Standing Rock Sioux water protectors win a battle, but more battles to come

standing-rock-sioux-water-protectors-win-a-battle-but-more-battles-to-comeEditorial Credit: NYCStock / Shutterstock.com

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

Yesterday, while many were sipping their Sunday coffee, the U.S. Army Corps of Engineers announced that the Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline (DAPL) to cross under Lake Oahe in North Dakota.  I am sure more than one cup of coffee spilled with elation and disbelief that the Water Protectors at and near the Standing Rock Sioux reservation had achieved a major victory against Dallas-based Energy Transfer Partners (ETP).  (Standing Rock Press release is here, and Corps release is here).

When the Dakota Access Pipeline (DAPL) was originally proposed, the pipeline was to follow an alignment that crossed the Missouri River north of Bismarck,  North Dakota and never approached the Standing Rock lands.  However, when concerns were raised by the Bismarck community regarding water supply threats caused by the pipeline tunneling beneath the City’s water source, the project alignment was revised to the south and west.  The revised alignment crossed through disputed lands which the Standing Rock Sioux claimed were dedicated to their use, and proposed to cross the Missouri River by tunneling beneath Lake Oahe, which is just upstream from the Standing Rock reservation and is the Tribe’s water source.  Crossing beneath the Lake would require that the US Army Corps of Engineers grant an easement to construct and maintain the pipeline.  The proposed alignment could not be completed without the approval of easement, and the easement decision is a discretionary decision by the Department of the Army, meaning that it must undergo environmental review, and the Army is not required to grant the easement.

Earlier this year, with the full knowledge that this critical easement was not approved or in place, ETP began construction of the pipeline along this alternative alignment, crossing the disputed Standing Rock Sioux lands.  This premature construction raised the ire of the nationwide Native American community, leading to thousands of “water protectors” to take up residence in protest, seeking to halt the progress of the pipeline while the easement decision was being considered. The militarized police and private security response to the protests were broadcast first on social media, and ultimately in the mass media.  The restraint and tenacity of the protestors gained international attention and support for the water protectors.  Two messages were being challenged by the Native American and environmental communities—1) Bismarck’s water source was deemed worthy of protection, but the Tribe’s was not, and 2) ETP was not going let details like easements (or cultural heritage sites) affect their project.  The Standing Rock Community did not accept these messages, and the rest is (recent) history.

I understand that the opposition to the DAPL alignment arose from the younger members of the Standing Rock community.  Good for them.  They may need to be around for a while to continue their vigilant efforts.  Make no doubt about it– This is a significant battle victory for the Native American and environmental communities; however, as we have learned in many other efforts to preserve cultural heritage and environmental resources (e.g. our recently completed 16 year battle to protect Gregory Canyon and the San Luis Rey River from a landfill, here), it will likely take battles on many fronts to finally achieve protection of the Standing Rock water source and cultural heritage lands.

The current Corps decision does not negate the possibility of the proposed alignment.  Rather, the Corps’  stated that “[a]lthough we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”  The intention is to consider alternative routes through an Environmental Impact Statement with full public input and analysis.  At the end of this process, there are no guarantees that the same alignment may not be chosen, and with a new administration in January, we will have a president that is financially invested in ETP.  But that is a battle for another day.

Ted Griswold Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

GCL, LLC and Pala Band of Mission Indians Come Together to End Decades-Long Dispute Over Proposed Gregory Canyon Landfill

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“A victory not just for Pala, but for all Native people who continue the fight to protect sacred lands and waters all over the country”.

During battles such as those currently underway over the Standing Rock Sioux protection of its water source and heritage against the DAPL pipeline project, victories such as this must be celebrated  Thank you Pala Band of Mission Indians for allowing us to be part of your Victory!

FOR IMMEDIATE RELEASE                              CONTACT: Doug Elmets

November 17, 2016                                                              (916) 329-9180

 PALA, CA – Today, GCL, LLC (“GCL”) and the Pala Band of Mission Indians came together to end the decades-long dispute over the proposed Gregory Canyon Landfill. GCL, the owners of the property, and the Pala Band cooperated to negotiate the sale of a portion of the property that included the former landfill site.

