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).

 

 

Honorable Lawrence R. Baca Named the Sarah T. Hughes Civil Rights Award Winner

By: Daune Cardenas | Intern | daune.cardenas@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Hats off to The Honorable Lawrence R. Baca!  Mr. Baca was recently named the 2017 recipient of the Sarah T. Hughes Civil Rights Award.  The Federal Bar Association established the Sarah T. Hughes Civil Rights Award “to honor that man or woman who promotes the advancement of civil and human rights amongst us, and who exemplifies Judge Hughes’ spirit a legacy of devoted service and leadership in the cause of equality.”  Mr. Baca has dedicated his career to addressing American Indian civil rights issues.

Mr. Baca joins the ranks of accomplished judges and attorneys who made a difference in advancing those same causes, including Judge Hughes, who was a pioneer in the fight for civil rights, due process, equal protection, social concerns, and the rights of women.  Past recipients of the Sarah T. Hughes Civil Rights Award include Hon. Walter R. Echo-Hawk, Jr. (Native American Attorney instrumental in the passage of landmark laws like Native American Graves Protection and Repatriation Act and the American Indian Religious Freedom Act Amendments), Assistant United States Attorney Alessandra Serano (Coordinator for Project Safe Childhood), Hon. Harold Barefoot Sanders Jr., (Federal Judge overseeing lawsuit in of Dallas Independent School District desegregation case), and Executive Director, Heartland Alliance National Immigrant Justice Center Mary Meg McCarthy (created a legal network that provides pro bono immigrant legal services to 10,000 clients).

When Mr. Baca began work with the U.S. Department of Justice (DOJ), he was the first American Indian lawyer hired through the Attorney General’s Honor Law Program.  As the deputy director of the Office of Tribal Justice, Mr. Baca addressed civil rights issues concerning American Indians.  Mr. Baca later became the first American Indian attorney to work at the Civil Rights Division (CRD) at the DOJ. His work at CRD included working for the Office of Indian Rights, General Litigation Section, Housing and Civil Enforcement, and Educational Opportunities Litigation Section.  Eventually, he served four years as the Deputy Director of the Office of Tribal Justice and after 32 years of service Mr. Baca retired from the DOJ.  He continues his work supporting civil rights in the American Indian Committee.  Mr. Baca recently developed and presented a running exhibit on the use of American Indian imagery in advertising, which we previously discussed in this forum and which will also be featured at the Washington D.C. Museum of the American Indian next year.  As a tribute of his career-long impact to American Indian legal and social causes, the Federal Bar Association Lifetime Achievement Award for service to the American Indian Bar is titled the “Lawrence Baca Lifetime Achievement Award.”

His work in United States v. Great Western Bank & Trust addressed Indians equal access to credit.  Then in United States v. South Dakota and Fall River County, Mr. Baca helped secure the right for Indians on a reservation to run for public office. In Meyers & United States v. San Juan County School District, Mr. Baca convinced the United States to intervene on behalf of American Indian students’ right to equal education.  The list of his legal accomplishments runs long, as does his passion for supporting American Indian civil rights.

Additionally, Mr. Baca formed the American Indian Lawyers Association of the DOJ, serving as Chairman for 30 years, and established the Indian Law Section of the Federal Bar Association.  While serving on the Federal Bar Association National Board he was selected as president, which made him the first American Indian president of any national non-Native bar association.

Well done Honorable Lawrence Baca!  You have helped your people.  You have fought for civil rights, equal protection, and social justice for all American Indians and have inspired the next generation of American Indian lawyers to do the same.

Additional information about all past recipients of the Sarah T. Hughes Civil Rights Award can be found here.

Daune Cardenas is a member of the Pascua Yaqui Tribe and a rising 3L at the University of Arizona, James E. Rogers College of Law.  She is the outgoing Social Director of U of A’s Native American Law Students Association (NALSA) as well as current National NALSA Area 4 Representative. Daune is a recipient of the 2017 Procopio Native American 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.

That’s Not Me: The Use of Indian Imagery in Advertising

Hobby Show Exhibit

Photo by: Lawrence Baca

By:      Karli Sultzbaugh | Intern | karli.sultzbaugh@procopio.com

It has been reported that there are over 600 active trademarks from 450 companies that have an Indian mascot or use Indian imagery in their branding.  Some of these trademarks are used by Indian-owned entities, but the majority of them are not.  The trademarks span the range of goods, including clothing, food, cigarettes and tobacco, alcoholic beverages, and paper products (see, e.g, Land O’Lakes, American Spirit, Hawaiian Airlines).  They also include sports teams like the Atlanta Braves, Chicago Blackhawks, Cleveland Indians, Washington Redsk*ns, Florida State University Seminoles, Springfield Indians (hockey), and the Kansas City Chiefs.

