Don’t “Waive” Goodbye to Sovereign Immunity…

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

For those of us interested in the more wonky corners of the profession, there is an ever-expanding jurisdictional split on the horizon at the intersection of Civil Procedure and Federal Indian law. As one of those enthusiasts, I found this most recent case to be fascinating both for its approach to Federal Indian Law generally and its take on sovereign immunity. The United States District Court for the Eastern District of California recently held that a Tribe’s sovereign immunity is effectively waived by removal of an action to federal court. Bodi v. Shingle Springs Band of Miwok Indians, 2:13-CV-01044-LKK-CKD (2014).

Under the Supreme Court’s Kiowa ruling, there are only two means by which a tribe’s sovereign immunity may be abrogated, an act of Congress and explicit waiver by the tribe. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751 (1998). Courts are now split over how to analyze the question of waiver by removal of a case to federal court. One District Court appropriated State sovereign immunity principles for the tribal context, and another, in addition to the 11^th Circuit, relied on the Supreme Court’s explicit comparison of tribal sovereign immunity to that of foreign nations in Kiowa. Id. at 759.

The District Court at bar took a third approach, that of treating tribal sovereign immunity as its own discrete issue not to be compared with the immunity of a State or foreign nation. This was refreshing, as too many decisions have attempted to force the round peg of Federal Indian law into the square hole of existing non-Native law. In this case, however, the Court’s ostensibly favorable approach did not lead to the tribal government’s desired end.

This disparate treatment can only lead to more fractured decisions, and tribal governments would be far safer first contesting jurisdiction on sovereign immunity grounds prior to taking any step toward removal, even if the desire to escape State court jurisdiction is at its peak.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

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.

Attorney General’s Indian Country Fellowship

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Department of Justice has created an opportunity in Indian Country worthy of serious praise. Prosecutors have the best shot at helping people. They are positioned to assist our people into more empowering places – restorative justice programs – including federal court programs for veterans.  For example, the U.S. District Court in Roanoke, Virginia, began its Veterans Treatment Court in spring 2011 when only one other existed at the federal level, in Utah.

We need to get Native people into this prestigious fellowship to protect our citizens!

Applications are being accepted for an Indian Country Fellowship that “is designed to create a new pipeline of legal talent with expertise and deep experience in federal Indian law, tribal law, and Indian Country issues that can be deployed in creative ways to build tribal capacity, combat violent crime, and bolster public safety in Indian Country jurisdictions.”

The Indian Country Fellowship is open to all eligible Honors Program applicants, including current law students graduating in the coming academic year.  The 2014-2015 Honors Program application opens on July 31st and closes on September 2nd.

Imagine … this time next year you could be in Oklahoma, Mississippi, Minnesota, Colorado, South Dakota, North Dakota, Nebraska or Arizona! And what is even more amazing than that… you could be working in sovereign nations including the: Mississippi Band of Choctaw Indians, Southern Ute Indian Tribe, Navajo Nation, Santee Sioux Tribe, Thlopthlocco Tribal Town, Chickasaw Nation or Cherokee Nation.

With VAWA implementation upon us – this is an incredible time to experience both tribal and federal justice systems.

Links:

http://www.justice.gov/legal-careers/attorney-generals-indian-country-fellowship

http://www.roanoke.com/news/article_9e155062-849e-11e3-9296-001a4bcf6878.html

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.

The Idea of Indians

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

During the NBA Finals, a television ad was aired that opposed using Native Americans as mascots, specifically targeted to the Washington Football Team.[1] The ad stated that Native Americans refer to themselves in many ways, “Indomitable, strong, Inuit, Blackfoot,” but they don’t refer to themselves as the R- word. It was particularly powerful in that it did not specifically state that R- word, but ended with a simple shot of a Washington helmet on a football field to convey the message. The ad was developed by the National Congress of American Indians, and paid for by the Yocha Dehe Wintun Nation tribe in California. It was targeted to be aired during the Superbowl, but extraordinary airtime costs kept it from being seen on television’s biggest forum.

This week, the U.S. Patent Office agreed with the ad’s sentiment, when it ruled that the R-word nickname is “disparaging to Native Americans” and that the six registered trademarks that involve the R-word must be canceled. The Trademark Trial and Appeal Board found that “substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame…” Blackhorse, et al v. Pro-Football, Inc., Cancellation No. 92046185, Board Decision, pg. 72 (June 18, 2014).

Momentum for the campaign to get Washington to change its nickname is building. Like so many social movements that succeed because of public pressure, this one may ultimately be victorious because the American people will finally say enough, or because the Washington Football team will get hit in its pocketbook when it can’t protect its team name from use by others. This issue may ultimately be resolved by financial cost, but money has nothing to do with why teams should stop using Native Americans as mascots.

