Opposition Grows Against Bar Association Proposal To Ban Indigenous Blessings At Legal Conferences

Native prayer gathering at United States Supreme Court (fncl.org)

The Washington State Bar Association is considering a proposal that would curtail or eliminate blessings and spiritual invocations at Continuing Legal Education seminars and related events attended by legal professionals.  It is common for such seminars that focus on Indigenous legal issues to be commenced with a blessing that gives thanks for the gathering and asking for wisdom and positive learning.

Within the WSBA itself, strong opposition to the proposal has been voiced by the members of the Indian Law Section, the members of which are legal professionals who work primarily in and for tribal communities.  The Indian Law Section's letter to the WSBA Board of Governors can be accessed HERE.

A statement in support of the Indian Law Section's letter was sent by Greg Guedel, Chair of the American Bar Association's Committee on Native American Concerns:

Dear Members of the WSBA Board of Governors:

I am writing in support of the 20 June 2016 letter from the WSBA Indian Law Section opposing the proposed WSBA policy that would effectively eliminate blessings and spiritual invocations during CLEs and related events. I too believe that banning blessings is inappropriate and would be an over-step that is not warranted by a current or prospective problem. For comparative purposes, as Chair of the American Bar Association’s Committee on Native American Concerns for the past six years I note that our CLEs and other events related to Indigenous issues typically begin with a blessing, and I have observed no negative impacts on the programs nor any complaints from our members and attendees nationwide. Indeed, in my opinion commencing these events with a traditional blessing creates an environment of solemn focus that contributes positively to the learning environment.

Institutions of governance in our country have a long and tragic history of infringing upon the religious rights of Indigenous peoples. Banning Native American religious ceremonies, imprisoning spiritual leaders, and attempting to forcibly convert Native children to government-sanctioned faiths through boarding schools are among the litany of oppressions that have been reasonably described as cultural genocide. Although these destructive actions were clearly unconstitutional and were brutal violations of basic human rights, they were all taken “under color of law” by governmental institutions. Today, the legal profession needs to view preserving the religious rights of Indigenous peoples as a matter requiring broad and consistent remedial action. Taking away the ability to make a spiritual statement at a WSBA event would be a step in the wrong direction – preserving the right of Indigenous peoples to speak as the Constitution allows would be the correct step.

I greatly appreciate your consideration of these issues, and am grateful for your service to our profession and community.


W. Gregory Guedel, Ph.D., J.D.
Chair, Native American Legal Services


Tlingit-Haida Tribes Acquire Billion-Dollar International Contracting Firm


The Central Council of Tlingit-Haida Indian Tribes of Alaska is doing something few tribal organizations do. This month the Tribes acquired KIRA, Inc., an international maintenance contracting company that has undertaken more than $1 billion in federal contracting work, and KIRA will serve as a prime engine for the Tribes’ economic development program

Tlingit-Haida President Richard Peterson said the ultimate goal is to serve all of their tribal members, and not just those in Southeast Alaska. “It feels somewhat disingenuous to repeatedly say, ‘I’m sorry you live outside of service area, but hey you’re a citizen, thank you,’” Peterson said. Grant money that Tlingit-Haida receives mostly limits its services to Southeast Alaska. The tribe provides educational, employment, elderly and financial assistance for its tribal members. Peterson said half of the tribe’s more than 33,000 members live elsewhere in the state or Seattle.  “There’s a misconception out there that we generate funds based on our general enrollment, and we don’t,” he said. “We only generate funds based on the service area enrollment.”

In recent years, Tlingit-Haida has made an active push to generate unrestricted funds by creating a separate company, Tlingit Haida Tribal Business Corp., or THTBC. Last year, the Small Business Administration certified the company for special government contracting status under its 8(a) program. Alaska Native corporations have long used the program to win federal contracts, but it’s unusual for tribes. Congress created the 8(a) certification decades ago to help small and minority-owned businesses win federal contracts. Special provisions were added in 1986 for federally recognized Native American and Alaska Native corporations — they can outgrow “small” status but continue to enjoy the program’s benefits.