This represents a new beginning for GCL, the Pala Band, and the neighboring community. The purchase protects sacred Gregory Mountain and other important and culturally-significant sites forever.

In their discussions with the Pala Band, GCL came to understand and appreciate the importance of the surrounding community and the interest in preserving a cultural landscape. GCL has begun to explore alternative uses for the remaining land which include residential and commercial development. The Pala Band has long urged developers to consider such alternative uses for the property and has agreed to show support for GCL throughout this process.

“The Pala Band of Mission Indians is very pleased to have been able to work cooperatively with GCL to achieve a result that protects both our sacred sites and the water resources critical to numerous users along the river,” said Pala Band Chairman Robert Smith. “Pala supports GCL’s efforts to construct an alternative and more desirable residential and commercial project on its remaining property.”

Pala Environmental Director and Tribal Historic Preservation Officer Shasta Gaughen added, “This is a victory not just for Pala but for all Native people who continue the fight to protect sacred lands and waters all over the country. We are relieved to know that sacred Chokla will never again be threatened.”

Todd Mikles, principal of GCL, stated that, “Since my involvement two years ago, I made it a priority to understand the concerns of the Pala Band and neighboring community. I commend Chairman Smith and the entire Pala Band on working with us to reach a resolution. We are excited about the prospect of benefiting North County San Diego in the future.”

The Pala Band of Mission Indians is a federally recognized tribe whose reservation is located along the Palomar Mountain range approximately 30 miles northeast of San Diego. The majority of the over 900 tribal members live on the 12,000-acre reservation, established for Cupeño and Luiseño Indians, who consider themselves to be one proud people – Pala. 

“WHAT’S UP? NATIVE AMERICAN AVIATION AND AIRSPACE”

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By:  Sandra L. Shippey  Partner | sandra.shippey@procopio.com

The Hualapai (wal-lah-pie) Tribe is a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon.  One of its tribal enterprises is Grand Canyon West on the Hualapai reservation at the west rim of the Grand Canyon.  The Hualapai Tribe relies, in part, on tourism to fund its tribal government and for income for its members, and views from above are a large part of the tourist attraction.  The Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon at 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.  But how well is this commodity protected for the Tribe?

In 2009, a non-Indian freelance tour guide and photographer, Lionel de Antoni flew a fan-powered paraglider over the Hualapai reservation without the Tribe’s permission.  Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation.  Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them.  He did not obtain permission from the Tribe to fly over the Tribe’s reservation but did he gain financially from the airspace of the reservation?

This matter raised interesting legal issues regarding the confluence of Native American law and aviation law.  Does the Hualapai Tribe have jurisdiction to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe?  An attorney for the Hualapai Tribe believes that “[the Hualapai Tribe] has the right to determine who will or will not fly over Hualapai territory.” “The Federal Aviation Administration (FAA) says the tribe is overstepping its jurisdiction in fining the pilot as much as $25,000 for violating its airspace. “A tribe has no authority over airspace and cannot charge people for using it,” said FAA spokesman Ian Gregor. “The federal government has sole jurisdiction over the nation’s airspace.” [1]

The Tribe and Mr. De Antoni settled their case and as of yet, there is no statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation.  The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace.  However, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). [2]

As sovereign entities, tribal governments are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens.  As sovereign entities, federally recognized Tribes have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians.  The question is whether this right to exclude covers tribal airspace.  Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft).  Also, Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft.  In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. By regulating the activity, the Tribal government could appropriately charge a fee for the use of its airspace.

However, others would assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace or that because Tribes are domestic dependent nations, their authority does not extend over their tribal airspace.  We have even heard allegations that, since the FAA aviation regulatory system is the global standard and considered the safest national aviation system in the world, allowing Tribes to regulate tribal airspace could jeopardize safety.  The United States government has a right to require Tribes to permit the free and safe passage of U.S. citizens and officials through reservations and tribal airspace is like a public highway in the sky; however, use of airspace for business purposes that are not transitory is a different situation.

