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Events History Informational News Student Reflections

The Impact of Covid-19 on Native American Students’ Access to Technology

By William Dunn

Native American communities across the country have experienced numerous hardships over the course of the pandemic, ranging from limited access to medical care and other basic needs to extreme isolation for the most vulnerable members. The impact on student education will be felt for years in the future no matter where students sheltered in place, and it will be especially recognizable in rural areas where geographic and social isolation have always created barriers for students. Lack of access to technology limits one’s ability to complete assignments and limits access to other resources such as classroom instruction and tutoring services. Amid the shelter-in-place orders, students have faced many barriers like this that are crucially tied to academic performance. Recognizing the historical and social factors that have exacerbated the impact that Covid-19 has had on Native American students is essential to understanding why there have been such disproportionate effects compared to the rest of the country.

            With New Mexico already facing some of the lowest rates of broadband access in the country, Native American families encountered particular struggles to adapt to stay-at-home guidelines. Lack of access to broadband and Wi-Fi services was a primary concern. In 2018, the

Federal Communications Commission estimated that roughly 35% of individuals living on tribal lands in the United States lacked access to broadband services compared to only 8% of Americans in the rest of the country.[1]  Reasons for this may include costs of Wi-Fi services, limitations on digging within historical areas on reservations, and the physical structure of adobe homes in rural communities.[2] According to the New Mexico Public Education Department, “as of April 10, 2020, approximately 23,398 Native American students were in need of broadband capabilities and devices.”[3] Many students thus had to find other ways of submitting assignments and attending classes.

            To stay on top of assignments, students have reported writing and submitting papers on their cellphones or doing assignments by hand and submitting photos.[4] There are also reports of parents driving their children to libraries, restaurants, and other, sometimes very remote, locations to have access to high-speed Internet.[5] Most students were initially able to engage in distanced learning through cell phone video services, however, limited data and call minutes removed that as a permanent solution.[6] Some students are reported to have taught themselves lesson material where they had no other resources to learn.[7] The severity of the situation is elevated by the limitations on access to basic needs such as clean water, food, and adequate medical attention.[8] Native communities were impacted at much higher rates than other demographics in the country and it is important to understand some of the systemic factors that caused the pandemic to exacerbate problems in Indian Country to such a great extent.

            The disproportionate impact that Covid-19 had on Native communities, compared to that of other demographics, laid bare the “historically embedded structural vulnerabilities” that have impacted student access to technology in Indian Country. Tribal land status and infrastructure limitations are two major factors that lie at the heart of the issue. According to a 2020 study by the University of British Columbia, “[t]ribal land status is also related to the lack of Internet access as Tribes have unique geopolitical and geophysical terrain influenced by colonization, cultural practices, sovereignty and Tribal governance.”[9] Access to Internet services is highly dependent on Tribal sovereignty and is limited by “external obstacles such as federal policies, statutory and regulatory requirements, and historically overlooked and underfunded Internet infrastructure.”[10] The study explored five “historically-identified vulnerability” variables, which have contributed to the disproportionate impact of Covid-19 among Native Americans. The five variables include “percent of housing units without telephone, percent of housing units without Internet, percent of housing units without complete plumbing, Tribal land status, and presence of abandoned uranium mines.”[11] The barriers to student education throughout the pandemic must be understood by recognizing the impact of historical racism that has created the structural vulnerabilities that Native American students have had to contend with in socially distanced learning.

             Native American students living in rural parts of the country have had to endure some of the greatest challenges to receive an education compared to students in the rest of the country. Broadband access and infrastructure continue to create barriers to student access to technology and education as well as other vital health services in tribal land. As a result, students have been forced to adapt in all sorts of ways to stay on top of schoolwork and attend remote classes. If there is any hope of creating the systemic change necessary to make educational resources more available for Native American students, it is essential to understand the factors that have created these barriers to access including the destructive impacts of federal policy and Western cultural practices.


[1] Gabriel R. Sanchez et al., Internet Access and the Impact on Tribal Communities in New Mexico, UNM Nᴀᴛɪᴠᴇ Aᴍ. Bᴜᴅɢᴇᴛ & Pᴏʟ’ʏ Iɴsᴛ. 3 https://www.iad.state.nm.us/wp-content/uploads/2020/06/nabpi-iad-broadband-report-final.pdf (last visited April 13, 2022).

[2] Id. at 4.

[3] N.M. Pᴜʙʟɪᴄ Eᴅᴜᴄ. Dᴇᴘᴛ., Iɴᴛᴇʀɴᴇᴛ Cᴏɴɴᴇᴄᴛɪᴠɪᴛʏ Cᴏɴᴄᴇʀɴs ᴏɴ Tʀɪʙᴀʟ Lᴀɴᴅs: Gᴜɪᴅᴀɴᴄᴇ Dᴏᴄᴜᴍᴇɴᴛ (2020).

[4] Anja Rudiger, Pathways to Education Sovereignty: Taking a Stand for Native Children, Tʀɪʙᴀʟ Eᴅᴜᴄ. Aʟʟ. 27 (Dec. 2020), https://nabpi.unm.edu/assets/documents/tea-full-report_12-14-20.pdf.

[5] Sanchez, supra note 1, at 4.

[6] Candi Running Bear et al., Challenges for Rural Native American Students With Disabilities During COVID-19, 40 Rᴜʀᴀʟ Sᴘᴇᴄɪᴀʟ Eᴅᴜᴄ. Q. 60, 64 (2021).

[7] Rudiger, supra note 4.

[8] Running Bear, supra note 6, at 61.

[9] Aggie J. Yellow Horse et al., COVID-19 in New Mexico Tribal Lands: Understanding the Role of Social Vulnerabilities and Historical Racisms, Fʀᴏɴᴛɪᴇʀs ɪɴ Sᴏᴄɪᴏʟᴏɢʏ 3 (2020).

[10] Id.

[11] Id. at 5.

