Navajo Nation Fights for Its Name

The Navajo Nation recently sued apparel retailers Urban Outfitters, Free People and Anthropologie (both subsidiaries of Urban Outfitters) for alleged trademark violations and violation of the federal Indian Arts and Crafts Act for selling goods under the "Navajo" name.

Aside from selling some questionable and potentially offensive items like the infamous "Navajo Flask" and the Navajo Hipster Panty, Urban Outfitters is specifically accused of selling various items that violate ten of the Navajo Nation's trademarks.

The trademarks guarantee that the Navajo Nation has the exclusive right to sell goods under the "Navajo" name for things such as clothing and footwear. You can view the Nation's lawsuit complaint HERE.

In addition to trademark violations, Urban Outfitters is accused of violating the Indian Arts and Crafts Act which makes it "...unlawful to offer or display for sale or sell any good, with or without a Government trademark, 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 local Seattle outdoor retailer Filson takes a different path from Urban Outfitters that both avoids litigation and supports native tribes at the same time. Filson partners with the Salish tribe in British Columbia to produce hand knit clothing that utilizes authentic native designs and craftsmanship.

Fake Snow On Sacred Peaks: "It's Like Bombing A Church"

San Francisco Peaks, Arizona (Al Hikes)

The legal battle over whether fake snow can be sprayed by a ski resort in Arizona’s 12,000-foot-high San Francisco Peaks has a new venue: the Flagstaff City Council. Tribal elders, U.S. senators, federal judges and senior Obama Administration officials all have weighed in on the controversy of artificially applying frozen water to land where the Hopi, Navajo and 11 other tribes trace their origins. Many Native Americans believe it is sacrilege for skiers and snowboarders to use the area for recreation, and more so for the ski resort owners to tamper with the natural surroundings. The Arizona Snowbowl resort says it's just trying to run a business.

The Snowbowl ski area is located on 777 acres in the Coconino National Forest. Tribes have been battling the resort since the 1970s. For the second time in 20 years, the U.S. Supreme Court last year refused to hear their case, and now the matter will be reviewed by the Flagstaff City Council. Local officials are to vote on whether to pump potable recycled water to the resort to make snow. It's unclear whether this will be acceptable to the Tribes, who were infuriated by a previous plan to use treated sewer water.

"This mountain is where life began; it created us," says Rex Tilousi, a leader of the Havasupai tribe. Native Americans journey to the peaks to collect herbs for traditional healing and worship deities they believe dwell there. Dumping artificial snow there, says Mr. Tilousi, is "like bombing a church."

For the operators of Snowbowl, artificial snow is necessary to ensre a steady ski season, which is the basis for hundreds of local jobs. "If you don't have snowmaking, the question is not if you will go out of business; it's when you will go out of business," says Eric Borowsky, the resort's owner. "We only occupy 1% of the peaks. Can't we share this?"

After years of environmental review detailed in a 600-page report, the U.S. Department of Agriculture's Forest Service, which oversees the federal land that the resort sits on, approved the artificial snow plan in 2005.  If the new plan to use potable water goes through, the federal government may contribute funds to off set the cost increase compared to the use of treated sewage. Arizona Senators John McCain and Jon Kyl sent a letter in March condemning "the use of taxpayer dollars to subsidize snowmaking at Arizona Snowbowl." At the same time, they called on the government to grant Snowbowl permission to start its expansion "immediately."

New Treatise Explores Navajo Common Law And Court System

The Navajo Nation court system is the largest and most established Tribal legal system in the United States. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed Tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

In the new book published by the University of MinesotaNavajo Courts and Navajo Common Law, Justice Raymond D. Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

Justice Austin, always a trailblazer, is one of the main architects of Navajo common law. Now he has given us a comprehensive explanation of his nation’s common law in all its power, fairness, and beauty. This book should be read by people the world over who believe in searching out the authenticity of law and society in its truest and most profound meanings.”  Charles Wilkinson, author of Blood Struggle: The Rise of Modern Indian Nations.

