THE SUPREME COURT’S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

THE SUPREME COURT_S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

By:  Aaron Fournier | Intern | aaron.fournier@procopio.com
Summer Carmack | Intern | summer.carmack@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Ninth Circuit ruled in favor of Tribes and their treaty and water rights in two separate and significant cases last year and, as expected, both cases were appealed to the U.S. Supreme Court. Last November we posted (see post here) about one of these cases, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Court upheld the Ninth Circuit’s decision by denying certiorari. Earlier this month (on June 11, 2018) the Court affirmed the other Ninth Circuit decision, United States v. Washington (9th Cir. 2017) 853 F.3d 946, with a split 4-4 opinion (see the Court’s opinion here). Both decisions affirm water and treaty rights of tribes and establish tribes as key decision makers in the water use context.

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District the Ninth Circuit (and later the Supreme Court, which concurred by declining to hear the case) held that the federal “reserved rights” doctrine for water, as established in Winters v. United States, 207 U.S. 564 (1908), applies to both surface water and groundwater. Agua Caliente also affirms that (1) the application of the “’primary-secondary use’ distinction” from United States v. New Mexico, 438 U.S. 696 (1978) is appropriate when determining “how much water is reserved” and does not infer a deferral to state water law on the part of Congress (849 F.3d 1262, 1268-70 (emphasis in original)); (2) because the Tribe’s water rights are federally-reserved, they cannot be lost through non-use; and (3) the Tribe has reserved water rights if the “water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.” (Id. at 1272). Therefore, because the Agua Caliente reservation was established for “the permanent use and occupancy of the Mission Indians[,]” that purpose could only be fulfilled if the rights to the groundwater underlying the reservation were granted appurtenant to the reservation land. Id. at 1265 (quoting Exec. Order of May 15, 1876).

In United States v. Washington, the Ninth Circuit held that a treaty guaranteeing tribes the continued right to gather fish from rivers was violated by the state’s installation and lack of maintenance of culverts along these rivers. The Tribe argued that the culverts were decreasing the amount of fish in the rivers by impeding the movement of the fish, thereby depriving them of their treaty rights, while the state argued that the treaty did not guarantee there would be fish in the river. The Ninth Circuit held that the Tribe’s belief that an adequate amount of fish would be available to them in the rivers, though not explicit in the treaty, was reasonable and the state violated the treaty by building culverts that prevented the fish from freely moving up and down the river. The Supreme Court let this decision stand through affirmation by an equally divided court.

Both decisions increase the likelihood of tribes being invited to the table when project and land use decisions affecting water are made by state, county, and city governments. The two cases help establish tribes as essential partners for local governments by affirming that tribes have a vested interest in making land use decisions. The Court has implicitly supported tribal water and treaty rights two times this term. This could be the beginning of a new era of federal support for tribal treaty rights, which is something others have noticed (see Culverts Win May Indicate A New Era For Tribal Treaty Rights here). Regardless, these decisions provide notice to state and local governments that tribes should be included in discussions regarding decisions affecting water use both above and below the ground. It will be interesting to follow the next two phases of litigation in the series of three for Agua Caliente, whether the tribe (1) owns the beneficial interest in the groundwater aquifer beneath its reservation; (2) is entitled to water of a certain quality, in addition to quantity; and (3) the quantity of groundwater rights the Tribe is entitled to put to use.

Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law. He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs. Aaron is a recipient of the 2018 Procopio Native American Law Student Internship.

Summer Carmack is a rising 3L at University of Montana’s Alexander Blewett III  School of Law, where she is an American Indian Law Certificate student focusing her studies in tribal economic development, sovereignty and natural resources.  She is on staff of the Public Land and Resources Law Review.  Summer is a recipient of the 2018 Procopio Native American Law Student Internship.

Ted GriswoldTed 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.

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

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

In a move that is supported by many Tribal practitioners, the Tribal Court-State Court Forum is recommending an amendment to the California Rules of the Court, Rule 9.40, to waive the requirement that out-of-state counsel appear pro hac vice for the purposes of representing Tribes in Indian Child Welfare Act (ICWA) cases in California.  This proposed move is important for two reasons in California:

  1. California has an extraordinarily high number of appeals of ICWA cases, particularly by Tribes, indicating that at the initial decision level Tribal Governments are often not well represented in ICWA cases.
  2. In addition, California cities were destinations for many of the removal efforts of the federal government in the 20th century when families and children of Tribal communities were removed from reservations in assimilation efforts. As a result, there are a high number of Native American individuals in California whose heritage derives from tribes outside of the state.

