Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

Although Washington state has 29 federally recognized Tribes, most public school students learn little of the history and culture of Native communities in their standard curriculum. Some middle school textbooks end their discussion of Native history around 1877. Thanks to an effort that began nearly seven years ago, this situation is now starting to change for the better.

In 2004, Rep. John McCoy, a member of the Tulalip Tribes, introduced a bill in the state legislature that would have required public school districts to teach Tribal history and culture. The bill did not pass, but the next year legislators approved a bill that encouraged districts to do so. For the past two years, Tribes, the state and 14 schools have worked together to create a curriculum module covering Tribal history, culture, and sovereignty, and to establish partnerships between Tribes and school districts. This fall, the ground-breaking curriculum will be available online for any teacher or school to use.

The goal is to increase understanding about Tribes among young people. "We really want to break down a lot of the stereotypes and misconceptions that people have about the Tribes and Tribal people," said Denny Hurtado, state director of Indian education. "People were saying things like, 'Why do these Indians have special rights?' If they really understood the history and the truth, they would understand that we've always had these rights."

When the curriculum becomes available online in the fall, McCoy hopes it will come into wide use in schools, and is working to raise money to open six training centers around the state where teachers can learn how to use it. "This is to get everyone to understand that because these treaties were signed, they are the law of the land," he said. "And consequently, Tribes are sovereign nations. There are so many people that don't understand that."
 

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The Automotive United Trades Organization (AUTO) in Washington state has filed a lawsuit seeking to end state sales tax reimbursements to Tribal gas stations.  The refunds are based on agreements Governor Christine Gregoire signed with the state’s Tribes in 2007. The agreements refund 75 percent of state taxes collected on fuel sold at Tribal stations -- approximately 28 cents per gallon. The agreements provide that the reimbursed monies are to be used by the Tribes for police and transportation services, but allow Tribes to decide how the money is spent on those services. The state Attorney General’s office has said: "By providing the Tribes with 75 percent of the tax revenues collected on the fuel sales from the tribally owned and operated stations but limiting their use to 'highway-related purposes,' the state provides funding for road and highway projects that might not otherwise be pursued ... "

AUTO Executive Director Tim Hamilton says non-Tribal stations are being undercut by the refund payments to Tribes, which amount to approximately $35 million. "It just guts us," he said. The AUTO lawsuit seeks to have the state licensing department halt any more payments to the Tribes, but does not seek monetary damages beyond a potential request for attorney's fees. "We're not going after the sovereignty of the Tribe, and we're not going after the state's right," Hamilton said, but the group is challenging the state’s ability to redistribute taxes to Tribal stations.
 

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Finding Tribal Court decisions can be challenging. There is no comprehensive source for all Tribal Courts, and many Tribes' decisions are not published at all.  This presents a significant research problem for legal practitioners and those with general interest in the decisions of Tribal Courts.

To address this information gap, the Gallagher Law Library at the University of Washington has created a Tribal Court Decisions website that provides data and links to Tribal Court decisions throughout the country.  This first-of-its-kind resource gives an overview of the published decsions that are available for review, and directions on how to access them -- an invaluable tool for everyone looking to keep current on Tribal Cort decisions.

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The Supreme Court of the United States has refused to hear a lawsuit on behalf of Native American activists who assert the Washington Redskins' football team name is so offensive that it does not deserve trademark protection. The decision lets stand a lower court ruling that under the legal doctrine of “laches”, the plaintiffs waited too long to bring the challenge. The Court issued its ruling without substantive comment.

American trademark law prohibits registration of a name that "may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute." The team has been known as the Redskins since 1933. The lawsuit was filed in 1992, when seven activists challenged a Redskins trademark issued in 1967. The plaintiffs won an early victory in the 1970s when the Trademark Trial and Appeal Board said the name could be interpreted as offensive to Native Americans.

The team appealed that ruling, and judges at the federal District and Circuit levels held the activists' trademark cancellation claim was barred by the doctrine of laches, which serves as a defense against stale legal claims. The activists argued that disparaging trademarks can be challenged at any time, citing a decision from the U.S. Court of Appeals for the 3rd Circuit. The decision was written by then-judge Samuel A. Alito Jr., who now sits on the Supreme Court.

