Written By: Lisa R. Shellenberger

Dr. Yvette Roubideaux, Director of Indian Health Service (“IHS”), recently submitted a column on ICTMN.com, titled “Correcting the Record on the Contract Health Services Program.” This column was in response to the article I previously wrote, “Oversight by IHS Leaves Money on the Table, Patients Holding the Bag.”

The Indian Health Service has made marked improvements as an agency and in its programs while under the Roubideaux Administration. This fact is not in dispute, and we applaud Dr. Roubideaux’s efforts and advances. However, my purpose in writing the column on the Contract Health Services Program (“CHS”) was to highlight deficiencies that still linger despite the program’s progress as an attempt to create the awareness and attention needed to spur additional change.

Real deficiencies exist with regard to the accurate reporting on needed CHS Program funds – that is a reality that does not need correcting. The September 23, 2011 report titled, “Increased Oversight Needed to Ensure Accuracy of Data Used for Estimating Contract Health Service Needed” the U.S. Government Accountability Office (“GAO”) stated, “Due to deficiencies in IHS’s oversight of data collection, the unfunded services data on deferrals and denials that IHS used to estimate program need are incomplete and inconsistent. . . By not encouraging the reporting of unfunded services data from all [CHS] programs, IHS’s data collection activities are not consistent with the Standard for Internal Control in the Federal Government. . .”

I brought to light these “deficiencies” by providing examples cited by the GAO. I previously stated, “[I]n 2009, the federal government did not even receive information from 35 CHS programs.” Reliable data reporting is critical to receiving the maximum amount of funds possible from Congress for the CHS program. If IHS under reports the need for CHS funds, then receiving adequate and sufficient funding to support the program is an impossibility. Moreover, inconsistent and incomplete data could create congressional skepticism regarding the report on needed funds for CHS.

I have no doubt that the efforts of the IHS and tribal workgroup to develop a new, reliable method of obtaining data on unfunded services has been valuable and have been done in good faith. However, the issue is the delay in the implementation of a new method. Again, according to the report, “[A]s of September 2011, IHS officials told us that the agency had not determined whether it would make improvements to the collection of deferral and denial data . . .”

Finally, Dr. Roubideaux stated that the IHS is grateful for the recommendations from the GAO study, as the recommendations will help IHS’s ongoing efforts to improve the CHS program. I, too, am grateful for this study, as I am sure many tribes and tribal members are as well. It is important that the agency charged with providing health care to 1.9 million American Indians and Alaska Natives is closely scrutinized to ensure that it is providing the best health care possible. As a result, ongoing efforts to improve the CHS program can only benefit from increased awareness and an informed public.

Written By:  Lisa R. Shellenberger of Smith, Shelton & Ragona, LLC

The Indian Health Service (“IHS”), an agency within the U.S. Department of Health and Human Services, is responsible for providing federal health services to American Indians and Alaska Natives (collectively, “Native Americans”).   The IHS provides a purportedly comprehensive health service delivery system for approximately 1.9 million Native Americans.  It is becoming clear, however, that funding for the system if far from optimal, and the services do not reach the level of being “comprehensive.”  IHS’s goal is “to assure that comprehensive, culturally acceptable personal and public health services are available and accessible to American Indian and Alaska Native people.”  However, due to deficiencies in IHS’s oversight of data collection, the agency is falling short in accomplishing this goal.

There are thousands of IHS health care facilities around the country, but many Native Americans require care from outside facilities.  The IHS has a program called the Contract Health Services Program (“CHS”), which provides coverage for medical and dental care obtained at non-IHS or tribal health care facilities.  The CHS program is vital to the health and well-being for many Native Americans, as it pays for care from non-IHS providers if 1) the patient meets certain requirements and 2) the funding is available.  The latter condition has become problematic.