A combination of these two factors has raised common concerns for the ability of Indian Children and their Tribal interests to receive proper protection under ICWA and the barriers to out-of-state Tribes’ representation in ICWA cases in the State of California.  The proposal partially stems from a California ICWA Compliance Task Force presentation to California Attorney General Xavier Becerra, which highlighted the problems associated with representation for out-of-state Tribes and recommended the revision for pro hac vice rules.  Review of the rules can be found here.  Comments regarding the proposed rule change, due by June 8, 2018, may be submitted to the Judicial Council of California by clicking here.  If adopted, the revised rule would take effect January 1, 2019.   The Judicial Council’s invitation to comment and additional information can be found here.

Ted GriswoldTed Griswold 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.

Nyaiwait Chiwayp / In Our Words: Kumeyaay–Songs of Knowledge

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

This forum is provided to share news and ideas affecting Native American Communities. A large part of that effort is helping to facilitate increased cultural understanding of those Native communities, past and present.

In this vein, Procopio is proud and honored to sponsor Nyaiwait Chiwayp / In Our Words:  Kumeyaay, the San Diego History Center’s 2018 yearlong speaker series from the Kumeyaay Community which demonstrates and discusses the richness of Kumeyaay culture and history, from the Kumeyaay people themselves.

The second program in the series—Songs of Knowledge:  Kumeyaay Song Cycles—will be presented on April 4 from 5:30-8:30 p.m. at the Atrium/Thornton Theater (1649 El Prado, Balboa Park, San Diego). Advanced registration is required (the first presentation sold out!), and can obtained here. Should you be unable to attend, check back to this post, as we will be posting the video of each presentation on The Blogging Circle.

The first lecture, California Creation Myth: The fabrication of a mythical past and its impacts on the Kumeyaay Story, was presented by Michael Connolly Miskwish, M.A., and Theresa Gregor, Ph.D in February. That presentation can be found here. Stay tuned for additional presentations throughout the year!

Ted Griswold

Ted Griswold is head of Procopio’s Native American Law practice group and primary editor for the Blogging Circle. Procopio provides legal counsel to tribal governments and businesses. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Native Women are #NotInvisible

Free to Thrive sunsetBy:  Heather Torres | Law Fellow | torres@tlpi.org
Jamie Quient | Managing Attorney | jamie@freetothrive.org
Ted Griswold | Partner | ted.griswold@procopio.com

This fall the U.S. Senate Committee on Indian Affairs heard testimony on S. 1942 – Savanna’s Act, a bill introduced by U.S. Senator Heidi Heitkamp (D-ND) directing the U.S. Attorney General to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered American Indians, and aiming to increase the response to violence perpetuated in Native communities by improving coordination and communication among Federal, State, Tribal, and local law enforcement agencies. The bill’s namesake, Savanna La-Fontaine-Greywind, was murdered in August 2017 when she was eight months pregnant.

Unfortunately, the violence displayed in Savanna’s murder plagues other indigenous women. Eighty-four percent of Native women have experienced violence in their lifetime. On some reservations, indigenous women are murdered at rates ten times the national average. Indigenous women are going missing and being murdered at alarming rates in both the United States and Canada. Senator Heitkamp talked with experts and advocates dedicated to end the violence against Native women in a recent episode of her podcast “The Hotdish” and launched a social media campaign #NotInvisible to keep the issue in public consciousness.

Recently, efforts to combat the epidemic of missing and murdered indigenous women have focused in on anti-trafficking initiatives. Human trafficking involves the exploitation of a person typically through force, fraud, or coercion for such purposes as forced labor, commercial sex, or involuntary servitude. The two primary types of human trafficking are sex trafficking and labor trafficking. Looking locally, a 2015 research study out of the University of San Diego found that in the last eight years, an estimated 1,766 sex trafficking victims have had contact with San Diego law enforcement each year, and an additional 120 domestic violence cases involved suspected sex trafficking. Moreover, a labor trafficking study in 2012 estimated there are nearly 40,000 victims of labor trafficking in San Diego County.

The numbers for American Indian or Alaska Native victims are harder to collect and share as discussed in two U.S. Government Accountability Office (GAO) Reports released this year: 1. Human Trafficking: Action Needed to Identify the Number of Native American Victims Receiving Federally-funded Services, and 2. Human Trafficking: Information on Cases in Indian Country or that Involved Native Americans.  The reports also revealed that barriers to victim reporting and participation in investigation include shame and risk of persecution of the victim.

