Take Notice of the Rise of Native Women Candidates

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By: Karli Sultzbaugh | Law Clerk | karli.sultzbaugh@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Native Americans and Alaska Natives account for two percent of the total U.S. population, but represent less than 0.03 percent of people holding elected offices. Currently, there are only two Native Americans in the U.S. House of Representatives, none in the U.S. Senate, and only a handful in state governments. This paltry representation could change beginning in the 2018 midterm elections, led by an unprecedented number of Native women running for office this November.

This election, 53 Native women from 35 Tribes are running for office. They are seeking legislative seats from state assemblies to the U.S. House of Representatives, and executive positions including governor and lieutenant governor. These women seek elected leadership in the states of Alaska, Arizona, Arizona, California, Hawaii, Idaho, Kansas, Minnesota, Montana, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wisconsin.

This movement is noteworthy not just because Native women are standing up to be heard– their messages are finding appeal. Voters are showing their agreement with their messages through primary votes that placed them on dozens of general election ballots.

Deb Haaland (Laguna Pueblo) is probably the candidate who has received the most publicity thus far.  She is running for the U.S. House of Representatives to represent the First District of New Mexico, a seat she appears poised to win. She would be the first ever Native American woman in Congress. Paulette Jordan (Coeur D’Alene) is running for governor in Idaho and would be the first Native female governor. The lone Native American woman candidate in California is Caleen Sisk (Chief of Winnemem Wintu) who is running for State Assembly in Redding and would be the first Native woman to represent that Assembly District. The complete list can be found here.

There is no doubt that Native American individuals and communities are affected by nonnative governments every day. The historic, chronic under-representation of Native Americans in elected offices likely has several causes. Many Tribal leaders are busy running their Tribal governments, and governing their own people is a significant challenge. The investment of time seeking to drive governance in non-native governmental offices is often seen as an uphill challenge where those governments have historically developed policies that do not benefit Native communities. But perhaps the most important perception leading to misrepresentation is a fatalistic view that their voices are not heard or seriously considered by decision makers. That could change in many communities after November 6th.

Where they are successful, electing Native American women in state and federal government offices provide not only a vital, under-represented voice to governmental halls, it also demonstrates to younger generations of Native women and girls that their voice can be heard, and heard beyond their immediate community. It may signal a time for a different approach to government. Countries with more female lawmakers have made significant progress in areas such as education, labor-force participation, and paid leave for parents. Furthermore, a recent study found that countries with more women in parliamentary positions exhibit less corruption.

We encourage you to learn more about the messages of these 53 candidates, and particularly the ones near you. You will be provided a window into their communities and their vision of the future, and how we can build a more inclusive, just and verdant system of government. If you like the vision they bring, Bethany Yellowtail, noted Native fashion designer, created a t-shirt and a bipartisan campaign called #SheRepresents and #NativeVote 2018, which lists the names of each Native woman up for election this November on the back. Proceeds from the shirts will go to the Advance Native Political Action Fund, a nonpartisan project born of the need to have Native American representation in elected and appointed offices throughout the country.

Karli Sultzbaugh is a law clerk with Procopio’s Native American Law Practice group and a member of the Pechanga Band of Luiseño Mission Indians. She is a recent graduate of the University of California, Los Angeles School of Law and is awaiting her California Bar results.

Procopio_Griswold_Theodore_Bio PhotoTed 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.

FEDERAL DISTRICT COURT IN TEXAS DEFIES PRECEDENT, HOLDS ICWA UNCONSTITUTIONAL

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By: Racheal M. White Hawk | Associate | racheal.whitehawk@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Last week, federal district court Judge Reed O’Connor in Texas dealt a blow to decades of efforts to preserve Native American families by finding that the Indian Child Welfare Act of 1978 (“ICWA”) is unconstitutional in Brackeen v. Zinke, No. 4:17-cv-00868-O (N.D. Tex. Oct. 4, 2018).  Selectively ignoring long-held Supreme Court Indian law precedent, the ruling is the first in the country to find that ICWA in its entirety is unconstitutional.  The ruling raises serious questions about whether it will survive appellate review and what impact it will have on Indian communities.

The Brackeen case involves three Indian children in need of foster care and adoptive placement.  As Indian children, the federal ICWA takes precedence in their foster care and adoptive placement proceedings in state court, requiring preferences for placing Indian adoptees in Indian homes to preserve Indian families and tribal cultures.  Congress enacted ICWA in 1978 with its placement preferences in response to the Indian adoption era, a period of approximately thirty years in which 25 to 35% of Indian children were forcibly removed from their homes and 90% were placed in non-Indian homes resulting in broken families and cultural depletion in many tribal communities.

The Brackeen case was brought by individual non-Indian parents seeking to adopt Indian children, who were joined by three state governments (Texas, Louisiana, and Indiana) and supported by anti-ICWA groups that filed numerous similar suits throughout the country, but had not prevailed in striking down ICWA.  The defendants included the federal government, with several Tribes intervening in the proceedings.

