GETTING TO KNOW YOU: INDIAN COUNTRY EVENTS COME TO SAN DIEGO COUNTY

Procopio is a proud sponsor of the California Indian Conference being held at San Diego State University’s Student Union through Saturday, October 22, 2016.  With the theme “Creations and Constructions: Indigenizing the Future of California Indian Country,” the conference brings together California Indians, educators, tribal scholars, academics, students, public agencies, organizations and institutions, and the general public in one place.  Most people living in San Diego fail to recognize or experience the rich indigenous history and culture of the county that is home to more Federally Recognized Tribal Governments than any county in the nation.  The California Indian Conference provides the opportunity to learn about today’s California indigenous communities, as well as artistic and scholarly perspectives regarding our regional history.

This is the first time that the Conference has been held in San Diego, and it represents a growing trend of regional and national gatherings of Indigenous people bringing their conferences to San Diego.  Last week the California Indian Law Association held their meetings at the Viejas Resort, and last year the National Congress of American Indians held their five-day National Marketplace and Conference in Mission Valley.  On November 17-19,  the California Indian Culture and Sovereignty Center at CSU San Marcos presents the fourth annual California’s American Indian & Indigenous Film Festival, a three-day event that offers exclusive film viewings and interactive dialogues with film industry professionals, selected panel discussions and an opportunity for Q&A sessions after each screening.  Other recent  indigenous conferences in the area include the World Indigenous Law Conference (UC Irvine),  the National Intertribal Tax Alliance (Agua Caliente), and the Native American Health & Wellness Conference (October 27, Viejas).

Procopio is proud to support events like these that share important information about indigenous communities and increase public understanding of the challenges facing their communities.  We hope that bridging this understanding will increase opportunities and cooperative relationships that will ensure greater success for all.

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.

Happy Holidays!

By:  Theodore J. Griswold | Partner | ted.griswold@procopio.com
Yesterday’s Winter Solstice marked the astronomical beginning of Winter and the shortest day of the year in the Northern Hemisphere. This special turning point in time offers us the perfect moment to break from our busy lives, visit with family and friends, and reflect on 2015 while looking forward to the New Year ahead.   This is a great time to pause for a minute and enjoy a Holiday Circle– to appreciate and celebrate those special people who have helped to shape and enrich our lives and our future, and let them know about it.

Whatever your religion, custom, or beliefs, I encourage you to take a moment from your daily routine to celebrate life this week, and cherish your own personal Holiday Circle.

Lawyers and staff of Procopio’s Native American Law practice group thank you for your readership and wish you peace and prosperity in 2016.

 

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

Pope Francis Affirms the Importance of Indigenous Consultation in Indian Country

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

On May 24, 2015, Pope Francis released his encyclical on the environment and the need for meaningful climate action. However, his official letter is not just about impact from climate change. It was also about inclusion. The 192-page document focuses on Indigenous Peoples’ rights to land and culture with the Pope proclaiming that Indigenous Peoples’ “should be principle dialogue partners, especially when large projects affecting their land are proposed.”

This idea of dialogue with Indigenous Peoples prior to development is not new. In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The UNDRIP is a declaration among countries on how Indigenous Peoples should be treated and sets out how countries and their governments should respect human rights of Indigenous Peoples. One of the important topics of the UNDRIP is the right to Free, Prior and Informed Consent. Article 32 of the UNDRIP reads, “States shall consult and cooperate in good faith [emphasis added] with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources.”

President Obama, in December 2010, announced the United States’ support for the UNDRIP, but the United States Congress has yet to ratify it. Although the UNDRIP is not legally binding, it lays out pivotal human rights norms of Indigenous Peoples. This is critical for Indigenous Peoples. Free, Prior and Informed Consent means that Indigenous Peoples have the right to be consulted with and can make decisions on any matter that may affect their communities like mining, fracking, or water development projects.

Everyday Indigenous Peoples are fighting mineral development in their communities and, in many instances, were never consulted prior to development. For example, the San Carlos Apache Tribe has been fighting a land grab of Oak Flat – a sacred site – for copper mining. The reservation was originally set aside and protected through an Executive Order by President Eisenhower in 1955. For the past 13 years, the Apaches halted Rio Tinto and BHP Billiton from mining until December 2014 when John McCain and Jeff Flake (R-Ariz) snuck a provision into a must-past military funding bill that essentially gave Oak Flat to an Australian-British mining company. Sneaking a provision in a military appropriations bill does not amount to Informed Consent. And, this is San Carlos Apache land!