Organizations like Free to Thrive help alleviate some of those barriers. Free to Thrive works with trafficking survivors to resolve legal issues and connects them to social, medical, and mental health services through the Free to Thrive Legal Clinic.  Procopio supports Free to Thrive and its clients by providing the organization donated office space and equipment and representing Free to Thrive clients pro bono.

Tribal Nations and organizations are also doing important work to protect trafficking victims. Just this year, the Navajo Nation passed anti-trafficking legislation, amending their criminal code. Tribal Coalitions work to increase awareness of domestic violence and sexual assault, including sex trafficking and stalking, and provide technical assistance to coalition membership. In California, Strong Hearted Native Women’s Coalition, works with nine tribes in North San Diego County. For more information on Tribal Coalitions and other sex trafficking in Indian country resources, visit www.tribaltrafficking.org.

Though the fight to protect indigenous women continues, advocates are making strides in providing needed services to trafficking victims and raising awareness to ensure that efforts to combat the epidemic of missing and murdered indigenous women do not fade.

Heather Torres (San Ildefonso Pueblo, Navajo) is a Procopio Native American Intern from 2016. Currently, she is a UC President’s Public Service Law Fellow for the Tribal Law and Policy Institute in West Hollywood.

Quient thumbnail Jamie Quient is President and Managing Attorney of Free to Thrive, a nonprofit organization that empowers human trafficking survivors to be free from exploitation and thrive by providing them with legal services and other support.  Prior to launching Free to Thrive, she practiced civil litigation at Procopio.

 

Ted Griswold Ted Griswold 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.

Tribal Casinos, Have You Registered Your Machines?

shutterstock_760722913By: Gabriela Rios | Associate | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In the midst of the year-end rush, and planning for holidays, it is easy for tribal gaming enterprises to overlook another annual rite for the month of December—compliance with the Johnson Act.

The Johnson Act, 15 U.S.C. §§ 1171-1178, prohibits the manufacture, possession, use, sale, or transportation of any “gambling device” in the District of Columbia, and any possession in the United States and in Indian Country. The Indian Gaming Regulatory Act (IGRA) created an exemption to this prohibition for tribes with a tribal-state gaming compact in effect.

The exemption does not apply to the registration requirements. Therefore tribes that want to manufacture, repair, recondition, buy, sell, lease, use or make gambling devices available for use by others, must register the gambling devices with the U.S. Department of Justice every year. The Request for Registration must be submitted between December 1st and December 31st each year. It can be submitted via email to oracle.grs@usdoj.gov.

The Johnson Act also requires certain records to be maintained for five years containing the gambling devices owned, repaired, leased, used, etc. including the serial number associated with the gambling device, manufacturer, and date of manufacture.

The annual registration is a simple, but important process to remember every year.

Now back to your holiday preparations!

Gabriela Rios -LJR_2938

Gabriela is an associate with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is a member of the State Bar of California.

Ted GriswoldTed 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.

UPDATE: U.S. Supreme Court Denies Cert. in Indian Reserved Groundwater Rights Case

shutterstock_371332990By:      Ted Griswold | Partner | ted.griswold@procopio.com

The U.S. Supreme Court today (November 27, 2017) upheld a key decision affecting Native American tribal rights. Last March, we posted regarding the remarkable Ninth Circuit decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Ninth Circuit affirmed that the federal “reserved rights” doctrine for water established in the seminal case of Winters v. United States, 207 U.S. 564 (1908), applies to groundwater (see here). As expected, the case was appealed to the U.S. Supreme Court by the defendant water agencies; the High Court has declined to hear the case, however, and that denial of certiorari upholds the Appellate Court’s determination that the Winters doctrine applies to groundwater on Tribal Reservations.

The Winters doctrine states that when the United States established a reservation for Tribal purposes, it impliedly included with that reservation “a reserved water right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.” (Cappaert v. United States, 426 U.S. 128, 138 (1976)). Attorneys for Agua Caliente Band successfully argued that the Winters doctrine is based on the reservation’s need for water, and not whether that water occurs above or below the surface of the land. This position was consistent with a majority of district court cases considering the matter; however, this is the first appellate decision to confirm the applicability to ground water. The Agua Caliente reservation is one of several western Indian reservations established in desert areas, with little surface water flow.