Categories
Commentary Events Indigenous Law

Jurisdiction Over American Indian Child Custody Cases

By Barbara Ryan

The United States Supreme Court will hear arguments about whether the Indian Child Welfare Act (ICWA) is constitutional later this year.[1] The Court may decide to keep the law, modify it or strike it altogether.  Before ICWA, child welfare agencies were ignorant or insensitive to cultural differences in child-rearing.[2] Over 75 percent of Indian families living on reservations lost at least one child to either private or public agencies.[3] In 1978, Congress enacted ICWA in recognition that children were vital to the continued existence of Indian tribes.[4] The purpose of ICWA was to  

“…protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture…”[5]

ICWA established minimal standards for the removal of American Indian children and provided guidelines for the placement of those children in either foster or adoptive homes that reflected their values and culture.[6] Later this year, the Supreme Court will decide if those protections are still needed. 

Before decisions about placement or permanency are made, there must be a determination about which court has jurisdiction over child custody proceedings. A “child custody proceeding” is an adjudicatory hearing where the court determines the necessity and placement of children, including foster placement, termination of parental rights, and adoptive placements.[7] The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) uses four factors to determine jurisdiction.[8] The factors are based on the child’s affiliation to the State.[9] First, a home state is where the child has lived for at least the last six months before any custody action.[10] The second is a significant connection with substantial evidence of a connection to that state.[11] Third, an emergency resulting from an urgent circumstance such as abandonment or abuse that requires an immediate protective response.[12] Fourth is via vacuum when no other jurisdiction basis exists.[13]  These factors are used for children across the country but do not apply to American Indian children.

UCCJEA does not apply to custody cases involving American Indian children; instead, they are governed by ICWA.[14]  Tribal-State jurisdictional disputes may occur only when States have enacted the optional Section 104 of the UCCJEA.[15]  In such cases, States must treat tribes, Tribal courts, and Tribal court custody orders with full faith and credit as they would with other states.[16]  Tribes have exclusive jurisdiction over an Indian child who lives on the reservation and is enrolled or is eligible for enrollment, except where such jurisdiction is vested in State or Federal law.[17]

Many years of advocacy and litigation have shaped Tribal jurisdiction.  In United States v. Mazurie, the  Supreme Court held that state jurisdiction is based on where the parties live, but tribal jurisdiction is determined by the relationship the member has with the tribe irrespective of where any of the parties live.[18]   In Miles v. Chinle Fam. Ct., the State Court held the Navajo Nation had jurisdiction over their enrolled members regardless of where either the parent or child lives.[19]  The determining factor in jurisdiction is the enrollment status.[20] In Father J v. Mother A, the Court concluded that children have “rights and privileges” as enrolled members including to access the tribal courts. [21] Additionally, the Court concluded that UCCJEA did not effect in any way the Indian Child Welfare Act, thus did not apply. [22]  Further, the Court stated that in “child custody proceeding involving an Indian child is not subject to the UCCJEA.”[23]Lastly, the Court emphasized that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to a Nation unless the Tribe had adopted it.[24]

The Miles Court also addressed two critical aspects as delineated in UCCJEA. First, the Court emphasized that Tribal Nations are entitled to comity and should also be afforded res judicata like other states.[25]  Second, the State Court stayed action until tribal remedies had been exhausted.[26] Tribal exhaustion means that the Tribe must be given a chance to resolve the issues.[27]  The exhaustion requirement also provides the Tribe an opportunity to determine the scope of the issues, develop a complete record, and explain tribal jurisdiction.[28]   The United States Supreme Court concluded in National Farmers Union Insurance Cos. v. Crow Tribe that defendants with cases pending in Tribal Court must exhaust all available remedies at the tribal level before proceeding with an action in federal court. [29] Exhaustion could include challenges to jurisdiction or of the action in Tribal court.[30]

Along with exhaustion, many courts have considered and attempted to preempt conflicting judgements. The Father J v. Mother A Court emphasized the importance of avoiding conflicting judgments in cases with similar substance and procedure.[31] In Garcia v. Gutierrez, the Court wrestled over the concern of concurrent jurisdiction resulting in contradictory decisions.[32]  After considering the Infringement Test, the Court relied on the principle that Indian Nations are a “separate people” possessing “the power of regulating their internal and social relations…”[33] Only the federal government, not the states, can make such determinations because Congress has plenary power over Tribal Nations.[34]  For example, in Halwood v. Cowboy Auto Sales, Inc., the State Court acknowledged the Navajo Nation’s tribal sovereignty and “full faith and credit” of the Nation.[35]  Further, in Jim v. CIT Fin. Servs. Corp., the State was forced to use tribal law due to the full faith and credit of the Navajo Nation.[36] Many courts now recognize the power of Tribes over their own members and thus, give Tribal courts an opportunity to resolve custodial cases before they consider or accept jurisdiction.

Tribal Nations have jurisdiction above other courts over enrolled tribal members and children either enrolled or eligible for enrollment regardless of where they live.  A child custody case may be filed in federal court due to diversity jurisdiction; however, federal courts have historically either stayed or declined to adjudicate such claims in order to afford Tribal courts the first opportunity to determine their jurisdiction.[37]  The federal government has recognized that American Indian children are critical to the existence and integrity of their Nations and thus, enacted ICWA.  Although all states must comply with ICWA now, that may change with a decision on Brackeen.[38]  Although the federal government has recognized that Tribal Nations have the right “to make their own laws and be ruled by them,”[39] changes to ICWA causing erosion to tribal sovereignty could have a devastating effect on the survival of Tribal Nations.


[1] See Generally, Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).

[2] State of Montana, ICWA History and Purpose, https://dphhs.mt.gov/cfsd/icwa/icwahistory (last visited Mar. 6, 2022).

[3] Id.

[4] Indian Child Welfare Act, 25 U.S.C. § 1902 (1978).

[5] Id.

[6] Id.

[7]  25 U.S.C. §1903(1) (1978).

[8] U.S. Dep’t of Justice, The Uniform Child Custody Jurisdiction and Enforcement Act, Juvenile Justice Bulletin, 5 (Dec. 2001), https://www.ojp.gov/pdffiles1/ojjdp/189181.pdf.

[9] Id. at 2.

[10] Id.

[11] Id.

[12] Id. 

[13] Id. 

[14] Id. at 5.

[15] Id. (Native nations are sovereign and each tribe has its own child custody jurisdiction law.)

