E-Mail Newsletter
June 2021 Volume 6 Number 26
Supreme Court Ruling Confirms Tribal Inherent Authority and Makes Tribal Communities Safer
June 4, 2021: By Dorothy Alther, CILS Executive Director

On June 1, 2021, the Supreme Court, in a unanimous decision, issued its ruling in U.S. v. Cooley finding that tribes have inherent authority to stop non-Indians on a right-of-way within the boundaries of an Indian reservation who are suspected of committing a state or federal crime. Once stopped, Tribal police officers, acting with probable cause, have the authority to conduct a limited investigation and if evidence of a crime is discovered, the Tribal officer can detain the non-Indian until he or she can be transferred or transported to the custody of state or federal law enforcement. To those less familiar with Indian Country this ruling might seem to be so obvious that it was unnecessary for the Supreme Court to have announce it in unanimous ruling. However, while tribal authority over non-Indians on Tribal land has long been settled, that authority over non-Indians on non-Tribal lands, such as right-of-way, has been less clearly defined until now. 

The Cooley case involved a Crow Tribal police officer who encountered a non-Indian stopped on a state highway within the Crow reservation early one morning. After questioning the driver, the Tribal officer became suspicious of the driver’s story and explanation of where he been and why he was parked on the highway. After detaining the driver and a child who was in the vehicle, the Tribal officer conducted a search of the vehicle and discovered firearms, drugs, and drug paraphernalia. The driver and child were turned over to a local sheriff deputy and Bureau of Indian Affairs police officer, as was the evidence seized during the Tribal officer’s search. A federal court dismissed the drug and firearm charges against the driver finding the Tribal officer lacked authority to conduct the search, therefore the evidence obtained during the search was inadmissible. The case was appealed to the Ninth Circuit Court of Appeals, which upheld the suppression of the evidence ruling that Tribal authority over a non-Indian on non-Tribal lands, such as right-of-way, was limited to the Tribal officer first determining whether the driver is Indian. If the driver is non-Indian, a Tribal officer cannot search the driver’s person or vehicle unless there is “apparent or obvious” evidence that a state or federal crime has been committed. If no such evidence is present, the Tribal officer must release the driver. 

“Knowledge is Power”: CILS’ Focus on Tribal Community Education
Indian Child Welfare Act
Sacramento Office Highlight
Brackeen News Flash
On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

Historical Perspective: CILS’ Protection of Tribal Fishing Rights 
May 28, 2021: By Jay Petersen, Sacramento office Senior Staff Attorney

Over the years, CILS has played an important role in protecting Tribal fishing rights against large-scale irrigation, hydroelectric power, and surface water storage needs.

In the 1980’s, California and the United States mounted numerous prosecutions against Tribal members fishing in the Klamath River under the pretext of protecting dwindling fish populations. State and federal courts appointed CILS attorneys from the Oakland, Ukiah, and Eureka offices to defend Tribal members in felony prosecutions based on restrictions against some fishing methods and off-Reservation fish sales. CILS’ successful defense work in these prosecutions helped end the unwarranted and unlawful prosecution of Tribal members harvesting their fish on their Reservation. One CILS case stands out. (People v. McCovey)

People v. McCovey: Backstory

The Klamath River felony prosecutions took place against the backdrop of a series of United States Supreme Court decisions from the 1970’s to the early 1980’s that vindicated Tribal fishing rights against the rights of competing fishing interests and significantly limited the scope of state restrictions against Tribal fishing. It is believed these cases, arising in Washington State, encountered more strenuous resistance to their enforcement than any series of United States Supreme Court decisions other than the 1960’s racial desegregation decisions.

Native American Ancestry: Family Lore, Oral Swabs, and Enrollment Cards
April 16, 2021: By Mark Vezzola, Escondido office Directing Attorney

Have you ever heard someone claim their great-grandmother was a Cherokee princess? Or that their ancestors include the Lakota holy man Sitting Bull? Until recently, most of what people knew about their family history came from older relatives, maybe even old photos and letters. Today, anyone with internet access and a credit card can get a DNA test, submit an oral swab, and presto – almost instantly, they get the location of their family’s origins, percentages by region or group, and with some services, even the names of extended relatives and known genetic abnormalities that run in the family.

