A Special Night Celebrating the Importance of Family in Indigenous Culture

film festivalIt was our honor at Procopio to co-sponsor the Opening Night at the California’s American Indian and Indigenous Film Festival at Pechanga Casino and Resort. Thank you to Sandy White Hawk and Director Drew Nicholas for sharing the award-winning film “Blood Memory: A Story of Removal and Return.”

This powerful movie highlights the importance of the Indian Child Welfare Act, and has special significance to Procopio’s Native American Practice Group because Sandy is the aunt of one of our attorneys, Racheal White Hawk. Racheal (on the far left in the picture above) served as the moderator for the question and answer session after the screening.

We’d also like to extend a special thank you to our co-sponsor Jamul Casino and the Jamul Indian Village for supporting this screening and allowing us to represent them in their efforts to protect Indian children.

The California Consumer Privacy Act’s Applicability to Tribes and Tribal Gaming Enterprises

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By: Racheal M. White Hawk | Associate | racheal.whitehawk@procopio.com
Elaine F. Harwell | Senior Counsel | elaine.harwell@procopio.com
Theodore Griswold | Partner | ted.griswold@procopio.com

The California Consumer Privacy Act (“CCPA”) is in effect as of January 1, 2020, with consumers being able to make CCPA-related requests to covered businesses. But what does this law mean for tribes in California? Are tribes required to comply with the CCPA? If not, should tribes enact their own privacy laws to promote consumer confidence and look to the CCPA for guidance?

I. THE CCPA

A. General Requirements of the CCPA

The CCPA (California Civil Code §§ 1798.100 to 1798.199) is currently the most comprehensive privacy legislation in the United States, with extensive new compliance requirements and liabilities. In brief, the CCPA grants California residents new rights with respect to the collection of their personal information, including, among other things, the right to be forgotten (deletion of information), the right to opt-out of the sale of their personal information, and the right to know what information a business collects about them.

The CCPA applies generally to for-profit businesses around the world. A “business” under the CCPA is defined as a for-profit “sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.” Cal. Civ. Code § 1798.140. The business must either collect California consumers’ personal information or have such information collected on its behalf, and must determine the purpose and means of processing such information.

Governments generally do not operate for a profit; thus, tribal governments likely do not meet this definition. However, tribal businesses, such as gaming enterprises, may meet this broad definition. Federal circuit courts have held that tribal gaming enterprises are more akin to commercial businesses than governments, albeit in the National Labor Relations Act context. See, e.g., Casino Pauma v. NLRB, 888 F.3d 1066, 1077 (9th Cir. 2018). These courts have so held even though the purpose of the Indian Gaming Regulatory Act (“IGRA”) is to promote strong tribal governments, economic development, and self-sufficiency, and even though IGRA requires that gaming revenue be used for those purposes. See NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537, 553 (6th Cir. 2015). As Justice Sotomayor wrote in her concurring opinion in Michigan v. Bay Mills Indian Community, “tribal gaming operations cannot be understood as mere profit-making ventures that are wholly separate from the Tribes’ core governmental functions” because one of the main goals of IGRA is to “render Tribes more self-sufficient, and better positioned to fund their own sovereign functions.” 572 U.S. 782, 810 (2014) (Sotomayor, J., concurring). Nonetheless, California courts may hold that tribal gaming enterprises are “businesses” under the CCPA given the holding in Casino Pauma by the U.S. Court of Appeals for the Ninth Circuit.

The CCPA also sets threshold requirements for its application, i.e., it will apply to for-profit businesses only if they exceed one of the following thresholds:

  • earn annual gross revenues of $25 million or more;
  • annually buy, sell, receive, or share for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or
  • derive 50 percent or more of their annual revenues from selling consumers’ personal information.

Tribal enterprises should consider whether they meet these thresholds. If a tribal enterprise does not meet any of these three thresholds, the CCPA does not apply.

The term “consumer” is broadly defined under the CCPA to include any California resident. See Cal. Civ. Code § 1798.140(g) (defining “consumer” as any “natural person who is a California resident”). Consumer does not include an employee to the extent the employee’s personal information is collected and used only by the business in the employment context, but this employee exemption will sunset after one year.

A consumer’s “personal information” is broadly defined to include information that identifies, relates to, describes, or could reasonably be linked to a particular consumer or household. Personal information includes, but is not limited to, identifiers such as a person’s real name, mailing address, IP address, email address, biometric information, products/services purchased, geolocation, education and so forth (see here for a full list of personal information). Specifically excluded from the definition of “personal information” is any information publicly available, meaning any information that is lawfully made available from state, federal, or local government records. But “publicly available” does not include biometric information collected by a business about a consumer without the consumer’s knowledge.

