Using Preemptive Actions to Protect Cultural Resources- The Pit River Tribe Thinks Ahead

shutterstock_789723559By: Karli Joseph | Associate | karli.joseph@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On September 19, 2019, the Ninth Circuit ruled in favor of the Pit River Tribe after a decades-long fight against the Bureau of Land Management’s (“BLM”) attempt to renew 26 unproven geothermal leases in Northern California and Nevada. The BLM had issued over three dozen geothermal leases in the Medicine Lake Highlands in the 1980s, at which time there was very little environmental review and no apparent tribal consultation with the Pit River Tribe, for whom the Medicine Lake Highlands are extremely sacred. This may have been because the BLM did not recognize the area as sacred, a condition the Pit River Tribe could clarify for them.

Geothermal leases are created specific to a production site and have an initial ten-year term, after which they can be extended for another forty years if they are shown to be even slightly productive. In this case, only one lease out of 27 was shown to be productive, but BLM had extended the leases for all 27 leases of the application for renewal as part of a “unit plan.” The Ninth Circuit held that the BLM could not automatically approve the unproven leases along with the sole proven lease under the current lease structures. The BLM would need to do a separate environmental analysis under NEPA for each unproven lease before they could be considered as new leases. Since environmental review under NEPA includes analysis of effects on cultural resources, including tribal cultural resources, this is a significant win for the Pit River Tribe as well as the Modoc, Shasta, Karuk, and Wintu who all consider the area sacred.

This case is also instructive regarding the importance of Tribes using the National Historic Preservation Act (“NHPA”) to protect important cultural sites. Here, the Pit River Tribe worked hard to get the entire Medicine Lake Highlands designated a Traditional Cultural District in 1999 during the initial 10 year lease period. The designation highlighted the issue for the BLM and the need for the NEPA review of the unproven geothermal leases, including government-to-government consultation between the Pit River Tribe and BLM. This burden may in fact lead the applicant to abandon these leases and preclude future development of the Medicine Lake Highlands, in order to protect the innumerable cultural resources and overall cultural integrity of the area.

This is a reminder that the NHPA can be used preemptively, if Tribes are able to see that a culturally-important area may be threatened in the future, and prevent that damage from occurring by having the entire area designated under NHPA as a cultural landscape or a cultural district. Having this tool in a Tribes tool chest is important to the preservation and endurance of indigenous culture and history in the United States.

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Karli Joseph is an Associate with Procopio’s Native American Law Practice Group and a member of the Pechanga Band of Luiseño Mission Indians. She is a graduate of the University of California, Los Angeles School of Law.

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Ted 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.

Procopio is Now Accepting Applications for its Summer 2020 Native American Law Internship Program

NOW ACCEPTING APPLICATIONS FOR PROCOPIO_S SUMMER 2018 NATIVE AMERICAN LAW INTERNSHIP PROGRAMBy: 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. Our most recent interns, Cole Bauman and Richard Frye, have returned to their final years at Arizona State University and University of California, Los Angeles 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 Tuesday, October 15th by 5 p.m. PDT.

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, 2020. 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!
Procopio_Griswold_Theodore_Bio PhotoTed Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Ninth Circuit Rules States Can Tax Non-Tribal Lessees on Reservations

shutterstock_659041903By: Karli Sultzbaugh | Associate | karli.sultzbaugh@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

A partial panel of the Ninth Circuit recently ruled through a memorandum of decision in Agua Caliente Band of Cahuilla Indians v. Riverside County that the County can tax the possessory interest of non-tribal lessees on tribal trust land, upholding the June 2017 federal district court ruling. The Ninth Circuit panel reasoned that the federal district decision was consistent with a 1971 ruling on the same issue (Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971)). However, the past 47 years have added much greater complexity to the matter with multiple decisions regarding a possessory interest tax. On March 6, 2019, the full Ninth Circuit declined to rehear the case in front of the entire panel.

The main question in the recent case was whether the Court was obligated to use the balancing test developed in White Mountain Apache v. Bracker, 448 U.S. 136 (1980), and if so, had that test changed the Court’s interpretation of the tax. The short answer, according to the Court, is no. This decision was designated unpublishable and thus cannot be used as precedent, but it can still be used as persuasive authority in courts in the Ninth Circuit.