[16] U.S. CONST. art. IV, § 1 (full faith and credit requirement is derived from Article IV, Section I of the Constitution, that state courts respect the judgments of courts from other states.)

[17] 25 U.S.C. § 1911 (1978).

[18] United States v. Mazurie, 419 U.S. 544, 557 (1975).

[19] See generally Miles v. Chinle Family Court, No. SC-CV-04-08, 2008 WL 5437146.

[20] Id. at 613.

[21] Father J v. Mother A, No. MPTC-CV-FR-2014-207, 2015 WL 5936866, *2 (Mash. Pequot Tribal Ct. Aug. 21, 2015).   

[22] Id. at *5.

[23] Id.

[24] Id.; See also, 28 U.S.C. § 1738A (2000), (This law was enacted in 1980 to resolve jurisdictional conflicts, promote cooperation between states and abductions during interstate child custody disputes.) 

[25] Miles, SC-CV-04-08 at 7.

[26] Id. at 6.

[27] National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 857, 857 (1985).

[28] Id.

[29] Id. at 856.

[30] Id. at 857.

[31] Father J, 2015 WL 5936866 at *304.

[32] See generally Garcia v. Gutierrez, 147 N.M. 105, 217 P.3d 591 (2009).

[33] United States v. Kagama, 118 U.S. 375, 381–382 (1886). 

[34] Garcia, 147 N.M. at 107.

[35] Halwood v. Cowboy Auto Sales, Inc., 124 N.M. 77, 78, 946 P.2d 1088 (1997).

[36] See Generally Jim v. CIT Fin. Servs. Corp., 87 N.M. 362, 533 P.2d 751 (1975).

[37] National Farmers Union Insurance Cos., 471 U.S. at 857.

[38] See Generally Brackeen, 994 F.3d 249.

[39] Williams v. Lee, 358 U.S. 217, 219–220 (1959).

Categories
Events Student Reflections

American Indian Day at the New Mexico State Legislature

“Honoring and Protecting Mother Earth for Future Generations”

March 3, 2020-Albuquerque, New Mexico

Honoring the past and learning how to improve the future is central to indigenous philosophy. New Mexico State Representative Derrick Lente discussed the importance of oral history and honoring stories from time immemorial. Lente shared his own story. He reminisced about his childhood and how his grandparents’ instilled values that he maintains in his daily life. His grandparents taught him to respect his ancestors, respect his elders, and to understand the importance of living in harmony with the land. Lente attributed his unique experience to finding his voice. He realized that he wanted to work to represent his community’s values and philosophy and that is what led him to run for office. He closed his remarks by reminding the audience to think about what will be left to the next generations and how it is our responsibility to work to protect them. 

Governor Michelle Lujan Grisham speaking at the round house when she declared American Indian Day.

The celebration at the roundhouse brought students from across the state to learn about the importance of civic engagement. State senators and representatives emphasized the importance of recognizing young leaders and included them at the center of the discussion. Legislators introduced youth leaders on the house and senate floors while sharing brief biographies that included their meaningful contributions toward their respective communities. Students actively listened to all the presenters and remained engaged as they observed traditional dancers and prayers. Witnessing youth from all walks of life was a highlight of the celebration because they are a symbol of hope. As echoed by the various speakers, in order to create a better future for our youth, we must collaborate with them because they will be our future leaders.

Dancers.

American Indian Day is particularly significant to the Tribal Law Journal because it aligns with the journal’s philosophy and values. The Tribal Law Journal was founded in 1998 for the purpose of promoting indigenous self-determination and with the goal of creating a platform to discuss internal law of indigenous nations. Many students that serve on the Tribal Law Journal editorial board and staff are members of indigenous tribes. One of those students is Ahtza Chavez. Ahtza is a member of the Diné Nation and Kewa Pueblo (formally Santo Domingo Pueblo). Ahtza graciously invited us to join her in attending the Legislative Community Luncheon, which was hosted by the Santa Fe Indian School and the New Mexico Indian Affairs Department. The luncheon was held in the Everett F. Chavez Pueblo Pavilion located at the Santa Fe Indian School Campus. The late Everett F. Chavez was a three-time Governor of the Kewa Pueblo and was a former superintendent of the Santa Fe Indian School. Governor Chavez is also Ahtza’s father. 

Everette Chavez Pueblo Pavillon at the Santa Fe Indian School.

Ahtza entered the pavilion named after her father beaming with pride. From the moment she walked in, she was greeted by leaders of her tribe and members of the legislature. She then directed us to meet community members who would be serving the meal. They all welcomed us and served us delicious mounds of food that reminded me of home. The food at the luncheon consisted of traditional staples like posole, red chile and pork, potato salad, and beans. Ahtza quickly explained that the best way to eat the red chile and pork was to put potato salad in it. We joked and laughed about our own unique spin on these staples as we savored our first bites. The program consisted of inspirational speeches that highlighted the Santo Domingo Early Childhood Learning Center. The program also honored the late senators John Pinto and Carlos Cisneros for all their contributions to the state. As we honored the senators in the pavilion dedicated to the late Governor Chavez, I reflected on how the theme was woven into each part of our day. A wise man once told me that in order to achieve success, one must strive to positively impact seven generations. The legacy each of these leaders is destined to meet this definition of success because their work continues to inspire future generations. As we left the pavilion, I felted inspired to witness my friend Ahtza transition as a leader of her people. 

American Indian Day at the state legislature honors the many contributions of Native American leaders across the state. It honors the rich history, culture and philosophy of living in harmony with the environment. The day was a reminder that we are all connected and how we are stronger if we work in unison toward the success of our community. Success means protecting our land, oral history, languages, and providing opportunities for generations to come. The legacy of our ancestors, leaders, and community is a gift of knowledge to carry on in our daily lives. 

Brief Biography of blog contributor Jessica Martinez Jessica is a second-year law student at UNM School of Law. She is a member of the Chihene Nde Nation of New Mexico. The Chi’Nde are descendants of Apache people throughout Southern and Central New Mexico. The tribe is not federally recognized but is dedicated to the preservation of their language, culture, traditions, including protecting historic and sacred sites. 