B. Enforcement of the CCPA

Under the CCPA, the California Attorney General may bring civil actions for injunctions or civil penalties of up to $2,500 per violation under the statute and up to $7,500 for any intentional violation. A business is in violation of the statute if it fails to cure alleged noncompliance within 30 days after notification of the violation.

The CCPA also includes a limited private right of action for consumers for violations of the statute’s data security requirements. Under the CCPA, businesses have a “duty to implement and maintain reasonable security procedures and practices.” Specifically, a consumer can institute a civil action if nonencrypted or nonredacted personal information is subject to unauthorized access, exfiltration, theft, or disclosure as a result of a business’s failure to maintain reasonable security procedures. Personal information for purposes of this private right of action is defined under California’s data breach notification statute. See Cal. Civil Code § 1798.81.5(d)(1).

II. APPLICATION OF THE CCPA TO TRIBES

A. Tribal Sovereign Immunity

As a general rule, the doctrine of sovereign immunity protects tribes from unconsented suit for governmental and commercial activities both on- and off-reservation, unless Congress has clearly abrogated, or the tribe has expressly waived, sovereign immunity. Tribal entities that are “arms of the tribe” are also protected by sovereign immunity as are tribal officials and employees acting in their official capacities. The CCPA is enforced through a limited private right of action by individual consumers for data security breaches and through civil injunctions and penalties by the California Attorney General. However, tribes and tribal entities, officials, and employees would be subject to such civil actions only if Congress has abrogated tribal sovereign immunity or the tribal entity has waived sovereign immunity. This brings us to Public Law 280.

B. Public Law 280 and Tribal Activities On-Reservation

Public Law 83-280 (“Public Law 280”) is a federal law that was enacted in 1953. Public Law 280 removes federal jurisdiction over Indian country crimes and provides certain states with such jurisdiction. California is a Public Law 280 state, meaning that California has jurisdiction over offenses by or against Indians within Indian country. However, Public Law 280 does not provide California with general regulatory power in Indian country. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 (1987).

Determining whether a law is criminal/prohibitory (and therefore applicable in Indian country) or whether it is civil/regulatory (and therefore not applicable in Indian country) can be difficult. Courts typically look at whether the state prohibits the conduct or merely regulates it. However, even if a law provides for criminal punishment, the law is not necessarily criminal/prohibitory in nature. Id. at 211 (“[T]hat an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of [Public Law 280].”); Middletown Rancheria of Pomo Indians v. WCAB, 60 Cal. App. 4th 1340, 1353 (1998) (finding California’s workers’ compensation laws to be civil/regulatory even though violation of such laws constituted a misdemeanor).

If the state law does not prohibit the activity altogether, it is likely not criminal/prohibitory in nature. See, e.g., Cabazon, 480 U.S. at 211 (“California regulates rather than prohibits gambling in general and bingo in particular.”); Middletown Rancheria of Pomo Indians, 60 Cal. App. 4th at 1353 (holding California workers’ compensation laws inapplicable to tribes, reasoning “California does not prohibit industrial injuries; it regulates them”).

Courts also consider whether the tribal actions threaten a state public interest at issue; however, having a strong state interest does not mean the law is automatically criminal/prohibitory, especially if there are strong federal and tribal interests at stake. For instance, the U.S. Supreme Court has held that California’s interest in preventing the infiltration of organized crime in gaming is not a sufficient state interest to override compelling federal and tribal interests supporting gaming. See Cabazon, 480 U.S. at 221–22. Similarly, the California Court of Appeal has held that workers’ compensation laws do not apply in Indian country under Public Law 280, despite the “strong state interest in ensuring certain and reasonable compensation for workers injured in the course and scope of their employment.” Middletown Rancheria of Pomo Indians, 60 Cal. App. 4th at 1352.

In determining whether state laws apply in Indian country, courts also consider whether the tribe itself regulates the activity at issue. Id. at 1353–55 (citing cases and noting that tribe provided its own workers’ compensation insurance in determining that California workers’ compensation laws do not apply in Indian country).

Here, the CCPA is likely more civil/regulatory than criminal/prohibitory, because it regulates the way in which businesses collect and store personal information; the CCPA does not prohibit businesses from collecting such information altogether.

