The nation’s highest court recently upheld the Indian Child Welfare Act in a major case over the law’s constitutionality, a decision hailed by many as a victory for Indigenous children and their families.

But while the 7-2 majority decision in the Brackeen v. Haaland case firmly rejected key arguments against the law known as ICWA, state-level challenges have been moving through lower courts across the country, with varying degrees of success.

Cases in Nebraska, Alaska, Iowa, Montana and Oklahoma center on different legal issues than those decided by the U.S. Supreme Court last month. Plaintiffs in Brackeen v. Haaland — a group of states along with white adoptive parents seeking custody of Native children — argued unsuccessfully that ICWA was unconstitutional because it exceeds the “plenary powers” of Congress to pass legislation governing tribal affairs, “commandeers” states to follow federal law and violates equal protection guarantees.

Yet while the Supreme Court upheld ICWA’s constitutionality for now, legal experts who are both supporters and critics of the 45-year-old federal law say the Brackeen case doesn’t rule out future challenges to tribal sovereignty.

What’s more, justices declined to delve into the equal protection arguments in the case, stating only that the plaintiffs “lack standing” on that issue because the adoptions of Indigenous children they sought had been finalized. Some court watchers say that leaves open the possibility of future lawsuits on equal protection issues.

The 1978 law in question seeks to repair damage caused by centuries of forced attendance at Indian boarding schools and coercive adoptions into white, Christian homes. That legacy has endured in Indian Country, where the rate of foster care removals remains far higher than in other racial and ethnic communities.

Under ICWA, state child welfare agencies must determine whether a child facing foster care, adoption or guardianship is a member of a Native American tribe. If they are an enrolled member or have a parent who is enrolled and are eligible for tribal membership, the case takes a different pathway than for other children. Tribes must be offered the opportunity to take jurisdiction from the state court; tribal members and Indigenous foster parents and kin must be prioritized for placements; and social service agencies must make “active” rather than “reasonable” efforts to help parents accused of maltreatment reunite with their children.

Kate Fort, director of the Indian Law Clinic at Michigan State University College of Law, outlined the most common reasons for an ICWA appeal in the March edition of the Juvenile and Family Court Journal.

She wrote that between 2017 and 2022, more than 40 percent of all such cases were remanded — sent back to lower courts — or reversed. Plaintiffs in 87 percent of the ICWA-based appeals were biological parents of an Indigenous child. About half the cases were appealed based on parents’ belief that the court improperly determined ICWA’s application to their child’s case.

“These data indicate that agencies and courts are still struggling with the first step in an ICWA case — whether they have an ICWA case at all,” Fort wrote in the paper.

Two ICWA-related cases were decided by the Alaska Supreme Court in July 2022.

They involved the federal law’s provision requiring that a “qualified expert witness” testify about the Indigenous child’s tribe, customs and traditions before their parent’s rights can be terminated. Those challenges did not prevail.

Recent disputes over ICWA in state courts center on tribal jurisdiction, the definition of a Native child, and termination of parental rights, among other issues. The following is a summary of some recent cases:

Oklahoma

Tribal court jurisdiction in child welfare cases lost ground in an April ruling in Oklahoma. In the decision — involving a child identified as S.J.W. — the state Supreme Court gave lower courts increased ability to grant custody of Native children living on a reservation that is not their own.

S.J.W.’s parents argued that “the Chickasaw tribal court has exclusive jurisdiction regardless of the fact that S.J.W. is a nonmember Indian child,” according to court documents. The state maintained it had shared jurisdiction on cases involving ICWA.

Critics call the ruling involving a Muscogee child living on Chickasaw Nation’s reservation deeply flawed.

The state Supreme Court “misunderstands tribal sovereignty,” the Choctaw Nation’s senior executive officer of legal and compliance Brian Danker told a National Public Radio affiliate. “This ruling could impact a tribe’s ability to protect tribal citizens’ social, cultural and familial connections as it attempts to chip away at the foundations of tribal sovereignty in the state of Oklahoma.”

Fort described the Oklahoma ICWA case as unique, and a “truly unfortunate opinion with absurdly weak analysis.” Fort said tribes’ ability to retain jurisdiction over child welfare cases remains an ongoing fight in multiple states.

Iowa and Nebraska

In another suit filed this past April by the Red Lake Band of Chippewa Indians, the Supreme Court in Nebraska denied the tribe’s request to intervene, because it had previously been determined the child in question did not meet the criteria of an “Indian child.” The child’s mother was eligible for tribal enrollment, but was not yet enrolled.

The tribe argued the spirit of ICWA should apply to the case, but the state of Nebraska opposed that position, and was victorious in court. Ultimately, the state’s highest court ruled that ICWA’s specific requirements to determine a child’s eligibility for its protections should be strictly applied.

In April 2022, the Iowa Supreme Court upheld a juvenile court’s ruling that denied a child ICWA protections, affirming a prior decision to terminate the rights of the child’s parent. The juvenile court found the state’s “reasonable efforts” to avoid out-of-home placement — instead of the “active efforts” required for tribal members under ICWA — were adequate because the child was deemed to be non-Native.

Montana

ICWA was affirmed in a Montana case decided by the state Supreme Court in January, a ruling that underscored how the federal law applies to guardianships and third-party custody proceedings, in addition to adoption and foster care cases.

The child’s mother, an enrolled member of the Native Village of Kotzebue Tribe in Alaska, provided the court with verification that her three children were eligible for ICWA protections. She asked the courts to remove her children from the Montana home of their paternal grandparents — who had full custodial rights — and restore her custody. The case was sent back to lower courts for further proceedings to determine if the children should be returned to their mother.

Minnesota

Nearly two weeks after the Brackeen decision in mid-June, the U.S. Supreme Court denied review of a recent Minnesota case making a related equal protection argument — that ICWA discriminates against non-Native foster and adoptive parents.

In March 2022, Hennepin County was sued by two Indigenous foster parents who were unsuccessful in the adoption of the Indigenous child they were fostering. Instead, the child’s tribe, Red Lake Band of Chippewa, took over the proceedings and granted custody to the child’s maternal grandmother. The foster parents were considered “nonmembers” in the ICWA case, because one is enrolled in the Bois Forte Band of Chippewa and the other is a White Earth Nation descendant.

