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Volume 68, Issue 2

McGirt v. Oklahoma: The Indian Law Bombshell page 30

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Volume 68, Issue 2

EDITORIAL BOARD

Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org

March/April 2021: Indian Law

Book Review Editors Heaven C. Chee Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Susan Yorke Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Kristine Adams-Urbanati Sarika J. Angulo Ellen Denum Sara Gold Niles Illich Jeffrie Boysen Lewis Jon Jay Lieberman Glenda McGraw Regnart Amanda Thom Jeremy Stone Weber The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA… and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” ©Copyright 2021 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/tflwritersguidelines for writers guidelines.

30 McGirt v. Oklahoma:

The Indian Law Bombshell By Robert J. Miller

38 A Seat at the Table:

Tribal Legal Representation in Out-of-State Indian Child Welfare Act Cases By April Olson

Economics of Veterans Benefits for Indigenous Veterans By Carol Scott

54 Changing Consultation By Elizabeth Kronk Warner, Kathy Lynn, and Kyle Whyte

44 Policymakers’ Role in

Changing the Washington Football Team’s Name By Mary J. Pavel

March/April 2021 • THE FEDERAL LAWYER • 1

Federal Bar Association COLUMNS 3 President’s Message

The Constitution Safeguards Us: Separation of Powers and Inhibiting the Consolidation of Governmental Authority Through Checks and Balances By W. West Allen

5 Washington Watch

Sealed Filings in Federal Cases May Have Been Compromised By Bruce Moyer

6 At Sidebar

A Call for Harmonization Between the Rules of Criminal and Civil Procedure By Niles S. Illich, Ph.D.

8 Focus on Indian Law

When Congress Forgets: Breaking Through Congress’s Failure to Mention Indian Tribes in Federal Employment Laws

PROFILES 24 Hon. Diane J. Humetewa

Judge, U.S. District Court, District of Arizona By Trevor W. Carolan

28 Hon. Frank R. Zapata

Magistrate Judge, U.S. District Court, District of Arizona By Cindy Reyna

BOOK REVIEWS

64 Oliver Wendell Holmes: A Willing Servant to an Unknown God

Reviewed by Christopher C. Faille

DEPARTMENTS

68 Supreme Court Previews

By Kaighn Smith Jr.

13 Resolution Resources

Do You Know How to Obtain Third-Party Discovery in Arbitration? By Janice L. Sperow

16 In-House Insight

FBA MEMBER NEWS

82 Sections & Divisions 84 Chapter Exchange 86 Member Spotlight

The Scope and Relevancy of Discovery: Another Look at Rule 26 of the Federal Rules of Civil Procedure By Stephen L. Rossetti Jr. and Erica A. Dumore

20 Diversity & Inclusion

Advancing Racial Equity Through the UN Sustainable Development Goals By Christina Bartholomew

2 • THE FEDERAL LAWYER • March/April 2021

1220 N. Fillmore St., Ste. 444 Fourth Circuit Arlington, VA 22201 Kacy L. Hunt Ph: (571) 481-9100 • F: (571) 481-9090 Hannah Rogers Metcalfe fba@fedbar.org • www.fedbar.org Fifth Circuit BOARD OF DIRECTORS Mark L. Barbre President • W. West Allen Paul D. Barkhurst wwa@h2law.com Sixth Circuit President-Elect • Anh Le Kremer Daniel J. Donnellon anh.kremer@cdirad.com Donna J. Mikel Treasurer • Matthew C. Moschella Seventh Circuit mcmoschella@sherin.com Kevin G. Desharnais Ernest T. Bartol Melissa N. Schoenbein etbartol@bartollaw.com Eighth Circuit Jeanette M. Bazis David A. Goodwin jbazis@greeneespel.com Adam Hansen Joey Bowers Ninth Circuit jbowersfba@gmail.com Laura A. Conover Kevin A. Maxim Darrel J. Gardner kmaxim@maximlawfirm.com Tenth Circuit Glen R. McMurry Kristen R. Angelos glen.mcmurry@dinsmore.com Hon. Suzanne Mitchell Hon. Karoline Mehalchick Eleventh Circuit karoline_mehalchick@pamd.uscourts.gov Lauren L. Millcarek Adine S. Momoh Oliver Alan Ruiz adine.momoh@stinson.com D.C. Circuit John R. Thomas Patricia D. Ryan jt@fed-lit.com Jessica R. Toplin Jessica R. Toplin SECTION AND DIVISION CHAIRS jtoplinfba@gmail.com Chair, Sections and Divisions Hon. Mimi E. Tsankov Council (personal capacity) Nathan A. Olin mimi.tsankov@gmail.com Admiralty Law Christie C. Varnado Eric S. Daniel cvarnado@seibelsfirm.com Alternative Dispute Resolution Michael S. Vitale Bryan J. Branon mvitale@bakerlaw.com Antitrust and Trade Regulations Ex Officio Members Robert E. Hauberg Jr. Christian K. Adams Banking Law cadams@adamskrekllp.com Michael Mancusi Hon. Barry W. Ashe Bankruptcy Law barry_ashe@laed.uscourts.gov Christopher Sullivan Laura A. Conover Civil Rights Law laura@conoverlawpllc.com Robin B. Wagner Anna W. Howard Corporate and Association Counsel anna.howard@uga.edu David Greene Nathan A. Olin Criminal Law nate@oliplaw.com E.J. Rymsza NATIONAL STAFF Environment, Energy & Natural Executive Director Resources Stacy King Vacant sking@fedbar.org Federal Career Service Director of Membership and Chapters Adam Hill Dominick Alcid Federal Litigation dalcid@fedbar.org Nicole Deese Newlon Managing Editor Government Contracts Lynne G. Agoston Vacant social@fedbar.org Health Law Outreach and Foundation Manager Robert Rappel Cathy Barrie Immigration Law cbarrie@fedbar.org Mark Shmueli Operations Manager Indian Law Holly Delidle Ann E. Tweedy hdelidle@fedbar.org Intellectual Property Law Director of Sections and Divisions Ira Cohen Mike McCarthy International Law mmccarthy@fedbar.org Beth Persky Marketing Director Judiciary Jennifer Olivares Hon. Michael J. Newman social@fedbar.org Labor and Employment Law Conference Manager TJ McGrath Caitlin Rider crider@fedbar.org Law Student Glen R. McMurry Sr. Director of Professional Development LGBT Law Melissa Schettler Brandon King mschettler@fedbar.org Qui Tam Program Coordinator R. Scott Oswald Ariel White Securities Law awhite@fedbar.org Liam O’Brien Membership Specialist Senior Lawyers Miles Woolever Steve Miller mwoolever@fedbar.org Social Security Law To Be Appointed VICE PRESIDENTS FOR THE CIRCUITS First Circuit State and Local Government Scott P. Lopez Relations Oreste R. Ramos Andrew S. Ballentine Second Circuit Taxation Olivera Medenica Robert Russell Dina T. Miller Transportation and Transportation Security Law Third Circuit Steve Osit Christian T. Haugsby Frank J. McGovern Veterans and Military Law Maura Clancy Younger Lawyers Anna W. Howard

President’s Message

The Constitution Safeguards Us: Separation of Powers and Inhibiting the Consolidation of Governmental Authority Through Checks and Balances By W. West Allen

W. West Allen is an intellectual property litigator and counselor in Las Vegas who represents a wide variety of international clients in federal courts. He served as chair of the FBA’s Government Relations Committee for seven years and has served as a member of the FBA’s board of directors for many years. In 2016, Allen received the FBA’s President’s Award for longstanding service to the FBA and as chair of its Government Relations Committee.

The Founders carefully laid the foundation of America’s superstructure of liberty by creating within the U.S. Constitution’s architectural framework an enlightened system that distributes the power allotted to government among its constituent parts. They did this because they understood that centralized state power, even within a republic, naturally leads to the abuse of power and loss of freedom. As James Madison explained, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”1 This ingenious political construct of America’s government that safeguards liberty by preventing the consolidation of state authority is the third foundational principle of the Constitution: Separation of Powers and its coordinate system of check and balances.2 In every government there are three types of power: legislative, executive, and judicial. The U.S. Constitution divides these powers into separate, coordinate, and equal branches of government. The Framers intentionally prevented any single branch of government from becoming too powerful by expressly limiting the powers of each and creating an internal system of checks and balances among the separate branches. The result is a system of self-government that assiduously diffuses centralized power. No branch of government can arrogate to itself what power it pleases. America’s Constitution grants sufficient power to govern while constraining the capacity to abridge the liberties of the governed by separating the mighty powers to legislate, execute, and adjudicate, and by providing each branch the means to resist the blandishments and incursions of the others. The Framers did this because they understood, like Montesquieu before them, the difference between liberty and democracy.3 The two are by no means syn-

onymous; indeed, history teaches that tyranny can be its worst when exercised in the name of the sovereignty of the people.4 Freedom exists only when there is no abuse of power, regardless of the form of government. We have learned by sad experience that every person invested with power is apt to abuse it and carry that authority as far as it will go.5 Often, liberty is put into existence within a particular form of government, such as a democracy, and the power of the people is confused with the liberty of the people. Liberty, however, is not simply doing what one pleases. True liberty in its complete sense has two parts: personal or individual liberty, consisting of the free exercise of one’s own will and conscience; and political or social liberty, consisting of one’s security and safety while living among peers in an ordered and civil society.6 Both elements must be present for liberty to exist. Therefore, establishing a government that both guarantees the natural right to exercise conscience freely in pursuit of one’s happiness, and to do so within a society that holds this right inviolable and secure from unjust interference by others, is the very essence of forming a more perfect union. This is the majestic work the Framers pursued when establishing the Constitution. It is what John Adams called the “divine science” of the perfect government for liberty—enabling liberty to appear in its highest perfection.7 With this clear understanding, John Adams, perhaps above all his peers, caught the political vision of Montesquieu. Adams understood that an indispensable safeguard against tyranny and the guarantee of true liberty lies in the separation of the executive, legislative, and judicial powers of government. Like Montesquieu, Adams comprehended the subtle but significant difference between independence and liberty. A nation may win its independence, but a people will achieve liberty only when government protects their natural rights and refrains from abusing their March/April 2021 • THE FEDERAL LAWYER • 3

delegated authority. Accordingly, in 1780, Adams included the concept of separation of powers in the Commonwealth of Massachusetts Constitution, which was the first time in the history of the world that the concept had been adopted as a form of government. A few years later he ensured it was in the U.S. Constitution, hoping to see arise in America an “empire of liberty” of free people, without one noble or one king among them.8 The U.S. Constitution advances the principle of separation of powers in remarkable and profound ways that builds on the brilliance of Montesquieu and early efforts of Adams in pursuing the perfect government for liberty. Both men discerned that each of the departments of government must be separate in its functions but also subject to the checks of the others two, lest one department become abusive in performing its functions to the peril of the people’s individual and collective liberty. Power must check power by the arrangement of things, and bulwarks beyond mere parchment are needed to safeguard the people against the encroaching spirit of power. James Madison, as a central architect of liberty, joined in this noble pursuit of perfect government and, in addition to composing the first drafts of the U.S. Constitution with its progressive system of checks and balances, devoted five Federalist Papers (Nos. 47-51) to explain the wisdom of the principle. Madison’s masterful hand elevated the political principles of his predecessors into an elegant constitutional system that both diffuses power to protect liberty and integrates these dispersed powers into a workable government: As Justice Jackson has written, “It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”9 Our nation’s other greatest Founders shared the political intelligence and constitutional acumen of Adams and Madison. Among them, Thomas Jefferson, Alexander Hamilton, and George Washington particularly understood the critical constitutional principle of separation of powers, including the U.S. Constitution’s system of checks and balances. “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other,” Jefferson explained.10 To James Madison, Jefferson wrote, “The principle of the Constitution is that of a separation of Legislative, Executive and Judiciary functions, except in cases specified. If this principle be not expressed in direct terms, it is clearly the spirit of the Constitution, and it ought to be so commented and acted on by every friend of free government.”11 Alexander Hamilton concurred: “The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other.”12 “For I agree, ‘that there is no liberty if the power of judging be not separated from the legislative and executive powers.’” 13 Finally, consider the wise admonition of George Washington in his Farewell Address concerning the significance of the fundamental constitutional principle of separation of powers, which included a strict admonition to all those who would fulfill the trust afforded by the American people when serving in their government: It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the 4 • THE FEDERAL LAWYER • March/April 2021

departments in one, and thus to create, whatever the form of government, a real despotism. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.14 Washington further warned in explicit terms against those who might be tempted to unwisely institute arbitrary changes to a coordinate branch of government for political gain by reminding them that the only legal and proper manner to change the delicate balance among the people’s disseminated powers among their three branches of government is by constitutional amendment, as expressly set forth in the Constitution. He was most resolute on this point: “But let there be no change by usurpation; for through this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” And finally, we have Washington’s conditional promise concerning the fundamental constitutional principle of separation of powers. It was given directly to every future generation that will inherit and carry on America’s standard of self-government to the world: If we honor the precepts set forth in the Constitution and “resist with care the spirit of innovation upon its principles” … then “Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian.”15 The U.S. Constitution safeguards the American people provided that we stand fast in the liberty and constitutional principles wherewith its authors have made us free. Unfortunately, too few today understand the significance of the constitutional principle of separation of powers and its coordinate system of checks and balances. Too few serving in government refrain from the seductive tendency to venture into the field of a coordinate branch to which they were neither elected nor appointed. We as lawyers and judges, as guardians of the Constitution, have a responsibility to educate them and to adhere to these constitutional principles ourselves, when applicable. As Montesquieu taught when writing the essays that guided our Founders on the truest principles of liberty and government: Our business here is “not about making people read, but about making people think.”16 May it be said of us as we attend to the standard raised up by our Founders, that we fulfilled our duty and preserved true liberty. The tribute paid by Voltaire to Montesquieu expresses the gratitude that we owe to our American Founders and all those engaged in the cause of freedom: “The human family had lost its title deeds—Montesquieu found them and restored them to their owner.” 

