Breaking News: Fifth Circuit Holds ICWA Constitutional, Rejecting Claims that it is Race-Based

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By: Racheal White Hawk | Associate | Racheal.whitehawk@procopio.com
Richard Frye | Summer Intern | Richard.frye@procopio.com
Ted Griswold | Partner | Ted.griswold@procopio.com

Today, the United States Court of Appeals for the Fifth Circuit announced its decision in the case of Brackeen v. Bernhardt (formerly Brackeen v. Zinke). In Brackeen, seven non-Indian Plaintiffs seeking to adopt Indian children sued the Federal Government alleging that certain provisions of Indian Child Welfare Act of 1978 (“ICWA”) are unconstitutional. The Plaintiffs were joined by the States of Texas, Louisiana, and Indiana. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, and Navajo Nation joined the Federal Government as Intervenor Defendants. In reversing the decision of the United States District Court for the Northern District of Texas, the Fifth Circuit upheld the constitutionality of ICWA, a law enacted to protect Native American families against the removal of their children.

As one of the key rulings in the case, the court held that ICWA is constitutional because ICWA does not violate the Equal Protection Clause. ICWA’s classification of Indian children is based on political, not racial, status, and Congress had a rational basis for enacting ICWA, i.e., to fulfill Congress’ unique obligation toward tribes by protecting the best interests of Indian children and promoting the stability and security of Indian families. In so holding, the court relied on the Supreme Court’s Morton v. Mancari, 417 U.S. 535, 555 (1974), case, which held that Congress’ special relationship with Indian tribes cannot be viewed as racial discrimination, because doing so would jeopardize an entire Title of the United States Code and the Federal Government’s solemn commitment toward Indians.

The court’s other main holdings include that ICWA preempts State law, and does not violate the anti-commandeering doctrine, because ICWA does not regulate States, it regulates private individuals in State court proceedings. Nor does ICWA violate the nondelegation doctrine, because ICWA is an incorporation by Congress of inherent tribal authority to determine tribal membership and regulate domestic relations among tribal members, including Indian children.

ICWA was enacted by Congress to protect Native communities and families against the “abusive practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). In enacting ICWA, Congress recognized that no resource was more vital to the continued existence and integrity of Indian tribes than their children. See 25 U.S.C. § 1901(3). Noting the historical failures of States to recognize the essential tribal relations of Native persons and the cultural and social standards prevailing in Native communities and families, Congress declared the policy of the United States to protect Native children, families, and tribes by establishing minimum Federal standards for the removal of Indian children from their families. See id. at §§ 1901(5), 1902.

For over 40 years, ICWA has been instrumental in protecting the inherent right of tribal governments to protect Indian children and maintain the stability of Indian families, and it will continue to do so with the Fifth Circuit’s ruling today. Procopio supported this effort on a pro bono basis by filing an amicus brief on behalf of Native American women, Indian tribes, Indian health organizations, and other organizations in support of the Tribal and Federal Government Defendants.

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Racheal M. White Hawk (Rosebud Sioux Tribe) is an Associate with Procopio’s Native American Law Practice Group. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

 

Frye HeadshotRichard Frye, a member of the Navajo Nation, is a Summer Intern with Procopio in the Native American Law Practice Group. He is a rising third-year student at the UCLA School of Law, where he has served as Co-President of the Native American Law Students Association and will serve as Co-Editor-in-Chief for the Indigenous Peoples’ Journal of Law, Culture and Resistance.

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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.

Congratulations to Tyler Fish, White House Tribal Advisor

shutterstock_106049372By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

Good things happen to good people. It was with great pleasure that we learned this week that Cherokee Citizen Tyler Fish made a jump from the Department of Interior (working as counsel in the Office of the Assistant Secretary Indian Affairs) directly into the White House to provide first hand input on the Administration’s policies regarding Tribal matters. His official position is Senior Policy Advisor & Tribal Liaison at Executive Office of the President, The White House.

