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.

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.