NOW ACCEPTING APPLICATIONS FOR PROCOPIO’S SUMMER 2019 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 Fall 2018 update here.  Our most recent interns, Aaron Fournier and Summer Carmack, have returned to their final years at University of Oklahoma and University of Michigan 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 Wednesday, October 31st 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, 2019. 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

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.

THE FUTURE OF THE NATIVE AMERICAN BAR IS LOOKING (PROCOPIO!) STRONG

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

Each year, I have the pleasure to work closely with the bright, motivated interns that spend their summers with our Native American practice group. Better yet, I get to watch the success of our previous interns that have joined and strengthened the Native American Bar nationwide. As we are preparing to review a new set of Procopio Native American Internship applications for the summer of 2019, we thought that it would be a good time to share with you 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 31, 2018.

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. Eric was also co-founder and co-owner of D.R. Cooperage and Grain, a small business in Isleta Pueblo, New Mexico.

Nichole (Nikke) Alex (2015) is a member of the Navajo Nation and graduated from the University of New Mexico College of Law. Nikke works with the Changing Woman Initiative assisting with strategic planning and enjoying every minute with her baby son. 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.

Fernando Anzaldua (2012) is a citizen of the Tohono O’odham Nation. Fernando is a field 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 gives back to his community by serving on the Executive Board for Los Abogados Hispanic Bar Association, after previously serving on the Board of Whisper n Thunder, Inc., a nonprofit dedicated to empowering Native Americans through education, awareness and opportunity.

Kele Bigknife (2016) is a citizen of the Cherokee Nation, and a graduate of the University of Michigan Law School currently awaiting California Bar results. He is currently Regulatory Affairs and Corporate Counsel at eco/ATM Gazelle in San Diego. Mr. Bigknife was a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review and was a student attorney for the Michigan Veterans Legal Clinic, representing veterans and their immediate families in civil legal matters. 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.

Daune Cardenas (2017) is a citizen of Pascua Yaqui Tribe in Arizona and is a graduate of the University of Arizona James F. Rogers College of Law. Ms. Cardenas is currently working as in-house counsel at the Office of the Attorney General for the Pascua Yaqui Tribe, working primarily in ICWA case files and developing methods to prosecute Violence Against Women’s Act (VAWA) cases within Tribal Court. Ms. Cardenas is active in the Native American Bar Association’s Indian Child Welfare Act Subcommittee and is a social director of the Native American Law Students Association Chapter for the University of Arizona. Ms. Cardenas received the Native American Bar Association of Arizona’s scholarship for community activities while in law school.

Summer Carmack (2018) is entering her third year at the University of Montana Law School. She is the managing editor of the Public Land and Resources Law Review and President of the Student Bar Association at the law school. She recently organized the speaker panel for the Native American Law Student Association’s Indian Law Week and continues her work through her last year at the Marjorie Hunter Brown Indian Law Clinic developing natural resources management policy templates for individual Tribes. Summer continues to provide input for Procopio’s blog “The Blogging Circle.”

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. 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. Leche Lounge has been featured in Forbes, Good Morning America, Indian Country Today and Native Business Magazine. Stephanie is currently working with Project Entrepreneur in New York City, a project sponsored by Rent the Runway and UBS. 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 2017-2018 President 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 7, and Guillermo “Memo,” age 1.

Aaron Fournier (2018) is a citizen of the Chickasaw Nation and in his final year at the University of Oklahoma College of Law. He is currently serving as the Treasurer for both the University of Oklahoma College of Law’s Aviation Law Society and Native American Law Student Association. He is also a Teaching Assistant for the College of Law’s Master of Legal Studies in Indigenous Peoples Law program. Mr. Fournier also works for the Chickasaw Nation, at the South Central Climate Adaptation Science Center, where he is a Bureau of Indian Affairs Intern. The Chickasaw Nation is one of two Indigenous Nations who are consortium members of the Center. He is also involved with the Oklahoma Tribal Finance Consortium, which is a non-profit organization designed to help Oklahoma tribal leaders and treasurers build opportunities to cost-share and engage in other mutually beneficial arrangements for Tribes.

