1, 2012. 2. Information Released for Tribal Employees: Attached to the Dear Tribal Leader letter is the 2012 FEHB Guide for Tribal Employees as well as a FastFacts sheet for Tribal Employees. The FEHB Guide for Tribal Employees is designed to provide employees with basic information about the benefits offered to the employee of an entitled tribe, tribal organization, or urban Indian organization that has chosen to participate in the FEHB program. The Guide will assist employees with the process of selecting and enrolling in a plan that meets their individual health care needs and explains the initial enrollment process, the FEHB program, the FEHB Program Health Information Technology and Price/Cost Transparency, and the Pre-Existing Condition Insurance Program. The FastFacts sheet is designed to provide answers to basic questions regarding the FEHB Program. 3. Information for Tribal Employers and Notice of Forthcoming Handbook: In the Dear Tribal Leader letter, OPM explained that by electing to purchase FEHB coverage for employees, the tribal employer agrees to use the FEHB coverage as the sole source of employer-sponsored health insurance coverage for all eligible employees and thus a tribal employer may not choose to provide FEHB coverage for some employees while retaining alternative health insurance coverage for other employees. OPM noted that further information for tribal employers will be forthcoming including regulations and a handbook for tribal employers' human resources offices. 4. Information Regarding Costs and Rates: The Dear Tribal Leader letter explains that tribal employers electing to purchase FEHB for their employees will be responsible for the administrative costs associated with processing enrollments and paying premiums. These administrative fees are considered an employer cost separate from health plan premiums and cannot be passed on to employees. OPM estimates that for 2012, administrative fees will be $15.15 per employee per month based on an estimated enrollment of 25,000 tribal employees but notes that if enrollment reaches 50,000 tribal employees, the administrative fee will be reduced to approximately $9.00. Tribal employers must also pay, at minimum, the same employer contribution as federal agencies, which is approximately 72 percent of premiums. OPM has provided the 2012 Tribal Employee Premiums rates tables for HMOs and Fee for Service plans. Additionally, tribal employers will be billed by the National Finance Center on a monthly basis for total premiums which include the employer and employee share plus the employer's administrative fees. Tribal employers are then responsible for collecting the employee share of the premiums. Please let us know if we may provide additional information or assistance regarding tribal access to the Federal Employee Health Benefit program (“Office of Personnel Management Releases Dear Tribal Leader Letter on Implementation of the Federal Employee Health Benefits Program,” Hobbs Straus General Memorandum 12-005, January 13, 2012, downloadable at: GM_12-005_OPM_Letter_onFedEmployeeHealthBenefits.pdf).

The Indian Health Service (IHS) was soliciting applications, as announced January 23, 2012, in the Federal Register, for the repayment of health professions educational loans. Under the Loan Repayment Program (LRP), authorized under Section 108 of the Indian Health Care Improvement Act, the IHS may make awards to persons for the repayment of health professions educational loans in return for full-time clinical service in Indian health programs. Loan repayment recipients may receive a maximum award of $20,000 per year for each year of contracted service, plus the IHS will provide an additional 20 to 39% of the participant's total loan repayments to the Internal Revenue Service for the increased tax liability. The contracted service period is two years. The IHS estimates that it will provide $20,179,074 in FY 2012 funds for the LRP, which will support "approximately 453 competing awards averaging $44,510 per award for a two-year contract." Applications for the FY 2012 LRP will be accepted beginning February 17, 2012, and will continue to be accepted each month thereafter until all funds are exhausted. The priority health professions that will be considered in making awards under the LRP are stated in the notice. The IHS does not establish percentages of awards for specific professions. The IHS will give priority to applications made by American Indians/Alaska Natives and to those individuals recruited through the efforts of tribes or tribal organizations. Other factors that will be taken into consideration are: 1) an applicant's length of current employment in the IHS, tribal, or urban program; 2) availability for service earlier than other applicants; and 3) date of receipt of the individual's application. The IHS Area Offices and Service Units are authorized to provide supplemental funds for LRP participants for use in their areas, but the total amount cannot exceed $36 million when combined with the $20 million made available in this notice. (The notice uses two different combined total figures – $32 million and $35 million – but the Consolidated Appropriations Act, 2012, PL 112-74, places a $36 million ceiling on the combined funding for the Loan Repayment Program.) Application materials may be obtained on line at http://www.loanrepayment.ihs.gov or by contacting: IHS Loan Repayment Program
801 Thompson Avenue, Suite 120
Rockville, Maryland 20852
(301) 443-3396. Additional information regarding this program may be obtained from Jacqueline Santiago, Chief of the IHS Loan Repayment Program, at the same contact information as above (“Indian Health Service Soliciting Applications for FY 2012 Loan Repayment Program,” Hobbs Straus General Memorandum 12-015, January 27, 2012, downloadable at: GM_12-015_IHS_LoanRepaymentFY2012.pdf). IHS issued a notice of correction on reimbursement rates for calendar year 2012 applicable to Medicare and Medicaid services provided by IHS-funded health programs (operated by IHS and tribes/tribal organizations) in the Federal Register, June 19, 2012 (“Indian Health Service Issues Correction on Reimbursement Rates for Calendar Year 2012,” downloadable at: GM_12-077_IHS_Correction_on_ReimbursemenetRates_for2012.pdf).

The Centers for Disease Control and Prevention's (CDC) Office for State, Tribal Local and Territorial Support (OSTLTS) published a notice in the Federal Register, January 18, 2012, announcing that the agency's Tribal Advisory Committee (TAC) would meet on January 31 through February 1, 2012, and a tribal consultation session would be held on February 2. Both the TAC meetings and tribal consultation session were held in Atlanta, Georgia, and were open to the public. The Tribal Advisory Committee (TAC) was established in 2006 as a venue for tribal representatives and CDC officials to identify urgent public health needs in Indian Country and to discuss collaborative approaches to address these needs. The TAC meetings consisted of presentations by CDC officials on matters deemed urgent by tribal leaders and other TAC members. Topics for discussion included: the CDC annual budget report; social determinants of health; social media; health care reform; the CDC Traditional Foods Program; and opportunities at CDC for Native participation. The Tribal consultation session was attended by senior leadership from the CDC Office of the Director as well as other CDC offices. Topics for discussion were: the National HIV/AIDS Strategy; a summary of the National Center for Environmental Health and the Agency for Toxic Substances and Disease Registry's reorganization and efforts to promote engagement among tribes, states and local agencies; and the agency's Traditional Foods and Sustainable Ecological Approaches to Promote Health and Prevent Type 2 Diabetes in American Indian and Alaska Native Communities (“Centers for Disease Control and Prevention to Hold Tribal Consultation,” Hobbs Straus General Memorandum 12-012, January 20, 2012, downloadable at: GM_12-012_CDC_to_HoldTribalConsultation.pdf).

The Internal Revenue Service, (IRS), February 13, 2012, issued IR-2012-19 extending the deadline for submitting comments on the application of the general welfare exclusion to Indian tribal government programs that provide benefits to tribal members to March 14, 2012. The general welfare exclusion is a federal tax doctrine under which payments made to individuals through governmental social benefit programs are excluded from an individual's gross income and, therefore, not reported to the IRS or taxed. The doctrine has been applied to programs providing assistance for such things as food or shelter for the poor based on financial need, as well as for broader needs of the community itself, such as tax free grants for tribal members to promote employment and economic development on Indian reservations. Inconsistent application of the general welfare doctrine to tribal governmental programs has prompted tribes to request that the Treasury Department and IRS develop guidance that respects the sovereign right of tribes to determine what governmental programs are best suited to meet the needs of tribal members and the general welfare of the tribal community. Previously, the deadline for submitting comments was February 13, 2012. The extended deadline is in response to tribal requests for additional time to weigh in on this important matter. For further information on the IRS's request for comments on the application of the general welfare exclusion (Notice 2011-94) (see Hobbs Straus General Memorandum 11-151, December 6, 2011) (“IRS Extends Deadline for Comments on General Welfare Exclusion,” Hobbs Straus General Memorandum, 12-026, February 17, 2012, downloadable at: GM_12-026_ IRS_ExtendsCommentPeriod_onGeneralWelfareDoctrine.pdf). The Internal Revenue Service (IRS) issued IR-2012-52, May 14, 2012, which announces that on May 30, 2012, at 3:00 PM EDT, the Treasury Department and the Internal Revenue Service (IRS) would hold a joint listening session and consultation call regarding the application of the general welfare exclusion to benefits provided under Indian tribal government programs, with participation open to all tribes and tribal leaders (“Treasury Department and IRS to Hold Listening Session and Consultation Call with Tribal Leaders on the Application of the General Welfare Exclusion,” Hobbs Straus General Memorandum 12-065, May 18, 2011, downloadable at: GM_12-065_IRS_andTreasury_toHoldConsultationCall_onGWE.pdf)/

The Internal Revenue Service (IRS) published a notice in the Federal Register, February 3, 2012, announcing that the public hearing previously scheduled for June 5, 2012, on draft regulations which are intended to clarify what constitutes "essential government functions" and "commercial activities" with regard to determining whether a tribal government's retirement plan qualifies for treatment as a government plan under Section 414(d) of the Internal Revenue Code has now been moved to July 10, 2012. (“IRS Extends Comment Period and Changes Date for Hearing on Guidance to Clarify Governmental Status of Tribal Retirement Plans,” Hobbs Straus General Memorandum 12-018, February 3, 2012, Downloadable at: GM_12-018_IRSextendsDate_forPublicHearing_onTribalGovernmentalPlans.pdf). The previous hearing notice was reported in, “IRS Sets Date for Hearing on Guidance to Clarify Governmental Status of Tribal Retirement Plans,” Hobbs Straus General Memorandum 12-014, January 27, 2012, downloadable at: GM_12-014_IRS_IssuesNotice_ofPublicHearing_onTribalGovernmentalPlans.pdf.

The Department of Labor (DOL) published a Draft Tribal Consultation Policy in the Federal Register, April 18, 2012, and invited comments on it by June 18, 2012. The DOL administers many programs affecting Indian tribes, notably those in the Employment and Training Administration. The DOL states that the proposed policy will bring more consistency to its tribal consultations, improve collaboration with tribes, and improve program delivery. Under the proposal, the Director of the Office of Public Engagement, working in conjunction with other DOL offices, would coordinate the tribal consultation policy. Each DOL operating agency would designate a senior official with primary responsibility for tribal matters. The DOL will evaluate the comments received by June 18 for possible revisions to the draft policy (“Department of Labor Solicits Comments on Draft Tribal Consultation Policy,” Hobbs Straus General Memorandum 12-055, April 12, 2012, with a download of the proposed policy available at: GM_12-055_LaborDepartmentDraftTribalConsultationPolicy..pdf).

The Department of Labor (DOL) announced, March 16, 2012, the availability Program Year 2012 (July 1, 2012, through June 30, 2013) funds for adult and youth programs for employment and training services for Indians, Alaska Natives, and Native Hawaiians. These funds are authorized under the Workforce Investment Act (WIA). There is $46.7 million available for the adult program (also called the Section 166 WIA program), which is $5 million below the previous year's level. There is $12 million for the youth program, the same level as the previous year. The DOL is using its authority to grant waivers to most current grantees whereby they will not need to compete in order to continue their grant. However, a grantee must still submit a letter informing the DOL of its interest in continuing its grant, submit a two-year plan, and still serve the entire geographic service Area. The full announcement, including listing of grantees that are eligible for a waiver from competition, can be found on the DOL website at http://www.doleta.gov/grants (“Workforce Investment Act Native American Employment and Training Grants,” Hobbs Straus General Memorandum 12-039, March 16, 2012, dowloadable at: GM 12-039 WIA Tribal Grants.pdf). The Department of Labor, Mach 8 2012, solicited applications until May 8, 2012, for grants under its YouthBuild program which is authorized under the Workforce Investment Act, awarded to organizations, including tribes and other agencies primarily serving Indians, to provide education and training/employment services to disadvantaged youth ages 16-24. The target population is high school dropouts who may also be adjudicated youth; youth aging out of foster care; youth with an incarcerated parent; youth with disabilities; and other at-risk youth populations. Up to 25% of participants do not have to fall into the "at risk" category but would need to be considered lacking in basic skills and/or have been referred by a local secondary school (“YouthBuild Grants,” Hobbs Straus General Memorandum 12-035, March 9, 2012, downloadable at: GM_12-35_Youthbuild Grants.pdf).

The Commerce Department's Minority Business Development Agency (MBDA) was soliciting applications for the operation of six new Business Centers with a due date of June 13, 2012, in the following states with high Alaska Native and American Indian populations: Alaska, Arizona, California, New Mexico, Oklahoma and North or South Dakota. The primary objective of the MBDA Business Centers is to "provide strategic business consulting services to minority owned firms that will result in the creation and retention of jobs for Americans through business growth." This solicitation marks the phasing out the Native American Enterprise Center (NABEC) program and its replacement with the MBDA Business Center program. Grants are for five years, with $1.6 million projected to be available each fiscal year. Eligible applicants include: for-profit entities, non-profit organizations, state and local government entities, American Indian Tribes and educational institutions. The application and further information on the MBDA's Business Center program may be found at: http://www.mbda.gov/main/grant-competitions/mbda-business-center-america... (“Minority Business Development Agency Solicits Applications to Operate Business Centers in States with Significant American Indian or Alaska Native Populations,” Hobbs Straus General Memorandum 12-069, May 25, 2012, downloadable at: GM_12-069_MinorityBusinessDevelopmentAgencySolicitsApplications_for_NewBusinessCenters.pdf).

The Administration for Children and Families (ACF) was soliciting applications from tribes and tribal consortia, with a due date of July 9, 2012, on behalf of tribal courts for grants under the Court Improvement Program. Tribes were formerly not eligible for funding under this program but The Child and Family Services Improvement and Innovation Act of 2011 (PL 112-34) allocated $1 million for tribes (out of $30 million total) in mandatory funding each fiscal year for FYs 2012 through 2016. Funds are to be used to assist courts in the handling of child abuse and neglect cases; to train judges and other personnel in the handling of child welfare cases; to improve the data surrounding child welfare cases; and to engage the entire family in court processes relating to child welfare. Tribal courts are to be engaged in meaningful, ongoing collaboration with tribal social service agencies. To be eligible for funding a tribe or tribal consortia must: 1) be operating a Title IV-E Foster Care/Adoption Assistance program; or 2) be seeking to operate a Title IV-E program and have an implementation grant for this purpose; or 3) have a court responsible for proceedings related to foster care or adoption. ACF expects to make ten awards, ranging from $50,000 to $150,000 annually. The projects are for 36 months, in three 12-month budget periods. The deadline for receipt of applications is July 9, 2012. The application may be accessed at:
http://www.acf.hhs.gov/grants/open/foa/view/HHS-2012-ACF-ACYF-CS-0323/pdf (“Tribal Court Improvement Program Grants,” Hobbs Straus General Memorandum 12-063. May 15, 2012, Downloadable at: GM_12-063_TribalCourtImprovementGrants.pdf).

The Children's Bureau of the Administration for Children and Families announced in the Federal Register, February 21, 2012, that it will consult with tribes regarding making changes to the Title IV-B child welfare program regulations. There are two Title IV-B programs: Title IV-B, Subpart 1 (also known as the Stephanie Tubbs Jones Child Welfare Services). Tribes currently receive $6.2 million annually from this program; there are 166 tribal grantees; and Title IV-B, Subpart 2 (also known as the Promoting Safe and Stable Families Program). Tribes receive three percent of appropriated funds which currently results in $11 million annually for tribes; there are 126 tribal grantees. The Children's Bureau points out that the Title IV-B regulations have not been updated since 1996 and that a number of statutory changes have been made to the programs since then. While Program Instructions and Information Memoranda issued to tribes have reflected statutory changes, the regulations remain outdated. The Children's Bureau scheduled conference calls and in-person consultations in Regions II (March 15); VI (March 6); VII (February 24); and X (March 19). In addition conference calls were set up which are not specific to any region on February 27 and March 2 “Children's Bureau Tribal Consultation on Title IV-B Child Welfare Regulations,” Hobs Straus, February 24, 2012, downloadable at: GM_12-030_Children'sBureauTribalConsultation_onIV-B_Regs.pdf).

The Children's Bureau of the Department of Health and Human Services is soliciting applications from tribes, tribal organizations and tribal consortia for grants to assist in the development of plans that would enable them to directly administer the Title IV-E Foster Care and Adoption Assistance, and at tribal option, Guardianship Assistance program. There is $1.5 million available for these planning grants in FY 2012, with the deadline for receipt of applications July 10, 2012. The full grant announcement (CFDA # 93.658) may be downloaded at:
http://www.acf.hhs.gov/grants/open/foa/view/HHS-2012-ACF-ACYF-CS-0280 (“Tribal Title IV-E Foster Care/Adoption Assistance Plan Development Grants.” Hobbs Straus General Memorandum 12-052, April 13, 2012, can be downloaded at: GM_12-052_TribalTitle IV-E_PlanDevelopmentGrants.doc.pdf).

The Administration for Children and Families (ACF), an agency in the Department of Health and Human Services (HHS), posted notices regarding two then upcoming consultations with tribes. Consultation on Title IV-E (Foster Care and Adoption Assistance) Statewide Automated Child Welfare Information Systems (SACWIS): Under current law state Title IV-E programs are not required to have a statewide automated child welfare information system (SACWIS), but the ACF will fund part of the cost if the state develops such a system. These systems are designed to track and manage child protection, foster care and adoption assistance activities. SACWIS regulations were implemented in 1993, long before the Title IV-E statute was changed to authorize tribes to directly administer this program. As ACF explains in the attached January 5, 2012, FEDERAL REGISTER notice, the regulations do not reflect the current day status of tribes with regard to the IV-E program, are "state-centric" and may not meet tribal needs. The ACF held two teleconferences to provide information on the SACWIS regulations and to consult with tribes about changes that may be needed to incentivize the development of tribal systems. The attached notice provides call-in information. The teleconference times were: February 15, from 1-3 p.m. EST –for tribal leaders
; February 16, from 1-3 p.m. EST –for tribal representatives, with written comments due April 6, 2012. Consultation on Administration for Children and Families Programs and Tribal Priorities” The ACF published a notice in the Federal Register, January 19, 2012, regarding its tribal consultation session in March 5-6, 2012, at the Renaissance Hotel in Washington, DC. On the morning of March 5 there was a training and information session about ACF programs and its Integration and Interoperability Initiative. Written testimony was to be submitted to Administration for Native Americans Commissioner Lillian Sparks by February 24, 2012. The downloadable notice contains additional information on submitting testimony and testifying in person. A number of programs of importance to tribes are under the Administration for Children and Families: Temporary Assistance for Needy Families; Child Care and Development Block Grant; Child Support Enforcement; Head Start; Foster Care and Adoption Assistance; Promoting Safe and Stable Families; Child Welfare Services; Administration for Native Americans; and Low Income Energy Assistance. HHS Tribal Budget Consultation was March 8-9, 2012, in Washington, DC, with March 7 designated as "resource day," providing an overview of its programs and other resources available to tribes (“Administration for Children and Families Tribal Consultations,” Hobbs Straus General Memorandum 12-011, January 20, 2012, downloadable at: GM_12-011_ACFtribalConsultations.pdf).

The Administration for Children and Families was soliciting applications, until; July 16, 2012, for FY 2012 funding under the Tribal Maternal, Infant and Early Childhood Home Visiting Program, authorized in the Patient Protection and Affordable Care Act (PL 111-148), providing $45 million over five years for tribes, tribal organizations, and urban Indian organizations to plan for and implement voluntary home visiting programs geared to families with young children in at-risk communities. This program is the first-ever dedicated federal funding stream for home visitation programs. There is $10.5 million available for FY 2012. Of that amount $9 million is for continuation grants for the current 19 grantees and $1.5 million is for awards for seven new grantees. Funds are awarded in the form of cooperative agreements. Family services would address matters including maternal, prenatal and infant health, child health and development, child maltreatment, parenting practices, school readiness, domestic violence, and economic viability. Grant recipients will be required to conduct a needs assessment and to develop a program with measurable three-year and five-year benchmarks for demonstrating improvement in several areas, including improved maternal and newborn health and reduced child maltreatment. Grantees must utilize evidence-based home visitation models. The funding for tribes, tribal organizations and urban Indian organizations are: FY 2010 –$3 million; FY 2011 – $7.7 million; FY 2012 – $10.5 million;
 FY 2013 – $12 million; FY 2014 – $12 million. These amounts represent the statutory allocation of 3% of the program's total funds ($1.5 billion over five years). The funds are entitlement funds and are thus not subject to the appropriations process. The project period is five years. The first year's funding is for needs assessment, planning and capacity-building, while years two through five are for implementation. The deadline for receipt of applications is July 16, 2012. The grant announcement may be downloaded at:
http://www.acf.hhs.gov/grants/open/foa/view/HHS-2012-ACF-OCC-TH-0302 (“Tribal Maternal, Infant, and Early Childhood Home Visiting Grants,” Hobbs Straus General Memorandum 12-064, May 18, 2012, Downloadable at: GM_12-064_TribalMaternal,_Infant_andEarlyChildhoodHomeVisitingGrants.pdf).

The Department of Health and Human Services published a notice in the 
Federal Register, March 9, 2012, soliciting applications from tribes and tribal consortia for funding under the Family Violence Prevention and Services Act. Tribes receive by statute 10% of the appropriated funds from section 303(a) of this Act. Tribes should receive $13 million in FY 2012 funds. Funds are distributed to eligible tribes and tribal consortia via a formula and are used primarily for programs to prevent family violence and to provide shelter, counseling, advocacy, and self-help services for victims of domestic violence and their children (“Family Violence Prevention and Services Grants for Tribes,” Hobbs Straus General Memorandum 12-036, March 9. 2012. Downloadable at: GM_12-036_Family Violence Prevention Grants for Tribes.pdf).

The Department of Justice (DOJ) is soliciting grant applications under the FY 2012 Coordinated Tribal Assistance Solicitation (CTAS). This is a single application process by which federally-recognized tribes and tribal consortia may apply for tribal-specific FY 2012 funding under the Office of Justice Programs (OJP), Community Oriented Policing Services (COPS), Office of Victims of Crime (OVC) and the Office on Violence Against Women (OVW). The complete grant announcement and other resource links are available via http://www.justice.gov/tribal/ctas2012/ctas-solicitation.pdf. Several changes have been implemented in the FY 2012 application process including: Addition of a new strategic planning pilot program; Purpose Areas modified to address tribal concerns and provide greater flexibility; Use of a demographics form instead of reliance on a general narrative to improve capturing the unique characteristics of each tribe; Requirement that legal tribal documentation authorizing the application for grant funding be submitted at the time of application; documentation is defined more broadly than just a tribal resolution as was the case for the FY 2011 application process. Tribes/tribal consortia may apply for funding under the following Purpose Areas that "best address Tribes" concerns related to public safety, criminal and juvenile justice, and the needs of victims/survivors of domestic violence, sexual assault, and other forms of violence": 1. Public Safety and Community Policing; funding source: COPS–Tribal Hiring Grant Program and Tribal Resources Grant Equipment/Training (TRGP); estimated $27 million to be available to fund 50 awards of $450,000–$1 million per award. The award amount will be based on several factors including the current number of sworn officers. An applicant must have "an established law enforcement agency or an existing contract with the Bureau of Indian Affairs (BIA) for law enforcement services, or an existing contract with a state or local agency for law enforcement services." 2. Comprehensive Planning Demonstration Project; funding source: Bureau of Justice Assistance (BJA); estimated $375,000 to be available to fund 3-5 awards of $75,000 per award. 3. Tribal Justice Systems, and Alcohol and Substance Abuse; funding source: BJA–Tribal Courts Assistance Program (TCAP) and Indian Alcohol and Substance Abuse Prevention Program; estimated $16.8 million to fund 25-35 awards of $250,000–$750,000 per award, including 2-4 awards for developing and implementing correctional alternatives. 4. Corrections and Correctional Alternatives; funding source: BJA–Correctional Systems and Correctional Alternatives on Tribal Lands Program (CFTL); estimated $7.5 million to fund 2-4 planning grants of $150,000 per award; 2-4 renovation/construction grants of $1 million per award; and 1-2 renovation/construction grants for a regional facility (detention, multi-purpose justice center, correctional alternatives) of $2-4 million per award. Additional requirements regarding funding for staffing, operations, and maintenance, and other criteria are noted. 5. Tribal Sexual Assault Services Program; funding source: OVW; estimated $3.8 million to fund up to 12 awards of up to $300,000 per award. 6. Violence Against Women Tribal Governments Program; funding source: OVW; estimated $32 million to fund 60 awards of no more than $900,000 per award for current grantees (with restrictions), and $450,000 for applicants that have never received an OVW grant previously or whose last grant was more than 12 months ago. 7. Children's Justice Act Partnerships for Indian Communities; funding source: Office for Victims of Crime (OVC); estimated $1.5 million to fund 7 awards of up to $215,000 per award. 8. Comprehensive Tribal Victim Assistance Program; funding source: OVC; estimated $3.6 million to fund 8 awards of up to $450,000 per award.
9. Juvenile Justice; funding source: OJJDP–Tribal Juvenile Accountability Discretionary Program (TJADG); estimated under $1 million to fund 2-3 awards of $250,000–300,000 per award. 10. Tribal Youth Program; funding source: Office of Juvenile Justice and Delinquency Prevention (OJJDP)–Tribal Youth Program (TYP); estimated $8 million to fund 12-15 awards of $300,000–$500,000 per award. Note: funding levels and number of awards for each Purpose Area are estimates. Each of the above Purpose Areas is described in greater detail, including eligibility exceptions, goals and objectives as well as possible uses of funds at Section E of the grant announcement. There is also additional information and updates available at http://www.justice.gov/tribal/open-sol.html, including a FREQUENTLY ASKED QUESTIONS document which provides extensive information on the CTAS. Tribes/tribal consortia are limited to one application under the CTAS. Applications must be submitted electronically through DOJ's Community Partnership Grants Management System (CPGMS) by 9 p.m. on April 18, 2012. Applicants are advised to register with CPGMS by April 4 to ensure the application submittal process runs smoothly. Applicants who do not have the capability to submit an application electronically must contact the Response Center by March 16, 2012. The grant announcement contains the contact information for technical and programmatic assistance as well as the application criteria and purpose area-specific eligibility requirements (“Department of Justice FY 2012 Coordinated Tribal Assistance Grants,” Hobbs Straus General Memorandum 12-010, January 20, @012, downloadable at: GM_12-010_DOJ_fy12CoordTrblAssist.pdf).

The Department of Justice published a final rule in the Federal Register, December 6, 2011, which allows an Indian tribe to request that the federal government reassume criminal concurrent jurisdiction in mandatory Public Law 280 (PL 280) states. The final rule also sets the standards by which the U.S. Attorney General will determine whether or not to grant the tribe's request. A tribe may initiate a request beginning on the effective date of the rule, January 5, 2012. The authority for Indian tribes to request that the United States reassume concurrent criminal jurisdiction in Indian Country was a key component of the landmark Tribal Law and Order Act of 2010 (PL 111-211). Section 221, which provided this authority, was sought by Indian tribes to partially reverse over a half century of termination-era law that transferred federal criminal jurisdiction to six states without any tribal consent. This section, however, does not affect the state's criminal jurisdiction over a tribe's Indian Country. Thus, the outcome of a successful tribal request will be a system of shared criminal jurisdiction involving the federal, state, and tribal governments. Under the final rule, Section 221 applies to tribes located in mandatory PL 280 states, because it is the position of the Department of Justice that the federal government has always retained concurrent criminal jurisdiction in the non-mandatory PL 280 states. Section 221 also leaves the decision of whether to accept or reject a tribe's request to the discretion of the U.S. Attorney General. Hobbs Straus previously described in detail the Department of Justice proposed version of rule and today we report on the major changes adopted in response to public comments. Among the changes the Department accepted: Require the Office of Tribal Justice to notify the Governor and appropriate state and local agencies within 30 days of receiving an assumption request, rather than "promptly;" Limit the comment period for state and local agencies to 45 days; Allow the Office of Tribal Justice to share with a tribe redacted copies of comments on the tribal request and allow the tribe an opportunity to respond to comments in writing; Change the first criteria for whether the Attorney General should grant an assumption request from whether the decision would increase availability of law enforcement resources to whether the decision would improve public safety and criminal law enforcement and reduce crime; Remove the ability of a tribe to request that the federal government assume jurisdiction over a subset of violations of the General Crimes and Major Crimes Acts or in a limited geographic portion of the tribe’s Indian Country. Among the provisions the Department rejected: A provision calling for information, including funding and staffing details, on the effectiveness of federal criminal jurisdiction; Requiring a public meeting on the tribal request; Requiring the Deputy Attorney General and the Office of Tribal Justice to meet personally with the tribe to discuss outside comments and recommendations; Criteria for evaluating current law enforcement agencies’ successes or failures; Consent to tribal requests be conditioned on the inclusion of specific features in that tribe’s justice system, such as due process protections for defendants, publicly available criminal codes, procedural and evidentiary rules, protections for victims’ rights, and procedures to protect victim information; Periodic review of consent decision by the Attorney General Please let us know if we may provide further information on the final rule or assistance in preparing an assumption request (“Department of Justice Publishes Final Regulations for Assumption of Concurrent Criminal Jurisdiction in PL 280 States,” Hobbs Straus General Memorandum 11-146, December 13, 2011, downloadable at: GM_11-146_DOJ_FinalRule_onFedAssumption_ofConcurrentPL280Jurisdiction.pdf).

The Federal Communications Commission (FCC) released a final rule (Report and Order), December 29, 2011, designed to facilitate tribal and tribally-affiliated ownership of commercial FM radio stations. This is the most recent in a series of actions by the FCC to strengthen and expand communications services in Indian Country. Hobbs Straus General Memorandum 10-30 (March 12, 2010) reported on the FCC's adoption of a Tribal Priority in the award of allotments and construction permits for new FM and AM radio operations (including non-commercial educational FM stations). Hobbs Straus also reported that the FCC was soliciting comments on how it might increase the likelihood that tribes, tribal consortia, and tribally-affiliated organizations would successfully apply for these allotments and permits. Specifically, the FCC asked for comments on how, and under what circumstances, federally-recognized Native American Tribes and Alaska Native Villages should receive a bidding credit in auctions for new radio stations. The rule issued on December 29, 2011, is the result of that inquiry. In the final rule, the FCC chose to adopt a "threshold qualifications" approach to commercial FM application processing, rather than a bidding credit approach. The FCC was concerned that a bidding credit to tribal applicants would ultimately be insufficient, since non-tribal competitors might still be able to out-bid tribal applicants. Instead, under the final rule, once a Tribal Allotment is allocated, qualifying tribes or tribal consortia would be permitted to file an application for the allotment prior to the allotment becoming open for general bidding (during the "Threshold Qualifications Window"). The final rule specifies eligibility criteria for tribal applicants, but in summary an applicant must either be a federally recognized tribe, tribal consortium, or an entity in which 51 percent or more of the ownership interest is controlled by a tribe or tribes. Additionally, at least 50 percent of the "principal community contour" of the proposed station would have to be tribal lands, and the applicant's proposed "community of license" would have to be a community located on tribal lands. Further, the applicant must propose "first or second aural (reception) service, or first local tribal-owned commercial transmission service at the proposed community of license." The term "tribal lands" is broadly defined and the rule notes that it is the same as set forth in footnote 15 of the First Report and Order, Further Notice of Proposed Rule Making, FCC-10-24. If only one acceptable tribal application is filed, that application will be accepted and processed, and the Allotment will not be opened for auction. If two or more are filed, the FCC will allow the tribal applicants a limited period of time to reach a settlement or merger in order to share the Allotment; otherwise those applicants alone will be permitted to bid. The Allotment will only be opened for auction to non-tribal parties in the event that no acceptable tribal applications are submitted. The FCC explained in the report that these new procedures were adopted "in order to provide significant opportunity for the award of [tribal allotments] to tribal applicants, in keeping with the goals underlying the Commission's Tribal Priority." The FCC has also directed the Office of Native Affairs and Policy and the Audio Division of the Media Bureau to coordinate in establishing informational materials and training opportunities in order to assist tribes in understanding the threshold qualifications licensing process, and to consult with tribes. FCC Commissioner Michael J. Copps, who made the expansion of communications services in Indian Country a priority, issued a statement which is included in the downloadable Report and Order. Commissioner Copps' term of office expired at the end of 2011 (“FCC Issues Report and Order to Enhance Tribal Ownership of FM Radio Stations, Hobbs Straus General Memorandum 12-004, January 13, 2012, downloadable at: GM_12-004_FCCOrder_onTribalPriroity_forFMApplications_andLicenses.pdf).

The Department of Energy's (DOE) Office of Indian Energy introduced its Strategic Technical Assistance Response Team (START) initiative, December 2, 2011, designed to advance clean energy generation in Indian Country by providing technical assistance in assessing the technical and financial feasibility of proposed clean energy projects. The START initiative is composed of two programs: 1) the Tribal START program and 2) the Alaska START program. Applications for both START programs were due by January 15, 2012. 
The Tribal START program provides early-stage project development technical assistance for up to five clean energy projects in the 48 contiguous states. The Office of Indian Energy and National Renewable Energy Lab (NREL) works directly with community-based teams and tribal legal and finance specialists to develop market feasibility and due diligence research and analysis. The goal of this effort is to create a pre-development package to support a request for proposal process for financing or construction. The application is available at: http://energy.gov/sites/prod/files/START%20Application_FINAL_0.pdf. Alaska START Program The Alaska START program is a comprehensive effort examining all energy-related issues in up to five Alaska Native villages, including diesel powerhouses, power distribution infrastructure, utility management, bulk fuel storage, energy efficiency and renewable energy projects, as well as water, sewer and housing needs. Led by the Office of Indian Energy and the NREL and in partnership with the Denali Commission, the Alaska START program supports activities focused on community-based energy planning, energy awareness and training programs, as well as identification and implementation of renewable energy and energy efficiency opportunities. The application is available at:
http://energy.gov/sites/prod/files/START-Alaska%20Application_FINAL_0.pdf (“Office of Indian Energy Introduces START Initiative to Provide Technical Assistance for Clean Energy Development,” Hobbs Straus General Memorandum 11-144, December 12, 2011, downloadable at: GM 11-144 DOE IE START Initiative for Tribal Clean Energy Assistance.pdf).

The Department of Agriculture was accepting applications from tribal governments and others for grants under the Farmers' Market Promotion Program (FMPP) until May 21, 2012. The Department of Agriculture has available $10 million in FY 2012 funds for the FMPP. The minimum award is $5,000 and the maximum award is $100,000. No matching funds are required. The deadline for receipt of applications is The purpose of the Farmers' Market Promotion Program is to expand direct producer-to-consumer market opportunities including farmers markets, roadside stands, community-supported agriculture programs, agri-tourism activities and other direct producer-to-consumer marketing opportunities. (“Farmers' Market Promotion Program Grants,” Hobs Straus General Memorandum 12-050, April 6, 2012, which may be downloaded at: GM_12-050_FarmersMarketProgramPromotionGrants.pdf).

The Department of Agriculture (USDA) was soliciting, Until January 20 2012, nominations for a new Council for Native American Farming and Ranching (Council mandated by the Keepseagle v. Vilsack settlement, a class action lawsuit of Native American farmers and ranchers against the USDA. The Council will advise the Secretary on issues of Native American participation in USDA farm programs and other matters as spelled out in the December 6, 2011, Federal Register notice. The settlement, which was given final court approval on April 28, 2011, provides $680 million for damages, up to $80 million in loan forgiveness, and actions by USDA to enhance Native American participation in its farm programs. These funds are paid out of the Judgment Fund and are thus not subject to the congressional appropriations process (see Hobbs Straus General Memorandum 10-136 of October 22, 2010). The Council consists of fifteen persons, eleven of whom are to represent Native American interests (although the person does not need to be Native American) and four high-ranking USDA officials. Members of the Council may include: Native American farmers or ranchers who have participated in USDA loan or payment programs; Representatives of organizations with a history of working with Native American farmers or ranchers; Civil rights professionals; Representatives of tribal governments with demonstrated experience working with Native American farmers or ranchers, and; Such other persons as the Secretary considers appropriate (“Nominations for the Council for Native American Farming and Ranching,” Hobbs Straus General Memorandum 11-143, December 8, 2011, downloadable at: GM 11-143 Nominations for the Council for Native American Farming and Ranching.pdf).

The Veterans Administration (VA) issued a final rule in the January 30, 2012, Federal Register in compliance with the statutory requirement that tribal organizations are eligible for its veterans cemetery grants program. Under this program grants are made for the establishment, expansion, and improvement of veterans cemeteries. The Veterans Benefits, Health Care, and Information Technology Act of 2006 (PL 109-461) required the VA to administer the cemetery grants program for tribal organizations in the same manner that grants are made to states. Tribal veterans cemeteries receiving funds under this program must be on trust land and must be operated by a tribe or tribal organization. The term "trust lands" includes lands held in trust by the United States, Native Hawaiian homelands, lands owned by Alaska Regional and Village corporations, and lands "on any island in the Pacific Ocean if such land is, by cultural tradition, communally-owned land, as determined by the Secretary [of Veterans Affairs]." The attached rule also contains definitions of tribe and tribal organization. All veterans cemeteries established under this program must meet specific planning and construction standards. The cemeteries are to be operated "solely for the internment of veterans, their spouses, surviving spouses, minor children, unmarried adult children who were physically or mentally disabled and incapable of self-support, and eligible parents of certain deceased service members." The VA has changed the name of its agency administering the program from the "State Cemetery Grants Service" to the "Veterans Cemetery Grants Service.” The VA will reimburse up to 100% of the costs associated with the establishment, expansion, and improvement of a veterans cemetery, as well as the cost of initial operating equipment. The FY 2012 appropriation for the veterans cemetery grant program is $46 million, the same as in FY 2011. Tribes/tribal organizations are new to accessing this program; late in 2011 the Rosebud Sioux, Yurok, and Pascua-Yaqui tribes received veterans cemetery grants. The current priority list of applicants may be found on the Veterans Cemetery Grant Service website (www.cem.va.gov/grants). The Director of the VA Office of Tribal Governmental Relations is Stephanie Elaine Birdwell (stephanieelaine.birdwell@va.gov.) (“Veterans Administration Issues Rule on Tribal Veterans Cemetery Grants,” Hobbs Straus General Memorandum 12-021, February 10, 2012, downloadable at: GM_12-021_VA_Rule_on_TribalVeteransCemeteryGrantProgram.pdf).

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Rob Capriccioso, “Natives Gain Inclusion on Obama Campaign Website,” Indian Country Today, By June 15, 2012, http://indiancountrytodaymedianetwork.com/2012/06/15/natives-gain-inclusion-on-obama-campaign-website-118705, reports, “Responding to criticism about its lack of outreach to American Indians this election season, the Obama campaign has included a Native American section on its website, uploaded June 15. Before June 15, the Obama campaign website failed to list American Indians under its targeted voting groups.”

Federal Indian Budgets

FY 2012 Appropriations for Indian Affairs, Office of the Special Trustee and Other Interior Programs,” Hobbs Straus General Memorandum 12-016, January 27, 2012, downloadable including detailed charts of the appropriations, at: General Memorandum 12-016, reported: “On December 23, 2011, President Obama signed the Consolidated Appropriations Act, 2012, as Public Law 112-74, an Act which includes FY 2012 funding for what would normally be nine separate appropriations bills (HR 2055; Conference Report is H.Rpt. 112-331). Included in the Act is funding for programs under the Interior, Environment, and Related Agencies Appropriations bill (Division E of the Act). In this Memorandum we report on the funding levels for the major programs in the Indian Affairs (IA), Office of the Special Trustee (OST), and related agencies that are of particular interest to Indian tribes and tribal organizations.” “During the first several months of FY 2012, the Indian Affairs and most other federal programs were funded under a Continuing Resolution at their FY 2011 level minus 1.5%. Under PL 112-74, Congress applied several across-the-board reductions which vary by appropriations sections. Programs, projects, and activities as detailed in the Act, accompanying reports, or President's budget under Interior, Environment and Related Agencies have an across-the-board reduction of 0.16 percent.

Guidance. The Conference report states with regard to consideration of Appropriations Committee report language: Language contained in House Report 112-151 [there was no Senate Committee report] providing specific guidance to agencies regarding the administration of appropriated funds and any corresponding reporting requirements carries the same emphasis as the language included in this explanatory statement and should be complied with unless specifically addressed to the contrary herein. In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and do not reflect the views of the conferees unless otherwise repeated in this statement.

Status of Appropriations Balances. The Act includes House-proposed bill language that requires the DOI, IHS, EPA and Forest Service to provide Congress quarterly reports on the balances of appropriations. The bill language states: Sac. 424. The Department of the Interior, the Environmental Protection Agency, the Forest Service, and the Indian Health Service shall provide the Committees on Appropriations of the House of Representatives and Senate quarterly reports on the status of balances of appropriations including all uncommitted, committed, and unobligated funds in each program and activity.

The House committee report explained: During the development of the fiscal year 2011 continuing resolution, it became evident that many of the agencies under the subcommittee's jurisdiction were unable to provide this data relating to both discretionary and mandatory accounts on a timely basis. The Committee experienced delays in receiving this information and found that the agency reports did not provide a comprehensive picture of the status of balances. Of particular concern, the Committee found that the agencies could not report on the age of balances by year of appropriation. As a result, it is not possible to tell whether the balances derive from uncommitted or unobligated balances in the immediately prior fiscal year or from appropriations acts enacted two, three or more years earlier. The source year of carryover is important. If balances have languished on the books for multiple fiscal years it is a symptom, at best, of administrative inefficiency. Of more concern, it may suggest that the Committee was asked to provide appropriations in excess of the amount required to accomplish program purposes. Given the obvious importance of the source year of balances to budget administration, the Committee is puzzled that agencies have not configured internal accounting systems to capture and routinely report this information. . . .
…Bill language contained in Title IV requires that the Department of the Interior, EPA, Forest Service, and the Indian Health Service begin reporting to the Committee on a quarterly basis on the status of balances, including the source year of balances. It is the Committee's intention that the agency reports show the status of balances at the appropriation account level, as well as at budget activity or other lower levels where such levels are reflected in the Committee's report accompanying an appropriation act. (H.Rpt. 112-151, pp. 5-6)

Improved Coordination. The House committee expressed its views on the "fragmented" grant and funding opportunities processes tribes must navigate through the various agencies to address their needs. The Committee directed the DOI, HHS, DOJ, EPA and Forest Service to provide a report on possible streamlining and improved coordination on funding opportunities and opportunities for new compacts. The report stated: While the Committee's recommendation and the President's budget include funds for these services, responsibility and oversight for many of the projects and programs are dispersed over several agencies. Some are contained within this Act, while others are not. For example, no less than three agencies may be involved in constructing a home on a reservation: the Indian Health Service, the Department of Housing and Urban Development, and the Bureau of Indian Affairs. Tribes may also seek funds from the Department of Transportation and the Environmental Protection Agency for infrastructure support of those homes. The result is a fragmented and confusing approach to addressing basic infrastructure and the health and education needs of American Indian communities. On November 5, 2009, the President signed a memorandum directing all Federal agencies to provide a plan on how each agency is implementing Executive Order 13175, which requires Federal agencies to engage in regular and meaningful consultation with Tribes. The Committee supports this effort, but views it only as an initial step. Beyond consultation, there must be more effective implementation of the Federal laws and programs created to honor this Nation's trust responsibility to American Indians–including meeting government-wide mandates under the Indian Self-Determination and Education Assistance Act (ISDEA, P.L. 93–638, as amended).
The Committee directs the Secretary of the Interior, the Secretary of Health and Human Services, the Attorney General, the Administrator of the Environmental Protection Agency, and the Chief of the Forest Service to provide this Committee within 120 days of enactment of this Act a joint report on: (1) how these agencies can use the consultation process to streamline and coordinate grant programs and funding opportunities for American Indian programs under their jurisdiction; and (2) opportunities for each agency and bureau to enter into new compacts with Tribes, as per ISDEA. (H.Rpt. 112-151, pp. 13-14)

The Indian Affairs section in this Memorandum reflects the 0.16 percent reduction. The Indian Affairs detailed budget information is in chart form [that may be downloaded] and we discuss in the narrative only those issues that describe significant changes or may be of particular interest.

INDIAN AFFAIRS (IA) OVERVIEW

The Act provides an FY 2012 funding level of $2.5 billion for Indian Affairs, which is $62.7 million less than the FY 2011 enacted level and $30.6 million above the budget request. Within the total are $2.36 billion for the Operation of Indian Programs (OIP; $37.8 million increase above FY 2011 level) and $123.6 million for Construction ($85.9 million decrease from FY 2011).

Highlights within the Indian Affairs budget include the following:
• Increases/Reductions. The Act provides: Contract Support funding at $219.2 million, which is $352,000 below the FY 2011 level but is $23.7 million above the Administration's request; $28,000 less than the FY 2011 level for Tribal Grant Support Costs for tribally operated schools (total funding of $46.25 million); $12.1 million increase for Public Safety and Justice (PS&J) programs, instead of the requested $25.8 million increase (total funding of $346.2 million).
The major decreases are under Construction (including $69.6 million decrease for Education Construction and $6.5 million decrease for PS&J Construction).
• Program Transfers. The Act transfers certain sub-activities as requested by the Administration to "properly align resources under their existing management/organizational structure." These changes include: Facilities Maintenance from Construction to Bureau of Indian Education (BIE) and Public Safety and Justice under the Operation of Indian Programs; Minerals and Mining from Trust–Natural Resources to Community and Economic Development, and Road Maintenance from Community and Economic Development to Tribal Government.
• Indian Employment, Training, and Related Services. The Act does not include a House provision that would have made some important clarifications to the consolidated program that tribes administer under the authority of the Indian Employment Training and Related Services Demonstration Act, Public Law 102-477 (477). See the report language below regarding congressional instructions on this matter.
• Indian Reorganization Act. The Act does not include the Administration-proposed language that would have provided a "clean" Carcieri fix to reverse the U.S. Supreme Court's 2009 decision that the Secretary of the Interior did not have authority to take land into trust for tribes recognized after 1934. The language was identical to a provision proposed in an FY 2011 appropriations measure.

OFFICE OF THE SPECIAL TRUSTEE

The Act funds the Office of the Special Trustee (OST) at the requested level of $152,319,000 (before 0.16 percent reduction). This includes $31.1 million (before 0.16 percent reduction) for the Office of Historical Accounting. The OST FY 2011 funding level was $160,678,000; with $31.5 million for Office of Historical Accounting.

OPERATION OF INDIAN PROGRAMS.

FY 2011 Enacted $2,329,845,000
FY 2012 Admin. Request $2,359,692,000
FY 2012 Enacted $2,367,737,000

The FY 2012 funding for OPERATION OF INDIAN PROGRAMS (OIP) is a net increase of $37.8 million above the FY 2011 enacted level, with $20.8 million in programmatic increases.

• Indian Employment, Training, and Related Services. The Act does not include a House provision that would have addressed 477 tribes' two primary concerns with the current administration of PL 102-477 by the federal agencies: 1) the threat to end the practice of transferring 477 program funds to participating tribes through agreements under the Indian Self-Determination Education and Assistance Act; and 2) the 2009 Office of Management and Budget Circular A-133 which requires 477 tribes and tribal organizations to report their 477 expenditures separately by funding source for audit purposes. Instead, Congress chose to allow time for the Administration to continue working with tribes to identify alternative solutions, and directs that the 477 Tribal Work Group be consulted on guidance documents prior to issuance. If the issues are not resolved, Congress will address them during the FY 2013 appropriations process. The Conference report states: Indian Employment, Training and Related Services.—The bill does not include section 430 of the House bill pertaining to Indian employment, training, and related services pursuant to Public Law 102–477. This provision was intended to block the Administration from continuing with new, unauthorized and retroactive policies which run counter to how "477" funds have been transferred to tribal governments and how funds have been audited since the program's inception 19 years ago. The conferees have dropped this provision in order to give the Administration time to honor its recent commitments to suspend new policies while working with Tribes to find alternative solutions. The conferees understand that recent Administration commitments to the Tribes and the Congress include but are not limited to the following: that it has engaged the Tribes in a new consultative process to address agency and tribal concerns; that it has halted any effort to alter the manner and conditions under which "477" funds have historically been transferred to Tribes; that it has indefinitely suspended its 2009 supplemental audit requirements for any "477" program audits, covering fiscal years 2009 through 2012, that were not completed on or before September 30, 2011; and that annual "477" program audits will continue to comply with the Single Audit Act of 1984 .
The conferees expect the Administration to consult with Tribes on a government-to-government basis, and to only proceed with improvements that reflect general consensus among the impacted Tribes and agencies. The P.L. 102–477 Tribal Work Group shall be consulted on the precise content of all guidance documents and similar issuances prior to their finalization. The House and Senate Appropriations Committees will be closely monitoring the progress of the consultation process, and will expect regular updates from the Administration. If issues concerning the transfer and audit of "477" funds are not permanently resolved administratively, the Committees intend to address this issue in the fiscal year 2013 process. (H.Rpt. 112-331 p. 1063-1064)

• Off-Reservation Gaming Approvals. There was some highly unusual language in the Conference report in which the conferees indicated that they were "aware of a lack of local support for two recent off-reservation gaming projects in Yuba, California, and Madera, California" which were approved by the Secretary in September 2010 and which are pending before Governor Brown of California for his concurrence under IGRA's "two part determination" process. The Secretary is directed to "review these applications to verify the claim of 'strong local support' and report those findings to the Committees within 60 days of enactment of this Act." It is not at all clear what purpose this language is intended to serve. The report states: Other Matters.—The conferees are aware of a lack of local support for two recent off-reservation gaming projects in Yuba, California, and Madera, California, which received Secretarial Determinations on September 1, 2010. The evidentiary record provided by the Bureau of Indian Affairs indicates that only two of the 33 elected officials or bodies that were consulted on these projects expressed support for them. The conferees are also concerned that in one case, the Department appears to have largely ignored a popular vote which indicated a majority of the county was opposed to the construction of a casino on the site which was approved by the Department. Therefore, the conferees direct the Secretary to review these applications to verify the claim of "strong local support" and report those findings to the Committees within 60 days of enactment of this Act. (H.Rpt. 112-331 p. 1064)

BUREAU OF INDIAN AFFAIRS

FY 2011 Enacted $1,577,149,000
 FY 2012 Admin. Request $1,564,138,000
 FY 2012 Enacted $1,572,259,000.

The Act provides programmatic increases under: Tribal Government ($1.9 million), Trust-Real Estate Services ($4.3 million), and Public Safety and Justice ($9.6 million) and concurs with the requested internal transfers totaling $51.4 million.

TRIBAL GOVERNMENT

FY 2011 Enacted $509,589,000
 FY 2012 Admin. Request $497,093,000
 FY 2012 Enacted $519,330,000.

The Tribal Government subactivities are: Aide to Tribal Government; Consolidated Tribal Government Program; Self-Governance Compacts; Contract Support; Indian Self-Determination Fund; New Tribes; Small and Needy Tribes; Roads Maintenance; and Tribal Government Program Oversight. For budget details by program, see page IA-CBT-1 of the downloadable chart.

The Tribal Government programs funding is $9.7 million above the FY 2011 enacted level, including the $25.3 million internal transfer of Road Maintenance from the Community and Economic Development account.

• Contract Support. The Act provides Contract Support funding of $219,208,704, which is slightly less than the FY 2011 level due to the 0.16 percent reduction but it is $23.7 million above the Administration's request. The Act also provides $1.9 million for the Indian Self-Determination Fund, which is used for first year administrative costs related to new and expanded contracts.

The House committee report (H.Rpt. 112-151) noted the Bureau's obligation to pay the full amount of contract support costs tribes have contracted for and directed that the FY 2013 request should include the amount necessary to fully fund contract support obligations. The report stated:
…Two recent court cases found that the Bureau was legally obligated to pay the full amount of all contract support costs that it had contractually agreed with Indian Tribes to pay, and limitations on the overall contract support cost appropriation does not overcome the Bureau’s obligation to pay said costs. The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission. (p. 42)

• Small and Needy Tribes. The Act provides $1.9 million of the requested $2.95 million to resume the Small and Needy Tribes program. Funds are used to provide a minimum TPA base funding to small tribes. The budget justification did not say how many tribes are currently receiving less than the recommended thresholds of recurring TPA but stated: There are currently Tribes that receive less than the recommended $160,000 (mainland Tribes) and $200,000 (Alaska Tribes) TPA base funding thresholds. Therefore, an increase of nearly $3 million is proposed to bring those Tribes in the lower 48 states to the minimum TPA threshold of $160,000 and to raise the Alaska Tribes to a minimum threshold of $190,000. This will enable the Tribes to maintain the strength and effectiveness of their governments. Further evaluation of the need by Tribe based on the previous criteria of population and current funding will be used to determine the distribution when funds are appropriated. (IA-TG-3)

• Roads Maintenance. The Act approves the Roads Maintenance transfer from the Community and Economic Development budget category to Tribal Government, and provides $25.3 million ($1 million less than the FY 2011 level).

• Tribal Government Program Oversight. The Act provides the requested increase for Regional Oversight. The budget justification stated that the $1 million increase (less the 0.16 percent reduction) would be used to fund several new entry level Self-Determination Specialist positions to provide direct field services and technical assistance.

Bill Language

• Contract Support Cap. Consistent with past Appropriations acts, the Act continues language regarding a cap on contract support costs: notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended, not to exceed $219,560,000 [less the 0.16 percent reduction] shall be available for payments for contract support costs associated with ongoing contracts, grants, compacts, or annual funding agreements entered into with the Bureau prior to or during fiscal year 2012, as authorized by such Act, except that tribes and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, or compacts, or annual funding agreements and for unmet welfare assistance costs;

• Contract Support Limitation. The Act, consistent with the Interior Appropriations Acts for FYs 1999-2011, attempts to limit the ability of the IHS and BIA to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years:
 Sec. 408. Notwithstanding any other provision of law, amounts appropriated to or otherwise designated in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208, 105-83, 105-277, 106-113, 106-291, 107-63, 108-7, 108-108, 108-447, 109-54, 109-289, division B and Continuing Appropriations Resolution, 2007 (division B of Public Law 109-289, as amended by Public Law 110-5 and 110-28), Public Laws 110-92, 110-116, 110-137, 110-149, 110-161, 110-329, 111-6, 111-8, 111-88, and 112-10 for payments for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 2011 for such purposes, except that for the Bureau of Indian Affairs, tribes and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, self-governance compacts or annual funding agreements.

• TPA Redistribution. Consistent with past Appropriations acts, the Act continues language which authorizes redistribution of TPA and tribal base funds to alleviate funding inequities.
 SEC. 105. Notwithstanding any other provision of law, the Secretary of the Interior is authorized to redistribute any Tribal Priority Allocation funds, including tribal base funds, to alleviate tribal funding inequities by transferring funds to address identified, unmet needs, dual enrollment, overlapping service areas or inaccurate distribution methodologies. No tribe shall receive a reduction in Tribal Priority Allocation funds of more than 10 percent in fiscal year 2012. Under circumstances of dual enrollment, overlapping service areas or inaccurate distribution methodologies, the 10 percent limitation does not apply.

• Tribal Shares Language. The Act, consistent with prior Interior Appropriations Acts, continues bill language regarding tribal shares. Notwithstanding any other provision of law, no funds available to the Bureau of Indian Affairs for central office oversight and Executive Direction and Administrative Services (except executive direction and administrative services funding for Tribal Priority Allocations, regional offices, and facilities operations and maintenance) shall be available for contracts, grants, compacts, or cooperative agreements with the Bureau of Indian Affairs under the provisions of the Indian Self-Determination Act or the Tribal Self-Governance Act of 1994 (Public Law 103-413).

• Disaster Relief Language. Consistent with past Appropriations acts, the Act continues language that authorizes expenditures in excess of the funded amounts in order to provide disaster assistance to Indian communities. Provided, That in cases of designated Federal disasters, the Secretary may exceed such cap, from the amounts provided herein, to provide for disaster relief to Indian communities affected by the disaster;

HUMAN SERVICES

FY 2011 Enacted $136,621,000
 FY 2012 Admin. Request $137,827,000
 FY 2012 Enacted $136,360,000.

The Human Services subactivities are: Social Services; Welfare Assistance; Indian Child Welfare Act (ICWA); Housing Improvement Program (HIP); Human Services Tribal Design; and Human Services Program Oversight. For budget details by program, see page IA-CBT-1 of the downloadable chart.

The Act does not include the requested $ 2 million increase for Social Services. The funds were to be used to hire 15 new MSW-degreed social worker positions (11 tribal and 4 under BIA) to improve compliance with the staffing requirements under 25 C.F.R. Part 20.

TRUST–NATURAL RESOURCES MANAGEMENT

FY 2011 Enacted $156,082,000, FY 2012 Admin. Request $162,252,000, FY 2012 Enacted $157,244,000.

The Trust–Natural Resources Management subactivities are: Natural Resources; Indian Irrigation Operation and Maintenance; Rights Protection Implementation; Tribal Management/Development Programs; Endangered Species; Cooperative Landscape Conservation; Integrated Resource Information Program; Agriculture and Range; Forestry; Water Resources; Fish, Wildlife & Parks; and Resource Management Oversight. For budget details by program, see pages IA-CBT-1 of the downloadable chart.

The Trust–Natural Resources Management FY 2012 level results in a net $1.16 million decrease from the FY 2011 level and the Act approves the requested internal transfer of $18.6 million in Minerals and Mining funds to the Community and Economic Development category.

TRUST–REAL ESTATE SERVICES

FY 2011 Enacted $145,823,000
 FY 2012 Admin. Request $125,457,000
 FY 2012 Enacted $126,759,000.

The Trust–Real Estate Services subactivities are: Trust Services; Navajo-Hopi Settlement Program; Probate; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaskan Native Programs; Rights Protection; and Trust and Real Estate Services Oversight. For budget details by program, see page IA-CBT-2 of the downloadable chart.

The Trust–Real Estate Services (RES) amount is a net decrease of $19 million but provides programmatic increases for Trust Services and Environmental Quality Projects. As requested, there is no funding for Litigation Support/Attorney Fees ($2.1 million in FY 2011). The budget justification stated the program elimination would "reprioritize available funding to address other core responsibilities to [AIs/ANs]."

Funding increases:
• Trust Services – The conference report states the amount above the request level ($1.5 million, less the 0.16 percent reduction) is "for continued implementation of the Klamath Basin Restoration Agreement."
• Environmental Quality Projects – The Act provides the nearly $2 million increase requested to ensure all schools in the Bureau of Indian Education (BIE) school system comply with federal environmental statutes and implement the Environmental Management Systems (EMS). Funds will be used to hire environmental professionals to conduct multimedia environmental audits at the schools and dormitories, and assist schools with their EMS. The initiative was the result of a settlement agreement between Indian Affairs and the EPA regarding widespread violations of various environmental laws at a number of BIE-funded schools.
• Water Rights Negotiations/Litigation – The Act provides the nearly $1 million increase requested, for total funding of $8.6 million. The budget justification stated the funds would support a greater number of "high-scoring proposals" from tribes and Regional offices that have "critical timeframes in [water rights] litigation and ongoing negotiations."

Funding decreases:
• RES Projects – $10.85 million decrease; the balance of $2.95 million in FY 2012 funds are for the completion of the Nez Perce Reservation cadastral surveys required as part of a water rights settlement and to fund high priority "Emergency Surveys" that may be requested via the Indian Affairs Central Office. No funds are requested for the Lease Compliance and Unresolved Rights components previously funded under RES Projects.
• Land Records Improvement/Central – $8.4 million decrease, for total funding of $4.7 million. According to the budget justification, the reduction reflects reprioritized funding and focus on core responsibilities. The remaining funds will be used for operating the Trust Asset and Accounting Management System (TAAMS).

PUBLIC SAFETY AND JUSTICE

FY 2011 Enacted $334,090,000, FY 2012 Admin. Request $354,709,000, FY 2012 Enacted $346,223,000.

The Public Safety and Justice (PS&J) subactivities are: Law Enforcement; Tribal Courts; and Fire Protection. For budget details by program, see pages IA-CFT-2 of the downloadable chart.

The Act provides a net $12.1 million increase from the FY 2011 level, with $9.6 million in programmatic increases, and $13.7 million for Facilities Operations and Maintenance transferred from the Construction category. Congress did not fund the requested $1 million to establish a Conservation Law Enforcement Officer (CLEO) line item. Funds would have been provided as base funding for tribes to hire CLEOs to protect tribal natural resources.

• Law Enforcement increases include:
 o Detention/Corrections – The Act provides $7.3 million of the requested $10.4 million increase, for total funding of $81.8 million. The budget justification stated that, at the request level, approximately 70 percent of the increase would be allocated to tribal base funding and the balance for operation of Indian Affairs' detention programs to address staffing shortages.
 o Facilities Operation and Maintenance – The Act provides the requested $1 million increase (less the 0.16 percent reduction), for total funding of $13.7 million. The increase is for the operation and maintenance of four new detention facilities that were expected to open in FY 2011.

• Tribal Courts – The Act provides the requested funding level of $23.4 million, which is $3.6 million less than the FY 2011 level.

COMMUNITY AND ECONOMIC DEVELOPMENT

FY 2011 Enacted $36,855,000, FY 2012 Admin. Request $34,865,000, FY 2012 Enacted $34,809,000.

The Community and Economic Development (CED) subactivities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight.

Congress agreed to the internal transfer of Road Maintenance ($25.3 million) from CED to the Tribal Government category and the transfer in of Minerals and Mining ($18.6 million) from Trust-Natural Resources to CED, resulting in a net decrease of $2 million from the FY 2011 level. For budget details by program, see page IA-CFT-2 of the downloadable chart.

• Minerals and Mining. In addition to the transfer, the Administration sought a $500,000 increase for the M&M Program line item in order to fully fund the Indian Energy Development Office located in New Town, ND. The budget justification stated the office was established at the request of Congress in FY 2009 and funded jointly by BLM, MMS, BIA and OST for FYs 2009 and 2010, with the understanding that Indian Affairs would seek continuation funding starting in FY 2011. The Act provides FY 2012 funding at the request level, less the 0.16 percent reduction.

EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES

FY 2011 Enacted $258,089,000 FY 2012 Admin. Request $251,935,000 FY 2012 Enacted $251,531,000.

The Executive Direction and Administrative Services subactivities are: Assistant Secretary Support; Executive Direction; Administrative Services; Safety and Risk Management; Information Resources Technology; Human Capital Management; Facilities Management; Intra-Governmental Payments; and Rentals.

The FY 2012 total reflects a $6.5 million reduction from the FY 2011 level, including programmatic reductions totaling $4.3 million. Congress also approved the requested internal transfer of $6.25 million for funds associated with Facilities Management-detention facilities, which is transferred to the Public Safety and Justice account. For budget details by program, see page IA-CFT-3 of the downloadable chart.

• Data Management. The Act provides the requested increase ($500,000 less the 0.16 percent reduction) to further the development of a data management system, a process intended to result in a single data information collection and management system for tribes to assess performance data reporting requirements and determine data collection needs.

BUREAU OF INDIAN EDUCATION

FY 2011 Enacted $752,696,000 FY 2012 Admin. Request $795,554,000 FY 2012 Enacted $795,478,000.

The Bureau of Indian Education (BIE) category is comprised of funds for the BIE-funded elementary and secondary school system as well as other education programs including higher education and scholarships. The subactivities are: Elementary and Secondary Programs–Forward Funded; Elementary and Secondary Programs (non-forward funded); Post Secondary Programs–Forward Funded; Post Secondary Programs (non-forward funded); and Education Management.

General Overview. The Act provides $42.7 million above the FY 2011 level for the overall BIE category, including the transfer in of $50.6 million in Facilities Maintenance funds. Within the total funding is $644.7 million for School Operations, $128.7 million for Post Secondary Programs, and $21.9 million for Education Management. For budget details by program, see pages IA-CBT-3/-4 of the downloadable chart.

School Operations Overview. Highlights under funding that impacts the BIE elementary and secondary schools include:
-- Programmatic increase of $1.9 million for ISEP Program Adjustments, resulting in a net increase of $2.1 million over FY 2011 for the forward-funded elementary + secondary school programs
-- Budget structure change that transfers $50.6 million in Facilities Maintenance funds from Construction to the elementary + secondary school non-forward funded programs -- Program eliminations totaling $4.3 million

Elementary and Secondary Programs–Forward Funded FY 2011 Enacted $520,047,000 FY 2012 Admin. Request $526,117,000
 FY 2012 Enacted $522,246,000.

Amounts provided under the forward funded category are for use in School Year (SY) 2012-2013. The FY 2012 amount is a net increase of $2.1 million over the FY 2011 level. The forward funded programs and their proposed funding levels are: Tribal Grant Support Costs – $46,252,000. Funds are for administrative costs of existing tribally-operated schools. As in prior years, the Administration did not seek, and Congress did not provide, separate funds for the transitional costs associated with schools which convert from federal to tribal operation. Bill language is continued that authorizes up to $500,000 of Tribal Grant Support Costs (TGSC) funds to be used for the initial year costs. The BIE estimated the FY 2012 request amount of $46.37 million would provide only 65 percent of administrative costs need in SY 2012-2013 and that three schools may be converting to tribally controlled schools status in FY 2012.
o Indian School Equalization Formula (ISEF) – $390,706,000. The BIE had estimated that ISEF funding at the FY 2012 request level of $392.3 million would result in a weighted student unit (WSU) of $5,320.62 in SY 2012-2013. In comparison, the FY 2010 ISEF level of $391.6 million resulted in a $5,312.38 WSU in SY 2010-2011.
o ISEP Program Adjustments – $5,277,000. The Act provides $1.9 million of the requested $3.9 million increase to address "significant safety and security issues" at 10 schools and 2 dormitories identified via the Native American Student Information System (NASIS) incident reports as having the most critical needs. The balance of Program Adjustment funds are used primarily for the "FOCUS on Student Achievement Project," which targets schools that are close to meeting the annual measurable objectives set by their state achievement tests and where the additional resources could help them achieve Adequate Yearly Progress (AYP). A small amount is also allocated for security and police at the Chemawa Indian School.
 o Student Transportation – $52,631,000. The FY 2012 amount is a $61,000 decrease. The BIE estimated the request amount of $52.7 million would provide a SY 2012-2013 payment rate of $3.23 per mile, the same as the SY 2010-2011 rate. The Student Transportation funds are also used to fund two round-trip airfares for students attending off-reservation boarding schools in addition to the operation of school transportation systems.
 o Early Childhood Development – $15,345,000. The FY 2012 amount reflects a $4,000 decrease due to the 0.16 percent reduction. In SY 2010-2011 these funds supported the Family and Child Education (FACE) program for pre-school children, parenting skills, adult education and family literacy services at 46-sites.
 o Education Program Enhancements – $12,031,000. This reflects a $12,000 decrease due to the 0.16 percent reduction. As in previous years, these funds will be used to continue targeted assistance to schools that have not achieved AYP—particularly those in restructuring status.

Elementary and Secondary Programs (non-forward funded programs)

FY 2011 Enacted $ 76,938,000
 FY 2012 Admin. Request $122,730,000
 FY 2012 Enacted $122,533,000.