The district court first held that ICWA’s preference to place Indian children in Indian homes is race-based, and under “strict scrutiny” review, the law is not narrowly-tailored to further a compelling government interest.  The district court held that ICWA, therefore, violates the equal protection component of the Fifth Amendment’s Due Process Clause.  This holding ignores well-established Supreme Court precedent regarding American Indian tribes as political entities, not racial groups, to which the federal government owes a unique trust responsibility.  See Morton v. Mancari, 417 U.S. 535, 554–55 (1974).  Moreover, just last year, the Supreme Court declined to review the argument that ICWA is a race-based law, resulting in the upholding of an Arizona Court of Appeals’ decision that ICWA is not based on race.  See S.S. v. Stephanie H., 388 P.3d 569, 576 (Ariz. Ct. App. 2017), cert. denied sub nom. S.S. v. Colorado River Indian Tribes, 138 S. Ct. 380 (2017)).

The Texas district court then held that the federal government unlawfully requires states to commit resources to enforcing ICWA, in violation of the Tenth Amendment’s prohibition on commandeering state legislatures.  The district court also briefly addressed the plaintiffs’ other arguments, holding that Congress unlawfully delegated legislative power to tribes under ICWA, in violation of Article I of the Constitution, and that the Indian Commerce Clause does not constitutionally save ICWA.  The court also found the ICWA regulations invalid.

Although the decision in Brackeen purports to strike down ICWA and its regulations as unconstitutional, the ruling only affects the parties in the case.  The intervenor tribes are seeking a stay, as well as appellate review of the decision.  Numerous organizations and state governments supporting tribes and ICWA have filed amicus briefs in the case and have expressed desire to continue supporting the case on appeal.  When appealed, the case will progress to the U.S. Court of Appeals for the Fifth Circuit.

The plaintiffs in the Brackeen case are supported by organizations that unsuccessfully presented similar arguments to the U.S. Court of Appeals for the Ninth Circuit.  See Carter v. Tahsuda, No. 17-15839, 2018 WL 3720025 (9th Cir. Aug. 6, 2018).  The organizations simultaneously targeted a different venue–the District Court for the Northern District of Texas–hoping for a better result, which they received.  (Judge O’Connor, a GOP appointee, has been a target judge for conservative advocates contesting national issues such as transgender rights, DACA, and the Affordable Care Act.)  Although the Ninth Circuit did not weigh in on the merits of the arguments in the Carter case, if the Fifth Circuit were to hold ICWA unconstitutional, differing outcomes of circuit cases could influence the Supreme Court to grant review on the constitutionality of ICWA.  The recent addition of Brett Kavanaugh to the Supreme Court may not bode well for tribes if the Court were to review ICWA’s constitutionality.  Kavanaugh authored an Amicus Brief in Rice v. Cayetano, 528 U.S. 495 (2000), on behalf of a conservative think tank in which he argued that Native Hawaiians were racial groups, not political entities.  The Texas district court in Brackeen cited Rice in holding ICWA unconstitutional as a race-based law.  There is concern that Kavanaugh may view American Indian tribes in the same way, i.e., as racial groups, not political entities.  For now, the Brackeen case only affects the parties involved.

If the Texas ruling is upheld, it could have severe ramifications in federal Indian law, potentially invalidating numerous federal laws that Congress has enacted based on its special trust responsibility to tribes.  Tribes, other entities, or individuals concerned about this ruling and interested in supporting ICWA can show their support in several ways.  One way to support ICWA is to vote for and financially support government officials in upcoming elections who will support ICWA.  Another way is to support, financially or otherwise, organizations currently working to support the tenets of ICWA, such as the National Indian Child Welfare Association, the Native American Rights Fund, the Association on American Indian Affairs, and the National Congress of American Indians.  If you or your family members have been affected by pre-ICWA removal policies, contact the Partnership for Native Children, who can help you share your story so that others will better understand why ICWA is such an important law and what is at stake with the Brackeen decision.

Procopio will continue to monitor the Brackeen case closely as it progresses in the courts.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is an Associate and member of Procopio’s Native American Law Practice Group.  Racheal is a member of the Arizona Bar and is awaiting results from the California Bar.  Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

Ted GriswoldTed 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 ACCEPTING APPLICATIONS FOR PROCOPIO’S SUMMER 2019 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

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

Procopio has a long-standing tradition of providing growth opportunities to the communities we serve.  Procopio’s Native American Law Practice Group extends this tradition by actively investing in the future leaders of Indian Country through offering paid internships for Native American law students or law students with an emphasis in Native American law.  Please join us in identifying qualified legal students within Native American communities that may be interested in being part of this engaging opportunity.

The Native American Law Internship provides an opportunity for two Native American law students to gain hands-on experience dealing with everyday legal issues facing Native American communities.  Interns are involved in matters that deal with specific Indian law-related legal practice matters and other legal problems facing tribal governments and Native entities.  Procopio Interns reach out to local Native American youth to provide guidance and inspiration regarding educational direction and opportunities.

Interns join a nationwide network of the next generation of Native American Law attorneys in an active alumni program consisting of judicial clerks, governmental attorneys and associates at law firms.  Following the internship, we remain active with our alumni to mentor and prepare them for their success in the industry.  If you are interested in where the past interns have directed their professional paths following their summer at Procopio, see our Fall 2018 update here.  Our most recent interns, Aaron Fournier and Summer Carmack, have returned to their final years at University of Oklahoma and University of Michigan Law Schools.

