Pope Francis Affirms the Importance of Indigenous Consultation in Indian Country

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

On May 24, 2015, Pope Francis released his encyclical on the environment and the need for meaningful climate action. However, his official letter is not just about impact from climate change. It was also about inclusion. The 192-page document focuses on Indigenous Peoples’ rights to land and culture with the Pope proclaiming that Indigenous Peoples’ “should be principle dialogue partners, especially when large projects affecting their land are proposed.”

This idea of dialogue with Indigenous Peoples prior to development is not new. In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The UNDRIP is a declaration among countries on how Indigenous Peoples should be treated and sets out how countries and their governments should respect human rights of Indigenous Peoples. One of the important topics of the UNDRIP is the right to Free, Prior and Informed Consent. Article 32 of the UNDRIP reads, “States shall consult and cooperate in good faith [emphasis added] with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources.”

President Obama, in December 2010, announced the United States’ support for the UNDRIP, but the United States Congress has yet to ratify it. Although the UNDRIP is not legally binding, it lays out pivotal human rights norms of Indigenous Peoples. This is critical for Indigenous Peoples. Free, Prior and Informed Consent means that Indigenous Peoples have the right to be consulted with and can make decisions on any matter that may affect their communities like mining, fracking, or water development projects.

Everyday Indigenous Peoples are fighting mineral development in their communities and, in many instances, were never consulted prior to development. For example, the San Carlos Apache Tribe has been fighting a land grab of Oak Flat – a sacred site – for copper mining. The reservation was originally set aside and protected through an Executive Order by President Eisenhower in 1955. For the past 13 years, the Apaches halted Rio Tinto and BHP Billiton from mining until December 2014 when John McCain and Jeff Flake (R-Ariz) snuck a provision into a must-past military funding bill that essentially gave Oak Flat to an Australian-British mining company. Sneaking a provision in a military appropriations bill does not amount to Informed Consent. And, this is San Carlos Apache land!

This is not the first time Arizona senators have been tied to abuse of natural resources on Indigenous lands. In 2012, McCain and John Kyl (R-Ariz) tried to push through the Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012 to ensure Arizona had water for mining to produce energy for southern Arizona cities and, ultimately, tried to force the Navajo and Hopi to waive their priority water rights. McCain even tried to ensure the Navajo Nation President and Council that they were negotiating in “good faith” of the Nation.

The Pope’s encyclical states, “For [Indigenous Peoples], land is not a commodity but rather a gift from God and from their ancestors who rest there, a sacred space with which they need to interact if they are to maintain their identity and values. When they remain on their land, they themselves care for it best.” The notion of Free, Prior and Informed Consent is basic. If a project is happening on your land, shouldn’t you be notified before it begins? This notice is critical, so Indigenous Peoples can exercise self-determination to decide what is best for their community and future generations.

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke was the former Executive Director of the Black Mesa Water Coalition, an environmental justice non-profit that worked to replace coal-fired power plants with renewable energy. Nikke is a recipient of the 2015 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.

Sustainable Economic Development in Indian Country

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

Today, in mainstream media, the only economic ventures that people see Tribal Governments pursuing are mega gaming and mineral resource extraction. While many Tribes are engaging in both ventures, many other Tribes are not. Unemployment rates are very high in Indian Country. On average, the unemployment rate on reservations varies from 40% to 90%. Factors contributing to these high rates of unemployment include the isolation of Tribal communities plus the sparse education opportunities.

Creative programs are needed to help young Native people think outside the box beyond these two common economic ventures. In Southern California, one Native youth program has done just that. The American Indian Recruitment (AIR) Program promotes higher education and success in academics in American Indian communities. This past spring, AIR’s Leaders Project in partnership with the Tribal Learning Community & Educational Exchange Program offered a course to high school students entitled “Economic Development in Indian Country.” The course explored the pros and cons of various economic development strategies being used throughout Indian Country and the implications those strategies have on Tribal sovereignty.