Amounts provided under the non-forward funded category are for use in SY 2011-2012. The Act provides a $45.5 million net increase, which includes the aforementioned $50.6 million transfer of Facilities Maintenance funding from Education Construction to Elementary and Secondary Programs. Congress also agreed to the elimination of the Residential Education Placement ($3.7 million) and the Juvenile Detention Education ($619,000) programs. Program specifics in this category are:
 o Facilities Operations – $58,565,000; a $584,000 decrease. The Facilities Operations funds are used for costs such as electricity, heating fuels, communications, GSA vehicle rentals, custodial services and numerous other vital operating expenses. For the past several years, schools have received less than 50 percent of the amount needed for Facilities Operations.
 o Facilities Maintenance – $50,664,000; a $102 million decrease. These funds are also a transfer from the Education Construction account to "increase transparency" and reflect its status as an annual operational cost. (IA-EDU-2). Funds are used for the preventive and routine upkeep as well as unscheduled maintenance of school buildings, equipment, utility systems and grounds.
 o Johnson O'Malley (JOM) – $13,303,000; an $82,000 decrease. JOM funds provide special academic and culturally relevant educational services to Indian students from age three through the 12th grade at public schools. According to the budget justification, 88 percent of the funds are distributed directly to tribes as base funding through its Self-Governance or Consolidated Tribal Government Programs.
 o Program Eliminations – $4,319,000. The Administration proposed, and Congress agreed, to eliminate funding for the following programs in order to "address other core responsibilities to American Indians and Alaska Natives”: Residential Education Placement Program – funded at $3,760,000 in FY 2010 to provide 24-hour institutionalized care for children with severe disabilities. The budget justification stated that funding from the Department of Education may be used for this same purpose. Juvenile Detention Education – funded at $620,000 in FY2011 to provide educational services to detained and incarcerated youth at the 24 BIA-funded juvenile detention facilities. The budget justification stated funding would be eliminated "to address other core responsibilities to American Indians/Alaska Natives."

Education Management

FY 2011 Enacted $29,916,000
 FY 2012 Admin. Request $22,006,000
 FY 2012 Enacted $21,970,000.

Education Management is comprised of two elements: Education Program Management ($15.2 million), and Education IT ($6.6 million), which funds the collection and analyses of school performance data. Specifics for programs in this category are:
 o Education Program Management – $15,287,000 for administrative costs in performing services as a State Education Agency and like those performed by a public school district for the BIE-funded school system as well as employee separation costs. The FY 2012 amount is a $7.4 million decrease.
 o Education Information Technology – $6,683,000. The FY 2012 amount is a $475,000 decrease. Funds are used for data telecommunications to support the Educational Native American Network (ENAN, which provides Internet capability at the schools) and the Native American Student Information System (NASIS, which is a web-based data collection and analysis system used by the BIE).

Bill Language

• Multi-Program Contractors. The Act continues the provision in prior Interior appropriations that is intended to preserve the ability of tribes who operate both school and non-school programs to receive appropriate funding for administrative costs and indirect costs incurred by these multi-program contractors. Notwithstanding any other provision of law, including section 113 of title I of appendix C of Public Law 106-113, if in fiscal year 2003 or 2004 a grantee received indirect and administrative costs pursuant to a distribution formula based on section 5(f) of Public 101-301, the Secretary shall continue to distribute indirect and administrative cost funds to such grantee using the section 5(f) distribution formula.

• Jones Academy. The Act does not include the Administration-proposed language that would recognize Jones Academy as eligible for school operations funding starting in SY 2012-2013, thus overriding the current prohibition on new schools.

• IDEA Data Collection. The Act continues language to authorize the BIA to collect data from the IHS and tribes regarding disabled children in order to assist with the implementation of the Individuals with Disabilities Education Act (IDEA).
Provided further, that the Bureau of Indian Affairs may collect from the Indian Health Service, tribes and tribal organizations operating health facilities pursuant to Public Law 93-638, such individually identifiable health information relating to disabled children as may be necessary for the purpose of carrying out its functions under the Individuals with Disabilities Education Act (20 U.S.C. 1400, et. seq.)
Post Secondary Programs (Forward Funded)
FY 2011 Enacted $64,192,000
 FY 2012 Admin. Request $64,321,000
 FY 2012 Enacted $67,293,000

According to the budget justification, the $64.3 million total for Tribal Colleges and Universities (TCU) included $63.6 million for TCU Operating Grants, $601,000 for Technical Assistance and $109,000 for Endowment Grants. The TCU program will provide funding to 27 tribal colleges in FY 2012.

Post Secondary Programs (Non-Forward Funded)
FY 2011 Enacted $61,603,000
 FY 2012 Admin. Request $60,380,000
 FY 2012 Enacted $61,434,000

The Post Secondary Programs line items are: Haskell and SIPI operating costs; Tribally Controlled Colleges and Universities Supplements; Tribal Technical Colleges; Scholarships and Adult Education; and Special Higher Education Scholarships.

• Tribal Technical Colleges. The Act provides $6.76 million for the tribal technical colleges (United Tribes Technical College and Navajo Technical College), a $680,000 increase over FY 2011. The funds are distributed proportionately between the two schools for a total of $4.5 million for UTTC and $2.2 million for NTC.

• Scholarships and Adult Education. The Act provides $32.7 million or $1.7 million less than the FY 2011 level. Funds are provided to tribes via TPA to award individual post secondary scholarships.

CONSTRUCTION

FY 2011 Enacted $209,579,000, FY 2012 Admin. Request $104,992,000, FY 2012 Enacted $123,629,000.

The FY 2012 Construction total is an $85.9 million decrease from the FY 2011 level, including transfers totaling $58.1 million to the Operation of Indian Programs. Congress did not concur with the Administration’s proposal to impose a freeze on school and facilities construction, instead partially reinstating Replacement School Construction.

For budget details by program, see page IA-CBT-4 of the attached chart.

EDUCATION CONSTRUCTION

FY 2011 Enacted $140,509,000, FY 2012 Admin. Request $ 52,104,000, FY 2012 Enacted $ 70,826,000

The FY 2012 total is a $69.6 million decrease for all education construction and repair activities, but does reinstate $17.8 million for Replacement School Construction. The Administration did not request, and Congress did not provide, any funds for the Replacement Facility Construction program ($29.4 million in FY 2011), which funds replacement of a single building that is part of an existing school campus and is in poor condition.

Replacement School Construction, FY 2011 Enacted $21,463,000, FY 2012 Admin. Request –0–
FY 2012 Enacted $17,807,000

This account funds total replacement of an existing school campus, in accordance with a priority construction list, and Advance Planning and Design activities such as architectural and engineering services. The Conference report directs that the FY 2012 funds are to be used for the next school on the 2004 priority list.

Facilities Improvement + Repair FY 2011 Enacted $85,142,000, FY 2012 Admin. Request $47,669,000, FY 2012 Enacted $48,591,000

The FY 2012 FI+R amount reflects an internal transfer of $50.6 million in Facilities Maintenance funds from Construction to the Operation of Indian Programs–BIE category. The Act includes, as requested, a $13.8 million increase through the redirection of the Replacement School and Replacement Facility construction funds. The budget justification stated: The FI&R funding will be used to repair major building and/or infrastructure systems and keep the current facilities/infrastructure operational. This redirection in funding will significantly improve the program’s ability to meet customer needs. (IA-CON-ED-2)

The budget justification reported the $47.7 million request level would be allocated as follows:
 o Program Management – $3.2 million
 Minor improvement & repair – $11.2 million
 Advance planning and design – $1 million
 Condition assessments – $2.5 million
 Demolition/reduction of excess space – $2.98 million
 Emergency repairs – $3.49 million
 Environmental projects – $4.8 million
 Portable classrooms – $1.5 million
 Energy Program – $3.2 million
 Education telecommunications – $350,000
o Boiler inspections – $250,000
o Seismic safety data – $72,000
o Cyclic maintenance – $13.1 million; a new category whereby funds will be used for conducting cyclic maintenance of all buildings, equipment, utility systems and ground structures.

Employee Housing FY 2011 Enacted $4,438,000, FY 2012 Admin. Request $4,435,000, FY 2012 Enacted $4,427,000

These funds will be used to continue asbestos and lead-based paint abatement, along with disposal of housing units previously identified through the study.

Bill Language

The Act continues the appropriations language that allows the Bureau to take over a construction project from a grantee that fails to complete planning and design of a project and begin construction within 18 months of funds being appropriated. Provided further, That in order to ensure timely completion of construction projects, the Secretary may assume control of a project and all funds related to the project, if, within eighteen months of the date of enactment of this Act, any grantee receiving funds appropriated in this Act or in any prior Act, has not completed the planning and design phase of the project and commenced construction

OTHER CONSTRUCTION

Public Safety & Justice (PS&J) Construction

FY 2011 Enacted $17,864,000, FY 2012 Admin. Request $11,329,000, FY 2012 Enacted $11,310,000.

Within the PS&J Construction total are Employee Housing; Facilities Improvement and Repair (FI+R) program; Fire Safety Coordination; and Fire Protection. The Administration did not seek, and Congress did not provide, any funds for Facility Replacement/New Construction. Highlights of PS&J construction are:
 o Employee Housing – $3.4 million, level with FY 2011. The FY 2012 funds will be used for "repair, replacement, or construction of new quarters at existing detention centers or law enforcement facilities." Facilities Improvement and Repair –$4.3 million; a $6.5 million decrease from the FY 2011 level which reflects the detention facilities maintenance funds transferred to the OIP-Public Safety and Justice account.

Resources Management Construction

FY 2011 Enacted $42,074,000, FY 2012 Admin. Request $33,012,000, FY 2012 Enacted $32,959,000.

Resources Management funds are used for Irrigation Project Construction; Engineering and Supervision; Survey and Design; Dam Projects; and Federal Power Compliance (FERC). The Act agrees to the proposed decrease of $9 million under the Navajo Indian Irrigation Project (NIIP). The budget justification stated that no funds for new construction were requested and that future funding options would be reviewed by the NIIP Policy Team.

Bill Language

• OST Reimbursement for Space Expansion. Bill language is continued that allows the Office of the Special Trustee to reimburse its appropriate share of construction costs related to the expansion of space at the agency level necessitated by trust reform implementation. Provided further, That this appropriation may be reimbursed from the Office of the Special Trustee for American Indians appropriation for the appropriate share of construction costs for space expansion needed in agency offices to meet trust reform implementation.

NON-BIA PROGRAMS

OFFICE OF SPECIAL TRUSTEE (OST)
(Amounts in following sections DO NOT reflect 0.16 percent reduction).

FY 2011 Enacted $160,678,000, FY 2012 Admin. Request $152,319,000, FY 2012 Enacted $152,319,000.

Within the OST total are $2.2 million for Executive Direction and $150.1 million for Program Operations and Support. The OST budget justification states that “As trust reform projects near completion, personnel resources will be redistributed to ensure strategic placement of personnel according to agency goals and priorities. Some positions will be eliminated and/or redefined through this process.” (p. OST – 5)

• Office of Historical Trust Accounting (OHTA) – $31.17 million; includes $27.2 million to support analysis of tribal claims, and $4 million to resolve ownership of residual balances related to special deposit accounts and distributions to tribes, individual Indians, and non-trust entities.

Bill Language

• Indian Probate Judges. The Act amends to make permanent the provision that deems Indian probate cases heard by an Indian probate judge as meeting the hearing requirements, and sets the pay level for Indian probate judge services.
 SEC. 111. For fiscal year 2006 and each fiscal year thereafter, for the purpose of adjudicating Indian probate cases in the Department of the Interior, the hearing requirements of chapter 10 of title 25, United States Code, are deemed satisfied by a proceeding conducted by an Indian probate judge, appointed by the Secretary without regard to the provisions of title 5, United States Code, governing the appointments in the competitive service, for such period of time as the Secretary determines necessary: Provided, That the basic pay of an Indian probate judge so appointed may be fixed by the Secretary without regard to the provisions of chapter 51, and subchapter III of chapter 53 of title 5, United States Code, governing the classification and pay of General Schedule employees, except that no such Indian probate judge may be paid at a level which exceeds the maximum rate payable for the highest grade of the General Schedule, including locality pay.

• Statute of Limitations. The Act continues language to extend the statute of limitations on filing tribal and individual Indian mismanagement claims. Provided further, That notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss.

• Other. The Act also continues the following provisions related to the trust programs—
o Authorizes the use of unobligated balances from prior appropriations acts for OST or BIA for trust management reform, other than activities related to historical accounting, which is limited to the appropriated amount. (Sec. 104)
o Pay private attorneys for the costs of legal representation for employees and former employees incurred in connection with Cobell v. Salazar. (Sec. 106)

NATIONAL PARK SERVICE (NPS), (Amounts in following sections DO NOT reflect 0.16 percent reduction)

o Tribal historic preservation grants – $9 million, $1.01 million above the FY 2011 level. These funds aide tribes in assuming the State Historic Preservation Office duties on tribal lands. The Administration requested $11 million, estimating that it would support seven additional Tribal Preservation Officers and provide small increases for the 118 ongoing grants to existing Tribal Historic Preservation Offices.
 o Native American Graves Protection and Repatriation Act (NAGPRA) grants – These funds assist tribes and Native Hawaiian organizations document and work for repatriation of cultural items, and assist museums to achieve NAGPRA compliance. The Administration requested $1.75 million, which was funded at $2.3 million in FY 2010. Budget details do not show the FY 2012 amount for NAGPRA grants but does show that Cultural Programs, which includes NAGPRA grants funds, is funded at the request level. Thus, it is likely the NAGPRA grants will be funded at the request level, minus the 0.16 percent reduction.

FISH AND WILDLIFE SERVICE, (Amounts in following sections DO NOT reflect 0.16 percent reduction)

State and Tribal Wildlife Grants
 FY 2011 Enacted $61,876,000, FY 2012 Admin. Request $95,000,000, FY 2012 Enacted $61,421,000

These funds are used for the development of wildlife conservation plans and on-the-ground conservation projects to stabilize, restore, enhance, and protect species and their habitats. Within the total, the Tribal competitive grant program is funded at $4.2 million, which is $2.7 million less than FY 2011 level, not including the 0.16 percent reduction.

OFFICE OF NAVAJO AND HOPI RELOCATION (Amounts in following sections DO NOT reflect 0.16 percent reduction)

FY 2011 Enacted $7,984,000
 FY 2012 Admin. Request $9,570,000
 FY 2012 Enacted $7,750,000.

Funds are used for activities related to the settlement of a northern Arizona land dispute between the two tribes.

INSTITUTE OF AMERICAN INDIAN AND ALASKA NATIVE CULTURE AND ARTS DEVELOPMENT
(Amounts in following sections DO NOT reflect 0.16 percent reduction)

FY 2011 Enacted $8,283,000, FY 2012 Admin. Request $9,225,000, FY 2012 Enacted $8,533,000.

Funds are used to support the operational costs of the Institute, a multi-tribal higher education center focused on the study, application, preservation and care of Indian arts and culture.”

___

Hobbs Straus General Memorandum 12-025, February 10, 2012, downloadable at: GM12-025 FY 2012 EPA Approps.pdf, reported FY 2012 Appropriations for Selected Programs of the Environmental Protection Agency. “On December 23, 2011, President Obama signed the Consolidated Appropriations Act, 2012, as Public Law 112-74, an Act which includes FY 2012 funding for what would normally be nine separate appropriations bills (HR 2055; Conference Report is H.Rpt. 112-331). Included in the Act is funding for programs under the Interior, Environment, and Related Agencies Appropriations bill (Division E of the Act). In this Memorandum we report on the funding levels for selected programs in the Environmental Protection Agency that are of particular interest to Indian tribes and tribal organizations. During the first several months of FY 2012, most federal programs were funded under a Continuing Resolution at their FY 2011 level minus 1.5%. Under PL 112-74, Congress applied several across-the-board reductions which vary by appropriations sections. Programs, projects, and activities as detailed in the Act, accompanying reports, or President's budget under Interior, Environment and Related Agencies have an across-the-board reduction of 0.16 percent. This 0.16 percent reduction is not, however, reflected in the numbers provided in this Memorandum.

Guidance. The Conference report states with regard to consideration of Appropriations Committee report language: Language contained in House Report 112-151 [there was no Senate Committee report] providing specific guidance to agencies regarding the administration of appropriated funds and any corresponding reporting requirements carries the same emphasis as the language included in this explanatory statement and should be complied with unless specifically addressed to the contrary herein. In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and do not reflect the views of the conferees unless otherwise repeated in this statement.

Status of Appropriations Balances. The Act includes House-proposed bill language that requires the DOI, IHS, EPA and Forest Service to provide Congress quarterly reports on the balances of appropriations. The bill language states:
 SEC. 424. The Department of the Interior, the Environmental Protection Agency, the Forest Service, and the Indian Health Service shall provide the Committees on Appropriations of the House of Representatives and Senate quarterly reports on the status of balances of appropriations including all uncommitted, committed, and unobligated funds in each program and activity.

The House report explained: During the development of the fiscal year 2011 continuing resolution, it became evident that many of the agencies under the subcommittee's jurisdiction were unable to provide this data relating to both discretionary and mandatory accounts on a timely basis. The Committee experienced delays in receiving this information and found that the agency reports did not provide a comprehensive picture of the status of balances. Of particular concern, the Committee found that the agencies could not report on the age of balances by year of appropriation. As a result, it is not possible to tell whether the balances derive from uncommitted or unobligated balances in the immediately prior fiscal year or from appropriations acts enacted two, three or more years earlier.

The source year of carryover is important. If balances have languished on the books for multiple fiscal years it is a symptom, at best, of administrative inefficiency. Of more concern, it may suggest that the Committee was asked to provide appropriations in excess of the amount required to accomplish program purposes. Given the obvious importance of the source year of balances to budget administration, the Committee is puzzled that agencies have not configured internal accounting systems to capture and routinely report this information. . . .
…Bill language contained in Title IV requires that the Department of the Interior, EPA, Forest Service, and the Indian Health Service begin reporting to the Committee on a quarterly basis on the status of balances, including the source year of balances. It is the Committee's intention that the agency reports show the status of balances at the appropriation account level, as well as at budget activity or other lower levels where such levels are reflected in the Committee's report accompanying an appropriation act. (H.Rpt. 112-151, pp. 5-6)

Improved Coordination. The House committee expressed its views on the "fragmented" grant and funding opportunities processes tribes must navigate through the various agencies to address their needs. The Committee directed the DOI, HHS, DOJ, EPA and Forest Service to provide a report on possible streamlining and improved coordination on funding opportunities and opportunities for new compacts. The report stated:

While the Committee's recommendation and the President's budget include funds for these services, responsibility and oversight for many of the projects and programs are dispersed over several agencies. Some are contained within this Act, while others are not. For example, no less than three agencies may be involved in constructing a home on a reservation: the Indian Health Service, the Department of Housing and Urban Development, and the Bureau of Indian Affairs. Tribes may also seek funds from the Department of Transportation and the Environmental Protection Agency for infrastructure support of those homes. The result is a fragmented and confusing approach to addressing basic infrastructure and the health and education needs of American Indian communities.

On November 5, 2009, the President signed a memorandum directing all Federal agencies to provide a plan on how each agency is implementing Executive Order 13175, which requires Federal agencies to engage in regular and meaningful consultation with Tribes. The Committee supports this effort, but views it only as an initial step. Beyond consultation, there must be more effective implementation of the Federal laws and programs created to honor this Nation's trust responsibility to American Indians–including meeting government-wide mandates under the Indian Self-Determination and Education Assistance Act (ISDEA, P.L. 93–638, as amended).

The Committee directs the Secretary of the Interior, the Secretary of Health and Human Services, the Attorney General, the Administrator of the Environmental Protection Agency, and the Chief of the Forest Service to provide this Committee within 120 days of enactment of this Act a joint report on: (1) how these agencies can use the consultation process to streamline and coordinate grant programs and funding opportunities for American Indian programs under their jurisdiction; and (2) opportunities for each agency and bureau to enter into new compacts with Tribes, as per ISDEA. (H.Rpt. 112-151, pp. 13-14)

The House report included a number of policy riders and would have made more drastic cuts than the enacted funding levels we report below. Language in the Act softened the majority of these proposed cuts and removed many of the policy riders.

ENVIRONMENTAL PROTECTION AGENCY

FY 2011 Enacted $8,682,117,000, FY 2012 Admin. Request $8,973,000,000, FY 2012 Enacted $8,463,005,000

The Act funds the EPA at $509.9 million below the Administration's request and $219.1 million below the FY 2011 enacted level. There are a limited number of tribal-specific programs under the EPA but tribes are often eligible for the larger grant programs. We report below on several programs of interest to tribes.

STATE AND TRIBAL ASSISTANCE GRANTS

FY 2011 Enacted $3,758,913,000
 FY 2012 Admin. Request $3,860,430,000
 FY 2012 Enacted $3,618,727,000

There are two categories of assistance under the State and Tribal Assistance Grants (STAG), e.g., Infrastructure Assistance Grants ($2.5 billion), and Categorical Grants ($1 billion). Funds are issued to help communities fulfill the requirements of various environmental protection laws, as well as to rehabilitate land, water, and air resources that have been harmed.

Infrastructure Assistance Grants

• Water Supply and Wastewater Infrastructure Grants for Alaska Rural and Native Villages
 FY 2011 Enacted $ 9,980,000
 FY 2012 Admin. Request $10,000,000
 FY 2012 Enacted $10,000,000

The Alaska Rural and Native Village Program, administered by the State of Alaska, provides infrastructure funding to Alaska Native Villages and rural Alaska communities that lack access to basic drinking water and sanitation infrastructure. The Act states that,

$10,000,000 shall be for grants to the State of Alaska to address drinking water and wastewater infrastructure needs of rural and Alaska Native Villages: Provided further, That, of these funds: (1) the State of Alaska shall provide a match of 25 percent; (2) no more than 5 percent of the funds may be used for administrative and overhead expenses; and (3) the State of Alaska shall make awards consistent with the State-wide priority list established in conjunction with the Agency and the U.S. Department of Agriculture for all water, sewer, waste disposal, and similar projects carried out by the State of Alaska that are funded under section 221 of the Federal Water Pollution Control Act (33 U.S.C. 1301) or the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) which shall allocate not less than 25 percent of the funds provided for projects in regional hub communities; (PL 112-74, pp. 232)

The House report which was superseded by the Act had proposed to zero out the program entirely stating,

Alaska Native Villages.—Since 1995 the Committee has provided over $450,000,000 to address the lack of basic drinking water and wastewater infrastructure needs in rural and Native communities. The Committee has continued to authorize the program since its expiration in 2000 in order to continue to address the significant challenges in these rural communities despite the duplication of available funding relative to the State Revolving Funds. The Committee has not included funding for this unauthorized grant program in 2012 recognizing that low income and disadvantage communities may apply for water and wastewater infrastructure funding through the State Revolving Funds. Additional subsidies are available for those communities that may not be able to afford the traditional low-interest SRF loans. (H.Rpt. 112-151, pp. 79-80)

• Brownfields Projects
 FY 2011 Enacted $99,800,000
 FY 2012 Admin. Request $99,041,000
 FY 2012 Enacted $95,000,000

• Safe Drinking Water Revolving Loan Fund
 FY 2011 Enacted $963,070,000
 FY 2012 Admin. Request $990,000,000
 FY 2012 Enacted $919,363,000

Grants under this program can go to tribes directly as well as to the Indian Health Service under cooperative agreements to fund tribal projects.

• Clean Water State Revolving Loan Fund
 FY 2011 Enacted $1,521,950,000
 FY 2012 Admin. Request $1,550,000,000
 FY 2012 Enacted $1,468,806,000

These funds will be used for building or improving sanitation facilities in Indian Country.

Language in the Act provides that two percent of the Clean Water State Revolving Funds and the Drinking Water State Revolving Funds is set aside for tribes.

Provided further, That for fiscal year 2012, and notwithstanding section 518(f) of the Act, the Administrator is authorized to use the amounts appropriated for any fiscal year under section 319 of that Act to make grants to federally recognized Indian tribes pursuant to sections 319(h) and 518(e) of that Act: Provided further, That for fiscal year 2012, notwithstanding the limitation on amounts in section 518(c) of the Federal Water Pollution Control Act and section 1452(i) of the Safe Drinking Water Act, up to a total of 2 percent of the funds appropriated for State Revolving Funds under such Acts may be reserved by the Administrator for grants under section 518(c) and section 1452(i) of such Acts: (PL 112-74, pp. 233)

Language in the Act provides the Administrator of the EPA a certain degree of flexibility to transfer funds between accounts, namely,

Provided further, That for fiscal year 2012 and hereafter, the Administrator may transfer funds provided for tribal set-asides through funds appropriated for the Clean Water State Revolving Funds and for the Drinking Water State Revolving Funds between those accounts in such manner as the Administrator deems appropriate, but not to exceed the transfer limits given to States under section 302(a) of Public Law 104–182. (PL 112-74, pp. 233-234)

Categorical Grants

• Tribal General Assistance Program (GAP) FY 2011 Enacted $67,739,000, FY 2012 Admin. Request $71,375,000, FY 2012 Enacted $67,739,000

GAP provides general assistance grants to build capacity to administer environmental regulatory programs that may be authorized by EPA in Indian Country, and to provide technical assistance in the development of multimedia programs to address environmental issues on Indian lands. The GAP grants cover the costs of planning, developing, and establishing environmental protection programs consistent with other applicable provisions of law providing for enforcement of such laws by Indian tribes on Indian lands.

• Tribal Air Quality Management FY 2011 Enacted $13,273,000, FY 2012 Admin. Request $13,566,000, FY 2012 Enacted $13,273,000

This program includes funding for tribal air pollution control agencies and tribal governments. Through Clean Air Act (CAA) section 105 Grants, tribes may develop and implement programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air standards. Through CAA Section 103 grants, tribal air pollution control agencies or tribes, colleges, universities, or multi-tribe jurisdictional air pollution control agencies and/or non-profit organizations may conduct and promote research, investigations, experiments, demonstrations, surveys, studies and training related to air pollution.

• Brownfields Grants
 FY 2011 Enacted $49,396,000
 FY 2012 Admin. Request $49,495,000
 FY 2012 Enacted $49,396,000

• Section 319 Non-Point Source Pollution Grants
 FY 2011 Enacted $175,505,000
 FY 2012 Admin. Request $164,757,000
 FY 2012 Enacted $164,757,000

Grants under Section 319 of the Clean Water Act are provided to states, territories, and tribes to help them implement their EPA-approved non-point source management programs by remediating non-point source pollution that has occurred in the past and by preventing or minimizing new non-point source pollution.

• Wetland Program Development Grants FY 2011 Enacted $16,796,000, FY 2012 Admin. Request $15,167,000, FY 2012 Enacted $15,167,000

The Wetland Program Development Grants enable EPA to provide technical and financial support to assist states, tribes, and local governments toward the national goal of an overall increase in the nation's wetlands. Grants are used to develop new or refine existing state and tribal wetland protection, management, and restoration programs as well as to implement programs where environmental results can be demonstrated.

BROWNFIELDS

FY 2011 Enacted $23,680,000, FY 2012 Admin. Request $26,397,000, FY 2012 Enacted $23,680,000

This program, under the EPA's Environmental and Program Management program, differs from the Brownfields programs listed above. It is designed to help states, tribes, local communities and other stakeholders in economic redevelopment to work together to assess, safely clean up, and reuse Brownfields. The other programs provide funding for cleanup purposes alone. However, the programs work in conjunction with one another.

RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) WASTE MANAGEMENT

FY 2011 Enacted $118,043,000, FY 2012 Admin. Request $116,871,000, FY 2012 Enacted $112,643,000

The RCRA Waste Management program is designed to reduce the amount of waste generated and to improve the recovery and conservation of materials by focusing on a hierarchy of waste management options that advocate reduction, reuse, and recycling over treatment and disposal. The program has a tribal component, which is aimed at providing technical assistance to tribes.

LEAKING UNDERGROUND STORAGE TANKS (LUST/UST)

• Environmental and Program Management Fund FY 2011 Enacted $12,966,000, FY 2012 Admin. Request $12,866,000, FY 2012 Enacted $12,866,000

• State and Tribal Assistance Grants FY 2011 Enacted $2,495,000, FY 2012 Admin. Request $1,550,000, FY 2012 Enacted $1,550,000

This program is designed to prevent, detect, and repair leaks from underground storage tanks including those containing fuel or oil. The Environmental and Program Management funds primarily go to states to help with enforcement, though the EPA is working with tribes and tribal consortia to build and implement their own LUST programs. The State and Tribal Assistance Grants for LUST are used primarily to assist tank owners in ensuring their tanks do not leak and to detect leaks.”

Indian Health Service Fiscal Year 2012 Appropriations, PL 112-74,” Hobbs Straus General Memorandum 12-009, January 18, 2012, downloadable with charts with details of the appropriations at: GM_12-009IndianHealthServiceFY12Enacted.pdf.

On December 23, 2011, President Obama signed HR 2055 as Public Law 112-74 the Consolidated Appropriations Act, 2012, an Act which includes FY 2012 funding for what would normally be nine separate appropriations bills. Included in the Act is funding for programs under the Interior, Environment, and Related Agencies Appropriations bill (Division E of the Act). Here is the Hobbs Straus report on FY 2012 appropriations for the Indian Health Service (IHS). The Conference Report is House Report 112-331. Previous to this signing, the IHS and most other federal programs had been funded under a Continuing Resolution during FY 2012 at their FY 2011 level minus 1.5 percent.

“Under the Act, Congress applied several across-the-board reductions which vary by appropriations sections. Programs, projects, and activities as detailed in the Act, accompanying reports, or President's budget under Interior, Environment and Related Agencies have an across-the-board reduction of 0.16 percent. Figures in this Memorandum do not reflect the 0.16 percent reduction.

The Conference report states with regard to consideration of Appropriations Committee report language (there was a House but no Senate Committee report):

Language contained in House Report 112-151 providing specific guidance to agencies regarding the administration of appropriated funds and any corresponding reporting requirements carries the same emphasis as the language included in this explanatory statement and should be complied with unless specifically addressed to the contrary herein. In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and do not reflect the views of the conferees unless otherwise repeated in this statement.

FUNDING OVERVIEW

The President's request of a 14.1% increase in the FY 2012 IHS budget was not realized, although relative to other federal agencies the IHS fared better than most. (Most domestic non-security programs are proposed by the Administration for a five-year funding freeze.) The FY 2012 IHS appropriations are 5.8% p more than the FY 2011 appropriations. Much of the increase is in the form of staffing for new facilities and health facility construction which are not really program increases. However, there is a real program increase for Contract Support Costs. Congress did not provide the Administration's requested increases for pay costs for Commissioned Officers ($4.1 million); inflation ($155 million – 3.6% medical and 1.5 percent non-medical inflation rates); and population growth ($96.6 million – 1.3% growth rate). These costs – totaling $255 million – will need to be absorbed from existing program funds. (We note that there also was no funding for built-in costs for the IHS in FY 2011 except for pay raises for Commissioned Officers.)

There is no funding for IHS/tribal employee pay raises as funding for federal civilian employees is frozen.

Decreases. The Administration proposed, and Congress approved, funding decreases of $5.9 million from grants: Health Promotion/Disease Prevention ($1.1 million); National Congress of American Indians' healthy youth lifestyles initiative ($1 million); Institute for Healthcare Improvement chronic care ($835,000); Elder Health Long Term Care ($700,000); Children and Youth ($600,000); Women's Health ($600,000); Domestic Violence/Sexual Assault Grant to Urban Programs ($524,000); National Indian Health Board ($500,000); and National Native American EMS Association ($90,000). An additional $1.1 million in grant reduction is to be absorbed by the IHS. The House report directs the IHS to continue its cooperative agreement with the National Indian Health Board from within existing funds.

In addition, a reduction of $16 million was enacted for sanitation facilities construction.

Staffing of New Facilities. The Act (Services and Facilities accounts combined) includes $63 million for the staffing and operating costs for the following new facilities: $2,487,000 for the Carl Albert Hospital in Ada, OK; $1,088,000 for the Lake County Tribal Health Center in Lakeport, CA; $7,315,000 for the Elbowoods Health Center in New Town, ND; $24,672,000 for the Cheyenne River Health Center in Eagle Butte, SD; $8,981,000 for the Absentee Shawnee Health Center in Little Axe, OK; $8,665,000 for the Cherokee Nation Vinita Health Center in Vinita, OK; and $9,843,000 as a joint venture placeholder for two facilities.

Increases. Increases above the FY 2011 level are $65 million for Contact Health Services ($845 million total); $74.5 million for Contract Support Costs ($472 million total); $12 million for the Indian Health Care Improvement Fund ($57.5 million total), and $3.4 million for Health Information Technology Security ($176 million total for Health Information Technology in Hospitals and Clinics account). Lack of funding for inflation will partially offset these program increases.

LEGISLATIVE PROVISIONS

Extension of the Restriction of IHS Funds in Alaska to Regional Native Organizations. Congress extended until October 1, 2013, the provision, enacted as part of FY 2010 Interior Appropriations (PL 111-88), that provides that IHS funds for Alaska be made available only to regional Alaska Native health organizations (with some exceptions). The Administration had proposed to not extend this provision. The Act reads:
 Sec. 435. (a) Notwithstanding any other provision of law and until October 1, 2013, the Indian Health Service may not disburse funds for the provision of health care services pursuant to Public Law 93-638 (25 U.S.C. 450 et. seq.) to any Alaska Native village or Alaska Native village corporation that is located within the area served by an Alaska Native regional health entity.
(b) Nothing in this section shall be construed to prohibit the disbursal of funds to any Alaska Native village or Alaska Native village corporation under any contract or compact entered into prior to May 1, 2006, or to prohibit the renewal of any such agreement.
(c) For the purpose of this section, Eastern Aleutian Tribes, Inc., the Council of Athabascan Tribal Governments, and the Native Village Eyak shall be treated as Alaska Native regional health entities to which funds may be disbursed under this section. Contract Support Costs Cap. The Act, consistent with previous appropriations acts, continues a statutory cap on IHS Contract Support Costs – $472,193,000. 
Contract Support Limitation. The Act, consistent with the Interior Appropriations acts for FYs 1999-2011, attempts to limit the ability of the IHS and BIA to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years: Idea Data Collection Language. The Act continues language to authorize the BIA to collect data from the IHS and tribes regarding disabled children in order to assist with the implementation of the Individuals with Disabilities Education Act (IDEA):
Provided further, That the Bureau of Indian Affairs may collect from the Indian Health Service and tribes and tribal organizations operating health facilities pursuant to Public Law 93-638 such individually identifiable health information relating to disabled children as may be necessary for the purpose of carrying out its functions under the Individuals with Disabilities Education Act, (20 U.S.C. 1400, et. seq.)
Prohibition on Implementing Eligibility Regulations. The prohibition on the implementation of the eligibility regulations published on September 16, 1987, is continued. Services for non-Indians. The provision that allows the IHS and tribal facilities to extend health care services to non-Indians, subject to charges, is continued. The provision states: Provided, In accordance with the provisions of the Indian Health Care Improvement Act, non-Indian patients may be extended health care at all tribally administered or Indian Health Service facilities, subject to charges, and the proceeds along with funds recovered under the Federal Medical Care Recovery Act (42 U.S.C. 2651-2653) shall be credited to the account of the facility providing the service and shall be available without fiscal year limitation. Assessments by DHHS. Bill language is continued that has been in the Interior appropriations act for a number of years which provides that no IHS funds can be used for any assessments or charges by DHHS "unless identified in the budget justification and provided in this Act, or approved by the House and Senate Committees on Appropriations through the reprogramming process." The Administration has held the provision would restrict the Department's flexibility in managing overall resources for the Agency. Limitation on No-Bid Contracts. The Act continues the provision from FY 2010 regarding the use of no-bid contracts. The provision specifically exempts Indian Self-Determination agreements and reads:
 Sec. 416. None of the funds appropriated or otherwise made available by this Act to executive branch agencies may be used to enter into any Federal contract unless such contract is entered into in accordance with the requirements of the Chapter 33 of title 41 United States or chapter 137 of title 10, United States Code, and the Federal Acquisition Regulations, unless:
(1) Federal law specifically authorizes a contract to be entered into without regard for these requirements, including formula grants for States, or federally recognized Indian tribes; or
(2) such contract is authorized by the Indian Self-Determination and Education and Assistance Act (Public Law 93-638, 25 U.S.C. 450 et seq., as amended) or by any other Federal laws that specifically authorize a contract within an Indian tribe as defined in section 4(e) of that Act (25 U.S.C. 450b(e)); or
(3) Such contract was awarded prior to the date of enactment of this Act.

FUNDING FOR INDIAN HEALTH SERVICES

FY 2011 Enacted $3,665,273,000, FY 2012 Admin. Request $4,166,139,000, FY 2012 Enacted $3,872,377,000.

SPECIAL DIABETES PROGRAM FOR INDIANS

While the entitlement funding for the Special Diabetes Program for Indians (SDPI) is not part of the IHS appropriations process, those funds are administered through the IHS. The SDPI is currently funded through FY 2013 at $150 million annually (PL 111-309).

HOSPITALS AND CLINICS

FY 2011 Enacted $1,762,865,000
 FY 2012 Admin. Request $1,963,886,000 
FY 2012 Enacted $1,813,868,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $98 million. Funding is provided for staffing of new facilities.

Indian Health Care Improvement Fund. The Act includes $57.5 million for the Indian Health Care Improvement Fund (IHCIF), which is $12 million above the FY 2011 level and $3 million over the Administration's request. The IHS has been in consultation with tribes regarding the possible changes in the IHCIF formula. On November 25, 2011, IHS Director Roubideaux wrote tribal leaders informing them of her decisions relating to the IHCIF. In that letter the IHS Director said the following:
• No change will be made to the IHCIF formula until all programs reach at least 55 percent of their estimated level of need
• Data and technical improvements to the formula are approved and the IHS will continue to evaluate whether a prototype Medicaid spending index would be a possible replacement for the existing 25 percent alternate resource factor
• The IHCIF will not be expanded to include new services authorized by the Indian Health Care Improvement Act until funding is made available for those services (i.e., long term care).
Requested increases for Epidemiology Centers ($1 million), the Chronic Care Initiative ($2.5 million) and Business Operations Support ($6 million) were not approved. The Administration proposed $10 million for a Domestic Violence Initiative; bill language does not specify an amount for this purpose but states that funding made available for the methamphetamine and suicide prevention and treatment and the domestic violence prevention initiatives are to be allocated at the discretion of the Director.

For Health Information Technology, the Act provides $3.4 million of the $4 million requested increase for security maintenance. The Act states that $4 million of the total is to be allocated at the discretion of the Director. The total HIT budget under Hospitals and Clinics is $176 million.

DENTAL SERVICES

FY 2011 Enacted $152,634,000, FY 2012 Admin. Request $170,859,000, FY 2012 Enacted $159,696,000.

The Conference report directs the IHS to update Congress, at least annually, on the progress of the Early Childhood Caries initiative. The report also noted that the IHS has now provided Congress with a schedule for implementation of the Electronic Dental Record system as requested in the House report.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $11.1 million. Funding is provided for staffing of new facilities.

MENTAL HEALTH

FY 2011 Enacted $72,786,000, FY 2012 Admin. Request $81,117,000, FY 2012 Enacted $75,710,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $4.4 million. Funding is provided for staffing of new facilities.

The Act does not include the Administration's proposed $1 million increase to implement Section 723 of the Indian Health Care Improvement Act which authorizes demonstration telemental health projects targeting prevention of youth suicide.

ALCOHOL AND SUBSTANCE ABUSE

FY 2011 Enacted $194,409,000, FY 2012 Admin. Request $211,693,000, FY 2012 Enacted $194,608,608.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $13.1 million. Funding is provided for staffing of new facilities.

The Act does not include the proposed increase of $4 million for competitive grants to expand access to and improve the quality of substance abuse treatment programs.

CONTRACT HEALTH SERVICES

FY 2011 Enacted $779,927,000, FY 2012 Admin. Request $948,646,000, FY 2012 Enacted $844,927,000.

The Act provides a $65 million increase over FY 2011; the Administration had requested an increase of $89.6 million. Built-In Costs. No funding was provided for built-in costs (inflation and population growth) for which the Administration had requested $79.7 million.

The IHS also noted in its FY 2012 Budget Justification that the demand for Contract Health Services, which always exceeds the available funding, will be even more in demand as five hospitals have been or are planned to be replaced by ambulatory health centers with no inpatient services. Those health centers will be required to purchase inpatient care from the private sector using Contract Health Services funding.

Catastrophic Emergency Health Fund (CHEF). Within the total CHS amount is $51.5 million for CHEF, $6.5 million below the FY 2011 level.

PUBLIC HEALTH NURSING

FY 2011 Enacted $63,943,000, FY 2012 Admin. Request $70,613,000, FY 2012 Enacted $66,739,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $9.3 million. Funding is provided for staffing of new facilities.

HEALTH EDUCATION

FY 2011 Enacted $16,649,000, FY 2012 Admin. Request $18,190,000, FY 2012 Enacted $17,084,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $1.07 million. Funding is provided for staffing of new facilities.

IHS reports that the number of patient visits in which health education was provided has tripled from FY 2004 to FY 2010. The funding supports 23 IHS health education field positions and 75 tribal health education staff. Areas of emphasis in FY 2012 are to strengthen the development of standardized nationwide patient and health education programs through the integration of IHS Patient Educating Protocols throughout the system and to increase health education literacy.

COMMUNITY HEALTH REPRESENTATIVES

FY 2011 Enacted $61,505,000, FY 2012 Admin. Request $65,746,000, FY 2012 Enacted $61,505,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $4.1 million. Funding is provided for staffing of new facilities.

All but three of the 264 Community Health Representatives programs are administered by tribes under the authority of the Indian Self-Determination and Education Assistance Act. The programs train and support 1,600 community health paraprofessionals to provide preventive and direct health care.

VIRAL HEPATITIS/HEMOPHILUS INFLUENZA
IMMUNIZATION PROGRAMS IN ALASKA

FY 2011 Enacted $1,930,000, FY 2012 Admin. Request $2,064,000, FY 2012 Enacted $1,930,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $130,000.

The IHS stated in its budget submission that it intends to increase to 3.5 days its outpatient clinic at the Alaska Native Medical Center in order to focus on the increased number of cases of chronic Hepatitis C. Because many patients have primary care givers outside Anchorage, the IHS plans to have "a venue for the education/training of providers utilizing the established statewide Tribal Health System telehealth system (video-conferencing)" in order to assist in the cure and management hepatitis and liver disease patients. Regional field clinics are conducted at 13 sites in Alaska.

URBAN INDIAN HEALTH

FY 2011 Enacted $43,053,000, FY 2012 Admin. Request $46,745,000, FY 2012 Enacted $43,053,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $2.6 million.

The Act does not provide the proposed $1 million increase for competitive grants to assist urban Indian clinics in improving third party collections.

INDIAN HEALTH PROFESSIONS

FY 2011 Enacted $40,661,000, FY 2012 Admin. Request $42,016,000, FY 2012 Enacted $40,661,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase and inflation) for which the Administration had requested $1.27 million.

Bill language allows for up to $36 million to be utilized for the Loan Repayment Program – IHS Area Offices and Service Units are authorized to provide supplemental funds. The House report directs the IHS to report to Congress within 90 days of enactment on the status of its plans to implement recent recommendations on ways to increase the recruitment and retention of health care professionals in the IHS system.

The Act allows funds collected on defaults from the loan repayment and health professions scholarship programs to be used to recruit health professionals for Indian communities: Provided further, That the amounts collected by the Federal Government as authorized by sections 104 and 108 of the Indian Health Care Improvement Act (25 U.S.C. 1613a and 1616a) during the preceding fiscal year for breach of contracts shall be deposited to the Fund authorized by section 108A of the Act (25 U.S.C. 1616a-1) and shall remain available until expended and, notwithstanding section 108A(c) of the Act (25 U.S.C. 1616a-1(c)), funds shall be available to make new awards under the loan repayment and scholarship programs under sections 104 and 108 of the Act (25 U.S.C. 1613a and 1616a)

TRIBAL MANAGEMENT

FY 2011 Enacted $2,581,000, FY 2012 Admin. Request $2,762,000, FY 2012 Enacted $2,581,000.

Funding is for new and continuation grants for the purpose of evaluating the feasibility of contracting the IHS programs, developing tribal management capabilities, and evaluating health services. The IHS estimated 27 awards in FY 2012 (one more than in FY 2011). The Act does not provide the $176,000 requested for inflation.

DIRECT OPERATIONS

FY 2011 Enacted $68,583,000, FY 2012 Admin. Request $73,636,000, FY 2012 Enacted $71,768,000.

The IHS stated in its budget submission that 56.5 percent of the Direct Operations budget would go to Headquarters and 43.5 percent to the 12 Area Offices. Tribal Shares funding for Title I contracts and Title V compacts are also included.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase and inflation) for which the Administration had requested $1.5 million.

Program Increase. The Administration proposed in its budget submission a program increase of $3.4 million for the following purposes (of which Congress provided $3.1 million):
Program expansion will fund: (a) continuing investments to improve the IHS' capacity for providing oversight and accountability in key administrative areas such as property, financial, and human resources management; (b) addressing unfunded mandates for national initiatives associated with privacy requirements, facilities, and personnel security; and (c) for improving responsiveness to external authorities such as OMB and Congress, including but not limited to the implementation and continuing accountability for new permanent authorities of the reauthorization of the Indian Health Care Improvement Act. Recent congressional oversight as well as reports issued by the General Accountability Office and the Office of Inspector General demonstrate the importance of making improvements in these areas. (CJ-127)

SELF-GOVERNANCE

FY 2011 Enacted $6,054,000, FY 2012 Admin. Request $6,329,000, FY 2012 Enacted $6,054,000.

The budget justification this year did not, as in the past, break down Self-Governance funding in the categories of those monies that fund the Office of Self-Governance and those that act as a shortfall reserve.

The Self-Governance budget supports, among other things, implementation of the IHS Tribal Self-Governance Program and funds tribal shares required under Self-Governance.

The IHS projects that in FY 2012 approximately $1.5 billion will be transferred to support 108 tribal compacts and 129 funding agreements.

The Act does not provide the $263,000 proposed to cover inflation costs.

CONTRACT SUPPORT COSTS

FY 20101 Enacted $397,693,000, FY 2012 Admin. Request $461,837,000, FY 2012 Enacted $472,193,000.

The Act provides a $73.5 million increase for Contract Support Costs. That amount would cover the $13.1 million IHS estimated in its budget submission would be needed to cover inflation costs and also provide a $60 million program increase.

The Administration, in proposing in its budget submission a program increase of $50 million, explained that it intended to use the entire increase for existing contracts and compacts: Contract Support Costs: +$50,000,000 will be applied against projected CSC shortfalls of $171 million (FY 2012) associated with ongoing 329 contracts and compacts. After applying the FY 2012 funding allocation for CSC, the IHS projects that the FY 2012 CSC shortfall will be approximately $153 million. The projected CSC Level of Need Funded after applying the increase will be 75 percent, a 3.49 percent decrease from FY2010 funding. Unfunded CSC associated with program increases and new staffing continues to be the greatest factor contributing to increased CSC shortfalls in recent years. The CSC need associated with program increases included in the FY 2012 budget and the CSC need associated with new or expanded programs assumed by Tribes and Tribal Organizations in FY 2012 is projected to be approximately $34 million. Therefore, the projected CSC LNF is not expected to change much between FY 2011 and 2012.
 The budget request represents the amount of CSC funding that will be allocated among the contracting/compacting Tribes. Although the budget request represents an increase in CSC funding, the LNF may not increase. The LNF decreases when the overall CSC need rises more quickly than the funding for CSC. IHS addresses the difference between CSC funding and CSC need in the shortfall report, which is required by Congress to inform them of the difference. (CJ-135)

Indian Self-Determination (ISD) Fund. The Act authorizes up to $10 million of the total CSC funds for an Indian Self-Determination Fund. The IHS may allocate funds to the ISD Fund to support new or expanded self-determination contracts, grants, self-governance compacts or annual funding agreements. It remains to be seen whether the IHS, in light of the significant funding increase for CSC, will use some of the appropriated funds for the ISD Fund.

Cap on Contract Support Costs. Consistent with past Appropriations acts, the Act continues language regarding a cap on contract support costs: Provided further, That, notwithstanding any other provision of law, of the amounts provided herein, not to exceed $472,193,000 shall be for payments to tribes and tribal organizations for contract or grant support costs associated with contracts, grants, self-governance compacts or annual funding agreements between the Indian Health Service and a tribe or tribal organization pursuant to the Indian Self-Determination Act of 1975, as amended, prior to or during fiscal year 2012, of which not to exceed $10,000,000 may be used for contract support costs associated with new or expanded self-determination contracts, grants, self-governance compacts or annual funding agreements.

Contract Support Limitation. The Act, consistent with the Interior Appropriations Acts for FYs 1999-2011 attempts to limit the ability of the IHS and BIA to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years: Sec. 408. Notwithstanding any other provision of law, amounts appropriated to or otherwise designated in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208, 105-83, 105-277, 106-113, 106-291, 107-63, 108-7, 108-108, 108-447, 109-54, 109-289, division B and Continuing Appropriations Resolution, 2007 (division B of Public Law 109-289, as amended by Public Law 110-5 and 110-28), Public Laws 110-92, 110-116, 110-137, 110-149, 110-161, 110-329, 111-6, 111-8 and 111-88, and 112-10 for payments for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 2011 for such purposes, except that for the Bureau of Indian Affairs, tribes and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, self-governance compacts or annual funding agreements.

Reporting Requirement. The Conference report directs the IHS "to meet its annual CSC reporting requirement due date, and to provide the Committees with current CSC estimates in conjunction with its annual budget submission."

FUNDING FOR INDIAN HEALTH FACILITIES

FY 2011 Enacted $403,947,000, FY 2012 Admin. Request $457,669,000, FY 2012 Enacted $441,052,000.

MAINTENANCE AND IMPROVEMENT

FY 2011 Enacted $53,807,000, FY 2012 Admin. Request $57,078,000, FY 2012 Enacted $53,807,000.

Built-In Costs. No funding was provided for built-in costs (inflation and population growth) for which the Administration had requested $3.2 million. Maintenance and Improvement funds are provided to Area offices for distribution to projects in their regions. Funding is for the following purposes: 1) approximately $53 million for routine maintenance; 2) approximately $400,000 for major M&I programs on the Backlog of Essential Maintenance (BEMAR) list; 3) approximately $3 million for environmental compliance; and 4) approximately $500,000 for demolition of vacant or obsolete health care facilities replaced through federal funding.

The IHS estimates that as of October 2010, the BEMAR is $472 million.

FACILITIES AND ENVIRONMENTAL HEALTH SUPPORT

FY 2011 Enacted $192,701,000, FY 2012 Admin. Request $210,992,000, FY 2012 Enacted $199,733,000.

Built-In Costs. No funding was provided for built-in costs (Commissioned Officer pay increase, inflation and population growth) for which the Administration had requested $10.9 million. Funding was provided for staffing of new facilities.

MEDICAL EQUIPMENT

FY 2011 Enacted $22,618,000, FY 2012 Admin. Request $24,705,000, FY 2012 Enacted $22,618,000.

Built-in Costs. No funding was provided for built-in costs (inflation and population growth) for which the Administration requested $2 million.

The IHS notes that they expect to distribute the FY 2012 funds as follows: $18.7 million for routine replacement medical equipment at over 1,600-federally and tribally-operated health care facilities; $5 million for new medical equipment in tribally-constructed health care facilities; and $1 million for the TRANSAM and ambulance programs.

CONSTRUCTION

Construction of Sanitation Facilities

FY 2011 Enacted $95,665,000, FY 2012 Admin. Request $79,710,000, FY 2012 Enacted $79,710,000

The Administration's proposed decrease and Congress' concurrence with it note that Recovery Act funds should lessen the impact of this reduction.

Four types of sanitation facilities projects are funded by the IHS: 1) projects to serve new or like-new housing; 2) projects to serve existing homes; 3) special projects such as studies, training, or other needs related to sanitation facilities construction; and 4) emergency projects. The IHS sanitation facilities construction funds cannot be used to provide sanitation facilities in HUD-built homes.

Construction of Health Care Facilities

FY 2011 Enacted $39,156,000, FY 2012 Admin. Request $85,184,000, FY 2012 Enacted $85,184,000

The Act funds health care facilities construction as requested by the Administration: Barrow Hospital in Alaska, $62,184,000; Kayenta Health Center in Arizona, $10 million; San Carlos Health Center in Arizona, $10 million; and a Youth Residential Treatment Center in Hemet, CA, $2 million. In addition, $1 million is requested to assess the feasibility of modular construction for health facilities per a requirement of the Indian Health Care Improvement Act.

OTHER

Transam Equipment, Ambulances, Demolition Fund. The Act continues funding of up to $500,000 to purchase TRANSAM equipment from the Department of Defense and $500,000 to be deposited in a Demolition Fund to be used for the demolition of vacant and obsolete federal buildings. Funding for the purchase of ambulances is $2.7 million.”

THIRD PARTY COLLECTIONS

The chart from the FY 2012 IHS budget justification regarding third party collections is downloadable at: GM_12-009IndianHealthServiceFY12Enacted.pdf.

Labor-HHS-Education and Related Agencies FY 2012 Appropriations,” General Memorandum 12-007, January 13, 2012, downloadable with detailed charts at: GM_12-007_L-HHS-ED_FY2012.pdf.

“This report covers the final FY 2012 funding levels for selected programs of particular interest to tribes and Indian organizations in the Labor-Health and Human Services-Education and Related Agencies appropriations bill. It is included in the Consolidated Appropriations Act, 2012 (Act) (HR 2055, PL 112-74) which was signed into law on December 23, 2011. The Act provides funding for what would normally be nine separate appropriations bills. The Conference Report is House Report 112-331. The Senate Report for Labor-HHS-Education appropriations is Senate Report 112-84; there was no House Committee report. These documents may be accessed on Congress' website: Thomas.loc.gov

Under the Act, Congress applied several across-the-board reductions which vary by appropriations sections. Under the Labor-Health and Human Services-Education appropriations section (Division F) of the Act, the programs, projects and activities funded will be reduced by 0.189 percent below the amounts in the conference or committee reports. Programs under other appropriations sections have differing rates of across-the-board reductions, for example, the Interior-related programs are reduced by 0.16 percent. With the exception of the Department of Education section, the FY 2012 enacted figures in this Memorandum do not include the 0.189 percent reduction.

The conferees state that the funding allocation identified in the Senate report for the Labor-HHS-Education and Related Agencies Division have been reviewed by the conferees, and those that are approved are noted in the Conference Report: In implementing this conference agreement, the Departments and agencies should be guided by the language and instructions set forth in Senate Report 112–84 accompanying the bill, S. 1599, unless specifically addressed in this statement. In cases where the language and instructions in the Senate report specifically address the allocation of funds, each has been reviewed by the conferees and those that are jointly concurred in have been endorsed in this statement of managers.

DEPARTMENT OF LABOR

The Act provides virtually flat funding for Department of Labor programs, although there are reductions, notably in the Section 166 Indian Workforce Investment Act program. The House had proposed very large cuts in this and other job training programs.

Section 166 Program for Indian Tribes, Urban Indians, Hawaiians, and Samoans

FY 2011 Enacted $52.6 million, FY 2012 Admin. Request $54.2 million, FY 2012 Enacted $47.6 million.

This program, authorized under the Workforce Investment Act of 1998 (WIA), provides formula grant funding to tribes and other Native American groups for employment, training, and related services activities. The FY 2012 funding is inconsistent with the statutory WIA requirement that a minimum of $55 million is to be provided for the Section 166 program. The program year begins on July 1, 2012, and ends on June 30, 2013. One percent of funding is reserved for technical assistance.

Supplemental Youth Services

FY 2011 Enacted $825.9 million, FY 2012 Admin. Request $850.0 million, FY 2012 Enacted $825.9 million

Youth Activities, authorized by the WIA, consolidates the Summer Youth Employment and Training Program under JTPA Title II–B, and Youth Training Grants under JTPA Title II–C. Tribes will receive 1.5 percent of the funds, or $12,388,708. This is a reduction of 10.6 percent ($1,472,327) below program year 2010.

Tribal NEW (Native Employment Works) Program

Tribes receive $7.6 million annually under the NEW program as a capped entitlement program. The NEW program replaced the JOBS authorization in the welfare reform law (PL 104-193).

DEPARTMENT OF HEALTH AND HUMAN SERVICES

The Act provides $69.8 billion for discretionary program level funding for HHS programs, which is $600 million below the comparable FY 2011 level. Conferees did not concur with the House proposal to defund the Affordable Care Act, although some FY 2011 funds were rescinded: $10 million of the $15 million for a board to make recommendations on Medicare savings and $400 million for the loans for health insurance cooperatives to assist them in operating in state markets (on top of an earlier $2.2 billion rescission). A particular disappointment is the denial of the Administration's request for a new tribal Behavioral Health program funded through the Affordable Care Act's Prevention and Public Health Fund (PPH). The Administration proposed in its FY 2012 budget $50 million for tribes for coordinated services to prevent substance abuse and suicide. The program would have been administered through SAMHSA with base funding being provided to each applicant tribe and additional funding based on population and need.

The Affordable Care Act provides $17.7 billion over ten years in mandatory funding for a Prevention and Public Health Fund. Congress, through the appropriations process, transfers these funds to programs to carry out health prevention and public health needs. For FY 2012 Congress transferred $1 billion of the PPH funds to various agencies in HHS.

Administration for Children and Families

FY 2011 Enacted $30.1 billion, FY 2012 Admin. Request $28.9 billion, FY 2012 Enacted $29.2 billion.

Administration for Native Americans (ANA)

FY 2011 Enacted $48.6 million, FY 2012 Admin. Request $48.8 million, FY 2012 Enacted $48.7 million.

Low-Income Home Energy Assistance Program

FY 2011 Enacted $4.7 billion, FY 2012 Admin. Request $2.6 billion, F Y 2012 Enacted $3.5 billion.

Head Start

FY 2011 Enacted $7.56 billion, FY 2012 Admin. Request $8.09 billion, FY 2012 Enacted $7.98 billion.

The total Head Start amount includes funding for Early Head Start. Tribes share a 13 percent allocation of the Head Start total with the territories, migrant workers, and disabled children. The reauthorization provided that Indian Head Start programs would receive at least the previous year's funding (Head Start and Early Head Start combined) plus inflation.

The $424 million increase for Head Start should maintain the expansion of the program made possible by the 2009 and 2010 Recovery Act funding.

Child Care and Development Block Grant

Discretionary Funds: FY 2011 Enacted $2.22 billion, FY 2012 Admin. Request $2.93 billion, FY 2012 Enacted $2.28 billion.

Entitlement Funds: FY 2012 $2.92 billion

Tribes receive by statute not less than 1% and not more than 2% of the combined total of discretionary and entitlement funds under the Child Care and Development Block Grant. Tribes received $103 million in FY 2011 from this program.

Promoting Safe and Stable Families Program (Title IV-B, Subpart 2)

FY 2011 Enacted $365 million mandatory and $63.2 million discretionary funds
 FY 2012 Admin. Request $365 million mandatory and $63.2 million discretionary funds 
FY 2012 Enacted $345 million mandatory and $63.2 million discretionary funds.

Tribes and tribal consortia receive a three percent statutory allocation of the mandatory and discretionary funds. In FY 2011 tribes received $11 million from this program (126 tribal grantees).

Child Welfare (Title IV-B, Subpart 1)

FY 2011 Enacted $281.2 million
 FY 2012 Admin. Request $281.7 million
 FY 2012 Enacted $281.2 million.

Although the statute does not specify a percentage or amount of funding for tribes, tribes receive formula funds under this program which is authorized under Title IV-B, Subpart 1 of the Social Security Act. Tribes received $6.2 million from this program in FY 2011 (166 tribal grantees).

Child Welfare Training/Foster Care Initiative

FY 2011 Enacted $27.2 million
 FY 2012 Admin. Request $27.2 million 
FY 2012 Enacted $26.1 million.

This account includes $20 million for a relatively new foster care initiative. Funding under the Child Welfare Training and Demonstrations Account is for innovative strategies that improve outcomes for children in long-term foster care. In addition there is $7.1 million for child welfare training.

Kinship Guardianship

FY 2011 Enacted $32 million 
FY 2012 Admin. Request $80 million
 FY 2012 Projected $80 million.

The Kinship Guardianship program, authorized under Title IV-E of the Social Security Act, first became available in FY 2009. It provides subsidies to a relative taking legal guardianship of a child for whom being returned home or adoption are not appropriate permanency options. Funding is on an entitlement basis. The Administration had projected costs at $83 million in FY 2011 but the amount utilized was considerably lower.

Tribes directly administering the Title IV-E Foster Care and Adoption Assistance programs would be eligible to offer Kinship Guardianship payments; or a tribe which has a Title IV-E agreement with a state might be able to access such payments through the agreement.

Chaffee Foster Care Independent Living Program

FY 2011 Enacted $140 million, FY 2012 Admin. Request $140 million, FY 2012 Enacted $140 million.

Authorized under Title IV-E of the Social Security Act, the Independent Living program provides funding to assist youth who are aging out of foster care. It is a capped entitlement program, with most funds being provided to states via formula. The Fostering Connections to Success and Increasing Adoptions Act (PL 110-35l, signed in 2008) authorized tribes with an approved Title IV-E plan or a Title IV-E tribal/state agreement to receive directly from HHS a portion of the state's Independent Living funds to serve tribal youth.

Education and Training Vouchers for Youth Leaving Foster Care

FY 2011 Enacted $45.3 million, FY 2012 Admin. Request $45.4 million, FY 2012 Enacted $45.3 million.

This program, authorized under the Safe and Stable Families Amendments of 2001 (PL 107-133), provides vouchers for college or vocational/technical training for youth who age out of the foster care system. States may allow youth to participate in the voucher program up to age 23, and the maximum voucher amount is $5,000 per year. States receive funding according to their proportion of youth in foster care. The Foster Care Independence Act requires states to provide services to Indian youth aging out of foster care and to consult with tribes on these services.

The Fostering Connections to Success and Increasing Adoptions Act (PL 110-351, signed in 2008) authorized tribes with an approved Title IV-E Foster Care and Adoption Assistance plan or a Title IV-E tribal/state agreement to receive directly from HHS a portion of the state's Education and Training Voucher funding to serve tribal youth.

Community Services Block Grant (CSBG)

FY 2011 Enacted $701.6 million, FY 2012 Admin. Request $370.0 million, FY 2012 Enacted $713.6 million.

In FY 2010, tribes received $5 million from the CSBG program; there were 56 tribal grantees.

Battered Women's Shelters

FY 2011 Enacted $129.8 million FY 2012 Admin. Request $135.1 million 
FY 2012 Enacted $129.8 million.

Tribes receive ten percent of funds from the Battered Women's Shelter program, which is authorized in the Family Violence Prevention and Services Act. These funds, which are distributed through a formula, are used primarily for counseling, advocacy, and self-help services for victims and their children.

Administration on Aging

FY 2011 Enacted $1.47 billion, FY 2012 Admin. Request $2.24 billion, FY 2012 enacted $1.47 billion.

Within the total is the following Native-specific funding:
• $27.7 million for formula grants to tribes and Native Hawaiian organizations. Funding is for services for the elderly including transportation, nutrition, and health screening. This is the same as the FY 2011 amount and the Administration's FY 2012 request.
• $6.4 million for competitive grants to tribes for the Native American Caregiver Support Program, the same as the FY 2011 enacted level and $2 million below the Administration's FY 2012 request. Funds are to assist tribes in providing support services for family caregivers as well as for grandparents caring for grandchildren.

Substance Abuse and Mental Health Services Administration (SAMHSA)

FY 2011 Enacted $3.51 billion, FY 2012 Admin. Request $3.56 billion, FY 2012 Enacted $3.48 billion

As noted above, the Act does not include funding for the proposed new Tribal Behavioral Grant program. The Senate Committee Report states, "Due to budget constraints, the Committee has not provided funding or transfers from the PPH (Prevention and Public Health) Fund for the administration's proposed Tribal Behavioral Health Grant program. The administration requested $50,000,000 for this new program." (S. Rpt. 112-84, p. 126)

Under the mental health programs, the Act provides the following: • Programs of Regional and National Significance: $276 million, a $62 million reduction • Mental Health Block Grant: $439 million, a $40 million increase • Children's Mental Health Services: $118 million, the same as FY 2011 enacted • Protection and Advocacy Program: $36.3 million, the same as FY 2011 enacted • American Indian Suicide Prevention: $2.9 million, the same as FY 2011 enacted Under the substance abuse programs, the Act provides the following: • Substance Abuse Treatment Programs of Regional and National Significance: $399 million, about $5 million below FY 2011 enacted • Substance Abuse Prevention and Treatment Block Grant: $1.8 billion, a $21 million increase above FY 2011 enacted • Substance Abuse Prevention Activities of Regional and National Significance: $186 million, the same as FY 2011 enacted

Health Resources and Services Administration (HRSA)

FY 2011 Enacted $6.27 billion, FY 2012 Admin. Request $6.80 billion, FY 2012 Enacted $6.20 billion.

Community Health Centers, FY 2011 Enacted $2.58 billion ($14.4 million is for Native Hawaiian Health Care; $1 billion is from the Affordable Care Act), FY 2012 Admin. Request $2.17 billion, FY 2012 Enacted $2.8 billion ($1.6 billion in discretionary funding and $1.2 billion from the Affordable Care Act).

Nurse Loan Repayment Program for Shortage Area Service, FY 2011 Enacted $93.3 million, FY 2012 Admin. Request $93.9 million, FY 2012 Enacted $83.3 million.

This program repays student loans for nurses in exchange for their working at least two years in an Indian Health Service health center, Native Hawaiian health center, public hospital, community or migrant health center, or rural health clinic.

Centers of Excellence FY 2011 Enacted $24.5 million, FY 2012 Admin. Request $24.6 million, FY 2012 Enacted $22.9 million.

Centers of Excellence funds are designed to strengthen the capacity of institutions that train a significant number of minority health professionals.

Rural Outreach Grants FY 2011 Enacted $55.7 million, FY 2012 Admin. Request $57.3 million, FY 2012 Enacted $55.7 million.

Rural Outreach Grants provide resources for new and innovative delivery of health services in rural areas, including telemedicine projects.

Area Health Education Centers, FY 2011 Enacted $33.1 million, FY 2012 Admin. Request $33.3 million, FY 2012 Enacted $30.1 million.

Health Careers Opportunity Program FY 2011 Enacted $21.9 million, FY 2012 Admin. Request $22.1 million , FY 2012 Enacted $15.0 million.

Funding is for medical and other health professions schools for recruitment of disadvantaged students and pre-professional school preparations.

Telehealth Program FY 2011 Enacted $11.5 million, FY 2012 Admin. Request $11.6 million, FY 2012 Enacted $11.5 million.

Ryan White AIDS Programs, FY 2011 Enacted $2.33 billion, FY 2012 Admin. Request $2.40 billion, FY 2012 Enacted $2.35 billion.

Maternal, Infant, and Childhood Home Visiting Programs. The Affordable Care Act created a new entitlement program under Title V of the Social Security Act (Maternal and Child Health Services) for home visits to families with young children or families who are expecting children and live in communities at risk for poor maternal and child health. For the fiscal years 2010-2014, a total of $1.5 billion is appropriated (not simply authorized) for this program. The Act makes tribes, tribal organizations and urban Indian organizations eligible to apply for grants under this program and reserves three percent of funds for grants to those entities (or consortia thereof). The Indian set-aside is valued at $45 million over the five-year period. A grant recipient will be required to conduct a needs assessment and to develop a program with measurable three-year and five-year benchmarks for demonstrating improvement in several areas, including improved maternal and newborn health and prevention of child abuse and neglect.

For FY 2012 there is $350 million ($100 million over FY 2011) for this program; the Indian allocation will be $10.5 million ($3 million over FY 2011).

