This article was originally published in the Sep/Oct 2021 issue of San Diego Lawyer Magazine.
By Gabriela Magee and Ted Griswold
In addition to mastering federal Indian law and various tribal law systems, representing tribal governments requires understanding and communicating a different perspective from what most judges, businesses, and regulating officials
are accustomed to. Communicating the history and condition
of our clients is often relevant to our current matters. A recent
federal decision for one of our clients is indicative.
In Backcountry Against Dumps v. United States Bureau of Indian Affairs (Case No. 3:20-cv-02343-BEN-DEB), a case was filed by reservation neighbors who were trying to negatively affect the Tribe’s fiscal, economic, and sovereign interests, and sought to do so in the Tribe’s absence. If the plaintiffs succeeded in the litigation, the Tribe would lose substantial payments due under a wind lease, eliminating funding for social and government benefits for its Tribal members and well-paying jobs for Tribal members in an area where those jobs are very limited. The Tribe made a special appearance to impress upon the court that their interests were unique and not represented, and as such the case could not proceed without the Tribe. Additionally, as a sovereign government, the Tribe was immune from suit and could not be joined to the suit without waiving that immunity. Consistent with 9th circuit case law, the case should be dismissed.
Briefing required convincing the court that plaintiff’s intentions were to paternalistically thwart economic development on the reservation — they had done so repeatedly for over 30 years, as detailed in part by former EPA administrator Dan McGovern’s 1995 book The Campo Landfill War. The court also needed to understand the myriad services the Tribal government provides for its community, including tribal utilities, infrastructure, housing (e.g., rental assistance, home rehabilitation assistance), education (e.g., tuition costs, supplies, and transportation costs), transportation to essential services, elderly and disabled persons programs (e.g., meal assistance, home care, and transportation), child daycare, cultural immersion and involvement (e.g., expenses related to attending and participating in cultural and religious ceremonies), and end-of-life traditions. This is the side of tribal sovereignty that few non-Native people ever see.
The Tribe faces great challenges in funding these services and has explored many options, but opportunities have been hindered by its rural location, few marketable resources, poor access to capital, and limited infrastructure. These concerns have led the tribe to focus its future on the resources that exist on the reservation — nonarable land, sun, wind, and rural location — to pursue economic development. These conditions work very well for a wind farm, and have led to a Tribal Energy Vision plan to pursue an alternative energy future.
The District Court took the time to recognize and understand these factors and, concluding that the Tribe’s interests were significantly different from the United States and other parties in the litigation, dismissed the action on August 6, 2021.
Sometimes our practice requires communicating the Tribal perspective to larger audiences. In addition to funding their services and programs, tribal governments are actively engaged in protecting and advocating for tribal sovereignty, advancing education and health and wellness among their respective tribal members and communities, and bringing awareness of issues impacting tribal communities. To collaborate on issues of mutual concern and pool limited resources, tribal governments often form intertribal consortia or intertribal organizations. These intertribal entities are an important tool that many tribal governments have utilized to provide their communities with housing, education, and health care, and also to address issues of mutual concern.
Procopio represents the California Tribal Chairpersons Association (CTCA), an intertribal consortium consisting of the Southern California Tribal Chairmen’s Association, the Central California Tribal Chairpersons Association, and the Northern California Tribal Chairmens Association. Formed in early 2019, CTCA provides resources to tribal governments, monitors state and federal legislation and policies impacting tribal communities, and uses their statewide platform to communicate tribal perspectives.
Gabriela Magee (gabriela.magee@procopio.com) is an associate with Procopio’s Native American Practice Group.
Ted Griswold (Ted.griswold@procopio.com) is founder of the Procopio Native American Practice Group and leads the firm’s Real Estate and Environmental Practice Team.