A Marine veteran with a can-do and will-do attitude that knows his way around Washington, Tyler brings the kind of energy that this advocacy position needs. I was pleased to get to know Tyler in his law school days when he applied for our Native American Internship position and we have maintained a connection since then. You do that with people of quality, and I can certainly say that about Tyler. It has been fun to watch his career grow into a place of influence and importance. Looking forward to great things coming from his office. Congratulations Tyler!

You can read more about his designation here and here. Meet Tyler on LinkedIn.

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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.

Perspectives on Reconciliation and San Diego’s 250th Year Anniversary

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By: Richard Frye | Summer Intern | richard.frye@procopio.com

As we enter the month of July, we near another year’s celebration of our nation’s independence from Britain. Independence Day, like many other holidays and celebrations based on the United States’ identity and history, e.g. Thanksgiving, can carry mixed meanings for Native persons. This article is the first of a three-part series which will look at celebrations, commemorations, and holidays from the at-times conflicting viewpoints inherent to being both Native and American, and reflects on the 250th anniversary commemoration of the City of San Diego held this past April on the Port of San Diego. The next article in the series will look back to the June anniversary of the Battle of the Greasy Grass (Battle of the Little Bighorn) and the last article in the series will discuss the 4th of July.

On April 11, 2019, in a celebration on the Port of San Diego, local leaders kicked off the city’s 250th anniversary commemoration, tracing the region’s “history” back to the arrival of the Spanish at San Diego Bay on April 11, 1769. In addition to the fanfare expected to accompany such an event, such as refreshments and entertainment, speeches were delivered by the Chairwoman of the Jamul Indian Village, Erica Pinto, and the Chairwoman of the Manzanita Band of the Kumeyaay Nation, Angela Rayleene Elliott Santos. Chairwoman Pinto educated the group that Cabrillo’s landing was not the beginning of the region’s history, but rather a significant change in the history that had begun thousands of years earlier. Chairwoman Pinto discussed the series of events beginning at contact with European explorers and colonists and continuing through to today, from the perspective of the indigenous Kumeyaay people. The Kumeyaay, along with other Native American people, have called the greater San Diego region home since time immemorial.

The Chairwomen’s decision to participate in the 250th anniversary came as some leaders of the other federally recognized tribes and bands in San Diego County decided against attending. Pulling no punches in her speech, Chairwoman Pinto described her ancestors’ treatment by the Spanish and the United States federal government as “inferior beings” incapable of self-care. Chairwoman Santos described the system put into place by the first governor of California, which for a period, offered and paid a bounty on the heads of the first peoples of California. Chairwoman Pinto explained the disease, starvation, slaughter, systematic discrimination, rape, enslavement, and destruction of the physical environment suffered by the indigenous people, and delivered an honest and sobering account of the area’s full history.

However, Chairwoman Pinto’s look backward in time to the darker aspects of California history was followed by a determined, optimistic message. In a press release given prior to the event, she imparted a positive message to current-day San Diegans. “You are the people who can give us a presence in this Port. This is something that has been missing for a long time now.” While excusing present-day San Diegans from blame for the atrocities of the past, Chairwoman Pinto stressed the importance of moving forward together with recognition and awareness of the area’s history, in order to make sure that the same never happens again.

A large part of healing wounds, especially those that are deep, involves recognizing the damage through an honest and open dialogue. The Chairwomen’s speeches and presence at the event brought a Native perspective to those who might not have otherwise considered what the area’s history means to its original caretakers. In his recent apology to Native persons throughout California on June 18, 2019, Governor Newsom was brave enough to use the G-word (“genocide”) to honestly describe the treatment of Native Americans in California in the 19th century. In response to Newsom, Chairwoman Pinto said, “It’s healing to hear your words, but actions will speak for themselves and I do look forward to hearing more and seeing more of you.” Ultimately, healing involves more than dialogue and recognition of a shared history, but coming to the same table prepared to create a new tomorrow is a good first step.

 

Frye HeadshotRichard Frye, a member of the Navajo Nation, is a Summer Intern with Procopio in the Native American Law Practice Group. He is a rising third-year student at the UCLA School of Law, where he has served as Co-President of the Native American Law Students Association and will serve as Co-Editor-in-Chief for the Indigenous Peoples’ Journal of Law, Culture and Resistance.