C. Tribal Activities Off-Reservation

Non-discriminatory state law generally applies to Indians engaging in off-reservation activities. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973). As mentioned above, sovereign immunity generally protects tribes, the arms of tribes, and tribal officials and employees acting in their official capacities. However, tribal officials or employees could be subject to suit for off-reservation conduct that violates the CCPA. See Lewis v. Clarke, 137 S. Ct. 1285, 1288, 1291 (2017); see also Bay Mills Indian Cmty, 572 U.S. at 796.

The Ninth Circuit has shed some light on when online activities are considered on or off Indian lands, albeit in the internet gaming context. The Ninth Circuit has held that if a player places a bet while physically located off Indian lands the underlying gaming is not subject to IGRA even if the server accepting the bet is located on Indian lands. See California v. Iipay Nation of Santa Ysabel, 898 F.3d 960 (9th Cir. 2018).

Regarding the CCPA, online actions that could implicate the CCPA (provided the tribal gaming enterprise meets the threshold requirements discussed above) include a customer signing up on a tribal casino’s website to receive promotional offers or booking a hotel room while the customer is physically located off-reservation and providing “personal information” such as the person’s real name, mailing address, or email address. However, the customer would likely need to exhaust tribal court remedies, as discussed below, before initiating a lawsuit in state or federal court against the tribal gaming enterprise.

D. Service of Process and Exhaustion of Tribal Court Remedies

Service of process under state authority is generally ineffective when serving Indians on Indian lands for conduct that occurred in Indian country. See COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 7.03[1][c], at 609 (Nell Jessup Newton ed., 2012) (citing cases). Thus, a California state court lawsuit served on a tribe or a tribal entity, official, or employee that does not comply with applicable tribal law will typically be deemed invalid if served on Indian lands for conduct that occurred there.

Plaintiffs must also generally exhaust their tribal court remedies before litigating claims against tribes or tribal entities, officials, or employees in state or federal court. See Wilson v. Horton’s Towing, 906 F.3d 773, 777–78 (9th Cir. 2018). To determine whether a plaintiff must exhaust tribal court remedies, the Ninth Circuit reviews whether the plaintiff’s claims bear a direct relationship to tribal lands and whether the events that form the basis of the plaintiff’s claims occurred or were initiated on tribal territory. Id. at 779. Exhaustion of tribal court remedies is required when the plaintiff’s claims are directly tied to events that occurred on Indian lands. Id. If the events did not occur on Indian lands, the court reviews whether (i) there was a consensual relationship between the plaintiff and the tribe or (ii) the plaintiff’s conduct threatens or has a direct effect on the political integrity, economic security, or health or welfare of the tribe. Id. If either of those two conditions is met, tribal court exhaustion might be required. Id.

E. Federal Law

Momentum is increasing nationally for cybersecurity protection. Approximately fourteen states are considering enacting or have enacted privacy and/or cybersecurity laws similar to the CCPA, and a few federal bills have been introduced in Congress. Although the federal government does not yet have an overarching privacy law, some federal departments, such as the Department of Defense, already have cybersecurity rules that contractors must follow. Tribes that contract with such federal government entities may need to follow such rules already.

Nonetheless, a federal law may be passed in the near future that could preempt the CCPA and be similar or stricter than the CCPA. If the federal law is one of general applicability and is silent as to whether it applies to tribes, the courts will likely be left to determine whether the statute applies. Relevant to California tribes, the Ninth Circuit has held that federal statutes of general applicability that are silent as to their applicability to tribes do not apply 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.” Casino Pauma, 888 F.3d at 1076 (cleaned up).

Under the first Casino Pauma factor, applying the CCPA to tribal governmental operations (for instance, the provision of governmental services to tribal members) would likely touch exclusive rights of self-governance in purely intramural affairs. Tribal casinos, however, may have more difficulty arguing that this factor applies given the Ninth Circuit’s ruling in Casino Pauma. There, the court held that because the casino was not acting in its role as a provider of governmental services, but instead was “in virtually every respect a normal commercial enterprise” and employed mostly non-Indians, the casino’s operation free from federal labor law was neither purely intramural nor essential to self-government. Id. at 1077 (cleaned up).

Whether the second Casino Pauma factor would apply will depend upon whether the tribe at issue has a treaty on point. And whether the third Casino Pauma factor would apply will depend on the specific legislative history and or context of the cybersecurity statute that is ultimately enacted.

Overall, although the federal government has not yet enacted a statute regarding cybersecurity, the Ninth Circuit Casino Pauma case may govern the applicability of the law to tribes in California if the statute is one of general applicability and is silent regarding its application to tribes. Under Casino Pauma, such a federal law would apply unless it meets one of the Casino Pauma factors discussed above. Nonetheless, federal agencies may already require tribal contractors to comply with their cybersecurity rules.

