In a highly unwelcome decision for Native tribes relying on treaties with the U.S. government, write Procopio Native American Law Partner Ted Griswold and legal intern Ariel Jones, the U.S. Supreme Court held recently that the government’s general trust obligation to Navajo Nation does not require the federal government to take affirmative steps to secure water for the Navajo reservation. The tribe is located in a region undergoing a historic drought, and it had argued the U.S. had a legal obligation to assist the tribe obtain much-needed water access.
In the 5-4 decision in Arizona v. Navajo Nation, Justice Brett Kavanaugh opined for the majority that nothing in the text of the 1868 treaty between Navajo Nation and the U.S. creates a “conventional trust relationship” with regards to water. Justice Neil Gorsuch, who not infrequently votes on the side of Tribal nations, made clear in his reproving dissent that nothing about the U.S. relationship with Navajo Nation, or any tribe for that matter, is conventional.
Learn more about the case, and how Ted and Ariel believe the decision not only disregards the principles of federal Indian law but also misunderstands water law, in a new article published by Procopio.
The U.S. Supreme Court made headlines with its decision in Haaland v. Brackeen, a case that has kept all of Indian Country holding its breath in anticipation. In a historic 7-2 decision, the Court upheld the Indian Child Welfare Act (ICWA) in support of tribal sovereignty, although many Tribal attorneys remain concerned.
Procopio Native American Law Partner Ted Griswold and Native American Practice Intern Molly Gunther offer a detailed analysis of the case, what may come next, and what tribes should do now in this timely new article.
Superior Court Judge Sunshine Sykes testifying before the U.S. Senate Judiciary Committee, February 1, 2022 (image courtesy of U.S. Senate Judiciary Committee)
History was made yesterday, May 18, 2022, as the United States Senate voted 51-45 to confirm current Superior Court Judge Sunshine Sykes to serve as a federal district court judge for the U.S. District Court for the Central District of California. Judge Sunshine Sykes (Diné) is a citizen of the Navajo Nation with deeps roots serving Indian Country and California, including serving in numerous roles early in her legal career for California Indian Legal Services, a nonprofit law firm advocating for Tribal sovereignty, self-determination, and Native rights. Since 2013, Judge Sykes has served as Riverside Superior Court judge in Riverside, CA, where she will maintain her federal court chambers.
The United States District Court for the Central District of California is a federal trial court that serves over 19 million people in Southern and Central California. It also serves as a federal forum for dozens of tribes located in Southern and Central California, a state with one of the largest populations of Native Americans and home to over 109 federally-recognized tribes. While Native Americans (American Indians, Alaska Natives, and Native Hawaiians) make up about 2.9 percent of the population in the United States, they comprise of only about 0.2 percent of the more than 1.2 million attorneys in the United States. As a result, this has led to the severe invisibility of Native American attorneys and experiences in the legal profession, an issue being studied and addressed by the National Native American Bar Association and the American Bar Association. Judge Sykes will now join the ranks alongside only four other active Native American judges — all women — serving on the federal bench.
Procopio has followed Judge Sykes’ career for many years and we are proud to recognize and celebrate this monumental achievement for Judge Sykes along with all of Indian Country and the California legal community! We commend President Biden on nominating Judge Sykes and the U.S. Senate for confirming her historic selection. As a member of our Native American Practice Group along with other Native American women attorneys, I am proud of our strong Native women presence and leadership— the future is bright. Future generations will see leaders like Judge Sykes in these positions of impact – making the legal profession and judicial system more respectable, reliable, and attainable for all, including our nation’s first peoples.
Anna Hohag is a citizen of the Bishop Paiute Tribe and a member of Procopio’s Native American Practice Group. Her practice primarily focuses on advising Tribal governments and Tribal entities on a variety of issues including Tribal law and policy development, intergovernmental agreements, board governance, cultural and natural resources, and economic development.
In the recent span of 30 days, the Department of Interior and the Biden Administration announced no less than 7 key policy proposals that can greatly benefit you to provide your Tribe’s input. The following is a brief overview of these moves, with links to the sources. Each of these items will be addressed in more detail here in the future, but for now, you have been informed!
1. JointSecretarialOrder3403
Recognizing that the Interior and USDA will benefit by incorporating Tribal expertise and Indigenous knowledge into Federal land and resources management, the departments are urging Tribes to submit Tribal proposals and ideas on how to best manage the millions of acres of Federal lands and water that were previously owned and managed by Indian Tribes. Last November, the Interior and USDA issued Order No. 3403 a “Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.”
2. TribalTreatyDatabase
In a collaboration between the Interior and Oklahoma State University, USDA is developing and regularly updating a tribal treaty rights database to better understand and fulfill treaty rights obligations. During the 2021 White House Tribal Nations Summit, President Biden announced that the Interior and 16 other federal agencies formally committed to protecting Tribal treaty rights in agency policymaking and regulatory processes, formalized in the “Memorandum of Understanding regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights.” Tribes whose treaties contain federal promises that have gone unperformed are encouraged to contact the USDA Tribal Relations team.