With the Winters reserved ground water rights confirmed for Agua Caliente, the District Court case will move forward with the next two phases: (1) whether the reserved water right includes the right to maintain the quality of the groundwater, and (2) the quantity of groundwater that was reserved. The former issue–the protection of water quality of reserved water rights–emanates from the Tribal concerns that the groundwater aquifer, which is also used by the Desert Water Agencies, has been degraded by the Agencies through over use and recharge activities. If successful in establishing their ability to protect the quality of the water, Agua Caliente could seek compensation for the damage to its water source. Like most water law cases, that decision may not come quickly.

Ted Griswold

Ted Griswold 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.

More Appreciation Needed in Graduation Ceremonies

More Appreciation Needed in Graduation CeremoniesBy: Gabriela Rios | Associate | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On October 15, 2017, Governor Brown vetoed Assembly Bill 233, which would have guaranteed students the right to wear religious, ceremonial, or cultural adornments at school graduation ceremonies.  In his veto message Governor Brown stated that “Students have a well-established right to express their views through symbolic acts under the state Education Code and the Free Speech Clause of the First Amendment.”  He went on to say in the event of a dispute, “those closest to the problem — principals and democratically elected school boards – are in the best position to make wise judgments.”

However, as noted in this blog in Appreciating Diversity in Graduation Ceremonies, those “wise judgments” often result in students being routinely prevented by school principals and school boards from wearing eagle feathers and other religious, ceremonial and cultural adornments at their graduation ceremonies.  In many cases to actually enjoy this “well-established right”, students have had to sue their school districts to establish the validity of their symbols.

While it is a positive note that the Governor specifically recognized a student’s right to express their views under the State Education Code and the First Amendment, he failed to recognize that the acknowledgment of a major accomplishment with a traditional symbol of honor does not merely express a “view”, rather, it is the symbol of a culture (indigenous) succeeding in the context of another culture (public education).  Refusing to allow such adornments by individual principals or school districts harkens back to assimilation policies, whether intentional or not.  It would be helpful for the Governor’s Office to follow up its veto statement with an education to school districts regarding the nature and purpose of cultural adornments, lest they continue to lump such requests with protests, as potentially disruptive exercises of free speech.

We encourage native students to continue to push for their right to wear religious, cultural and ceremonial regalia and adornments at their graduation ceremonies and celebrate organizations such as the California Indian Legal Services that have fought, and will no doubt continue to fight, for this important right for graduating students.

Gabriela Rios -LJR_2938Gabriela is an associate with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is a member of the State Bar of California.

Ted GriswoldTed 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.

NOW ACCEPTING APPLICATIONS FOR PROCOPIO’S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

NOW ACCEPTING APPLICATIONS FOR PROCOPIO_S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

By:      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.  If you are interested in where the past interns have directed their professional paths following their summer at Procopio, see our recent update here.

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 31st by 5 p.m. PST.

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, 2018.  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!

Ted GriswoldTed 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.

 

LIFTING THE NATIVE AMERICAN BAR: FORMER PROCOPIO INTERNS EXCELLING

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

former-procopio-native-american-interns-leading-and-making-a-differenceIt has been an absolute pleasure to watch the success of the interns that have worked with our group and have proliferated to further the Native American Bar nationwide.  As we are preparing to review a new set of Procopio Native American Internship applications for the summer of 2018, we thought that it would be a good time to share with you and applaud the accomplishments of our past interns.  Congratulations to all.  We look forward to continue working with you as colleagues in your professional careers!  For students interested in joining this great network of tomorrow’s Native American legal leaders, applications are open through October 31, 2017.

Eric Abeita (2014), from Isleta Pueblo, is a member of the New Mexico Bar and holds the position of General Counsel for the Pueblo of Pojoaque in Santa Fe New Mexico.  Eric is a 2015 graduate of University of New Mexico College of Law School, where he was the Managing Editor for the Tribal Law Journal and gathered valuable legal clinic experience with the Southwest Indian Law Clinic.