The plaintiffs in the case — who, under ICWA, lost priority in their adoption efforts in favor of the child’s relative despite having adopted the child’s siblings — were represented by Minnetonka attorney Mark Fiddler, a member of the Turtle Mountain Band of Chippewa Indians. He also represented the white adoptive couples seeking to overturn ICWA in Brackeen v. Haaland. The conservative Goldwater Institute filed amicus briefs in both cases, challenging ICWA’s constitutionality.

In an email, Fiddler said that while the institute attacked ICWA as unconstitutional, the plaintiffs did not. “Rather, they argued ICWA could and should be interpreted to be constitutional by not forcing nonmembers into a jurisdiction foreign to them,” he said.

“Petitioners were improperly subjected to the personal and subject matter jurisdiction of a state foreign to them, one where they have no right to vote,” plaintiffs stated in Denise Halvorson v. Hennepin County Children’s Services Department case documents. As a result, the lower court violated “their due process rights to fundamental fairness and equal protection.”

But the petition to the U.S. Supreme Court was denied on June 26.

Fiddler said despite the high court upholding ICWA in Brackeen and its denial of the Hennepin County case, establishing standing in an equal protection case against ICWA “would be easy,” and he fully expects continued challenges to the law on this issue and others.

“Any foster or adoptive parent would have the right to move to strike down ICWA in state court, so long as he or she was jeopardized by it somehow,” Fiddler stated shortly after the Brackeen decision.

The Imprint is a non-profit, non-partisan news publication dedicated to reporting on child welfare.

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Minnesota teachers renewing their license must now undergo training about Native American history and culture.

The Legislature passed a law this year requiring training for K-12 teachers about the “cultural heritage and contemporary contributions of American Indians, with particular emphasis on Minnesota Tribal Nations,” in order to renew their license.

The requirement goes into effect for less-experienced teachers Tuesday and the remainder of the teaching corps Jan. 1.

Teachers already must fulfill multiple requirements to renew their licenses, including training on suicide prevention and reading preparation.

In addition, they are required to undergo cultural competency training — which includes instruction on how to best serve Native American students — to renew their licenses, but Native American-specific training will eventually be its own requirement.

The Minnesota Professional Educator Licensing and Standards Board is working on the Native American history rollout and exactly what the training will include. Until then, teachers can fulfill the new requirement under the existing cultural competency training.

In his education budget, Gov. Tim Walz recommended Native American history renewal requirement for teachers and argued the current cultural competency requirements for teachers didn’t dedicate enough time specifically to Native American history.

“Given the rich history of American Indians and their contemporary contributions, more time and resources should be provided to Minnesota educators,” Walz’s budget proposal stated.

Education Minnesota, the state’s teachers union, said in a statement that it supports the new training requirement, but noted it adds an additional burden for teachers.

“Minnesota’s Indigenous history is complex, rich and long, and it has been far too often ignored in both U.S. and Minnesota history lessons,” said Education Minnesota President Denise Specht. “At the same time, we have to be aware of the extra time and effort each new requirement adds to the plates of educators, and give them the adequate time and training they need to address these important pieces of delivering a well-rounded education.”

The state licensing board said it will release more information about the requirement’s specifics in the coming weeks.

Minnesota’s academic standards for students include material about the cultural heritage and contributions of Native Americans and the tribal nations with which Minnesota shares borders. The Legislature this past session also mandated school districts offer curriculum on the Holocaust, the genocide of Indigenous people and the removal of Native Americans from Minnesota.

This article was first published in the Minnesota Reformer. 

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Fire season is underway in Montana, with a number of active fires burning more than 1,000 acres.

Wildfire crews are battling several on the Flathead Indian Reservation; with three of the largest fires being the Niarada, Big Knife and Middle Ridge fires.

A community meeting is planned for Thursday, Aug. 10 at the Arlee Community Center regarding the Niarada, Big Knife fires and another fire, the Mill Pocket fire.

The largest fire in the state is the Niarada and is burning west of Elmo on the northern end of the reservation. It was ignited by lightning on July 30.

The forest in the area involved in the fire includes a mix of timber, including some that is downed and dead. The area also has brush and shorter grass near the valley bottom, according to Inciweb, an interagency all-risk incident information management system.

As of Wednesday morning, the fire had burned more than 20,000 acres and is 25 percent contained, according to MTfireinfo.org.

From the Aug. 9 fire update from Confederated Salish and Kootenai Tribes Division of Fire, four structure have been lost since the fire was initially ignited although it does not specify what type of structures.

Additionally, areas near the base of the mountains near the Big Knife fire have been placed in pre-evacuation status by the Lake County Sheriff’s Office. The same office downgraded areas near the Niarada from “evacuation” to “pre-evacuation warning.”

“A PRE-EVACUATION WARNING means you may return to your home. However, as there is still a potential threat from the Niarada Fire,” the press release states.

The Lake County Sheriff’s Office also asks people in the area to refrain from bring back evacuated livestock until the area has been downgraded to “ready.”

The Mill Pocket fire is burning to the west of the Niarada, far enough to keep both fires separated, Northern Rockies Team 3 public information officer Stefani Spencer told ICT.

“So the Mill Pocket is west, directly west of one portion of the Niarada and we have [fire] line around the Mill Pocket on the east side and the Niarada on the west side where they face each other,” Spencer said. “So we have good line around both of those fires.”

She added that the Mill Pocket is pretty well contained except for a portion on the west side near Mill Creek that is steep country and difficult to get crew to the area.

There are a number of types of personnel working the fires, including two interagency hotshot crews on the Niarada. Hotshot crews are specifically, highly trained firefighters that often take on some of the most difficult assignments.

Also, several types of aircraft have been assisting when needed. Helicopters have primarily been used to drop water but larger planes called “scoopers” and single engine planes have done the same.

Earlier this summer, fires in Canada led to air quality alerts in portions of the midwest and eastern United States. At one point, thirteen First Nations were had to be evacuated and more were on the frontlines.

