Truthout Stories Wed, 10 Feb 2016 10:23:41 -0500 en-gb Broken Promises: Smaller Middle Class Has Less Room for Families

After Gabriel Cardenas graduated from high school, he seemed on track to join America's middle class. He worked at Google in Silicon Valley, enrolled in classes at San Jose's Evergreen Valley College and took a second job.

But seven years after graduation, Cardenas is no closer to a middle class that has been shrinking for decades. Instead, his career reflects a common storyline in the modern economy. Cardenas was not an employee at the high-tech firm. Instead, he worked there as a contractor, spending his days unloading crates of bottled water, pet food and other goods for the company's new delivery service, Google Express.

He has not earned a college degree either, since he could only afford to take a few community college courses on the $17 an hour he earned as a contractor at Google. When Cardenas turned 25, he moved back home.

Cardenas isn't alone. Last year, the middle class shrunk to its lowest share of the U.S. population in four decades, with only 50 percent of Americans living in middle-income homes, down from 61 percent in 1971, according to a new report from the Pew Research Center, "The American Middle Class Is Losing Ground."

While the middle class was shrinking, two other segments of the American population were growing: the poorest and the wealthiest. Last year, 20 percent of U.S. adults were on the lowest rung of the economic ladder, earning less than half of the national median income or roughly $31,000 or less in 2014, an increase from 16 percent in 1971, Pew researchers reported. In 2015, 9 percent of Americans were at the top, they earned three times the median or more than $188,000 for a family of three, up from 4 percent in 1971.

Cardenas represents a new face of the nation's full-time workers, people who find themselves in low-paying jobs and left out of the shrinking middle class. In the Google warehouse, Cardenas worked alongside biologists and electrical engineers fresh from college who couldn't find other jobs during the sometimes anemic recovery from the Great Recession.

"There is a big lack of hope. I don't think people actually see themselves owning a house, owning much," said Cardenas, now 27, who says he was recently fired after a successful union organizing campaign at his warehouse. "There is not a path to have stability, to save up and actually be middle class."

Losing Faith in the American Dream

The decline of the middle class suggests a growing disconnect in the U.S., where fewer people feel they belong to, or have a chance to join, what has been the nation's economic and cultural bedrock. "The shift out of the middle reveals that a deeper polarization is underway in the American economy," according to the Pew Research report.

The report confirms what many struggling families have felt for years: The American Dream is moving further out of their reach. In 2014, only 64 percent of people had faith in that dream, the lowest level in about two decades, according to a poll and report by The New York Times.

Both that faith and the middle class itself are being eroded by a complex storm of changes within the nation's economy, education system and public policies. While the U.S. economy is growing again, for example, too much of that growth is in low-wage and part-time jobs, according to Kyra Greene, a research and policy analyst at the San Diego-based Center on Policy Initiatives.

San Diego's economy relies heavily on low-paying jobs in the tourism industry - hotels and restaurants - while the city's cost of living ranks among the highest in the nation, Greene says.

The collapse of housing markets during the last recession also delivered a body blow to the financial security of middle and lower-income families. Falling home values robbed many middle-class families of their primary savings, home equity they could have tapped to weather tough times, Greene added.

"They were hit especially hard," said Gabriela Sandoval, director of research and chief economic security officer at the Insight Center for Community Economy Development. "A lot of wealth was lost because of the housing crisis."

As families fell from the middle class, the public safety net that caught struggling households in the past - subsidized housing, public assistance, unemployment aid, public health care and food stamps - was fraying, according to Deborah Scott, executive director of Georgia STAND-UP, an Atlanta-based alliance of leaders that focuses on economic development.

"The services available (today) are not adequate to meet the needs of the communities in crisis. The safety net of good social services, good public policy and basic human services has gaping holes that can't be filled without a comprehensive approach," Scott said.

As the nation's middle class shrunk, however, hopeful signs emerged in two arenas where progress had also stalled: organized labor and the minimum wage.

Meanwhile, the soaring cost of a college degree has pushed one of the more reliable tools to gain access to the middle class out of reach for many and saddled others with crushing debt.

"In states like California, all the things that we saw that were important to building a healthy middle class in this country are moving in the wrong direction," Greene said.

Together, all of these changes help explain why a different analysis by The Pew Charitable Trusts found that those who are born in the bottom or the top of the U.S. economy are likely to stay there.

Signs of Progress

As the nation's middle class shrunk, however, hopeful signs emerged in two arenas where progress had also stalled: organized labor and the minimum wage.

The ranks of union workers have been thinning since the middle of the last century, when a union job was often a reliable path to economic security. In 2014, only 11 percent of U.S. workers belonged to a union, down sharply from 20 percent in 1983, according to the Labor Department's Bureau of Labor Statistics.

In the tech industry, however, unions have secured a few impressive wins lately.

Last year, bus drivers who ferry Apple, Yahoo, and eBay employees around Silicon Valley overwhelmingly voted to join Teamsters Local 853. Their first contract raised wages for drivers from $18 an hour to between $24 and $32 an hour and included paid sick leave, vacation time, holidays and overtime pay, according to Tracy Kelley, one of the drivers who helped lead the organizing campaign.

Yahoo, Apple and the other companies deserve some credit for that contract because "they are the ones who stepped up to the plate to pay the extra money," Kelley said.

Perhaps the most encouraging sign the middle class could grow again is the broad success of local efforts to raise the minimum wage. Even as the federal minimum wage has remained stuck at $7.25, at least 52 cities, counties, and states, from Los Angeles, Calif. to Birmingham, Ala., have raised minimum wages since 2003, according to RaisetheMinimumWage, a project by the National Employment Law Project.

Raising a local minimum wage to $10 or even $15 an hour will not necessarily move a family into the ranks of the middle class, which the Pew Research report defined as households earning between two-thirds and double the national median, between $42,000 and $126,000 a year in 2014 dollars for a family of three.

But, the success of the campaign to raise the minimum wage has tremendous value and could have a "trickle-up" effect as well. The campaign not only raises the pay floor, advocates say, it opens up larger questions about what people need and should earn in the modern economy.

It also reflects a growing realization that many U.S. workers have not seen real raises in years - a typical worker's hourly wages and compensation have been stagnant since 1979, with the exception of the late 1990s, the Economic Policy Institute reported last year.

"We are in what I would call a wages moment. People are recognizing that we have wage stagnation," said Lawrence Mishel, president of the Washington, D.C.-based institute.

In California's Silicon Valley, the idea that many low-wage jobs should pay more is at the heart of a three-point strategy from Silicon Valley Rising, a coalition, and led by Working Partnerships USA to shore up and then expand the middle class. This year, the plan from the San Jose-based community organization includes:

- Launch campaigns to organize contract workers in growing industries, such as bus drivers.

- Push to raise minimum wages and job standards, in more cities. In Silicon Valley, 11 cities have either considered or will consider raising basic wages this year.

- Expand affordable housing, including rent-controlled and subsidized housing, and support policies that prevent displacement of workers living in Santa Clara County.