The FAA is not likely to give up much jurisdiction over the greater U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes.  However, it is possible that Tribes can realize sovereign control over low flying flights over tribal lands or create regulations for such flights over tribal lands, that are consistent with FAA standards.

We are not alone in exploring these areas of economic uses of Tribal airspace, directly or indirectly.  See here and here.

[1] Ultralight pilot arrested for flying over tribal land published on January 22, 2009 by Janice Wood in the General Aviation News.

[2] Id.

Shippey 2013Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.  Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

 

Ted Griswold Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

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GETTING TO KNOW YOU: INDIAN COUNTRY EVENTS COME TO SAN DIEGO COUNTY

Procopio is a proud sponsor of the California Indian Conference being held at San Diego State University’s Student Union through Saturday, October 22, 2016.  With the theme “Creations and Constructions: Indigenizing the Future of California Indian Country,” the conference brings together California Indians, educators, tribal scholars, academics, students, public agencies, organizations and institutions, and the general public in one place.  Most people living in San Diego fail to recognize or experience the rich indigenous history and culture of the county that is home to more Federally Recognized Tribal Governments than any county in the nation.  The California Indian Conference provides the opportunity to learn about today’s California indigenous communities, as well as artistic and scholarly perspectives regarding our regional history.

This is the first time that the Conference has been held in San Diego, and it represents a growing trend of regional and national gatherings of Indigenous people bringing their conferences to San Diego.  Last week the California Indian Law Association held their meetings at the Viejas Resort, and last year the National Congress of American Indians held their five-day National Marketplace and Conference in Mission Valley.  On November 17-19,  the California Indian Culture and Sovereignty Center at CSU San Marcos presents the fourth annual California’s American Indian & Indigenous Film Festival, a three-day event that offers exclusive film viewings and interactive dialogues with film industry professionals, selected panel discussions and an opportunity for Q&A sessions after each screening.  Other recent  indigenous conferences in the area include the World Indigenous Law Conference (UC Irvine),  the National Intertribal Tax Alliance (Agua Caliente), and the Native American Health & Wellness Conference (October 27, Viejas).

Procopio is proud to support events like these that share important information about indigenous communities and increase public understanding of the challenges facing their communities.  We hope that bridging this understanding will increase opportunities and cooperative relationships that will ensure greater success for all.

Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

FORMER PROCOPIO NATIVE AMERICAN INTERNS LEADING, AND MAKING A DIFFERENCE

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By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

As we are preparing to review a new set of Procopio Native American Internship applications for the summer of 2017, we thought that it would be a good time to review and applaud the accomplishments of our past interns.  Congratulations to all.  We look forward to continue working with you as colleagues in your professional careers!  For students interested in joining this great network of tomorrow’s Native American legal leaders, applications are open through October 28, 2016 (see here).

Eric Abeita (2014), from Isleta Pueblo, is a member of the New Mexico Bar and holds the position of General Counsel for the Pueblo of Pojoaque in Santa Fe New Mexico.  Eric is a 2015 graduate of University of New Mexico College of Law School, where he was the Managing Editor for the Tribal Law Journal and gathered valuable legal clinic experience with the Southwest Indian Law Clinic.

Nichole (Nikke) Alex (2015) is a member of the Navajo Nation and graduated from the University of New Mexico College of Law.  In her last year of law school, Nikke was a judicial extern with the Pueblo of Isleta Tribal Court where she assisted with developing a Juvenile Detention Alternative Program and a Peacemaking Program to promote a non-adversarial forum for resolving disputes where Pueblo tradition and culture are utilized to promote healing.  In May 2016, she was able to meet with U.S. Supreme Court Justice Sotomayor on behalf of the Tribal Court, as part of Justice Sotomayor’s outreach to learn more about the difficult issues faced by Indian Country.  Additionally, during her law school career, Nikke investigated the linkage between mineral extraction and violence against Native women and has worked with tribes to implement safeguards to protect Native women and children.  Recently, Nikke joined the Navajo Nation Department of Justice.  Nikke works with the Natural Resources Unit where she will focus on uranium related matters including former mine site cleanups, former mill site cleanups and remediation.