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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.

A U.S. Supreme Court Landmark Case Coming in Carpenter V. Murphy or More Time for Legal Gymnastics?

By: Cole Bauman | Summer Intern | cole.bauman@procopio.com

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The U.S. Supreme Court was expected to publish its decision in Carpenter v. Murphy yesterday, but instead scheduled the case for reargument during the Court’s next term. As we mentioned in our post on the Court’s May decision of Herrera v. Wyoming, the Court in Carpenter must decide whether half of Oklahoma has remained an Indian reservation since 1866. More specifically, the question presented in Carpenter is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” under 18 U.S.C. § 1151(a)? Apparently, the Supreme Court needs more time to determine the answer.

Although a rarity for the Court, rearguments have been ordered in the past. Carpenter joins such landmark cases as Brown v. Board of Education (argued in 1952, reargued in 1953), Roe v. Wade (argued in 1971, reargued in 1972), and Citizens United v. Federal Election Commission (argued twice in 2009), among others. Each of these cases caused quite a stir, and in Carpenter, there is a lot at stake.

In 1866, Congress established reservations for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations. These reservations predate Oklahoma’s statehood, which occurred in 1907. In August of 2017, the 10th Circuit held the state of Oklahoma lacks jurisdiction to prosecute Mr. Patrick Dwayne Murphy, a member of the Creek Nation who was convicted of murder in Oklahoma state court, because it found Congress never disestablished the 1866 boundaries of the Creek Nation. When major crimes such as murder are alleged to have occurred within the boundaries of an Indian reservation, the federal government, not the state, has jurisdiction under the Major Crimes Act.

Following its decision, the 10th Circuit denied an en banc rehearing of Carpenter, stating an en banc rehearing is inappropriate when “as here, a panel opinion faithfully applies Supreme Court precedent.” However, Supreme Court review of the decision is complicated due to Justice Gorsuch’s recusal from the case. Gorsuch’s absence has caused an apparent stalemate in the Court which could result in a 4-4 decision, ultimately affirming the 10th Circuit’s holding that the Creek Reservation was never disestablished.  It could be that the conservative court is trying to avoid such a deadlock non-decision.

From the outside looking in, a concern of a status quo result upholding the 10th Circuit appears to be the crux of the delay in deciding Carpenter. In Carpenter, Supreme Court precedent dictates the application of the Solem v. Bartlett reservation diminishment test.  In Solem v. Bartlett, the Supreme Court applied a three-part framework for assessing whether a reservation has been diminished. Under the test, a court must first examine the text of a statute that is believed to disestablish or diminish the reservation. Second, the court must consider the events surrounding the passage of the statute. Third, the court must consider, to a lesser extent, the events that occurred after the passage of the statute. The 10th Circuit’s application of this test found Congress had not disestablished the Creek Reservation.

The Supreme Court would require some very creative legal gymnastics to avoid agreeing with the 10th Circuit’s application of the Solem v. Bartlett test. Certainly, the refusal to issue an opinion this term is telling. The Court previewed its quandary on December 4th, 2018, one week following the oral arguments for Carpenter, when the Supreme Court requested additional briefing on the matter, asking for answers to two questions: (1) whether any statute grants Oklahoma jurisdiction over crimes committed by Indians, irrespective of the reservation status of the land, and (2) whether land can be part of an Indian reservation but not considered Indian country under 18 U.S.C. § 1151(a). The request indicates the Supreme Court was searching for a way to resolve the case in favor of Carpenter without overturning its own precedent in deciding how and when reservation diminishment occurs. The order for reargument indicates such a solution did not materialize.