This is not the first time Arizona senators have been tied to abuse of natural resources on Indigenous lands. In 2012, McCain and John Kyl (R-Ariz) tried to push through the Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012 to ensure Arizona had water for mining to produce energy for southern Arizona cities and, ultimately, tried to force the Navajo and Hopi to waive their priority water rights. McCain even tried to ensure the Navajo Nation President and Council that they were negotiating in “good faith” of the Nation.

The Pope’s encyclical states, “For [Indigenous Peoples], land is not a commodity but rather a gift from God and from their ancestors who rest there, a sacred space with which they need to interact if they are to maintain their identity and values. When they remain on their land, they themselves care for it best.” The notion of Free, Prior and Informed Consent is basic. If a project is happening on your land, shouldn’t you be notified before it begins? This notice is critical, so Indigenous Peoples can exercise self-determination to decide what is best for their community and future generations.

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke was the former Executive Director of the Black Mesa Water Coalition, an environmental justice non-profit that worked to replace coal-fired power plants with renewable energy. Nikke is a recipient of the 2015 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.

Sustainable Economic Development in Indian Country

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

Today, in mainstream media, the only economic ventures that people see Tribal Governments pursuing are mega gaming and mineral resource extraction. While many Tribes are engaging in both ventures, many other Tribes are not. Unemployment rates are very high in Indian Country. On average, the unemployment rate on reservations varies from 40% to 90%. Factors contributing to these high rates of unemployment include the isolation of Tribal communities plus the sparse education opportunities.

Creative programs are needed to help young Native people think outside the box beyond these two common economic ventures. In Southern California, one Native youth program has done just that. The American Indian Recruitment (AIR) Program promotes higher education and success in academics in American Indian communities. This past spring, AIR’s Leaders Project in partnership with the Tribal Learning Community & Educational Exchange Program offered a course to high school students entitled “Economic Development in Indian Country.” The course explored the pros and cons of various economic development strategies being used throughout Indian Country and the implications those strategies have on Tribal sovereignty.

As a part of the course, the high school participants were tasked with developing feasibility studies for a potential business in their Tribal communities. Dr. Joe Graham instructed his students to choose projects that reflected community values and their cultures. If Native People focus on their passions and community cultural wealth, then an economic venture is more likely to be sustainable.

On June 11, the students presented their completed feasibility studies at Hewlett-Packard in San Diego, CA. The students’ presentations were very thorough and well thought-out. Of the six presentations, the potential businesses ranged from implementing solar energy to starting a culturally-based hotel to creating a market that sells produce from local farms and gardens. Each of these proposals addressed a specific need of the students’ home Tribal Government. These particular presentations stuck out, because these are all examples of green business ventures.

Perhaps Tribal leaders should begin thinking outside the box as well. The opportunities for green business ventures are limitless. Tribal Governments can implement solar and wind, retrofitting programs, farmers’ markets, and artisans’ cooperatives. The transition to green business ventures promotes community and cultural values while conserving land, water, and air for future generations.

The transition to a green energy economy is becoming more realistic for Tribes. On July 13, Senator Martin Heinrich (D-NM) and Congressman Raúl M. Grijalva (AZ) introduced the Tribal Tax Incentive for Renewable Energy Act. This Act would allow Tribal Governments to take advantage of federal renewable energy tax credits, and, ultimately, these tax incentives would allow Tribes to exert their energy autonomy. Federal incentives like this Act could create more job opportunities, so young Native People can delve into the green energy economy. Looks like these forward-thinking AIR Leaders are headed in the right direction!

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke has worked with Indigenous youth throughout the world developing leadership pathway programs that value and reflect sustainability. Nikke is a recipient of the 2015 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.