To learn more about our practice area and legal issues affecting Native Americans, you may consider subscribing to our blog by clicking follow on the bottom left of this page.  Then, each week, you will receive up-to-date information relating to law, policy and current events in Indian Country from Procopio attorneys and guest contributors.

Applications are due Wednesday, October 31st by 5 p.m. PST.

Internship applications should include:

1. A writing sample
2. Law school transcript
3. Resume
4. Cover letter identifying why this is an opportunity you would like to pursue, any tribal governmental experience you have and why Native American legal issues are significant to you.

The program is ten weeks and begins after May 15, 2019. Applications can be emailed to: ted.griswold@procopio.com or sent via USPS mail to:

Procopio, Cory, Hargreaves & Savitch, LLP
Attention: Ted Griswold
525 B Street, Suite 2200
San Diego, California, 92101

Ted Griswold
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.

THE FUTURE OF THE NATIVE AMERICAN BAR IS LOOKING (PROCOPIO!) STRONG

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

Each year, I have the pleasure to work closely with the bright, motivated interns that spend their summers with our Native American practice group. Better yet, I get to watch the success of our previous interns that have joined and strengthened the Native American Bar nationwide. As we are preparing to review a new set of Procopio Native American Internship applications for the summer of 2019, we thought that it would be a good time to share with you and applaud the accomplishments of our past interns. Congratulations to all. We look forward to continue working with you as colleagues in your professional careers! For students interested in joining this great network of tomorrow’s Native American legal leaders, applications are open through October 31, 2018.

Eric Abeita (2014), from Isleta Pueblo, is a member of the New Mexico Bar and holds the position of General Counsel for the Pueblo of Pojoaque in Santa Fe New Mexico. Eric is a 2015 graduate of University of New Mexico College of Law School, where he was the Managing Editor for the Tribal Law Journal and gathered valuable legal clinic experience with the Southwest Indian Law Clinic. Eric was also co-founder and co-owner of D.R. Cooperage and Grain, a small business in Isleta Pueblo, New Mexico.

Nichole (Nikke) Alex (2015) is a member of the Navajo Nation and graduated from the University of New Mexico College of Law. Nikke works with the Changing Woman Initiative assisting with strategic planning and enjoying every minute with her baby son. In her last year of law school, Nikke was a judicial extern with the Pueblo of Isleta Tribal Court where she assisted with developing a Juvenile Detention Alternative Program and a Peacemaking Program to promote a non-adversarial forum for resolving disputes where Pueblo tradition and culture are utilized to promote healing. In May 2016, she was able to meet with U.S. Supreme Court Justice Sotomayor on behalf of the Tribal Court, as part of Justice Sotomayor’s outreach to learn more about the difficult issues faced by Indian Country. Additionally, during her law school career, Nikke investigated the linkage between mineral extraction and violence against Native women and has worked with Tribes to implement safeguards to protect Native women and children.

Fernando Anzaldua (2012) is a citizen of the Tohono O’odham Nation. Fernando is a field attorney for the National Labor Relations Board, where he has experienced significant success in federal court, administrative hearings, and bankruptcy court. He has successfully first-chaired a number of trials on behalf of individual employees, unions, and employers. He is a 2013 graduate of the Sandra Day O’Connor College of Law at Arizona State University where he also earned an Indian Legal Certificate. He also gives back to his community by serving on the Executive Board for Los Abogados Hispanic Bar Association, after previously serving on the Board of Whisper n Thunder, Inc., a nonprofit dedicated to empowering Native Americans through education, awareness and opportunity.

Kele Bigknife (2016) is a citizen of the Cherokee Nation, and a graduate of the University of Michigan Law School currently awaiting California Bar results. He is currently Regulatory Affairs and Corporate Counsel at eco/ATM Gazelle in San Diego. Mr. Bigknife was a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review and was a student attorney for the Michigan Veterans Legal Clinic, representing veterans and their immediate families in civil legal matters. He previously worked at a Southern California law firm where he gained litigation experience and assisted in drafting depublication requests to the California Supreme Court in issues regarding tribal sovereignty.

Daune Cardenas (2017) is a citizen of Pascua Yaqui Tribe in Arizona and is a graduate of the University of Arizona James F. Rogers College of Law. Ms. Cardenas is currently working as in-house counsel at the Office of the Attorney General for the Pascua Yaqui Tribe, working primarily in ICWA case files and developing methods to prosecute Violence Against Women’s Act (VAWA) cases within Tribal Court. Ms. Cardenas is active in the Native American Bar Association’s Indian Child Welfare Act Subcommittee and is a social director of the Native American Law Students Association Chapter for the University of Arizona. Ms. Cardenas received the Native American Bar Association of Arizona’s scholarship for community activities while in law school.