 Fernando Anzaldua (2012) is a citizen of the Tohono O’odham Nation.  Fernando is a federal attorney for the National Labor Relations Board, where he has experienced significant success in federal court, administrative hearings, and bankruptcy court. He has successfully first-chaired a number of trials on behalf of individual employees, unions, and employers. He is a 2013 graduate of the Sandra Day O’Connor College of Law at Arizona State University where he also earned an Indian Legal Certificate. He also sits on the Board of Directors for the Arizona Hispanic Bar Association (Los Abogados).

Kele Bigknife (2016)  is a third year law student at the University of Michigan Law School. A native San Diegan, he is a citizen of the Cherokee Nation. Mr. Bigknife is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. He previously worked at a Southern California law firm where he gained litigation experience and assisted in drafting depublication requests to the California Supreme Court in issues regarding tribal sovereignty. Mr. Bigknife is currently a student attorney for the Michigan Veterans Legal Clinic, representing veterans and their immediate families in civil legal matters.

Stephanie Conduff (2013) is a citizen of the Cherokee Nation and is admitted to practice before the U.S. District Court, Oklahoma, District Court of The Chickasaw Nation, The Supreme Court of Cherokee Nation, Muscogee (Creek) Nation, Osage Nation and Chickasaw Nation.  She lives and works in her community in Oklahoma as an attorney, business owner of Leche Lounge and training Native entrepreneurs on best practices for profitability through sustainable development. Stephanie currently works as Director of Special Projects and Legal Counsel for Onefire Holding Company which a diversification venture capital firm of the Muscogee (Creek) Nation. She launched Leche Lounge, a manufacturing company for portable lactation suites – or Mother’s Rooms – for use in airports, the workplace, stadiums and military bases worldwide.  She graduated from the University of Oklahoma College of Law.  Stephanie served as a judicial clerk for the late Honorable Chief Justice Barbara Smith of the Chickasaw Nation Supreme Court and is certified to assist tribal courts as a Peacemaker.  Stephanie was with Procopio for three years first as a summer intern, then as a law clerk and worked full-time for the firm as an Associate until 2016.

Trinidad Contreras (2011) is a citizen of the Iipay Nation of Santa Ysabel and is a descendant of the Pala Band of Mission Indians.  He is a member of the Alaska Bar and currently Assistant Municipal Attorney for the City and Borough of Juneau.  His practice is primarily in civil law but occasionally works on criminal matters.  He is the 2016-2017 Secretary for the Juneau Bar Association. He is married to Madeline Soboleff Levy, general counsel for the Central Council of Tlingit and Haida Tribes of Alaska.  Together, they are the proud parents of Sofia, age 6, and Guillermo “Memo,” 3 months.

Anna Hohag (2015) is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, California.  She is in her third and final year of law school at the James E. Rogers College of Law at the University of Arizona, where she serves as the President of the UA Native American Law Students Association.  She also serves as the Area 1 Representative (CA, NV, HI, AZ) for the National Native American Law Students Association and is a Board Member on the California Indian Law Association. This past year, Anna was selected to be a delegate speaker at the One Young World Environmental Summit, where she was introduced by Alejandro Toledo, the first indigenous president of Peru in over 500 years.  At this summit, she was given the opportunity to tell the story of her people, the Owens Valley Paiute, and the negative environmental and cultural effects of the Owens Valley water diversion through the Los Angeles Aqueduct.  After graduating in Spring 2017, Anna plans to take the California bar exam and find work advocating for tribal communities in California.