Nichole (Nikke) Alex (2015) is a member of the Navajo Nation and graduated from the University of New Mexico College of Law. Nikke works with the Navajo Nation Department of Justice,  Natural Resources Unit where she is working on abandoned uranium matters including former mine site cleanups, former mill site cleanups and remediation.   In her last year of law school, Nikke was a judicial extern with the Pueblo of Isleta Tribal Court where she assisted with developing a Juvenile Detention Alternative Program and a Peacemaking Program to promote a non-adversarial forum for resolving disputes where Pueblo tradition and culture are utilized to promote healing.  In May 2016, she was able to meet with U.S. Supreme Court Justice Sotomayor on behalf of the Tribal Court, as part of Justice Sotomayor’s outreach to learn more about the difficult issues faced by Indian Country.  Additionally, during her law school career, Nikke investigated the linkage between mineral extraction and violence against Native women and has worked with tribes to implement safeguards to protect Native women and children.

Fernando Anzaldua (2012) is a citizen of the Tohono O’odham Nation.  Fernando is a federal attorney for the National Labor Relations Board, where he has experienced significant success in federal court, administrative hearings, and bankruptcy court. He has successfully first-chaired a number of trials on behalf of individual employees, unions, and employers. He is a 2013 graduate of the Sandra Day O’Connor College of Law at Arizona State University where he also earned an Indian Legal Certificate. He also gives back to his community by serving on the Executive Board for Los Abogados Hispanic Bar Association.

Kele Bigknife (2016) is a citizen of the Cherokee Nation, and a graduate of the University of Michigan Law School currently awaiting California Bar results. He is currently working in San Diego at Higgs Fletcher & Mack, emphasizing litigation practice.   Mr. Bigknife was a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review and was a student attorney for the Michigan Veterans Legal Clinic, representing veterans and their immediate families in civil legal matters.  He previously worked at a Southern California law firm where he gained litigation experience and assisted in drafting depublication requests to the California Supreme Court in issues regarding tribal sovereignty

Daune Cardenas (2017) is a citizen of Pascua Yaqui Tribe in Arizona and is entering her third year at the University of Arizona James F. Rogers College of Law.  Prior to joining Procopio as an intern, Ms. Cardenas interned at the Office of the Attorney General for the Pascua Yaqui Tribe for two years, working primarily in ICWA case files and developing methods to prosecute Violence Against Women’s Act (VAWA) cases within Tribal Court.  Ms. Cardenas is active in the Native American Bar Association’s Indian Child Welfare Act Subcommittee and is a social director of the Native American Law Students Association Chapter for the University of Arizona.  Ms. Cardenas also recently received the Native American Bar Association of Arizona’s scholarship for community activities.

Stephanie Conduff (2013) is a citizen of the Cherokee Nation and is admitted to practice before the U.S. District Court, Oklahoma, District Court of The Chickasaw Nation, The Supreme Court of Cherokee Nation, Muscogee (Creek) Nation, Osage Nation and Chickasaw Nation.  She lives and works in her community in Oklahoma as an attorney, business owner of Leche Lounge and training Native entrepreneurs on best practices for profitability through sustainable development. Stephanie currently works as Director of Special Projects and Legal Counsel for Onefire Holding Company which a diversification venture capital firm of the Muscogee (Creek) Nation. She launched Leche Lounge, a manufacturing company for portable lactation suites – or Mother’s Rooms – for use in airports, the workplace, stadiums and military bases worldwide.  She graduated from the University of Oklahoma College of Law.  Stephanie served as a judicial clerk for the late Honorable Chief Justice Barbara Smith of the Chickasaw Nation Supreme Court and is certified to assist tribal courts as a Peacemaker.  Stephanie was with Procopio for three years first as a summer intern, then as a law clerk and worked full-time for the firm as an Associate until 2016.

Trinidad Contreras (2011) is a citizen of the Iipay Nation of Santa Ysabel and is a descendant of the Pala Band of Mission Indians.  He is a member of the Alaska Bar and currently Assistant Municipal Attorney for the City and Borough of Juneau.  His practice is primarily in civil law but occasionally works on criminal matters.  He is the 2016-2017 Secretary for the Juneau Bar Association. He is married to Madeline Soboleff Levy, general counsel for the Central Council of Tlingit and Haida Tribes of Alaska.  Together, they are the proud parents of Sofia, age 6, and Guillermo “Memo,” 3 months.

Anna Hohag (2015) is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, California.  She is a recent graduate of the James E. Rogers College of Law at the University of Arizona, where she served as the President of the UA Native American Law Students Association. Anna is currently awaiting California Bar results and working with the Bishop office of California Indian Legal Services, which allows her to work on matters for her home tribal government.  Anna was the University of Arizona 2017 recipient of the Rose Davis Public Service Award and the University of Arizona Native American Student Affairs (NASA) Outstanding Graduate Service Award in recognition of her service to Native youth at the University of Arizona. During Law school, she also served as the Area 1 Representative (CA, NV, HI, AZ) for the National Native American Law Students Association and is a Board Member on the California Indian Law Association.