It remains perplexing and sad that Native Americans are still being used as mascots all over the country, and that the R-word is still being used for that team in the Nation’s capitol. Advocates for using Native Americans as mascots state that Native American names and tribes are used in “respectful ways”, and it is done to “honor” the tribes by making them “positive mascots”. This contention misses the point.   The point is that Native Americans are people, living and working in modern America. They are not a thought or an idea of what a Native American is, they are Native Americans. When a team uses a Native American tribe as a mascot, it is not allowing the American people to see Native Americans as everyday people in their communities. It is a dehumanizing effect that can be corrected.

The legal proceedings in Blackhorse will continue, as there is little doubt that the football team will appeal. However, public awareness can change. People can choose not to support the disparagement of Native American people as mascots by their individual actions. “Proud, forgotten, Indian. . . . rancher, teacher, doctor, soldier.” These are the appropriate images of Native America. Maybe over time this idea will sink in, and replace those archaic ones that are caricatures of a Native American.

Eric Abeita is a member of the Isleta Pueblo and is entering his third year at the University of New Mexico School of Law. Eric is a recipient of the 2014 Procopio Native American Internship.

Procopio trademark attorney Megan E. McCarthy is preparing a more thorough analysis of the 177 page Blackhorse case which will be posted here in the near future. Please check back for Megan’s analysis.
[1] See the NCAI ad at http://www.youtube.com/user/NCAI1944.

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.

Appreciating the Opportunity

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

Procopio recently had the pleasure of being one of the sponsors of the Inter Tribal Sports Golf Tournament at Pechanga.  Beautiful day, magnificent course, and great company.  Our golf was not legendary, but it was a great way to support ITS  along with other sponsors Pechanga, Pala, Sycuan and the Randy Jones Invitational.  We appreciate the opportunity to give back to the community we work with.  That got me thinking about some of the other groups that we are allowed to work with.  Kudos to these groups for supporting the local Native American Community:

American Indian Recruitment (AIR) Program Created in 1993, at San Diego State University and in partnership with the Department of American Indian Studies, the American Indian Recruitment Program has been established with the ideals of promoting higher education and success in academics in the Native community. Procopio joins with the American Indian Recruitment Program to empower Native youth to meet their goals to obtain higher education.

Maataam NakaShin Celebrating indigenous peoples is a priority for Procopio, as is empowering an understanding of indigenous cultures through history, art, traditions and Native science. As a proud sponsor of Maataam NakaShin and providing pro bono legal services, Procopio joins Native Nations and the Greater San Diego community in supporting the public awareness of indigenous populations at the San Diego Panama Exposition Centennial in 2015 and beyond.

Inter Tribal Sports Procopio supports the outreach efforts Inter Tribal Sports in their mission to unify tribal youth and communities through structured athletic programs while providing necessary resources and developing a strong foundation in culture, leadership and wellness.

California Indian Legal Services California Indian Legal Services (CILS) is the first Indian-controlled law firm organized to provide specialized legal representation to Indians and Indian tribes. CILS, a non-profit law firm, provides free or low-cost representation on those matters that fall within the priorities set by its Board of Trustees. Created by California Indian leaders and public interest attorneys, CILS has been one of the pre-eminent advocates for the rights of Native Americans and Indian Tribes for over forty years. However, some cases and clients can be burdensome for CILS to handle due to costs.  In such cases, Procopio’s attorneys developed a pro-bono co-counsel relationship with CILS to help serve its clients in litigation, property rights, protection of cultural resources and other matters throughout California. CILS is supported by grants, namely the Legal Services Corporation and the State Bar of California, private foundations, and individual and corporate contributors as well as contracts from a host of California’s 109 federally recognized Indian Tribes. Procopio is excited to be a part of this public interest collaboration serving the Native American Community.

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.

Opportunities and Threats to Indian Country Business: E-Commerce and Tribal Sovereignty

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

Many tribal governments are in serious need of economic development avenues. As sovereign nations within U.S. borders, they have the inherent authority to bypass laws and regulations that regulate business relationships with non-tribal online retailers, tech start-ups, and even larger digitally-focused companies interested in hospitable climates for expansion.  E-commerce, once a fledgling industry, is on track to far surpass in-person transacting by both volume and value.  The Internet could provide those tribal governments and their businesses with a virtual mobility sufficient to maintain a worldwide customer base.

In order to curtail that growth, the states could force the courts to address the issue of what I have termed “e-sovereignty” in the most unfavorable context for tribal governments — that of payday lending.  For sovereigns and their advocates, the time is now to carve out a niche for tribal e-commerce both online and in the case law.

One case in particular that should be watched closely is Otoe-Missouria Tribe v. New York Dept. of Financial Regulation.  The State of New York has attempted to shut down the tribal governments payday lending operation with cease-and-desist letters and other investigatory tactics.  The tribal government has responded with a lawsuit seeking injunctive and declaratory relief as against the State’s regulators and its usury laws.  The New York State District Court that first heard the case ruled last year in favor of the State, relying on general principles of lending law outside of either the online or tribal context.  A Second Circuit’s decision on the Otoe-Missouria’s appeal is due soon, and its reasoning could lay the groundwork for future decisions involving tribal e-commerce far beyond the realm of lending.