Endnotes The Federalist No. 47 ( James Madison). See also, The Federalist 51 ( James Madison) (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”) 2 The 2020-2021 FBA presidential messages focus on five foundational principles of the U.S. Constitution: popular sovereignty, federalism, separation of powers, the Bill of Rights, and the rule of law. 3 See generally Montesquieu, The Spirit of Laws, Book XI, continued on page 12 1

Washington Watch

Sealed Filings in Federal Cases May Have Been Compromised By Bruce Moyer

A cyber-attack on the electronic filing system used by the federal courts has put at risk a range of highly sensitive confidential documents previously filed with the courts by public and private litigants. Sealed filings in a range of cases—including criminal, civil, and bankruptcy filings—may have been compromised by the hack. Some Title III wiretap applications, national security matters, confidential business transactions, and trade secrets reportedly could be vulnerable. The attack has been described as one of the worst U.S. intelligence failures on record. The revelation that a suspected Russian cyber-espionage campaign, the so-called SolarWinds Attack, caused the “apparent compromise” of the federal courts’ Case Management/Electronic Case Files system (CM/ECF) was disclosed on January 6 by the Administrative Office of the U.S. Courts (AO). As a broad federal investigation into the attack began, the judiciary swiftly suspended all national and local use of the SolarWinds network monitoring platform within CM/ECF. In the following weeks, as the seriousness and depth of the intrusion became better known, concerns grew that the breach was continuing in ways not yet identified. A 60 Minutes report on February 14 said that it could take years to fully learn what information was obtained and what hackers are doing with it. Technology executives told a Senate Select Committee on Intelligence hearing on February 23 that the attack was likely wider, more complex, and harder to trace than previously known. The executives said the attack, which compromised at least nine federal agencies (including the federal courts) and numerous private companies, revealed systemic vulnerabilities in the software supply chain used by many businesses and government institutions. The AO has called upon courts to implement new security procedures to protect highly sensitive documents (HSDs) and to require litigants to file covered HSDs on paper or via secure electronic devices to be stored at the courthouse in a stand-alone computer system and not uploaded to CM/ECF. Courts also have begun to issue standing orders to address the filing of HSDs, resulting in a patchwork of policies over how HSDs are defined, given the decen-

tralization of the federal court system. For example, the Northern District of California has limited HSDs to “only a subset of sealed documents filed by the criminal division of the U.S. Attorney’s Office,” while the District Court for the District of Columbia has extended HDS coverage to a wider set of sealed documents, including those containing “closely-held trade secrets” and “other sensitive information.” A few courts have extended HSD coverage to “information likely to adversely affect” the ability of an entity to maintain cybersecurity, nonpublic intellectual property, trade secrets, or highly confidential commercial information. Some courts already had required sealed or confidential filings to be submitted through means other than the electronic system, but others, including the Federal Circuit Court of Appeals, which adjudicates patent disputes, had previously permitted it. The new HSD filing procedures have not changed federal court policies regarding public access to court records, since sealed records are confidential and not available to the public. But the challenges of the new arrangement will test public confidence in the courts and their ability to protect highly sensitive information. It also will renew concerns over public access to court proceedings, with transparency advocates arguing that judges are unnecessarily sealing court documents and important evidence in product liability, public corruption, and other cases. Others contend that privacy is critical in certain sensitive cases, including intellectual property and whistleblower disputes, including False Claims Act matters. Regardless of the public debate, court filing and records management systems will continue to remain a high-profile target for hacks and cyber-espionage, and the federal judiciary will need to remain vigilant to protect the confidentiality of nonpublic, highly sensitive information. Congress also will need to consider whether to create a federal entity to quickly examine major cyber breaches for systemic problems, as well as a mandatory reporting system paired with liability protection. Currently, there is no legal obligation for private organizations to report breaches of any kind to government agencies  March/April 2021 • THE FEDERAL LAWYER • 5

At Sidebar

A Call for Harmonization Between the Rules of Criminal and Civil Procedure By Niles S. Illich, Ph.D.

Niles Illich is a criminal-appellate attorney at Scott H. Palmer, P.C. in Dallas. He practices in the Fifth, Seventh, Ninth, and Tenth circuits; federal district courts in Texas and Maryland; and all of the state-appellate courts in Texas. Illich has filed more than 100 briefs and has participated in almost 50 oral arguments. He has represented high-profile clients—including clients charged with slavery under 18 U.S.C. § 1589—but also people convicted of routine criminal acts. Illich earned his J.D. from the University of Houston Law Center in 2009. After graduating from law school, he clerked for Hon. Evelyn V. Keyes on the First Court of Appeals in Houston, where he received a foundational education in legal writing. Illich also holds a Ph.D. in 19th-century German history.

The Federal Rules of Civil Procedure date from 1938, and the Rules of Criminal Procedure followed in the Sumners Courts Act of June 29, 1940.1 In the nearly 80 years that these rules have governed civil and criminal litigation, they have been revised numerous times. But the revisions have not emphasized harmony between the rules. This lack of harmony has resulted in important disparities between the rules. Public policy and justice encourage consideration of importing some of the procedural defenses in the civil rules into the criminal rules. This column considers two such defensive tools: challenges to the pleadings and no-evidence summary judgment.

Pleadings Rules 7 through 15 govern civil pleadings. But Rule 8, the “General Rules of Pleading,” requires that all pleadings contain “(2) a short and plain statement of the claim showing that the pleader is entitled to relief.”2 Additionally, Rule 12(b)(6) provides a defense for a “failure to state a claim upon which relief can be granted.”3 Litigation under Rule 12(b)(6) has become a convention of civil litigation.4 Statistics suggest that between 15 and 17 percent of cases asserting a claim as direct as a breach of contract—and where the plaintiff is represented by counsel—are dismissed under Rule 12(b)(6).5 The use of Rule 12(b)(6) results in careful and detailed pleadings. The U.S. Supreme Court has explained that civil pleadings must “contain enough information to state a claim to relief that is plausible on its face.”6 Thus, a complaint must allege enough facts to move the claim “across the line from conceivable to plausible.”7 Determining whether the plausibility standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”8 But in criminal cases the pleadings do not face the same scrutiny. Under Rule 7, an indictment or information “must be a plain, concise, and definite written statement of the essential facts constituting the offense … the indictment or information must give the official

6 • THE FEDERAL LAWYER • March/April 2021

or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” The criminal rules do not have an equivalent to Rule 12(b)(6) but do permit for the filing of a bill of particulars.9 But a bill of particulars falls well short of a motion under Rule 12(b)(6). First, a district court should not grant a bill of particulars if “the information sought is provided in the indictment or in some acceptable alternate form,”10 such as discovery. Further, specific information—information that might be essential to a defense—such as information about the formation of an alleged conspiracy, is not appropriate for a bill of particulars.11 Instead, a bill of particulars should be issued only where necessary: 1) to inform the accused of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise, and 2) to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense.12 A district court also has strong discretion as to whether to issue a bill of particulars—as opposed to a motion under Rule 12(b)(6) where the district court must dismiss if the pleading standards are not met.13 The practical effect is for there to be only a few motions for bills of particulars and fewer granted. These limitations on criminal pleadings result in pleadings that would never be sufficient under the civil rules. A recent pleading from the Northern District of Texas for a kidnapping charge—a charge that carries a potential life sentence—reads: On or about (SPECIFIC DATE),14 in the Northern District of Texas, the defendant (REDACTED), aided and abetted by others known and unknown to the Grand Jury, did unlawfully and willfully seize, confine, inveigle, kidnap, abduct, and carry away and hold Adult Victim 1 (“AV1”) for ransom and reward and some purpose or benefit, and did use a means, facility, and instrumentality of interstate and foreign commerce to-wit: a vehicle, specifically, a (VEHICLE), bearing VIN (REDACTED),

in committing and in furtherance of the commission of the offense. All in violation of 18 U.S.C. §§ 1201(a)(1) and (2). This is contrasted with a recent Third Circuit opinion in which the dissenting judge explained why he believed that the civil pleadings were inadequate: [Plaintiff ] also relies on the fact that one his co-employees opted to retire instead of complying with company policy. That another employee disapproved of L’Oréal’s business practice, however, does not automatically render [Plaintiff ’s] beliefs objectively reasonable. [Plaintiff ] finally maintains that his belief of wrongdoing was reasonable because L’Oréal’s own scientists admitted their inventions were not patentable. This assertion, however, is merely a bald allegation unsupported by well-pleaded facts. [Plaintiff ] neither identified the inventors who expressed such reservations nor singled out any allegedly questionable inventions. The District Court did not err in ruling that such conclusory allegations do not state a plausible claim.15 This analysis, plus the Supreme Court’s direction in Twombly and Iqbal that the pleadings must contain enough information to cross the line “from conceivable to plausible,” would immolate the criminal pleading on the kidnapping charge. Certainly, there is an argument that the Civil Rules should be reformed to reign in motions under Rule 12(b)(6), but presumably few civil litigators would support moving close to the standard that is allowed in criminal cases. And it is, of course, true that criminal cases must be presented to a grand jury and there is no similar threshold for civil cases. But the grand jury provides only a limited check and certainly does little to help a defendant prepare for trial. Thus, both civil and criminal litigants would benefit from a harmonization of the rules of procedure as they concern pleadings.

Beyond the Pleadings A consideration of harmonization between the rule should extend beyond the pleadings, however, and include matters such as discovery and summary judgment. Summary judgment in a criminal case may seem discordant, but there is no practical reason that a criminal defendant should not be able to assert a no-evidence motion for summary judgment. It is well known that more than 95 percent of federal criminal cases are resolved through entries of guilty pleas (sometimes just called pleas or plea-bargaining). This occurs in significant part because there is a structural incentive to enter a plea of guilty and to accept responsibility.16 But this percentage could be reduced by allowing defendants to file a motion similar to a motion for no-evidence summary judgment. Although unconventional, there is no policy reason to prohibit such a procedural tool. No policy could override the position that a criminal defendant should not enter a plea and admit guilt if the government cannot meet the low standard for a no-evidence summary judgment. Under the existing rules, a criminal defendant can only put the government to the burden of establishing the merits of its case through trial. Thus, a criminal defendant must choose to either enter a guilty plea without requiring the government to test its evidence or go to trial and lose credit for accepting responsibility.17 Accordingly,

the structure of the federal criminal justice system would be improved if a criminal defendant had access to a procedural tool similar to a motion for no-evidence summary judgment.

Conclusion The Constitution—by design—places barriers between an arrest and a conviction. There are few such constitutional barriers for civil cases. Accordingly, the civil rules have developed a series of procedural requirements that provide a defendant with powerful tools to avoid an adverse judgment. These procedural tools have been refined for more than 80 years and should be considered for inclusion in the Federal Rules of Criminal Procedure. 

Endnotes 18 U.S.C § 3771. Fed. R. Civ. P. 8(a)(1)-(3). 3 Fed. R. Civ. P. 11(b)(6). 4 Victor Marrero, Mission to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twombly/Iqbal, 40 Cardozo L. Rev. 2, 3 (2018) (discussing abuse of Rule 12(b) motions in context of federal-civil litigation). 5 Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions, 46 U. Rich. L. Rev. 603, 656 (2012). 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 7 Id. 8 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9 Fed. R. Crim. P. 7(f ). 10 United States v. Lonzo, 793 F. Supp. 57, 60 (N.D.N.Y. 1992). 11 United States v. Lundstrom, 880 F.3d 423, 439 (8th Cir. 2018) 12 See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). 13 Of course, a district court has the discretion to require a civil litigant to replead. 14 The Tenth Circuit has explained, “[w]e think the ‘on or about’ language contained in the indictment is consistent with this view of the evidence. But even if the date allegation contained in the indictment is incorrect, it will not bar conviction. Where time is not an essential element of the offense, it is sufficient to charge facts which show that the offense was committed within the statutory period of limitation and in such a case, even though there be a defect in the allegation as to time, it is one of form only.” Butler v. United States, 197 F.2d 561, 562 (10th Cir. 1952) (considering indictment which charged possession of an unregistered still with intent to manufacture liquor during Apr. 24 to Aug. 13, 1951); United States v. Arge, 418 F.2d 721, 724 (10th Cir. 1969); Weatherby v. United States, 150 F.2d 465, 467 (10th Cir. 1945); 1 C. Wright, Fed. Prac. & Proc. § 125 (1982 2d ed.).” United States v. Young, 862 F.2d 815, 818-19 (10th Cir. 1988) 15 Trzaska v. L’Oreal USA, Inc., 865 F.3d 155, 167 (3d Cir. 2017). (Internal citations removed.) 16 The so-called acceptance of responsibility in the Sentencing Guidelines. 17 Of course, under Rule 16(a), the government must produce discovery and “muster” its evidence, but that evidence is not tested before the court. 1 2

March/April 2021 • THE FEDERAL LAWYER • 7

Focus on Indian Law

When Congress Forgets: Breaking Through Congress’s Failure to Mention Indian Tribes in Federal Employment Laws By Kaighn Smith Jr.

Kaighn Smith Jr. is a shareholder with Drummond Woodsum’s Tribal Nations Practice Group and currently serves as the Distinguished Practitioner in Residence Fellow at Cornell Law School. He represents Indian tribes and their enterprises in federal, state, and tribal courts across the country. Smith is an associate reporter (along with Matthew Fletcher and Wenona Singel) for the American Law Institute’s Restatement of the Law of American Indians and the author of Labor and Employment Law in Indian Country (2011), the next edition of which is expected this year.

Congress’s enactment of the Families First Coronavirus Response Act (FFCRA) on April 1, 2020, is a stark reminder that Indian tribes are often invisible to Congress when it enacts sweeping employment laws. Such invisibility dates as far back as the National Labor Relations Act of 1935 (NLRA). And it persists in a host of other laws, including the Fair Labor Standards Act, the Occupational Safety and Health Act (OSHA), the Family Medical Leave Act, and the Age Discrimination in Employment Act. Congress should know that whenever it addresses whether to apply its employment laws to the other two sovereigns (the federal and state governments), the “third sovereign” (federally recognized Indian tribes)1 should be right on its radar. It is a sad commentary on the branch with constitutional “plenary authority” over Indian affairs that Congress so often forgets. Of course, such congressional silence ultimately breeds litigation when employees of Indian tribes want the remedies of the “silent” federal laws in question. While, absent a waiver, sovereign immunity bars suits by these employees against tribes, it is no bar to lawsuits by federal agencies. The federal courts have struggled to figure out what to do in the face of such congressional silence. They have been split on the rule for over 35 years, so it is just a matter of time before the Supreme Court decides the question. This article reviews the emergence of this split and examines the fallacy of one side of it: the rule generated by an infirm decision of the Ninth Circuit that has been uncritically followed by the Second, Sixth, and Seventh Circuits and, because of its infirmity, leads to line drawing on the basis of race. The counter rule, adopted by the Tenth and Eighth Circuits, is true to the fundamental principles of federal Indian law and implicates no such line drawing.