Anna Hohag (2015) is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, California. She is a recent graduate of the James E. Rogers College of Law at the University of Arizona, where she served as the President of the UA Native American Law Students Association and a member of the California. She is currently working with the Bishop office of California Indian Legal Services, which allows her to work on matters for her home Tribal government. Anna was the University of Arizona 2017 recipient of the Rose Davis Public Service Award and the University of Arizona Native American Student Affairs (NASA) Outstanding Graduate Service Award in recognition of her service to Native youth at the University of Arizona. During Law school, she also served 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.

Kelsey Leonard (2015) is a citizen of the Shinnecock Indian Nation and received her law degree at Dusquene University Law School. She is the prestigious Philomathia Trillium Scholar by McMaster University (Hamilton, Ontario), where she will receive her PhD in Comparative Public Policy, focusing her work on indigenous water governance. Kelsey sits on the McMaster University Research Ethics Board, Indigenous Research Institute Committee, Authentic Indigenous Research Partnership Committee—First Nations Water Initiative and the Indigenous Sustainability Degree Program Working Group, Six Nations Polytechnic. She teaches Indigenous Water Justice and has 8 publications, 15 conference presentations, and 14 invited speaking engagements in recent years. Kelsey currently sits on the Great Lakes Water Quality Board, an international joint commission, and 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. She is also coauthor of a recent collaboration on Indigenous Water Justice.

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. Ms. Simi is also enjoying the experience of being a new mom!

Karli Sultzbaugh (2017) is a member of the Pechanga Band of Luiseno Mission Indians, a graduate of UCLA School of Law. Ms. Sultzbaugh, a Native San Diegan, has strong interest in Tribal environmental issues working with the Tribal Legal Development Clinic at UCLA. She was the President of the Native American Law Students Association at UCLA and one of the staff editors for the Indigenous Peoples Journal of Law, Culture and Resistance. Ms. Sultzbaugh also is a previous litigation intern at Compassion Over Killing which enhanced her strong writing and research skills, and worked as an undergraduate intern at the U.S. Attorneys’ Office in San Diego. She is currently working as a law clerk at Procopio as she awaits her bar exam results.

Heather Torres (2016) is a citizen of the Pueblo of San Ildefonso and Navajo Nation descendant. She is a recent graduate of UCLA School of Law and is a member of the California Bar. Heather is the Director of the Native American program at the University of Redlands. She was a UC President’s Public Service Law Fellow at the Tribal Law and Policy Institute in West Hollywood, CA. During law school, Ms. Torres externed with the Children’s Law Center, Los Angeles in the Indian Child Welfare Court. She was 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 served as the President and Alumni Chair for NALSA at UCLA, volunteered with El Centro Legal: Education Rights Clinic, and taught law-related topics to local high school students in her spring semester.

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.

Now is the Time, California Tribes! Make Sure Tribal Cultural Beneficial Uses are Included in your Region’s 2018 Triennial Basin Plan Update

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

The U.S. Environmental Protection Agency and the California State Water Resources Control Board acknowledged for the first time in 2017 that cultural uses of waterways should be protected. The result was the creation of three new beneficial uses of water in the state: Tribal Tradition and Cultural Use (CUL), Tribal Subsistence Fishing Use (T-SUB), and Subsistence Fishing Use (SUB).  (For more information on the three beneficial uses, see our previous blog article: Protecting Tribal Uses: Cultural Activities and Subsistence Fishing to Become Beneficial Water Uses.)

Creating these new beneficial uses did not guarantee protection, or even the implementation of these beneficial uses throughout the state. In order to actually protect state waterways that are used for tribal cultural uses and tribal subsistence fishing, the various Regional Water Quality Control Boards need to first amend their basin plans to 1) include the new beneficial uses, and 2) to designate specific waterways within the basin with the beneficial uses. The opportunity is now for the tribes to voice their concerns to ensure that these actions are taken.

The basin plan amendment process is currently underway in four regions: Region 1 (North Coast Region), Region 2 (San Francisco Bay Region), Region 6 (Lahontan Region) and Region 9 (San Diego Region). It is important to note that if these uses are not included in the current basin plan updates, the CUL, SUB and T-SUB uses may not be of any use in protecting tribal cultural resources in these regions for another three, or perhaps six years.

