If your tribe has been approved for conducting Criminal Background Checks under SB 1460 and are providing Live Scans on reservation or you are in the process of obtaining 1460 approval and intend to conduct Live Scans, you must complete the attached application. Tribes were inadvertently provided the incorrect application (PSP) by the Department of Justice and are being requested to complete the new application.
Rebekah Israel said she had waited years for the moment when she would receive her high school diploma while wearing an eagle feather, a power symbol that represents a rite of passage for her and other Native Americans.
But then the moment was stolen from her, she said, as a woman from her school tried to snatch the feather from her mortarboard and scolded her for wearing it.
“I felt really embarrassed, so I just cried right away,” she said about her graduation ceremony in June 2016. “I just grabbed the diploma really fast and rushed off the stage.”
It’s still difficult for the 19-year-old Santee resident to talk about the incident that happened a year ago at the Organ Pavilion in Balboa Park, where she was graduating with other students from the Charter School of San Diego.
“We went over there, and Rebekah was just torn apart,” said her mother, Kiana Maillet. “She told me that this woman looked at her feather and said, ‘You’re not allowed to wear that,’ and she reached for it. Nobody’s allowed to touch our feather. We’re supposed to protect them. She just broke down on stage in front of everyone.”
Similar incidents happen to Native Americans each year in California, but a bill with broad support by legislators could change that for the class of 2018. Israel lent her support by speaking about her experience before an Assembly subcommittee earlier this year.
“I told them I don’t want other students to feel upset when they’re walking and wearing their graduation cap,” she said.
Israel was testifying in support of Assembly Bill 233, which already has passed the Assembly and just last week passed the Senate Education Committee. The bill, sponsored by Assemblyman Todd Gloria, D-San Diego, is headed for the Senate Judiciary Committee next.
As Gloria explained, the bill would allow students in California public schools to wear adornments that represent their cultural or religion during graduation ceremonies.
In Israel’s case, the adornment was an eagle feather, a symbol of strength and freedom to Native Americans. If the bill becomes law, all schools would have to allow religious-cultural symbols.
Jackie Robertson, communications specialist for the Charter School of San Diego, said the school does have rules against adornments at graduation, but would support the bill.
“The Charter School of San Diego always wants to be supportive and cooperative, and if AB233 passes, we will support it 100 percent,” she said. “Currently, our policy is to not allow any sort of adornment on graduation attire because every year we have many diverse requests. Some of them are credible and some of them are not so credible. It would be helpful to the students and schools if the bill’s language were specific to help create fair and equitable guidelines.”
Adornments on mortarboards are very common at college and university graduations, but many high schools have strict rules about prohibiting any items that would disrupt the uniform look of rows of graduates in matching caps and gowns.
Every year, those rules clash with the sentiments of Native Americans students like Israel.
“When I was little, I grew up watching all my cousins and family friends get eagle feathers when they graduated from high school,” she said. “So I’d been waiting for it since I was 10 years old.”
Mark Vezzola, an attorney at the California Indian Legal Services’ Escondido office, said he hears similar complaints during graduation season each year.
“Our position is that by denying a student the right to wear an eagle feather or another culturally significant item, they are being denied essentially their freedom of speech or freedom of expression,” Vezzola said.
“Those are powerful symbols in the Native American community, and I just don’t think people understand that,” he added. “They’re more than decorations.”
Sometimes the issues are resolved with discussions, and sometimes there has been legal action by the Native Americans Rights Fund in Boulder, Colo., he said.
“Finally, we thought, ‘Why not take a different approach?’” Vezzola said. “Maybe there’s a way to protect these rights through California law.”
Gloria said he was contacted by California Indian Legal Services to work on a bill, and he suspects he may have been asked because he is the only state legislator who also is a voting member of a tribe.
Although he describes himself as “a mutt,” Gloria also is a member of the Tlingit Haida Indian Tribes of Alaska.
“There’s a level of common sense involved here,” Gloria said about allowing students to wear feathers, beads or other items on their caps at graduation. “Why is that disruptive, and who would have an issue with it?”
Gloria said the bill still would allow schools to have a say in what students wear during their ceremonies, but there would be exceptions for cultural and religious items.
“These students are not asking for political statements or other sorts of things, but to just show pride in their culture,” he said. “In a lot of ways, this is speech guaranteed under the Constitution. The bill is meant to get away from this madness.”