Summer Carmack (2018) is entering her third year at the University of Montana Law School. She is the managing editor of the Public Land and Resources Law Review and President of the Student Bar Association at the law school. She recently organized the speaker panel for the Native American Law Student Association’s Indian Law Week and continues her work through her last year at the Marjorie Hunter Brown Indian Law Clinic developing natural resources management policy templates for individual Tribes. Summer continues to provide input for Procopio’s blog “The Blogging Circle.”

Stephanie Conduff (2013) is a citizen of the Cherokee Nation and is admitted to practice before the U.S. District Court, Oklahoma, District Court of The Chickasaw Nation, The Supreme Court of Cherokee Nation, Muscogee (Creek) Nation, Osage Nation and Chickasaw Nation. She lives and works in her community in Oklahoma as an attorney, business owner of Leche Lounge and training Native entrepreneurs on best practices for profitability through sustainable development. She launched Leche Lounge, a manufacturing company for portable lactation suites – or Mother’s Rooms – for use in airports, the workplace, stadiums and military bases worldwide. Leche Lounge has been featured in Forbes, Good Morning America, Indian Country Today and Native Business Magazine. Stephanie is currently working with Project Entrepreneur in New York City, a project sponsored by Rent the Runway and UBS. She graduated from the University of Oklahoma College of Law. Stephanie served as a judicial clerk for the late Honorable Chief Justice Barbara Smith of the Chickasaw Nation Supreme Court and is certified to assist Tribal courts as a Peacemaker. Stephanie was with Procopio for three years first as a summer intern, then as a law clerk and worked full-time for the firm as an Associate until 2016.

Trinidad Contreras (2011) is a citizen of the Iipay Nation of Santa Ysabel and is a descendant of the Pala Band of Mission Indians. He is a member of the Alaska Bar and currently Assistant Municipal Attorney for the City and Borough of Juneau. His practice is primarily in civil law but occasionally works on criminal matters. He is the 2017-2018 President for the Juneau Bar Association. He is married to Madeline Soboleff Levy, general counsel for the Central Council of Tlingit and Haida Tribes of Alaska. Together, they are the proud parents of Sofia, age 7, and Guillermo “Memo,” age 1.

Aaron Fournier (2018) is a citizen of the Chickasaw Nation and in his final year at the University of Oklahoma College of Law. He is currently serving as the Treasurer for both the University of Oklahoma College of Law’s Aviation Law Society and Native American Law Student Association. He is also a Teaching Assistant for the College of Law’s Master of Legal Studies in Indigenous Peoples Law program. Mr. Fournier also works for the Chickasaw Nation, at the South Central Climate Adaptation Science Center, where he is a Bureau of Indian Affairs Intern. The Chickasaw Nation is one of two Indigenous Nations who are consortium members of the Center. He is also involved with the Oklahoma Tribal Finance Consortium, which is a non-profit organization designed to help Oklahoma tribal leaders and treasurers build opportunities to cost-share and engage in other mutually beneficial arrangements for Tribes.

Anna Hohag (2015) is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, California. She is a recent graduate of the James E. Rogers College of Law at the University of Arizona, where she served as the President of the UA Native American Law Students Association and a member of the California. She is currently working with the Bishop office of California Indian Legal Services, which allows her to work on matters for her home Tribal government. Anna was the University of Arizona 2017 recipient of the Rose Davis Public Service Award and the University of Arizona Native American Student Affairs (NASA) Outstanding Graduate Service Award in recognition of her service to Native youth at the University of Arizona. During Law school, she also served as the Area 1 Representative (CA, NV, HI, AZ) for the National Native American Law Students Association and is a Board Member on the California Indian Law Association.

Kelsey Leonard (2015) is a citizen of the Shinnecock Indian Nation and received her law degree at Dusquene University Law School. She is the prestigious Philomathia Trillium Scholar by McMaster University (Hamilton, Ontario), where she will receive her PhD in Comparative Public Policy, focusing her work on indigenous water governance. Kelsey sits on the McMaster University Research Ethics Board, Indigenous Research Institute Committee, Authentic Indigenous Research Partnership Committee—First Nations Water Initiative and the Indigenous Sustainability Degree Program Working Group, Six Nations Polytechnic. She teaches Indigenous Water Justice and has 8 publications, 15 conference presentations, and 14 invited speaking engagements in recent years. Kelsey currently sits on the Great Lakes Water Quality Board, an international joint commission, and was previously the Tribal Co-Lead on the Mid-Atlantic Regional Planning Body for the National Ocean Council charged with guiding the protection, maintenance, and restoration of America’s oceans and coasts. She is also coauthor of a recent collaboration on Indigenous Water Justice.

Christopher Scott (2014) is a citizen of the Cherokee Nation and received his law degree from the University of Oklahoma College of Law (2015), where he was the Note and Comment Editor for the American Indian Law Review. A member of the Texas Bar, Christopher is currently working as Counsel for Governmental Affairs at Insperity in Houston Texas. Previously, Christopher was an associate with Ernst & Young in Dallas, Texas, working in labor/employment law in their People Advisory Services Department.