In managing the CHS program, the IHS collects data from the federal and tribal IHS programs on outside services received for which funding was not available.  The Patient Protection and Affordable Care Act requires the Government Accountability Office (“GAO”) to study the adequacy of IHS oversight and federal funding for the CHS program.  The GAO found that due to deficiencies in IHS’s oversight of data collection on unfunded outside services, the estimate that IHS used to determine the amount of funds needed for the CHS program was not accurate.  Because the IHS did not track the data well, the CHS program potentially lost out on significant funds – funds that would have made comprehensive care more of a reality for the IHS system.

As an example of the data mismanagement, in 2009, the federal government did not even receive information from 35 CHS programs.  Failing to include the needed funds for 35 CHS programs could, in itself, cause an inadequacy of hundreds of thousands of dollars in funding needed for individual patients.  The format in which the GAO requested this information did not provide a means to track the programs that did or did not submit the data.  Additionally, individual CHS programs reported inconsistencies in how they recorded information on unfunded services, further compounding the issue of adequacy of the information.

Communication between health care providers and IHS is also contributing to the problem.  Providers reported difficulty in determining which services would be approved for payment because, unlike other payers, they cannot check a patient’s eligibility electronically.  Providers also face a lack of training and guidance on CHS policies and procedures regarding payment.

As a result of this deficiency in proper management, increased and adequate oversight by IHS is needed to ensure the accuracy of data used to estimate the true amount of CHS funds needed.  Over a year ago, the GAO recommended that the HHS direct the IHS to ensure that unfunded services data is accurately recorded, CHS program funds management is improved, and provider communication is enhanced.  In November 2010, IHS responded by creating a workgroup to examine weaknesses in its current data and to explore other reliable ways to obtain data on needed funds.  A year later, however, the agency has yet to take any action to improve the system.  Surely a competent, well-meaning workgroup could have come up with a few options that could be implemented quickly.  If you had private insurance, but were being refused treatment because your insurance company took over a year to obtain money currently available to pay for your treatment, wouldn’t you be a little upset?  The egregiousness of the action becomes more evident once the actor is no longer the federal government.  Do we really expect that much more out of private institutions?  If not, where does this discrepancy in accountability originate?

The lack of an accurate estimate of needed funds for the CHS program is causing harm – real, physical harm to Indian people in need of specific and urgent health care.  Many conditions worsen the longer they go without treatment, so delay is very costly in real human terms.  Individuals are not receiving medical care or are not receiving funding for care solely because the IHS has failed in proper management and oversight.  Call this another case of mismanagement of Indian affairs by the federal government or simply call it unacceptable; regardless of what we call it, it has to stop.  It is imperative that the U.S. Department of Health and Human Services step in and require the IHS to implement new data processing and oversight procedures now.  At the end of the day, it is the Indian people that pay for the deficient oversight of the IHS – and at times, they pay with their lives.

Lisa R. Shellenberger is an Associate Attorney at the law firm of Smith, Shelton & Ragona, in Westminster, Colorado.

Written by: Lisa R. Shellenberger of Smith, Shelton & Ragona

Smith, Shelton & Ragona continues to grow – even in the economy’s bad times.  Indian Gaming authority, Andrea Lord Goldstein, was chosen in September to join the team at Smith, Shelton & Ragona as a Senior Associate.

Smith, Shelton & Ragona is one of the few law firms in Colorado dedicated to representing American Indian interests.  The firm partners were asked why Goldstein was the right choice for an addition to the law firm.  Partner Don Ragona stated, “Andrea is a clear, precise technical thinker.  Our clients, and especially our gaming clients, deserve an attorney who can navigate the technicalities of the law as well as National Indian Gaming Commission rules and regulations.  She operates with the confidence and precision that it takes to protect the interests of our Tribal gaming clients.”

For nearly five years, Goldstein was a Staff Attorney for the National Indian Gaming Commission (“NIGC”), where she ensured compliance with the Indian Gaming Regulatory Act (“IGRA”).  She litigated key gaming cases, including the Colorado River Indian Tribes v. NIGC case on Class III regulations, as well as several cases on the gaming status of Indian lands and a Jack Abramoff matter.  Goldstein stated, “While at the NIGC, I created a model gaming ordinance based on best practices used by Tribes, designed an Indian lands database and drafted a variety of regulations, including the facility license regulations.”  She spent a year on special assignment as Counselor to Assistant Secretary – Indian Affairs Carl Artman, specializing in gaming matters.

