GAO Report on Ongoing Systemic Challenges with Interior’s Bureau of Indian Education

April 26, 2015 Comments Off on GAO Report on Ongoing Systemic Challenges with Interior’s Bureau of Indian Education

The Washington Post recently published an article on a report from the U.S. Government Accountability Office that found mismanagement, staffing problems, and inconsistent financial accounting in the Bureau of Indian Education (“BIE”). The BIE was created about thirteen years ago (it had formerly operated under Interior’s Bureau of Indian Affairs). The agency has responsibility for operating, funding, and overseeing schools on or near tribal lands and has struggled since its formation to develop and implement an effective and efficient agency capable of fulfilling that mission. As a result, the approximately 185 schools that are operated or funded by BIE suffer from problems such as recently installed roofs that leak and drinking fountains with undrinkable water.

Although the challenge of overseeing Indian schools is formidable because of the rural and remote locations of many BIE schools, the problems with BIE and the consequences for the education of Indian children have continued despite White House initiatives to improve Indian education. As far back at the Clinton administration, U.S. presidents have sought to improve the educational opportunities and outcomes for American Indian children. Under Executive Order 13592 signed December 2011, President Obama established the White House Initiative on American Indian and Alaska Native Educational Opportunities. See also here and here. Among other things, the Initiative calls for the U.S. Department of Education and BIE to work together to develop policies on Indian education and the implementation of government programs to improve Indian education.

In its 2014 Native Youth Report (published December 2014), the Initiative stated that:

[O]ver the last six years, the Administration has created new programs (in ED and BIE) to support building tribal sovereignty over education. BIE and ED entered a Memorandum of Agreement to improve two-way communications between the two agencies and address common issues affecting [American Indian / Alaska Native] students. In addition, ED increased the emphasis in its Title VII formula grants, on the need for school districts to provide culturally-relevant education for Indian students.

In pursuit of this policy, BIE has developed a “Blueprint for Reform” (see also here) and is currently engaged in tribal consultations, but it remains to be seen whether BIE can develop and implement a consistent, workable plan for fulfilling its mission. The “Consultation Booklet” for the current round of tribal consultations is available here.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC in Flagstaff, Arizona. Jim provides legal services in a variety of areas, including Indian and tribal law, education law, employment matters, and municipal law.

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NCAIED Helps Navajo Nation Businesses with Government Contracting Process

February 16, 2015 Comments Off on NCAIED Helps Navajo Nation Businesses with Government Contracting Process

Many Navajo- and Indian-owned ventures face challenges finding business opportunities and surviving the bidding process for government contracts. Fortunately, the National Center for American Indian Enterprise Development offers workshops that can help Indian-owned businesses win tribal and other government contracts, either as a contractor or a sub-contractor. A recent article suggests just how beneficial NCAIED’s workshops have been for Navajo business and can be for any Indian-owned venture. For more information, see NCAIED’s Procurement Technical Assistance Center, which helps Indian-owned business with the government-contracting process.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC in Flagstaff, Arizona. Jim provides legal services in a variety of areas, including Indian and tribal law, education law, employment matters, and municipal law.

Attorney James D. Griffith Now With a New Law Firm

March 30, 2014 Comments Off on Attorney James D. Griffith Now With a New Law Firm

Effective March 31, 2014, attorney James D. Griffith accepted a position as an Associate Attorney with Mangum, Wall, Stoops & Warden, P.L.L.C. located in Flagstaff, Arizona.

Mr. Griffith may be reached at Mangum, Wall, Stoops & Warden, P.L.L.C., Post Office Box 10, 100 North Eldon Street, Flagstaff, Arizona 86001, Tel.: (928) 779-6951 or (800) 514-6064. Website: www.mangumwall.com.

PROTECTING THE FINANCIAL SECURITY OF OLDER AMERICANS: Free Guides from the Consumer Financial Protection Bureau

March 2, 2014 Comments Off on PROTECTING THE FINANCIAL SECURITY OF OLDER AMERICANS: Free Guides from the Consumer Financial Protection Bureau

Older Americans face financial risks and challenges that differ from those faced by younger Americans. In particular, older Americans may find it necessary, at some point, to turn over management of their financial affairs to a relative or trusted caregiver. Doing so often means the use of a power of attorney, a revocable living trust, or a court-appointed guardian or conservator. But many older Americans and their relatives and caregivers misunderstand the duties and responsibilities (and potential liability) of a person who manages the finances of another under these legal tools.

Fortunately, the Consumer Financial Protection Bureau recently published three guides designed to help older Americans and those who are asked to manage their finances. These guides address the fiduciary responsibilities of: (1) agents under a power of attorney; (2) trustees under a revocable trust; and (3) court-appointed guardians and conservators. The guides are available at no cost and downloadable at the following links:

We hope you find these resources helpful. If you need more information about your legal rights and responsibilities, or for more information on our legal services, please call (480) 275-8738 or use the “Contact Us” page on our website.

