2021: Changes in DOI Leadership, a Win for Tribal Sovereignty, and More

By Mark Vezzola, CILS Escondido Office Directing Attorney

As 2021 draws to a close, it is time to look back at the last twelve months. If you work in federal Indian law or care about Indian country, there are a number of developments to reflect on. Some changed the political and legal landscape, and a few were major news stories. Many were positive for those concerned about tribal sovereignty.

The U.S. Department of Interior (DOI) has a new leader who is already tackling often overlooked issues affecting Indian country. Deb Haaland, a former congresswoman from New Mexico and an enrolled member of Laguna Pueblo, became the first Native American Secretary of the Interior (which includes the Bureau of Indian Affairs) in March and the first-ever Native American Secretary in any presidential cabinet. Since taking office, Haaland has prioritized investigating murdered and missing indigenous women and examining abuse claims in now defunct federally-funded boarding schools.

More recently but less publicized, Charles “Chuck” Sams III became the first Native American Director of the National Park Service (also part of DOI) on November 19 with unanimous Senate support. Sams is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation with connections to the Cayuse, Walla Walla, Yankton Sioux, and Cocopah people. Sams previously served in the U.S. Navy as an intelligence specialist with experience in natural resource and conservation management. President Biden’s appointments are significant, considering Native Americans now hold two high offices in a federal agency once synonymous with assimilation.

Speaking of DOI,  President Biden restored over 1 million acres to Bear’s Ears National Monument in October, just four years after President Donald Trump drastically reduced the sacred, culturally rich site by a whopping 85 percent. Trump’s 2017 proclamation, praised by local landowners and oil companies and criticized by Indian country, met with lawsuits over whether a president possesses the power to reduce the size of a national monument. Bear’s Ears, which is sacred to the Hopi Tribe, the Navajo Nation, the Ute Indian Tribe of the Uintah and Ouray Reservation, the Ute Mountain Ute Tribe, and the Pueblo of Zuni, all of whom have ancestral ties to the region, remains a lightning rod for the national debate over presidential authority.

What kind of year-in-review would this be without a few major court decisions? Last term, the U.S. Supreme Court issued a favorable ruling for Indian country in a significant case about tribal jurisdiction. The conservative majority court unanimously held in United States v. Cooley, 593 U.S. ___ (2021) that tribal governments possess the power to temporarily stop, and if necessary, search non-Indians traveling on public rights-of-way through reservations for suspected violations of federal and/or state law. The holding confirmed what many tribal attorneys already believed and reinforced the idea that tribes require such power to protect their communities.

The outlook for Indian law in 2022 is less certain. In April, the Fifth Circuit Court of Appeal issued a 325- page ruling in Brackeen v. Haaland, 994 F.3d 249, holding certain parts of the federal Indian Child Welfare Act (ICWA) unconstitutional while keeping other parts intact. While the Fifth Circuit’s decision has no direct bearing in California, the showdown between pro-ICWA tribes and anti-ICWA states and non-Indians appears destined for the U.S. Supreme Court, which could issue a ruling with long-lasting and wide-ranging impacts on tribes. The Native American Rights Fund has already mobilized tribes to sign an amicus brief framing the history and purpose of ICWA for the justices. Stay tuned for more developments.

On a positive note, 2021 brought much new talent and experience to each of CILS’s four offices, enabling us to serve more individuals, tribes, and organizations in 2022.

CILS Receives Holiday Donation from the Sycuan Band of the Kumeyaay Nation

Pictured from left to right: Sycuan’s Paralegal Lauren Ghosh, CILS Escondido Office Directing Attorney Mark Vezzola, CILS Director of Marketing and Development Nicole Scott, Sycuan’s Council members Chairman Cody Martinez, Vice Chairman Joshua Muse, Council Member Alanna Sandoval, Council Member Brianna Sandoval, Treasurer LaShunna Davidson, and Secretary Pilar Pettiford. Missing from the photo is Council Member Xusha Brown, Sr. (Evan McGinnis / Sycuan Casino Resort)

December 9, 2021: By Nicole Scott, Director of Marketing and Development

CILS’ Escondido Office Directing Attorney Mark Vezzola and Director of Marketing and Development Nicole Scott attended Sycan’s annual Holiday Gift Giving Ceremony at Sycuan’s Heritage Events Center.