While many consider her an expert in Indian Gaming practice, Goldstein is a front runner in other areas of Indian law as well.  She explained, “I’ve worked with many aspects of Indian law, from the federal acknowledgment process through placing land into trust status.  As Counselor to the Assistant Secretary – Indian Affairs, I coordinated the team that reviewed what was slowing up the process for placing land into trust and created a handbook for quicker and more consistent processing of fee to trust applications.”  Goldstein also worked with the Native American Rights Fund and the Colorado Commission of Indian Affairs to repatriate remains under the Native American Grave Protection and Repatriation Act.

The partners of Smith, Shelton & Ragona continually checked in with Goldstein as her experience in Gaming and Indian law grew.  Finally this fall, both Smith, Shelton & Ragona and Goldstein felt that it was an appropriate time for Goldstein to come on board.

Goldstein was asked what she would be focusing on in her work at Smith, Shelton & Ragona.  She stated, “[a]t SSR, I’m creating strong regulations, ensuring that contracts favor Tribal interests, and advising on potential business opportunities to bolster economic growth.  In my experience, Tribes with strong regulatory policies and well-functioning court systems are able to attract business partners and encourage reservation development.”

Many Tribes are presently facing new issues in addition to old ones.  New opportunities are arising as well.  As a result, tribes and tribally-related clients are continuously looking to Smith, Shelton & Ragona for legal advice and guidance.  Goldstein explained, “Tribes are expanding into many more areas of economic development.  For example, they are creating their own oil and gas leases rather than allowing the Department of the Interior to negotiate for them.  Here at SSR, we provide not only legal advice, but practical suggestions on ways to maximize revenue, create tourism, or expand business opportunities.  Tribes must create an impression of stability and reliability for their reservations, encouraging entrepreneurs to take advantage of the lower taxes and partner with tribes to promote unique business development opportunities.”

Smith, Shelton & Ragona’s attorney roster will be expanding even more this month.  On October 24, Lisa R. Shellenberger, who has been with SSR since June of 2010 as a Law Clerk, will be sworn in as an attorney by the Justices of the Colorado Supreme Court.

By Andrea Lord Goldstein of Smith, Shelton and Ragona www.ssr-lawyers.com

 On July 21, 2011, the Financial Crimes Enforcement Network (“FinCEN”) released new regulations relating to Money Services Businesses (“MSB”). FinCEN is part of the Department of Treasury that focuses on preventing and detecting money laundering.  The new rules are in addition to the existing requirements for Casinos and Card Clubs found at 31 U.S.C. Part 1021. Indian tribal casinos should be knowledgeable about the new regulations so that they can determine if compliance with the new rule is necessary and so that they can design future promotions and programs in a manner that avoids triggering the applicability of the regulations.

      A casino may qualify as an MSB if it is a provider of pre-paid access to funds in exchange for a check, monetary instrument, or other instrument (i.e., cash, credit or debit card, traveler’s check, foreign currency). 31 U.S.C. § 1010.100(ff)(2)(ii)(A).  If a Casino allows players to place funds on their player rewards card and use the card to play in the Casino or make purchases at local restaurants or retailers, this could qualify.  Gift cards could also qualify.  MSBs need to register with FinCEN and keep records of transactions for five years, including identifying information about the purchaser, among other requirements.[1]

      Fortunately, there are exceptions to the prepaid program provisions.  If the program is a “closed loop” that only allows the user to access the funds at limited locations and the amount of funds that can be accessed in a day is under $2,000, it is exempted from being a prepaid program, so the casino would not be a prepaid program provider and therefore would not be an MSB.[2]  This exception also applies if the casino provides prepaid access to funds for salaries and incentives, employee benefits, pre-tax flexible spending arrangements for health care and dependent care expenses, or for health reimbursement arrangements for health care expenses.[3]

      This is a brief summary of the most likely aspects of the new regulations to affect tribal casinos, not a full restatement of the rule. We recommend consulting with an attorney before beginning any new programs involving gift cards or allowing patrons to preload their players cards with funds for play of gaming machines or purchases so that you may determine how best to proceed. 