Region 1 has an existing beneficial use based on tribal cultural use, and will be updating its basin plan to include the new beneficial uses and designates uses based on the new beneficial use definitions. Regions 2 and 6 are preliminarily including on their list for the amendment to their final basin plan the incorporation of the three new beneficial uses. However, support is needed to endorse the importance of this inclusion because if they are not seen as a priority, they may not be included in the basin plan amendment. The State Board and Regional Boards indicate that they will react to significant public concern in deciding whether such inclusion is a priority.

Region 9 (San Diego) is more problematic. It has not yet included the adoption of the CUL, SUB or T-SUB uses in its draft prioritized list for the basin plan. Region 9’s written public comment period for which the Board must provide written responses recently ended; however, public comments may still be made by interested tribes. Region 9 will be hosting a public hearing on October 10, 2018, to consider adoption of the prioritized list for the 2018 Triennial Review.  Tribes in the San Diego Region (which includes portions of Riverside County) should immediately consider writing to the San Diego Regional Water Quality Control Board in advance of the hearing and attending the hearing to voice the importance of including one or all of the new beneficial uses into the basin plan for the San Diego Region. You can learn more at the San Diego Region Water Quality Control Board (SDRWQCB) Basin Plan web page.

Finally, all tribes should encourage their respective Regional Boards to immediately begin consultations with tribes in their region regarding the location of waterways deserving the CUL, SUB and T-SUB designations and methods to meet the objectives for these protections.  We are happy to assist tribes with these efforts.

Gabriela Rios -LJR_2938Gabriela is an associate with Procopio’s Native American Law practice proup 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 and is a member of the State Bar of California.

 

Ted GriswoldTed 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.

Charting the Way to Cultural Preservation: Tribal Charter Schools

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By: Summer Carmack | Native American Law Intern | summer.carmack@procopio.com
Greta Proctor | Partner | greta.proctor@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

New federal funding opportunities and a new guide released by the National Indian Education Association (NIEA) in July have spurred new interest from many Indian Nations about how public charter schools can serve the academic and cultural needs of Native American students. The U.S. Department of Education’s new grant funding is earmarked to help develop and sustain charter schools serving “Educationally Disadvantaged Students,” a defined term that includes “students who are Indians and students in Rural Communities.”* This chance to secure new funding, coupled with the flexibility charter schools provide to tribal communities, make public charter schools an attractive prospect for tribal governments and communities seeking to form their own education systems.

The NIEA handbook, through funding from the Walton Foundation, provides Indian Nations a framework for the development, design, establishment, and operation of tribal charter schools that offer a culturally-grounded education. “Charters allow American Indians to expand their sovereignty by controlling the type of education their children receive. . . Critical aspects of a person’s identity—values, traditional practices, knowledge, and language—can now be integrated into the curriculum offered by charter schools.” Native charter schools that incorporate a Native community’s framing of well-being into their educational model can also seek accreditation from the World Indigenous Nation’s Higher Education Consortia (WINHEC), in addition to traditional accreditation opportunities.

Some California-based tribal communities have already opened their own charter schools, in recognition of the advantages they can provide. For example, the Barona Band of Mission Indians opened the Barona Indian Charter School in 2002. Today, the school educates 88 students, consisting of Native American youth and non-Native children from surrounding communities, with a mission “to develop in [its] students a dedication to community service and the motivation and skills necessary for life-long learning.” Beyond combatting the effects of the federal government’s past assimilationist policies toward Native Americans, tribal charter schools help ensure cultural preservation by imbuing values, customs, stories, languages, and lifeways into a core fundamental curriculum. California—with the largest Native American population and most tribal reservations of any state—is poised to take advantage of increased funding and a more wide-spread understanding of the needs of Native students to open and sustain more tribal charter schools.

Charter schools are tuition-free public schools that operate independently from traditional school districts, through a contract (charter) developed between the school and a local school district, county or state. Charter schools are schools of choice: they provide expanded educational opportunities for parents within the public school system.

Charter schools have the flexibility to cultivate and design their own educational program that both incorporates state standards and meets the unique needs of their community. In exchange for the freedom to innovate, charter schools are subject to higher levels of accountability than traditional public schools.