As a part of the course, the high school participants were tasked with developing feasibility studies for a potential business in their Tribal communities. Dr. Joe Graham instructed his students to choose projects that reflected community values and their cultures. If Native People focus on their passions and community cultural wealth, then an economic venture is more likely to be sustainable.

On June 11, the students presented their completed feasibility studies at Hewlett-Packard in San Diego, CA. The students’ presentations were very thorough and well thought-out. Of the six presentations, the potential businesses ranged from implementing solar energy to starting a culturally-based hotel to creating a market that sells produce from local farms and gardens. Each of these proposals addressed a specific need of the students’ home Tribal Government. These particular presentations stuck out, because these are all examples of green business ventures.

Perhaps Tribal leaders should begin thinking outside the box as well. The opportunities for green business ventures are limitless. Tribal Governments can implement solar and wind, retrofitting programs, farmers’ markets, and artisans’ cooperatives. The transition to green business ventures promotes community and cultural values while conserving land, water, and air for future generations.

The transition to a green energy economy is becoming more realistic for Tribes. On July 13, Senator Martin Heinrich (D-NM) and Congressman Raúl M. Grijalva (AZ) introduced the Tribal Tax Incentive for Renewable Energy Act. This Act would allow Tribal Governments to take advantage of federal renewable energy tax credits, and, ultimately, these tax incentives would allow Tribes to exert their energy autonomy. Federal incentives like this Act could create more job opportunities, so young Native People can delve into the green energy economy. Looks like these forward-thinking AIR Leaders are headed in the right direction!

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke has worked with Indigenous youth throughout the world developing leadership pathway programs that value and reflect sustainability. Nikke is a recipient of the 2015 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.

Navigating the Marijuana Minefield in Indian Country

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

Yes, marijuana in Indian Country is illegal. You can get raided. Ask the Alturas Indian Rancheria and the Pit River Tribe in California. They were both raided by the Bureau of Indian Affairs (BIA) and the Drug Enforcement Administration (DEA) earlier this week. The agencies seized more than 12,000 marijuana plants and 100 pounds of processed marijuana.

In the raid they didn’t take tribal property, and there aren’t any federal charges pending. That seems like a pretty good day in Indian Country. I guess if you are the foreign national who put up all the cash to grow the plants, then you are likely pretty angry that the BIA and DEA have all of your profit in evidence bags across town. But, for the tribal government I would think that you may start thinking about bringing back your event center and closing up the cultivation shop.

The US Attorney’s Office consulted with members and representatives of both tribal governments on multiple occasions, and reminded the tribal governments that the cultivation of marijuana is still illegal under federal law and that anyone engaging in such activity did so at the risk of enforcement action. Usually raids are less consultative and more kick-in-the-door-this-is-going-down.

One of the major misconceptions in Indian Country right now is about prosecutorial discretion. It is just that…discretion.  And it can change like the winds.  Or like political parties change.  So just how much do tribal governments want to invest in social, political and financial capital?

According to the US Attorney’s office, the search warrants and seizures are part of an ongoing investigation relating to the financing and management of the commercial marijuana-cultivation projects. The concerns that led to the investigation were not disclosed. So is this about growing marijuana? Or about business dealings?

Here, according to search warrant affidavits, the investigation indicates that operations may have been financed by a third-party foreign national. And that leads us to another important question. Who are we choosing to do business with in Indian Country? Where are the profits going? And is this going to bring additional scrutiny in the form of prosecutorial discretion raiding tribal businesses and lands?

Or is this about the size of the operation? The US Attorney’s Office emphasized that large-scale commercial marijuana grows on tribal lands have the potential to introduce quantities of marijuana in a manner that violates federal law, is not consistent with California’s Compassionate Use Act, and undermines locally enacted marijuana regulations. Would this raid have occurred if the operation was more moderate?

So, what lessons did we learn?

Marijuana is still illegal in Indian Country. And, if tribal governments are going to pursue this as an economic development diversification strategy, then they should be mindful of the consultative conversations with the DEA and BIA which are required under the prosecutorial discretion and know who is involved in financing their start-up capital. It matters.

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.

Stephanie is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues.