Kelsey Leonard (2015) is a citizen of the Shinnecock Indian Nation and received her law degree at Dusquene University Law School.  Last year she was named the prestigious Philomathia Trillium Scholar by McMaster University (Hamilton, Ontario), where she studied climate change’s impact on Native Communities, with a focus on water resource management.  Kelsey was previously the Tribal Co-Lead on the Mid-Atlantic Regional Planning Body for the National Ocean Council charged with guiding the protection, maintenance, and restoration of America’s oceans and coasts.

Christopher Scott (2014) is a citizen of the Cherokee Nation and received his law degree from the University of Oklahoma College of Law (2015), where he was the Note and Comment Editor for the American Indian Law Review.  A member of the Texas Bar, Christopher is currently working as Counsel for Governmental Affairs at Insperity in Houston Texas.  Previously, Christopher was an associate with Ernst & Young in Dallas, Texas, working in labor/employment law in their People Advisory Services Department.

Jaclyn Simi (2012) is a member of the Seminole Nation of Oklahoma.  She graduated with honors from Notre Dame de Namur University and received her law degree from California Western Law School (2012), where she was president of the Native American Law Students Association.  Ms. Simi is currently an associate with the San Diego office of Ogletree Deakins, practicing employment litigation and counseling with an emphasis on sports law.  Ms. Simi has been named a San Diego Super Lawyers Rising Star for 2016 and 2017 and to San Diego Business Journal’s Best of the Bar list (2106).   She is an active member of the Lawyers Club of San Diego.

Heather Torres (2016) is a third year law student at UCLA School of Law.  Ms. Torres is a citizen of the Pueblo of San Ildefonso and Navajo Nation descendant. She worked on Capitol Hill as a research assistant for the Senate Committee on Indian Affairs under Chairman, Senator John Barrasso (WY) while joining a national network of Udall Scholars. Ms. Torres externed with the Children’s Law Center, Los Angeles in the Indian Child Welfare Court.  She is also Executive Editor of the Indigenous Peoples’ Journal of Law, Culture & Resistance and Senior Editor for the Chicano/Latino Law Review.  Ms. Torres has a Masters in Collaborative Educational Leadership.  She also graduated Cum Laude from UCLA in English and American Indian Studies.  This year she will serve as the Alumni Chair for NALSA at UCLA, volunteer with El Centro Legal: Education Rights and Teen Court Clinics, and teach law-related topics to local high school students in her spring semester.

Ted Griswold

Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

SUN SETTING ON SOLAR RESIDENTIAL INCENTIVES IN CALIFORNIA: HAVE TRIBAL CITIZENS BENEFITED?

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By: Gabriela Rios | Attorney | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In California, rooftop solar has largely been a success under the Million Solar Roofs Initiative (SB 1, 2006).  Senate Bill No.1 includes the California Solar Initiative, an incentive program that is run by investor-owned utilities, and the New Solar Homes Partnership, which supports solar energy on new homes.  However, many Tribal citizens have not taken advantage of the financial incentive programs at the state, county, and local levels.  One of the reasons may have been outreach and misconceptions about Tribal citizens’ ability to participate in the state’s solar incentive programs.

Although Tribal governments are not able to take advantage of the tax incentives offered by state and federal programs, since they are not subject to state and federal taxes, Tribal citizens can and should take advantage of the solar incentives offered by the state and federal programs.  Tribal members are subject to federal income taxes and many are subject to state income taxes if they work away from their home reservation.  Many tax advantages are transferrable to solar companies if a homeowner chooses to lease, rather than buy solar for their homes—a strategy seldom used by Tribal homeowners.  In addition, there are a host of rebate programs for customers of major utilities, including PG&E, SDG&E, and Southern California Edison, which can include Tribal members, tribal governments and their various agencies and departments.