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The Continuing Problem: A Few Examples of Congress Forgetting The FFCRA requires “covered employers” to give paid leave to employees affected in specific ways by the COVID-19 pandemic and provides such employers (other than state and federal governments) with offsetting tax credits. From the face of the FFCRA, it is impossible to discern whether Indian tribes2 are “covered employers.” FFCRA defines “covered employer” as “any person engaged in commerce or in any industry or activity affecting commerce.”3 This includes a “private entity or individual [that] employs fewer than 500 employees” and “a public agency or any other entity that is not a private entity or individual [that] employs 1 or more employees.”4 Indian tribes are governments, not private entities.5 They might be considered public agencies, but the FFCRA adopts the Fair Labor Standards Act definition of “public agency”: “the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States … a State, or a political subdivision of a State; or any interstate governmental agency.”6 Indian tribes do not fit any of these categories. So as the pandemic unfolded, tribes across the country were left in the dark about whether they should pay employees who take leave for the qualifying COVID-19 events, and if they did, whether they could obtain the tax credits. The invisibility of Indian tribes in Congress’s employment laws is particularly odious when it is clear that Congress intended to exempt sovereign governments from the law but simply forgot to say anything about tribes. Indeed, if Congress intended to exclude governments from the sweep of an employment law but forgot to mention Indian tribes, it hardly seems appropriate to impose the law on tribes: they are simply the overlooked “third sovereign.”

The NLRA and OSHA are two such laws: they define “employer” to exclude the federal and state governments but say nothing about Indian tribes.7 Although 1) the NLRA is universally understood to govern employers in the private sector, not in the public sector, and 2) the generation of governmental revenues through gaming by Indian tribes is as much a governmental undertaking as is the operation of a lottery by a state government,8 federal courts have imposed the NLRA upon the gaming operations of Indian tribes because they appear more “commercial” than governmental.9 Likewise, while OSHA on its face applies to private sector employers, not public sector employers, federal courts have imposed OSHA upon enterprises wholly owned and controlled by Indian tribes to generate revenues and economic development;10 they would never do the same for an equivalent state enterprise, like a state-owned cement plant.11

The Circuit Split The circuit split on the approach to whether a federal labor/employment law that is silent about its application to Indian tribes arose in the mid-1980s between the Tenth and Ninth Circuits. In Donovan v. Navajo Forest Products Industries,12 the Tenth Circuit addressed whether OSHA applied to Navajo Forest Products Industries (NFPI), a timber enterprise of the Navajo Nation with 650 employees, including 25 “non-Indian” individuals. The Department of Labor relied on dicta from a 1960 Supreme Court decision, Fed. Power Comm’n v. Tuscarora Indian Nation,13 where the Court said, “it is now well settled … that a general statute in terms applying to all persons includes Indians and their property interests.” The Tenth Circuit rejected the argument. First, it held that the Navajo treaty provision that the “[o]nly federal personnel authorized to enter the reservation are those specifically so authorized to deal with Indian affairs” precluded application of OSHA to NFPI.14 Second, it found that the Supreme Court’s decision in Merrion v. Jicarilla Apache Tribe,15 confirming the inherent authority of Indian tribes to exclude nonmembers from their reservations and to regulate their activities while they remain, overruled whatever force the Tuscarora dicta had.16 Thus, the Tenth Circuit said that, absent a clear expression of congressional intent, “we shall not permit divestiture of the tribal power to manage reservation lands so as to exclude non-Indians from entering thereon”; OSHA’s silence would not do.17 Three years later, in Donovan v. Coeur d’Alene Tribal Farm,18 the Ninth Circuit held that OSHA applied to a farm owned and operated by the Coeur d’Alene Tribe, employing 20 workers, some of whom were “non-Indian.” The court framed the issue with a presumption of applicability: No one doubts that the Tribe has the inherent sovereign right to regulate the health and safety of workers in tribal enterprises. But neither is there any doubt that Congress has the power to modify or extinguish that right .… The issue raised on this appeal is whether … congressional silence should be taken as an expression of intent to exclude tribal enterprises from the scope of an Act to which they would otherwise be subject.19 Because OSHA is silent with respect to Indian tribes, it is hard to understand why the court would say that the Coeur d’Alene Tribal Farm was “subject” to the Act. In any event, the Ninth Circuit took as its starting point the

above-referenced Tuscarora dicta advocated by the Department of Labor but did not actually follow it. Instead, it invented three exceptions under a formulation developed by a single Ninth Circuit judge in a concurring opinion in a 1980 criminal case, United States v. Farris:20 A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations ….” In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them.21 There was no treaty at stake to invoke the second exception and no legislative history pertinent to the third. Thus, the only possible exception to the presumption of applicability was the first exception. The court said that “the tribal self-government exception is designed to except purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations from the general rule that otherwise applicable federal statutes apply to Indian tribes.”22 It then concluded, “[b]ecause the Farm employs non-Indians as well as Indians, and because it is in virtually every respect a normal commercial farming enterprise, we believe that its operation free of federal health and safety regulations is ‘neither profoundly intramural ... nor essential to self-government.’”23 The Ninth Circuit then made clear that it disagreed with the Tenth Circuit’s approach, to the extent that it relied upon Merrion and the protection of the Navajo Nation’s inherent sovereignty.24 For the last 35 years, the Ninth Circuit’s Coeur d’Alene Tribal Farm formulation has been followed, without close examination, by the Second, Sixth, and Seventh Circuits. The Tenth and the Eighth Circuits have rejected it, instead taking the position that if imposition of a federal employment law of general application to an Indian tribe would impinge upon the tribe’s sovereign authority, the law will not apply absent a clear expression of intent by Congress.25

Assessing the Split The Shaky Foundation of the Coeur d’Alene Tribal Farm Formulation Perhaps it is in nature of common law that some rules seem to develop by accident. Or perhaps what has happened here reflects an attitude within the judiciary once attributed to the late Justice Antonin Scalia that, “when it comes to Indian law, most of the time we’re just making it up.”26 Either way, that appears to be the case for the Coeur d’Alene Tribal Farm formulation. Just to say it in advance: the Tuscarora dictum upon which this formulation rests has nothing to do with the application of federal laws to Indian tribes; it has to do with the application of federal laws to individual citizens of Indian tribes. The same is true with the Farris case. This fundamental flaw in the formulation’s genesis undermines its legitimacy. Fed. Power Comm’n v. Tuscarora Indian Nation27 involved a challenge by the Tuscarora Indian Nation (“the Nation”) to the flooding of 1,000 acres of land owned by the Nation in fee simple for a hydroelectric project in upstate New York. The Nation argued March/April 2021 • THE FEDERAL LAWYER • 9

that it should escape the Federal Power Act’s authorization for eminent domain over “the lands or property of others necessary to the construction, maintenance, or operation of ” the project in light of the Supreme Court’s 1884 decision in Elk v. Wilkins.28 In Wilkins, the Court held that an individual tribal citizen did not have the right to vote. In 1884, tribal citizens were not citizens of the United States, and the Wilkins Court rejected the individual’s asserted voting right, stating a rule at the time that “[g]eneral acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.”29 In 1960, of course, tribal citizens could also be citizens of the United States. Thus, the Tuscarora Court responded with dicta: “[h]owever that may have been,” the Court said, “it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests.”30 As noted above, Farris was a criminal case involving the application of federal criminal laws to individual tribal citizens. They argued that they could not be prosecuted under the Organized Crime Control Act, 18 U.S.C. § 1955, for running illegal gambling operations through Indian country. In his concurring opinion, Judge Choy never mentioned Tuscarora. He simply responded to the individuals’ assertion “that § 1955 does not apply to them,” stating “federal laws generally applicable throughout the United States apply with equal force to Indians on reservations” and citing cases holding that various criminal statutes apply to individual tribal citizens.31 Then, Judge Choy wrote that “there seem to be three exceptions to [the rule that federal laws generally apply with equal force to Indians on reservations].”32 First, reservation Indians may well have exclusive rights of self-governance in purely intramural matters …. Second, it is presumed that Congress does not intend to abrogate rights guaranteed by Indian treaties when it passes general laws …. Finally, if appellants could prove by legislative history or some other means that Congress intended § 1955 not to apply to Indians on their reservations, we would give effect to that intent.33 Judge Choy was not joined in these musings by then Judge Anthony Kennedy or by Judge James Browning, the other two judges on the three-judge panel. But the important point is that, just like the Tuscarora dictum, these musings emerge in a case involving the application of general federal laws to individuals, not to Indian tribes or their sovereign instrumentalities. This is of no small import. The imposition of federal or state law (those of the other two sovereigns) upon an Indian tribe (the third sovereign) immediately implicates the sovereign interests of the latter; it is an assertion of outside authority upon a sovereign government.

The Fundamentals Fundamental principles of federal Indian law concerning the nature of tribal sovereignty inform this problem. First, absent a clear expression of intent by Congress, the Supreme Court will not infer that Congress’s acts abrogate or diminish (a) an established attribute of inherent tribal sovereignty (the retained governmental powers of tribes),34 (b) a right confirmed by a treaty,35 or (c) the boundaries of an established reservation.36 The conservation of these powers, rights, and boundaries are critical to 10 • THE FEDERAL LAWYER • March/April 2021

the stability of Indian tribes as functioning tribal governments. Second, within their territories, Indian tribes have inherent sovereign authority to govern employment relations involving their own tribal citizens as well as those involving the tribe itself or arms of the tribe. That power is the same whether the employees are tribal citizens or nontribal citizens.37 Indeed, when a nontribal citizen enters an Indian reservation or trust lands for employment, the tribe retains power to regulate the terms and conditions upon which that individual remains.38 The leading treatise in the field describes this power as “intimately tied to a tribe’s ability to protect the integrity and order of its territory and the welfare of its members, it is an internal matter over which the tribes retain sovereignty.”39 Even on fee lands owned by a nontribal member within the exterior boundaries of an Indian reservation, tribes retain inherent power to regulate contractual relationships between nontribal citizens and the tribe,40 and an employment relationship is just that.41 Third, given Congress’s constitutional plenary authority over Indian affairs, adjustments to address any perceived injustices involving the employment relations that Indian tribes have inherent sovereign authority to govern must be left to Congress.42 Given these fundamentals, the flaws of the Coeur d’Alene Tribal Farm formulation are clear. The imposition of silent federal employment laws upon Indian tribes abrogates their sovereign authority over employment relations within their territories without the requisite evidence of clear congressional intent. And this is so whether the employment involves tribal members or nontribal members. It is not up to the judiciary to fill any gaps left by Congress. Any abrogation of tribal sovereignty is up to Congress, and its silence will not suffice. In short, the Tenth and Eighth Circuits have it right.

Racial Distinctions Implicit in the Coeur d’Alene Tribal Farm Formulation Perhaps because it is divorced from fundamental principles of federal Indian law, the Coeur d’Alene Tribal Farm formulation leads to the drawing of lines on the basis of race. Recall that under this formulation there is an exception to the presumption of applicability (derived from the Tuscarora dictum) if the silent federal employment law “touches upon exclusive rights of self-governance in purely intramural matters.” This invariably leads courts to consider whether a given tribal employment setting involves the employment of tribal members only or the employment of an appreciable number of “non-Indians.” If an Indian tribe employs “non-Indians,” the logic goes, application of the silent law in question will not affect “purely intramural matters”; so the exception cannot operate, and the silent federal law applies.43 These same courts often overlook the Supreme Court decisions that confirm the sovereign authority of Indian tribes to govern their employment relations with nontribal citizens; they wrongly posit notions like “non-Indians are not subject to tribal jurisdiction”44 or that “limitations on tribal authority are particularly acute where non-Indians are concerned.”45 The bizarre result is that the “protections” perceived to be available to employees under these silent federal laws in the tribal employment setting operate when “non-Indians” proliferate the workforce, but not if the workforce is made up only of “Indians.” The rule purports to protect a category of employees on the basis of their race, as “non-Indians.” The truth of the matter is that Indian tribes should, and readily do, judge for themselves what laws to

adopt to protect their workforces.46 Thus, the Coeur d’Alene Tribal Farm “exception,” preventing the application of silent federal laws when “purely intramural matters” are at stake, also plays right into a defunct stereotype: that Indian tribes cannot be trusted to treat “non-Indians” fairly. Until Congress acts with clarity, Indian tribes retain their inherent sovereign authority over employment relations within their territories, free from abrogation by federal agencies. When and if the matter reaches the Supreme Court, the Coeur d’Alene Tribal Farm formulation should be rejected, and the standard embraced by the Tenth and Eighth Circuits should prevail. 