More information about Procopio’s Education and Charter School practice group and useful tools for those in the Charter School industry are available here.


* Proposed Priorities, Requirements, Definitions, and Selection Criteria: Expanding Opportunity Through Quality Charter Schools Program, 83 Fed. Reg. 35,571, 35,572 (July 27, 2018).

Procopio_Proctor_Greta_Bio PhotoGreta Proctor represents charter schools throughout California from her Los Angeles office.  She advises on the development of new charter schools, renewals, and all of the day-to-day issues facing charter schools.  Greta is a regular presenter at charter school conferences and trainings. She has worked with diverse charter networks on replication.

summer croppedSummer Carmack is a rising 3L at the University of Montana’s Alexander Blewett III School of Law, where she is an American Indian Law Certificate student focusing her studies in tribal economic development, sovereignty and natural resources.  She is Managing Editor of the Public Land and Resources Law Review.  Summer is a recipient of the 2018 Procopio Native American Law Student Internship.

Ted GriswoldTed Griswold 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.

Supporting Sovereignty: Is Your Tribe’s Constitution Full of Antiquated and Paternalistic Language?

shutterstock_412683298When was the last time you looked at your Tribe’s Constitution? It’s probably not an everyday occurrence, and when you do review it you might just be scanning for a specific clause. If you were to take a moment to sit back and work your way through it, however, it’s quite possible you’d come across some language that resonates as a bit tone-deaf in a 21st Century world in which Tribes rightfully resist federal paternalism. There are steps Tribes can take to remedy their own Constitutions, but first let’s look at how we found ourselves here.

In 1934, the Indian Reorganization Act helped move federal Indian policy away from the destructive policies of allotment and assimilation towards a new line of thought in which Tribes were encouraged to strengthen their governments. During this era, the federal government provided Tribes with template documents to help tribal governments establish constitutions and created a foundation upon which elections could be held with assistance from the federal government. Perhaps in a moment of overcompensation for past policies, the templates provided by the federal government contained paternalistic language and the support they offered maintained a significant amount of federal oversight; however, in the 1930s, this policy shift was a welcome change from the allotment and assimilation era.

Today we find ourselves in a period of federal Indian policy dubbed the “Self-Determination Era” and since the 1970s federal Indian policy has largely supported the notion of Tribes taking more control over their own affairs while simultaneously decreasing federal oversight. This is not to say that every federal decision has supported self-determination, but generally the principles of self-determination have helped many Tribes reestablish strong governing bodies capable of running their own electoral management offices.

Unfortunately, many Tribes continue to use the form documents provided to Tribes in the 1930s for their constitutions and other governing documents. For many Tribes, the paternalistic language contained within these documents represents an antiquated reminder of a bygone era of federal Indian policy. Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.

For example, many Tribal Constitutions contain language requiring approval by the Secretary of the Department of the Interior for amendments to their constitutions. Before such amendments can be operative, even if unanimously approved by a vote of the members of the Tribe, the action must obtain secretarial approval. In fact, the form constitution currently provided on the Department of the Interior’s website still contains this provision. (Click here to open the pdf form constitution).

This paternalistic approval process has worked against the interests of Tribes on many occasions. In 2003, members of the Cherokee Nation voted on, and passed, an amendment to their constitution removing the provision requiring secretarial approval for constitutional amendments. However, in 2007, four years after the Tribe passed this amendment, the Bureau of Indian Affairs notified the Tribe that the amendment was rejected. (Click here for the full story)

The important takeaway from this process is that even though we currently find ourselves in an era of federal Indian policy supporting and promoting self-determination (BIA encourages tribes to assert more control over internal affairs, read the article here), Tribal governments find themselves hampered by antiquated, paternalistic remnants of a previous era.  Tribes must work to take back their rights to truly govern themselves.

Luckily, and ironically, the federal government has since approved amendments to many Tribal Constitutions removing the secretarial approval provision from the constitutional amendment process (Constitution of the Cherokee Nation; Constitution of the Seminole Nation of Oklahoma; Mashantucket Pequot Tribal Nation). I encourage all Tribal Members to look at your own Tribe’s Constitution to see if there is a secretarial approval requirement for constitutional amendments for your Tribe and decide if this is in your best interest. Removal will help bring the constitution in line with current federal Indian policy and it could to prevent future unnecessary burdens from impeding the goals of the Tribe.