Kelsey Leonard (2015) is a citizen of the Shinnecock Indian Nation and received her law degree at Dusquene University Law School.  Last year she was named the prestigious Philomathia Trillium Scholar by McMaster University (Hamilton, Ontario), where she studied climate change’s impact on Native Communities, with a focus on water resource management.  Kelsey was previously the Tribal Co-Lead on the Mid-Atlantic Regional Planning Body for the National Ocean Council charged with guiding the protection, maintenance, and restoration of America’s oceans and coasts.  She is also coauthor of a recent collaboration on Indigenous Water Justice. Kelsey as also been recognized as the 2017 Peter Benchley Award Recipient for Excellence in Solutions, the 2016 EE 30 Under 30 Award Winner, the 2016 NCAIED “40 Under 40” Emerging American Indian Leader Award Recipient and was recently appointed to the Great Lakes Water Quality Board of the International Joint Commission.

Christopher Scott (2014) is a citizen of the Cherokee Nation and received his law degree from the University of Oklahoma College of Law (2015), where he was the Note and Comment Editor for the American Indian Law Review.  A member of the Texas Bar, Christopher is currently working as Counsel for Governmental Affairs at Insperity in Houston Texas.  Previously, Christopher was an associate with Ernst & Young in Dallas, Texas, working in labor/employment law in their People Advisory Services Department.

Jaclyn Simi (2012) is a member of the Seminole Nation of Oklahoma.  She graduated with honors from Notre Dame de Namur University and received her law degree from California Western Law School (2012), where she was president of the Native American Law Students Association.  Ms. Simi is currently an associate with the San Diego office of Ogletree Deakins, practicing employment litigation and counseling with an emphasis on sports law.  Ms. Simi has been named a San Diego Super Lawyers Rising Star for 2016 and 2017 and to San Diego Business Journal’s Best of the Bar list (2106).   She is an active member of the Lawyers Club of San Diego.

Karli Sultzbaugh (2017) is a member of the Pechanga Band of Luiseno Mission Indians and is currently entering her third year at UCLA School of Law.  Ms. Sultzbaugh, a Native San Diegan, has strong interest in Tribal environmental issues with experience in the Tribal Legal Development Clinic at UCLA.  She is the President of the Native American Law Students Association at UCLA and one of the staff editors for the Indigenous Peoples Journal of Law, Culture and Resistance.  Ms. Sultzbaugh also is a previous litigation intern at Compassion Over Killing which enhanced her strong writing and research skills, and worked as an undergraduate intern at the U.S. Attorneys’ Office in San Diego.

Heather Torres (2016) is a citizen of the Pueblo of San Ildefonso and Navajo Nation descendant.  She is a recent graduate of  UCLA School of Law and is awaiting California Bar results.  She is currently a UC President’s Public Service Law Fellow at the Tribal Law & Policy Institute in West Hollywood, CA. She worked on Capitol Hill as a research assistant for the Senate Committee on Indian Affairs under Chairman, Senator John Barrasso (WY) while joining a national network of Udall Scholars. During law school, Ms. Torres externed with the Children’s Law Center, Los Angeles in the Indian Child Welfare Court.  She was also Executive Editor of the Indigenous Peoples’ Journal of Law, Culture & Resistance and Senior Editor for the Chicano/Latino Law Review.  Ms. Torres has a Masters in Collaborative Educational Leadership.  She also graduated Cum Laude from UCLA in English and American Indian Studies.  She served as the President and Alumni Chair for NALSA at UCLA, volunteered with El Centro Legal: Education Rights Clinic, and taught law-related topics to local high school students in her spring semester.

Ted GriswoldTed 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.

 

“WHAT’S UP? NATIVE AMERICAN AVIATION AND AIRSPACE”

“WHAT_S UP NATIVE AMERICAN AVIATION AND AIRSPACE”

By:      Sandra L. Shippey | Partner | sandra.shippey@procopio.com (1)

In 2016, William M. Haney (2) published an excellent comprehensive analysis of issues arising in connection with tribal sovereignty over tribal airspace in Protecting Tribal Skies:  Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace.  In this first of its kind article, Mr. Haney analyzed the importance of tribal sovereignty in a tribe’s own airspace and described potential objections that may be raised by the Federal Aviation Administration.  The Blogging Circle published an article by Sandra L. Shippey on November 11, 2016 summarizing Mr. Haney’s article and discussing some of these issues, but our reference and link to Mr. Haney’s article did not appear in our article until after a reader clicked through to the entire article.  We decided to re-issue and expand on the original article with personal contributions from and more visible credit to Mr. Haney.

