Twice is a Coincidence, Three Times is a Pattern

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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.

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.

A Tribal Member’s “Closest Connections” May Determine Application of California’s Personal Income Tax

Income_Tax_HeaderBy: Eric D. Swenson | Senior Counsel | eric.swenson@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

A California resident is taxable on their worldwide income for California personal income tax purposes.  Due to California’s very high individual income tax rates (up to 13.3% in 2015), one of the more common questions posed to me (and one in which we handle often on audit) is whether an individual is deemed a “resident” of California when they spent time both within and without California during the tax year. Continue reading

Governor’s Office Wants Your Thoughts on New AB 52 CEQA Regulations

New AB 52 CEQA Regulations

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

The California Governor’s Office of Planning and Research (OPR) is requesting comment on proposed guidelines to incorporate Tribal Cultural Resources in its sample initial study form pursuant to the California Environmental Quality Act (CEQA), as amended by Assembly Bill 52 (AB 52) in 2014. The Discussion Draft of Proposed Changes can be viewed here. Continue reading

California is the First State to Ban the R-word Mascot

By: Anna Hohag | Intern | anna.hohag@procopio.com

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

This past Sunday Governor Gerald Brown signed into law the California “California Racial Mascots Act”(Assembly Bill 30), making California the first state in the country to officially ban the use of the derogatory “r*dskins” mascot, nickname, and team name in public schools.

Currently, there are only four public schools in California still bearing the r*dskins name; however the consequences of this law could extend well beyond these schools. As Ray Halbritter, the leader of the “Change the Name” campaign and Oneida Nation Representative, opined, “As California goes, the country goes.”  Once states begin banning use of derogatory terms like the R-word and social awareness increases on the issue, Dan Snyder, the owner of the Washington Football team, may finally have no choice but to do what is right and change the name. Continue reading