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Our firm assisted a tribe in its successful effort to secure a Forest Service decision banning rock climbing on Cave Rock, a significant tribal cultural site, and filed an amicus brief in Access Fund v. U.S. Department of Agriculture in support of the Forest Service’s decision, which was upheld.

GENERAL MEMORANDUM 11-078

GENERAL MEMORANDUM 11-078
Department of Homeland Security Approves Indian Tribe's Tribal Card under the Western Hemisphere Travel Initiative

On June 9, 2011, the Department of Homeland Security (DHS) published a notice in the FEDERAL REGISTER (attached) recognizing that the enhanced tribal identification card developed by the Pasqua Yaqui Tribe with the assistance of DHS is sufficient to qualify for use in establishing citizenship and identity for entry into the United States under the Western Hemisphere Travel Initiative (WHTI).

WHTI was mandated by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) which required the Departments of Homeland Security and State to develop and implement a plan to require all travelers--U.S. citizens and foreign nationals --to present a passport or other secure document to obtain entry or re-entry into the United States by land or sea from Canada, Mexico, Bermuda and all foreign Caribbean islands except Cuba. Prior to January 31, 2008, citizens of the United States and Canada could cross the mutual border with an oral declaration of citizenship and identity, and U.S. citizens (but not Mexican nationals) could cross the border with Mexico in the same manner.

For the period between January 31, 2008 and June 1, 2009 (when the final rule on acceptable documents went into effect) DHS issued interim regulations which specified which documents would be acceptable. Among other documents, tribal identification cards which included photographs were listed as acceptable interim documents until the final rule went into effect, tightening the requirements on the types of documents deemed "WHTI-compliant."

As the June 1, 2009, deadline approached, DHS recognized that tribes would not be able to have the enhanced (WHTI compliant) tribal identification cards in place in time due to the cost of producing such documents and the time needed to have the correct Memoranda of Understanding in place with DHS. On May 15, 2009, DHS sent a letter (attached) to the National Congress of American Indians stating that the Department will be "flexible" in continuing to accept tribal cards with photo identification for a "modest but reasonable" transition period after June 1, 2009, when the full WHTI implementation occurred.

While DHS has not changed its "flexibility" policy for accepting non-WHTI compliant tribal identification cards which include photographs, there is no certainty as to how DHS will continue to define "modest but reasonable" as it applies to the transition period for accepting such cards.
This recognition is a significant achievement for the Pasqua Yaqui Tribe and should be encouraging to other tribes who are working with DHS towards developing their own WHTI-compliant enhanced tribal identification cards.

Please let us know if we may provide additional information regarding the Western Hemisphere Travel Initiative as it applies to members of Indian tribes.

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Inquiries may be directed to:
Bobo Dean (bdean@hobbsstraus.com)
Dean Suagee (dsuagee@hobbsstraus.com) or
Moriah O'Brien (mobrien@hobbsstraus.com)

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