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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

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

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

Lessons From “Jeopardy!” Champion James Holzhauer: A Case Study For Business Success In Indian Country?

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

shutterstock_533083360.jpgJames Holzhauer’s incredible 32-game win streak in the beloved quiz show, “Jeopardy!” ended on June 3rd, 2019.  Simply put, Holzhauer’s run turned the “Jeopardy!” world upside-down. He totaled $2,464,216 in winnings over 33 games. He won $131,127 in a single game. Astonishingly, his reign of trivia terror took the previous single-game scoring record and kindly relocated it to 17th place in the Jeopardy! history books when his run was finally complete.

The story behind Holzhauer’s success can be viewed as a lesson to present and future Native American entrepreneurs that in the face of an old challenge, those who possess a unique perspective can implement new strategies and shock the world with their success.

To win so thoroughly, Holzhauer had to play more aggressively than anyone in the game’s history.  He also had to think differently.  He moved from category to category, chose the most difficult questions on the board, and repeatedly wagered massively on “Daily Double” clues.

Holzhauer was a rare combination of potential, perspective, and preparation. He received his degree in mathematics, but spent his college days building a bankroll in online poker. He later made a career in professional sports betting. For “Jeopardy!,” he prepared by reading a mountain of children’s picture books and mastered how to buzz-in from tips he found in an e-book titled, “Secrets of the Buzzer.”

Today, Native Americans own private businesses at the lowest rate of any racial group in the United States (Robert J. Miller, Reservation Capitalism 114 (2012)). In the game of entrepreneurship, not enough Native Americans are playing. Unfortunately, tribal members often have little or no access to the common methods of financing a business: home equity loans, family wealth, and unsecured loans. (Id.)

The truth is, however, that tribal entrepreneurs often have their own advantages. Many have a unique perspective arising from tribal membership that allows the insights non-Native entrepreneurs may lack. Native American entrepreneurs are more likely to apply subjective thinking to problem-solving, often described as “thinking with [your] heart.” Native American entrepreneurs have also been found to value community more than non-native entrepreneurs. (Id.) What values or perspectives could be better suited for the development of strong reservation economies?

Data tells us that potential Native American entrepreneurs often lack access to mentors, in part because they are less likely to have entrepreneurial parents. (Id.) However, Native Americans can find relief in knowing that inexperience isn’t always a liability, but in fact can be beneficial. Inexperience allows individuals to look at problems in new, holistic ways.

In 2014, we published a post on the topic of the inexperienced mind. The post discussed how the inexperienced person has the benefit of looking at problems without the burdens of, well, previous experience. Newcomers have the rare opportunity to see old problems in a new light and attack them in innovative ways. On some occasions, this allows for the creation of solutions that are both new and superior.

For Native Americans interested in pursuing or mastering business ownership, it’s especially crucial to lean on community for strength. Former Procopio Summer Intern Aaron Fournier is a citizen of the Chickasaw Nation and has taken his own unique approach in business by co-founding Native American Hemp.

As a young Native American entrepreneur, Fournier has leaned on community primarily by networking and seeking the assistance of business mentors, all while studying to receive his law degree. Fournier has since received his Juris Doctor from the University of Oklahoma College of Law and is preparing to sit for the state’s Bar Examination. When Fournier’s entrepreneurial acumen became apparent, his mentors became his business partners. Now, Native American Hemp is a majority Native American-owned business partnering with tribes, tribal members, and farmers to cultivate industrial hemp crops. Native American Hemp is also working to develop proprietary genetics and hemp-based products in partnership with tribes and tribally-owned businesses. Fournier’s company will utilize resources such as the Native American Agricultural Fund, Opportunity Zones, and the Small Business Administration 8(a) Business Development Program to spur a new wave of economic development in Indian Country.

Recently, a Huffington Post article highlighted the community efforts to rebuild the Oglala Lakota Nation on the Pine Ridge reservation, one of the poorest locations in the United States. The piece highlighted Alan Jealous, a member of the Oglala Lakota Nation and co-owner of Thikaga Construction. Jealous is responsible for managing the construction of more than a dozen of the homes set to be built as part of a 34-acre development project currently underway on the reservation.

A dedicated worker and family man, Jealous is also self-effacing. He acknowledges that he may not be an owner of a construction company if not for the support of Thunder Valley CDC, a community-based nonprofit. The members of the Oglala Lakota Nation currently face unemployment rates of 75%, but Jealous was able to take extra online courses to learn to manage Thikaga Construction after earning a degree in General Construction. Thunder Valley CDC’s mission is to empower Lakota youth and families, and it has resources to support those like Jealous who are aligned with that mission.

When someone is uniquely prepared for a task, the result can be success beyond anyone’s expectations. James Holzhauer proved this by side-stepping the “Jeopardy!” blueprint and playing by his own rules. Business-minded Native Americans should celebrate the fact that they too can create their own unique path to success.  Moreover, they should trust that even in difficult situations, their communities will support them.

If you are a Native American interested in beginning a business, please refer to the Small Business Administration 8(a) Business Development Program website. The 8(a) Program helps minority owned businesses become independently competitive through specialized business training, counseling, and marketing assistance – key tools for the success of any business.

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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 as treasurer for the ASU Native American Law Students Association.