Endnotes See Justice Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 1 (1997). 2 The term “Indian tribe” as used in this article encompasses federally recognized Indian tribes and “arms of tribes,” enterprises imbued with tribal sovereign immunity that tribes own and control to generate government revenues. See Allen v. Gold Country Casino, 464 F.3d 1044, 1046-47 (9th Cir. 2006). 3 29 C.F.R. § 826.10(a)(i)(A). The inclusion of the broad term “person” in the statutory definition hardly encompasses Indian tribes because “in common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). 4 29 C.F.R. § 826.10(a)(i)(A)(2). 5 Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014). 6 29 C.F.R. § 826.10(a). 7 See 29 U.S.C. §§ 152, 652. 8 “[T]ribal business operations are critical to the goals of tribal selfsufficiency because such enterprises in some cases ‘may be the only means by which a tribe can raise revenues.’” Bay Mills Indian Cmty., 572 U.S. at 810 (Sotomayer, J., concurring) (quoting Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 169 (2004)). No doubt similarly situated state entities would be exempt from the NLRA and subject only to a state’s public sector labor laws. Cf. N.Y. City Off-Track Betting Corp. v. Local 2021, Am. Fed’n of State, Cnty. & Mun. Emps., 416 N.Y.S.2d 974 (N.Y. Sup. Ct. 1979) (finding that off-track betting facility operated to generate state revenues and thus governed by state’s public-sector labor laws); Mass. Gen. Laws ch. 150E, §§ 1-3 (2020) (demonstrating state lottery subject to state’s public-sector labor laws). 9 See Pauma v. NLRB, 888 F.3d 1066, 1077 (9th Cir. 2018); San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). But see NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537, 556-563 (6th Cir. 2015) (McKeague, J., dissenting) (stating that absent evidence of congressional intent to the contrary, the NLRB’s restrictions on Little River Band of Ottawa Indians interfere with tribal sovereignty); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) (en banc) (rejecting challenge to Pueblo’s right to work law as applied to lumber mill owned by nontribal entity within the Pueblo). 10 See, e.g., Menominee Tribal Enters. v. Solis, 601 F.3d 669 (7th Cir. 2010); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). But see Scalia v. Red Lake Nation Fisheries, Inc., 982 F.3d 533 (8th Cir. 2020) (finding tribe’s reservation fishing enterprise was not 1

subject to OSHA); Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709 (10th Cir. 1982) (holding tribe’s reservation timber enterprise was not subject to OSHA). 11 Cf. Reeves, Inc. v. Stake, 447 U.S. 429, 441 (1980) (discussing importance of state-owned cement plant for economic development). 12 692 F.2d 709 (10th Cir. 1982). 13 362 U.S. 99 (1960). 14 692 F.2d at 711-12. 15 455 U.S. 130 (1982). 16 692 F.2d at 713. 17 Id. at 714. 18 751 F.2d 1113 (9th Cir. 1985). 19 Id. at 1115. 20 624 F.2d 890 (9th Cir.1980), superseded by statute, Indian Gaming Regulatory Act of 1988, Pub. L. No. 100-497, 102 Stat. 2467, as recognized in United States v. E.C. Invs., Inc., 77 F.3d 327 (9th Cir. 1996). 21 Coeur d’Alene Tribal Farm, 751 F.2d at 1116 (quoting Farris, 624 F.2d at 893-94). 22 Id. 23 Id. . 24 Id. at 1117, n.3. 25 See Scalia v. Red Lake Nation Fisheries, Inc., 982 F.3d 533, 535 (8th Cir. 2020); Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1284 (10th Cir. 2010). 26 See Matthew L.M. Fletcher, Montana Native Law Student Recall Babbitt v. Youpee and Meeting Justice Scalia, Turtle Talk (Feb. 18, 2016) https://turtletalk.blog/2016/02/18/montana -native-lawstudent-recalls-babbitt-v-youpee-and-meeting-justice-scalia/. 27 362 U.S. 99 (1960). 28 Id. at 115-16 (quoting Federal Power Act, 16 U.S.C. § 796(2); and citing Elk v. Wilkins, 112 U.S. 94 (1884)). 29 112 U.S. at 100. 30 362 U.S. at 116. 31 624 F.2d at 893. 32 Id. 33 Id. 34 See Bay Mills Indian Cmty, 572 U.S. at 790. 35 See United States v. Dion, 476 U.S. 734, 738 (1986). 36 See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). 37 See Bay Mills Indian Community, 572 U.S. at 788-790 (“[U]nless and ‘until Congress acts, the tribes retain’ their historic sovereign authority”) (citing United States v. Wheeler, 435 U.S. 313, 323 (1978)). See generally Restatement of Law of American Indians § 20, cmt. C (Am. L. Inst., Tentative Draft No. 2, 2018) (“[T]ribes retain authority over members or citizens”); Id. at § 34 (“Indian tribes retain authority to regulate the conduct of nonmembers on Indian lands, except when a federal statute divests an Indian tribe of that authority or when tribal authority conflicts with an overriding national interest”). 38 See Merrion, 455 U.S. at 144-45. 39 Cohen’s Handbook of Federal Indian Law § 4.01[2][e] at 221 (Nell Jessup Newton et al. eds., 2012). 40 Montana v. United States, 450 U.S. 544, 565-66 (1981). 41 See Knighton v. Cedarville Rancheria of Northern Paiute Indians, 918 F.3d 660, 673 (9th Cir. 2019). 42 See, e.g., Bay Mills Indian Cmty., 572 U.S. at 803 (examining the March/April 2021 • THE FEDERAL LAWYER • 11

principle that Congress, not the Court, holds responsibility for the abrogation of tribal sovereignty); Williams v. Lee, 358 U.S. 217, 223 (1959) (clarifying that only Congress can grant state court authority that would infringe upon the inherent sovereignty retained by Indian tribes to adjudicate claims arising within their reservations). 43 See, e.g., Little River Band of Ottawa Indians, 788 F.3d at 543-544; Mashantucket Sand & Gravel, 95 F.3d at 180; Coeur d’Alene Tribal Farm, 751 F.2d at 1116. 44 Menominee Tribal Enters., 601 F.3d at 670; Merrion, 455 U.S. at 14445; Montana, 450 U.S. at 565-66. 45 Mashantucket Sand & Gravel, 95 F.3d at 180; see also Little River Band of Ottawa Indians Tribal Government, 788 F.3d at 546 (describing tribal power over non-members as being at the “periphery” of “inherent tribal sovereignty”); Merrion, 455 U.S. at

144-45; Montana, 450 U.S. at 565-66. See, e.g., Jamestown S’Klallam Tribe Tribal Code, tit. 3 Labor Code, https://jamestowntribe.org/wp-content/ uploads/2018/05/Title_03_Labor_Code_9_12_14.pdf (last visited Jan. 31, 2021); Mashantucket Pequot Tribal Nation Employment Rights Code, tit. 31, http://www.mptnlaw. com/laws/Single/TITLE%2031%20MASHANTUCKET%20 EMPLOYMENT % 20RIGHTS%20LAW%20(MERO).pdf (last visited Jan. 31, 2021); Little River Band of Ottawa Indians Fair Employment Practices Code, Ordinance #05-600-03 ( July 28, 2010), www.lrboi-nsn.gov/images/docs/council/docs/ ordinances/Title 600-03.pdf (lrboi-nsn.gov) (last visited Jan. 31, 2021).

President's Message continued from page 4

Ch. 4 (1748). (“Liberty is a right of doing whatever laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.”) The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, the 18th century French social and political philosopher. His treatise on political theory and jurisprudence, more than twenty years in the making, is one of the great works in the history of political thought, inspiring both the Declaration of the Rights of Man and of the Citizen in France and the U.S. Constitution. 4 Montesquieu declared that there is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice. It was avowedly for the public good that Socrates was put to death, that the Puritans were driven from England, and that French revolutionaries sent thousands to the guillotine. The fact that a people rule through self-government is certainly no guarantee that liberty will prevail. The citizens of Greek and Roman republics possessed public rights, but no individual rights in the modern sense. The U.S. Bill of Rights was intended as a limitation of the “sovereignty of the people” and their representative government in favor of the liberty of all the people. 5 Montesquieu, supra note 3. 6 These two aspects of liberty may be referred to by multiple names, including “Liberty of the Will” or philosophical liberty versus civil liberty or social liberty, the latter concerning the limits of power that are exercised by society (i.e. government) over the individual in order to achieve societal security. Note that extremes in either form of these two aspects of liberty naturally lead to anarchy or totalitarianism, respectfully, and abate true liberty. 7 John Adams, Thoughts on Government 1 (1776). https://www.nps. gov/inde/upload/Thoughts-on-Government-John-Adams-2.pdf (“[A]s the divine science of politics is the science of social happiness, and the blessings of society depend entirely on the constitutions of government, which are generally institutions that last for many generations, there can be no employment more agreeable to a benevolent mind than a research after the best.”) Montesquieu believed that a nation having political liberty as the direct end of its constitution, if its principles were sound, would achieve liberty in its highest perfection. Montesquieu, supra note 3, at Book XI, Ch. 5. 12 • THE FEDERAL LAWYER • March/April 2021

John Adams, Letter to Count de Sarsfield (Feb. 3, 1786), https:// founders.archives.gov/documents/Adams/99-01-02-0493. 9 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) ( Jackson, J., concurring). 10 Thomas Jefferson, Letter to George Hay ( June 20, 1807), http:// www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomasjefferson/jefl180.php. 11 Thomas Jefferson, Letter to James Madison ( Jan. 22, 1797) https:// www.loc.gov/resource/mtj1.020_1107_1108/?sp=1&st=text (emphasis added). 12 The Federalist No. 71 (Alexander Hamilton). 13 The Federalist No. 78 (Alexander Hamilton). 14 George Washington, Farewell Address (1796) https://www. ourdocuments.gov/doc.php?flash=false&doc=15&page=transcript (emphasis added). 15 Id. 16 Montesquieu, supra note 3, at Book XI, Ch. 20. 8

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Resolution Resources

Do You Know How to Obtain Third-Party Discovery in Arbitration? By Janice L. Sperow

Janice Sperow is a full-time arbitrator, mediator, hearing officer, and prevention facilitator. She serves on various American Arbitration Association and International Institute for Conflict Prevention & Resolution panels. Sperow serves as a neutral for the San Diego Superior Court (where she sits as a judge pro tem), the Financial Industry Neutral Regulatory Authority, Resolute Systems, the FORUM, the World Intellectual Property Organization, the National Futures Association, the National Association of Arbitrators and Mediators, and the Better Business Bureau. Sperow is a member of National Academy of Distinguished Neutrals and serves as hearing officer for the Port of San Diego and the City and County of San Francisco. She is a former president of the National Association of Women Lawyers, vice president of California Women Lawyers, and member of Arbitral Women and ABA Dispute Resolution and Business Law Sections.

Most practitioners, and even arbitrators, assume arbitrators have the inherent power to issue third-party discovery subpoenas to obtain document discovery in domestic arbitrations. But do they? The answer may surprise you. Like many lawyer answers, the answer is, “it depends.” It depends on your jurisdiction, the applicable arbitral code, and the parties’ arbitration agreement. In July 2020, California aligned itself with the Ninth Circuit and the growing number of other state and circuit courts holding that the Federal Arbitration Act (FAA) and state analogs do not empower arbitrators to issue third-party discovery subpoenas in domestic arbitrations.1

The FAA Subpoena Power The FAA empowers arbitrators to “summon in writing any person to attend before them” as a witness and “in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.”2 The statute thus contemplates arbitrator power to issue a subpoena for third-party attendance at the merits hearing and to compel the third-party production of documents at that hearing. The courts have grappled with the question of whether this power also includes the authority to subpoena third parties and their documents before the hearing. The courts have examined this question of compelled third-party discovery in arbitration, and they are split.

The Majority View In 2017, the Ninth Circuit joined the Second and Third Circuits in holding that the FAA does not grant an arbitrator subpoena power to order prehearing discovery from third parties. In CVS Health Corp. v. Vividus, LLC., a pharmaceutical company filed suit in New York state court against various pharmacy benefit managers.3 The New York court ordered arbitration or litigation in separate proceedings based on the dispute resolution and forum selection clauses in the parties’ preexisting agreements. One pharmacy involved in one of the litigations produced documents to the pharmaceutical company pursuant to a protective

order. The pharmaceutical company wanted to use those same documents in another state’s arbitration, so it requested a subpoena. The arbitrators granted the request and directed the pharmacy to produce the documents in advance of the actual hearing date. The pharmaceutical company filed a motion to enforce the subpoena with the district court when the pharmacy did not respond. The district court concluded that the arbitrators did not have discovery subpoena authority under the FAA, and the pharmaceutical company appealed. The Ninth Circuit found that “under the FAA an arbitrator is not necessarily vested with the full range of discovery powers that the courts possess.” Ultimately, the Ninth Circuit agreed with the district court based upon the FAA’s “clear statutory language.” The court explained that the FAA gives arbitrators only two express powers: (1) the power to compel the attendance of persons to appear as witnesses at a hearing before them; and (2) the power to compel those persons to bring documents with them to the hearing. Relying on a textual reading of the statute, the court explained that section 7 limits an arbitrator’s power to compel the production of documents to production at an arbitration hearing. The court noted that the phrase “bring with them” referred to the arbitrator’s power to summon a witness before the arbitrator at a hearing. Under this framework, any document productions ordered against third parties can happen only “before” the arbitrator. “The text of section 7 grants an arbitrator no freestanding power to order third parties to produce documents other than in the context of a hearing.” The court therefore concluded the FAA does not authorize arbitrators to issue document-only subpoenas to third parties “outside of a hearing.”4 The Second Circuit had already reached the same conclusion in 2008. In Life Receivables Tr. v. Syndicate 102 at Lloyd’s of London, the Second Circuit analyzed all the decisions on the issue and noted the “emerging rule” that the FAA confers no third-party discovery subpoena power upon arbitrators.5 The court found section 7’s language straightforward and unambiguous: “[d]ocuments are only discoverable in arbitration March/April 2021 • THE FEDERAL LAWYER • 13

when brought before arbitrators.”6 Similarly, in Hay Group, Inc. v. E.B.S. Acquisition Corp., then-Judge, now U.S. Supreme Court Justice Alito, writing on behalf of the Third Circuit, found that section 7 “speaks unambiguously to the issue” and concluded that the “power to require a non-party ‘to bring’ items ‘with him’ clearly applies only to situations in which a non-party accompanies the items to the arbitration proceedings, not to the situations in which items are simply sent or brought by a courier.”7 But, despite what the Second, Third, and Ninth Circuits consider to be clear statutory language, not all circuits agree.