Although many of the incentive programs have reached their budget limits and the net energy metering cap for many in California has been reached, Tribal governments and their departments can serve as an information and resource center for Tribal members to take advantage of these programs as they become reinitiated in the future, which is likely given California’s aggressive goals for renewable energy.  In addition, Tribal governments can incorporate solar into their low income housing projects funded through their Tribal governments.  Various federal programs offer funding for solar development, including the Tribal Energy Program and programs under the BIA, U.S. Department of Agriculture, and the U.S. Bureau of Reclamation.

The Bishop Paiute Tribe is a great example of such an effort, where the Tribal community paired with a nonprofit organization to take advantage of the Single-family Affordable Solar Homes (SASH) program, followed by funding and technical assistance from the Department of Energy to provide over 50 homes with solar systems.  For information on other Tribes leading the charge on solar, click here and here.

Gabriela Rios -LJR_2938Gabriela is an attorney with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015.

 

Ted Griswold

Ted is head of the Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

NOW ACCEPTING APPLICATIONS FOR PROCOPIO’S SUMMER 2017 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

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By:      Theodore J. Griswold | Partner | ted.griswold@procopio.com

Procopio has a long-standing tradition of providing growth opportunities to the communities we serve.  Procopio’s Native American Law Practice Group extends this tradition by actively investing in the future leaders of Indian Country through offering paid internships for Native American law students or law students with an emphasis in Native American law.  Please join us in identifying qualified legal students within Native American communities that may be interested in being part of this engaging opportunity.

The Native American Law Internship provides an opportunity for two Native American law students to gain hands-on experience dealing with everyday legal issues facing Native American communities.  Interns are involved in matters that deal with specific Indian law-related legal practice matters and other legal problems facing tribal governments and Native entities.  Procopio Interns reach out to local Native American youth to provide guidance and inspiration regarding educational direction and opportunities.

Interns join a nationwide network of the next generation of Native American Law attorneys in an active alumni program consisting of judicial clerks, governmental attorneys and associates at law firms.  Following the internship, we remain active with our alumni to mentor and prepare them for their success in the industry.  If you are interested in where the past interns have directed their professional paths following their summer at Procopio, see our spring 2016 update here.  Our most recent interns, Kele Bigknife and Heather Torres, have returned to their final years at University of Michigan and UCLA Law Schools.

To learn more about our practice area and legal issues affecting Native Americans, you may consider subscribing to our blog by clicking follow on the bottom left of this page.  Then, each week, you will receive up-to-date information relating to law, policy and current events in Indian Country from Procopio attorneys and guest contributors.

Applications are due Friday, October 28th by 5 p.m. PST.

Internship applications should include:

  1. A writing sample
  2. Law school transcript
  3. Resume
  4. Cover letter identifying why this is an opportunity you would like to pursue, any tribal governmental experience you have and why Native American legal issues are significant to you.

The program is ten weeks and begins after May 15, 2017.  Applications can be emailed to: ted.griswold@procopio.com or sent via USPS mail to:

Procopio, Cory, Hargreaves & Savitch, LLP
Attention: Ted Griswold
525 B Street, Suite 2200
San Diego, California, 92101

Our team looks forward to learning more about you, your interests and adding to our nationwide network of Procopio Alumni throughout Indian Country – please apply today!

Ted GriswoldTed Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

 

DISTRESSED TRIBAL COMMUNITIES (PROMISE) ZONED TO A BETTER FUTURE

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By: Kele Bigknife | Intern | bigknife@umich.edu

Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Promise Zone Initiative was launched under the Obama administration in January 2014 to designate and aid a number of high-poverty urban, rural, and tribal communities to create jobs, increase economic security, expand educational opportunities, increase access to quality, affordable housing and improve public safety.  A community seeking designation was tasked with detailing how the Promise Zone designation would help accelerate and strengthen the community’s efforts for revitalization.  Selection as a Promise Zone partners the community with federal government liaisons to help the community gain a competitive advantage in applying for federal grants and loans, and to streamline the federal bureaucracy.  The goals of the program include boosting economic activity and job growth, leveraging private investment, expanding educational opportunities, and the secondary benefit of reducing violent crime.