Mr. Haney acknowledges in his article that any nation is entitled to “complete and exclusive sovereignty over the airspace above its territory.” (3)  He describes the unique sovereign status of Indian tribes in the United States as self-governing entities, which are also subject to the plenary power of the United States and regarded as “domestic dependent nations” under federal law.  This status complicates the question of control over tribal airspace. (4)

To focus on these issues, Mr. Haney describes in his article a situation in 2009 with the Hualapai (wal-lah-pie) Tribe, a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon. (5)  The Hualapai Tribe has an airport on its land and relies, in part, on tourism to fund its tribal government and for income for its members. (6)  Currently, the Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.

Mr. Haney relates a 2009 incident in which a non-Indian freelance tour guide and photographer, Lionel de Antoni, flew a fan-powered paraglider over the Hualapai reservation without permission from the Hualapai Tribe.  Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation. Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them. (7)  He did not obtain permission from the Tribe to fly over the Tribe’s reservation. (8)

This matter raised interesting legal issues regarding the confluence of Native American law and federal aviation law.  Mr. Haney describes these issues in his article:

A central point of discussion that quickly emerged was whether the Hualapai Tribe has jurisdictional authority to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe.  Paul Charlton, an attorney representing the Hualapai Tribe in the case, stated plainly that the Hualapai Tribe has “the right to determine who will or will not fly over Hualapai territory.”  A spokesman for the Federal Aviation Administration (“FAA”) initially told a reporter that “[a] tribe has no authority over airspace and cannot charge people for using it,” but did not elaborate on the legal basis for this claim other than to assert “[t]he federal government has sole jurisdiction over the nation’s airspace.” (9)

The Hualapai Tribe and Mr. De Antoni settled their case, and to date, there is no definitive statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation.  The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace.  However, according to Mr. Haney, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). (10)

According to Mr. Haney’s article, tribal governments, as sovereign entities, are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens. (11)  They have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians. (12)  The question is whether this right to exclude covers tribal airspace.  Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft). (13)  Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft. (14)  In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. (15)

However, Mr. Haney acknowledges that there may be several potential objections to allowing tribal authority over tribal airspace.  First, opponents may assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace. (16)  Second, opponents may argue that Indian tribes “have been divested of sovereignty in airspace and assertion of tribal jurisdiction in airspace – particularly over non-members – is inconsistent with the domestic dependent status of Indian tribes under federal law.” (17)  Third, opponents may argue that Indian tribes do not possess regulatory jurisdiction over non-member pilots and therefore cannot enforce tribal regulations in airspace. (18)

Mr. Haney also acknowledges that the FAA aviation regulatory system is the “global safety standard against which other national aviation systems are measured.” (19)  Would allowing tribes to control airspace above their land jeopardize the safety of the traveling public?

Mr. Haney proposes political and regulatory solutions to “the uncertain status of the ability of tribes to regulate tribal airspace and he argues that a cooperative relationship between Indian tribes and the federal government is necessary to protect tribal interests and the integrity of domestic aviation activities.” (20)  Mr. Haney ultimately concludes that “[a]s with many issues affecting Indian tribes, federal legislation could be the key to bringing clarity to these issues by affirming the authority of tribes to regulate at least some aspects of tribal airspace.” (21)  He also advocates for a cooperative approach with the FAA, given the federal agency’s authority and expertise in matters involving air safety in the United States. (22)

In 2015, while an Associate Attorney at the law firm Berkey Williams LLP, Mr. Haney filed a public comment on the FAA’s then-proposed (and since finalized) drone regulations.  In the letter, Mr. Haney asked the FAA to initiate formal consultation with Indian tribes as it developed the new airspace regulations.  In its response to public comments, the FAA acknowledged Mr. Haney’s request and comments with the following reply:

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to uniquely or significantly affect their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this rule. However, the FAA has entered into government-to-government consultation with the Northern Arapaho Nation on its general use of UAS. In addition, the Nez Pierce tribe has contacted FAA to discuss obtaining a section 333 exemption to operate small UAS under existing rules.