The Associated Press reported erratic winds in Southern California made it difficult for firefighters to handle two major fires in the state.

On the island of Maui, six people were killed in a wildfire and injured at least two dozen others. The fire destroyed dozens of homes and businesses in Lahaina Town, a popular shopping and dining area, the AP reported.

Looking forward, weather is forecasted to be in the mid-to-high 80s with potential wind gusts up to 30 miles per hour. Spencer said they are keeping an eye on areas of the fires that will be most affected by the winds.

“Trying to get measures in place now while we have this break in the weather, and we got that rain, which really helped us out,” she said. “So we’re trying to take advantage of this break that we have in fire activity to really secure those areas that would be most affected by the wind that we’re expecting to come in.”

A stage 2 fire restriction is in place across the Flathead Indian Reservation. “No campfires are allowed, no smoking outside of vehicles, no operating combustible engines between 1PM-1PM, no operating vehicles off designated roads and trails,” a press release said.

The latest and daily information on the fires can be found on the Confederated Salish and Kootenai Tribes Division of Fire Facebook page.

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A legislative task force is considering ways to improve a law designed to keep Indigenous children connected to their families, communities and cultures amid custody disputes.

The Indian Child Welfare Act of 1978, which set federal standards for custody proceedings involving children from federally recognized tribes, was recently upheld by the U.S. Supreme Court’s ruling in Haaland v. Brackeen.

Uncertain how the high court would rule, the Wyoming Legislature enacted a mirror version of the federal law during the 2023 session in the event federal protections dissolved.

That state law is set to sunset in 2027, so the Legislature formed a task force to consider more permanent solutions. The panel met publicly for the first time on July 12. With the federal law now on sure footing, the committee focused instead on closing legal gaps that still lead to kids entering state or other non-tribal custody. The panel also considered enhancements that have been successful in other states.

Juvenile delinquency and other instances of state custody 

Before Congress passed the Indian Child Welfare Act, more than a third of Indigenous children had been removed from their homes and placed in non-Indian homes or institutional settings. Seeking to end this systematic disruption of Native American families, the law gave preference to tribes when an Indigenous child is involved in a custody proceeding pertaining to child-welfare issues such as adoption, abuse and neglect.

In simple terms, it established a priority for placing children with, first, a member of an Indigenous child’s extended family. If that’s not an option, the child would next go to another member of their tribe, or if that’s not possible, a different tribe.

To achieve that end, the law requires the agency handling proceedings for an issue such as neglect to notify the relevant tribe so its members can either participate or transfer the case to their tribal court.

As it stands, the federal law only applies in cases involving adoption, abuse or neglect. For most of the meeting, the panel debated a provision in state law that also subjects juvenile delinquency cases to the family- and Indigenous-first priority.

That provision requires tribes be notified of court proceedings in delinquency cases involving their children, in the event they want to transfer the issue to their tribal courts or have a say in the proceedings. Federal law makes no such requirements.

This inconsistency resulted from an oversight while drafting the legislation and should be removed, said Korin Schmidt, director for the Wyoming Department of Family Services and a member of the panel.

“We think it was just a matter of how quickly this all came about,” Schmidt said.

But other task force members believe its inclusion can strengthen tribal say in any question of state custody.

Delinquency resulting in juvenile incarceration is no small consideration in Wyoming, as the state has one of the highest youth incarceration rates in the country.

A census in 2019 revealed that Indigenous children were incarcerated at a greater rate in Wyoming than any kids of any other ethnic or racial groups — and at a rate four times higher than their white peers.

Some of the juvenile placements can last for years, so the desire for tribal oversight makes sense, said task force co-chairman Rep. LLoyd Larsen (R-Lander).

There is already a blueprint for tribal involvement in delinquency cases in Fremont County and Hot Springs counties, home to the Wind River Reservation, where special contracts allow for close interaction between tribal governments and district courts.

In both counties, all child welfare cases are directly transferred to the Northern Arapaho or Eastern Shoshone family services departments rather than the state agency.

Further, juvenile delinquency cases can also then be transferred to internal tribal courts if the tribe requests to do so.

That policy does not, however, apply statewide.

“We have a great working relationship with Fremont County and Hot Springs County, however, we need to expand that,” said Karen Returns to War, the co-chair of the Northern Arapaho Business Council.

“Hopefully, the rest of the counties in the state of Wyoming are going to abide by the same qualifications, and the tribes will have more say regarding the placement of our children,” Returns to War said.

The question of state custody over child placement also emerges in the case of the safe haven law, applied when a child is relinquished after birth, said Jennifer Neely, the state ICWA coordinator and tribal liaison from the Department of Family Services.

“The hope is, perhaps while we’re evaluating the ICWA statute and potential that maybe we could also use this opportunity to enhance some of our existing [laws] to support it,” Neely said.

The task force did not reach any conclusions at the July 12 meeting, but plans to bring amendment proposals to the panel’s next gathering.

Other states

Since Congress passed the law more than four decades ago, other states have made their own changes. Wyoming is considering incorporating some of them.

Clare Johnson, attorney for the Northern Arapaho Business Council, proposed adopting two changes made by the state of Washington. Both would strengthen the abilities of tribal attorneys during proceedings tied to the law.

One proposed amendment would allow tribes to define terms for custody placement beyond the federally applied standards, said Johnson, citing the consideration of geography as one example.

She also raised the issue of allowing tribal attorneys to practice across state lines, even where they are not licensed, for the purpose of cases involving the law.

“It saves the tribe a lot of money,” Johnson said. “Instead of having to find local counsel, pay pro hoc fees, I can be admitted solely to represent the tribe for the purpose of an ICWA case.”

This provision in Washington and Nebraska has permitted Johnson to litigate such cases there.

Beyond Wyoming

If the task force elects to clarify and strengthen the application of the Indian Child Welfare Act, its decision extends beyond the Eastern Shoshone and Northern Arapaho tribes to affect all federal tribes represented in the state.

For example, if the state law’s delinquency inclusion holds, Wyoming will be required to notify a tribe — whether, say, in Arizona or North Carolina – whose child is brought before a Wyoming court.