It would behoove both Tribal businesses and their champions to maintain a vigilant focus on this area of the law and to make their voices heard in support of e-sovereignty.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law. 

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.

On the Obvious Superiority of the Summer Intern Mind

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

As seasoned attorneys, sometimes we don’t ponder enough.  We are busy.  With experience, we have seen it before, and that experience allows for faster solutions for the client (and begets higher billing rates).  This has worked before, so this is a good solution.  However, is that going to be the best solution for the issue to be resolved?  Maybe, because you came up with it previously, and you must have had good reasoning .   But maybe it was not the best solution.  Perhaps you need to break down the issue and build a new way of looking at the issue.

Which brings me to the obvious superiority of the intern mind.  This is a corollary to a podcast by Freakonomics I recently listened to on my morning run about the value of an inexperienced mind.  The podcast spoke about how the inexperienced mind begins looking at problems in questioning, different ways than the experienced mind.  The thought process is not impeded by previously derived solutions.  Rather, the inexperienced mind is allowed to look more holistically at a problem and ask all of the questions that we might think are too menial to ask.  But they may be important in solving the problem in a new way.  I loved the idea and could not get it out of mind for the rest of the day.

I get knocks on my door occasionally from one of our interns, and I turn to see a sheepish look and it tells me that they feel 1) that they have a stupid question and 2) they are concerned about interrupting me.   Neither should be a concern.  There are no stupid questions, and when you are tackling a tough legal problem that you have not seen before, it is essential that you break it down into stupid questions.  That is how you learn.  And by stopping by and asking a partner or associate these questions, you are helping them rethink their process as well.  This is the mutually beneficial aspect of mentoring.    Relish your insecurity as being unleashed by previously thought out solutions.  Run with it, play with it, and then fashion your response.

The mind is a beautiful thing, and the inexperienced  mind can be an inquisitive, inspiring, creative thing when we allow it to be.  And that’s what we should allow interns to do.  It makes law fun, and interesting and growing.  And that leads to an inspiring practice.  In fact, maybe a few of us old salts ought to practice thinking like an intern.

To learn more about our 2014 Native American Interns, see Christopher Scott and Eric Abeita.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

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.

Congratulations Judge Sykes for Re-election to Riverside County Superior Court Bench!

By: Jaclyn A. Simi | Attorney
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In December 2013, Governor Jerry Brown appointed attorney Sunshine Sykes as the first-ever Native American woman on the Riverside County Superior Court Bench. Just 4 months later, her seat was challenged. This week, the Riverside County voters reaffirmed her selection by re-electing Judge Sykes to the bench with 68.81% of the vote!

Judge Sykes is a member of the Navajo Nation and has nearly 15 years of broad legal experience behind her.  Impressively, Judge Sykes received her B.A. from Stanford University and her J.D. from Stanford Law School. She is also a mother of 4 daughters. Judge Sykes was the honored speaker at Procopio’s International Women of Color Day Reception earlier this year.

This news comes on the heels of last month’s confirmation of Diane Humetewa as the first-ever Native American woman to serve as a U.S. District Court judge. Diane Humetewa is a member of the Hopi Nation and will serve on the bench in Arizona.

Judge Sykes and Diane Humetewa make me proud to be a Native American woman. Thank you both for paving the way for other Native American women and making a positive impact on the world!

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

Jaclyn Simi was a 2012 Procopio Native American Intern and is currently an associate in Procopio’s Labor and Employment Practice Team and Native American Practice Group.

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.

Cherokee Nation Citizen Confirmed as Ambassador

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

I am encouraged that the State Department will have the insight of a Native person to guide them in decisions regarding indigenous peoples.

Today the U.S. Senate confirmed Cherokee Nation citizen Keith Harper as the country’s ambassador to the United Nations Human Rights Council. Nominated by President Barack Obama in 2013, Harper will be one of the few Native Americans to serve as an ambassador for the United States.

I was an intern with the Department of State at U.S. Embassy – Pretoria, South Africa. Many of my colleagues had not worked with a Native person. It was incredible to share my life experiences of growing up in the Cherokee Nation with students at the University of Pretoria, South Africans from multiple tribal affiliations and the U.S. Charge’ d’ Affaires (we didn’t have an acting Ambassador while I was there).

There is a serious need to incorporate the shared experience of indigenous peoples across nation-state borders. While these experiences are not uniform, they have elements that are distinct and critical to human rights issues. With this ambassadorial post – and a Native person at the helm – I believe we are better situated to both advance our position on human rights and improve our communities.  Congratulations to Ambassador Harper, President Obama and the international indigenous communities.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

Stephanie Conduff was a 2013 Procopio Native American Intern and is currently a law clerk for Procopio and is finalizing her law degree at the University of Oklahoma College of Law.

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.