Jaclyn Simi (2012) is a member of the Seminole Nation of Oklahoma. She graduated with honors from Notre Dame de Namur University and received her law degree from California Western Law School (2012), where she was President of the Native American Law Students Association. Ms. Simi is currently an associate with the San Diego office of Ogletree Deakins, practicing employment litigation and counseling with an emphasis on sports law. Ms. Simi has been named a San Diego Super Lawyers Rising Star for 2016 and 2017 and to San Diego Business Journal’s Best of the Bar list (2106). She is an active member of the Lawyers Club of San Diego. Ms. Simi is also enjoying the experience of being a new mom!

Karli Sultzbaugh (2017) is a member of the Pechanga Band of Luiseno Mission Indians, a graduate of UCLA School of Law. Ms. Sultzbaugh, a Native San Diegan, has strong interest in Tribal environmental issues working with the Tribal Legal Development Clinic at UCLA. She was the President of the Native American Law Students Association at UCLA and one of the staff editors for the Indigenous Peoples Journal of Law, Culture and Resistance. Ms. Sultzbaugh also is a previous litigation intern at Compassion Over Killing which enhanced her strong writing and research skills, and worked as an undergraduate intern at the U.S. Attorneys’ Office in San Diego. She is currently working as a law clerk at Procopio as she awaits her bar exam results.

Heather Torres (2016) is a citizen of the Pueblo of San Ildefonso and Navajo Nation descendant. She is a recent graduate of UCLA School of Law and is a member of the California Bar. Heather is the Director of the Native American program at the University of Redlands. She was a UC President’s Public Service Law Fellow at the Tribal Law and Policy Institute in West Hollywood, CA. During law school, Ms. Torres externed with the Children’s Law Center, Los Angeles in the Indian Child Welfare Court. She was also Executive Editor of the Indigenous Peoples’ Journal of Law, Culture & Resistance and Senior Editor for the Chicano/Latino Law Review. Ms. Torres has a Masters in Collaborative Educational Leadership. She served as the President and Alumni Chair for NALSA at UCLA, volunteered with El Centro Legal: Education Rights Clinic, and taught law-related topics to local high school students in her spring semester.

Ted GriswoldTed 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.

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.

THE SUPREME COURT’S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

THE SUPREME COURT_S NON-DECISIONS ARE SUPPORTING TRIBAL WATER AND TREATY RIGHTS

By:  Aaron Fournier | Intern | aaron.fournier@procopio.com
Summer Carmack | Intern | summer.carmack@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The Ninth Circuit ruled in favor of Tribes and their treaty and water rights in two separate and significant cases last year and, as expected, both cases were appealed to the U.S. Supreme Court. Last November we posted (see post here) about one of these cases, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Court upheld the Ninth Circuit’s decision by denying certiorari. Earlier this month (on June 11, 2018) the Court affirmed the other Ninth Circuit decision, United States v. Washington (9th Cir. 2017) 853 F.3d 946, with a split 4-4 opinion (see the Court’s opinion here). Both decisions affirm water and treaty rights of tribes and establish tribes as key decision makers in the water use context.

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District the Ninth Circuit (and later the Supreme Court, which concurred by declining to hear the case) held that the federal “reserved rights” doctrine for water, as established in Winters v. United States, 207 U.S. 564 (1908), applies to both surface water and groundwater. Agua Caliente also affirms that (1) the application of the “’primary-secondary use’ distinction” from United States v. New Mexico, 438 U.S. 696 (1978) is appropriate when determining “how much water is reserved” and does not infer a deferral to state water law on the part of Congress (849 F.3d 1262, 1268-70 (emphasis in original)); (2) because the Tribe’s water rights are federally-reserved, they cannot be lost through non-use; and (3) the Tribe has reserved water rights if the “water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.” (Id. at 1272). Therefore, because the Agua Caliente reservation was established for “the permanent use and occupancy of the Mission Indians[,]” that purpose could only be fulfilled if the rights to the groundwater underlying the reservation were granted appurtenant to the reservation land. Id. at 1265 (quoting Exec. Order of May 15, 1876).

In United States v. Washington, the Ninth Circuit held that a treaty guaranteeing tribes the continued right to gather fish from rivers was violated by the state’s installation and lack of maintenance of culverts along these rivers. The Tribe argued that the culverts were decreasing the amount of fish in the rivers by impeding the movement of the fish, thereby depriving them of their treaty rights, while the state argued that the treaty did not guarantee there would be fish in the river. The Ninth Circuit held that the Tribe’s belief that an adequate amount of fish would be available to them in the rivers, though not explicit in the treaty, was reasonable and the state violated the treaty by building culverts that prevented the fish from freely moving up and down the river. The Supreme Court let this decision stand through affirmation by an equally divided court.

Both decisions increase the likelihood of tribes being invited to the table when project and land use decisions affecting water are made by state, county, and city governments. The two cases help establish tribes as essential partners for local governments by affirming that tribes have a vested interest in making land use decisions. The Court has implicitly supported tribal water and treaty rights two times this term. This could be the beginning of a new era of federal support for tribal treaty rights, which is something others have noticed (see Culverts Win May Indicate A New Era For Tribal Treaty Rights here). Regardless, these decisions provide notice to state and local governments that tribes should be included in discussions regarding decisions affecting water use both above and below the ground. It will be interesting to follow the next two phases of litigation in the series of three for Agua Caliente, whether the tribe (1) owns the beneficial interest in the groundwater aquifer beneath its reservation; (2) is entitled to water of a certain quality, in addition to quantity; and (3) the quantity of groundwater rights the Tribe is entitled to put to use.