The Struggle to Protect Against Cultural Genocide

By: Anna Hohag | Intern | anna.hohag@procopio.com
Theodore J. Griswold
| Partner | ted.griswold@procopio.com

The United States has enacted laws that aim to protect the integrity of Indian arts and artifacts through multiple laws including the Indian Arts and Crafts Act (IACA), the Native American Graves Repatriation Act (NAGPRA), and the Bald and Golden Eagle Protection Act. Unfortunately, some things within the United States boundaries and more often on the international art market, these laws become ineffective and need to be strengthened.

The Act of 1990 is a truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. Through this law, it is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian-produced, an Indian product, or the product of a particular Indian or Indian Tribe or Indian arts and crafts organization, resident within the United States. The purpose of the IACA is to protect both the consumer and the Indian artisan from disingenuous merchants looking to make a profit off of the misrepresentation of Native art. Examples of traditional items frequently copied by non-Indians include Indian style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing. These copied items are often cheaply made knock offs whose retailer sells as authentic Indian art. Then IACA was intended to instill integrity back into the Indian art market and discourage falsely advertised products.

This law helps create a space in the US market for Indian artisans to compete by showcasing not only their artistry, but also their culture. And who better to showcase Native culture than, you guessed it, an actual Native American person.

However, The IACA does not always work as intended. Recently, a Federal Court in Illinois dismissed a claim brought under the IACA for lack of standing. The claim was brought by Native American Arts, Inc., an Indian owned business that sells Indian arts and crafts, alleging that Peter Stone Jewelry International, an international jewelry wholesaler, sold knock-off Indian jewelry entitled the Wolfwalker Collection. Peter Stone advertised the Wolfwalker collection as “Authentic Native American Jewelry” and “Native American Designed” at tradeshows and on their website, although the designer, Wendy Whiteman, was not “Indian” as defined in the IACA. It was even apparent that the jewelry was mass-produced as each had a sticker on them reading “Made in Thailand.”

Under the IACA, an Indian is defined as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. Whiteman was none of these. Still, the federal court dismissed the case, reasoning that Whiteman’s statement that she chose her Wolfwalker name because her “spiritual roots are Native American” was “perfectly consistent with” being Native American. I don’t know where else you can get away with such a blanket definition of “Indian.” Like others recently in the media, the judge did not recognize the fallacy of such “spiritual ethnicity.”

With the reasoning the court uses here, anyone can be Indian. In fact, it would completely void the intent of the IACA when it intentionally created a definition of “Indian” as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. By that same reasoning, what stops any foreigner from coming into the United States and claiming that their “spiritual roots” are in America and therefore they should be considered American citizens?

Even more worrisome is the international market on Indian arts and crafts. What might be viewed to one person as a simple arts and crafts object readily available for sale and trade, may to a tribe be much more significant than that, and potentially taboo to be traded. For instance, a Paris auction house is in the news for refusing to stop selling Native American masks. Even after widespread condemnation from the U.S government and others since 2013 for selling Native American artifacts to buyers around the world, the Drouot auction house has instead increased its auctions of the items. If that wasn’t worse enough, French auctioneer Alain Leroy justifies the auctions, arguing that “it’s legal” and that “the tribes are shocked, yes. But to each his own morality.” By Leroy’s reasoning, these type of French auctioneers believe tribes should actually be grateful the French elite who have bought and removed these sacred, forbidden artifacts, “safeguarding” them in private ownership. For that, Leroy believes they “deserve some respect.”

Respect?

The Tribes, their thousands of years of culture, and their Indian artisans are what deserves respect. Isn’t it they who deserve to be safeguarded from these profit seeking merchants and auction houses from exploiting their art and sacred objects? Some even argue that this is a form of cultural genocide.

Anna is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, CA. She is entering her second year of law school at the James E. Rogers College of Law at The University of Arizona. She is a Board Member on the California Indian Law Association and the 2015-2016 National Native American Law Students Association Area 1 Representative. Before attending law school she worked for the Pala Band of Mission Indians as the Tribal Liaison. Anna is a recipient of the 2015 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.

Buy Indian Act: What it Can Do for YOUR Native Owned Business

By: Stephanie Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold
| Partner | ted.griswold@procopio.com

Does your Native-owned business want to get into government contracting?

Does it have some government contracts, but want to expand your business?

The Buy Indian Act is an opportunity for your Native-owned business to generate revenue and establish quality past performance.