   

Categories
Events

President Fawn Sharp’s State of Indian Nations Address

By: Max Spivak

On February 10, 2020, in Washington, D.C., Fawn Sharp (Quinault), the 23rd President of the National Congress of American Indians (NCAI), delivered the State of Indian Nations Address. President Sharp, who is also the current President of the Quinault Indian Nation in Taholah, Washington, is the third woman to be NCAI President and the first to deliver the Address. After a brief welcoming note on behalf of the 574 federally-recognized[1] and dozens of state-recognized tribal nations, President Sharp outlined her duties as the leader of NCAI: (1) “to share Indian Country’s story of perseverance and resurgence with the world”; (2) “to convey with absolute clarity Indian Country’s expectations of the United States government”; and (3) “to cast a light on the immense power and proven wisdom of tribal nations governing their own lands and affairs, solving difficult challenges, and forging brighter futures on their own terms.”

President Sharp named several Quinault matriarchs who led the way and strengthened her journey: Beatrice Black, a well-known basket weaver; Elizabeth Cole, who was, among other leadership roles, the former Director of the Quinault Housing Authority; Hazel Tekie Rosander, a respected elder; Tiny Capoeman; and Ramona Bennett, a former Puyallup Nation Chairwoman and elder.[2]

President Sharp also referenced her strength as drawn from the Creator; from the advice of fellow tribal leaders; from “spiritual nourishment and life lessons of the Canoe Journeys”; from “the inspiration, passion, and ingenuity of brilliant Native youth;” and from the ancestral teachings of elders. She noted that the State of Indian Nations Address is for all Americans, not just tribal leaders and citizens, but especially for those “disenfranchised and rendered hopeless by racial injustice, economic inequality, and the rapid decay of [the] American political system.” To find answers for such grand concerns, President Sharp offered that one shall not look any further than tribal nations. With that, she proclaimed the “undeniable truth [that] the State of Indian Nations is strong!” 

President Sharp then stated that self-governance is the greatest Indigenous core value as it relates to tribal nations’ inalienable right to “steward and draw nourishment from [the] traditional homelands”; “cultivate the extraordinary potential of [the] youth”; “develop thriving economies that provide opportunity for all of [the] people”; and “manage [their] own affairs and control [their] own destinies.” President Sharp noted that many Americans and many policymakers do not understand tribal nations’ unique political status and rights, but that with mechanisms like the State of Indian Nations Address, more Americans can learn the truth about Indian Country and turn to tribal nations for inspiration, direction, and solutions to common challenges. 

President Sharp invoked the ideas and practices of tribal sovereignty and self-determination. She highlighted that the threats to such principles come from “every branch and every corner of the federal and state governments.” She said that the threats “stem from an ignorance—or hostility toward—the unique political status of tribal nations as a vital part of the original American family of governments, and the federal government’s everlasting trust and treaty obligations to tribal nations.”

President Sharp highlighted positive developments including the “Esther Martinez Native American Languages Program Reauthorization Act and the FUTURE Act which permanently extends mandatory funding for tribal colleges, universities, and related academic institutions.” But, she continued, there are major difficulties still facing Native communities, like the gaps in the Violence Against Women Act (VAWA) wherein Congress refuses “to expand tribal authority to administer justice for victims of sexual violence, child abuse, stalking, and human trafficking . . .” Moreover, she referenced “the current Administration’s wanton interference with tribal nations’ right to restore [their] traditional homelands, which has created an arbitrary system of ‘haves’ and ‘have-nots’ among tribal nations seeking to place land into trust.” She discussed the assaults on the Indian Child Welfare Act (ICWA) by special interest groups and a recent federal court ruling placing the “vital law in real jeopardy.” President Sharp called the competition among tribal nations for federal grant programs “a gross violation of the federal government’s trust and treaty responsibilities,” and expressed disappointment that despite years of NCAI efforts, “Congress left Indian Country completely out of the 2017 Tax Cuts and Jobs Act.” 

President Sharp laid out four more instances of Congress’ failure to pass legislation: that (1) “reaffirms the inherent right of tribal governments to regulate labor”; (2) “permanently reauthorize[s] the remarkably effective Special Diabetes Program for Indians”; (3) reauthorizes the Native American Housing and Self Determination Act to curb Indian Country’s severe housing shortages”; and (4) “takes long-overdue steps to curtail the Missing and Murdered Indigenous Women epidemic that is ravaging so many [Native] communities and families.” 

Near the end of her comprehensive review, President Sharp posited that the “rapidly accelerating impacts of climate change” are the most destructive outcomes of the Trump Administration and Congress’ failure to act. Importantly, however, President Sharp ensured that her address did not end a negative note, and she listed several innovations and accomplishments from around Indian Country: the Pueblo of Isleta’s partnership with New Mexico to reduce arrest and incarceration rates among Pueblo youth; the Miami Tribe of Oklahoma’s “Miami Awakening” program which “is bringing back the tribe’s language from the brink of extinction”; and the Coeur d’Alene Tribe of Idaho’s “Education Pipeline” approach “which has dramatically decreased the Tribe’s high school dropout rate and increased the percentage of tribal members pursuing college degrees.” 

If only the federal government would hold up their end of the agreements with tribal nations, President Sharp lamented. As such, she, on behalf of Indian Country, issued “a new standard of accountability to the federal government to uphold tribal sovereignty and treaty rights in all of the ways for which it has been—and always will be—legally and morally responsible.” She called for truth and reconciliation with full acknowledgement of the United States’ past transgressions, tribal governmental parity in every policy decision, and “implementing and not actively impairing legislation that empowers tribal self-determination and self-governance.” Directing such action at the several policymakers at the address, President Sharp offered explicit examples of what living up to such an accountability standard looks like: appropriating funds to the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) before delays or disruptions in the Congressional budget process; a federal land policy based on free, prior, and informed consent of tribal governments for projects impacting land, communities, resources, and ceremonies; protecting sacred sites from exploitation and desecration; expanding tribal authority under VAWA to protect Native women; and combatting opposition to ICWA. 