DEPARTMENT OF EDUCATION

The total FY 2012 DoED funding appropriated is $71.3 billion, which is $153 million below the FY 2011 level and $9.3 billion below the amount requested. The Administration had proposed to eliminate several Elementary and Secondary Education Act (ESEA) programs and to consolidate programs under a more comprehensive program; however, such consolidations were dependent on the reauthorization of the ESEA. Since Congress did not take up ESEA reauthorization this session, the funding amounts are reported under the current ESEA accounts and program structure. In addition, Congress restored funding for some programs that the Administration had proposed to be de-funded. Comprehensive information on the FY 2012 Education budget, reflecting the 0.189 percent reduction, is posted at http://www2.ed.gov/about/overview/budget/tables.html. The FY 2012 enacted numbers for this section reflect this 0.189 percent reduction.

Title I, Education for the Disadvantaged

Basic Grants to Local Education Agencies (program level) FY 2011 Enacted $6.58 billion, FY 2012 Admin. Request $6.59 billion, FY 2012 Enacted $6.57 billion.

The Bureau of Indian Education (BIE)-funded schools and territories share a one percent allocation from the Title I basic and concentration grants. The BIE reported in its FY 2012 budget justification that in School Year 2010-2011 (SY10–11), BIE schools received $100.6 million in Title I funds.

Concentration Grants FY 2011 Enacted $1.36 billion, FY 2012 Admin. Request $1.36 billion, FY 2012 Enacted $1.36 billion.

School Improvement Grants FY 2011 Enacted $534.5 million, FY 2012 Admin. Request $600.0 million, FY 2012 Enacted $533.5 million.

Funds are provided to States and local educational agencies (LEA's) for use at the lowest performing schools according to student achievement results to implement one of four specific intervention models (e.g., Turnaround, Restart, School Closure, and Transformation).

Striving Readers FY 2011 Enacted –0–FY 2012 Admin. Request –0–FY 2012 Enacted $159.6 million.

The FY 2010 appropriations Act provided a large funding increase in order to overhaul the Striving Readers program into a comprehensive literacy program that provides services to all students from birth through twelfth grade. There is a 0.5 percent set-aside for BIE-funded schools. The Administration proposed no separate funding for Striving Readers in lieu of $383.3 million for a new Effective Teaching and Learning: Literacy program covering preschool through twelfth grade. Congress did not fund the proposed Effective Teaching and Learning: Literacy, which was dependent on the ESEA reauthorization.

Even Start FY 2011 Enacted $66.5 million, FY 2012 Admin. Request –0–FY 2012 Enacted –0–

The Even Start program was also proposed for consolidation under the Comprehensive Effective Teaching and Learning: Literacy program. Congress did not concur with the consolidation and did not reinstate funds for Even Start. Under current law, the set-aside for migrants and Native Americans is six percent if appropriations for the program reach $200 million (five percent if less).

Improving Literacy Through School Libraries FY 2011 Enacted $19.1 million, FY 2012 Admin. Request –0–FY 2012 Enacted –0–

The Administration had proposed that this program, which provides grants to school libraries to update library materials and/or technology in the media center, or to provide well-trained/certified media specialists, be incorporated under the Effective Teaching and Learning: Literacy program. The conferees did not fund the proposed Effective Teaching and Learning: Literacy and did not reinstate funds for the Improving Literacy Through School Libraries program. The BIE-system schools receive 0.5 percent of the appropriated funds. In SY10–11, the BIE schools received $95,725.

High School Graduation Initiative, FY 2011 Request $48.9 million, FY 2012 Admin. Request –0–FY 2012 Enacted $48.8 million.

This competitive grants program provides funds to LEAs for comprehensive approaches that seek to improve high school graduation rates through prevention and reentry systems for students at risk of not graduating, especially at the high schools and their feeder schools with particularly low rates of graduation.

Impact Aid Basic Support Payments (Section 8003(b)) FY 2011 Enacted $1.13 billion, FY 2012 Admin. Request $1.13 billion, FY 2012 Enacted $1.15 billion.

This account includes funding for Heavily Impacted Districts (section 8003(f)).

Payments for Children with Disabilities (Section 8003(d)) FY 2011 Enacted $48.5 million, FY 2012 Admin. Request $48.6 million, FY 2012 Enacted $48.4 million.

Federal Property (Section 8002), FY 2011 Enacted $67.0 million, FY 2012 Admin. Request $67.2 million, FY 2012 Enacted $66.9 million.

Facilities Maintenance (Section 8008) FY 2011 Enacted $4.5 million, FY 2012 Admin. Request $4.86 million, FY 2012 Enacted $4.84 million.

Construction and Renovation (Section 8007) FY 2011 Enacted $17.4 million, FY 2012 Admin. Request $17.5 million, FY 2012 Enacted $17.4 million.

School Improvement Programs

State Grants for Improving Teacher Quality
 FY 2011 Enacted $2.46 billion 
FY 2012 Admin. Request –0–
FY 2012 Enacted $2.46 billion.

These funds are provided to states and schools to help them attain the No Child Left Behind Act (NCLBA) goal that all teachers be highly qualified. Local uses of funds include professional development, class size reduction, recruitment and retraining of teachers and principals, merit pay, mentoring, and other activities. The NCLBA reserves 0.5 percent of the funds for this program for BIE-funded schools. In SY10–11, the BIE schools received $14.6 million.

Math and Science Partnerships FY 2011 Request $175.1 million, FY 2012 Admin. Request –0–FY 2012 Enacted $149.7 million

This program provides formula grants to partnerships of state educational agencies, higher education institutions, and school districts to improve academic achievement in mathematics and science through strong teaching skills for elementary and secondary school teachers. Funds may be used to develop rigorous mathematics and science curricula, distance learning programs, and incentives to recruit college graduates holding math and science degrees into the teaching profession.

21st Century Community Learning Centers FY 2011 Enacted $1.15 billion, FY 2012 Admin. Request $1.26 billion, FY 2012 Enacted $1.15 billion.

The 21st Century Community Learning Centers program enables communities to create or expand centers that provide activities offering significant extended learning opportunities, such as before- and after-school programs for students, and related services to their families. Centers must target services to students who attend schools that are eligible to operate a school-wide program under Title I of the Elementary and Secondary Education Act or that serve high percentages of students from low-income families. Up to one percent of program funding is allocated to the BIE and outlying areas. In SY10–11, the BIE schools received $8.4 million from this program.

Educational Standards and Assessment FY 2011 Enacted $389.9 million, FY 2012 Admin. Request $420.0 million, FY 2012 Enacted $389.2 million.

Funding is distributed by formula to states and the BIE for the development and/or improvement of educational assessments and standards. The BIE will receive 0.5 percent of these funds ($2 million in SY10–11).

Alaska Native Education Equity Assistance Program FY 2011 Enacted $33.2 million, FY 2012 Admin. Request $33.3 million, FY 2012 Enacted $33.1 million.

Rural Education FY 2011 Enacted $174.5 million, FY 2012 Admin. Request $174.8 million, FY 2012 Enacted $179.1 million.

Rural education funding, authorized under Title VI-B of ESEA, is divided equally between the Small, Rural School Achievement Program and the Rural and Low-Income School Program, under which the BIE-system schools receive 0.5 percent. These funds are provided to small schools that do not qualify for the Achievement program and have a child poverty rate of at least 20 percent. Under both programs, schools are able to consolidate various federal education funds. However, if schools do not meet progress goals within three years, the rural education funds must be used for Title I school improvement activities. In SY10–11, the BIE schools received $437,205 in Rural Education funds.

Indian Education Act

FY 2011 Enacted $127.0 million, FY 2012 Admin. Request $127.2 million, FY 2012 Enacted $130.7 million.

Funding for each of the Indian Education accounts are: Grants to LEAs ($105.9 million), Special Programs for Indian Children ($18.9 million) and National Activities ($5.8 million) which funds research that focuses on filling the gaps in national information on the educational status and needs of Indians, identifying educational practices that are effective with Indian students, and technical assistance to public school districts that receive Indian Education grants. Within the National Activities total is $2 million (less the reduction) for a tribal education departments pilot project. The Conference Report states: The conferees recognize that tribal education departments and agencies are uniquely situated at the local level to implement innovative education programs to improve Native American education. Accordingly, the conference agreement includes $2,000,000 under the National Activities line for a pilot project to increase the role of tribal education departments in Native American education. In the pilot, tribal education agencies would directly administer some Elementary and Secondary Education Act programs to enter into collaborative agreements with States to work closely with school districts located on Indian reservations or former Indian reservations located in Oklahoma. The conferees expect the Department of Education to collaborate with the Bureau of Indian Affairs on this effort. (H.Rpt. 112-331, p. 1149)

In SY10–11, the BIE schools received $2.8 million in Title VII Indian Education Act funds.

Innovation and Improvement

Teacher Incentive Fun.d (TIF) FY 2011 Enacted $399.2 million, FY 2012 Admin. Request –0–FY 2012 Enacted $299.4 million

The Teacher Incentive Fund (TIF) provides formula grants to reward effective teachers and create incentives to attract qualified teachers to high-need schools and provides competitive grants to design and implement performance-based compensation systems.

School Leadership FY 2011 Enacted $29.1 million, FY 2012 Admin. Request –0–FY 2012 Enacted $29.1 million
. The funds are for high-need local education agencies (LEAs) to develop or enhance innovative programs that recruit, train, and provide support for individuals currently serving as principals (including assistant principals) and/or seeking to become principals.

Charter Schools Grants FY 2011 Enacted $255.5 million, FY 2012 Admin. Request –0–FY 2012 Enacted $255.0 million.

Funds are provided as competitive grants to State Education Agencies and charter schools for planning, design, initial implementation, and dissemination of information regarding charter schools. Funds are also allocated for state efforts to assist charter schools in obtaining facilities. The Administration did not seek funds for the Charter Schools Grants program, instead proposing a more comprehensive Expanding Educational Options initiative that "would continue and expand support for charter and other autonomous public schools." (DoED in Brief, p. 72) Congress did not concur with the plan and instead provides funds under the Charter Schools Grants program.

Safe Schools and Citizenship Education

Promise Neighborhoods FY 2011 Enacted $ 29.9 million, FY 2012 Admin. Request $150.0 million, FY 2012 Enacted $ 59.8 million.

The Promise Neighborhoods program provides competitive one-year planning grants and five-year implementation grants to community-based organizations for the development and implementation of comprehensive neighborhood programs that address the needs of children in distressed communities. The program includes tribal communities under Absolute Priority 3.

Elementary and Secondary School Counseling FY 2011 Enacted $52.3 million, FY 2012 Admin. Request –0–FY 2012 Enacted $52.2 million.

Carol E. White PE for Progress FY 2011 Enacted $78.8 million, FY 2012 Admin. Request –0–FY 2012 Enacted $78.6 million.

Civic Education FY 2011 Enacted $1.15 million, FY 2012 Admin. Request –0–FY 2012 Enacted –0–

The FY 2011 funds were allocated for the Cooperative Education Exchange program.

English Language Acquisition Grants

FY 2011 Enacted $733.5 million, FY 2012 Admin. Request $750.0 million, FY 2012 Enacted $732.1 million.

This program provides formula grants for services to limited English proficient students and professional development for teachers. The statute allocates 0.5 percent or $5 million, whichever is greater, of the language acquisition funds for BIE system schools and other tribal, Native Hawaiian, and Pacific Islander entities for programs in schools that serve predominantly Native American children.

Individuals with Disabilities Education Act (IDEA)

State Grants and Indian Allocation FY 2011 Enacted $11.48 billion, FY 2012 Admin. Request $11.70 billion, FY 2012 Enacted $11.57 billion.

Funding is provided through Part B Section 611(a) grants to BIE-system schools for supplemental services to disabled children between the ages of 5 and 21. In SY10–11, BIE schools received $73.6 million under this program.

Pre-School Grants FY 2011 Enacted $373.3 million, FY 2012 Admin. Request $374.0 million, FY 2012 Enacted $372.6 million.

These are additional funds for states for services for children with disabilities ages 3-5. Formula funding is provided to tribes with BIE-system schools through Part B Section 611(3) grants. The funds are used to assist State Education Agencies in the provision of special education and related services to children with disabilities between the ages of three and five years. Based on the FY 2012 appropriation, the estimated tribal preschool amount would be $18.7 million.

IDEA, Part C, Grants for Infants and Families FY 2011 Enacted $438.5 million, FY 2012 Admin. Request $489.4 million, FY 2012 Enacted $442.7 million, Tribes with BIE schools on their lands are eligible for formula funding under this program to coordinate state early intervention services to families whose infants and toddlers have disabilities. The FY 2012 budget request estimated the tribal set-aside would be $5.8 million.

Vocational Rehabilitation

State Grants FY 2011 Enacted $3.04 billion, FY 2012 Admin. Request $3.10 billion, FY 2012 Enacted $3.08 billion.

Tribes receive an allocation of one to 1.5 percent ($43.5 million in FY 2011) from the amount appropriated for Basic State Grants which are competitively awarded.

Career and Technical Education

Basic State Grants FY 2011 Enacted $1.12 billion, FY 2012 Admin. Request $1.00 billion, FY 2012 Enacted $1.12 billion.

Tribes and tribal organizations receive a 1.25 percent allocation of basic state grants, which equals $14 million in FY 2012. The tribal vocational education grants are awarded competitively.

Tech Prep Education (State Grants) FY 2011 Enacted $102.9 million, FY 2012 Admin. Request –0–FY 2012 Enacted –0–.

The BIE-funded schools and tribal colleges were eligible to apply for Tech-Prep grants, which were used to establish four-year vocational/academic programs comprised of two years of high school and two years of college. The Administration proposed no funding for a separate Tech Prep program, instead proposing a consolidation under a Career and Technical Education State Grants program which would be funded at $1 billion. Congress provided $1.12 billion for the Career and Technical Education State Grants program, an amount that is equivalent to the FY 2011 level for the consolidated programs.

Higher Education

Pell Grants

The Act maintains the maximum Pell grant award at $5,550. However, reforms were made to the program because of a $1.4 billion FY 2012 shortfall. The Conference Report describes the changes: The conference agreement includes changes to limit the number of full-time equivalent Pell grants to a lifetime maximum of six years/twelve semesters; to lower the adjusted gross income level at which an expected family contribution will automatically receive a "zero" to $23,000; to raise the minimum award for eligibility to ten percent of the maximum award; and to require students to either have completed a high school diploma, a GED, or have been homeschooled to be eligible for a Pell award, unless they were enrolled prior to July 1, 2012. The conference agreement further provides that these provisions will take effect on July 1, 2012 and that negotiated rulemaking will not apply to changes made by these amendments. (H. Rpt. 112-331, p. 1154)

Tribally Controlled Postsecondary Career and Technical Institutions FY 2011 Enacted $8.14 million, FY 2012 Admin. Request $8.16 million, FY 2012 Enacted $8.13 million.

These funds are provided to United Tribes Technical College and Navajo Technical College.

Strengthening Alaska Native and Native Hawaiian-Serving Institutions FY 2011 Enacted $13.4 million, plus $15 million in mandatory funding per HEA III-F, Sec. 371. FY 2012 Admin. Request $15.0 million, FY 2012 Enacted $12.8 million, plus $15 million in mandatory funding per HEA III-F, Sec. 371.

These funds are distributed to colleges serving at least twenty percent Alaska Native or ten percent Native Hawaiian students.

Strengthening Tribal Colleges FY 2011 Enacted $26.8 million, plus $30 million in mandatory funding per HEA III-F, Sec. 371. FY 2012 Admin. Request $30.1 million, FY 2012 Enacted $25.7 million, plus $30 million in mandatory funding per HEA III-F, Sec. 371.

Strengthening Native American Non-Tribal Institutions FY 2011 Enacted $3.1 million, plus $5 million in mandatory funding per HEA III-F, Sec. 371. FY 2012 Admin. Request $3.6 million FY 2012 Enacted $3.1 million, plus $5 million in mandatory funding per HEA III-F, Sec. 371.

Fund for the Improvement of Postsecondary Education (FIPSE) FY 2011 Enacted $19.6 million, FY 2012 Admin. Request $150.0 million, FY 2012 Enacted $ 3.4 million.

TRIO Programs FY 2011 Enacted $826.5 million, FY 2012 Admin. Request $920.0 million, FY 2012 Enacted $839.9 million.

The FY 2012 budget justification had reported that at the higher request level, the TRIO programs would be as follows: Upward Bound discretionary ($324.9 million); Veterans Upward Bound ($43.6 million); Upward Bound Math-Science ($35 million); Upward Bound Mandatory (-0-, authorization expired 9/30/11); Educational Opportunity Centers ($47 million); Student Support Services ($300.6 million); the Ronald D. McNair Post-Baccalaureate Achievement Program ($47.5 million); Talent Search ($142.1 million); Staff Training ($3.6 million); Administration/Peer Review ($4.3 million), and Evaluation ($1.5 million).

GEAR UP FY 2011 Enacted $302.8 million, FY 2012 Admin. Request $323.2 million, FY 2012 Enacted $302.2 million.

The Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP), authorized under the Higher Education Act Amendments of 1998, is designed to help low-income elementary and secondary school students become college-ready.

Teacher Quality Partnership Grants FY 2011 Enacted $42.9 million, FY 2012 Admin. Request –0–FY 2012 Enacted $42.8 million.

This program, authorized under Title II of the Higher Education Act Amendments of 1998, provides grants to states for teacher preparation and recruitment. Campus-Based Child Care FY 2011 Enacted $16.00 million, FY 2012 Admin. Request $16.03 million, FY 2012 Enacted $15.96 million

Among the eligible applicants for the program are tribal colleges.

OFFICE OF MUSEUM AND LIBRARY SERVICES

For FY 2012 the Act provides $3.8 million for Native American Library Services and $927,000 for Native American/Hawaiian Museum Services. Total funding for the Office of Museum and Library Services is $233 million, $5 million below FY 2011.

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

FY 2011 Enacted $1.07 billion FY 2012 Admin. Request $1.26 billion, FY 2012 Enacted $1.05 billion

The Corporation for National and Community Services has programs designated as Domestic Volunteer Services Programs (VISTA and several Senior Volunteer Corps programs) and National and Community Services Programs (including AmeriCorps). The House recommended elimination of the Corporation for National and Community Service.

CORPORATION FOR PUBLIC BROADCASTING

Funding for the Corporation for Public Broadcasting (CPB) is provided two years in advance. The FY 2012 appropriations Act will provide FY 2014 CPB core funding, most of which is distributed via a statutory formula to public television and radio stations. The House proposal was to provide no CPB funding and to prohibit local radio stations from using CPB funding to purchase programming from National Public Radio. Those proposals were not adopted by the conferees.

FY 2013 Enacted $445 million, FY 2014 Enacted $445 million.

Five minority public broadcasting organizations collectively called the National Minority Consortia — Native American Public Telecommunications; Pacific Islanders in Communications; National Black Programming Consortium; Latino Public Broadcasting; and the Center for Asian American Media — receive operational and programming funds through the CPB budget.

Others who receive funding from the CPB include public and community radio stations, a number of which are Native-owned, and the Independent Television Service.

NATIONAL LABOR RELATIONS BOARD

The Act contains language designed to make it more difficult to organize unions by prohibiting the National Labor Relations Board from issuing any new administrative directive or regulation related to electronic voting. The Act states: 
SEC. 405. None of the funds provided by this Act or previous Acts making appropriations for the National Labor Relations Board may be used to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.

***

Hobbs Straus General Memorandum 12-031, February 24, 2012, downloadable at: GM_12-031_IAFY2013request.pdf reported on the President’s FY 2013 Appropriations Request for Indian Affairs, Office of the Special Trustee and Other Interior Programs. Details of the proposal with comparison to past years are available at: http://hobbsstraus.com/sites/default/files/generalmemo/GM_12-031_IAFY2013request.pdf.

INDIAN AFFAIRS (IA) BUDGET OVERVIEW

The Administration seeks an FY 2013 funding level of $2.6 billion for Indian Affairs, which is $4.6 million less than the FY 2012 enacted level. Within the total are $2.37 billion for the Operation of Indian Programs (OIP; an $11.6 million increase over the FY 2012 level) and $105.9 million for Construction (a $17.7 million decrease from FY 2012).

Highlights within the Indian Affairs budget include the following: • Increases/Reductions/Savings. The Administration's proposed FY 2013 program increases include $6.7 million for Contract Support (total funding of $228 million); $2 million for Tribal Grant Support Costs for tribally operated schools (total funding of $48.2 million); $7.8 million for Trust-Natural Resources; and $8.4 million for Public Safety and Justice (PS&J) programs, including $1 million for tribal courts. The program decreases total $13.2 million for OIP programs and $17.7 million for Construction programs. In addition, the Administration's budget assumes administrative costs savings ("administrative savings") will be realized under department-wide and program streamlining efforts in areas such as travel, information technology, and strategic sourcing ($19.7 million); and $13.8 million through Management efficiencies. The budget justification states: In recognition of constrained fiscal resources and the President's call for a more efficient government, BIE will undergo streamlining reviews in all program areas with targeted cost savings projections. In addition to these efforts, achieving additional savings from management efficiencies will be a key priority of BIA in FY 2013. All of these savings are being redirected back into Indian programs to ensure that funds are directed to programs that have a direct impact on everyday lives. (IA-OVW-4)

• Pay Increases. The Administration proposes $18.6 million for the FY 2013 fixed costs for "for Indian Affairs employees, tribal (638) employees, other teachers, Working Capital Fund, Workers Compensation, Unemployment Compensation, and increases associated with rentals (both General Services Administration and direct)." This amount includes $14.3 million in pay adjustment for "increased costs for teachers salaries during the 2011-2012 school year, based on DoD comparability pay and an adjustment for 638 contracted/compacted tribal employees in FY 2012." (IA-OVW-4)

• Indian Reorganization Act – Carcieri Fix. The Administration proposes language that would provide a "clean" Carcieri fix, which would reverse the U.S. Supreme Court's 2009 decision that the Secretary of the Interior did not have authority to take land into trust for tribes recognized after 1934. The language below is identical to that proposed, but not enacted, in FYs 2011 and 2012 appropriations measures.

INDIAN REORGANIZATION ACT SEC. 116. (a) Modification - (1) In general - The first sentence of section 19 of the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 479), is amended - (A) by striking "The term" and inserting "Effective beginning on June 18, 1934, the term"; and (B) by striking "any recognized Indian tribe now under Federal jurisdiction" and inserting "any federally recognized Indian tribe". (2) Effective date - The amendments made by paragraph (1) shall take effect as if included in the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 479), on the date of enactment of that Act. (b) Ratification and confirmation of actions - Any action taken by the Secretary of the Interior pursuant to the Act of June 18, 1934 (commonly known as the "Indian Reorganization Act") (25 U.S.C. 461 et seq.) for any Indian tribe that was federally recognized on the date of the action is ratified and confirmed, to the extent such action is subjected to challenge based on whether the Indian tribe was federally recognized or under Federal jurisdiction on June 18, 1934, ratified and confirmed as fully to all intents and purposes as if the action had, by prior act of Congress, been specifically authorized and directed. (c) Effect on other laws (1) In general – Nothing in this section or the amendments made by this section affects - (A) the application or effect of any Federal law other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as amended by subsection (a)); or (B) any limitation on the authority of the Secretary of the Interior under any Federal law or regulation other than the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as so amended). (2) References in other laws - An express reference to the Act of June 18, 1934 (25 U.S.C. 461 et seq.) contained in any other Federal law shall be considered to be a reference to that Act as amended by subsection (a). (p. 758, Department of Interior Appendix)

• Indian Arts and Crafts Board. The Administration proposes to transfer the Indian Arts and Crafts Board (IACB) from the Office of the Secretary to the Operation of Indian Programs account; associated funding is $1.2 million.

OFFICE OF THE SPECIAL TRUSTEE

The FY 2013 budget request for the Office of the Special Trustee (OST) is $146 million, including $26.8 million for the Office of Historical Accounting. The OST FY 2012 funding level was $152 million.

OPERATION OF INDIAN PROGRAMS

FY 2012 Enacted $2,367,738,000, FY 2013 Admin. Request $2,379,431,000

The FY 2013 proposed funding for OPERATION OF INDIAN PROGRAMS (OIP) would be a net increase of $11.69 million above the FY 2012 enacted level, including $16.6 million increase for fixed costs and related changes ("Fixed Costs," comprised of pay cost increases and rentals), $27.9 million in programmatic funding increases, a decrease of $32.9 million in administrative savings and a transfer of $1.2 million.

BUREAU OF INDIAN AFFAIRS

FY 2012 Enacted $1,572,258,000, FY 2013 Admin. Request $1,582,019,000

The Administration proposes increases for: Tribal Government (+$8.7 million), Trust-Natural Resources Management (+$4.8 million), Trust-Real Estate Services (+$1.05 million), Public Safety and Justice (+$7.6 million) and Bureau of Indian Education (+$653,000). Major reductions are proposed for Human Services
(-$1.2 million) and Executive Direction/Administrative Services (-$11.9 million).

TRIBAL GOVERNMENT

FY 2012 Enacted $519,331,000, FY 2013 Admin. Request $529,158,000

The Tribal Government subactivities are: Aide to Tribal Government; Consolidated Tribal Government Program; Self-Governance Compacts; Contract Support; Indian Self-Determination Fund; New Tribes; Small and Needy Tribes; Roads Maintenance; and Tribal Government Program Oversight. For budget details by program, see page IA-CBT-2 of the attached chart.

The proposed budget would provide $9.8 million above the FY 2012 enacted level for Tribal Government programs (including the $3.2 million for Fixed Costs) and a reduction of $2.6 million for administrative savings.

• Contract Support Costs (CSC). A program increase of $6.7 million is proposed, for total funding of $228,000,000; which is the reported amount needed for full funding of CSC.

This brings the total funding for contract support to $228,000,000 which is the amount identified in the 2010 Contract Support Shortfall Report, the most recent report, as the estimated full funding requirement. Since 2008, funding for contract support has increased by more than 50 percent. This includes indirect contract support costs, which are the costs incurred for a tribe’s or tribal organization's common services, such as financial management and accounting; and, as well as direct contract support costs, which are the costs that tribes incur but are not provided in program funding or indirect funding, such as the cost of program-specific training, and costs related to direct program salaries (i.e., unemployment taxes, workers compensation insurance, and retirement costs). (IA-TG-2)

The budget proposal also requests $2 million for the Indian Self-Determination Fund (ISD), the same as in FY 2012. The ISD Funds are for first year administrative costs related to new and expanded contracts.

• Roads Maintenance. Funding is proposed at $25.1 million, which is $320,000 less than the FY 2012 level, reflecting the Administration's "shift in identified priorities" and should have minimal impact on road maintenance activities. The budget justification states: Preventive maintenance and rehabilitation for deteriorated roads are crucial for the IA transportation system and the current service delivery will be maintained in FY 2013. BIADOT and the tribes will continue to keep IA-owned streets, roads, highways, and bridges at the target levels for acceptable roads in accordance with the Service Level Index of 14 percent and 62 percent. Regular maintenance activities such as sealing cracks, repairing pavement, cleaning and repairing drains, fixing signals, and sweeping streets will continue in FY 2013. (IA-TG-3)

Bill Language

• Contract Support Cap. Like prior budget submittals, the Administration again proposes a statutory cap on contract support costs: notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended, not to exceed $228,000,000 shall be available for payments for contract support costs associated with ongoing contracts, grants, compacts, or annual funding agreements entered into with the Bureau prior to or during fiscal year 2013, as authorized by such Act, except that federally recognized tribes and tribal organizations of federally recognized tribes, may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, or compacts, or annual funding agreements and for unmet welfare assistance costs;

• Contract Support Limitation. Consistent with prior Interior appropriations acts the proposed budget would continue language that attempts to limit the ability of the BIA and IHS to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years as follows: 
SEC. 407. Notwithstanding any other provision of law, amounts appropriated to or otherwise designated in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208, 105-83, 105-277, 106-113, 106-291, 107-63, 108-7, 108-108, 108-447, 109-54, 109-289, division B and Continuing Appropriations Resolution, 2007 (division B of Public Law 109-289, as amended by Public Laws 110-5 and 110-28), Public Laws 110-92, 110-116, 110-137, 110-149, 110-161, 110-329, 111-6, 111-8, 111-88, 112-10 and 112-74 for payments for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 2012 for such purposes, except that the Bureau of Indian Affairs, tribes, and tribal organizations may use their tribal priority allocations for unmet contract support costs of ongoing contracts, grants, self-governance compacts, or annual funding agreements.

• TPA Redistribution. The Administration proposes to continue a provision from prior Interior appropriations acts (FYs 1999-2012), which authorizes redistribution of TPA and tribal base funds to alleviate funding inequities as follows: SEC. 105. Notwithstanding any other provision of law, the Secretary of the Interior is authorized to redistribute any Tribal Priority Allocation funds, including tribal base funds, to alleviate tribal funding inequities by transferring funds to address identified, unmet needs, dual enrollment, overlapping service areas or inaccurate distribution methodologies. No federally recognized tribe shall receive a reduction in Tribal Priority Allocation funds of more than 10 percent in fiscal year 2013. Under circumstances of dual enrollment, overlapping service areas or inaccurate distribution methodologies, the 10 percent limitation does not apply.

• Tribal Shares Language. The budget proposal would continue bill language regarding tribal shares as follows: Notwithstanding any other provision of law, no funds available to the Bureau of Indian Affairs for central office oversight and Executive Direction and Administrative Services (except executive direction and administrative services funding for Tribal Priority Allocations, regional offices, and facilities operations and maintenance) shall be available for contracts, grants, compacts, or cooperative agreements with the Bureau of Indian Affairs under the provisions of the Indian Self-Determination Act or the Tribal Self-Governance Act of 1994 (Public Law 103-413).

• Disaster Relief Language. The budget proposal would continue previous bill language that authorizes expenditures in excess of the funded amounts in order to provide disaster assistance to Indian communities. Without the language, the Bureau would be prevented from using unobligated funds to provide additional welfare assistance, such as occurred during the 2005 Hurricane Katrina disaster. The language states: Provided, That in cases of designated Federal disasters, the Secretary may exceed such cap, from the amounts provided herein, to provide for disaster relief to Indian communities affected by the disaster;

HUMAN SERVICES

FY 2012 Enacted $136,360,000, FY 2013 Admin. Request $135,151,000

The Human Services subactivities are: Social Services; Welfare Assistance; Indian Child Welfare Act (ICWA); Housing Improvement Program (HIP); Human Services Tribal Design; and Human Services Program Oversight. For budget details by program, see page IA-CBT-2 of the attached chart.

The proposed budget provides $526,000 in Fixed Costs but the net result is an overall $1.2 million decrease for administrative savings. No program changes are proposed.

TRUST–NATURAL RESOURCES MANAGEMENT

FY 2012 Enacted $157,245,000, FY 2013 Admin. Request $162,109,000

The Trust–Natural Resources Management subactivities are: Natural Resources; Indian Irrigation Operation and Maintenance; Rights Protection Implementation; Tribal Management/Development Programs; Endangered Species; Cooperative Landscape Conservation; Integrated Resource Information; Agriculture and Range; Forestry; Water Resources; Fish/Wildlife & Parks; and Resource Management Oversight. For budget details by program, see pages IA-CBT-2 of the attached chart.

The budget request would result in a net $4.8 million increase from the FY 2012 level for Trust–Natural Resources Management programs, including $7.8 million in program increases, $984,000 for Fixed Costs and a reduction of $3.8 million in administrative savings. The program increases include:

o Rights Protection Implementation – $3.5 million increase, for total funding of $32.6 million to increase support to Indian organizations and programs in developing conservation management plans and codes. The requested increase would be allocated to: the Chippewa-Ottawa Resource Authority (CORA) for activities related to the implementation of the Inland Consent Decree ($1.6 million); CORA beneficiary tribes and members "to protect their inland consent decree treaty-reserved rights" ($1.5 million); Salmon Marking project ($68,000); 1854 Authority implementation ($200,000); and the balance ($1.7 million) to other inter-tribal organizations, i.e., NW Indian Fisheries Commission, Great Lakes Indian Fish & Wildlife Commission, Columbia River Intertribal Fisheries Commission, U.S./Canada Pacific Salmon Treaty, and Washington State Timber-Fish-Wildlife Project.

o Tribal Management/Development Program – $2 million increase, for total funding of $9.7 million to expand tribal fish and wildlife project management capacity and contribute toward new initiatives.

o Cooperative Landscape Conservation – $800,000 increase, for total funding of $999,000 to "expand tribal involvement in the Cooperative Landscape Initiative" (IA-TNR-3) through the following:

--Tribal Grant Program ($630,000), a competitive grant program to help develop and implement climate change related projects and strategies --Regional Office travel and related expenses to participate in Landscape Conservation Cooperatives and other climate adaptation related activities ($120,000)
--Central Coordinator ($50,000) to support outreach activities at conferences, workshops and other venues related to climate change adaptation.

o Invasive Species – $500,000 increase, for total funding of $3.9 million. Funds are provided via competitive grants to tribes and Indian Affairs agency offices for weed control efforts. The increase is expected to result in support to 100 new invasive species control projects.

o Forestry Program – $1 million increase, for total funding of $42.7 million. The focus of the Forestry Program is the protection and enhancement of Indian forest lands and natural resources through assistance to tribes consistent with tribal forest management plans or integrated resource management plans. The proposed increase would be allocated to the Forest Inventory and Planning, one of several components of the Forestry Program. The increase will aid the program in maintaining "productive levels of Forestry Inventory and Planning activities."

TRUST–REAL ESTATE SERVICES

FY 2012 Enacted $126,759,000, FY 2013 Admin. Request $127,813,000

The Trust–Real Estate Services subactivities are: Trust Services; Navajo-Hopi Settlement Program; Probate; Land Title and Records Offices; Real Estate Services; Land Records Improvement; Environmental Quality; Alaskan Native Programs; Rights Protection; and Trust-Real Estate Services Oversight. For budget details by program, see page IA-CBT-2/-3 of the attached chart.

At the request level, the Trust–Real Estate Services (RES) amount would be a net increase of $1.05 million, with programmatic increases totaling $7 million, Fixed Costs of $1.02 million and a reduction of $7 million in administrative savings.

• Trust Services – $5.5 million increase, for total funding of $15.4 million. The proposed increase would be provided to Klamath Tribes for implementation of economic activities as part of the Klamath Basin Restoration Agreement.

• Litigation Support/Attorney Fees – $1.5 million increase which is also the total funding. These funds "will provide the necessary support for the tribes to protect their tribal trust resources or treaty rights in cases where the Federal Government cannot represent Indian interests for various reasons, including conflicts of interest." (IA-RES-3)

PUBLIC SAFETY AND JUSTICE

FY 2012 Enacted $346,223,000, FY 2013 Admin. Request $353,882,000, The Public Safety and Justice subactivities are: Law Enforcement; Tribal Courts; and Fire Protection. For budget details by program, see pages IA-CFT-3 of the attached chart.

The proposed budget would provide a net $8.4 million increase from the FY 2012 level, with $8.4 million in programmatic increases, $2.4 million for Fixed Costs, and a reduction of $3.2 million in administrative savings.

Law Enforcement increases include:

o Criminal Investigations and Police Services – $3.5 million increase, for total funding of $189.6 million. Of the increase, $2 million would be allocated to tribal base funding under Criminal Investigations and Police Services, $1 million would be for BIA direct staff and initiatives to increase policing in high crime areas, and $500,000 would fund ten tribal Conservation Law Enforcement Officers (CLEO). The CLEO's purpose would primarily be to protect tribal natural resources but "are often cross-deputized with local law enforcement to provide…assistance in enforcing criminal law." The budget justification states:

Funding for this program will be managed by the BIA Trust Natural Resources Management Division in the Office of Trust Services and will be delivered to tribes with fish and wildlife resources through existing P.L. 93-638 contracts and self-governance compacts, enabling tribes to hire and provide credible certification for their CLEO personnel. No Federal FTE will be hired under this program. (IA-PSJ-8)
The FY 2012 budget request had proposed $1 million to initiate the CLEO program but Congress did not provide the funds.

o Detention/Corrections – $6.5 million increase, for total funding of $88.1 million. The budget justification estimates 70 percent of the increase would be allocated to tribal base funding and the balance for operation of Indian Affairs' detention programs. The proposed increase would address staffing shortages at five new or expanded detention facilities scheduled to come online by the end of FY 2013. o Law Enforcement Special Initiative – reduction of $2.55 million, for total funding of $14.6 million. The decreases proposed reflect reprioritization of "available resources to address other core responsibilities to [AI/ANs]" and would be applied to: Southwest Border Initiative (-$1 million); Intelligence Sharing (-$550,000) and Incident Management Analysis and Reporting System (IMARS; -$1 million).

• Tribal Courts – $1 million increase, for total funding of $24.5 million. The increase, geared to continue improvement in the 185 Indian Affairs-funded tribal court operations, would fund hiring additional judges, training and equipment.

Community and Economic Development

FY 2012 Enacted $34,810,000, FY 2013 Admin. Request $34,333,000

The Community and Economic Development (CED) subactivities are: Job Placement and Training; Economic Development; Minerals and Mining; and Community Development Oversight.

The budget request would result in a net decrease of $477,000 from the FY 2012 level, including $115,000 in Fixed Costs and a reduction of $588,000 in administrative savings. The administrative savings reductions would primarily be applied to Job Placement and Training (-$298,000), and Minerals and Mining (-$287,000). For budget details by program, see page IA-CFT-3 of the attached chart.

EXECUTIVE DIRECTION AND ADMINISTRATIVE SERVICES

FY 2012 Enacted $251,530,000, FY 2013 Admin. Request $239,573,000

The Executive Direction and Administrative Services subactivities are: Assistant Secretary Support; Executive Direction; Administrative Services; Safety and Risk Management; Information Resources Technology; Human Capital Management; Facilities Management, Intra-Governmental Payments; and Rentals.

The proposed budget would be an $11.9 million reduction from the FY 2012 level, with $3.5 million in Fixed Costs, a $6.4 million programmatic decrease, and a reduction of $9.7 million in administrative savings. For budget details by program, see page IA-CFT-3 of the attached chart.

• Information Resources Technology - $6.1 million reduction, for total funding of $47.5 million. The reduction is proposed as a result of the anticipated savings derived from the DOI IT Transformation initiative, which centralized common IT services such as email, data centers, servers, etc.

BUREAU OF INDIAN EDUCATION

FY 2012 Enacted $795,480,000, FY 2013 Admin. Request $796,133,000

The Bureau of Indian Education (BIE) category displays funds for the BIE-funded elementary and secondary school system as well as other education programs including higher education and scholarships. The subactivities are: Elementary and Secondary Programs–Forward Funded; Elementary and Secondary Programs (non-forward funded); Post Secondary Programs–Forward Funded, Post Secondary Programs (non-forward funded); and Education Management.

General Overview. The proposed budget would provide a net $653,000 increase above the FY 2012 level, including total funding of $645.8 million for School Operations, $131.8 million for Post Secondary Programs, and $18.4 million for Education Management. The budget proposal assumes a reduction of $4.7 million in administrative savings. For budget details by program, see pages IA-CBT-4 of the attached chart.

School Operations Overview. Highlights of the proposed budget impacting BIE schools include:
-- Tribal Grant Support Costs (TGSC) increase of $2 million for total funding of $48.2 million. The Administration estimates that the FY 2013 amount would result in tribally-operated schools receiving 65 percent of TGSC need in school year 2013-2014 (SY13-14). The estimated pay rate would still be significantly below the rate for non-school (BIA-IHS) contract support costs.

-- School Operations reduction of $4.4 million in ISEP formula funds due to a decline in student population.

-- Fixed Costs request of $4.4 million for Elementary and Secondary Programs Forward Funded and Elementary and Secondary Programs Non-forward funded programs. Fixed costs are related to pay, benefits, and rent costs.
-- Administrative Savings which are expected to result in an overall BIE savings of $1.6 million through improved efficiencies/operations in the areas of travel, fleet, contracts and awards. The Administration also anticipates $3.03 million in administrative savings from consolidation and streamlining of operations.

-- Consolidation and Streamlining of BIE Operations. Following completion of the independent study of the BIE's operations and organization currently underway, the Bureau will, in consultation with tribes, determine the organizational structure and strategies most suited to meeting tribal needs and priorities. The budget justification states:

A critical component in streamlining is the analysis of functions and identification of opportunities to reduce or eliminate duplicative functions, and the associated positions. BIE will explore the use of early retirement and voluntary separations to manage FTE reductions along with other position management techniques. Following consultation, the BIE will design and implement a plan for efficiently delivering educational services to Native Americans enrolled in BIE-funded schools. (IA-BIE-2)

-- BIE Accountability System and Index. As part of the Administration's recent decision to provide states waivers from the No Child Left Behind accountability requirements, the BIE is "exploring flexibility scenarios" and one element may be development of an "Accountability Index," requiring that BIE schools achieve a minimum of 70 points. The BIE proposal will undergo tribal and stakeholder consultation. The budget justification provides the following explanation:

The BIE is exploring flexibility scenarios and its flexibility proposal likely will feature an “Accountability Index” that runs from 0 to 100. Some states have proposed an A through F rating systems that corresponds with grading scales used in education. Similarly, BIE proposes the goal of having 100 percent of its schools achieve a score of 70 or higher on the Accountability Index.

The proposed BIE Accountability Index will consist of student participation in assessments; achievement in assessed subjects; student attendance, graduation, and drop-out rates; school improvement activities; school participation in professional development activities; and school compliance with federal mandates. These measures are far in excess of what NCLBA currently requires, but provide a clearer picture of school performance in educating their students.

Because BIE's proposed accountability system will undergo stakeholder input and tribal consultation, as well as Department of Education recommended changes, the measures outlined here will likely change to reflect the implementation of the program that replaces current AYP measures. (IA-BIE-26)

Elementary and Secondary Programs–Forward Funded 
FY 2012 Enacted $522,247,000
 FY 2013 Admin. Request $523,026,000

Amounts provided under the forward funded category are for use in school year (SY) 2013-2014. The proposed FY 2013 amount would be a net increase of $779,000 over the FY 2012 level. The Administration requested a programmatic increase of $2 million, $3.9 million for Fixed Costs, and a reduction of $718,000 in administrative savings. The forward funded programs and their proposed funding levels are:

o Tribal Grant Support Costs – $48,253,000 (+$2 million). Funds are for administrative costs of currently tribally-operated schools. As in FY 2012, the Administration does not seek separate funds for the transitional costs associated with schools which convert from federal to tribal operation. The proposed FY 2013 bill language would continue authorization of up to $500,000 of Tribal Grant Support Costs (TGSC) funds to be used for the initial year costs. The BIE estimates the FY 2013 request would provide only 65 percent of administrative costs need in SY13-14 and that two tribes have expressed interest in converting three schools to tribally controlled schools status in FY 2013. Considering the rising costs of administrative overhead, fiscal management, insurance and numerous other "contract support"-type expenses, the benefit from the $2 million overall increase—if Congress provides the requested amount—may not significantly impact the TGSC rate.

We note that the proposed increase is still far below what the Administration seeks to address the long-standing indirect costs shortfalls for BIA and IHS non-school contractors. For the BIA, the Administration requests an $8.8 million increase for the ongoing contract support costs (CSC) and the Indian Self-Determination Fund to pay CSC of new contractors. For the IHS contract support costs, the Administration seeks a $5 million increase.

The continuing disparity between budget requests for school TGSC and non-school CSC remains a disconcerting issue.

o Indian School Equalization Formula (ISEF) – $389,358,000. This amount reflects a $4.463 million or one percent programmatic decrease, but factoring in the $3.6 million increase in Fixed Costs and a $551,000 decrease in administrative savings, the net result is a $1.1 million decrease in ISEF funds. In SY11-12, the ISEF resulted in a weighted student unit (WSU) of $5,333.11 or $20.73 over the SY10-11. It is estimated the WSU for SY13-14 could be $5,319.41.
 The Bureau states that of the total SY11-12 ISEF funding, 73 percent ($281 million) supported the basic education programs; 6 percent ($25 million) supported language development programs; 3.6 percent ($14 million) supported programs for gifted and talented students; and 16 percent of the remaining amount was spent on residential and dormitory costs.

o ISEP Program Adjustments – $5,302,000. As in prior years, the FY 2013 funding would be used for primarily for the "FOCUS on Student Achievement Project," and the balance for school safety audits, school security and police (Chemawa Indian School (OR) and Sherman Indian School (CA)). The FOCUS program targets schools that are close to meeting the annual measurable objectives set by their state achievement tests and where the additional resources could help them achieve Adequate Yearly Progress (AYP). In SY 11-12 there are 12 schools participating in the program.

o Student Transportation – $52,663,000. The FY 2013 proposed increase of $31,000 is attributed to Fixed Costs. The Bureau continues to acknowledge that an estimated 15 percent of the total BIE transportation miles are on dirt or unimproved road systems, and school buses must cover greater distances than the metropolitan areas—conditions which contribute to greater fuel and maintenance costs—yet no programmatic increase is sought again. The request amount is expected to provide a SY13-14 payment rate of $3.16 per mile, the same estimated rate for the last two fiscal years. The Student Transportation funds are also used to fund two round-trip airfares for students attending off-reservation boarding schools in addition to the operation of school transportation systems.

o Early Childhood Development – $15,388,000. The FY 2013 request reflects a $43,000 increase due to Fixed Costs. In SY11-12 these funds supported the Family and Child Education (FACE) program for pre-school children, parenting skills, adult education and family literacy services at 44 sites.

o Education Program Enhancements – $12,062,000. This reflects a $30,000 increase due to Fixed Costs. As in previous years, these funds would be used to continue targeted assistance to schools that have not achieved AYP—particularly those in restructuring status. Funds are primarily used to support BIE Reads and Math Counts programs but the Bureau has also sponsored school leadership training.

Elementary and Secondary Programs (these are the non-forward funded programs) FY 2012 Enacted $122,534,000, FY 2013 Admin. Request $122,828,000

Amounts provided under the non-forward funded category are for use in SY12-13. Beginning in FY 2012, funding under this category includes Facilities Maintenance as well as Facilities Operations and JOM. As in FY 2012 no funds are sought for the Residential Education Placement and the Juvenile Detention Education programs. Thus the only increases are attributable to Fixed Costs while decreases are due to the anticipated administrative savings. Specifics for programs in this category are:

o Facilities Operations – $58,629,000 (+$64,000). The Facilities Operations funds are used for costs such as electricity, heating fuels, communications, GSA vehicle rentals, custodial services and numerous other vital operating expenses. For the past several years, schools have received less than 50 percent of the amount needed for Facilities Operations, a gross underfunding that will continue with this budget request.

o Facilities Maintenance – $50,913,000 (+$248,000). The Facilities Maintenance funds are intended for the preventive and routine upkeep as well as unscheduled maintenance of school buildings, equipment, utility systems and grounds.

o Johnson O'Malley (JOM) – $13,286,000 (-$18,000). JOM funds provide special academic and culturally relevant educational services to Indian students from age 3 through the 12th grade at public schools. According to the budget justification, 88 percent of the funds are distributed directly to tribes as base funding through its Self-Governance or Consolidated Tribal Government Programs.

Education Management FY 2012 Enacted $21,971,000, FY 2013 Admin. Request $18,434,000

Education Management is comprised of two elements: Education Program Management ($11.8 million) which pays the salaries of BIE personnel who oversee elementary, secondary and post secondary education programs, and Education IT ($6.6 million), which funds the collection and analyses of school performance data. The personnel include those in education line offices, the Division of Compliance, Monitoring, and Accountability, and technical support staff. Specifics for programs in this category are:

o Education Program Management – $11,817,000 for administrative costs in performing services as State Education Agency and like those performed by a public school district for the BIE-funded school system as well as employee separation costs. The FY 2013 request reflects a $3.55 million decrease to achieve anticipated administrative savings.

o Education Information Technology – $6,617,000. The FY 2013 request reflects a $66,000 decrease due to anticipated administrative savings. Funds are used for data telecommunications to support the Educational Native American Network (ENAN, which provides Internet capability at the schools) and the NASIS, which is a web-based data collection and analysis system used by the BIE.

Bill Language

• Multi-Program Contractors. The Administration proposes to continue the provision in Interior appropriations Acts since FY 2005 that is intended to preserve the ability of tribes who operate both school and non-school programs to receive appropriate funding for administrative costs and indirect costs incurred by these multi-program contractors.

Notwithstanding any other provision of law, including section 113 of title I of appendix C of Public Law 106-113, if in fiscal year 2003 or 2004 a grantee received indirect and administrative costs pursuant to a distribution formula based on section 5(f) of Public 101-301, the Secretary shall continue to distribute indirect and administrative cost funds to such grantee using the section 5(f) distribution formula.

• Eligibility for School Operations Funding. With the reinstatement of the Jones Academy as eligible for school operations funding starting in SY12-13, the Administration proposes changes to bill text on eligibility for these funds. The strikeout language below shows the language as enacted in previous years and the text in italics is the proposed bill language.

Appropriations made available in this or any other Act for schools funded by the Bureau shall be available only to the schools in the Bureau school system as of September 1, 1996. No funds available to the Bureau shall be used to support expanded grades for any school or dormitory beyond the grade structure in place or approved by the Secretary of the Interior at each school in the Bureau school system as of October 1, 1995, except that any school or school program that was closed and removed from the Bureau school system between 1951 and 1972, and its respective tribe's relationship with the Federal Government was terminated, shall be reinstated to the Bureau system and supported at a level based on its grade structure and average student enrollment for the 2009–2010, 2010–2011 and 2011–2012 school years.

No funds available to the Bureau shall be used to support expanded grades for any school or dormitory beyond the grade structure in place or approved by the Secretary of the Interior at each school in the Bureau school system as of October 1, 1995. Appropriations made available in this or any prior Act for schools funded by the Bureau shall be available, in accordance with the BIE funding formula, only to the schools in the Bureau school system as of September 1, 1996 and to any school or school program that was re-instated in FY 2012.

Post Secondary Programs (Forward Funded)
FY 2012 Enacted $67,293,000
 FY 2013 Admin. Request $69,793,000

Including a $2 million programmatic increase requested by the Administration, the FY 2013 request would be a $2.5 million increase over the FY 2012 enacted level. Funded under this account are Operating Grants for 27 tribally controlled colleges and universities; technical assistance; and endowment grants.

Post Secondary Programs (Non-Forward Funded) FY 2012 Enacted $61,435,000, FY 2013 Admin. Request $62,052,000

Among the programs funded under this account are the Tribal Colleges and Universities Supplemental Grants; tribal technical colleges (United Tribes Technical College and Navajo Technical College); Haskell and SIPI; and Scholarships and Adult Education.

CONSTRUCTION

FY 2012 Enacted $123,630,000, FY 2013 Admin. Request $105,910,000

The Administration's proposed budget results in a net $17.7 million decrease from the FY 2012 level, including a programmatic decrease of $17.8 million, decrease of $552,000 in anticipated administrative savings, and an increase of $89,000. For budget details by program, see page IA-CBT-4-5 of the attached chart.

EDUCATION CONSTRUCTION

FY 2012 Enacted $70,826,000, FY 2013 Admin. Request $52,866,000

The Administration's proposal would continue the budgetary focus on facilities maintenance and repair at multiple sites, thus no funds are sought for the school construction program. The requested amount for Education Construction is $17.9 million below the FY 2012 level, including $178,000 to achieve anticipated administrative savings. Funding requests for the major components of Education Construction follow.

Facilities Improvement + Repair FY 2012 Enacted $48,591,000, FY 2013 Admin. Request $48,451,000

The FI+R total would be comprised of: o Minor improvement & repair – $25.2 million o Program Management – $3.2 million o Advance planning and design – $1 million o Condition assessments – $1.3 million o Asset Disposal (Demolition/reduction of excess space) – $3.9 million
 o Emergency repairs – $3.49 million o Environmental projects – $4.8 million o Portable classrooms – $1.5 million o Energy Program – $3.2 million o Education telecommunications – $350,000 o Boiler inspections – $250,000 o Seismic safety data – $72,000

Employee Housing FY 2012 Enacted $4,428,000, FY 2013 Admin. Request $4,415,000

The FY 2013 request reflects a $13,000 decrease to achieve anticipated administrative savings. The FY 2013 funds will be used to continue asbestos and lead-based paint abatement, along with disposal of housing units previously identified through a study. The budget justification reports that the Indian Affairs' Housing Master Plan and Management Study is undergoing final review but one finding so far is that of disparate treatment in housing assignments. Policy changes may come about as a result of the review. The budget justification states:

The Indian Affairs' Housing Master Plan and Management Study is currently under review by IA, BIE, and will be reviewed by the Assistant Secretary Indian Affairs. This study addresses all aspects of the housing program, including inventory, inventory management, occupancy and termination, priority of assignment, and entitlement in accordance with current regulations. Earlier work to determine the condition of the housing units, delineation of responsibilities, and assessment of the program’s effectiveness has been completed. Because entitlement for assignment involves policy and regulations, each step of the review process will receive intense scrutiny. Early stages of the study revealed that administration of employee housing has created disparate treatment in the assignment of employee housing across Indian Country. The final decision with regard to policy changes will be carefully reviewed and final approval of changes is anticipated in November, 2012. (IA-CON-ED-6)

Replacement School Construction FY 2012 Enacted $17,807,000, FY 2013 Admin. Request –0–

This account funds total replacement of an existing school campus, in accordance with a priority construction list, and Advance Planning and Design activities such as the architectural and engineering services. The Bureau reports that of the 43 replacement school projects funded between FY 2001 and FY 2012, three are under construction, two are in the design phase and 37 projects have been completed.

Replacement Facility Construction FY 2012 Enacted –0–FY 2013 Admin. Request –0–

The Replacement Facility Construction program provides funds to replace a single building that is part of an existing school campus and was in poor condition.

Bill Language

The Administration's proposal would continue the appropriations language enacted in FY 2009 that allows the Bureau to take over a construction project from a grantee that fails to complete planning and design of a project and begin construction within 18 months of funds being appropriated.

Provided further, That in order to ensure timely completion of construction projects, the Secretary may assume control of a project and all funds related to the project, if, within 18 months of the date of enactment of this Act, any grantee receiving funds appropriated in this Act or in any prior Act, has not completed the planning and design phase of the project and commenced construction
 OTHER CONSTRUCTION

Public Safety & Justice (PS&J) Construction FY 2012 Enacted $11,311,000, FY 2013 Admin. Request $11,306,000

The proposed PS&J Construction funding total would result in level funding for the Employee Housing; Fire Safety Coordination; and Fire Protection programs. A $5,000 reduction in administrative savings is proposed for Facilities Improvement and Repair (FI+R). No funds are requested for Facility Replacement/New Construction.

Resources Management Construction FY 2012 Enacted $32,959,000, FY 2013 Admin. Request $32,733,000

The Resources Management proposed budget includes $37,000 in Fixed Costs and a $263,000 in anticipated savings. The bulk of the savings reductions are applied to Engineering and Supervision (-$51,000), Federal Power Compliance (-$22,000) and Safety of Dams (-$181,000) programs.

Bill Language
• OST Reimbursement for Space Expansion. The proposed budget would continue bill language that allows the Office of the Special Trustee to reimburse its appropriate share of construction costs related to the expansion of space at the agency level necessitated by trust reform implementation. The bill language states: Provided further, That this appropriation may be reimbursed from the Office of the Special Trustee for American Indians appropriation for the appropriate share of construction costs for space expansion needed in agency offices to meet trust reform implementation.

INDIAN ARTS AND CRAFTS BOARD

FY 2012 Enacted $1,279,000, FY 2013 Admin. Request $1,279,000

The Administration proposes to transfer the Indian Arts and Crafts Board (IACB) from the Office of the Secretary to the Operation of Indian Programs account, "to better align cultural programs that assist Indian communities under the Assistant Secretary-Indian Affairs." (IA-ACB-1) The IACB has responsibility for implementing and enforcing the Indian Arts and Crafts Act which contains civil and criminal penalties for combating counterfeit Indian arts and craft. It also manages three museums in the Plains Region.

NON-BIA PROGRAMS OFFICE OF SPECIAL TRUSTEE

FY 2012 Enacted $152,075,000, FY 2013 Admin. Request $146,000,000

The proposed budget reflects a net decrease of $6.07 million for Office of Special Trustee funding but which includes $816,000 for fixed costs and some programmatic increases. The proposed OST budget reflects $9.9 million in decreases for administrative savings, streamlining and completion of certain activities.

Within the OST total are:

• Executive Direction — $2.9 million, which reflects a $2.3 million decrease due to elimination of the National Indian Program Training Center contract (which will become self-supporting through tuition charges); elimination of the Trust Regulations, Policies, and Procedures program (OST will instead work with Indian Affairs and other DOI offices to address trust regulatory needs); and elimination of the Product Development Initiative.

• Program Operations and Support — $143 million, which reflects $4.6 million decrease. Within this total are:

-- Office of Historical Trust Accounting – $26.8 million, with a $3.3 million decrease attributed to Special Deposit Account reductions, space savings, and contractor assistance reductions.

-- Program Operations – $53.07 million, with a net internal transfer of $10.6 million and a programmatic increase of $2.9 million for the Office of Audit and Review to conduct audits to ensure compliance with the Indian Trust Reform Act at OST, BIA, BLM, and ONRR to determine if they "have established and are complying with appropriate policies and procedures, and developed necessary systems, that will allow management of the fiduciary trust assets consistent with the statutory requirements." -- Field Operations – $23.6 million, a $170,000 increase that includes $72,000 more for Program Operations.

-- Appraisal Services – $10.6 million, a net $11,000 decrease but reflects a $55,000 reduction as a result of decreases for awards, training, travel and contract services.

-- Trust Services – $28.8 million, a net $1.1 million increase but includes $331,000 in reductions comprised of: Internship program eliminated ($189,000) and anticipated cost savings ($142,000).

-- Trust Accountability — no funds are requested ($15.3 million in FY 2012); instead there is a proposed internal transfer of $11.6 million and $3.6 million in program eliminations. Programs to be transferred are: Office of Hearings and Appeals ($8.7 million) to Budget, Finance and Administration; Risk Management ($637,000) to Office of Trust Review and Audit; and Data Quality and Integrity ($2.3 million) to Trust Services. Programs to be eliminated are Trust Training ($1.7 million) and Trust Program Management Center ($1.8 million).

Bill Language

• Statute of Limitations. The proposed budget would continue language to extend the statute of limitations on filing tribal and individual Indian mismanagement claims. The provision reads: Provided further, That notwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including any claim in litigation pending on the date of the enactment of this Act, concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss

• Other. The budget proposal would also continue the following provisions related to the trust programs—

o Authorize use of unobligated balances from prior appropriations acts for OST or BIA for trust management reform, other than activities related to historical accounting, which is limited to the appropriated amount. (Sec. 104)

o Pay private attorneys for the costs of legal representation for employees and former employees incurred in connection with Cobell v. Salazar. (Sec. 106)

NATIONAL PARK SERVICE

The FY 2013 budget request for several National Park Service (NPS) programs are as follows:

o Tribal historic preservation grants –$8.9 million, level funding. These funds aide tribes in assuming the State Historic Preservation Office (SHPO) duties on tribal lands. The NPS estimates the FY 2013 funds would result in awards of "140 grants to support Tribal Historic Preservation Offices (THPOs), with approximately 25 competitive individual project grants."

o Native American Graves Protection and Repatriation Act (NAGPRA) grants – $1.7 million, level funding. Funds are for tribes and Native Hawaiian Organizations to document repatriation requests and for museums to meet inventory and other NAGPRA requirements.

FISH AND WILDLIFE SERVICE

State and Tribal Wildlife Grants FY 2012 Enacted $61,323,000, FY 2013 Admin. Request $61,323,000

These funds are used for the development of wildlife conservation plans and on-the-ground conservation projects to stabilize, restore, enhance, and protect species and their habitats. The FY 2013 budget proposes $4.2 million of the total for the tribal competitive grants program, same as in FY 2012.

OFFICE OF NAVAJO AND HOPI RELOCATION

FY 2012 Enacted $7,737,000, FY 2013 Admin. Request $8,400,000

Funds are used for activities related to the settlement of a northern Arizona land dispute between the two tribes.

INSTITUTE OF AMERICAN INDIAN AND ALASKA NATIVE CULTURE AND ARTS DEVELOPMENT

FY 2012 Enacted $8,519,000, FY 2013 Admin. Request $9,369,000

Funds are used to support the operational costs of the Institute, a multi-tribal higher education center focused on the study, application, preservation and care of Indian arts and culture.

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In the Courts

The U.S. Supreme Court

In a 5-4 decision, June 27, 2010, the U.S. Supreme Court upheld the Indian Healthcare Improvement Act of 2010 as part of the Obama healthcare legislation: Affordable Care Act (ACA) of 2010 (Rob Capriccioso, “US Supreme Court Upholds Indian Health Law and Larger Obama Health Law,” Indian Country Today, June 28, 2012, http://indiancountrytodaymedianetwork.com/2012/06/28/us-supreme-court-upholds-indian-health-law-and-larger-obama-health-law-121084; and Adam Liptak, “Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama,” The New York Times, June 28, 2012, http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html?_r=1&ref=todayspaper).

The Supreme Court ruled 5-4, in Salazar v. Ramah Navajo Chapter, No. 11-551, late June 2012, that by law the federal government is required to pay contract support costs to tribes that enter into agreements to take over federal programs, even if Congress did not provide sufficient funds for that purpose. The money continues to be owed until Congress appropriates the money, or the executive branch finds the money from other available sources. Since the federal government has not completely paid the full contract support costs to numerous tribes over many years, many millions of dollars are involved in the decision, but how soon tribes will be reimbursed how much of the owed money will depend on future congressional and executive branch action. It has been reported that the Senate Indian Affairs Committee is interested in moving toward a rapid resolution (Bill Donovan, “Ramah wins a landmark case in the U.S. Supreme Court, The Navajo Times, June 21, 2012; and “U.S. Supreme Court Requires Full Payment of Contract Support Costs,” Hobbs Straus General Memorandum 12-078, June 23, 2012, downloadable at: GM_12-078_Salazar_v_Ramah.pdf).

The Supreme Court issued its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians [Gun Lake] v. Patchak, June 18, 2012, likely making it easier for legal challenges to be made to taking land into trust. In that case, David Patchak challenged the authority of the Secretary of the Interior to take land into trust for the Gun Lake Band (Band). Patchak resides near the property that the Secretary acquired in trust, and alleged that a casino there would harm him by causing "an irreversible change in the rural character of the area" and "other aesthetic, socioeconomic, and environmental problems." In challenging the Secretary's decision, Patchak argued that the Indian Reorganization Act, in 25 U.S.C. § 465, did not authorize the Secretary to acquire property for the Band because the Band was not a federally recognized tribe when the IRA was adopted in 1934. The claim raised two threshold questions: first, whether the United States had sovereign immunity from being sued by virtue of the Quiet Title Act (QTA); and second, whether Patchak had "prudential standing" (enough legal interest in the case) to be permitted to challenge the Secretary's acquisition. The D.C. Circuit held for Patchak on both questions, and the U.S. Supreme Court agreed to review the case. (See Hobbs Straus General Memorandum 11-155 of December 21, 2011.) In the Supreme Court opinion delivered by Justice Kagan, the Court ruled 8-1 against the Government and the Band on both questions, with Justice Sotomayor filing the only dissenting opinion. Patchak brought his claim under the Administrative Procedure Act (APA), seeking to void the Secretary's administrative decision to take the land into trust. The APA authorizes suits against the federal government for harm caused by agency action and waives the Government's sovereign immunity for suits seeking relief other than monetary damages. However, the APA's waiver expressly does not apply where another statute bars the suit. The QTA waives the Government's sovereign immunity for a suit by a plaintiff asserting a "right, title, or interest" in real property held by the United States, but excludes trust or restricted Indian lands from that waiver. Because the Government held the land in trust for the Band, the Government and the Band argued that the QTA's Indian lands exclusion to the QTA's waiver of sovereign immunity barred Patchak's APA challenge. The Court, however, found that the QTA was not applicable at all to Patchak's claim and therefore did not preserve the Government's sovereign immunity from the suit. The Court reasoned that the Quiet Title Act concerns only quiet title actions in which the plaintiff asserts a competing ownership interest in the property at issue. Patchak, in contrast, asserted only "aesthetic, socioeconomic, and environmental" harms and did not claim any ownership interest in the Band's trust land. Therefore, the APA's waiver of sovereign immunity governed, and Patchak's claim was not barred by the QTA's Indian land exclusion. Justice Sotomayor dissented; she believed the Quiet Title Act should be construed to implicitly prohibit a plaintiff like Patchak from challenging the Government's title via the APA. The Court next addressed whether or not Patchak had "prudential standing" (meaning that he had a genuine interest to justify a suit) to bring his action against the Government, as required by court decisions. To satisfy prudential standing, the interest asserted by the plaintiff must be within the "zone of interests" to be protected or regulated by the statute at issue – here, the IRA. The Government and the Band argued that Patchak's claim was outside the IRA's "zone of interest" because the IRA focuses on land acquisition, whereas Patchak's interests related to the land's use for a casino. The Court took a broad view of the "zone of interest" requirement, stating that the test "is not meant to be especially demanding" and that the test "forecloses suit only when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.'" Because part of the goal of the IRA is to foster Indian economic development, and because the acquisition of Indian land provides the foundation for that economic development, the Court found that Patchak had prudential standing to proceed with his claim. Because the Patchak decision makes it easier to object to the Secretary's taking land into trust for Indians and allows much more time to file suit (6 years instead of 30 days), there may well be many more lawsuits filed seeking to void land-in-trust decisions. Patchak's case will now be remanded to the district court to hear the merits of Patchak's claim that the Band was not under federal jurisdiction in 1934 and thus is ineligible to have land taken into trust under the IRA (“U.S. Supreme Court Releases Opinion in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,” Hobbs Straus General Memorandum 12-079, June 23, 2012, downloadable at: GM_12-079_PatchakOpinion.pdf).

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Lower Federal Courts

The Justice Department reached a settlement, in mid-April, with 41 Indian Nations, agreeing to pay them $1.023 billion, because the Interior Department had failed to properly oversee concessions on Indian lands from companies that exploit a wide variety of resources. About 60 similar tribal suits remain unsettled (Timothy Williams, “U.S. Will Pay A Settlement of $1 Billion to 41 Tribes,” The New York Times, April 14, 2012).

