Does the 9th Circuit Have Buyer’s Remorse? Carcieri in the Context of IGRA’s “Good Faith” Requirement of States

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

In a move heartening to many in the field of Indian Law, the 9^th Circuit has decided to rehear en banc the appeal of the Big Lagoon Indian Gaming Regulatory Act (IGRA) case.  The previous hearing in front of a three-judge panel resulted in a decision against the Tribe founded on the Carcieri principle, apparently applied retroactively.  The decision caused concerns among the Native American Bar, and now the 9^th Circuit is reconsidering its decision.

Despite 10 years of negotiation history with the Big Lagoon Rancheria Tribe wherein the State of California claimed State interests trumped Tribal interests, the State switched its legal position to a brand new position adopted for litigation purposes — that the land on which the Tribe proposed to build a casino was not legally taken into trust, according to Carcieri.  The Carcieri decision stated that Tribal Governments not specifically recognized when the Indian Reorganization Act was adopted in 1934 were unable to have land taken into Trust by the BIA on their behalf.  Carcieri v. Salazar, 555 U.S. 379 (2009).  The Tribe filed an action in Federal District Court alleging that the State had violated the good faith negotiation requirements in its Compact.  The State reasoned that the Compact good faith bargaining requirement was irrelevant if gaming could not occur on the proposed land.

The lower District Court saw through this newfound position of the State and held that they could not be acting in good faith by ignoring past negotiations and now rely on a legal theory to justify their behavior in compact negotiations; after all, negotiations began around 1998 and Carcieri wasn’t decided until 2009! Big Lagoon Rancheria v. State of California, No. 09-01471 CW (2010).

However. the 9^th Circuit panel held in favor of the State, ruling  that valid Tribal jurisdiction over property on which a casino is proposed under an IGRA compact is a necessary prerequisite in order for the Tribe to rely on its Compact requirement that the State engage in good faith dealings.   On second thought, perhaps the 9^th Circuit has recognized the extraordinary limitations this decision would have on Tribal-State compacts and relations, and is now rehearing the matter.  Stay tuned!

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.

PLSI: Empowering Indian Country, Building the Legal Profession and Native Bar

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

Transitioning into law school can be a difficult process.  The methods of research, analysis, and writing that are distinct to the legal profession are different than those learned in undergraduate or other graduate course work.  The ability to think like a lawyer is a trained and developed skill, and doesn’t come naturally to many people.  This is why the Pre-Law Summer Institute (PLSI) has become invaluable in preparing Native Americans for the rigors of law school.  The PLSI is a two month law school preparatory program run by the American Indian Law Center for American Indians and Alaska Natives.  Classes are held every June and July at the University of New Mexico (UNM) School of Law.  Students that have been accepted to any law school and those interested in applying or waiting to get in may attend the program.  It is an intensive program which mimics the first year of law school.  Participants take courses like Federal Indian Law, Torts, Property, and Legal Writing.  The credits you receive do not transfer to law school, but the experiences and knowledge you obtain far outweigh any school credits.

The PLSI was started by former UNM School of Law Dean, Fred Hart.  His idea was to start a preparatory law curriculum for Native Americans that was based on sound legal education principles, rather than a space for a philosophical, political, or cultural training ground.  The PLSI has now existed for more than four decades and has been extremely successful.  Every year about 30 students go through the program, and virtually all graduate law school.  It has been touted as the most successful pipeline program for Native Americans in the country.  Former UNM School of Law Dean and now Assistant Secretary of Indian Affairs, Kevin Washburn, is a graduate of the PLSI.  I attended the PLSI two summers ago, and it was an invaluable experience that prepared me for the demands of law school.  The PLSI also plugs its graduates into a network of former participants who are now attorneys, judges, administrators and other professionals.

More programs like the PLSI should exist for various professions for Native Americans.  The PLSI has no doubt boosted the number of Native Americans successfully attaining law degrees, and similar programs would certainly increase the number of Native Americans with medical, business and other advanced degrees.  If you are a Native American interested in attending law school, I would highly recommend taking advantage of the PLSI.  It will give you a strong fundamental base of law school skills that will allow you to succeed in law school and your profession.  It will give you a confidence on your first day of law school that your peers will not have.  As more Native Americans become credentialed with college and advanced degrees, our ability to run self-sustaining Native communities increases significantly.  To learn more about the PLSI, click here.

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.

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.