Justice Austin is the Indigenous Peoples Law and Policy Program’s Distinguished Jurist in Residence at the James E. Rogers College of Law at the University of Arizona. A member of the Arizona and Utah state bars and the Navajo Nation Bar Association, he served on the Navajo Nation Supreme Court from 1985 to 2001. Justice Austin is Diné from the Navajo Nation.
 

Tribal Economic Development Featured On National Public Radio


This week the National Public Radio program “All Things Considered” airs a two-episode series on Tribal economic development in the Southwest. The programs highlight the diverse issues, challenges, and opportunities for Tribes in different locations and which possess different levels of resources. The program focuses on two particular Native economic development models: The Navajo Nation and The Salt River Pima – Maricopa Indian Community.

Interviews include:

Joe Shirley, Navajo Nation President

Martin Harvier, Vice President of the Salt River Pima – Maricopa Indian Community

Quannah Dallas, Salt River Pima’s Economic Development Manager

Brett Isaac, Shonto Community Development Corporation

Joseph Kalt, Director of Harvard University’s American Indian Economic Development Project

Greg Guedel, Chair of Foster Pepper PLLC’s Native American Legal Services Group


Part I of the program, focusing on the Navajo Nation, can be downloaded HERE.

Part II of the program, focusing on the Salt River Pima – Maricopa Indian Community, can be downloaded HERE.

Navajo Tribal Codes Now Online

Navajo Nation Code Annotated now available on Web

Photo courtesy Joshua Lavar Butler

As reported in Indian Country Today, the laws of the Navajo Nation are now accessible worldwide through the Internet on Westlaw.  This accessibility was made possible through the coordinated efforts of the Navajo Nation’s Office of Legislative Counsel and West Publishing, which publishes all 26 titles of the Navajo Nation Code Annotated in a four volume book format, a CD ROM, and through online subscription to www.westlaw.com. The Navajo Nation Code Annotated incorporates all enacted legislation as well as excerpts of all Navajo Nation Supreme Court opinions which may have an impact on the interpretation of provisions of the codes.

A significant challenge for Tribal Law practitioners is the relative lack of electronically-available Tribal Codes and Tribal Court decisions.  The Navajo effort serves as a model for providing universal accessibility to Tribal legal authority, and will hopefully lead to increased availability of the Codes and Tribal Court opinions in other jurisdictions. 

Navajo Public Defenders Undertake Intensive Skills Training

Attorneys from Navajo Public Defender, Foster Pepper, and UW Native American Law Center

Attorneys of the Navajo Nation’s Office of the Public Defender are participating in advanced litigation skills training seminars this week in Window Rock, Arizona, sharpening their skills in criminal case investigation and pre-trial evidentiary practice.

The training program is conducted jointly by the University of Washington’s Native American Law Center and Foster Pepper PLLC’s Native American Legal Services Group, and provides in-depth instruction and practical exercises in strategic case planning, conducting discovery, motions practice, and the role of Navajo Fundamental Law in the contemporary judicial system. The program culminates at the Supreme Court of the Navajo Nation, where the Public Defenders will observe and analyze oral arguments before the Nation’s highest court on issues pertaining to defense of those accused of Navajo Criminal Code violations.
 

From Native Lands To Corporate Pockets -- Navajo Coal Royalty Claim Rejected

Coal Mine In Navajo Territory (Youth Climate Movement)

Stating that “This case is at an end”, Supreme Court Justice Antonin Scalia closed the books on the multi-decade effort by the Navajo Nation to obtain a greater share of mineral royalties from the coal that is mined from their lands by non-Native corporations. The Nation’s claim was for back-royalties in excess of $600 million. The result: No acknowledgement of government wrongdoing, no renegotiation of the mineral lease terms, no more money for the Nation.

The Court’s holding in United States v. Navajo Nation dismissed the Nation’s assertion of a breach of fiduciary duty by the Secretary of the Interior, arising from his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964.  The lease allowed the corporation currently known as the Peabody Coal Company to engage in coal mining on a tract of the Navajo reservation in exchange for royalty payments to the Tribe. After the initial 20-year lease elapsed in 1984, the Nation requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds.  However, the actual new royalty rate was set significantly lower, under circumstances the Nation found highly suspicious. In particular, the Nation alleged that the Secretary, following improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Nation to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Tribal members’ best interests.

