BLOGGING ALL OVER THE WORLD IN 2016

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

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016.  Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year.  Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising.  It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for?  The top 10 Blogging Circle articles reviewed in 2016 were:

1. No Dice for California Indian Casinos?

2. Aviation in Indian Country: Seminole Tribe of Florida

3. “What’s Up? Native American Aviation and Airspace”

4. Standing Rock Sioux Water Protectors Win a Battle, But More Battles to Come

5. Pride or Prejudice: Native Regalia and Graduation Ceremonies

6. Bully’s Beware: Tribal Elected Officials CAN be Sued in State Court

7. Indian Tribes May Gain Relief from NLRB Actions

8. Where are they now? 9 and Counting…The Procopio Native American Internship Alumni

9. Increasing the Numbers: Effective Recruitment of Native American Law Students (Guest column)

10. Now Accepting Applications for Procopio’s Summer 2017 Native American Law Internship Program

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year.  Wishing you a happy, safe and prosperous New Year.

Ted 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.

Pride or Prejudice: Native Regalia and Graduation Ceremonies

By Heather Torres | Intern | heather.torres@procopio.com

Over the past weekend, many celebrated the 240th birthday of the United States with fireworks, food, and flying the nation’s flag. Red, white, and blue stars and stripes found on everything from cupcakes to clothing. We see similar celebrations around high school graduation time; families blasting airhorns at commencement, throwing parties, decorating homes and cars in school colors, all to honor the accomplishments of young scholars. However, a particular way of celebrating seems to cause a stir every year: Native graduates wearing tribal regalia.

This year’s graduation season was littered with stories of public school districts banning Native American students from wearing regalia and beaded caps during graduation ceremonies. At least four incidents were reported on various media platforms. (1, 2, 3, 4) The students planned on wearing graduation caps beaded by their family members and traditional regalia to celebrate their accomplishment, to honor their ancestors, and to be a role model for other Native students. Role models and the visibility of their accomplishments are vital to efforts to reverse historically low graduation rates for Native students.

School policies implicated in these incidents are aimed at some general goals. Those goals include safeguarding uniformity, preserving the sanctity of the ceremony, and upholding formality. Often, once a dialogue occurs between the school and the student, school officials agree to accommodate a student’s request, particularly because the school leadership recognizes the spiritual and religious significance of the regalia. However, when an agreement is not reached, students face fines, not participating in commencement, and not receiving their diploma.

An individualized process could be applied to all student requests, allowing schools to practice informed discretion when considering requests from students. In past advocacy efforts, organizations like the Native American Rights Fund (NARF) point out the parallels between school sponsored honor chords and wearing an eagle feather on a graduation cap. Both symbolize outstanding achievement and represent a well-deserved honor. NARF has also created brochures for students on how to approach their school’s administration with a request and for schools to better understand the cultural and religious significance of eagle feathers.

Looking at images of students in public school districts like the Nebo School District in Utah, which graduated 100% of its Native seniors this year, the sanctity and formality school district’s seek is beautifully embodied in tribal regalia. If anything, a student’s regalia honors the sacredness of the ceremony and elevates the accomplishment beyond the individual student to their Tribal Nation(s). Arguments around uniformity, formality, and dignity harken back to the federal government’s assimilationist policies, most notably exercised in Indian boarding schools. School districts recycle assimilationist values in their graduation attire policies by viewing tribal regalia as informal, inappropriate, and undignified.

Current restrictive school district policies have damaging and discriminatory effects on Native students, their families, and Tribal Nations. With the resources made readily available by organizations like NARF, students and families raising this issue every year, and the recent rise in media coverage, school districts should use the information available to critically review their policies and take corrective measures.

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Give Us Our Stuff Back

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

Last month, the Paris auction house, EVE, attempted to sell 29 Hopi headdresses known as Katsinam.  This same auction house has sold various Native American religious items in four auctions within the past 18 months.  This auction, however, was challenged legally by the United States Embassy in Paris.  The US Embassy filed two actions to stop the sale of the sacred items, but both were defeated.  The Board of Sales, which is a French Government Agency with the power to regulate auctions and other commercial dealings, ruled that neither the Hopi Tribe nor any other Native American group had the legal standing to challenge the sale on French soil.

The US Embassy pulled out all the stops to halt the sale.  Embassy officials invited newly appointed federal judge Diane Humetawa to speak with government officials, art dealers, and others about why the sale of Native American spiritual objects is insulting and sacrilegious.  Judge Humetawa’s presentation was especially powerful as she is a member of the Hopi Tribe, and the first Native American woman to be appointed to the federal court.  Despite these efforts, the auction commenced.  However, this auction sold only nine of the 29 headdresses that were up for auction.  Philip Breeden, the Minister Counselor for Information and Cultural Affairs at the US Embassy, said he thinks the low number of sales is a result of the message of inappropriateness sinking in with some people.

