Monday, February 19, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part III

Parts I and II are available here and here
----

III. The Solution

What can be done to adequately address the three distinct but intertwined problems outlined above? In order to adequately comply with the conditions of TOLA and VAWA and be able to address the sexual assault epidemic sweeping their reservations, tribes and the federal government will have to work together to find solutions that will enhance tribal sovereignty and ensure long term sustainability.

a. Funding

The first pressing issue is funding. While a minority of tribes have successfully engaged in profitable gaming enterprises, the majority are still reliant on federal government dollars to provide even the most basic services. With tribes having little to no discretionary money, Congress is going to have to step up and pass legislation that will fund the payment of lawyers that can represent indigent defendants. On July 1, 2013, South Dakota began to address its rural lawyer shortage by launching a program designed to offer financial incentives to recent graduates who are willing to move to the remote rural regions of the state. Under this program, participants would be entitled to “more than $13,000 a year for five years to practice in a rural area that has been identified as being underrepresented47.” This program is even modeled on similar programs that already exist within the federal government that are aimed at increasing the number of medical professionals in rural areas48. If the federal government would extend these programs to include legal professionals in underserved areas, it would go a long way towards easing the burden on tribes to find funding to hire lawyers.

It should also be mentioned however that an exact copy of the South Dakota program would not be sufficient for this problem. Since a $13,000 annual payment functions only as a subsidy, there is still a financial burden on the employer. For an idea of how much tribes would have to pay under this model, the average salary for an entry level public defender was $47,500 in 201049. This average does not take into account other fringe benefits that an employer could be expected to provide. Many firms, even public interest firms, provide generous benefits packages that can costs in the thousands of dollars for employers. In order to attract attorneys, it would be expected that tribes would offer similar compensation packages.

Since an investment in a single lawyer can cost a tribe thousands of dollars, it would stand to reason that exercising the extra jurisdiction allowed under the Tribal Law and Order Act and VAWA will be a substantial financial undertaking. In order to assist tribes that are not able to generate funding on their own, the federal government has to step up and provide more financial resources to tribes so this can become an attainable goal. The fallacy in suggesting this however is that it does nothing to address the earlier concern about tribes being overly dependent on the whims of federal government funding. The Tribal Law and Order Act begins to address these concerns by allowing the Legal Services Corporation to provide grants to tribes for non- felony offenses, this power however is misplaced. The Legal Services Corporation is frequently the subject of political battles and has frequently seen its funding dramatically cut and its existence threatened altogether. Allowing the LSC to provide grants is a good start but it still leaves tribes vulnerable to the whims of debate in Washington.

What should be done is the creation of an Indian Legal Services Unit within the Bureau of Indian Affairs (or Department of Justice) that would be primarily responsible for assisting tribes with complying with the provisions of the act that will afford them extra criminal jurisdiction. Given the legal history of tribal jurisdiction, a separate unit could be staffed by people who are experts in Indian Law who could even assist tribes as they attempt to comply with the act. How does this affect funding? In creating the unit, Congress has to make a commitment to fund it for at least five years. The legislation that creates the unit has to provide funding for a set period of time and this funding cannot be cut in budget negotiations. By allowing for an extended period of funding, the program can get started and begin providing funding to tribes without fear of losing money on a year to year basis. In order to prevent wasteful spending, the unit would only provide funding to tribes on a per-lawyer basis. In order to further incentivize working on a reservation and helping to overcome any barriers that may be related to training and learning new laws, the unit could also provide funding for any tribal bar exam related training. It can also provide support for new tribal lawyers who are attempting to learn the laws of a new tribal jurisdiction.

A separate unit would also assist with providing funding for law-trained judges. Since many tribes already share judges, this unit could also assist with recruiting already active tribal judges to work in underrepresented courts who may not otherwise be able to pay them. One way to structure this would be to simply have judges be employees of the federal government who are assigned to geographic “circuits,” which would be conscious of cultural differences between tribes. It would go without saying that this unit would have to have field offices on reservations so they could readily assist if any problems were to arise. The judges could work out of a regional field office and have that as their permanent office space or they could make other arrangements with the tribal entities.

b. Attracting Lawyers

The federal government would also do well to look at the model cultivated by Teach for America, a program which places high achieving college graduates in low income areas. While Teach for America acts only as a placing service, it does provide some lessons for how to direct people towards places that would be in need. Teach for America places students in some of the toughest schools in some of the toughest areas in the country and has a decent success rate at keeping people in their schools beyond the initial two year commitment. One methodology employed by Teach for America that would be useful for the federal government would be a centralized application that allows an applicant to apply and then be placed with an area in need of their assistance. This eliminates the information asymmetry that exists where applicants may not know of vacancies and thus never apply for them. Unlike Teach for America however, the federal government should not make any hiring decisions. Having this kind of service would be helpful because some of the more remote and impoverished reservations may not have an adequate web presence or even a way to announce openings. The lack of a web presence creates a situation in which many tribes may struggle attract attorneys who may otherwise be interested. After all, you cannot apply for a job that you do not know exists.

What are the logistics for how this would function? As mentioned above, a separate entity that deals exclusively with the compliance of this act should be created within the BIA or Department of Justice. A prospective applicant can go a website, choose whether or not to indicate a geographic preference and submit an application. An application can be taken even when no openings are posted. The applicant’s information can go into a central database, which all tribes will have access to. When a tribe wants to fill a vacancy, it can submit a posting to the website but also begin to review previously submitted applications. This process serves a couple of purposes. First of all, it creates a central database of people interested in Indian law, but it also creates a system where people may not otherwise seek out reservation jobs can submit an application. Submitting an application online that will be available to all is a lot easier than seeking out individual job openings. It also alleviates the financial burden that tribes would usually incur when attempting to advertise a job opening. Instead of committing financial resources to advertising an opening, a tribal entity could simply submit to a central database.

The Teach for America model also provides another lesson that the federal government would be wise to heed. Once in the program, Teach for America will provide no-interest loans to assist with relocation50. Relocation is a huge expense, particularly for someone moving to a completely new location that can be hundreds, if not thousands of miles of home. Teach for America also provide continued education and support to Corp members51. By providing these things to lawyers, it helps make the move to a reservation much more financially feasible and less isolating.

How successful is Teach for America? The results are mixed but slightly encouraging. A 2008 study conducted by the Harvard Graduate School of Education found that 43.6 percent of Corp members remained in their low-income placement beyond the initial two year commitment52. However, only 14.8 percent remained for more than four years53. It would be important for tribes to have consistency and low turnover. It is important for a couple of reasons. Perhaps most importantly, more experienced attorneys are likely to be better advocates. They have more experience, they know the judicial system and likely know the judges that they will be practicing in front of. It is also important because of the requirement that tribes have law trained judges. An experience tribal defense attorney could transition into being a judge later on in his or her career.

