BLOGGING ALL OVER THE WORLD IN 2016

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

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016.  Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year.  Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising.  It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for?  The top 10 Blogging Circle articles reviewed in 2016 were:

1. No Dice for California Indian Casinos?

2. Aviation in Indian Country: Seminole Tribe of Florida

3. “What’s Up? Native American Aviation and Airspace”

4. Standing Rock Sioux Water Protectors Win a Battle, But More Battles to Come

5. Pride or Prejudice: Native Regalia and Graduation Ceremonies

6. Bully’s Beware: Tribal Elected Officials CAN be Sued in State Court

7. Indian Tribes May Gain Relief from NLRB Actions

8. Where are they now? 9 and Counting…The Procopio Native American Internship Alumni

9. Increasing the Numbers: Effective Recruitment of Native American Law Students (Guest column)

10. Now Accepting Applications for Procopio’s Summer 2017 Native American Law Internship Program

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year.  Wishing you a happy, safe and prosperous New Year.

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.

IMPROVING BEHAVIORAL HEALTH IN INDIAN COUNTRY

By:  Shelley A. Carder| Senior Counsel | shelley.carder@procopio.com
Ted Griswold | Partner | ted.griswold@procopio.com

Earlier this month, the first-ever Tribal Behavioral Health Agenda (TBHA) was released.  The TBHA is a ground-breaking formal statement recognizing the unique needs of tribal communities concerning behavioral health care and setting forth an agenda to improve the emotional, spiritual, and mental well-being of tribal members.  The TBHA resulted from extensive consultation among tribal leaders, the Substance Abuse and Mental Health Services Administration (SAMHSA), Indian Health Service (IHS), and National Indian Health Board (NIHB).

The TBHA notes that the Native American population experiences a disproportionately high rate of mental health and substance abuse issues.  Adult American Indians and Alaska Natives experienced higher rates of past year mental illness compared with the general population (21.2 percent versus 17.9 percent) and youth ages 12 and older had higher levels of illicit substance use than the general population (22.9 percent versus 17.8 percent) (SAMHSA).  The study also addresses trauma, violence and crime, historical and current, which result from substance abuse.

The TBHA is intended to provide a unified front to battle behavioral health issues, to elevate priorities and strategies to address these challenges and to promote improved national awareness of the specific problems identified facing tribal communities.   SAMHSA’s Principal Deputy Administrator Kana Enomoto said: “This new initiative represents an important step in our government-to-government relationship and gives American Indian and Alaska Native tribes a greater role in determining how to address their behavioral health needs with urgency and respect.”

The TBHA begins with the American Indian and Alaska Native Cultural Wisdom Declaration, which uses historical and cultural context to identify the issues and to set strategies and priorities for improvement.  The agenda emphasizes the role that cultural wisdom and traditional practices must play in order to achieve improvements in mental health and substance abuse issues among the Indian population.  Prevention, support and recovery issues must respect the need to develop unique ideas and models of health and healing interventions within tribal communities. The document recognizes that healing must focus on historical and intergenerational trauma and the need to develop a socio-cultural-ecological approach to addressing behavioral health issues.

The TBHA also acknowledges that the Native American population has traditionally been underserved and that collaborative efforts will be necessary among the tribes, and with state and federal agencies.

Stacy Bohlen, the Executive Director of the National Indian Health Board (NIHB) called the TBHA “.. . a valuable tool and resource to address the critical behavioral health needs we see across Indian Country.”  The TBHA can be used as a helpful starting point for tribal communities to examine their own data to plan meaningful and effective responses to meet their own unique behavioral health needs.

The TBHA reflects a current nationwide behavioral health crisis that is not limited to the Native American community.  SAMHSA reports that as of 2014 one-third of adults with a major depressive episode received no treatment in the previous year.  The National Survey on Drug Use and Health from that same year reported that 21.2 million Americans ages 12 and older needed treatment for an illegal drug or alcohol use problem.  Despite this need, there has been a 90% reduction in the number of available beds in state hospitals, with 20% eliminated in just the past five years. This results in a lack of placement and treatment options for persons with serious mental illness.