She continued listing routes for accountability by the U.S. government: “fixing the land-into-trust debate by finally passing a clean Carcieri fix”; “recommitting to the Paris Accord and restoring science to its proper place at the heart of its environmental policy”; “empower[ing] the role of tribal nations in domestic and global climate action . . . from the Nuiqsut in Alaska to the Menominee in Wisconsin to the Karuk in California, Indian Country is crafting ingenious approaches rooted in time-honored ecological knowledge that can guide climate action around the world.” Ending the list, President Sharp highlighted the 2020 Census and demanded that the standard of accountability require “a full count of Native people in this year’s Census no matter where they live and how they choose to participate” and protect Native people against voter suppression. Not only are these demands, she declared, these are what’s deserved!

Closing the meaningful address, President Sharp shared a final message for tribal leaders and all Native people across the land: empowerment comes from the care and efforts taken to tell stories of “strife, resilience, agency, ingenuity, and prosperity to all those who listen… Strength comes from thinking and acting in unity regarding the things that matter most.” With unity, Native people “are an unstoppable force capable of overcoming [their] greatest challenges and achieving [their] greatest and unimaginable futures and aspirations.” 

President Sharp’s address was powerful and eloquent. She provided a thorough assessment of current affairs throughout Indian Country, and she discussed various topics for everyone to contemplate—Native and non-Native alike. The State of Indian Nations Address is informative and encouraging. President Sharp’s call to action for lawmakers will hopefully be heeded in upcoming legislative and judicial considerations. A transcript of the State of Indian Nations Address can be found here

Max Spivak is a 2L at the University of New Mexico School of Law. Originally from west Los Angeles (Tongva land), Max’s academic and professional interests include environmental and cultural preservation, peacebuilding, and pro-poor economics. Max has worked with the Southwest Women’s Law Center, DNA–People’s Legal Services, the Department of Defense, and Invariant Group. 


[1] Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg. 5,462–67 (Jan. 30, 2020) (correcting and changing names, editing the notice’s format, and adding the Little Shell Tribe of Chippewa Indians of Montana to the list as the 574th federally-recognized tribe).

[2] Background information about these matriarchs came from Kevin Abourezk, ‘A tremendous opportunity’: New Leader of National Congress of American Indians focuses on tribal sovereignty, Indianz.com (Nov. 7, 2019), https://www.indianz.com/News/2019/11/07/a-tremendous-opportunity-new-leader-of-n.asp; Frank Hopper, State Attorney General announces free, prior and informed consent policy with Washington Tribes, Indian Country Today (May 21, 2019), https://newsmaven.io/indiancountrytoday/news/state-attorney-general-announces-free-prior-and-informed-consent-policy-with-washington-tribes-tCS6UGajiEuGVf-Z3JVQgQMinding the rules, making them work, The Seattle Times (Dec. 5, 1996), https://special.seattletimes.com/o/news/local/tribalhousing/partfive/quinault.html; U.S. Gov’t Printing Office, 77-465, Report on Tribal Government, Task Force Two: Tribal Government, Final Report to the American Indian Policy Review Commission 157 (1976); Alexandra Harmon, Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed 127 (July 12, 2019).

Categories
Events

Creative Heroes

Look … in the sky … it’s a bird … it’s a plane … No, It’s … It’s an Indigenous Community!

Albuquerque, NM – Indigi Pop X (IPX), the Southwest’s own creative community is giving answers to some of the Native world’s social issues—no cape or superpower necessary. If you have ever wondered why, after years of oppression,  there are not mass retaliations from Indian Country, it is because Natives are busy creating positivity.  A positive example is the IPX event. A fall preview night was recently held in Albuquerque, NM hosted in collaboration with the City of Albuquerque, Native Women Lead, Innovate ABQ, and the New Mexico Humanities Council.  

The IPX preview event showcased an evolution of innovators of change that included artist, cosplay, jewelry, chefs, musicians, authors, and game developers. Diversity was a substantial element at this free, family-friendly event that was open to the public. Amidst the southwestern diversity, there was a common theme—everyone was there to express their indigenous identity. 

What was more awesome than the talent was the people.  Everyone was down to earth and happy to share their story, their purpose, and their goals for their creative business ventures.  Like Kirk Tom from the New Mexico region of Navajo Nation, who’s Star Wars themed costumes crafted in about a weeklong process using EVA foam. Tom’s work has been recognized in various events, including the 73rd annual Navajo Nation Fair. Another notable indigenous innovator present was Tina Archuleta, a Jemez Pueblo entrepreneur.  Archuleta owns Itality, a plant-based wellness food company created to encourage indigenous communities to eat healthy. Archuleta’s vegan pumpkin nachos were delicious!  So delicious, the person next to me cured any doubts by yelling over to testify how good they were.  The energy was kept up with the eclectic sounds of violinist Sage Cornelius.  The list of talent who volunteered for the preview could go on.  Just go! Whether it’s to look, buy, try new gear, buffalo tacos, comic books, or meet some heroes – The Indigi Pop X 2020 is something to look forward to. 

One might wonder, what does this have to do with the Tribal Law Journal? The IPOP X event does more than support community, business, and health internationally. The creators of this event advance Indigenous education and empowerment.  The event’s founder, Lee Francis, of Laguna Pueblo, has a PhD in Education with a concentration in Educational Leadership.  When asked how this event relates to law, he responded that IPX, “reverses the damaging effects of propaganda used against Natives to develop the historical anti-Indian policies.” Francis believes that showcasing Indigenous identity, educating the public about Indigenous strengths, and bringing people together contributes to solving societal issues in Native communities locally and worldwide.  The next IPX event is scheduled for March 25 – 29, 2020.  More information can be found at: https://www.indigipopx.com.

Felisha Adams is a second-year law student at the University of New Mexico School of Law. Felisha graduated magna cum laude from Diné College with a BA in Business Administration and Tribal Economic Development. She is also a proud Pre-Law Summer Institute (PLSI) alumni.  Felisha is a member of the Navajo Nation who came from Iyanbito, NM to Albuquerque, NM to pursue a J.D. with a certificate in Indian Law. Her future plans include applying her business, cultural, educational, and legal experience towards supporting sovereignty and tribal economic development.

