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Statute of Limitations Environmental Claims Montana

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					                       WIGA News Clips Decembe r 10-13, 2005
LOCAL
Tribes need to put health concerns first (Opinion) King Country Journal 12/13/05
Swinomish bet on resort next to casino Skagit County Business Pulse 12/13/05
Governor asks tribes for smoke- free casinos The Seattle Times 12/10/05

NATIONAL
Deadline looms for trust fund claims Indian Country Today 12/9/05

LOCAL

Tribes need to put health concerns first

2005-12-13

We did ourselves a huge and healthful favor by voting to prohibit smoking in bars,
restaurants and bowling alleys, and to require a 25- foot smoke- free buffer around
doorways, windows that open and ventilation intakes.

We'll now be able to enjoy ourselves while we're out on the town without having to
breathe noxious air and come home reeking of stale cigarette smoke -- unless we visit one
of the Indian casinos in our state. Such tribal casinos are exempt from becoming smoke-
free because they're not subject to state law. And it doesn't look like they're about to
change.

Last month, Gov. Gregoire met with several tribes, encouraging them to follow the state's
lead in banning indoor smoking.

She didn't get very far. The Muckleshoot casino in Auburn currently has a nonsmoking
section and that's as far as it intends to go, according to Rollin Fatland, a spokesman for
the Muckleshoot Tribe. The Puyallup Tribe doesn't even plan to consider banning
smoking in its casinos.

Apparently, leaders of those tribes haven't been paying attention to the health concerns
raised by agencies and health organizations. ``Exposure on a regular basis to second- hand
smoke at work can cause a 91 percent increase in coronary heart disease, according to a
report last year from the American Indian Tobacco Education Partnership, which includes
representatives of 36 tribes and is funded by the state of California.

If that's not enough to convince tribes to ban indoor smoking, consider this study:
``Casino workers in a `well ventilated' casino had continine (metabolized nicotine) levels
300-600 percent higher than in other workplaces during a work shift.'' That scary
information is from the Journal of Occupational and Environmental Medicine.

Even in no-smoking areas, according to a study of gaming clubs in Australia, the
exposure to second-hand smoke was only reduced by half.

If the casinos contend that they've got their rooms well ventilated, consider this from the
trade group that deals with air-conditioning: ``no current air-conditioning technique
adequately removes cancer-causing particulate from the air.''

The tribes have the facts, or at least they should have. We hope they put the health of
their people, and customers, before the health of their cash registers and slot machines.
They may be exempt from the law, but not from heart attacks or cancer.


Swinomish bet on resort next to casino

The Swinomish Tribe said it hopes to build a resort near its casino east of Anacortes. The
complex may include a hotel, a five-story condominium tower, an indoor water park and
a marina. The Swinomish leadership hopes to begin construction as soon as possible, said
Marty Loesch, a tribal attorney and spokesman. If all goes as planned, the resort,
expected to cost between $10 million and $15 million, should be completed by mid-2006.
A hotel and condominium tower will provide lodging at the complex, which will be
located to the east of the tribe’s Northern Lights Casino. Plans also call for an indoor
water park with several slides and a 36-slip marina.

The complex, which is tentatively called Swinomish Lights Resort, is one of three
Washington resorts currently being built by Plan B Development LLC. The Sammamish-
based start-up corporation is owned by the Swinomish Tribe, a former Microsoft Corp.
programmer and other minor investors. The Swinomish Tribe will be the majority owner
of the project, Loesch said.

Loesch said the hotel will likely contain 60 to 80 rooms and be managed by the Ramada
Inn hotel chain. While the tribal government is the permitting authority in charge of
building within the reservation boundaries, the developer will need permission from the
U.S. Army Corps of Engineers before it can build on Swinomish Channel.


Governor asks tribes for smoke-free casinos

By RACHEL LA CORTE
The Associated Press

OLYMPIA — Gov. Christine Gregoire has asked the state's Indian tribes to go smoke-
free at their casinos, encouraging them to follow the state's lead in enacting a statewide
indoor-smoking ban.
The request was made at a dinner with the tribes in Olympia last month, shortly after
voters overwhelmingly passed the strictest smoking ban in the country. The ban took
effect Thursday.

The tribal leaders told Gregoire they would review the request with their respective
councils and boards, said W. Ron Allen, chairman of the Jamestown S'Klallam Tribe and
president of the Washington Indian Gaming Association.

"The tribes were very receptive" to talking about the issue, Allen said Friday. "The
majority of our public facilities are smoke- free. The key question was relative to the
casino operations."

Initiative 901, which voters approved Nov. 8, prohibits smoking in bars, restaurants,
bowling alleys and minicasinos. It also requires a 25-foot smoke-free buffer around
doorways, windows that open and ventilation intakes, making it tougher than regulations
in eight other states that also have statewide bans.

But tribal casinos are exempt from the ban, because the tribes are not subject to state law.
That's a major issue for opponents of the ban who have argued that small bars and taverns
will go out of business because their smoking customers will just go to nearby casinos.

Vito Chiechi, who organized the No on 901 campaign, said he would "certainly like to
see" tribal casinos go smoke-free. "Then it levels the playing field a little bit," said
Chiechi, a retired longtime lobbyist and former chief clerk of the state House.

He said that during a brief smoking ban Pierce County imposed last year, smokers
flocked to the nearby casinos on tribal lands, such as the casinos owned by the Puyallup
Tribe.

Puyallup Tribe spokesman John Weymer disagreed.

"We did not see a dramatic increase in business because of that," he said.

Weymer also said the Puyallups weren't at the meeting last month and haven't agreed to
consider a smoking ban.