If a proposed program triggers the MSB regulations and cannot be revised to avoid doing so, the Casino’s anti-money laundering program and training would need to be updated and other steps taken to ensure compliance with federal law.

 You can review the new regulations here: http://www.regulations.gov/#!documentDetail;D=FINCEN_FRDOC_0001-0009.

Smith, Shelton and Ragona is available to help you evaluate your anti-money laundering protections should you so desire.

[2] 31 U.S.C. §§ 1010.100(ff)(2)(ii)(A), 1010.100(ff)(4), 1010.100(ff)(4)(iii).

[3] Id.

The link below contains a story by Fred Knapp of Nebraska Public Radio on the Oglala Sioux Tribe’s new Nursing Home development at White Clay, Nebraska. The firm has helped with the project in several steps, and partner Brett Lee Shelton provided the reporter legal analysis concerning the land in the area in preparation for the story.

www.publicbroadcasting.net

Written By:  Lisa R. Shellenberger of Smith, Shelton & Ragona

“I was beaten with a leather strap from my ankles up to my back [for attempting to run away].  I can remember how the ex-sergeant, [turned priest,] would still wear his army boots under his robe . . . he almost beat me to death.”  “A few years later . . . my little sister was raped.”

These heavy words came from Tim Giago, an American Indian boarding school survivor, at the Boarding School Healing Symposium held at the University of Colorado Law School (CU Law) on May 14 – 15.  Giago spoke with great openness on the truly life changing education he endured during his ten years at a Catholic Indian mission boarding school in South Dakota in the 1940s. Rosemarry Gibbons, another member of the Symposium, shared her award-winning film, A Century of Genocide.  The film is a short, yet powerful documentary on how Indian Residential Schools became a haven for institutionalized sexual abuse.  Saa Hiil Thut [Gerry Oleman], narrator of A Century of Genocide, also appeared and offered personal accounts on the destruction boarding school had on his spirit, his life, and his family.

While finding the courage to talk about what happened in schools established by our Nation’s churches and government is almost insurmountably difficult, individuals involved in the Symposium are doing even more than just talking about it – they’re doing something about it.  The Boarding School Healing Symposium Planning Committee established a mission devoted to solving the problems the boarding schools created, which include: suicide, alcoholism, sexual abuse, drug addiction, violence, parenting issues, loss of culture, extinction of native languages, and a multi-generational gap in custom and way of life.

The Boarding School Healing Symposium, coordinated by CU Law’s American Indian Law Clinic Director, Jill E. Tompkins, brought together approximately 36 individuals from many different states and countries that have been working with, writing about, or working toward the resolution of issues arising from the Boarding School Policy, a federal policy themed “Kill the Indian, save the man.”  This group was comprised of lawyers, educators, social workers, boarding school survivors, native elders, film makers, and many other advocates.

The American Indian Boarding School problem was not openly discussed, whether by the government, the churches, the Indian communities affected, or the survivors themselves, until about ten years ago.  First from the federal government to speak on the issue was Kevin Gover, then of the Department of the Interior.  In 2000, he issued a statement that said, “Never again will we seize your children, nor teach them to be ashamed of who they are.  Never again.”  This acknowledgement was followed nearly ten years later by President Obama signing into law the 2010 Defense Appropriations Act, which included in footnote titled Section 8113, otherwise known as an “apology to Native Peoples of the United States.”  The footnote briefly acknowledged, “[T]he Federal Government condemned the traditions, beliefs, and customs of Native Peoples and endeavored to assimilate them by . . . the forcible removal of Native children from their families to faraway boarding schools where their Native practices and languages were degraded and forbidden.”  Unsurprisingly, the passage of the footnote apology went largely unnoticed; it is said even the White House is unsure of what to do with Section 8113.