These trademarks and products that use Native imagery do not include the innumerable instances of Indian caricatures or other imagery used in advertising campaigns, both in the past and now.  In fact, many of the products or brands have nothing to do with Native Americans, which begs the question; why does a company choose to use Indian imagery in its branding or advertising in the first place?  These representations of Indians in advertising are often based on racist stereotypes that draw on and mix the perceived characteristics or practices of a small handful of tribes.  These uses further perpetuate the stereotypes of Indians or cartoonish images and fail to allow representation of the true diversity of the Native community.  You don’t see Indian teachers on products, or accountants or future lawyers.

There are over 566 tribes in the U.S. alone, but because of images in branding and advertising, Native peoples are only seen as figures of the past who wear headdresses (war bonnets) or feathers in their hair, wield tomahawks, and live in tipis.  If we don’t look this way, our identity as a Native person is often questioned or disbelieved.  Because non-Indians are not exposed to the diversity of faces, lifestyles, and cultures of Native peoples, many of us are deemed “not Indian enough” because we don’t “look Indian,” meaning we don’t look like these stereotyped caricatures of Indians.  This is harmful to a Native identity and image in the US that has already been romanticized and exploited for the past 200 years.  It is time for non-Indian businesses to rethink utilizing Indian imagery in their branding and advertising.

The San Diego County Fair, opening June 2 and running through July 4, 2017, will feature Lawrence Baca speaking on “Not All Indians Are Chiefs: Native Americans in Advertising” each Saturday during the Fair at 2:00 p.m. There will also be exhibits by Mr. Baca and the Kumeyaay Cultural Committee, located in the Activity Hall, displaying current and historical pieces of Indians used in advertising and Kumeyaay history, respectively.  An additional Exhibit from Mr. Baca is located in the Fair “Hobby Show.”  Procopio is proud to sponsor Mr. Baca’s Exhibits.  For Exhibit location, see Building 6, here.  This is a great opportunity for people to better understand “what the big deal is” with using Indians for product mascots.

If you can’t make it to the Fair this year, find out more about Indians in advertising here and Indians as sports mascots here.

See our previous posts on issues of cultural appropriation and misrepresentation here, here, here, and here.

Karli Sultzbaugh is a member of the Pechanga Band of Luiseño Mission Indians and a rising 3L at the University of California, Los Angeles School of Law.  She is the outgoing president of UCLA’s Native American Law Students Association as well as an editor of the Indigenous Peoples’ Journal of Law Culture and Resistance and the Journal of Environmental Law and Policy. Karli is a recipient of the 2017 Procopio Native American 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.

How to Improve Your Tribal Consultation Practice

How to Improve Your Tribal Consultation Practice

By:      Gabriela Rios | Attorney | gabriela.rios@procopio.com

In the aftermath of the fight to prevent the construction of the Dakota Access Pipeline and continuing efforts to reverse the actions taken by the U.S. Army Corps of Engineers, many people are wondering how a future conflict such as this might be prevented.

Much of the problem—i.e., the desecration of cultural and religious sites–lies with inadequate consultation by the federal, state and local governments under federal law and policies, as well as a misunderstanding of or even a complete disregard for, tribal cultures and religions. I was recently reminded that some of the burden also lies with tribal governments. Although we should continually demand improved federal, state or local policies surrounding the protection of cultural and religious sites and for improved consultation with tribes,that is only half the battle. It takes two parties (at least) to consult.

Tribes must be effective participants at the consultation table.  One way to do this is to develop tribal consultation policies. Trese policies can provide an important tool to ensure meaningful consultation on a Tribe’s own terms. We have found that written policies also provide clear goals, rationale, predictability and consistency on the tribe’s side of the consultation, which provides structure to a dialogue with other government agencies that often lack each of these qualities.

The Indigenous Peoples Law and Policy Program at the University of Arizona James E. Rogers College of Law created a reference tool for tribes considering enacting their own consultation laws and policies, available here.  Consultation can mean different things to different tribes, and the capacity to respond to requests for consultation can vary from tribe to tribe. Therefore it is important to develop a process that implements best practices, but also one that the tribe has the capacity to implement.

Gabriela Rios -LJR_2938Gabriela is a citizen of the Cahuilla Band of Indians and an associate with the Native American Law Practice Group. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is admitted to 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.

