Peacemaking, Restorative Justice and Empowering Native Communities

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

I am a certified peacemaker.

How so? How many of our readers know what that means? Raise your hands? Okay, that’s what I thought…

At this point, you may imagine me calming the nerves of family members or even that of co-workers at the water cooler. Maybe you envision a circle and a talking piece. You see — circles— even blogging circles — are trendy. Even this season’s Orange is the New Black featured one.

Tribal Governments can use a Peacemaking Court as a forum for resolving conflicts using traditions, customs and culture as the basis for finding peace in the resolution.  For some, it can be codified in law and even be a division of the District Court.

Peacemaking is a process that requires the parties to agree to peacemaking and to the selection of the peacemakers in order to participate in the peacemaking process and resolve their differences.

The core values of the Peacemaking court are respect, humility, compassion, spirituality and honesty. No value carries more significance than any other. Participation in the Peacemaking Circle process indicates acceptance of these values both in word and action and a commitment to move forward from the point of dispute.

What is ironic about being a certified peacemaker is that it isn’t about an individual, and it surely isn’t about creating peace. It is about a unified community and about the intent of the circle. It is about restoring balance and about healing. In one tribal Peacemaking court, for those who are litigants and request peacemaking, the goal of the peacemaker is to strive to be:

• Mediators of their differences;
• Leaders in teaching them our history, customs and culture;
• Healers of conflict by promoting peace and harmony;
• Guides to teach them and help them find their tribal identity.

My debut into peacemaking is a result of years serving as a judicial clerk for the Honorable Chief Justice Barbara Smith who sits on the Supreme Court for the Chickasaw Nation. She has been a facilitator for the Native American Rights Fund (NARF) Chautauqua Peacemaking Project and is on the Advisory Committee for their current Peacemaking Project. She is also on the NARF Board of Directors. Though she is too humble to agree, I consider her the intellectual leader of peacemaking. She is entrusted by the elders of many tribal nations with the wisdom and traditions used in their peacemaking over the centuries.

She and her brother, the Honorable Michael Smith, a District Court Judge for the Sac and Fox Nation, have mentored me for years. They co-teach at the University of Oklahoma and took 15 of us through a journey of self-discovery to prepare to become peacemakers.  They are the ones that brought me to Medicine Bluffs.

Peacemaking requires patience. You have to let go of being in charge of communication in the circle — something that is difficult for attorneys and law students to do. If you represent a client who chooses the peacemaking circle route, then you will not even be allowed in the circle. There is no need for representation in the circle.

Peacemaking takes time. Really, it is all about time. In a circle you start to realize that everyone is equal. No titles and accolades exist within the circle. I am just a voice.  Not THE VOICE in the circle.  Who am I as a person, then, I wonder? For years now, every time I introduce myself or someone introduces me it is based on what I do. What am I supposed to say to this group of people looking at me if I can’t tell them what I do or what I’ve done?

The circle can introduce new doubts that you didn’t even know that you have inside of you — then give you the time and perspective to work through to the natural resolution.

For many litigants who opt-in to the circle they initially think it will be easier. Some perceive it will be less punishment. However, the circle oftentimes commands courage, requires responsibility and provokes shame in a way so intimate a Judge could never convey it down from the bench. When the litigant must be in community with and listen to the victim or the victims’ family there is a sense of obligation that often emerges. As it pertains to a justice system, Chief Justice Smith said something powerful that stays with me: It is better for my soul to do good things instead of mean things.

For example, punishing tribal youth for poor decisions, which will affect their college admission chances or potential job opportunities, does nothing for the person or the Native community. Instead, healing is a good thing for those involved in the circle and in the tribal community. After all, a tribe is a family of families. By making them aware of their actions and the affect it has on others can often prompt change and self-evaluation that can promote responsibility and maturity. Participation in the circle is voluntary.

Peacemaking courts are analogous to other restorative justice courts we see in mainstream judicial systems. Examples of these are DUI courts, drug courts, Veteran’s courts, Sex Trafficking Courts and Homelessness Courts. I think the success we have seen in the Homelessness Court, that started in San Diego in 1989, show us that doing something innovative can make a difference in citizens’ lives. An except from a presentation on the ABA Commission on Homelessness and Poverty highlights the importance of this program in the San Diego Community:

“Homeless Court helps the community by engaging homeless people in gainful activity, thereby removing them from the doorways, parks and gathering places where they are unwanted and susceptible to arrest. It helps homeless defendants move back into productive lives because the sentence is most often participation in a work and counseling program that offers help with overcoming social problems, enhancing job seeking skills and locating employment opportunities and affordable housing. In the words of Charles Campbell, past Presiding Judge of the Ventura Superior Court, “Other than providing temporary housing, incarceration of the homeless does nothing to benefit the homeless or the community.” Referrals to specialized alcohol and drug treatment programs, mental health services and training or searching for employment help the community to tackle the problem of homelessness in a meaningful and practical way.”

Ultimately, it is up to each sovereign to decide how to operate their court systems and systems of justice. I am confident that we can find ways to intentionally include multigenerational dialogue of our youth and our elders when addressing community issues in achieving balance. Peacemaking is a natural path to that end.