While some recent attention, indeed sparse, has been paid to the devastating issues created in Indian communities by boarding schools, the Boarding School Healing Symposium was one of the first gatherings dedicated to organizing a collaborative solution to resolve the problems created by American Indian boarding schools.  The express purposes of the Symposium was (1) to have these individuals identify goals, and agree on a strategy to secure a meaningful apology to the Native American individuals, communities, Tribes, Pueblos, and Alaskan Villages victimized by the policies’ deliberate goal of cultural genocide—wiping out the cultures, (2) to secure adequate resources to support healing in those communities impacted by the policy, (3) to provide mechanisms to seek redress for individuals and/or communities who need or want that, (4) to provide mutual support to the efforts of those working toward these and coordinate goals, and (5) to identify the needed social/psychological, health, cultural, legislative, legal, educational, media, and funding necessary to carry such a strategy forward.

As stated by James Anaya, the United Nationals Special Rapporteur on the Rights of Indigenous Peoples, “Be informed, be involved, be inspired.”  Applaud those that are a part of the Boarding School Healing Symposium Planning Committee; simply mention it in a conversation.  Know that you, too, can help rebuild the cultures, languages, and senses of community that were literally beaten out of Indian children, and as a result, out of Indian communities.   Many are uneducated on the history of Indian boarding schools, through no fault of their own, and some would certainly be eager to learn.  So help educate the millions of Americans that are unaware of the genocide that occurred by their churches, by their government, and on their soil.  When a century’s worth of Indian children are stolen, malnourished, beaten, killed, and raped, the effects continue to ripple through time until someone rises against the tide.

Help break the silence.  Be informed, be involved, be inspired.

Written By:  Molly Barnett, Attorney at Smith, Shelton & Ragona

Rapid City, SD: From tragedy to success– the Native Healing Program (NHP) in Rapid City recently rebuilt its alcohol and drug treatment center out of the ashes, literally. And now the program is being recognized as Program of the Year among all 30 alcohol and drug treatment programs within the Aberdeen Area of the Indian Health Service.  This is no small feat, especially given the rapid turnaround the program has had to make in order to be recognized with such an honor.

The program is operated by the Oglala Sioux Tribe, in cooperation with and on behalf of members of the Oglala, Cheyenne River, and Rosebud Sioux Tribes.  A year ago, in April of 2010, an electrical fire destroyed NHP’s outdated facility.  Although thankfully no one was seriously hurt in the fire, NHP was forced to temporarily cease its treatment and recovery services. Determined to resume services, and practicing its own teachings of healing in the midst of extreme adversity, NHP began the process of rebuilding.

There were, of course, some setbacks.  A compliance issue with the Health Insurance Portability and Accountability Act (HIPAA), which arose during previous management at the Program, required the Program to revise its confidentiality policies. With the help of its attorneys, Smith, Shelton and Ragona, LLC of Westminster, Colorado, the revised policies will now ensure future confidentiality of client records and avoid fines and fees associated with past deficiencies. Additionally, the Program and its attorneys revised NHP’s entire personnel policies and procedures, ensuring a compliant, healthy work environment.

Overcoming those obstacles, NHP next focused on negotiating with the Indian Health Services to secure funding for a new facility. Every year, the Indian Health Services enters into an Indian Self Determination Contract (P.L. 93-638) with tribally-run Indian health programs. Such contracts are intended to provide funding for services that IHS would ordinarily provide, but have instead delegated to tribal entities who know their people, in Lakota their “Oyate” , best. Such is the case with NHP, which uses traditional Lakota teachings to treat alcohol and drug abuse. NHP’s negotiations with IHS were successful, and under a revised 638 contract, NHP received funding for a new, up-to-date modular facility.

In the beginning of 2011, NHP moved into its new facility and started out-patient treatments again.  With the vision of its Program Director, Gloria One Feather, and the dedication of its counseling team, the Program is off to a great start. There were 30 programs competing for the award, and, out of all programs, Native Healing Program showed the most improvement over the past year.  Janelle Janis, counselor from Native Healing Program was also recognized with the Fire Stomper award for her ability as Peace Keeper and mediator.