The third and final round of selections for Promise Zone Communities was announced earlier this summer, and two tribes are among the nine additions.  The Spokane Tribe of Washington and the Turtle Mountain Band of Chippewa Indians in North Dakota join the Pine Ridge Indian Reservation of the Oglala Sioux Tribe in South Dakota (second-round admits), and the Choctaw Nation of Oklahoma (first-round admits) as “Promise Zone” communities.

The Promise Zone’s tag-line reads “a child’s zip code should never determine her destiny.”  The effects of being raised in an impoverished community historically correlates to the child’s odds of graduating high school, her health outcomes, and her lifetime economic opportunities.  Many tribal areas have seen the devastating effects of poverty, and have suffer from a lack of housing, jobs, health services, and educational opportunities.  However, with the help of the Promise Zone program, hope has returned to some of these communities.

Moreover, the program works.  The Choctaw Nation of Oklahoma is one of the oldest tribal communities in the US, and has seen some areas of its reservation at a poverty rate of nearly 52%. After receiving the Promise Zone designation, the tribe has received close to $100 million in federal investments that have funded new affordable housing, a health clinic, child development programs, a community center, and rural development projects that have provided some citizens with access to potable water for the first time.  Additionally, the Choctaw Nation has secured $21 million in New Markets Tax Credits to build an environmentally sustainable steel manufacturing facility, which will support approximately 300 new jobs in the region.

Pine Ridge Indian Reservation of the Oglala Sioux Tribe once faced poverty rates higher than 49% of their population, and has seen similar economic advances as the Choctaw Nation since being designated a Promise Zone.  The reservation has expanded access to high-speed internet, built water and sewage infrastructure within the community, and supported an after school meal program through the USDA Child and Adult Care Food Program.

With these Promise Zone tribal success stories, the future appears brighter for The Spokane Tribe of Washington and the Turtle Mountain Band of Chippewa Indians.  Some of the proposed plans for these tribes include creating jobs through investments in renewable energy, constructing affordable houses, establishing technology centers and regional food hubs, and reducing crime by updating law and order codes and community policing strategies.

If you are a tribal official or member of a distressed tribal community who missed out on this round of the initiative, there are still many ways to benefit from the program.  The US Department of Housing and Urban Development’s website maintains a comprehensive list of federal grant opportunities for distressed communities.  Communities who did not receive Promise Zone designations are welcome to apply for any of these grants and work toward their own, more promising future.

Kele Bigknife is a citizen of the Cherokee Nation and is in his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

INDIAN TRIBES MAY GAIN RELIEF FROM NLRB ACTIONS

 

 

INDIAN TRIBES MAY GAIN RELIEF FROM NLRB ACTIONS

By: Jordan Turner | Law Clerk | jordan.turner@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

If you thought Tribal lands were insulated from the extreme partisanship that permeates our political landscape, think again. On July 14, 2016, the Republican led U.S. House of Representatives Appropriations Committee approved a draft of the fiscal year 2017 Labor, Health and Human Services funding bill.  Among other things, the bill aims to effectively remove the National Labor Relations Board’s (NLRB) presence on Tribal Lands.

The NLRB is the administrative agency that oversees unionization and pursues cases of unfair labor practices against employers.  It is tasked with enforcing the National Labor Relations Act (NLRA), a 1935 federal statute meant to protect workers’ rights to collectively bargain. The NLRB is caught in the middle of a political and ideological battle between Democrats and Republicans.  Part of this battle is being waged on Tribal lands, where the NLRB has consistently sought to enforce the NLRA against Indian entities.  Since 2004, the NLRB has repeatedly asserted its jurisdiction over Indian owned and operated businesses on Tribal lands on the basis that the NLRA is a statute of “general applicability.”  In most cases, the NLRB has been successful. Although the proposed bill does not alter that particular conclusion, it nonetheless provides Indian Tribes with relief by taking the wind out of the sails of the NLRA’s enforcement.