In the wake of this legal setback, Tony Gonzales, Director of the American Indian Movement West in San Francisco, suggests that Presidential action is needed. Citing the many psychological studies and legal briefs that highlight cultural damage arising from derogatory human mascots, he asks “How much more has to come forward before the President takes action?” AIM West is planning a protest on 13 December 2009 at Oakland Coliseum to coincide with the Washington Redskins game against the Oakland Raiders.
 

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The Association of American Law Schools has selected Professor Ron Whitener as the 2009 recipient of the M. Shanara Gilbert “Emerging Clinician” award for excellence in clinical legal education. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at University of Washington School of Law, is Of Counsel to the law firm of Foster Pepper PLLC in Seattle, and serves as Chief Judge for the Confederated Tribes of the Chehalis.

The AALS award announcement states:

Through the Tribal Court Criminal Defense Clinic, Ron Whitener has made access to justice a reality for countless clients and has helped to train a new generation of advocates for American Indians. For many American Indians, the Tribal Court Criminal Defense Clinic is the only source of representation for those facing criminal charges because tribal courts are not required by law to provide legal representation. Professor Whitener saw this pressing need, started this clinic, and has helped to expand its reach through fundraising. In addition, Professor Whitener has helped to build the clinical program at University of Washington and has been a resource to other clinical programs. Professor Whitener also is an engaged scholar, authoring or co-authoring three journal articles focused on legal and health issues affecting American Indians.

 

Professor Whitener is actively involved in American Indian legal issues. He began his career as Legal Counsel to the Squaxin Island Tribe, of which he is a member, and he has done lay advocate and other legal training for nearly a dozen other tribes in addition to direct representation of clients. He frequently speaks about treaty rights, tribal jurisdiction, and other legal issues affecting American Indians. He has also promoted international clinical legal education efforts through his collaboration with the Afghan Legal Educators Program, a program of the Asian Law Center at the University of Washington. Afghan law faculty participating in that program visited tribal courts and attended meetings with faculty and students in the Tribal Court Public Defense Clinic.

 

The M. Shanara Gilbert Award will be presented at the Conference on Clinical Legal Education at a special ceremony on Friday, May 8, at 9:00 a.m., in Cleveland, Ohio. We look forward to seeing you in Cleveland and honoring Professor Whitener for his creativity in addressing a pressing legal need for an underserved community and his outstanding contributions to clinical legal education.

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The Washington Indian Gaming Association Scholarship Committee just announced that it is
taking applications for scholarships. The dead line is March 13, 2009 and applications can be found on the WIGA website.

WIGA has $30,000 for distribution for the 2009-2010 academic year and will announce scholarship recipients on April 15.

Here is list of available scholarships:

• Up to four graduate/professional level scholarships at $1,400 each;

• Up to six undergraduate level scholarships at $1,200 each;

• Up to eight community college/technical scholarships at $900 each.

This is a great opportunity for students of all levels who want to pursue more education to receive financial support from WIGA. For quesitons please call Jill A. Nanpuya at (360) 352-4819.

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On September 8, 2008, U.S. District Court Judge James Robart ruled that nine members of the Snoqualmie Tribe in Washington state were denied due process when the Tribal Council voted to banish them from the Tribe. The banished members filed suit alleging that their civil rights were violated by the banishment, and filed a Writ of Habeas Corpus charging a violation of the Indian Civil Rights Act. The dispute began when the nine members, who include five prior members of the Tribal Council, were accused of running an illegal “shadow government” as well as other violations of the Tribal Code. After months of internal conflict, the Council members were ousted, a new Council was elected, and the nine individuals were banished from the Tribe. The Tribe has argued that the dispute is a sovereign Tribal matter and does not belong in the federal courts; a further hearing is expected before the end of the year.

Banishment appears to be increasing in frequency across the country, as Tribes (many with limited or no Tribal Court systems) grapple with how to impose appropriate discipline upon members who deviate from accepted norms of behavior.  Although the rules and implications of banishment are Tribe-specific, it commonly represents a complete severing of the individual’s relationship with the Tribe, and a loss of recognition as a member thereof.  In effect, a person’s cultural, spiritual, and familial heritage is stripped away, and the bonds to the nation of their birth terminated. This method of punishment is unique within the borders of the U.S..  Under the laws of the United States, penalties for even the most serious crimes (including high treason) do not include revocation of citizenship status for natural-born citizens.  While some benefits of citizenship (e.g. the right to vote) may be revoked from convicted felons, one’s basic status as a citizen of the nation remains unaffected, and even a person sentenced to death will still “die an American”.  Indeed, under Western paradigms of justice it is almost inconceivable that a natural-born person could be told by the legal system: “You cannot call yourself French” or “You’re no longer Irish”.