Carlos Garcia is KIRA’s founder and president. It was once 8(a) certified, too, but outgrew the program. KIRA will now have those small business contracting opportunities again. “We were only allowed to bid on a small percentage of them,” Garcia said. “We wanted to bid and the only thing that was missing was the certifications that the tribe enjoys.”

The acquisition of KIRA became official after about a year of negotiations. Garcia said he decided to sell to Tlingit-Haida instead of an Alaska Native corporation to ensure the profits directly benefited shareholders. “The money that we make is going to go straight to their tribal members. Many of these large ANCs have enormous bureaucracy in Anchorage and the money goes to those executives,” he said. “And there doesn’t seem to be a lot of profit put forth to the Native programs.”

THTBC’s CEO Richard Rinehart says one of the goals is to have KIRA compete in Alaska’s market. “KIRA has not competed a lot in Alaska because there’s so many Alaska-based corporations that have an advantage,” Rinehart said. “Well now they’ll be able to.” In the coming weeks, Garcia said KIRA will add on multiple new contracts. He believes that if everyone works hard, the company — and its profits — will multiply quickly.


9th Circuit Upholds Tribal Treaty Rights In Salmon Culverts Case


The 9th Cirucit Court of Appleals has ruled that Washington state must repair road culverts that are blocking salmon from swimming to spawning areas because the pipes violate fishing rights protected by tribal treatie.  The ruling is a major victory for 21 tribes joined by the U.S. government that sued Washington state in 2001, arguing that hundreds of culverts block salmon from more than 1,000 miles of streams in western Washington.

"The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs," Judge William Fletcher, of the 9th U.S. Circuit Court of Appeals, wrote in a 59-page opinion on Monday.

Three judges unanimously affirmed a lower court's 2013 order that Washington state correct its road culverts because they violated the Stevens Treaties of 1854-55, the opinion says. Under the treaties, the tribes relinquished huge tracts of land in exchange for a guaranteed right to off-reservation fishing.

The lower court held that the culverts have caused the size of salmon runs in Washington state to diminish and therefore violated the state's obligations under the treaties, according to Monday's ruling.


Dollar General Case Highlights Tribal Sovereignty In Business Dealings

 By Lisa Nagele-Piazza, SHRM-SCP, J.D., senior legal editor for SHRM.

A tribal court for the Mississippi Band of Choctaw Indians has jurisdiction to decide a case involving a teen worker at a Dollar General store on tribal land who claims a manager sexually molested him, according to a June 23 Supreme Court ruling.

The 4-4 decision will leave intact a ruling by the 5th U.S. Circuit Court of Appeals, which held that the teenage tribe member’s negligent hiring claim against the retail chain will be heard in tribal court rather than in a U.S. court.

“The 4-4 vote is effectively a default ratification of the earlier decision from the 5th Circuit,” according to W. Gregory Guedel, an attorney with Foster Pepper in Seattle. “For now, the precedent value is essentially the same as if the case had only been decided at the 5th Circuit level.”

“It is possible that when a new justice is appointed and the Supreme Court is back to the full nine members, another case with similar issues could be decided that either strengthens or contradicts the Dollar General decision,” he said. Guedel is the chair of Foster Pepper’s Native American practice group.

Dollar General operated the store on tribal land in accordance with a lease agreement and business license that was issued by the Mississippi Band of Choctaw Indians.

In 2003, a teenage member of the tribe who participated in an unpaid youth job-training program claimed the store’s manager, a nontribal employee of Dollar General, sexually molested him while he was working in the store.

The teen worker sued Dollar General in tribal court, asserting that the company was vicariously liable for the store manager’s conduct and that it negligently hired, trained or supervised him.

Dollar General fiercely disputed the tribal court’s jurisdiction over the lawsuit and sought an injunction from a U.S. federal court.