III. RECOMMENDATIONS FOR TRIBES AND TRIBAL GAMING ENTERPRISES IN CALIFORNIA

Whether the CCPA applies to tribal businesses is an unresolved question. The law is still evolving, including final regulations due from the Attorney General in 2020, and the courts have not had an opportunity to interpret the law. However, federal law is very likely heading in a direction similar to the CCPA, and tribal officials or employees may be subject to suit under the CCPA for off-reservation activities that violate the CCPA. See Lewis, 137 S. Ct. at 1288, 1291; see also Bay Mills Indian Cmty, 572 U.S. at 796. As such, tribal businesses should consider complying with the CCPA.

Regardless of whether tribal businesses determine that the CCPA applies to them, they should consider doing at least five things now: (1) determining what data (including personal information and sensitive or confidential information) they are collecting, what they are doing with the data (including who they are sharing the data with), and where the data reside; (2) adopting and enacting tribal cybersecurity policies, procedures, and/or laws for the handling of consumer information; (3) providing tribal court remedies for alleged violations of consumer privacy; (4) purchasing insurance coverage for cybersecurity issues; (5) creating policies, procedures, and/or laws regarding how to respond to consumer requests under the CCPA, including for responding to consumer requests for information, subpoenas for information and lawsuits (whether the response is an objection to the CCPA’s applicability or whether the tribe decides to comply with the CCPA). Procopio will continue to follow the CCPA and other privacy and cybersecurity law developments, both at the state and federal levels.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is a federal Indian law attorney with Procopio’s Native American Law Practice Group. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

 

Procopio_Harwell_Elaine_Bio Photo ColorElaine F. Harwell is a senior counsel in Procopio’s Privacy and Cybersecurity Practice Group and a Certified Information Privacy Professional/United States (CIPP/US) through the International Association of Privacy Professionals (IAPP). Connect with Elaine at elaine.harwell@procopio.com and 619.906.5780.

 

Procopio_Griswold_Theodore_Bio PhotoTed Griswold leads Procopio’s Real Estate and Environmental Team, which includes the Native American Law Practice Group. He is the primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Cybersecurity, Sports Betting, Hemp and Child Welfare: 2020 Indian Law Updates

Monument ValleyBy:        Mindy Morton | Partner | mindy.morton@procopio.com
Gabriela Magee | Associate | gabriela.magee@procopio.com
Racheal M. White Hawk | Associate | racheal.whitehawk@procopio.com

Tribes saw significant developments in the laws governing Indian country in 2019. Among those changes was a district court decision dismantling the forty-year-old Indian Child Welfare Act (ICWA), and the development of new business opportunities and regulations in hemp production.

In addition, proposed and recently enacted legislation at the state and federal levels could have significant impacts on tribal gaming and business operations, including the new cybersecurity law in California and a proposed amendment to the Indian Gaming Regulatory Act (IGRA) regarding internet sports wagering. Each of these major changes in the law will continue to evolve as the year 2020 progresses.

A summary of some of these notable developments can be found in an article on the Procopio website.

Procopio_Morton_Mindy_Bio Photo 6064Mindy M. Morton is a Partner at Procopio and a member of its Native American Law, Privacy and Cybersecurity, and Intellectual Property Litigation practices. Her practice focuses on internet and intellectual property litigation. She litigates cutting-edge cases at the intersection of technology and free speech issues. She defends internet companies against defamation, copyright, trademark and related claims on First Amendment, Communications Decency Act Section 230, DMCA and US SPEECH Act grounds. She also helps clients resolve disputes involving trade secret, patent, trademark, copyright, computer fraud and non-compete agreement litigation.

Procopio_Rios_Gabriela_Bio Photo 7122Gabriela 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_White_Hawk_RachealRacheal M. White Hawk is an Associate at Procopio and a member of its Native American Law practice group. An enrolled citizen of the Rosebud Sioux Tribe of South Dakota, Racheal is admitted to practice before the United States Court of Appeals for the Ninth and Fifth Circuits and for all of the state courts of Arizona. She represents tribal governments and businesses in a wide array of legal matters.

