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.

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.

 

A Life Worth Remembering, Reflected in the Actions of Lives Touched

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

The importance of mentoring and just setting a good example can never be overstated. It impacts people beyond your immediate circle, and it affects people for years. It inspires, and it multiplies your efforts, your values and your ethics in ways that you will never hear about, but others will. Take for example the recent message I received from Racheal White Hawk, one of the associates in our practice group:

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Very sad news, Frank LaMere has passed away.  He was a well-respected activist and Winnebago tribal member from Nebraska, my home state. He fought very hard for many Native issues in Nebraska and nationally. One of his main goals was to shut down the liquor stores in the ten-person town of Whiteclay, Nebraska. The liquor stores bordered the Pine Ridge Indian Reservation, and the stores profited immensely from selling nearly 5 million cans of beer each year to Natives living on the reservation, where alcohol was prohibited. After nearly 20 years, he was finally able to stop the sales in 2017. Many people in our community, including myself, looked up to him as a mentor and a leader. He served seven consecutive times as a delegate to the Democratic National Convention.

Here is a nice article about him in the Omaha World Herald, “Native American activist Frank LaMere, dead at 69, remembered as a ‘true civil rights leader’.” 

This note touched me in so many ways. That Racheal felt compelled to let us know about this person that clearly sent her on a professional and ethical direction was insightful.  That she shared a personal connection with Mr. LaMere and wanted to share that connection and his importance made me wonder—how many others did Mr. LaMere touch, that also sent a note to their colleagues to celebrate his legacy? I am sure that there were many.  Follow the Omaha World Herald link above and learn a little about his legacy.

I wish I would have had the chance to know this Leader from the Winnebago Tribe, but I am so thankful for his life’s work to have generated inspiration to young Native lawyers like Racheal. While he has walked on, we can still hear his footsteps.

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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.

Now is the Time, California Tribes! Make Sure Tribal Cultural Beneficial Uses are Included in your Region’s 2018 Triennial Basin Plan Update

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

The U.S. Environmental Protection Agency and the California State Water Resources Control Board acknowledged for the first time in 2017 that cultural uses of waterways should be protected. The result was the creation of three new beneficial uses of water in the state: Tribal Tradition and Cultural Use (CUL), Tribal Subsistence Fishing Use (T-SUB), and Subsistence Fishing Use (SUB).  (For more information on the three beneficial uses, see our previous blog article: Protecting Tribal Uses: Cultural Activities and Subsistence Fishing to Become Beneficial Water Uses.)

Creating these new beneficial uses did not guarantee protection, or even the implementation of these beneficial uses throughout the state. In order to actually protect state waterways that are used for tribal cultural uses and tribal subsistence fishing, the various Regional Water Quality Control Boards need to first amend their basin plans to 1) include the new beneficial uses, and 2) to designate specific waterways within the basin with the beneficial uses. The opportunity is now for the tribes to voice their concerns to ensure that these actions are taken.

The basin plan amendment process is currently underway in four regions: Region 1 (North Coast Region), Region 2 (San Francisco Bay Region), Region 6 (Lahontan Region) and Region 9 (San Diego Region). It is important to note that if these uses are not included in the current basin plan updates, the CUL, SUB and T-SUB uses may not be of any use in protecting tribal cultural resources in these regions for another three, or perhaps six years.

Region 1 has an existing beneficial use based on tribal cultural use, and will be updating its basin plan to include the new beneficial uses and designates uses based on the new beneficial use definitions. Regions 2 and 6 are preliminarily including on their list for the amendment to their final basin plan the incorporation of the three new beneficial uses. However, support is needed to endorse the importance of this inclusion because if they are not seen as a priority, they may not be included in the basin plan amendment. The State Board and Regional Boards indicate that they will react to significant public concern in deciding whether such inclusion is a priority.

Region 9 (San Diego) is more problematic. It has not yet included the adoption of the CUL, SUB or T-SUB uses in its draft prioritized list for the basin plan. Region 9’s written public comment period for which the Board must provide written responses recently ended; however, public comments may still be made by interested tribes. Region 9 will be hosting a public hearing on October 10, 2018, to consider adoption of the prioritized list for the 2018 Triennial Review.  Tribes in the San Diego Region (which includes portions of Riverside County) should immediately consider writing to the San Diego Regional Water Quality Control Board in advance of the hearing and attending the hearing to voice the importance of including one or all of the new beneficial uses into the basin plan for the San Diego Region. You can learn more at the San Diego Region Water Quality Control Board (SDRWQCB) Basin Plan web page.

Finally, all tribes should encourage their respective Regional Boards to immediately begin consultations with tribes in their region regarding the location of waterways deserving the CUL, SUB and T-SUB designations and methods to meet the objectives for these protections.  We are happy to assist tribes with these efforts.

Gabriela Rios -LJR_2938Gabriela is an associate with Procopio’s Native American Law practice proup 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 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.

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.

GETTING TO KNOW YOU: INDIAN COUNTRY EVENTS COME TO SAN DIEGO COUNTY

Procopio is a proud sponsor of the California Indian Conference being held at San Diego State University’s Student Union through Saturday, October 22, 2016.  With the theme “Creations and Constructions: Indigenizing the Future of California Indian Country,” the conference brings together California Indians, educators, tribal scholars, academics, students, public agencies, organizations and institutions, and the general public in one place.  Most people living in San Diego fail to recognize or experience the rich indigenous history and culture of the county that is home to more Federally Recognized Tribal Governments than any county in the nation.  The California Indian Conference provides the opportunity to learn about today’s California indigenous communities, as well as artistic and scholarly perspectives regarding our regional history.

This is the first time that the Conference has been held in San Diego, and it represents a growing trend of regional and national gatherings of Indigenous people bringing their conferences to San Diego.  Last week the California Indian Law Association held their meetings at the Viejas Resort, and last year the National Congress of American Indians held their five-day National Marketplace and Conference in Mission Valley.  On November 17-19,  the California Indian Culture and Sovereignty Center at CSU San Marcos presents the fourth annual California’s American Indian & Indigenous Film Festival, a three-day event that offers exclusive film viewings and interactive dialogues with film industry professionals, selected panel discussions and an opportunity for Q&A sessions after each screening.  Other recent  indigenous conferences in the area include the World Indigenous Law Conference (UC Irvine),  the National Intertribal Tax Alliance (Agua Caliente), and the Native American Health & Wellness Conference (October 27, Viejas).

Procopio is proud to support events like these that share important information about indigenous communities and increase public understanding of the challenges facing their communities.  We hope that bridging this understanding will increase opportunities and cooperative relationships that will ensure greater success for all.

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.