It will be important to streamline the process of notifying tribes in states where the law applies differently, Neely said.

The task force is next expected to meet in late August or early September.

The post Tribes, state look to improve Wyoming’s Indigenous child custody laws appeared first on WyoFile.

SALEM, Ore. — Jaeci Hall completed her dissertation in tears. She was writing about the importance of revitalizing and teaching Indigenous languages, specifically the Nuu-wee-ya’ language and her tribe’s dialects. “I spent months writing,” she said, “just crying while I wrote because of how it felt to not be recognized.”

Hall — who graduated in 2021 with a doctorate in linguistics from the University of Oregon — is the language coordinator for the Coquille Indian Tribe.

But Hall is not part of the federally recognized tribe of the Coquille. She’s part of the Confederated Tribes of Lower Rogue, which she described as the descendants of nine women who relocated and returned to the Rogue River after the Rogue River Wars of the 1850s in southern Oregon. Despite their rich history and Hall’s documentation of her heritage, Hall and her ancestors are not acknowledged by the United States government as a tribal nation.

Hall’s status meant that when she was earning her degrees, she didn’t qualify for financial assistance designed for Native students. She would not have been eligible for tuition waiver programs instituted in Oregon last year that reduce or eliminate costs for students who belong to federally recognized tribes.

For decades, a handful of individual states and schools have offered financial assistance to Native students. A new wave of offerings this past year – spurred in part by growing land rights movements and a larger focus on racial justice following the murder of George Floyd – shows the programs are becoming increasingly popular.

The programs are meant to help reduce the barrier of cost for Native students, who have historically faced significant challenges in attending and staying in college. Native students have the lowest college-going rate of any group in the United States, a third less than the national average, according to the National Center for Education Statistics. And since 2010, Native enrollment in higher-ed institutions also has declined by about 37 percent, the largest drop in any student demographic group. Studies suggest affordability is one of the leading causes of attrition.

But in nearly every iteration of these programs — old and new — only some Indigenous people benefit.

That’s because the U.S. government does not formally acknowledge the status of an estimated 400 tribes and countless Indigenous individuals, thus shutting them out of programs meant to reduce barriers to higher education. Tribes have to meet several criteria in their petitions for federal recognition, including proof they’ve had decades of a collective identity, generations of descendants and long-standing, autonomous political governance.

As a result, thousands of Native students aren’t getting the same opportunities as their peers in recognized tribes and are left with a disproportionate amount of debt. Affected students say the disparate treatment also leaves social and emotional wounds.

“I made it through it,” Hall said, adding with a laugh that she did most of her dissertation work remotely during Covid, often with her toddler playing around her. “And I would have made it through it better if I had had more support.”

Hall is now paying off about $190,000 in student loans, the cumulative cost of her undergraduate degree from Linfield College in Oregon, her master’s at the University of Arizona and her doctorate from the University of Oregon. A loan forgiveness program through her work will cut her obligation to roughly $50,000, but the total harms her chances of receiving a loan or improving her credit.

Hall’s children, who has Native status because of her father’s enrollment in a recognized tribe, will likely have opportunities Hall did not. If her daughter, for example, a Eugene middle schooler, maintains a 3.0 grade-point average, she will be able to attend the University of Oregon for free.

There are “so many people that are stuck in poverty and stuck in situations where they can’t get an education,” Hall said. “I started thinking … how hard their lives are, and how much of a difference could be made.”

Related: States were adding lessons about Native American history. Then came the anti-CRT movement

Individual schools and states across the country have instituted varying forms of these tuition programs over the years. The University of Maine, for example, has had a tuition waiver option since the 1930s. The program helped the school retain its Native students during the pandemic at higher rates than the national average, according to Marcus Wolf, a university spokesperson. Michigan and Montana have had waivers available for Native students for almost half a century.

Oregon joined this list, beginning with the 2022-23 school year, when then-Gov. Kate Brown announced the introduction of a statewide grant fund. The Oregon Tribal Student Grant covers tuition, housing and books at public institutions and some private universities for undergraduate and graduate students belonging to Oregon’s nine federally recognized tribes. The money is awarded only after students apply for federal or state financial aid.

In its first year, 416 students received the grant, according to Endi Hartigan, a spokesperson for the state’s Higher Education Coordinating Commission. Oregon lawmakers allocated $19 million for the first year — based on an estimate that 700 or more students would receive a grant — and this legislative session, they codified the program in state statute and allocated $24 million for the next two years.

Several state universities – including Western Oregon, Oregon State, Portland State and Southern Oregon – also began providing an additional form of financial aid. Last year, these schools extended in-state tuition prices to members of all 570-plus federally recognized tribes in the U.S., regardless of what state they live in. The same is true for the University of California system, the University of Arizona and other institutions across the country.

Western Oregon started its Native American Tuition program last fall. It’s been a slow start to get students interested, with public records requests revealing that fewer than 10 students applied for or participated in the program in its inaugural year. However, the impact it has on those students is substantial: The university estimates the program saves participating students nearly $20,000 per student per year.

Anna Hernandez-Hunter, who until June was the director of admissions for Western Oregon, said the numbers are low because the program is new and the university enrolls few students from out of state (only about 19 percent of undergraduates). She said the university has made the application process easier for next year, published more information online and made sure admission counselors are sharing the information with prospective students.

But eligibility for that program, like the vast majority of such tuition offerings, requires enrollment in a federally recognized tribe.

Western Oregon’s Office of the President, as well as communications and admissions officials with the University of Oregon,  declined to comment specifically on why unrecognized tribes are excluded from the programs. One university official said on background that, generally speaking, program staff at any university have to follow federal and state guidelines, as well as standards for who qualifies for the resources.

Institutions typically validate a student’s enrollment by requiring a federally issued tribal ID or a letter from a recognized tribal council confirming enrollment. Native advocates said some students don’t have this kind of documentation even when they are enrolled in a recognized tribe. Documentation depends on the information families can access to prove their lineage. Enrollment requirements differ from tribe to tribe, and after generations of forced removal and assimilation, such documentation can be limited. 