This month government has awarded contracts to a call center and a business selling arsenic-removal treatments for water supply and irrigation systems. Each one of these companies received 100% Buy Indian Small Business Set Aside in the last two months. The Senate Indian Affairs Committee is having a listening session today at 2:45 EST in 216 Hart Senate Office Building in Washington, D.C. to better understand what can be done to empower Native-owned businesses. This signals that changes to strengthen the Buy Indian Act could be on the horizon from Congress.

The Bureau of Indian Affairs (BIA) rules state pursuant to the Buy Indian Act they must give Indian businesses first preference in procurement matters by seeking contract offers from at least two Indian Economic Enterprises (IEE). The definition of an IEE is that it is a for-profit business that is at least 51% Native owned or 51% owned by a tribal government. When the BIA has the two offers on a contract they must select one of them that is an IEE, so long as it is of a “reasonable and fair market price.” And that’s a lot of discretion when you are debating what is reasonable to government procurement officers.

The BIA may deviate from the rules only in specific circumstances, such as when no offers are received from any IEEs or when only one offer is received and it is not reasonable.

I recommend that Native businesses seek opportunities often at Federal Business Opportunities. You can set up an alert that emails you directly when an opportunity arises that matches the goods or services you provide is available.

When looking for a Buy Indian Act opportunity, teaming is encouraged, because subcontracting is permitted. And remember that least 50 percent of the subcontracted work must go to IEEs and this empowers the Native business to learn from the partnering business and build its own capacity through increased opportunities.

To be eligible under the Buy Indian Act there are the 5 requirements:

  1. The business must be an Indian Economic Enterprise (IEE). The definition of IEE is that it is a for profit business that is at least 51% Native owned or 51% owned by a tribal government.
  2. The IEE owners must be citizens of a federally recognized tribal government or Alaska Native village.
  1. The IEE must manage the contract.
  1. The Native person or tribal government must receive majority of the earnings from the contract.
  1. The Native person or tribal government must control the daily business operations.

Here is the other great news – the scope extends beyond just the BIA. To increase the economic impact of the Buy Indian Act, the rules authorize that the Department of Interior may delegate the mandate to other bureaus in the department like the National Park Service and the Bureau of Land Management. What do you make that our national parks need? Maybe you sell t-shirts? Or provide office supplies? Or pesticides? Or fire land management?

Our government has immediate contracting needs and your Native businesses can fill them today – if you seize the opportunity!

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, the federal trust responsibility and working with businesses in Indian Country.

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.

Tribal Governments Can Maximize Their Economic Development Opportunities and Affirm Their Self-Governance by Updating Tribal Commercial Codes

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Tribes and their members are regularly engaging in commercial transactions by ever increasing numbers. Also increasing are commercial financing transactions to support the tribe’s commercial activities. Sometimes, tribes or tribal members need to borrow money to support their commercial activities from lenders who will require that personal property collateral be pledged to the lender to secure the borrower’s obligations under the loan documents. One of the biggest impediments to gaining such loans is a lender’s unfamiliarity in dealing in Indian Country. Tribes have a useful tool that can both minimize this lender concern and allow the tribal government to exert is own control over financial dealings.

The Uniform Commercial Code is a set of legal rules covering many important business and commercial activities. It was proposed for the purpose of making commercial business transactions more predictable and efficient by making commercial laws consistent across all 50 states. Article 1 provides definitions and general principles that apply to the entire Uniform Commercial Code and Article 9 of the Uniform Commercial Code covers security interests in personal property. A security interest is the creditor’s claim to the personal property to secure the performance of an obligation, usually the payment of a debt. A secured transaction is an agreement where one party gives to another party a lien on property, other than real estate, as collateral for a loan or other financing transaction.

Lenders are familiar with the rules in the Uniform Commercial Code and they know what to do in all 50 states to create an enforceable security interest and to make sure they have first priority in their collateral in relation to other creditors. Therefore, lenders making loans in Indian Country have often included language in their loan documents requiring tribes to adopt, as their own law, all or part of Article 1 and Article 9 of the Uniform Commercial Code of the applicable state where the tribal lands are located, and for the tribe and its business entities to consent to the jurisdictions of the courts in that state rather than tribal courts. However, that law may not adequately reflect the tribe’s culture and values.