Tribal Council Members and top leaders in Sycuan’s Management Team had the opportunity to present a special holiday gift to a charity of their choice. Mark Radoff, General Counsel to the Sycuan Band of the Kumeyaay Nation, selected CILS to receive his gift of $3,750.

“We are incredibly grateful to Sycuan Tribal Council for their support and generosity. CILS is embarking on many exciting changes while building upon the legacy of being the oldest non-profit Federal Indian Law Firm in California. Without this type of support, we would not have been able to make historical strides on behalf of Tribes and continue to do good work today,” said Heather Hostler, Executive Director. “The Sycuan Band of the Kumeyaay Nation demonstrates great leadership and partnership, and we want to express our appreciation for all they do.”

“CILS appreciates the continued financial support from the Sycuan Band of the Kumeyaay Nation. With the Tribe’s funding, we can reach more and provide greater services to low-income Native Americans and CA tribes,” said Dorothy Alther, Legal Director. “Thank you, Sycuan Band of the Kumeyaay Nation.”

You can help too. Your support makes justice possible. Help our mission protect and advance Indian rights, foster Indian self-determination, and facilitate tribal nation-building.

Click here to donate.

Historical Perspective: CILS’ Protection of Tribal Court Sovereignty

By Debra Avenmarg, CILS Eureka Office Staff Attorney

Over the years, CILS has played an important role in defending Tribal Court jurisdiction and sovereignty. One particular case that illustrates the importance of protecting Tribal Court orders from intrusion by state courts is the case of In re M.M. (2007) 154 Cal.App.4th 897.

In re M.M.: Background

In re M.M. involved a tribal child who was a dependent of the Humboldt County Superior Court in a child welfare case. After paternity testing revealed who the biological father was, the Karuk Tribe determined that the child was eligible for enrollment and intervened in the matter. The Karuk Tribe then filed a motion to transfer the case to Karuk Tribal Court. A contested hearing was held on the transfer request, along with various other issues. Ultimately, the Humboldt Superior Court granted the motion and transferred the case to Karuk Tribal Court. Before closing the case, the Humboldt Court set a hearing two weeks out to verify that the Karuk Tribal Court had accepted the case and that the transfer had been completed.  At this next hearing, it was verified that the file had been delivered to the Karuk Tribal Court, and the case was accepted by the Tribal Court within six days of ordering the transfer. The Humboldt Superior Court then closed its case.

Under California law, typically, parties have 60 days after the date of an order to file a “Notice of Appeal” to seek appellate court review of a court’s decision that they do not agree with. In the case of In re M.M., the attorney for the child did not agree with the transfer to Tribal Court and filed a “Notice of Appeal” 19 days after the order was made, which was within the usual time frame for appeal.

However, CILS, with the support of father’s counsel, argued that Notice of Appeal was not timely, and the appellate court had no authority to reconsider or undo the transfer of the case to the Karuk Tribal Court. CILS argued that once the transfer to Tribal Court was finalized and the child was made a dependent of the Tribal Court, the state courts, including the court of appeal, no longer had jurisdiction over the minor and no longer had authority to issue any decisions or orders over the minor. The time for any party to request appellate review of the decision to transfer the case and to request a stay of the transfer order, was before the Tribal Court accepted the case and the state court closed the case. Once the transfer was complete, only the Karuk Tribal Court could make decisions or orders regarding the child.

The Court of Appeal agreed with CILS and father’s counsel and concluded it had no power to compel the Tribal Court to return the case to the Humboldt County Superior Court and therefore could not provide the remedy requested by the minor’s counsel. The Court of Appeal agreed that the Humboldt County Superior Court lost jurisdiction over the dependency case when the case was transferred to Tribal Court. As a result, the Court of Appeal dismissed minor counsel’s appeal.

Outcomes and Lessons Learned

The case of In re M.M. cemented the independent sovereignty of Tribal Courts and that state courts have no authority to issue orders directing a Tribal Court to take affirmative actions.  In re M.M. provides legal authority that once a transfer from state court to Tribal Court is finalized, the decision to transfer is not appealable because the California Court of Appeal has no power over the Tribal Court to which the case has been transferred. Additionally, as a result of the In re M.M. case, California laws were amended so that courts must now advise the parties that an appeal of any order transferring a case to Tribal Court must be filed before the transfer to tribal jurisdiction is finalized, and failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction. The case of In re M.M. was a huge win for Tribal Court sovereignty, and it sent a strong message to all California courts to recognize and respect that sovereignty.