Limiting which Native students get financial assistance is especially significant, given the rising cost of post-secondary degrees. According to the College Board, the average cost of tuition and fees at a public, four-year school was $10,940 for in-state students in 2022-23 or $28,240 for out-of-state students. And research by the Education Data Initiative shows Native students borrow more and pay more per month in student loan debt than their white peers.

Native students have the lowest college-going rate of any group in the United States, a third less than the national average, according to the National Center for Education Statistics.

Some colleges or states have agreements with specific unrecognized tribes. Oregon, for example, allows members of Washington’s Chinook Indian Nation, which is fighting to regain its federal recognition, to at least access in-state tuition because the Chinook have tribal boundaries in Oregon.

Jason Younker leads the University of Oregon’s Home Flight Scholars Program, which is one of the school’s many assistance programs available for Native students. Launched last October, Home Flight not only works to recruit more Native students to the university but also provides funding, mentors, culturally specific programs and support to help Native students adjust to life on campus.

Younker said students can prove their eligibility for the program by showing a Certificate Degree of Indian Blood card (CDIB) instead of enrollment records. Blood quantum, or the measurement of someone’s “Indian blood,” has a long, controversial history in the U.S. And certificates are only available to people related to members of recognized tribes. But Younker said this allows someone to show they are Native without enrollment records since some tribes’ enrollment requirements exclude those who still have high percentages of Native blood.

Younker, who is part of the Coquille tribe, said the university allows students to show blood quantum via a Certificate Degree of Indian Blood card (CDIB) — which is only available to people related to members of recognized tribes — instead of enrollment records since some tribes’ enrollment requirements exclude those who still have high percentages of Native blood.

Program leaders also allow students, even those from unrecognized tribes, to apply to Home Flight via letters from council members, in an attempt to extend this support to at least some of Oregon’s unrecognized students pursuing undergraduate degrees.

Younker said the question should no longer be: “Can I afford to go to college?” The question should be: “Where can I go to college?”

“Each and every one of us has had an ancestor that sacrificed and survived so that they could have the choices that they do today,” he said. “I always tell students: ‘It doesn’t matter where you go; it matters that you do go.’”

But he said tuition assistance isn’t enough to attract and retain Native American students. To succeed in this, colleges must also recruit on reservations, provide academic counseling, cultural support and a community of peers, and include Native leaders in major decisions at the university. “If you don’t have those kinds of things, you’re not a very attractive school — no matter how much tuition you waive,” he said.

Related: 3 Native American students try to find a home at college

For students and parents like Yvette Perrantes, the lack of support affects multiple generations.

Perrantes wanted to go to college as an adult so she could move into a higher income bracket. She’s a member and leader of the Duwamish Tribe, who lived on the land that is now South Seattle, Renton and Kent, and have been called Seattle’s first people. They’ve fought a decades-long battle for federal recognition that continues today.

Without tribal status and consequent financial aid, Perrantes owed $27,000 in student loans after finishing her associate degree in clean energy technologies at Washington’s Shoreline Community College in 2014. She deferred her loan payments until she no longer could. Threatened with having her wages garnished, she filed for bankruptcy. Her credit score took a hit. She had to keep making payments, but now had no chance of leasing a car, getting a credit card or exercising other opportunities.

Her son was looking into college at the same time Perrantes faced these financial hardships. He hoped to receive an athletic scholarship, but when he tore his ACL, the young student-athlete stopped pursuing higher education altogether. In his eyes, Perrantes said, all it would lead to was debt.

The effects of exclusion from federal recognition and benefits are compounded, Perrantes said, for those who come from families, like hers, with intergenerational trauma and parents who are “doing a lot of healing themselves.”

Not “being included in this process with the federal government and not having equal access to student loans and money for education, and more interest rates, you know, everything that comes along with federal recognition,” she said, “it’s pretty crushing to the spirit.”

Perrantes now works as a program manager for Mother Nation, a Seattle-based nonprofit that focuses on cultural services, advocacy, mentorship and homeless prevention for Native women. She worries that students who go out of state for school may be disproportionately denied aspects of their identity. If someone isn’t a recognized tribal member, she said, they aren’t allowed to participate in certain cultural practices such as burning, smudging, harvesting certain trees or having an eagle feather. Those barriers are even more pronounced when the person is from a different state. 

“[H]ow are we going to be educated enough to cite policy, to fight for recognition? We need more Natives who are educated and who are willing to do the work for the people.”

Yvette Perrantes, a member of the Duwamish tribe and a leader on its council

“Being Native and being grounded in your ways, traditionally, and being out of state, outside your family, outside of your tradition, outside of your culture, and then you’re not being able to practice your cultural ways. You know, I think it’s impactful on your emotional, spiritual and mental health,” she said. “We need those to sustain ourselves as students.”

Perrantes still encourages Indigenous students to pursue education at all costs. That way, she said, they can be the ones making laws and the ones teaching their history in the classroom. “The pen is mightier than the sword,” she said. “I know that sounds so cliche, but how are we going to be educated enough to cite policy, to fight for recognition? We need more Natives who are educated and who are willing to do the work for the people.”

As states and institutions expand tuition waiver programs, Hall, the doctoral graduate from the Confederated Tribes of Lower Rogue, would like to see different ways used to verify a claim of being Native and for resources to extend to unrecognized students. Her advice for Native students is to be as stubborn as they can, to believe in themselves and to remember that any kind or any level of education will improve their lives and that of their community.

“We all have some history. We’re survivors. Regardless,” Hall said. Education “is an answer to the prayers of our ancestors, no matter if we’re recognized or not.”

This story about Native American tuition waiver programs was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

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A federal judge in May dismissed the Sauk-Suiattle Tribe’s lawsuit against the state over the collection of an online sales tax after the state informed the tribe of the existing tax reimbursement process.

Filed in U.S. District Court in Seattle in December, the tribe argued tribal members should be exempt from the collection of 6.5 percent sales tax in online purchases, in addition to exemptions for in-person purchases on the reservation.

In June, Jack Fiander, the tribe’s general counsel, said the lawsuit was rendered “unnecessary” upon further investigation. There is an existing process for reimbursement from the state, and tribal members can notify online retailers of their tribal status before the payment is made and have the tax removed.