A three judge panel of the D.C. Circuit Court of Appeals, May 22, 2012, rejected an appeal of the Cobell settlement by Kimberly Craven, a Sisseton-Wahpeton Oyate citizen and landowner affected by the settlement, saying her arguments that the settlement is unfair were without merit. The court suggested that aspects of the fairness inquiry were moot given Congress’ decision to appropriate spending for the settlement in 2010, and it indicated that the settlement was fair because it was the “result of an arms-length negotiation” between the Obama administration and the lawyers for the Indian plaintiffs: “What interests it protected and what benefits it provided were weighed by the district court, and considered in view of the class-member objections.” In an unpublished order issued the same day, the court rejected claims of unfairness in three other Cobell appeals by Indian citizens in the Good Bear case, stating, “The appellants raise four objections to the multi-billion dollar settlement of this class action,” the judges wrote in that decision. “Two of these arguments are foreclosed by another decision of this court, Cobell v. Salazar, No. 11-5205 (D.C. Cir. May 22, 2012) [the Craven appeal]…. The appellants’ other two arguments, that the district court lacked jurisdiction and that the district judge [Thomas F. Hogan] should have recused himself, are utterly without merit.” Lawyers for Indian plaintiffs were considering weather or not to appeal the decisions, as of June 12, 2012). One of the concerns being taken into account in deciding whether to appeal was raised by Craven, who says the $1.9 billion land consolidation portion of the Cobell settlement will operate under Indian Land Consolidation Act of 1983 rules, unless U.S. Department of the Interior Secretary Ken Salazar waives this provision. The act provides for the possibility of wavers in some instances. The concern is that 1983 act requires that all the income from sales of land acquired by the federal government under the Cobell settlement will have liens placed on it until the liens pay the government back for the land. This adds a layer of federal intervention that was supposed to be alleviated under the land consolidation portion of the deal. Tribal leaders have expressed their unhappiness with the liens, and recommended that Interior waive them, especially for interests purchased with Cobell settlement funds. A January 2012 report by the Interior Department, Cobell Land Consolidation Program Draft Plan, notes that the Indian Land Consolidation Act, enacted in 1983, provides for liens and waivers in several circumstances and explains that “[t]he original intent of the lien was to create a revolving fund by which additional land could be purchased by the [Indian Land Consolidation Program (ILCP)]. In this regard, Congress intended that the revenue from the liens would serve as a source of funding for the continuation of the ILCP.” Rob Capriccioso, comments, “In other words, the liens were a way to keep a federal government program running on the backs of the Indians and tribes it was supposed to be helping, rather than having Congress appropriate new funds each year to keep the program running. Craven is concerned that the same thing—or worse—could happen under the Cobell deal if the same rules apply.” According to the report, “The Department is currently analyzing this issue,” which means it is in the process of deciding whether the old law with its lien methodology will be applied the terms of the Cobell settlement, which does not have to rely on liens (Rob Capriccioso, “Cobell Appeals Fail to Sway Court, Indian Country Today, May 23, 2012, http://indiancountrytodaymedianetwork.com/2012/05/23/cobell-appeals-fail-to-sway-court-114520; and Rob Capriccioso, ”Cobell Conundrum: Don’t Lien on Me, Indian Country Today, June 13, 2012, http://indiancountrytodaymedianetwork.com/2012/06/13/cobell-conundrum-dont-lien-on-me-118076).

The U.S. Tenth Circuit Court of Appeals, February 22, 2012, upheld a 2010 district court decision ordering Wyoming's Fremont County, home to the Eastern Shoshone and Northern Arapaho Tribes of the Wind River Reservation, to conduct elections using a single-member elections system. The ACLU brought a voting rights suit against the County, in 2005, charging that the County's at-large voting system diluted the Native American vote in violation of Section 2 of the Voting Rights Act. Native Americans in Fremont County make up 21 percent of its population yet they had been unsuccessful in electing representatives to the County Board prior to 2010. In 2010, the district court ordered the County to create a remedial plan. The County proposed creating one district seat for its Native American population while allowing the remaining majority white population to elect four commissioners. The district court rejected the proposal and endorsed the plaintiff's plan which would create five single-member districts. The district court wrote that the County's proposal would have "perpetuate[d] the separation, isolation, and racial polarization in the County, guaranteeing that the non-Indian majority continues to cancel out the voting strength of the minority." The County appealed the rejection of its plan (See Hobbs Straus General Memoranda 10-64 of May 14, 2010 and 10-132 of October 15, 2010). On Appeal, the Tenth Circuit found that the County's proposal was not a legislative plan entitled to deference by the courts. Thus, the district court properly refused to embrace the County's proposal. The ruling does leave open the possibility that the Wyoming legislature could change state law to create a hybrid voting system but that remains an undecided issue (“Wyoming Tribes Win Major Voting Rights Decision, Hobbs Straus General Memorandum 12-032, March 2, 2012, dowloadable at: GM_12-032_VotingRights.pdf).

A panel of the Tenth U.S. Circuit Court of Appeals published, February 28, 2012, its opinion in the case Muscogee (Creek) Nation v. Pruitt, Case No. 11-7005, dismissing the Tribe's challenge to Oklahoma's tobacco laws, albeit on slightly different grounds than the lower court. The Muscogee (Creek) Nation ("Tribe") sued the Oklahoma Tax Commission ("OTC"), its three commissioners, and the Attorney General (collectively, the "State"), asking the federal courts to prohibit the State from enforcing three Oklahoma tobacco laws (collectively, the "Statutes"): The Excise Tax Statute imposed a tax on the sale of cigarettes and other tobacco products, and allowed for tribes to compact with the State for collection of State taxes on tobacco products sold in Indian country. Included is language that allows tribes to sell cigarettes tax-free to their members, but requiring that tribes collect taxes on sales to non-Indians and to Indians of other tribes. The Escrow Statute requires tobacco manufacturers that sell cigarettes in Oklahoma either to be party to the Master Settlement Agreement ("MSA") between states and tobacco companies, or to pay into an escrow fund. The Complementary Act requires tobacco manufacturers that sell their products in Oklahoma certify to the Oklahoma Attorney General that either it is participating in the MSA or that it has made the payments required by the Escrow Statute. The Tribe initially argued that the Statutes were preempted by the federal Indian Trader Statutes, that they violated the Indian Commerce Clause and the Supremacy Clause of the U.S. Constitution, that they violated the Tribe's right to govern itself, and that they violated the Tribe's rights to due process and equal protection. The U.S. District Court for the Eastern District of Oklahoma dismissed these claims, holding that the State was immune from suit under the Eleventh Amendment to the U.S. Constitution and that even if the State was not immune, the Tribe had failed to make a plausible case. The Tenth Circuit rejected the district court's Eleventh Amendment analysis, holding that the lower court was wrong to consider the strength of the Tribe's case at this juncture. In other words, the Tribe was entitled to bring its case, regardless of how strong (or weak) a case it was. However, the Tenth Circuit also concluded that the lower court was correct in its analysis of the strength of the Tribe's case, stating that the overwhelming weight of U.S. Supreme Court precedent was against the Tribe's position (“Tenth Circuit Affirms Decision to Dismiss Muscogee (Creek) Nation's Challenge to Oklahoma Tobacco Statute,” Hobbs Straus General Memorandum 12-034, March 9, 2012, downloadable at: GM_12-34_Muscogee v. Pruitt.pdf).

The Ninth Circuit Court of appeals, February 9, 2012, upheld the district court’s decision, allowing treated waste water to be used in making snow at the ski area on the San Francisco peaks, sacred to at least 13 tribes (The Navajo call them Doko’oo’sliid, or “Shining On Top.” To the Hopi, the peaks are Nuvatukaovi, or “The Place of Snow on the Very Top.”) (“Sacred Site Faces Legalized Desecration From Arizona Snowbowl Wastewater,” Indian Country Today, February 10, 2012, http://indiancountrytodaymedianetwork.com/2012/02/10/sacred-site-faces-legalized-desecration-from-arizona-snowbowl-wastewater-97050; and Cindy Yurth, “09th Circuit denies second Snowbowl appeal,” Navajo Times, February 16, 2012).

The United States Court of Appeals for the Ninth Circuit held, March 15, 2012, that a suit against Navajo Nation ("Nation") officials alleging violations of federal law could proceed under the Ex parte Young doctrine (a 1908 Supreme Court case), notwithstanding the immunity of the Nation (Salt River Project Agr. Imp. & Power Dist. v. Lee). In this case, non-Indians operating a power plant on the Navajo Reservation sued tribal officials (not the Nation) in federal court, seeking a ruling that the Nation did not have regulatory authority over plaintiffs' employees, because that authority was waived in the power plant lease with the Nation. The district court ordered the case dismissed on the grounds of sovereign immunity, but the Ninth Circuit reversed, holding that the Nation was not a necessary party to the case, and that the suit could proceed under the Ex. parte Young doctrine. In holding that the case could proceed without the Nation being made a party, the court held that an injunction could be issued against the Nation's officials in their official capacity, and would therefore bind their successors as well, and that the interests of the Nation would be protected because the tribal officials' interests were aligned with those of the Nation. The court also noted that the tribal officials' theory regarding indispensability of the Nation in an Ex parte Young suit would render the Young doctrine meaningless, because any suit under Young of necessity implicates the interests of the government at issue. After holding that the Nation was not a necessary party to the suit, the court turned to the application of the Young doctrine. The Ninth Circuit stated the rule of Ex parte Young as "[permitting] actions for prospective non-monetary relief against state or tribal officials in their official capacity to enjoin them from violating federal law, without the presence of the immune State or tribe." The court held that Ex parte Young applied to the allegations that the Nation officials had acted beyond the scope of their authority as defined by federal common law, on the theory that Young applied to violations of federal common law as well as statutory law (“Ninth Circuit Allows Suit to Proceed against Navajo Nation Officials under Application of Ex parte Young Doctrine,” Hobbs Straus General Memorandum 12-048, April 6, 2012, which may be downloaded at: GM_12-048_SaltRiver.pdf).

The Second Circuit Court of Appeals, in late June, overturned a permanent injunction granted in 2008 by a federal judge at the request of the state of New York and the town of Southampton that prevented the Shinnecock Indian Nation from using the tribally owned Hampton Bays property called Westwoods for a casino. The court has determined the case belonged in state court, rather than federal court, because it concerns local zoning jurisdictions. It will now be remanded back to a state court, although it remains unclear whether the state and town will continue the legal battle (“Federal Court Throws Out Injection Blocking Shinnecocks From Building Hamptons Casino,” Indian Country Today, June 26, 2012, http://indiancountrytodaymedianetwork.com/2012/06/26/federal-court-throws-out-injuction-blocking-shinnecocks-from-building-hamptons-casino-120561).

The Tenth Circuit Court of Appeals, June 19, 2012, in Cora Jean Jech; Charles Tillman; Dudley Whitehorn; Joe Hall; Joanna Barbara; R.E. Yarbrough; Cody Tucker, John Johnson v. Department of Interior; Ken Salazar, Secretary of the Interior; Bureau of Indian Affairs; Larry Echohawk, assistant secretary, Indian Affairs; the United States of America, upheld a Northern District of Oklahoma magistrate judge dismissing, on the grounds that administrative remedies had not been exhausted, the suit by eight Osage Nation members who objected to greater latitude in tribal voting and tribal office. The eight have inheritable headrights, or ownership, in the Osage Mineral Estate and are shareholders in mineral revenue distributions that are based on headright interests. Under the Osage Allotment Act of 1906, only shareholders were allowed to cast votes by weighted ballot according to headright interest and only shareholders could be tribal officials. Under a later tribal constitution, however, all adult members were authorized vote in tribal elections or hold tribal office. Concerned shareholders, fearing their headright interests were threatened, demanded that the Bureau of Indian Affairs conduct an election in 2006 for the governing body of the Estate under the older, more restrictive rules, but the BIA refused (Carol Berry, “Osage Tribe Voting Rights Upheld,” Indian Country Today, June 23, 2012, http://indiancountrytodaymedianetwork.com/2012/06/23/osage-tribe-voting-rights-upheld-119962).

A judge in the U.S. District Court for the Northern District of Oklahoma held, April 26, 2012, in State v. Hobia (Case No. 12-CV-054-GKF-TLW) that the Oklahoma Model Tribal Gaming Compact does not require the State of Oklahoma (State) to pursue arbitration before bringing suit against an Indian tribe in federal court for alleged violations of the Compact, and that sovereign immunity was no defense to the lawsuit. The Court held that the arbitration provisions in the Compact are merely optional. The Court noted that the Compact describes arbitration using the permissive term "may," instead of the mandatory "shall." Thus, the Court reasoned, the Compact allows parties the option to seek arbitration, but does not require them to do so. Second, the Court pointed to Part 9 of the Compact, which provides: "This Compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction," and to Section 2710(d)(7)(A)(ii) of the Indian Gaming Regulatory Act (IGRA), which authorizes federal district courts to hear "any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact." Reading the Compact and the IGRA together, the Court concluded that the IGRA allows the State to sue in federal court, and that the Compact merely offers the State the alternative of pursuing arbitration instead. The Court also rejected the defendants' claims to sovereign immunity. Tiger Hobia, the King or Mekko of the Kialegee Tribal Town (Kialege or Town) and the Kialegee Tribal Town Corporation (Kialegee Corporation or Town Corporation), argued that he was immune from suit as a tribal official. The Court, however, followed last year's Tenth Circuit Court of Appeals decision in Crowe & Dunlevy, P.C. v. Stidham, holding that sovereign immunity does not shield a tribal official from a suit alleging an ongoing violation of federal law. Because the State alleged that Hobia is involved in ongoing violation of federal law, the Court held that he is not immune from suit. The Court also held that the Kialegee Corporation lacks sovereign immunity, finding both that the IGRA abrogated tribal sovereign immunity from a state's lawsuit in federal district court to enjoin class III gaming on Indian lands that violates a tribal-state compact, and that the "sue and be sued" language in the Kialegee Corporation's charter serves as a waiver of immunity. The Court acknowledged in a footnote that a "sue and be sued" clause in a corporate charter is insufficient to serve as a waiver of a tribe's sovereign immunity. However, because the State sued the Town Corporation, and not the Town itself, the Court found the "sue and be sued" clause to be a sufficient waiver of sovereign immunity (“Federal Court Holds Arbitration Not Required Under Oklahoma's Model Compact,” Hobbs Straus General Memorandum 12-061, May 4, 2012, downloadable at: GM_12-061_State_v._Hobia.pdf).

U.S. District Court Judge Warren Eginton, in Connecticut, ruled that the town of Ledyard, CT cannot collect property taxes on leased slot machines used in the Mashanatucket casino. The town had claimed that while the casino property belonged to the Indian Nation, and was tax exempt, the slot machines leased from a private party were subject to municipal taxation (“Mashanatucket win lawsuit over slot machine taxes,” News From Indian Country, April 2012).

PNM and the Sierra Club, March 28, 2012, settled the suit brought by the environmental group in the New Mexico Federal District Court to get the manager and part owner of the San Juan Generatign Station to better dispose of coal ash and other by products to prevent water pollution. Under the settlement, PNM and its partners will expand current recovery of coal ash, building a slurry wall to keep ash away from water sources and use a lined storage pond to prevent seepage to ground water (Alastair Lee Bitosi, “PNM, Sierra Club Agree to settle suit,” Navajo Times, April 14, 2012).

The Navajo Nation brought suit, January 12, 2012, against San Juan County, Utah, claiming that its refusal to redraw its county commission districts in the wake of the 2010 census is a violation of voting rights as the change in population finds Anglo voters having a majority in two of the three districts, while they are a minority over all (Cindy Yurth, “Dine take Utah county to court over redistricting,” Navajo Times, January 19, 2012).

Three members of the Navajo Nation in Utah have brought suit in Utah federal district court against the state of Utah, claiming that the state acted improperly by resigning as trustee of the Utah Navajo Trust Fund, in 2010, and requesting that the court order their resuming the trusteeship of the $50 million trust fund created by Congress in 1933 with the state of Utah as trustee (Cindy Yurth, “Some Utah Dine want state to return,” Navajo Times, March 29, 2012).

Suit Alleges Violation of Indian Self-Determination Act by BIA in California,” Hobbs Straus General Memorandum 12-027, February 17, 2012, downloadable at: GM_12-027_CA_TribesComplaint_toDOI.pdf, reports that a complaint was filed on February 2, 2012 by six Indian tribes located in the State of California seeking both injunctive relief and money damages based on the refusal of the Department of the Interior (DOI) to comply with a number of federal laws, including the Indian Self-Determination and Education and Assistance Act (ISDEAA), as amended, 25 U.S.C. § 450f. The complaint raises important issues such as alleged federal discrimination against Indian tribes in California. The complaint alleges that DOI has made conflicting and erroneous decisions as to the right of tribes in California to contract for the operation of law enforcement services under 25 U.S.C. § 450f as well as the Indian Law Enforcement Reform Act. 25 U.S.C. § 2801. Hobbs Straus report assumes the factual allegations in the complaint are correct, reviewing below the aspects of the case which are significant for the rights of tribes under these statutes both within and outside California. “The complaint is correct that there is no provision in these statutes or any regulations which exempt California tribes from the right to enter into contracts (638 contracts). In declining some tribal applications the DOI and the Bureau of Indian Affairs have relied on an unwritten "policy" of not providing 638 contracts for law enforcement services in states subject to state jurisdiction under Public Law 280. (If so, the policy has been violated in a number of Public Law 280 states, including California). In other instances, DOI has taken the position that the ban on 638 contracts only applies to California. Basing declination on the "policy" of not awarding such contracts in California or not providing funding for such contracts in California, DOI has ignored express statutory language, including that which limits the application of any regulation or policy which has not been promulgated in accordance with the procedures required by the ISDEAA. 25 U.S.C. § 450j-1 and 25 U.S.C. § 450k(a)(1) and the Administrative Procedures Act, 5 U.S.C. § 553. It also ignored the fundamental requirement of the ISDEAA that contracts can only be declined based on a specific finding or controlling legal authority that one of five statutory grounds for declination is present. 
25 U.S.C. § 450f (a)(2)(A) through (E). The approach taken by DOI conflicts in so many ways with the requirements of law that it suggests that these decisions have been made by federal personnel who have never examined the particular provisions of the ISDEAA. More generally, as the complaint points out, DOI ignores the congressional declaration of the broad policy which it seeks to implement in the ISDEAA: ‘The Congress declares its commitment to the maintenance of the Federal Government's unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services … ‘ The unilateral establishment of policy by DOI that excludes certain tribes from rights accorded by statutes to most tribes seems to exemplify precisely the "Federal domination" of tribes which the ISDEAA was meant to replace. While these violations primarily affect tribes in California, the same approach of implementing self-determination through illegal policy determinations, if allowed to stand, could be extended to other tribes

In an effort to stop the large flow of alcohol from shops in White Clay, NB onto the nearby Pine Ridge Reservation, where alcohol sales are illegal, and alcoholism is a huge problem, along with related Fetal alcohol syndrome, fatal drunken driving accidents and beer-fueled murders, in February, the Oglala Sioux filed a federal lawsuit against the liquor stores in White clay, and Anheuser-Busch along with several other large American brewing companies, accusing them of encouraging the illegal purchase, possession, transport and consumption of alcohol on the reservation (Timothy Williams, “At Tribe’s Door, a Hub of Beer and Heartache,” The New York Times, March 5, 2012, http://www.nytimes.com/2012/03/06/us/next-to-tribe-with-alcohol-ban-a-hub-of-beer.html?_r=1&ref=todayspaper).

The Federal Trade Commission (FTC), in early April 2012, was seeking to shut down online payday lending operations of AMG Services and Tribal Financial Services owned by the Miami Tribe of Oklahoma and Red Cedar Services of the Modoc Tribe of Oklahoma, requesting the U.S. Federal District Court in Nevada to order an immediate injunction on payday loans while the agency pursues its case against the defendants. Complaints against the lending firms to the Better Business Bureau (BBB) generally allege high interest rates from 600 to 1,800%. The lawsuit, the second in seven months, alleges the payday lending services misrepresented and inflated fees, and violated legal lending practices stipulated by the Federal Trade Commission Act. The lawsuit is against a “web of defendants, including AMG Services, Inc., three other Internet-based lending companies, seven related companies, and six individuals,” an FTC press release states. The FTC also charges that, the defendants also violated the Truth in Lending Act by failing to accurately disclose the annual percentage rate and other loan terms; and violated the Electronic Fund Transfer Act by illegally requiring consumers to preauthorize electronic fund transfers from their accounts. The tribes are asserting sovereign immunity against the suits. In previous cases against tribal payday loan operations, the judge has sided with the Indian Nations. On February 13, the District Court from the Colorado Supreme Court ruled in favor of the Miami Tribe of Oklahoma and the Santee Sioux Nation, which operates SFS Inc., that they are exempt from government oversight. Judge Morris B. Hoffman said “The Miami and Santee people are the ones we must trust, as long as Congress lets us trust them, to know what kinds of business relationships are in their best interests. They do not need the guidance of the State of Colorado, through either its law enforcement officials or its courts” (“FTC Seeks to Shut Down Two Oklahoma Tribes’ Online Payday Lending Services,” Indian Country Today, April 9, 2012, http://indiancountrytodaymedianetwork.com/2012/04/09/ftc-to-shut-down-two-oklahoma-tribes-online-payday-lending-services-106573).

The Hopi Nation brought suit in the U.S. Court of Claims, January 19, 2012, complaining damages for high levels of arsenic, sometimes exceeding the safe drinking water standard by four times, in the drinking water on First and Second Mesas, asserting that the provision of safe drinking water was a fundamental provision of the federal government’s establishment of the Hopi reservation. Pursuant to the Tucker Act, the Hopi seek compensation for the cost of providing a new and safe drinking water system (“Hopi Tribe sues feds over tinted water supply,” Navajo Times, February 2, 2012).

Klamath River Keeper and the Karuk Tribe of far northern California have filed a suite against the Montague Water Conservation District in Siskiyou County for its operation of the Dwinell Dam on the Shasta River, claiming that the dam is threatening the imminent extinction of coho salmon on the Shasta River(John Bowman, “Riverkeeper files Dwinell suite, Siskiyou Daily News, May 18, 2012).

The U.S. Justice Department moved, March 13, 2012, to move from the state supreme court to federal court the Oklahoma water rights case concerning whether the Chickasaw and Chicktaw nations or the state have the right to use stream and surface water in three Oklahoma steam systems (“Oklahoma water rights suit moved to federal court,” News From Indian Country, March 2012).

Navajo Nation, after sending a cease and desist letter, in the fall of 2011, to Urban Outfitters, demanding it stop promoting items in its store such as socks, underwear and plastic trinkets as “Navajo, initiated a suite against the firm, in late February 2012, charging Urban Outfitters with trademark infringement and violations of the Indian Arts and Crafts Act (“Navajo Nation Sues Urban Outfitters,” Indian Country Today, February 29, 2012, http://indiancountrytodaymedianetwork.com/2012/02/29/navajo-nation-sues-urban-outfitters-100644).

The Quechan Tribe of the Fort Yuma Indian Reservation of California filed suite against the Interior Department’s Bureau of Land Management, May 14, 2012, to block construction of the Ocotillo Express Wind Facility, an industrial wind factory of 112 450 foot tall turbines, across more than 10,150 acres of public land approximately 90 miles east of San Diego, that is sacred to the Quechan, Kumeyaay and Cocopah Nations, and which the plaintiffs claim Interior Department has acknowledged as an established archaeological site (Gale Courey Toensing, “California Tribes Suing to Halt Construction of Wind Factory on Sacred Land,” Indian Country Today, May 29, 2012, http://indiancountrytodaymedianetwork.com/2012/05/29/california-tribes-are-suing-to-halt-the-construction-of-a-

A dozen Kumeyaat Indian tribes in the San Diego, CA are filed suite in federal court, in May 2012, to get the University of California – san Diego to return to them two 10,000 year old skeletons found in the area, in 1976, for traditional burial. Three professors on campus then filed suit to block the transfer (“U-C professors sue to stop ancient bone transfer,” News From Indian Country, May 2012).

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State and Local Courts

In an Arizona state court case, Shirk v. Lancaster et al., the Maricopa County Superior Court has held that § 102(c) of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. § 450f(c), (hereafter § 450f(c)), provides a waiver of tribal sovereign immunity in tort cases against a tribe and its employees up to the amount of liability coverage not covered by the Federal Tort Claims Act (FTCA). Section 450f(c) makes the Secretary of the Interior responsible, beginning in 1990, for obtaining liability insurance for tribes and tribal organizations carrying out ISDEAA agreements. In obtaining this insurance, the Secretary must take into consideration the extent to which liability is covered by the FTCA. Any insurance policy obtained or provided by the Secretary shall contain a provision that the insurance carrier shall waive any right the insurance carrier may have to raise the sovereign immunity of the tribe as a defense. In other words, the insurance carrier may not hide behind the tribe’s sovereign immunity from suit. The lawsuit, originally filed in the Arizona Superior Court, in October 2007, originated from a motor vehicle accident that occurred on a state highway. Two Gila River Indian Community (GRIC) police officers had noticed a car being driven erratically. The officers activated their emergency lights and pursued the driver who stopped at a red light. When the officers pulled up behind the driver he accelerated through the red light, hitting the plaintiff, a motorcyclist, causing serious injuries. Plaintiff initially sued the two officers alleging that they negligently attempted to effectuate a traffic stop and that this negligence caused the driver to run the red light resulting in the collision with the plaintiff. The Arizona Superior Court dismissed the case due to GRIC’s sovereign immunity. The plaintiff did not appeal but rather filed a case in U.S. District Court seeking relief under the FTCA. The District Court dismissed the case for lack of jurisdiction. The court determined that the officers’ actions were not covered by the FTCA because the incident occurred off-reservation. The plaintiff then returned to the Maricopa County Superior Court, asking that the court set aside its prior judgment because both the plaintiff and the Court had been unaware that § 450f(c) provided an express waiver of the Tribe’s sovereign immunity. Defendants argued that the plaintiff should have known of the existence of § 450f(c) but that in any event, this section does not effectuate a waiver of the Tribe’s sovereign immunity. On June 8, 2011, the Gila River Indian Community filed a friend of the court brief that also opposed setting aside the previous state court judgment on the ground that § 450f(c) does not waive the Tribe’s sovereign immunity. The United States also filed a friend of the court brief to clarify federal law applicable to claims against the U.S. and claims against tribal police officers under the ISDEAA. Contrary to the GRIC’s position, the United States argued that the court had mistakenly dismissed the case because it had been unaware of the waiver of sovereign immunity contained in § 450f(c). The United States argued that Congress provided liability insurance for Indian tribes under a contract or compact for claims which are not covered by the FTCA, and waived sovereign immunity up to the policy limits. It further stated that such a limited waiver of tribal sovereign immunity expressly prohibits the insurance carrier from raising tribal sovereign immunity as a defense, within these limits. The court agreed with the United States’ legal analysis. It held that the Defendants’ activities fell within § 450f(c) and as such that GRIC waived its sovereign immunity to suit in Arizona state court to the amount of GRIC liability coverage for the Defendants’ law enforcement activities off Indian Country not covered by the FTCA. Thus the Plaintiff’s suit against the GRIC officers may now proceed in Arizona state court on the merits. The defendants have appealed the decision to the Arizona Court of Appeals. (“Arizona State Court Holds Indian Self-Determination Act is a Waiver of Tribal Sovereign Immunity,” Hobbs Straus General Memorandum 12-022, February 10, 2012, downloadable at: GM_12-022_Shirk_v._Lancaster.pdf).

The Denver, CO District Court has barred the Colorado Attorney General from further investigating two tribally-owned on-line payday loan businesses, Cash Advance and Preferred Cash Loans, on the grounds of tribal sovereign immunity. The Colorado Attorney General alleged that the tribal businesses, which were not licensed by the State, were subject to and in violation of certain state regulations for payday loan businesses. The Colorado Attorney General began his investigation nearly eight years ago after receiving complaints from consumers. In 2004, he issued cease and desist letters and later subpoenaed the two businesses. In 2005, after he sought contempt citations, two tribal corporations, Miami Nations Enterprises, Inc. (a corporation created by the Miami Tribe of Oklahoma) and SFS, Inc. (a corporation created by the Santee Sioux Nation of Nebraska), responded and moved to dismiss the contempt citations on the grounds that they owned Cash Advance and Preferred Cash Loans and, therefore, the prosecution was barred by sovereign immunity. We reported on earlier developments in this case in our General Memorandum 10-012 of January 22, 2010. Eventually the case wound its way to the Colorado Supreme Court which held that if the businesses were arms of the Tribes then they would be immune from suit, even for activities occurring off tribal lands. The court also held that the State had the burden of proving that the businesses were not immune. Upon remand to the Denver District Court, the court received additional evidence and concluded that Miami Nations Enterprises, Inc. and SFS, Inc. are businesses legitimately created pursuant to tribal law and are owned and operated by the respective Tribes. Therefore, both businesses enjoy tribal sovereign immunity, no matter in what state they operate. The court rejected the State's claim that certain non-Indians were really the ones running the businesses. The Court agreed that if the Tribes were not really the ones running the businesses, then there would be no immunity. And, the State was free to subpoena those non-Indians to determine the truth of the matter. The court emphasized that the type of business that a tribal entity chooses to engage in does not affect its immunity. All that matters is whether the tribal entity is an arm of the tribe. "[T]ribal immunity does not depend in any way on the type of business a tribal entity engages in, with whom, or for what ulterior purpose." For your information, the Federal Trade Commission (FTC) has recently filed complaints against nine payday loan companies affiliated with tribes (not including the two described above), in the federal district court in South Dakota, alleging violations of the FTC Act, the Electronic Funds Transfer Act, and FTC regulations. Also, the Colorado Attorney General has asked the Obama Administration to look into payday loan companies affiliated with tribal governments. The Director of the Consumer Financial Protection Bureau told the media that "If there is legitimately a tribal entity that can oust a state of effective jurisdiction to enforce laws against that entity, it does not oust the federal government" (“Colorado Supreme Court Holds that Two Tribal Payday Loan Businesses Have Tribal Immunity,” Hobbs Straus General Memorandum 12-037, March 9, 2012, downloadable at: GM_12-037_PayDay Loan.pdf).

The Washington Supreme Court ruled, in February, that state wildlife authorities at the Columbia River Maryhill Treaty Fishing Access Site, in 2008, had no authority to cite a Yakama Nation fisherman for catching undersized fish (“Washington court upholds fishing rights,” News From Indian Country, February 2012).

The Washington Supreme Court, in late 2011, upheld a Pierce County, WA judge’s ruling that the state has the criminal jurisdiction over members of the Quinault Indian Nation who sell cigarettes outside reservation boundaries without paying a required tax (Rachel La Corte, “Court: WA has jurisdiction in cigarette case,” News From Indian Country, December 2011).

New Mexico judge James T. Hall ruled, January 3, 2012, that a redistricting plan developed by New Mexico tribes and Pueblos for Northwest areas of the state for the New Mexico House and Senate would become part of the New Mexico legislative redistricting plan. The court battle began after New Mexico Governor Susana Martinez, a Republican, vetoed the redistricting plan passed by the Democratic legislature, including the tribally developed portion of the plan (Diane J. Schmidt, “Tribes, Pueblos work together on redistricting plan” Navajo Times, January 26, 2012).

A law firm based in Yakima, Washington, filed a legal complaint, February 2012, in Montana’s Eighth Judicial District Court on behalf of a Northern Cheyenne tribal member who is seeking justice for years of sexual abuse she suffered at the hands of a priest from the mid-1950s to the early 1960s at St. Labre Indian School in Ashland, MT (Heather Steinberger, “Sexual Abuse Complaint Filed in Montana,” Indian Country Today, January 23, 2012, http://indiancountrytodaymedianetwork.com/2012/01/23/sexual-abuse-complaint-filed-in-montana-73205).

New York State Supreme Court Justice David Damarest ruled that the state had no legal authority (in January 2012) to seize and hold a shipment of untaxed cigarettes that were manufactured on Indian land, by Ohserase Manufacturing, LLC, a federally-licensed manufacturer that is organized under the laws of the St. Regis Mohawk Tribe and is owned by St. Regis citizens, and being sold to an out-of-state Indian reservation (HCI Distribution, Inc., a company owned by the Winnebago Tribe of Nebraska) , and ordered the immediate return by the New York State Police of the seized tobacco products, worth more than $2 million (Gale Courey Toensing, “Judge: State has ‘No legal Authority’ to Seize Untaxed Indian Cigarettes in Out-of-State Sales,” Indian Country Today, June 22, 2012, http://indiancountrytodaymedianetwork.com/2012/06/22/judge-state-has-no-legal-authority-to-seize-untaxed-indian-cigarettes-in-out-of-state-sales-119936).

Ten Native people filed a lawsuit against the Catholic Church in Montana claiming that they were sexually abused as children by priests and nuns in central and eastern Montana. This is the third such lawsuit field in Montana (Matt Voltz, “New lawsuit filed against Catholic Church in Montana,” News From Indian Country, February 2012).

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Tribal Courts

At the Little Shell Tribe of Chippewa Indians, in Montana, a special three judge panel of tribal law experts, brought together by the Native American Rights Fund and mediator and tribal elder of the Stockbridge-Munsee Mohigans of Wisconsin, David Rausch, on request from the Little Schell to help them settle an intractable dispute as to who was the legal government of the tribe, decided, in January 2012, that John Gilbert was the rightful president of the tribe, the 2008 tribal election was voided as invalid because it was not held in accordance with the nation’s constitution, the disenrollment of tribal members – including candidates in the 2008 election – by the council that won that election was voided, and the 2009 “referendum” election and subsequent 2010 election that chose Gilbert as president were valid. Gilbert stated that the Little Schsll needed to fill the gaps in their constitution so they could have an independent judicial branch to decide these kinds of issues (Keith Ridler, “Judges return Montana Little Shell Chippewa to single ruling entity,” News From Indian Country, January, 2012).

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Tribal Governments and State and Local Governments

The Washington state legislature passed HB 2233, in March, allowing tribes to dismantle state jurisdiction over American Indian tribes, under Washington’s assumed jurisdiction in 1963 (under U.S. Public Law 280 – Washington laws: Chapter 37.12 RCW, see: http://apps.leg.wa.gov/rcw/default.aspx?cite=37.12&full=true) in the areas of juvenile delinquency, truancy, mental illness and adoption proceedings. With this bill a tribe can ask the state to return jurisdiction over criminal and civil matters to the tribes (“Washington State Legislature Passes Bill Allowing Tribes to Initiate Public Law 280 Retrocession,” Hobbs Straus General Memorandum 12-040, March 16, 2012, downloadable at: GM_12-40_Washington PL 280.pdf; and “Washington State Bill Could Dismantle State Jurisdiction Over American Indian Tribes,” Indian Country Today, February 29, 2012, http://indiancountrytodaymedianetwork.com/2012/02/29/washington-state-bill-could-dismantle-state-jurisdiction-over-american-indian-tribes-100606).

The Oneida Indian Nation and the seven other New York state tribes, in the midst of a tobacco tax fight with the state, have switched from selling major brand cigarettes to manufacturing their own cigarettes under their own brand names, such as Niagara’s and Bishop, for considerably lower prices than major brand cigarettes. The Oneida have been making these sales at a dozen tribal convenience stores midway between Syracuse and Utica, NY, and the nation has been grossing several million dollars a year on these sales. The tribes argue that because they are sovereign nations, the cigarettes they make are exempt from the state’s $4.35-a-pack excise tax, the highest in the United States. But the tobacco industry and owners of other convenience stores say tribal cigarette manufacturing is just an elaborate form of tax evasion. The administration of Gov. Andrew M. Cuomo, which pursued the legal fight to tax name-brand cigarettes sold on reservations, asserts that New York has the right to tax Indian-made cigarettes sold to non-Indians, but, as of February 2012, had done little to test or enforce that claim. Some tribes fear that the state could try to intercept trucks ferrying their cigarettes on state roads. The Cuomo administration had not opted not to do that, as of February, but the State Police and other law enforcement agencies have seized more than 60,000 cartons of Indian-made cigarettes discovered in trucks pulled over for traffic violations over the proceeding eight months. A few Indian entrepreneurs have long manufactured their own brands, such as Smokin Joes, produced on the Tuscarora reservation, near Niagara Falls, NY, since 1994. However, the practice is now spreading rapidly. Though the tribes do not release sales figures for their brands, industry experts believe there are now at least a dozen Indian cigarette manufacturers operating across upstate New York, more than in the other 49 states put together. A month before Governor Cuomo took office, the Cayuga Nation paid $135,000 for a former scrap metal plant in the Finger Lakes region, and began producing Cayuga-brand cigarettes, in 2011, which it offers at two Cayuga-owned stores and also sells to other Indian-owned retailers. The St. Regis Mohawk reservation in the North Country and at the Seneca Nation of Indians in western New York are also manufacturing cigarettes, with four cigarette manufacturing enterprises on Seneca land, and around the tribe’s Cattaraugus territory, near Lake Erie. The Onondaga Nation, near Syracuse was considering entering the cigarette manufacturing business, as of February (Thomas Kaplan,” In Tax Fight, Tribes Make, and Sell, Cigarettes,” The New York Times, February 22, 2012, http://www.nytimes.com/2012/02/23/nyregion/indian-tribes-make-own-cigarettes-to-avoid-ny-tax.html).

The New York legislature’s attempt to increase state income by $130 million annually by forcing Indian nations to collect taxes on cigarettes sold on reservations has produced far less revenue than anticipated, as the state’s Indian nations largely have switched from selling name brand tobacco to producing and selling their own cigarettes. Meanwhile, cigarette wholesalers in the tribal area report sales are down between 20% and 30% among legitimate cigarette sellers, leading to reduced employment in the industry (Gale Courey Toensing, “$130m Expected From Indian Cigarette Taxes Stubbed Out: Awkward!,” Indian Country Today, January 13, 2012, http://indiancountrytodaymedianetwork.com/2012/01/13/130m-expected-from-indian-cigarette-taxes-stubbed-out-awkward-72350).

The Seneca Nation requested, in late May, that the federal government to re-allocate $28.5 million from New York State to the Nation to repair more than eleven miles of an interstate highway that runs through Seneca land after state officials said they will no longer comply with the Nation’s Tribal Employment Rights Ordinance (TERO) – either on the current project or other projects going forward, despite 19 years of successful collaboration. “We are concerned that the NYS DOT’s intransigence will result in delays in getting this long-overdue project underway, to the ultimate detriment of the traveling public.” The Nation offered to take over the entire project, not just the section running through the Nation’s Alleghany Territory, which comprises 95 percent of the project, under the proactive Tribal Transportation Program and a productive [Seneca] Construction Management Corporation (SCMC) with a proven record of successful projects. The portion of road that needs rebuilding totals around 46 lane miles of highway, ramps and medians, in addition to access to the Seneca Alleghany casino, and it also includes two exits for the very-popular Allegany State Park. Several drainage upgrades and bridge rehabilitations are also included. Under an original 1976 agreement between New York State and the Nation that permitted the section of Interstate 86 to cross Seneca territory, the state is obligated to maintain territory roads, but the state has not met the terms of the agreement for 35 years, leaving the road in a deteriorated condition, Seneca officials said. Because the federal government provides funding for the project, Seneca sought its intervention on this issue Gale Courey Toensing, “Seneca Asks Feds for $28M+ for Highway Repairs After NY Reneges on TERO Compliance,” Indian Country Today, May 27, 2012, http://indiancountrytodaymedianetwork.com/2012/05/27/seneca-asks-feds-for-28m-for-highway-repairs-after-ny-reneges-on-tero-compliance-115112).

The United States Department of Agriculture, for the first time in California, was providing funds, in January, to meet the differing conservation needs of American Indian tribes, with the department’s Natural Resources Conservation Service (NCRS) making $1 million available to tribal farmers and ranchers for tradition-based tribal conservation practices. For example, the Hoopa Tribe in Humboldt County, CA undertakes agriculture on a smaller scale, and is more sustainable than the conventional agriculture going on in Humboldt County, including more acorn management, for food and native plants they want to rehabilitate for basketry fiber that for the first time would be addressed by the tribal-specific conservation practices, which encompass forestry management practices aimed at eliminating excess fuels and managing the woodlands (Don Baumgart, “Tribal-Specific Conservation Practices Get USDA Funding in California,” Indian Country Today, January 5, 2012, http://indiancountrytodaymedianetwork.com/2012/01/05/tribal-specific-conservation-practices-get-usda-funding-in-california-70507).

The governor of California signed a casino contract, in March 2012, with the Federated Indians of Graton Rancheria for a casino on 254 acres near Rohnert Park in Sonoma County, that can offer card games and up to 3000 slot machines. Up to 15% of the casinos net winnings would go toward gambling mitigation and regulation. The governor’s office said, “the compact includes provisions to protect employees and patrons as well as the environment during construction and operation of gaming facilities.” The compact still had to be approved by the legislature. The federal government had given approval in 2010, pending state approval (California Governor signs casino compact with tribe,” News From Indian Country, April 2012). The compact was ratified by the California legislature, May 10, needing only approval from the U.S. Department of the Interior to go into effect (“California State Assembly Approves Federated Indians of Graton Rancheria’s Controversial Casino Compact,” Indian Country Today, May 14, 2012, http://indiancountrytodaymedianetwork.com/2012/05/14/california-state-assembly-approves-federated-indians-of-graton-rancheria’s-controversial-casino-compact-112881).

A bill in the Nebraska legislature, aimed at restricting alcohol sales in White Clay, NB just outside the dry Pine Ridge Reservation, that would establish “alcohol impact zones” in areas prone to alcohol related crime, had failed to get out of committee, an appeared dead in mid April. Committee members had received large campaign donations from alcoholic beverage firms (Timothy Williams, “Indian Beer Bill Stalls, Industry Money Flows” The New York Times, April 12, 2012).

The Maine state legislature opened in 2012 with a representative of the Houlton Band of Maliseets for the first time representing the Nation as a non-voting representative, following a 2010 legislative enactment. Two other of the state’s four tribes, the Penobscots and the Passamaquoddies have long been so represented (Glenn Adams, “Maine lawmakers seat Maliseet delegate,” News From Indian Country, January 2012).

The Arizona state legislature passed a watered down version of Senate Bill 1082, in late February 2012, amending state laws dealing with evaluation and treatment of persons incapacitated by alcohol and substance abuse. Before amendment, the bill would have allowed local governments greater authority to pass ordinances related to alcohol problems in their area, including how alcohol would be sold – which is the law in New Mexico. The bill that passed has uniform regulations state wide, and permits police officers to transport an intoxicated person to the nearest approved treatment center, which can hold the person for up to 48 hours (Bill Donovan, “Ariz. Senate passes watered-down alcohol bill,” The Navajo Times, March 1, 2012).

Voting-rights nonprofit Four Directions was told, March 7, 2012, by the Tripp County, SD Commission it would arrange for full enfranchisement, including early voting, for adjoining Todd County, a non-tribal government whose land base is contiguous with the Rosebud Indian Reservation, with the Tripp County auditor, who handles Todd County elections on a freelance basis, offering voting there for the same number of days and hours other South Dakotans enjoy, starting with this year’s primary. Previously, early voting has not been consistently available in South Dakota’s Native American areas. When it has been, it has increased election participation dramatically—causing some observers to speculate that early voting’s popularity is the reason why the state and some counties have sought to limit Native American access to it, and thus to the political process (Stephanie Woodard, “Ballot-Box Breakthrough in the Badlands,” March 15, 2012, http://indiancountrytodaymedianetwork.com/2012/03/15/ballot-box-breakthrough-in-the-badlands-103079).

The Navajo Nation and New Mexico State officials came to an agreement, January 18, 2012, to increase police patrols on a dangerous section of U.S. 550 between Cuba and Bloomfield, NM by using the Dzith-Na—Dith-le police substation, made available by Navajo Nation, which is paying for its utilities, for joint staffing by Navajo Nation Police, San Juan County Police and New Mexico State Police (“Tribe state agreement to increase patrols on deadly highway,” Navajo Times, January 26, 2012.

The Crow Tribe of Montana signed a water compact with the state and the federal government, April 27, 2012, aimed at solving major water shortages on the Crow reservation. Under the agreement, the Crow will gain up to 500,000 acre-feet of water from the Bighorn River, 300,000 acre-feet from Bighorn Lake, and the federal government has pledged to spend $461 million on irrigation improvement for agriculture, industrial and municipal water system upgrades, and other projects (“Crow chairman signs water compact with U.S., Montana,” News From Indian Country, April 2012).

The Southern Ute Tribe, the Town of Ignacio, Co, La Plata County, Co, and the State of Colorado Department of Transportation completed a six year effort, January 25, 2012, developing an Ignacio Area Corridor Access Plan, proposing traffic improvements based on current trends and a 20 year forecast (Ace Stryker, Ignacio’s future road map completed,” Southern Ute Drum, January 27, 2012).

The U.S. Department of the Interior, in April, told the City of Duluth, MN, that its requirement in a lease forcing the Fond Duluth Band’s casino to pay the city a cut of its video gambling is illegal, and the city had 10 days to appeal, or Interior would void the requirement. The Fond Duluth have been protesting the payment and stopped paying it in 2009 (Interior threatens to cancel Duluth casino lease,” News From Indian Country, April 2012).

Mayor Mike McGinn of Seattle, WA responded to a December 2011 U.S. Justice Department report criticizing the city’s police department concerning several high profile incidents involving minorities, including the police shooting of Indian woodcarver John T, Williams, by announcing a series of reforms in the Seattle police department (“Federal Criticism leads to Seattle police reforms,” News From Indian Country, April 2012).

Nine Native American students living in the Furnace Creek area of Death Valley, as of late February, might no longer be able to get to school, as a result of cash strapped California cutting funding for school transportation for the rest of this fiscal year (“No More Buses for Rural Native American Students,” Indian Country Today, January 20, 2012, http://indiancountrytodaymedianetwork.com/2012/01/20/no-more-buses-for-rural-native-american-students-73446).

The Milan area school district in Michigan decided, in April 2012, that the image of a spear with a feather will no longer be featured on logos, with a resolution calling for the elimination of all American Indian imagery from the Michigan school district by August 30, 2015. Yet the district will retain the name “Big Reds” as well as the image of an Indian chief on the floor of the middle school gymnasium (“Michigan School Board Develops New Logo Without American Indian Imagery, Yet Keeps Name Milan ‘Big Reds’,” Indian Country Today, April 16, 2012, http://indiancountrytodaymedianetwork.com/2012/04/16/michigan-school-board-develops-new-logo-without-american-indian-imagery-yet-keeps-name-milan-big-reds-108478).

The Sanford School Committee in Maine, as of the end of April, was expected to vote to eliminate the name “Redskins” as the school’s mascot, following a public hearing on May 7, 2012. Sanford is the last school district in the state to use the offensive label (Gale Courey Toensing, “Last “Redskins” Mascot in Maine School May Be Dropped, Indian Country Today, April 24, 2012, http://indiancountrytodaymedianetwork.com/2012/04/24/last-“redskins”-mascot-in-maine-school-may-be-dropped-109725).

As the state of Oregon decides how to handle the proposal to phase out all American Indian-themed school mascots over the next five years, and the Oregon Board of Education could vote as soon as May 2012 to do away with American Indian mascots state-wide, the Willamette Valley farm town of Lebanon, in April, was considering a resolution to reject the ban and keep its Mascot the Worriers, with its American Indian images (“As State of Oregon Considers Ban On American Indian Mascots, One School District Digs in for Fight,” Indian Country Today, April 12, 2012, http://indiancountrytodaymedianetwork.com/2012/04/12/as-state-of-oregon-considers-ban-on-american-indian-mascots-one-school-district-digs-in-for-fight-107817).

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Tribal Developments

The U.S. Census Bureau issued a report, in April, showing that of all measured groups, American Indian and Alaska Native families have the greatest percentage of unmarried partner households, 10.9%. The report indicates that there were 939,707 American Indian and Alaska Native households in the United States in 2010, with the following breakdown: 40.1% were husband-wife households; 21.4% had a female householder, with no spouse present; 8.9% percent had a male householder, with no spouse present; 29.6% were non-family households; 10.9% were unmarried partner households, and of the 10.9%, 10% reported being of the opposite sex and .9% reported being same-sex. Additional data is in the chart below (Rob Capriccioso, “Census: Indians Have Most Unmarried Partner Households,” Indian Country Today, April 26, 2012, http://indiancountrytodaymedianetwork.com/2012/04/26/census-indians-have-most-unmarried-partner-households-110184):

The Census also found that 78% of people identifying as Native live off reservation, but many in the vicinity of reservations. The number of people identifying as Native American and one or more other groups (identified as being multiracial) increased from 2000 to 2010 from 1.6 to almost 2.3 million, as almost half of Native Americans identified as being multiracial, though the percentage varied from Indian Nation to Indian Nation. The majority of Native Americans live in Arizona, California, Florida, Michigan, New Mexico, New York, North Carolina, Oklahoma, Texas and Washington (Felicia Fonseca, “Census releases data on American Indian population,” News From Indian Country, February 2012).

Matt Gilbert, “The Impacts of Suicide in Native Alaska,” Cultural Survival, April 18, 2012, http://www.culturalsurvival.org/news/impacts-suicide-native-alaska, reports that in Alaska suicide “has been a grave and growing concerning for decades. Native leaders raised it as an emergency during the 2010 Alaska Federation of Natives Convention.” Mike Williams, a widely-known Yupik and Alaska Native Leader who has worked on the issue of Native Teen Suicide for a couple of decades, stated, “In the 50s and 60s, suicide was unheard of in our [Yupik] villages.” By the late 1970s, there were a number of young people committing suicides in Alakanuk. Williams says, “The epidemic spread from there.” He points out that for thousands of years the Yupik communities were self-supportive. The new way of life, however, brought public assistance, cash-economy, schools, and electricity. Following contact, Yupik people were nearly wiped out by diseases like tuberculosis and the devastation of the diseases left whole populations orphaned then, languages were taken away by the schools. Then, alcohol was introduced along with the continuing effects of government assimilation, leaving a decimated people. “We had good teeth, no diabetes; we were a very healthy people.” Williams says. “We went from sovereignty and self-sufficiency to dependency. I spent 20 years talking to Elders about why the young people are killing themselves. They said the rapid change was the cause.” However, Williams believes the lost of language and culture, hunting and fishing rights, new religion, and education policies were the more important causes, saying “We’re treated like criminals for trying to survive...And Alaska Native Claims Settlement Act [ANCSA] was a stake through the heart.” “Williams has held talking circles as well as individual sessions, and has pinpointed the problem as a lack of self-esteem. ‘Our young people don’t feel good about themselves. They’re sad.’ After spending a couple of decades speaking with Elders about suicide, they concluded that the best solution was to keep the language, identity, and land. ‘Communities shouldn’t keep this [suicide] to themselves, but bring it out in the open with all the community. We can beat this thing! We as Alaska Natives can deal with it!’” Further north, Athabascan Elder Howard Luke said Suicide has been a problem among the interior villages as well. Howard says he cured three people, “I cured three people. When I was counseling them right here [Gallee'ya Camp]. I never talk about liquor or nothing, I talk about good things. I make them carve on something or cut wood and their mind will change and they will feel good about themselves: like, ‘I did it!’” He says we have to have “Circle Talk” and Howard finished by saying the young people commit suicide, “because they carry something inside them and it explode. Nobody is perfect, even preacher is not perfect. I’m a strong believer in traditional ways.” Tim Argetsinger, a young Inupiaq working in Kotzebue for the summer, sys of suicide, “It has to do with the education system. I read a dissertation by Lisa Wexler. Based on conversations with youth in the Northwest, institutions play a large role in forming what we thought about ourselves.”, “The policy implication in Wexler’s mind is that the school system needs to do more work in training youth to be literate in their ‘own colonization.’”

The 2012 County Health Rankings, the annual list of the most and least healthy 3,000 U.S. counties, compiled by the University of Wisconsin Population Health Institute and the Robert Wood Johnson Foundation, ranked Sioux County, North Dakota, home of the Standing Rock Sioux Nation, the least healthy place in the United States for the second consecutive year. The estimated 4,153 people (2010 Census) who live within the 1 million acres of Sioux County, straddling North and South Dakota, have the highest rate of premature deaths in the U.S. Sioux County residents lose almost 24 years of potential life per 100 residents, many of which are considered to be preventable. Eight of the 10 counties ranked the least healthy, have large Native American populations, and are located in the Dakotas, Alaska and Montana. High rates of premature death are generally tied to high poverty rates, poor education systems and low levels of economic development, according Patrick Remington, a professor of population health sciences at the University of Wisconsin in Madison, who compiled the data (”Sioux County Ranked Least Healthy Place in U.S.,” Indian Country Today, April 3, 2012, http://indiancountrytodaymedianetwork.com/2012/04/03/sioux-county-ranked-least-healthy-place-in-u-s-106292).

While the medically underserved American Indian/Alaska Native population has grown by 27% since 2000, to exceed five million, the number of Native people applying to medical school and earning medical degrees is shrinking. Statistics released by the Association of American Medical Colleges (AAMC) show that in 2004 and 2005, 465 American Indian and Alaskan Natives applied for medical school in each of those two years, but only 379 applied in 2011. Moreover, the numbers of American Indian and Alaskan Natives who are first-year medical students is even smaller. Dropping from 202 in 2004, to 157 in 2011, up from the low of 153 in 2009. These statistics are particularly troublesome for the leadership of the Association of American Indian Physicians (AAIP), whose nationwide membership is slightly more than 300. Dr. Donna Galbreath, an Athna Athabaskan and the president of AAIP, says the problem starts with the small amount of Native people who graduate from both high school and college. A second issue is that Native youth are not exposed to Native physicians in their communities, thus, “A lot of Indian people don’t think about going into medicine as a career. That is something that the AAIP has been working on for a number of years, is trying to expose more students to medical careers. If you don’t think about it or if it’s really foreign, it’s not something you’re going to want to do.” From an organizational standpoint, the current goals of AAIP are to encourage tribal schools—from elementary to the tribal college level—to use AAIP physicians as a resource for career days. In this way, Native students can hear the stories of physicians who have reached their goals and who may have come from backgrounds similar to theirs. Other programs of AAIP include pre-admission workshops for potential medical school students and mentoring programs to Native medical school students and residents (Brian Daffron, “Concern Growing Over Shortage of Native Physicians,” Indian Country Today, December 7, 2011, http://indiancountrytodaymedianetwork.com/2011/12/07/concern-growing-over-shortage-of-native-physicians-66230).

Gang activity continues to be a huge problem in both reservation and urban communities. Native Mob, that began in Minneapolis during the early 1990s but has since grown into a regional gang with an estimated 200 members who engage in drug trafficking, assault, robbery and murder. Most members are recruited from communities with large Native American populations. The Native Mob allegedly distributes illegal drugs, including crack, ecstasy and heroin, and protects its enterprise by committing acts of violence against competitors, victims and witnesses. It is also charged with hindering or obstructing officials from identifying or apprehending wanted individuals and allegedly providing monetary support to members including those who are in prison. For those living in close proximity to Native Mob and its activities, life can be clouded by terror and pain, that many families have experienced, and fear of gang retribution and family safety has kept many community members silent. Earlier in 2012, a federal indictment charging 24 alleged members of the Native Mob with conspiracy to participate in racketeering and other crimes. That is taking some gang members off the street, and at least temporarily lowering some of the gang’s activity. But community leaders and law enforcement officials doubt the indictment will put an end to gang activity, as the gang culture is too woven into the fabric of many communities for a few arrests to disband gangs altogether. The indictment depicts the Native Mob as a highly organized and extremely violent group with a powerful influence among its members in prison and on the streets. According to the document, one defendant in prison wrote a letter to another Native Mob member about the “need to hold people accountable, foes or our own. Discipline and [promoting] fear is the quickest way to progress in our case.” Retribution for informing on the Native Mob or disobeying Native Mob law was swift and brutal. Information in the indictment describes how one of the accused in Cass Lake, on the Leech Lake Reservation, about 200 miles from Minneapolis, allegedly tried to kill someone for cooperating with law enforcement. The victim was shot three times as he held his 5-year-old daughter in his arms. There are also allegations of numerous beatings with baseball bats and guns, as well as shootings against members of rival gangs and potential witnesses, and drive-by shootings in several cities. In one example of retaliation, one of the accused threw a cup of boiling water into a woman’s face. There are also several allegations of murder and assault of other Native Mob members who failed to obey gang rules. One Native Mob member threatened to kill the Minneapolis police officers who arrested him. The indictment also describes the Native Mob’s ability to communicate about witnesses and police actions both inside and outside of prison. Indeed, officials were so concerned about tipping off the Native Mob as the indictment was handed down that they locked down the state’s prisons for 25 hours during the sweep of arrests. Native Mob makes concerted efforts to recruit young people and juveniles. And all too often, gang violence involves those same young people. In a notorious case on the Mille Lacs reservation in 2010, 19-year-old William Nickaboine was beaten to death by members of the Native Mob. Members of a community search party, according to City Pages, a Minneapolis-based weekly newspaper, found his decaying body (Mary Annette Pember, “Native Mob: A Scourge in Minnesota Plagues Indian Communities,” Indian Country Today, March 12, 2012, http://indiancountrytodaymedianetwork.com/2012/03/12/native-mob-a-scourge-in-minnesota-plagues-indian-communities-102443).

The Obama administration, which has made reducing crime a priority in its attempt to improve the quality of life at dozens of Indian reservations plagued by violence, recently ended a two-year crime-fighting initiative at Wind River and three other reservations deemed to be among the country’s most dangerous. Nicknamed “the surge,” it was modeled after the military’s Iraq war strategy, circa 2007, which helped change the course of the conflict. Hundreds of officers from the National Park Service and other federal agencies swarmed the reservations, and crime was reduced at three of the four reservations — including a 68% decline at Mescalero Apache in New Mexico, officials said. Wind River [shared by the Northern Arapaho and Eastern Shoshone Tribes], as has been true for much of its turbulent history, bucked the trend: violent crime there increased by 7% during the surge, according to the Department of Justice.” “During the initiative, which increased the number of officers on the [Wyoming] reservation to 37 from 6, crimes included the murder of a 13-year-old girl who had been missing for four days and whose partly clothed body was found under a tree, and the killing of a 25-year-old man, who the police say had been beaten with a child’s car seat and a dumbbell by two friends after a sexual encounter.” “Crime may be Wind River’s most pressing problem, but it has plenty of company. Life, even by the grim standards of the typical American Indian reservation, is as bleak and punishing as that of any developing country. On average, residents can expect to live 49 years, 20 years fewer than in Iraq. Unemployment, estimated to be higher than 80%, is on a par with Zimbabwe’s, and is approaching the proportionate inverse of Wyoming’s 6% jobless rate. The reservation’s high school dropout rate of 40% is more than twice the state average. Teenagers and young adults are twice as likely to kill themselves as their peers elsewhere in Wyoming. Child abuse, teenage pregnancy, sexual assault and domestic violence are endemic, and alcoholism and drug abuse are so common that residents say positive urinalysis results on drug tests are what bar many from working at the state’s booming oil fields. On one section of the reservation, people must boil drinking water because chemicals, possibly the result of the oil and natural gas drilling method known as hydraulic fracturing, have contaminated the water supply. And fearing that the chemicals might explode in a home, the Environmental Protection Agency ordered residents to run fans and otherwise ensure ventilation while bathing or washing clothes.” “Why the other reservations were able to curb crime while Wind River was not has been a matter of grave speculation. Some blame Wind River’s geographic isolation and a general apathy on the reservation, while others point to the numerous troubled children being raised by grandparents unable to keep track of them.” However crime is down from what it was some years ago at Wind River, according to Michael Shockley, a Wind River police officer who says that even with 10 fewer officers than it had during the surge, the Police Department responds to all calls, not just the most serious ones. Crime, he said, has appeared to ebb, especially when compared with what he referred to as the bad old days, when on a single night about a year ago, he drove a total of 400 miles, logged 42 calls and arrested 19 people. “The Bureau of Indian Affairs, which oversees the Wind River Police Department, says the rise in violent crime was a result of people reporting offenses they might have ignored before — which suggests that the reservation’s crime rate is even higher than previously thought. In fact, the bureau says, crime has fallen since the surge ended in October, although it did not provide statistics” (Timothy Williams, “Brutal Crimes Grip an Indian Reservation,” The New York Times, February 2, 2012, http://www.nytimes.com/2012/02/03/us/wind-river-indian-reservation-where-brutality-is-banal.html reports),

Terri Hansen, “Sex Trafficking Rampant in Indian Country; Pimps on Prowl for Native Girls,” Indian Country Today, January 17, 2012, http://indiancountrytodaymedianetwork.com/2012/01/17/sex-trafficking-rampant-in-indian-country-pimps-on-prowl-for-native-girls-and-women-72621, reports that sexual trafficking is wide spread across Indian country, though it is largely unreported. “Prostitution becomes a trafficking crime when the victim is a minor, or at any age if controlled by force, fraud or coercion.” “The life of a trafficking victim typically involves starvation, confinement, beatings, gang rape and forced drug use. They must also contend with addiction, broken bones, concussions, burns, vaginal and anal tears, sexually transmitted diseases (STDs), sterility, miscarriages, forced abortions and even contagious diseases like tuberculosis, hepatitis, malaria and pneumonia. Psychological damage includes mind-body separation, disassociated ego states, shame, grief, fear, distrust, hatred of men, self-hatred, suicide and suicidal thoughts, post-traumatic stress disorder, acute anxiety, depression, insomnia, physical hyperalertness and self-loathing. Some victims suffer from traumatic bonding, a form of coercive control in which the perpetrator instills fear as well as gratitude for being allowed to live. Intertwined with sexual trafficking are sexual abuse, drug and alcohol abuse and poverty. In a law review, Sarah Deer, a Muscogee (Creek) Nation citizen and professor at the William Mitchell School of Law in St. Paul, Minnesota wrote that many women and girls are coerced into sex work—on and off reservations—by drug dealers to pay for their drugs. This type of sexual violence targets Native women and girls due to the culture of silence in every community, the widespread poverty, and the legacy of appalling sexual violence committed by white men against Native women.” “The U.S. government acknowledges that the rates of sexual abuse and rape committed against Native women and girls are higher than those for the general population. One of the few opportunities a trafficked woman has for escape is when her pimp allows her to enter a medical facility for treatment of injuries, pregnancy or STDs. Hospitals and clinics can intervene—as they do for victims of domestic violence—though many lack the proper training to do so.” At the Senate Committee on Indian Affairs oversight hearing, July 2011, “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers and Daughters,” Senator Daniel Akaka (D-HI) noted that women were finally starting to talk about the traffickers who prey on them in urban and reservation communities. Deer testified that the Tribal Law and Order Act of 2010 “failed to specifically address prostitution or sex trafficking as forms of violence against women.” Senator Byron Dorgan, who chaired the Senate Committee on Indian Affairs at the time, stated the bill was a response to the “crisis” in law enforcement on many Indian reservations, where the rates for most violent crimes far exceed the national average. Portland, OR, which has the ninth-largest Native American population in the U.S. and is close to many reservations, suffers a particularly large Native sex trafficking problem, beginning with teenage girls, sometimes supplied by former drug gangs now into child sex trafficking. “Portland is fertile ground for pilot projects that help law enforcement break free of a pattern of arresting underage prostituted women and prosecuting them as criminals in order to go after the pimp. Much of the impetus for that change came from the Oregon Human Trafficking Task Force (OHTTF) established in 2005 with funding from the U.S. Department of Health and Human Services. Portland is finally starting to treat victims like victims instead of the bad guys, but the system has to evolve further and faster to catch up to these kids, says Keith Bickford, OHTTF director and Multnomah County deputy sheriff. “The juvenile system was so far behind. Portland needed a lot of help, but it isn’t the only city to need that. The police still need arrest powers to get some of these girls and boys off the streets,” Bickford says. “If all the signs lead to sexual trafficking, [those arrested] go directly into dependency and are given help.” A huge problem in Portland, and nationally, says Bickford, has been a lack of safe housing to shelter victims from their pimp while they wend through the legal and personal-recovery process.“ The National Runaway Switchboard (NRS) reports that one out of every three teens who are either kicked out of their homes or run away are lured into prostitution within 48 hours of being on the street. NRS says pimps parole the streets seeking youngsters lugging an extra-heavy backpack, and recruit children as young as 11 or 12 into prostitution. “Survival sex” is traded for a place to stay. Most prostitutes begin before they’re 18. “The invisibility of victims is another problem, says Tawna Sanchez, family services director at Portland’s Native American Youth and Family Center. ‘Native American families don’t like to admit their daughter is in the sex trade, and there are so many reasons girls and women don’t come forward.’ When Sundvall-Williams gives public talks, she says that Native women “thank me for being brave enough to talk about it because most women suffer in silence due to their fear of judgment from others. It’s a really big problem in the community here.”

The HIV infection rate has been rising on the Navajo reservation, while it is falling, or at least holding steady, in most of the rest of the U.S. Part of the reason for the rise is poor education. Some tribal members do not learn about the diseases until they’re diagnosed. Explaining the disease requires sensitivity and careful wording, because in traditional Navajo culture, to speak of death is to invite it. Other obstacles include access to health and social services, which is often restricted by distance to facilities, poverty and unemployment, and inadequate health-care funding, according to a public health report by the Association of Schools of Public Health that assessed risk factors for the progression of HIV among American Indians. But early diagnosis is vital so treatment can begin to help prevent HIV from advancing to AIDS. The Indian Medical Center in Gallup, New Mexico, is working to reduce HIV transmissions among Navajos and offers culturally competent treatment and care, with modern medicine meetings traditional Navajo healing. Medicine men visit hospital rooms to offer ancient prayers, blessings and healing herbs for drinking. Dual treatment is encouraged by the Indian Health Service so patients feel more optimistic about their treatment and continue receiving care (“Navajo Nation Deals With Rise in HIV Infection Rates,” Indian Country Today, January 6, 2012, http://indiancountrytodaymedianetwork.com/2012/01/06/navajo-nation-deals-with-rise-in-hiv-infection-rates-70811).

Disenrollment of tribal members, most often related to money from casinos, that has devastated numerous tribes, especially in California, has continued, with a particularly ugly intratribal battle breaking into violence for the Chukchansi Indian Tribe of Coarsegold, CA, in February, 2012. As in the case of many of the tribes suffering disenrollment battles, the Chukcansi have no independent tribal court to settle disputes and determine rights authoritatively, and peaceably, leading to traumatic struggles. The Chckcansi have been engaged in an internal struggle over who is the rightful government of the nation, with competing group each claiming to be the lawful Chair and Council, but with the BIA and federal and state courts saying that this is an internal tribal matter, there has been no official process for settling the issue. The struggle became violent, February 28, with about 20 tribal members from the two factions engaged in a mêlée in which at least two people were injured. At that point, the county sheriff, who said he had no authority to settle property and tribal governance disputes, stepped in to restore order, detaining two people, and clearing the tribal offices of both factions – but leaving the larger issues unresolved (Ian Lovett “Power Struggle Over Indian Tribe Splinters into Violence in California,” The New York Times, February, 29, 2012). While exact numbers are uncertain, Laura Wass, Central California director of the American Indian Movement estimated in February, that since 1997, about 2500 members of California tribes with Casinos have been disenrolled (Sudhin Thanawala, “California casino tribes disenroll hundreds,” News From Indian Country, February 2012).

The St. Regis Mohawk Tribal Council banned fake pot from the reservation, January 10, 2012, following news reports of the recent deaths of a 13-year-old boy in Pennsylvania and a 19-year-old university basketball player in South Carolina linked to the use of synthetic marijuana, (Gale Courey Toensing, “St. Regis Mohawk Council Bans Synthetic Marijuana,” Indian Country Today, January 19, 2012, http://indiancountrytodaymedianetwork.com/2012/01/19/st-regis-mohawk-council-bans-synthetic-marijuana-73049).

The Southern Ute Indian Tribe of Colorado received authority, March 2, 2012, to begin issuing its own permits to major sources of air pollution on the reservation (under The 1990 amendments to the Clean Air Act created the Operating Permit Program under Title V of the Act). For more information on the Southern Ute air Quality Program visit: www.southern-ute.nsn.us/air-quality (Ace Stryker, “Tribal eyes on tribal skies: Southern Ute permitting program first in Indian Country,” The Southern Ute Drum, March 9, 2012). Navajo Nation, which has been issuing such permits for several years, won a decision from the EPA Environmental Appeals Board, early in 2012, holding that regulations in a permit the tribe’s environmental protection agency awarded to Peabody Western Coal Company in 2009 did not exceed the Navajo agency’s authority (“Appeals board upholds Navajo permitting authority,” News From Indian Country, April 2012).