Of the state's 29 tribes, 20 of them operate 24 casinos, according to the Washington
Indian Gaming Association.

NATIONAL

Deadline looms for trust fund claims

Posted: December 09, 2005
by: David Melmer / Indian Country Today
WASHINGTON - Billions of dollars will potentially be lost if tribes do not file claims
with the Department of Interior to negotiate settlements that will recoup lost revenues
owed to the tribes for leases, royalties and sale of property.

Any tribal claims are subject to a statute of limitations established by Congress in 1999
and which runs out Dec. 31. The revenues owed the tribes come from non-reconcilable
funds that were to have been paid to tribes for royalties and leases, sale of land and other
negotiations handled by the Interior as part of the department's fiduciary responsibility
over the past decades.

So far only three or four tribes have reached a settlement with the government, nine tribes
have filed and most all of the 562 federally recognized tribes may have claims to file,
attorneys who are working the claims assert.

The statute of limitations was established based on the Osage Nation v. United States
case and many tribes may not be aware of the limitations, attorneys claim.

''If they [tribes] do not file, they could lose out on collecting past lease money; and, just
as important, they could lose the right to litigate for treaty lands that have been taken,''
stated Gary Frischer, strategic legal consultant for a group of attorneys working on
claims.

''This could be, if the reservations do not file a claim, the greatest land grab in 150 years,''
he added.

The accounting firm of Arthur Andersen LLP conducted an audit of the trust funds at the
request of the federal government and determined that mismanagement by Interior was
involved and that tribes had not received the payments due them. Arthur Andersen sent
reconciliation reports to the tribes, which were encouraged by Congress to negotiate
settlements with the government rather than file in federal court. The tribes were given
five years after the notice from Andersen to negotiate.

Sens. John McCain, R-Ariz., and Byron Dorgan, D-N.D., introduced legislation in
October that would extend the statute of limitations date for another five years; however,
that bill has not been taken up by the full Senate.

A house companion bill introduced by Reps. Richard Pombo, R-Calif. and Nick Rahall,
D-W.Va., would also extend the deadline to negotiate a settlement until Dec. 31, 2011.
The Senate Committee on Indian Affairs and the House Resources Committee approved
the legislation, but has not been taken up on the floor of either house.

Congress in 1993 required Interior to pay interest on trust funds held for tribes and to
demonstrate new approaches for the management of ''Indian trust funds; to clarify the
trust responsibility of the United States with respect to Indians,'' said written comments
from the Senate Committee on Indian Affairs that year.
A year later, Congress, with an amended reform act, created the office of special trustee.
Also that year, the Cobell v. Norton case began. (The Cobell litigation is unrelated to the
tribal trust fund issue.)

The Osage case was based on the fact that the federal government mismanaged its
fiduciary responsibility to the Osage Nation of Oklahoma. Congress passed the Osage
Allotment Act in 1906, which directed the federal government to place all money due, or
funds that may become or may be found to be due, in trust. Those monies were royalties
from oil, gas, coal and other mineral leases, and were to be held for the tribe and
individual members of the Osage Nation.

The Osage Nation argued that the federal government held funds in excess of $8 million
in escrow for almost 10 years, prior to payment and transfer of title to the lands from
1873 to 1883. In court, the Osage argued that the federal government ''exercised
involuntary, pervasive management and complete control over the mineral assets of the
Osage - but has never rendered an accounting.''

In 1996 Arthur Andersen attempted to reconcile the trust fund accounts from between
July 1, 1972 and September 1992. Its report shows that the federal government did not
comply with the federal law that required reconciliation of the accounts.

The federal government's attempt to have the case dismissed failed. It also asked the
court to impose a statute of limitations on claims for funds before 1984. According to
Federal Claims Court regulations, the statute of limitations is six years, a term set by
Congress. However, according to the many Appropriations Acts (the first of which was
passed in 1908), a reconciliation of the due funds held for the tribe is the key to
determining dates for statutes of limitations.

As it has been determined that all tribes received a reconciliation in 1999, the statute of
limitations date will be Dec. 31.

The Arthur Andersen report was the first reconciliation completed by Interior that
complied with the standards set forth in the many Appropriations Acts.

The Osage case leaves open the chance for tribes to file claims for past revenues not
reconciled based on technicalities in the Indian Claims Commission Act. The act set the
time limit at 1951; however, Hewitt wrote that because the Osage argued that revenue
was lost, funds mismanaged and no reconciliation occurred until December 1999, the
statute of limitations set by the Indian Claims Commission was not applicable.

The requirements of the reconciliation reports established by Congress state that as full
and complete an accounting as possible must be submitted at the earliest possible date.

''The court finds that the language 'to the earliest possible date' to be further indication of
the intent of Congress to allow Indian tribes to file tribal trust fund mismanagement
claims within six years after an accounting of the trust fund is furnished to the tribe no
matter when the mismanagement occurred,'' Hewitt wrote.

Tribes are now faced with the possible termination of their right to file claims by the end
of the year unless the two pending bills are enacted in time.

Tribes are encouraged to meet with their tribal attorneys to determine if they have a claim
and to file. Also, a consortium of attorneys who are experienced in federal Indian law and
who have a track record in these types of land claims has been formed.

Attorney Mario Gonzalez, Oglala, in Rapid City, S.D., heads the consortium. He is joined
by attorneys Gregory Yates from South Dakota and California, Maurice Johnson in
Nebraska, Benjamin Thompson in Minnesota and Jerry Guenther in Montana.

Tribal officials wishing to contact any of these attorneys can call (800) 404-4658 or e-mail
gyates@gregoryyates.net.

				
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