The Supreme Court is right to carefully consider the ramifications of upholding the 10th Circuit’s decision, but setting the Solem v. Barlett test aside or finding a loophole to avoid addressing the question of diminishment would be a crushing blow to Native American treaty rights and tribal sovereignty. It would demonstrate that the Supreme Court is willing to set aside the foundations of federal Indian law and usurp the role of Congress to avoid what it sees as inconvenient jurisdictional results. Perhaps more unsettling, though, it would display a prejudicial belief by the justices that Indian nations are unfit to possess such jurisdiction.

For updates on Carpenter v. Murphy when the Supreme Court reconvenes next term, subscribe to Bloggingcircle.

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Cole Bauman is a Procopio Summer Intern and a member of the Red Cliff Band of Lake Superior Chippewa.  He recently completed his second year at the Sandra Day O’Connor College of Law at Arizona State University, where he served on the Executive Board of the ASU Moot Court.

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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.

 

Lessons From “Jeopardy!” Champion James Holzhauer: A Case Study For Business Success In Indian Country?

By: Cole Bauman | Summer Intern | cole.bauman@procopio.com

shutterstock_533083360.jpgJames Holzhauer’s incredible 32-game win streak in the beloved quiz show, “Jeopardy!” ended on June 3rd, 2019.  Simply put, Holzhauer’s run turned the “Jeopardy!” world upside-down. He totaled $2,464,216 in winnings over 33 games. He won $131,127 in a single game. Astonishingly, his reign of trivia terror took the previous single-game scoring record and kindly relocated it to 17th place in the Jeopardy! history books when his run was finally complete.

The story behind Holzhauer’s success can be viewed as a lesson to present and future Native American entrepreneurs that in the face of an old challenge, those who possess a unique perspective can implement new strategies and shock the world with their success.

To win so thoroughly, Holzhauer had to play more aggressively than anyone in the game’s history.  He also had to think differently.  He moved from category to category, chose the most difficult questions on the board, and repeatedly wagered massively on “Daily Double” clues.

Holzhauer was a rare combination of potential, perspective, and preparation. He received his degree in mathematics, but spent his college days building a bankroll in online poker. He later made a career in professional sports betting. For “Jeopardy!,” he prepared by reading a mountain of children’s picture books and mastered how to buzz-in from tips he found in an e-book titled, “Secrets of the Buzzer.”

Today, Native Americans own private businesses at the lowest rate of any racial group in the United States (Robert J. Miller, Reservation Capitalism 114 (2012)). In the game of entrepreneurship, not enough Native Americans are playing. Unfortunately, tribal members often have little or no access to the common methods of financing a business: home equity loans, family wealth, and unsecured loans. (Id.)

The truth is, however, that tribal entrepreneurs often have their own advantages. Many have a unique perspective arising from tribal membership that allows the insights non-Native entrepreneurs may lack. Native American entrepreneurs are more likely to apply subjective thinking to problem-solving, often described as “thinking with [your] heart.” Native American entrepreneurs have also been found to value community more than non-native entrepreneurs. (Id.) What values or perspectives could be better suited for the development of strong reservation economies?

Data tells us that potential Native American entrepreneurs often lack access to mentors, in part because they are less likely to have entrepreneurial parents. (Id.) However, Native Americans can find relief in knowing that inexperience isn’t always a liability, but in fact can be beneficial. Inexperience allows individuals to look at problems in new, holistic ways.

In 2014, we published a post on the topic of the inexperienced mind. The post discussed how the inexperienced person has the benefit of looking at problems without the burdens of, well, previous experience. Newcomers have the rare opportunity to see old problems in a new light and attack them in innovative ways. On some occasions, this allows for the creation of solutions that are both new and superior.

For Native Americans interested in pursuing or mastering business ownership, it’s especially crucial to lean on community for strength. Former Procopio Summer Intern Aaron Fournier is a citizen of the Chickasaw Nation and has taken his own unique approach in business by co-founding Native American Hemp.