Navajo Nation President Ben Shelly stated, in early March, that the nation is considering investing in an electricity grid project that would allow the Nation to sell its power nationwide. Shelly met with the developers behind the $1.5 billion Tres Amigas, LLC on February 29, which is set to break ground in July 2012 on the Tres Amigas Electricity SuperStation, that will unite the United States’ three major electricity grids. The station is being built on 22.5 square miles of range land in Clovis, New Mexico, near the border of Texas. New Mexico lawmakers are backing the project, while Governor Susana Martinez has authorized tax incentives, opening doors for Tres Amigas to base its headquarters and an associated trading floor in the state. Shelly’s office said the tribe might invest at least $12 million in the project, though the reported president’s office had yet to determine how to get the investment funds, although Shelly was expected to work with the Tribal Council on creating a bond initiative. The new interconnection hub, first proposed in 2009, will open opportunities for the buying and selling of power across the three U.S. regional grids. The goal is to develop and expand the transmission infrastructure to one day provide renewable energy projects—including wind, solar and geothermal—access to multiple power markets nationwide. Shelly’s spokesman Erny Zah said investing in Tres Amigas could increase the tribe’s incentive to further develop green energy projects. The tribe is in the process of developing and exploring the potential for several wind and solar projects—among them, the Boquillas Wind Farm to be built on land owned by the tribe in Coconino County, Arizona. The Navajo Tribal Utility Authority, which currently serves Arizona, New Mexico and Utah, will prospectively own the majority of that wind farm project. Through Tres Amigas, the Navajo Nation will also have the ability to establish its own distribution contracts (“Navajo Nation to Invest in Electric Grid Interconnection Project,” Indian Country Today, March 8, 2012, http://indiancountrytodaymedianetwork.com/2012/03/08/navajo-nation-to-invest-in-electric-grid-interconnection-project-101730).

The Navajo Tribal Utility Authority (NTUA), in May, ordered $4 million worth of network services from wireless backhaul specialist Ceragon Networks Ltd., to expand internet service to more than 15,000 miles of the 27,000 square miles of the Navajo Reservation, under a 2010 federal grant awarded by the National Telecommunications Infrastructure Administration (“Navajo Tribal Utility Authority Inks $4 Million Deal to Power Wireless Transmissions, Expand Internet Access,” Indian Country Today, May 22, 2012, http://indiancountrytodaymedianetwork.com/2012/05/22/navajo-tribal-utility-authority-inks-4-million-deal-to-power-wireless-transmissions-expand-internet-access-114291).

Groundbreaking ceremonies took place, June 2, 2012, for the water Pipeline of the main corridor project from the San Juan River to Gallup, NM, to be completed in 2021, and will benefit Navajo Nation communities. The Cutter Lateral portion of the project was begun in 2009 and should begin bringing water to the first of the Navajo communities the project is to serve, by late 2012 (Bill Donovan, “Navajo-Gallup water pipeline groundbreaking set Saturday,” Navajo Times, May 31, 2012).

The Navajo Nation Council has authorized council delegates to hire legislative district assistants, in order to insure that delegates can fulfill their priority responsibility of listening to the voice of their home communities and dialoguing with the community, when the delegate has a conflict between community and other meetings. Navajo Speaker Johnny Naiz commented, March 8, 2012, in relation to this action, “As we move forward, more emphasis will be placed on engaging the public. Interacting and engaging the public should not be limited to elections, crises and politically risky issues. Showing our people we are listening is as important as listening. For the long run, however, our people will need to see their input is taken seriously and that is where our work will take place” (Johnny Naiz Speaker, Navajo Nation Council, “A report by the speaker of the Council,” Navajo Times, March 8, 2012).

Herb Yazzie, Chief Justice, Judicial Branch of the Navajo Nation, “Peacemaking a traditional form of dispute resolution,” Navajo Times, May 31, 2012, http://navajotimes.com/opinions/2012/0512/053112notebook.php, stated, “Since 1982, the judicial branch has been working to reinforce peacemaking as a choice of the people for dispute resolution that is an alternative to the formal, adversarial process that requires lawyers and law books. When used correctly, peacemaking allows people to have control over their dispute and to learn and grow through the process. The process teaches lessons from our journey narratives and is a means for participants to reach a solid understanding of who they are, where they are from, and where they wish to go. However, it has been clear for many years that the involvement of the courts in trying to preserve peacemaking has had inadvertent negative consequences that are now being reversed. The most negative consequence has been an inadvertent changing of the character of peacemaking in order to fit modern notions of mediated settlement, which peacemaking is not. A short history lesson should be given at this point.” “Peacemaking, once used by clan elders, became obscure as the modern courts came into being. At first, our judges practiced some form of peacemaking by teaching values from the bench. Over time, and as our judges have become younger, the formality of law and law books took over. The courthouse stopped being a place where our cultural identity was reinforced.” “It was for this reason that the Judicial Conference created the Peacemaker Court in 1982. However, from the beginning mistakes were made. The first was calling peacemaking a "court." The second - which is commonly done in Anglo translations of Diné concepts - was to over-simplify the complex character of peacemaking in a manner that would fit the closest Anglo concept, which is mediated settlement. A well-known example of over-simplification in translation is nalyééh. In many previous court opinions, it is referred to as "damages" or "restitution," because those words are the closest Anglo equivalents. However, any knowledgeable Diné would tell you that nalyééh does not mean these things. The above use of nalyééh is far from its root meaning. Nalyééh in peacemaking is used with k'é ná'asdl?? and k'é níjísdl?? which mean gestures of peaceful engagement toward reconciliation. Nalyééh may mean reparations, but not in the sense of restitution or damages when used traditionally. It is sometimes said that hozho is restored through nalyééh. The gestures of nalyééh, k'é ná'asdl??, k'é níjísdl?? are made when people engage each other. They are the process of turning a negative to a positive. It is the achievement of the positive result of hozho. It is what is given to heal and adjust the relationship. Laying blame plays no part in nalyééh and apologies are not normally made. It is not uncommon to have gestures of nalyééh, k'é ná'asdl??, k'é níjísdl?? by both sides.” “Peacemaking is to get to a place of unspoken apologies and a willingness to be accountable for each other's hozho in the future. It is an emotional journey that will need a disciplinarian at times, as our elders had performed. It will need teachings, because when human beings are experiencing chaos, hóóchxo', they may be engulfed in darkness. Our youth, especially, need the discipline and teachings this process provides when they are in the midst of chaos, hóóchxo'. There is no Anglo equivalent for peacemaking. However, for 30 years, the nearest Anglo method - mediated settlement - was applied to peacemaking, and aspects of peacemaking that did not look like Anglo mediated settlement began to be removed, until Diné peacemaking, hózh?ji naat'aah, became unrecognizable. Steps are now being taken to return peacemaking to its essential character. The traditional components of peacemaking are being restored as the Peacemaking Program revises its guidelines. When the revisions are ready, hózh?ji naat'aah will regain its complexity.” “The Council has emphasized the use of peacemaking in its enacted laws, first in 2000 in revising the Criminal Code, then in 2001 with the incorporation of the Peacemaking Division (now Program) into the Navajo Nation Code, in 2002 with the acknowledgement of our Fundamental Laws, and in 2011 with the enactment of the álchíní Bi Beehaz´ ánnii Act to ensure families are preserved or re-unified.”

Navajo Nation’s Pinon Chapter, February 21, 2012, became the 29th chapter of the Nation’s 110 chapters to become certified under the Local Government Act to do its own taxing, contracting, independently applying for federal grants and do their own land planning. Because of the shortage of funds to assist local chapters in gaining the technical competence to become certified, the process of chapters attaining certification has been extremely slow (Alastair Mountz, “Pinon Chapter receives LGA certification,” Navajo Times, February 23, 2012). Beclabito chapter had received certification, January 17, 2012 (“Beceblito achieves LGA certification,” Navajo Times, January 26, 2012. In addition, a number of certified chapters have had difficulty with handling finances properly (though it is not clear to this writer if this involves mishandling funds, or improperly undertaking required paperwork, or both). The Community Development Local Government Support Centers are responsible for overseeing certified chapter financial practices and to provide assistance to chapters in handling and reporting finances. The Navajo Council’s Budget and Finance Committee voted, at the beginning of March 2012, to sanction the Division of Community Development Support Centers for failing to resolve problems listed in a 2009 audit. A report by the auditor general found that LGSC and the division had not instituted any reforms, despite being given additional time to do so. The review found a lack of standardized management systems for each LGSC to provide services to chapters; no system of technical expertise and continuous training for LGSC employee in five management systems; the workload among centers was uneven; a lack of assistance for chapters with bookkeeping, tax compliance and use of accounting software; and an expression of dissatisfaction in the operation of LGSC due to the low number of certified chapters and high number of sanctioned chapters. Under Navajo law the Controllers Office is authorized to reduce the agency’s budget by 10% and the top two agency officers salaries by 20%. The head of LGSC objected to the sanctions stating that the findings are incorrect, and that ultimately the chapters are responsible for their handling of money and paperwork (Noel Lyn Smith, “B&F votes to sanction Local Governance Centers,” Navajo Times, March 8, 2012).

The Muckleshoot Tribe of the Pacific Northwest, in order to overcome problems of diabetes, obesity and other health problems related to diet, have been reintroducing what traditional foods and diet they can through the Muckleshoot Food Sovereignty Project, a two-year project is funded through the U.S. Department of Agriculture and supported by Northwest Indian College’s Traditional Plants and Foods Program. For more information go to: http://www.bastyr.edu/news/general-news-home-page/2012/02/feeding-spirit-nutritionist-helps-tribes-rediscover-traditional (Anne Minard, “Food Empowerment: The Muckleshoot Tribe Reintroduces Traditional Fare,” Indian Country Today, February 28, 2012, http://indiancountrytodaymedianetwork.com/2012/02/28/food-empowerment-the-muckleshoot-tribe-reintroduces-traditional-fare-100414).

In response to frustration that the federal government was not responding sufficiently to the wide spread poor housing on the Navajo Nation, a group of 22 nonprofit leaders met, in late January 2012, to form Dine bi Siihasin (Navajo Hope) as an umbrella organization for nonprofit organizations interested in assisting improve Navajo housing and infrastructure (Cindy Yurth, “Nonprofit group builds housing coalition,” Navajo Times, February 4, 2012).

The Southern Ute Tribal Council sent out a survey to tribal members to sound out their views on the tribe’s proposed natural resources plan. When only 83 responses to almost 1000 sent out surveys came back, the council, in January 2012, made a second request in order to try to have a representative opinion. The Southern Ute Tribe, over the years, has taken a number of steps to bring back traditional participation and consensus building (Ace Stryker, “Tribe Seeks Feedback on Natural Resources Plan,” Southern Ute Drum, January 27, 2012). On February 16, 2012, the Southern Ute’s Sky Ute Casino Resort Management Team held an open community meeting to invite tribal member input into the future development and enhancement of the Casino (“Casino announces Tribal Membership Forum,” Southern Ute Drum, February 10, 2012).

The Fort Sill Apaches of Oklahoma, descendants of Chiricahua and Warm springs Apaches who lived in what is now southwest New Mexico, acquired 30 acres north of route I10 between Deming and Las Cruces, NM in 1998. The BIA took the land into trust in 2001. The Tribe held a planning meeting on the future development of their new reservation, in November 2011, that the members hope will include tribal gaming (Rene Romo, “Tribe Moves Forward on Gaming Plans,” Albuquerque Journal, November 26, 2011).

The United Houma Tribe of Louisiana launched its radio station, KUHN, 88.9 FM, in January 2012, which among other things provides the costal tribe, periodically threatened by destructive weather, with warnings and emergency information. As a community station it also broadcasts local news and music (Nikki Buskeyt, “Houma tribal station has hit th FM airwaves,” News From Indian Country, January 2012).

Economic Developments

Provisions in the Recovery Act for tribal governments to issue tax exempt bonds have gone largely unused because of the recession combined with the fact that few tribes collect any taxes, and those that do receive only a small amount of revenue from them. The Treasury Department report of December 2011 revealed that of a $2 billion provision for tribal tax-exempt economic development bonds, less than 3% of that amount has been issued, and the number of tribal long term municipal bonds issued has been declining, with no long-term municipal bonds issued in 2011, compared with two issues of $112.3 million in 2010, while in neither 2010 or 2011 did Indian nations issue any short term municipal bonds, according to data by Thomson Reuters (Mark Fogarty, “Tribal Long-Term Municipal Bonds Fall,” Indian Country Today, February 17, 2012).

Appropriate economic development is a tribal benefit, having positive results for the Nation and its members over the long term. A study, “The income and health effects of tribal casino gaming on American Indians,” by the Institute for Research on Poverty at the University of Wisconsin-Madison, published in May 2012, using annual data from 1988-2003 on tribal gaming along with health care access from the U.S. Department of Health and Human Resource’s Area Resource File, and the individual health and socioeconomic characteristics from the Centers for Disease Control’s Behavioral Risk Factors Surveillance Systemfound that Indian casino gaming has substantially improved tribal members’ income, and in turn their health status and access to health care. Researchers found that, on average, casinos raised household income by $1,750, or 5.3% percent, which resulted in better physical health, mental health and health-related behaviors. The research indicated that the boost in income has decreased the probability of smoking by 9.6%, and reduced anxiety (the average number of days American Indians report feeling anxious) by 7.3% percent, while the probability of heavy drinking has gone down by 5.2% percent due to casino gaming revenues. Obesity or being overweight, being hypertensive, or having diabetes have been lowered by between 2% and 4%, with th rise in income. The Wall street Journal, reported that an earlier study found Native Americans in the Great Smoky Mountains region of North Carolina experienced a per-household income increase of $6,000 as a result of gaming. Applying the model presented in the University of Wisconsin study, those tribal members would have experienced a reduction in the probability of smoking by more than 32% and heavy drinking by nearly 18, while likely enduring 25% fewer days of anxiety (“Tribal Gaming Linked to Improvements in Indian Health,” Indian Country Today, May 21, 2012, http://indiancountrytodaymedianetwork.com/2012/05/21/tribal-gaming-linked-to-improvements-in-indian-health-114215).

The Western Mohegan Tribe and Nation of New York filed for Chapter 11 bankruptcy protection, March 15, 2012, at a U.S. Bankruptcy Court in Chicago, auctioned off its Tamarack Lodge resort, a reportedly dilapidated 255-acre property in the Catskills, at a sheriff’s public sale. Among the tribe’s debt listed in its bankruptcy filing was a $3.5 million loan from Detroit developer Ted Gatzaros. While the Western Mohegan Tribe is an unusual case, as they are not a federally recognized tribe, their bankruptcy filing raises the question of whether Indian tribes and their businesses, with tribal sovereign immunity, are even eligible for bankruptcy protection. For example, the Indian Gaming Regulatory Act (IGRA) shields tribes against creditors, prohibits courts from imposing new management on tribal enterprises, and prevents courts from taking possession of tribal assets, including casinos (“WSJ: Bankruptcy of Western Mohegan Tribe Brings Legal Issues Into Question,” Indian Country Today, March 19, 2012, http://indiancountrytodaymedianetwork.com/2012/03/19/wsj-bankruptcy-of-western-mohegan-tribe-brings-legal-issues-into-question-103392).

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, that opened The Gun Lake Casino on February 10, 2011, had the Gun Lake Tribal Gaming Authority’s credit rating upgraded from B to B+ by, Standard and Poors (S&P) announced it had raised the Gun Lake Gaming Authority’s credit rating from B to B+, in March 2012, on the basis of continuing strong operating results since at the casino. By the end of November 2011, the Gun Lake Tribe had contributed more than $10.3 million from its gaming profits to the state of Michigan and local governments in line with its tribal-state gaming compact (Gale Courey Toensing, “Gun Lake Gaming Authority’s Credit Rating Bumped Up,” March 30, 2012, http://indiancountrytodaymedianetwork.com/2012/03/30/gun-lake-gaming-authority’s-credit-rating-bumped-up-105648). The Seneca Nation of Indians of New York, in March 2012, announced plans to move ahead with a re-designed $130 million casino in Buffalo’s waterfront district after a three-year pause on the project because of the economic recession. The new Seneca Buffalo Creek Casino, expected to be completed in the summer of 2013, will replace an existing temporary building that has offered slots-only gaming since 2007 Gale Courey Toensing, “Seneca Nation Unveils Re-Designed $130 Million Buffalo Creek Casino,”Indian Country Today, March 28, 2012, http://indiancountrytodaymedianetwork.com/2012/03/28/seneca-nation-unveils-re-designed-130-million-buffalo-creek-casino-105190). The Mashantucket Pequot Tribal Nation’s Foxwoods Resort Casino in Connecticut suffered heavily from the great recession, resulting in its defaulting on its loans at the end of 2010. Although recently, income from its casino has risen significantly, the tribe is still deeply in the red and has been attempting to negotiate a restructuring deal for more than $2 billion in debt, a significant portion of which involves the development of the $700 million MGM Grand at Foxwoods, which opened in May 2008. As a result the nation has been continuously reducing its payments to some 450 adult tribal members. In summer 2009, incentive payments ranged from $7,500 to $10,000 a month on average. The tribe discontinued its distributions from casino revenues at the conclusion of 2010, and has handed out gradually declining payments, introduced in January 2011, to minimize the impact of the loss of income. Transitional payments started at the reduced amount of $1,500 per month, and over time they were decreased to $500, and were ended on March 2, 2012. For months, the Mashantuckets have been offering its members financial counseling and other help (“Mashantucket Tribe Cuts Off Payments to Members,” Indian Country Today, March 3, 2012,http://indiancountrytodaymedianetwork.com/2012/03/03/mashantucket-tribe-cuts-off-payments-to-members-101058). The Mohegan Sun casino in Connecticut, which also suffered sharply reduced revenues during the Great Recession, reported that fourth quarter net income for 2011 rose to $46.7 million from $26.3 million in 2010. However the nation, as of February, had not yet achieved an agreement to refinance its casino debt, though it had waved a possible default, but achieved a refinancing its $1 billion debt, in March, extending the repayment time (Stephen Singer. “Indian Casinos struggle to get out from under debt,” News From Indian Country, February 2012; and Stephen Singer, “Mohegan Sun announces refinance deal ,” News From Indian Country, May, 2012).

Navajo Nation’s casinos have continued to do well. The Fire Rock Casino in the four quarters of 2011 netted: $10.8 million, $11.3 million, $12.5 million, and $11.5 million. Meanwhile, Northern Edge Casino opened in mid-January, 2012 (Navajo Times: Bill Donovan, “Fire Rock nets $11.5 million in 4th Quarter,” March 8, 2012; and Noel Lyn Smith, “Northern Edge Navajo Casino debuts Monday.” January 12, 2012). The Confederated Tribes Warm Springs or Oregon opened a new casino, in late winter 2012, on highway 26, between Portland and central Oregon cities, replacing the more isolated Ka-Ne-Tah resort, closed in December 2011 (“Warm Springs to open U.S. 26 Casino,” News From Indian Country, February, 2012). The Northern Arapaho partially opened their new hotel adjacent to their new Wind River Casino in Wyoming in February (New Win River Casino hotel partially opened,” News From Indian Country, February 2012).

Ute Energy Corp, the Ute Tribe’s Denver, CO based independent oil and natural gas producer, whose parent company was formed in 2005 on the Uintah and Ouray Reservation in Utah to explore and develop the Tribe’s mineral estate in the Uinta Basin, plans to raise up to $250 million in an initial public offering (IPO) of common stock to trade on the New York Stock Exchange under the symbol “UTE”,MarketWatch reported in early January (“Ute Energy to Trade on NYSE Under Ticker Symbol ‘UTE’,” Indian Country Today, January 8, 2012, http://indiancountrytodaymedianetwork.com/2012/01/08/ute-energy-to-list-shares-on-nyse-under-ticker-symbol-ute-71220).

One growing, but often dubious business, in Indian Country has been tribal launchings of tribal pay day loan enterprises, often with non Indian banks and pay day lenders, (see the report of the Federal Trade Commission’s suite against several tribal pay day loan companies under Lower Federal Courts, above). This has arisen because Indian Nations, with tribal sovereignty, are exempt from the increasing state regulation of the often usurious pay day loan industry. More than 12% of the 300 U.S. companies making payday loans through the Internet are wholly owned by American Indian nations. At least seven federally recognized tribes own payday lenders, including the Chippewa Cree Tribe in Montana, which recently launched its Internet payday loan service Plain Green Loans. Where Montana law prohibits loans charging more than 36% interest, Plain Green Loans sometimes charges as much as 360%, although there is full disclosure of all terms and conditions to the consumer. Several others are in Oklahoma (see the Trade Commission suite report above) (Ralph Richardson, “Montana Senator Sheds Light on Chippewa Cree’s Plain Green Loans,” Indian Country Today, January 27, 2012,http://indiancountrytodaymedianetwork.com/2012/01/27/montana-senator-sheds-light-on-chippewa-crees-plain-green-loans-74957).

Tehan Woglake, a Native-owned broadband network company that plans to bring high speed Internet access to millions of people and businesses in Indian country and rural American households, in March was asking people to act quickly to tell the Federal Communications Commission (FCC) to allow the project to move forward, by approving an application by LightSquared LP to build a ground-based broadband network to use its existing frequencies integrated with its satellite service (Gale Courey Toensing, “High Speed Internet Project in Indian Country Needs Petitions to FCC,” Indian Country Today, March 26, 2012, http://indiancountrytodaymedianetwork.com/2012/03/26/high-speed-internet-project-in-indian-country-needs-petitions-to-fcc-104862).

The Navajo Nation signed a three-year agreement, February 1, 2012, with Lawrence Livermore National Laboratory to study carbon capture and sequestration, clean coal technology and renewable energy, among other things, helping the nation adjust its energy policy and decide whether to adopt renewable energy standards. The agreement opens doors for the tribe and the laboratory to look into power plant design and sites, as well as combustion and geothermal technologies and energy security. The tribe’s general fund has long relied on revenue from coal mining, oil and gas and lease payments, as the reservation contains large deposits of coal and uranium. Despite the Four Corners region’s strong potential for wind and solar energy, the tribe has only recently begun to pursue these types of green energy (“Navajo Nation Partners With Lab for Natural Resource Development,” Indian Country Today, February 3, 2012, http://indiancountrytodaymedianetwork.com/2012/02/03/navajo-nation-partners-with-lab-for-natural-resource-development-95762).

The Winnebago Tribe’s economic development corporation, Ho-Chunk Inc., is moving to invest in its remaining 20,000 farmable acres, as crop prices and farm revenues have soared in recent years. The Winnebagos previously leased parts of its reservation in northeast Nebraska to outside operations to grow corn and soybeans, as capitol for farming was difficult to raise. Now, the nation is moving to farm all of its own available acreage (“Winnebago Tribe Seeks to Reclaim Farming,” Indian Country Today, April 9, 2012, http://indiancountrytodaymedianetwork.com/2012/04/09/winnebago-tribe-seeks-to-reclaim-farming-107233). Ho-Chunk, Inc., in early May, reached an agreement with Nebraska Horsemen’s Benevolent and Protective Association to purchase the pari-mutuel thoroughbred racing track Atokad Downs in South Sioux City (“Ho-Chunk Inc. to Purchase Horse Racing Track,” Indian Country Today, May 3, 2012, http://indiancountrytodaymedianetwork.com/2012/05/03/ho-chunk-inc-to-purchase-horse-racing-track-111286).

The Hualapai Tribal Nation voted, in February 2012, to take over the management of the Grand Canyon Skywalk by exercising eminent domain, from David Jin, the tourist attraction’s Las Vegas-based developer, with whom the tribe has been in conflict on several issues (“ Hualapai Tribe Declares Eminent Domain to Manage Grand Canyon Skywalk,” Indian Country Today, February 13, 2012,http://indiancountrytodaymedianetwork.com/2012/02/13/hualapai-tribe-declares-eminent-domain-to-manage-grand-canyon-skywalk-97413). The tribe later repealed its eminent domain statute.

A report by a Northern Arizona University research center found that tourism has increased on the Navajo Nation by 32% from 2002 to 2011, to reach 600,000 visitors spending $113 million on the reservation in 2011 (Susan Montoya Bryan, “Study: Tourism spending up across Navajo Nation,” News From Indian Country, April 2012).

Education and Culture

UANativeNet, formerly Arizona NativeNet, begun in 2006 and re-launched under a new name in 2011, is a resource of topics relevant to tribal nations and Indigenous Peoples—a virtual university outreach and distance learning telecommunications center devoted to higher education needs of Native Americans throughout the world, particularly on matters of law and governance. The goal of the site is providing a broad understanding of tribal and indigenous legal issues to as broad a population as possible. For more information on the higher education, multi-functional, outreach and distance-learning telecommunications effort, log on to UANativeNet.com (Lee Allen, “UANativeNet Provides Training in Tribal Governance and Law,” Indian Country Today, April 5, 2012, http://indiancountrytodaymedianetwork.com/2012/04/05/uanativenet-provides-training-in-tribal-governance-and-law-106722).

The University of Tulsa, in Tulsa, OK, is offering a new Master of Jurisprudence in Indian Law (MJIL) is for college graduates who are interested in learning about Indian law but may not wish to become lawyers, and for lawyers who wish to gain additional expertise or expand their ?practices. For details go to: http://indianlawmjonline.com/?utm_source=Indiancountry&utm_medium=banner.

The Shakopee Mdewakanton Sioux Community agreed, in early June 2012, to match a $100,000 grant from the Association of American Indian Physicians (AAIP) to assist American Indian and Alaska Native students pursue careers in the health field, in a program to encourage youth to study the Science, Technology, Engineering, and Math fields with the ultimate goal of helping tribal youth become the leaders of tomorrow,” SMSC Chairman Stanley R. Crooks said in a statement. AAIP created the program, Careers in Health for Native Students, to increase the number of tribal members in the health and wellness workforce. The Association is establishing an educational program that will guide students in their education, training and career development (“SMSC to Match AAIP $100K Grant to Fund Program for Future Native M.D.s,” Indian Country Today, June 6, 2012, http://indiancountrytodaymedianetwork.com/2012/06/06/smsc-to-match-aaip-100k-grant-to-fund-program-for-future-native-m-d-s-116713).

The Environmental Protection Agency (EPA) signed an agreement with Haskell Indian Nations University in Lawrence, KS, in early February, to enhance Haskell’s programs supporting American Indian students pursuing careers in environmental and scientific fields, and to enhance environmental awareness and education on campus. The collaboration includes increasing opportunities in environmental areas for student employment (including awareness of federal government opportunities), volunteer work, research participation, lectures and seminars on environmental issues and community outreach (“Haskell Indian Nation and EPA announce partnership agreement,” News From Indian Country, February 2012).

Northwest Indian College (NWIC), in the Port Gamble S’Klallam Tribe’s House of Knowledge and Education Center, in Kingston, WA, at the end of November 2011, received a $353,000 grant from the U.S. Department of Defense for a new laboratory classroom that will allow students to obtain four-year degrees in new bachelors degree programs, without leaving their communities (“Northwest Indian College To Offer First Bachelor’s Degree; Thanks To New Laboratory,” Indian Country Today, December 1, 2011, http://indiancountrytodaymedianetwork.com/2011/12/01/northwest-indian-college-to-offer-first-bachelor’s-degree-thanks-to-new-laboratory-65208).

Arizona State University (ASU) has launching its Tribal Financial Manager Certificate program in a distance-learning format, providing access to tribal professionals who are unable to travel to the university (“Tribal Finance Program Now Online,” Indian Country Today, December 26, 2011, http://indiancountrytodaymedianetwork.com/2011/12/26/tribal-finance-program-now-online-68544).

United Tribes Technical College has received a $750,000 matching grant from the Shakopee Mdewakanton Sioux Community in Minnesota to help complete a science and technology building on the Bismarck, ND campus (“ND tribal college gets grant for new building,” News From Indian Country, February, 2012).

The state of South Dakota passed a budget bill, signed by the governor in April 2012, that for the first time allocates $250,000, which with additional private funds will double the number of Teach America teachers in rural South Dakota, including on Indian reservations, expanding the number of the program’s teachers at Cheyenne River, Lower Brule and Crow Creek (while maintaining the 57 at or near Rosebud and Pine Ridge). Teach America recruits college graduates and young professionals to teach for two years in low income schools. These teachers are usually quite enthusiastic and energetic about their work. The high school graduation rate on the Pine Ridge Reservation recently was 7% at Pine Ridge and 49% at Rosebud, compared to 82% in Rapid City. It is hoped that the expanded reservation program will increase the quality of reservation education and graduation rates (Ruth Moon, “Reservation Teachers aim to close education gap,” News From Indian Country, May, 2012).

When the community found out, in 2009, that the Naschitti elementary school needed a curriculum overhaul because No Child Left Behind test scores were very low, the Navajo community banded together to support students and bring in traditional Dine teaching methods. While as of the beginning of 2012 the impact was not yet apparent in test scores, the effort has strengthened the bond between the school and the community (Alastair Lee Bitsoi, “Remaking a school,” Navajo Times, February 2, 2012).

The Oxnard School District in southern California’s Ventura County, has adopted an anti-bullying campaign in which Spanish words of abuse are banned to encourage tolerance of Indigenous Mexicans, most of whom are Mixtec and from the states of Oaxaca andGuerrero, who make up 30% of California’s farmworkers, many of whom speak little to no Spanish and are subject to ridicule from other Mexican immigrant classmates. The goal of the campaign—created by the Mixteco/Indigena Community Organizing Project—is to prohibit the use of the words “Oaxaquita” and “indito” (little Indian) from being used on school property. The campaign is also forming committees to combat bullying and encourage lessons about indigenous Mexican culture and history (“California School District Bans Mexican Epithets for Indigenous People,” Indian Country Today, May 29, 2012, http://indiancountrytodaymedianetwork.com/2012/05/29/california-school-district-bans-mexican-epithets-for-indigenous-people-115455).

 The Choctaw Nation’s Jones Academy, founded by the nation in 1891 near Hartshorne, OK, but removed from BIA education as part of the termination policy of the 1950s, was retuned, in early January, to the Bureau of Indian Education school system, and federal funding, with the assistance of U.S. Representative Dan Boren (“Choctaw Nation School Eligible for Federal Funding Again,” Indian Country Today, January 4, 2012, http://indiancountrytodaymedianetwork.com/2012/01/04/choctaw-nation-school-eligible-for-federal-funding-again-70690).

The seven week Navajo Generating Station’s (NGS) intensive entry training program, Power Plant Fundamentals School, instructing each new employee in every phase of the power plant’s technical operation, procedures and safety, graduated nine men, in February (“Nine Graduate From Navajo Generating Station’s ‘Do or Die School’, Indian Country Today, February 7, 2012, http://indiancountrytodaymedianetwork.com/2012/02/07/nine-graduate-from-navajo-generating-stations-do-or-die- school-96301).

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Cultural Survival’s Endangered Languages Program, which has been working for years to help tribes reclaim their languages, in late March, hosted a day-long workshop on Indigenous language revitalization projects with more than seventy tribal youth at the Montagnyard Pinecroft Learning Center and Church in Greensboro, North Carolina. The high school students are part of an active refugee community numbering more than 4,000, and all speak one or more Indigenous languages originating in the central highlands of Vietnam, and are learning or already speak English (“Cross-Lingual Tribal Connections in North Carolina: Jarai, Rhade Tribal Youth meet with Cultural Survival,” Cultural Survival, March 29, 2012, http://www.culturalsurvival.org/news/cross-lingual-tribal-connections-north-carolina-jarai-rhade-tribal-youth-meet-cultural-survival).

The Bemidji, MN School District has joined the Bemidji Ojibwe Language Project, including hanging some 300 Ojibwe/English signage made by students throughout the district’s schools (“Native American Language Project Takes Another Step Forward,” Indian Country Today, January 21, 2012, http://indiancountrytodaymedianetwork.com/2012/01/21/native-american-language-project-takes-another-step-forward-73209).

The Chukchansi Indians of California have pledged $1 million over five years to the linguistics department of California State University, Fresno to save the Chukchansi language (Norimitsu Onishi, “With Casino Revenues, Tribes Push to Preserve Languages, and Cultures”The New York Times, June 16, 2012, http://www.nytimes.com/2012/06/17/us/chukchansi-tribe-in-california-pushes-to-preserve-language.html?ref=us).

A Good Day to Die, a documentary film about American Indian Activist Denis Banks, produced and directed by Davie Mueller and Lynn Salt, had a special showing in Ignacio, CO, in the midst of the Southern Ute Indian Reservation, during the Durango, CO Independent Film Festival, March 3, 2012, (Ace Stryker, “Native documentary gets special screening in Ignacio,” Southern Ute Drum, March 11, 2011).

International Developments

International Organizations

Eleventh Session of the United Nations Permanent Forum on Indigenous Issues

The Eleventh Session of the United Nations Permanent Forum on Indigenous Issues convened from May 7-18, 2012 at the United Nations Headquarters in New York, with the special theme, the “Doctrine of Discovery” — a term used to describe the way in which courts historically justified the annexing of indigenous lands — as well as the subsequent right to redress. Indigenous leaders and activists at an opening day press conference stated that the enduring impact of historical wrongs must be a priority for States as they reviewed their relationships with indigenous groups. Opening day discussion relating to the theme considered states around the world that were currently revising their constitutional provisions with regard to indigenous groups. Among them was the Congo, with Bienvenu Okiemy, Minister of Communications and Relations with the Parliament of the Republic of the Congo, noting that between 3% and 10% of his country’s population had indigenous heritage. The country’s many development efforts would not succeed without considering that population, he stressed, adding, “the basis for the Congo is a unified country”. In that context, the country had adopted a 2010 law promoting the rights of indigenous people, as well as a law that guaranteed indigenous peoples the right to govern their own lands. It was also working to improve access to social services and education, which should be adapted to the ways of life of indigenous peoples. With regard to health, the Congo was working with the United Nations Population Fund (UNFPA) to address issues such as HIV/AIDS, which affected indigenous people disproportionately. Campaigns had long been under way to raise awareness and educate indigenous populations about HIV prevention, as well as to make health care more accessible. Moreover, he said, development required a population that was educated, healthy and aware of its rights. The country’s new laws were extremely important, as they also went a step forward to counter discrimination; in addition, it was working to harmonize its national human rights laws with international norms. “We hope to be an example for other countries in Africa” in that respect, he said. Across Africa and the world, more attention was focused on indigenous peoples, who lived in abject poverty, while their countries depended on their resource-rich ancestral lands. The African Union had established an institutional legal framework that would offer strategic approaches for protecting indigenous peoples and evaluating national policies. He cited the African Charter on Indigenous Peoples and the Working Group on Indigenous Populations and Communities in that regard. African States were adopting legislation for implementing the Declaration and International Labour Organization (ILO) Convention 169. Against that backdrop, he said Congo had helped mobilize African States in carrying out that objective, which, in turn, helped to build the rule of law.Grand Chief Ed John, a lawyer, Canadian indigenous activist and Chairperson of the Permanent Forum, agreed that the concept of human rights for indigenous peoples was especially important in Africa, where there had long been a myth that there were no indigenous peoples. The matter went to the heart of the session’s current theme, the “Doctrine of Discovery”. In that vein, it was critical to understand historical precedents and justifications, in order to better understand their implications for indigenous peoples. Through the Doctrine of Discovery, for example, indigenous people had been considered inferior; as a result, a process of “civilization” and “Christianization” had begun. “Our cultures were supposed to die, our languages were supposed to die,” he said. “We hope the words we say here [at the Permanent Forum] will make a difference to our people,” he continued, noting that the Forum was an opportunity to tell the stories of indigenous peoples and discuss their collective future. The session’s agenda was very full, he added, and its planned discussions were extremely relevant to the 360 million indigenous people around the world. Megan Davis, Rapporteur of the Permanent Forum and Director of the Indigenous Law Centre of Australia’s University of New South Wales, said that the Forum was expected to hear interventions from States relating to their reconciliation processes with indigenous people. Various studies would be presented, including one on constitutional revisions aimed at recognizing indigenous peoples’ rights. The study found that several States were undergoing such a process, including Bangladesh, New Zealand and Australia. Another study would be presented on violence against indigenous women, a topic on which an expert group meeting had been held earlier in the year at the United Nations, she noted. Meanwhile, related studies would reveal the extent to which violence against indigenous women and girls was present in various communities. “Often, there is an emphasis on the violence committed by the State against indigenous women and children,” she said in that regard; however, it should also be noted that a large share of violence was committed within indigenous communities themselves. The Forum would also consider innovative steps through which indigenous women and men were working to combat that. Tonya Frichner, a lawyer and Native American activist from the Onondaga Nation and former member of the Permanent Forum, said that the “Doctrine of Discovery” had really been a “doctrine of discrimination”. It was fundamentally incompatible with the Universal Declaration of Human Rights, and it was manifested as violence against indigenous people. Moreover, she stressed, “these effects are not just historical, but they are ongoing” within many legal systems around the world. Indeed, there had been an 1823 United States Supreme Court decision — known as Johnson v McIntosh — in which the court had discussed in detail its decision that indigenous peoples did not have the right of land ownership. That decision had laid the groundwork for many United States laws, she said. More research was needed on how those historical precedents had affected indigenous lands, rights, health conditions and other outcomes. The panellists also responded to a series of questions, which included one about whether revising historical land rights would, in effect, change the “entire map of the world”. In response, Ms. Frishner said that the idea was not to change existing countries — “we would never ask our neighbours to move” — but about garnering respect for laws protecting indigenous land rights, she said. Responding to a question about the degradation of former indigenous lands, Mr. John described condominium sites and other construction projects in which indigenous remains had been found, saying that such practical considerations must be dealt with. Indigenous people were further concerned about major ecological disasters on their lands — land on which many still had no rights, including to protect them. Land treaties must be respected, and new treaties negotiated, in order to “keep a balance” when it came to land development. Another correspondent requested more information about countries that were currently readdressing the concept of the Doctrine of Discovery. That Doctrine had allowed for colonization, responded Mr. John, adding that other historical treaties — some of which respected the rights of indigenous peoples — had been ignored for generations. Those treaties should be recognized and enforced today, he said, and the matter of redress should continue to be explored. In opening the opening session, Deputy UN Secretary-General Asha-Rose Migiro said Indigenous peoples must be involved “every step of the way”, and only with their free, prior and informed consent, in all efforts to define priorities and programmes for their sustainable and culturally appropriate development, this morning, opening the eleventh session of the United Nations Permanent Forum on Indigenous Issues. Hailing the Forum’s 11 years of “uniting different voices and different languages in one single demand: recognizing, respecting and promoting indigenous people’s rights”, she said the 16-member expert body, which worked alongside United Nations agencies and civil society groups, could play a dynamic role in helping indigenous peoples worldwide achieve their goals and the right to self-determination. Indigenous peoples’ self-determined development stemmed from their own local livelihoods, community solidarity and ecosystem resilience, she continued. Their traditional knowledge offered a special contribution to tackling twenty-first century challenges. The goal was not to appropriate, extract or exploit that knowledge, but rather to respect indigenous peoples and preserve tradition. It was time to ensure that indigenous peoples were always heard, she said. “Raise your voices here, at this Forum, and beyond. I will urge the world to listen”. Immediately following his election by acclamation as Chairperson of the Permanent Forum, Edward John, from Canada, said: “There is a continuing need for all of us […] to take collaborative and coordinated actions, bold and effective, to address the continued discrimination, racism, marginalization, extreme poverty and conflict faced by indigenous peoples,” urging action over indifference, “because indifference is the breeding ground for intolerance.” Thomas Stelzer, Assistant Secretary-General for Policy Coordination and Inter-Agency Affairs, said that with the United Nations Conference on Sustainable Development — known as Rio+20 — just weeks away, the international community would have would a prime opportunity to reaffirm the role of key segments of humanity, including indigenous peoples, towards achieving broader development and environmental sustainability in a world threatened by climate change. “As we get close to Rio+20, we must keep the Earth in full view when making decisions and taking action. All over the planet, people are united in hope for a balanced and more sustainable world, anchored in the three pillars of sustainable development — social, economic and environmental,” he said, citing as key to achieving that goal and setting a path to a better future agreement on global sustainable development gaols and finding common ground on the true meaning of what made up a “green economy”. During the panel discussion, experts denounced the Discovery Doctrine as a “Doctrine of Extinguishment” and a “Doctrine of Domination”, lamenting its impact on hundreds of millions of indigenous people, who had been killed, subjugated or used as pawns while colonial Powers competed for power and wealth. The policy’s residual affects were still being felt and, according to one speaker, those racist and bigoted ripple effects remained “the central problem confronting the global human rights movement of indigenous peoples.” While he urged full implementation of the Indigenous People’s Declaration to ensure the protection and promotion of their rights, another speaker said a re-examination of the Discovery Doctrine provided a unique opportunity. Though States might one day find the honour to reject the Doctrine, one of the best ways to undo its “genocidal” legacy would be for indigenous people to find in themselves the ability to celebrate their heritage and cultures “in ways that showed the complexity, strength and beauty of who and what we are”. Earlier in the day, the Permanent Forum elected its Bureau for the session, including Vice-Presidents Alvaro Esteban Pop, of Guatemala; Anna Naikanchina, of the Russian Federation; Simon William M'Viboudoulou, of Congo; and Valmaine Toki, of New Zealand. Megan Davis, of Australia, was elected Rapporteur. Ms. Davis presented a study on national constitutions and the United Nations Declaration on the Rights of Indigenous Peoples with a view to assessing the nature and extent of the inclusion of indigenous peoples’ human rights in national constitutions, with reference to the rights affirmed in the Declaration. During the general debate on the special theme, statements were made on behalf of: Truth and Reconciliation Commission of Canada, Global Indigenous Caucus, Global Indigenous Women’s Caucus, Global Indigenous Youth Caucus, and Assembly of First Nations. Ms. Tauli Corpuz said research on the Doctrine had generally focused on North America, Australia and New Zealand, but the dogma had severely impacted peoples in Asia and Africa. It had been imposed upon those peoples to promote Western views, with the Portuguese, Spanish, French and Dutch setting up colonial outposts in Asia and then Indo-China. She said that, like most indigenous communities, the native peoples of the Philippines were not really “discovered”; they had indeed been trading with their regional partners and building their own societies long before Magellan had arrived on their shores. Even though the Philippines had defeated that explorer, their land was passed through Spain with the Regalian Doctrine and eventually “bought” by the United States. Unfortunately, many of the colonial laws and practices lingered until this day. Providing a Government perspective, Ms. Fernanda Erananda Espinosa said that Ecuador was working to redress many of the issues that had emerged over the 500 years of the implementation of the Doctrine and colonial models. The Ecuadoran Constitution sought to better harmonize the needs of humankind, nature and the State. Indeed, it recognized the rights of nature, “which is the first form of redress”, leading to a much-needed change in the relationship between society and nature. The indigenous peoples of Ecuador had introduced the notion of acknowledging past wrongs and the need to redress the harm caused by subjugation of age-old cultures. The Doctrine of Discovery, as it was implemented over the centuries, justified domination and the imposition of colonial practices. She said the 2008 Constitution included the need to protect and promote the rights of Ecuador’s indigenous peoples, including its Afro-Indian communities. Further, the Ecuadoran principle of “living well” was an alternative to conventional development based on Western models. She said that, as the principle was set out in the Constitution, it promoted processes that aimed to erase historical inequities, including through the inclusion of indigenous people in key decision-making positions. “So, redress does not drag down the State; it is a way to better understand development and eradicate poverty,” she said. The Government was also raising awareness about the importance of traditional communities through self-identification campaigns. Yet, challenges remained, including focusing on introducing public policies of an inter-cultural nature. She believed that the Government and the country’s indigenous populations could work together to build a true plurinational society, which was the surest way to redress the lingering impacts of colonial domination. Wilton Littlechild of Truth and Reconciliation Commission of Canada, said his Commission was studying the colonial process of taking European beliefs and values and proclaiming them universal values to be imposed on others. That universalization was the primary rationale for imposing the residential school system on indigenous children. One of the conference room papers had advocated that all States adopt the Declaration as binding national law, an important step of implementation. A recent report by his Commission recommended that territorial and provincial Governments explore the Declaration as a framework to work towards reconciliation between Aboriginal and non-Aboriginal peoples. In other areas, he urged that all States review laws, regulations and policies impacting indigenous peoples, and repeal those reflecting the ethno-centric prejudices of the Doctrine of Discovery. Those reviews should be carried out with indigenous peoples, and require their free, prior and informed consent. He also called on all States to educate their citizens through school curricula on colonization and the Doctrine of Discovery. His Commission’s report had recommended reviewing all public school curricula to understand what was being taught about residential schools. Curricula must be inclusive of indigenous peoples. He also called on all churches to repudiate the Doctrine of Discovery. Antonella Cordone, Coordinator for Indigenous Issues, International Fund for Agricultural Development (IFAD), said the Fund’s strategy framework for 2011-2015 championed poor rural people, especially indigenous peoples. The Fund had set ambitious targets for reducing rural poverty by 2015. It would enhance its operational effectiveness by scaling up development initiatives, supporting innovative approaches to climate resilience and enhancing its position as a “knowledge broker”. In 2011, 11 projects had been approved that supported indigenous peoples through agricultural development, strengthening local organizations and enhancing the skills of local communities in ways that recovered ancestral knowledge. $1.45 million grant had been approved in 2011 to finance the indigenous peoples’ assistance facility, she said, an innovative instrument through which the Fund’s principles on engagement with indigenous peoples was being deployed. It financed small projects that fostered self-driven development and was governed by a board formed — in majority — by indigenous leaders. Also, the Fund’s indigenous peoples’ forum provided a consultation process and would support implementation of the Fund’s policy on engagement with indigenous peoples. It had just approved a $500,000 grant to enable indigenous representatives to articulate their strategies in decision-making processes. Arthur Manuel, speaking on behalf of the Global Indigenous Caucus, said the Doctrine denied the fundamental rights of indigenous peoples and ran contrary to the Charter of the United Nations. His group urged that the Permanent Forum, along with other United Nations human rights bodies, denounce the Doctrine and all its structures as a crime against humanity. The Forum should carry out a study of the Doctrine and attach it to the document that would sum up the Second International Decade. Such a study should cover issues such as immigration, State borders, and corporate responsibility. The Global Caucus was also deeply concerned by the increasing militarization of indigenous waters. On other issues, he proposed that an international study be carried out on all the recommendations of the Forum, especially regarding the situation of indigenous women. Such a wide-ranging study should consider such issues as labour laws and environmental laws. He also proposed that the theme of the thirteenth session of the Forum be devoted to the impacts of mining and extractive industries on the lives and livelihoods of the world’s indigenous peoples. Jane Fletcher, Deputy Director, Office of Treaty Settlements of New Zealand, said that land lay at the heart of the relationship between many indigenous peoples and State structures. “We recognize that by denying indigenous title, the Doctrine of Discovery has created historic injustices and had had a wholly negative impact on the relations between indigenous peoples and State Governments,” he said, explaining New Zealand’s unique history, where the relationship between indigenous Maori people and the Government had long been, and remained, based on the Treaty of Waitangi. While that Treaty remained of fundamental constitutional and historical importance for New Zealand, the country’s indigenous people had suffered injustices due to the Government’s failure to comply with its tenets. As such, the Government had embarked on a process to provide redress for the impacts of colonialism, she said, explaining that the “treaty settlements” were agreements that provided for the Government’s acknowledgement of, and apology for, past injustices, the return of land, commercial opportunities and the restoration of relationships between the Government and indigenous peoples. She said that the New Zealand Government was proud of that unique framework for settling grievances, and it continued to keep dialogue open with Maori on ways to improve the process. In a brief intervention, Permanent Forum member Valmaine Toki of New Zealand suggested that, in order to address inequalities, the current treaty settlement process in that country could, among other things, promote meaningful dialogue between Maori leaders and Government Ministers on such important issues as the sale of State assets, rights to fresh water, and mining and extractive industries. It had been suggested that such matters could be handled through a “constitutional transformation process”, but positive change could also take place within the framework of implementation of the Indigenous People’s Declaration. John Scott, Secretariat for the United Nations Convention on Biodiversity, updated the Permanent Forum on the panel’s work regarding the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits, which to date had been signed by 94 countries and ratified by four. It would enter into force 90 days after the fiftieth ratification. The Protocol contained significant provisions related to indigenous peoples and genetic resources. It also proposed benefit sharing on mutually agreed terms as regarded traditional knowledge. The Secretariat had convened two special events to raise awareness about the Protocol, as well as a training session that had been held at Headquarters the proceding week. Antonetter Cordero, Global Indigenous Women’s Caucus, said the term “past conquest” offered a false understanding of indigenous peoples’ experience. Characterizing it as a past issue did not reflect current attempts at colonization. She called on States to implement the Declaration, saying that reparations methodology should include a gender analysis. She urged the Permanent Forum to respect the expertise of indigenous women by including them in decision-making forums. She also urged it to use a gender analysis when examining the impacts of dehumanizing behaviour towards indigenous peoples. The effects of the Doctrine of Discovery on women had been seen through the imposition of patriarchal norms and the relationship between the Doctrine and violence against women. She urged the Committee on the Elimination of Discrimination against Women to coordinate with indigenous peoples and pay attention to country reports on the implementation of the Declaration. She recommended the United Nations Environment Programme (UNEP), the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity take up the precautionary principle as it related to sexual violence and health. Alfredo Chuquihuara, Chargé d’affaires of Peru, said his country was improving the rights and fundamental freedoms of indigenous peoples. It was committed to developing policies that enhanced multiculturality. Peru had been involved for 11 years in the drafting of the Declaration, and further, had created a law on the right to prior consultation of indigenous peoples, which, in line with ILO Convention 169, marked progress towards meeting their demands. In the extraction and redistribution of natural resources, the interests of the State, the private sector and indigenous peoples must be reconciled, a process that must involve all affected parties. Peru was making all possible efforts to protect indigenous peoples living in remote areas of the Amazon. They made contributions to the nation’s progress and must be consulted on matters that affected them. Peru was a plurilingual country. “Diversity is our greatest wealth,” he said, adding that it was home to 1,786 indigenous communities. Krysta Williams, Global Indigenous Youth Caucus, presenting her group’s first statement, demanded the right to full and equal participation in the Permanent Forum. “It is dehumanizing to be denied appropriate space,” she said. Many people had travelled from indigenous lands to participate today at great expense. The youth were taking that action because the Permanent Forum was a space that had been lobbied for by her elders. “We require adequate space in this and future sessions,” she said. “It is our responsibility to learn from our elders”. In that vein, she urged taking back the Permanent Forum, in the name of its intended purpose. Shawn Atleo, Assembly of First Nations, said the Declaration was crucial, as it affirmed that policies advocating superiority on the basis of origin were racist, illegal and morally condemnable. In September 2011, the Human Rights Council condemned doctrines of superiority as incompatible with good governance. The Doctrine of Discovery was used to dehumanize indigenous peoples. European nations had been relentless in their determination to seize and control indigenous lands. State sovereignty over indigenous lands would need to be increasingly challenged and rectified. The Permanent Forum should request States and indigenous peoples to examine policies and laws used as a basis for State claims to indigenous lands. The Permanent Forum should also urge States to establish evaluation plans to eradicate any remnants of doctrines of superiority, including the Doctrine of Discovery. Xavier Abreu Sierra (Mexico) said that his Government had made a critical analysis of the residual effects of the Discovery Doctrine and had found that, while much progress had been made in the area of protecting and promoting the rights of all Mexicans, much work remained to be done, especially regarding land title matters. In addition, the Government acknowledged that indigenous and tribal communities needed assistance to close the development gap. “We are doing our duty, but we must be critical of our performance thus far,” he said, noting that the Government was holding ongoing consultations with indigenous groups. Finally, he hoped the experts on the Forum would continue to set out concrete proposals, so States could further refine their relevant policies and initiatives. Olav Mathis Eira, speaking on behalf of the Arctic Caucus, said that his group believed that indigenous people had the right to have land that had been taken without consent returned. All United Nations-based human rights bodies had reached similar decisions. Once such land was returned, the indigenous people would then hold rights to them, a principle that could be supported by extensive case law. If such land could not be returned, case law had held that States must provide similar parcels “of equal size and quality” to indigenous people. All this proved that States could no longer hide behind the argument that the remnants of the Doctrine of Discovery were so old that there was no need to address them. Modern judicial procedures were plotting the course for legal redress regarding indigenous land rights.

The third and fourth sessions of the UNPFII sessions, on May 8, featured speakers discussing that the Doctrine of Discovery had been used for centuries to expropriate indigenous lands and facilitate their transfer to colonizing or dominating nations, and urging the expert body to study the creation of a special mechanism, under United Nations auspices, to investigate historical land claims. Throughout the day, representatives of indigenous groups, Governments and United Nations funds, agencies and programs aired their views on the need to more justly reflect indigenous rights and freedoms in national constitutions and other comprehensive agreements. Indigenous and native peoples spoke out against continued use of the internationally recognized principle of “terra nullius” — which describes land belonging to no one but that could, in some cases, be acquired through occupation — as well as anachronistic norms, like the Regalian Doctrine, under which private land title emanates from the Spanish crown. Such principles were based on racist, unscientific assumptions, many said, and could not be used by States to justify the “theft” of native lands, territories or natural resources. Others argued that the Discovery Doctrine — and its contemporary effect — should be studied by the Permanent Forum, as should indigenous legal systems to understand how they regarded its application. The term “conquest” should not be used in a manner to suggest that conquest had occurred. Echoing the comments of many, Steven Newcomb of the North American Caucus said the original free and independent existence of indigenous peoples — and their relationship with their territories — predated domination by western Christendom. That free existence was the source of their birthright. For their part, Government representatives described efforts to compensate indigenous peoples for past and present inequities. Mexico’s delegate said electoral justice was one way to guarantee rights. “With electoral justice, we redress social injustice”, he declared. It was important to recognize customary law and respect the rights to self-determination and self-recognition. Consultations were needed to understand whether elections should take place under ordinary systems, or in accordance with traditional systems. Chile’s representative said his country had participated in negotiations to create the Declaration on the Rights of Indigenous Peoples, and had voted in favour of the text in the General Assembly. Chile recognized First Peoples as a fundamental part of the nation’s identity and culture. That commitment was reflected in a policy intended to fill the gap between the “two populations”. Still other speakers pointed out that “terra nullius” had impeded conservation practices, contrary to the intended purpose of those measures. Gonzalo Oviedo, Senior Advisor on Social Policy at the International Union for Conservation of Nature and Natural Resources (IUCN) highlighted the need to correct those processes in cases where indigenous peoples had suffered losses. IUCN was working with the Special Rapporteur on the Rights of Indigenous Peoples and the President of the Permanent Forum to improve processes for naming international heritage sites. Going forward, redefining relationships through constitutional review was important for outlining a vision of reconciliation, peace and justice, said Valmaine Toki, Permanent Forum Member from New Zealand. She suggested a return to an indigenous perspective in such constructive agreements. In other business, Expert Dalee Sambo Dorough, from the United States, introduced the Permanent Forum’s study on the Indigenous participatory mechanisms in the Arctic Council, the Circumpolar Inuit Declaration on Resource Development principles in the Inuit Nuaat and the Laponia management system (document E/CN.9/2012/10.), and Expert Anna Naykachina, from Russian Federation, introduced the study on the impacts of land use change and climate change on indigenous reindeer herders’ livelihoods and land management, including culturally adjusted Criteria for indigenous land use (document E/CN.19/2014.4). On the main theme, Carlos Maria Aquino, Vice Minister of Justice of Paraguay, said indigenous peoples — recognized as existing prior to the formation of the Paraguayan State — had the right to freely apply their political, economic, social and cultural systems, and observe customary norms, provided those norms did not violate the Constitution. Paraguay had ratified International Labour Organization (ILO) Convention No. 169 through its law 234 (1993). The national plan for human rights was launched in 2011 in full compliance with the Vienna Programme of Action. He said it outlined four strategic axes, one of which sought to guarantee the property and possession of lands by indigenous peoples, respecting those living in voluntary isolation. It also proposed awareness-building about the multicultural nature of Paraguay. The Government planned to design human rights indicators — a self-assessment mechanism — based on methodological guidelines. Among other efforts, the Human Rights Ministry had published information on ILO Convention No. 169, while the Supreme Court of Justice had organized an international seminar on the property rights of indigenous peoples. New challenges required new orientations in public policy and a deep respect for the identity of indigenous peoples. Ioanas Vrailas, Deputy Head of the Delegation of the European Union, said indigenous rights were being mainstreamed into the Union’s development cooperation, noting that a rights-based approach was taken in the financial support for indigenous peoples around the world. The key principle for safeguarding indigenous peoples’ rights was to ensure their full participation and the free and prior informed consent of the communities concerned. The Union provided financial support for the development of the Arctic region, and neighbouring areas, through a regional approach. He cited the “Kolarctic” program in that regard. Voicing deep concern about the threats of climate change, he said the Union had participated in activities carried out under the Convention on Biological Diversity by supporting indigenous peoples’ contribution to the conservation and sustainable use of biological diversity. Agnes Leina, Indigenous Peoples of Africa Coordinating Committee, said that her delegation would urge the Permanent Forum and the Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples to hold a special dialogue session with the African Commission on Human and Peoples Rights to study the importance of the Richtersveld constitutional case and the problem of “terra nullius” — “land belonging to no one” — which had inspired legal discrimination across Africa. It should also cooperate to identify specific problems faced by nomadic indigenous peoples in relation to land and natural resource tenure, as a result of “terra nullius” and agricultural and sedentary biases in colonial and post-colonial legislation and constitutions. That work should be carried out in cooperation with the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the United Nations Development Programme (UNDP). The end result of such a session should be a broad-based study on the situation of indigenous peoples of Africa that would consider the impact of principles that had long led to land seizures by colonial Powers. As most indigenous people in Africa were mobile land users, they had been unable to show that they were permanent residents on their land, even if they had used, or lived on, it for centuries. The first major effort to address legal issues regarding the annexation of aboriginal land and titles had taken place only in 2001, when the Constitutional Court of South Africa had ruled on the land and mineral rights issue of the indigenous Nama pastoralists against mining interests. She said that, going forward, the Forum should stress the importance of indigenous traditions and cultures in the context of land rights and stewardship. Serena Heckler, United Nations Educational, Scientific and Cultural Organization (UNESCO), drew attention to some of the agency’s activities to promote the implementation of the United Nations Declaration on the Rights of Indigenous People, including pressing ahead with work on its policy to engage with those peoples. That process, begun in 2010, aimed to appropriately position UNESCO’s programs, procedures and activities with respect to the new international landscape that was emerging, in the wake of the adoption of the Declaration. It also sought to build awareness and provide guidance to staff and committees, in order to effectively implement the Convention in all UNESCO’s work. As education was at the core of its mandate, UNESCO was carrying out a range of relevant activities, she said, mentioning, among others, an Asia multilingual Education working group that was working to remove barriers of access to quality education for ethno-linguistic communities, through coordinating technical and substantive support to relevant initiatives throughout Asia. She also cited UNESCO’s Local and Indigenous Knowledge System (LINKS), which collaborated with indigenous education experts, local communities and education ministers to implement projects in Nicaragua and the Solomon Islands aimed at reinforcing mother language education and incorporating indigenous knowledge into education materials and curriculums. Lopaka Luis Ulumaheihei, Pacific Indigenous Caucus, urged all Member States to ensure that their respective national legislative bodies undid colonial legal structures and ensured that all polices and laws were in line with the tenets of the Declaration. Such national authorities must also submit to a periodic review of their land tenure policies. They should provide indigenous peoples the legal and political mandate to “decolonize” national constitutions, especially concerning land rights. He also recommended that the Forum “be bold” in advocating the dismantling of the Discovery Doctrine across all Member States. He went on to say that, for centuries, there had been a concerted effort to evict indigenous and first peoples from their sovereign and sacred lands. The ongoing project to disenfranchise those people had amounted to “one of the greatest crimes known to humankind”, and had altered the trajectory of indigenous men, women and future generations. For indigenous people of the Pacific region, the Doctrine continued to impact their efforts to use or gain access to their ancestral lands. That Doctrine, which had been significantly cited to support legal decisions that ignored or invalidated aboriginal land possession in favor of colonial or post-colonial Governments, had reinforced the concept of genocide for countless people in the region, including in the Hawaiian islands. He called for the demilitarization of the Hawaiian Islands, where the native people continued to live in deplorable conditions. In another example of the impact of the Doctrine, he said the arrogance of Australia’s colonizers continued to negatively affect the aboriginal peoples of the Torres Island Strait through the forcible removal from their lands, segregation and assimilation. At the same time, non-indigenous people had been given immense opportunities to lease, purchase, inherit and exploit the lands and resources to the detriment of the traditional and sovereign powers. The Caucus, therefore, called urgently on States to overturn legal philosophies and decisions that had enabled the dispossession of indigenous peoples from their lands and waters. Steven Newcomb, North American Caucus, recommended that the United Nations confirm that the Doctrine of Discovery was legally and morally wrong, and could not be relied upon by Governments in law-making or litigation. The Permanent Forum should safeguard indigenous peoples’ sovereignty in European-derived frameworks, and be encouraged — in cooperation with States — to study the effects of the Doctrine of Discovery on indigenous lands, as well as its use by States as a basis for policies and laws. The findings of such studies should be presented to the Forum. He also recommended that a meeting be held to study the effects of domination on indigenous peoples. The Permanent Forum should urge States to repeal laws based on the Doctrine. Further, there must be educational opportunities for young people to learn about the Doctrine and refute it. Appropriate United Nations bodies should carry out an educational campaign to raise awareness. The term “conquest” should not be used by the Permanent Forum in a manner to suggest that conquest had occurred. The original free and independent existence of indigenous peoples, and their relationship with their territories, predated the domination of western Christendom. That free existence was the source of their birthright. Diego Morejon (Brazil) said 13 per cent of his country was recognized as indigenous land. Some 400 of those lands had been formally declared as such, while 300 others were currently being formalized. Brazil respected the autonomy of dozens of isolated indigenous peoples, with policies aimed at protecting their lands to prevent peoples from being affected — in the twenty-first century — by the mistakes of colonization. He said Brazil considered indigenous peoples as “protagonists” in the upcoming Rio+20 Conference. Brazil’s policy on the protection of indigenous lands was one of redress. Put into practice by the Brazilian National Indigenous Foundation, it took into account indigenous human rights, as well as historical, social and cultural characteristics. The assurance of full ownership by indigenous peoples of their lands was an indispensable measure to foster demographic recovery. Brazil’s redress policy aimed at correcting “asymmetries” stemming from colonization. On 2 May, the Supreme Federal Court confirmed the rights of the Pataxó Hã-hã-hãe people over the Caramuru Paraguassu indigenous land, in the state of Bahia, ending a legal dispute that had endured for almost a century. Gonzalo Oviedo, Senior Advisor on Social Policy, International Union for Conservation of Nature and Natural Resources (IUCN), recognized that the despoilment of indigenous lands derived from the Doctrine of Discovery. Some conservation practices — including the establishment of protected areas — had, at times, deprived peoples of their rights and lands from being protected, through “terra nullius”. He was aware of the need to correct those processes in cases where indigenous peoples had suffered losses. Progress had been made in having a rights-based focus, through work to promote indigenous peoples’ rights in conservation throughout the world. IUCN had worked to promote better governance, as a fundamental part of environmental sustainability. With other advisory bodies last November, IUCN worked with the Special Rapporteur on the Rights of Indigenous Peoples and the President of the Permanent Forum to improve processes for naming international heritage sites. In that context, he urged that the principle of free, prior and informed consent be respected in the United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD), and other environmental conservation practices. IUCN’s fifth international congress would identify opportunities to apply rights-based focuses in support of human well-being and environmental sustainability. Discussion would centre on how to ensure more indigenous peoples could join IUCN, and he urged them to apply for membership. Ortenzia Hidalgo, Latin American Indigenous Peoples Caucus, said European conquerors used the cross and the sword to impose their doctrine; one god and one king. They obtained a papal dispensation to Christianize indigenous peoples — and created the criminal notion of superior and inferior races. That was the cruel origin of capitalism. Today, multinational corporations prioritized economies based on extractive activities, especially in petroleum, water and timber. They invaded indigenous territories and systematically violated rights. “The new god is free trade”, she said, and Mother Earth was being abused. That “extractionist” neoliberal model was reaching its end. World summits did not provide any real space for indigenous peoples to participate. Those responsible for climate change talked about a “green economy” only as a way to persist in policies that pillaged mother earth. She urged the United Nations to ensure that indigenous peoples exercised their rights to self-determination, and to free, prior and informed consultation and consent, especially on any climate change or sustainable development programme that impacted indigenous rights. She also called for a moratorium on extractive activities on indigenous lands. Esteban Ramos, President of the Indigenous Parliament of Venezuela, said that,… the current Bolivarian progressive Government had worked assiduously to undo the structures of the Doctrine that remained in place. The current Constitution included a chapter on the rights of indigenous people, with a specific focus on ancestral land rights. The Constitution also set out the framework for a true multi-ethnic and plurinational society. There was no doubt that the Government had undertaken great efforts to return the lands to indigenous people for their benefit. Pauline Sukhai, Minister of Amerindian Affairs of Guyana, said that her country had not escaped colonialism and its impact. Against such a backdrop, Guyana, home to some 70,000 indigenous peoples, had taken on the challenge of ensuring that issues regarding indigenous peoples were mainstreamed into national development priorities, thus providing a solid platform for those peoples to participate at all levels in national development. It would also allow them to self-govern village-level projects and developments. She went on to say that the rights of indigenous peoples were entrenched in Guyana’s Constitution through the 2006 Amerindian Act. That legislation provided for, among others, land rights, resource management, self-governance and other aspects of indigenous livelihood. In many ways, the Constitution and the relevant legislative polices echoed the Declaration, she said, adding that indigenous peoples were also represented in the institutions dealing with matters relating to their well-being. “ Guyana, however, is not blinded by its progress and recognizes that there is much to be done to further enhance indigenous priorities into the national development process,” she concluded. Pellicer Migdalia, Unified Confederation of Taino Peoples, Project Access Global Training Caucus, noted the recent decision of the Human Rights Council to appoint a Special Rapporteur on truth, justice and reparation and guarantees of non-recurrence. It proposed that the Permanent Forum’s Expert Group Meeting consider, within the next year, the development of conflict resolution and peacebuilding models, based on a framework set out in the relevant articles of the Declaration. Finally, she proposed that traditional and indigenous holders of knowledge and practice, as well as indigenous women and youth, attend the Expert Group Meetings. David Lawson, United Nations Population Fund (UNFPA) representative to the Congo and Director of the UNFPA Country Office in Gabon, said that with the numbers of indigenous peoples of Congo having decreased sharply since 2007, their very existence was at risk. Indigenous communities in that country struggled with high maternal mortality, and increased vulnerability to sexual violence due to isolation. Another key challenge was that those communities continued to practice medicine in ways that contradicted modern medical procedures. Yet, the Congo Government was committed to addressing the situation and had drawn on the advantages of UNFPA to provide technical and other assistance in that regard. He said the agency’s main objective was to reduce maternal and infant mortality among indigenous women and newborns, and to prevent HIV infections and adolescent pregnancies. UNFPA had contributed to a legal reform process under way in the country, including in the formulation of policies and programmes that recognized the importance of increasing access to culturally acceptable sexual and reproductive health services. He also noted that, with legislative elections set to be held this year, the Fund was working with indigenous women, local authorities, parliamentarians and the Congo Government, with financial support from the United States, on an innovative program aimed at enhancing indigenous women’s participation in policy decision-making processes. That initiative would help ensure they would be able to vote in July and in local polls next year, as well as prepare them to run for elections themselves. Juan Pablo Crisistono (Chile) said that Chile, to work with indigenous peoples — at times in a broadened institutional structure — had adopted instruments with an indigenous focus. To encourage participation — and compliance with ILO Convention 169 —Chile had developed, with indigenous peoples, plans for development, training and support. Chile was working hard to ensure it had regulations to govern a consultation process. From 2012-2013, the Government would undertake constitutional reforms to recognize indigenous peoples and the multicultural nature of Chile. Scholarships had been given to first peoples, especially for university studies. Indigenous peoples were meeting the Millennium Development Goals and the Government was working to obtain better information, so that policies could be better focused on indigenous peoples. Danka LittleChild, International Indian Treaty Council, condemned the Doctrine of Discovery in its past and current manifestations. Its devastating impact had been seen in continued violence, imposed development, destruction of sacred sites and forced relocation of indigenous peoples. She recognized recent advances in the international arena in dispute resolution between indigenous peoples and States. She cited the 20 April 2012 adoption of strong language at the fourteenth session of negotiations for the proposed American Declaration on the Rights of Indigenous Peoples in Washington, D.C. In that context, she recommended the development of models for conflict resolution, restitution, redress and peacebuilding using the framework offered through the Declaration in articles 27, 28 and 40. The Expert Group Meeting would offer indigenous peoples a chance to discuss such ideas. She strongly urged the Permanent Forum to recommend that its name be changed to the “United Nations Permanent Forum on the Rights of Indigenous Peoples”. Alejandrp Luna Ramos (Mexico) shared the Forum’s belief that there must be compensation for the exclusion that indigenous peoples faced. He referred to the Doctrine of Discovery in that context, and policies of domination. Mexico understood the need to combat the exclusion faced by indigenous communities, especially by providing electoral justice to guarantee peoples rights and defend the rights of citizens and communities. “With electoral justice, we redress social injustice,” he said. In Oaxaca and Michoacán, actions had been taken in defence of electoral justice, he explained, describing the findings of one particular case. In that context, he underlined the importance of full recognition of indigenous customary law; the exercise of redressing deficiencies in reports presented by indigenous peoples; respect for the rights to self-determination and self-recognition; and respect for the right to consultations, in order to understand whether elections should take place under the ordinary system or in accordance with the traditional system. Catherine Davis, Maori Caucus, recommended that, in recognizing the urgent imperative to remedy the profound prejudice her peoples faced, the Permanent Forum should urge the Government of New Zealand not to implement any findings from its current constitutional review process without the free, prior and informed consent of the Maori peoples. New Zealand’s human rights protections were fragile, as Parliament could routinely pass discriminatory legislation. While she noted that yesterday the Government’s representative had noted the “fundamental importance” of the Waitangi Treaty, she stressed that it was the Maori translation — not the English version — that remained of fundamental importance. Her delegation also believed that the ongoing constitutional review was merely cosmetic and that many of the changes under consideration were not in line with the aims of the Declaration on the Rights of Indigenous Peoples. Tine Moeh Smith (Norway) said the rights of the Saami people had been protected in that country since 1988. The relevant provisions of the Constitution had stressed that the Norwegian Government would ensure that the Saami culture and way of life was to be maintained and considered “a natural and historic” part of Norwegian society. It also stated that Norway had been founded on the land of two peoples, Saami and Norwegian. Saul Vicente Vasquez, Permanent Forum expert from Mexico, said large multinational corporations continued to implement the Discovery Doctrine today, with “conquests” that included seizure of land and the erasing of fragile indigenous cultures. He cited relevant reports that hundreds of millions of hectares of land were sold each year “in the name of so-called civilization”. What was worse was that solutions to many of today’s challenges — climate change, food insecurity — actually perpetuated the conditions that had led to them, including consolidating power in a few countries and placing a handful of institutions in charge of implementing so-called globally agreed initiatives. “The Declaration is the instrument we need to oppose and reverse the effects of the Doctrine of Discovery,” he said, calling for full recognition of the rights of indigenous people in all laws and polices worldwide. He also called for the name of the Forum to be changed to the “Permanent Forum of the United Nations for the Rights of Indigenous Peoples”. In addition, he called for a study on the creation of a mechanism to solve disputes between nation States and their indigenous peoples. Job Morris, San Caucus, said that the San of Southern Africa called for recognition of their land and resource rights in all the categories of land in that region — State land, freehold land, communal land, conservancies, wildlife management areas and reserved areas. The group also called for close consultation on all development projects, including those involving extractive resource exploration and exploitation. In all that, there should be no involuntary relocation from protected areas, including national parks, game reserves and monuments. He went on to say that San and other Africans rejected the Discovery Doctrine. “We have lived on the African continent for millions of years and occupied and utilized all of the habitats of the continent for years before Europeans arrived,” and he called on Southern African Governments, the Southern African Development Community (SADC) and the African Union to recognize their role “as stewards and custodians of the Earth”. Kate Gumley (Australia) said her country’s legal and political systems looked to address the legacy of European settlement and work toward a reconciled future. On 2 June 1992, the High Court handed down the landmark “Mabo” decision, recognizing for the first time the existence of a category of indigenous settlement to land that had, in some circumstances, survived contact: “native title”. The Government was committed to building stronger relationships with indigenous peoples based on mutual respect, which was why it delivered a national apology to indigenous Australians on 13 February 2008. Moreover, Australia was building goodwill by establishing the National Congress of Australia’s First Peoples, she said. The “Closing the Gap” strategy aimed to improve the lives of indigenous Australians in education, housing and employment. On 8 May 2012, the Government released its 2011-2012 budget, which provided $526 million over the next five years to close the gap by boosting education, health and family services. It aimed to increase opportunities for economic participation and employment for indigenous Australians. Michael Gooda, Australia Human Rights Commission, recommended the Permanent Forum urge States to respond to the First and Second Decades on the World’s Indigenous Peoples Programmes of Action by reviewing their constitutions and laws to ensure indigenous identities and rights were protected. The Permanent Forum should commend those States engaged in processes to recognize indigenous peoples in their constitutions and encourage them to ensure that the process of recognition adhered to the Declaration’s principles. It should also urge States to engage with indigenous peoples on what was necessary to bring the laws into compliance with the Declaration and the core treaty rights it incorporated. He said the Australian Constitution had originally prevented Aboriginal and Torres Strait Islander people from being counted as Australians. To this day, it allowed voting restrictions based on race. It did not recognize the rights that Aboriginal and Torres Strait Islander peoples had by virtue of being indigenous peoples of Australia. Anti-discrimination laws passed by Parliament could be amended, suspended, repealed or overruled by subsequent legislation. Australia must entrench non-discrimination in the Constitution. In 2010, an expert panel was appointed to consider options for recognition of Aboriginal and Torres Strait Islander peoples. He urged the Government to consult with them to ensure a positive outcome when Australians were asked to vote. Lucas Swanepoel, Permanent Observer Mission of the Holy See, reiterated that indigenous peoples and others that were to be discovered by Christians were not to be deprived of their liberty. They could enjoy liberty and possession of their property. That behaviour was outlined in the 1537 Papal bull, and reinforced in 1741 through other encyclicals and decrees. In 1987, Pope John Paul II reaffirmed that position. The forced conversion of non-Christians was condemned by the Second Vatican Ecumenical Council. The idea that “wars of conquest” were justifiable was incompatible with the documents of that same Vatican Council, he explained. The Church recognized indigenous rights to education and development. The Holy See had always sought dialogue and reconciliation. It had conducted dialogues with indigenous peoples from around the world to reconcile the past and build a future that respected all peoples’ rights. Brighton Dawn Finger, Global Indigenous Youth Caucus, reminded the Permanent Forum that earlier in the day, while some of the Caucus’ members had stood peaceably to bring attention to the lack of participation of youth in the Forum’s work, many youth participants had had their accreditation revoked or had been escorted from the premises, while still others had been barred from entering the United Nations “simply because of the way they looked”. All that was clear proof that the effects of the Discovery Doctrine were still being felt and the rights of indigenous people were still being denied. She called for the General Assembly to cancel altogether the mandate of the World Intellectual Property Organization (WIPO) — “the world piracy organization” — as that agency’s policies continued the exploitation of cultural heritage through the market economy and attempted to “legitimize theft from the inner sanctum of life itself”. The “bio-colonialism” perpetrated by the Convention on Biodiversity’s Nagoya Protocol, in conjunction with the World Trade Organization agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), must also be rejected. Celia Hernandez Rodreguez, Continental Network of Indigenous Women of the Americas, said that the Discovery Doctrine had changed the face of indigenous societies, and had been especially harmful to women and children. As it was based on European Feudalism, the Doctrine had imposed those views on marriage and home life and had raised the needs and wishes of men over and above those of women and children. The binding effects of that had been the loss of leadership roles by women and the overall denegation of their position in society. The Doctrine aimed to ensure that women “could never be other than what general society thought she should be”. The use of violence against indigenous women and the restrictions placed on those women continued to ensure that they could not exercise autonomy over their own bodies. To repudiate and reverse the Doctrine’s ill-effects, she called for States to review and repeal laws that reflected the sexist and ethno-centric elements of the dogma. All States must adopt the Declaration and integrate its Articles as binding national laws, she said. David Crispin Espiniza, Consejo Nacional de Ayllus y Markas del Qullasuyu (CONAMAQ), said that in Bolivia, there was a distinction between constitutional design and practice. Just as one “could not cover the sun with a finger”, one could not overlook the violation of collective rights. He urged that the State Constitution be respected. “We are being prevented from exercising our rights to autonomy and self-government,” he said, adding that indigenous people must regularly tackle financial and institutional obstacles. They had not been allowed to elect their representatives through their own procedures. A number of candidates self-identified as indigenous peoples had been subjected to a process of “pre-selection”. Community democracy practices had been ignored. That was an act of bad faith. He said the Government had been urged to guarantee indigenous peoples’ right to consultation and to free, prior, and informed consent, in line with the Constitution. The Government had not complied with those principles, as it wished to consult only after it carried out its activities. Such unconstitutional consultations had serious consequences, as had been seen in recent clashes over mining concessions. To avoid such conflict, CONAMAQ had proposed a consultation framework, to which the Government had not complied. He urged the United Nations to activate sanctions, due to Bolivia’s non-compliance, in order to stop the hostility towards indigenous peoples. Abubakar al-Bashir, North African Indigenous Caucus (TUNFA), said his caucus dealt with the situation of nomadic and traditional communities in a diverse group of countries that included Algeria, Libya, Niger, Mali and Burkina Faso. He added that in the name of socio-economic development, Governments in his region generally pursued policies that either marginalized indigenous peoples or tried to push them towards economic assimilation. That situation needed to be addressed, especially regarding territorial and pastoral structures. One major factor in finding solutions to that issue was access to and control over water sources. Such access was vital for the survival of nomadic communities in and around the Sahel. Tuareg groups were being particularly affected by the policies of regional Governments that contravened the Declaration on the Rights of Indigenous Peoples. In the closing remarks on the special theme Panellist Robert Williams, Professor of Native American Studies, University of Arizona, said a number of interventions had been heard on the Doctrine of Discovery, and the use of legal principles to justify the expropriation and theft of indigenous lands. Speakers had cited the use of “terra nullius” in Australia and Africa, and the Regalian Doctrine in the Philippines. Regardless of the names of such instruments, their intent was the same: to expropriate indigenous lands and facilitate their transfer to the colonizing or dominating nation. It was indisputable that such principles were clearly based on racist and unscientific assumptions, he said, which explained the repeated and compelling calls for the General Assembly to renounce such documents, and to make it clear that they were illegitimate, and could not be used by States as claims to indigenous lands, territories or natural resources. Assembly action was essential because of the false position that territorial sovereignty asserted under those doctrines was a fact — a “we’re sorry, we can’t do anything about it” approach. On the issue of temporality, there was a view that unlawfulness must be determined by prevailing law at a given time, he said, but which law: that of the colonizer or the indigenous people? A colonial mindset was reflected in many State approaches in trying to resolve land claims, he said, citing Canada’s land claims process in that regard, which was typical of a failed approach. Canada had negotiated treaties with the proviso that the treaties were not intended to resolve historical claims. Rather, Canada said they were designed to assert certainty — notably by modifying Aboriginal rights title. “We’re told they must be forward-looking to provide a basis for economic development,” he said. He had been impressed by a suggestion by the Saami for a special mechanism to be created under United Nations auspices to investigate land claims. That would help ensure implementation of articles 28 and 37. Panellist Moana Jackson, Maori Lawyer, New Zealand, said that during the discussion, there had been an “astounding” silence by States that had benefitted from the Doctrine of Discovery. One could only surmise that they presumed that the legitimacy under the Doctrine still held. “That is, at best, unfortunate and at worst an evasion of their responsibilities,” he said. New Zealand’s remarks were “blatantly dishonest” in the assertion that its relationship with indigenous peoples was particular and based on the Treaty of Waitangi. The delegate failed to say that while that treaty was being negotiated, the British had exercised the Doctrine of Discovery over the land twice. It was remarkable that New Zealand had chosen to ignore that fact. Finally, he had heard the disturbing news that the youth caucus had been banned from attending future sessions of the Permanent Forum. Some had had their badges removed because they had protested this morning. It was unacceptable that any young people should be banned simply for stating their rights. “That is at best a colonizing action on the part of this organization,” he said. Valmaine Toki, Permanent Forum Member from New Zealand, said it was undisputed that the Doctrine of Discovery had been used to alienate and violate indigenous rights to land and culture. The process of redefining relationships through constitutional reviews provided an important lens to understanding the Doctrine, and outlining a vision for reconciliation, peace and justice. She suggested a return to an indigenous perspective in such constructive agreements. It was imperative that discussions continue among States, the United Nations and indigenous peoples, in order to build a future based on mutual respect, trust, equity and justice. Chief Oren Lyons, speaking on behalf of the Onondaga Nation, said that with the General Assembly’s adoption of the Declaration in 2007, indigenous people had finally “taken their places at the table of humanity.” Being at the table was very important because, according to an old Native American adage “if you’re not at the table, you’re probably on the menu.” And feasting had indeed been going on, with the ancestral lands of indigenous people the main course. But, after centuries of carnage that could be traced back to the Catholic Church and the Christian Crusades, the first peoples were now demanding an accounting. What the world community now called “international law” actually amounted to six centuries of crimes against humanity. The laws of nature, which were at the core of the lives and livelihoods of indigenous peoples, would “eventually win out.” Meanwhile, all peoples of the world would need to cooperate; living in a spirit of collaboration rather than competition. That was vital because the planet was “out of balance” and in order to save it and all the species that dwelled upon it, the past would have to reconciled, and the future would need to be secured through collaborative efforts. Finally, he called for a study on the construct of the Discovery Doctrine and its impact to be compiled and submitted to the Permanent Forum by 2014. As for the work of the Forum, he asked: “When are we going to become ‘peoples’ instead of ‘issues’?”