Agua Caliente argued that the County’s possessory interest tax (PIT) on non-Indian lessees of tribal trust lands prevented the Tribe from being able to collect on its own PIT, losing out on potential revenue of over $20 million per year. The Tribe also argued that the PIT violated federal law that precludes state taxation of tribal lands taken into trust (see 25 U.S.C. §465). The County argued that its tax was valid because the funds collected from the PIT are used to provide services that could reach the leased lands such as water, law enforcement, etc. However, the district court had noted that the County does not keep track of the amount or use of the funds that come from these lessees which could show that the services were actually provided to the lessees. Rather, the funds go directly into the general fund which is distributed across the county, not specifically to services on the leased lands. Furthermore, the district court and the Ninth Circuit both ignored the fact that Agua Caliente has Memoranda of Understanding (MOU) with local governments to provide such services on the checkerboard reservation lands, which already include payments to the governments for these services.

In regards to § 465, which is part of the Indian Reorganization Act of 1934 (IRA), the Ninth Circuit strangely decided that this section does not apply to Agua Caliente because its reservation was created in 1876, long before the IRA. This is an incorrect way to apply the IRA, as it would exclude many trust lands (i.e. reservations) that were created prior to 1934. Reservation land, no matter when it was taken into trust by the federal government, is not subject to state taxation relating to the property itself.[1] Thus, the IRA is not intended to rid reservations of the taxation exemption since they cannot be said to have been taken into trust “pursuant to” the IRA, but rather the IRA intends to extend this protection to lands taken into trust in the future that may or may not be considered “reservation” land. Furthermore, regulations adopted by the BIA clearly state that the leasehold or possessory interest of leases approved by the BIA are not subject to state or local fees or taxation (25 C.F.R. § 162.017). The Court also claims that even if § 465 applied, the PIT is valid because it is a tax on the “full cash value” of the lease rather than on the property itself. However, this position conflicts with an Eleventh Circuit case which analyzed a similar tax in Florida on the Seminole reservation (Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324 (11th Cir. 2015)). The Eleventh Circuit found § 465 expressly precludes taxes on interests associated with land ownership, including leasehold interests.

Furthermore, the Ninth Circuit entertained no Bracker balancing analysis whatsoever. It simply declared the Court was bound by the 1971 ruling and did not find that rulings to be inconsistent with Bracker. However, Bracker, a U.S. Supreme Court case, is binding precedent here, necessitating an analysis of balancing the federal, state, and tribal interests at play in accordance with the test. The Ninth Circuit concurring opinion briefly discussed the test but still discounted the tribe’s interest in levying a tax and the federal exclusive interest in regulating leases of Tribal lands. In the Seminole case, the Eleventh Circuit came to the opposite conclusion with similar facts. It focused on the federal government’s very strong interest in regulating the leasing of Tribal lands. The federal government has exclusive control over such leases, but the Ninth Circuit did not consider this interest. Furthermore, the Eleventh Circuit ruled that a state’s interest in raising revenue is not meaningful unless it has a direct connection to the taxed activity. Riverside County is unable to connect the use of these taxes to actual activity of the non-Indian tribal lessees; rather the PIT benefits county residents in general.

This case may affect tribes located in the Ninth Circuit states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) who lease tribal land to non-Indian businesses or individuals. Double taxation is unattractive to lessees and developers, so tribes that charge their own PIT (or wish to start) may risk losing business and revenue if the local government decides to charge a PIT as well. Tribes should stay alert as to whether the Tribal party appeals this matter to the Supreme Court, and if such review is granted.

Another Ninth Circuit recent decision, Confederated Chehalis Reservation v. Thurston County Board of Equalization, analyzed the BIA regulations and described them as clarifying and confirming existing law under § 465. The Court found that the state of Washington could not tax permanent improvements on tribal trust lands. This analysis seems to be in conflict with the Agua Caliente case analyzing the same statute.

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

Ted 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.

[1] See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973): “[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan … lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent;” see also, “State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. It follows that Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress.” U.S. DEPT. OF THE INTERIOR, FEDERAL INDIAN LAW 845 (1958).