For some, the campaigns to raise minimum wages, organizing wins and initiatives to broaden subsidized housing are a solid step to stopping the erosion of the middle class. In San Jose, for example, Gabriel Cardenas wants to see greater investment in public schools, stronger laws that support collective bargaining and free community college.

Political engagement and community organizing are important keys to making these changes and expanding the middle class, adds Georgia STAND-UP's Scott.

"We need to keep making sure people participate in the political process and understand the connection between good public policy and the quality of their lives," she said.

News Wed, 10 Feb 2016 00:00:00 -0500
Sanders and Trump Steamroll the Establishment in New Hampshire

New Hampshire resoundingly rejected the two major party's mainstream candidates in its presidential primary Tuesday, with Bernie Sanders decisively beating Hillary Clinton on the Democratic ticket and Donald Trump overwhelming a pack of governors and U.S. senators who cannot seem to stop him.

Sanders' 21-point victory over Clinton, though not unexpected after surging in recent polls, was a monumental achievement for a candidate who started out with less than 5 percent of the vote (trailing by 44 percent at one point last year) and calling for a revolution to fundamentally address economic and political inequality.

"We won because we harnessed the energy and the excitement that the Democratic Party will need to succeed in November," Sanders said. "What the people here have said is that given the enormous crises facing our country, it is just too late for the same old, same old establishment politics and establishment economics: the people want real change."

"What the American people are saying," he continued - "and by the way, I hear this not just from progressives, but from conservatives and from moderates - is that we can no longer continue to have a campaign finance system in which Wall Street and the billionaire class are allowed to buy elections. Americans, no matter what their political view may be, understand that that is not what democracy is about. That is what oligarchy is about!"

But Sanders was not the only candidate striking populist notes. In her concession speech, Clinton spoke passionately about tackling much the same agenda as Sanders - not just economic and social justice, but taking on Wall Street and campaign finance reform.

"People have every right to be angry," Clinton said, "but they're also hungry - they're hungry for solutions. What are we going to do? And that is the fight that we are taking to the country. What is the best way to change people's lives, so we can all grow together? Who is the best changemaker? And here's what I promise: I will work harder than anyone to actually make the changes that make your lives better."

That question, who is the best change agent, will surely be a centerpiece of Clinton's campaign as she moves on to the next states. But she also sounded different, not talking about fine-print solutions but speaking emotionally while saying she knows how best to take on Republicans.  

"In this campaign, you've heard a lot about Washington and about Wall Street," she said. "Now Sen. Sanders and I both want to get secret, unaccountable money out of politics. And let's remember, Citizens United, one of the worst Supreme Court decisions in our country's history, was actually a case about about a right-wing attack on me and my campaign.… So yes, you're not going to find anybody more committed to aggressive campaign reform than me."  

Whether Clinton and her team will seriously embrace the core economic message that the Sanders campaign has been riding on - inequality, health care and reining in Wall Street - remains to be seen. Clinton also acknowledged in her speech that she is not winning among the vast majority of younger voters, who are drawn to Sanders, and said she would try to win their support. And early in Sanders' victory speech, he signaled the possibility he might come up short in the nomination contest, saying it was critical that all Democrats were united in the fall, "because the right-wing Republicans we oppose must not be allowed to regain the presidency."

Republican Quagmire Deepens

Trump's victory was also not surprising given his months-long lead in the polls. But after placing second after Ted Cruz in ultra-religious Iowa, Trump won across all Republican demographics in the media's New Hampshire exit polls, including among more highly educated voters, one of the demographics Trump wasn't supposed to win. Even though he won with 35 percent of the vote, that shows his base of support is widening, which is more than disconcerting to the GOP's Washington-based establishment.

Traditionally, outsider candidates split a small slice of a party's electorate and remain in the single digits while a more mainstream presidential candidate draws increasing support as the nominating season unfolds. But exactly the opposite is happening in 2016 for the Republicans, as their pack of governors and U.S. senators hover in the teens or less, percentage-wise, and will soon have to decide if they will stay in the race. 

As it stands, the GOP frontrunners are the party's outsiders, Trump and Ted Cruz, who won Iowa's caucuses. The second-place New Hampshire winner, Ohio Gov. John Kasich, roughly garnered one in six votes, 16 percent, which will boost his campaign as the next contests appear in Nevada and South Carolina. Kasich raised a fraction of the other establishment candidates, but rose in the polls on a very positive message and an impressive TV debate performance. Cruz, Jeb Bush and Marco Rubio gathered 11.5 percent, 11.2 percent and 10.4 percent, respectively, with about three-quarters of precincts reporting.

Trump's victory speech also struck populist notes, but of a decisively right-wing nature except for his attack on the money, power and influence of special-interest lobbyists. But that didn't stop Trump from going after Sanders, after congratulating him on his victory.

"First of all, congratulations to Bernie; in all fairness, we have to congratulate him," he said. "We may not like it. But I heard part of Bernie's speech. He wants to give away our country, folks. He wants to give away - we're not going to let it happen. We're not going to let it happen. I don't know where it's going with Bernie. We wish him a lot of luck."

"But we are going to make America great again," he continued, "but we are going to do it the old-fashioned way. We're going to beat China, Japan. We're going to beat Mexico in trade. We're going to beat all of these countries that are taking so much of our money away from us on a daily basis. It's not going to happen anymore."        

Then Trump congratulated himself for not relying on fundraising from wealthy donors and lobbyists, saying, much like Sanders and Clinton, that those fixtures of the political culture are inherently corrupt and anti-democratic.

"I think one of the things that really caught on - it's very important - self-funding my campaign," he said. "This is on both sides, the Republican side, the Democratic side, money pouring into [negative] commercials. These are special interests, folks. These are lobbyists. There are people that don't necessarily love our country. They don't have the best interests of our country at heart. We're not going to let it happen. We have to do something about it."    

Sanders doesn't have a super PAC, which would allow donors to flout legal loopholes to get around individual campaign contribution caps and give millions. He said he has more than 1 million donors who have given 3.7 million times, averaging $27.

As the race continues to its next stage, the candidates' focuses will all shift to demonstrate that they have broad support that can translate into a winning candidacy in the fall. On the Democratic side, Sanders will try to demonstrate that a U.S. senator from a nearly all-white state can win sizeable votes from African Americans in South Carolina and Latinos in Nevada. In contrast, Clinton will try to demonstrate that those slices of the party's base that have historically supported her in the past are still with her. All eyes will be on turnout.

On the Republican side, the contest gets trickier. In South Carolina, there's a sizeable evangelical population that's akin to Iowa, which appears to favor Ted Cruz. And in Nevada, Trump, whose fortune comes in part from the casino business, is a well-known figure, especially in Las Vegas.

News Wed, 10 Feb 2016 00:00:00 -0500
On the News With Thom Hartmann: Court Rules That Corporations Should Pay to Clean Up Their Disasters, and More

In today's On the News segment: The DC Circuit Court of Appeals agreed that corporations, not taxpayers, should pay to clean up their own disasters; Maine will get to vote on marijuana legalization this November; Canada will protect 85 percent of British Columbia's rain forest from development and destruction; and more.

