Latest U.S. Supreme Court Decision a Setback for Native Tribes and Their Rights

In a highly unwelcome decision for Native tribes relying on treaties with the U.S. government, write Procopio Native American Law Partner Ted Griswold and legal intern Ariel Jones, the U.S. Supreme Court held recently that the government’s general trust obligation to Navajo Nation does not require the federal government to take affirmative steps to secure water for the Navajo reservation. The tribe is located in a region undergoing a historic drought, and it had argued the U.S. had a legal obligation to assist the tribe obtain much-needed water access.

In the 5-4 decision in Arizona v. Navajo Nation, Justice Brett Kavanaugh opined for the majority that nothing in the text of the 1868 treaty between Navajo Nation and the U.S. creates a “conventional trust relationship” with regards to water. Justice Neil Gorsuch, who not infrequently votes on the side of Tribal nations, made clear in his reproving dissent that nothing about the U.S. relationship with Navajo Nation, or any tribe for that matter, is conventional.

Learn more about the case, and how Ted and Ariel believe the decision not only disregards the principles of federal Indian law but also misunderstands water law, in a new article published by Procopio.

For the first time in modern history, a Native American woman will serve as a federal district court judge in California

Superior Court Judge Sunshine Sykes testifying before the U.S. Senate Judiciary Committee, February 1, 2022 (image courtesy of U.S. Senate Judiciary Committee)

By Procopio Associate Anna Hohag

History was made yesterday, May 18, 2022, as the United States Senate voted 51-45 to confirm current Superior Court Judge Sunshine Sykes to serve as a federal district court judge for the U.S. District Court for the Central District of California. Judge Sunshine Sykes (Diné) is a citizen of the Navajo Nation with deeps roots serving Indian Country and California, including serving in numerous roles early in her legal career for California Indian Legal Services, a nonprofit law firm advocating for Tribal sovereignty, self-determination, and Native rights. Since 2013, Judge Sykes has served as Riverside Superior Court judge in Riverside, CA, where she will maintain her federal court chambers.

The United States District Court for the Central District of California is a federal trial court that serves over 19 million people in Southern and Central California. It also serves as a federal forum for dozens of tribes located in Southern and Central California, a state with one of the largest populations of Native Americans and home to over 109 federally-recognized tribes. While Native Americans (American Indians, Alaska Natives, and Native Hawaiians) make up about 2.9 percent of the population in the United States, they comprise of only about 0.2 percent of the more than 1.2 million attorneys in the United States. As a result, this has led to the severe invisibility of Native American attorneys and experiences in the legal profession, an issue being studied and addressed by the National Native American Bar Association and the American Bar Association. Judge Sykes will now join the ranks alongside only four other active Native American judges — all women — serving on the federal bench.

Procopio has followed Judge Sykes’ career for many years and we are proud to recognize and celebrate this monumental achievement for Judge Sykes along with all of Indian Country and the California legal community! We commend President Biden on nominating Judge Sykes and the U.S. Senate for confirming her historic selection. As a member of our Native American Practice Group along with other Native American women attorneys, I am proud of our strong Native women presence and leadership— the future is bright. Future generations will see leaders like Judge Sykes in these positions of impact – making the legal profession and judicial system more respectable, reliable, and attainable for all, including our nation’s first peoples.

Anna Hohag is a citizen of the Bishop Paiute Tribe and a member of Procopio’s Native American Practice Group. Her practice primarily focuses on advising Tribal governments and Tribal entities on a variety of issues including Tribal law and policy development, intergovernmental agreements, board governance, cultural and natural resources, and economic development.

IS ALL “FAIR” IN FASHION AND APPROPRIATION?

By: Heather Torres | Intern | heather.torres@procopio.com
Ted Griswold | Partner | ted.griswold@procopio.com

On July 12, 2016, New Mexico Federal Judge Bruce D. Black granted another partial win to Urban Outfitters in the infamous, Navajo Nation v. Urban Outfitters, by denying the Nation’s motion to dismiss Urban Outfitters’ trademark fair use defense. As a result, Urban Outfitters will be able to assert the affirmative defense of descriptive fair use against the Nation’s trademark infringement claim at trial. Descriptive fair use allows the use of another’s mark if used to describe a user’s product or their geographical origin, rather than indicate the user’s own products or business. Essentially, Urban Outfitters argued that the term “Navajo” is only a descriptor to signify a general style and “is and always has been a geographically descriptive [term].”