The Minority View Some commentators consider the split even, with the Second, Third, and Ninth Circuits on one side and the Fourth, Sixth, and Eighths Circuits on the other side. In actuality, only the Eighth Circuit disagrees directly with the majority view. In In re Security Life Insurance Co. of America, the Eighth Circuit held that “implicit in an arbitration panel’s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing.” The court stated that this implicit power furthered the goal of facilitating efficient resolution of disputes by allowing parties to “review and digest” documents before hearings. However, even the Eighth Circuit acknowledged that section 7 “does not . . . explicitly authorize the arbitration panel to require the production of documents for inspection by a party.”8 Similarly, in a case involving an interpretation of section 301 of the Labor-Management Relations Act, the Sixth Circuit noted that “courts may look to the FAA for guidance in labor arbitration cases,” and it followed decisions from district courts interpreting section 7 as implicitly allowing pre-hearing document discovery from third parties. However, the decision is limited to the labor arbitration context.9 Likewise, the Fourth Circuit has provided for third-party discovery in “unusual circumstances.” But its decision does not support arbitrator power to issue third-party pre-hearing subpoenas. In COMSAT Corp. v. Nat’l Sci. Found., the Fourth Circuit allowed third-party document subpoenas pre-hearing pursuant to the FAA upon a showing of “special need or hardship.” However, the Fourth Circuit did not define “special need” and instead left open the question of what precisely a party must show to establish “special need or hardship.” Importantly, however, the court never held that the FAA empowered the arbitrator to issue the subpoena. Instead, it opined that “a party might, under unusual circumstances, petition the district court to compel pre-arbitration discovery upon a showing of special need or hardship.” Thus, the Fourth Circuit appears to assume that only district courts would have such power, not arbitrators. Finally, the court, like its sister circuits, explicitly acknowledged that “[n]owhere does the FAA grant an arbitrator the authority to order non-parties to appear at depositions, or the authority to demand that non-parties provide the litigating parties with documents during prehearing discovery.”10

California Joins the Fray On July 16, 2020, the California Court of Appeal held in Aixtron v. Veeco Instruments, as an issue of first impression, that arbitrators do not have the statutory power to issue pre-hearing discovery subpoenas to third parties unless authorized by the applicable arbitration provision. Specifically, the court held that neither the FAA nor 14 • THE FEDERAL LAWYER • March/April 2021

the California Arbitration Act (CAA) grant an arbitrator subpoena power to order prehearing discovery from third parties if the parties to the arbitration did not provide for such discovery rights in their arbitration agreement.11 In Aixtron, an employee resigned from his position to work for a competitor. The former employer commenced arbitration proceedings against the employee for data theft pursuant to an arbitration clause. The arbitrator issued a pre-hearing discovery subpoena for the current employer’s business records, which the current employer challenged. The court concluded that the arbitrator did not have the authority to issue pre-hearing subpoenas to third parties under either the CAA or the FAA. Aixtron confirmed that the CAA limits the right to discovery in arbitration. While the California Code of Civil Procedure (CCP) section 1283.05 incorporates the California Discovery Act and authorizes discovery as if the arbitration “were pending before a superior court,” this authorization is only conferred if (1) the dispute arises out of claims for wrongful death or for personal injury; or (2) the arbitration provision so provides. Because the arbitration provision In Aixtron did “not mention the California Discovery Act or section 1283.05, or even contain the word discovery,” the court held that the pre-hearing subpoenas were not authorized. Thus, while arbitration provisions can create enforceable rights for full discovery by stating, for example, that the arbitration shall provide for discovery “pursuant to the California Discovery Act” or “pursuant to CCP § 1298.05,” they must explicitly do so.12

Other Related Misconceptions Many practitioners also assume that they can issue a subpoena in arbitration, much as they would in litigation. Wrong. They also assume that the scope of third-party subpoenas extends to all matters “reasonably calculated to lead to the discovery of admissible evidence.” Wrong again. In arbitration, only the arbitrator or panel majority can issue a subpoena, not the practitioner.13 Likewise, the scope of third-party subpoenas is narrower than typical discovery. Under the Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” But an arbitrator’s power under section 7 extends only to documents “which may be deemed material as evidence in the case.” Arguably, material evidence encompasses a narrower bandwidth than relevant discovery.

Practical Considerations and Takeaways Some arbitrators have permitted a convenient workaround to the third-party discovery quandary. Sympathetic arbitrators have been known to commence a hearing simply to facilitate document production. Indeed, the Second Circuit seemed to expressly endorse this workaround in Stolt-Nielsen SA v. Celanese AG.14 In Stolt, respondent objected to a “trial-like arbitration hearing” as a mere ruse to compel discovery in advance of a “merits hearing” and “a thinly disguised effort to obtain pre-hearing discovery.” Stolt pointed out that the arbitrators made the subpoena returnable during the period that they had scheduled for fact depositions, months in advance of the “hearing on the merits.” Stolt argued that claimants and the arbitration panel conspired to “circumvent Section 7’s limitations through the contrivance of conducting its discovery in the presence of the arbitrators.”

The Second Circuit disagreed and essentially laid out a roadmap for properly obtaining third-party discovery in domestic arbitrations. First, the presence of one arbitrator will sufficiently convert the session from a deposition to a hearing.15 Second, the arbitrators heard testimony and ruled upon evidentiary issues. Third, the testimony became part of the arbitration record, to be used by the arbitrators in their determination. The court concluded that the FAA does not deny arbitrators the power to summon witnesses to a hearing under such circumstances. The court did not worry that the session occurred months before the main hearing because “[n]othing in the language of the FAA limits the point in time in the arbitration process when [the subpoena] power can be invoked or says that the arbitrators may only invoke this power under section 7 at the time of the trial-like final hearing.” To the contrary, the Second Circuit found the language of Section 7 broad, limited only by the requirement that the witness be summoned to appear “before [the arbitrators] or any of them” and that any evidence requested be material to the case. So, putting the case law together, practitioners have a couple of procedurally correct options to obtain the third-party discovery they need in domestic arbitrations. First, they can revise their arbitration agreements to incorporate Aixtron’s suggested language and explicitly endow arbitrators with third-party discovery subpoena power. Second, they can convene a hearing for the purposes of securing the necessary evidence. While the second option may have presented a costly method of getting documents just last year (think travel time, hourly rates, room charges, hearing fees, and more), with the prevalence of remote hearings, this option becomes much more attractive in the appropriate case. Moreover, given the choice between appearing at a hearing for the sole purpose of producing documents at a time and place dictated by the arbitrator versus producing the documents at a mutually agreeable time, location, and format, third parties may choose the cooperation route. And here’s a final question to ponder: on whichever side of the circuit split you sit, what does it mean to “bring documents” with

you to the hearing in the modern digital age? The FAA, enacted in 1925, certainly did not contemplate cloud computing, e-discovery, electronically stored information (ESI), augmented reality, artificial intelligence, machine learning, remote hearings, software generated documents, smart contracts, and other issues surrounding modern day “documents.” Must a third party bring ESI, its software, and its computer to the hearing as well? Does the arbitrator have the power to compel the third party to do so? Hmmm, time to dust off your arbitration clauses. 

Endnotes For an excellent and insightful article on this issue, see Theodore K. Cheng, Nonparty Discovery in Domestic Arbitration Proceedings (U.S.), Lexis Practical Guidance (Oct. 2020). 2 Federal Arbitration Act, 9 U.S.C. § 7. 3 CVS Health v. Vividus, 878 F.3d 703, 706 (9th Cir. 2017). 4 Id. 5 Life Receivables v. Syndicate, 549 F.3d 210, 215-16 (2d Cir. 2008). 6 Id. at 216. 7 Hay Group v. E.B.S., 360 F.3d 404, 407 (3d Cir. 2004). 8 In re Security, 228 F.3d 865, 870-71 (8th Cir. 2000). 9 Am. Fed’n of Tel. & Radio Artists v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999). 10 COMSAT v. Nat’l Sci. Found., 190 F.3d 269, 275-76 (4th Cir. 1999) (emphasis added). 11 Aixtron v. Veeco Instruments, 52 Cal. App. 5th 360 (2020). 12 See also Life Receivables, 549 F.3d at 217 (2d Cir. 2008). 13 See, e.g., Nat’l Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184, 187 (2d Cir. 1999) (Section 7 “explicitly confers authority only upon arbitrators”). 14 430 F.3d 567, 577-78 (2nd Cir. 2005). 15 Id. See also Hay Group, 360 F.3d at 407 (3rd Cir. 2004) (noting that the FAA does permit subpoenas in which “the non-party has been called to appear in the physical presence of the arbitrator and to hand over the documents at that time”). 1

Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. March/April 2021 • THE FEDERAL LAWYER • 15

In-House Insight

The Scope and Relevancy of Discovery: Another Look at Rule 26 of the Federal Rules of Civil Procedure By Stephen L. Rossetti Jr. and Erica A. Dumore

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case. Fed. R. Civ. P 26(b)(1) (emphasis added).

Introduction

Stephen L. Rossetti Jr. is a partner and Erica A. Dumore is an associate at Cetrulo LLP in Boston. Rossetti concentrates his practice on products liability, toxic tort, and premises liability litigation in state and federal courts in the Northeast. He serves on a National Coordinating Counsel team representing several companies, and in that capacity, he manages all aspects of the client’s defense, including discovery strategy. Dumore practices primarily in the areas of asbestos, products liability, and toxic tort litigation.

Federal practitioners have long used preliminary objections and preliminary statements with objections in an effort to narrow the scope of discovery. Also commonplace are objections to discovery on grounds that said discovery is “overly broad” or “unduly burdensome.” Objections citing an undue burden or an overly broad scope are frequently used in concert. The evolution of Fed. R. Civ. P. 26(b)(1) through its various amendments and recent rulings from magistrate judges on discovery disputes suggests that, although practitioners try to ensure they disclose only what is absolutely necessary in an effort to limit the costs and time associated with discovery for their clients, courts are increasingly discouraging such blanket objections and are applying a proportionality analysis to their rulings. Further, unless the objection is tied to a specific request or can be construed as such, increasingly it appears that the objection will not survive a motion to compel. This article provides a brief review of historical changes to Fed. R. Civ. P. 26 and a discussion of some recent decisions that illustrate how boilerplate and preliminary objections and relevance related discovery disputes have been treated by the courts.

The Evolution of the Treatment of Relevance and Proportionality Under Rule 26 of the Federal Rules of Civil Procedure Proportionality may be relatively new to Section (b)(1); however, the concept has long existed under Rule 26. The efforts to shift the focus of the scope of discovery toward the concept of proportionality began with the 1983 amendment, when proportionality appeared under Section (b)(2)(C)(iii).1 At that time, Rule 26(b)(1) directed the court to limit the frequency

16 • THE FEDERAL LAWYER • March/April 2021

or extent of use of discovery if it determined that “the discovery [was] unduly burdensome or expensive.”2 Rule 26 of the Federal Rules of Civil Procedure was first adopted in 1937 and has since undergone 12 substantive amendments.3 The prevalent amendments pertaining to proportionality and relevancy occurred in the years 1983, 1993, 2000, and 2015.4 In 1983, Rule 26(g) was modified under the 1983 amendment to place responsibility on the party signing a discovery request in an effort to impose shared responsibility among parties to honor the limitations of the scope of discovery.5 The 1983 Committee Note explained that the provisions were added “to deal with the problem of over-discovery,”6 further stating that its objective was to “guard against redundant or disproportionate discovery” and “to encourage judges to be more aggressive in identifying and discouraging discovery overuse.”7 In a continued effort to provide the court with broad discretion to impose additional restrictions on the scope and extent of discovery, the 1993 amendment added two key determinative factors. The first was “whether ‘the burden or expense of the proposed discovery outweighs its likely benefits.’”8 The second factor was “the importance of the proposed discovery in resolving the issues.”9 The goal of both factors was to “enable the court to keep a tighter rein on the extent of discovery.”10 The amendment also imposed formatting changes that inadvertently softened the 1983 amendment to Rule 26(b)(2) regarding proportionality.11 The 2000 amendment, in an effort to restore proportionality, added the following sentence to Section (b)(1): “All discovery is subject to the limitations imposed by Rule 26(b)(2).”12 Parallel to the proportionality efforts, the 2000 amendment also replaced “reasonably calculated” with “relevant” in a further effort to refine the scope of discovery and to prevent and limit excessive discovery.13 Finally, in 2015 proportionality was removed from Rule 26(b)(2)(C)(iii) and restored to Rule 26(b)(1) defining the scope of discovery.14 The 2015 Committee

Notes state that this restoration of proportionality “does not change the existing responsibilities of the court and the parties” nor does it permit opposing parties to refuse discovery under a boilerplate objection that it is not proportional.15 “The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”16 Since the 2015 amendment went into effect, courts have interpreted “[p]roportionality and relevance [as] conjoined concepts; the greater the relevance of the information in issue, the less likely its discovery will be found to be disproportionate.”17 In an effort to act consistently with the intent of the 2015 amendment to control the scope and prevent excess discovery, courts are no longer overlooking boilerplate and general objections and are defining what they deem to be within the relevant scope of discovery.

The Use of Boilerplate and General Objections While it is common practice for attorneys to include boilerplate and general objections when responding to discovery, unless it is specifically tied to a particular request, it is increasingly being viewed as improper. Federal courts are expressing a distaste and lack of patience for objections to discovery that are not tied to a specific response, and they do not endorse preliminary objections to scope. The banal objection that discovery requests are “overly broad” and “unduly burdensome” are no longer an acceptable approach to responding to discovery in federal courts. In Fischer v. Forrest,18 the judge issued an Opinion & Order stating that federal court decisions have criticized boilerplate objections long before the 2015 amendment, stating “‘overly broad and unduly burdensome’ is meaningless boilerplate” and “tells the court nothing.”19 In St. Paul Reinsurance Co. v. Commercial Fin. Corp.,20 the court characterized boilerplate objections as obstructionist, frivolous, and an abusive discovery tactic.21 Additionally, in Sonnino v. University of Kansas Hosp. Authority,22 the court characterized general objections as “worthless for anything beyond delay of the discovery.”23 Recently, in an ongoing District of New Hampshire case, Currier v. Ford Motor Company et al.,24 the judge issued an Order on Oct. 2, 2020, striking each of a defendant’s general objections in their entirety, without prejudice, and all boilerplate objections.25 Even if the practitioner believes the entirety of the requests are objectionable, it is a better practice to be certain that your objection to each request is properly tailored to that objection. Courts do not want to refer to a list of preliminary objections that were made earlier in the response, and prefer that if a response is objectionable, those objections are set out in response to the request at hand.26 The practice of using boilerplate or preliminary objections seems to be fraught with trouble, whereas objections based upon proportionality to the claims or defenses at issue appear to be a better practice.

Remove the "Reasonably Calculated” Language From Discovery Objections The phrase “reasonably calculated” is often included in boilerplate and general objections.27 “Reasonably calculated” no longer defines the scope of permissible discovery under Rule 26(b)(1).28 The test since the 2015 amendment has been whether the evidence is “relevant to any party’s claim or defense”; however, many courts and lawyers continue to use this phrase.29 Additionally, the new language has created its own controversy between parties, causing opposing parties to choose to interpret this phrase as a tool to narrow their discovery responses.