CILS continues to successfully advocate on behalf of Tribes to transfer ICWA matters into Tribal Courts and protect Tribal Court sovereignty. For more examples of ways CILS has protected Indian rights, please see “25 Great Reasons to Support CILS” https://www.calindian.org/25-great-reasons-to-support-cils/

Tribal Elections 101 – Consider the Following When Updating Tribal Election Laws and Regulations

By Denise Bareilles, CILS Eureka Office Directing Attorney

I have had the pleasure of working closely with several Tribes in administering tribal elections.  It is an interesting area of tribal law that constantly presents new issues for tribal self-governance. Consider the information below when updating Tribal Election laws and regulations.

Does the Tribe’s Constitutional Framework Still Meet the Needs of Tribal Elections?

Most tribal Constitutions set forth the basic framework for tribal elections. The Constitution will generally have a specific section explaining the following:

  • The governing body (committee, board, or other administrative agency) responsible for administering elections
  • Qualifications for running as a candidate and respective nomination procedures
  • Voter registration process
  • When elections will be held
  • Process for enacting or amending the tribal election law
  • Process for challenging election results

The Constitution is a living document that should continuously serve its intended purpose. Does the election provisions in the Constitution continue to reflect the needs on how to administer tribal elections effectively? If not, work on updating the Constitution to avoid disputes that challenge election procedures as unconstitutional.

Here is an example of this issue presenting itself in tribal elections. The Tribe’s Constitution stated that all members of an Election Board must be elected by the voting membership. Through time, it became common practice (and well known in the community) that the Board made emergency appointments when necessary to fill empty Board seats. These emergency appointments were necessary to avoid cancelling elections due to the lack of a Board quorum to carry out election administrative actions. This emergency appointment procedure was not expressly provided for in the Constitution, and a lawsuit was eventually filed challenging the practice in the Tribal Court.  The emergency appointment procedure was ultimately held unconstitutional.

Who is Regulating the Tribal Elections?

It is important to understand the significance of an administrative election agency independent from the Tribal Council when holding elections for Tribal Council seats. Tribal governments predate the formation of the United States government. However, some tribal governments have organized under a tribal Constitution that provides that the Tribal Council substantially regulates tribal elections. Consider updating these types of Constitutions to ensure independent elections and as the tribe’s election system becomes more sophisticated. If not, this again invites disputes regarding the conflict of interest presented by the Tribal Council regulating its seats in tribal elections.

Is Tribal Election Law and Regulations Being Reviewed and Updated?

We cannot stress enough the importance of regularly reviewing and updating tribal election laws and regulations. Is nomination paperwork being submitted and reviewed correctly? Is the registrar of voters sufficiently being updated? Are petitions for ballot measures processed correctly? Are ballots being counted accurately? Are challenges to election results thoroughly addressed?

When reviewing ballot counting procedures, carefully evaluate the procedures to confirm that no one may tamper with final election results. There must be a paper trail for every single ballot. Ballots should be stored in secure locations. There should be a live video feed to the ballot tabulation room. Require tamper-evident seals, identification badges, and the presence of two or more staff members of opposite political affiliations. Tabulation equipment should be tested and certified before and after the election to confirm the machines are tabulating correctly. Provide a method for voters to track their ballots.

Is the Tribe Encouraging its Tribal Members to be a Member of its Administrative Election Agency?

Administering tribal elections is a complicated task that requires staff with substantial experience. Tribal elections are intimidating. Tribal officials and staff must understand tribal law, policies, and regulations and succinctly communicate the information to the tribal community. Tribal elections occur in smaller communities; thereby politics can be pervasive and run deep throughout. The tribal election agency’s actions are closely scrutinized and challenged sometimes on a regular basis. This may discourage tribal members from working for the election agency due to the constant pressure to respond quickly with correct information on all issues. To support the community, it is important to regularly do outreach to the community by holding regular training on administering tribal elections.

CILS has been assisting tribal governments in tribal self-governance for the last 50 years. Reach out to the CILS office closest to you if you have any questions or comments in administering tribal elections.