If you would like help removing the paternalistic language from your Tribe’s Constitution or would like to talk with someone to learn more about what this would mean for your Tribe, the Native American Practice Group at Procopio is here to help.

Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law.  He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs.  Aaron is a recipient of the 2018 Procopio Native American Law Student 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.

THE SUPREME COURT’S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

THE SUPREME COURT_S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

By:  Aaron Fournier | Intern | aaron.fournier@procopio.com
Summer Carmack | Intern | summer.carmack@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Ninth Circuit ruled in favor of Tribes and their treaty and water rights in two separate and significant cases last year and, as expected, both cases were appealed to the U.S. Supreme Court. Last November we posted (see post here) about one of these cases, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Court upheld the Ninth Circuit’s decision by denying certiorari. Earlier this month (on June 11, 2018) the Court affirmed the other Ninth Circuit decision, United States v. Washington (9th Cir. 2017) 853 F.3d 946, with a split 4-4 opinion (see the Court’s opinion here). Both decisions affirm water and treaty rights of tribes and establish tribes as key decision makers in the water use context.

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District the Ninth Circuit (and later the Supreme Court, which concurred by declining to hear the case) held that the federal “reserved rights” doctrine for water, as established in Winters v. United States, 207 U.S. 564 (1908), applies to both surface water and groundwater. Agua Caliente also affirms that (1) the application of the “’primary-secondary use’ distinction” from United States v. New Mexico, 438 U.S. 696 (1978) is appropriate when determining “how much water is reserved” and does not infer a deferral to state water law on the part of Congress (849 F.3d 1262, 1268-70 (emphasis in original)); (2) because the Tribe’s water rights are federally-reserved, they cannot be lost through non-use; and (3) the Tribe has reserved water rights if the “water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.” (Id. at 1272). Therefore, because the Agua Caliente reservation was established for “the permanent use and occupancy of the Mission Indians[,]” that purpose could only be fulfilled if the rights to the groundwater underlying the reservation were granted appurtenant to the reservation land. Id. at 1265 (quoting Exec. Order of May 15, 1876).

In United States v. Washington, the Ninth Circuit held that a treaty guaranteeing tribes the continued right to gather fish from rivers was violated by the state’s installation and lack of maintenance of culverts along these rivers. The Tribe argued that the culverts were decreasing the amount of fish in the rivers by impeding the movement of the fish, thereby depriving them of their treaty rights, while the state argued that the treaty did not guarantee there would be fish in the river. The Ninth Circuit held that the Tribe’s belief that an adequate amount of fish would be available to them in the rivers, though not explicit in the treaty, was reasonable and the state violated the treaty by building culverts that prevented the fish from freely moving up and down the river. The Supreme Court let this decision stand through affirmation by an equally divided court.

Both decisions increase the likelihood of tribes being invited to the table when project and land use decisions affecting water are made by state, county, and city governments. The two cases help establish tribes as essential partners for local governments by affirming that tribes have a vested interest in making land use decisions. The Court has implicitly supported tribal water and treaty rights two times this term. This could be the beginning of a new era of federal support for tribal treaty rights, which is something others have noticed (see Culverts Win May Indicate A New Era For Tribal Treaty Rights here). Regardless, these decisions provide notice to state and local governments that tribes should be included in discussions regarding decisions affecting water use both above and below the ground. It will be interesting to follow the next two phases of litigation in the series of three for Agua Caliente, whether the tribe (1) owns the beneficial interest in the groundwater aquifer beneath its reservation; (2) is entitled to water of a certain quality, in addition to quantity; and (3) the quantity of groundwater rights the Tribe is entitled to put to use.

Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law. He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs. Aaron is a recipient of the 2018 Procopio Native American Law Student Internship.

Summer Carmack is a rising 3L at University of Montana’s Alexander Blewett III  School of Law, where she is an American Indian Law Certificate student focusing her studies in tribal economic development, sovereignty and natural resources.  She is on staff of the Public Land and Resources Law Review.  Summer is a recipient of the 2018 Procopio Native American Law Student 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.