See more news and opinion from Thom Hartmann at Truthout here.


Thom Hartmann here - on the best of the rest of Science and Green news ...

You need to know this. The DC Circuit Court of Appeals says that it's time to end the era of "privatize the gains, and socialize the losses." Last week, the public interest law firm Earthjustice broke the news that one of our nation's highest courts says it's time for the EPA to make polluters pay to clean up their own messes. Working on behalf of conservation groups, Earthjustice attorneys filed suit to demand that the Environmental Protection Agency (EPA) finalize so-called "financial assurance" rules that require companies stay financially viable enough to pay for the potential cleanup of any toxic substances that they produce. In other words, these rules prevent companies from causing a toxic spill then declaring bankruptcy to avoid the cost of clean up. And these rules have actually been in place since 1983, when they were issued as part of the EPA's "Superfund" law. But that agency pretty much ignored them until a 2009 court ruling ordered the EPA to start enforcing these regulations. Since that 2009 case, the agency had once again started to ignore these important rules, which left taxpayers picking up the tab for toxic spills. So, Earthjustice and other groups filed suit to force the agency to follow the rules that are already on the books. And the DC Circuit Court of Appeals agreed that corporations - not taxpayers - should pay to clean up their own disasters. Their ruling stated, "It is a common practice for operators [of sites that produce hazardous substances] to avoid paying environmental liabilities by declaring bankruptcy or otherwise sheltering assets." And they agreed that holding corporations accountable will also give them a financial incentive to make their businesses as safe as possible to begin with. Amanda Goodin, one of the attorneys for Earthjustice, said, "Today's court ruling is clear - we will no longer see polluters cheating the system, evading their financial obligations, and skipping town on their toxic messes, leaving taxpayers stuck with hefty cleanup bills." Next time a big company considers skimping on safety in the name of profit, they will have to be willing to back up that decision with corporate dollars.

Artificial intelligence is no longer the stuff of science fiction. Last month, a computer beat a professional player in the ancient eastern board game known as "Go." While that news may not seem much different than the computer that beat chess champion Garry Kasparov 18 years ago, the game "Go" is much more computationally demanding than the game of chess. In fact, just a decade ago, some researchers thought that a computer could never defeat a human in the game because there can literally be trillions of different options at some points in the game. That's why this new computer program, known as AlphaGo, uses more than calculations to decide how to move in the game. AlphaGo actually relies on "deep neural networks" which mimic the neurons in the brain and allow the computer to learn which moves will lead to victory. For their experiment, researchers trained the AlphaGo network by feeding it a database of 30 million configurations for the game board and the moves that expert players took in each instance. The computer used that knowledge to beat the 2013 European Go champion, and it will takes on the South Korean Go champion next month in Seoul. We can only imagine how and where this incredible technology will pop up next.

Maine may be stuck with Paul LePage for another two years, but they may get a little help reducing the stress of living under their extreme, right-wing governor. According to Phillip Smith over at AlterNet, Mainers will get to vote for marijuana legalization on the ballot this November. Last week, the Campaign to Regulate Marijuana Like Alcohol turned in more than 100,000 signatures from voters who want to end marijuana prohibition. They only needed 61,000 to qualify for this year's ballot. A poll taken last spring found that 65 percent of Mainers support cannabis legalization, and nearly 80 percent of those surveyed said that it should be sold in licensed establishments. This ballot initiative would allow people 21 years and older to posses up to two-and-half ounces of pot or a limited number of plants. And it would set up a system of regulation, licensing and marijuana taxation. Legalized pot has been a huge success in states that have ended prohibition, and the people of Maine should have the right to reap those rewards.

Until recently, scientists believed that early humans ate mostly vegetables and the large game animals that they hunted. But according to researchers studying caves near Tel Aviv, our early ancestors had a taste for roasted tortoise. Scientists discovered the bones and shells while studying the Qasem Cave in Israel, which has a rich record of Paleolithic humans. In addition to the evidence of game animals like deer and cattle, researchers found tortoise shells and bones at various levels throughout the cave. They said that tool marks indicate that most of the tortoises were roasted in their shells, and were likely used to supplement the diets of our ancient ancestors. One of the researchers said, "Our discovery adds a really rich human dimension-a culinary and therefore cultural depth to what we already know about these people." We tend to think of our ancestors as primitive beings, but discoveries like this prove that early humans were just as complex as the modern version.

And finally ... Environmental groups are declaring victory for the Great Bear rain forest. Last week, British Columbia officials announced a landmark deal to protect the Canadian rain forest that's home to 26 First Nation's tribes and the "Spirit Bear" - a rare subspecies of black bear that has white fur. That new agreement protects 85 percent of the rain forest from development and destruction, and it subjects the remaining 15 percent to the "most stringent" environmental standards in North America. The Great Bear rain forest is a unique ecosystem that is often called a "Gift to the World." Thankfully these strong protections will help the First Nations peoples and preserve this wonderful gift for generations to come.

And that's the way it is for the week of February 8, 2016. I'm Thom Hartmann on Science and Green News.

News Tue, 09 Feb 2016 00:00:00 -0500
The Secret Deaths of Dozens at Privatized Immigrant-Only Jails

A shocking new investigation about private prisons has revealed dozens of men have died in disturbing circumstances inside these facilities in recent years. The investigation published in The Nation magazine documents more than 100 deaths at private, immigrant-only prisons since 1998. The investigation's author, Seth Freed Wessler, spent more than two years fighting in and out of court to obtain more than 9,000 pages of medical records that private prison contractors had submitted to the Bureau of Prisons. We speak to Wessler about his piece, "This Man Will Almost Certainly Die."


JUAN GONZÁLEZ: We turn now to a shocking new investigation about private prisons and the dozens of men who have died in disturbing circumstances inside these facilities in recent years. The investigation, published in The Nation magazine this month, documents more than 100 deaths at private, immigrant-only prisons since 1998.

The investigation's author, Seth Freed Wessler, spent more than two years fighting in and out of court to obtain more than 9,000 pages of medical records that private prison contractors had submitted to the Bureau of Prisons. The documents are stunning. They reveal more than two dozen cases of inadequate medical care that independent doctors say contributed to the premature deaths of the prisoners. One man died shackled to his bed from an undiagnosed HIV-related infection in his brain. Other men died from lack of medical care for cancer and liver disease. Several men were denied adequate mental health treatment and went on to commit suicide.

AMY GOODMAN: This comes as the Democratic presidential candidates are increasingly speaking out against multimillion-dollar private prison contracts. In September, Vermont Senator Bernie Sanders introduced a bill to ban government contracts with private prison companies at the federal, state and local level within three years. In October, former Secretary of State Hillary Clinton also pledged to ban the use of private prison companies. The Clinton campaign later said it would stop accepting money from lobbying groups linked to private prisons and that it would donate the money it had already received.