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Events

Indigenous Peoples Day at the Valle de Oro National Wildlife Refuge

 October 14, 2019 – Albuquerque, New Mexico

As New Mexico commemorated the first state-wide celebration of Indigenous Peoples Day, The Valle de Oro National Wildlife Refuge, participated by hosting a celebration alongside the Rio Grande River. Rosie Thunderchief (Navajo/Diné, Pawnee, Arapaho, Ho-Chunk, Lakota and current Ancestral Lands Tribal VISTA) organized the celebration in partnership with 516 ARTS, Flower Hill Institute, Indian Pueblo Cultural Center & Southwest Conservation Corps – Ancestral Lands Program, the event was part of Species in Peril Along the Rio Grande.

The Valle de Oro National Wildlife Refuge is the first of its kind to be established in the Southwest. The 570 acres was purchased in 2011 by the Trust for Public Land and transferred to the U.S. Fish & Wildlife Service in 2012. It contains a working farm, miles of recreational paths, and access to the Bosque of the Rio Grande River.

The warm fall sun had begun to sink into the sandy West Mesa as we drove from downtown to the South Valley of Albuquerque. This cross-section of our community is where our land comes alive shattering through the concrete jungle of asphalt and developed gated communities turning into vast tracks of farms and natural Bosque along the Rio Grande River. The songs of the birds welcomed us as they flew by our windows.

The celebration at the refuge called to my soul as all other events were centered in the city. I was drawn to the outdoors where our languages would once again echo through the sacred Cottonwoods that protect the living water. We arrived with the rush of city life propelling us into a scene of calm, serenity, and a slow drive on a white-sanded road toward the entrance of the Bosque.

Instructions to the event explained that attendees should allow for at least 30 minutes to drive through slowly. The leisure drive through the refuge was marked with signs of information educating drivers in Indigenous People History. The first sign marked the arrival of European explorers and the impact it had to the Indigenous Peoples. The last sign marked the establishment of Indigenous People’s Day 527 years later. There were four rows of cars with roughly 100 attendees. As we walked from our car we were overrun by a flock of geese 50 feet above saluting our celebration with exuberant honking. The orange / purple glow of the setting grandfather sun illuminated the clouds above, we wondered if our people had seen the same sunsets.

Discussions to replace the celebration of Columbus Day began during the International Conference on Discrimination Against Indigenous Populations in the Americas began in 1977. However, it was not until 1989 when Lynn Hart and Governor Mickelson backed a resolution in South Dakota to recognize the day in lieu of Columbus Day. On the 500-year anniversary of Columbus Day, Berkeley California inaugurated the celebration by adopting Indigenous Peoples Day at the urging of the Bay Area Indian Alliance, also known as Resistance 500, which vehemently opposed a federally sponsored celebration of the reenactment of the arrival of Columbus in the San Francisco Bay. 

The spirit of resistance was healthy and well at Valle de Oro as Eddie Paul Torres (former Governor, farmer and rancher, Isleta Pueblo), Brophy Toledo (Cultural Leader, Jemez Pueblo, Flower Hill Institute), Roger Fragua (Jemez Pueblo, Flower Hill Institute), Shannon Romero (Cochiti Pueblo/Kewa/Dine/Chicana, Indian Pueblo Cultural Center), Julia Bernal (Sandia Pueblo and Yuchi/Creek, Co-director, Pueblo Action Alliance) spoke in one voice about the importance of honoring the Earth, its people and all life upon it.

The event commenced with a celebration meal of traditional Indigenous Food. Thunderchief explained that the menu reflected the pre-colonial diet of the region Corn, Bison, Chile, and Squash. As the community settled in to their seats with food in hand Thunderchief read a poem reflecting her version of manifest destiny using the ancient genocidal concept to empower her own manifesting of a return to Indigenous life. Toledo blessed us and explained the importance and sacred role fire plays as he ignited it. She then introduced the panel of speakers. The panel was read questions, and each were allowed to respond. Speaking their respective languages each speaker introduced themselves, stated their intentions and represented their pueblo’s values in a series of speeches which focused on the dire need to return to Indigenous methods to heal the earth from the damage inflicted by the modern world.

The colors of the sunset radiated pink against the Mountain Range to the East. The echo of the voices from the speakers flooded the Bosque with Indigenous words and I wondered if our ancestors had returned from the riverbanks to celebrate and honor the first celebration of our day. The sun vanished from sight and the last flock of geese left for the river as the children dancers from Jemez Pueblo prepared themselves. Over 500 years since the arrival of Columbus, the establishment of Indigenous Peoples Day positively marks a new place in New Mexico’s history.

The signs remained on the road as we left, a reminder that to understand the present we must know our past. Our past is rich with culture, peace, harmony, mystery, healing, and a natural science of sustaining our existence on a planet of abundance. The Mountain Range has stood witness to the arrival of the modern world and will witness our destiny to reclaim our lands, one acre at a time, one spoken word at a time, one danced step at a time, and each year on the second Monday of every October my family will celebrate our ability to thrive and flourish against any and all challenges, modern or traditional. The bird’s songs at dusk tempted our stay but there are asphalt jungles in the city that must be shattered.

For more information on the Valle de Oro National Wildlife Refuge, please visit https://www.fws.gov/refuge/valle_de_oro/.

Jessica is a second-year law student at UNM School of Law. She is a member of the Chihene Nde Nation of New Mexico. The Chihene are descendants of Apache people throughout Southern and Central New Mexico. The tribe is not federally recognized but is dedicated to the preservation of their language, culture, traditions, including protecting historic and sacred sites.