The 5th Circuit ultimately affirmed a U.S. District Court for the Southern District of Mississippi ruling that the tribal court could exercise jurisdiction over the case because Dollar General had a “consensual relationship” with the tribe and its members.

Supreme Court precedent allows tribes to regulate “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements” (Montana v. United States, 450 U.S. 544 (1981)).

Even though the teen employee worked only for a short time at the Dollar General store, he was “essentially an unpaid intern, performing limited work in exchange for job training and experience.” This is “unquestionably” a commercial relationship, the federal appeals court ruled.

The 5th Circuit said there was a sufficient connection between Dollar General’s participation in the youth training program and the teen worker’s sexual assault claims.

“In essence, a tribe that has agreed to place a minor tribe member as an unpaid intern in a business located on tribal land on a reservation is attempting to regulate the safety of the child's workplace,” the court held.

“The Dollar General decision means companies operating businesses on tribal land need to consider themselves subject to the legal jurisdiction of the tribal government and the tribal court,” Guedel said.

“Companies should pay particular attention to tribal employment regulations and policies involving employee rights, as these may differ significantly from the state or federal regulations that apply in other local areas,” Guedel said.  “If the tribe requires employers to follow certain procedures for hiring, employee discipline and grievances, and similar personnel matters, companies need to be aware of and integrate these policies into their own procedures,” he added.

The decision is Dollar General Corp. v. Mississippi Band of Choctaw Indians, No. 13-1496.

See more at: https://www.shrm.org/legalissues/federalresources/pages/tribal-jurisdiction-dollar-general.aspx#sthash.I1pLlbEe.dpuf


Supreme Court Upholds Tribal Court Jurisdiction In Dollar General Case

In the much-anticipated ruling in the Dollar General v. Mississippi Band of Choctaw Indians case, the U.S. Supreme Court affirmed the right of the tribal court to assert jurisdiction over a non-tribal corporation operating its business on tribal land.  The case involved accusations by a thirteen-year-old member of the Mississippi Band of Choctaw Indians Tribe that a manager at a Dollar General store on the Tribe’s reservation had sexually molested him while he was an intern at the store. The child and his parents filed a lawsuit against the manager and Dollar General in tribal court, arguing that the store was liable for the manager’s conduct.  Dollar General asserted that it could not be sued in tribal court, despite operating the business on tribal land.

The issue before the Supreme Court was whether the tribal court could assert personal and subject matter jurisdiction over tort claims against defendants like Dollar Genera that are not "Indians" or members of the tribe. The Fifth Circuit Court of Appeals ruled that tribal courts do have such jurisdiction, which Dollar General then appealed to the Supreme Court. The Fifth Circuit’s decision was affirmed by an equally divided Court so that decision will remain the law of that circuit, but is not binding on other circuits. The case will be remanded to the tribal court for a hearing on the merits.

The decision is a strong endorsement for the authority of tribal courts, and amounts to a victory for tribes around the country and their right to exercise sovereign authority for tort claims involving non-Indians on tribal land.


Supreme Court Decision Strengthens Tribal Court Sovereignty

A unanimous decision in a domestic violence case is drawing praise from tribes and their advocates. By an 8-0 vote, the Justices of the United States Supreme Court have upheld the use of tribal court convictions in the federal system. The decision in US v. Bryant means that offenders who repeatedly abuse Native women will continue to face consequences for the actions.

“We deeply appreciate this confirmation of tribal legal rights and jurisdiction," Fawn Sharp, the president of the Quinault Nation of Washington, said in response to the decision. "People need to know that tribal governments consider the issue of violence against women or anyone else on our reservations a top priority issue."

The National Indigenous Women’s Resource Center was thankful for the decision as well. She noted that the majority opinion, which was written by Justice Ruth Bader Ginsburg, cited numerous studies that show Native women are the victims of violence at rates far higher than their counterparts. "The Supreme Court recognized the staggering rates at which our Native women suffer from domestic violence, and the severe consequences Native women face due to jurisdictional limitations on prosecuting violent offenders in Indian Country," said Cherrah Giles, the President of the NIWRC's Board of Directors.