We agree with the TBHA that a successful strategy must simultaneously address the increase in behavioral health needs, as well as decreasing capacity to handle these needs.  We look forward to working with Tribal governments to reverse both trends.

Procopio attorneys are experienced in representing and counseling Tribal governments, Tribal corporations, Inter-Tribal organizations and Tribal-affiliated clients in a wide range of legal matters.  In addition, Procopio’s Health Care practice represents many groups comprising the healthcare industry and approaches the unique needs of Indian and Native American Health care with cultural sensitivity and appreciation for issues of sovereign immunity.

Shelley is a member of the Native American Law and Health Care practice groups.  She has more than 25 years’ experience in health care law that include litigation representing physicians, medical staffs and health care entities.  Connect with Shelley at shelley.carder@procopio.com.

 

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.

Standing Rock Sioux water protectors win a battle, but more battles to come

Editorial Credit: NYCStock / Shutterstock.com

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

Yesterday, while many were sipping their Sunday coffee, the U.S. Army Corps of Engineers announced that the Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline (DAPL) to cross under Lake Oahe in North Dakota.  I am sure more than one cup of coffee spilled with elation and disbelief that the Water Protectors at and near the Standing Rock Sioux reservation had achieved a major victory against Dallas-based Energy Transfer Partners (ETP).  (Standing Rock Press release is here, and Corps release is here).

When the Dakota Access Pipeline (DAPL) was originally proposed, the pipeline was to follow an alignment that crossed the Missouri River north of Bismarck,  North Dakota and never approached the Standing Rock lands.  However, when concerns were raised by the Bismarck community regarding water supply threats caused by the pipeline tunneling beneath the City’s water source, the project alignment was revised to the south and west.  The revised alignment crossed through disputed lands which the Standing Rock Sioux claimed were dedicated to their use, and proposed to cross the Missouri River by tunneling beneath Lake Oahe, which is just upstream from the Standing Rock reservation and is the Tribe’s water source.  Crossing beneath the Lake would require that the US Army Corps of Engineers grant an easement to construct and maintain the pipeline.  The proposed alignment could not be completed without the approval of easement, and the easement decision is a discretionary decision by the Department of the Army, meaning that it must undergo environmental review, and the Army is not required to grant the easement.

Earlier this year, with the full knowledge that this critical easement was not approved or in place, ETP began construction of the pipeline along this alternative alignment, crossing the disputed Standing Rock Sioux lands.  This premature construction raised the ire of the nationwide Native American community, leading to thousands of “water protectors” to take up residence in protest, seeking to halt the progress of the pipeline while the easement decision was being considered. The militarized police and private security response to the protests were broadcast first on social media, and ultimately in the mass media.  The restraint and tenacity of the protestors gained international attention and support for the water protectors.  Two messages were being challenged by the Native American and environmental communities—1) Bismarck’s water source was deemed worthy of protection, but the Tribe’s was not, and 2) ETP was not going let details like easements (or cultural heritage sites) affect their project.  The Standing Rock Community did not accept these messages, and the rest is (recent) history.

I understand that the opposition to the DAPL alignment arose from the younger members of the Standing Rock community.  Good for them.  They may need to be around for a while to continue their vigilant efforts.  Make no doubt about it– This is a significant battle victory for the Native American and environmental communities; however, as we have learned in many other efforts to preserve cultural heritage and environmental resources (e.g. our recently completed 16 year battle to protect Gregory Canyon and the San Luis Rey River from a landfill, here), it will likely take battles on many fronts to finally achieve protection of the Standing Rock water source and cultural heritage lands.

The current Corps decision does not negate the possibility of the proposed alignment.  Rather, the Corps’  stated that “[a]lthough we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”  The intention is to consider alternative routes through an Environmental Impact Statement with full public input and analysis.  At the end of this process, there are no guarantees that the same alignment may not be chosen, and with a new administration in January, we will have a president that is financially invested in ETP.  But that is a battle for another day.

 Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.