The District Court of New Mexico, in Kennicott v. Sandia Corporation,30 was tasked with determining whether the magistrate judge’s order granting plaintiffs’ motion to compel production of documents exceeded the scope of discovery under Rule 26(b)(1). The plaintiffs’ complaint alleged claims of gender discrimination.31 During discovery, plaintiffs served requests seeking documentation relating to gender discrimination, sexual harassment, hostile work environment, and retaliation.32 Defendant responded producing documents pertaining solely to gender discrimination.33 The plaintiffs filed a motion to compel documents relating to sexual harassment, hostile work environment, and retaliation arguing that the documents were relevant to demonstrate a pattern or practice of discrimination.34 The defendant filed an opposition arguing that discovery is limited to the pleadings’ claims and defenses, in this case to the plaintiffs’ claim of gender discrimination.35 After a hearing, the magistrate judge in Kennicott took the position that “there can be relevant evidence for discovery purposes that we can’t tie directly to a paragraph or a sentence in a complaint, and yet, it’s still relevant” and further stated “I have to be mindful of what parties need in order to have a fair fight in the remainder of this litigation, that is sufficiently relevant and sufficiently proportionate to comply with the discovery rules.”36 The magistrate judge issued an order, and the District Court of New Mexico affirmed, finding that relevant and proportional information regarding gender discrimination may be found within the document requests, and compelled opposing counsel to produce such documents.37 Both the magistrate judge and the District Court of New Mexico relied on amended Rule 26(b)(1), stating that relevance is to be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense.38 In 2018 in the Toranto v. Jaffurs matter,39 a different court parsed out the issue of proportionality and relevance with regard to discovery. Toranto stated that “[t]he 2015 amendments to Rule 26(b) (1) emphasize the need to impose ‘reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.’”40 Further stating that the fundamental principal of the amended rule is “that lawyers must size and shape their discovery requests to the requisites of a case” and that the intent of the rule is “to provide parties with ‘efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.’”41 The court in Toranto exercised its discretion under Rule 26(b) (1).42 The Toranto Court, by limiting the scope of the discovery, prevented disproportionality while maintaining relevancy.43 Recently, in the above referenced Currier matter, the court also exercised its discretion under Rule 26(b)(1) in an Order issued on Nov. 4, 2020 relying on the relevant and proportional test to parse out the scope of admissible discovery. 44 The Kennicott and Toranto cases make evident that, although courts are broadening what is deemed relevant discovery under a party’s claim or defense, proportionality can still serve as the gatekeeper to monitor the scope of what must be produced.45 A better approach for federal practitioners is to deter mine whether their request, response, or objection is proportionally related to the claims and defenses at issue.46

Conclusion The Federal Rules of Civil Procedure are continuously evolving. It is our responsibility as attorneys to stay informed and conform our March/April 2021 • THE FEDERAL LAWYER • 17

practice techniques to current jurisprudence.47 Federal practitioners should take note that discovery in the federal courts no longer is tolerant of boilerplate and general preliminary objections. Parties must provide specific objections tailored to the discovery request before them. Additionally, after the 2015 amendment, proportionality and relevancy have been teased out by the courts. A broadening of the scope of what is termed ‘relevant’ has been expanded since the advent of the 2015 amendment to Rule 26(b). Armed with the knowledge that this shift has occurred, motivated by the 2015 amendment’s underlying goal to prevent unnecessary discovery disputes and delays, federal practitioners need to adapt their practice styles to reflect this new way of tying a request, response, or objection to the proportional relationship between the claims and defenses of the case at bar. 

Endnotes Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 2 Id. 3 See Fed. R. Civ. P. 26(b)(1). 4 Id. 5 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment; Fed. R. Civ. P. 26(b)(1) advisory committee’s note (1983). 6 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 7 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 1983 amendment. 8 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 9 Id. 10 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 1993 amendment. 11 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 12 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment; Fed. R. Civ. P. 26(b)(1) advisory committee’s note (2000). 13 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment; Fed. R. Civ. P. 26(b)(1) advisory committee’s note (2000). 14 Fed. R. Civ. P. 26(b)(1). 15 Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 16 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 17 N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 49 (E.D.N.Y. 2018) (citing Vaigasi v. Solow Mgmt. Corp., No. 11CIV5088RMBHBP, 2016 WL 616386, at *14 (S.D.N.Y. Feb. 16, 2016)). 18 Fischer v. Forrest, No. 14CIV1304PAEAJP, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). 19 See Forrest, 2017 WL 773694, at *3 (citing Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (stating that “boilerplate objections … persist despite a litany of decisions from courts … that such objections are improper unless based on particularized facts.”)). 20 St. Paul Reinsurance Co. v. Com. Fin. Corp., 198 F.R.D. 508 (N.D. 1

18 • THE FEDERAL LAWYER • March/April 2021

Iowa 2000). 21 See Com. Fin. Corp., 198 F.R.D. at 514. 22 Sonnino v. Univ. of Kansas Hosp. Auth., 221 F.R.D. 661 (D. Kan. 2004). 23 Univ. of Kansas Hosp. Auth., 221 F.R.D. at 666-67. 24 Currier v. Ford Motor Co. et al., No. 1:19-cv-00676-PB (D.N.H. Oct. 2, 2020). 25 See Order by Judge Andrea K. Johnstone in Currier v. Ford Motor Co. et al., No. 1:19-cv-00676-PB, , slip op. at 1 (D.N.H. Oct. 2, 2020) (citing Autoridad de Carreteras y Transportacion v. Transcore Atl., Inc., 319 F.R.D. 422, 427 (D.P.R 2016) (stating “generalized objections to an opponent’s discovery requests are insufficient)). 26 See Autoridad 319 F.R.D. at 430 (citing Sanchez-Medina v. UNICCO Serv. Co., 265 F.R.D. 24, 27 (D.P.R. 2009)). 27 Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008). 28 Fed. R. Civ. P. 26; see also In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016). 29 Fed. R. Civ. P. 26(b)(1); see also In re Bard, 317 F.R.D. at 564. 30 Kennicott v. Sandia Corp., 327 F.R.D. 454 (D.N.M. 2018). 31 Id. at 456. 32 Id. at 456-57. 33 Id. at 457. 34 Id. at 457-58. 35 Id. at 458. 36 Id. at 459-60. 37 Id. at 474-75. 38 Id. at 469. 39 Toranto v. Jaffurs, 16CV1709-JAH (NLS), 2018 WL 3752760 (S.D. Cal. Aug. 6, 2018). 40 Id. at *1 (citing Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016)). 41 Id. 42 Id. at *2. 43 Id. at *1-3. 44 See Order by Judge Andrea K. Johnstone in Currier v. Ford Motor Co. et al., No. 1:19-cv-00676-PB, slip op. at *3-8 (D.N.H. Nov. 4, 2020). 45 See Sandia Corp., 327 F.R.D. at 454; see also Jaffurs, 2018 WL 3752760, at *1-3. 46 See Sandia Corp., 327 F.R.D. at 454; see also Jaffurs, 2018 WL 3752760, at *1-3. 47 See Model Rules of Prof’l Conduct R. 1.1 cmt. 8 (Am. Bar Ass’n 2019) (discussing duty to keep abreast of changes in law and its practice).

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Diversity & Inclusion

Advancing Racial Equity Through the UN Sustainable Development Goals By Christina Bartholomew

Christina Bartholomew is a London-based American attorney, university educator, and founder of Stories Evolved (www.storiesevolved.com), a sustainability training and education consultancy. She has organized and moderated numerous panel discussions on diversity and inclusion in collaboration with the University College London and developed a certified university course on Business and the Sustainable Development Goals in partnership with the UN Global Compact Network UK. She is certified in Business Sustainable Management by the University of Cambridge Institute of Sustainable Leadership. ©2021 Christina Bartholomew. All rights reserved.

The urgency for racial equity is a clarion call for the legal profession. As legal practitioners consider how best to support this global movement, the FBA Diversity and Inclusion (D&I) Committee collaborated with the UN Global Compact to develop a comprehensive certified program for law students studying throughout the United States to promote understanding and action in addressing systemic racism. The program contextualized these efforts within the UN Sustainable Development Goals (SDGs) framework. Offered free of charge over a period of three sessions, the program exemplified diversity in terms of race, age, gender, nationality, background, and focus areas. Co-badged along with the UN Global Compact Network USA and the UN Global Compact Network UK, it highlighted practical avenues for lawyers to advance the cause of racial equity, either in public-sector work within government or nongovernmental civil society organizations or in corporate work, either through a law firm or general counsel’s office. The program also looked abroad to recent and pending human rights legislation as a means to inform and amplify the racial equity movement. Adopted in 2015 by every nation on the planet, the SDGs enshrine the enforcement of human rights and the promotion of equality and rule of law, articulating an ambitious 15-year achievement timeframe. While it is national governments that have committed to these objectives, private sector action is also envisioned. Drawing from this universally accepted agenda offers a comprehensive and quantifiable framework for tackling the issues that continue to disproportionately impact minority and impoverished communities throughout the world. For lawyers to advance the cause of racial equity, they need to understand how these objectives and their underpinning principles can guide progress for governments, businesses, finance, and civil society.

Public Sector and Civil Society The first session, held on Oct. 9, 2020, showcased careers in civil justice. Hon. Nannette Jolivette Brown, chief judge, U.S. District Court for the Eastern Dis20 • THE FEDERAL LAWYER • March/April 2021

trict of Louisiana, moderated the event titled “How Lawyers Can Contribute to Civil Justice,” and opened the program explaining that lawyers must seek an end to unjust practices and policies contributing to the systemic problems “embedded in the fabric of our nation.” A recent report compiled by the American Bar Association shows that minorities are poorly represented in the legal profession. Therefore, Judge Brown encouraged every member of the bench and bar to address this inequity, noting that it is an attorney’s obligation “to help our democracy evolve and improve so that we all live and thrive in the America our forefathers dreamed of and for which they planned.” At the October 9 program, panelists with distinguished legal careers in the federal courts, the U.S. Department of Justice, state governments, and NGOs discussed a range of opportunities for lawyers to influence policy and the justice system and to initiate impact litigation challenging laws or policies that unfairly target minorities. They also offered useful advice for law students interested in pursuing public-sector careers. Panelist Natasha Lycia Ora Bannan, senior counsel at LatinoJustice PRLDEF, emphasized how important it is for law students to develop the skills necessary to “embody the change you want to see,” and suggested students avail themselves of “Know Your Rights” or “Movement Law Lab” training. Clinics and internship placements can also help students “show up to this historical moment.” These work experiences offer opportunities to understand the law as it relates to equity issues. Participating in student chapters of the National Lawyers Guild, which works on issues such as the school-to-prison pipeline, or training to serve as a legal observer to ensure the right to peaceful protest represent additional paths toward developing meaningful experience, according to Bannan. Nevertheless, Bannan acknowledged the contradictions of marginalized communities needing to seek justice through a legal system that has been historically hostile to them. She urged the legal community to engage in deep thinking about how to evolve the system to address this tension.

Panelist Professor Lawrence Baca emphasized the importance of representation. Drawing from his rich but often troubled experience as the first Native American lawyer hired into the U.S. Department of Justice’s Civil Rights Division, he described the solitude he sometimes felt as the only minority present in the courtrooms in which he practiced. Being a “first” or “only” brings outsize pressure to those breaking barriers, Professor Baca explained, and he suggested that lawyers who find themselves in this role should focus on recruiting minority attorneys and inspiring them with examples of progress. In-person school recruitment, including attendance at various law school association meetings, offers the best chance of drawing applicants, in Baca’s experience. Also crucial is supporting fellow minority attorneys in their pursuit of leadership roles within the profession. Professor Baca’s activities with fellow bar members, and certainty that his work could improve lives, helped make him resilient to the challenges of racial bias and discrimination he encountered during his career. Pro bono support is another crucial avenue for correcting racial inequity. Panelist Kristen Clarke, president of the National Lawyers’ Committee for Civil Rights Under Law, explained that her organization draws on the private bar to pursue litigation supporting a fairer justice system, enhanced voting rights, fair access to housing, equal education opportunities, and the protection of peaceful protest. Founded in 1963 at the height of the protest movement that led to the Civil Rights Act, the Lawyer’s Committee is facing a similar moment in our fight against racial injustice. Clarke pointed to the COVID-19 pandemic as an amplifying factor that heightens the need to address the digital divide in education, voter registration challenges, unemployment and homelessness among minority populations, prison overcrowding, and reduced access to criminal counsel as but a few of the issues the National Lawyers’ Committee is working to address through its vast network of over 200 attorneys providing pro bono legal assistance. Panelist Karl Racine, attorney general of the District of Columbia, cited a foundationally biased and discriminatory justice system as the cause for the disproportionate arrest, prosecution, and punishment of minorities. Bannan echoed this view, explaining that the law wasn’t designed by or for minorities and urged a thorough examination of the legal system’s complicity in perpetuating racial injustice. Indeed, these communities have often been on the other side of the law, which provides, she believes, important context for the social justice movement now. Attorney General Racine added that this systemic inequity also underpins longlasting educational and economic discrimination. But the role of attorney general is pivotal and can drive reform through, for example, its handling of police-brutality prosecutions. In Racine’s office, he has focused particular attention on transforming the juvenile justice system from one that is punitive to one that is rehabilitative and reactive to the underlying needs of young people through services that are trauma-informed. As the recently elected president of the National Association of Attorneys General, he aims to combat hate in all its forms, tackling its causes through education programs and persuading member-attorneys general to pledge that hate has no home in their jurisdictions.