How can tribes address the turnover problem that Teach for America encounters? By introducing incentives to stay. The federal government already offers loan forgiveness for public service through the Public Service Loan Forgiveness program (PSLF), which allows for the forgiveness of student loans after 120 successful monthly payments as long the applicant is employed in a qualifying public service job54. Monthly payments are further indexed to ten percent of discretionary income55. Programs like this make it possible to work in the public interest without risking bankruptcy. It is no secret that law students graduate with tremendously high amounts of debt and often struggle to pay it back. For the federal government to attract people to work on reservations however, they have to introduce loan forgiveness programs that rival what is offered to medical professionals who undertake similar endeavors. For example, Indian Health Services offers $40,000 (or $20,000 per year) in student loan forgiveness to qualified professionals who make a two year commitment to working on a reservation56. To attract lawyers to work on the reservation, the federal government could consider a similar program. Offering $20,000 per year in loan forgiveness for every year that you work on the reservation would almost certainly result in loans being almost completely forgiven by the time the ten year forgiveness period arrives. By offering graduates a chance at an even shorter forgiveness schedule, working on a reservation becomes competitive with many other lines of employment that lawyers may seek. The price of investment per lawyer is even a relative bargain for the United States government. Even if you pay the median starting salary for a public defender, you are still investing less than $70,000 per year per attorney.

There are also alternative methods that could be used to fill these positions. These methods are less preferable however because they do little to address the problem of high turnover, but they do provide attorneys in the short term. There are various fellowships that allow one to work for a non-profit entity, often at the expense of an outside entity. These entities could form partnerships with agencies that may already work to provide legal assistance to tribal members.. The federal government could further amend the Legal Services Act to allow for existing legal aid organizations to provide criminal assistance to tribal members. This alleviates the burden of tribes to find someone to fill the position while still ensuring that it is filled. There are other grant programs but they often require matching funds to exist. The federal government could subsidize the matching funds in order to ensure that someone fills the job. By doing this, the federal government is essentially providing tribes with a free lawyer at half the cost to themselves. Since they would be competing with virtually every other public interest firm in the country, the federal government will need to publicize this information and provide incentives for people to pursue fellowships on Indian reservations. Extending the above loan forgiveness program to include people on one-year fellowships would be a tremendous start. The lack of attorneys in Indian Country is a crisis that needs a quick and swift response.

IV. Why Should We Invest?

This all sounds like a huge investment by the federal government. What obligation does the federal government have to invest this much money to help an entity comply with an act that it passed? In Seminole Nation v. United States57, the Court stated that “[u]nder a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust58.” Inherent in this trust responsibility is the notion that the federal government should look out for the best interest of tribes. As outlined above, tribes are currently going through a crisis that threatens the safety of their citizens. The fix to this problem will require tremendous expense on behalf of the federal government and an actual honoring of the trust responsibility. The federal government has a responsibility to look out for the best interests of tribes and ensure their citizens are safe.

V. Summary and Conclusion

The best and most efficient way to address the shortage of lawyers in Indian Country is to create a unit within an existing governmental agency that deals exclusively with providing lawyers to Indian tribes. This agency could be created with legislation that will fully fund it for five years, after which a study will be done that will measure its effectiveness. The results of this study will inform Congress as to whether or not the agency can be renewed. Through its initial legislation, the agency will be endowed with funds that it will disburse to tribes to assist with the salary and benefits of attorneys. It will also fund and oversee the loan forgiveness programs that will be created. In regards to hiring judges, the agency will directly employ the judges and assign them to culturally sensitive circuits. The judges will rotate within that circuit.

The agency would also create a website that will allow participating tribes to advertise positions and take applications. While it will not act as a hiring agency, it will collect and disburse applications to tribes as they are requested. Once an attorney is hired, the agency will also fund any applicable training that the applicant might need, particularly in regards to passing any tribal bar exams. The agency will also use the aforementioned field offices as means to providing support to attorneys, who will almost certainly be working in very rural conditions.

It is important that we create programs that addressing the sexual assault epidemic in Indian Country. By creating a streamlined process for tribes to recruit and pay attorneys and judges, we can begin to give tribes the tools they need to address this issue. 

47 Black Hills State University Communications, Chief Justice Gilbertson discusses efforts to attract attorneys to state’s rural communities, BHSU News and Events, Oct. 18, 2013 http://www.bhsu.edu/AboutBHSU/NewsEvents/tabid/3454/articleType/ArticleView/articleId/5099/Chief- Justice-Gilbertson-discusses-efforts-to-attract-attorneys-to-states-rural-communities.aspx48 Id.
49 NALP Bulletin, New Findings on Salaries for Public Interest Attorneys, The Association for Legal Career Professionals, Sept. 2010 http://www.nalp.org/sept2010pubintsal
50 Snapshot of Salary and Additional Benefits, Teach for America, http://www.teachforamerica.org/why-teach-for- america/compensation-and-benefits (last visited May 5, 2014)
51 Investing in Leaders, Teach for America, http://www.teachforamerica.org/our-mission/investing-in-leaders (last visited May 5, 2014)

52 Study Finds Teach For America Teachers Stay in the Classroom Past Initial Commitment, Harvard Graduate School of Education (May 21, 2008), http://www.gse.harvard.edu/news_events/features/2008/05/21_project.php 53 Id.
54 Public Service Loan Forgiveness, U.S. Dep’t of Education, https://studentaid.ed.gov/repay-loans/forgiveness- cancellation/charts/public-service (last visited May 5, 2014)
55 Defined as 150% of the poverty line minus your salary.
56 Loan Repayment, Indian Health Services, https://www.ihs.gov/loanrepayment/ (last visited May 5, 2014)

57 316 U.S. 286 (1942) 58 Id. at 296-97


Sunday, February 18, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part II

Yesterday - I began posting, in three parts, a paper that I wrote in law school where I analyzed how the rural lawyer shortage is endangering public safety in tribal communities by preventing tribes from exercising the supplemental jurisdiction offered by the 2013 reauthorization of the Violence Against Women Act. The paper was written in early 2014 so I apologize for any anachronisms, I've tried to correct them where I could. As I said yesterday, I was re-reading it and thought that the information contained within was very important to share and a great illustration of WHY the rural lawyer shortage is such a big problem. 

Part I is available here

---

II. Exploring The Difficulties

The interplay between financial and locational resources will help influence what solutions the tribes should take in addressing these concerns. The solving of the sexual assault epidemic will first require figuring out how to solve these difficulties in order to take advantage of the enhanced sovereignty offered through the act. The solution to these problems will require in- depth analysis of historical and current issues facing tribes.

a. The Financial Problem

The paltry funding given by the Tribal Law and Order Act essentially leaves tribes with an unfunded opt-in. They are essentially given the option to take part in a program that can provide them with more rights, but at a cost that can be prohibitively expensive. Entities that already struggle with providing even the basic necessities are expected to pay even more money to hire people that will allow them to comply with the act so they can begin to exercise the enhanced sovereignty that will allow them to begin the crime epidemic that is currently plaguing the reservation.