Well, to talk about this and more, we're joined by the author of the new investigation, Seth Freed Wessler, reporter with The Investigative Fund, his new story for The Nation called "This Man Will Almost Certainly Die."

Seth, welcome to Democracy Now! Explain the title, "This Man Will Almost Certainly Die."

SETH FREED WESSLER: That title comes from a quote that was left in one of the medical files I obtained through an open records request. I obtained 9,000 pages of documents. And in those documents, from one of these prisons, there was a medical doctor who left his normal medical notes, but he also left a series of notes railing against the system that he had - he worked in, inside of one of these private federal prisons, private federal prisons used only to hold noncitizens convicted of federal crime - a sort of segregated system of prisons. In these files, he left a series of notes where he was railing against this prison system, basically saying that it wasn't providing prisoners, or wasn't allowing him to provide prisoners, the kind of care that as a medical doctor he believed he should be able to provide. These records tell the stories of 103 men who died inside this federal subsystem of prisons.

If you're convicted of a crime in the United States, a federal crime, and you're a noncitizen considered a low-security prisoner, you're likely to be sent to a different prison from all of the rest of - from citizens. And those prisons are nearly the only prisons that the Federal Bureau of Prisons has privatized, has contracted out to private companies - GEO Group, Corrections Corporation of America, Management and Training Corporation.

And what I found is that the federal government is applying a different and less stringent set of rules to these prisons. And that, in the context of medical care, is leading to stripped-down kinds of medical clinics with lower-trained, lesser-paid, less expensive workers. And in dozens of cases, prisoners held inside are facing medical neglect. In 25 cases I looked at, doctors who reviewed the files said these prisoners likely would have lived had they received adequate medical care.

JUAN GONZÁLEZ: Well, Seth, could you - how did these develop? In other words, what's the rationale for them segregating off the noncitizens into separate prisons? And also, talk a little bit about the evolution. When did they begin to flower or develop as a form of institutionalization of inmates?

SETH FREED WESSLER: Sure. So, private prisons, in general, they have existed for decades. But it took until the '90s, the late '90s, for the Bureau of Prisons to begin privatizing. The Bureau of Prisons had resisted privatization until the late '90s, when the Clinton administration proposed in its 1996 budget request a plan to privatize a subset of federal prisons, to see if in fact they could save money. This was a time when the Clinton administration was promising not to expand the size of the federal workforce, but also prisons were growing. So, when prisons grow, federal prisons grow, usually that means more workers. The solution they found was to privatize federal prisons.

Well, very soon, as these prisons started to open, the federal government began to incarcerate only noncitizens inside of most of its federal prisons that have been privatized. The logic is, as recently as 2014, the Bureau of Prisons said that noncitizens are an ideal group of people to hold in privatized federal facilities that have somewhat fewer resources and services, because these people will later be transferred to immigration authorities and deported, after they serve their time. So they've explicitly said that these are sort of stripped-down facilities.

JUAN GONZÁLEZ: But you've also noted that a lot of the people that are incarcerated are basically - the crimes they've committed is re-entry into the United States, not necessarily -


JUAN GONZÁLEZ: - an actual crime here in the U.S.

SETH FREED WESSLER: That's right. In fact, 40 percent of the people inside of these prisons are incarcerated for the criminal offense of crossing over the border. In the early '90s, 4,000 people were prosecuted criminally for crossing over the border. By 2013, at the peak of these prosecutions under the Obama administration, 91,000 people were prosecuted criminally for illegal entry or illegal re-entry, for crossing the border - something we usually think of as a civil offense. You know, usually, people are detained and deported as a result of crossing the border without papers. But we've started to incarcerate, sometimes for years, tens of thousands of people.

AMY GOODMAN: And just to be clear, these are not the immigrant detention facilities.

SETH FREED WESSLER: That's right. These are a different system. So, Immigration and Customs Enforcement oversees immigration detention. There are additional 23,000 people in a separate prison system that's overseen by the Bureau of Prisons used to hold noncitizens. And I uncovered stories of people who were facing incredible kinds of medical neglect, men who complained of illness for, in one case, two years and was never seen by doctor. This man, Claudio Fagardo-Saucedo, was actually never tested for HIV, despite the fact that there were signs that he should have been, and that federal rules would have it that he should have been. He was never tested for HIV, 'til he became so sick that he fell down. He was so weak that he fell down while walking in the prison, and he was sent to a local hospital, tested positive for HIV, and died days later of an AIDS-related brain infection. It's just sort of staggering levels of neglect.

AMY GOODMAN: I want to turn to your interview, Seth, with Dr. John Farquhar, the former clinical director at the Federal Correctional Institution in Big Spring, Texas. This was featured on Reveal, a podcast from the Center for Investigative Reporting.

DR. JOHN FARQUHAR: There were times when I was critical. I'm a critical person, starting with myself.

SETH FREED WESSLER: You actually wrote at one point, "I feel bad for his shabby care."

DR. JOHN FARQUHAR: Well, I stand by that statement. I don't know who it's about, and I can't comment on any single record of any person. But there are times when the care was not what I wanted for any patient, period.

AMY GOODMAN: Dr. Farquhar went on to suggest the contractors asked him to cut down on number of 911 calls made out of prison.

DR. JOHN FARQUHAR: They said, you know, "Is there a way that we can cut this down?" And I said, "Probably, yes."

SETH FREED WESSLER: I could imagine that could result in a pressure to not call when somebody really needs to go to the emergency room.

DR. JOHN FARQUHAR: That's always the risk. That's why professional judgment takes professional training and professional experience, because you can't leave it up to anybody.

AMY GOODMAN: In this clip, we hear Russell Amaru, a physician assistant at Big Spring. He was on the call the night a prisoner named Nestor Garay had a seizure or a stroke. Garay spoke about the facility's high reliance on LPNs, or licensed practical nurse.

RUSSELL AMARU: There would have been a more aggressive care for that patient, and other patients, too, if we had better training, better staff. It's just so many things are wrong there. You had an LPN right out of school, new in corrections, trying to make an assessment. He did not have the skills. I don't blame them as a person; I blame the management system that puts him in that position. Basically, what you have, in essence, is people that are undertrained doing jobs that they shouldn't be doing. We do not have an infirmary for 24-hour observation. Charts are often temporarily lost for a couple of days or a week or so. And so, the companies that I work for, they've got the model of how the place is supposed to be run, and they seem to allow it. And I know you want to ask me: What I would do to correct the problem? I'd close this whole facility down, and I'd start over again.

AMY GOODMAN: "I'd close this whole facility down," says Russell Amaru, a physician assistant at Big Spring. Seth, "This Man Will Almost Certainly Die," your piece, dozens of men dying in disturbing circumstances in privatized, immigrant-only prisons - where is this all going?