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.

Summer Carmack is a rising 3L at 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 on staff of the Public Land and Resources Law Review.  Summer 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.

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

By:      Ted Griswold | Partner | ted.griswold@procopio.com

In a move that is supported by many Tribal practitioners, the Tribal Court-State Court Forum is recommending an amendment to the California Rules of the Court, Rule 9.40, to waive the requirement that out-of-state counsel appear pro hac vice for the purposes of representing Tribes in Indian Child Welfare Act (ICWA) cases in California.  This proposed move is important for two reasons in California:

  1. California has an extraordinarily high number of appeals of ICWA cases, particularly by Tribes, indicating that at the initial decision level Tribal Governments are often not well represented in ICWA cases.
  2. In addition, California cities were destinations for many of the removal efforts of the federal government in the 20th century when families and children of Tribal communities were removed from reservations in assimilation efforts. As a result, there are a high number of Native American individuals in California whose heritage derives from tribes outside of the state.

A combination of these two factors has raised common concerns for the ability of Indian Children and their Tribal interests to receive proper protection under ICWA and the barriers to out-of-state Tribes’ representation in ICWA cases in the State of California.  The proposal partially stems from a California ICWA Compliance Task Force presentation to California Attorney General Xavier Becerra, which highlighted the problems associated with representation for out-of-state Tribes and recommended the revision for pro hac vice rules.  Review of the rules can be found here.  Comments regarding the proposed rule change, due by June 8, 2018, may be submitted to the Judicial Council of California by clicking here.  If adopted, the revised rule would take effect January 1, 2019.   The Judicial Council’s invitation to comment and additional information can be found here.

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.

More Appreciation Needed in Graduation Ceremonies

More Appreciation Needed in Graduation CeremoniesBy: Gabriela Rios | Associate | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On October 15, 2017, Governor Brown vetoed Assembly Bill 233, which would have guaranteed students the right to wear religious, ceremonial, or cultural adornments at school graduation ceremonies.  In his veto message Governor Brown stated that “Students have a well-established right to express their views through symbolic acts under the state Education Code and the Free Speech Clause of the First Amendment.”  He went on to say in the event of a dispute, “those closest to the problem — principals and democratically elected school boards – are in the best position to make wise judgments.”

However, as noted in this blog in Appreciating Diversity in Graduation Ceremonies, those “wise judgments” often result in students being routinely prevented by school principals and school boards from wearing eagle feathers and other religious, ceremonial and cultural adornments at their graduation ceremonies.  In many cases to actually enjoy this “well-established right”, students have had to sue their school districts to establish the validity of their symbols.

While it is a positive note that the Governor specifically recognized a student’s right to express their views under the State Education Code and the First Amendment, he failed to recognize that the acknowledgment of a major accomplishment with a traditional symbol of honor does not merely express a “view”, rather, it is the symbol of a culture (indigenous) succeeding in the context of another culture (public education).  Refusing to allow such adornments by individual principals or school districts harkens back to assimilation policies, whether intentional or not.  It would be helpful for the Governor’s Office to follow up its veto statement with an education to school districts regarding the nature and purpose of cultural adornments, lest they continue to lump such requests with protests, as potentially disruptive exercises of free speech.

We encourage native students to continue to push for their right to wear religious, cultural and ceremonial regalia and adornments at their graduation ceremonies and celebrate organizations such as the California Indian Legal Services that have fought, and will no doubt continue to fight, for this important right for graduating students.

Gabriela Rios -LJR_2938Gabriela is an associate with the Native American Law Practice Group 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 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.

NOW ACCEPTING APPLICATIONS FOR PROCOPIO’S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

NOW ACCEPTING APPLICATIONS FOR PROCOPIO_S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAM

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

Procopio has a long-standing tradition of providing growth opportunities to the communities we serve.  Procopio’s Native American Law Practice Group extends this tradition by actively investing in the future leaders of Indian Country through offering paid internships for Native American law students or law students with an emphasis in Native American law.  Please join us in identifying qualified legal students within Native American communities that may be interested in being part of this engaging opportunity.

The Native American Law Internship provides an opportunity for two Native American law students to gain hands-on experience dealing with everyday legal issues facing Native American communities.  Interns are involved in matters that deal with specific Indian law-related legal practice matters and other legal problems facing tribal governments and Native entities.  Procopio Interns reach out to local Native American youth to provide guidance and inspiration regarding educational direction and opportunities.

Interns join a nationwide network of the next generation of Native American Law attorneys in an active alumni program consisting of judicial clerks, governmental attorneys and associates at law firms.  Following the internship, we remain active with our alumni to mentor and prepare them for their success in the industry.  If you are interested in where the past interns have directed their professional paths following their summer at Procopio, see our recent update here.

To learn more about our practice area and legal issues affecting Native Americans, you may consider subscribing to our blog by clicking follow on the bottom left of this page.  Then, each week, you will receive up-to-date information relating to law, policy and current events in Indian Country from Procopio attorneys and guest contributors.