There is an alternative. Tribes can adopt their own version of the Uniform Commercial Code. If the legal concepts in the tribal law are familiar to lenders, it should make lenders more comfortable making loans to the tribe and its businesses. This will help the tribe attract more lenders to finance new tribal projects. In 2005, the Uniform Law Commission (ULC), with support from the Federal Reserve Bank of Minneapolis published the Model Tribal Secured Transactions Act (the Model Tribal UCC) and proposed that it be adopted by Indian tribes to create a relatively uniform system of commercial laws in Indian Country that are similar to the commercial laws found in Article 1 and Article 9 of the Uniform Commercial Code. The Model Tribal UCC contains similar core principles, terminology and procedures as those contained in Uniform Commercial Code. However, each tribe can adopt a customized version of the Model Tribal UCC which will give each tribe the ability to affirm its own sovereign immunity and self governance and incorporate its own tribal customs and traditions into the law.

With 567 federally recognized tribal governments in the United States, there are many opportunities for business transactions between tribal governments and tribal business entities and outside lenders. If a tribe has not adopted any form of the Uniform Commercial Code, lenders are likely to require the tribe to adopt the local state’s Uniform Commercial Code and that may not be consistent with the tribe’s needs. By adopting a customized version of the Model Tribal UCC to fit its specific tribal culture, values and needs, a tribal government can be proactive, transparent and choose tribal courts to enforce any disputes. This will encourage lenders to provide capital for tribal projects and continue to grow the opportunities in tribal communities to encourage business development and self governance in Indian Country.

For a more extensive discussion of this issue, click here.

Sandy Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.

Stephanie Conduff is a citizen of the Cherokee Nation and a former Procopio Native American Intern. She graduated from the University of Oklahoma College of Law and is currently preparing to sit for the Oklahoma Bar Exam before returning to Procopio.

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.

U.S. Department of Education Announces Upcoming Cities on its First-Ever School Environment Listening Tour for Native American Students

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

The White House Initiative on American Indian and Alaska Native Education (WHIAIANE) has announced it is having listening sessions on Native students’ educational environments throughout Indian Country in November. The listening sessions will give tribal governments, tribal citizens, educators, parents, community members and students the opportunity to speak with White House officials and Department of Education staff. This is an important aspect of consultation with tribal communities and Indian Country. These forums are also necessary to ensure Native students are educated in culturally-appropriate environments preparing them with the vocational and academic skills required for a healthy life upon high school graduation.

These cities and dates are:

Troy, New York – November 5

Seattle, Washington – November 7

Los Angeles, California – November 13

Oklahoma City, Oklahoma –November 18

East Lansing, Michigan – November 19

Tulsa, Oklahoma – November 21

The tour already completed two stops, one in Franklin, Wisconsin on October 10 and the other on October 26 in Lacrosse, Wisconsin.

The listening sessions focus on school environment issues — bullying, student discipline and offensive imagery and symbolism. The White House Initiative on American Indian and Alaska Native Education is gathering feedback during the tour and will consider how it can inform future action to ensure Native American students receive a high quality education.

“We hope these sessions will serve as a meaningful resource to the Native community as my office and the Administration work to ensure that American Indian and Alaska Native students have equitable educational opportunities in healthy learning environments,” said William Mendoza, executive director of the White House Initiative on American Indian and Alaska Native Education. “Indian students have unique education challenges as they strive to preserve their native cultures and languages, while ensuring that they are college and career ready.”

In his June 13, 2014 visit to Standing Rock Indian Reservation in North Dakota, President Obama affirmed the Administration’s commitment to strengthen Native American communities through education and economic development. His initiative, “My Brother’s Keeper,” ensures that schools can provide the social, emotional, and behavioral supports for all youth—including boys and young men of color—that will enable all students to graduate from high school ready for college and careers.

The WHIAIANE and the Department’s Office for Civil Rights (OCR) are committed to supporting school districts, states, tribal governments and other organizations as they seek to better serve Native American students and ensure that all students have equal opportunities and resources in order to learn and succeed in school, careers and in life.

The media advisory is here.

More information about the listening tour and tribal consultations can be found at www.edtribalconsultations.org.