The Permanent Forum turned briefly to a dialogue on land use and participatrouy mechanisms in the Arctic as Expert Dalee Sambo Dorough, from the United States, introduced the Permanent Forum’s study on the Indigenous participatory mechanisms in the Arctic Council, the Circumpolar Inuit Declaration on resource development principles in the Inuit Nuaat and the Laponia management system (document E/CN.9/2012/10.), while Expert Anna Naykachina, from the Russian Federation, introduced the study on the impacts of land use change and climate change on indigenous reindeer herders’ livelihoods and land management, including culturally adjusted criteria for indigenous land use (document E/CN.19/2014.4). Ayasa Mukabenova, Senior Councillor, Ministry of Foreign Affairs of the Russian Federation, said reindeer husbandry was practiced by indigenous communities. It was a way of life for many peoples and it was protected by the Government, despite the lack of a federal law. She said that reindeer enterprises and large companies should establish partnerships, including regarding ownership. She said that reindeer husbandry was being negatively impacted by climate change and that should have been better reflected in the study. There was also a need to ensure that future studies focused on Canada and Alaska, in order to ensure the document was more balanced. She suggested deleting paragraphs 48, 47 and 53 in the study and replacing them with recommendations for all concerned Governments dealing with reindeer herding. Aqqaluq Lynge, Arctic Indigenous Peoples Caucus, welcomed the comprehensive study of the work of the Arctic Council, and said that it constantly worked to strengthen its capacity, an endeavour that required a great deal of fundraising. In the future, the Arctic Council and its Secretariat would be located in Norway. He noted that the Council had last year negotiated the historic agreement on “Aeronautical and Maritime Search and Rescue in the Arctic”. The Council was a unique institution where indigenous peoples, organizations and Governments were working together and could be a model for other regions of the world, “if the respective Governments were democratically motivated”. He went on to say that climate change was driving many trends in the Arctic region, including increased exploration of what multinational corporations were beginning to refer to as “the last frontier”, which might change demography of the region by importing cheap labour for large-scale projects. “The world needs to know that the Arctic is already inhabited; it is not a scientific laboratory; it is not a museum. It is our home,” he declared. Marten Grunditz (Sweden) said his country was currently the 2011-2013 Chair of the Arctic Council. The region was heavily affected by climate change, technological development and increasing commercial activities. Temperatures were rising twice as fast as in other places on the planet. People living in the region had developed unrivalled coping and resilience skills. The Council provided a good example for how indigenous peoples participated in an intergovernmental structure. The six permanent participant organizations were integral to its work. The Council made decisions on programs and projects that were relevant for sustainable development. He said Sweden’s chairmanship prioritized issues to promote environmentally sustainable development, and consolidated the positive cooperation between the Arctic States and indigenous peoples. Highlighting some of those efforts, he said the profile of Arctic issues in international forums on climate change had been raised. Measures to reduce the presence of short-lived climate forcers — such as black carbon and methane — could play a significant role in limiting climate change. Environmental protection measures were under way, one of which aimed at increased use of environmental impact assessments for mining, shipping and oil extraction. Other efforts focused on the people of the Arctic, prioritizing food and water security, as well as language preservation. Serena Heckler, (UNESCO), said UNESCO attended the first board meeting of the Sustaining Arctic Observing Network in Tromso, Norway, in January, where it presented a proposal to support community-based observing systems, based on indigenous knowledge. On climate change, she said UNESCO would co-convene with the International Council for Science a session during the Forum on Science, Technology and Innovation for Sustainable Development during the Rio+20 Conference. It also would launch a technical report on indigenous knowledge and climate change assessment and adaptation, she said. UNESCO recognized the key role of culture in sustainable development, as well as the nexus between biological diversity and cultural diversity. In June 2010 and April 2012, UNESCO and the secretariat of the Convention on Biological Diversity organized conferences on their joint programme of work related to biological and cultural diversity. Rodion Sulyandziga, Association of Indigenous Peoples of the North, Siberia and Far East of the Russian Federation (RAIPON), said the industrialization of the Arctic region was taking place in the context of climate change, and the next decade would see serious trials for ethnic survival and development, amid the impact of climate change on traditional land use and expanding access to mineral resources. There would also be trials for Governments and businesses, and new standards set for social responsibility. He welcomed the Arctic Council as an example of cooperation between States and indigenous peoples. Indigenous rights to land were a most pressing issue. “The North should not be a colony for the use of resources,” he said. The main resource was not oil or gas, but people. Suvvikki Silvennoinen (Finland) said that, despite their rich cultures and identities, indigenous peoples were often among the most marginalized groups in society, deprived of participation in decision-making that affected their lives. Finland’s Constitution guaranteed the inviolability of human dignity and equality of every person’s fundamental rights. It recognized the status of the Saami as an indigenous people, and protected their right to collectively maintain and develop their language and culture. She said an objective of the rights reform carried out in the 1990s was to increase the direct applicability of human rights by the courts in their decisions. Thereafter, they referred increasingly to those rights in the reasoning for their decisions. Legislative amendments had been made to improve the consideration of the status of the Saami as an indigenous people. The new Mining Act and Water Act, adopted in March 2011, prohibited measures that impaired their opportunities to engage in their culture and traditional livelihoods. They included provisions on hearing the Saami Parliament and on the right of that Parliament to appeal against decisions made pursuant to those laws. Mikhail Pogodaev Association of World Reindeer Herders, said that reindeer husbandry was an ancient way of life for at least 20 indigenous groups living in at least nine countries. As economic development expanded and climate change encroached, a new relationship must be forged among herders, national authorities, industries, and environmentalists. Authorities must be provided with better management tools. He said the permanent loss of pasture was the most critical issue for herders. There was a need to find a way to counter the impacts of climate change, as well as to develop and implement sustainable management plans. He recommended that the Permanent Forum carry out a new study on the impact on herders of the loss of land. Moreover, the Forum should work to ensure that any changes to policies and arrangements that affected the world’s reindeer herding communities must be based on herders’ traditional knowledge and ensure that herders and other nomadic societies were actively included in decision-making processes. Marianne Lykke Thomsen, Senior Policy Adviser, Government of Greenland (Denmark), encouraged the Permanent Forum to continue its good practice of carrying out thematic studies as a means to fostering information exchange and sharing of best practices among stakeholders. She said that while the Arctic Council was still a relatively young body, it had drawn increasing international attention because of its unique structure and methodology, especially concerning its studies on the impacts of climate change on the region. It had, over time, increased its focus on the human dimension and she expected that practice to continue in the future. Anja Jonassen, Sami Council, said that since 2006, the Norwegian Supreme Court had held that reindeer husbandry would be governed by property laws. While that could have been seen as a step forward, in practical terms the livelihoods of reindeer herders were still being denied in favour of companies that wished to use traditional land and pastures for their own purposes. To achieve proper compensation and protect Saami livelihoods, the herders must be given the opportunity to take their claims to court. However, a single herder could not bear the costs of what were traditionally lengthy judicial proceedings. Therefore, she said, legal aid was absolutely necessary to help herders protect their livelihoods.

The Firth meetng of the Fourm rang with strong calls on former colonial Governments to reassess their constitutional arrangements and restore the “first nation” status of native peoples, and on the Catholic Church to openly denounce the centuries-old “Doctrine of Discovery”, which many civil society representatives said was the “shameful” root of the humiliation and marginalization indigenous people still suffered today. As the Permanent Forum continued its dialogue with indigenous peoples groups and Government officials on the impact of the Doctrine — the fifteenth century Christian dogma that provided religious justification for the seizure by early explorers of native lands and resources, and which later became embedded in international law and policy — speakers broadly agreed that it was vitally important to remove the disturbing remnants of the concept still evident in the Constitutions of the United States, Canada, Australia and New Zealand, as well as in African countries, and countries of Latin America and the Caribbean. A representative of the National Congress of Australia’s First Peoples said that in January, an Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples had presented a consensus report to the Australian Government calling for a referendum to be held on the Constitution. Such a measure would, among others, repeal its section allowing State Governments to target racial groups or exclude them from voting, and ensure that indigenous languages would be recognized as a unique part of Australian heritage. A speaker from the Guatemala-based Organismo Naleb’ said the Doctrine of Discovery was linked to the “expansion and voracity” of capitalism, as well as the assertion that some peoples dominated others. That superiority impacted every facet of indigenous peoples’ lives. Therefore, reparation should not be solely for the effects of the colonial past, but also for present day actions, she said, where political, legal and economic systems eradicated indigenous ones. In response to calls on the Church for rapid action, a representative from the observer delegation of the Holy See, reiterated that Papal bulls were an “historic remnant with no juridical or spiritual value”. He invited delegations to consult the Holy See’s website to alleviate some of their concerns. However, a former Permanent Forum member and a representative of Tonatierra rejected that statement as an attempt to remove all responsibility from the Catholic Church for both its past and present actions. “Indigenous peoples are here today to request full accountability for all parties involved in the historical implications of the Doctrine of Discovery,” she said. During the dialogue, several Government officials reported on their countries’ efforts to review their constitutional frameworks, with the representative of New Zealand explaining that her country was carrying out such an exercise. New Zealand did not have a single written Constitution, but a collection of constitutional arrangements drawn from a verity of sources, including the Waitangi Treaty. The process had begun in 2010 and was being led by New Zealand’s Vice-President and the Leader of Maori Affairs. An advisory panel had been established and was due to present its report in 2014, she continued, emphasizing that, throughout the process, the views of Maori communities were being actively sought. The review was wide-ranging, and covered such issues as Maori seats in Parliament, their electoral participation, and whether New Zealand needed a written constitution. The Panel had indicated that it would welcome views throughout the process on ways to reach as many people as possible. Finally, she said, the Government was awaiting the study to be carried out by the Permanent Forum on constitutional reform, which would focus on Bangladesh, Australia and New Zealand. Also participating in the dialogue were representatives of the following: International Native Tradition Interchange; Indigenous Peoples Organisation Network of Australia; Enlace Continental de Mujeres Indigenas – Región Sudamérica; Chihene Nde Nation, San Carlos Apache Nation, Lipan Apache Women Defense; the Koani Foundation; Anglican Consultative Council; Foundation for Research and Support of Indigenous Peoples of the Crimea; Assyrian Aid Society; Parbatya Chattagram Jana Samhati Samiti; New South Wales Aboriginal Lands Council; Tribal Link Foundation, Inc. – Nepal; and Tinhinan. Speaking as observers in the Forum were the representatives of Canada, Honduras, Nicaragua, South Africa, Colombia and Guatemala. Representatives of the United Nations Development Programme (UNDP) and the United Nations Population Fund (UNFPA) also spoke. Toriko Yasukava, United Nations Resident Coordinator in Bolivia, United Nations Development Programme (UNDP), said the promotion of indigenous rights were a priority for the United Nations in Bolivia. The Declaration on the Rights of Indigenous Peoples carried the same status as a law in Bolivia, aiming to promote development that guaranteed human rights for everyone in harmony with nature. The United Nations Resident Coordinator was working with the Guaraní and the Parapetí communities to develop a strategic development plan. It also was combating the dreadful practice of slavery and forced labour, and supporting communities that had been freed under that plan. She went on to say that a complaints mechanism had been established. She also welcomed the decision to extend the consultation process, saying that her office had organized capacity-building and information-exchange workshops to ensure there was a right to consultation. In parallel, her office had trained its own officials on those issues. The United Nations was striving to overcome inequalities and ensure that conditions for dignified living prevailed. The Permanent Forum’s focus on women dovetailed with Bolivia’s declaration of 2012 as the year to combat all forms of violence against women. Her office supported the Secretary-General’s campaign against such abuse. Gloria Lopez, Vice-Minister of the Secretariat for Indigenous Peoples for Honduras, said that on 12 October, President Porfirio Lobo Sosa had established the indigenous peoples office, which would work on the basis of broad consultation with indigenous peoples. It would also aim to promote the rights of indigenous peoples to maintain their own cultures and livelihoods. As a first step, she said, the Secretariat had proposed that Honduras change its Constitution to officially declare the country “multi-ethnic and multi-lingual”. Evelyn Taylor, Deputy and Coordinator of the Autonomous Government of theNorth Atlantic Region of Nicaragua, said Nicaragua was working to fully implement development plans and projects in the national reconciliation and unity plan, which was led by the President. Among other efforts, she said Nicaragua also was implementing the fifth stage of law 445, on the restitution and protection of the right to collective property. Its focus transcended any material concept of land. In the area of health, Nicaragua was working to strengthen its view of the universe by asserting “ethnic identity” in the Constitution. It was consolidating territorial governments that held land title. The family code and a law combating violence against women were being reformed and bore the imprint of the indigenous cosmic vision. Alfonso Barragues, Human Rights Adviser, United Nations Population Fund (UNFPA), staed that. UNFPA would continue to promote the Declaration at the regional and country levels, and provide technical assistance, at the request of Governments, to ensure that laws were in line with it. At the global level, UNFPA had chaired the inter-agency support group for indigenous peoples, he said, which promoted coordination and knowledge sharing. In 2011, UNFPA joined the United Nations indigenous peoples partnership, working with others to draft its operational guidelines and principles, which assisted country-level relationships between Governments and indigenous peoples. To address the high maternal and infant mortality among indigenous women and youth, UNFPA was working to increase indigenous peoples’ access to culturally acceptable services. In that vein, UNFPA had promoted dialogues between traditional health systems and western health systems, while promoting community-based interventions to save women’s lives. Masenjana Sibandze, Deputy Director-General, Department of Traditional Affairs of South Africa, said the special theme was very important to his Government, which had elaborated policies aimed at addressing the inequalities created by the past, and towards ensuring a better life for all Africans. Turning specifically to address the situation of the Khoi and San peoples, he said that the Restitution of Land Rights Act of 1994 had given effect to the right of restitution for lands dispossessed from persons or communities as a result of past discriminatory laws and practices. That Act also set up a mechanism through which those rights could be realized. It had also led to the establishment of a commission, which received claims, investigated them and attempted to resolve them through mediation. Also established was a Land Claims Court, charged with adjudicating all relevant disputes. He explained, however, that the country’s Interim Constitution (1993) had stated that the rights of restitution would be available for dispossessions that had taken place from 19 June 1913, and that the 1994 Act had further required that such claims be lodged by 31 December 1998. To date, some 12 restitution claims had been settled in favour of the Khoi and San communities. He said that the restitution process had not been finalized and there were more than 35 claims outstanding. Moreover, indigenous communities had called on the Government to review the cut-off dates, to accommodate those who were dispossessed before 1913 and those who had not yet lodged their land claims. The Government remained fully committed to working in partnership with all relevant stakeholders to find a resolution to past injustices, he said. Lori Johnston, Yamasi People and the Koani Foundation, urged the Human Rights Council representative attending the Permanent Forum to explain why the Council did not consider indigenous peoples as humans to be protected by the Geneva Conventions. When would the Council sanction occupiers for violating the Conventions with wars of aggression? Julio Cesar Xacay, Member of National Congress of Guatemala, said his country was in a dramatic situation. The Mining Authority had revealed there had been more than 600 requests for mining prospecting licenses that could be granted this year. It was contradictory that Guatemala should allow environmental impact studies to be carried out by the companies that wished to mine the land. The Government was not ensuring that those studies were impartial. One independent study had shown that some Guatemalan environmental assets had been irreversibly impacted. While mining had brought profits to the country — in the areas of health and education — there was a danger for indigenous peoples and the environment, a challenge that required full attention. People must be made aware of the serious situation. Municipalities must mobilize to protect forests, waters and other sacred lands. Ashur Eskya, Assyrian Aid Society, said his group joined others in lamenting the loss of land, language and culture of indigenous peoples worldwide. Indeed, as his people knew well, spreading lies and disinformation about indigenous cultures was as damaging as any war. The Assyrian language must be taught in areas where people lived in order to preserve it. He recalled that Assyrians were represented in the Iraqi Government, and that country had, since 1994, recognized the necessity of teaching Syriac in schools. While he welcomed such efforts, including in “ Kurdistan”, much more remained to be done. In that regard, he called for action to be taken by the Permanent Forum to ensure that ancient traditional languages and cultures be protected and preserved. Jalisa Ross, United Methodist Church, said the church would work to eliminate the Doctrine of Discovery as a means to subjugate indigenous peoples and lands. It would start a process of healing relationships, to continue throughout its quadrennium. In that work, it would undertake a process of self-examination, confessing the church’s participation in continuing the effects of past trauma. It would work to build relationships though listening, and work beside indigenous peoples to find solutions to current problems. Among other efforts, the church would also hold repentant services for healing relationships with indigenous peoples. She agreed with the recommendation for convening an expert group meeting, which would be a step in the right direction. She had been a victim of the violent crime called the Doctrine of Discovery. “Hold tight to each other, because it is only by moving forward with each other that we can make change happen.” Tonya Gonnella Frichner, Tonatierra, called for collective corrective action to be taken at all levels to violations of indigenous peoples’ human rights. She went on to stress that the process and content of the 23 March Permanent Forum on the Doctrine of Discovery, held at the Arizona State capital, be integrated into discussion on that theme, as an example of best practices. She requested the Special Rapporteur on the Rights of Indigenous Peoples to communicate with the Arizona State Department of Education to inquire about the demand to integrate the Permanent Forum’s study on the Doctrine into social studies curricula. Mangal Kumar Chakma, Parbatya Chattagram Jana Samhati Samiti, said that, as in many other parts of the world, the indigenous people of Chittagong Hill Tracts were also the victims of development, militarization and transmigration of their population. He said that it was clear the people of the Chittagong Hill Tracts had the right to redress for past illegal occupation of their lands. The Bangladesh Government had signed a political accord with his organization in 1997 and had since stated its intention to move ahead with its main provisions, including paving the way for peaceful development opportunities and meaningful engagement of the people of that area. However, key issues, such as the declaration of preservation status for tribal lands and introduction of a special Governance system in the Chittagong Hill Tracts, were yet to be implemented. The authorities had done very little and the situation there remained virtually unchanged. As that was the case, he encouraged the Permanent Forum and the wider international community to try and influence the Government of Bangladesh to implement the Accord, and set out a time-bound road map in order to address outstanding matters. Pratap Singh Nachhiring, Tribal Link Foundation, Inc. — Nepal, said that, although Nepal was party to various human rights instruments, including ILO Convention 169, it systematically denied indigenous peoples their internationally recognized rights. The Government had failed to ensure indigenous peoples’ rights to freely choose their own representatives and participate equally in the Constituent Assembly, per ILO Convention 169, and other instruments to which it was party. The Special Rapporteur on the Rights of Indigenous Peoples and the Committee on the Elimination of Racial Discrimination had recommended establishing participation and consultation mechanisms in the constitution-making process. He said the Government had failed to adequately ensure indigenous peoples’ participation in the constitution-making process, which would likely cause irreparable harm. To protect the dominance of high-caste groups, major political parties had met outside the Constituent Assembly to make key decisions, harming indigenous peoples’ rights to participation, power sharing and self-governance. The new constitution would be promulgated at the end of May. The Supreme Court refused to extend the Assembly’s term, despite the fact that many key issues had not been resolved. As such, the Assembly would be unable to hold public consultations to ensure those issues were satisfactorily resolved. Saboudata Aboubacrine, Tinhinan, spoke on behalf of indigenous people in north Mali — including the Tuaregs and Fulani — who had experienced conflict, drought and serious violations to their human rights to life, food and freedom of expression. Following the most recent rebellion, the region, since March, had been under indigenous peoples’ control, expressed through community meetings, protests and an “assembly of constitutions” of Azawad. The claiming and freeing of the indigenous territory of Azawad had forced 200,000 people to seek refuge in neighbouring countries. She said some agencies had used insecurity as a pretext to abandon local populations, making them vulnerable to humanitarian crises. She hailed the efforts of the International Committee of the Red Cross (ICRC) and others who continued to assist those peoples. She pressed United Nations organizations to improve the situation. Tuareg refugees who were students had been forced stop their studies. The Food and Agriculture Organization (FAO) should help Tuareg refugees who were losing their cattle, especially in Mauritania and Burkina Faso.

The Sixth and Seventh UNPFII sessions involved an intense debate as Forum participants engaged in a lively dialogue with the World Intellectual Property Organization (WIPO), pressing the Geneva-based body to reform in ways that afforded greater recognition of indigenous peoples in its decision-making processes and respect for their right to safeguard, preserve or promote traditional resources as they saw fit. For that dialogue, participants had before them a note (document E/C.19/2012/5), submitted by the secretariat of the World Intellectual Property Organization (WIPO), which summarizes action undertaken or planned by WIPO regarding indigenous peoples’ issues. Participants also had before them a note (document E/C.19/2012/9), summarizing five reports on the progress and implementation of the recommendations of the Permanent Forum, submitted by the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations Children’s Fund (UNICEF), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the secretariat of the Convention on Biological Diversity and the United Nations Population Fund (UNFPA). The discussion followed a presentation by Wend Wendland, Director of the organization’s Traditional Knowledge Division, who opened the dialogue with representatives of indigenous groups and Governments, saying that WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was in the process of elaborating an international legal instrument regarding traditional knowledge, genetic resources and traditional cultural expressions. Significant progress had been made over the past two years. The “fierce contest of ideas” would come to an end in the coming year, when WIPO’s 185-member States would make a final decision. He said that in the realm of WIPO’s work, protection meant that traditional knowledge would be protected by a system of mechanisms based on the measures, principles and values that afforded protection for intangibles. Mr. Wendland said his Division dealt with the areas to be covered in the instrument being discussed, traditional knowledge, traditional cultural expressions — “in daily life, inseparable from traditional cultures” — and genetic resources, as defined by the Convention on Biological Diversity. Indigenous peoples and many others were calling for greater recognition, safeguarding, preservation and promotion of traditional knowledge and cultural expressions. But, protection could mean different things, he continued, explaining that in the realm of WIPO’s work, it meant that traditional knowledge would be provided protection by a special system of mechanisms based on the kinds of measures, principles and values that comprised the system established for the protection of intangibles. “Turning to the work of WIPO’s Traditional Knowledge Division, he said that it promoted norm-setting regarding intellectual property and genetic resources, and provided technical assistance and capacity-building to States, indigenous communities, research institutions and museums, among others. “This does not mean force a square peg — traditional knowledge — into a round hole — the conventional system,” he added. Innovations based on traditional knowledge were generally patentable, he said, but the underlying traditional knowledge was generally unprotected. The basic question before the Intergovernmental Committee was whether that traditional knowledge base — which generally “belonged” to indigenous peoples — should be protected in the intellectual property sense. WIPO was extremely conscious of the sensitivities, and its member States had explicitly instructed it to work with United Nations human rights bodies to seek opinions from the Permanent Forum. Jennifer Tauli-Corpuz, WIPO’s Indigenous Property Law Fellow for 2012, said the Permanent Forum had made recommendations on process. An accreditation system had been set up and money was available to facilitate the participation of those wishing to attend the sessions through the Voluntary Fund for Indigenous people and local communities. “It’s a very open process,” she said. “Anytime an indigenous person wants to take the floor, he or she can do so.” Participating indigenous groups also could present amendments and proposals. In the debate that followed, indigenous delegates sporting “World Intellectual Piracy Organization” t-shirts launched impassioned pleas to dismantle the Intergovernmental Committee, which many said only barely masked States’ desires to appropriate indigenous resources. The fact that indigenous peoples’ proposals only found their way into negotiated texts with Government permission stood in marked contrast to professions of equality in the organization. “WIPO is a contemporary, monopolistic manifestation of piracy that magnifies the Doctrine of Discovery and Domination,” said a representative of the Global Youth Caucus, urging the General Assembly to revoke the mandate of the Intergovernmental Committee. “We will not allow WIPO to impose stewardship on us as it pretends to protect our traditional knowledge and cultural heritage.” Western modes of development only followed one paradigm, sidelining indigenous alternative models in the international arena. At a minimum, many speakers said, WIPO must amend its rules of procedure to ensure indigenous peoples’ full and equal participation in all processes that affected their well-being. Without such a move, it was completely unrealistic for indigenous peoples to engage in any meaningful way in discussions. “It’s not just about coming to Geneva,” said Kanyinke Sena, Permanent Forum Member from Kenya. Effective participation should mean that indigenous peoples could make submissions without Government permission. Also, the Permanent Forum continued its consideration of its special theme for the current session — the lasting impact of the Doctrine of Discovery — with a discussion on combating violence against women. Speakers emphasized that the humiliation, sexual abuse and marginalization indigenous women faced were rooted in the policies and precepts fostered by colonialism. Indeed, they said, the subjugation of women, indigenous women in particular, were clearly evident in State structures and business practices. While several Government representatives detailed their countries’ efforts to promote and protect the rights of women and girls, most of the civil society speakers said that such actions were insufficient to address the breadth of challenges indigenous women faced, especially to combat trafficking, domestic violence and workplace discrimination. Lamenting the engrained sexism that denigrated indigenous women and perpetuated negative stereotypes, one speaker demanded an end to the “indigenous equals backwards” attitudes and called on the Permanent Forum to step up its efforts to raise awareness about the important contributions indigenous women made to society as a whole. Several speakers also expressed the hope that the newly created United Nations gender entity — known as UN-Women — would devote special attention to combating violence against indigenous women. Saul Vincente Vazquez, Permanent Forum member from Mexico, reminded panellists of a study on indigenous intellectual property which stated that protections — like intellectual property rights or patents — were insufficient and intrinsically not appropriate, as they provided limited protection and aimed to promote use through sale or licenses. Subjecting indigenous peoples to such concepts would “divide everything up until nothing is left”. In April, in Mexico, reform of a federal law on vegetal varieties was to be approved, he explained. Indigenous organizations had opposed that change, as it would have been made in the framework of intellectual property, and lead to the privatization of seeds and traditional knowledge. Fortunately, the Agriculture Ministry was sensitive to those claims and the reform did not go forward. It also had taken account of a study by Erica-Irene Daes. He asked the WIPO panellist about ways to guarantee the protection of all parts of indigenous peoples’ intellectual property. Further, he wondered why there was no direct relationship between a legal framework that was consistent with human rights standards, and indigenous peoples’ rights. Prior consent referred simply to “beneficiaries” who were not clearly defined as indigenous peoples. In their role as observers, how were indigenous peoples’ contributions considered in the WIPO genetic resources committee? Indigenous peoples could make statements, but those statements were not allowed to appear in a negotiating text without the support of at least one Government. Indigenous peoples were not allowed to participate on equal footing with Member States. He invited WIPO to revise those procedures. Responding, Mr. Wenddland said the study by Erica-Irene Daeshad been a source for WIPO’s initial work. As had been rightly identified and recognized among States, the existing intellectual property rights system was not well-suited to protection of traditional knowledge and traditional cultural expressions. The Intergovernmental Committee’s work was not about forcing or assimilating traditional knowledge into the existing intellectual property system. It was about recognizing traditional knowledge as a form of intellectual property, and building a system of protection that drew on the kinds of values and measures found in the intellectual property rights system, but adapted to the particular features of traditional knowledge and needs of indigenous peoples, who were their holders. Property rights were “probably not” the right model for traditional knowledge. “We’re very concerned to avoid the danger that exactly has been identified with the privatization of traditional cultures, if that is not what is wanted,” he said. He could not comment on Mexico’s law. In terms of beneficiaries, he said indigenous peoples and local communities were mentioned as groups of beneficiaries, about which there was almost no doubt. But, there was controversy over whether there should be other beneficiaries. “Member States have put forward other beneficiaries such as families, individuals and nations. That discussion is not yet over,” he said. As for an insufficient alignment between the legal framework and indigenous peoples’ rights, he said there should be greater involvement of human rights experts in the Intergovernmental Committee’s work. WIPO would welcome more information on what that alignment would look like. The beneficiaries question would benefit from that discussion. As for the participation question, he said the Intergovernmental Committee — for a United Nations process — was “remarkably open”. What was missing was parity of status between indigenous peoples and member States. WIPO had been asked to write a report on the separate status of indigenous peoples, which would be ready in early June. At the end of the day, it was a question for Member States to resolve as they determined procedure. The chair of the Intergovernmental Committee did not have that power. The Secretariat was “at the very bottom of the pile”. Atama Katama, Tribal Link/Project Access Training Program, said that any mechanism developed at the Intergovernmental Committee must allow indigenous peoples to maintain control of their traditional knowledge in perpetuity. Moreover, they must be recognized as “rights holders” in any discussions. “We are concerned by negative trends regarding the lack of full, equal and effective participation in the Intergovernmental Committee process,” he continued, adding that it had been demonstrated that the most successful United Nations processes were those that guaranteed such participation of indigenous peoples. He was also concerned that some delegations, including the European Union, had suggested that the United Nations Declaration on the Rights of Indigenous Peoples did not cover the WIPO intergovernmental process. With such concerns in mind, he urged the Permanent Forum to remind all Member States and United Nations agencies of the primacy of the Declaration, particularly regarding intergovernmental discussions on issues that would affect the lives and livelihoods of indigenous peoples. Roger Jones, Assembly of First Nations, Grand Council of the Crees, Chiefs of Ontario, Canadian Friends Service Community, focused first on the Nagoya Protocol, voicing concern that the Convention on Biological Diversity was taking positions that undermined indigenous rights. It was trying to diminish their analyses of the Protocol’s problems and criticising the Permanent Forum for expressing such concerns. The Convention Secretariat was exceeding its authority in suggesting to the Permanent Forum which views should be embraced. He was concerned that the Convention Secretariat had provided 30 agencies with erroneous and prejudicial information about indigenous peoples and the Forum should inform the Secretariat of the inappropriateness of sending such a misinformed response. Grace Balawag, Tebtebba Foundation, Indigenous Peoples’ International Centre for Policy Research and Education called for the appointment of an indigenous co-chair of the Intergovernmental Committee, and called on WIPO to ensure that such indigenous representation was included in any working groups that were established during the process. As for WIPO itself, the organization needed to urgently develop an adequate policy regarding indigenous peoples. Fabiola del Jurado Mendoza, Indigenous Women of the Americas, said that, despite the recommendations that had been made regarding the treatment of indigenous knowledge and culture, official structures had been slow to take up those suggestions and indigenous peoples’ views continued to be ignored. Nevertheless, in some regions, processes were under way to preserve traditional knowledge, especially regarding genetic resources such as plant pigmentation and medicinal benefits She called on UNESCO to educate stakeholders on the important role indigenous communities, their customs and languages played in the daily lives of all people. Other Permanent Forum experts participating in the dialogue with the representations of the World Intellectual Property Organization (WIPO) were: Valmaine Toki, from New Zealand; Simon M’vidouboulou, from Congo; and Saul Vincente Vazquez, from Mexico. Groups and Caucuses participating included: The Arctic Caucus; North American Indigenous Peoples Caucus; Tribal Link/Project Access Training Programme; Foundation for Aboriginal and Islander Research Action (FAIRA); Global Indigenous Women’s Caucus; African Caucus of Indigenous Peoples; Assembly of First Nations/Council of The Crees/Chiefs of Ontario/Canadian Friends Service Committee; International Indian Treaty Council; Tebtebba Foundation, Indigenous Peoples’ International Centre for Policy Research and Education; Indigenous Women of the Americas; and the Maori Caucus. The representative of Mexico also spoke on that issue. A representative of the United Nations Population Fund (UNFPA) presented the Inter-Agency Support Group on Indigenous Peoples Issues, and a representative from the New York office of the United Nations Environment Programme (UNEP) provided a brief overview of that agency’s contribution. The representative of Denmark participated in that discussion. A representative of the Indigenous Peoples Council on Biocolonialism (IPCB) also spoke.

Alfonso Barragues, Human Rights Adviser, United Nations Population Fund (UNFPA), speaking in his capacity as chair of the Inter-Agency Support Group on Indigenous Peoples Issues, presented the report of the Group’s 2011 annual meeting. Generally, annual meetings considered how to strengthen cooperation to promote the human rights and well-being of indigenous peoples through joint activities. Such work was “principled and norm-based”, and viewed constructive engagement on human rights as central to all undertakings. Participants at the 2011 meeting included delegates from 15 United Nations agencies, the Permanent Forum Secretariat, and two Permanent Forum members, he said. The substantive sessions addressed “population, development and indigenous peoples’ issues”. To a great degree, indigenous peoples were invisible, either because they were not formally recognized as a specific group with their own rights and entitlements, or because of the lack of reliable statistical data. Indicators were indispensable to keeping track of advances under the Declaration on the Rights of Indigenous Peoples, he said, noting that data disaggregation was also fundamental to identifying situations of multiple discrimination faced by indigenous peoples, as well as discriminatory patterns within indigenous communities. A more thorough understanding of those realities would require investments by, and strengthened capacity of, national statistical institutes. Indigenous peoples’ right to health — including sexual and reproductive health — was another lens for understanding the multiple deprivations underpinning health problems. At the recommendation of the Permanent Forum to make policy guides and practices more accessible, the Inter-Agency Support Group was currently defining how to integrate knowledge management platforms, he said. It also was working to translate the Declaration into action on the ground through the United Nations Indigenous Peoples’ Partnership, which involved the International Labour Organization (ILO), United Nations Development Programme (UNDP), UNFPA and UNICEF. Moreover, UNEP had involved indigenous peoples in the consultation process leading to the Rio+20 Conference, and engaged with them in “green economy” dialogues. From that experience, the Permanent Forum might consider recommending that States and the United Nations engage with indigenous peoples in the context of global, regional and national consultations on the post-2015 development agenda. Elsebeth Tarp, Senior Technical Advisor, Denmark, said her country had revised its international development cooperation strategy, which would from now on be based on a human rights-based approach to development. It would build on the principles of non-discrimination, participation, transparency and accountability. The new policy now specifically mentioned that Denmark would work towards increased recognition of indigenous peoples’ collective and individual rights. That position would be promoted in relevant forums, and environmental negotiations. Denmark would promote recognition of collective rights in its support to natural resources management, she said, and was arguing for acceptance of the principles of free, prior and informed consent in connection with the United Nations Collaborative Program on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD+). UNDP could play a more pivotal role in mainstreaming indigenous peoples’ rights and applying a human rights-based approach at the country level. Denmark wished to see United Nations agencies taking a much more active role in the country-level dialogue on indigenous peoples’ rights by providing space for Governments and indigenous peoples to meet, as well as space for bilateral donors and indigenous peoples. She agreed with the need for more data collection through censuses and surveys. In its afternoon session, the Permanent Forum concluded its consideration of its special theme — the enduring impact of the Doctrine of Discovery — with a special focus on combating violence against indigenous women. Permanent Forum member Megan Davis, from Australia, briefly introduced the expert group meeting report on combating violence against indigenous women and girls and application of Article 22 of the Indigenous Rights Declaration (document E/C.19/2012/6), and Mirna Cunningham Kain presented the study on the extent of violence against indigenous women and girls. Victoria Tauli-Corpuz also presented an Inter-Agency study on the topic. Civil society statements were made on behalf of the following: Global Indigenous Peoples Caucus, Global Indigenous Women’s Caucus; Asian Indigenous Peoples Caucus, North American Caucus; International Indigenous Women’s Forum; Africa Indigenous Peoples Coordinating Committee (IPACC); Inclusion International; Native Women’s Association of Canada/Assembly of First Nations/National Association of Friendship Centres/Grand Council of the Crees/Amnesty International; and the Continental Network for Indigenous Women. Participating as observes were the representatives of Mexico, Kenya, Finland and Nicaragua. Representatives of the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA) also spoke. Gabriela Garduza Estrada (Mexico) said that her Government had a legal framework in place to combat sexism and gender-based violence. Mexico had also elaborated a legal instrument that aimed to ensure equality among men and women and that mechanisms were in place to promote the integration of a gender perspective in all federal structures. Highlighting other initiatives, she said that the Government had focused on the situation of women and girls in several states to ensure their health and safety at home. Beatrice Duncan, UNICEF, recalled the fruitful and successful Comprehensive Dialogue the agency had held with the Permanent Forum last year. Following that event, UNICEF had taken a number of bold steps to bring a substantial number of the recommendations that had emerged to reality. Among others, the process had already initiated a number of allied partners to produce the first global report on the situation of indigenous children, which would be officially published in 2013 and would feature a regional study on Latin America. That would shortly be followed by UNICEF’s strategic Framework on Indigenous Minority Children, which would aim to enhance and ensure coherence in the agency’s programing for and with indigenous and minority children. Tania Pariona Tarqui, Global Indigenous Youth Caucus, said that her group endorsed the findings in the studies presented and reaffirmed the desires and ability of young people, especially young women and girls, to implement them. Indigenous youth must be included in designing and implementing plans and policies that would affect their lives and livelihoods. “Owing to a lack of real data on the situation of indigenous youth, we demand that our view be considered as ‘experts’ in the work of the Expert Group,” she said, also calling on that Group to convene a special meeting on cultural identity and its links to all issues indigenous peoples faced, including the participation of youth in all relevant processes. She also called for Member States to carry out the request made by UNICEF last year to provide grants to a fund that will allow indigenous youths to participate in intergovernmental processes. Eva Biaudet, Permanent Forum Member from Finland, focused on the trafficking of women and girls, saying that sexual exploitation was severely traumatizing and could isolate indigenous women from their communities. As Finland’s National Rapporteur for Trafficking in Human Beings, she had addressed that issue in many countries. It was the worst form of exploitation of women and, therefore, particularly complex when it occurred in specific communities. Traffickers could, too often, be parents or others trusted by the victim, which made it difficult for women and girls to denounce their exploiters or traffickers. Going forward, it was essential to create mechanisms of prevention and accountability. Law enforcement, police and prosecutors also must work with non-governmental organizations to establish truly empowering mechanisms. The biggest challenge was identifying trafficking victims. States needed national action plans that included civil society and emphasized disaggregated data. Haydee Giron-Sanchez, Global Indigenous Peoples’ Caucus, recommended that the Permanent Forum continue with the establishment of global, regional and national mechanisms to create laws that protected indigenous women and children. Priority must be given to research and analysis undertaken by indigenous communities, with a view to reducing violence. The Economic and Social Council should apply a rapid response system to stop violence against girls and women, and allocate resources for compensating victims. Further, a special council of indigenous women should work with UN-Women during the 2013 session on the legal and economic condition of women. Also, a valid registration system must be created to provide follow-up on reports presented by indigenous peoples, she said, urging that laws, customs and indigenous methods to protect indigenous women and girls from violence be respected. On trafficking in persons, indigenous women and girls in rural areas often did not have identification documents and were forced to emigrate when ancestral lands were acquired. She urged that indigenous identification systems be recognized and that support be increased for the right to identity. She also urged an end to the forced reclassification of nationality. The Human Rights Council should sanction States that did not have rapid response systems in place to protect women and girls from all forms of violence. Sonia Heckadon, United Nations Population Fund (UNFPA), said that at the country level, her agency was carrying out initiatives in Latin America and Africa aimed at addressing gender based violence, particularly sexual violence, and the need to step up efforts to address that problem. For example, in both Rwanda and the United Republic of Tanzania, UNFPA supported women’s organizations to address the issue, along with discrimination. By providing support to the Gender Networking Programme, it had contributed to the strengthening of a platform or mechanism through which indigenous women and girls were able to advocate for human rights and denounce the many different forms of violence they faced in their daily lives in Colombia, UNFPA had worked with the Millennium Development Goals Spanish Fund to promote the elimination of female genital mutilation. Through a non-coercive and non-judgemental awareness-raising initiative, attention had been drawn at the community-level about the harmful nature of that practice and had promoted collective decision-making among civil society groups, women, and their families to address it. As Mexico was one of the countries with the highest number of trafficked women and girls, especially indigenous women and girls, UNFPA was providing technical assistance to the Government and was supporting its activities in indigenous territories to develop legislation and policies to address trafficking, along with its physical and psychological consequences. Finally, she shared several lessons learned by UNFPA through its work, including the need to respect agreements between indigenous communities and institutions in order to ensure productive dialogue, and the need to promote the participation of indigenous women in local, traditional justice committees, recognizing as well the important role they could play in supporting the administration of justice. Nina Nordstom (Finland) said that her Government prioritized women’s rights, and its development policy promoted and supported the participation of women in decision-making. It also fought against discrimination that bred, among others, violence against women and girls. Finland had also actively supported the implementation of Security Council resolution 1325 (2000) on women, peace and security, and had emphasized that special attention be given to vulnerable groups, including indigenous women. She said that the international community must always remember that women and girls could only be active participants in society if they had the knowledge they needed to make decisions concerning their own bodies, sexuality and reproductive health. Therefore, those women and girls’ right and access to sexual and reproductive health was an important element of their empowerment. She said that there could be no change in the situation of indigenous women and girls unless all communities and groups were involved in the efforts. Therefore, the role of men and boys could not be forgotten. Finland agreed that deconstructing stereotypical gender roles based on aggression and control contributed to the well-being and empowerment of communities as a whole. Sensitization on gender roles, as well as involving men and boys in promoting indigenous women’s rights, was, therefore, essential. Sandra Creamer, Global Indigenous Women’s Caucus, said her group recognized that combating gender-driven violence must start at the community level and must include efforts to eliminate physical, sexual and psychological violence. There were many examples of best practices within communities that showed how indigenous peoples were using culturally appropriate mechanisms to combat such violence. Such efforts must be recognized and encouraged, especially where those women were taking leadership roles. Here, she echoed the calls to include indigenous women at all levels of decision-making in conflict prevention, management and resolution. She called on the Permanent Forum and United Nations agencies to help build indigenous women’s capacities towards preventing violence and discrimination. Indeed, only through their empowerment would all forms of personal violence be adequately addressed. The Caucus also urged States to establish safe houses for indigenous women and children victims of violence and to provide culturally appropriate training to their staffs, so that adequate services could be provided. She called on the Permanent Forum to recognize “environmental violence” as a serious problem, because toxic products, nuclear waste and pollutants were routinely dumped in indigenous territories, damaging the ecosystems that the people managed and derived their livelihoods from. Jane Fletcher, Deputy Director, Office of Treaty Settlements of New Zealand, said New Zealand faced significant challenges in turning the tide of violence inflicted against indigenous women. She said that Maori women were three times more likely to face assaults or threats from an intimate partner. Further, Maori women’s high rate of incarceration was a threat to their well-being and resilience. She highlighted a number of her Government’s efforts to tackle the problem, including through passing the Domestic Violence Act three years ago, which strengthened the responsiveness of criminal justice agencies to the needs of victims of domestic violence. It had also enabled the country’s police forces to issue on-the-spot protection orders, which ensured the immediate safety of victims by removing alleged perpetrators from the home for a period of up to five days. She also drew attention to the Campaign for Action on Family Violence, and the “It’s Not OK” campaign as examples of community-driven initiatives aimed at reducing domestic violence. Alyssa Macy, North American Caucus, said a preparatory meeting had been held prior to the Permanent Forum’s eleventh session in the traditional territory of the Haudenosaunee, hosted by the Chiefs of Ontario. It was attended by 75 delegates, who adopted a report submitted to the Permanent Forum. Discussion centred on “environmental violence” against indigenous women. Against that backdrop, she recommended that strategies be developed to address all forms of violence against indigenous women. The link between sexism, patriarchy and the Doctrine of Discovery must be recognized, as should the inability to hold indigenous people accountable for violence against indigenous women. The Permanent Forum should also urge States to ensure that women and girls were involved in all political, economic and social processes to restore their traditional gender role in indigenous nations. Evelyn Taylor (Nicaragua) said, in January, the Government approved legislation to address indigenous women’s issues. By way of example, she cited the law on violence against women, and reform of law 641 of the criminal code, which had been approved and was being implemented. Other reforms outlined that municipal elections would allow for equitable gender participation in elections, meaning that an equal number of women and men would be responsible for implementing laws and programs. Legislation relating to the family code also was being enacted, which included the indigenous world view that placed women at the centre of daily life. Otilia Lux de Coti, International Indigenous Women’s Forum, recognized recent efforts to place violence against women and girls on the international human rights agenda. In that context, she highlighted the 2011 Central American Meeting of Ancestral Authorities and Indigenous Women for a life without violence, held in Panama. Violence could be explained through colonialism and militarism, which provided the “ideological glue” to support violence, forced labour and stripping indigenous peoples’ of their right to land. Those foundations continued today, in that indigenous women and girls suffered all sorts of violence. Vital Bambanze, Africa Indigenous Peoples Coordinating Committee (IPACC), said that it was necessary to put effective measures to address the situation of African indigenous women, who comprised one of the most vulnerable groups on the continent. Indeed, throughout the confinement they lived in conditions of extreme poverty and faced all forms of violence and abuse. He said that, while the African Commission on Human Rights had taken significant efforts to improve the situation of indigenous women as a whole, its work fell short of addressing the needs of specific groups. That left many indigenous women, such as those in Ituri and other areas of the Eastern Democratic Republic of the Congo, open to ill-treatment. There was also a need to scale up efforts across-the-board to increase African indigenous women’s access to knowledge and services that affected them, including regarding sexual and reproductive health. His group called on all African countries to implement the Convention on the Elimination of All Forms of Discrimination against Women, and called, as well, on the African Commission on Human Rights, the permanent Forum and the Human Rights Council to hold special a session on vulnerable women in Africa as a way of bringing to light — and setting out a framework to address — the situations of indigenous women and girls, women with disabilities and elderly women, among others. He also called for a study on laws and policies that promoted violence against women and girls so that efforts could get under way to abrogate them. Vicky Ipul Powaseu, Inclusion International, said indigenous women and girls with disabilities faced specific challenges, including multiple layers of discrimination and high rates of poverty. Children born with disabilities were at high risk of being killed. Women with disabilities were often more frequent victims of sexual violence and were the least likely to have access to remedial measures and structures. She urged the Permanent Forum to promote the participation of indigenous peoples with disabilities in all its work, especially in the run-up to the 2014 World Conference on the Rights of Indigenous Peoples, to ensure their voices were heard at that important event. Jeannette Corbiere Lavel, speaking on behalf of the Native Women’s Association of Canada/Assembly of First Nations/National Association of Friendship Centres/Grand Council of the Crees/Amnesty International, said violence against aboriginal girls and State failure to address that problem was directly linked to the fact that those women and girls were in a disadvantaged position in Canadian society. Those women were preyed on by men and the Government continued to fail in its obligation to prevent violence, investigate allegations and bring perpetrators to justice. The Government must put effective police protocols in place to address the situation of missing aboriginal women and girls. Thus far, the steps taken in that regard had been “piecemeal”, and more needed to be done to dismantle the social, political and economic barriers and indifference that continued to gravely impact indigenous communities. As for the Permanent Forum, she called on the expert body to ensure that Canada and other States enacted comprehensive plans of actions to address the disadvantaged social and economic conditions of aboriginal women and girls. It should also press Canada to immediately begin an active effort to address the violence against, and disappearances of, aboriginal women and girls. It must also put in place systemic corrections, where needed, to dismantle embedded racism and sexism in law enforcement and other federal structures. Tarcila Ricera Zea, Continental Network for Indigenous Women, said it was absolutely necessary for the Permanent Forum to continue to provide a space for discussion between indigenous groups and States to discuss the situation of women and girls. Indeed, such cooperative dialogue was vital because the current picture was not very encouraging. Indigenous women and girls and women were routinely denied their right to develop according to their traditions, especially as educational models were imposed that forced their assimilation. Such models seemed to promote the view that “indigenous equals backwards”, and indigenous women were, therefore, condemned to the margins of their societies. Those women were also subjected to daily violence as Western development models rendered them invisible and they were, therefore, unable to seek redress or assistance. Indigenous women and girls were also violated by the drive for economic growth, as big corporations destroyed their livelihoods. With all that in mind, she urged the Permanent Forum and other United Nations bodies to continue to promote the collective rights of women. The cultural impact of violence against women must also be acknowledged and all normative and ideological barriers to their participation and empowerment must be torn down. Finally, she urged UN-Women to devote special attention to indigenous women and to help combat the violence they faced, in order to ensure a better world for all people.

The 8th meeting of the Forum focused on the native peoples and cultures of Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia, with civil society groups and Forum experts urging firm steps from the region’s Governments to improve the socio-economic conditions of the indigenous peoples, help them adapt to climate change and to reign in corporate-driven globalization. Permanent Forum experts from the Russian Federation cited the vast region’s ethnic and cultural diversity, and lamented that its fragile natural ecosystems — along with the reindeer herding and other traditional livelihoods they supported — could be ruined by a combination of indifference, legislative gaps and unchecked industrial expansion. While the Russian Federation and Ukraine had pledged to support indigenous peoples, they still found their lands, languages and cultural heritage under serious threat. “For all the importance of international cooperation, it is important to acknowledge that States have the ultimate responsibility for addressing the situation of indigenous peoples,” said Andrey Nikiforov, who joined fellow Permanent Forum expert Ana Nikanchina in noting that, while countries of the region were substantially developed, the indigenous peoples faced socio-economic challenges and their rights under the Declaration on the Rights of Indigenous Peoples were often disregarded. Today’s discussion should raise awareness about such challenges and highlight ways they could become more involved in local decision-making on issues that affected their rights and cultures, she said. Providing a snapshot of one unique way of life in the Arctic that was under pressure from a rabidly globalizing world, a representative of the Association of World Reindeer Herders said reindeer herding communities continued to struggle in the face of land use change, climate change and development. For example, intensive industrial development and expansion in Scandinavia had seriously reduced the land area of reindeer pastures there. “We need to proceed with great caution and seek to identify solutions that do not do more harm,” he said, calling for holistic measures to address specific challenges in Scandinavia, as well as in the Russian Federation where outdated land laws remained in effect. As things stood now, traditional herders were forced to pay to use land they had lived and worked on for centuries, “something that many people see as unacceptable and immoral”. He encouraged the Russian Federation to develop a federal law on reindeer herding, which set out mechanisms for protecting pastures and provided socio-economic development programs for herders. More broadly, he called for strengthening indigenous peoples’ capacities, and improving indigenous education systems, especially for young people. Such systems should incorporate both science-based and indigenous learning, so herder communities could be more self-sustaining. Addressing several of the concerns raised during the dialogue, Maxim Travnikov, Deputy Minister of Regional Development of the Russian Federation, said that addressing the interests of indigenous peoples was the subject of the fundamental work of the Government at the central level, as well as many groups representing the interests of minority peoples. The main thrust of such endeavours was to maintain a complex balance by strengthening social protection for the indigenous peoples by ensuring that they had all the rights and services enjoyed by all Russians, while not interfering with the ways of life they had acquired from their ancestors. Among other things, the Russian Federation aimed to improve the health-care system to boost health and reduce mortality, and to enhance access to education, including the development of languages. Today, the country had 277 dialects and 39 languages being studied in schools, including 17 indigenous languages. Yet, he said that it was difficult to agree with some of the negative assessments of his Government’s efforts. The Russian Federation continued to study the Declaration, and the majority of its tenets were in line with Russia’s views on the sustainable development of indigenous peoples. At the same time, the Russian Federation could not necessarily agree with the Declaration on political self-determination and rights to land. Specifically on land issues, he said the Russian Federation believed that minerals belonged to all the people of the Russian Federation and such resources should be used to benefit the entire country, regardless of group affiliation. Of course, there might be differing views on that matter, so the Government continued to assess its position. Turning to traditional land use, he said that for a decade, a law had been in place “that admittedly is not working well”. In response, the Government had approved a draft amendment, elaborated in association with indigenous groups, and he hoped it would soon be adopted. But a representative of the Association of Indigenous Peoples of the North, Siberia, and the Far East of the Russian Federation (RAIPON), said that in the past decade, the Russian Federation had made no significant moves to resolve the problems of indigenous peoples. Instead, the situation remained “extremely unsatisfactory” in many regards. The configuration of the world was changing and there were plans for Siberia, the Arctic and the Northern oceans that would affect indigenous peoples and their way of life. Addressing such issues, therefore, called for real action, and not just public proclamations. There needed to be real improvements on the ground through State policies for indigenous peoples on the ground, he said. Maxim Travnikov, Deputy Minister of Regional Development of the Russian Federation, said that of the indigenous peoples in the Russian Federation, 40 groups lived in the far north of the country, where there were severe climatic conditions. Following the 2010 census, it was found that the number of Russia’s indigenous minorities had increased to 316,000 people. The increase had not been the same for all indigenous peoples. . Today, the Russian Federation had 277 dialects and 39 languages being studied in schools, including 17 indigenous peoples’ languages. The main thrust of the Government was to improve the system of health care and medicine, in order to improve health and reduce mortality, and to enhance access to education, including the development of languages. Another thrust of the Government was enhancing job opportunities among indigenous peoples. The aim was to make the people competitive, so that they could find their niches within the economy. The Government believed that special cultural rights existed for indigenous people wherever they lived, including language training in schools and economic rights directly linked to the indigenous way of life. Rodion Sulyandziga, of the Association of Indigenous Peoples of the North, Siberia, and the Far East of the Russian Federation (RAIPON), said that concerning the latest census in the Russian Federation, at least one indigenous people had disappeared and another was down to three people, he continued. The increase in the numbers of indigenous peoples had only been seen in seven areas. That was a negative indicator of how things were for indigenous peoples. In the Russian Federation, the Constitution provided guarantees in line with international law, but those were only decorative. The national committee facts were only on paper and were not being implemented. The traditional lands of the indigenous peoples were up for auction and they had lost the right to be recognised by Government, as the federal authority had moved away from certain rights. Natalia Chayka, of the Association of Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation, said that a significant problem affecting indigenous peoples in her area remained unemployment, which affected the ability to meet the needs of the population for development. A poor environment, harsh living conditions and lack of work were preventing the people from teaching their children and making them qualified. Because people did not have permanent wages, they were unable to teach their children and prepare them for employment. That created social problems, including high mortality. It was, therefore, necessary to establish conditions for strengthening the social capacity of the people. Obtaining food and housing were other problems confronting the indigenous peoples, since most of them were on the poverty threshold. Katherine I. Johnsen, Senior Expert, Indigenous and Community Issues, United Nations Environment Programme (UNEP), provided information on that agencies engagement with reindeer herders in the Russian Federation and Mongolia. Working with the Association of World Reindeer Herders, the International Centre for Reindeer Husbandry, and local herders, UNEP had developed an initiative called “Nomadic Herders”, a partnership-based project in line with the Permanent Forum’s recommendations. The participants had the shared goal of securing healthy and well-functioning ecosystems to protect the biodiversity and ensure the basis for indigenous livelihoods, and the ability for the communities to adapt to the adverse impacts of climate change. The project had kicked off in Mongolia in late 2010 with a request from that country’s Ministry of Nature, Environment and Tourism to engage further with local reindeer herders, the Dukha, to asses and increase awareness on Mongolian reindeer husbandry, its challenges and opportunities. Subsequently, in June 2011, UNEP and the Reindeer Herders Association had facilitated a community-based workshop and field visits to the Tsagaannuur reindeer herding district to meet Dukha herders and to discuss with them ways to jointly address their concerns. She went on to outline some of the recommendations that had emerged from a report based on those discussions, including on the need to establish community monitoring of the changes in land use, industrial development and other social and economic changes affecting reindeer herding and taiga (boreal forest) ecosystems. Other recommendations called for training the Dukha in recording their own terminology and knowledge related to reindeer husbandry, migration practices and land use, and developing adaptation strategies based on traditional knowledge. Vasilis Nemckin, Youth Association of Finno-Ugric Peoples, said globalization was affecting all countries and, as a result of that phenomenon, traditional languages were under serious threat worldwide. Targeted efforts were needed to preserve native languages and ensure they were made available “from the nursery to the university.” The Permanent Forum must enhance its activities in that regard, including facilitating technical assistance so that such languages could be saved. He went on to urge Governments to support the sixth World Congress of the Finno-Urgic Peoples, to take place later this year in Hungary. Nadir Bekirov, Foundation for Research and Support of Indigenous Peoples of the Crimea and the Crimean Tatar People’s Front, said while the Russian Federation was the largest part of the region, that fact did not mean that the situation of indigenous peoples living in surrounding regions could be ignored. He was concerned that the High Commissioner for Human Rights and the relevant Special Rapporteur had only visited one country and one region during a recent trip there. He called for a more holistic view that included all the regions’ diverse indigenous communities, including in the Ukraine. That country, he said, had done very little to recognize the rights of its indigenous communities. Indeed, the situation for those people was getting worse, as Ukraine remained one of the 11 countries that had refused to recognize the Declaration on Indigenous Rights. Further, Ukraine continued to appropriate the land of the Crimean and Tartar peoples, suppress protestors and prosecute human rights defenders. With all that in mind, he urged the Human Rights Council to suspend Ukraine’s membership until that country undertook serious legal measures to recognize, protect and promote the rights of indigenous peoples. Abduraman Egiz, representative of the Mejis of Crimean Tatar People, Ukraine, said that the Soviet Union had had a serious impact on the Crimean Tatar people. The Soviets had kept the Crimean Tatar people in exile and, today, only 300,000 of them had returned. An international forum was being planned on the question of the restoration of the rights of the Crimean Tatar people. The forum was initiated due to the urgent need to preserve the linguistic and cultural identity of the people. Ukraine had done little to restore the rights of the people of Crimea. The Forum was being supported by the European Union, the United States, Canada and the Organization for Security and Cooperation in Europe (OSCE), but Ukraine had not shown any interest in supporting the initiative. The Mejis of the Crimean Tatar People was very concerned about the neglect by Ukraine. The Forum would produce a road map for the restoration of the rights of the Crimean Tatars. He called on the Permanent Forum to call for action on the longstanding issue of the Crimean Tatars. Participating in the dialogue on Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia were: The Arctic Caucus; Russian Association of Indigenous Peoples of the North, Siberia, and the Far East of the Russian Federation (RAIPON); Youth Association of Finno-Ugric Peoples (MAFUN); L'auravetl'an Information and Education Network of Indigenous People (LIENIP); Foundation for Research and Support of Indigenous Peoples of Crimea; Mejis of the Crimean Tatar People; Yakaghirs Elders; and the Foundation for the Protection of the Constitutional Rights of Indigenous Peoples. A Senior Expert on Indigenous and Community Issues from the United Nations Environment Programme (UNEP) also made a presentation.