The award was presented to NHP on May 04, 2011 during the awards luncheon at the Aberdeen Area Behavioral Health Conference, Mystic Lake (Prior Lake) MN. Lelewis Gipp , Director of the Aberdeen Area Alcohol Program  provided,  “the Native Healing Program was selected from a list of nominees for the award for Program of the Year.  The Native Healing Program showed resiliency following adversity which included the lost facility.  Their display of teamwork is commendable which led to the development of program policies and procedures, updated curriculum and the NHP website among other activities and projects.”

Gloria One Feather, Director of NHP said, “receiving the award comes one year after the fire, which was a year filled with hard work for the NHP staff. The Native Healing Program worked as a team and demonstrated their abilities, skills and most of all their perseverance. The acknowledgement came at a good time and is truly is boost for staff morale. Our concentration is focused on quality service delivery to our community while planning for the future of NHP. Wopila for the support of OST, Sioux San and all the Aberdeen Area Alcohol Programs.”

If you are interested in learning more about Native Healing Program or its treatment services, please visit NHP online at www.nativehealingprogram.org .   The Program is run by the Oglala Sioux Tribe’s Health and Human Services Committee. The Program provides alcohol and substance abuse treatment to the Rapid City (Mni Luzahan Otunwahe) Native American Community and other affiliated tribes in the region.

Lakota Oyate Wakanyeja Owicakiyapi – Job Announcement

Lakota Oyate Wakanyeja Owicakiyapi “LOWO” is a tribal child welfare agency, chartered in April 2003 by the Oglala Sioux Tribe, a sovereign nation located on the Pine Ridge Indian Reservation. LOWO provides comprehensive services that ensure the safety, permanency and well-being of OST children and youth who have entered or are at risk of entering the child welfare system.

Executive Director

General Objectives

The Executive Director of the Lakota Oyate Wakanyeja Owicakiyapi (LOWO) oversees and manages the full range of operational functions of LOWO.  The Executive Director is responsible, ultimately, for the quality of care provided to American Indian families served by LOWO; will lead in building community and tribal/state/federal program networks and influencing the provision of Indian child welfare services in the local community; will ensure that all LOWO activities are consistent with the mission and values of LOWO, will assume responsibility and leadership in overall management of the organization; and will assume leadership in influencing Indian child welfare practice, policies and laws on the tribal, state and national levels.

The Executive Director will be responsible for securing the financial resources of LOWO so that children/families receive quality culturally appropriate services. The Executive Director will be responsible for developing strategies that strengthen LOWO’s provision of services to children/families and enhances collaboration with local, tribal, state and federal child welfare agencies.

Nature and Scope of Position

• This position reports to the Board of Directors
  • This position requires frequent contact, including written communication and phone calls, with administrators in various tribal, state and federal agencies.

Principal Duties and Responsibilities

1. Lead collaborative efforts with tribal, state, federal and private agency heads to develop strong and effective relationships that will enable LOWO to access reliable funding streams for quality child welfare services to children/families
2. Act as primary public relations representative in fundraising and development activities, acting as media spokesperson, meeting with community, tribal, and state representatives to promote LOWO and serving on advisory committees/boards as appropriate.
3. Exhibit leadership and demonstrate management skills by establishing a high level of practice, performance and productivity standards; provide overall direction that ensures quality service practices and methodologies for all services provided to children and families consistent with the mission of LOWO.
4. Promote a high level of effective communication with funding and service partner agencies/organizations
5. Interpret and administer all LOWO policies and guidelines.

1. Lead staff in planning and administering the LOWO annual budget(s).

1. Direct the development and implementation of an evaluation system that measures both staff and program performance/effectiveness.

1. Provide Community leadership in ensuring that LOWO is a major partner with tribal and community organizations, businesses and other agencies.