Right Sizing Renewable Tribal Energy Projects at the Right Time

Right Sizing Renewable Tribal Energy Projects at the Right Time

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

What direction is renewable energy going in Indian country? Roof top solar is piecemeal and requires multiple individual actions to achieve a meaningful movement toward a green energy future. Utility scale solar and wind can impact large swaths of land and impact landscape-scale cultural viewsheds. Are community scale renewable energy projects the right fit for Tribal communities? More and more, it is appearing that this is the case.

In California, utility scale renewable energy facilities–those sized with the capability to sell energy to the energy grid in the hopes of making a profit–are facing the difficult situation of excess electrical generation during daylight hours that significantly complicate and undermine the financial viability of such facilities. However community scale facilities–those sized to serve a specific community, or portion of a community–are receiving increased attention and may be the direction of future Tribal projects. Community renewable projects allow for Tribal governments and businesses to survive off the grid, increasing energy security and in some places, providing cost effective energy in Indian country for the first time.

The need and wisdom of community scale renewable utilities were recently addressed in Rachael White Hawk excellent review of the forces and opportunities supporting the movement. As if on cue, shortly after the publication of her article, the Chemehuevi Tribe announced the opening of their community scale project in Southern California and the Blue Lake Rancheria announced the groundbreaking for a new community microgrid.

The Chemehuevi Tribe worked with community partners and UC Riverside to demonstrate how a modest-scaled solar project can serve community facilities with long-term research and energy savings results. The project includes a 90-kW solar array plus a 25kW/125-kW battery storage system which allows the benefitting facilities–the Tribe’s community center and housing agency offices—to remain functional during grid outages.

Like the Chemehuevi project, Blue Lake Rancheria has begun construction of a solar facility and battery storage that will allow the Tribe to continue operations in connected buildings without another connection to the grid. More ambitious, the Blue Lake Rancheria project combines a 500 kW solar PV array with a 950-kWh Tesla battery storage facility, and a microgrid that was developed in connection with Humboldt State University’s Schatz Energy Research Center, Idaho Natural Laboratory, and funding from the California Energy Commission.

Collaborative projects such as these may provide Tribal communities the best avenue to fund, develop and generate a dependable energy system that will reduce costs and could help support future economic development. What are your Tribe’s plans for greater energy security?

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.

Procopio’s Native American Practice Catches a Rising Star

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

I am truly proud and excited to welcome Kerry Patterson as a partner at Procopio.   Kerry is a seasoned tribal attorney that has spent the past 15+ years representing tribal clients and businesses in real estate, governmental, gaming, commercial transactions, finance and economic development in Indian country.   She has developed a significant client base in Arizona and California, helping plan out and implement long-term success strategies for tribal governments that have reaped significant benefits for their tribal communities.  By joining Procopio, Kerry will work with our current practice group to extend the breadth and depth of those successes.

I met Kerry for the first time in 2008, working together as co-counsel for a mutual tribal client.  As a bright, tireless advocate for her tribal clients, I respected her work immensely.  I admired her ability to connect with her clients, engendering a mutual trust and purpose to maximize her clients’ success, protect their sovereignty and realize their self-governance.  That ability to connect requires empathy for your clients, and the strategic savvy to direct them in positive ways.

Now working together as part of the same team, Procopio is able to provide broader services and greater depth for  Kerry’s clients, including self-governance, infrastructure development, education, employment, tax, finance, health care, energy,  intellectual property and complex business transactions.  As importantly, Kerry helps expand our commitment to our tribal clients through giving back to the Native American community.  Kerry’s recognition of Procopio’s commitment to increase opportunities in the Indian community through its internship programs, pro bono assistance to tribal organizations, and voluntary assistance supports our belief that having the honor of representing our clients is joined by the honor of serving their communities.

For more information about Kerry’s background, see here and here.

Kerry Patterson is a partner and a member of the Native American Law and Energy and Environment practice groups at Procopio.  Kerry can be reached at 619.515.3295 or kerry.patterson@procopio.com.

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.

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

By:      Walter E. Rusinek | Senior Counsel | walter.rusinek@procopio.com

For the first time, a federal appellate court has held that that the federal “reserved rights” doctrine for water established in the seminal case of Winters v. United States, 207 U.S. 564 (1908), applies to groundwater.  In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the Ninth Circuit Court of Appeals upheld the trial court’s grant of summary judgment to the Tribe on the reserved rights issue in the first phase of the trial. The remaining two phases of the trial will address whether that reserved right includes the right to maintain the quality of the groundwater and the quantity of groundwater that was reserved.