SETH FREED WESSLER: Well, the Bureau of Prisons has made a decision that they aren't going to apply the same rules and standards to privatized prisons used to hold immigrants that it applies to the rest of its prison system. That means that these private companies are free to determine how they're going to provide care. One of the ways that that happens is by employing lesser-trained, less expensive workers, as the person we just heard talked about. This is a subsystem of federal prisons that's run by the Bureau of Prisons, and there are real questions about why it is that there is a separate, segregated system of federal prisons for noncitizens, segregated on the basis of citizenship, where people are suffering really incredible kinds of medical neglect.

AMY GOODMAN: Seth Freed Wessler, we're going to do Part 2 after this interview and post it at Seth Freed Wessler is a reporter with The Investigative Fund. His new story for The Nation magazine, "This Man Will Almost Certainly Die," we will link to it at

And that does it for our broadcast. We have several job openings. Check our website at

News Tue, 09 Feb 2016 00:00:00 -0500
The Conservative Playbook for Keeping "Dark Money" Dark

How do you stop states and cities from forcing more disclosure of so-called dark money in politics? Get the debate to focus on an "average Joe," not a wealthy person. Find examples of "inconsequential donation amounts." Point out that naming donors would be a threat to "innocents," including their children, families and co-workers.

And never call it dark money. "Private giving" sounds better.

These and other suggestions appear in internal documents from conservative groups that are coaching activists to fight state legislation that would impose more transparency on the secretive nonprofit groups reshaping U.S. campaign finance.

The documents obtained by ProPublica were prepared by the State Policy Network, which helps conservative think tanks in 50 states supply legislators with research friendly to their causes, and the Conservative Action Project (CAP), a Washington policy group founded by Edwin Meese, a Reagan-era attorney general.

Dark money is the term for funds that flow into politics from nonprofit groups, which can accept donations of any size but, unlike political action committees, are not required by federal law to reveal the identities of their donors. The anonymity has been upheld by courts that cite as precedent a 1958 Supreme Court ruling that the state of Alabama could not demand that the NAACP turn over a list of its members.

Since 2008, dark money groups have spent more than $690 million in federal races, according to the Center for Responsive Politics. A single group aligned with Republican presidential hopeful Marco Rubio helped buoy his standing in Iowa before Monday's caucuses with $1.3 million in ads.

The same story is playing out on the state level. During the 2014 election cycle, 40 nonprofits spent $25 million on TV ads about state races, according to an analysis by the Center for Public Integrity. That represented 3 percent of total ad buys, almost double the proportion that dark money paid for in 2010.

This year, 38 states are considering bills relating to disclosure, according to a database compiled by the National Conference of State Legislatures. Some have already adopted rules. In 2014, California began requiring nonprofits that engage in campaign activity to live by many of the same disclosure regulations as traditional political committees. Montana decided last year that politically active nonprofits would have to disclose donors, and report any electioneering communications within 60 days of votes being cast.

A memo distributed by CAP in January to conservative activists highlighted new disclosure rules being considered in Minnesota, Missouri, New Mexico, Pennsylvania, Tennessee, and Washington, as well as ethics bills in South Carolina and Texas that contain disclosure provisions.

Groups that are throwing their resources behind stricter campaign finance regulation include Common Cause, which has offices in 36 states, and the Democracy Alliance, an invitation-only organization composed of wealthy liberal donors. According to CAP, though, the initiatives to require disclosure not only pose a threat to free speech but also to the very existence of the nonprofits.

"This well-coordinated, well-funded effort to require conservative nonprofits like yours to divulge the names and addresses of your donors is all part of a plan to choke off our air supply of funding," the group said in the memo.

The memo was signed by many leading voices on the political right, including anti-tax advocate Grover Norquist; top officials at Americans for Prosperity, an advocacy group backed by the Koch brothers political network; the Family Research Council; the Council for National Policy; and Heritage Action for America. It describes conservatives as "a persecuted class" and compares labeling private donations "dark money" to calling private ballots "dark voting."

The State Policy Network, which on its website calls pro-regulation activists "enemies of debate," distributed its documents at a conference held last fall in Grand Rapids, Michigan. The material includes a map of cities and states considering measures to "force disclosure of charitable giving" and a set of "questions that help people see the consequences of public disclosure." Among them: "Do you think the government should be able to take down names and addresses of Americans and who they donate to? Do you think people should be targeted for expressing their opinions?"

The organization also urges its supporters to choose the right phrases to color the debate, shunning terms such as "activist," "anonymous" or "dark money" in favor of "private giving," "censor" and "silencing dissent." Under the header "Framing the Issue," a man is pictured with tape over his mouth.

Other documents give conservative activists tips on where to look for "efforts to stifle free speech," for example in bills that deal with corruption or ethics, or that define electoral activity. "More than a dozen states have considered or passed legislation that changes the definition of electioneering communications to include the everyday activity of non-profit groups, like issuing a non-partisan voter guide," one briefing says.

Meredith Turney, a spokeswoman for the State Policy Network, said in an interview that along with the materials provided to members, the organization is alerting nonprofits regardless of political orientation that the proposals would interfere with privacy and free speech.

"These laws will impact groups from Planned Parenthood to The Heritage Foundation and start-up movements like Occupy Wall Street and Black Lives Matter," Turney said.

Arizona Democratic state senator Martin Quezada, who has been pushing dark money disclosure legislation since last year, said his goal is to let voters know which special interests might have influence over a candidate.

"My bill in no way limits anyone's free speech. It doesn't say they can't spend that money. They're free to spend that money all they want. It only requires that if you're going to spend that money, you have to tell us who you are," Quezada said.

The CAP memo also warns activists to snuff out a burgeoning alliance in some states between liberal groups seeking more disclosure and Tea Party-like conservatives who often oppose the Republican establishment. "The Left has turned the transparency concept on its head to dupe conservative legislators and well-meaning Tea Party groups to help advance their initiatives," the memo said, citing a 2014 Tallahassee voter campaign finance initiative that capped contributions in city races at $250 and established an ethics office.

"Transparency is for government," the group reminded conservative activists. "Privacy is for people."

Dan Backer, a lawyer who signed the CAP memo, said the group's organizing should be a warning to advocates of stricter campaign finance rules that his side will use "a variety of means" including litigation to preserve the privacy of donors. Backer helped bring the 2014 McCutcheon case in which the U.S. Supreme Court removed aggregate limits on direct contributions, which along with the 2010 Citizens United decision set the stage for a new flood of money into politics.

News Tue, 09 Feb 2016 00:00:00 -0500
Amid College Lawsuits, Obama Administration to Establish "Student Aid Enforcement Union"

The Department of Education announced Monday that it is creating a new organization to "respond more quickly and efficiently to allegations of illegal actions" by American colleges.

Department officials said that President Obama has included $13.6 million for the new office in his fiscal year 2017 budget proposal. Called the Student Aid Enforcement Union, it is slated to be led by one of the Federal Trade Commission's top lawyers, Jeffrey Kaye; the current lead attorney for the commission's Bureau of Consumer Protection.

"When Americans invest their time, money and effort to gain new skills, they have a right to expect they'll actually get an education that leads to a better life for them and their families," Acting Education Secretary John King Jr. said. "When that doesn't happen we all pay the price. So let me be clear: schools looking to cheat students and taxpayers will be held accountable."

