“How Tribal Self Determination May Save Civilization” – A Seminar by Hon. Randolph Collins & Hon. William Bluehouse Johnson

On October 10-13, 2017, the National American Indian Court Judges Association (NAICJA) held its 48^th Annual National Tribal Judicial and Court Personnel Conference at the Isleta Resort and Casino. The theme of the conference was “Tribal Justice: Building and Strengthening Relationships and Partnerships.” NAICJA organized the conference for its members and networks of multiple Tribal court systems in order to strengthen and promote tribal sovereignty through education, information sharing, and advocacy.

One of many seminars at the conference was held by the Honorable Randolph Collins and the Honorable William Bluehouse Johnson, from the Acoma Pueblo Tribal Court, in a session named “How Tribal Self Determination May Save Civilization.” The session highlighted the issue of “State Recognition of tribal court orders.” Many tribes have issues with state courts not giving full faith and credit to Tribal Court orders like they do to other States. One solution Hon. Johnson highlighted was for states to amendment or enact statutes that would recognize and promote tribal justice resolutions for issues on the reservations. Statutes that recognize tribal court orders and foster reciprocity between the tribes and states would encourage better relations. Hon. Johnson highlighted North Dakota Rules of Court, Rule 7.2—Recognition of Tribal Court Orders and Judgments—as a model example:

“The judicial orders and judgments of tribal courts within the state of North Dakota, unless objected to, are recognized and have the same effect and are subject to the same procedures, defenses, and proceedings as judgments of any court of record in this state.”

Hon. Randolph Collins concluded the session by making an impressive philosophical connection between State-Tribal relations and Federal policies and laws. He noted that the states are laboratories of democracy and their relationships with Tribal Governments and Tribal traditions help shape federal policies and laws.

By Lyman Paul

Lyman Paul is a 2L students at UNM School of Law. He is from the Navajo Nation (Diné). He is of the Sleeping Rock People Clan (Tsenabił nii) and born for the Bitter Water Clan (Tódich’ii’nii). He is from Pine Hill, New Mexico on the Ramah Navajo Chapter, near Ramah, NM. He has a Bachelor of Science in Engineering in Civil Engineering from the Northern Arizona University in Flagstaff, Arizona.

From left to right: Lyman Paul (TLJ Staff), Hon. Collins, Hon. Johnson, and Roshanna Toya (TLJ Staff).

From left to right: Lyman Paul (TLJ Staff), Roshanna Toya (TLJ Staff), Cheryl Fairbanks, Hon. Gregory H. Bigler, and Brett Lee Shelton.

 

Reparations for Forced Adoptions in Canada

The Canadian Government announced Friday, October 6, 2017, that it would pay 750 million Canadian dollars in reparations for its forced adoption program of native children.[1]  Part of the reparations is a settlement of an Ontario class action lawsuit that was decided in February after eight years of litigation.[2]  The forced adoption program ran in Ontario from 1965-84 and affected about 16,000 children.[3]  Foreshadowing its holding, the Supreme Court of Ontario’s Justice Edward P. Belobaba recited the case’s facts merely as: “The Sixties Scoop[4] happened and great harm was done.”[5]  The court then ruled in favor of plaintiff’s summary judgment motion and concluded:

[W]hen Canada entered into the [adoption agreement] and over the years of the class period, Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity.  Canada breached this common law duty of care.[6]

In addition to reparations for the adoptees, the settlement will include a substantial sum to establish a foundation “to educate adoptees about their native languages and cultures.”[7]  Chief Marcia Brown Martel of the Beaverhouse First Nation, the named plaintiff in the class action, optimistically commented, “I have great hope that because we’ve reached this plateau, this will never, ever happen in Canada again.”[8]

By: Garrett Adcock

Garrett Adcock is a 3L at the University of New Mexico School of Law.