Many tribes also struggle to even have the basic structures that will allow them to exert jurisdiction, and many of these tribes will struggle to pay for the law trained people that will allow them to be in compliance with the act. For example, many tribes lack even a court system. The lack of a court system could be an indicator of the lack of capital to undertake such an endeavor. Creating a court system requires paying to research and develop strategies for implementing a court into your current governmental structure. For these tribes, complying with this act will be prohibitively expensive and very difficult (if not impossible). For tribes with court systems, complying will still represent a great financial burden.

Some tribes will be able to tap into gaming revenue in order to fund expansion of services. Many are familiar with the Seminole, Mohegan and Pequot and their successes with generating revenue through gaming. However, these tribes are generally the exception to the rule. Many tribes are unable to engage in profitable gaming enterprises and for these tribes, gaming will never be an option to raise revenue. For many tribes, gaming may be their only option for economic development, a reality which has been accepted by both the Courts and Congress. In Chemehuevi Indian Tribe v. Wilson, the Court stated, “Congress recognized that for many tribes, gaming income ‘often means the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.27

For tribes who have gaming, it has also not been significantly successful in increasing tribal governmental revenue and many struggle to even break even with their gaming enterprises28. In fact, even for tribes who are able to raise money through gaming, the revenue has started to decline29. In order to generate the revenue needed to pay for law trained attorneys and judges, tribes will have to diversify their economic development and generate additional funding.

To examine the difficulty that tribes often have in generating revenue and the difficult choices that come with a limited budget, we can look to the Pine Ridge Indian Reservation, home of Oglala Sioux. Located in rural South Dakota, economic development can be prohibitively difficult for the tribe. Many tribes who successfully rely on economic development are either located in heavily populated regions (such as the Northeast) or have abundant natural resources. Pine Ridge in located in an area that has neither. In 2012, the Oglala Sioux had a budget of $80 million, $70 million of which came from the federal government30. This dependency on federal funding results in the tribe not having much budget leeway. For example, when the automatic spending cuts (negotiated through a previous debt ceiling deal) took effect on March 1st, tribes all over the country had to grapple with the fact that while the federal government exempted many of the programs that benefit the poor, they did not exercise the same care for programs that benefit American Indians31. Because of the automatic spending cuts, the tribe had to cut not only services to children and the elderly but also their tribal police force32. The inability to supply a sufficient police force is troubling enough, but expecting them to be able to hire additional lawyers would be wrong. Putting additional requirements on a tribe in that financial predicament can result in them being unable to fill that gap.

It is without dispute that tribes in the same situation as the Oglala Sioux are going to encounter an insurmountable amount of trouble raising enough revenue to comply with the act. For tribes already dependent on federal government, they are certainly unable to find the additional money needed to comply with the act. These tribes also face the geographical challenges that make engaging in economic development prohibitively difficult.

b. Attracting Attorneys

Even assuming that tribes were able to find the financial resources needed to hire attorneys, they would still face incredible difficulty attracting qualified candidates to assume the available positions. It should come as perhaps no surprise that the population of the United States is urbanizing and that the population of educated young professionals is urbanizing at an even faster rate than the rest of the American population. In many metropolitan areas, the center city population of young educated professionals is growing at a rate twice as fast as the rest of the metropolitan area33. Young educated people are also moving to certain types of cities, ones that are often based on a high-tech economy or that are young, vibrant college towns34. The legal profession is also urbanizing at a rate that is leaving rural areas as a whole behind. This problem has been noted as far back as the late 90s35. It should be much of a stretch to figure out why both of these trends would pose significant problems for tribes and their ability to attract young professionals to want to move to and work on the reservation.

Indian reservations are often located in the most remote parts of the United States and are hardly boom towns. Some of the most crushing poverty in the country can be found on Indian reservations. In fact, poverty on Indian reservations is so pervasive that it cannot be measured by the standard poverty rate definition that is often cited in studies to define how impoverished an area is. Reservations also have high rates of “extreme poverty,” which for a family of four is defined as making under $11,000 per year36. The number of people in extreme poverty on reservations is four times the national average37. Further, many citizens lack what many of us would consider basic amenities; fourteen percent lack electricity and twenty percent lack running water38. Perhaps the best way to fully understand the conditions on the impoverished reservations is to look at an actual example. In 2013, Washington Post reported on conditions on the Fort Peck Indian Reservation in Montana and described conditions in its populous city by stating that “[s]tray dogs wander the streets ... [it]has a few tiny markets, a bar and several gas stations. The streets are littered with the charred remains of buildings because there is no money to clear away debris after a fire39.” These conditions are in stark contrast to what the average young, educated professional is looking for in a new place.
The extreme poverty also feeds into other issues, as briefly touched above when the expense of hiring lawyers was discussed. The extreme nature of the poverty on reservations makes it so tribes cannot afford to provide basic services to their citizens. The inability to collect sufficient tax revenue creates a situation where funding is often short. The sector where this problem is most apparent and where it will be difficult to retain people long term is the education. When people look for a place to start a family, they often look to see what the local schools. Schools on Indian reservations are underfunded and heavily reliant on the federal government to subsidize what the local school board cannot. The average school in the United States receives only ten percent of its funding from the federal government, for a reservation school however, this number can be as high sixty percent40. A study conducted in 2003 by the United States Commission on Civil Rights found that Native students often face “deteriorating school facilities, underpaid teachers, weak curricula, discriminatory treatment [and] outdated learning tools41.”

There are other issues that would be problematic for attracting young people to move to the reservation. Housing is another great example of a barrier that tribes might encounter. In 2003, it was found that forty percent of reservation housing was considered inadequate, this compares unfavorably with just six percent nationwide42. A shortage of adequate housing would certainly hinder a place’s ability to make itself look appealing to new residents, particularly those who may have options elsewhere.

It is next important to consider where tribes are located and how that might pose a challenge to recruiting lawyers. Reservations are predominantly located west of Mississippi River, in the rural Southwest and Plains and far away from metropolitan areas. In the western half of the country, the remoteness is exacerbated by the population distribution of the United States. The Plains are sparsely populated and you could easily be a full day’s drive away from a major metropolitan area. In their attempts to attract lawyers, tribes will have to consider many of the struggles that other rural areas face when trying to attract lawyers.