The President's complete budget proposal for the next fiscal year, which starts on Oct. 1, is due out on Tuesday, the same day as the New Hampshire presidential primaries. It will have more details about the White House's broader enforcement priorities for the remainder of President Obama's time in office.

The Department of Education and the Department of Justice came under fire late last year from Democratic senators for their handling of a settlement with the Education Management Corp. (EDMC), a for-profit college found to have defrauded students and taxpayers.

Sens. Elizabeth Warren (D-Mass.), Dick Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) said the Obama administration "recovered a miniscule fraction of stolen taxpayer funds, held no individuals accountable while failing to even obtain an admission of wrongdoing from EDMC, and now may not even provide relief to thousands of students who owe billions of dollars in student loans because they were illegally recruited by EDMC."

The senators additionally noted the settlement came after a September order issued by Attorney General Loretta Lynch, which directed federal prosecutors to toughen up on white collar crime.

"[A] mere two months after announcing this policy, when settling a case that recovered less that one percent of funds that were illegally gained by EDMC, DOJ garnered no admission of wrongdoing and held no individual accountable for the actions that singificantly harmed students and taxpayers," the senators wrote.

Last month, the the Department of Education and the FTC announced they were taking action against another for-profit college operator, DeVry, for allegedly defrauding tens of thousands of students since 2008. The Huffington Post noted, however, that the FTC's own court filings "suggest that as many as 300,000 students were harmed" by DeVry during 2008 and 2014.

There are currently 8,424 outstanding borrower claims against institutes of higher education, according to US News. Just more than 1,300 of those involve federally-guaranteed loans worth a total of $85.6 million.

News Tue, 09 Feb 2016 00:00:00 -0500
Obama's Last Budget May Be Ignored by the GOP

For the last time ever, President Barack Obama is about to introduce his budget to Congress. Congress, sadly, doesn't appear to want it.

Throughout the entirety of the Obama administration, the divide between Congress and the White House has been growing steadily wider. From a first year in office where Democrats briefly controlled all three arms of government to today, where both the House and Senate are now under Republican control, getting any semblance of governing through the political process has become a more more laborious uphill battle each session.

Now, any attempt at even pretending that Congressional Republicans might be willing to work with the Commander-in-Chief has been thrown out the window, as this year's budget process seems to signal. "President Obama is expected to release his final budget plan on Tuesday, but Republicans on Capitol Hill are indicating that they won't give it much thought," reports The Hill. "The chairmen of the House and Senate Budget Committees issued a joint statement late last week announcing that, breaking with precedent, they wouldn't invite the Office of Management and Budget director to testify before their respective panels to discuss the president's budget."

Refusing to hear the budget isn't just a massive break with precedent, it is a total rejection of any sort of decorum or even respect for the office of the President, and the GOP appears to be well aware of that fact. According to Fox News, House Budget Committee Chairman Tom Price and Senate Budget Committee Chairman Mike Enzi said they will "ignore" the President's budget and "will instead go straight into crafting their own budgets and castigate what the White House engineered."

Meanwhile, the administration isn't impressed by the opposition's political theater on the subject, calling the antics a "Donald Trump"-esque way to pander to their voters. "White House press secretary Josh Earnest said Republicans' refusal to play ball was just as bad as Trump's refusal to take part in the last GOP debate after getting into a nasty spat with Fox News," reports Politico. "'They're just not going to show up,' Earnest said during the daily briefing, adding that the maneuver smacked of a 'Donald Trump approach' to the debate over spending priorities. He then accused the GOP committee leaders of being wobbly knee'd, saying the boycott 'raises some questions about how confident they are about the kinds of arguments that they could make.'"

According to Earnst, this is the first time in 16 years that the Director hasn't been invited to brief Congress - a period leading back into the Bill Clinton presidency, and shows that the Republican party has essentially shut the door to any attempts at making the government function as long as President Obama is in office. That statement may not be far from the truth, either. Senate Majority Leader Mitch McConnell made it clear just last week that when it comes to any major policy issues, as far as the GOP is concerned everything is done until President Obama is out of office.

"For anyone who thought Congress might accomplish something in 2016, this dose of cold water comes from the Hill's Alexander Bolton, who reports that probably ain't happening," reports "'Senate Majority Leader Mitch McConnell (R-Ky.), seeking to protect his majority in a tough cycle for Republicans, is leaning toward holding back several measures that have bipartisan support but are divisive in his conference.' So, for example, that bipartisan criminal justice reform bill that looked so promising, the one Republicans and Democrats had worked so hard on to reach a compromise. Yeah, the Senate won't be voting on that. Or the Trans-Pacific Partnership. Or the Authorization for Use of Military Force. Or really anything. Because why force anybody to take tough votes?"

The GOP's refusal to actually try to govern for the next 11 months or longer shows exactly what a dangerous predicament the entire Republican party is in. A vote on literally any issue could either anger their base, or anger the moderates they need to get reelected, depending on which way they cast their ballots. Either possibility appears to spell disaster for a conservative movement so dramatically split in two.

Of course, if the GOP can't govern and can only block legislation, it's the American people who will suffer from a government that grinds to a halt. The budget battle is just the first sign of a crisis just waiting in the wings.

Opinion Tue, 09 Feb 2016 00:00:00 -0500
Ladydrawers: The Gresham Experiment, Part 1

In this installment of the Ladydrawers' "Growing Season" series, the comics journalists explore an issue that hits close to home for them: food access in the Chicago neighborhood of Auburn Gresham, and how a scarcity of healthy food options relates to street violence.

"The Gresham Experiment, Part I" is the penultimate strip in Ladydrawers' "Growing Season" series investigating food policy, race and public health in comics form. It's a story that hits close to home for Anne Elizabeth Moore, who lives just a mile or so south of the Auburn Gresham neighborhood in Chicago. Sheika Lugtu doesn't live too far away either, so together we took an in-depth look at food options in Gresham, described as one of Chicago's many "food deserts" due to the scarcity of grocery stores. It's also considered one of Chicago's most dangerous neighborhoods - and these two descriptions are not unrelated.

As comics journalists, our reporting process involved meandering the long blocks between Gresham's food outlets, play areas and schools, and sketching what we encountered around us - including not only the understocked meat counters of the local food market but also the sites of gang violence.

The ethics of comics journalism are complex, particularly when addressing issues of structural violence and failed city food policies. Gresham residents face a daily lack of nutritional resources and local, acute violence - but how to picture it? And how to picture it fairly? (One of the few grocery stores accessible from Gresham is the one Moore shops at every week, so we can't pretend that these issues are in any way remote from the reporters' daily concerns.)

This first strip in our series of two presents issues of food access in Gresham. The next strip, the final in our "Growing Season" series, will uproot the links between food policies and street violence. As always, you can read all four seasons of Ladydrawers' strips here, or catch up on our most recent strip with Laura Ķeniņš, "What's in a Name?" - on the mysterious illness affecting workers of color in a hog-processing plant - here. Sheika Lugtu's last strip for us looked at how the most popular drug in the world, Humira, is afflicting people with a disease, lupus, which disproportionately harms women of color.