The Permanent Forum, also in its 8th session, wrapped its dialogue on combating violence against indigenous women and girls, with numerous civil society groups putting forward recommendations to ensure that their rights were protected in both law and practice. One speaker urged the Commission on the Status of Women to appoint a Special Rapporteur on the epidemic of trafficking in women, while another requested the Permanent Forum to initiate a study to identify and address the core issues involved in the cases of abuse of domestic workers. Governments were urged to harmonize their legislation with international human rights norms, to ensure that indigenous women could overcome years of discrimination and marginalization. The dialogue on combating violence against indigenous women and girls included presentations from the following: Tribal Link/Project Access Global Training Program; Confederation of Indigenous Peoples from Bolivia (CIDOB); Alianza de Mujeres Indigenas de Centroamerica y Mexico; Indian Social Institute; Kapaeeng Foundation; Jaringan Orang Asal SeMalaysia; Jatiya Adivasi Parishad; Asian Indigenous Women’s Network; United Confederation of Taino People; and Jumchab Metta Foundation; Tonatierra; and San Caucus. Jopseph Marianus Kujur, Indian Social Institute, said that domestic workers had to endure impossibly long hours of work without security. Even when they were paid, their work remained undervalued. That situation called for regulation, since the domestic workers were excluded from labour laws and were subjected to physical abuse. They were also denied their rights and access to health services, in addition to suffering various forms of violence. Their situation looked a lot like a contemporary form of slavery in which the women from tribal communities were exploited. They suffered double discrimination and double victimhood, first as women and then as tribal women. The violence against them was structural and needed to be addressed structurally. In that regard, the Permanent Forum on Indigenous Issues should initiate a study to identify and address the core issues involved in the cases of domestic workers. Leon Oma Tsamkgao, representing the San of southern Africa, said that the theft of lands and attempts to destroy the culture of the people and their ways of life by extreme violence, including genocide, was the source and cause of all the violence that the people still faced today. When people’s land, which was the basis of their dignity and their lives, was taken away, they were left vulnerable to abuse and their rights to safety and security were violated. The infamous apartheid practice of paying San workers in alcohol, instead of a wage, had led to serious alcoholism in the communities and was a major cause of violence. Unfortunately, she said, independence from colonial powers had not ended that practice. In Nyae Nyae, no San person owned or operated a bottle store or “shebeen”, yet they were the ones who suffered from that scourge. She said that women had been forced into prostitution by poverty and despair and that young women were now falling pregnant or becoming infected with HIV and tuberculosis as a result. Noting that Botswana had never submitted a report to the Convention on the Elimination of All Forms of Discrimination against Women, and South Africa and Namibia had done so only once, she called on southern African Governments to honour their commitments to uphold the dignity and rights of indigenous women and children. The International Labour Organization should also investigate and bring to an end the abuse of San workers, particularly women and children. Anmoy Chakma, speaking on behalf of Kapaeeng Foundation, Jaringan Orang Asal SeMalaysia, Jatiya Adivasi Parishad, Asian Indigenous Women’s Network, United Confederation of Taino People, and Jumchab Metta Foundation, said that even as the Permanent Forum met to discuss combating violence against women, in Bangladesh, women were passing their days in fear of having grave violence being perpetrated against them. Indeed, many of those women in the Chittagong Hill Tracts were preyed upon by military personnel, even though Bangladesh was a party to major international human rights treaties. Rapes and other violence against indigenous women in Bangladesh were pervasive due to impunity. There was not a single case where women preyed upon received justice. He called upon the Government of Bangladesh to comprehensively address the issue and to carry out all elements of the Chittagong Hill Tracts Accord.

The 9th and 10th sessions of UNPFII focussed on food security issues, as United Nations and civil society experts emphasized that indigenous peoples’ rights to food and food sovereignty depended crucially on their access to and control over the natural resources in the land and territories they occupied or used, as the Permanent Forum on Indigenous Issues weighed options for improving and preserving native food systems, and closing legislative gaps on land tenure. Several speakers said the Permanent Forum’s panel discussion and dialogue on indigenous peoples’ food sovereignty was timely, as it closely followed adoption in Rome last Friday of new “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security”. Welcoming that Food and Agriculture Organization-backed framework, they said that States could use it when developing policies and programs that might impact subsistence activities such as hunting, fishing and gathering, which were essential not only to the collective right to food, but also to nurturing indigenous cultures, languages and identity. Jose Graziano da Silva, Director-General of the Food and Agriculture Organization of the United Nations (FAO), speaking via a video link, said that with the adoption of the Guidelines, the agency was continuing its commitment to opening its doors to new actors. In that regard, indigenous peoples had played an important role in the negotiation, completion and adoption of the Guidelines. Indigenous peoples must participate fully and effectively in all matters that directly affected their rights. The world faced a challenge in the production of food, he said, but that concern could be overcome by working together. Also addressing the meeting via video link, Olivier de Schutter, Special Rapporteur on the Right to Food, said: “Political disempowerment and lack of participation, in many cases, is the main cause for the obstacles [indigenous peoples] face in achieving the right to food.” Participation was vital, because the current situation was “extremely worrying”, as indigenous peoples’ food rights were under “serious threat”. Native and tribal communities were disproportionately affected by increased pressure on their land — through food production, carbon credit schemes and the search for fossil fuels. He said those rights were being further impacted by ever-encroaching big business, which was destroying traditional livelihoods — including traditional food systems — at an unprecedented rate. Further, indigenous peoples were coping with the phenomenon of “nutrition transition”, imposed on communities who lost their food systems and were forced to switch to Western diets. That had led to significant changes in nutritional intakes and was causing major increases in type 2 diabetes, heart disease and certain types of cancer. However, while there were many issues that remained to be addressed, he was “relatively optimistic” that, in the next few years, Governments would step up their recognition and implementation of the right to food. That optimism was based, among other thing, on increasing recognition that customary forms of land tenure deserved protection, and of the need for local communities to maintain control over their food systems to build resilience against the risk of external shocks. Another reason for hope was that the new Voluntary Guidelines and other instruments were being designed in an inclusive and participatory manner, aiming to ensure active input from those whose right to food was being threatened. Echoing the importance of subsistence activities and traditional livelihoods, Carlo Petrini, President of Slow Food International, declared all peoples had the right to produce their food using traditional practices and cultures according to their taste preferences and food knowledge. Following those principles, many indigenous communities on every continent had given life to the Terra Madre network, a movement of people who, with mutual respect for each others’ diversities, sought dialogue, cultural exchange and solidarity, all centred on the right to food. He said that human well-being depended on the universal right to quality food for all, and therefore there was a need to radically change “a food system that destroyed the environment as well as dignity of field and food workers”. For too long, food production had sidelined or restricted the knowledge and skills of women, the elderly and the indigenous; rather than including them, it had relegated them to the bottom rung of the social ladder. Joining other speakers lamenting “arrogant and insolent” development models that were depleting the planet’s resources, he called on the United Nations and the wider international community to put a stop to the land grabbing in many areas of the planet, especially Africa. “The phenomenon [is] riding roughshod over the right to food and subsistence […] of many indigenous and farming communities,” he said. While a large chunk of humanity was suffering from obesity and other overeating-related illnesses, over 1 billion human beings were undernourished and the scandal of death by starvation had yet to be erased. Obesity and hunger were two faces of the same coin, and were symbols of the failure of a global food system based mainly on industrial production that depended mostly on fossil energy resources. Never before had the need to radically change a food system that destroyed the environment and the dignity of field and food workers been so highly felt. Also taking part in the panel on the Rights of Indigenous Peoples to Food and Food Sovereignty were Saul Vicente Vazquez, a member of the Permanent Forum from Mexico, a representative of the FAO, a representative of the International Planning Committee on Food Sovereignty, and a representatives of the Asian Indigenous Peoples Pact Foundation. The representatives of Mexico, Bolivia, Brazil, Ecuador, Nicaragua and Argentina made statements in the discussion following the panel presentation. Also taking part in the discussion were the representatives of the Global Indigenous Peoples Caucus, the Global Indigenous Women’s Caucus, the Global Indigenous Youth Caucus, and the Arctic Caucus, also speaking on behalf of the Saami Council and the Inuit Circumpolar Council. The representative of the International Fund for Agricultural Development also made a statement, as did a member of the Permanent Forum from the Russian Federation. A note on a study on shifting cultivation and the socio-cultural integrity of indigenous peoples was introduced by Permanent Forum member Raja Devasish Roy from Bangladesh, with a supporting statement made by Simon William M’Vidouboulou, also a member of the Forum. In opening remarks, Permanent Forum members Saul Vicente Vazquez, from Mexico, said many indigenous peoples had expressed serious concern about their ability to exercise their right to food. After the adoption of the Declaration of Atitlán, drafted at the first Indigenous Peoples Global Consultation on the Right to Food in 2002, and the United Nations Declaration on the Rights of Indigenous Peoples, there had been some significant steps taken to address matters related to food security, but there was still a significant gap in implementation, especially in specific national legislation. That situation had led to a broad denial of more than indigenous peoples’ rights to food, and included abrogation of their rights to their lands and traditional cultures. As such, “this denies almost our total identity”, he said, expressing the hope that today’s discussions would generate sound solutions. Joan Carling, Asia Indigenous Peoples Pact Foundation, whose presentation was accompanied by a video on indigenous traditional livelihoods, such as fishing, rice farming and animal husbandry, echoed others expressing concern about land degradation through logging, mining and plantation crops, which were wiping out indigenous agro-based societies. In South Asia, she said, palm oil plantations were devastating local lands and infringing on indigenous land rights, dignity and culture. Food and nutrition bases were also being impacted by mega-projects such as dams. She also noted that militarization in Pakistan, India and Indonesia, among others, was another challenge, as armies in those countries often confiscated lands and territories in their effort to root out armed groups. Maria Luiza Ribeiro Viotti, (Brazil) said Brazil had created a national food and security framework, which articulated action on federal, state and local levels, and which coordinated activities with civil society organizations and indigenous peoples’ groups. The Government had also put in place another instrument, a cash transfer programme for Brazilian families living below the poverty line, in order to assist them in maintaining adequate nutritional health. In addition, Brazil was working with five United Nations agencies to implement a food and nutrition security program targeting women and children in two regions. A major priority for the peoples of those regions was access to land, and the Government had also moved to create legal procedures and mechanisms to solve land disputes. Overall, she said, Brazil was working to open space for indigenous people and leaders to participate in designing solutions and making proposals on issues that affected them. Raja Devasish Roy, speaking on behalf of himself, Bertie Xavier and Simon William M’Vidouboulou, introduced a note by the Secretariat on a Study on shifting cultivation and the socio-cultural integrity of indigenous peoples (document E/C.19/2012/8). According to the study, the practice of shifting cultivation needed to be maintained, strengthened and promoted in its sustainable forms, in accordance with the rights acknowledged in the United Nations Declaration on the Rights of Indigenous Peoples, Convention No. 169 of the International Labour Organization (ILO) on indigenous and tribal peoples of 1989, ILO Convention No. 107 and Recommendation No. 104 on indigenous and tribal populations of 1957, and ILO Convention No. 111 on discrimination in respect of employment and occupation. Shifting cultivation was closely related to forest protection, and sustainable forest management, the study states. It was also related to the protection of watersheds, the conservation of the headwaters of rivers and streams and the maintenance of biological and linguistic diversity. The study assessed the importance of the various traditions, practices and usages of shifting cultivation in different parts of the world to the maintenance and protection of the socio-cultural integrity of indigenous peoples, including aspects of their identity as distinct peoples, their spirituality, history, traditions, democratic decision-making norms, social unity, community self-help practices, literature, music, dance and numerous other aspects of their culture that were intricately linked to shifting cultivation traditions and practices. Those are vital not only to protect their social and cultural rights, but were also closely related to their economic, civil and political rights. It also sought to address some of the myths, misinformation and misconceptions associated with the practice of shifting cultivation, based on a lack of understanding of the nuanced differences in the way it was practised in Central America, South America, Africa and Asia. Mr. Roy, Mr. M’Vidouboulou, and Mr. Xavier had been appointed by the Permanent Forum at its tenth session in 2011 to conduct the study. Mr. Roy said that it was important for the Permanent Forum on Indigenous Issues to organize seminars and workshops on many other aspects of shifting cultivation that needed to be addressed in many various parts of the world. Some of the aspects could be addressed during the present session. With regard to Member States, he said that in cases where the rights were not acknowledged, Governments should be encouraged to recognize the mode of cultivation. In addition, certain programs that sought to steer indigenous peoples toward cash crop production should be discontinued, unless they were being implemented with the consent of the indigenous communities. Mr. M’Visouboulou said that their recommendations included a request to intergovernmental organizations to eliminate discriminatory practices that affected indigenous peoples and their need to practice agriculture, as that activity was essential to them. There was also a recommendation to non-governmental organizations to work towards eliminating all forms of discrimination affecting indigenous peoples. Additionally, the study recognized that universities had the capacity to undertake research into shifting cultivation. To indigenous peoples themselves, the study stressed their need to be informed and, as such, facilitated the dissemination of the information, in order to strengthen their own rights. Hjalmar Dahl, of the Arctic Caucus, speaking on behalf of the Saami Council and the Inuit Circumpolar Council, said that his group was seriously concerned about the impacts of climate change and environmental degradation. And while it was hard to determine which issue would change the future of the planet and humankind’s collective way of life more, “one thing is certain: without enough to eat — regardless of why — we will never achieve the minimum rights of adequate nutrition.” The right to food was not new, and while it had been recognized in international law, an estimated 800 million people remained undernourished or lived in food insecure communities. Noting that FAO had predicted that the number of undernourished people was set to rise in the coming years, he called for the development of standard indicators to assess food insecurity to ensure appropriate responses. Ivan Dandoval (Nicaragua) said that her country was working with civil society and autonomous regional councils to ensure that local populations had greater access to food that was nutritious, culturally appropriate, and made available at fair prices. With such plans in place, the Government had been able to reduce its malnutrition by some 50%. Nicaragua’s success had also led to the implementation of programs to ensure and monitor food production systems to not only ensure the country’s food was more nutritious, but that it was safer for the population. Anna Naykanchina, Permanent Forum member from the Russian Federation, said that, in the Russian Federation, indigenous peoples were facing challenges accessing food. Traditional food in north Russia consisted of fish and other food from the sea, but many of the products now went to industry and the listing of fishing plots was done without taking into account the needs of indigenous peoples. There was a new draft legislation seeking to amend the law on fishing, but the new legislation could worsen the situation for the indigenous peoples of north Russia. The draft would give State bodies the ability to limit fishing rights without consulting indigenous peoples. Also, it would allow limitations that would lead to allocations in the fishing industry that might be harmful to the indigenous peoples. Thus, it was being proposed that the draft be reconsidered and amendments made to ensure priority access to plots by the indigenous peoples. In addition, allocations should take into account the need for free and prior consent of the indigenous peoples. The representative of Argentina said that his country maintained its reservation with respect to food sovereignty, but that it supported and promoted the concept of food security as defined at the Food Summit. That definition had established the pillars of food security. Argentina believed that the right to food as a fundamental human right was an individual, and not a state one. The country supported action aimed at developing and strengthening agricultural production in indigenous communities and at seeking access for training, as well as technical packages to improve the quality and value of production without neglecting the health aspects.

The Permanent Forum concluded its work of the 10th session with a panel discussion and dialogue on the arrangements for the World Conference on Indigenous Peoples, which was set to take place in September of 2014. By the terms of a resolution adopted least year, the General Assembly approved the holding of a high-level conference “to share perspectives and best practices on the realization of the rights of indigenous peoples,” and the Assembly President to hold broad consultations among Member States and indigenous peoples’ groups on specific arrangements. Mirna Cunningham Kain, Permanent Forum member from Nicaragua, and Focal Point for the World Conference, reported that the President of the Assembly’s current session, Nassir Abdulaziz Al-Nasser, had recently appointed Luis-Alfonso de Alba, Permanent Representative of Mexico, and John Henriksen, as Indigenous Co-Coordinator for the World Conference. She appealed to the Office of the President to share the outcome of today’s discussion with Member States. She further called on the Assembly presidency to promote the adoption of a resolution on the modalities for the World Conference before the end of the sixty-sixth session. In the discussion that followed, representatives of Governments and indigenous groups presented recommendations for the Conference, with everyone calling strongly for the highest possible level of political participation, and representation from the largest possible number of indigenous delegations. Yet, most major developing countries said that the event’s arrangements — including participation — should be funded through existing resources, while the civil society groups called for scaled up support for voluntary funding mechanisms that would facilitate travel to the meeting.A representative for the Global Coordinating Group for the World Conference on Indigenous Peoples proposed a series of recommendations for the work of the Conference, including, among others, that all meetings must be co-chaired by representatives of Member States and indigenous peoples, and that prior to the Conference, thematic discussions must be held to facilitate elaboration of a precise, action-oriented outcome document. She was also among those that stressed that accreditation needed to realize that “full and effective participation” meant groups such as traditional councils, caucuses, forums and others not officially considered non-governmental organizations, must be allowed to attend. Participating in the panel on the World Conference on Indigenous Peoples were Mirna Cunningham Kain, Forum member from Nicaragua and focal point for the Conference; Yanerit Morgan, Deputy Permanent Representative of Mexico; John Henrikson, Indigenous Coordinator for the Conference; Hanifa Mezoui of the Office of the President of the General Assembly; and Carlos Batzin, Minister of Culture of Guatemala. Statements in contribution to the discussion were made by the representatives of Guyana, the Russian Federation, Bolivia, Ecuador, Australia, New Zealand, United States, Denmark and Greenland, Norway, Costa Rica and Nicaragua. Permanent Forum members Dalee Sambo Dorough andEva Biaudet also spoke. Also taking part in the discussion were the representatives of the Global Coordination Group for the World Conference on Indigenous Peoples, the International Union for Conservation of Nature and Natural Resources, the Saami Parliament of Norway, the Expert Mechanism on the Rights of Indigenous Peoples and Truth and Reconciliation Commission of Canada, the Global Indigenous Peoples Caucus, the Global Indigenous Peoples Women’s Caucus, the Indigenous Youth Caucus, the Arctic Caucus, the Asia Caucus, the Latin American Caucus, the Pacific Caucus, the North America Indigenous People’s Caucus, the Indigenous World Association International, the Indian Treaty Council, Foro Internacional de Mujeres Indígenas, the Centro de Estudios Aplicados a los Derechos Economicos Sociales y Culturales, the Confederacion Sindical de Comunidades Interculturales de Bolivia, and the Indigenous Partnership for Agrobiodiversity and Food Sovereignty.

The 11th and 12th UNPFII sessions focused on the need for urgent action by Governments to ensure the protection of the human rights of indigenous peoples with the spotlight on the implementation of the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Starting off the morning discussion on the implementation of the Declaration, Forum expert Dalee Sambo Dorough from the United States said that the reality for indigenous peoples was one of stunning and unacceptable conditions that required urgent attention by Governments across the globe. Critically, such attention did not have to be limited to the international level and to the halls of United Nations Headquarters, but rather should be on the ground and within the territories of indigenous peoples and communities. States needed to take substantive and concrete action to work with indigenous peoples to change that reality and to move towards the full realization and real enjoyment of the indigenous human rights embraced by the Declaration, she said. Further, States needed to think about what they could do to alter the conditions of poverty and economic inequities confronted by indigenous peoples. There needed to be greater understanding and genuine sensitivity towards indigenous peoples, in order to truly embrace each and every article of the Declaration and give full effect to its intent and meaning. The representative of the Latin American Caucus, emphasising the need for stronger measures to protect indigenous peoples’ lands, said that it was necessary for the World Bank to take into account the human rights impact on indigenous peoples of the projects it supported. Some such projects resulted in forced relocations and hurt indigenous peoples. Now was the right time to address the issue. There was need for stronger measures to protect indigenous peoples’ land, as some projects that resulted in such things as forced relocation and hurt indigenous peoples must be halted. Now was the right time to address the issue. The Bank was initiating a process to review its indigenous peoples’ policy. In that regard, the Latin American Caucus proposed that a half-day discussion on role of the Bank be held by the Permanent Forum during the next session. Such discussions had played a key role in highlighting particular issues of importance to the regions. The Forum should request the Bank to inform it about measures it was taking to protect the rights of indigenous peoples, and also ask it to ensure that human rights impact assessments were conducted in connection with any work it was undertaking that could affect indigenous peoples. Several representatives of Member States described actions that their Governments were taking to ensure the protection of the rights of indigenous peoples. The representative of Venezuela said that her Government protected the rights of indigenous peoples. It had established an indigenous peoples’ section, and had promulgated an internal legal document that recognized the existence of the social, political and economic organization of the indigenous peoples, including their language and traditional lands. In addition, indigenous peoples in the country enjoyed their identity which, beyond recognizing them as Venezuelans, also acknowledged that they were native peoples. Similarly, the representative of Panama told the Forum that the Panamanian Constitution recognized the rights of indigenous peoples to enjoy legally owned territory, which they administered in accordance with their cultures and traditions. There were five such indigenous areas, known as Comarcas, in Panama. They represented approximately 10% of the country’s total population and occupied about 25% of the country’s land area. A recent law, concluded with the support of the United Nations and the Catholic Church, had established a special regime for protecting the resources of those territories and provided that requests for future projects should be approved by regional congresses. In addition, it requires that indigenous peoples be able to enjoy the benefits of any hydroelectric projects taking place in their areas. The representative of the Asia Indigenous Peoples Caucus, noting that militarization was employed to secure State and corporate interests and to suppress community resistance against “development” aggression and corporate plunder, said that States and corporations must be held accountable for the serious human rights violations they committed. He urged the Permanent Forum to call on Asian States to demilitarize indigenous territories and to reverse their counter-insurgency policies and strategies that were detrimental to indigenous peoples, or which violated international humanitarian law. In addition, Asian States should review their militarist laws and policies to make them consistent with the Declaration. Chief Wilton Littlechild, Chair of the Expert Mechanism on the Rights of Indigenous Peoples, said that the Expert Mechanism was established in 2007 by the Human Rights Council with a mandate to provide advice on the rights of indigenous peoples to the Council. The fifth session of the Mechanism would take place from 9 to 13 July 2012. As a specific forum to discuss the rights of indigenous peoples, it was open to all, including organizations without Economic and Social Council status. The Mechanism regularly coordinated with the Permanent Forum and with the Special Rapporteur on the Rights of Indigenous Peoples. It had also begun a practice of liaising with the Permanent Forum and the Special Rapporteur on its studies and reports that were relevant to the other mandates, before finalizing such work. The Expert Mechanism had completed two studies, he said. One was on lessons learned and challenges to achieve the right of indigenous peoples to education, including advice on key normative content and recommendations. The other was on indigenous peoples’ right to participate in decision-making, which had been undertaken over two years. The Declaration was used as a framework for the work of the Expert Mechanism and was a specific item on its annual agenda. The Expert Mechanism continued to encourage the protection and promotion of indigenous peoples rights, especially in engagement with the Human Rights Council. Legborsi Pyagbra, Chair of the Voluntary Fund for Indigenous Populations, said that the mechanism’s mandate was to assist representatives of indigenous communities and organizations to participate in the deliberations of the Working Group on Indigenous Populations by providing them with financial assistance, and was funded by means of voluntary contributions from Governments, non-governmental organizations and other private or public entities. Briefly highlighting the Fund’s work over the past year, he said that the mechanism’s Board of Trustees had witnessed an unprecedented increase in the number of applications for grants and a troubling simultaneous 75% drop in voluntary contributions since 2008. It was clear that the Fund faced a “critical situation” and would be unable to carry out its work without a rapid and sustained infusion of resources. “It is clear that our work may be compromised,” he said, adding that the Board was nevertheless appealing to donors for further assistance, so that he Fund could continue to ensure that indigenous voices were heard in international forums. Noeli Pocaterra (Venezuela) said that elimination of indigenous peoples continued, but in Venezuela the country was moving towards a model that was humanist, under which the rights of indigenous peoples were protected. Venezuela had established an indigenous peoples’ section, which served as the legal basis for a democratic and multi-ethnic society. The country recognized the existence of social, political and economic organization of the indigenous peoples, recognizing their language, traditional lands, and so forth. Those developments were embodied in an internal legal document, which included the organic laws of the indigenous peoples. Venezuela guaranteed the human rights of indigenous peoples and was working to implement those rights. There continued to be problems with the 1911 Constitution, which was racist and exclusionary with regard to the rights of indigenous peoples. Under the present Government, about 1 million hectares of indigenous peoples’ land had been returned to them and given collective title. Indigenous peoples in the country enjoyed their identit which, beyond recognizing them as Venezuelans, also recognized that they were native peoples. A housing program had also been introduced to provide dignified housing to indigenous peoples, including for old people, for women and for the handicapped. Those were managed by indigenous peoples. Further, indigenous peoples had been elected to national and municipal level offices. Rochelle Roca-Hachem, representative of the United Nations Educational, Scientific and Cultural Organization (UNESCO), said that the Permanent Forum on Indigenous Issues would be invited as an observer to the thirty-sixth session of the World Heritage Committee in Saint Petersburg from 24 June to 5 July 2012. UNESCO recognized and advocated the key role of culture in sustainable development and sustainable tourism, as well as the nexus between biological diversity and cultural diversity. As a follow-up to the conference co-organised by UNESCO and the Secretariat of the Convention on Biological Diversity in June 2010, which focused on integrating biological and cultural diversity into development cooperation strategies and programers, staff from the UNESCO New York Office were closely cooperating with the Convention Secretariat to implement the draft Joint Programme. That draft had been welcomed by the World Heritage Committee at its thirty-fourth session in Brasilia in July 2010. A follow-up meeting was organized between the Convention on Biological Diversity Secretariat and UNESCO at the UNESCO Office in New York in April 2012, with invitation made to representatives of other organizations, she said. Also, the World Heritage Centre had published a number of issues of the World Heritage Review that were relevant to indigenous peoples. Those included a specific issue on World heritage and indigenous peoples, published to draw the attention of the international community to that important topic. Albert K. Barume, Senior Specialist on Indigenous and Tribal Peoples’ Issues of the International Labour Organization, drew attention to the growing synergies between the Declaration and ILO Convention No.169. The five-year-old instrument had opened political spaces and had created a better conducive environment for implementation of the ILO Convention at the country level. At the same time, Convention-related jurisprudence, State reports, court cases and comments by ILO supervisory bodies on indigenous peoples’ issues had increased the understanding and implementation of the Declaration. “The implementation of the Declaration and Convention No.169 inevitably requires a continual building of capacities of States and social partners,” he continued, adding that the ILO’s technical cooperation programme on Convention No.169 had scaled up its capacity-building activities, through which the training on indigenous peoples’ issues was now provided to some 2,000 civil servants each year in more than 25 countries across Latin America, Asia and Africa. Turning to update the Forum on the inter-agency United Nations Indigenous Peoples Partnership initiative, set up in line with Articles 41 and 42 of the Declaration, he said that all the joint institutions and organs had now been established. Those included a Policy Board that was made up of four indigenous experts representing all regions, as well as a multiparty Trust Fund. He also said that seven pilot projects were under way in Nicaragua, Bolivia, the Central African Republic, Cameroon, Congo and Nepal. A regional project was being carried out in South-East Asia. All those projects were being implemented with the active participation of the relevant Governments and indigenous groups. Intreabud Ricky Tran, of the Global Indigenous Peoples Caucus, recommended that the Permanent Forum implement a process to document the efforts of indigenous peoples in implementing the United Nations Declaration.

The afternoon dialogue on the Rights of Indigenous Peoples was opened by James Anaya, the Special Rapporteur on the human rights of indigenous peoples, who provided an update on his activities in four areas: promoting good practices; country reports; responding to cases of alleged human rights violations; and thematic studies, including on the impact of extractive industries on indigenous communities. He also highlighted his visits to Brazil, Peru, Argentina and a first-ever trip to the United States. His reports on those countries would be presented to the Human Rights Council in September and would likely be made public before then. Looking ahead, he announced that he would go to El Salvador. He had also made requests to Namibia and Canada to carry out visits to those countries later this year or in early 2013. He hoped those requests would be considered favourable. He was also very interested in examining, during the remaining two years of his mandate, conditions in several Asian countries, which he had requested to visit. He also planned to launch an online consultation forum around specific questions or issues related to extractive industries. Through that forum, indigenous peoples and others would be able to submit information on their experiences with extractive industries and to respond to specific questions. Mr. Anaya said that in carrying out his mandate examining the situation of indigenous peoples around the world, he had observed the “persistent and painful” legacies of the Doctrine of Discovery, the issue the Permanent Forum had chosen as the theme of its current session. That Doctrine — used for centuries to expropriate indigenous lands and facilitate their transfer to colonizing or dominating nations — continued to be used to justify ignoring the present needs of native and tribal peoples and to disregard their rights. “I have observed attitudes associated with this colonial-era doctrine,” which “shamefully persisted” in jurisprudence and national judicial systems and many laws and regulatory regimes that affected indigenous peoples. It was still infecting society in many ways, witnessed in continued discrimination against indigenous peoples and their near invisibility in the political, economic and social spheres of the States in which they lived. Yet, he said, the international community, especially through the United Nations system, had strongly rejected legal doctrines and social attitudes that perpetuated discrimination and disregard for indigenous peoples and their rights, particularly in the years since the adoption of the Declaration. That instrument provided a new grounding for understanding the status and rights of indigenous peoples, he said, adding: “Our challenge is to enter a new era, one in which the lingering effects of the Doctrine of Discovery do not continue to be felt and indigenous peoples thrive and are valued in the countries they live in.” While much remained to be done in that regard, “looking around the room today”, and considering what had already been achieved, he could not help but be hopeful. On extractive industries, he said his study would be finalized within the year and indicated divergent views existed with regard to the balance of costs and benefits of extractive development projects. Although there was awareness of the negative impact that extractive activities had on the lives of indigenous peoples in the past, many Governments underscored the key importance of such activities for their economies, while businesses pointed to benefits that indigenous peoples could gain from the activities of extractive industries. Indigenous peoples, on the other hand, were sceptical of, and in many cases rejected outright, the supposed benefits of the extractive or development projects in their traditional territories. He called for a change in the current state of affairs if indigenous rights standards were to have meaningful effect on State and corporate policies and actions as they related to indigenous peoples in the context of extractive industries. That required greater common understanding among indigenous peoples, governmental actors, business enterprises and others about the content of indigenous peoples’ rights and the means of their implementation. With respect to his examination of cases of human rights violations, he said that he received allegations of such abuses “on a daily basis”, and often, in response, he communicated his concerns about the charges to the Governments concerned. In some cases, he had conducted site visits to examine the situations and had subsequently issued reports with observations and recommendations. Recalling that in March, he had visited Costa Rica to follow-up on a visit and report completed last year examining the situation of indigenous communities that could be affected by the possible construction of a hydroelectric project, he said that the Joint Communications report of Special Procedures Mandate Holders, issued periodically, contained the full text of all his communications with Governments concerning cases of alleged rights violations. The representative of Norway said that governance gaps lay at the core of the human rights and business challenge, and that indigenous peoples were disproportionately negatively affected by business-related activities, such as natural resource extraction and infrastructure development. Although States bore the main responsibility to conduct consultations with indigenous peoples with regard to checking human rights abuses committed by third parties, the third parties, including business enterprises, had the responsibility to respect the rights of indigenous peoples. Corporations also needed to ensure that they did not contribute to violations of those rights. Participating in the debate and dialogue were representatives of the following groups and organizations: Saami Parliament of Norway; Global Indigenous Youth Caucus; Global Indigenous Peoples Caucus; African Caucus; Pacific Indigenous Caucus; Il’Laramatak Community Concerns; National Human Rights Institution of Australia; New South Wales Aboriginal Land Council; International Indian Treaty Council; National Native Title Council; Grand Council of the Crees; Enlace Continental de Mujeres Indigenas — South America; Te Runanga o Te Rarawa, Te Runanga-a-Iwi o Ngati Kahu; Aotearoa Indigenous Rights Trust; Maori Caucus; and First Nation’s Summit. Also speaking were the Government representatives of New Zealand, Ecuador, Spain, Bolivia, Mexico, Cuba, Brazil, Guyana, Costa Rica, Guatemala, Argentina and Viet Nam. A statement was also made by a representative of Greenland (Denmark). Agnes Leina, Il’Laramatak Community Concerns, speaking on behalf of peoples affected by the selection of United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Sites, said that during the Permanent Forum’s tenth session, a large number of groups had raised concerns about the need to obtain the free, prior and informed consent of indigenous peoples regarding the choosing of World Heritage Sites on traditional lands and territories. The three sites under consideration by UNESCO at that time had been Western Ghats (India), Tri-national de la Sangha (Congo/Cameroon/Central African Republic) and the Kenya Lake System in the Great Rift Valley (Kenya). She said that all three of those locations had been selected without the meaningful involvement or participation of indigenous peoples concerned. Her group had urged the World Heritage Committee to set aside its decision until those peoples were consulted. Regrettably, one year later, the points of contention remained “unresolved, unaddressed or ignored altogether”. That had raised very serious and pressing issues, specifically because the Kenya Lake System included waters that had recently been given landmark status by the African Commission on Human and Peoples’ Rights. The Western Ghats and Tri-national de la Sangha cases had been deferred, but the indigenous peoples concerned had not yet been consulted. Indeed, the Governments had contacted no one, and the paperwork regarding the amended site procedures “are being kept secret by UNESCO”. She urged that UNESCO defer all World Heritage nominations of sites in indigenous peoples’ territories, if it could not be ensured that those peoples had been adequately consulted and involved and that their free, prior and informed consent had been obtained. She also called for the establishment of an indigenous advisory body, which should be involved in the evaluation of all nominated properties that were situated in the territories of indigenous peoples and in monitoring the conservation and management of such World Heritage properties. Tina Williams, New South Wales Aboriginal Land Council, recommended, among other things, that the Permanent Forum take urgent action to ensure that all laws in Australia that managed indigenous culture and heritage integrated the principles of the Declaration. The Permanent Forum was also urged to encourage the Australian Government to sign the Nagoya Protocol to the Convention on Biological Diversity, as a way to bring Australian legislation, particularly the country’s 1999 Environmental Protection and Biodiversity Conservation Act, in line with international standards requiring indigenous peoples’ free, prior and informed consent. In Australia, we do not have comprehensive legislation for indigenous culture and heritage,” she said, explaining that various states and territory governments had the main responsibility for the protection and management of such culture. The various regimes had been criticized for the lack of control and ownership they provided indigenous peoples in that regard. As for the indigenous peoples of New South Wales, such culture and heritage was managed by a law that was actually created for the protection of animals and plants — the National Parks and Wildlife Act. “This regime is not only outdated, it is offensive that in today’s society, indigenous culture and heritage is considered in the context of flora and fauna,” she said, adding that under that law, indigenous culture was considered the “property” of the Queen of England. Marianne Lykke of Greenland (Denmark) wanted to know what measures and mechanisms would be feasible for eliminating the barriers to the realization of indigenous peoples’ rights represented by a lack of understanding of key issues among all actors, coupled with the numerous grey and conceptual legal areas. Mr. Anaya, the Special Rapporteur, responding to the question, said that the answer lay in practical experience in ensuring compliance with the Declaration. Rather than just talking about what the standards in the Declaration meant in the abstract, the United Nations should move beyond the abstract and see what it meant to put them into practice. The approach would be to learn from the experiences of the various actors concerned. In that way, steps could be taken toward achieving greater consensus. Jennifer Preston, in a joint statement on behalf of the Grand Council of the Crees, Assembly of First Nations, Canadian Friends Service Committee (Quakers), Amnesty International, International Indian Treaty Council, Africa Indigenous Peoples Climate Change Network, Union of British Columbia Indian Chiefs, Chiefs of Ontario, Treaty 4 First Nations, Mainyoito Pastoralists Integrated Development Organization, and First Peoples Human Rights Coalition, recommended that a study be undertaken of the existing rules of procedure in diverse international organizations which had real or potential impact on indigenous peoples human rights and related interests. Such a study should identify serious inadequacies affecting indigenous peoples and propose effective remedies and possible compliance mechanisms, with a view to ensuring fair and balanced procedural rules. States, in conjunction with indigenous peoples, should also fully respect the rule of law at the international and national levels consistent with international human rights standards.

The 13th session of the Forum considered a range of matters related to its working methods, as the Permanent Forum on Indigenous Issues heard its members present the results of several reports that aimed to assist the body in better fulfilling its mandate, including through enhancing implementation of its recommendations and improving data collection on challenges, best practices and emerging issues. Introducing a report on implementing the Permanent Forum’s recommendations (document E/C.19/2012/7), Permanent Forum member Eva Biaudet, of Finland, said that as of January 2012, the body’s database contained 894 such recommendations made, between its first and ninth sessions, to Member States, entities of the United Nations system, international financial institutions, intergovernmental organizations, the private sector, civil society and indigenous peoples’ organizations. 54% per cent of those recommendations had been implemented, while 5% per cent had been declined, and the rest tagged as “ongoing”. She said that the recommendations, listed in the database on the Permanent Forum’s website, covered 20 categories based on the Forum’s six mandated areas, as well as on cross-cutting issues, such as indigenous women, youth and children, and data and indicators, and on several areas of work relevant to the Forum’s activities. “By far, human rights, environment and economic and social development make up the largest number of recommendations,” she said, noting that those categories made up a little more than half the total number of recommendations. While the Permanent Forum was continuing to monitor implementation of its recommendations, the main source of relevant information was the “very few” reports submitted by States and United Nations organizations. So, finding new methods to periodically gather relevant quantitative and qualitative information from Governments and the United Nations system represents a major challenge, she said. Ms. Biaudet drew the attention of her fellow experts to a series of important suggestions set out in the report, including improving its online database by updating the classification on the status of implementation, which would allow for a more precise categorization of 56% of the database. That would enable more accurate monitoring of the recommendations, in respect of good practices and future challenges. She also noted recommendations for improving the body’s monitoring stem. Improving the database, as wall as the reporting and monitoring systems, would help Governments, United Nations agencies and indigenous groups see those mechanisms as tools to support their implementation of the United Nations Declaration on the Rights of Indigenous Peoples and the Forum’s recommendations. Paul Kanyinke Sena, Forum Expert from Kenya, updated the body on the status of the Trust Fund for activities related to the Second International Decade of the World’s Indigenous Peoples, saying that beneficiaries of that Fund were indigenous peoples and civil society organizations that worked with them. It aimed to ensure empowerment of indigenous peoples and formulation of implementation processes. In allocating its small grant programme, the Fund used criteria that included a requirement that proposals be around mandated areas and focus on indigenous communities. The duration of the projects was normally one year. Awardees were selected following a technical review of the applications, after which shortlisted candidates were considered by the bureau. Denmark, with more than $250,000, had been the largest contributor to the Fund. He said that recently, the total donor contribution had dropped even as the number of applications was on the rise. Indeed, more than 1,000 applications had been received, but only six had been funded in the past year. He hoped that that situation would reverse and he called for more contributions to that mechanism. Paimaneh Hasteh, Permanent Forum expert from Iran, introduced an analysis of the duty of the State to protect indigenous peoples affected by transnational corporations and other business enterprises (document E/C.19/2012/3), which she had been appointed by the Forum to conduct during its ninth session. She said that large-scale industrial projects involving natural resource exploration, detrimental to economic development, were executed in nearly every State in the world. Those projects inevitably affected indigenous peoples by reducing their traditional management systems, sacred places, pastures and hunting and fishing grounds, thereby undermining their economic, cultural and spiritual life and threatening their very existence. The common practice of the private corporations was to exploit without taking into account the rights of the indigenous peoples. Although a few cases of good practices by corporations could be found, concerns remained, largely on a systematic level. International law had firmly established that States had a duty within their jurisdictions to prevent injury to indigenous peoples by corporations. Earlier human rights treaties had not specifically addressed State duties in that regard, but imposed general obligations to prevent non-State abuse. She said that indigenous peoples were conscious of their disadvantaged positions but were often ignored because their rights and interests were often not taken into account. The analysis concluded that the effectiveness of international human rights instruments in that area was a long-term aim and that any grand strategy needed to strengthen the existing capacity of States to regulate the harmful action of corporations, rather than undermine that capacity. She added that the focus needed to expand beyond individual corporate liability, as the damage to indigenous peoples could only be rectified through collective action of political or shared responsibility. When the floor was opened for comments of the work of the Permanent Forum, the body was urged to consider the establishment of a global forum that would continuously monitor the implementation of the Forum’s recommendations as well as wider implementation of the Indigenous Rights Declaration. Such an effort could be assisted, one speaker said, by improving the Forum’s use — and wider promotion of — information and communications technology. Moreover, he noted that the body’s website was currently only available in English, Spanish and French, and improving the dissemination of important information about the situation of indigenous communities required that the site be made available in the remaining three official United Nations languages, Arabic, Chinese and Russian. Several speakers urged the body to ensure that its meetings were, as often as possible, broadcast live via webcast or made available through podcasting or recorded video. Speaking on the future work of the Permanent Forum were representatives of the following groups and caucuses: Pacific Indigenous Caucus and International Indian Treaty Council; Global Indigenous Youth Caucus; Asia Caucus; Tebtebba Foundation; Te Runanga o Te Rarawa; Youth Association of Finno-Ugric Peoples (MAFUN); National Native Title Council; Association of the Indigenous Peoples in the Ryukyus, Shimin Gaikou Centre; Yamasi People, Aupuni Hawaii, Koani Foundation; New Future Foundation; the Pacific Caucus; and the Global Indigenous Peoples Caucus. Representatives of Japan and China also made brief interventions during that discussion. The Permanent Forum also concluded the discussion it began the previous day on human rights. James Anaya, the Special Rapporteur on the human rights of indigenous peoples, rejoined the meeting and reiterated his appreciation to all those civil society representatives that had made recommendations to the Forum and the Human Rights Council. The following groups and caucuses participated: Union Nationale du Peuple Kanak; Naga Peoples Movement for Human Rights; Hitorangi Indigenous Community, Rapa Nui; Ka Lahui Hawaii; Organismo Indigena para la Planificacion del Desarrollo Naleb; Negev Co-Existence Forum for Civil Equality; and Flying Eagle Woman. Also taking part in that dialogue were Government representatives of: South Africa, Chile, Ecuador, Nicaragua, El Salvador (speaking also on behalf of Costa Rica), Mexico, Bolivia, and Chile (speaking also on behalf of Peru). Masenjana Sibandze (South Africa) said that since the advent of democracy in 1994, substantial progress had been recorded in addressing the devastating political, social and economic consequences wrought by colonial and apartheid policies through systemic and institutionalised racial discrimination and the denial of basic rights to the majority of South Africans through policies of exclusion. There had been a recognition of the great harm caused to South Africa’s Khoi and San communities from past historical injustices due to the doctrine of discovery, which led to the dispossession of land, geographical displacement, loss of cultural identity and the attendant socio-economic hardships for those affected, he continued. The South African Cabinet took a decision on 3 November 2004 providing a mandate to relevant national departments to work with the Khoi and San communities on a range of issues toward promoting and protecting their rights. In support of that process, the South African Department of Traditional Affairs was processing a traditional/indigenous affairs bill, which provided for the recognition of the Khoi and San communities, their leaders and councils, as well as their representation in houses of traditional leaders and participation in municipal councils. The Government had also instituted concrete steps to address the needs of Khoi and San communities on the basis of the norms of self-identification, in accordance with the principles of international best practices and international jurisprudence/ Evariste Wayaridri of the Union Nationale du Peuple Kanak, Indigenous Peoples Council on Biocolonialism, New Caledonia, also speaking on behalf of the Kanaki Organization, noted that the New Caledonian Island on which the Kanaks lived had the largest lagoon in the world from which nickel extraction was taking place. As a result, its beaches had become mud. That violation had existed for a long time, despite the opposition of the Kanak people. The damage resulting from the mining activities had led to the migration of the people. The situation was further compounded by the pedagogy imposed on the people, which was forcing them to lose their language. Further, they were also losing their civil rights. He called on the Permanent Forum to pay attention to the non-implementation of several articles of the Indigenous Peoples Declaration with regard to the Kanaks, particularly in the area of education. It should also call on the United Nations to fulfil its decolonization role in the pacific region. Santi Hitorangi, Hitorangi Indigenous Community, Rapa Nui, said the human rights of his people continued to be grossly violated by the action of the Government of Chile. Indeed, while Chile was a signatory to the Declaration, it continued to violate several of its Articles, and he urged the Government to require immediate adjudication of all land disputes involving Rapa Nui lands. They also urged Chile to immediately drop its legal proceedings regarding those lands. “Who are the usurpers, the Rapa Nui people of the Chilean Government?” he asked, and added that the “working table” system developed by the Chilean Government was unfair and was paving the way for the devastation of the island by big business. Responding, Jorge Rotamal (Chile) said that his delegation acknowledged the Rapa Nui statement, but his Government wished to stress that it was committed to ensuring that all indigenous peoples were given the opportunity to develop with full respect of their rights, traditions and cultures. In that regard, Chile had continued its ongoing dialogue with the Rapa Nui community, as both sides worked to overcome differences. Chile always acted in line with the Declaration and the relevant conventions of the International Labour Organization (ILO). Chile was undertaking “working tables” that focused on areas that included, land, migration, special status and development of the island. Chile had asked Mr. Hitorangi’s family to take part in the ongoing dialogue, but they had not done so. “Dialogue is the only way to resolve this or any other dispute,” he said. Detrix Duhaylonsod, Ka Lahui Hawaii, said that it was high time for the international community to confront the impacts of climate change head on. While that specific issue was not on the agenda of this session of the Permanent Forum, the body must seize every opportunity to raise awareness about the dangers of global warming. “We are not talking about future crises; the damage is slowly but surely becoming clear,” he said, stressing that empirical evidence about the dangers of a warming planet could be seen throughout the Pacific region. He urged Governments to seriously commit to agreeing on a post-Kyoto Protocol climate agreement, as well as to ensuring that all the work of the United Nations Framework Convention on Climate Change was open to the full and effective participation of indigenous peoples. Mansour Nsasra, Negev Co-Existence Forum for Civil Equality, said that Israeli authorities were intensifying their efforts to displace indigenous peoples from their homes in the Southern desert area of Israel. That region had been inhabited for centuries by Bedouin tribes, but since the creation of the State of Israel, those indigenous peoples had been under steady threat. Israel was violating the Declaration on Indigenous Rights, he said, and called urgently on the international community to ensure that Israel did not implement any plans that would lead to the removal of all those peoples from the Negev, as such a move would most certainly inflame Arab-Israeli tensions. Alfonso Massanga, Flying Eagle Woman, said that he represented an ancient community of indigenous peoples in Angola that had been “condemned to death” because oil had been found on their territory. Portugal had “sold” them to Angola because of that oil. As a result, the people were suffering under colonization. “The United Nations must come and help us, otherwise we will be decimated,” he said.

The Indigenous Forum’s 14th session considered the draft agenda for its twelfth session, which, if approved, would be held at Headquarters from 20 to 31 May 2013. Before the Permanent Forum was its draft report (document E/C.19/2012/L.7), which contained three draft decisions calling for action by the Economic and Social Council, respectively on the arrangements for its next international expert group meeting, the dates and venue of its next substantive session, and on the report of the current session. Action was expected on those matters the following day, ahead of the closure of the Permanent Forum’s current session. Taking the floor to comment on the agenda was Michael Hill of the San Carlos Apache Tribe, who reiterated his organization’s call on the Permanent Forum to examine violations of human rights of indigenous peoples whose territories had been divided by colonial Governments, particularly areas in New Mexico, Texas, Arizona and other areas along the United States-Mexico border. He also urged the advisory body to press States to do more to ensure that the lingering vestiges of the Doctrine of Discovery were finally erased, as a way to, among other things, improve the situation of indigenous women and indigenous lesbians, gays, bisexuals and transgender persons. The Permanent Forum turned next to conclude its debate on human rights, with representatives of indigenous peoples’ groups strongly protesting State measures that, among other things, undermined their traditional land rights, forced them to assimilate into dominant cultures and left already marginalized indigenous women vulnerable to sexual abuse and trafficking. The speakers also called for the protection of traditional gathering places, such as “healing spaces” and education facilities from military forces that often displaced indigenous peoples for their own purposes. On human rights matters, the forum heard statements from the following: Koani Foundation Congress; Consejo Nacional de Ayllus y Markas Del Qullasuyu; Adivasi Vijay Smajic Sanstha, Indian Social Institute, Chotanagpur Rising Association; Community for the Integration of Andean Knowledge; Asociación de Descendientes de la Nación Charrúa; Ainu Association of Hokkaido; First Lady’s Save Our Youths Campaign; Organismo Naleb’; New Future Foundation; Indigenous Peoples of Africa Coordinating Committee; Association pour l'Intégration et le Développement Durable au Burundi;Comisión de Juristas Indigenas en La República Argentina; Owe Aku; and Consejo Indio de Sudamérica.

In the 15th and final meeting of the United Nations Permanent Forum on Indigenous Issues, the Forum, lamenting the enduring manifestations of the “Doctrine of Discovery” and other morally condemnable, socially unjust and racist policies used for centuries by colonizers as legal justification to disenfranchise indigenous peoples and seize their lands, urged the rejection of such “nefarious” dogmas, and encouraged measures that would redefine relations between native and aboriginal peoples and the State based on justice. As the Permanent Forum — the United Nations expert advisory body dealing with the human, economic and social rights of indigenous peoples — concluded its eleventh session, it approved a set of nine draft recommendations, highlighted by a text approved on the special theme, the ongoing impact of the Discovery Doctrine on indigenous peoples and the right redress (document E/C.19/2012/L.2). That fifteenth century Christian principle was denounced throughout the session as the “shameful” root of all the discrimination and marginalization indigenous peoples faced today. The Permanent Forum noted that, while such doctrines of domination and “conquest”, including terra nullis and the Regalian doctrine, were promoted as authority for land acquisition, they also encouraged despicable assumptions: that indigenous peoples were “savages”, “barbarians”, “inferior and uncivilized,” among other constructs the colonizers used to subjugate, dominate and exploit the lands, territories and resources of native peoples. According to the text, signs of such doctrines were still evident in indigenous communities, including in the areas of: health; psychological and social well-being; conceptual and behavioural forms of violence against indigenous women; youth suicide; and the hopelessness that many indigenous peoples experience, in particular indigenous youth. Noting that the United Nations Declaration on the Rights of Indigenous Peoples, treaty body jurisprudence and case law from all major international human rights institutions confirmed that indigenous peoples hold collective rights to the lands, territories and resources that they had traditionally owned, occupied or otherwise used, the Forum said that “such rights have the same legal status as all other property rights [and] States are no longer allowed to deploy positivist legal interpretations of laws adopted during an era when doctrines such as terra nullis were the norm”. The Declaration also demanded that States rectify past wrongs caused by such doctrines through law and policy reform. By its text, the Permanent Forum reiterated that redefining the relationship between indigenous peoples and the State was an important way to understand the discovery doctrines and to develop a vision of the future for reconciliation, peace and justice. “To that end, [the Declaration] provides a strong human rights framework and standards for the redress of such false doctrines, notably in articles 3, 28 and 37,” the text states, also encouraging the conduct of the processes of reconciliation “in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith”. In his closing remarks, Grand Chief Edward John, Chairman of the Forum, welcomed the adoption of the recommendations, saying it was indeed necessary to redress the many issues that had emerged over the years the doctrine had been in place. There was a pressing need for indigenous peoples to rediscover and to celebrate their own cultures and heritage. The challenge now was to enter a new area in which the effects of the doctrine of discovery did not continue to be felt by indigenous peoples in the countries in which they lived, he said. The discussions throughout the session had highlighted that it was important for the Permanent Forum to continue to provide the space for discussion of such issues. He also noted that the high-level event held yesterday to mark the fifth anniversary of the adoption of the Declaration had been “highly successful despite being bumped from the General Assembly Hall at the last minute”. That Declaration was a reaffirmation of the collective rights of all indigenous peoples. The other texts adopted by the Permanent Forum today touched on the topics it covered during its eleventh session, which opened at Headquarters on 7 May. Along with the Doctrine of Discovery, the texts contained recommendations on human rights; food sovereignty; violence against indigenous women and girls; the World Intellectual Property Organization (WIPO); arrangements for the 2014 World Conference on Indigenous Peoples; and emerging issues. The recommendations were introduced and orally amended by Rapporteur Megan Davis. Also approved were three draft decisions recommending the following: that the Council decide to authorize a three-day expert group meeting on “Indigenous Youth: identity, challenges and hope”; that the Council decide that the twelfth session of the Permanent Forum shall be held at Headquarters from 20 to 31 May 2013; and that the Council take note of the provisional agendas of the Permanent Forum’s eleventh and twelfth sessions. They will be forwarded to the Economic and Social Council for final action. Adopting a concise text on human rights matters (document E/C.19/2012/L.9), the Permanent Forum noted that, since the adoption of the Declaration five years ago, very few States had entered into effective dialogue or partnerships or undertaken adequate legal reforms to implement its tenets. “Alarmed by ongoing human rights violations” the Forum’s members called on all States to bring an end to such violations and to recognize and respect the standards set out in the Declaration. Urging all States to provide detailed implementation reports to the Forum, the experts recommended public education initiatives and best practices in respect of the Declaration. Mindful of the human rights violations experienced by indigenous peoples, the experts encouraged States, in particular those in the Pacific region, to recognize and implement the basic fundamental rights articulated in the Declaration, particularly the right to self-determination. Further, the Forum urged States to promote models for the health, social, legal and other sectors of indigenous communities and service providers to follow in implementing the Declaration. It was recommended that the World Health Organization (WHO) revisit its report on social determinates of health to address the cultural determinates of health, such as land, language, ceremony, and identity, “which are essential for the health and well-being of indigenous peoples”. In a wide-ranging text containing draft recommendations on the arrangements for the much-anticipated 2014 World Conference (document E/C.19/2012/L.5), the Permanent Forum emphasized that equal, direct and meaningful participation by indigenous peoples throughout all stages of the preparations for the Conference was essential “for the international community’s achievement of a constructive and comprehensive outcome which will genuinely improve the status and conditions of indigenous peoples worldwide”. In that regard, the Forum welcomed the establishment of an international coordinating group and its efforts to realize such participation over the next two years of preparations. It also welcomed the decision of the President of the sixty-sixth session of the General Assembly to appoint the Permanent Representative of Mexico to the United Nations, Luis Alfonso de Alba, and the international representative of the Saami Parliament of Norway, John Henriksen, to conduct inclusive informal consultations on his behalf, with a view to determining the modalities for the World Conference, including substantive participation of indigenous peoples. The Assembly President was also called on to share with Member States the suggestions and recommendations emanating from the Permanent Forum’s half-day dialogue, held on 14 May, on preparations for the World Conference (see Press Release HR/5092). While calling on Member States to intensify their efforts to adopt arrangements for the Conference “as soon as possible and before the end of the sixty-sixth session”, the Permanent Forum goes on to recommend that the event consist of a two–day high-level plenary meeting of the General Assembly, as well as round tables and interactive dialogues and be co-chaired by representatives of Governments and indigenous peoples. It should be held in September, ahead of the Assembly’s annual general debate, to encourage the highest level of political participation. It was also recommended that a two-day thematic debate be convened ahead of the World Conference. As for WIPO, and the work of that agency’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, the Permanent Forum adopted a text recommending that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples, so they could provide input into the Committee’s substantive consultation process, especially regarding language and how indigenous peoples were characterized (document E/C.19/2012/l.4). The Geneva-based Intergovernmental Committee is in the midst of text-based negotiations towards reaching agreement on an international legal instrument which would ensure the effective protection of traditional knowledge, traditional cultural expressions, folklore and genetic resources. The Permanent Forum, therefore, demanded that WIPO recognize and respect the applicability and relevance of the Declaration on the Rights of Indigenous Peoples “as a significant international human rights instrument” that must inform the Intergovernmental Committee process and the overall work of WIPO. Expressing concern regarding the continued violence against indigenous women and girls, the Permanent Forum also adopted a text endorsing the report and recommendations of the international expert group meeting on combating that scourge (document E/C.19/2012/L.3) and requested that that report form part of the official documentation of the fifty-seventh session of the Commission on the Status of Women in 2013. It further recommended that the United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women) and the bureau of the 2013 session of the Women’s Commission include indigenous women as experts on violence against women in planned interactive panels, and guarantee the participation of indigenous women in both the preparatory process and during the session. The Permanent Forum also adopted a text that contained recommendations emanating from its half-day discussions on the right of indigenous peoples to food and food sovereignty, held on 14 May (document E/C.19/2012/L.10). (See Press Release HR/5092.) Noting that indigenous rights to food sovereignty were inextricably linked to the collective recognition of the rights to land and resources, and culture and social organization, the experts welcomed the legal reforms and policies carried out in some States to recognize those rights. Noting also that the levels of hunger are often disproportionately higher in indigenous communities, the Permanent Forum encouraged States to take positive actions to facilitate that capacity of indigenous peoples to strengthen traditional food systems, through, among others, formally recognizing and demarcating indigenous territories to enable them to better carry out productive food activities. Regarding its discussions on Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia (see Press Release HR/5091), the Permanent Forum approved another set of recommendations (document E/C.19/2012/L.10), noting that the peoples of those regions, though small in number, were among the world’s most ethnically diverse. They faced myriad challenges, including low life expectancy and dispossession of their lands, and their languages were under serious threat of disappearing. “One of the main challenges is that [they] do not have access to mechanisms to ensure the protection of their rights”, the Permanent Forum says, adding that those indigenous peoples, largely involved in reindeer herding, also needed to be more involved in local politics and decision-making on issues that involved them. With those issues in mind, the experts recommended an increase in decision-making mechanisms for their participation in matters concerning land use and resources exploration and exploitation, and access to free legal advice regarding development issues. They also urged the Governments in the region, including the Russian Federation, to “work in good faith with indigenous peoples for the unqualified endorsement and full implementation of the Declaration”. Those Governments were also urged to implement other international instruments regarding indigenous land rights, including through recognizing reindeer herders’ use and management of grazing land and the use of necessary biological resources by hunters, fishers and foragers. As to its future work, the Forum appointed several of its members to undertake studies or reviews in a number of areas relevant to its mandate. Those include a study on the right to participation in decision-making processes of indigenous youth in the Nordic countries; a review of the World Bank’s operational policies on indigenous peoples to determine to what extent they respected the Declaration on Indigenous Rights; a study on the situation of indigenous peoples with disabilities; and a study on the impact of the mining boom upon indigenous peoples’ communities in Australia. Also recommended was a study on the elaboration of an optional protocol to the Declaration. Further information on the Forum and more detail on all its sessions and side events is available at: http://www.un.org/indigenous.

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The International Expert Group Meeting on combating violence against indigenous women and girls: article 22 of the United Nations Declaration on the Rights of Indigenous Peoples, took place January 18-20 2012, UN Headquarters, New York. The report was made to the 2012 UN Permanent Forum on Indigenous Issues and also is available (along with reports of meetings and workshops on International Indigenous Issues from previous years) at: http://social.un.org/index/IndigenousPeoples/MeetingsandWorkshops.aspx.

The U.N. Committee on the Elimination of Racial Discrimination (CERD), at hearings in Geneva, Switzerland, February 22, 2012, asked why Canada has not made progress in improving the disparities between First Nations communities and the rest of the country. In its last report on Canada, CERD found disparities in funding for education, housing, health and other social services for indigenous peoples, issues around violence against women and child abuse, equality before the law, and over-representation of indigenous peoples in prisons, among other things. Noureddine Amir, CERD’s vice-chairman, said, “This problem should not continue the same way as it has in the past. How long will this be ongoing?” U.N. Special Rapporteur on the Rights of Indigenous Peoples James Anaya, in December 2012, found that Canada was violating basic human rights by allowing housing and other conditions in the community at Attawapiskat to deteriorate so badly that people’s lives were in danger. The Chiefs of Ontario issued a statement on February 22 announcing that more than 20 Indigenous nations and organizations “are holding Canada accountable during the country’s periodic (CERD) review.” The chiefs submitted a “shadow” report to identify gaps, misrepresentations, and assumptions made in Canada’s official report. The chiefs recommend that Canada “commit to honor the true spirit and intent existing in the Treaties, resolve matters of jurisdiction, realize Treaty implementation, and exercise the principles established in the United Nations Declaration on the Rights of Indigenous Peoples. These are the key vehicles for conducting and maintaining relationships with Indigenous Nations and addressing socio-economic challenges” (Gale Courey Toensing, “Canada Blasted at U.N. for Treatment of Indigenous Peoples,” Indian Country Today, February 23, 2012, http://indiancountrytodaymedianetwork.com/2012/02/23/canada-blasted-at-u-n-for-treatment-of-indigenous-peoples-99471).

Developments in Countries and Regions

Canadian First Nations Chiefs, took part in an historic Crown–First Nations Gathering with Prime Minister Stephen Harper, January 24, 2012, hoping “to re-establish a foundational relationship that has become entirely flawed,” as Association of Iroquois and Allied Indians said in a media release, noting that, “The opportunity to restore an equitable and balanced relationship is the key to solving long-term issues such as housing, education, and health which now plague First Nation citizens.” About 400 chiefs participated, 97 of them from British Columbia, and 22 from Alberta, in the first face-to-face meeting that Harper has held with First Nations since forming his government in 2005 (“Many Hopes for Long-Awaited Crown–First Nations Gathering,” Indian Country Today, January 24, 2012, http://indiancountrytodaymedianetwork.com/2012/01/24/many-hopes-for-long-awaited-crown–first-nations-gathering-74020).

Eighteen more Canadian First Nations officially signed on with he ministry of Aboriginal Affairs and Northern Development (AAND), April 13, to set in motion the process of divesting themselves of the 34 land-related sections of the Indian Act, which gives them control of their land, resources and environment. The Framework Agreement was originally created in the late 1990s to begin returning some measure of autonomy to First Nations. The goal is economic self-sufficiency and opportunity to combat the endemic poverty, lack of education and other conditions. The signing nations can develop their own land codes, with the approval of community members. The Canadian federal government has committed $20 million over the next two years to enable First Nations to undergo this process (“18 First Nations Sign Framework Agreement to Take Back Control of Their Lands,” Indian Country Today, April 21, 2012, http://indiancountrytodaymedianetwork.com/2012/04/21/18-first-nations-sign-framework-agreement-to-take-back-control-of-their-lands-109435).

Amnesty International’s annual report on world governments, released May 23, 2012, cited Canada’s treatment of its indigenous population at the top of the list of its human rights shortcomings, saying “There were continuing systematic violations of the rights of Indigenous Peoples.” “Limited progress was made in addressing concerns about human rights violations associated with counter-terror and policing operations.” The report goes on to cite the Canadian Human Rights Tribunal’s refusal to hear a case regarding First Nations children (a Canadian court has since overruled and mandated the tribunal to hear the case), the lack of consultation with the Lubicon Cree after a pipeline spill that unleashed more than a million gallons of oil into the group’s territory, and the myriad water issues plaguing aboriginal communities, among other transgressions. The issue of missing and murdered aboriginal women in Canada was also raised, especially regarding the government’s refusal to create a national task force to deal with the problem. For additional information go to Amnesty’s website: http://www.amnesty.org/en/region/canada/report-2012 (“Lack of Attention to Indigenous Rights Tops Amnesty’s Report on Canada,” Indian Country Today, May 25, 2012, http://indiancountrytodaymedianetwork.com/2012/05/25/lack-of-attention-to-indigenous-rights-tops-amnesty’s-report-on-canada-114668).