3. BuyIndianActRegulations
The BIA announced new regulations to improve implementation of the Buy Indian Act to promote economic development opportunities in Indian Country. This Act allows the Interior to set aside certain opportunities for Indian-owned and controlled businesses, and seeks to: eliminate barriers to Indian Economic Enterprises (IEEs) from competing on certain construction contracts, expand IEEs’ ability to subcontract construction work consistent with other socio-economic set-aside programs, and give greater preference to IEEs when a deviation from the Buy Indian Act is necessary. These regulations also align with the Indian Health Service providing consistency and streamlining the procurement procedures for Native-owned businesses.
4. IndianAffairsAppealsRegulations
The Interior also announced the forthcoming release of a proposed rule governing Appeals from Administrative Actions at 25 C.F.R. Part 2, to include when and how the Assistant Secretary – Indian Affairs (AS-IA) will take jurisdiction over an Interior Board of Indian Affairs (IBIA) action. Tribes should keep an eye out for these forthcoming updates.
5. Fee to Trust Regulations & Gaming Compact Regulations
On March 28, 2022 the AS-IA announced Tribal consultation sessions regarding draft amendments to the regulations governing both the fee-to-trust process and Class III gaming compacts. The proposed changes to the fee-to-trust regulations at 25 C.F.R. Part 151 are intended to clarify the Secretary’s authority to take land into trust for Tribes, reduce processing time, and establish clear decisions-making criteria, with a special focus on taking land into trust for conservation purposes. The proposed changes would build on Secretary’s Order 3400 re-delegating the authority to review and approve applications to place land into trust to the BIA regional directors. The proposed changes to the Class III gaming compact regulations at 25 C.F.R. Part 293 are intended to provide clarity on the criteria the Interior will consider when deciding whether to approve compacts by clarifying boundaries of allowable topics of negotiation, better defining key terms, and clearly outlining when the Interior must review a gaming compact.
The Department will conduct four virtual consultation sessions between May 9 and May 23 and will accept oral and written comments. Written comments should be submitted to consultation@bia.gov by 11:59 pm ET on Thursday, June 30, 2022.
6. Tribal Water Codes
On April 7, 2022 Secretary Haaland rescinded a nearly 50-year old moratorium on the federal approval of Tribal water codes, restoring Tribal authority to adopt water laws to regulate water use on their own lands. Tribes should keep an eye out for more information on upcoming Tribal consultations on this important issue!
7. Tribal Energy Development Organizations
Finally, the Interior announced its approval of the first ever Tribal Energy Development Organization (TEDO) issued to the Red Lake Band of Chippewa Indians. This makes the Tribe the first to receive such approval and will support the Tribe’s effort to develop renewable energy resources. TEDOs provide an avenue to reclaim Tribal authority by allowing Tribes to enter into and manage energy-related leases, rights-of-way and business agreements without obtaining the burdensome BIA approval for each individual lease, right-of-way, or agreement.
We encourage any Tribes, Tribal Organizations, or Native-Owned Businesses wishing to learn more about these potential opportunities to reach out to one of the many experienced attorneys in the Native American Practice Group here at Procopio. We look forward to working with you and all the potential growth for Tribes under this Indigenous-led team at the Interior and beyond!
Anna Hohag advises Tribal governments and Tribal entities on a wide variety of issues including Native American governance, intergovernmental agreements, natural and cultural resources, environmental and land use issues, housing, education, general welfare, economic development and gaming matters in Indian country. Her practice primarily focuses on Native American governments and tribal land issues, including land and natural resource planning, board governance, and tribal law and policy development.
Procopio’s Native American Law Practice Group is committed to doing its part to empower future leaders in Indian Country by providing paid internships to Native American law students and law students with a strong interest in federal Indian law and/or tribal law. We’re now on the lookout for Summer 2022 candidates.
The Native American Law Internship provides an opportunity for two law students 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.
Many past interns hold leadership positions in law and government, providing an active alumni network for program participants. We remain active with our alumni to mentor and prepare them for success in the legal profession as they grow their careers.
Please join us in identifying qualified legal students within Native American communities that may be interested in being part of this engaging opportunity. Applications are due Friday, October 15th by 5 p.m. PST.
Internship applications should include:
A writing sample
Law school transcript
Resume
Cover letter
The program is ten to twelve weeks and begins after May 15, 2022. Applications should be emailed (with “2022 Summer Internship” in the subject line) to: kerry.patterson@procopio.com or sent via USPS mail to:
Procopio, Cory, Hargreaves & Savitch, LLP Attention: Kerry Patterson 525 B Street, Suite 2200 San Diego, California, 92101
We’re excited to meet this year’s candidates in anticipation of another great year!
Kerry Patterson is head of Procopio’s Native American Law Practice Group. Connect with Kerry at kerry.patterson@procopio.com and 619.515.3295.