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

By:      Ted Griswold | Partner | ted.griswold@procopio.com

In a move that is supported by many Tribal practitioners, the Tribal Court-State Court Forum is recommending an amendment to the California Rules of the Court, Rule 9.40, to waive the requirement that out-of-state counsel appear pro hac vice for the purposes of representing Tribes in Indian Child Welfare Act (ICWA) cases in California.  This proposed move is important for two reasons in California:

  1. California has an extraordinarily high number of appeals of ICWA cases, particularly by Tribes, indicating that at the initial decision level Tribal Governments are often not well represented in ICWA cases.
  2. In addition, California cities were destinations for many of the removal efforts of the federal government in the 20th century when families and children of Tribal communities were removed from reservations in assimilation efforts. As a result, there are a high number of Native American individuals in California whose heritage derives from tribes outside of the state.

A combination of these two factors has raised common concerns for the ability of Indian Children and their Tribal interests to receive proper protection under ICWA and the barriers to out-of-state Tribes’ representation in ICWA cases in the State of California.  The proposal partially stems from a California ICWA Compliance Task Force presentation to California Attorney General Xavier Becerra, which highlighted the problems associated with representation for out-of-state Tribes and recommended the revision for pro hac vice rules.  Review of the rules can be found here.  Comments regarding the proposed rule change, due by June 8, 2018, may be submitted to the Judicial Council of California by clicking here.  If adopted, the revised rule would take effect January 1, 2019.   The Judicial Council’s invitation to comment and additional information can be found here.

Ted GriswoldTed Griswold 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.

Nyaiwait Chiwayp / In Our Words: Kumeyaay–Songs of Knowledge

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By:      Ted Griswold | Partner | ted.griswold@procopio.com

This forum is provided to share news and ideas affecting Native American Communities. A large part of that effort is helping to facilitate increased cultural understanding of those Native communities, past and present.

In this vein, Procopio is proud and honored to sponsor Nyaiwait Chiwayp / In Our Words:  Kumeyaay, the San Diego History Center’s 2018 yearlong speaker series from the Kumeyaay Community which demonstrates and discusses the richness of Kumeyaay culture and history, from the Kumeyaay people themselves.

The second program in the series—Songs of Knowledge:  Kumeyaay Song Cycles—will be presented on April 4 from 5:30-8:30 p.m. at the Atrium/Thornton Theater (1649 El Prado, Balboa Park, San Diego). Advanced registration is required (the first presentation sold out!), and can obtained here. Should you be unable to attend, check back to this post, as we will be posting the video of each presentation on The Blogging Circle.

The first lecture, California Creation Myth: The fabrication of a mythical past and its impacts on the Kumeyaay Story, was presented by Michael Connolly Miskwish, M.A., and Theresa Gregor, Ph.D in February. That presentation can be found here. Stay tuned for additional presentations throughout the year!

Ted Griswold

Ted Griswold is head of Procopio’s Native American Law practice group and primary editor for the Blogging Circle. Procopio provides legal counsel to tribal governments and businesses. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Native Women are #NotInvisible

Free to Thrive sunsetBy:  Heather Torres | Law Fellow | torres@tlpi.org
Jamie Quient | Managing Attorney | jamie@freetothrive.org
Ted Griswold | Partner | ted.griswold@procopio.com

This fall the U.S. Senate Committee on Indian Affairs heard testimony on S. 1942 – Savanna’s Act, a bill introduced by U.S. Senator Heidi Heitkamp (D-ND) directing the U.S. Attorney General to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered American Indians, and aiming to increase the response to violence perpetuated in Native communities by improving coordination and communication among Federal, State, Tribal, and local law enforcement agencies. The bill’s namesake, Savanna La-Fontaine-Greywind, was murdered in August 2017 when she was eight months pregnant.

Unfortunately, the violence displayed in Savanna’s murder plagues other indigenous women. Eighty-four percent of Native women have experienced violence in their lifetime. On some reservations, indigenous women are murdered at rates ten times the national average. Indigenous women are going missing and being murdered at alarming rates in both the United States and Canada. Senator Heitkamp talked with experts and advocates dedicated to end the violence against Native women in a recent episode of her podcast “The Hotdish” and launched a social media campaign #NotInvisible to keep the issue in public consciousness.