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[1]This agreement disposes of an Ontario class action and some other lawsuits.  Although the extent of the settlement is not immediately clear, the Canadian government is still in negotiations with other plaintiffs in different cases.  Ian Austen, Canada to Pay Millions in Indigenous Lawsuit Over Forced Adoptions, N.Y. Times (Oct. 6, 2017), https://nyti.ms/2yNnnT9.

[2]Brown v. Canada (Attorney General), 2017 ONSC 251, para. 1 (Can.), http://canlii.ca/t/gxgqw.

[3] Id. para 14.

[4]The “Sixties Scoop” is the colloquial name given to the adoption program because many of the adoptions, or scoopings, occurred in the sixties.  Austen, supra note 1.

[5]Brown v. Canada (Attorney General), 2017 ONSC 251, para. 4 (Can.).

[6]Id. para. 85.

[7]Austen, supra note 2.

[8]Austen, supra note 2.

Remembering Those Who Took Note – Celebrating “Pueblo Designs: The Rain Bird”

On October 1, 2017, the Museum of Indian Art and Culture in Santa Fe, hosted a presentation of the Tom Lea and H.P. Mera’s book, Pueblo Designs: The Rain Bird (Rain Bird). The presentation was part of the Tom Lea Institute’s annual recognition of Lea’s work.  The presentation was led by Kathy Flynn, founder of the New Deal Preservation Association, and Dody Fugate, retired Assistant Curator of the Museum of Indian Art and Culture.

Rain Bird, was a product of collaboration between Mera, the then Curator of Archaeology at the Laboratory of Anthropology in Santa Fe, and Lea, an artist working with the New Deal’s Works Progress Administration (WPA) program.  Rain Bird depicts 176 illustrations of the Rain Bird motifs found on pottery from the Zuni, Acoma, and Tesuque Pueblos.  While the book itself follows the evolution of the Rain Bird design over space and time, it is also indicative of the rising interest in and the preservation of native art forms by the Anglo culture.

In the 1930s, artists flocked into New Mexico under the New Deal’s WPA art and art preservation programs.  This made Santa Fe aThis precipitated a movement to preserve the art form, including Rain Bird motifs.  In Rain Bird, Lea illustrated the motifs found on the Pueblo pottery and Mera provided the commentary describing the significance of each motif.  Today, a significant number of the pottery pieces immortalized in Rain Bird, survive and can be seen in various museums around Santa Fe.  Ironically, no one knows where the original Lea illustrations are today.

By Kaythee Hlaing

Kaythee Hlaing was born in Rangoon, Burma and came to the United States in 2002.  She attend  Bard College in Annandale-on-Hudson, NY and received her Bachelor’s in Political Studies in 2006.  Prior to attending law school, she worked as an Associate at a mutual fund in Santa Fe, NM, while also obtaining a Masters degree in Liberal Arts from St. John’s College.​  Kaythee’s interests include: dogs, books, learning new languages, and stewardship of natural resources.

Sounds that Heal the Soul

On Wednesday, September 21^st, two women, Delores Mondragón and Nicole Raphael, came to the University of New Mexico School of Law on their way to Taos, New Mexico for their annual Veteran Women’s Indigenous Healing Circle. The group travels around the world to hold a national healing circle for veteran women. Last year they were in Hawaii. Next year they will be in Seattle, WA, and the following year they will be in Kamakura, Japan. Delores Mondragón and Nicole Raphael along with five other women from the University of New Mexico School of Law sang five songs/prayers.

Traditionally, women do not sit around the big drum. However, men have been suffering due to continued trauma (e.g. mass incarceration, alcoholism, etc.), and so women have begun to drum to continue carrying cultural tradition, holding that space until our communities heal. The group uses a women’s drum, talking circles, Equine therapy, and a sweat lodge to heal from Post-traumatic Stress Disorder (PTSD) and Military Sexual Trauma (MST). Fifteen women from different tribes, from the Hummingbird Lodge Ventura, CA sit around this big drum. The goal of the group is to pray to heal Mother Earth, our communities, and to empower women. Delores Mondragón emphasized that drumming is not about sounding the best or drumming the loudest, but about drumming with good intentions in order for healing to occur.