BLOOD OF THE BAND: A MEMORIAL TO THE ORIGINAL INHABITANTS OF SAN DIEGO COUNTY

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

It is rare for the general public to get a genuine, first person glimpse into the family history of some of the original inhabitants of what we now know as San Diego County. Procopio is very proud to provide you just such an opportunity later this month.

As part of Procopio’s ongoing sponsorship of the San Diego History Center’s Nyaiwait Chiwayp/ In Our Words: Kumeyaay series of talks and presentations, we encourage your attendance at the next program in the series occurring on January 24, 2019 at 6:30 p.m. at the San Diego History Center located in Balboa Park (Casa Del Prado, 1649 El Prado, Suite 3, San Diego). The presentation will be provided by David Toler, author of Blood of the Band, An Ipai Family Story, which relates the journey of a Kumeyaay-Ipai family from origin to present day. The programs in this series have proven very popular and fill up fast, so we strongly encourage you to RSVP. The cost for the programs, which benefits the San Diego History Center, is $10.

Blood of the Band is meant as an acknowledgment of the stamina, resilience, and perseverance of our region’s native peoples, not only during prehistoric times, but also in the face of more recent adversities, and, ultimately, successes.” (Dedication from Blood of the Band). A link to Mr. Toler’s book can be found here. We look forward to seeing you at the January 24 presentation of Blood of the Band.

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.

IRONIC REINDEER GAMES

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By: Kele Bigknife | Guest Blogger
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Happy Holidays!  While many know of Rudolph and his famous red nose, some don’t realize that reindeer are real (albeit flightless) animals.  While not native to North America, reindeer have been a vital part of American Indian/Alaska Natives’ (“AI/AN”) survival and industry in ways well beyond Christmas time fables.

By the mid-1800s, AI/AN were facing dire circumstances with diminished natural food supplies, which largely consisted of caribou, marine mammals, and berries.  The shortage was caused by depletion of natural resources as the U.S. expanded into the Alaskan territory, bringing a rising non-Native population, a proliferation of firearms, and extensive commercial hunting markets.  After seeing the grim situation that non-Native settlers had brought upon AI/AN, the federal government sought to provide a sustainable food source for them.  The answer came in the form of sixteen reindeer delivered from Siberia, Russia to the Seward Peninsula, AK in 1891.

Many AI/AN were trained in reindeer animal husbandry and herding, but met significant competition from non-Natives.  In response, Congress enacted the Reindeer Industry Act of 1937, which gave AI/AN exclusive control over the reindeer industry.  Congress ironically mandated that the (imported) reindeer economy be operated by AI/AN in their “native way” and in their “native lands”.   Subsidies were given to Natives to stabilize the reindeer economy and to foster its growth.  Congress’ final goal was to promote self-sufficiency and sustenance for AI/AN communities, giving them the opportunity to remain in their native lands and continue to practice their “traditional way” of life.  AI/AN were able to survive in the fickle Alaskan economy, using reindeer for food, clothing, transportation of goods, and even use as U.S. postal delivery animals.

This ironic effort faced a constitutional challenge in 1997 in Williams v. Babbitt, where the court held that Congress could not exclude non-Natives from the reindeer industry, since that the Act did not pertain to unique AI/AN interests.  While the reindeer industry is now open to all participants, it continues to be a vital part of AI/AN life to this day, even if it is not part of their pre-contact heritage.

As you gather with your family and loved ones this holiday, and after belting out Rudolph and his colleagues, refer back to this post and “drop” some serious reindeer knowledge on those that will listen.

Kele Bigknife is a citizen of the Cherokee Nation and a graduate of University of Michigan Law School.  Kele was a recipient of the 2016 Procopio Native American Internship and currently is Regulatory Affairs and Corporate Counsel at ecoATM Gazelle.

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Ted Griswold 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.

ARIZONA SUPREME COURT DENIES TRIBAL SACRED AND CULTURAL PRACTICES PROTECTION, EQUATING SUCH PRACTICES WITH A WEEKEND HIKE

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

A majority of the Arizona Supreme Court recently held, over a compelling dissent, that the Hopi Tribe has no claim for public nuisance against a ski resort that uses snow made from sewerage on land that the Tribe has used for millennia for ceremonial and religious practices.  See Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship, No. CV-18-0057-PR, 2018 WL 6205003 (Ariz. Nov. 29, 2018).  The decision is the culmination of over a decade and a half of litigation between tribes in northern Arizona and the Arizona Snowbowl ski resort.

