Employment law claims have been on the rise as employers grapple with changes in the workforce due to the COVID-19 pandemic. Tribes act as employers in various capacities. Procopio Associate Racheal M. White Hawk has written an article for tribal gaming operators, outlining five tips to help reduce their employment law liability. You can read the article here and contact Racheal at racheal.whitehawk@procopio.com or 619.906.5654 to learn more.
Have you checked your insurance policy lately? You may have a claim for business interruption coverage due to COVID-19.
Such claims should be vigorously pursued. Tribal businesses and casinos are key to Tribal governments as they provide vital revenue for government services such as healthcare, education and public safety.
If you have yet to review your policy, we encourage you to do so, and also to watch our complimentary webinar below, which discusses best practices when handling your possible COVID-19 insurance claim. You can find a full collection of articles and webinar recordings regarding COVID-19 on our website at Procopio.com/COVID19.
By: Cole Bauman | Summer Intern | cole.bauman@procopio.com
James 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.
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.
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.
By: Kele Bigknife | Intern | kele.bigknife@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
In June, the Lumbee Tribe of North Carolina filed suit in federal court against beer giant, Anheuser-Busch LLC (AB), and one of its distributors R.A. Jeffreys Distributing Co. LLC, alleging trademark infringement, unfair competition, and unfair and deceptive practices. Without the Tribe’s permission, AB and R.A. Jeffreys used the Tribe’s logo mark and slogan mark in promotional material advertising Budweiser and Bud-Light alcohol products at multiple convenience stores near the Lumbee reservation.
The lawsuit claimed that AB’s use of the allegedly infringing marks led to a significant amount of confusion within the community and among consumers, creating a false impression in the minds of the public that the Lumbee Tribe had approved of AB’s products being sold under its logo and slogan. According to the complaint, many members of the Lumbee Tribe found the advertising offensive because alcohol abuse is often associated with Native American communities.
AB and R.A. Jeffreys quickly settled the lawsuit with the Tribe in exchange for a “sizeable donation” to one of the Tribe’s nonprofits, cessation of the advertising campaign, and an apology for the improper use. The Tribe has announced that the settlement money will go towards supporting education and youth programs.
This story is an example that even against a huge multi-billion dollar corporation, a Tribe should fight to protect its valuable intellectual property rights and ensure that a Tribe’s name, customs and culture are not abused for third party financial gain. It also exemplifies the importance of Tribal Governments trademarking their identity to protect their image and expedite resolution when abuse occurs.
Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.
By: Kele Bigknife | Intern | kele.bigknife@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
If you have ever ventured onto the gaming floor of one of the many Indian casinos in California, you have likely been puzzled by the diceless craps tables, or the roulette games conspicuously missing the iconic ball-bearing wheel. These games are often wildly popular in casinos. The history behind these creative work-arounds lies in the origins of gambling in California, the enactment of California’s Gambling Control laws, and Tribal-state gaming compacts negotiated as early as 1999.
Beginning largely in the mid-1800’s, the allure of “striking it rich in the west” brought copious amounts of miners to the golden-state of California in search of their share of the riches. As settlement camps grew larger with an abundance of mostly risk-loving men, gambling tents flourished. However, soon after, public opinion turned in the United States with many viewing gambling as socially immoral. In 1860, California banned all banked games (games where the player bets against the house) with Penal Code § 330. Fast forward to the mid-1980’s, the Supreme Court of the United States handed down its decision in California v. Cabazon, which concluded that while States in a Public Law 280 state could prohibit activities on Tribal lands as part of a general law, if the activity is regulated rather than prohibited, the State did not have jurisdiction. This decision culminated in the passage of the 1988 federal gaming statute, the Indian Gaming Regulatory Act (IGRA).
IGRA provides the legislative and regulatory framework for Tribes to establish gaming operations in an effort to promote tribal economic development, self-sufficiency, and strong tribal governments. IGRA defines three classes of games that each have their own regulatory scheme, with Class III including the games commonly associated with Las Vegas-style gambling including roulette and craps. Before a Tribe can lawfully operate a class III gaming operation, Tribes must do the following: (1) look to see if the chosen form of class III gaming is regulated in the state where the Tribe is located, (2) negotiate a compact with the state that is approved by the Secretary of the Interior, and (3) adopt a Tribal gaming ordinance that has been approved by the Chairman of the National Indian Gaming Commission.
In 1999, the Governor of California negotiated gaming compacts with many of California’s federally recognized Indian Tribes. As part of these Tribal-state negotiations, house-banked card games were regulated, but certain games such as craps, roulette, and dice-games based on chance remained prohibited under the state constitution and laws. Essentially, California forbids games where a ball or dice alone determines the outcome. With these restrictions in mind, Tribal casinos got clever and invented new games that simulated the same or similar odds to craps and roulette, but retained the legal definition of house-banked card games.
California Roulette varies from casino to casino, but the idea remains consistent. Players wager bets on a typical roulette layout, but the ultimate winning pick is based on a card numbered and colored identical to that of a roulette wheel. Some casinos have a spinning card wheel that uses a flapper to stop on the winning card. Others casinos draw three random cards and place them face-down on three regions on the table labeled “1-12”, “13-24”, and “25-36”; representative of the range of numbers. A roulette wheel is spun, and the number range that the ball lands in determines which card is flipped over to reveal the winning card.
California Craps sidesteps the dice “chance” prohibition by using a combination of dice and playing cards, or cards alone. Again, the variations differ from casino to casino, but the essential idea is that cards are representative of the winning “dice” numbers, thus making it a house-banked card game.
The California Division of Gambling Control has released Tribal Casino Advisory bulletins in favor of allowing California Roulette and diceless forms of California Craps, but has explicitly called out some variations of California Craps, stating that it considers any house-banked games played with dice, whether or not they incorporate the use of cards, to be unauthorized Class III gaming activities. While these advisory opinions have scared some Tribes into doing away with any form of craps or roulette, it is important to remember that the advisory opinions do not constitute legal advice. As long as Tribes can continue to present the viable argument that the particular game is a house-banked card game, the Tribal casinos are functioning within the boundaries of their Compacts, and players can continue to “roll the dice.”
Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.
By: Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
There are many laws in the United States designed to protect the integrity of Indian arts, sacred artifacts, and human remains. As Anna Hohag described in the Struggle to Protect Against Cultural Genocide, these laws are not always as expansive as needed to fulfill the intended purpose. However, the Navajo Nation has coupled the strength of the Lanham Act, designed to promote competition and the maintenance of product quality, with the Indian Arts and Crafts Act to actively protect the integrity of the Navajo name and the many artisans and organizations that rely on the quality that name brings to sell their goods. Continue reading
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