Bully’s Beware: Tribal Elected Officials CAN BE Sued in State Court

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

Benedict Cosentino started as table games dealer at the Pechanga Casino. Then he started to notice certain criminal activity on the casino floor during his shifts. He followed company policy and reported it. When he wasn’t dealing cards, he became an external informant to criminal activities to California Department of Justice. His information led to several criminal convictions over a period of years.

You’d think he’d get a promotion, right? Well, not so much.

Four years later, in 2011, he felt he was retaliated against by a Pechanga Gaming Commission official, who had a relationship with some of the people who had been prosecuted because of Cosentino’s information. His gaming license was suspended and ultimately revoked. Because he had a license revoked from another gaming facility, he was unemployable at other tribal gaming enterprises. The economic impact and emotional distress led to the lawsuit, Benedict Cosentino v. Stella Fuller.

Defendants moved to dismiss the case on the basis that the State court lacked subject matter jurisdiction for the case, as all Defendants were elected tribal officials. Cosentino did not sue Pechanga’s Tribal Government or Gaming Commission. Instead he sued certain Gaming Commission Members in their individual capacity. The court decided that retaliation may have occurred (trial court to decide) and that tribal officials cannot retaliate as individuals from their position on the Gaming Commission and hide behind their cloak of sovereign immunity.

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity AND within the scope of their official authority. Super. Ct. No. MCC1300396

This case reaffirms that there is no sovereign immunity for tribal officials who intentionally abuse their authority and act beyond their official scope. When tribal officials “act out of personal interest rather than to benefit the tribe” (Turner v. Martire, (2000) 82 Cal. App. 4^th 1042, 1055.) they will be held accountable – even if they are elected. The case has been allowed to proceed and has been remanded to the state trial court to determine if retaliation occurred.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

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.

Nichole Alex Joins Procopio’s Native American Internship Program

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

Procopio is proud to announce that Nichole “Nikke” Alex, a third year law student at the University of New Mexico School of Law and citizen of the Navajo Nation, as a 2015 recipient of the Procopio Native American Law Internship. The internship began on May 18 and extends for 10 weeks.

“The Procopio Native American Law Internship has become a popular and important tradition as a key element of the firm‘s support of the future Native American Bar, and we are so pleased to welcome Nikke into the program,” said Ted Griswold, Procopio partner and Native American Law practice group leader. “The internship program has become increasingly competitive, with dozens of applications received from around the country. Nikke is an excellent participant for this internship and joins Procopio with an impressive background working on tribal water, natural resource, educational and cultural matters.” Nikke will work on legal issues specific to the Native American governments, business and inter-tribal entities.

Nikke is a student liaison for the New Mexico Bar Association Natural Resources, Energy and Environmental Law Section. Prior to attending law school, she was the Executive Director for the Black Mesa Water Coalition, an environmental non-profit that is dedicated to preserving and protecting Mother Earth and the integrity of Indigenous Peoples’ cultures. She previously worked with the Diné Policy Institute applying Navajo Natural laws, and was an intern with the Tribal Science Council at the US Environmental Protection Agency in Washington DC.

Procopio’s Native American practice group extends the firm’s tradition of giving back to the communities it serves through its summer internship program for Native American law students or law students interested in Native American law. Interns gain hands-on experience dealing with everyday legal issues facing Native American communities. Launched in 2011, Procopio has welcomed 9 interns since its inception. Procopio continues to mentor its former Native American interns helping them create their network of tomorrow’s Native American lawyers. Alumni of the program are found in Alaska, Oklahoma, Arizona, New Mexico, Pennsylvania and California.

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.

Congress Explores Mismanagement of Native American Schools

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

On Thursday, May 14 at 10:30 a.m. EST, the Committee on Education and the Workforce is holding a Congressional Hearing “Examining the Federal Government’s Mismanagement of Native American Schools.” It is in room 2175 of the Rayburn House Office Building in Washington DC.  While it is a bit of a commute to attend from the west coast, people working throughout Indian Country should pay attention that steps are being taken to fix, or at least make more effective, a system that has languished ineffectively for a long time.  It is through effective education that future leaders arise.

There are more than 40,000 students throughout Indian Country in more than 185 Native American schools operated by the federal government. Within the federal government, the Department of Interior (DOI) – the Bureau of Indian Education, (BIE), Bureau of Indian Affairs (BIA), and Deputy Assistant Secretary for Management – and the Department of Education are responsible for ensuring Native American students receive an education comparable to their peers by providing schools with funding, academic support and operational support, as well as overseeing personnel, transportation, and financial management.

William Mendoza, Executive Director, White House Initiative on American Indian and Alaska Native Education, will testify. Mr. Mendoza was integral in the Native youth listening sessions throughout Indian Country last fall focused on students’ educational environments throughout Indian Country.  You can see that post here on the White House Initiative on American Indian and Alaska Native Education (WHIAIANE). We wrote about this outreach in Indian Country in October 2014.

To view a webcast of the Congressional Hearing it can be accessed live here.

To learn more about the hearing, or upcoming hearings, please visit here.

Kevin Washburn, Assistant Secretary – Indian Affairs, is holding an additional tribal consultation session to discuss the American Indian Education Study Group Blueprint for Reform and Secretarial Order 3334 to Restructure the BIE. This meeting will be held Friday, May 15, 9 a.m.- 12 p.m. (local time) at the Isleta Resort and Casino, Seminar Room, 11000 Broadway Boulevard, Southeast, Albuquerque, New Mexico.

The comment period has been extended to May 22, 2015 to submit feedback on the Blueprint for Reform to the BIA.

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.