Medicine Bluffs: Sacred Spaces, Healing Ceremony

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

I was recently invited to the sacred Summer Solstice Prayer Ceremony with the Comanche Nation. It took place on Medicine Bluffs on their traditional lands – a place surrounded by sage, a serene vista and on a bluff that allowed me to see for miles in the four directions. Elders shared with me that Medicine Bluffs is considered a place of puhu. In their Native language puhu means ‘medicine’ or ‘power.’ We had three generations of Native women there for a healing ceremony. It was incredibly peaceful. Until the sounds of artillery fire began…

You see – Medicine Bluffs is on federal land at Fort Sill, Oklahoma. And, despite this sacred time and ceremony for the Comanche people, the Army continued to detonate ordnances nearby. Sacred sites are not places of the past—they are of the present and the future, and must to be treated with the respect that recognizes this is true for churches, mosques and holy places worldwide.

This experience empowered me to intimately understand the necessity of protecting sacred sites. Since 2008 this land has been involved in a protracted legal battle with the federal government.  The U.S. Army attempted to construct a warehouse on Medicine Bluffs. The cultural and religious significance of Medicine Bluffs to area tribes, especially the Comanche Nation and their citizens, has been well known by the Army for approximately 130 years, Comanche Chairman Wallace Coffey said in media statements. Had the Army been successful in its expansion plan and constructed the warehouse it would have unduly burdened the exercise of religious ceremonies of its citizens.  The site was spared from physical damage, though it appears that the Army hasn’t quite come to grips with its sanctity during ceremonies.

Still, I was blessed to experience the puhu that day. And I am thankful to those who ensured its sacredness – and other critical spaces – for this generation and beyond.

http://indiancountrytodaymedianetwork.com/2008/09/22/fort-sill-project-threatens-sacred-site-80524

http://www.kswo.com/story/8763155/comanche-nation-battling-fort-sill-over-rights-to-medicine-bluff

http://www.narf.org/nill/bulletins/dct/documents/comanchenationok.pdf

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.

Benefits Abound for Tribes Looking to Operate Their Own Utility

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

If you want something done right, you have to do it yourself, or so the saying goes. It’s a saying that couldn’t be more apt for those tribal governments who have created their own utility company. Plagued by high electricity costs for some tribal citizens, no electricity access for others, and a disinterested non-Tribal utility serving their reservations, a handful of tribal governments have asserted their power as sovereigns in this way and are better for it.

The process of Tribal utility conversion is no simple task. It requires the creation of Tribal law and ordinances, the establishment of a general plan and a board of directors to execute it, the acquisition of equipment necessary to bring power to Tribal land, and, of course, money. But the benefits have largely proven to outweigh these downsides. For example, utility costs for the Fort Mojave Indian Tribe have decreased 15-20% since conversion, and the Tohono O’odham Nation has employed over one hundred people and vastly improved service from that provided by the non-Tribal utility.

What’s more, there are a whole host of federal programs for tribal governments to take advantage of in jumping those hurdles to market entry. Those run by the Rural Utilities Service and the National Rural Utilities Cooperative Finance Corp. make low-interest loans to tribal governments for the purpose of obtaining equipment. Others provide at-cost energy for use on reservation lands, like the hydroelectric power generated by federal dams and distributed by the Bonneville Power Administration.

One important fact for a tribal government to keep in mind as it considers this undertaking is that conversion doesn’t require tribal governments to self-generate power. A tribal government could, for instance, install a solar farm on its property to improve cost-effectiveness and eco-friendliness, but it could also simply purchase power from the same providers as the previous utility. There is no wrong way for a tribal government to go about conversion, and however it’s accomplished, it has the potential to vastly improve both the quality of life for individual members and the status of the tribal government as an independent sovereign.

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.

Give Us Our Stuff Back

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

Last month, the Paris auction house, EVE, attempted to sell 29 Hopi headdresses known as Katsinam.  This same auction house has sold various Native American religious items in four auctions within the past 18 months.  This auction, however, was challenged legally by the United States Embassy in Paris.  The US Embassy filed two actions to stop the sale of the sacred items, but both were defeated.  The Board of Sales, which is a French Government Agency with the power to regulate auctions and other commercial dealings, ruled that neither the Hopi Tribe nor any other Native American group had the legal standing to challenge the sale on French soil.

The US Embassy pulled out all the stops to halt the sale.  Embassy officials invited newly appointed federal judge Diane Humetawa to speak with government officials, art dealers, and others about why the sale of Native American spiritual objects is insulting and sacrilegious.  Judge Humetawa’s presentation was especially powerful as she is a member of the Hopi Tribe, and the first Native American woman to be appointed to the federal court.  Despite these efforts, the auction commenced.  However, this auction sold only nine of the 29 headdresses that were up for auction.  Philip Breeden, the Minister Counselor for Information and Cultural Affairs at the US Embassy, said he thinks the low number of sales is a result of the message of inappropriateness sinking in with some people.