Opportunities for Private Sector Impact Lawyers who choose to practice in the corporate or law firm setting can also contribute to this cause through their role as trusted

advisors to corporate America. Indeed, the business and service sector represents nearly 90 percent of global GDP and 74 percent of worldwide employment, and this sector’s resources offer leverage for driving progress. Moreover, corporations are increasingly focused on engaging on these issues, and the program’s October 23 second session, “How Fiduciary Duty Can Be a Force for Change—The Role of the Lawyer in Advancing the SDGs,” explored corporate efforts around racial equity and human rights and how law firms and corporate general counsel divisions can contribute to this effort. Moderator Adam Roy Gordon, engagement director for the UN Global Compact Network USA, explained that his organization offers support to attorneys adapting to the changing context of business. Indeed, macro-pressures such as international human rights legislation, increased transparency and disclosure requirements, activist litigation, and consumer demand are transforming business strategy, as are the desires of job recruits who seek a shared-value approach to their professional lives whether they use this terminology or not. Understanding this, corporations are considering these issues not just through a separate corporate responsibility function, but by incorporating human rights practices into their core strategies. Panelist Tim Wilkins, global partner for client sustainability and a corporate and M&A partner at Freshfields Bruckhaus Deringer, said that nowhere was this more evident than in the corporate statements responding to the deaths of George Floyd and Brianna Taylor. Wilkins identified the social bonds undertaken by Alphabet and Coca-Cola that were inspired by these protests and explained that these corporations will use this financing to increase their investment in and skilling-up of Black-owned businesses and suppliers. This interest in supplier diversity embodies a shift in corporate purpose from the Milton Friedman doctrine of the 1970s that “the social responsibility of business is to increase profits” to, as Wilkins explained, a multi-stakeholder approach which appreciates the interests not just of shareholders, but of suppliers, employees, consumers, and the communities in which an enterprise operates. General counsel divisions must also advise their companies about the potential reputational, financial, and operational risks associated with negative human rights impacts. As program panelist Jaren Dunning explained, his role as senior counsel for PepsiCo requires him to not “just say ‘yes’ or ‘no,’ but ‘should we?’ and ‘how should we?’” For PepsiCo, that means going beyond legal compliance to evaluating whether an action or decision meets the spirit of the business’s core objectives. Consequently, his fiduciary duty to PepsiCo obligates him to evaluate, manage, and mitigate PepsiCo’s human rights risks. To do this, advisors often look to both the SDGs and its complementary framework, the UN Guiding Principles on Business and Human Rights (“Guiding Principles”). The Guiding Principles, endorsed by unanimous vote of the Human Rights Council in 2011, identify the role of the private sector in understanding, preventing, and mitigating its human rights impacts. As panelist Ariel Meyerstein of Citi explained, these principles draw on the legal obligation of due diligence. In his role as senior vice president of corporate sustainability, Meyerstein asks business clients probing questions about their human rights records and commitments. Meyerstein explained that he uses the Guiding Principles as a normative framework for discussions around the corporate duty to protect, respect, and remedy human rights, ensuring that the businesses he works with understand that these obligations extend March/April 2021 • THE FEDERAL LAWYER • 21

throughout their global supply chain. He also advises clients seeking the social and sustainability bonds that finance specific initiatives to ensure that the targets associated with this financing are sufficiently ambitious and achievable. Diversity and inclusion practices sit at the heart of racial equity, and corporations are grappling with their sometimes dismal records. But Wilkins sees business as increasingly reflective on the racial makeup of the voices that contribute to strategic decisions. He believes it’s an exciting time, with lawyers able to advance this agenda in ways that would have been “unimaginable even a few years ago.” And corporations are demanding diversity in-kind from the law firms they engage. Some even cut fees when firms fail to provide a sufficiently diverse team. Wilkins explained that the voices of counsel must connect to the core business strategy of its clientele, and a diverse legal team is an important way to achieve this. Wilkins further explained that the use of diversity targets and disclosures must extend beyond new hires to retention and promotion. Measurement and disclosure expose areas of inequity and offer powerful tools for lasting change. Wilkins sees annual reviews as a time to hold managing attorneys accountable for their diversity and inclusion efforts both within the firm and externally. “Solutions that transfer wealth and influence from people in senior positions to those who have struggled to access these offer the best hope,” he says. Meyerstein supports this view, noting that radical transparency around racial pay gaps, such as those undertaken by Citi, help drive efforts to improve representation. Nevertheless, according to Dunning, sustainable corporations need to be thoughtful about how to build on their existing efforts. At PepsiCo, the summer 2020 protests prompted self-reflection about its hiring and training practices as well as its broader equity goals, including gender parity, since inequities can “sometimes compound themselves.” Externally, Dunning said, they considered whether they were “sufficiently engaging their minority-owned suppliers and nurturing that component of their value chain.” Finally, the company evaluated its advocacy role to see if there were ways they could engage in the political process. As a widely known brand, he sees PepsiCo as having an opportunity to show consumers the future “we want to fight for.” Dunning believes every lawyer can make a positive impact no matter what their role, but that they should be guided by their own personal interests. He recommends asking, ‘What questions do I want to answer?’ as a guide for involvement. Gordon echoed this view. “There’s room for this type of sustainability discussion no matter where you are in the marketplace.” But it’s the younger, newer voices that, from Wilkins view, are most critical in how we rethink equity issues. Wilkins sees the remote work necessitated by the pandemic as an opportunity to advance equity discourse. Because videoconferencing permits “everyone on a call to have an equal footprint,” new ideas and voices are being listened to in ways they weren’t before. He believes, and Gordon concurs, that this creates an opportunity for young lawyers in particular to move the organization toward discussions they care about.

An International View on Human Rights International human rights efforts are increasingly guided by the SDG agenda, which November 13 session moderator and executive director of UN Global Compact Network UK Steve Kenzie explained, “has achieved extraordinary global consensus.” Kenzie 22 • THE FEDERAL LAWYER • March/April 2021

noted that the SDGs reflect a “leave no one behind” ethos, which is why, according to panelist Julie Kofoed, head of human rights at the UN Global Compact, 92 percent of the goals—even its environmental targets—are grounded in human rights concerns. In Kofoed’s work with the world’s largest corporate sustainability initiative, she urges members to prioritize remedying their most severe human rights impacts first. Nevertheless, she expressed concern about the gap between corporate aspiration and action in this area, citing that while 90 percent of the UN Global Compact’s signatories have human rights policies in place, less than 15 percent of these businesses are actually doing human rights assessments and taking action on the results. There’s clearly much more work to do. Kofoed encouraged law students to educate themselves on the SDGs, including racial inequities, and to raise awareness within local communities, advocating within law schools for courses and programs on the SDGs and human rights. But regulation is also a crucial tool for progress, and the program’s final session, “The Legislative Horizon—An International View of Human Rights Protections,” offered students a glimpse into the laws enacted in or percolating through numerous jurisdictions, as well as the approaches and debates guiding these regulations. Panelist Roger Leese, partner and co-head of Clifford Chance’s Global Business and Human Rights Practice, noted the distinction between “soft” and “hard” law. While the SDGs and Guiding Principles are “soft,” in the sense that they have no direct binding effect on businesses, they can still serve as the basis for corporate policies or governmental regulations, which is increasingly the case, he noted, citing several legal trends. The first is legislation around corporate transparency and reporting, which force businesses to publicize their actions around human rights in the hope that peer and consumer pressure will force corrective action. He identified the UK Modern Slavery Act of 2015, which aims to tackle the 25 million victims of modern slavery worldwide, as an example of this approach. Leese argued, however, that with little enforcement, compliance has been poor, and he indicated that the legislation is under review. According to Leese, frustration with this market-based approach has led to legislation such as France’s Duty of Vigilance Law requiring mandatory corporate due diligence for human rights violations throughout a business’s global supply chains. The European Union is considering adopting similar legislation, but with further consideration being given to penalties for noncompliance, such as injunctions or criminal prosecution. Finally, Leese described a treaty approach with civil and criminal penalties for corporate failure to respect human rights. As requirements become more concrete, businesses are increasingly appreciating their need to act, which is a key development from Leese’s perspective. And it’s the attorney’s job to educate her clients by highlighting the risk of inaction. At Clifford Chance, when onboarding new clients where human rights issues are likely to arise, they will obtain the client’s advanced agreement to accept advice for remedying abuses, leveraging resignation should a client fail to comply. Of course, lawyers must be vigilant not just to corporate but also governmental abuse of human rights. Panelist Steven Feldstein, senior fellow at the Carnegie Endowment for International Peace in the Democracy, Conflict and Governance Program, described how state use of emergent technologies, such as artificial intelligence and surveillance, can lead to the exploitation and manipulation of citizens. His research shows sharp degradation of protections of in-

dividual rights and liberties across all governance systems, including liberal democracies, over the course of the past decade, accelerating considerably during the COVID-19 pandemic. Feldstein cited the need for legislation in this area to balance freedom of expression and disinformation. In the United States, internet platforms are currently immune from liability for the content that is posted. But legislators are rethinking this approach, aware of the proliferation of extreme and hate speech that can exacerbate racial discrimination and inequity. The assumptions underpinning the “marketplace of ideas” approach to free speech have been turned on their head by social media, according to Feldstein, and can negatively impact the very political process that supports protected speech and human rights. Feldstein also identified the tension between data privacy and surveillance, recognizing that, while regulators have a legitimate interest in the need to track and monitor criminal or conspiratorial behavior, they must also ensure individual rights.1 Corporations play a role in this debate as well, since many technology business models rely on the personal data of their users. Many governments have foisted responsibility for resolving these tensions onto the private sector, said Feldstein. However, some jurisdictions are beginning to grapple with these complex issues. In the area of data exploitation, the European Union has introduced the General Data Protection Regulation. This development shows how, as Feldstein noted, “the sharpened angles of this debate are coming to the fore.” The pandemic, Feldstein observed, is only “putting a finer edge on these debates,” due to valid public health goals being undermined by broad use of citizen data for law enforcement or other governmental objectives. In addition to creating a troubling precedent, he worried that citizens would become inured to data collection, which may lead to even further exploitation. He predicted that in the coming years, both governments and businesses will need to rethink the interaction between data privacy and business and governance models using algorithmic exploitation. Panelist Safaath Ahmed Zahir, founder of Women & Democracy, noted the need for any new legislation to take an inclusive approach. Her organization, which is based in the Maldives, provides feedback on bills, policies, and initiatives prior to implementation, including those regulations that have arisen during the pandemic. While her work is focused on gender equity, Zahir believes “gender and racial inequity are inseparable.” Her organization raises awareness and advocates for increased female participations in the political systems that create regulation. The downward trend of female involvement in Maldives’ Parliament highlights institutional barriers to entry. So Zahir’s work empowers women in political, party, and parliamentary leadership through public-speaking and campaign-strategy workshops that have reached over 600 women. Her organization also educates about human rights. This approach is also relevant to the racial equity movement. Zahir noted that expectations are higher when those who are marginalized finally do manage to obtain leadership positions, a view echoed by Judge Brown and Professor Baca. Zahir urged students to nevertheless be relentless in removing the institutional barriers of gender, class, ethnicity, race, educational background, and faith traditions that impede positive social change.

scrutiny, lawyers must seize this moment to lead. From legislation to litigation, organization to education, activism to influence, lawyers can draw on their problem-solving skills to effect change. And as trusted advisors to the business community, lawyers can use their influence to “help our clients do the right thing,” Leese said. Indeed, Meyerstein believes that lawyers should view themselves as ethical compliance officers. And ethics must have racial equity and human rights at its core. As Zahir noted, “we know how far we’ve come, so we can see how much further we have to go.” Many thanks to my co-chair, Mimi Tsankov, who participated in her capacity as board of directors liaison to the D&I Committee; our FBA advisory board, including Wylie Stecklow, Bryan Branon, Brandi Burris, Lanna Allen, Stephanie Moncada Gomez, and Helen Padilla; and all the distinguished moderators and panelists who participated in this ground-breaking program. 

Endnotes Numerous amendments to Section 230 of the Communications Decency Act have recently been introduced to Congress.

Conclusion Leadership in this moment means rejecting complacency and pursuing bold, ambitious action. As both law firms and their clients face increased legal, financial, employee, customer, and societal March/April 2021 • THE FEDERAL LAWYER • 23

Judicial Profile

Hon. Diane J. Humetewa

Judge, U.S. District Court, District of Arizona By Trevor W. Carolan

Trevor W. Carolan has clerked for Judge Humetewa since 2018. He previously clerked for Judge William J. Fisher of the District of Minnesota (2016-2017) and is also an accomplished organist.

hen entering Judge Diane J. Humetewa’s chambers at the Sandra Day O’Connor Courthouse in Phoenix, one is immersed in décor encapsulating the beauty and diversity of Arizona—petrified wooden tables, turquoise Native American pottery, assorted cacti, and art depicting the vast Grand Canyon. This rich landscape has been the backdrop of Judge Humetewa’s life and career. A lifelong Arizonan and enrolled member of the Hopi Tribe, Judge Humetewa is proud of her heritage. When first examining the professional history of Judge Humetewa, it seems to be a fairly traditional path to the federal judiciary. She held positions as deputy counsel for the U.S. Senate Committee on Indian Affairs (1993-1996) and counsel to the deputy attorney general of the United States (1996-1998), and she served as an appellate court judge to the Hopi Tribe. Judge Humetewa then spent 13 years at the U.S. Attorney’s Office in Arizona, including as senior litigation counsel, prior to her appointment by President George W. Bush as U.S. attorney for Arizona in 2007. Following her tenure as U.S. attorney, Judge Humetewa worked in private practice and as legal counsel to the president of Arizona State University (ASU). Appointed to the district court bench by President Barack Obama, she was unanimously confirmed by the U.S. Senate on May 14, 2014. However, Judge Humetewa’s path to becoming the nation’s first female Native American to serve as a federal judge was not completely conventional.