"This decision is a victory for Native women and a victory in the fight to reduce domestic violence in Reservation communities," said Tim Purdon, who served as the U.S. Attorney for North Dakota, "It means that U.S. Attorneys with responsibilities for public safety in Indian Country can make full use of the habitual domestic violence offender statute to protect American Indian women from those who would commit serial acts of domestic violence against them."


Will Coal Port Decision Hurt or Help Tribal Development?

Law360 is discussing the recent U.S. Army Corps of Engineers ruling that halted the proposed Gateway Pacific Terminal in Washington state, noting that the decision in favor of the Lummi Nation’s opposition to the project puts developers on notice that their projects may meet a similar fate if they can't reach an understanding with affected Native American tribes.

The Corps refused to issue a permit for the planned $660m+, 54 million metric ton deep water coal export terminal on the strength of the Lummi Nation's traditional fishing rights under the 1855 Treaty of Point Elliott. The Corps said the SSA Marine-controlled company promoting the project hadn't shown the project would have only a minimal impact on the tribe's usual and accustomed fishing area off the Washington coast, and that proposed mitigation measures to address the actual impact weren't sufficient.

With the decision firmly backing federal treaty rights for the Lummi and with tribes more ready than ever to enforce their prerogatives, developers have to find ways to address tribes' economic, environmental and cultural concerns or risk wasting their time and money on a failed project. Some fear the ruling could have a major chilling effect on energy projects and other proposals, but the ruling could also encourage developers to try to take advantage of the authority of tribes, who can often move the process of approving a project along more quickly than other governments, according to W. Gregory Guedel, chair of Foster Pepper PLLC's Native American practice. "Tribes with their sovereignty and what they're able to do under their treaty rights can often be extremely powerful facilitators and catalysts for economic development projects," Guedel said.


Lummi Tribe and US Army Stop World's Largest Coal Shipment Port Project


The U.S. Army Corps of Engineers has halted the development of what would be the largest coal shipment port in the world near Bellingham, Washington, upholding an appeal by the Lummi Tribe that the $700 million project would hurt treaty fishing rights.

The Gateway Pacific project, a joint venture of SSA Marine and Cloud Peak Energy, was designed to handle as many as 50 million metric tons of coal for export, mostly bound for China.
The proposal would have brought up to 487 vessels each year to the deep-water port north of Bellingham. It would receive coal brought by rail -- through Spokane, Pasco, Tacoma, Seattle and other Washington cities -- from mines in Montana and Wyoming.

In 2015, the Lummi Nation asked the Corps of Engineers to deny permits to the project, arguing that it would interfere with fishing rights to "usual and accustomed areas" guaranteed by an 1855 treaty. "I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holding. I have also reviewed my staff's determination that the Gateway Pacific Terminal would have a greater than de minimus impact on the Lummi Nation's (treaty) rights, and I have determined the project is not permittable as currently proposed," said U.S. Army Corps of Engineers Seattle District Commander Col. John Buck.

"Today's victory is monumental," said Tim Ballew, chairman of the Lummi Indian Business Council. "Because of this decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes remains protected. But this is more than a victory for our people. It's a victory for treaty rights."


Lauren King: "Rising Star" Defender of Tribal Rights


Foster Pepper PLLC partner Lauren J. King’s work defending the interests of Native American tribes, including securing a major fishing rights victory for a Northwestern tribe, has earned her a place among Law360's top attorneys under 40 working in the area of Native American law.

Lauren successfully defended the Quileute Indian Tribe from a six-year-long challenge seeking to restrict their access to fisheries in the Pacific Ocean off the western coast of Washington State. The Makah Indian Tribe had sought to restrict the western border of the competing tribes’ fishing boundaries from 40 miles offshore to less than 10 miles.  At the center of the dispute was a critical whiting fishery that the Quileute Tribe had been harvesting for generations and rightfully belonged to the tribe under the 1855 Treaty of Olympia, King said.