Spatial isolation is a major barrier to overcome and functions as an additional barrier to tribes. As outlined above, young professionals are not just moving to urbanized areas, but are moving to center cities with a certain cultural vibe. Reservations are often located in far rural places that do not offer the same kind of lifestyle that one can find in a center city. It seem obvious that rural South Dakota or Montana would not offer the same nightlife and socialization opportunities as high tech cities like San Francisco or Raleigh or college towns like Ann Arbor or Madison. The legal profession as a whole is struggling with attracting lawyers to rural areas. Even in predominantly rural states, a majority of lawyers are clustered in just a few metropolitan areas43. For example, in Georgia, seventy percent of lawyers are in the Atlanta metropolitan area44. This of course leaves just thirty percent of the lawyer population for the rest of the state. In South Dakota, there are entire counties without lawyers, a situation which forces many clients to travel hours just to meet with legal counsel45. In that state, sixty five percent of lawyers are in the state’s sixty five metropolitan areas46. This points to the fact that lawyers are increasingly deciding that working for a firm in a city is preferable to working in rural America, a trend which will prove troubling to Indian tribes because they are competing for a small pool of lawyers. 

27 Matthew Fletcher, Tribal Economic Development: Nuts & Bolts, Michigan State University College of Law Indigenous Law and Policy Center Working Paper Series, Oct. 25, 2006 at 3-4 (citing Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804, 808 n. 4 (N.D. Cal. 1997))
28 Id.

29 Stephen Singer, Report: Revenue growth slows at Indian casinos, falls behind non-tribal properties, Reno Gazette-Journal, Mar. 26, 2014 http://www.rgj.com/story/money/gaming/2014/03/26/report-revenue-growth- slows-at-indian-casinos-falls-behind-non-tribal-properties/6918583/30 Annie Lowrey, Pain on the Reservation, N.Y. Times, July 12, 2013 http://www.nytimes.com/2013/07/13/business/economy/us-budget-cuts-fall-heavily-on-american- indians.html?pagewanted=all&_r=0
31 Id. 32 Id.
33 Morgan Brennan, Downtowns: What's Behind America's Most Surprising Real Estate Boom, Forbes, Mar. 25, 2013 http://www.forbes.com/sites/morganbrennan/2013/03/25/emerging-downtowns-u-s-cities-revitalizing- business-districts-to-lure-young-professionals/34 William Frey, Young Adults Choose "Cool Cities" During Recession, Brookings Institute, Oct. 28, 2011 http://www.brookings.edu/blogs/up-front/posts/2011/10/28-young-adults-frey
35 Steven R. Sorenson, If They Won't Come, We've Failed, Wis. Law., APRIL 1998, at 5
36 Native reservations: poorest places in the country, Liberation, June 20, 2012
http://www.pslweb.org/liberationnews/newspaper/vol-6-no-9/native-reservations-poorest.html
37 Id.38 Id.39 Lyndsey Layton, In Montana, an Indian reservation’s children feel the impact of sequester’s cuts, Wash. Post, Mar. 21, 2013 http://www.washingtonpost.com/local/education/in-montana-an-indian-reservations-children-feel- the-impact-of-sequesters-cuts/2013/03/21/90b61722-916e-11e2-bdea-e32ad90da239_story.html
40 Id.41 A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, U.S. Comm’n on Civil Rights xi (2003) 42 Id. at 50

Saturday, February 17, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part I

After viewing "Sovereignty," a play that dealt with Cherokee history and focused on the reauthorization of the Violence Against Women Act and the expansion of tribal sovereignty that is made possible by it, I decided to dig up an old paper that I wrote for an independent study while in law school. This paper is about 4 years old so I apologize for any anachronisms that are present, I tried to correct them where I could. This paper looked at how the rural lawyer shortage can hinder the ability of tribes to avail themselves of the expanded sovereignty that VAWA provides for. The paper looks at the problem from the side of lack of resources for tribes and also the the inherent difficulty that all rural spaces face in attracting young lawyers to move there. This is perhaps the best example of how the rural lawyer shortage has created a public safety crisis. 

I am sharing here to increase awareness about this issue and because after re-reading it, I felt that the information was too important to not be made available in some venue.

I have decided to keep the original footnotes in order to preserve the paper as much as possible and allow my audience to check my data. I apologize in advance for the deviation from my usual posting format. 

This is part 1 of 3. I hope you enjoy. 
---


I. Introduction to Tribal Jurisdiction

The right of a sovereign to make and enforce its laws is foundational to its existence. The structural integrity of the system is bolstered only by the trust of people who exist within its sphere. After all, the United States of America is nothing but a collection of sovereigns co- existing under a hierarchical but yet confusing system. Many Americans are familiar with the rights afforded to the federal government, states, counties and towns, but fewer are familiar with the rights of tribes. In Cherokee v. Georgia1, Chief Justice John Marshall defined tribes as “domestic, dependent nations” that exist outside of the influence of the states, but yet are “dependent” upon the United States government. Despite being affirmed as quasi sovereign nations by the United States Supreme Court, tribes have historically encountered barriers to making and enforcing their own laws. All three branches of government have waged war on the rights of Indian tribes to exercise the most fundamental right afforded to a sovereign, the ability to make and enforce laws. This process has resulted in a lack of trust in their system and the degradation of their rights as a sovereign entity.
At particular issue is the right of tribes to assert criminal jurisdiction over crimes within their lands. In Ex parte Crow Dog2, the Supreme Court held that tribes had exclusive jurisdiction over crimes committed by Indians against other Indians on tribal land. Congress responded to this by passing the Major Crimes Act3, which placed the right to try and punish certain crimes within the jurisdiction of the federal government. The Supreme Court upheld this intrusion into tribal sovereignty with United States v. Kagama4, which established that tribal rights exist at the mercy of the federal government and can be diminished or even eradicated at any time. Over the next century, the federal government would continue to take away the right of tribes to exercise even the most basic rights of a sovereign entity. When the question of the tribe’s rights to exercise tribal jurisdiction over non-members came up in Oliphant v. Suquamish Indian Tribe5, the Supreme Court said that tribes lack criminal sovereignty over non-Indians without explicit permission from Congress, this logic was extended further in Duro v. Reina6 when the Supreme Court held that tribes lack jurisdiction over non-member Indians. In the latter case, Congress almost immediately fixed it by passing a law which extended tribal jurisdictions to all Indians. What was not fixed however was the gap that did not allow tribes to prosecute non-Indians who commit crimes on the Reservation.

a. Sexual Assault on the Reservation

According to the United States Department of Justice, Native American women are two and a half times more likely to be sexual assaulted than a non-Native and one in three will be sexually assaulted in their lifetime7. The sexual assault epidemic on Indian reservations is the product of a perfect storm of factors: the Major Crimes Act8 placing rape as one of the major crimes under which the federal government can assert jurisdiction over Indian defendants, the provision of the Indian Civil Rights Act9 that limits tribal courts to one year sentences and the Oliphant v. Suquamish Indian Tribe10 decision which stripped tribes of the right to prosecute non-Indians for crimes committed on the reservation.