As a young Native American entrepreneur, Fournier has leaned on community primarily by networking and seeking the assistance of business mentors, all while studying to receive his law degree. Fournier has since received his Juris Doctor from the University of Oklahoma College of Law and is preparing to sit for the state’s Bar Examination. When Fournier’s entrepreneurial acumen became apparent, his mentors became his business partners. Now, Native American Hemp is a majority Native American-owned business partnering with tribes, tribal members, and farmers to cultivate industrial hemp crops. Native American Hemp is also working to develop proprietary genetics and hemp-based products in partnership with tribes and tribally-owned businesses. Fournier’s company will utilize resources such as the Native American Agricultural Fund, Opportunity Zones, and the Small Business Administration 8(a) Business Development Program to spur a new wave of economic development in Indian Country.

Recently, a Huffington Post article highlighted the community efforts to rebuild the Oglala Lakota Nation on the Pine Ridge reservation, one of the poorest locations in the United States. The piece highlighted Alan Jealous, a member of the Oglala Lakota Nation and co-owner of Thikaga Construction. Jealous is responsible for managing the construction of more than a dozen of the homes set to be built as part of a 34-acre development project currently underway on the reservation.

A dedicated worker and family man, Jealous is also self-effacing. He acknowledges that he may not be an owner of a construction company if not for the support of Thunder Valley CDC, a community-based nonprofit. The members of the Oglala Lakota Nation currently face unemployment rates of 75%, but Jealous was able to take extra online courses to learn to manage Thikaga Construction after earning a degree in General Construction. Thunder Valley CDC’s mission is to empower Lakota youth and families, and it has resources to support those like Jealous who are aligned with that mission.

When someone is uniquely prepared for a task, the result can be success beyond anyone’s expectations. James Holzhauer proved this by side-stepping the “Jeopardy!” blueprint and playing by his own rules. Business-minded Native Americans should celebrate the fact that they too can create their own unique path to success.  Moreover, they should trust that even in difficult situations, their communities will support them.

If you are a Native American interested in beginning a business, please refer to the Small Business Administration 8(a) Business Development Program website. The 8(a) Program helps minority owned businesses become independently competitive through specialized business training, counseling, and marketing assistance – key tools for the success of any business.

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Cole Bauman is a Procopio Summer Intern and a member of the Red Cliff Band of Lake Superior Chippewa.  He recently completed his second year at the Sandra Day O’Connor College of Law at Arizona State University, where he served as treasurer for the ASU Native American Law Students Association.

 

Procopio_Griswold_Theodore_Bio PhotoTed 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.

A Life Worth Remembering, Reflected in the Actions of Lives Touched

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

The importance of mentoring and just setting a good example can never be overstated. It impacts people beyond your immediate circle, and it affects people for years. It inspires, and it multiplies your efforts, your values and your ethics in ways that you will never hear about, but others will. Take for example the recent message I received from Racheal White Hawk, one of the associates in our practice group:

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Very sad news, Frank LaMere has passed away.  He was a well-respected activist and Winnebago tribal member from Nebraska, my home state. He fought very hard for many Native issues in Nebraska and nationally. One of his main goals was to shut down the liquor stores in the ten-person town of Whiteclay, Nebraska. The liquor stores bordered the Pine Ridge Indian Reservation, and the stores profited immensely from selling nearly 5 million cans of beer each year to Natives living on the reservation, where alcohol was prohibited. After nearly 20 years, he was finally able to stop the sales in 2017. Many people in our community, including myself, looked up to him as a mentor and a leader. He served seven consecutive times as a delegate to the Democratic National Convention.

Here is a nice article about him in the Omaha World Herald, “Native American activist Frank LaMere, dead at 69, remembered as a ‘true civil rights leader’.” 

This note touched me in so many ways. That Racheal felt compelled to let us know about this person that clearly sent her on a professional and ethical direction was insightful.  That she shared a personal connection with Mr. LaMere and wanted to share that connection and his importance made me wonder—how many others did Mr. LaMere touch, that also sent a note to their colleagues to celebrate his legacy? I am sure that there were many.  Follow the Omaha World Herald link above and learn a little about his legacy.

I wish I would have had the chance to know this Leader from the Winnebago Tribe, but I am so thankful for his life’s work to have generated inspiration to young Native lawyers like Racheal. While he has walked on, we can still hear his footsteps.

