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

shutterstock_67881784

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.

Procopio_Griswold_Theodore_Bio Photo

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

Twice is a Coincidence, Three Times is a Pattern

shutterstock_1052958764

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

In its May 20th, 2019 decision, Herrera v. Wyoming, the U.S. Supreme Court expressly stated that treaty rights are not impliedly extinguished at statehood, a holding that had been strongly implied by the Court in its 1999 decision, Minnesota v. Mille Lacs Band of Chippewa Indians, but not confirmed until now. The court also found that the creation of the Bighorn National Forest did not void Herrera’s hunting rights by rendering the lands of the national forest “occupied.” Experts in the field were quick to congratulate the Court for its decision. Professor Robert Miller, a faculty member at the Sandra Day O’Connor College of Law and expert on the subject of Native American treaties, has since stated the decision is “a great victory for Indian country.”*

The Supreme Court vacated and remanded the Wyoming Fourth Judicial District Court’s ruling against Mr. Clayvin Herrera, a Crow Tribe of Indians member who was prevented from asserting his treaty right “to hunt on the unoccupied lands of the United States” as a defense in Wyoming trial court, resulting in convictions for taking elk off-season or without a state hunting license and for being an accessory to the same crime.

The Court split its votes in the same manner it did on March 19th when it published Washington State Dep’t of Licensing v. Cougar Den, a decision that affirmed the treaty right of the members of the Yakama Nation of Indians to travel upon the public highways of Washington without being subjected to the state’s fuel tax. In Cougar Den, and now in Herrera, Associate Justice Neil Gorsuch was the lone conservative on the bench to land on the pro-tribal side of the decision. The result reached in Herrera repeats the sentiment in Justice Gorsuch’s concurring opinion in Cougar Den:

Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1021 (2019).

In the procedural lead-up to the Supreme Court’s decision in Herrera, an old and familiar story became that much older and that much more familiar. Like the Yakamas, the Crow Nation agreed to a bundle of promises from the United States government. One of these promises was the continued right to take game on unoccupied lands, so long as game may be found thereon. As consideration for these promises, the Crow People agreed to cede most of their land to the government. The nation formally granted over 30 million acres of land to the United States in the Fort Laramie Treaty of 1868, a document ratified by the Senate in 1869.

Article VI, Clause 2 of the United States Constitution dictates that treaties are the supreme law of the land. Yet, Wyoming’s trial court convicted Herrera of two crimes for acting pursuant to the rights found in the 1868 Treaty. Wyoming’s Fourth Judicial District Court then upheld Herrera’s conviction. The Wyoming Supreme Court, the final arbiter of cases that arise under Wyoming law, refused to hear the case. To take again from Justice Gorsuch’s concurrence in Cougar Den, “none of this can come as much of a surprise.” However, as stated in United States v. Kagama, Indian nations “owe no allegiance to the States, and receive from them no protection.” 118 U.S. 375, 384 (1886). In Herrera, the Supreme Court not only applied sound principles of treaty interpretation, but it also highlighted once again the tendency of state interests to encroach upon the rights of tribal nations and their members.

With the Court’s decision in Herrera finalized, tribal advocates must look forward to the results of Carpenter v. Murphy, the third decision of the Court’s term involving Native American treaties. Due to publish its decision next month, the Court in Carpenter should answer whether half of Oklahoma has remained an Indian reservation. More specifically, the question presented 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)?

The phrase “once is chance, twice is coincidence, three times is a pattern” doesn’t originate from the field of Native American law, but it applies to the Supreme Court’s Native American law jurisprudence this term. Tribal members and advocates should celebrate Herrera for what it is, a victory for Indian country. The results of Carpenter v. Murphy, though, will decide whether the Court will begin a pattern of upholding tribal sovereignty and enforcing the treaties the United States is party to.

*Massoud Hayoun, “The Supreme Court Upheld Treaty Rights for the Crow Nation,” PS Mag (May 22, 2019), https://psmag.com/social-justice/the-supreme-court-upheld-treaty-rights-for-the-crow-nation.

Cole Bauman Headshot

Cole Bauman is a Summer Intern with Procopio’s Native American Law practice group and a member of the Red Cliff Band of Lake Superior Chippewa. A rising 3L at the Sandra Day O’Connor College of Law, Cole serves as an Executive Editor for the Jurimetrics Journal of Law, Science, and Technology. Prior to attending law school, Cole received a degree in economics from the University of Notre Dame. He is particularly interested in the pursuit of economic development in Indian country.

Supporting Sovereignty: Is Your Tribe’s Constitution Full of Antiquated and Paternalistic Language?

shutterstock_412683298When was the last time you looked at your Tribe’s Constitution? It’s probably not an everyday occurrence, and when you do review it you might just be scanning for a specific clause. If you were to take a moment to sit back and work your way through it, however, it’s quite possible you’d come across some language that resonates as a bit tone-deaf in a 21st Century world in which Tribes rightfully resist federal paternalism. There are steps Tribes can take to remedy their own Constitutions, but first let’s look at how we found ourselves here.