This latest ruling is consistent with the court’s earlier decision in May. In May, Judge Black found the “Navajo” mark to be a niche mark not “famous” enough to be protected from trademark dilution. The court accepted Urban Outfitters condensing a Tribal Nation and its distinctive cultural expressions into a generic mark capable of being exploited by non-Indian businesses. This acceptance contributes to the continued cultural genocide of Indian identity through what scholars Angela Riley and Kirsten Carpenter call “Indian Appropriation.” The court’s earlier dismissal of the trademark dilution claim could indicate a high likelihood of Urban Outfitters’ fair use defense being accepted at trial.

The Navajo Nation also asserts Urban Outfitters used the term “Navajo” in violation of unfair competition and commercial practices law and in violation of the Indian Arts & Crafts Act (“IACA”). As discussed in Gabriela Rios’ post, New Mexico District Court Holds Urban Outfitters Can Be Sued Under Indian Arts & Crafts Act, the Act allows Indian tribes to sue a person or entity who sells a product in a way 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 …” 25 U.S.C. §305e(b). Though, the Act has been perceived as a protection with all bark and no bite, the Nation could see some remedy. On May 19, 2016, Judge Black found that the Act allows the Nation to collect statutory damages “. . . of not less than $1,000 for each day on which the offer or display for sale or sale of a given type of good continues.”

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.

2015 Procopio Native American Practice Group Internships Awarded to Anna Hohag and Nichole Alex

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

Procopio is pleased to welcome Anna Hohag (University of Arizona) and Nichole “Nikke” Alex (University of New Mexico) as the 2015 summer interns for the firm’s Native American Practice Group. Each paid internship extends ten weeks, and provides an opportunity for a Native American law student, or law student emphasizing Native American Law, to gain hands-on experience dealing with everyday legal issues facing Native American communities. Procopio Interns also reach out to local Native American youth to provide guidance and inspiration regarding educational direction and opportunities.

Ms. Hohag is a first year law student at the James E. Rogers College of Law at the University of Arizona, focusing on its Indigenous Peoples’ Law and Policy Program.   Ms. Hohag is a citizen of the Bishop Paiute Tribe in Bishop, CA. Prior to entering law school, Ms. Hohag worked as a Tribal Liaison for Pala Band of Mission Indians from 2012 to 2014, working on land and environmental issues for the Tribe, including educating Tribal members on the American Indian Probate and Reform Act, and working with water and land settlements, sacred sites and the protection of natural and cultural resources.   She has over 4 years of youth mentorship experience, both on the Pala Reservation and for the Bishop Paiute Tribe, providing guidance for youth to succeed in higher education, as well as serving as a positive role model.

Ms. Alex is a second year law student at the University of New Mexico School of Law with an emphasis on Indian and Environmental law. Ms. Alex is a citizen of the Navajo Nation. Ms. Alex is the current student liaison for the New Mexico Bar Association Natural Resources, Energy and Environmental Law Section. Prior to attending law school, she was the Executive Director for the Black Mesa Water Coalition, an environmental non-profit that is dedicated to preserving and protecting Mother Earth and the integrity of Indigenous Peoples’ cultures. She previously worked with the Diné Policy Institute applying Navajo Natural laws, and was an intern with the Tribal Science Council at the U.S. Environmental Protection Agency in Washington D.C.

Procopio’s Native American practice group extends the firm’s tradition of giving back to the community it serves through its summer internship program for Native American law students or law students interested in Native American law. The firm started this program in 2011 and has now welcomed nine interns since its inception. Notably, Jaclyn Simi, a 2012 intern and a citizen of the Seminole Nation of Oklahoma and Stephanie Conduff, a 2013 intern and a citizen of the Cherokee Nation, both continued to work with Procopio following their internships. For more about the Internship Alumni, click here.

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.