…  The FAA notes, however, that state governments have historically been able to regulate the takeoffs and landings of aircraft within their state boundaries. The FAA anticipates that the Tribes would be able to exercise similar internal sovereignty with regard to the takeoffs and landings of small UAS within their territories. Thus, while preemption is beyond the scope of this rule, the FAA will conduct outreach to tribes seeking information about their ability to regulate small UAS operations conducted within their territory to see how their concerns could be addressed within the broader UAS integration effort. (23)

On May 25, 2017, United States Senator Diane Feinstein introduced the Drone Federalism Act of 2017 in the United States Senate.  The stated purpose of the Act is “[t]o preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.” (24)  An acknowledgment of tribal concerns about the use of airspace by drones, the Act would require that the FAA, “[i]n prescribing regulations or standards related to civil unmanned aircraft systems, the [FAA] shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted [by federal regulation of airspace].” (25) The Act would also require the FAA to “preserve, to the greatest extent practicable, legitimate interests of State, local, and  tribal governments” in “prescribing regulations or standards related to civil unmanned aircraft systems…” (26)

According to Mr. Haney, the response by the FAA and the introduction of the Drone Federalism Act represent positive movement toward acknowledgment by the federal government that tribal governments have legitimate interests in regulating certain activities in tribal airspace.  He believes that tribal governments have a real opportunity to work with their federal, state, and local counterparts to develop sensible solutions to airspace issues while respecting and promoting tribal sovereignty.  Mr. Haney notes that the concerns of tribal governments about the uses of drones in airspace are shared by state and local governments, and that political movement toward the development of local regulatory solutions (27) presents a unique opportunity for tribes to align themselves with other governments on this issue.

Mr. Haney has raised some important issues and conflicts arising from Native American sovereignty and federal control of U.S. airspace.  The FAA is not likely to easily accede jurisdiction over U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes.  However, it would seem prudent for the FAA to work with tribes and allow them to realize sovereign control at least with respect to low flying flights over tribal lands or create regulations for flights over tribal lands, consistent with FAA standards.

Shippey 2013Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.  Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

Ted GriswoldTed 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.

 


(1) This article was developed with editorial contributions and input from William M. Haney.

(2) William M. Haney is a Staff Attorney for the San Manuel Band of Mission Indians and the Treasurer of the California Indian Law Association.  Mr. Haney is a graduate of the UCLA School of Law and is licensed to practice law in the state of California.  During law school, Mr. Haney was a Staff Member and Associate Editor of the UCLA Law Review and served as Secretary and Alumni Chair of the UCLA Native American Law Students Association.  His practice areas include tribal governance, economic development, environmental law, intellectual property, employment, real estate, the Indian Child Welfare Act, and the protection and promotion of tribal sovereignty.  Mr. Haney is an enrolled member of the Seminole Nation of Oklahoma.

(3) Id. at p. 3.

(4) Id. at p. 3.

(5) Id. at p. 5.

(6) Id. at p. 4.

(7) Id. at p. 5.

(8) Id. at p. 5.

(9) Id. at p. 5.

(10) Id. at p. 19-20.

(11) Id. at p. 28.

(12) Id. at p. 30.

(13) Id. at p. 31

(14) Id. at p. 31.

(15) Id. at p. 31.

(16) Id. at p. 33.

(17) Id. at p. 34.

(18) Id. at p. 34.

(19) Id. at p. 35.

(20) Id. At p. 1.

(21) Id. at pp. 36-37.

(22) Id. at 37.

(23) Fed. Aviation Admin. and the Off. of the Sec. of Trans., Dept. of Trans., Final Rule, Fed. Reg. Vol. 81, No. 124, at p. 42189 (June 28, 2016) (emphasis added), available at https://www.gpo.gov/fdsys/pkg/FR-2016-06-28/pdf/2016-15079.pdf.

(24) Drone Federalism Act of 2017, S. 1272, 115th Congress, 1st Session, introduced on May 25, 2017.

(25) Id. at 2-3 (emphasis added).

(26) Id. at 2.

(27) U.S. News & World Report, Nick Muscavage and Andrew J. Goudsward, Courier News & Home Tribune, Drone Flyers Think About Regulation as Industry Takes Flight, July 23, 2017, available at https://www.usnews.com/news/best-states/pennsylvania/articles/2017-07-23/drone-flyers-think-about-regulation-as-industry-takes-flight (discussing efforts by state and local governments to regulate drone use in airspace).