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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.

Twice is a Coincidence, Three Times is a Pattern

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By: Cole A. Bauman | Intern| cole.bauman@procopio.com

In its May 20th, 2019 decision, Herrera v. Wyoming, the U.S. Supreme Court expressly stated that treaty rights are not impliedly extinguished at statehood, a holding that had been strongly implied by the Court in its 1999 decision, Minnesota v. Mille Lacs Band of Chippewa Indians, but not confirmed until now. The court also found that the creation of the Bighorn National Forest did not void Herrera’s hunting rights by rendering the lands of the national forest “occupied.” Experts in the field were quick to congratulate the Court for its decision. Professor Robert Miller, a faculty member at the Sandra Day O’Connor College of Law and expert on the subject of Native American treaties, has since stated the decision is “a great victory for Indian country.”*

The Supreme Court vacated and remanded the Wyoming Fourth Judicial District Court’s ruling against Mr. Clayvin Herrera, a Crow Tribe of Indians member who was prevented from asserting his treaty right “to hunt on the unoccupied lands of the United States” as a defense in Wyoming trial court, resulting in convictions for taking elk off-season or without a state hunting license and for being an accessory to the same crime.

The Court split its votes in the same manner it did on March 19th when it published Washington State Dep’t of Licensing v. Cougar Den, a decision that affirmed the treaty right of the members of the Yakama Nation of Indians to travel upon the public highways of Washington without being subjected to the state’s fuel tax. In Cougar Den, and now in Herrera, Associate Justice Neil Gorsuch was the lone conservative on the bench to land on the pro-tribal side of the decision. The result reached in Herrera repeats the sentiment in Justice Gorsuch’s concurring opinion in Cougar Den:

Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1021 (2019).

In the procedural lead-up to the Supreme Court’s decision in Herrera, an old and familiar story became that much older and that much more familiar. Like the Yakamas, the Crow Nation agreed to a bundle of promises from the United States government. One of these promises was the continued right to take game on unoccupied lands, so long as game may be found thereon. As consideration for these promises, the Crow People agreed to cede most of their land to the government. The nation formally granted over 30 million acres of land to the United States in the Fort Laramie Treaty of 1868, a document ratified by the Senate in 1869.

Article VI, Clause 2 of the United States Constitution dictates that treaties are the supreme law of the land. Yet, Wyoming’s trial court convicted Herrera of two crimes for acting pursuant to the rights found in the 1868 Treaty. Wyoming’s Fourth Judicial District Court then upheld Herrera’s conviction. The Wyoming Supreme Court, the final arbiter of cases that arise under Wyoming law, refused to hear the case. To take again from Justice Gorsuch’s concurrence in Cougar Den, “none of this can come as much of a surprise.” However, as stated in United States v. Kagama, Indian nations “owe no allegiance to the States, and receive from them no protection.” 118 U.S. 375, 384 (1886). In Herrera, the Supreme Court not only applied sound principles of treaty interpretation, but it also highlighted once again the tendency of state interests to encroach upon the rights of tribal nations and their members.

With the Court’s decision in Herrera finalized, tribal advocates must look forward to the results of Carpenter v. Murphy, the third decision of the Court’s term involving Native American treaties. Due to publish its decision next month, the Court in Carpenter should answer whether half of Oklahoma has remained an Indian reservation. More specifically, the question presented is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” under 18 U.S.C. § 1151(a)?

The phrase “once is chance, twice is coincidence, three times is a pattern” doesn’t originate from the field of Native American law, but it applies to the Supreme Court’s Native American law jurisprudence this term. Tribal members and advocates should celebrate Herrera for what it is, a victory for Indian country. The results of Carpenter v. Murphy, though, will decide whether the Court will begin a pattern of upholding tribal sovereignty and enforcing the treaties the United States is party to.

*Massoud Hayoun, “The Supreme Court Upheld Treaty Rights for the Crow Nation,” PS Mag (May 22, 2019), https://psmag.com/social-justice/the-supreme-court-upheld-treaty-rights-for-the-crow-nation.

