Charting the Way to Cultural Preservation: Tribal Charter Schools


By: Summer Carmack | Native American Law Intern |
Greta Proctor | Partner |
Theodore J. Griswold | Partner |

New federal funding opportunities and a new guide released by the National Indian Education Association (NIEA) in July have spurred new interest from many Indian Nations about how public charter schools can serve the academic and cultural needs of Native American students. The U.S. Department of Education’s new grant funding is earmarked to help develop and sustain charter schools serving “Educationally Disadvantaged Students,” a defined term that includes “students who are Indians and students in Rural Communities.”* This chance to secure new funding, coupled with the flexibility charter schools provide to tribal communities, make public charter schools an attractive prospect for tribal governments and communities seeking to form their own education systems.

The NIEA handbook, through funding from the Walton Foundation, provides Indian Nations a framework for the development, design, establishment, and operation of tribal charter schools that offer a culturally-grounded education. “Charters allow American Indians to expand their sovereignty by controlling the type of education their children receive. . . Critical aspects of a person’s identity—values, traditional practices, knowledge, and language—can now be integrated into the curriculum offered by charter schools.” Native charter schools that incorporate a Native community’s framing of well-being into their educational model can also seek accreditation from the World Indigenous Nation’s Higher Education Consortia (WINHEC), in addition to traditional accreditation opportunities.

Some California-based tribal communities have already opened their own charter schools, in recognition of the advantages they can provide. For example, the Barona Band of Mission Indians opened the Barona Indian Charter School in 2002. Today, the school educates 88 students, consisting of Native American youth and non-Native children from surrounding communities, with a mission “to develop in [its] students a dedication to community service and the motivation and skills necessary for life-long learning.” Beyond combatting the effects of the federal government’s past assimilationist policies toward Native Americans, tribal charter schools help ensure cultural preservation by imbuing values, customs, stories, languages, and lifeways into a core fundamental curriculum. California—with the largest Native American population and most tribal reservations of any state—is poised to take advantage of increased funding and a more wide-spread understanding of the needs of Native students to open and sustain more tribal charter schools.

Charter schools are tuition-free public schools that operate independently from traditional school districts, through a contract (charter) developed between the school and a local school district, county or state. Charter schools are schools of choice: they provide expanded educational opportunities for parents within the public school system.

Charter schools have the flexibility to cultivate and design their own educational program that both incorporates state standards and meets the unique needs of their community. In exchange for the freedom to innovate, charter schools are subject to higher levels of accountability than traditional public schools.

More information about Procopio’s Education and Charter School practice group and useful tools for those in the Charter School industry are available here.

* Proposed Priorities, Requirements, Definitions, and Selection Criteria: Expanding Opportunity Through Quality Charter Schools Program, 83 Fed. Reg. 35,571, 35,572 (July 27, 2018).

Procopio_Proctor_Greta_Bio PhotoGreta Proctor represents charter schools throughout California from her Los Angeles office.  She advises on the development of new charter schools, renewals, and all of the day-to-day issues facing charter schools.  Greta is a regular presenter at charter school conferences and trainings. She has worked with diverse charter networks on replication.

summer croppedSummer Carmack is a rising 3L at the University of Montana’s Alexander Blewett III School of Law, where she is an American Indian Law Certificate student focusing her studies in tribal economic development, sovereignty and natural resources.  She is Managing Editor of the Public Land and Resources Law Review.  Summer is a recipient of the 2018 Procopio Native American Law Student Internship.

Ted GriswoldTed Griswold is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.

Are Tribal Nations the Last Frontier for Same-Sex Marriage?

By: Kevin M. Davis | Attorney | and
Theodore J. Griswold | Partner |

On June 26, 2015, the U.S. Supreme Court held that same-sex couples have the constitutional right to marry, now protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (See Obergefell v. Hodges, 135 S.Ct. 2584 (2015).) Despite this landmark and far-reaching decision, the freedom for same-sex couples to marry does not extend everywhere. Sovereignty means that each of the 567 federally-recognized Tribal governments may decide for themselves how to treat same-sex couples. In fact, the two largest Tribes in North America—the Cherokee Nation and the Navajo Nation—have laws specifically prohibiting same-sex marriage. (There is a movement to repeal the Diné Marriage Act of 2005, the law prohibiting same-sex marriage in the Navajo Nation.) Nevertheless, many same-sex couples living on Tribal Lands must leave their community to get married, only to return home with uncertainty about how their marriage will be recognized.

I remember as a teenager learning from a public radio program about the Native American concept of the “two-spirit” people. These individuals are viewed by some Tribes as having two identities—one male and one female—that occupy one body. Today, we would refer to two-spirit individuals as intersex or androgynous, or simply feminine males or masculine females. Many Native American people hold two-spirit people in high regard, having both the spirit of a man and the spirit of a woman. These individuals are therefore seen as more spiritually gifted than others, which is an honor to their families and a source of esteem, although sometimes fear, from their communities. In many Tribes, a relationship between a two-spirit person and a non-two-spirit person is considered neither heterosexual nor homosexual.

Caught in the recent whirlwind of public opinion and legal battles, which some would better describe as a tornado or a complete sea-change, many Tribes have grappled with same-sex marriage. Could Tribal laws prohibiting same-sex marriage have been influenced by discriminatory state laws adopted throughout the United States? In 2009, the Coquille Tribe of Oregon became the first Tribal government to affirmatively extend the freedom to marry to same-sex couples. Since then, several other Tribes have either adopted laws allowing same-sex marriage or realized their Tribal code does not reference gender, thereby already recognizing marriage between same-sex couples.

The number of Tribal Nations that legally recognize same-sex marriages is currently around two dozen. That equates to just over 4% of the 567 federally-recognized Tribal Nations. However, recall that only two years ago, the number of American states that recognized these unions was even fewer. In addition, due to ambiguity or gender-neutral Tribal codes, another 77 Tribal Nations may recognize same-sex marriage by not expressly prohibiting them. Just as American civil rights organizations tracked the evolution of state laws on a color-coded map of the United States, it should be interesting to track the adoption of, or even the reversion to, the freedom to marry for same-sex couples in Tribal Nations.


Kevin M. Davis is a member of Procopio’s Clean Technology, Energy, Environment and Resources practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters. Kevin is also a member of the Board of Directors, and the current Chief Financial Officer, for the Tom Homann LGBT Law Association, which is the diversity bar association in San Diego County dedicated to the advancement of gay, lesbian, bisexual and transgender law students and attorneys.


Ted Griswold is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.