“The process already existed, but it seems to me ideally it should have been on the state to send out a notice to various online retailers that tribes at these locations are tax exempt,” Fiander said.

The federal law exempting enrolled tribal citizens from paying sales tax states the goods are exempt if “delivered to or the sale is made in the tribe or enrolled tribal member’s Indian country.”

Fiander argued that those requirements created an unnecessary hardship due to the remoteness of the 315-citizen tribe.

Located 30 miles up Highway 530, the reservation is near only a handful of brick-and-mortar retailers. The closest town is Darrington with a population of 1,400. Forcing members to pay for a 100-mile round trip delivery of an item from Seattle, Fiander explained, was not worth the tax exemption.

The suit also alleged the sales tax was a form of discrimination against the tribe. Tribal Council Chairman Nino Maltos Jr. called the tax exemption a sovereignty issue.

But in February, John Ryser, then-acting director of the state Department of Revenue, filed a motion to dismiss the case.

In an 18-page document, Ryser argued the tribe failed to state a claim for which relief can be granted. The motion also outlined the mechanism already available to refund the sales tax and explained how to work directly with online vendors to remove the tax preemptively.

Ryser’s motion to dismiss argued the “Tribe has failed to allege facts or law that support a preemption claim for declaratory or injunctive relief.” Ryser’s motion also stated the tribe’s allegations are “insufficient” to show intentional discrimination based on race, as the lawsuit alleged.

In May, U.S. District Court Judge Ricardo S. Martinez tossed the case, stating the tribe failed to properly state a claim.

With the case dismissed, Fiander said the tribe plans to “work directly with online vendors” in the future.

“The problem with the refund policy is you have to wait,” Fiander said. “The easiest way to (remove the sales tax) will be between the consumer and retailer — to contact the internet seller and provide them proper documentation and tribal ID.”

A spokesperson for the state Department of Revenue told the Herald that the department “appreciates the court’s decision and is awaiting further developments, if any, in the case.”

Kayla J. Dunn: 425-339-3449; kayla.dunn@heraldnet.com; Twitter: @KaylaJ_Dunn.

This article was published via AP Storyshare. 

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In January, with the almond bloom in California’s orchards a month away, beekeepers across the country were fretting over their hives. A lot of their bees were dead, or sick. Beekeepers reported losing as much as half their hives over the winter.  Jack Brumley, a California beekeeper, said he’d heard of people losing 80 percent of their bees. Denise Qualls, a bee broker who connects keepers with growers, said she was seeing “a lot more panic occurring earlier.”

Rumors swirled of a potential shortage; almond growers scrambled to ensure they had enough bees to pollinate their valuable crop, reaching out to beekeepers as far away as Florida, striking deals with mom-and-pop operations that kept no more than a few hundred bees. NPR’s All Things Considered aired a segment on the looming crisis in the almond groves.

By May, it was clear that California’s almond growers — who supply 80 percent of the world’s almonds — had successfully negotiated the threat of a bee shortage, and were expected to produce a record crop of 2.5 billion pounds, up 10 percent from last year, according to the U.S. Department of Agriculture.

But the panic, it turns out, was justified. The results of this year’s annual Bee Informed Partnership survey, a collaboration of leading research labs, released Wednesday, found that winter losses were nearly 38 percent, the highest rate since the survey began 13 years ago and almost 9-percent higher than the average loss.  

The panic underscored a fundamental problem with the relationship between almonds and bees: Every year the almond industry expands, while the population of honeybees, beset by a host of afflictions, struggles to keep pace.

“We are one poor weather event or high winter bee loss away from a pollination disaster,” Jeff Pettis, an entomologist who at the time was head of research at the USDA’s Bee Research Laboratory, said in 2012. And while the disaster Pettis warned of hasn’t struck yet, its likelihood grows each year.

There would be no almond industry without the honeybee, which so far is the only commercially-managed pollinator available in sufficient numbers  to work California’s almond fields. The industry is in the midst of a boom, as Americans eat more almonds than ever. We consume more than two pounds per person each year in our granola bars, cereals, milks, and regular old nuts, fueling an $11-billion market.

It’s not clear that boom is sustainable. Though concern about a bee shortage seemed acute this year, the pollination market for almonds has been tightening for more than a decade. In 2005, fear of a pollinator shortage was so great that the government allowed wholesale importation of honeybees for the first time since 1922.

California’s almond industry spreads over 1.4 million acres of the Central Valley. During bloom, which typically unfolds over three weeks in February, these orchards require the services of some 80 percent of all the honeybees in the country.

Honeybee colonies, on the other hand, have been dying at high rates. Historically, colonies died mostly during the winter. So when the Bee Informed Partnership started tracking colonies in 2007, it only looked at winter losses, which have ranged from 22 percent to this year’s nearly 38 percent. Along the way, researchers realized that beekeepers had started losing a surprising number of bees in the summer, too, a season when all should be going well for bees. They started tracking annual losses in 2013, which have ranged between 33 percent and 45 percent. The loss for the year ending March 31 was 41 percent.

The threat to the bees is multifaceted and existential. The varroa mite, an invasive species of external parasite that arrived in Florida in the 1980s, literally sucks the life out of bees and their brood. Herbicides and habitat loss have destroyed the bees’ forage. An array of pesticides, including dicamba and clothianidin, have been found to damage the bees’ health in a variety of ways, weakening their immune systems, for instance, and slowing their reproductive rate.

The process of getting the bees to the almonds adds another stressor. Each January, the sluggish bees are prodded into action much earlier than what would be their normal routine. They are fed substitutes for their natural foods of pollen and nectar so they will quickly repopulate the hive to be ready for almonds. They are then loaded onto trucks and shipped across the country, plopped in an empty field and fed more substitute food while they wait for almonds to bloom.

“We’ve had to bend the natural behavior of honeybees around almonds,” said Charley Nye, who runs the bee research operation at the University of California, Davis.