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.

Advising the Advisor to the President: My Experience with Federal Governmental Advisory Committees

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

There are experiences in life that you have to be there to believe. So often in Indian Country, we recount the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) failures without any appreciation of the people who create these organizational structures and buildings in Washington DC and all over the United States.

Two of the major players that you read about in Congressional Testimony, court filings and national media headlines are:

  • Kevin Washburn – Assistant Secretary, Indian Affairs for the US Department of the Interior
  • Yvette Roubideaux – Acting Director, Indian Health Service

This time last week, I worked side-by-side with the DOI Self-Governance Advisory Committee and the Indian Health Service (IHS) Tribal Self-Governance Advisory Committee to participate in the consultation process between tribal leaders and the federal government. They are empowered with the task of advising both Secretary Washburn and Dr. Roubideaux on a myriad of multifaceted policy topics including advanced appropriations, contract support costs, Ebola preparedness, third-party collections and grants for school boards. In turn, Secretary Washburn and Dr. Roubideaux advise the President.

These two aren’t figureheads. They are engaging and passionate leaders. Both confident, respectful and open to learning. They exemplify the spirit of consultation and what a government-to-government relationship should look like; in this room one could imagine observing the G8 Summit. This work group feels more like a peer group than a representational sampling of sovereigns. Perhaps it is because we are all related – by definition a tribe is a family of families. I realize that I am kinfolk to at least three people in the room before lunch. Governance changes when you have to answer to the taxpayers and to Great Aunt Pearl on Sunday. Both want answers.

I leave day two especially thankful policy work groups like this exist to ensure the mundane (think FY 2016 appropriations) are in line and the urgent (imagine Ebola isolation units at your local IHS facility) are anticipated. It is the work of these leaders in Indian Country that we are protected, represented and heard by the federal decision makers on the most important issues facing our families, neighbors and communities.

This was true consultation – one that can’t be codified by law. It can only be done out of genuine respect for self-governance and by a true statesman (or stateswoman). It’s refreshing to see the head of these agencies – sitting in a circle – with tribal leadership. They joke. They laugh. They are serious, focused and respectful. This wasn’t just a stop on a busy agenda of meetings but a place where a team of advisors met to hold each other accountable and generate solutions to Indian Country’s top problems.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law.

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.

Peacemaking, Restorative Justice and Empowering Native Communities

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

I am a certified peacemaker.

How so? How many of our readers know what that means? Raise your hands? Okay, that’s what I thought…

At this point, you may imagine me calming the nerves of family members or even that of co-workers at the water cooler. Maybe you envision a circle and a talking piece. You see — circles— even blogging circles — are trendy. Even this season’s Orange is the New Black featured one.

Tribal Governments can use a Peacemaking Court as a forum for resolving conflicts using traditions, customs and culture as the basis for finding peace in the resolution.  For some, it can be codified in law and even be a division of the District Court.

Peacemaking is a process that requires the parties to agree to peacemaking and to the selection of the peacemakers in order to participate in the peacemaking process and resolve their differences.

The core values of the Peacemaking court are respect, humility, compassion, spirituality and honesty. No value carries more significance than any other. Participation in the Peacemaking Circle process indicates acceptance of these values both in word and action and a commitment to move forward from the point of dispute.

What is ironic about being a certified peacemaker is that it isn’t about an individual, and it surely isn’t about creating peace. It is about a unified community and about the intent of the circle. It is about restoring balance and about healing. In one tribal Peacemaking court, for those who are litigants and request peacemaking, the goal of the peacemaker is to strive to be:

  • Mediators of their differences;
  • Leaders in teaching them our history, customs and culture;
  • Healers of conflict by promoting peace and harmony;
  • Guides to teach them and help them find their tribal identity.

My debut into peacemaking is a result of years serving as a judicial clerk for the Honorable Chief Justice Barbara Smith who sits on the Supreme Court for the Chickasaw Nation. She has been a facilitator for the Native American Rights Fund (NARF) Chautauqua Peacemaking Project and is on the Advisory Committee for their current Peacemaking Project. She is also on the NARF Board of Directors. Though she is too humble to agree, I consider her the intellectual leader of peacemaking. She is entrusted by the elders of many tribal nations with the wisdom and traditions used in their peacemaking over the centuries.