For a non-Indian, a reservation represents a place where they have virtual free reign. The only jurisdiction that can prosecute them for their crimes is the federal government and the task for doing this often falls in the laps of often overworked US Attorney's offices that are often located in distant cities far away from the confines of the reservation. According to a policy brief prepared by the National Congress of American Indians in 2013, 67% of Native sexual assault victims describe their attacker as non-Native11. These are people over whom the tribe has no jurisdiction whatsoever, they cannot be prosecuted by the tribe for assault or any other related offense. These men are also not strangers who are wandering onto the reservation and then leaving. According to the same policy brief cited above, 39% of Native women will be subjected to sexual violence by a romantic partner and in 71% of instances of sexual assault, the perpetrator is known to the victim12. 46% of reservation residents are also non-Native13.

The jurisdictional black hole that exists has historically had to be filled by the federal government. This is problematic for a number of reasons, the most obvious of which is the spatial isolation that exists for many tribes. Indian reservations are often located in the most remote locations in the country and are often hundreds of miles away from the closest U.S. Attorney’s Office. There are some instances however where a closer jurisdiction can assert control. In Public Law 280 states, the state authorities can assert jurisdiction over crimes committed on reservations but these states are the minority and far from the norm. The inability of tribes to assert jurisdiction differ from the situation present in most locales where the county prosecutor (often located within very close proximity) can prosecute the crime. In 2013, the Department of Justice found that only 69% of criminal cases referred by tribes to the federal government were actually prosecuted14. The problem however is that there is no recourse for tribes when the federal government declines to prosecute. Citing previous data, the New York Times found that only one-third of sexual assault cases are actually prosecuted by the federal government15.

b. Congress Responds

In 2010, Congress responded to many of the problems outlined above by passing the Tribal Law and Order Act. The act authorized tribes to sentence a defendant to up to three years for each offense committed (to a maximum of nine total years)16. However, this provision did not immediately apply to all tribes. In order to take advantage of the enhanced sentencing provision, tribes have to meet certain guidelines. First of all, they have to be able to provide counsel to defendants that meet certain competency standards17. For indigent defendants, the tribe must (at their own expense) provide counsel that are licensed in a jurisdiction whose standards ensure “competence and professional responsibility18.” Finally, the tribes must be able to provide law-trained judges to preside over the proceedings19. Tribes that unable to meet these guidelines are required to continue to adhere to the sentencing restrictions established under ICRA. Given the huge expenses involved, the Tribal Law and Order Act is hardly a cure all or the enhancement to tribal sovereignty that it appears to be.

The Tribal Law and Order Act also did not address one of the most pressing problems in Indian Country: crimes committed by non-Indian defendants. The provisions of the Tribal Law and Order Act only spoke to crimes committed by Natives and did not authorize tribes to exercise jurisdiction over non-Indian defendants. In 2013 however, President Obama signed into the law the reauthorization of the Violence Against Women Act (VAWA). Contained within the bill is a provision that allows tribes to exercise jurisdiction over non-Indian defendants who commit crimes against Indian victims with whom they are in an intimate relationship20. There are of course the following limitations: “[the defendant must be someone who] (a) resides in Indian country (b) is employed in Indian country, or (c) is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a Tribal member21.” There are also certain requirements that tribes must meet in order to exercise this extra jurisdiction, many of these requirements are similar to what was prescribed in the Tribal Law and Order act. For example, tribes must be able to provide competent counsel for indigent defendants and have trials presided over by law trained judges22.page5image15240 page5image15400 page5image15560
c. The Difficulty with Compliance

While both of the pieces of legislation outlined above are major victories for tribal sovereignty, they also provide tribes with a mandate that may prove difficult to meet. Tribes can only take advantage of the provisions outlined in the Tribal Law and Order and Violence Against Women Acts if they can provide for law trained judges and be able to afford counsel for indigent defendants. It is no secret that Indian reservations are some of the most impoverished places in the country. In order to comply with the act, tribes have to expend a significant amount of revenue to hire law trained lawyers and judges. The Tribal Law and Order Act did provide some additional funding to tribes to pursue hiring law trained judges and advocates. The Act allowed the Legal Services Corporation to provide grants to tribes and other entities that serve defendants in Indian Country to fund the defense of criminal defendants23. However, it does not provide for grants to legal services for anything above a misdemeanor offense24. It does provides grants to tribes (outside of the LSC framework) to hire defense council and other “tribal court personnel25.” However, the funding is paltry compared to the funding allocated to the other provisions of the Tribal Law and Order Act26.

Tribes may also encounter difficulties that are external to their financial resources. Since the statute requires that tribes be able to provide law trained judges and lawyers, it is important that tribes be able to make their reservations appealing places to live for law school graduates. Attracting lawyers to live in rural South Dakota, the Upper Peninsula of Michigan or northern Maine is a challenge in and of itself. Tribes not only have to expend revenue to pay the salaries and benefits of the law trained people that they hire, but they also have to pay to provide amenities that would make their reservation competitive with other places that a lawyer may decide to live. Reservations are not only competing with urban areas, but even other rural areas that may lure a potential lawyer away. The cost of hiring a team of lawyers can go far beyond the face value of salaries and benefits but can extend into a value far beyond what was originally expected. page6image18936 page6image19096
30 U.S. 1
109 U.S. 556 (1883),

18 U.S.C.A. § 1153 (West) 
118 U.S. 375 (1886)
435 U.S. 191 (1978)
495 U.S. 676 (1990)

Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey 22-23 (United States Dep’t of Justice 2000) https://www.ncjrs.gov/pdffiles1/nij/183781.pdfSupra, note 3
25 U.S.C.A. § 1302 (West)
10 435 U.S. 191 (1978)
11 Policy Insights Brief: Statistics on Violence Against Native Women 4 (NCAI Policy Research Center, 2013) http://files.ncai.org/broadcasts/2013/February/Policy%20Insights%20Brief_VAWA_020613.pdf12 Id.at3,5
13 Id. at 6

14 Timothy Williams, U.S. Says It Pursues More Prosecutions on Indian Lands, N.Y. Times, May 31, 2013 http://www.nytimes.com/2013/06/01/us/justice-dept-reports-rise-in-prosecutions-on-indian-lands.html?_r=0 
15 Id.16 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 95 (2013) 
17 Id.18 Id.
19 Id.20 Winter King & Sara Clark, Navigating VAWA's New Tribal Court Jurisdictional Provision, Indian Country Today (Mar. 31, 2013) http://indiancountrytodaymedianetwork.com/opinion/navigating-vawas-new-tribal-court- jurisdictional-provision-148458
21 Id.22 Id.
23 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
24 David Patton, Tribal Law and Order Act of 2010: Breathing Life into the Miner's Canary, 47 Gonz. L. Rev. 767, 786 (2011)
25 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
26 Id.