As illustrated by the Snoqualmie case, there is sometimes a political component to the spectre of banishment.  When a power rivalry within a Tribe becomes too great, it can spawn the idea of “solving the problem” by simply removing a faction from the nation altogether.  Aside from the questions of fairness and cultural heritage, political banishments also seem likely to foment future unrest for the Tribe.  If people are told by Tribal leaders that they are no longer members of the nation, what other means do they have of regaining their heritage than the removal of those who issued the banishment order?  When a power struggle becomes a struggle for one’s very identity as a human being, it should be expected that the intensity and longevity of the fight will increase significantly.

Another issue that remains unclear is the extent to which banishment affects future generations of Native families. If a father is banished from the Tribe, are the “sins” that prompted the banishment also visited upon his sons?  What of the unborn progeny of the banished – are they condemned to enter the world without a Tribal identity?  Considering how mightily Tribes and their members have struggled through centuries to maintain their heritage against the onslaught of outside forces such as assimilation, boarding schools, and cultural genocide, a troubling irony is present in the contemporary utilization of banishment by Tribes themselves.

The legal, genealogical, cultural, and economic implications of banishment for the descendants of affected Native Americans are gigantic and far-reaching, and are deserving of careful analysis. A fine starting point is found in the article: Banishment as Cultural Justice in Contemporary Tribal Legal Systems by Patrice H. Kunesh of the University of South Dakota, published in the New Mexico Law Review in 2007.
 

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In a reversal of the decision of the state Court of Appeals, the Supreme Court of Washington has ruled that prohibitions entered against a Tribal member in civil court sentences can be enforced by the state on Tribal lands. In State v. Cayenne, a prohibition against the defendant’s use of gillnets for fishing in state rivers was enforced when he subsequently used a gillnet within his Tribe’s territory.

Gerald Cayenne is an enrolled member of the Chehalis Indian Tribe, which has its reservation in southwest Washington. The Chehalis Tribe enjoys an exclusive right to fish within its reservation boundaries. As a non-treaty Tribe, Chehalis members are subject to state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers alleged that Cayenne unlawfully used gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, the State charged him with two counts of felony first degree unlawful use of nets to take fish, and a jury convicted him on one count.

As part of Cayenne's eight-month sentence, the trial court prohibited him from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007).

Neither party disputed the power of the trial court to impose crime-related prohibitions on non-Tribal lands. However, Cayenne argued that the trial court lacked authority to extend the prohibition to his activities within the boundaries of the Chehalis Indian Reservation. This position was based on the opinion in State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), which held that “the non-treaty fishing rights of the Chehalis Tribe are subject only to reasonable and necessary conservation regulations and that burden is on the State to demonstrate the regulation is reasonable and necessary.” Under this standard, it was argued that the state did not meet its burden of proving a connection between Mr. Cayenne’s gillnetting and a legitimate conservation concern, and therefore the state had no legal basis for regulating Cayenne’s conduct in waters running through Chehalis lands.

The state Supreme Court rejected this approach. The Court held that :

“the crime-related prohibition on gillnets is merely a sentencing condition placed on a convicted felon (who happens to be a tribal member) for an off-reservation crime. Notwithstanding Stritmatter, the defendant was personally before the trial court and subject to its full authority, which includes crime-related prohibitions. Limiting the trial court's sentencing authority, as Cayenne requests, would create the unwanted result of permitting tribal lands to be havens for criminals avoiding justice after violating state laws. As such, we hold when sentencing a tribal member for an off-reservation crime, the trial court may impose crime-related prohibitions to the extent they serve the purpose of sentencing and the crime related-prohibitions follow the individual during the prohibition's validity.”

The Cayenne decision raises significant jurisdictional and sovereignty questions, as well as issues of basic equity. The holding extends state court authority over the conduct of Tribal members on Tribal lands, yet Tribal Courts still possess little to no legal authority to punish non-Native actors who commit crimes within Tribal territory. It also impacts federal treaty rights negotiated between the Tribes and the US government (e.g. the right of Tribes to fish their waters according to their custom), and the extent to which concurrent jurisdiction can be used as a basis for increased state control over Tribal activity.

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