 

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

Procopio’s Native Women Attorneys — Mentoring Toward Success

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By: Racheal M. White Hawk | Associate| racheal.whitehawk@procopio.com
Gabriela Magee | Associate | gabriela.magee@procopio.com
Karli Sultzbaugh | Associate | karli.sultzbaugh@procopio.com

Procopio Partner Kerry Patterson, an enrolled member of the Seneca Nation, was one of a handful of Native women attorneys recently featured on Indianz.com in an article entitled, “‘We were born for this’: Native women overcome obstacles in the legal field.” In the article, Kerry discusses how Native women have served as strong role models in her life and how she hopes to mentor the three Native women Associates at Procopio toward success.

Kerry addresses the challenges that women face in the legal profession as well as with balancing their roles in their tribal communities. She mentions it is important to find a workplace where you fit in and to find an employer that invests in you, values diversity, and is forward thinking.

As the Native Associates working with Kerry, we are happy she found that fit at Procopio, and we feel extremely lucky to have such a strong Native woman as a role model and mentor right here in our firm and working with us every day.

Support is a determining factor for success, and our shared experience of being Native women in a private law firm motivates us to support each other that much more. Procopio is rated a Top Ten AmLaw 200 firm for diversity by American Lawyer magazine.

Read the entire Indianz.com article here.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is an Associate with Procopio’s Native American Law Practice Group. Racheal is a member of the Arizona Bar; she has passed the California Bar Exam but is not licensed to practice in California. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

 

Procopio_Rios_Gabriela_Bio Photo 7122Gabriela Magee (Cahuilla Band of Indians) is an Associate with Procopio’s 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, culture resource protection and contracts. Connect with Gabi at gabriela.magee@procopio.com and 619.906.5620.

Procopio_Sultzbaugh_Karli_Bio Photo 7220Karli Sultzbaugh (Pechanga Band of Luiseño Mission Indians) is an Associate with Procopio’s Native American Law practice group. She is a graduate of the University of California, Los Angeles School of Law. Connect with Karli at karli.sultzbaugh@procopio.com and 619.906.5665.

Charting the Way to Cultural Preservation: Tribal Charter Schools

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By: Summer Carmack | Native American Law Intern | summer.carmack@procopio.com
Greta Proctor | Partner | greta.proctor@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

New federal funding opportunities and a new guide released by the National Indian Education Association (NIEA) in July have spurred new interest from many Indian Nations about how public charter schools can serve the academic and cultural needs of Native American students. The U.S. Department of Education’s new grant funding is earmarked to help develop and sustain charter schools serving “Educationally Disadvantaged Students,” a defined term that includes “students who are Indians and students in Rural Communities.”* This chance to secure new funding, coupled with the flexibility charter schools provide to tribal communities, make public charter schools an attractive prospect for tribal governments and communities seeking to form their own education systems.

The NIEA handbook, through funding from the Walton Foundation, provides Indian Nations a framework for the development, design, establishment, and operation of tribal charter schools that offer a culturally-grounded education. “Charters allow American Indians to expand their sovereignty by controlling the type of education their children receive. . . Critical aspects of a person’s identity—values, traditional practices, knowledge, and language—can now be integrated into the curriculum offered by charter schools.” Native charter schools that incorporate a Native community’s framing of well-being into their educational model can also seek accreditation from the World Indigenous Nation’s Higher Education Consortia (WINHEC), in addition to traditional accreditation opportunities.

Some California-based tribal communities have already opened their own charter schools, in recognition of the advantages they can provide. For example, the Barona Band of Mission Indians opened the Barona Indian Charter School in 2002. Today, the school educates 88 students, consisting of Native American youth and non-Native children from surrounding communities, with a mission “to develop in [its] students a dedication to community service and the motivation and skills necessary for life-long learning.” Beyond combatting the effects of the federal government’s past assimilationist policies toward Native Americans, tribal charter schools help ensure cultural preservation by imbuing values, customs, stories, languages, and lifeways into a core fundamental curriculum. California—with the largest Native American population and most tribal reservations of any state—is poised to take advantage of increased funding and a more wide-spread understanding of the needs of Native students to open and sustain more tribal charter schools.

Charter schools are tuition-free public schools that operate independently from traditional school districts, through a contract (charter) developed between the school and a local school district, county or state. Charter schools are schools of choice: they provide expanded educational opportunities for parents within the public school system.

Charter schools have the flexibility to cultivate and design their own educational program that both incorporates state standards and meets the unique needs of their community. In exchange for the freedom to innovate, charter schools are subject to higher levels of accountability than traditional public schools.

More information about Procopio’s Education and Charter School practice group and useful tools for those in the Charter School industry are available here.


* Proposed Priorities, Requirements, Definitions, and Selection Criteria: Expanding Opportunity Through Quality Charter Schools Program, 83 Fed. Reg. 35,571, 35,572 (July 27, 2018).

Procopio_Proctor_Greta_Bio PhotoGreta Proctor represents charter schools throughout California from her Los Angeles office.  She advises on the development of new charter schools, renewals, and all of the day-to-day issues facing charter schools.  Greta is a regular presenter at charter school conferences and trainings. She has worked with diverse charter networks on replication.

summer croppedSummer Carmack is a rising 3L at the 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 Managing Editor of the Public Land and Resources Law Review.  Summer is a recipient of the 2018 Procopio Native American Law Student Internship.

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.