Disability Law and Indigenous Populations in the United States of America

1. Disability Law and Indigenous Populations in the United States of America Damara Paris, Ed.D. NCC, CRC , Assistant Professor, DSDE/Lamar University Katrina R. Miller, Ed.D., CRC, Associate Professor and Director, Rehabilitation Education Programs, Emporia State University

2. Precursors to the ADA • Rehabilitation Act of 1973, Section 504 • Accommodations must be made for federal workers with disabilities • Individual and companies bidding for federal contracts must provide accommodations for workers with disabilities • Individuals with Disabilities Education Act (IDEA; formerly Education for All Handicapped Children Act of 1975) • Free and appropriate public education • Least restrictive environment (inclusion or the Institute)

3. Americans with Disabilities Act • Persons with disabilities were determined to experience a pattern of discrimination in society • Physical barriers • Attitudinal barriers • Signed into law by President George H.W. Bush in 1990 • Broad and vague civil rights law intended to be further established in the courts • Extended rights afforded students by IDEA to the adult population

4. ADA Titles • Title I: Employment • 15 or more employees • Essential function, with or without reasonable accommodation (undue hardship) • Title II: Government Services • Title III: Public Services • Title IV: Communication • Relay services and equipment distribution • TV captioning • Qualified interpreter • Communication must be effective • TITLE V: MISC

5. Population Statistics Out of over 312 Million Americans… • Deaf • 28,000,000 have a Hearing loss • 900,000 are Prelingually Deaf • 2,000,000 have Adult onset deafness • 25,000,000 are Hard of Hearing Native Americans 5.2 Million (2010 Census) are American Indians and Alaska Natives 2.9 Million are American Indian or Alaska Native Only

6. A Growing Concern • Approximately 1/3 of American Indians are of mixed heritage and not living on reservations • Higher percentage of hearing loss in American Indians/Alaska Natives • Most Deaf Natives are placed in schools for the deaf or in public schools • Overall lack of data

7. Tribal Laws and accessibility for Native Americans with Hearing Loss

8. What is Tribal Sovereignty? • Tribe– Any Native American/Alaska Native community that has received Federal or State recognition • Sovereignty – supreme power, freedom from external control, controlling influence • Tribal Sovereignty – Authority of Native American/Alaska Native to govern themselves

9. Sovereign Immunity • Serves an important purpose in protecting and promoting Indian Tribal self-government • Under Federal Law, Native American tribes can only be sued where Congress has authorized the lawsuit and only if tribe waives sovereignty • This immunity does not mean that a Native American tribe can blatantly disregard federal law

10. Tribal Sovereign Immunity • Federal law recognizes sovereign authority • of Native American tribes • An important aspect of sovereignty is the • doctrine of sovereign immunity • In most situations, state and federal courts • do not have the jurisdiction to hear private • lawsuits brought against Native American • tribes

11. Tribal Sovereign Immunity and ADA • Assumed that Congress specifically • excluded Native American tribes from ADA • This is incomplete and erroneous if ADA is • considered on a Title-by-Title basis. • Title I – Employment • Does specifically exclude an “Indian Tribe” • from the definition of an employer. This • language is borrowed from title VII of Civil • Rights Act of 1964

12. Tribal Sovereign Immunity and ADA • Title II – regulates state and local governments • This title makes no mention of “Indian Tribes” in defining public entities. • Title III-requires places of public accommodations to be accessible • Again, there is no mention of applicability to “Indian Tribes.” However, one federal appellate court has ruled that Title III can apply to public accommodations run by Indian Tribes. (11th Circuit) Tribal-owned businesses (i.e. casinos) should seriously consider complying with title III or risk facing various penalties brought by the United States.

13. Tribal Sovereign Immunity and Section 504 of the Rehabilitation Act • There is confusion about whether Native • American tribes waive their sovereign immunity to • the Rehab Act by accepting federal funds • Congressional waiver of tribal sovereign immunity • cannot be implied. It must be unequivocally • expressed. • A federal appellate court pointed out that the • Rehabilitation Act does expressly reference how • the Act applies to Native American tribes. Section 504 prohibits discrimination on the basis of disability in any program or activity that receives federal financial assistance.

14. Tribal Sovereign Immunity and Section 504 of the Rehabilitation Act • Not every Native American Tribe or its subdivision is • considered a “local agency” for the purpose of the • Rehabilitation Act. • Even if Section 504 does not directly apply to a Native • American tribe receiving federal funding, it could still • indirectly apply through the federal agency that disburses • funds (i.e. Bureau of Indian Affairs) • Failure by tribes to follow the mandates of Section 504 • may result in the revocation of federal funding.

15. Tribal Culture and Reasonable Accommodations • Despite legal interpretations of the applicability of the • ADA, Section 504 to sovereign tribal nations, • reasonable accommodations are still at the heart of • the issue. Most tribes do not have interpreters, • captioning or ALD resources • Tribal communities are like families and most • individuals are hesitant to bring about lawsuits within • their tribes • Lack of knowledge of procedures pertaining to • federal civil rights investigations is also a barrier

16. Situational Examples • Lack of real time captioning of pow wows prevents elders from following and participating or sharing their wisdom • Lack of interpreted educational services leads to delayed language • Lack of parental support leads to making decisions for children that are one-sided, without all of the facts

17. Recommendations • Tribes should develop a disability policy and strategies for accommodations • Tribal communities and Deaf Education/Rehab should work together to develop and share resources • Early identification and support to parents • Questions+