Procopio Welcomes Indian Gaming Attorney Glenn Feldman

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Kerry K. Patterson | Partner | kerry.patterson@procopio.com

Glenn Feldman - LinkedInAs we enter a new decade, Procopio’s Native American Practice will be providing enhanced capabilities to assist tribes in economic development activities and tribal governmental functions with the addition of Glenn Feldman, whose Federal Indian Law practice spans over 4 decades. Glenn’s practice is devoted exclusively to Federal Indian Law, with heavy emphasis on tribal governments, Indian gaming and reservation economic development activities, including over $2 billion in casino financing transactions. He provides counsel to a number of Indian tribes, tribal casinos and tribal business ventures in Arizona, California and other western states. Glenn provides decades of experience in drafting tribal codes and ordinances, and negotiating tribal-state gaming compacts in California, Arizona, Wisconsin, Kansas and Oklahoma.

Glenn pioneered the rights of Tribes to develop gaming on Tribal lands and successfully defended this right throughout the southwest. In 1986, Glenn successfully argued the California v. Cabazon Band of Mission Indians case before the United States Supreme Court, which overturned the existing laws restricting gaming on Indian reservations. Congress responded to the Cabazon case by enacting the Indian Gaming Regulatory Act—the federal law which has led to the national proliferation of Tribal gaming enterprises. He has been rated in the Best Lawyers in America since 2005 and four times has been named Lawyer of the Year in Native American Law, Phoenix, including for 2020.

In addition to being a giant in the industry with a ground-breaking history in his law practice, Glenn is one of the warmest persons we could imagine working with. There is a reason his clients have stayed with him for decades—in addition to his productive results, his Tribal clients find him a sage counselor. We are thrilled to be able to work alongside such a giant in the Indian Gaming law industry, and introducing him to Procopio’s Native American Law community.

Glenn can be contacted at glenn.feldman@procopio.com and 619.906.5689, and review his bio on Procopio’s website.

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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.

 

 

Procopio_Patterson_Kerry_Bio Photo 1118Kerry Patterson is a Partner in Procopio’s Native American Practice Group. Connect with Kerry at kerry.patterson@procopio.com and 619.515.3298.

Using Preemptive Actions to Protect Cultural Resources- The Pit River Tribe Thinks Ahead

shutterstock_789723559By: Karli Joseph | Associate | karli.joseph@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On September 19, 2019, the Ninth Circuit ruled in favor of the Pit River Tribe after a decades-long fight against the Bureau of Land Management’s (“BLM”) attempt to renew 26 unproven geothermal leases in Northern California and Nevada. The BLM had issued over three dozen geothermal leases in the Medicine Lake Highlands in the 1980s, at which time there was very little environmental review and no apparent tribal consultation with the Pit River Tribe, for whom the Medicine Lake Highlands are extremely sacred. This may have been because the BLM did not recognize the area as sacred, a condition the Pit River Tribe could clarify for them.

Geothermal leases are created specific to a production site and have an initial ten-year term, after which they can be extended for another forty years if they are shown to be even slightly productive. In this case, only one lease out of 27 was shown to be productive, but BLM had extended the leases for all 27 leases of the application for renewal as part of a “unit plan.” The Ninth Circuit held that the BLM could not automatically approve the unproven leases along with the sole proven lease under the current lease structures. The BLM would need to do a separate environmental analysis under NEPA for each unproven lease before they could be considered as new leases. Since environmental review under NEPA includes analysis of effects on cultural resources, including tribal cultural resources, this is a significant win for the Pit River Tribe as well as the Modoc, Shasta, Karuk, and Wintu who all consider the area sacred.

This case is also instructive regarding the importance of Tribes using the National Historic Preservation Act (“NHPA”) to protect important cultural sites. Here, the Pit River Tribe worked hard to get the entire Medicine Lake Highlands designated a Traditional Cultural District in 1999 during the initial 10 year lease period. The designation highlighted the issue for the BLM and the need for the NEPA review of the unproven geothermal leases, including government-to-government consultation between the Pit River Tribe and BLM. This burden may in fact lead the applicant to abandon these leases and preclude future development of the Medicine Lake Highlands, in order to protect the innumerable cultural resources and overall cultural integrity of the area.

This is a reminder that the NHPA can be used preemptively, if Tribes are able to see that a culturally-important area may be threatened in the future, and prevent that damage from occurring by having the entire area designated under NHPA as a cultural landscape or a cultural district. Having this tool in a Tribes tool chest is important to the preservation and endurance of indigenous culture and history in the United States.

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Karli Joseph is an Associate with Procopio’s Native American Law Practice Group and a member of the Pechanga Band of Luiseño Mission Indians. She is a graduate of the University of California, Los Angeles School of Law.