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Cole Bauman is a Summer Intern with Procopio’s Native American Law practice group and a member of the Red Cliff Band of Lake Superior Chippewa. A rising 3L at the Sandra Day O’Connor College of Law, Cole serves as an Executive Editor for the Jurimetrics Journal of Law, Science, and Technology. Prior to attending law school, Cole received a degree in economics from the University of Notre Dame. He is particularly interested in the pursuit of economic development in Indian country.

Procopio’s Native Women Attorneys — Mentoring Toward Success

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By: Racheal M. White Hawk | Associate| racheal.whitehawk@procopio.com
Gabriela Magee | Associate | gabriela.magee@procopio.com
Karli Sultzbaugh | Associate | karli.sultzbaugh@procopio.com

Procopio Partner Kerry Patterson, an enrolled member of the Seneca Nation, was one of a handful of Native women attorneys recently featured on Indianz.com in an article entitled, “‘We were born for this’: Native women overcome obstacles in the legal field.” In the article, Kerry discusses how Native women have served as strong role models in her life and how she hopes to mentor the three Native women Associates at Procopio toward success.

Kerry addresses the challenges that women face in the legal profession as well as with balancing their roles in their tribal communities. She mentions it is important to find a workplace where you fit in and to find an employer that invests in you, values diversity, and is forward thinking.

As the Native Associates working with Kerry, we are happy she found that fit at Procopio, and we feel extremely lucky to have such a strong Native woman as a role model and mentor right here in our firm and working with us every day.

Support is a determining factor for success, and our shared experience of being Native women in a private law firm motivates us to support each other that much more. Procopio is rated a Top Ten AmLaw 200 firm for diversity by American Lawyer magazine.

Read the entire Indianz.com article here.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is an Associate with Procopio’s Native American Law Practice Group. Racheal is a member of the Arizona Bar; she has passed the California Bar Exam but is not licensed to practice in California. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

 

Procopio_Rios_Gabriela_Bio Photo 7122Gabriela Magee (Cahuilla Band of Indians) is an Associate with Procopio’s Native American Law practice group. She focuses her practice on advising tribal clients on a variety of issues regarding governance, environmental permitting, gaming, intergovernmental agreements, culture resource protection and contracts. Connect with Gabi at gabriela.magee@procopio.com and 619.906.5620.

Procopio_Sultzbaugh_Karli_Bio Photo 7220Karli Sultzbaugh (Pechanga Band of Luiseño Mission Indians) is an Associate with Procopio’s Native American Law practice group. She is a graduate of the University of California, Los Angeles School of Law. Connect with Karli at karli.sultzbaugh@procopio.com and 619.906.5665.

Ninth Circuit Rules States Can Tax Non-Tribal Lessees on Reservations

shutterstock_659041903By: Karli Sultzbaugh | Associate | karli.sultzbaugh@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

A partial panel of the Ninth Circuit recently ruled through a memorandum of decision in Agua Caliente Band of Cahuilla Indians v. Riverside County that the County can tax the possessory interest of non-tribal lessees on tribal trust land, upholding the June 2017 federal district court ruling. The Ninth Circuit panel reasoned that the federal district decision was consistent with a 1971 ruling on the same issue (Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971)). However, the past 47 years have added much greater complexity to the matter with multiple decisions regarding a possessory interest tax. On March 6, 2019, the full Ninth Circuit declined to rehear the case in front of the entire panel.

The main question in the recent case was whether the Court was obligated to use the balancing test developed in White Mountain Apache v. Bracker, 448 U.S. 136 (1980), and if so, had that test changed the Court’s interpretation of the tax. The short answer, according to the Court, is no. This decision was designated unpublishable and thus cannot be used as precedent, but it can still be used as persuasive authority in courts in the Ninth Circuit.