Friday, February 16, 2018

NPR on rural students in higher ed--or not

Jon Marcus and Matt Krupnick reported a few days ago out of Iowa under the headline, "Who's Missing from America's Colleges?  Rural High School Graduates."  The story features Dustin Gordon of Sharpsburg, Iowa, population 89.  He graduated from high school in Lenox, Iowa, population 1,407.
In his sparsely settled community in the agricultural countryside of southern Iowa, "there's just no motivation for people to go" to college, says Gordon, who's now a senior at the University of Iowa. 
"When they're ready to be done with high school, they think, 'That's all the school I need, and I'm just going to go and find a job.' " That job, Gordon explains, might be on the family farm or at the egg-packaging plant or the factory that makes pulleys and conveyor belts, or driving trucks that haul grain. 
Variations of this mindset, among many other reasons, have given rise to a reality that has gotten lost in the impassioned debate over who gets to go to college, which often focuses on racial and ethnic minorities and students from low-income families: The high school graduates who head off to campus in the lowest proportions in America are the ones from rural places.
Here are some sobering data points to provide context for the profile.  While 62% of urban high school graduates and 67% of suburban high school graduates go to college, just 59% of rural ones do--that's all races, at every income level. Nationally, 42% of those aged 18 to 24 are enrolled in higher education, but the figure is just 29% of rural folks, compared to 48% from cities. 

I've noticed the media paying more attention to the rural education gap since Election 2016.  That's got to be a good thing.  

Wednesday, February 14, 2018

Update on rural voting patterns, and a bit about the Bustos report on the "heartland"

This overview paragraph is from Dave Weigel's piece in the Washington Post on Democrat Margaret Good's win in the race for Florida's 72d congressional race yesterday, a seat based in Sarasota: 
But for years, Democrats had been spending little, and losing more — nearly 1,000 state legislative seats, many gerrymandered further out of reach after the party was routed in 2010. Starting last year, they’ve seen money and volunteers flood the sort of local races where the party had been wiped out during Barack Obama’s presidency. In many of the races they’ve lost, they’ve erased most of Republicans’ margins, often with the same pattern — strong Democratic turnout in suburbs and a Republican fade in rural voting. In an average of legislative races, Democrats have seen a 11.9 percent swing since 2016 results.
I've not yet posted about the extensive coverage given to Representative Cheri Bustos's (Democrat-IL) report with recommendations on how the Democrats can take back seats in the Midwest.  Read more about that report here (In These Times), here (Politico), and here (NPR).  In These Times coverage by John Collins includes this description of the report:
Hope From the Heartland: How Democrats Can Better Serve the Midwest by Bringing Rural, Working Class Wisdom to Washington compiles interviews with 72 current or former Democratic officials who, in recent years, won over their rural constituents despite the national popularity of the Republican opposition. According to the report, these were candidates who “bucked the trend and succeeded in the rural Midwest, now dominated by Republicans.”
In the interview with Bustos on NPR, she was asked if she was "suggesting that Democrats went too far in their backing on issues like gay marriage or transgender rights" and whether "that has been part of the [Democrats'] problem." She responded: 
Well, I don't think we should ever lose sight of fighting for the people who need us to fight for them, whether it's, you know, the LGBTQ community or whether it's communities of color. You know, we're Democrats, and we fight for people and for better lives for families. 
But what I'm saying is that we need to stay relentlessly and I - you know, just keep our eyes on the ball for economic recovery in areas that have yet to see it. You know, when we say that we're the big-tent party, you know, that doesn't mean that you leave one group outside pounding the stakes and you let other people - you let them in the tent. When we say we're the big-tent party, we've got to be inclusive, and we've got to fight for everybody. And that includes people in the heartland who have gone through some tough times.
This Bustos-led report was also mentioned in a podcast on This American Life.   One striking thing about that episode was Bustos coaching a female candidate for office not to play up her college education given that many voters in the district were not similarly educated.

Tuesday, February 13, 2018

Changes to SNAP program may have impact on rural economies

By now, most of you are probably familiar with President Donald Trump's proposal to at least partially replace the SNAP program with a food delivery service that OMB Director Mick Mulvaney has compared to "Blue Apron." There have already been many criticisms of this proposal and the fact that it will take away the right of SNAP recipients to choose their own meals and subject them to eating whatever food the government sees fit to provide them. After all, Mulvaney defended the proposal by saying that one of its benefits is that the government will be able to negotiate prices on the wholesale market. What Trump however is proposing is not an entirely new program. The federal government already delivers pre-boxed food to families on tribal reservations all over the country. Consider that the federal government has not conducted a nationally representative study of that program since 1989, a fact that is quite troubling.

One of the most overlooked aspects of this proposal is the impact that it will have on low-income economies, particularly in isolated rural communities. With the federal government at least partially assuming responsibility for delivering food to SNAP recipients, money will be lost from local economies. As I covered in a previous post, SNAP has a measurable economic impact. A SNAP recipient is likely going to spend their dollars in local stores, which employ local people. Even those who spend their dollars at big box retailers are still contributing to keeping an employer in the local community, which helps to keep people employed.

According to the Center on Budgeting and Policy Priorities, over 80 percent of SNAP authorized retailers are small businesses. For many of these small businesses, revenue generated from sales to SNAP recipients may be quite significant. In fact, we already have examples of towns whose economies have been significantly boosted by revenue generated from SNAP. According to a study published by the United States Department of Agriculture, each $5 of SNAP generated approximately $9 of community spending. After all, when a person buys something at a store, their dollars continue to work its way through the economy.  If you want a more detailed explanation, feel free to visit this link.

By fundamentally changing a program that generates positive economic outcomes for impoverished communities, the Trump Administration is setting many communities up for failure. The impact of this proposal goes beyond the people who are receiving SNAP. Consider the economic impacts of the SNAP program and how it helps local business owners employ people in the community. If SNAP is cut and fewer dollars flow into a business then the business owner may have to lay people off or even close his business. The quality of life then also goes down for people in the surrounding community, especially in rural communities. Many rural communities are not exactly awash with options so losing a neighborhood grocery store could result in substantially longer drives to do simple things like grocery shopping, which can represent an additional hurdle for low-income people. The lack of a grocery store in the community may also affect their ability to attract new businesses, which often want access to basic amenities. Further, if a retailer is thinking of expanding into a community and sees examples of prior failures, they may be more reluctant to open up a location there. The end result of all of this is a weaker rural economy and a worsening of the rural:urban gap.

As you can see, changing SNAP is akin to knocking down a domino, it starts a chain reaction that can have a potentially disastrous effect on a local economy. It is my hope that President Trump and Director Mulvaney reconsider this project but if they do not, I hope that Congress decides to not pursue it.

Monday, February 12, 2018

Rural minded governors can make a difference

Yesterday, the Roanoke Times published an op-ed written by Virginia Governor Ralph Northam. In the op-ed, Northam discusses a lot of themes that are frequently discussed here. He talks about people growing up in rural Virginia and then having to settle elsewhere because of the lack of economic opportunity available to them. He relates his own upbringing on Virginia's Eastern Shore and his decision to settle in Hampton Roads, which as he notes is close to home "but not the same." He then goes on to talk about the need to invest in infrastructure, including broadband, in order to ensure the future economic viability of rural Virginia. He notes the duty of the governor to represent all of Virginia and that he represents "people in Russell County just as much as ... people in Alexandria."