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

Procopio is Now Accepting Applications for its Summer 2020 Native American Law Internship Program

NOW ACCEPTING APPLICATIONS FOR PROCOPIO_S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAMBy: 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 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 their success in the industry. Our most recent interns, Cole Bauman and Richard Frye, have returned to their final years at Arizona State University and University of California, Los Angeles Law Schools.

To learn more about our practice area and legal issues affecting Native Americans, 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 Tuesday, October 15th by 5 p.m. PDT.

Internship applications should include:

1. A writing sample
2. Law school transcript
3. Resume
4. Cover letter identifying why this is an opportunity you would like to pursue, any tribal governmental experience you have and why Native American legal issues are significant to you.

The program is ten weeks and begins after May 15, 2020. Applications can be emailed to: ted.griswold@procopio.com or sent via USPS mail to:

Procopio, Cory, Hargreaves & Savitch, LLP
Attention: Ted Griswold
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!
Procopio_Griswold_Theodore_Bio PhotoTed 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.

Breaking News: Fifth Circuit Holds ICWA Constitutional, Rejecting Claims that it is Race-Based

mother and children

By: Racheal White Hawk | Associate | Racheal.whitehawk@procopio.com
Richard Frye | Summer Intern | Richard.frye@procopio.com
Ted Griswold | Partner | Ted.griswold@procopio.com

Today, the United States Court of Appeals for the Fifth Circuit announced its decision in the case of Brackeen v. Bernhardt (formerly Brackeen v. Zinke). In Brackeen, seven non-Indian Plaintiffs seeking to adopt Indian children sued the Federal Government alleging that certain provisions of Indian Child Welfare Act of 1978 (“ICWA”) are unconstitutional. The Plaintiffs were joined by the States of Texas, Louisiana, and Indiana. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, and Navajo Nation joined the Federal Government as Intervenor Defendants. In reversing the decision of the United States District Court for the Northern District of Texas, the Fifth Circuit upheld the constitutionality of ICWA, a law enacted to protect Native American families against the removal of their children.

As one of the key rulings in the case, the court held that ICWA is constitutional because ICWA does not violate the Equal Protection Clause. ICWA’s classification of Indian children is based on political, not racial, status, and Congress had a rational basis for enacting ICWA, i.e., to fulfill Congress’ unique obligation toward tribes by protecting the best interests of Indian children and promoting the stability and security of Indian families. In so holding, the court relied on the Supreme Court’s Morton v. Mancari, 417 U.S. 535, 555 (1974), case, which held that Congress’ special relationship with Indian tribes cannot be viewed as racial discrimination, because doing so would jeopardize an entire Title of the United States Code and the Federal Government’s solemn commitment toward Indians.

The court’s other main holdings include that ICWA preempts State law, and does not violate the anti-commandeering doctrine, because ICWA does not regulate States, it regulates private individuals in State court proceedings. Nor does ICWA violate the nondelegation doctrine, because ICWA is an incorporation by Congress of inherent tribal authority to determine tribal membership and regulate domestic relations among tribal members, including Indian children.

ICWA was enacted by Congress to protect Native communities and families against the “abusive practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). In enacting ICWA, Congress recognized that no resource was more vital to the continued existence and integrity of Indian tribes than their children. See 25 U.S.C. § 1901(3). Noting the historical failures of States to recognize the essential tribal relations of Native persons and the cultural and social standards prevailing in Native communities and families, Congress declared the policy of the United States to protect Native children, families, and tribes by establishing minimum Federal standards for the removal of Indian children from their families. See id. at §§ 1901(5), 1902.

For over 40 years, ICWA has been instrumental in protecting the inherent right of tribal governments to protect Indian children and maintain the stability of Indian families, and it will continue to do so with the Fifth Circuit’s ruling today. Procopio supported this effort on a pro bono basis by filing an amicus brief on behalf of Native American women, Indian tribes, Indian health organizations, and other organizations in support of the Tribal and Federal Government Defendants.

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Racheal M. White Hawk (Rosebud Sioux Tribe) is an Associate with Procopio’s Native American Law Practice Group. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

 

Frye HeadshotRichard Frye, a member of the Navajo Nation, is a Summer Intern with Procopio in the Native American Law Practice Group. He is a rising third-year student at the UCLA School of Law, where he has served as Co-President of the Native American Law Students Association and will serve as Co-Editor-in-Chief for the Indigenous Peoples’ Journal of Law, Culture and Resistance.

Procopio_Griswold_Theodore_Bio Photo

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.