Applications are due Tuesday, October 31st by 5 p.m. PST.

Internship applications should include:

  1. A writing sample
  2. Law school transcript
  3. Resume
  4. Cover letter identifying why this is an opportunity you would like to pursue, any tribal governmental experience you have and why Native American legal issues are significant to you.

The program is ten weeks and begins after May 15, 2018.  Applications can be emailed to: ted.griswold@procopio.com or sent via USPS mail to:

Procopio, Cory, Hargreaves & Savitch, LLP
Attention: Ted Griswold
525 B Street, Suite 2200
San Diego, California, 92101

Our team looks forward to learning more about you, your interests and adding to our nationwide network of Procopio Alumni throughout Indian Country – please apply today!

Ted GriswoldTed 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.

 

“WHAT’S UP? NATIVE AMERICAN AVIATION AND AIRSPACE”

“WHAT_S UP NATIVE AMERICAN AVIATION AND AIRSPACE”

By:      Sandra L. Shippey | Partner | sandra.shippey@procopio.com (1)

In 2016, William M. Haney (2) published an excellent comprehensive analysis of issues arising in connection with tribal sovereignty over tribal airspace in Protecting Tribal Skies:  Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace.  In this first of its kind article, Mr. Haney analyzed the importance of tribal sovereignty in a tribe’s own airspace and described potential objections that may be raised by the Federal Aviation Administration.  The Blogging Circle published an article by Sandra L. Shippey on November 11, 2016 summarizing Mr. Haney’s article and discussing some of these issues, but our reference and link to Mr. Haney’s article did not appear in our article until after a reader clicked through to the entire article.  We decided to re-issue and expand on the original article with personal contributions from and more visible credit to Mr. Haney.

Mr. Haney acknowledges in his article that any nation is entitled to “complete and exclusive sovereignty over the airspace above its territory.” (3)  He describes the unique sovereign status of Indian tribes in the United States as self-governing entities, which are also subject to the plenary power of the United States and regarded as “domestic dependent nations” under federal law.  This status complicates the question of control over tribal airspace. (4)

To focus on these issues, Mr. Haney describes in his article a situation in 2009 with the Hualapai (wal-lah-pie) Tribe, a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon. (5)  The Hualapai Tribe has an airport on its land and relies, in part, on tourism to fund its tribal government and for income for its members. (6)  Currently, the Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.

Mr. Haney relates a 2009 incident in which a non-Indian freelance tour guide and photographer, Lionel de Antoni, flew a fan-powered paraglider over the Hualapai reservation without permission from the Hualapai Tribe.  Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation. Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them. (7)  He did not obtain permission from the Tribe to fly over the Tribe’s reservation. (8)

This matter raised interesting legal issues regarding the confluence of Native American law and federal aviation law.  Mr. Haney describes these issues in his article:

A central point of discussion that quickly emerged was whether the Hualapai Tribe has jurisdictional authority to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe.  Paul Charlton, an attorney representing the Hualapai Tribe in the case, stated plainly that the Hualapai Tribe has “the right to determine who will or will not fly over Hualapai territory.”  A spokesman for the Federal Aviation Administration (“FAA”) initially told a reporter that “[a] tribe has no authority over airspace and cannot charge people for using it,” but did not elaborate on the legal basis for this claim other than to assert “[t]he federal government has sole jurisdiction over the nation’s airspace.” (9)

The Hualapai Tribe and Mr. De Antoni settled their case, and to date, there is no definitive statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation.  The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace.  However, according to Mr. Haney, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). (10)

According to Mr. Haney’s article, tribal governments, as sovereign entities, are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens. (11)  They have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians. (12)  The question is whether this right to exclude covers tribal airspace.  Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft). (13)  Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft. (14)  In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. (15)

However, Mr. Haney acknowledges that there may be several potential objections to allowing tribal authority over tribal airspace.  First, opponents may assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace. (16)  Second, opponents may argue that Indian tribes “have been divested of sovereignty in airspace and assertion of tribal jurisdiction in airspace – particularly over non-members – is inconsistent with the domestic dependent status of Indian tribes under federal law.” (17)  Third, opponents may argue that Indian tribes do not possess regulatory jurisdiction over non-member pilots and therefore cannot enforce tribal regulations in airspace. (18)

Mr. Haney also acknowledges that the FAA aviation regulatory system is the “global safety standard against which other national aviation systems are measured.” (19)  Would allowing tribes to control airspace above their land jeopardize the safety of the traveling public?