The Struggle to Protect Against Cultural Genocide

By: Anna Hohag | Intern | anna.hohag@procopio.com
Theodore J. Griswold
| Partner | ted.griswold@procopio.com

The United States has enacted laws that aim to protect the integrity of Indian arts and artifacts through multiple laws including the Indian Arts and Crafts Act (IACA), the Native American Graves Repatriation Act (NAGPRA), and the Bald and Golden Eagle Protection Act. Unfortunately, some things within the United States boundaries and more often on the international art market, these laws become ineffective and need to be strengthened.

The Act of 1990 is a truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. Through this law, it is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian-produced, an Indian product, or the product of a particular Indian or Indian Tribe or Indian arts and crafts organization, resident within the United States. The purpose of the IACA is to protect both the consumer and the Indian artisan from disingenuous merchants looking to make a profit off of the misrepresentation of Native art. Examples of traditional items frequently copied by non-Indians include Indian style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing. These copied items are often cheaply made knock offs whose retailer sells as authentic Indian art. Then IACA was intended to instill integrity back into the Indian art market and discourage falsely advertised products.

This law helps create a space in the US market for Indian artisans to compete by showcasing not only their artistry, but also their culture. And who better to showcase Native culture than, you guessed it, an actual Native American person.

However, The IACA does not always work as intended. Recently, a Federal Court in Illinois dismissed a claim brought under the IACA for lack of standing. The claim was brought by Native American Arts, Inc., an Indian owned business that sells Indian arts and crafts, alleging that Peter Stone Jewelry International, an international jewelry wholesaler, sold knock-off Indian jewelry entitled the Wolfwalker Collection. Peter Stone advertised the Wolfwalker collection as “Authentic Native American Jewelry” and “Native American Designed” at tradeshows and on their website, although the designer, Wendy Whiteman, was not “Indian” as defined in the IACA. It was even apparent that the jewelry was mass-produced as each had a sticker on them reading “Made in Thailand.”

Under the IACA, an Indian is defined as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. Whiteman was none of these. Still, the federal court dismissed the case, reasoning that Whiteman’s statement that she chose her Wolfwalker name because her “spiritual roots are Native American” was “perfectly consistent with” being Native American. I don’t know where else you can get away with such a blanket definition of “Indian.” Like others recently in the media, the judge did not recognize the fallacy of such “spiritual ethnicity.”

With the reasoning the court uses here, anyone can be Indian. In fact, it would completely void the intent of the IACA when it intentionally created a definition of “Indian” as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. By that same reasoning, what stops any foreigner from coming into the United States and claiming that their “spiritual roots” are in America and therefore they should be considered American citizens?

Even more worrisome is the international market on Indian arts and crafts. What might be viewed to one person as a simple arts and crafts object readily available for sale and trade, may to a tribe be much more significant than that, and potentially taboo to be traded. For instance, a Paris auction house is in the news for refusing to stop selling Native American masks. Even after widespread condemnation from the U.S government and others since 2013 for selling Native American artifacts to buyers around the world, the Drouot auction house has instead increased its auctions of the items. If that wasn’t worse enough, French auctioneer Alain Leroy justifies the auctions, arguing that “it’s legal” and that “the tribes are shocked, yes. But to each his own morality.” By Leroy’s reasoning, these type of French auctioneers believe tribes should actually be grateful the French elite who have bought and removed these sacred, forbidden artifacts, “safeguarding” them in private ownership. For that, Leroy believes they “deserve some respect.”


The Tribes, their thousands of years of culture, and their Indian artisans are what deserves respect. Isn’t it they who deserve to be safeguarded from these profit seeking merchants and auction houses from exploiting their art and sacred objects? Some even argue that this is a form of cultural genocide.

Anna is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, CA. She is entering her second year of law school at the James E. Rogers College of Law at The University of Arizona. She is a Board Member on the California Indian Law Association and the 2015-2016 National Native American Law Students Association Area 1 Representative. Before attending law school she worked for the Pala Band of Mission Indians as the Tribal Liaison. Anna is a recipient of the 2015 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.