1.  Lead the development of long-term funding plans and strategies. 

10.  Manage multiple revenue streams with the goal of fiscal responsibility including budgeting and reporting as required by funding sources.

11.  Provide leadership in Indian child welfare services planning and advocacy; maintain familiarity with pending federal, state and tribal legislation and actions that may impact LOWO.

Qualifications

This position requires a masters degree in social work with a social work licensure in South Dakota at the masters level.  A minimum of  five years of progressively responsible experience in management, administration, and supervision.  Extensive knowledge of Lakota culture and understanding of the Lakota language.  Applicants must be alcohol/drug/violence free and be able to pass a drug test.  Applicants must be willing to reside on the Pine Ridge Indian reservation.

Understanding of government agencies and the child welfare system and knowledge of the legal system as it applies to child welfare is highly desired.  Knowledge of the principles, concepts and methodology of child welfare services, including protective services is important as is knowledge of courtroom procedures for child protection issues. 

Extensive experience in budget planning and administration, information systems, research, and knowledge of federal and state programs and practices, as well as experiences with collaborative program development is highly desirable.

Frequent travel will be necessary.  Salary negotiable based on qualifications and experience.

Indian preference will apply.

Please send resumes to:

Lakota Oyate Wakanyeja Owicakiyapi

Attn: Susan DuBray,  Acting Executive Director

P.O. Box 604

Pine Ridge, South Dakota  57770

605-867-5752 phone 605-867-5941 fax

The Uniform Law Commission is developing a Model Tribal Probate Code, which will help address certain issues remaining for Indian probate even after the American Indian Probate Reform Act, such as:
1. Inheritance by children born out-of-wedlock
2. Rights of adoptees, including children adopted by relatives of natural parents
3. Definition of who is “spouse,” including by common law or customary marriages
4 Definition of “land” as being separate from buildings and improvements
5. Clarify the obligations of a surviving spouse with regard to management of a life estate interest
6. Provisions for family heirlooms that would exempt them from creditors and retain eligibility for government benefits
7. Ability to use an informal document to dispose of tangible personal property
8. Interpretation and construction of wills generally
9. Protection of spouse from disinheritance
10. Extend summary administration of small estates to interests in real property

These are important issues and we encourage tribes, their attorneys, and tribal members to support the project. Having a Model Code in place will provide a good starting point.

Of course, we advocate that tribes work with attorneys able accomodate cultural differences between each tribe, in order to incorporate tribally specific changes into the Model Act prior to a tribe adopting its own probate code.

Letters of support can be sent to:
Mr. Dale Higer
Chair, ULC Study Committee on Model Tribal Probate Legislation
Uniform Law Commission
111 N. Wabash Avenue, Suite 1010
Chicago, IL 60602

Written By:
Lisa Shellenberger of Smith, Shelton & Ragona, LLC

Congress, American presidents, the United States Supreme Court, and the States have all, in many varied ways, given recognition to Native American tribes as sovereign entities. Sovereign tribal authority is inherent to Indian tribes and pre-dates any other form of law in this country. It is recognized in enduring constitutional principles, and the Supreme Court has explicitly confirmed that the United States Constitution acknowledges the status of tribes as nations. Due to their sovereign, national status, tribes are political entities; they are not racial groups. Therefore, the federal and state governments must deal with tribes differently. Morton v. Mancari, 417 U.S. 535 (1974). The key principle here is that tribes’ political status is the fundamental difference between Indian Nations and other groups of people within the United States, such as African Americans, as John Stossel suggested. This critical and unique distinction between tribes and other groups of people is a crucial factor that Mr. Stossel, and unfortunately most Americans, is missing.

Stossel’s commentary questioning the purpose of the Bureau of Indian Affairs (“BIA”) is ignorant of an important principle grounded in centuries of American history, custom, and law: Indian tribes have a historic and special relationship with the federal government. At its broadest, the special relationship between the tribes and the federal government includes the mixture of legal duties, moral obligations, understandings and expectancies that have arisen from over the course of over 235 years of dealings between the federal government and tribes. In its narrowest sense, the relationship approximates that of trustee and beneficiary, with the trustee (the United States) subject to a degree of legally enforceable responsibilities.