Agua Caliente argued that the County’s possessory interest tax (PIT) on non-Indian lessees of tribal trust lands prevented the Tribe from being able to collect on its own PIT, losing out on potential revenue of over $20 million per year. The Tribe also argued that the PIT violated federal law that precludes state taxation of tribal lands taken into trust (see 25 U.S.C. §465). The County argued that its tax was valid because the funds collected from the PIT are used to provide services that could reach the leased lands such as water, law enforcement, etc. However, the district court had noted that the County does not keep track of the amount or use of the funds that come from these lessees which could show that the services were actually provided to the lessees. Rather, the funds go directly into the general fund which is distributed across the county, not specifically to services on the leased lands. Furthermore, the district court and the Ninth Circuit both ignored the fact that Agua Caliente has Memoranda of Understanding (MOU) with local governments to provide such services on the checkerboard reservation lands, which already include payments to the governments for these services.

In regards to § 465, which is part of the Indian Reorganization Act of 1934 (IRA), the Ninth Circuit strangely decided that this section does not apply to Agua Caliente because its reservation was created in 1876, long before the IRA. This is an incorrect way to apply the IRA, as it would exclude many trust lands (i.e. reservations) that were created prior to 1934. Reservation land, no matter when it was taken into trust by the federal government, is not subject to state taxation relating to the property itself.[1] Thus, the IRA is not intended to rid reservations of the taxation exemption since they cannot be said to have been taken into trust “pursuant to” the IRA, but rather the IRA intends to extend this protection to lands taken into trust in the future that may or may not be considered “reservation” land. Furthermore, regulations adopted by the BIA clearly state that the leasehold or possessory interest of leases approved by the BIA are not subject to state or local fees or taxation (25 C.F.R. § 162.017). The Court also claims that even if § 465 applied, the PIT is valid because it is a tax on the “full cash value” of the lease rather than on the property itself. However, this position conflicts with an Eleventh Circuit case which analyzed a similar tax in Florida on the Seminole reservation (Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324 (11th Cir. 2015)). The Eleventh Circuit found § 465 expressly precludes taxes on interests associated with land ownership, including leasehold interests.

Furthermore, the Ninth Circuit entertained no Bracker balancing analysis whatsoever. It simply declared the Court was bound by the 1971 ruling and did not find that rulings to be inconsistent with Bracker. However, Bracker, a U.S. Supreme Court case, is binding precedent here, necessitating an analysis of balancing the federal, state, and tribal interests at play in accordance with the test. The Ninth Circuit concurring opinion briefly discussed the test but still discounted the tribe’s interest in levying a tax and the federal exclusive interest in regulating leases of Tribal lands. In the Seminole case, the Eleventh Circuit came to the opposite conclusion with similar facts. It focused on the federal government’s very strong interest in regulating the leasing of Tribal lands. The federal government has exclusive control over such leases, but the Ninth Circuit did not consider this interest. Furthermore, the Eleventh Circuit ruled that a state’s interest in raising revenue is not meaningful unless it has a direct connection to the taxed activity. Riverside County is unable to connect the use of these taxes to actual activity of the non-Indian tribal lessees; rather the PIT benefits county residents in general.

This case may affect tribes located in the Ninth Circuit states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) who lease tribal land to non-Indian businesses or individuals. Double taxation is unattractive to lessees and developers, so tribes that charge their own PIT (or wish to start) may risk losing business and revenue if the local government decides to charge a PIT as well. Tribes should stay alert as to whether the Tribal party appeals this matter to the Supreme Court, and if such review is granted.

Another Ninth Circuit recent decision, Confederated Chehalis Reservation v. Thurston County Board of Equalization, analyzed the BIA regulations and described them as clarifying and confirming existing law under § 465. The Court found that the state of Washington could not tax permanent improvements on tribal trust lands. This analysis seems to be in conflict with the Agua Caliente case analyzing the same statute.

Karli Sultzbaugh is an Associate with Procopio’s Native American Law practice group and a member of the Pechanga Band of Luiseño Mission Indians. She is a graduate of the University of California, Los Angeles School of Law. Connect with Karli at karli.sultzbaugh@procopio.com and 619.906.5665.

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

[1] See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973): “[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan … lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent;” see also, “State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. It follows that Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress.” U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW 845 (1958).