THE VALUE OF A WILL (PREPARED BY AN ATTORNEY)

November 15, 2013 Comments Off on THE VALUE OF A WILL (PREPARED BY AN ATTORNEY)

When making a will, some people overlook the value that an attorney can add to the will-making process and turn to document preparers, forms, or software programs. Attorneys add value to the process because they are trained in the law of wills and can draft a will that uses the law to achieve the testator’s intent. Every individual and married couple has different life circumstances and brings different priorities and concerns to the will-making process, such as issues involving minor children, prior marriages, and adult stepchildren. An attorney has the knowledge and skill to consider each individual’s and couple’s unique situation and to draft a will or wills designed to minimize potential problems.

In a recent presentation, I discussed several advantages to having a will prepared by an attorney, including:

  • Moderating the burden on loved ones at a time of loss
  • Control over the distribution of assets (who gets what)
  • Decisions related to blended families and second marriages
  • The downside of intestacy (not having a will)
  • The limitations of document preparers and form kits

The slides from my presentation on The Value of a Will Prepared by an Attorney provide an overview. For more information on making a will and the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

PROPOSED RULE UNDER NAGPRA ON DISPOSITION OF HUMAN REMAINS AND CULTURAL ARTIFACTS: Comment Period Open until December 30, 2013

October 29, 2013 Comments Off on PROPOSED RULE UNDER NAGPRA ON DISPOSITION OF HUMAN REMAINS AND CULTURAL ARTIFACTS: Comment Period Open until December 30, 2013

The U.S. Department of the Interior has published its final proposed rule on the disposition of “unclaimed cultural items” found on Federal lands after November 16, 1990. The term “unclaimed cultural items” is defined to include “human remains, funerary objects, sacred objects, or objects of cultural patrimony” excavated or removed after November 16, 1990. The comment period for this proposed rule is open until December 30, 2013.

The proposed rule (which amends 43 C.F.R. Part 10) requires public notice of a U.S. agency’s intent to reinter or otherwise dispose of unclaimed cultural items. Public notice must be given even if the agency intends to transfer the unclaimed cultural items to an Indian tribe or Native Hawaiian organization. The public notice must be published in general circulation newspaper in the area where the unclaimed cultural items were found and the area(s) where any potential claimants may now reside.

Under the Native American Graves Protection and Repatriation Act of 1990, or NAGPRA, the Secretary of the Interior is required to prepare and implement rules for the disposition of unclaimed cultural items found on Federal land. For purposes of NAGPRA, the term “Federal lands” does not include tribal land. The proposed rule was developed after a long period of consultation with Indian tribes, Native Hawaiian organizations, museums, and scientific organizations, which included public meetings in Albuquerque, New Mexico and Phoenix, Arizona.

To learn more and to review the proposed rule, see the notice of the proposed rule or the October 29, 2012 issue of the Federal Register. Comments on the rule can be submitted online here or by mail to Sherry Hutt, Manager, National NAGPRA Program, National Park Service, 1201 Eye Street N.W., 8th Floor, Washington, DC 20005.

We hope that this information helpful, but it should not be taken as legal advice or as establishing an attorney-client relationship. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

UNDERSTANDING THE TRIBAL COURT EXHAUSTION DOCTRINE

October 7, 2013 Comments Off on UNDERSTANDING THE TRIBAL COURT EXHAUSTION DOCTRINE

In a recent appellate case, the Fifth Circuit Court of Appeals followed well-established precedent when it affirmed a federal district court decision that recognized the Choctaw tribal court’s jurisdiction over a tribal member’s suit against a non-member of the tribe.[1] The non-member (a non-Indian corporation) had filed suit in federal district court seeking to enjoin or stop the Choctaw tribal court from exercising jurisdiction over the tribal member’s tort case. But the district court concluded that the tribal court could hear the case because the non-member had entered into business dealings with a tribal member on tribal land.

Tribal Sovereignty and Tribal Court Jurisdiction

So, why must the tribal court be given the opportunity to exercise jurisdiction over the tort case against the non-member? The answer begins with tribal sovereignty. Long ago, in the famous Marshall trilogy of cases, the U.S. Supreme Court recognized the indigenous Indian nations as sovereign body politics with inherent powers to govern themselves although that power is subject to federal power.[2] In other words, the recognized Indian tribes are sovereign nations, but Congress has the authority to limit or even eliminate that sovereignty. This principle of tribal sovereignty is fundamental to American Indian law. Although the concept has evolved and been eroded somewhat over time, tribal sovereignty is strongly defended by Indian tribes.

Based on the recognition of tribal sovereignty, two contrasting legal rules on tribal court jurisdiction have been established by the Supreme Court. The first rule states when tribal courts have exclusive jurisdiction (no federal or state court has jurisdiction). The second rule states when tribal courts have no jurisdiction. (Please note, however, that this discussion is limited to jurisdiction in civil case; tribal jurisdiction in criminal cases has been limited by Congress).