By Brittany Edwards

Brittany Edwards is a third-year law student at UNM School of Law. Brittany hopes to pursue a career in criminal defense.

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Violence Against Women Act (VAWA) and Wind River

The Wind River film touched on many issues that Native people face. A wildlife officer, the protagonist, found the body of an 18-year-old Native woman; an autopsy later revealed that she was raped.  The film highlighted violence that Native women face and the challenges in bringing justice for Native women who experience violence. A study under the Department of Justice’s National Institute of Justice found that more than 4 out of 5 American Indian women have experienced violence (84.3%).[1]  About 56.1% have experienced sexual violence. According to the same study, 97% of American Indian women have experienced violence by at least one interracial perpetrator in their lifetime. In the Wind River film, a non-Native man, the antagonist, raped a Native woman. The film also alluded to other possible Native victims.

It has been a challenge to prosecute non-Native persons who commit crimes against Native women because of jurisdictional issues. In a 1978 case, Oliphant v. Squamish Indian Tribe, the United States Supreme Court ruled that tribes lack criminal jurisdiction over non-Indian offenders.[2] In 2013, Congress reauthorized Violence Against Women Act (VAWA). Through the VAWA act, Congress amended the Indian Civil Rights Act of 1968 to include tribal jurisdiction over crimes of domestic violence.[3] Since the passing of VAWA in 2013, only eight tribes have enforced its special jurisdiction over non-Indian defendants.[4]  Unfortunately, the tribe on the Wind River Reservation is not one of the VAWA tribes. Even if the tribe was exercising jurisdiction under VAWA, its authority is dependent on whether the crime occurred on the reservation and whether the defendant had “sufficient ties, such as living, working or having an intimate relationship on the reservation.” It is most likely the antagonist in the film would have not been prosecuted under tribal courts since his crime does not meet the necessary requirements under VAWA; the Native woman and offender have no relationship and it is unclear if the crime occurred on tribal lands. The jurisdiction of VAWA is limited but a necessary step towards justice for Native women who experience violence

By Ernestine Chaco, Staff

Ernestine is Diné (Navajo) from Tsé’íí’ahi (Standing Rock), N.M. She attended University of California-Davis School of Medicine and plans to be an emergency medicine physician. During her 4th year of medical school, she took a leave of absence to pursue her passion of understanding the intersection between Federal Indian Law and health issues at UNM School of Law. She is currently a second-year law student.  Ernestine holds a Bachelor’s Degree in Chemistry from Swarthmore College and a Master’s Degree in Medical Sciences from Indiana University-Purdue University Indianapolis.

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[1] See, Andre B. Rosay, Violence Against American Indian and Alaska Native Women and Men, 277 National Institute of Justice Journal 38 (last modified October 19, 2016), https://nij.gov/journals/277/Pages/violence-against-american-indians-alaska-natives.aspx.

[2] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

[3] See Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, §§ 904, 908, 127 Stat. 54, 120-23, 125-26 (Mar. 7, 2013) (authorizing “tribal jurisdiction over crimes of domestic violence”).

[4] The tribes exercising jurisdiction under VAWA are: Pascua Yaqui Tribe(AZ), Tulalip Tribes of Washington, Confederated Tribes of Umatilla Reservation (OR), Sisseton Wahpeton Oyate (SD/ND), Assiniboine & Sioux Tribes of the Ft. Peck Reservation (MT), Little Traverse Bay Band of Odawa Indians (MI), Seminole Tribe of Oklahoma, Eastern Band of Cherokee Indians (NC). Tribal Implementation of VAWA: Resource Center for Implementing Tribal Provisions of the Violence Against Women Act (VAWA), National Congress of American Indians, http://www.ncai.org/tribal-vawa/getting-started#underthelaw.

 

 

Symposium Issue on the Indian Civil Rights Act (1968-2018) – Call for Papers