Congratulations to Tyler Fish, White House Tribal Advisor

shutterstock_106049372By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

Good things happen to good people. It was with great pleasure that we learned this week that Cherokee Citizen Tyler Fish made a jump from the Department of Interior (working as counsel in the Office of the Assistant Secretary Indian Affairs) directly into the White House to provide first hand input on the Administration’s policies regarding Tribal matters. His official position is Senior Policy Advisor & Tribal Liaison at Executive Office of the President, The White House.

A Marine veteran with a can-do and will-do attitude that knows his way around Washington, Tyler brings the kind of energy that this advocacy position needs. I was pleased to get to know Tyler in his law school days when he applied for our Native American Internship position and we have maintained a connection since then. You do that with people of quality, and I can certainly say that about Tyler. It has been fun to watch his career grow into a place of influence and importance. Looking forward to great things coming from his office. Congratulations Tyler!

You can read more about his designation here and here. Meet Tyler on LinkedIn.

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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.

Perspectives on Reconciliation and San Diego’s 250th Year Anniversary

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By: Richard Frye | Summer Intern | richard.frye@procopio.com

As we enter the month of July, we near another year’s celebration of our nation’s independence from Britain. Independence Day, like many other holidays and celebrations based on the United States’ identity and history, e.g. Thanksgiving, can carry mixed meanings for Native persons. This article is the first of a three-part series which will look at celebrations, commemorations, and holidays from the at-times conflicting viewpoints inherent to being both Native and American, and reflects on the 250th anniversary commemoration of the City of San Diego held this past April on the Port of San Diego. The next article in the series will look back to the June anniversary of the Battle of the Greasy Grass (Battle of the Little Bighorn) and the last article in the series will discuss the 4th of July.

On April 11, 2019, in a celebration on the Port of San Diego, local leaders kicked off the city’s 250th anniversary commemoration, tracing the region’s “history” back to the arrival of the Spanish at San Diego Bay on April 11, 1769. In addition to the fanfare expected to accompany such an event, such as refreshments and entertainment, speeches were delivered by the Chairwoman of the Jamul Indian Village, Erica Pinto, and the Chairwoman of the Manzanita Band of the Kumeyaay Nation, Angela Rayleene Elliott Santos. Chairwoman Pinto educated the group that Cabrillo’s landing was not the beginning of the region’s history, but rather a significant change in the history that had begun thousands of years earlier. Chairwoman Pinto discussed the series of events beginning at contact with European explorers and colonists and continuing through to today, from the perspective of the indigenous Kumeyaay people. The Kumeyaay, along with other Native American people, have called the greater San Diego region home since time immemorial.

The Chairwomen’s decision to participate in the 250th anniversary came as some leaders of the other federally recognized tribes and bands in San Diego County decided against attending. Pulling no punches in her speech, Chairwoman Pinto described her ancestors’ treatment by the Spanish and the United States federal government as “inferior beings” incapable of self-care. Chairwoman Santos described the system put into place by the first governor of California, which for a period, offered and paid a bounty on the heads of the first peoples of California. Chairwoman Pinto explained the disease, starvation, slaughter, systematic discrimination, rape, enslavement, and destruction of the physical environment suffered by the indigenous people, and delivered an honest and sobering account of the area’s full history.

However, Chairwoman Pinto’s look backward in time to the darker aspects of California history was followed by a determined, optimistic message. In a press release given prior to the event, she imparted a positive message to current-day San Diegans. “You are the people who can give us a presence in this Port. This is something that has been missing for a long time now.” While excusing present-day San Diegans from blame for the atrocities of the past, Chairwoman Pinto stressed the importance of moving forward together with recognition and awareness of the area’s history, in order to make sure that the same never happens again.

A large part of healing wounds, especially those that are deep, involves recognizing the damage through an honest and open dialogue. The Chairwomen’s speeches and presence at the event brought a Native perspective to those who might not have otherwise considered what the area’s history means to its original caretakers. In his recent apology to Native persons throughout California on June 18, 2019, Governor Newsom was brave enough to use the G-word (“genocide”) to honestly describe the treatment of Native Americans in California in the 19th century. In response to Newsom, Chairwoman Pinto said, “It’s healing to hear your words, but actions will speak for themselves and I do look forward to hearing more and seeing more of you.” Ultimately, healing involves more than dialogue and recognition of a shared history, but coming to the same table prepared to create a new tomorrow is a good first step.

 

Frye HeadshotRichard Frye, a member of the Navajo Nation, is a Summer Intern with Procopio in the Native American Law Practice Group. He is a rising third-year student at the UCLA School of Law, where he has served as Co-President of the Native American Law Students Association and will serve as Co-Editor-in-Chief for the Indigenous Peoples’ Journal of Law, Culture and Resistance.