Although it did little to dispute the facts alleged in the Complaint, the Supreme Court rejected the Nation’s argument and claim. Scalia’s opinion holds that “The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. “ The Court ruled that the Nation was required to identify an explicit statutory provision that created a particular trust obligation, rather than relying on the long-standing principles on which the trust relations between the federal government and Native communities has been based.  “Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common law trust principles matter.”

This case and its ultimate decision highlights the continuing tension between Tribes and the Department of Interior regarding the management – both environmental and financial – of natural resources in Native lands. Although certainly a disappointment for the Navajo Nation and other Tribes seeking to realize fair value for their mineral wealth, the Court’s opinion actually provides a roadmap for correcting the apparent inadequacy of federal fiduciary responsibilities to Tribes. Native communities and their representatives should initiate federal legislation that clarifies and explicitly enumerates the obligations of the federal government in handling Tribal resources, and provides meaningful and efficient remedies for a breach of trust that damages or materially undervalues Native resources.

Can Spirituality (And The Law) Save The Environment?

(photo: Genesis Realty)

The San Francisco Peaks in Northern Arizona are considered sacred lands by more than a dozen Tribes in the region. Stunningly picturesque, the Peaks are also home to the Arizona Snowbowl – a popular ski resort that attracts thousands of people to its slopes each year. Tourism in sacred Tribal lands is often a source of socio-political tension, but when the proprietors of the Snowbowl sought a special permit from the US Forest Service to begin spraying the Peaks with artificial snow made from treated sewage water, the Navajo Nation and other local Tribes were moved to action.

Instead of utilizing typical principles of environmental law, the Tribes took a different approach. They petitioned for an injunction against the Snowbowl under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, a federal law enacted in 1993 to prevent government actions that would substantially burden a person's free exercise of religion. The RFRA prohibits the federal government from placing a “substantial burden” on a person’s exercise of religion unless the government’s action furthers a “compelling government interest” or “is the least restrictive means of furthering that compelling government interest.” It also reinforces the “strict scrutiny” test for any governmental action that would tend to impinge on religious freedom – this is the most stringent and demanding standard for governmental actions, requiring that any the action be closely tied to a compelling government interest in order to be legal.

The Tribes argued that spraying “snow” made of treated sewage effluent on the sacred Peaks was both an unreasonable interference with their religious practices and not sufficiently related to a compelling government interest. Since the Snowbowl is located on land controlled by the US Forest Service, the issuance of a permit for the artificial snow is a governmental action subject to scrutiny under the RFRA. The Tribes succeeded in convincing a 9th Circuit panel that the spraying was a violation of the RFRA, but the decision was reversed by the full 9th Circuit Court of Appeals. The Tribes then petitioned the US Supreme Court and are currently awaiting review.

As global climate change increasingly calls into question modern pollution-producing lifestyles, it is interesting to ponder ancient Native philosophies regarding the environment. In Pre-Columbian times, Native American Tribes created communities that lived in remarkable harmony with nature. The Anasazi cliff dwellings in Canyon de Chelly provide a striking example of people building and operating a society based on knowledge of and respect for their natural surroundings. Those familiar with Native American culture know that this approach was based on something far deeper than mere geographic expediency; Native people viewed the earth as sacred, and embraced its preservation as a spiritual imperative.

Using legal tools like the RFRA, contemporary Native communities can work to heighten awareness and protection of lands that have ritual and religious significance – and at the same time make positive contributions to the environment for the benefit of all people.

Navajo Nation Adds Bald Eagle To Endangered Species List

A year after the US government removed the Bald Eagle from the federal Endangered Species list, the Navajo Nation has guaranteed protections for the bird by adding it to the Nation’s own endangered species list. The federal government dropped the bald eagle from the Endangered Species List last year, though the national symbol remains protected under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The Nation’s regulations also apply to golden eagles, which the Nation lists as threatened. The Navajo Department of Fish and Wildlife will take steps to implement protections for the birds and enhancement of their natural environment within the Nation’s 26,000 square miles of territory.

Information on the policies and programs may be accessed at the Navajo Department of Fish and Wildlife