Relying on Winters, the Ninth Circuit held that when the Tribe’s reservation was established by Executive Orders, those actions reserved an amount of water “necessary to accomplish the purposes of the reservation.”  The “primary purpose” for the Reservation “was to create a home for the Tribe, and water was necessarily implicated in that purpose.”  The Winters doctrine applied to groundwater because a Reservation “without an adequate source of surface water must be able to access groundwater.”  The reserved rights doctrine thus applies to “both surface water and groundwater appurtenant to the reserved land.”

The Court rejected the District’s argument that the decision in United States v. New Mexico, 438 U.S. 696 (1978) required that the Court determine whether groundwater was necessary to fulfill the “primary purpose” of the Reservation in deciding whether a reserved right to groundwater exists at all.  The Court also rejected the District’s arguments that there was no reserved right because the Tribe had the right to pump groundwater under California law, it had not yet pumped any groundwater, and it had rights to surface water.  The Court found all those points irrelevant because the right was limited only by the government’s intent in creating the Reservation.  That conclusion reflected previous decisions applying the Winters doctrine to surface water.

While the Court confirmed that Tribes have reserved rights in groundwater, it did not address the remaining trial court issues, including the amount of groundwater reserved.  The Court acknowledged that the New Mexico primary-secondary analysis could be applicable in that process.  Under New Mexico, which concerned reserved rights on forest lands not a Native American Reservation, the quantity of water reserved is to accomplish the “primary” purpose of the reservation and water needed for “secondary” purposes must be obtained under state law.

The Court’s confirmation that the Winters doctrine applies to groundwater is a significant victory for Tribes.  That is especially true for Tribes in the arid west where groundwater may be the sole or primary source of water for the Reservation.

In addition, the Court’s finding that the Reservation was created to establish a homeland for the Tribe provides a broad and evolving basis to quantify the amount of water reserved.  Most courts had held that the purpose of reservations was for agriculture and that the method to quantify the amount of water reserved was to calculate the “practicably irrigable acreage” or “PIA” on each reservation. The “homeland” purpose adopted here is more rational, although it is not clear how the quantity of water reserved for that broad purpose will compare with the quantity calculated under the PIA process.  That will become clearer as the case proceeds through the next phases of the trial.

Procopio_Rusinek_Walter_Bio Photo

Walter Rusinek is a member of the Native American Law and Energy and Environment practice groups.  He counsels Native American clients on various environmental and Indian law issues, including the transfer of fee-owned property into trust.  Connect with Walter at walter.rusinek@procopio.com.

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.

Appreciating Diversity in Graduation Ceremonies

appreciating-diversity-in-graduation-ceremonies

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

High School Graduation is a significant accomplishment for every high school student and their families. The graduation ceremony honors those students for that accomplishment and is a time when their families and communities can take pride in their accomplishments. Schools want their students dressed “appropriately” for the occasion. But, what is “appropriate”?  For many schools, this means prohibiting students from altering their cap and gown and/or restricting the types of shoes and clothing they are allowed to wear for the ceremony to “preserve the dignity and formality of the event.” However, as Heather Torres previously noted on this blog, in Pride or Prejudice: Native Regalia and Graduation Ceremonies, schools across the country also use the “proper attire” rationale to prevent native students from wearing eagle feathers and other traditional regalia at their graduation ceremonies, identifying traditional regalia “as informal, inappropriate, and undignified.”  “Appropriateness” needs to be seen through a lense that maintains culture and tradition that is well established and recognizable.

We applaud California Indian Legal Services’ representation of students to fight decisions by school officials that prevent them from wearing their traditional regalia at their graduation ceremonies. However, not all students are able to get that representation. To proactively address this issue, CILS worked with California Assembly member Todd Gloria from San Diego to introduce Assembly Bill (AB) 233, which would amend the Education Code to prevent schools from prohibiting a student from wearing religious, ceremonial or cultural adornments at high school graduation ceremonies.  We support this effort.

AB 233 is a simple, yet important recognition of the importance of cultural and religious symbols during significant rites of passage for all students.  Each student should be able to honor their achievement with their established religious and cultural traditions on such an important day.  Graduation events are ceremonies, by definition.  The ability to include their tradition as part of their ceremony empowers Native students and endorses the importance of their traditions.  It also shows all graduates an appreciation of the diversity they will encounter as they leave the school system.

For those interested in learning how they can support AB 233 visit Assembly Member Gloria’s  website https://a78.asmdc.org/news , or the CILS website: http://www.calindian.org/donatefeather/ .

Gabriela Rios -LJR_2938Gabriela is an attorney 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.