This special relationship exists due to the nature of the two assemblies being separate sovereigns, but with tribal sovereignty existing under the umbrella of federal sovereignty. This apparent hierarchy exists because the Supreme Court declared Indian Nations to be “domestic dependent nations,” with a relationship to the United States like that of a ward to a guardian. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Due to their nation status, the federal government and the states have been entering into legally enforceable contracts with tribes for centuries. These agreements have been and are still made with the understanding that tribes are separate political bodies. The American government has never acknowledged any other groups’ political power, sovereignty, or national presence within the United States.

While illustrative of tribal sovereignty and the trust relationship owed by the federal government, treaties have not always been positive agreements for American Indians. For the layman, treaties are much like contracts. Tribes put up substantial considerations for the services they are receiving now from the federal government. The loss of countless Indian lives, the unilateral taking of millions of acres of land, the willful degradation and attempted eradication of Indian cultures, and the stripping and taking of tribal natural resources and food were all actions taken by the U.S government to satisfy its greed and an equally greedy and fearful American populace. Nonetheless, these sacrifices were made in exchange for “considerations” that the tribes were to receive from the federal government, including federal oversight, assistance, and protection. While many of the treaties were drafted over two hundred years ago, the United States is still bound by its word, and as a result – much like a contract for services – the enforceability of treaties remains sound.

The primary instrument for carrying out the federal trust responsibility has been the Bureau of Indian Affairs, located for the past one hundred fifty years within the Department of the Interior. The Bureau has evolved into a complex bureaucracy of many thousands of employees, which includes twelve Area Offices and eighty-odd Agencies located on reservation lands. The most substantial activities of the Bureau today are education and the management of tribal resources, particularly lands. Examples of other activities are the administration of Bureau housing programs, building and maintenance of roads, licensing of Indian traders, provision of emergency relief, and the administration of various grant programs. The BIA’s initial paternalistic role is fading, and today the emphasis of federal policy is upon encouraging tribal self-determination, and the Bureau has certainly receded from monolithic control of tribal affairs. Additionally, many of the Bureau’s management functions have been contracted to the tribes under the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C.A. §450 et seq.

Stossel boldly, yet with tragic ignorance, argues for the Bureau’s abolition without any regard for the consequences. Many, like Stossel, may contemplate why the Bureau of Indian Affairs still exists if tribal self-determination is the goal. The answer is that the Bureau of Indian Affairs still exists because it was bargained for by the tribes. Countless treaties, executive orders, and agreements between tribes and the United States provided that the federal government would indefinitely be bound to a federal trust responsibility, which includes the administration of a number of programs for tribes. The BIA is seen as the embodiment of the federal trust responsibility. And while tribes may face difficulties with tribal autonomy and self-determination due to the existence of the Bureau, the suggestion of abolition inevitably encounters opposition from the tribes.

Tribes have structured their reservations, laws, and governments to account for the federal government oversight to which they acquiesced and the assistance for which they bargained. If the federal government simply abolished the BIA, as Stossel advocates, the federal government would breach one of its oldest and greatest responsibilities. An attempt to end the BIA is perceived as an attempt to do away with the trust relationship itself – in other words, to “terminate.” Termination is akin to genocide. Of course, this has already been tried in the history of federal-tribal relations. The experience of the tribes whose relationship with the federal government was terminated in the 1950’s was sufficiently dismal that any hint of the policy’s revival triggers instant opposition. Tribes would once again suffer greatly, and not because they are unable to survive without federal government assistance, but because they have rightfully relied on a partnership with the federal government for many years. With this partnership, tribes have chartered countless successful businesses, creating whole Indian economies, some of which have expanded into international markets. So while some tribes still need federal assistance and some do not, all are legally entitled to it.

Before John Stossel makes another bold statement regarding what he thinks about the BIA, he may want to first reference and understand centuries of American Indian history and law.