Northam's dedication to rural issues is admirable and reminiscent of the governor of the state to his immediate south, North Carolina's Roy Cooper. Now in his second year as governor, Cooper recently announced the beginning of the "Hometown Strong" initiative, which will see the state government work with local officials and non-profit leaders to develop and complete projects as well as identify their long term needs. Like Northam, Cooper also mentioned the need to develop and improve rural infrastructure, including broadband. Cooper, a native of Nashville, also noted the personal impact of this initiative.

North Carolina and Virginia are similar in many ways. Both are coastal states in the Upper South, have growing urban centers, world-class flagship public universities (UNC and UVa), world class land grant universities (NC State and Virginia Tech), booming tech centers (based in Northern Virginia and Research Triangle Park), and--along with Florida--are the only true electoral battleground states in the South. They also share a common historical link. North Carolina's predecessor government, the Albemarle Settlements saw its first governor appointed by the Colonial Governor of Virginia. In fact, many early North Carolina settlers were Virginians who were migrating to the south.

North Carolina and Virginia have also been leaders in forging a New South, a South that is defined by its brains and not its manufacturing or agricultural might. The evidence of this is fairly obvious. In Durham, I have seen old tobacco warehouses filled with office space. In Charlotte, glistening skyscrapers now fill spaces that were once hubs of shipping agricultural goods on the railroad. In Northern Virginia, tech companies and government contractors drive the growth that has turned old farming towns into suburban sprawl. However, as Northern Virginia, Charlotte or the Triangle grow, it is important that we do not forget the people who are still in those rural spaces and are being left behind. In the old economy, the rural spaces supported the urban spaces; farms in rural North Carolina provided the tobacco that sat in the warehouses in Durham and the agricultural goods that were shipped out of Charlotte. For many rural spaces in North Carolina and Virginia, the economic successes of the state at large have done little to help them partially because the symbiotic relationship between rural and urban appears to be lost. This phenomena isn't limited to North Carolina and Virginia however. As I noted here back in November, the link between rural and urban also helped rural New England grow during the Industrial Revolution. Based on their words, it seems that Northam and Cooper are well aware of that and are working to solve it.

The future of rural America is going to depend on leaders who have a personal investment in rural communities and are willing to work to ensure that they remain viable. I am cautiously optimistic about the futures of rural North Carolina and Virginia and hope that Cooper and Northam can deliver on their promises to their home communities.

Sunday, February 11, 2018

Rural broadband - its expansion and the various approaches and challenges

Broadband internet is a necessity for participation in the modern economy. Much of our business is conducted online, schools are increasingly offering online courses and entire degree programs, and the social networking opportunities available are unparalleled. There are entire portions of the country that are however cut off from being able to participate in the broadband world. The federal government has largely tried to address this issue by offering grants to private entities. However, is this the best approach? Would the federal government be better served to model the expansion of broadband on their own expansion of electricity in the 1930s? 

There seems to be little disagreement that broadband is an essential part of any modern economy and that it is essential for any community to have access to it in order to grow. However, there has been remarkably little progress on the national level to address this issue.  In 2011, the "Connect America Fund" was created to expand broadband by giving subsidies to private companies to expand into rural communities. Despite these efforts however, a 2016 Congressional Research report found that 55% of rural Americans have access to internet with download speeds of at least 25 Mbps and only 32% have access to download speeds of 100 Mbps. 

The federal government currently defines "broadband" as internet with download speeds that exceed 25 Mbps, though there is a pending FCC proposal to reclassify access to cell phone data through a smartphone as having "access" to broadband. Since the Connect America Fund allocates funding based on need, this reclassification could result in areas that need to be served going unserved and the inflation of the number of people who have access to broadband. There are also questions about the accuracy of current FCC reports on broadband access and its affect on the ability of high need areas to be adequately served. Rob Hinton, chairman of the West Virginia Broadband Enhancement Council, recently alleged that a recent FCC report greatly inflated the number of West Virginians who have access to broadband, an allegation that the FCC even admitted was possible due to its reporting mechanism. 

The states could try to take action to address the issue. In New York, Governor Andrew Cuomo's office announced a couple of weeks ago that it was entering into the final phase of a three phase program that was designed to ensure that all New Yorkers have access to broadband internet by the end of 2018. This program, titled "New NY Broadband," operates similarly to other programs with the same intention, it expands broadband to rural areas by providing grants to private companies in order to make that possible. The program has seen a reasonable amount of success. According to the governor's office, when the program started in 2015, thirty percent of New Yorkers lacked access to broadband internet. Today, only two percent lack access. However, New York is a high wealth state with a bustling economic center that provides massive amounts of tax revenue that allows it to pursue such ventures. A state like West Virginia or even North Carolina would struggle to afford such a venture. 

I have always been a proponent of treating rural broadband expansion similarly to how the expansion of electricity was treated in the 1930s. In 1936, the Rural Electrification Act was signed and it created a mechanism for providing low-interest loans to locally owned coops to expand the electrical grid into rural communities. Many of these coops even still exist. That approach, which eschewed the idea of giving subsidies to private actors, empowered local communities and provided money to local people who were then able to invest it in their community and start a locally owned utility. 

There have been pockets of rural America that have tried to take this approach in regards to broadband. In 2010, Wilson, North Carolina was able to create a city-owned broadband network, the first gigabit network in the state. A year after its deployment however, the state legislature passed a law that banned municipalities from expanding their broadband networks outside of its borders. In 2015, the FCC voted to block these laws, which had also been passed in other states. After the vote, Wilson expanded access to their network to a nearby small town. However, a court ruling invalidated the FCC vote resulting in 200 people losing access to Wilson's network, including a family farm that employed 250 people. 

New York's approach has yielded results so far. However, we have to look at New York as an anomaly. Most states do not have the wealth that New York has and cannot afford to fund a three phase multimillion dollar expansion project. There are also questions of sustainability. Will private actors maintain service in rural spaces? Is there a way to stop Verizon or FairPoint or Comcast from simply leaving if the venture proves unprofitable (even with the subsidies)? In an ideal world, we would empower cities like Wilson to create and develop broadband networks for their local communities.

The expansion of broadband is a necessity and a sustainable approach is needed to ensure that the service remains in place over the long term.

Saturday, February 10, 2018

Rural Vermont town is an incubator for Olympic athletes

This post deviates a bit from my usual coverage, but I saw this today and could not resist posting and sharing. In December, The New York Times ran a story about Norwich, Vermont, a small town in the Upper Valley region of New Hampshire and Vermont. Despite being a small town, Norwich has produced a disproportionately high number of Olympic athletes.