Section 409 of the proposed Appropriations Committee bill states, “None of the funds made available by this Act may be used to enforce the National Labor Relations Act against any Indian tribe, including any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands.” According to the Appropriations Committee’s press release, the provisions relating to the NLRB were meant to “stop the NLRB’s harmful anti-business regulations that impose additional and excessive costs on American businesses, result in job losses, and hinder economic growth.”  (A link to the text of the bill may be found in the press release).  Put simply, the NLRB provisions are a part of the GOP’s effort to limit the influence of an executive agency that it believes has overstepped its bounds.

This past June, the U.S. Chamber of Commerce issued a letter to members of the House Appropriations Committee expressing support for the proposed bill.  Importantly, the Chamber of Commerce urged that House members:

Support a prohibition of funding for the enforcement of the National Labor Relations Act against any Indian tribe…These provisions would prevent an unnecessary and unproductive overreach by the NLRB into the sovereign jurisdiction of tribal governments and would ensure that tribal governmental statutes concerning labor relations are respected.

Although the Appropriations Committee approved the proposed bill, it will likely be amended numerous times before a vote takes place, and there is little doubt that Democrats will meet the NLRB provisions with hostility.  Labor and employment practioners, counsel for Native American Tribes, and Native American business owners and governmental leaders should continue to diligently follow the trajectory of this bill, as its outcome stands to have a profound effect on labor relations on Tribal lands.

Jordan Turner is entering his third and final year at the University of San Diego School of Law.  He is the former Co-President and current Co-Chair of Community Service for the Black Law Student Association.  Jordan is a Law Clerk for the Labor and Employment Team at Procopio, Cory, Hargreaves & Savitch LLP.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

IS ALL “FAIR” IN FASHION AND APPROPRIATION?

IS ALL FAIR IN FASHION AND APPROPRIATION

By: Heather Torres | Intern | heather.torres@procopio.com
Ted Griswold | Partner | ted.griswold@procopio.com

On July 12, 2016, New Mexico Federal Judge Bruce D. Black granted another partial win to Urban Outfitters in the infamous, Navajo Nation v. Urban Outfitters, by denying the Nation’s motion to dismiss Urban Outfitters’ trademark fair use defense. As a result, Urban Outfitters will be able to assert the affirmative defense of descriptive fair use against the Nation’s trademark infringement claim at trial. Descriptive fair use allows the use of another’s mark if used to describe a user’s product or their geographical origin, rather than indicate the user’s own products or business. Essentially, Urban Outfitters argued that the term “Navajo” is only a descriptor to signify a general style and “is and always has been a geographically descriptive [term].”

This latest ruling is consistent with the court’s earlier decision in May. In May, Judge Black found the “Navajo” mark to be a niche mark not “famous” enough to be protected from trademark dilution. The court accepted Urban Outfitters condensing a Tribal Nation and its distinctive cultural expressions into a generic mark capable of being exploited by non-Indian businesses. This acceptance contributes to the continued cultural genocide of Indian identity through what scholars Angela Riley and Kirsten Carpenter call “Indian Appropriation.” The court’s earlier dismissal of the trademark dilution claim could indicate a high likelihood of Urban Outfitters’ fair use defense being accepted at trial.

The Navajo Nation also asserts Urban Outfitters used the term “Navajo” in violation of unfair competition and commercial practices law and in violation of the Indian Arts & Crafts Act (“IACA”). As discussed in Gabriela Rios’ post, New Mexico District Court Holds Urban Outfitters Can Be Sued Under Indian Arts & Crafts Act, the Act allows Indian tribes to sue a person or entity who sells a product in a way that “falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States …” 25 U.S.C. §305e(b). Though, the Act has been perceived as a protection with all bark and no bite, the Nation could see some remedy. On May 19, 2016, Judge Black found that the Act allows the Nation to collect statutory damages “. . . of not less than $1,000 for each day on which the offer or display for sale or sale of a given type of good continues.”

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.