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Events

Attorney General’s Advisory Subcommittee on Native American Issues Convenes in New Mexico

Attorney General’s Advisory Subcommittee on Native American Issues Convenes in New Mexico

Last month, the District of New Mexico United States Attorney’s Office (USAO) hosted approximately sixty (60) United States Attorneys (USAs), Tribal Liaisons, and other law enforcement personnel for a meeting of the Native American Issues Subcommittee (NAIS) of the Attorney General’s Advisory Committee.[1] The meeting took place in Santa Ana Pueblo, New Mexico, to discuss safety and law enforcement issues that impact Native American and Alaska Native Communities.[2] The NAIS is charged with engaging tribal leaders to develop strategies and best practices that address missing and murdered indigenous people, drug trafficking, needed law enforcement resources, and safeguarding children from sexual abuse in Indian Country.[3] 

Panel discussions also focused on the Indian Arts and Crafts Act and preserving cultural patrimony[4]: “The Indian Arts and Crafts Act of 1990 is a truth-in-advertising law that prohibits misrepresentation in the marketing of Indian arts and crafts products within the United States.”[5] It is illegal to offer, display for sale, or sell any art or craft product in a manner that falsely suggests it is an Indian product.[6] 

The NAIS consists of fifty-three (53) US Attorneys serving in districts that include Indian Country or one or more federally recognized tribes and makes policy recommendations to the Attorney General.[7] The NAIS has identified four priority areas: 1) violent crime 2) law enforcement resources 3) drug trafficking and substance abuse, and 4) white collar crime.[8] “It is the longest standing subcommittee to the Attorney General’s Advisory Committee and helps develop, shape, and otherwise implement justice policies affecting Native Americans and Alaska Natives.”[9] 

In July 2019, the Department of Justice (Department) announced a new tool giving tribal governments the ability to input data directly and gain access to the FBI’s national sex offender registry using the Tribe and Territory Sex Offender Registry System (TTSORS).[10] TTSORS is a functioning registry system that complies with sex offender registration and notification requirements.[11]

The system connection will be available to all tribal governments already participating in the Tribal Access Program (TAP), which allows information sharing between tribal and federal government criminal information systems. TAP has been instrumental in assisting tribes with ongoing implementation of the Sex Offender Registration and Notification Act (SORNA). In fiscal year 2019, the Department expanded TAP to twenty-five (25) more tribes, for a total of more than seventy (70) participating tribes across the country.[12]

Joseph Tali is an indigenous thought facilitator sent to Mother Earth by the Creator for the purpose of perpetuating the original force of our ancestors. An artist constantly in search of new mediums, he blends vintage tribal soul with contemporary new world vibes. In his spare time, he attends the University of New Mexico School of Law where he will graduate with 2020 vision.


[1] Attorney General’s Advisory Subcommittee on Native American Issues to Convene in New Mexico, The United States Attorney’s Office District of Oregon, https://www.justice.gov/usao-or/pr/attorney-generals-advisory-subcommittee-native-american-issues-convene-new-mexico (last visited Oct. 25, 2019). 

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

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Events News

Tribal Law Journal 20th Anniversary Symposium and Film, Tribal Justice

On Friday, March 29, 2019, TLJ held its 20th Anniversary honoring Indigenous dispute resolution at UNM School of Law. The event began with a traditional lunch of Indian tacos and a prayer given by former Chief Justice of the Navajo Nation, Robert Yazzie. After lunch, Chief Justice Yazzie presented to the audience, discussing his perception of the evolution of tribal law since he first attended law school. He described how proud he was to see so many young Native students pursuing justice for their communities and encouraged all to keep going. Next, attendees heard from keynote speaker, Congresswoman Deb Haaland from the Pueblo of Laguna. Congresswoman Haaland similarly reflected on her time as law a student at UNM School of Law and culminated her speech with the message that we, as law students, have the tools to forge our own paths in this nation regardless of race, age, or gender. 

After lunch, TLJ screened the movie ‘Tribal Justice.’ Tribal Justice presented the story of how two female tribal judges negotiated with California to assert jurisdiction over tribal members in criminal and civil law cases[1]to focus on healing and “restoring rather than punishing offenders” in their communities. The film first introduces the Honorable Abby Abinanti and Taos Proctor from the Yurok Indian Tribe in northern California. Justice Abinanti works with recovering addict and repeat offender Taos by assisting him with finding employment, ordering his participation in narcotics anonymous meetings, and holding him accountable for regular drug screening as part of his requirements for Wellness Court. Taos describes his struggles with the criminal justice system and with sobriety—ultimately, his story is one of success as a result of his commitment to bettering his life and his consistent work with Judge Abinanti. Since the filming, Taos has maintained his sobriety, married the mother of his son, become an integral part of his son’s life, remained gainfully employed, and built a house from scratch for him and his family. 

Next, the film introduces Chief Justice Claudette White from the Quechan Tribe in Southern California. In the film, Justice White takes on two roles. First, she presides over multiple hearings dedicated to reuniting a minor child with his family after the state placed him in a mental heath facility where he was sequestered for days as a solution to his behavorial issues. Then, Justice White allows the world into her own home as she attempts to help her 17-year old nephew, Isaac, with complying with the terms of his state court felony conviction for theft. Because Isaac’s case could not be transferred to tribal court, Judge White assists him as best she can, including requesting temporary guardianship of Isaac, allowing him to live with her and her son, and involving him in traditional tribal practices. Unfortunately, the film ends with Isaac’s arrest showing that, while real life does not yield a success story in every instance, support of family members and the community is vital to rebuilding the lives of our youth. After the movie, both Judge Abinanti and Judge White, who were honorary guests of the TLJ, answered questions on their collective experiences in their respective tribal courts and in filming the documentary.

Finally, TLJ heard from Cheryl Fairbanks and peacemakers from the Pueblo of Isleta who presented on their formal peacemaking process within the Isleta judicial system. The peacemakers described both how and why they believe peacemaking to be a beneficial form of dispute resolution within the tribal community. The panel concluded with a presentation of ethical considerations in conducting peacemaking in tribal courts. 

The 20th Anniversary Tribal Law Journal Symposium was a success. The sold-out crowd showed TLJ, the University of New Mexico School of Law, and local Indian nations, that we are all committed to restorative justice and need only work together, as have Judge Abinanti and Judge White, to make change within our communities. On behalf on TLJ, we’d like to that all of our sponsors for making this even happen; we’d also like to thank Congresswoman Debra Haaland, Former Chief Justice Robert Yazzie, the Chief Justice Claudette White, Honorable Justice Abby Abinanti, Professor Cheryl Fairbanks, and the peacemakers from the Pueblo of Isleta: Chief Justice Verna Teller, Ben Lucero, Mona Chuwiwi, and Joyce Jojola. 