“What was at stake in that case were the promises made in the treaty of 1855 and the tribe’s cultural identity,” King said. “If we had lost that case, the history books would have been rewritten.”

To defend the tribe's fishing rights, King had to establish that the tribe’s ancestors historically fished in the disputed area at the time of the treaty’s signing, which required some creative thinking because the tribe was isolated from contact with settlers during that period and there were few historical documents to rely on, she said. The case involved nine expert witnesses and 472 exhibits on topics such as the contents of archeological middens, or trash heaps, and the ancestors’ linguistic understanding of the 1855 treaty.

U.S. District Judge Ricardo S. Martinez said in August that the tribe had used the appropriate methodology to determine the geographical coordinates of their proposed fishing boundaries. The case, known as subproceeding 09-1, is part of sprawling, decades-long litigation by the federal government filed against the state of Washington in 1971. It is currently under appeal in the Ninth Circuit.

King’s relationship with the Quileute Tribe began when she did pro bono work for the tribe as a second-year associate at another firm, which gave her her first opportunity to present an argument in court.

“I walked in and there were a lot of attorneys there from thirteen tribes,” King said. “One of the gray-haired lawyers walked up to me and said, ‘Welcome to the halibut wars.’ ”

Her representation of the tribe, now in its sixth year, taught her that Native American law could provide the foundation of a career and has encompassed a formative time during which she matured from an associate into a partner, she said.

“I’ve grown up as an attorney with the Quileute Tribe,” King said. “We’ve really just created a great working relationship where we have understanding conversations, opposing viewpoints are accepted, and we view each other as kind of a functional family.”

King has also defended the tribe from challenges to hunting rights in its territory and has advised the tribal council on governance matters, indemnification agreements and ongoing negotiations in disputes with other entities and has drafted council resolutions and tribal regulations.

King said she was drawn to Foster Pepper because the firm is unique in supporting associates' business development, which has helped her launch a practice representing clients in the casual gaming area. She also credited her success to having experienced role models, both at Foster Pepper and at previous firms.

“Strong mentors who have invested in me as a person and as an attorney has been crucial,” King said.


Florida State University Student Government Bans Native Headdress at Athletic Events


Matthew Paskert/FSView

The student government of Florida State University, whose athletic teams are named the "Seminoles", has passed a resolution banning the wearing of any Native American headdress at Florida State athletic events.  The resolution states that "the wearing of any Native American headdresses shall no longer be permitted into athletic arenas at FSU."

Headdresses usually worn and seen by those at Florida State games are closer to the cultural traditions of the Plains region tribes, such as the Sioux, rather than those of the Seminole Tribe.

The exact language of Resolution 15 is as follows:

WHEREAS: The Florida State University is responsible for cultivating and maintaining a strong relationship between the Seminole Tribe of Florida and this collegiate institution, and

WHEREAS: The Florida State University received the declaration of support from the Seminole Tribe in 2005 to use the Seminole name, logos and images, and

WHEREAS: The university seeks to ensure all images and actions used to depict the tribe are authentic and reflect what we value as an institution, and

WHEREAS: The university has agreed to not engage in any activity that does not have the approval of the Seminole Tribe of Florida, and

WHEREAS: Florida State University fans are allowed to bring headdresses that do not depict the Seminole Tribe of Florida to athletic events, and

WHEREAS: The Seminole Tribe has expressed its distaste for this appropriation of culture, therefore


The 68th Student Senate does not condone the wearing of headdresses because it inaccurately depicts the culture of the Seminole Tribe and we request that the wearing of headdresses no longer be permitted in any arena or FSU sanctioned event.


The 68th Senate requests inappropriate use of the materials as listed above, constitute a violation of the Student Code of Conduct.