Employment law claims have been on the rise as employers grapple with changes in the workforce due to the COVID-19 pandemic. Tribes act as employers in various capacities. Procopio Associate Racheal M. White Hawk has written an article for tribal gaming operators, outlining five tips to help reduce their employment law liability. You can read the article here and contact Racheal at racheal.whitehawk@procopio.com or 619.906.5654 to learn more.
COVID 19, racial injustice and the presidential election were in the forefront in 2020. However, federal and state legislators were also able to tackle longstanding issues such as missing and murdered indigenous peoples, the failure of California agencies to comply with existing repatriation laws, and ensuring support and resources to assist tribal communities during the pandemic. In addition, small, but important, regulatory changes were adopted in 2020 that reduce the burden of maintaining proposed roads in the National Tribal Transportation Facility Inventory and clarify the minimum standards of character for individuals employed in positions involving Indian children. A summary of some of the new laws affecting tribal communities is available on the Procopio website.
Gabriela Magee is an Associate at Procopio and a member of its Native American Law practice group. She focuses her practice on advising tribal clients on a variety of issues regarding governance, environmental permitting, gaming, intergovernmental agreements, cultural resource protection and contracts. As an active member of her tribal government, Gabriela provides a unique perspective to client service in that she has reviewed, selected, and worked with firms for various consulting services for her tribe.
Procopio has a long-standing tradition of providing growth opportunities to the communities we serve. Procopio’s Native American Law 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 two Native American law students 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 Law attorneys in an active alumni program consisting of judicial clerks, governmental attorneys and associates at law firms. Following the internship, we remain active with our alumni to mentor and prepare them for success in the industry.
To learn more about our practice area and the legal issues affecting Native Americans, you may consider subscribing to our blog. You’ll receive up-to-date information relating to law, policy and current events in Indian Country from Procopio attorneys and guest contributors. You can also visit our Native American Law practice area page on Procopio’s website.
Applications for the internship are due Friday, October 30th by 5 p.m. PST. Internship applications should include:
A writing sample
Law school transcript
Resume
Cover letter
The program is ten weeks and begins after May 15, 2021. Applications should be emailed (with “2021 Summer Internship” in the subject line) to: kerry.patterson@procopio.com or sent via USPS mail to:
Procopio, Cory, Hargreaves & Savitch, LLP Attention: Kerry Patterson 525 B Street, Suite 2200 San Diego, California, 92101
Our team looks forward to learning more about you, your interests and adding to our nationwide network of Procopio Alumni throughout Indian Country – please apply today!
Kerry Patterson is the leader of Procopio’s Native American Law Practice Group. Connect with Kerry at kerry.patterson@procopio.com and 619.515.3295.
All of us in Procopio’s Native American Law practice group are proud of Practice Group Leader Kerry Patterson and Of Counsel Glenn Feldman for being recognized by Best Lawyers in America® as top attorneys in 2021 for their work in Native American Law. Only about 5% of U.S. practicing attorneys achieve this honor.
Procopio Partner and Native American Law Practice Group Leader Kerry Patterson
In addition, Glenn was honored as a Best Lawyers “Lawyer of the Year” in Native American Law, a designation only given to a select few attorneys each year. This is the fourth time he has won that “Lawyer of the Year” for Native American law; he’s also been recognized as a “Lawyer of the Year” twice for Gaming Law.
Procopio Of Counsel Glenn Feldman
The Native American Law Practice Group at Procopio is proud to have such excellent and dedicated attorneys representing our clients. They joined 49 other Procopio attorneys recognized by Best Lawyers for 2021. You can learn more about all of them in our press release and enjoy this short video.
I was honored recently to assemble and moderate this panel presentation for the California Lawyers for the Arts virtual symposium, “INTERSECTIONS: Art and Law at the Border.” The symposium addressed complicated and important issues related to the ownership of indigenous cultural items–which are often collected as “art”–and the modern appropriate identification of the nature of indigenous art. I was joined on the panel by Dr. Shasta Gaughen, Tribal Historic Preservation Officer for the Pala Band of Mission Indians, Dr. Ross Frank, UCSD Department of Ethnic Studies, and Johnny Bear Contreras, renowned Kumeyaay artist.
Individuals often mistake cultural artifacts as “art,” and the proprietary interests and culture of indigenous communities often find their way into online markets and auctions, when in fact these items were wrested involuntarily from the communities where they were created. Museums have not always understood the value and cultural context of items in their collection. In addition, within the “art” realm, there is an important distinction between American Indian Art (which is protected by the federal American Indian Arts & Crafts Act) and knock-off art created by importers or tourist shops.
This panel was a conversation among individuals that work to ensure the appropriate use and identification of Native American Art, protect and preserve Native American culture, and create a modern vision of Native American Art. A link to the panel presentation is here. We hope that this inspires conversations regarding the appropriate ownership of indigenous cultural items and the modern conception of indigenous art.
Ted Griswold is a Partner in 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.
Blogging Circle 