I believe it is extremely unfortunate that the sale of Native American religious items and artifacts still continues globally.  It is illegal to take these objects from Federal or Tribal land and sell them in the United States.  However, thieves navigate US law by smuggling the items to countries like France, which have shown they have no interest in respecting or preserving Native American culture and religion.  Even if French Law is on the side of the auction house, the obvious right thing to do is to return the items to the respective tribes.  It is also hypocritical of the French to allow the sale of these items when they are signatories to the United Nations Declaration of Rights of Indigenous Peoples, which protects Native peoples’ art and religious items.

Further, it is also unfortunate that American Bar Association did not mention one word about the history of looting and illegally selling Native American artifacts and antiquities in its July cover story of the ABA Journal, “Looted Beauty.” The article discusses the looting of antiquities that has taken place for decades from countries like Cambodia, Greece, and India, and what those countries are doing to return their stolen heritage back to their homeland.  It is terribly ironic that an organization like the ABA, which is dedicated to advancing the rule of law in the United States, does not even mention the centuries of robbing both cultural and religious items from the original American communities.

Hopefully, Mr. Breeden’s statement that the message is sinking in is actually happening. It is only when more people take the position that the sale of these items is immoral and they must be returned to their proper owners, that the dirty business of pot hunting and artifact dealing will come to an end.  There can be legitimate excavation of some of these sites through professional archaeology, but the days of the loan artifact hunter “discovering” Native American cultural objects must stop.

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.

Related Links:

http://news.artnet.com/in-brief/us-efforts-fail-to-halt-french-auction-of-hopi-artifacts-51108

http://www.nytimes.com/2014/06/30/arts/design/sale-of-hopi-religious-items-continues-despite-us-embassys-efforts.html?_r=0

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.

It’s Just that Simple: Carcieri Fix Passes Senate Committee Vote

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

Attorneys and scholars like to wax poetic about theories of interpretation and jurisprudence, but sometimes all it takes to change the law is a vote. In the context of Native American Law, the “Plenary Power of Congress” has become almost a throw-away phrase—one often referenced but far less frequently relied upon. That Power can be destructive or productive, depending upon the direction in which the winds of political change blow. Congress could and is providing Tribes with just enough wind at their backs to make up the ground recently lost in the courts, most recently in the 9^th Circuit’s decision against the Big Lagoon Rancheria. Big Lagoon Rancheria v. California, 4:09-CV-01471-CW (2014).

Enter Senator Jon Tester and his bill proposing simple changes to the text of the Indian Reorganization Act that would effectively overturn the Supreme Court’s Carcieri v. Salazar opinion. That decision interpreted the Act’s original language to disallow those Tribes who were recognized after the time of the law’s passage from participating in the fee-to-trust process. Carcieri, 555 U.S. 379 (2009). Not only did the ruling prevent Tribes later recognized from enjoying the full benefits of sovereignty, but it also caused a significant disruption for those Tribes who had not been recognized at the time of the IRA’s passage but whose land had been taken into trust by the BIA and developed prior to Carcieri.

All it takes to overturn Carcieri is the will of Congress to exercise its plenary power by passing an amendment to the IRA. While this bill has Republican and Democrat co-sponsors from states across the country and was just unanimously passed out of the Senate’s Indian Affairs Committee, there is still opposition on the part of many states and their Attorneys General. It remains to be seen whether or not that opposition can gain a foothold somewhere in the arduous process of Federal lawmaking.

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.

Good News Regarding Income Tax Relief for Certain Tribal Government Programs

By: Eric D. Swenson | Senior Counsel | eric.swenson@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On June 4, 2014, the Internal Revenue Service (IRS) issued Revenue Procedure 2014-35, which provides the requirements that must be met order for an Indian Tribal program to meet the requirements necessary for the General Welfare Exclusion to apply.  A General Welfare program is a social welfare program offered by a government to its people, including Indian Tribe’s to its tribal citizens.  Under the General Welfare Exclusion, the value of what is provided to the recipient is  not be taxable under the General Welfare Doctrine if the particular program requires that the recipient show financial need.  Under the new IRS Rule, the IRS is removing this “financial need” requirement for Indian Tribal programs that draft their programs in accordance with the rules set forth in the IRS Revenue Procedure.

Examples of benefits that are generally not taxable under the General Welfare Exclusion, where financial need is a requirement, include health coverage, educational assistance, sustenance payments (e.g., utilities), relocation assistance, and disaster relief.  These services are affected by this Ruling.  Tribal governments operating social welfare programs should review their program terms to avoid exposing Tribal citizens to the risk of potential and unnecessary taxable income that could otherwise be excluded.  Amending the program terms could also remove exposure of the Tribe to penalties for failing to properly treat such benefits for tax purposes.

To find a more detailed discussion on this issue, click here.

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.