CILS is offering free technical assistance to tribes interested in or conducting criminal background checks on prospective families who want to become a tribally licensed home for tribal member children being placed outside their home by County Protective Services (CPS). CILS can provide information and guidance on:
Completing the California Department of Justice (DOJ) forms to access Criminal Offender Record Information;
Conducting Child Abuse Central Index checks;
Accessing list of “non-exemptible” crimes that require denying an application for placement;
When and how a tribe may exempt crimes that are not “non-exemptible”;
Provide a sample resolution to submit with the tribe’s DOJ applications;
Sample Memorandum of Understanding (MOU), the tribe, may consider in working with its local CPS;
Policies the tribe should consider in operating its criminal background check program.
Please submit your questions to TribalCriminalBackgroundcheck@calindian.org.
This service is being provided through funding from the California Department of Social Services.
Domestic Violence Legal Clinic
CILS is offering a free walk-in legal clinic from 10:30 am – 2:30 pm this Wednesday, May 10th at the InterTribal Court on the Rincon Indian Reservation. This clinic is staffed by a Legal Advocate and Attorney who will assist victims/survivors of domestic violence, sexual assault, stalking and sex trafficking. Services can include helping with safety planning and crisis intervention; assistance with filling out Restraining Orders; Restraining Order Hearing preparation; and other legal consultations relating to victimization.
The walk-in clinic will operate on a first come, first served basis. There are no income guidelines for assistance. The Legal Advocate and Attorney are very experienced in these areas of law and they will provide trauma victims with informed, confidential, and culturally appropriate services.
On April 25, the United States Supreme Court unanimously ruled tribal sovereign immunity does not protect William Clarke, a limousine driver employed by the Mohegan Tribal Gaming Authority, and remanded the case for further proceedings. While transporting patron from the Mohegan gaming facility, on a Connecticut interstate, Clarke was involved in a car accident with plaintiffs Brian and Michelle Lewis. The Lewis’ sued Clarke in his individual capacity for damages stemming from negligence. Clarke argued sovereign immunity barred the lawsuit because he is a tribal employee who was acting within the scope of his employment and even though the suit is against him individually, the Mohegan Tribe will ultimately pay a judgment against him through indemnification.
Sovereign immunity protects federally recognized tribes and tribal entities. The same can be said of their tribal leaders, officers, and employees when sued in their official capacities. In “official capacity” suits the real party in interest is considered the sovereign, who has immunity, and more importantly, any payment of damages in such suits will be from the sovereign’s treasury. Only the tribe itself or Congress can waive sovereign immunity. Such waivers must be express and unequivocal and cannot be implied. The Mohegan Tribe that employed Clarke enjoys sovereign immunity and adopted into its Tribal Code an indemnification provision that “shall save and hold harmless and indemnify its Officer or Employee from financial loss and expense rising out of any claim, demand, or suit by reason of his or her alleged negligence…if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Tribe does not indemnify employees who engage in “wanton, reckless or malicious activity.” Mohegan Tribal Code 4-52.
The United States Supreme Court made a two-part holding. First, Clarke, the employee, was the real party in interest; therefore the lawsuit did not implicate the Tribe’s sovereign immunity. The Mohegan Tribe’s immunity from suit does not protect Clarke because plaintiffs sued him in his individual capacity; therefore the damages sought “will not require action by the sovereign [the Mohegan Tribe] or disturb the sovereign’s property” (quoting from Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949)). Second, an indemnification provision in the context of employment does not, as a matter of law, extend sovereign immunity to individual employees who otherwise do not fall within its protection. In the Court’s words, an “indemnification provision does not…convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individual capacity, he is held responsible only for his individual wrongdoing.”
The decision in Lewis v. Clarke is significant in at least two respects. The fact it was unanimous suggests a lack of debate or difference of opinion among the eight justices who participated in the proceedings (recently confirmed Justice Gorsuch did not nor did he take part in the decision), therefore individuals hoping for a different outcome probably won’t see a radical change on this issue any time soon. Moreover, Lewis v. Clarke could also lead to an increase in litigation against tribal leaders, officials, and employees for tortious conduct. Tribes should be proactive in taking steps to protect themselves and their employees from an inevitable legal action in the future.
See Brian Lewis et al. v. William Clarke, case number 15-1500, in the Supreme Court of the United States. The full opinion is here: https://www.supremecourt.gov/opinions/16pdf/15-1500_h3cj.pdf