One reason beekeepers are less inclined to talk about this distortion of nature is that almond pollination has become their biggest single money-maker of the year, accounting for about one-third of their annual income in 2016. No other crop pays as well as almonds, so if a beekeeper misses almond pollination, it could cripple his business.

“They’re not dead, but if they don’t make it to almonds, then from an economic standpoint, they’re as good as dead,” said Gene Brandi, a California beekeeper, back in January when the panic was in full bloom.

In 2018, California had 1.1 million acres of almond trees bearing nuts and another 300,000 acres of trees still too young to need pollination. Each acre of mature trees is supposed to be pollinated by two honeybee colonies. There are between 10,000 and 15,000 bees in a colony when they arrive in the almond fields, and for the last four years, the U.S. has averaged 2.67 million colonies right before almond bloom.

You can do the math, but like Nye says: “As the almond acres grow, the demand for colonies seems to be outpacing the number of colonies that exist.”  

The tight market has forced growers and brokers to expand their search for bees. “It used to be that we only dealt with operations that managed at least a thousand to 3,000 hives,” said Pettis, the former USDA entomologist. “Now people are pulling bees from smaller and smaller operators. They’re pulling bees literally out of people’s backyards and putting them on trucks to pollinate almonds. And while we used to only move bees from west of the Mississippi River, now we go all the way to Florida and New York state.”

Growers are also hedging their bets by securing more bees than they actually need, a strategy that only exacerbates the tight market.

The intel used to gauge the number  of bees in the country is surprisingly imprecise. The bee count offers just a small snapshot in time and relies on beekeepers’ responses to a poll. The numbers are approximate, with undercounts more likely than overcounts. Yet the trend lines are clear: Unless something changes, at some point in the near future we won’t have enough bees.

Limiting colony losses is one way to change the trend. The honeybees’ biggest threat is the varroa mite. The USDA, Project Apis m., and both beekeepers and bee producers are currently conducting trials of a varroa-resistant bee that will work for commercial beekeepers. Also, researchers have been working for years on a backup to the honeybees for early-season crops like almonds. This bee, the blue orchard bee, is in the early stages of commercial production, and it will be years before it could make significant inroads in replacing some of the honeybees.

Meanwhile, there are signs that almond growers are becoming more amenable to bee-friendly practices such as modifying pesticide use and planting flowers in their orchards that would provide alternate forage for the bees while they wait for the almond bloom. Nye said some growers are getting “a little more sensitive to the job the honeybees are doing; they seem to be investing more in pollinators.”

Ultimately, a big part of the solution may be to reevaluate the number of colonies deployed per acre. “Those standards were set many, many, many years ago,” said Bob Curtis, a pollination consultant with the Almond Board of California, and a lot has changed since then.

For the last 12 years, almond groves have produced one-third more nuts than they did in the dozen years before that. Some orchard management practices have changed in that time, but growers also began requesting, and paying a premium for, stronger hives that contain more bees. Today, most of the colonies that go to almond groves contain twice as many bees as they did in decades past. Whether the higher production rate of the almond trees is due to more bees per colony, different management practices, or some combination of factors is hard to say.

Curtis said the Almond Board is undertaking new studies to determine if the stocking rate could be adjusted, which would ease the pressure on embattled beekeepers to keep up with the surging almonds.

A lower stocking rate would also ease the stress on the bees themselves, but it wouldn’t stop them from dying in excessive numbers. Reversing that trend will require dramatically different approaches to everything from how we farm to how we use our land — things not likely to change anytime soon. The disaster Pettis warned of remains a very real possibility. Honeybees continue to be in a fight for their lives.

The opposite side of the reservoir is dark and so quiet that water lapping on the shore and bats clicking overhead can be heard over the distant hum of boat engines. This is the Chemehuevi Indian Tribe’s reservation in California. The water that rose behind Parker Dam to create Lake Havasu washed away homes and flooded about 7,000 acres of fertile Chemehuevi land, including where tribal members grazed cattle.

This story is the third story in a series about the Colorado River. See the rest, as well as other great reporting from High Country News by signing up for our newsletter.

The communities across the reservoir reflect the vast divide in economic opportunities between Indian Country and the rest of the West, which has been perpetuated, in large part, by who received water and who did not.

In 1908, the U.S. Supreme Court ruled that the federal government owed tribes enough water to develop a permanent home on their reservations, and that their water rights would hold senior priority, meaning they trumped those of others. In the Colorado River Basin, most tribes, even during a drought, should get water before Phoenix, Las Vegas, Los Angeles and elsewhere.

More than a century later, only a few basin tribes have benefited from this system. Of those that have, some live near federally funded canals and pipelines that can deliver water to their land; others received money to build their own water systems; and some negotiated for the right to market their water to other users. The Gila River Indian Community, for instance, recently struck a deal with the federal government to forgo using some of its water in exchange for up to $150 million over the next three years, depending how much water it conserves, and $83 million for a new pipeline.

But most of the basin’s 30 federally recognized tribes have faced seemingly endless barriers to accessing and benefiting from all of the water to which they’re entitled. The Chemehuevi Reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river and ends up being used by Southern California cities. The tribe never receives a dollar for it.

The water that has already been guaranteed to basin tribes but remains unused totals at least 1 million acre-feet per year — nearly one-tenth of the Colorado River’s flow in recent years and nearly four times the Las Vegas metro area’s allocation. If sold outright, this water would be valued at more than $5 billion, according to a ProPublica and High Country News analysis. For the Chemehuevi, a tribe with about 1,250 members, that means the amount of water it has on paper but doesn’t use would have a one-time value of at least $55 million.

Steven Escobar, the Chemehuevi’s tribal administrator, grew up testing his mettle against the Colorado River’s currents, swimming across its cold waters upstream of the reservoir. He still thinks of the river in terms of struggle. But now, it’s a struggle for the tribe to get the same help from the federal government to access water as others have, or, if not, to get compensation for what’s legally theirs.

“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes,” Escobar said. “We’ve had to fight for everything out here.”

As demand on the Colorado River far exceeds its supply, tribes worry that they’ll never receive the water they’re owed.