Mr. Haney proposes political and regulatory solutions to “the uncertain status of the ability of tribes to regulate tribal airspace and he argues that a cooperative relationship between Indian tribes and the federal government is necessary to protect tribal interests and the integrity of domestic aviation activities.” (20)  Mr. Haney ultimately concludes that “[a]s with many issues affecting Indian tribes, federal legislation could be the key to bringing clarity to these issues by affirming the authority of tribes to regulate at least some aspects of tribal airspace.” (21)  He also advocates for a cooperative approach with the FAA, given the federal agency’s authority and expertise in matters involving air safety in the United States. (22)

In 2015, while an Associate Attorney at the law firm Berkey Williams LLP, Mr. Haney filed a public comment on the FAA’s then-proposed (and since finalized) drone regulations.  In the letter, Mr. Haney asked the FAA to initiate formal consultation with Indian tribes as it developed the new airspace regulations.  In its response to public comments, the FAA acknowledged Mr. Haney’s request and comments with the following reply:

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to uniquely or significantly affect their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this rule. However, the FAA has entered into government-to-government consultation with the Northern Arapaho Nation on its general use of UAS. In addition, the Nez Pierce tribe has contacted FAA to discuss obtaining a section 333 exemption to operate small UAS under existing rules.

…  The FAA notes, however, that state governments have historically been able to regulate the takeoffs and landings of aircraft within their state boundaries. The FAA anticipates that the Tribes would be able to exercise similar internal sovereignty with regard to the takeoffs and landings of small UAS within their territories. Thus, while preemption is beyond the scope of this rule, the FAA will conduct outreach to tribes seeking information about their ability to regulate small UAS operations conducted within their territory to see how their concerns could be addressed within the broader UAS integration effort. (23)

On May 25, 2017, United States Senator Diane Feinstein introduced the Drone Federalism Act of 2017 in the United States Senate.  The stated purpose of the Act is “[t]o preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.” (24)  An acknowledgment of tribal concerns about the use of airspace by drones, the Act would require that the FAA, “[i]n prescribing regulations or standards related to civil unmanned aircraft systems, the [FAA] shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted [by federal regulation of airspace].” (25) The Act would also require the FAA to “preserve, to the greatest extent practicable, legitimate interests of State, local, and  tribal governments” in “prescribing regulations or standards related to civil unmanned aircraft systems…” (26)

According to Mr. Haney, the response by the FAA and the introduction of the Drone Federalism Act represent positive movement toward acknowledgment by the federal government that tribal governments have legitimate interests in regulating certain activities in tribal airspace.  He believes that tribal governments have a real opportunity to work with their federal, state, and local counterparts to develop sensible solutions to airspace issues while respecting and promoting tribal sovereignty.  Mr. Haney notes that the concerns of tribal governments about the uses of drones in airspace are shared by state and local governments, and that political movement toward the development of local regulatory solutions (27) presents a unique opportunity for tribes to align themselves with other governments on this issue.

Mr. Haney has raised some important issues and conflicts arising from Native American sovereignty and federal control of U.S. airspace.  The FAA is not likely to easily accede jurisdiction over U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes.  However, it would seem prudent for the FAA to work with tribes and allow them to realize sovereign control at least with respect to low flying flights over tribal lands or create regulations for flights over tribal lands, consistent with FAA standards.

Shippey 2013Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.  Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

Ted GriswoldTed 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.

 


(1) This article was developed with editorial contributions and input from William M. Haney.

(2) William M. Haney is a Staff Attorney for the San Manuel Band of Mission Indians and the Treasurer of the California Indian Law Association.  Mr. Haney is a graduate of the UCLA School of Law and is licensed to practice law in the state of California.  During law school, Mr. Haney was a Staff Member and Associate Editor of the UCLA Law Review and served as Secretary and Alumni Chair of the UCLA Native American Law Students Association.  His practice areas include tribal governance, economic development, environmental law, intellectual property, employment, real estate, the Indian Child Welfare Act, and the protection and promotion of tribal sovereignty.  Mr. Haney is an enrolled member of the Seminole Nation of Oklahoma.

(3) Id. at p. 3.

(4) Id. at p. 3.

(5) Id. at p. 5.

(6) Id. at p. 4.

(7) Id. at p. 5.

(8) Id. at p. 5.

(9) Id. at p. 5.

(10) Id. at p. 19-20.

(11) Id. at p. 28.

(12) Id. at p. 30.

(13) Id. at p. 31

(14) Id. at p. 31.

(15) Id. at p. 31.

(16) Id. at p. 33.

(17) Id. at p. 34.

(18) Id. at p. 34.

(19) Id. at p. 35.

(20) Id. At p. 1.

(21) Id. at pp. 36-37.

(22) Id. at 37.

(23) Fed. Aviation Admin. and the Off. of the Sec. of Trans., Dept. of Trans., Final Rule, Fed. Reg. Vol. 81, No. 124, at p. 42189 (June 28, 2016) (emphasis added), available at https://www.gpo.gov/fdsys/pkg/FR-2016-06-28/pdf/2016-15079.pdf.

(24) Drone Federalism Act of 2017, S. 1272, 115th Congress, 1st Session, introduced on May 25, 2017.

(25) Id. at 2-3 (emphasis added).

(26) Id. at 2.

(27) U.S. News & World Report, Nick Muscavage and Andrew J. Goudsward, Courier News & Home Tribune, Drone Flyers Think About Regulation as Industry Takes Flight, July 23, 2017, available at https://www.usnews.com/news/best-states/pennsylvania/articles/2017-07-23/drone-flyers-think-about-regulation-as-industry-takes-flight (discussing efforts by state and local governments to regulate drone use in airspace).