Canadian First Nation health programs were in the process of receiving budget cuts, in April, 2012. Following the ministry of Aboriginal Affairs and Northern Development (AAND) being cut by 2.7%, Health Canada’s budget was being slashed by $200 million, along with the Public Health Agency of Canada, and with them a number of aboriginal programs, including the National Aboriginal Health Organization (NAHO), which shut down in June after losing all its funding. The health programs of the Native Women’s Association of Canada (NWAC) lost all of its health funding; the health programs of Inuit Tapiriit Kanatami (ITK), will lose $1.5 million annually for the next two years - a 40% cut to its health budget –the Métis National Council (MNC) sustained cuts, as did the Congress of Aboriginal Peoples. Pauktuutit Inuit Women of Canada lost $730,000 of its $800,000 annual funding and will have to eliminate its health programming, ceasing coordinating programs on HIV education, sexual health, fetal alcohol syndrome, injury prevention and hepatitis C, and Health Canada’s funding to the AFN was reduced. “Inuit health statistics are several times higher than average Canadian data,” ITK President Mary Simon said in a statement, adding that the cuts would have direct, negative effects on Inuit health. “Our suicide rate is 11 times higher. Tuberculosis rates are 174 times higher. Infant mortality rates are three times the national average. Inuit life expectancy is 15 years less than the average Canadian, and continues to widen. These shameful statistics speak for themselves.” “Health and wellness is more than operating nursing stations and health centers in our communities,” Pauktuutit president Elisapee Sheutiapik said in a statement. “The loss of these resources will severely limit our ability to work on these issues.” Meanwhile, the Royal College of Physicians and Surgeons slammed the government’s decision to essentially close NAHO, calling for an equivalent body without the governance issues to continue playing the role of the soon-to-be-defunct organization. “The state of aboriginal health is a national embarrassment and leadership is needed now more than ever,” said Dr. Thomas Dignan, chair of the Royal College’s Aboriginal Health Advisory Committee, in a statement. “Organizational struggles aside, NAHO played an important role in advancing aboriginal health research” (“Aboriginal Health Services Decimated by Federal Cuts,” Indian Country Today, April 24, 2012, http://indiancountrytodaymedianetwork.com/2012/04/24/aboriginal-health-services-decimated-by-federal-cuts-109787).

The Mental Health Commission of Canada released a report, May 8, 2012, Changing Directions, Changing Lives, that has been well received by numerous aboriginal leaders. The report breaks down the issues into six strategic areas: prevention of mental illness as well as awareness measures; providing access to services; supporting mentally ill people and helping them recover; focusing more specifically on the elderly, First Nations and remote communities in general, and facilitating the collaboration of government agencies and stakeholders. The report calls for $4 billion in funding, as well as political action and has been embraced by everyone from the Canadian Counseling and Psychotherapy Association (CCPA) to aboriginal leaders. Jack Anawak, vice president of the Inuit organization Nunavut Tunngavik Inc., commented that the strategy could provide “a good start to a healthy Nunavut.” He said that not only are more mental health professionals needed, but they also must be schooled in the differences between north and south, saying, “There’s a difference between treating someone from downtown Toronto and treating someone from downtown Iqaluit.” The report was developed in collaboration with numerous aboriginals, including Anawak, and groups, including the Assembly of First Nations (AFN) (“Aboriginals Applaud Federal Mental Health Strategy,” Indian Country Today, May 19, 2012, http://indiancountrytodaymedianetwork.com/2012/05/19/aboriginals-applaud-federal-mental-health-strategy-113899).

David P. Ball, “Missing Women Inquiry Hearings End Amid Cover-Up Charges From Victims’ Families,” Indian Country Today, June 15, 2012, http://indiancountrytodaymedianetwork.com/2012/06/15/missing-women-inquiry-hearings-end-amid-cover-up-charges-from-victims-families-117884, reports, “Eight months after they began, hearings into police failures to arrest British Columbia serial killer Robert Pickton earlier wrapped up on June 6 much as they began: with outraged families and aboriginal groups protesting and drumming outside. Commissioner Wally Oppal, heading the Missing Women Commission of Inquiry, has been granted an extension until October 31 to report on why Pickton was caught five years after he was in police sights for the disappearances of mainly aboriginal sex workers from Vancouver’s Downtown Eastside—an oversight that allowed him to kill dozens more before being apprehended.”

Canada’s House of Commons, February 27, 2012, unanimously approved a motion introduced by the New Democratic Party MP Charlie Angus affirming the right of First Nations children to a solid education. The Parliamentary motion outlines the right of all First Nation children to top-notch education that speaks to aboriginal cultures. Parliament also pledged financial and policy support for making First Nations schools and education systems on par with those off-reserve. Most important, it committed to working with First Nations themselves, input that aboriginal leaders have said is sorely lacking. Whether the Conservatives follow through with action would be partly known when the federal budget is unveiled on March 29. First Nations leaders called the unanimous parliamentary motion on aboriginal education a major step forward, even as they press for more action (“Parliament Unilaterally Supports First Nations Education Motion,” Indian Country Today, March 6, 2012, http://indiancountrytodaymedianetwork.com/2012/03/06/parliament-unilaterally-supports-first-nations-education-motion-101402).

Initial parliamentary action on education followed the release, February 8, 2012, of the national report on First Nations elementary and secondary education conducted by the Assembly of First Nations in conjunction with the federal government, calling for the immediate formation of a national commission on education and for new legislation, the First Nations Education Act. The panel suggested that the commission be launched within three months. The panel was mandated to produce non-binding recommendations aimed at improving First Nations elementary and secondary education. The report noted, “Childhood lasts only 988 weeks, and school years pass by even more quickly. It is, therefore, critical that the government of Canada and First Nations leaders move forward together to change a system that has consigned so many First Nation students.” The report also recommended increased funding, more efficient tracking and reporting of learning outcomes, and establishing a First Nation education system with regional education bodies. The panel found that reserve schools are barely meeting needs that public schools take for granted, citing evidence of unequal school staff compensation and a lack of equipment in libraries, shops and gymnasiums, as well as inadequate supports for special needs students. Assembly of First Nations National Chief Shawn A-in-chut Atleo said that rapid action on First Nation education is imperative. “First Nations set education as a priority and have consistently advocated for sustainable, equitable First Nations education systems that put our children first. I am encouraged that this report acknowledges the urgency; now every First Nation leader and educator must have the opportunity to reflect on their own path forward.” Many are already doing so. In Ontario, the Nishnawbe Aski Nation released its own First Nations education report a day before the national panel’s. NAN said it rejected the panel process because it was struck without First Nations input and amounted to a back-door attempt by government to control aboriginal education and compromise treaty rights. “This report has found that the administration of education under the Indian Act is a failed paternalistic regime, with policy driven not by education outcomes but by severely flawed funding formulas that are hopelessly outdated and discriminatory against First Nations,” said NAN Deputy Grand Chief Terry Waboose. The NAN report said a new education system is needed that meets provincial standards and fulfills Canada’s Treaty obligations to NAN First Nations. It calls for government to provide adequate funding to on reserve schools that will improve support services, special education provision, teacher salaries, and better curriculum. The day after the national report came out, the Chiefs of Ontario issued “Our Children, Our Future, Our Vision: First Nations Jurisdiction over First Nations Education,” to “ensure [that] regional diversity within Ontario [is] respected and captured,” they said in a statement. A previous alternative report was also issued by NAN, the Federation of Saskatchewan Indian Nations (FSIN) and the Quebec First Nations Education Council in November 2011. Last August, 230 First Nations broke with the national panel and declined to participate over similar concerns about First Nation autonomy when it comes to education reform. (Wawmeesh Hamilton, “Education Report Calls for Urgent Action on First Nation Schools, Indian Country Today, February 11, 2012, http://indiancountrytodaymedianetwork.com/2012/02/11/education-report-calls-for-urgent-action-on-first-nation-schools-97202”).

The Tripartite Education Framework Agreement, signed in early February 2012, amongst British Columbia First Nations, Canada and B.C., to take effect in September 2012, puts British Columbia aboriginal students who attend schools on reserves on a funding par with students who attend mainstream schools off reserve. The agreement promises consistent year-to-year funding, as well $15 million annually to support on reserve schools and the British Columbia First Nations Education Steering Committee (FNESC). The new funding model also includes money for reserve schools equivalent to what mainstream schools receive for technology installation and maintenance (Wawmeesh Hamilton, “B.C. Schools Agreement Gives On-Reserve Students Funding Parity,” Indian Country Today, February 6, 2012, http://indiancountrytodaymedianetwork.com/2012/02/06/b-c-schools-agreement-gives-on-reserve-students-funding-parity-95830).

The CBC News documentary, Blind Spot: What Happened to Canada’s Aboriginal Fathers? Aired January 14, 2012, reported that because the residential school system destroyed families, and with it fathers’ ability to provide the guidance and nurturing that are so essential to children’s well-being, an estimated half of aboriginal children will grow up fatherless over the next decade. The documentary made by Geoff Leo of CBC Saskatchewan will follow three First Nation fathers trying to reverse that trend, who face difficult personal and environmental obstacles in their quest to be attentive parents. The CBC documentary follows the publication in February 2011 of a report by the National Collaborating Centre for Aboriginal Health, “…with Dad: Strengthening the Circle of Care”, available at: http://www.nccah-ccnsa.ca/docs/1913_with_dad_report-%20final%20%28English%29.pdf (“Absent Aboriginal Fathers Struggling to Become Present Parents: CBC Documentary,” Indian Country Today, January 6, 2012, http://indiancountrytodaymedianetwork.com/2012/01/06/absent-aboriginal-fathers-struggling-to-become-present-parents-cbc-documentary-71140).

A Canadian federal court ruled, in April, 2012, that the Canadian Human Rights Tribunal must consider a case it had dismissed involving funding for on-reserve First Nations children welfare services. First Nations allege that discrepancies between federal funding of on-reserve child-protective services and those off reserve, which are provided by the provinces, are dramatic enough to be tantamount to discrimination. They allege that on-reserve children receive 22% less per capita, on average, than those living off-reserve (“Federal Court Directs Human Rights Tribunal to Hear Child-Welfare Case,” Indian Country Today, April 18, 2012, http://indiancountrytodaymedianetwork.com/2012/04/18/federal-court-directs-human-rights-tribunal-to-hear-child-welfare-case-109012).

“Long Plain First Nation Celebrates $21 Million Loss-of-Use Settlement,” Indian Country Today, March 3, 2012, http://indiancountrytodaymedianetwork.com/2012/03/23/long-plain-first-nation-celebrates-21-million-loss-of-use-settlement-104407, reports, “Long Plain First Nation has settled its 141-year-old loss-of-use claim with the Canadian government for $21.3 million, tying off the loose ends of its 1994 land-claim settlement. After the Treaty 1 First Nation resolved its land entitlement claim in 1994, it then pursued a separate claim to be compensated financially for its loss of use over the land during the time the treaty, signed with the Crown in 1871, went unfulfilled.”

Surrey, British Columbia provincial court judge James Jardine ruled, February 3, 2012, against Tlowitsis tribe member James Carl Joseph, holding that trafficking in parts from 50 dead eagles does not constitute an aboriginal right (Wawmeesh Hamilton, “Tlowitsis Member Loses Eagle Parts Appeal in B.C.,” Indian Country Today, February 4, 2012, http://indiancountrytodaymedianetwork.com/2012/02/04/tlowitsis-member-loses-eagle-parts-appeal-in-b-c-95961).

Preliminary figures from the 2011 Canadian Census show the First Nation population of Canada has grown rapidly over the last five years. Final results will be published over the next two years. Some of the first reports show Elsipogtog First Nation in New Brunswick having increased by 5% since 2006, five times the Canadian national average. “The Cowichan First Nations on Vancouver Island grew by 30%. With a high birthrate, Membership data showed more than 50% per cent of the Nation at 26 and under, but a large part of the increase is the result of a court decision restoring status to Indian women who had lost it by marrying non-Natives. Historically the Indian act recognized non-Indian women who marry Cowichan men as Cowichan status Indians, while, Cowichan women who married non-Indian men lost their Indian status. The Court decision changed that (“Preliminary Census Numbers Reflect Growing First Nations Population,” Indian Country Today, March 26, 2012, http://indiancountrytodaymedianetwork.com/2012/03/26/preliminary-census-numbers-reflect-growing-first-nations-population-104728).

Shannon Smallwood Dene, became the first aboriginal to be appointed to the Northwest Territories (NWT) Supreme Court, January 13, 2012 (“First-Ever Aboriginal Judge Sworn in as Northwest Territories Supreme Court Justice,” Indian Country Today, January 16, 2012, http://indiancountrytodaymedianetwork.com/2012/01/16/first-ever-aboriginal-judge-sworn-in-as-northwest-territories-supreme-court-justice-72799).

As interest in mining in Northern Canada grows, and mining firms have become more interested in working collaboratively with Aboriginal nations, the Grand Council of the Crees (Eeyou Istchee), the Cree Regional Authority and the Cree Nation of Mistissini, entered into an agreement, March 27, 2012, with Stornoway Diamonds Inc. to develop the Renard Diamond Mine in Cree territory in northern Quebec, in what some call a model for cooperation between First Nations and mining companies. The Mecheshoo Agreement, as it’s called, will be in effect for the duration of the mine’s existence. Its provisions call for the Cree to be involved in the mine’s development, encompassing hiring Cree nation members along with training and education programs, and provides mechanisms for the Cree to benefit financially from the mine through various avenues of payment and sharing in the mine’s profitability, something that First Nations have said is missing from most interactions with the mining industry. Dr. Matthew Coon Come, Grand Chief of the Grand Council of the Crees. Stated, “The Mecheshoo Agreement is again an example where, with the cooperation and participation of the Crees, mining development can take place and prosper in Eeyou Istchee. This agreement marks the beginning of a cooperative and fruitful relationship between the Crees and Stornoway, a relationship based on respect for Cree rights and environmental and economic sustainability. In accordance with the principles of our Cree Nation Mining Policy, the Crees and Stornoway have ensured that our traditional rapport to the land remains intact” (“Mistissini Cree Enter Into Model Mining Agreement With Stornoway Diamonds Inc.,” Indian Country Today, April 9, 2012, http://indiancountrytodaymedianetwork.com/2012/04/09/mistissini-cree-enter-into-model-mining-agreement-with-stornoway-diamonds-inc-107109).

Assembly of First Nations (AFN) National Chief Shawn A-in-chut Atleo and other First Nation leaders, in March, criticized that just passed Canadian tough anti-crime law, Bill C-10 is known as the Safe Streets and Communities Act, saying it will create anything but safe streets when it comes to the indigenous population, and contribute to the overrepresentation of aboriginals in Canada’s prison population, as 20% percent of the prison population made up of aboriginals, who are 4% of Canada’s population. The Chief told the Canadian Senate that it is better to have aboriginal offenders housed on reserves, as this would put them within reach of community elders and rehab plans rather than simply punish them. The minimum sentences for nonviolent offenses “will undermine the provisions under the Criminal Code that allow for cultural sensitivity and will result in even more First Nation people in Canadian prisons,” the Association of Iroquois and Allied Indians stated, in February. The bill was criticized for its general impact in Canada by the Canadian Centre for Policy Alternatives, the Canadian Bar Association and the Canadian Council of Criminal Defense Lawyers, who also say the law will not work. In addition, several provinces, including Ontario and British Columbia, have said it will raise their costs to an untenable level (“Tough Crime Bill Unfair to Aboriginals, Leaders Say,” Indian Country Today, March 15, 2012, http://indiancountrytodaymedianetwork.com/2012/03/15/tough-crime-bill-unfair-to-aboriginals-leaders-say-103176).

The Royal Canadian Mounted Police (RCMP) and aboriginal police, in a raid to dismantle what authorities said was a drug trafficking ring, May 30, 2012, at Odanak First Nation in Quebec, seized marijuana, firearms and pills on May 30, 2012. The RCMP has collaborated with First Nations police in a number of such actions. (“RCMP and Aboriginal Authorities Conduct Drug Raid on Odanak First Nation,” Indian Country Today,” May 30, 2012, http://indiancountrytodaymedianetwork.com/2012/05/30/rcmp-and-aboriginal-authorities-conduct-drug-raid-on-odanak-first-nation-115756).

As First Nations families and young people continue to move into urban areas, such as Thunder Bay, Ontario, the demographics are changing, leading to racism, aboriginal youth suicides and increased crime, as First Nations young people struggle to live in a diverse urban society very different than their remote home reserves in Northern Ontario. Thunder Bay and First Nations leaders are working together to break down racial barriers and improve relations, to shape an inclusive environment, particularly one that welcomes aboriginal youth arriving in the city to further their education. To facilitate this development, the Thunder Bay campus of Lakehead University has launched The Gichi Kendaasiwin Project, a multi-layered initiative to increase the number of aboriginal students acquiring a university education. The university also hosted a recent lecture, “Aboriginal and Non-Aboriginal Relations in Thunder Bay: Our Shared Future,” at which Thunder Bay Mayor Kenneth Hobbs apologized for racist remarks he had made years earlier while a police officer. The four-point Gichi Kendaasiwin Project includes building a centre dedicated to aboriginal culture, “where the traditions and beliefs from childhood are honored, where career paths are carefully considered, and where students may seek wisdom and guidance through their professors, elders, counselors and peers,” said Lakehead University President Brian J. R. Stevenson. In addition, Thunder Bay is combining education with public awareness by encouraging public dialogue to identify, discuss and suggest solutions for racial issues. At the March 20, 2012 forum attended by more than 200 people, and at which the Mayor spoke, their was a clear message: eliminate racism, respect people, work together, and increase educational opportunities for aboriginal youth. With the Mayor’s leadership, the city has launched an initiative called” respect,” to promote dignity and respect (Elle Andra-Warner, “Combating Racism, Youth Suicide and Crime With Awareness and Education in Thunder Bay,” Indian Country Today, May 4, 2012, http://indiancountrytodaymedianetwork.com/2012/05/04/combating-racism-youth-suicide-crime-with-awareness-education-thunder-bay-111310).

Whitecap Dakota First Nation of Saskatchewan signed a framework agreement, January 25, 2012, paving the way to self-government, laying out a list of points that the 562-member First Nation is negotiating with the federal government to complete its self-determination, including law-making powers, along with parameters for resource management, cultural preservation and economic development. The Whitecap Dakota First Nation has ascended over 20 years from near bankruptcy and 70% percent unemployment, to significant development, with a casino, golf course and planned hotel, as well as housing developments. The First Nation partnered with the Muskeg Lake Cree Nation and the Lac La Ronge First Nation to create the 18-hole championship golf course in 2004. The government has received 20 consecutive clean audits as well (“Whitecap Dakota on the Road to Autonomy,” Indian Country Today, February 10, 2012, http://indiancountrytodaymedianetwork.com/2012/02/10/whitecap-dakota-on-the-road-to-autonomy-96951).

Martha Troian, “Covering the Crisis: Can Mainstream Media Attention Help Attawapiskat Long-Term?, Indian Country Today, December 21, 2011, http://indiancountrytodaymedianetwork.com/2011/12/21/covering-the-crisis-can-mainstream-media-attention-help-attawapiskat-long-term-68567, reported, “Some 1,800 people live in James Bay, in Northern Ontario, desperately overcrowded into tents and dilapidated huts. They cook on wood stoves. There is no electricity, not to mention a lack of clean, running water. Roofs leak; so do sewers. But when the Attawapiskat First Nation declared a state of emergency and begged the federal government to relocate the residents, Ottawa didn’t respond. Only when the Canadian Red Cross said it would step in did federal and provincial authorities say they would visit the remote community to assess conditions. “It really is a crisis,” said Attawapiskat First Nation Chief Theresa Spence. ‘We are in a third-world situation’.”

A tobacco war has been in progress in Canada as Manitoba authorities, following up on authorities in Alberta, British Columbia and Saskatchewan in cracking down on what they deem contraband, stepped up actions to stop sales of cigarettes that are federally labeled but not marked for purchase in the province, conducting three raids in five weeks at the end of 2011. However, the proprietors of the Dakota Chundee Smoke Shop, 30 kilometers from the Saskatchewan border in Manitoba, the subject of all three of the recent raids, are asserting a legal case for their right to sell the cigarettes. Dakota Plains Chief Orville Smoke hopes to argue in court that the Dakota Chundee shop sits on sovereign land, covered by Treaty 2, is operated by the Dakota Plains, Sioux Valley and Canupawakpa First Nations. The store occupies four acres that the Dakota bought two years ago, on land for which the Dakota did not sign, leaving “our sovereignties and our jurisdictions are intact.” However, Ottawa does not legally recognize the sovereignty of the Dakota tribe. Further complicating the issue is the matter of taxation. Rainbow pays federal taxes, then stocks stores set up on First Nations lands that it claims are under federal jurisdiction. Because the Kahnawake, Quebec–based Rainbow Tobacco Co., the cigarettes’ manufacturer, is federally licensed, Ottawa considers the conflict to be between Manitoba and the First Nations in question. The province concurs, claiming jurisdiction over cigarette sales anywhere in its borders. By contrast, the First Nations argue that this is a federal issue (“Manitoba Dakota Chundee Smokes Raids Latest in Growing Tobacco War, Indian Country Today, January 31, 2012, http://indiancountrytodaymedianetwork.com/2012/01/31/manitoba-dakota-chundee-smokes-raids-latest-in-growing-tobacco-war-95212).

For third time in 18 years, Kahnawake residents voted, in late April, against a casino on their reserve (“Kahnawake Casino Defeated by 22 Votes on Moral Grounds,” Indian Country Today, April 30, 2012, http://indiancountrytodaymedianetwork.com/2012/04/30/kahnawake-casino-defeated-by-22-votes-on-moral-grounds-110782).

Indigenous Peoples' Demands for the Sixth Summit of the Americas,” Cultural Survival, April 9, 2012, http://www.culturalsurvival.org/news/indigenous-peoples-demands-sixth-summit-americas, reported, “The Sixth Summit of the Americas taking place in Cartagena, Colombia on April 14-15, 2012. Indigenous groups are asking for a specific chapter in the Summit's declaration that addresses matters which concerns them.” “Indigenous Peoples of Colombia and other countries of the hemisphere will ask the government leaders of the 34 countries participating in the Sixth Summit of the Americas, to include in their final declaration a section on issues such as: Indigenous Peoples' rights to consultation, acceptance of special Indigenous jurisdiction, respect for traditional medicine, and the implementation of an economic model which is in harmony with nature, among others.

 Representatives of Indigenous communities in Colombia are emphasizing the need to adopt best practices and strategies that protect the environment, especially in reference to extractive industries that exploit natural resources. Even if companies are implementing social responsibility programs they should not neglect the betterment of these projects regarding environmental issues. During the Forum of Indigenous Peoples in Bogotá, a preparatory meeting to the Summit, participants from different regions of Colombia and Peru requested that the final declaration of the Sixth Summit of the Americas "gives Indigenous communities the position they deserve." "We request respectfully, that a section mentioning respect and acceptance for our autonomy; for special Indigenous jurisdiction, in recognition of our knowledge; and, for our traditions, as an integral part to our America, is included in the final declaration of the VI Summit.” Manuel Jesus Cuaspa stated, representing the Indigenous Authorities of Colombia, (AICO).”

The presidential election campaign, in mid June, in Mexico appeared to be foretelling a change in Mexican drug policy as all three leading presidential candidates had been stating that they intended to emphasize reducing violence and put less effort into making drug arrests and reducing shipments of drugs to the U.S. (Randal C. Archibold and Damien Cave, “Candidates in Mexico Signal a New Tack in the Drug War,” The New York Times, June 10, 2012, http://www.nytimes.com/2012/06/11/world/americas/us-braces-for-mexican-shift-in-drug-war-focus.html?_r=1&ref=todayspaper).

Good News – Mexico Campaign: Federal Court Suspends Mining in Wirikuta,” Cultural Survival, March 2, 2012, http://www.culturalsurvival.org/news/good-news-mexico-campaign-federal-court-suspends-mining-wirikuta-0, reports, “Indigenous rights activists across Mexico and the world are celebrating the news that a federal court suspended all 38 mining concessions in the sacred Wirikuta Reserve in San Luis Potosí, Mexico. The court prohibited the granting of any further permits within the municipality of Real de Catorce, San Luis Potosí, as long as the core issues of the conflict between the Huichol (Wixarika) people and mining companies remain unresolved. Last year, the Huichol people presented an injunction to the court for legal protection, demanding respect for the rights that the Mexican government authorized for its Indigenous peoples at national and international levels. The court ruled that the Huichol people had not been allowed Free, Prior, and Informed Consent on the mining projects in their traditional land, as is required according to Convention 169 of the International Labor Organization, to which Mexico is a signee.” “Mining in Wirikuta would desecrate the sacred site in the Real de Catroce mountains where the Huichol people believe the sun was born, and threaten the fragile desert ecosystem of the Chihuahua desert, important sources of water within the area, and the health and well-being of the Huichol people.”

The murder rate has dropped suddenly in El Salvador, one of the most violent countries in Central America and a source of growing worry over gangs and organized crime. It is widely suspected that the cause in the reduction in violence is the result of a secret deal between the government and gang leaders to halt killings in exchange for better prison conditions (Randal C. Archibold, “Homicides in El Salvador Dip, and Questions Arise,” The New York Times, March 24, 2012, http://www.nytimes.com/2012/03/25/world/americas/homicides-in-el-salvador-drop-and-questions-arise.html?src=me&ref=world).

Laura Carlsen, “Doing Biden’s Bidding,” AmericasProgram, March 5, 2012, http://www.cipamericas.org/archives/6496, comments, “Vice President Joe Biden landed in Mexico City last night and he’s left little doubt about his mission—to lock in the regional drug war. His visit comes at a time of mounting calls to end prohibitionist laws and the drug war model.” After Mexico City, Biden flew to Tegucigalpa, Honduras, to meet with President Porfirio Lobo and have a “working lunch” with Central American presidents.

On March 13t, 2012, the UN High Commissioner for Human Rights, Ms. Navi Pillay, visited Guatemala, giving an audience to the grievances of the Indigenous peoples in the country, including urging the Congress to pass Bill 4087 to legalize community radio, during a visit to the highland town of Totonicapan. A few days later, thousands of Indigenous peoples and campesinos in Guatemala began a nine-day protest march in the city of Coban, in Alta Verapaz to the capital city, March 19, 2912, covering over 214 kilometers. Organized by the Comite de Unidad Campesino, (CUC) demanding the attention of the State of Guatemala, as well as local, national, and international media to the issues facing the rural Indigenous and campesino majority of the country. Passing through the department of El Progreso, the march gained the participation of different communities and activist groups throughout their journey.. Community Radio station Uqul Tinamit, a member of the Guatemala Radio Project's pilot radio network streamed online their on-location reporting of the event as it passed through the departments of Alta and Baja Verapaz, allowing community radio stations across the country to broadcast their programming. in the city of Coban, in Alta Verapaz. The movement leaders have issued a press statement, “Declaration of the March for Resistance and Dignity, in Defense of the Earth and Territory” in which they have made the following demands– reiterations of long standing grievances of the Indigenous and campesinos in Guatemala: Elimination of agrarian debt imposed by the state on farmers; a just redistribution of land, allowing farmers at least a terrain to provide subsistence crops. Termination of forced relocations, in particular the ongoing problem in the Polochic Valley, Alta Verapaz, where hundreds of families were violently evicted from their homes to make way for African palm and sugar plantations in March of 2011. End to persecution and criminalization of Indigenous people fighting for their rights, including the 8 Indigenous women of San Miguel Ixtahuacán who have orders for capture for speaking out against the Marlin Mine. Cancellation of the concessions for mining, petroleum, hydroelectric, and mono-culture agriculture. Approval of the bills in Congress benefiting poor and Indigenous communities, including Bill 4087, the Law for Community Media, that would legalize community radio. Upon arrival to the capital, thousands of marchers and local supporters demonstrated outside the Congress and the Presidential Palace in Guatemala City, seeking audience with new President Otto Perez Molina. As a result of the protests the leaders of 11 different political parties in Guatemala’s Congress signed resolution committing to "dialogue on concrete legislative actions" on pending legislation, including bills regarding 1) Rural Development, 2) Agriculture, 3) Community Media, 4) Indigenous Rights, 5) Sacred Sites, 6) Indigenous Community Lands - pieces of legislation that the coalition of Guatemala Indigenous organizations, including Cultural Survival, long have been advocating for, especially in relation to the legalization of community radio. Alberto Brunori, the UN High Commissioner for Human Rights in Guatemala, and the Alvaro Ramazzini, the Archbishop of San Marcos were present as witnesses of the resolution. The Latin American Herald Tribune published President Molina’s statement: “I understand your demands and the government is committed to respond to the ideas, because I have the political will and the willingness to do so, to respond to the reality in the rural area,” he said. The president designated the commissioner of rural development, Adrian Zapata, to lead a government commission that will deal with the demands of the marchers (“ UN High Commissioner Visits Guatemala, Community Radio Leaders Urge Legalization,” March 28, 2012, http://www.culturalsurvival.org/news/un-high-commissioner-visits-guatemala-community-radio-leaders-urge-legalization; “Indigenous Guatemalan Protestors March in Defense of Territory,” Cultural Survival, March 25, 2012, http://www.culturalsurvival.org/news/indigenous-guatemalan-protestors-march-defense-territory; “Indigenous March in Guatemala Ends in Congressional Resolution,” Cultural Survival, March 29, 2012, http://www.culturalsurvival.org/news/indigenous-march-guatemala-ends-congressional-resolution).

As the Indigenous people of Guatemala have been continuing their political struggle to have community radio stations legalized, that broadcast important programming and information in local languages, on the morning of May 8, 2012, the Uqul Tinamit community radio station, a Cultural Survival Community Radio Program Partner, that serves the Achi Maya village of San Miguel Chicaj, Baja Verapaz was raided by the Guatemalan police and the Ministerio Publico. Bryan Gristofer Espinoza Ixtapa, the radio station volunteer who was on the air at the time on the raid, was detained by the police. In addition, the radio station’s transmitter, computer, and sound mixer were seized. Indigenous Peoples’ right to their own media is guaranteed in article 16 of the United Nations Declaration of the Rights of Indigenous Peoples, and was promised in the 1996 Peace Accords that ended the Guatemalan civil war. Despite these promises, the Guatemalan telecommunications law does not allow licenses for nonprofit community radio; only commercial radio and government-run radio are allowed to operate legally. Cultural Survival stated that it “deplores this action by the government of Guatemala and demands the immediate release of Mr. Espinoza Ixtapa and the return of the seized equipment. In addition, we urge the Guatemalan Congress to take action to pass the pending Community Media Bill (Initiative 4087) that would allow licenses for nonprofit community radio” (“Uqul Tinamit Community Radio Station Raided by Guatemalan Police,” Cultural Survival, May 8, 2012, http://www.culturalsurvival.org/news/uqul-tinamit-community-radio-station-raided-guatemalan-police).

A study conducted, in November, by the Association for Research and Social Studies (ASIES and the Presidential Commission on Discrimination and Racism Against Indigenous Peoples in Guatemala (CODISRA), “Racism and racial discrimination in the business sector” found that the Indigenous people and mestizos (mixed race) are admitted to be paid less for their services than others. The Guatemala Times reported that 52% of business owners interviewed in the study admitted this fact and in such sectors as retail the number jumped to 56. Close to 40% of Guatemala’s 14 million people are Indigenous or mestizos. The survey, found that 12% of workers in small and micro-enterprises are indigenous people, and 20% in medium and large businesses. Higinio Pu, an activist with the Native group Waxaquib Noj agreed with the findings, as far as the survey went, but added, “The survey did not collect information about the working conditions endured by indigenous people, which are often inhumane. During the coffee or sugarcane harvests, for example, the workers live in rough shacks or sheds and sleep all packed together on the floor” (“Indigenous Peoples in Guatemala Victim of Employment Racism,” January 6, 2012, http://indiancountrytodaymedianetwork.com/2012/01/06/indigenous-peoples-in-guatemala-victim-of-employment-racism-70808).

“President Declared Martial Law after Community Protests Dam,” Cultural Survival, May 25, 2012, http://r20.rs6.net/tn.jsp?e=00131xnDZcf0iotK83mzm9tDvPFDRTPhVlYAUxpB7EtMHKvUPKVK_L7bK3eg_2zMtIGc13uHqRvXpRtfdDuMWz4QtKi12fWz_xekciA_iTTOSdY4ziTGLZHzCfLe9os5Tm7mLU-LR0P6Y-7NMQAjIlXO1rgkPuukST1iNl1vzhwNV9gYuqOOr1wDB4oQ_TdRR6NWxqRuxKBf1P5yAFboM6H1iMFLbihTq5, reports, “The president of Guatemala declared a state of martial law in the town of Santa Cruz Barillas, Huehuetenango, suspending civil liberties as a result of unrest in the community instigated by proposed hydroelectric project "Cambalam." The town has been invaded by 600 military and police, arrested 17 people and invaded more than 20 homes, under the pretense of combating drug-trafficking.

Campaign Update – Honduras: Indigenous Peoples Demand Right to Consultation,” Cultural Survival, March 2, 2012, http://www.culturalsurvival.org/news/campaign-update-honduras-indigenous-peoples-demand-right-consultation, reports, “The Indigenous Peoples Confederation of Honduras (CONPAH) released a statement calling on the government of Honduras to withdraw a REDD proposal submitted to the Forest Carbon Partnership Facility. The Indigenous Confederation called on donors to suspend all activities relating to REDD in Honduras. The statement declares that the Honduran government submitted a proposal for a REDD project without consulting the Indigenous peoples whose land would be used for forestation programs. CONPAH, along with Cultural Survival campaign partners MASTA and FITH, said they were surprised to hear that the government had submitted a proposal: “We believe that this unilateral decision from the State of Honduras, of submitting this document to the FCPF for approval constitutes a violation of our Rights because we as Peoples do not know its content and scope. Even more importantly, our free, prior and informed Consent, as mandated by the FCPF guidelines and international instruments that guarantee our Rights, has not been granted.” The Ford Foundation posted commentary on the Global Justice Ecology Project blog calling on the donors mentioned, including GIZ, Rainforest Alliance, UNDP, and USAID to respond to CONPAH’s demands. The CONPAH declaration coincides with declarations by the Indigenous Peoples of the Moskitia region (Tawahka, Miskitu, Pech, and Garifuna) that their right to Free, Prior, and Informed Consent is being violated by construction of the Patuca III dam.

Danielle DeLuca, “In Pursuit of Autonomy: Indigenous Peoples Oppose Dam Construction on the Patuca River in Honduras,” CSQ, 35-4 (Winter 2011), rivers, and forests, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/pursuit-autonomy-indigenous-peoples-oppose-dam-construction, comments, “In May 2011, Cultural Survival’s Global Response program launched a letter-writing campaign at the request of Indigenous Peoples of the Moskitia, Honduras, to halt the construction of a hydroelectric dam along the pristine Patuca River. Despite years of protest from local Indigenous Peoples and international environmental groups, in January 2011 the Honduras government signed a contract with a Chinese company to start construction on the first of three dams that would have many irreversible consequences in the Moskitia, Central America’s most biologically diverse tropical wilderness. The ancestral lands and contemporary villages of four Indigenous Peoples—the Tawahka, Pech, Miskitu, and Garifuna—line the Patuca River, and these communities are fighting for their futures as dam construction gets underway.” “Since the military coup that ousted center-left president Manuel Zelaya in 2009, Honduras has been a dangerous place for activists. In these two years, more than 100 political dissidents have been assassinated and another 200 have fled the country in fear for their lives. Poverty remains rampant at 80%, and many communities in rural areas lack voice and power while wealthy landowners, drug traffickers, and foreign corporations have free reign. The coup-supported president, Porfirio Lobo, took office promising to bring prosperity to the country by ‘normalizing’ foreign relations. One of his initiatives was to sign a contract with the Chinese company, Sinohydro, to build the long-protested Patuca III dam on the Patuca River in La Moskitia. Indigenous People and environmentalists had held off this project in its various incarnations for over a decade. But now, Sinohydro, infamous for its shoddy construction of the world’s largest dam, the Three Gorges Dam on the Yangtze River in China, is on-board.”

Campaign Update - Honduras: Government Failing to Provide Residents Compensation for Dam Construction, Cultural Survival, June 8, 2012, http://www.culturalsurvival.org/news/campaign-update-honduras-government-failing-provide-residents-compensation-dam-construction, reported, The Honduras National Electric Energy Company (ENEE) suspended payments in March and April 2012 to small farmers in the department of Olancho for lands acquired from them by the Honduran government to allow for construction of the Patuca III hydroelectric project along the Patuca River. In January 2011, after the Congress approved construction of the Pactuca III, the Lobo administration promised that all payments for Phase I purchases of land would be concluded by the end of 2011. According to Miguel Navarro, who is a member of ENEE Valuation Committee, property owners are dissatisfied with the delay in payments and complain that the general manager of ENEE, Emil Hawitt, refuses to provide any explanation for the stoppage. "We do not know what ENEE intends, we do not see a serious commitment to make payments, and we have been in this situation since the project began," said Mr. Navarro. The delay has caused property owners, who have not been paid, to warn that they will organize a demonstration in Tegucigalpa to demand their money. "We will protest in front of the Congressional building either this week or next... we're tired," said Mr. Navarro. Out of 400 property owners, the government has only reimbursed 100 for their land, with 460 million lempira paid out of a total debt of 800 million.

Damian Cave, Charles Savage and Thom Shanker, ”A New Front Line in the U.S. Drug War,” The New York Times, May 31, 2012, http://www.nytimes.com/2012/06/01/world/americas/honduran-drug-raid-deaths-wont-alter-us-policy.html?ref=todayspaper, reports, “After several villagers were killed on a Honduran river last month during a raid on drug smugglers by Honduran and American agents, a local backlash raised concerns that the United States’ expanding counternarcotics efforts in Central America might be going too far. But United States officials in charge of that policy see it differently. Throughout 2011, counternarcotics officials watched their radar screens almost helplessly as more than 100 small planes flew from South America to isolated landing strips in Honduras. But after establishing a new strategy emphasizing more cooperation across various United States departments and agencies, two smugglers’ flights were intercepted within a single week in May, a development that explains why American officials say they are determined to press forward with the approach.” This is happening at a time when there is broad objection across Latin America to the U.S. war on drugs. “Campaign Updates—Honduras: US Attack on Patuca River Leaves Four Miskitu Dead,” Cultural Survival, June 14, 2012, http://r20.rs6.net/tn.jsp?e=001iXQbxC06JPjReMaKmdV3H-ecjaASt76Y8sgnYGopwgdL0uX9E0BQhTxg_HLUFbx4m5dwZJs8MBR2seF5PKLztR3oqL1w_MGnQnEuMSQl7wzJbiU9awuqjWBGVt58d_UgCuoLkGc9UJ-IJgjIEe3uSHAW2itZ654i_jc4hTZG3uMZBT1SL4oEqJc_mdgG3FANgA-QUWl1_hSKP2uOKT8ocCbcDvFrslr, reports that the U.S. war on drugs has begun to have a deadly impact on Indigenous people in Honduras, as in joint Honduran-American anti-drug raid, June 11, 2012, United States Drug Enforcement Agency helicopters opened fire on a boat traveling the Patuca River near Ahuas, Honduras, claiming to be targeting drug traffickers in the region. Four Miskitu people were killed and four more seriously injured.

Panama’s President Martinelli signed into law a bill, April 3, 2012, that reestablishes the validity of the Mineral Resource Mining Code, established in 1963, but abolished by the Martinelli government in 2011. The code defines who may hold and profit from mining concessions in Panama, and establishes sanctions for those who continue mining projects without authorization. Specifically, it establishes that no foreign governments, companies, or institutions may obtain, exercise, or profit from mining concessions. It also prohibits public officials and their relatives from directly or indirectly profiting from mining concessions. It establishes fines and sanctions for those who acquire or transport illegally extracted materials.
 The re-establishment of the mining code is the result of dialogues between the Ngöbe-Bugle people and the government over mining issues in the Ngöbe-Bugle territory. After a week of violent protests, agreements between the two parties resulted in the passing of Special Law 11, signed by President Martinelli in late March, canceling all concessions for the exploitation of mineral resources in and near the Ngöbe Buglé territory, and prohibits future concessions for mining, establishing the Ngöbe people's right to self-determination within their territory. It states that any hydroelectric project the government plans in the territory will require approval by the Indigenous authorities and will be submitted to a referendum of the area’s residents. The Ngöbe-Buglé are to receive 5% of the annual billing from the projects, and at least 25% of the non-specialized jobs at the projects are to go to Indigenous people or other residents of the area Good, Cultural Survival, April 11, 2012, http://www.culturalsurvival.org/news/good-news-panama-campaign-president-re-establishes-mining-code Meanwhile, Cultural Survival reports that the Ngöbe have renewed a demand that the president revoke Executive Decree No. 537, a law which restricts the right of Indigenous Peoples to choose their own leaders A month after protests against mining laws that left two killed by Panama's military, the Ngöbe people are engaged in dialogue with the government with mediation from the United Nations. Thousands of international letters and emails in solidarity with the Ngöbe protesters helped achieve this important breakthrough ("http://r20.rs6.net/tn.jsp?et=1109523695562&s=5868&e=001eQobEow81Le-XzfRwVOhKN1gPGug7D8WkJE_daKp-CiRSSiXtRi6rs946ClqJM6SQKv-KelBu7UYESO88gCzlijXvrV2kvugy2T7-Q5R1UtUWKKGY492eSi0yc0faf3iZijuUSf53FQk7X8PQebP4UTpRa5wmRGuda0VddCuWwelfmns7coTyncxeh7q92DiBNNySve).

The government of Columbia, in May 2012, was in the process of adjusting the management plan of the National Natural Park of Rio Puré, a million hectares (2.47 million acres) of mostly pristine Amazon rainforest between the Caquetá and Putumayo River basins along the Brazilian border, in order to better protect isolated Indigenous tribes in the area. Aerial photographs taken recently by the NGO Amazon Conservation Team, in partnership with Natural National Parks of Colombia, confirmed the presence of an uncontacted population, known locally as the Caraballos and in the ethnographic literature, as Yuri. Adelaida Cano, adviser on indigenous affairs at the Ministry of Interior, told Indian Country Today Media Network that a number of government institutions and NGOs were working to formulate a policy for uncontacted communities. She said, “The Ministry of Health already has guidelines to take care of people with whom there is already an initial contact. There are protocols to block possible contagions.“ A major concern is the expansion of mining in the region, which if contacted by the Yuri may cause them to suffer devastating diseases. Roberto Franco from the Amazon Conservation Team stated that, to protect the Yuri, the territorial control by the Colombian state must be strengthened, particularly in the lower basin of the Putumayo river, where gold mining and lumbering of gold threatening the park’s natural resources and the lives and freedom of the Yuri and other isolated groups that might exist there (María Clara Valencia, “Colombia: Challenge to Protect Uncontacted Tribes,” Indian Country Today, May 18, 2012, http://indiancountrytodaymedianetwork.com/2012/05/18/colombia-challenge-to-protect-uncontacted-tribes-113133).

UNESCO, in November 2011, recognized the Jaguar Shamens of Yurupari, from the Pira Parana region of the Columbian Amazon, as an intangible heritage of humanity. This is the first such UNESCO determination for a collective entity, rather than for an individual song, ritual or tradition (“UNESCO Recognition,” Cultural Survival, March, 2012).

Emily Alpert, “In Bolivia, Many Indigenous Communities Turn to Vigilantism to Fight Crime,” February 8, 2012, http://indiancountrytodaymedianetwork.com/2012/02/08/in-bolivia-many-indigenous-communities-turn-to-vigilantism-96576, reports, “If a man kills another man in the harsh high plains of Jesús de Machaca or the lush lowlands of Beni, the people who catch him might not call the police. Instead they might call a meeting. Far from courthouses and police stations that may not know their languages, and despite having no jails to lock up criminals, remote villagers in Bolivia have quietly kept justice in their own hands for centuries, handling everything from malicious gossip to murder. They have demanded fines, doled out whippings, even banished people from the pueblo. These community courts have sometimes been criticized for trampling on human rights, especially when it comes to the rights of women, but indigenous leaders say they work better for them than the regular system.” The long distance to courts in the cities and the expense of having to hire a lawyer has encouraged continuation of local Indigenous adjudication. The new constitution was enacted in 2006 championed said “indigenous justice” would be equal to the ordinary courts as a parallel system with the same force. However, in December 2010, a law was passed, of questionable constitutionality, reducing the judicial authority of Indigenous peoples. Pueblos still can legally handle petty crimes and land disputes, but little else. For example, they are now banned from judging and punishing rapists, murderers or drug traffickers. Meanwhile, 12 pueblos, including Jesús de Machaca, that voted for independence in 2010, have been developing their own constitutions to gain autonomy from the state, to gain the chance to gain more control over how it uses state money and renewable natural resources on their land, and to have the official right to try their own cases. “Under Morales, Bolivia has declared itself a “plurinational” state. It pledged to honor the rights of dozens of diverse groups—nations—with their own ways of life. But the government has battled over just how far those rights extend. When Morales lobbied for a highway to cut through a pristine forest last year, Native people protested, arguing that the constitution said they should be consulted. Morales argued that “consultation” didn’t mean they could veto the road, merely that they would get to weigh in. Protesters derided his idea of “consulting” as a farce. Facing massive protests that spread far beyond tree-huggers, Morales caved and declared the forest untouchable. But the bigger question was never settled: Could pueblos actually nix the highway or not? What kind of power do people like Onofre and his neighbors have? The battle over indigenous justice has been much quieter than the highway fracas and other disputes that have challenged Morales over the past year. The new law was passed in the middle of a political firestorm over skyrocketing prices for fuel and food, one that drowned out all other debates. But it poses the same burning questions for Bolivia: Will the country give real power to pueblos like Jesús de Machaca? Or is the constitution just a bit of leftist lip service, a piece of paper with no real impact?”

Sara Shahriari, “Second TIPNIS March as Important as First, Despite Lack of Attention,” Indian Country Today, June 6, 2012, http://indiancountrytodaymedianetwork.com/2012/06/06/second-tipnis-march-as-important-as-first-despite-lack-of-attention-116482, reports, “A once close relationship between Bolivia’s Aymara Indian President Evo Morales and some indigenous groups that backed his rise to the presidency is now damaged.” In early June, 2012 for the second time in a year, hundreds of indigenous Bolivians ere marching toward the city of La Paz to protest a government-backed road that would cut through the National Park and Indigenous Territory Isiboro Secure (TIPNIS), demanding that the government definitively cancels a road project marchers believe will deal a deadly blow to large tracts of forest and open the TIPNIS to illegal settlements by outsiders on land inhabited by the Yuracare, Moxeno and Chiman indigenous groups. The second march is not as large or unified as was the first. The possibility if the road being built was raised anew, following a pro-road march to the capital, in January, led by CONISUR, a group that includes a few communities from within the Isiboro Secure indigenous territory as well as farmers who live around it, reached La Paz in January. This time the government vowed to comply with the Andean nation’s constitution and organize a consultation with residents of the TIPNIS to find out whether or not they support the road. However, the consultation scheduled for June fails to satisfy people who say it cannot be fair and prior as required in the constitution, given that parts of the road outside the park are already built. Accusations leveled against march leaders by government officials also raise concerns amongst anti-road factions, as do recent trips by government teams to distribute goods within the TIPNIS.

Several hundred Indigenous people commenced a two week march across Ecuador, March 8, 2012, to call attention to their protest of a large-scale open-pit copper mine near El Pangui, Zamora-Chinchipe Province, in the southern part of the country. Ecuacorriente, a Chinese company, has been authorized by the Correa government to develop the mine. The Confederation of Indigenous Nationalities of Ecuador (CONAIE) representatives say the mining will contaminate water and force people off their lands and that Indigenous Peoples' rights to be consulted have not been respected. President Rafael Correa maintains that royalties and taxes from the mine and other large scale development projects will roads, schools and hospitals. The march for “Water, Life, and Dignity of Indigenous Peoples,” gained support of other Indigenous people and social organizations along the way, with the number of protestors growing into the thousands as more members of social organizations in the country, farmers, teachers, workers, religious associations, food sovereignty advocates, water councils, and others became involved. Tens of thousands of Ecuadorians from all Indigenous nationalities of the country completed the march as it arrived to the nation’s capital on March 22, World Water Day, demanding that the government give clear, concrete, and urgent answers. (“Indigenous People March Against Mining in Ecuador,” Cultural Survival, March 9, 2012, http://www.culturalsurvival.org/news/indigenous-people-march-against-mining-ecuador; “Marching for “Water, Life, and Dignity of Indigenous Peoples” in Ecuador,” Cultural Survival, March 19, 2012, http://www.culturalsurvival.org/news/marching-water-life-and-dignity-indigenous-peoples-ecuador; and “Indigenous Rights in Action in Ecuador,” March 24, 2012, http://www.culturalsurvival.org/news/indigenous-rights-action-ecuador).

In Ecuador, the Universidad Intercultural Amawtay Wasi “the House of Wisdom” (UIAW) was founded in 2007, after a major effort by the countries Indigenous Peoples, who comprise fourteen nationalities and eighteen pueblos to establish an intercultural university. It received accreditation for its unique education offerings based upon Andean ancestral knowledge. At the end of 2011, the Ecuadorian government was threatening to withdraw that accreditation and potentially close down the university, in a follow up to a one day visit, October 18, 2009, by three members of the National Council of Evaluation and Accreditation (Consejo Nacional de Evaluación y Acreditación - CONEA). The members of the evaluation team made no effort to visit any of the four community campuses where classes were offered, nor did they take into consideration the “intercultural characteristics” of the only university in Ecuador specifically created for Indigenous Peoples. The accreditation team recommend that the University Intercultural Amawtay Wasi (together with twenty-six other universities) be ‘eliminated’ on the grounds that its academic offerings do not fulfill the minimum conditions to continue to function as a university. Most of the other universities in this category are institutions primarily set up to teach business, and run by private entities for profit. the University Intercultural Amawtay Wasi is a community-based university teaching ‘good living’. Upon receiving the notification, Rector Sarango and the administrative team at UIAW began the fight to maintain their accreditation, requesting that CONEA explain how the accreditation team incorporated the intercultural perspective in its analysis. A CONEA document (No. 037-PC) issued in response stated that their evaluation model was “universal,” a cookie cutter approach with no exceptions made for any university. At the same time, the National Council of Higher Education (Consejo Nacional de Educación Superior – CONESUP) denied UIAW’s request to open more academic programs in Indigenous communities who had petitioned for them. UIAW appealed to the Constitutional Court of Ecuador, and received a favorable decision in December 2009. The Court resolution stated that CONESUP must function in agreement with Convention 169 of the ILO (articles. 2, 3, 4, 5 y 27) and the Ecuadorian Constitution such that “UIAW can and should develop its own model of higher education based upon its own learning principles grounded in Indigenous knowledge, which can serve as an innovative influence in the national system of education.” At the same time, UIAW looked regionally across Latin America for support and helped established the “Network of Indigenous and Intercultural Universities of Abya Yala.” Other founding members include the universities URACCAN (Nicaragua), UNAIIN (Colombia) and several in Bolivia. This organization serves as a forum to share experiences and provide mutual support around intercultural Indigenous universities. Then, in October 2011, UIAW submitted a petition to the United Nations Permanent Forum on Indigenous Peoples, calling upon the UN to support the UIAW’s efforts to offer university degree programs for Indigenous people of Ecuador. The accreditation team, with a new name, the Council for the Evaluation, Accreditation and Assurance of Quality University Education (CEAACES), was scheduled to return to the Universidad Intercultural Amwatay Was, in early 2012, for a final review and decision, based upon their previous recommendations. The team members still had not indicated how they plan to incorporate the intercultural viewpoint in their analysis, despite the pronouncement by the Ecuadorian Constitutional Court. In the meantime, UIAW has continued to offer its academic programs to an increasing number of Indigenous people and communities, and will be graduating its first cohort of students with degrees in ancestral architecture, sustainable agriculture, and intercultural education in 2012. For more information about the university, see www.amawtaywasi.edu.ec. For information contact Dr. Skye Stephenson, Head of the U.S. Donor Board for UIAW at: sstephenson@keene.edu Dr. Skye Stephenson, “The House of Wisdom: Ecuador’s Intercultural University and Its Challenges,” Cultural Survival, December 12, 2011, http://www.culturalsurvival.org/news/ecuador/house-wisdom-ecuador-s-intercultural-university-and-its-challenges).

Peru defies UN breakthrough on uncontacted tribes, Survival International, April 4, 2012, http://www.survivalinternational.org/news/8245, comments, “Peru’s government is ignoring new UN guidelines on the protection of uncontacted Indians in the Amazon. Instead of backing the UN’s landmark report, which supports the tribes’ right to be left alone, Peru is allowing the country’s largest gas project to expand further into indigenous territories known to house numerous uncontacted Indians. The new UN guidance makes clear that uncontacted tribes’ land should be untouchable, and that ‘no rights should be granted that involve the use of natural resources’. The expansion plan adds to existing controversies around Argentine gas giant Pluspetrol and its notorious Camisea project in southeast Peru. Past oil and gas exploration in Peru has resulted in violent and disastrous contact with isolated Indians.” When Shell workers opened up paths into the uncontacted Nahua Indians’ land, in the early 1980s, diseases quickly wiped out half the tribe. A surviving Nahua who lives close to Camisea’s developments said, “The company should not be here. All the time we hear helicopters. Our animals have left, there are no fish. For this, I don’t want the company. No! No company.” Peru’s President Ollanta Humala has done little to guarantee the survival of indigenous peoples despite having campaigned promising to respect indigenous rights. The Camisea consortium includes US-based Hunt Oil and Spain’s Repsol, both of which have been accused of violating tribal peoples’ rights.

In Peru, there continue to be additional threats to uncontacted Indians, particularly from illegal lumbering and human safaris, which are being increased by road building. In early February, Peruvian authorities raided an illegal logging site in the Manú National Park. In an operation led by SERNANP, Peru’s Department for Protected Areas, park guards and police uncovered more than 3,000 feet of illegally harvested timber, while arresting a group of men and confiscation of their tools in a two-day operation. The men face prison terms of three to six years. The raid followed by a few days Survival International’s release of photographs of the uncontacted Mashco-Piro tribe as part of a campaign to raise awareness of the threats illegal logging poses to their survival. Sightings of the Mashco-Piro have risen in recent months, with many blaming illegal loggers for pushing the tribe out of their forest homes. Small groups of Mashco-Piro men have fired warning arrows at tourists and park authorities on several occasions, and, in November 2011, a Diamante resident, Nicolás (Shaco) Flores, was hit by an arrow and died. FENAMAD, the regional indigenous organization, is now working with local communities to set up a guard post close by, to help protect the Mashco-Piro from intruders, and has criticized tour operators for taking tourists close to where the sightings have been reported. FENAMAD also welcomed the results of the raid, saying it was, ‘working with national and local authorities, including SERNANP, to ensure security for uncontacted tribes.’ By February, more than 100,000 people had signed a Survival petition calling on Peru’s government to do more to protect uncontacted tribes from illegal logging on their land. In mid-February, the Amazon Indian organization Fenamad and the Piro Indian residents of Diamante near the home of the uncontacted Mashco-Piro tribe reached a formal agreement to build the guard post to be manned by local people who will help to protect the area from intruders including illegal loggers, who are rife in the region (“Illegal loggers seized days after photos of uncontacted Indians released,” Survival International, February 8, 2012, http://www.survivalinternational.org/news/8078; and “Guard post to protect Peru’s uncontacted Mashco-Piro,” Survival International, February 24, 2012, http://www.survivalinternational.org/news/8120).

The British newspaper The Observer, reported, in January 2012, that unscrupulous tour-guides working in Manú Park in Peru are trying to profit from sightings of the uncontacted Mashco-Piro tribe. The newspaper sited evidence that some companies are offering tourists ‘tailor-made programs’ where they are ‘lucky’ enough to see ‘uncontacted natives’. The investigation by The Observer suggests that some of the findings bear a disturbing resemblance to the ‘human safari’ scandal on the Andaman Islands. However, Indigenous organizations and authorities in Peru are acting quickly to prevent such a situation, including urging local residents to stay away from the tribe, and are setting up a guard post to prevent intruders from making unwanted contact, while collaborating to ensure illegal loggers are caught and the tribe’s land protected. The threat to uncontacted Indians appeared to be rising in early May as Peru’s Congress was considering designating a proposed road a “public necessity,” that would run from across the southeast of Peru’s Amazon from Puerto Esperanza in the Purus region near Brazil, to Iñapari, with three extremely important protected areas lying in its path, including the Madre de Dios Reserve for uncontacted Indians. The draft legislation for the project notably omits reference to uncontacted tribes, as well as opposition from the region’s indigenous peoples, who make up 80% of the population. If passed in its initial form, the designation as a “public necessity” would override Indigenous opposition to the road that could cut in half the territory of at least two uncontacted tribes. There is a significant possibility that the road would attract an onslaught of illegal loggers and colonists who would devastate their forest and the uncontacted Indians living there (“Spread of ‘human safaris’ threatens Peru’s uncontacted Indians,” Survival International, February 27, 2012, http://www.survivalinternational.org/news/8132; Amazon road could cut uncontacted tribes’ land in half,” Survival International, May 4, 2012, http://www.survivalinternational.org/news/8300; and “Amazon road spells disaster for Indians,” Survival International, March 16, 2012, http://www.survivalinternational.org/news/8178).

“‘Inside job’ as Peru eyes gas in uncontacted tribes' land,” Survival International, May 16, 2012, http://www.survivalinternational.org/news/8337, reports “Secret plans reveal Peru is actively pursuing new gas reserves inside protected tribal land, a flagrant violation of laws that prevent such projects. The Nahua-Nanti Reserve in southeast Peru is known for its uncontacted Amazon tribes, but more controversially, for a wide stretch of gas fields called the Camisea project. Only last month (April 2012), despite 75% of one gas block already dominating the reserve, Peru’s Ministry of Mines and Energy gave the Camisea consortium the green light for more gas exploration. And now Peru has gone further, releasing plans for the country’s first state-owned oil block, which will be inside the legally protected area. Known as Fitzcarrald, and owned by PetroPeru, Survival International can reveal the new site is projected to be east of Camisea’s Block 88. In April, Peru gave Camisea permission to expand its gas fields further into protected land. If confirmed, its location will cut the Nahua-Nanti Reserve in half, and put uncontacted tribes’ lives in immediate danger. Peru’s indigenous organization says ‘there is no doubt the government is attempting to cut up indigenous territories for gas exploration…which will be reflected in the genocide and ethnocide of indigenous peoples.’ The new plans are a clear violation of a 2003 Supreme Decree prohibiting any new development of natural resources inside the Nahua-Nanti Reserve.”

Darrin Mortenson, “Indigenous Protests of Oil Company Yield Accord in Peru’s Amazon,” May 25, 2012, http://indiancountrytodaymedianetwork.com/2012/05/25/indigenous-protests-of-oil-company-yield-accord-in-perus-amazon-114564, reports, “After threatening to seize several of the company’s Amazon oil wells unless officials sat down to talks, Achuar indigenous communities on the Corrientes River won major concessions from Argentinean driller PlusPetrol recently, including a commitment to finally clean up the oil-sodden lake and tributary of Atiliano near the communities of Pucacuro and Pavayacu.” The firm may also be liable to pay for extensive damages to health, the environment and local livelihoods. With the support of regional and national government officials as witnesses – including the Amazon representative of Peru’s public ombudsman, the Defensoria del Pueblo – the leaders of FECONACO, which represents some 35 Native Achuar, Urarinas and Quichua communities from the Corrientes River basin, forced reluctant PlusPetrol executives to take responsibility for the historic contamination of the lake, streams and wetlands that the communities depend on for fish, water and game. FECONACO claims that since 1971 PlusPetrol and its predecessors – Peru’s national oil company PetroPeru and U.S. driller Occidental Petroleum – used Atiliano as a dump for oil collected from spills and for the toxic production waters and other waste. Recent government studies have shown that the lake and surrounding marshes contain high concentrations of phosphates, chlorine, manganese, lead, copper, zinc and other heavy metals associated with hydrocarbons. At least 51% of the people of Pucacuro have tested positive for high levels of lead and cadmium in their blood, according to FECONACO attorney Vidal Coa of the Program for Indigenous Rights (PDDI). A 2004 government study found that the oil-laden layer of sediment at the bottom of Atiliano Lake is a continuing source of contamination for the surrounding ecosystem. PlusPetrol agreed to start the first phase of cleanup as early as May 25. The draft agreement states, PlusPetrol must pay for a comprehensive study of contamination and health of locals by technical consultants of the federation’s choosing. A remaining difficulty remains, as FECONACO attempts to force PlusPetrol to pay for food and drinking water for the 200 families of Pucacuro and as the community pursues the more elusive prize of indemnity. Negotiation of those issues was set to begin May 21 in Iquitos under government arbitration.

Barbara Fraser, “Machiguenga Communities Could be Affected by Peru Gas Production,” Indian Country Today, May 25, 2012, http://indiancountrytodaymedianetwork.com/2012/05/25/machiguenga-communities-could-be-affected-by-peru-gas-production-114494, reported that, A commission appointed to monitor the impacts of Camisa, Peru’s largest national gas production facility and pipeline, in the Urubamba River valley in the country’s southeastern Amazon region, operated by a consortium headed by Argentina’s PlusPetrol, Camisea, that has been pumping natural gas and gas liquids across the Andes to the Pacific coast since 2004, warns that the project could be affecting the diet and culture of Machiguenga communities near the site. Anthropologist Glenn Shepard, a member of the commission, established in 2009 by the United States Export-Import Bank, as a condition for its guarantee of financing for the $3.8 billion project, said community members told him of malnutrition, the appearance of diseases that were previously unknown in the area, and increased alcoholism and domestic violence in the years since gas production began. He said that the an important lesson of the experience with the project to date, is the need for culturally appropriate development planning, not only around Camisea, but also in other parts of the Peruvian Amazon where oil and gas exploration or production is under way in or near indigenous communities. Other problems include the companies’ failure to follow through on properly in the management of development projects designed to compensate communities for the environmental and social impacts of gas drilling. Thus, infrastructure projects, such as water systems, have been abandoned or are in poor repair because of lack of parts or maintenance expertise, while a $150,000 hospital boat that capsized when the river rose now lies partly submerged near the gas field. Meanwhile, the fears of environmentalists of serious ecological damage to the area have been realized in the spills from a series of pipeline ruptures early in the project (and it is not clear what environmental impact the construction and operation of the project has had). Further, while the Camisea consortium kept its agreement to ferry workers and building materials to the site by air, instead of building roads that could open up the region to settlement, the local government is using tax and royalty revenues to build roads upstream, causing the population around the Machiguenga communities to grow, with a number of negative impacts on the Indigenous population, which was not prepared to deal with the changes. The government asserted, at the start, that the project would bring positive development to Indigenous people in the area. Shepard says that while there have been some benefits to the local population, the harm has been greater and does not constitute “development” in a positive sense in terms of the values and interests of the Machiguenga. “Shepard, who worked for many years in the area and speaks fluent Machiguenga, asked 21 residents and nine leaders from 10 communities one question: How have things changed since the company – as local people refer to the consortium – began working? Some people told him they catch fewer fish than before the gas operations began, and the fish are smaller than they used to be. Many blamed pollution, but Shepard said he found those species were available in markets in the town of Sepahua, further downstream, indicating that commercial fishing could be the culprit. Merchants hawking everything from beer and cookies, trinkets and cooking pots are regular visitors to the communities. Shepard said the merchants, who travel from community to community, setting up tents on the river bank for a day or two and leaving trash when they move on, are “like sharks in the water” in a region that has only recently shifted to a cash economy. The people he interviewed complained that beer is replacing masato, a traditional drink made from fermented cassava. That change has affected relationships between women – who traditionally made and served masato – and men, who buy and control the beer, he said. While nine of the people he interviewed said the change to a cash economy was positive, 17 said alcoholism had increased, nine associated it with cultural losses, and 14 saw other negative effects. People in communities reported that domestic violence had also increased, he said. Shepard said the project has also had an impact on education, as many bilingual teachers left their positions to take jobs with oil and gas companies. ‘They’ve lost a whole generation of their most educated people,’ he said. As a result, only about 40% of the teachers in Machiguenga communities are Machiguenga, he said.”

Barbara Fraser, “Peru’s Indigenous Band Together to Protect Their Lands and Water Rights,” Indian Country Today, May 15, 2012, http://indiancountrytodaymedianetwork.com/2012/05/15/perus-indigenous-band-together-to-protect-their-lands-and-water-rights-112918, reports, that as of March 2012, Indigenous peoples in Peru were engaged in the 237 separate ongoing conflicts, more than half of which were “socioenvironmental” disputes, according to the Peruvian government’s ombudsman’s office. Most of those involved communities located near oil drilling or mining operations, and were triggered either by environmental damage or by accusations that the companies were not keeping their commitments to support the local communities’ development. The largest number of conflicts were in the central highland region of Ancash, where Quechua farmers compete for water with a hydroelectric plant on the Santa River. Although heavy rains this year have provided enough water for both farming and electricity, another drought could trigger a conflict like one in 2008, when farmers in the province of Dos de Mayo padlocked the sluice gates on Lake Parón, high in the Andes, saying the hydroelectric plant was draining the lake and would not leave enough water for their crops. Recent changes in rainfall patterns, possibly part of climate change, have aggravated these disputes. Over the past 20 years, farmers in Dos de Mayo have watched the glaciers shrink on the snow-capped Cordillera Blanca, or White Mountain Range, and they worry that they may be left without water. Water is also a concern in the northern highland region of Cajamarca, where Quechua communities are protesting a new mine that would destroy wetlands and four lakes. Dairy farmers on lands below worry that their pastures will dry up. Protests by indigenous communities against large-scale development projects have become more widespread in recent years as the communities have become more aware of their rights, especially those outlined in International Labor Organization Convention No. 169 on the rights of tribal and Indigenous Peoples and the UN Declaration of the Rights of Indigenous Peoples. Although Peru ratified Convention No. 169 in 1995, it did not enact a statute requiring prior consultation until September 2011, and regulations for conducting consultations were finally approved in April 2012. The law, however, does not apply to existing projects, such as mines and oil prospecting, so it is unlikely to settle existing conflicts, although it could head off some future disputes. Achuar people living on a tributary of the Pastaza River in northern Peru near the Ecuadorian border took their battle over natural resources to court, in May 2009. Oil, mining and infrastructure projects threaten to push numerous indigenous peoples off their lands, while a proposed hydroelectric dam on the Inambari River in southern Peru would displace at least 3,000 people, some of them Quechua. Meanwhile, Indigenous leaders have denounced plans to expand drilling in the Camisea natural gas field in southern Peru into the Nahua, Kugapakori and Nanti reserve for isolated people, and indigenous organizations in northern Peru warn that isolated groups along the border with Ecuador are endangered by planned oil exploration in both countries.

Peru, in May 2012, was being forced to consider important issues of reconciliation from the government struggle of the 1980s with the Maoist guerrilla group known as the Shining Path, in which both sides committed horrendous human rights violations. The issue arose in 2011 when a group of former guerrillas began collecting signatures to create a political party to participate in the democratic process they had once sought to destroy. Most discussions of how to memorialize the war in Peru begin with the 2003 report of a government-sponsored Truth Commission, which estimated that more than 69,000 people had died in the conflict. The commission concluded that close to half the deaths were caused by the Shining Path and almost a third by government forces. The rest were attributed to various armed groups, including paramilitary forces, another rebel group and village self-defense patrols. A recent petition, including many thousands of signatures by young people with no memory of the war, asks for an amnesty for c