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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.

A U.S. Supreme Court Landmark Case Coming in Carpenter V. Murphy or More Time for Legal Gymnastics?

By: Cole Bauman | Summer Intern | cole.bauman@procopio.com

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The U.S. Supreme Court was expected to publish its decision in Carpenter v. Murphy yesterday, but instead scheduled the case for reargument during the Court’s next term. As we mentioned in our post on the Court’s May decision of Herrera v. Wyoming, the Court in Carpenter must decide whether half of Oklahoma has remained an Indian reservation since 1866. More specifically, the question presented in Carpenter is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” under 18 U.S.C. § 1151(a)? Apparently, the Supreme Court needs more time to determine the answer.

Although a rarity for the Court, rearguments have been ordered in the past. Carpenter joins such landmark cases as Brown v. Board of Education (argued in 1952, reargued in 1953), Roe v. Wade (argued in 1971, reargued in 1972), and Citizens United v. Federal Election Commission (argued twice in 2009), among others. Each of these cases caused quite a stir, and in Carpenter, there is a lot at stake.

In 1866, Congress established reservations for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations. These reservations predate Oklahoma’s statehood, which occurred in 1907. In August of 2017, the 10th Circuit held the state of Oklahoma lacks jurisdiction to prosecute Mr. Patrick Dwayne Murphy, a member of the Creek Nation who was convicted of murder in Oklahoma state court, because it found Congress never disestablished the 1866 boundaries of the Creek Nation. When major crimes such as murder are alleged to have occurred within the boundaries of an Indian reservation, the federal government, not the state, has jurisdiction under the Major Crimes Act.

Following its decision, the 10th Circuit denied an en banc rehearing of Carpenter, stating an en banc rehearing is inappropriate when “as here, a panel opinion faithfully applies Supreme Court precedent.” However, Supreme Court review of the decision is complicated due to Justice Gorsuch’s recusal from the case. Gorsuch’s absence has caused an apparent stalemate in the Court which could result in a 4-4 decision, ultimately affirming the 10th Circuit’s holding that the Creek Reservation was never disestablished.  It could be that the conservative court is trying to avoid such a deadlock non-decision.

From the outside looking in, a concern of a status quo result upholding the 10th Circuit appears to be the crux of the delay in deciding Carpenter. In Carpenter, Supreme Court precedent dictates the application of the Solem v. Bartlett reservation diminishment test.  In Solem v. Bartlett, the Supreme Court applied a three-part framework for assessing whether a reservation has been diminished. Under the test, a court must first examine the text of a statute that is believed to disestablish or diminish the reservation. Second, the court must consider the events surrounding the passage of the statute. Third, the court must consider, to a lesser extent, the events that occurred after the passage of the statute. The 10th Circuit’s application of this test found Congress had not disestablished the Creek Reservation.

The Supreme Court would require some very creative legal gymnastics to avoid agreeing with the 10th Circuit’s application of the Solem v. Bartlett test. Certainly, the refusal to issue an opinion this term is telling. The Court previewed its quandary on December 4th, 2018, one week following the oral arguments for Carpenter, when the Supreme Court requested additional briefing on the matter, asking for answers to two questions: (1) whether any statute grants Oklahoma jurisdiction over crimes committed by Indians, irrespective of the reservation status of the land, and (2) whether land can be part of an Indian reservation but not considered Indian country under 18 U.S.C. § 1151(a). The request indicates the Supreme Court was searching for a way to resolve the case in favor of Carpenter without overturning its own precedent in deciding how and when reservation diminishment occurs. The order for reargument indicates such a solution did not materialize.

The Supreme Court is right to carefully consider the ramifications of upholding the 10th Circuit’s decision, but setting the Solem v. Barlett test aside or finding a loophole to avoid addressing the question of diminishment would be a crushing blow to Native American treaty rights and tribal sovereignty. It would demonstrate that the Supreme Court is willing to set aside the foundations of federal Indian law and usurp the role of Congress to avoid what it sees as inconvenient jurisdictional results. Perhaps more unsettling, though, it would display a prejudicial belief by the justices that Indian nations are unfit to possess such jurisdiction.

For updates on Carpenter v. Murphy when the Supreme Court reconvenes next term, subscribe to Bloggingcircle.

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Cole Bauman is a Procopio Summer Intern and a member of the Red Cliff Band of Lake Superior Chippewa.  He recently completed his second year at the Sandra Day O’Connor College of Law at Arizona State University, where he served on the Executive Board of the ASU Moot Court.

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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.