The Chemehuevi are left in a bind: The tribe doesn’t have the pumps or other infrastructure necessary to deliver its full allotment of river water to its reservation. While the federal government gave the tribe a grant to build a small reservoir, neither it nor the state of California has allocated money to build a larger delivery system.

“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes.” 

Even as a backup option, the tribe is unable to lease its water to other users, such as rapidly growing cities, or earn money by leaving it in the river to preserve the waterway. Antiquated laws and court rulings typically allow tribes to be paid to conserve only water they previously used. Any changes to how a tribe could market its water would take an act of Congress.

“This is a long-standing problem,” said Mark Squillace, a professor at the University of Colorado’s law school. “From the perspective of the people using that water, why would they pay when they’re already getting it for free?”

The Law of the River at work

A half-century ago, the Bureau of Reclamation began construction on a massive canal called the Central Arizona Project to send the waters that flooded the Chemehuevi’s land 336 miles across the desert to Phoenix and Tucson. The pumps that power the system, which help deliver the state’s share of the Colorado River, are the largest single consumer of electricity in the state.

Meanwhile, the Chemehuevi rely on a single diesel pump to draw water six stories up to the plateau where they live above Lake Havasu.

For at least 50 years, the river’s decision-makers have recognized this disparity in water access. In 1973, a body called the National Water Commission submitted a report to Congress: “In the water-short West, billions of dollars have been invested, much of it by the Federal Government, in water resource projects benefiting non-Indians but using water in which the Indians have a priority of right if they choose to develop water projects of their own in the future.”

For tribes, the first challenge is securing their water rights. After the Supreme Court’s 1908 decision confirming tribes’ right to water, two paths emerged to quantify and settle the amount and details of those rights. Tribes could, with the backing of the Department of the Interior, negotiate with the state where their reservation is located. Or they could go to court. Fourteen basin tribes are still in the midst of this process, but either path they choose presents trade-offs.

Tribes that negotiate typically need to trade some of the water they believe they’re owed in exchange for money to build water-delivery infrastructure. They can also trade their water priority — leaving them more susceptible when allocations are cut, a reality that’s already threatening to curtail their water amid the West’s ongoing drought.

For tribes that choose to go through the courts to get their water, there’s no opportunity to negotiate for funding for canals, pipes and pumps, meaning there’s no way to move the water they’re awarded onto a reservation.

“It’s not enough to have the right to the water,” Squillace said. “You also have to have the infrastructure.”

“It’s not enough to have the right to the water. You also have to have the infrastructure.”

Highlighting the difficulties in converting rights to water on paper into actual water on a reservation, tribes around the West that secured a negotiated settlement only increased their agricultural land use by about 9% and saw no increase in residential or industrial development, according to estimates from a recent study published in the Journal of the Association of Environmental and Resource Economists.

And if a tribe can’t move water, it often can’t monetize it.

Laws passed between 1790 and 1834, known as the Indian Non-Intercourse Acts, have the effect of prohibiting tribes from leasing water beyond the borders of their reservations without congressional approval. Settlements also typically bar them from permanently selling their water and often prohibit them from leasing it.

“This is what’s left”

Politicians packed a conference room at the Arizona Capitol in April, where they unveiled an agreement to pay the Gila River Indian Community millions of dollars to leave its water in Lake Mead. Officials took turns at the lectern extolling tribes for their role in preserving the Colorado River.

“We don’t have any more important partners in this effort than in Indian Country,” Deputy Secretary of the Interior Tommy Beaudreau said.

When the Gila River Indian Community negotiated its water rights, the Central Arizona Project had begun carrying Colorado River water near its reservation south of Phoenix, and the tribe had some political clout after spending millions of dollars on lobbying. Those advantages allowed the tribe to negotiate tens of millions of dollars for infrastructure to deliver its water and the right to lease tens of thousands of acre-feet to nearby cities and a mining company. Its settlement has now made the tribe a well-compensated partner in conservation efforts.

“These are truly historic investments in directly tackling the challenge presented to our state and our region by the historic drought,” Gila River Indian Community Gov. Stephen Roe Lewis said during the April news conference announcing the deal to trade more water for money. The tribe declined requests for additional comment, as it is negotiating further water deals.

The Chemehuevi, by contrast, can’t access or lease most of their water. Their rights were quantified and settled via the courts in the 1960s, at a time when the tribe didn’t have federal recognition. So it didn’t receive infrastructure funding.

Escobar, the Chemehuevi’s tribal administrator, would prefer to use his tribe’s water, not lease it. He wants to expand pumping capacity and construct a cascading series of reservoirs. Once the Chemehuevi access the water, they could use it for more houses to bring enrolled members back to their land, new businesses to provide jobs and increased farming to grow the reservation’s economy.

Escobar talked about his dreams and the difficulty in developing Indian Country as he drove past the frames of unused greenhouses, evidence of a failed venture. Near a field where the tribe’s single tractor was working the soil, Escobar described the Chemehuevi’s agricultural plans. Behind him, Lake Havasu covered soil that could have been productive fields or pastureland. In front of him stretched sandy desert where the federal government said the tribe should harvest crops.

“We want to be a benefit to the system, but right now, they’re making it hard.” 

“This is what’s left,” he said of the tribe’s potential farmland that wasn’t submerged by the reservoir. “It’s sad.”

After the once-nomadic Chemehuevi fought for recognition of their tribe and their reservation, they partnered with the University of Southern California to develop a plan to farm 1,900 acres using the 11,340 acre-feet of water per year, about 3.7 billion gallons, that the government allotted them — at least on paper. But, in a good year, the Chemehuevi farm only 80 acres, growing melons for food, devil’s claw for basket weaving and cottonwoods for a riparian restoration project.

If it can’t transport more water to expand the farm, Escobar said, the tribe could accept leaving water in the river in exchange for compensation. “We want to be a benefit to the system,” he said, “but right now, they’re making it hard.” Many non-Indigenous people and a few tribes around the basin earn money limiting their water use, whether by fallowing farm fields or ripping out lawns.

Why shouldn’t all tribes be paid? Escobar asked.   

Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith

Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.

Umar Farooq is an Ancil Payne Fellow with ProPublica, where he reports on national issues. @UmarFarooq_

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