To learn more, join the National American Indian Court Judges Association, Columbia Law School, and the Native American Rights Fund at the Traditional Peacemaking: Exploring the Intersections between Tribal Courts and Peacemaking, Including Alternatives to Detention at the Hard Rock Hotel and Casino – Tulsa on October 6-7. Topics they will cover include:

• Peacemaking Doesn’t Operate in a Vacuum: The Importance of Context
• Approaching Culturally Appropriate Justice with Indigent Defendants
• Peacemaking from the Ground Up
• Peacemaking from the Bench
• Preparing the Next Generation of Peacemakers: Academic and Court Training Options
• Reentry Programs Using Peacemaking/Peacemaking in Correctional Facilities

To register for the event, click here.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law. Stephanie is especially thankful for her mentors, the Honorable Barbara Smith and the Honorable Michael Smith, who have significantly invested in her and her understanding of the inner-connection between cultural relativity and progress in Indian Country.

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.

Tribes’ Co-Regulator Status Not Sufficient to Negate Ninth Circuit’s General Applicability Standard

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The United States District Court for the Central District of California recently issued an Order a granting a petition by the federal Consumer Financial Protection Bureau (“CFPB”) to enforce its civil investigative demands (“CID’s”) against three tribally owned online lending companies operating on tribal reservations and in doing so followed the Ninth Circuit rule set forth in Federal Power Commission v. Tuscarora Indian Nation (1960) and Donovan v. Coeur d’Alene Tribal Farm (1985) holding that Federal statutes of general applicability, that do not specifically exclude tribes, will apply to Indian tribes, (with certain exceptions noted below).

Each tribal lender provides small dollar loan products, including payday loans, installment loans and lines of credit to nationwide customers who are not tribal members. The District Court granted this Order, but it also granted the lender’s request for a stay pending the lenders’ appeal of the order to the Ninth Circuit.

The CFPB was created by the Consumer Financial Protection Act (the “CFPA”). The CFPB issued the CID’s to obtain information and documents as part of its inquiry into whether these tribal lenders have engaged in unlawful practices. The tribal lenders refused to comply with the CID’s issued by the CFPB because they argued that: (i) the CFPA was not applicable to them because Coeur d’Alene and it progeny were wrongly decided based upon an incorrect interpretation of Tuscarora (to which the District Court said it was not in a position to reconsider the Ninth Circuit’s interpretation of law), (ii) a more recent case, Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000) overrides the Coeur d’Alene rule (with which the District Court disagreed), (iii) only “persons” are subject to investigation and Indian Tribes and arms of Indian tribes are not “persons” within the meaning of the CFPB’s investigative authority to whom the CFPB can issue CID’s (which the District Court rejected), (iv) Indian tribes are explicitly included in the definition of “State” in the CFPA as co-regulators which should be understood as a decision on behalf of Congress to refrain from regulating the tribes because they cannot be both a regulator and regulated (with which the District Court disagreed and stated that Congress does not express an intent to exclude tribes by merely mentioning them as sovereign regulators while remaining silent on whether the unrelated provision at issue is also intended to regulate Indian tribes), and (v) the tribal lenders were not subject to the CID’s because as arms of Indian Tribes, the tribal lenders enjoyed sovereign immunity (which the District Court rejected stating that “(u)nder settled Ninth Circuit Law, tribal sovereign immunity does not bar a suit by a federal agency, even when Congress has not specifically abrogated tribal immunity.”)

The District Court noted that in the Tuscarora case, the Ninth Circuit Court stated that “it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests.” This rule was followed in the Coeur d’Alene case, when the Ninth Circuit Court stated that the Occupational Safety and Health Act was generally applicable, and it therefore applied with equal force to Indian tribes, unless the tribes were specifically excluded. The Coeur d’Alene court did acknowledge three exceptions to its general principle:

A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations . . . .” In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them.

The tribal lenders argued that the third exception applies to them because Indian tribes are mentioned in the CFPA as co-regulators which should be understood as a decision on behalf of Congress to exclude tribes from the CFPA’s applicability because tribes cannot be both a regulator and regulated. However, the District Court disagreed and held that the tribal lenders did not show any proof that Congress intended the CFPA not apply to Indian tribes. Based on this Order issued by the District Court, the Ninth Circuit’s general applicability standard is alive and well.

Sandra L. Shippey is experienced in representing lenders making loans to Native American tribal governments as well as experienced in representing tribes in connection with large commercial loans. Ms. Shippey has more than 25 years of experience representing finance companies, banks and other asset-based lenders and borrowers in connection with all types of traditional credit activities, asset-based financing, mezzanine financing, and other commercial financing. She has significant expertise and experience in the structure, documentation and negotiation of borrowing base working capital facilities, syndicated loans, secured and unsecured credit facilities for acquisitions, as well as traditional loans secured by all types of personal property.

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

Now Accepting Applications for Procopio’s 2015 Native American Internship Program

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 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 a Native American law student, or law student emphasizing Native American Law, 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 attorneys in an active alumni program consisting of judicial clerks, governmental attorneys and associates at law firms. If you are interested in where the past interns are following their summer with the Native American Practice Group at Procopio then you may want to look at last week’s post (Where are they now? 7 and Counting… The Procopio Native American Internship Alumni).

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

Applications are due Friday, October 17th by 5 p.m. PST. We would like a writing sample, law school transcript, resume and cover letter identifying why this is an opportunity you would like to pursue, any tribal governmental experience you have and why Native legal issues are significant to you. The program extends between eight to ten weeks and begins after May 11, 2015. Applications can be emailed to ted.griswold@procopio.com or sent in by mail to: 525 B Street, Suite 2200, San Diego, California, 92101.

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.