Click to open full-size in a new window. Ladydrawers: The Gresham Experiment


1. "Examining the Impact of Food Deserts on Public Health in Chicago," Mari Gallagher Research and Consulting Group (July 18, 2006), 6. (accessed December 29, 2015).

2. Ibid, 17.

3. "Mayor Emanuel Announces Release of Food Desert Data and New Interactive Efforts to Combat Food Deserts in Chicago," Mayor's Press Office (August 27, 2013). (accessed December 29, 2015).

4. "Examining the Impact," 20.

5. Ibid, 26.

6. "Are You an Auburn Gresham Parent?" Auburn Gresham Portal (September 14, 2015). (accessed December 31, 2015).

News Tue, 09 Feb 2016 00:00:00 -0500
Oil Industry Caused 2005 Swarm of California Earthquakes

Oil and gas wastewater disposal has been tied to a series of earthquakes in California for the first time, in a peer-reviewed study published last Thursday.

A string of quakes ending on Sept. 22, 2005 struck in Kern County near the southern end of California's Central Valley - and the new study, published in Geophysical Research Letters, concluded that the odds that those quakes might have occurred by chance were just 3 percent.

Instead, the researchers honed in on a very specific set of culprits: three wastewater injection wells in the Tejon Oil Field. Between 2001 and 2010, the rate of wastewater injection at that oil field quintupled, and up to 95 percent of that wastewater was sent to just that trio of closely-spaced wells, the scientists noted.

The largest of the earthquakes in the swarm measured magnitude 4.6 on the Richter scale meaning that the quakes were relatively small, unlikely to have done any damage to buildings but significant enough to be felt by those in the area.

To be sure, natural earthquakes have always far outnumbered human-caused quakes in California - but the researchers warned that even if the number of industry-caused quakes is small, wastewater injection could be responsible for larger, more dangerous quakes in the future.

"Based on our empirical results, injection-induced earthquakes are expected to contribute marginally to the overall seismicity in California," the researchers from the California Institute of Technology, University of California, University of Southern California and two French universities, wrote. "However, considering the numerous active faults in California, the seismogenic consequences of even a few induced cases can be devastating."

The researchers also warned that the number of California quakes tied to oilfield activities has been little-studied compared to other parts of the country and that natural quakes may have "masked" the oil industry's impacts.

The findings drew an immediate response from environmental groups.

"The more oil companies frack and drill, the more wastewater they inject into disposal wells near active faults," Shaye Wolf, a scientist with the Center for Biological Diversity, said in a statement responding to the new research. "That's an absolutely unacceptable risk in our earthquake-prone state."

For years, federal scientists have known that wastewater injection has caused earthquakes in Oklahoma - a state that before the shale gas rush experienced just a two or three earthquakes over magnitude 3.0 a year, but in 2015 recorded over 840 quakes that size, some as large as magnitude 5.6 (ten times the size of California's largest human-caused quake).

But the connection to California - which for years was the nation's most earthquake prone state until Oklahoma's sudden surge in quakes knocked California down to second place - is new. And unlike Oklahoma, where the recent tremors have so far caused property damage, California has a long history of natural earthquakes powerful enough to kill.

At the end of January, the U.S. Department of the Interior agreed to stop approving new offshore fracking operations along California's Pacific coast, part of a deal with environmental groups that had sued over the agency's failure to adequately measure the environmental risks, including the potential harm to endangered species, from permitting fracking at sea. Oil platforms have been allowed to legally dump up to 9 billion gallons of wastewater annually into California's ocean.

The drought-plagued state has paradoxically grappled with a flood of oil and gas wastewater in recent years. California's drillers annually pump out billions of barrels of wastewater, much of it laden with corrosive salts or carcinogens like benzene.

And while much of it is disposed of through wastewater injection, water shortages have created a market for drillers to treat that waste and sell it to farms where the food people eat is grown. "In central California's San Joaquin Valley, Chevron piped almost 8 billion gallons of treated wastewater to almond and pistachio farmers last year," Bloomberg reported in July. "California Resources Corp., the state's biggest oil producer, plans to quadruple the water it sells to growers, Chief Executive Officer Todd Stevens told investors at an April conference."

Even as the industry has experimented with other disposal techniques, wastewater injection has spiked. Since 1995, the amount of wastewater injected underground in California has roughly doubled, from under 20 billion gallons a year to nearly 40 billion.

In 2014, the California State Water Resources Board confirmed that over 3 billion gallons of wastewater tainted with fracking chemicals or other pollutants were injected directly into some of the state's underground water aquifers, which were previously clean enough for people to drink from, with the permission of the state's regulators.

The new study suggests that Californians may have more than water contamination to worry about from wastewater injection. The earthquakes struck near Bakersfield, CA - which is just 50 miles from one of the world's most notorious fault lines, the San Andreas fault.

In December, researchers from Stanford's School of Earth, Energy & Environmental Sciences announced the results of an investigation into human-caused earthquakes in Arkansas, finding that the more water is disposed at a given well, the stronger quakes become.

But, they added, at a certain point, there is likely to be a cap on how powerful an induced earthquake could become.

"The question becomes, Does it taper off at magnitude 3 or a more dangerous magnitude 6.5?" Prof. Jenny Suckale told the Stanford Report, as she described the findings in Arkansas.

The California study comes just two weeks after Canadian authorities shut down fracking at a well in Alberta over a 4.8 magnitude quake that struck near a town called Fox Creek. And in early January, Oklahoma was rattled by two quakes measuring 4.7 and 4.8 - some of the strongest quakes in recent memory.

The new publication drew the attention of federal earthquake authorities who said they found the tie between oilfield wastewater disposal and California's earthquakes credible.

"In California, of course, we have a lot of natural seismicity here, so it's much more difficult" to reliably connect quakes to human activities than in a place like Oklahoma, Art McGarr, US Geological Survey seismologist told the Associated Press. "Nonetheless, I think they made at least a fairly convincing case that these earthquakes were related to fluid injection."

News Tue, 09 Feb 2016 00:00:00 -0500
Squatter's Rights: Supreme Court Hears Arguments in Fight Over Omaha Tribal Land

"The White man made us many promises, and he kept but one. He promised to take our land and he took it." - Red Cloud

The United States Supreme Court heard oral arguments in Nebraska v. Parker, a case that will ultimately determine if the geographic boundaries of Indian reservations can be redrawn by judicial fiat, rather than by treaties that were enacted by Congress. Court observers say the case has grave implications for hundreds of tribes across the country in areas where non-Indians have taken up residence on their reservations.

Tribal leaders say a decision in favor of the non-Indian settlers bringing this suit could set the stage for the continued diminishment of Indian lands.