Recently, efforts to combat the epidemic of missing and murdered indigenous women have focused in on anti-trafficking initiatives. Human trafficking involves the exploitation of a person typically through force, fraud, or coercion for such purposes as forced labor, commercial sex, or involuntary servitude. The two primary types of human trafficking are sex trafficking and labor trafficking. Looking locally, a 2015 research study out of the University of San Diego found that in the last eight years, an estimated 1,766 sex trafficking victims have had contact with San Diego law enforcement each year, and an additional 120 domestic violence cases involved suspected sex trafficking. Moreover, a labor trafficking study in 2012 estimated there are nearly 40,000 victims of labor trafficking in San Diego County.

The numbers for American Indian or Alaska Native victims are harder to collect and share as discussed in two U.S. Government Accountability Office (GAO) Reports released this year: 1. Human Trafficking: Action Needed to Identify the Number of Native American Victims Receiving Federally-funded Services, and 2. Human Trafficking: Information on Cases in Indian Country or that Involved Native Americans.  The reports also revealed that barriers to victim reporting and participation in investigation include shame and risk of persecution of the victim.

Organizations like Free to Thrive help alleviate some of those barriers. Free to Thrive works with trafficking survivors to resolve legal issues and connects them to social, medical, and mental health services through the Free to Thrive Legal Clinic.  Procopio supports Free to Thrive and its clients by providing the organization donated office space and equipment and representing Free to Thrive clients pro bono.

Tribal Nations and organizations are also doing important work to protect trafficking victims. Just this year, the Navajo Nation passed anti-trafficking legislation, amending their criminal code. Tribal Coalitions work to increase awareness of domestic violence and sexual assault, including sex trafficking and stalking, and provide technical assistance to coalition membership. In California, Strong Hearted Native Women’s Coalition, works with nine tribes in North San Diego County. For more information on Tribal Coalitions and other sex trafficking in Indian country resources, visit www.tribaltrafficking.org.

Though the fight to protect indigenous women continues, advocates are making strides in providing needed services to trafficking victims and raising awareness to ensure that efforts to combat the epidemic of missing and murdered indigenous women do not fade.

Heather Torres (San Ildefonso Pueblo, Navajo) is a Procopio Native American Intern from 2016. Currently, she is a UC President’s Public Service Law Fellow for the Tribal Law and Policy Institute in West Hollywood.

Quient thumbnail Jamie Quient is President and Managing Attorney of Free to Thrive, a nonprofit organization that empowers human trafficking survivors to be free from exploitation and thrive by providing them with legal services and other support.  Prior to launching Free to Thrive, she practiced civil litigation at Procopio.

 

Ted Griswold Ted Griswold 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.

Tribal Casinos, Have You Registered Your Machines?

shutterstock_760722913By: Gabriela Rios | Associate | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In the midst of the year-end rush, and planning for holidays, it is easy for tribal gaming enterprises to overlook another annual rite for the month of December—compliance with the Johnson Act.

The Johnson Act, 15 U.S.C. §§ 1171-1178, prohibits the manufacture, possession, use, sale, or transportation of any “gambling device” in the District of Columbia, and any possession in the United States and in Indian Country. The Indian Gaming Regulatory Act (IGRA) created an exemption to this prohibition for tribes with a tribal-state gaming compact in effect.

The exemption does not apply to the registration requirements. Therefore tribes that want to manufacture, repair, recondition, buy, sell, lease, use or make gambling devices available for use by others, must register the gambling devices with the U.S. Department of Justice every year. The Request for Registration must be submitted between December 1st and December 31st each year. It can be submitted via email to oracle.grs@usdoj.gov.

The Johnson Act also requires certain records to be maintained for five years containing the gambling devices owned, repaired, leased, used, etc. including the serial number associated with the gambling device, manufacturer, and date of manufacture.

The annual registration is a simple, but important process to remember every year.

Now back to your holiday preparations!

Gabriela Rios -LJR_2938

Gabriela is an associate 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 and is a member of the State Bar of California.

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.