She and her brother, the Honorable Michael Smith, a District Court Judge for the Sac and Fox Nation, have mentored me for years. They co-teach at the University of Oklahoma and took 15 of us through a journey of self-discovery to prepare to become peacemakers.  They are the ones that brought me to Medicine Bluffs.

Peacemaking requires patience. You have to let go of being in charge of communication in the circle — something that is difficult for attorneys and law students to do. If you represent a client who chooses the peacemaking circle route, then you will not even be allowed in the circle. There is no need for representation in the circle.

Peacemaking takes time. Really, it is all about time. In a circle you start to realize that everyone is equal. No titles and accolades exist within the circle. I am just a voice.  Not THE VOICE in the circle.  Who am I as a person, then, I wonder? For years now, every time I introduce myself or someone introduces me it is based on what I do. What am I supposed to say to this group of people looking at me if I can’t tell them what I do or what I’ve done?

The circle can introduce new doubts that you didn’t even know that you have inside of you — then give you the time and perspective to work through to the natural resolution.

For many litigants who opt-in to the circle they initially think it will be easier. Some perceive it will be less punishment. However, the circle oftentimes commands courage, requires responsibility and provokes shame in a way so intimate a Judge could never convey it down from the bench. When the litigant must be in community with and listen to the victim or the victims’ family there is a sense of obligation that often emerges. As it pertains to a justice system, Chief Justice Smith said something powerful that stays with me: It is better for my soul to do good things instead of mean things.

For example, punishing tribal youth for poor decisions, which will affect their college admission chances or potential job opportunities, does nothing for the person or the Native community. Instead, healing is a good thing for those involved in the circle and in the tribal community. After all, a tribe is a family of families. By making them aware of their actions and the affect it has on others can often prompt change and self-evaluation that can promote responsibility and maturity. Participation in the circle is voluntary.

Peacemaking courts are analogous to other restorative justice courts we see in mainstream judicial systems. Examples of these are DUI courts, drug courts, Veteran’s courts, Sex Trafficking Courts and Homelessness Courts. I think the success we have seen in the Homelessness Court, that started in San Diego in 1989, show us that doing something innovative can make a difference in citizens’ lives. An except from a presentation on the ABA Commission on Homelessness and Poverty highlights the importance of this program in the San Diego Community:

“Homeless Court helps the community by engaging homeless people in gainful activity, thereby removing them from the doorways, parks and gathering places where they are unwanted and susceptible to arrest. It helps homeless defendants move back into productive lives because the sentence is most often participation in a work and counseling program that offers help with overcoming social problems, enhancing job seeking skills and locating employment opportunities and affordable housing. In the words of Charles Campbell, past Presiding Judge of the Ventura Superior Court, “Other than providing temporary housing, incarceration of the homeless does nothing to benefit the homeless or the community.” Referrals to specialized alcohol and drug treatment programs, mental health services and training or searching for employment help the community to tackle the problem of homelessness in a meaningful and practical way.”

Ultimately, it is up to each sovereign to decide how to operate their court systems and systems of justice. I am confident that we can find ways to intentionally include multigenerational dialogue of our youth and our elders when addressing community issues in achieving balance. Peacemaking is a natural path to that end.

To learn more, join the National American Indian Court Judges Association, Columbia Law School, and the Native American Rights Fund at the Traditional Peacemaking: Exploring the Intersections between Tribal Courts and Peacemaking, Including Alternatives to Detention at the Hard Rock Hotel and Casino – Tulsa on October 6-7. Topics they will cover include:

  • Peacemaking Doesn’t Operate in a Vacuum: The Importance of Context
  • Approaching Culturally Appropriate Justice with Indigent Defendants
  • Peacemaking from the Ground Up
  • Peacemaking from the Bench
  • Preparing the Next Generation of Peacemakers: Academic and Court Training Options
  • Reentry Programs Using Peacemaking/Peacemaking in Correctional Facilities

To register for the event, click here.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law. Stephanie is especially thankful for her mentors, the Honorable Barbara Smith and the Honorable Michael Smith, who have significantly invested in her and her understanding of the inner-connection between cultural relativity and progress in Indian Country.

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.