Contrasting Rules on Tribal Court Jurisdiction

In civil cases, the courts follow a general rule holding that tribal courts have exclusive jurisdiction if the claim (1) is asserted against an Indian, and (2) arose from an event or transaction that occurred in Indian country.[3] Thus, if two tribal members are involved in an auto collision while driving on tribal land, and one member sues the other, the tribal court will have jurisdiction because the defendant is an Indian and the collision occurred on tribal land.

In contrast to the general rule, the Supreme Court has also held that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on non-Indian-owned, fee-title land within a reservation.[4] Thus, if a tribal member and a non-Indian are involved in an auto collision while driving on privately owned land within the boundary of a reservation, the tribal court would not have jurisdiction. This second rule, known as the Montana rule, has two important exceptions that would result in tribal court jurisdiction (discussed in more detail below).

These two rules are fairly clear, but cases that fall in between these two rules are less clear, and that’s where the parties have room to argue. As a result, the federal courts were regularly asked to assert jurisdiction when the defendant was a non-Indian and the event occurred in Indian country.

Deference to Tribal Courts If Jurisdiction is in Question

The tribal court exhaustion doctrine was developed as a response to this jurisdictional gray area. The Supreme Court established this doctrine in 1985 when it held that federal courts cannot exercise jurisdiction—must allow a tribal court to rule on its own jurisdiction in the case—if (2) the defendant is a non-Indian, and (2) the claim arose on tribal land.[5] Nonetheless, the doctrine also states that non-Indian defendants may file suit in federal court after all proceedings in tribal court have been exhausted.[6]

Under this doctrine, tribal sovereignty is protected because the doctrine allows the tribal court to make its own determination regarding its jurisdiction in the case. But the rights of non-Indian defendants are also protected because the defendant can file a case in federal court after the tribal court hears the case. Thus, the tribal court exhaustion doctrine is a matter of deference to the tribal court.

The Montana Rule Exceptions and the Tribal Court Exhaustion Doctrine

The Montana rule has two important exceptions that provide tribal courts with an opportunity to exercise jurisdiction. As stated above, the Montana rule provides that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on land located within a reservation, but privately owned in fee title.[7]

The exceptions to the Montana rule provide that a tribal court will have jurisdiction if (1) the non-Indian entered contractual or other relationships with the tribe or tribal members; or (2) the claim asserted effects the political, economic, or welfare interests of the tribe.[8] Again, these exceptions protect tribal sovereignty, and the policy of tribal self-determination, by respecting the authority of the tribal court to determine its own jurisdiction.

Other Exceptions to the Tribal Court Exhaustion Doctrine

Two other exceptions to the tribal court exhaustion doctrine exist. Unlike the Montana exceptions, however, these exceptions give jurisdiction to the federal courts, rather than to tribal courts.

The first of these exceptions is federal preemption. When Congress enacts a law that regulates a field on a national basis, such as the Clean Water Act, the law preempts (or “trumps”) any state or local law that is inconsistent with the federal law. This preemption also applies to the tribes, and the federal courts can take jurisdiction without deferring to a tribal court.[9]

Finally, the exhaustion doctrine will not apply if the tribal court does not allow the non-Indian defendant an opportunity to challenge the tribal court’s jurisdiction.[10] Thus, a tribal court cannot simply declare its jurisdiction without considering the issue.

Conclusion

To some, the tribal court exhaustion doctrine may mean litigating in an unfamiliar court, but the doctrine is designed to respect and protect well-established principles of tribal sovereignty and is supported by the federal policy of tribal self-determination. From a legal perspective, the exhaustion doctrine and its deference to tribal courts has become a necessary aspect of managing the jurisdictional relationship between the courts of three sovereigns—tribal, federal, and state.

We hope that this discussion has been informative and helpful, but it should not be taken as legal advice or establishing an attorney-client relationship. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

Endnotes

[1] Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, No. 12-60668, 2013 U.S. App. LEXIS 20307 (5th Cir. Oct. 3, 2013).

[2] Johnson v. McIntosh, 21 U.S. 543, 573 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 16-17 (1831); Worcester v. Georgia, 31 U.S. 515, 559 (1832).

[3] Williams v. Lee, 358 U.S. 217 (1959). The term “Indian country” refers to Indian reservations, pueblos, dependent Indian communities, Indian allotments, and certain other areas that may be off-reservation but are close to and often largely populated by Indians. 18 U.S.C. § 1151.

[4] Montana v. United States, 450 U.S. 544 (1981). In these cases, the land involved is not held in trust by the federal government for the Indian tribe, but instead is owned privately and is subject to state law.

[5] Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-6 (1985).

[6] Id. 471 at 856-7; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (holding that a tribal court finding of tribal jurisdiction can be challenged in federal court and that the federal court will review the jurisdictional issue de novo).

[7] Montana, 450 U.S. at 564-66.

[8] Id.

[9] Nat’l Farmers Union, 471 U.S. at n.21.

[10] Id.; see also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-488 (1999).