Dominique Oliver is a third-year law student and member of Navajo Nation from Oakland, California.  At UNMSOL, Dominique currently serves as the Citations Editor for the Tribal Law Journal. In addition to her editor position at UNMSOL, Dominique assists native and indigenous clients in her position as a clinical law student for the Southwest Indian Law Center. Dominique also serves as a coach for local high-school students selected to compete at the National Marshall-Brennan Moot Court Competition in Washington, D.C. in April 2019. Prior to coaching students in the Marshall-Brennan program, Dominique taught Albuquerque high-school students Constitutional Literacy, educating youth about the individual rights granted to them under both the United States Constitution and New Mexico Constitution. Dominique’s practice area interests include Federal Indian Law, criminal law, and civil rights. In May 2019, Dominique will graduate from UNMSOL with her J.D. and Certificate in Federal Indian Law. 


[1]Note: California is a Public Law 280 state. Under Public Law 280, tribal members are subject to the federal and tribal policing power of the sate rather than the tribe. In states where Public Law 280 is inapplicable, tribes maintain exclusive jurisdiction over their members consistent with the laws and codes of their tribe. See Pub.L. 83–280 (Aug. 15, 1953) codified at 18 U.S.C. § 1162, 28 U.S.C. § 1360, and 25 U.S.C. §§ 1321–1326.

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Events

Counter Narrative: A Narrative of Stewardship

Tribal Law Journal Staff attended “Counter Narrative: Manifest Larceny”, a lecture presented by the Indian Pueblo Cultural Center on March 27, 2019. The lecture was part of a larger series that provides a platform for viewpoints that differ from mainstream media and history. Speakers at the event were Helen Padilla, Director of the American Indian Law Center, Carleton R. Bowekaty, Lt. Governor of the Pueblo of Zuni, and James R. Mountain, former Governor of the Pueblo of San Ildefonso. 

As a lecture, “Manifest Larceny” was a narrative of how the people of the nineteen Pueblos of New Mexico have had to adapt their diplomatic relations with the various entities and governments that have come into contact over the years. Historically, Pueblos were “granted” lands (upon which Pueblo people had lived on before the arrival of the Spanish), by the Spanish crown. Later, they had to adapt to the governments of Mexico and the United States. It was clear from the lecture that the Pueblos saw this as vital to maintain their way of life, language, and stewardship of the land and water. 

Governor Mountain talked about the chromium plume affecting the population and land at San Ildefonso. Governor Mountain discussed how the Pueblo has deployed diplomacy, litigation, and building good working relationships with various governmental entities in order to remedy the toxic contamination brought on by the Los Alamos National Laboratory. A few tidbits on Pueblo water rights and the Aamodt settlement in particular were also presented. 

Lt. Governor Bowekaty talked about the importance of maintaining language and customs and the ways in which his Pueblo has maintained a delicate balance between giving up some access to ancestral lands in order to have access to others. 

In short, the lecture was a concise juxtaposition of the John O’Sullivan’s declaration of “manifest destiny” against the historical narrative of the Pueblos. What resulted in manifest larceny from the Pueblos has resulted in a more resilient and adaptable native peoples. The importance of that counter narrative to be shared and heard cannot be emphasized enough. 

The Counter Narrative lecture series continues at the Indian Pueblo Cultural Center. 


Kaythee Hlaing, Multimedia Editor, Tribal Law Journal

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Commentary Events

Reflections: Invasion Day in Australia

Every January 26thin Australia, schools, post offices, and businesses close to commemorate the day in 1788 that a convoy of 11 ships filled with British convicts captained by Author Phillips landed at Port Jackson in New South Wales. The reason for this trip was to establish a work colony for the British government. Over the years the date has been called Anniversary Day, First Landing Day, or Foundation Day. All states and territories celebrate Australia day, with the government hosting naturalization celebrations and similar events to memorialize the day.[1]

However, for the Aboriginal peoples and Torres Strait Islanders from the area that is now called Queensland, January 26thand the holiday that has been imposed by the state is a celebration of the start of the settler colonial scheme of violence organized to dispossess indigenous peoples of land and life. Accompanied by large protests, and has been renamed as Survival Day or Invasion Day, to more accurately describe the experience of Torres Strait and Aboriginal people.[2]

This past week on Invasion Day, tens of thousands of people protested around Australia to reject the state narrative of nationalism at the expense of Aboriginal people, with some protests as large as 5,000 people. [3]In addition to lower life expectancies, higher rates of poverty, and increased exposure to violence for Aboriginal and Torres Strait, 2018 has brought a new set of adoption policies that enable the state adopt children out of foster care without the biological parent’s consent.[4]With Aboriginal children already making up about 40% of the population of people in foster care, it is predicted that these new policies will continue to rob indigenous families of their young people, thereby perpetuating the colonial project that was started in 1788 with the arrival of Author Phillips.

Whether it be the abolition of events like Columbus Day in the United States or Australia day, memorials and celebrations of genocides of indigenous peoples must be eliminated and replaced with events that honor indigenous tribes, nations, and marginalized people who have continued to demand sovereignty and recognition to not only improve conditions for themselves, but for all of us.

Yarrow Allaire is a second year student from Albuquerque’s South Valley.

[1]About Australia Day. https://www.australiaday.org.au/about-australia-day/

[2]Esther Han, ‘Offensive to celebrate genocide’: Invasion Day protesters take to the streets. The Sydney Morning Herald. https://www.smh.com.au/national/nsw/offensive-to-celebrate-genocide-invasion-day-protesters-swarm-streets-20190126-p50tsr.html. (Jan. 26, 2019).

[3]Tom Westbrook and Lidia Kelly. Thousands protest Australia Day legacy. Reuters. https://www.reuters.com/article/us-australia-day-protests/thousands-protest-australia-day-legacy-idUSKCN1PK05Y. (Jan. 25, 2019).

[4]Lorena Allam. Adoption without parental consent legalized in NSW. The Guardian. https://www.theguardian.com/australia-news/2018/nov/23/adoption-without-parental-consent-legalised-in-nsw. (Nov. 22, 2018).