The case began in 2004, when the Omaha Tribe of Nebraska enacted an alcohol beverage control ordinance regulating and taxing the sale of alcohol on its reservation-for which it had obtained federal approval. The Omaha Indian Reservation is mostly in Thurston County, but also has sections in four other counties. Prior to this ordinance, said Omaha Tribal Chairman Vernon Miller, the tribe had passed several sales taxes with no complaint.

In 2006, the tribe notified the seven liquor stores in the town of Pender (population: 1,000) that they would have to pay tribal licensing fees and a 10 percent liquor tax to continue to operate on the reservation.

In 2007, however, the town of Pender and the liquor stores sued the tribe in federal court, asking the court to declare that Pender, which is the county seat, is not within the boundaries of the Omaha Reservation because, they allege, the Omaha Act of 1882 ratified by Congress "diminished" the reservation borders.

The Omaha and their attorneys argue that only Congress has the authority to establish or redraw the boundaries of Indian lands, and that no records from the federal government or the State of Nebraska show that reservation boundaries have ever been changed. Further, they contend that numerous subsequent state and federal legislative actions reaffirm that Congress never expressly authorized the diminishment of Omaha lands.

For decades, in fact, both Thurston County and the Town of Pender boasted that they were on the Omaha Indian Reservation, according to tribal officials-until their liquor store owners were asked to pay taxes. Within months, they said, Pender sued the tribe and began describing itself in court documents and in print as a "predominantly European-American" community.

Arguing for the state of Nebraska, solicitor general James Smith began by alleging that the disputed area on the Omaha Reservation had "always" been non-Indian.

Justice Ruth Bader Ginsburg challenged Smith's assertions by going straight to the heart of the case. "You are arguing for a de facto diminishment test," said Ginsburg. "That is, you pointed out the area has been overwhelmingly populated by non-Indians and they haven't attempted before to exercise governing authority."

Smith replied that diminishment of the reservation fits within the three-part test established by Solem v. Bartlett, a 1984 Supreme Court case which determined that opening up Indian lands for white settlement does not constitute Congressional intent to reduce or "diminish" tribal reservations.

Under this argument, Smith was seeking to establish that because the "facts on the ground" had changed under white residency in Pender, the boundaries of the reservation had also changed and that title to the land should be conferred to meet the "public expectations" of its new inhabitants-in spite of the fact that Congress has never expressly consented to redrawing the reservation map.

"And so obviously we would not be opposed to the Court concluding and reaching this decision on the grounds of de facto diminishment," said Smith. "[I]f you're looking at intent of Congress, you should be looking at what Congress is doing after the Act that is reflective of not understanding essentially that they've diminished the reservation."

Just because the town had been settled by non-Indians, said Justice Antonin Scalia, does not prove or create the legal diminishment of tribal lands.

Smith went on to assert a "long-standing assumption" of jurisdiction by the Nebraska over an area of reservation land that is primarily non-Indian – which Smith said created "justifiable expectations," of its non-Indian inhabitants and that if [the Omaha] ever had any sovereignty over it, they had long since forfeited."

Justice Sonia Sotomayor then referenced the petition before the court in which the Omaha had sought-and received-Congressional approval to impose the liquor tax.

As the justices and Smith went on to wrangle over which of several court precedents should be the determining test for the case, Smith concluded his argument by reiterating that the reservation should be diminished because it already had been diminished by white settlement.

Stepping to the podium next, Paul Clement, a former United States Solicitor General and senior fellow of the Supreme Court Institute at Georgetown, got straight to the point. "The question in this case is whether an 1882 Act of Congress diminished the Omaha Reservation and redrew its boundaries," said Clement. "We think multiple considerations make clear that the Act of Congress did not diminish the reservation, but simply opened up a portion of the reservation for settlement within the existing boundaries."

Therefore, he said, "...there is no language in the statute that supports a finding of diminishment."

Clement pointed out that a number of tribal members at the time of the opening of the lands also elected to take their allotments in the disputed area west of the now-defunct rail line-which would not have been possible if the land belonged to the state.

Chief Justice John Roberts and Justice Anthony Kennedy inquired as to how many allotments were taken by Indians, with Clement confirming that 15 tribal members obtained allotments in an area which was predominantly settled by whites, which seemed to confuse Justice Kennedy as to the nature of the allotment process in the 1800s.

Later on in the arguments, as Clement pointed out to Justice Scalia that the previous ruling inSolem"went out of its way to not decide the diminishment issue," Justice Roberts interjected that the decision did talk about diminishment.

"And it seems to me that you've got to recognize when they do that, they're talking about something other than [rightful claim], in other words, pursuant to the law," said Roberts. "It's pursuant to the facts on the ground."

Allon Kedem, arguing on behalf of the United States, which has sided with the Omaha in this case, began his argument by citing the decision inSolem. "This Court explained that once a block of land is set aside as an Indian reservation, no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise. It has not done so here."

Kedem went on to point out that the issue of diminishing Indian lands is not simply an issue of tribal sovereignty, but also the jurisdiction of the United States. Additionally, he pointed out 30 years of Nebraska revenue rulings that explicitly include Pender as part of the reservation, the legal definition of Thurston County which has never changed, and the failure of Nebraska's "Tipping Point" doctrine (a legal theory by which the percentage of land sales and/or population numbers may "tip the scales" toward non-Indian ownership of reservation lands) which has never been allowed by Congress.

"And finally," said Kedem, "I think this Court should be very reluctant to assume that Congress implicitly transferred any part of its authority to change the borders of an Indian reservation to private parties and made it contingent on what this Court inDakotareferred to as uncertain future sales."

Returning again and again to the current circumstances on the reservation, however, Justices Roberts and Kennedy pressed the issue of "facts on the ground" in reference to the rights of the non-Indian residents on the reservation.

Chief Justice Roberts told Kedem that there was nothing vague about white settlers flooding into the open portion of an Indian reservation and that the area in question had since lost its "Indian character."

"We have acknowledged that de facto, if not [rightful entitlement to the land by non-Indians] may have occurred," said the Chief Justice.

After the arguments, Chairman Miller, who attended the hearing with a delegation of councilmen and tribal members, said he was optimistic, but was concerned about the apparent lack of knowledge regarding tribal jurisdiction and federal Indian law which he said was evidenced by the line of questioning.

"I saw many issues being discussed today that had nothing to do with the issue at hand and I'm concerned about how this decision is going to affect Indian country if the State of Nebraska and the Village of Pender can suddenly decide they're not on Indian land," said Miller. "They talked about 'no Indian presence,' but I was born in Pender and their economy is just as dependent on our tribe as well."

Mitch Parker, the former Omaha chairman and tribal elder who is the named defendant in the case, was also at the hearing.

"I heard them say that the tribe acted 'unilaterally,' but I think they got it backwards," said Parker. "The tribe was already there; it is our land and the state and county did all of this on their own. And yet this is how we are treated. We have to remind the court that all of the land was owned by the Indians before anyone else was here-and we also have settled expectations. We made this effort because of our grandchildren. l don't want my grandchildren treated this way."

News Tue, 09 Feb 2016 00:00:00 -0500