I believe it is extremely unfortunate that the sale of Native American religious items and artifacts still continues globally.  It is illegal to take these objects from Federal or Tribal land and sell them in the United States.  However, thieves navigate US law by smuggling the items to countries like France, which have shown they have no interest in respecting or preserving Native American culture and religion.  Even if French Law is on the side of the auction house, the obvious right thing to do is to return the items to the respective tribes.  It is also hypocritical of the French to allow the sale of these items when they are signatories to the United Nations Declaration of Rights of Indigenous Peoples, which protects Native peoples’ art and religious items.

Further, it is also unfortunate that American Bar Association did not mention one word about the history of looting and illegally selling Native American artifacts and antiquities in its July cover story of the ABA Journal, “Looted Beauty.” The article discusses the looting of antiquities that has taken place for decades from countries like Cambodia, Greece, and India, and what those countries are doing to return their stolen heritage back to their homeland.  It is terribly ironic that an organization like the ABA, which is dedicated to advancing the rule of law in the United States, does not even mention the centuries of robbing both cultural and religious items from the original American communities.

Hopefully, Mr. Breeden’s statement that the message is sinking in is actually happening. It is only when more people take the position that the sale of these items is immoral and they must be returned to their proper owners, that the dirty business of pot hunting and artifact dealing will come to an end.  There can be legitimate excavation of some of these sites through professional archaeology, but the days of the loan artifact hunter “discovering” Native American cultural objects must stop.

Eric Abeita is a member of the Isleta Pueblo and is entering his third year at the University of New Mexico School of Law. Eric is a recipient of the 2014 Procopio Native American Internship.

Related Links:

http://news.artnet.com/in-brief/us-efforts-fail-to-halt-french-auction-of-hopi-artifacts-51108

http://www.nytimes.com/2014/06/30/arts/design/sale-of-hopi-religious-items-continues-despite-us-embassys-efforts.html?_r=0

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

The Idea of Indians

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

During the NBA Finals, a television ad was aired that opposed using Native Americans as mascots, specifically targeted to the Washington Football Team.[1] The ad stated that Native Americans refer to themselves in many ways, “Indomitable, strong, Inuit, Blackfoot,” but they don’t refer to themselves as the R- word. It was particularly powerful in that it did not specifically state that R- word, but ended with a simple shot of a Washington helmet on a football field to convey the message. The ad was developed by the National Congress of American Indians, and paid for by the Yocha Dehe Wintun Nation tribe in California. It was targeted to be aired during the Superbowl, but extraordinary airtime costs kept it from being seen on television’s biggest forum.

This week, the U.S. Patent Office agreed with the ad’s sentiment, when it ruled that the R-word nickname is “disparaging to Native Americans” and that the six registered trademarks that involve the R-word must be canceled. The Trademark Trial and Appeal Board found that “substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame…” Blackhorse, et al v. Pro-Football, Inc., Cancellation No. 92046185, Board Decision, pg. 72 (June 18, 2014).

Momentum for the campaign to get Washington to change its nickname is building. Like so many social movements that succeed because of public pressure, this one may ultimately be victorious because the American people will finally say enough, or because the Washington Football team will get hit in its pocketbook when it can’t protect its team name from use by others. This issue may ultimately be resolved by financial cost, but money has nothing to do with why teams should stop using Native Americans as mascots.

It remains perplexing and sad that Native Americans are still being used as mascots all over the country, and that the R-word is still being used for that team in the Nation’s capitol. Advocates for using Native Americans as mascots state that Native American names and tribes are used in “respectful ways”, and it is done to “honor” the tribes by making them “positive mascots”. This contention misses the point.   The point is that Native Americans are people, living and working in modern America. They are not a thought or an idea of what a Native American is, they are Native Americans. When a team uses a Native American tribe as a mascot, it is not allowing the American people to see Native Americans as everyday people in their communities. It is a dehumanizing effect that can be corrected.

The legal proceedings in Blackhorse will continue, as there is little doubt that the football team will appeal. However, public awareness can change. People can choose not to support the disparagement of Native American people as mascots by their individual actions. “Proud, forgotten, Indian. . . . rancher, teacher, doctor, soldier.” These are the appropriate images of Native America. Maybe over time this idea will sink in, and replace those archaic ones that are caricatures of a Native American.

Eric Abeita is a member of the Isleta Pueblo and is entering his third year at the University of New Mexico School of Law. Eric is a recipient of the 2014 Procopio Native American Internship.

Procopio trademark attorney Megan E. McCarthy is preparing a more thorough analysis of the 177 page Blackhorse case which will be posted here in the near future. Please check back for Megan’s analysis.
[1] See the NCAI ad at http://www.youtube.com/user/NCAI1944.

Ted 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.