The article's strength lies in the underlining of the Norwich values that have helped it nurture athletes and helped them remain grounded as they become successful. The article notes Norwich's strong commitment to community service and the involvement of the community in ensuring that children have the resources and encouragement needed to reach their goals. The article highlights the ideal small town, a place where the word "community" is at the center of everything that they do. One of the most interesting subtexts of the article is the relative lack of anonymity that you would have in a town like Norwich, which is not always as ideal as this article makes it sound.  In this case, however, community appears to be a means through which people empower each other.

The articles does briefly note Norwich's proximity to Dartmouth College, which is no small connection. Hanover, NH, home of Dartmouth, and Norwich are separated only by the Connecticut River and have deep historical ties. In fact, one of the final acts signed into law by President John F. Kennedy created a bi-state school district, the first of its kind, that the two towns share. Norwich even sends its high schoolers to Hanover High School.

The article discusses Norwich's roots as a farming community, which has used its proximity to Dartmouth to transform itself into a bedroom community for people employed either at the College or Dartmouth-Hitchcock Medical Center in Lebanon, NH. The growth of Dartmouth and the fact that it has allowed Norwich to successfully transition away from agriculture and into a more stable economy has been a tremendous boon for the town. What is perhaps most striking is that Norwich made this transition without sacrificing their commitment to creating a strong community. As small towns across the country begin to re-invent themselves, they would be wise to look to places like Norwich to see how they can preserve their commitment to community while still ensuring that their residents (and any potential newcomers) have access to economic opportunity.

I will also admit that the article brought back some feelings of nostalgia for me, having spent four years at Dartmouth and within walking distance of Norwich. One of my favorite memories at Dartmouth was walking across the Ledyard Bridge, which connects Hanover to Norwich and happening upon a carnival on the Norwich town common.  I also have memories of going to Dan and Whit's, driving down those 25 MPH roads that the article mentions, and exploring the beautiful area that envelops Hanover and Norwich.

The Upper Valley is an incredibly special place for me and I always love to see it receive attention on the national level.

Friday, February 9, 2018

Progress on telehealth part of two-year budget deal (plus, saving a rural Virginia hospital)

I noticed that Senator Brian Schatz of Hawaii was touting today on Twitter a new law, the CHRONIC Care Act, that will facilitate telehealth.  The law, which was passed as part of the agreement to keep the federal government functioning, had bi-partisan support.  Senators from Mississippi to South Dakota to Maryland and Virginia to Hawaii sponsored it.  I am cutting and pasting here from Senator Schatz's website, dated today:
Today, the Senate voted to pass a two-year budget deal that includes the CHRONIC Care Act, legislation with key provisions authored by U.S. Senators Brian Schatz (D-Hawai‘i) and Roger Wicker (R-Miss.) that will improve access and quality of care for Medicare patients and save taxpayer money. 
“Almost every other part of our health system uses technology to improve health and save costs. It’s long past time for Medicare to catch up,” Senator Schatz said. “This legislation will improve health outcomes for Medicare patients, especially those who live in rural areas or have to make a big effort to get to the doctor’s office, and will make sure that Medicare is ready for the future, when telehealth plays an even bigger role in health care. I’m glad that Congress is making a bipartisan effort to make sure no one gets left behind from the promises and benefits telehealth has to offer.” 
“Mississippi is a leader in the field of telehealth – increasing access to quality care and cutting costs to reach some of our state’s most rural and vulnerable patients,” Senator Wicker said. “If enacted, the provisions Senator Schatz and I have authored will help many Americans receive the health care they need.” 
According to studies, telehealth has been shown to improve care and patient satisfaction while reducing costs. The CHRONIC Care Act lifts outdated restrictions that limit Medicare from reimbursing for telehealth. The telehealth provisions of the CHRONIC Care Act will expand the use of telehealth in accountable care organizations and Medicare Advantage, as well as for home dialysis patients and the evaluation of an acute stroke. In addition to Senators Schatz and Wicker, the telehealth provisions of the CHRONIC Care Act were cosponsored in the CONNECT for Health Act by U.S. Senators Thad Cochran (R-Miss.), Ben Cardin (D-Md.), John Thune (R-S.D.), and Mark Warner (D-Va.).
When I Googled "telehealth" to find more information about the federal bill, I came across this Washington Post story from late January about the failed effort at Medicaid expansion in Virginia.  Here's the lede, dateline Richmond:
Senate Democrats on Tuesday backed off a threat to hold a bill related to a rural hospital hostage because its Republican sponsor wouldn’t agree to expand Medicaid, abandoning their hardball tactic at the urging of Gov. Ralph Northam (D). 
One week after a bloc of Democrats killed a bill intended to help the shuttered Patrick County hospital in Southwest Virginia, the Senate voted unanimously for an identical measure, which Sen. William Stanley (R-Franklin) filed just hours after the original had died. 
The about-face came after Northam urged Democrats to work with Stanley, perhaps signaling how seriously the new governor intends to make good on promises of cooperation on Capitol Square.
Hmmm.  Not sure whether to cheer or boo.  So, a state senator gets what he wants for his rural community, while so many others (including poor-ish rural folks) are hurt by the failure to expand Medicaid. 

Friday, February 2, 2018

High Country News on "rural white scorn" (or, we are all angry, rural whites)

I rarely see the High Country News in print, but this month was an exception.  They sent me a hard copy of the January 22 issue because I'm quoted in the story about the "State of Jefferson," a feature I wrote about here on Legal Ruralism and here on Working Class Whites and the Law.

What I noticed in that hard copy that I might otherwise have missed is this editorial:  the movements produced by white scorn.  It draws parallels between the Bundys (of Malheur and Sagebrush Rebellion-esque fame in Nevada) and the State of Jefferson movement, but then goes beyond those more obvious commonalities.

I'll excerpt part of the editorial here, a part that cleverly challenges liberal elites (the sort who support the High Country News and generally assume they are a world away from rural white folk)  to think about what they have in common with disgruntled rural white folk:
Both of these stories, which took place more than 700 miles apart, reflect a dangerous undercurrent: the simmering scorn of rural white America, which is feeling increasingly disempowered in this cultural moment. The Bundys, the Jefferson separatists, and a wide swath of working-class whites feel left out of the conversation, as national policies, cultural changes and global markets leave them behind. Their resentment helped bring Donald Trump to power, gave the Bundys a form of legitimacy and coincides with the more dangerous movements of white supremacy and white nationalism.

However, rather than dismiss the Bundyites and Jeffersonians out of hand, we might be better served, one year into the Trump presidency, by asking whether or not we are all in the same boat after all. If you are not one of the elite 1 percent that holds 40 percent of U.S. wealth, and if you are not represented by the corporate interests that dominate our politics, is it possible you have more in common with these folks than you think?
I think these comments are pretty clever from an ally-ship, political coalition building standpoint.  It challenges us to think what we liberal elites have in common with the disgruntled, rural and white movement.

Cross Posted to Working Class Whites.