Nearly sixteen years ago, the ski resort planned to purchase sewage subjected to limited treatment from the City of Flagstaff to make snow and accommodate more skiers at the resort on the San Francisco Peaks, an area sacred to several tribes.  The Peaks are located on federal land in the Coconino National Forest.  After the federal government approved the use of the sewer snow on the Peaks, tribes and environmental groups sued, alleging violations of various environmental and religious freedom laws.  The tribes and environmental groups ultimately lost in federal court.  See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc).

This case was brought in Arizona state court by the Hopi Tribe, asserting that the use of sewer snow causes a public nuisance.  Members of the Hopi Tribe go to the Peaks to pray each month, collecting water, herbs, and greens there for use in ceremonial and religious practices.  The Peaks have been recognized by the U.S. Forest Service as a Traditional Cultural Property and are eligible for the National Register of Historic Places.

Court documents showed that the sewer snow used on the Peaks by the ski resort contains contaminants from Flagstaff’s sewer system, including waste, legal and illicit drugs, hormones, insecticides, chemicals that interfere with the biological processes of wildlife, and elevated nitrogen levels that may increase the presence of invasive plant species and destroy native flora and fauna as well as negatively impact the overall ecosystem and endangered species of the area.  The sewer snow damages the Hopi Tribe’s use of the Peaks in particular by contaminating sacred land, shrines, springs, and other natural resources used in traditional Hopi ceremonial practices, turning “formerly pure ceremonial locations into a secondary sewer,” as the dissent put it.

In rejecting the Tribe’s public nuisance claim, the majority of the Arizona Supreme Court held that the Tribe’s injury was no different than, as the dissent stated, “a weekend hiker or concerned environmentalist.”  The majority failed to appreciate, as the dissent said, “that the wastewater will affect the Hopi’s use and enjoyment of ancestral lands that have played a central role in Hopi culture and religion since before the Coconino National Forest was of concern to the broader public.”  Instead, the majority held that the Tribe’s injury from the ski resort was the same as the general public’s harm, even though only tribes have claimed to use the land for such purposes.

The majority went on to hold that as a matter of law the Hopi Tribe could not assert a public nuisance claim because it did not have a property or pecuniary interest in the land or resources at issue.  As the dissent recognized, the majority unduly limited the state’s public nuisance law to protect only material interests, denying protection for religious traditions and practices manifested since before recorded history and recognized by federal law, which requires that Indians have access to national forests for traditional and cultural purposes.  See 25 U.S.C. § 3054.

In denying the Hopi Tribe’s public nuisance claim, the majority embraced an “ownership model” of property law, relying on the heavily criticized U.S. Supreme Court decision Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).  See, e.g., Cohen’s Handbook of Federal Indian Law § 14.03[2][c][ii][B], at 968–71 (Nell Jessup Newton ed., 2012) (citing scholarly criticisms of Lyng and executive and legislative branch actions in response to Lyng to protect Indian sacred sites).  Indeed, scholars assert that this narrow ownership model of property law that courts, including the majority in this Hopi Tribe case, have used to deny Indian religious claims is neither descriptively accurate (because property law has long protected the rights of non-owners) nor normatively desirable (because property law should address the conflicting interests of those with legitimate claims to land and resources).  See, e.g., Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1089 (2005) (citing numerous scholarly works).

Although the Arizona Supreme Court majority rejected the Hopi Tribe’s public nuisance claim in this case, a persuasive dissent was not only written, but included two seemingly ideologically-opposed jurists.  The dissent offers a glimmer of hope for Indian sacred site protection in the future.  Moreover, perhaps Indian country will see better sacred site protection in the legislative branch, as one of two Native Americans joining the next Congress, Deb Haaland, included sacred site protection as a priority in her climate and environment platform.

Procopio will continue to monitor laws and cases affecting sacred sites and we are happy to assist tribes in finding ways to ensure sacred site protection.

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 she has passed the California Bar Exam, but she is not licensed to practice in California.  Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

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

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.