Native American ancestry seems to get special attention from people who take the 23andMe and Ancestry.com tests. While they do not distinguish between North and South America or reference particular tribes (which are political bodies and not family groups sharing genetic markers), people sometimes are surprised to learn they have Native American roots. Beyond making for interesting cocktail party conversation (remember when we had parties during pre-COVID times?), this information can fill in gaps in family trees that were often overlooked or deliberately concealed out of fear of stigma and/or discrimination.

You Can Help to Defend Cultural Tradition
Escondido office Directing Attorney Mark Vezzola presented on the Supreme Court case, McGirt v. Oklahoma, to the San Diego Law Library via Zoom on April 13 with MCLE credit. He will also be speaking about Murdered and Missing Indigenous Women and Tribal Court Jurisdiction in June. 

Sacramento office Directing Attorney Jedd Parr gave an ICWA training on April 28 to representatives from Butte, Yuba, and Tehama Counties, and several local tribes. About 40 people were present on Zoom. A similar training is scheduled for Tulare County and local tribes in June. 

On May 11, Escondido office Directing Attorney Mark Vezzola presented on CILS services to the American Indian Community Council in Los Angeles. 

Sacramento office Directing Attorney Jedd Parr presented a one-hour training to the Judicial Council on ICWA’s active efforts requirement on June 15.
Tribally Approved Home
After a very long and unusual delay caused by waiting on background checks from CA DOJ, CILS’ Bishop office successfully changed a specific placement of two young tribal members from the non-native relatives of the father to the Tribe’s preference for placement, maternal relative tribal members. This transfer was accomplished by the Tribe designating the home as a tribally approved home. Also, they established for the County and all parties in the dependency case that, per tribal custom, great grandparents are “extended family members” under ICWA, which meant that we did not have to change ICWA placement preferences for this specific placement.

$30 Million for Tribes in PL280 States
CILS discovered that BIA was preparing to allocate $30 million to tribes under their existing 638 contract for “public safety and justice” (law enforcement, courts, detention, etc.). CILS contacted the Director of BIA Office of Justice Services of this and immediately alerted tribes that the BIA does no fund “public safety and justice” to tribes in PL 280 states through a Tribal Alert personal communications. CILS prepared a draft comment letter for tribes to submit to the BIA concerning this historical lack of funding. There are no existing 638 contracts for tribes in PL 280 states to access the “public safety and justice” appropriation. CILS also alerted our contacts in Alaska of the issue, and they were able to submit strong objections to the BIA proposal. The BIA has now allocated an additional $30 million for tribes in PL 280 states, and it will be allocated to the tribes through their TAP “Human Services” line item.
Tribal Court Self-Help
Several Northern Tribal Courts have asked CILS to act as self-help attorneys for their Court. CILS has responded to some of the requests to understand better the assistance needed but is excited about the opportunity to work with the Tribal Courts in the service area.

Tribal Customary Adoption
The Eureka office is currently finalizing a Tribal Customary Adoption (TCA) Order for a local Tribe. The Tribe is very active in using TCA, and staff has done several for them now and each time are refining the process for the social services agency and the Tribal Court. The staff has updated their templates for Petition for TCA, P&A, and Declaration in Support, along with the proposed TCA Order. The Tribes was advised to interact with the local agency to make sure they designate the Tribe as the entity to do the home study. Also, to follow up with the local adoption unit because there is often confusion when 2 or 4 parent names are requested to be on the birth certificate and whether the child’s legal name will change. Staff attorneys also work with the Tribal Court Clerk, who requires assistance processing a TCA because there is no TCA ordinance.

Residential Lease Approval by BIA
The Sacramento staff was successful in getting the BIA to reissue a residential lease submitted to the BIA but never formally approved and eventually lost somewhere within their Realty Department. Several co-owners who had supported the lease had died in the interim, and our client had built a house on the property. The BIA agreed to reissue the lease with approvals on behalf of the deceased co-owners once we provided them with proof that the lease had been properly submitted and a copy of the lease itself.

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