In 1934, the Indian Reorganization Act helped move federal Indian policy away from the destructive policies of allotment and assimilation towards a new line of thought in which Tribes were encouraged to strengthen their governments. During this era, the federal government provided Tribes with template documents to help tribal governments establish constitutions and created a foundation upon which elections could be held with assistance from the federal government. Perhaps in a moment of overcompensation for past policies, the templates provided by the federal government contained paternalistic language and the support they offered maintained a significant amount of federal oversight; however, in the 1930s, this policy shift was a welcome change from the allotment and assimilation era.

Today we find ourselves in a period of federal Indian policy dubbed the “Self-Determination Era” and since the 1970s federal Indian policy has largely supported the notion of Tribes taking more control over their own affairs while simultaneously decreasing federal oversight. This is not to say that every federal decision has supported self-determination, but generally the principles of self-determination have helped many Tribes reestablish strong governing bodies capable of running their own electoral management offices.

Unfortunately, many Tribes continue to use the form documents provided to Tribes in the 1930s for their constitutions and other governing documents. For many Tribes, the paternalistic language contained within these documents represents an antiquated reminder of a bygone era of federal Indian policy. Further, many Tribes are finding themselves burdened by the language contained within these outdated paternalistic documents.

For example, many Tribal Constitutions contain language requiring approval by the Secretary of the Department of the Interior for amendments to their constitutions. Before such amendments can be operative, even if unanimously approved by a vote of the members of the Tribe, the action must obtain secretarial approval. In fact, the form constitution currently provided on the Department of the Interior’s website still contains this provision. (Click here to open the pdf form constitution).

This paternalistic approval process has worked against the interests of Tribes on many occasions. In 2003, members of the Cherokee Nation voted on, and passed, an amendment to their constitution removing the provision requiring secretarial approval for constitutional amendments. However, in 2007, four years after the Tribe passed this amendment, the Bureau of Indian Affairs notified the Tribe that the amendment was rejected. (Click here for the full story)

The important takeaway from this process is that even though we currently find ourselves in an era of federal Indian policy supporting and promoting self-determination (BIA encourages tribes to assert more control over internal affairs, read the article here), Tribal governments find themselves hampered by antiquated, paternalistic remnants of a previous era.  Tribes must work to take back their rights to truly govern themselves.

Luckily, and ironically, the federal government has since approved amendments to many Tribal Constitutions removing the secretarial approval provision from the constitutional amendment process (Constitution of the Cherokee Nation; Constitution of the Seminole Nation of Oklahoma; Mashantucket Pequot Tribal Nation). I encourage all Tribal Members to look at your own Tribe’s Constitution to see if there is a secretarial approval requirement for constitutional amendments for your Tribe and decide if this is in your best interest. Removal will help bring the constitution in line with current federal Indian policy and it could to prevent future unnecessary burdens from impeding the goals of the Tribe.

If you would like help removing the paternalistic language from your Tribe’s Constitution or would like to talk with someone to learn more about what this would mean for your Tribe, the Native American Practice Group at Procopio is here to help.

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

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Senate Streamlines Self-Governance with S.286; Time for the House to Step Up

By: Stephanie A. Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Last month, the US Senate passed the Department of the Interior Tribal Self-Governance Act of 2015, S. 286 by unanimous consent. The bill amends how contracts and compacts are negotiated between tribal governments and the Department of the Interior. These are amendments that Self-Governance Tribes have been prioritizing for years in the hopes of improving the approval process. It establishes new guidelines for administering the program.

The Congressional Budget Office (CBO) reports that, based on the information provided by the Department of the Interior (DOI), there is no significant financial effect on the federal government over the 2015-2020 period. However, the improved program mainstreams the process to empower tribal governments and tribal consortiums to create consistency and administrative efficiencies for Self-Governance Tribes.

“Self-determination and self-governance helps promote local tribal decision-making for important programs that affect their communities,” Sen. John Barrasso (R-Wyoming), the Senate Indian Affairs Committee, said when he introduced the bill in February. “For years, tribes have faced bureaucratic roadblocks when trying to implement these programs. By making key improvements to the way self-governance works in the Department of the Interior, this bill gives tribes the tools they need to tailor Federal programs to the needs of their local communities.”  This goes to the real intent of the Self-Governance Act.

The bipartisan bill has the support of the Obama administration. It is non-controversial — consideration took less than 30 seconds when passed by the Committee. The Senate-passed version now moves to the House of Representatives. The probability of its passage in the House during this session of the 114th Congress is good, as the widely supported amendments are not likely to be used as political fodder in the election year.

Stephanie is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues.

Ted 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.