Piliero, Mazza and Pargament, PLLC.

Piliero Mazza & Pargament, PLLC Vol. 5, Issue 4 April 2003

Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


The articles shown here are excerpts -- if you'd like to subscribe to Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at


A R T I C L E S


COURT WATCH - Supreme Court Decides White Mountain Apache and Navajo Nation Cases

Supreme Court to Hear Bishop Paiute Case


FEDERAL - Senate Indian Affairs Committee Holds Hearing on Federal Recognition for Native Hawaiians


INTERVIEW - The Tribal Advocate Speaks with Ambassador Charles W. Blackwell

ON THE HILL - Senator Campbell Introduces Two Native American Bills


COURT WATCH

Supreme Court Decides White Mountain Apache and Navajo Nation Cases

In the January 2003 issue of the Tribal Advocate, we speculated that the Supreme Court would use two cases, United States v. Navajo Nation and White Mountain Apache Tribe v. United States, to clarify the government’s trust duties toward tribes and the remedy that tribes should have for breach of those duties. On March 4, 2003, the Court issued both opinions. As forecasted, the extent of the U.S. government’s fiduciary duty to tribes is now better defined.

In a decision written by Justice Souter splitting the votes five to four, the Court affirmed the decision of the Court of Appeals for the Federal Circuit in favor of the White Mountain Apache Tribe. At issue in the case was whether the Court of Federal Claims had jurisdiction over the Tribe’s suit for breach of fiduciary duty by the United States from its failure to manage and maintain Fort Apache. The Court reasoned that, although the 1960 Act, which placed Fort Apache in trust, did not expressly require the U.S. government to manage and conserve the property, the fact that the United States occupied the trust property supported a "fair inference" that there was an obligation for the United States to preserve the property as a trustee. The Court rejected the government's arguments that the 1960 Act "carved out" of the trust the government's use of the property, that a "fair inference" requires a plain and explicit provision for money damages in the 1960 Act, and that injunctive relief is the only proper remedy. Thus, the Court came out on the side of Mitchell II, in which the Court held the government responsible as a fiduciary because of the "fair inference"; that timber management statutes under which the government assumed "elaborate control" over tribal forests mandated compensation for any damages sustained.

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FEDERAL

Senate Indian Affairs Committee Holds Hearing on Federal Recognition for Native Hawaiians

On February 25, 2003, the Senate Indian Affairs Committee held a hearing on S. 344, a bill to provide a process for the recognition of the Native Hawaiian governing entity. The hearing was the committee’s first legislative hearing of the 108th Congress, demonstrating the Hawaiian senators’ interest in moving the measure forward.

Senator Akaka (R-HI), with cosponsoring Senators Inouye (D-HI), Reid (D-NV) and Stevens (R-AK) introduced the bill to express the policy of the United States regarding its relationship with Native Hawaiians. Additionally, the legislation provides for a process for the recognition of the Native Hawaiian governing entity by the United States, also referred to as a policy of self-governance and self-determination. The bill would seek to establish within the Department of Interior, the Office for Native Hawaiian Relations.

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COURT WATCH

Supreme Court to Hear Bishop Paiute Case

In March 2000, the sheriff and district attorney of Inyo County, California, entered restricted areas of the Bishop Paiute Tribe’s gaming enterprise with a search warrant issued by the California Superior Court. Investigating possible cases of welfare fraud, the sheriff and district attorney used deadbolt cutters to gain access to the Tribe’s confidential employee personnel records. The Tribe filed suit in federal district court alleging that its rights had been violated. The district court dismissed the case and the Tribe appealed.

On January 4, 2002, the Court of Appeals for the Ninth Circuit ruled that Inyo County and its agents violated the sovereign immunity of the Bishop Paiute Tribe by obtaining and executing the search warrant against the Tribe and its property. The Ninth Circuit also found that the actions of the county’s district attorney and sheriff subjected the county to monetary liability. The county filed a petition with the Supreme Court, and was granted certiorari. Since then, a host of jurisdictions and organizations have filed “friend of the court” briefs expressing their opinions on tribal sovereignty and tribes’ relationships with state and local law enforcement. Now, more than ever, the role of law enforcement is at the forefront of public awareness — domestically, as well as internationally.

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INTERVIEW

The Tribal Advocate Speaks with Ambassador Charles W. Blackwell

The Tribal Advocate had the pleasure of speaking with Charles W. Blackwell, Ambassador for the Chickasaw Nation in Washington, D.C and principal of Pushmataha House, a government affairs and business development firm specializing in Native American issues. The interview was held on March 12, 2003 at Pushmataha House.

Tribal Advocate (TA): Ambassador Blackwell, what is your role as Ambassador for the Chickasaw Nation?

Ambassador Blackwell (Ambassador): I am the diplomatic presence for the Chickasaw Nation in Washington, D.C. Primarily, there are three roles I play. First of all, my role is to maintain good strong ties and relations with the Congress and the White House. Congress makes the policy and the White House implements that policy in Indian Country. Secondly, I foster and initiate trade and business development opportunities for the Chickasaw Nation. The third thing I do, as ambassador, is help protect and preserve the Tribe’s identity and culture in the eyes of people all over the country,and indeed, all over the world.

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ON THE HILL

Senator Campbell Introduces Two Native American Bills

On March 5, 2003, Senator Ben Nighthorse Campbell (R-CO) introduced two bills that could spark economic development for tribes and Native Americans.

The first bill, the Native American Capital Formation and Economic Development Act of 2003 (S. 519), if enacted, would establish the Native American Capital Development Corporation. With passage of this bill, according to Senator Campbell, “tribes themselves will be the financiers and shareholders of the [corporation] which will focus on mortgage lending and Indian home ownership; provide assistance to Native financial institutions; and work to create a secondary market in Indian mortgages.”

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