Early Life Judge Humetewa spent much of her childhood on the Hopi and Hualapai Indian Reservations in Northern Arizona. Her parents raised her with Hopi traditions, culture, and language. Her father, who was an engineer for the Bureau of Indian Affairs, and her mother, a primary school employee, frequently brought their children to the reservation, where many of her family members still reside. The Hopi Reservation, located near the Grand Canyon in Northern Arizona and encompassing an area slightly larger than the state of Delaware, is a vast and rugged territory. Judge Hume24 • THE FEDERAL LAWYER • March/April 2021

tewa considers this land to be her traditional home, where she regularly returns to participate in cultural ceremonies and to visit family. Having themselves been distanced from their families and not having the educational opportunities of others, her parents hoped that she would pursue higher education. After high school, she enrolled at Phoenix College, initially desiring to be a teacher. It was there that she had her first encounter with the law—a dry constitutional law class that did nothing to provoke her interest in being an attorney. She did, however, become interested in the workings of the criminal justice system and subsequently attended ASU to major in justice studies. While at ASU, Judge Humetewa interned with the U.S. Attorney’s Office in Phoenix and was assigned to work on a pilot program to assist victims of crimes the office was prosecuting. After earning her degree, she was hired full time as a crime victim advocate. This work was transformational for Judge Humetewa, as she saw first-hand the federal judicial system’s impact on tribes and tribal members. “I originally observed that very few lawyers traveled to reservations to view the crime scenes or to conduct interviews, which often resulted in cases being dismissed or resolved to a lesser charge that

the victim advocates were left to explain to the victims,” said Judge Humetewa. Another reality for tribal peoples involved with the federal criminal justice system is the geography of the state of Arizona. Victims, witnesses, and family members often have to travel over four hours by car from one of the most rural areas in the country to the city center of the fifth most populous city in the United States. This geography also presents serious challenges to achieving representative jury pools. Nationally, many federal magistrate, district, and appellate courts do not hear Indian country cases. As a result, Judge Humetewa says, “[w]hen national judicial policies are being debated or implemented, these realities are often overlooked.” Judge Humetewa noted, however, that the work of her program drew attention to the plight of victims on the reservations, and, as a result, the entire process was improved. She stated that “when the attorneys showed a willingness to learn about the victims, their backgrounds, and their communities, it made a real difference in the case, and the decisions that needed to be made for a just result.” This work helped to foster trust among all the parties involved. These early interactions with the justice system indelibly influenced Judge Humetewa. She was content, however, with the work she was doing and did not consider attending law school until the attorneys she worked with persuaded her that she needed to. “My supervisor put a packet of law school applications on my desk, and told me to complete them,” said Judge Humetewa. “At the time, I thought to myself, ‘I don’t really want to go to law school,’ but I realize now that it is the path that I was meant to walk.” Returning to ASU for law school, Judge Humetewa focused on Indian law. During law school, she had the opportunity to intern for Sen. John McCain, R-Ariz, in Washington, D.C. After graduating from law school, she returned to Washington and served as deputy counsel for the Senate Committee on Indian Affairs, of which Sen. McCain was the chairman. This experience was groundbreaking for Judge Humetewa, her experiences there serving to mold her into the judge she is today.

Public Service Sen. McCain’s work with the nation’s tribal governments and their citizens inspired Judge Humetewa to enter public service. She says that “Senator McCain would remind his Senate colleagues that the United States must adhere to the solemn vows it made when entering into Treaties with Indian tribes.” She adds that Sen. McCain “truly believed that our Government, and those who worked in it had a moral obligation to uphold the promises made, and to avoid the past mistakes of the laws and policies that lead to tribal population and government diminishment.” Judge Humetewa notes that “Senator McCain’s, along with my parents’ view of public work as being noble work, all directly influenced my desire to be a public servant.”

She carried Sen. McCain’s words with her throughout her career, and, in 2007, she had the opportunity to lead the office that initially inspired her to attend law school. As U.S. attorney for the District of Arizona, she worked to improve relations between her office and the communities that were impacted by the crimes her office was prosecuting.

Federal Bench In May 2014, in a rare moment even by U.S. Senate standards, Sen. McCain moved for the confirmation of six federal judicial nominees for the District of Arizona in one day, some to seats that had been vacant for three years. Judge Humetewa recalls watching the vote on her nomination from the ASU campus in Tempe. In a speech from the Senate floor, Sen. McCain stated, “With this vote, we will be making history in some respects. We should all be proud that this nominee, Diane Humetewa of the Hopi Tribe, will be the ﬁrst Native American woman to be on the Federal bench.” Applause erupted on the Senate floor. When Sen. McCain called to congratulate her on the unanimous vote, Judge Humetewa was able to tell her former boss how proud her parents were to watch the vote from their home on the Hopi reservation. Sen. McCain remained proud and inspired by Judge Humetewa as well, making a last request of her in his final weeks: to serve as a pallbearer at his funeral service in Phoenix, which she did on Aug. 30, 2018. From Sen. McCain, Judge Humetewa learned the importance of public service and of staying connected to those whose lives are impacted by one’s work. Today, she gets the chance to put those lessons to use on the bench. As an active judge in one of the busiest districts in the country, Judge Humetewa presides over numerous cases related to civil and criminal Indian law. The large number of cases is a result of the many federally recognized tribes in Arizona and ramifications of the Major Crimes Act, which designates certain crimes occurring on tribal lands as federal crimes. Along with immigration-related crimes, those arising on tribal lands or involving tribal members comprise the majority of the court’s criminal docket in Arizona. Judge Humetewa’s early work with crime victims confirmed for her just how few citizens are even remotely familiar with the justice system. She recognizes that, for most individuals, the system is confusing, frightening, and impersonal. “As a judge, I try to approach the parties, especially those involved in criminal cases, with great patience and allow them to be fully heard. I try my best to fully explain the law, and the decisions that I must make according to it,” Judge Humetewa says. Her law clerks spend the majority of their time on the multitude of civil cases on her docket, while Judge Humetewa primarily handles her heavy criminal caseload herself with minimal assistance from her clerks. Judge Humetewa also continues the work to improve the relationships between the federal court system and March/April 2021 • THE FEDERAL LAWYER • 25

Judicial Profile Writers Wanted

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to Lynne Agoston, managing editor, at social@fedbar.org.

tribes. Her positive influence has been felt throughout the district. G. Murray Snow, chief judge of the District of Arizona, credits Judge Humetewa’s knowledge and experience with an increased understanding of the issues facing Arizona’s tribal peoples. “In this District, one of the things we grapple with is doing justice in Indian Country consistent with both tribal sovereignty and American citizenship. Nobody knows this interface like Judge Humetewa; it is her life,” says Chief Judge Snow. He adds that Judge Humetewa “has been invaluable in giving her extra time to educate judges on tribal life and cultures, in clarifying issues of access to justice and services, and in tirelessly serving as a leader and role model.” Moreover, as one of only a handful of Native Americans in history to serve on the federal bench, Judge Humetewa is sought after nationwide—by law schools to congressional committees—to discuss issues facing Indian country. She tries not to think about this distinction often, saying that she would not like to be known as the “first female Native American federal judge,” but rather a competent judge who is fair and impartial. This is how her judicial colleagues think of her. “She is a thoughtful, considerate, collaborative, hard-working and determined colleague,” says Chief Judge Snow.

Mentorship Another of Judge Humetewa’s joys is being a mentor to her law clerks and staff, law student externs, and law students throughout the country. She is very devoted to her law clerks and court staff. Whether it involves a staff birthday celebration, holiday dinner gatherings, or welcoming members of the extended chambers family in the form of a new baby or fiancé, Judge Humetewa’s chambers really does feel like a family. One of her past clerks stated that “the Judge’s mentorship style is one of respect, encouragement, and constructive criticism, giving her clerks room to grow and learn, but always being available when direction or guidance is needed.” The common refrain when talking about Judge Humetewa with her former and current staff is that she treats everyone with respect, whether that is her staff, lawyers appearing before her, or criminal defendants. She is also delighted by a recent partnership with area Girl Scouts. The local troop created a merit badge to honor inspiring women. Judge Humetewa was in the inaugu-

26 • THE FEDERAL LAWYER • March/April 2021

ral group of three women who launched the Arizona Inspirational Woman badge. The Girl Scouts earn this badge after learning about the role of the federal judiciary, including coming to the courthouse for a tour, a courtroom simulation, and a question and answer session with the judge and her law clerks. Earning this badge provides the Girl Scouts with role models who help them to “develop confidence, courage, and character and to make Arizona and our world a better place.” Judge Humetewa says, “When I was young, I learned by seeing, then by doing. While spending time at the courthouse, they don’t just see me, they see and hear from my courtroom deputy, court reporter, law clerks, and U.S. Marshals, the people who make our court system work. I hope that one day they reflect back and see these court personnel as role models or as an inspiration to help them achieve their dreams.” In her spare time, Judge Humetewa enjoys traveling; spending time with her husband, family, and dog; and running long-distance races throughout the country, in homage to her Hopi roots. 

S M EET

Leadership Summit 2021 Join the Federal Bar Association this spring for a virtual gathering of association leadership and members. Leadership Summit’s four meeting tracks will provide new opportunities to expand national networks and engage in lively discussions about federal practice. FBA membership offers you access to participate in the following programs: Constitutional Legal Education Tune into four educational panels during March 16-19 to hear from groups of distinguished panelists about timely constitutional issues, including the legality of pandemic measures, election law, governing the Internet, and Supreme Court reform.

Leadership Training Leadership Training provides current and incoming leaders the tools required to lead successfully. The week will begin with “Building Understanding,” a session led by leadership development and inclusion and diversity expert Vicki Clark, who will guide participants in a discussion about leadership through an equity lens and issues of power, culture and microaggressions to show how bias impacts our work with one another. Focusing on sustainability, structure, and relevance, non-profit and association consultant Bob Harris will share best practices in board meetings, committees, and strategic plans during the “Better Boards” session. Additional virtual sessions led by FBA seasoned leaders are scheduled throughout March, April, and May.

Capitol Hill Day Plan to participate in this virtual event as FBA leaders from across the country meet with House and Senate offices to discuss important FBA legislative issues that impact the administration of justice and the federal courts. Virtual sessions and preparatory meetings will be scheduled from February through April and virtual meetings with lawmakers May 3-6.

Business Meetings The midyear meetings of FBA entities will be scheduled March 15-19.

Schedule at a Glance *all times listed in EDT MARCH

APRIL

Monday, March 15

Wednesday, April 7

11:00 – 1:30 pm Business Meeting: Foundation of the Federal Bar Association Board of Directors 12:00 – 1:00 pm Leadership Training: Membership Strategies 2:00 – 3:30 pm Leadership Training: Building Understanding: Diversity and Bias

4:00 – 5:00 pm

Tuesday, March 16

Leadership Training: Online success

Wednesday, April 14 3:00 – 4:00 pm

Capitol Hill Day Preparatory Briefing

Wednesday, April 28 4:00 – 5:00 pm

Leadership Training: Marketing & Communications

12:00 – 1:00 pm Leadership Training: Better Boards: Governance, Strategy and Relationships 2:00 – 3:00 pm CLE: Pandemics, Federalism and the Preservation of Liberty

MAY

Wednesday, March 17

Friday, May 7

10:00 am – pm

12:00 – 1:00 pm Capitol Hill Day Debrief

Business Meeting: Federal Bar 12:00 Building Corporation Board of Directors 12:00 – 1:00 pm CLE: Governing the Internet: Should Section 230 Be Eliminated? 2:00 – 3:00 pm Business Meeting: Section and Division Leaders 2:00 – 3:00 pm Business Meeting: Chapter Leaders

May 3-6 [Individual Meetings] Capitol Hill Day(s)

Tuesday, May 18 4:00 – 5:00 pm 4:00 – 5:00 pm

Leadership Training Spotlight: Section Breakout (Getting My House in Order) Leadership Training Spotlight: Chapter Breakout (10-100 members)

Wednesday, May 19 Thursday, March 18 12:00 – 1:15 pm CLE: Litigation and Reform in the Aftermath of the 2020 Election 2:00 – 5:00 pm Business Meeting: FBA Board of Directors

4:00 – 5:00 pm 4:00 – 5:00 pm

Leadership Training Spotlight: Section Breakout (Programming Best Practices) Leadership Training Spotlight: Chapter Breakout (101+ members)

Thursday, May 20 Friday, March 19 12:00 – 1:00 pm CLE: Supreme Ideas? An Examination of Proposals to Change the Supreme Court 2:00 – 3:00 pm Business Meeting: National Council Q&A 3:30 – 5:00 pm Business Meeting: National Council* * Participation in the National Council Meeting is limited to members of the National Council. FBA members may request to attend as observers, subject to maximum capacity of the video/audio conference platform.)

4:00 – 5:00 pm

Leadership Training Spotlight: What I Wish I Had Known: Secrets for Succes

ON-DEMAND Now Available Making an Impact on Capitol Hill: An Introduction to FBA’s Government Relations and Capitol Hill Day Program Available March 17 Legislative Update

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Judicial Profile

Hon. Frank R. Zapata

Judge, U.S. District Court, District of Arizona by Cindy Reyna

Cindy Reyna served as Judge Zapata’s law clerk for his 26 years on the federal bench as both a magistrate judge and district judge. Prior to her position with Judge Zapata, she served as a law clerk to the late Hon. Alfredo C. Marquez for four years.

udge Frank R. Zapata has served most of his esteemed legal career practicing before or presiding over matters in the U.S. District Court for the District of Arizona. The judge, who prefers to be called Frank, is prevalently referred to as humble, both on and off the bench. Prior to his appointment as a U.S. magistrate judge, Judge Zapata served as an assistant federal public defender for 20 years. Having served as a judge for the District of Arizona for more than 26 years, including two years as a magistrate judge and 24 years as a district judge, he has presided over an immense and diverse volume of civil and criminal matters. Judge Zapata assumed senior status on Aug. 3, 2010. The youngest of five children, Frank Ramirez Zapata was born and raised solely by his mother, Esperanza, in a rural neighborhood known as “Little Hollywood” in Safford, Ariz. Judge Zapata and his siblings often accompanied their mother during her seasonal work in the agricultural fields. Esperanza instilled in her children the values of education and hard work. She lived to age 93, attending the investiture ceremony of Judge Zapata to the district bench as his most distinguished guest. Following Judge Zapata’s matriculation through the Safford public school system, he began his college education at Eastern Arizona College in Thatcher, Ariz., a community neighboring Safford, where he received his associates degree in 1964. Judge Zapata readily acknowledges that he was awarded his highest collegiate award during his junior college studies as the recipient of the Cassius Bavor Award, a distinction bestowed upon him for his outstanding service as student custodian. Judge Zapata transferred to the University of Arizona and moved to Tucson in 1964 to pursue a B.A. in English literature, which he was awarded with distinction in 1966. He remains to date a diehard Wildcat fan! Following his graduation, he earned his teaching certification in 1967 during a year of postgraduate studies and accepted his first teaching position at Hayden High School, in the small mining community of Hayden, Ariz., where he met and later married his wife, Josefina ( Josie).

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After teaching in Hayden for two years, Judge Zapata moved to Tucson, where he taught at inner city Utterback Junior High School for one year while pursuing his admittance to law school. Following his three years of teaching English and literature in the public school system, Judge Zapata was admitted and began law school at the University of Arizona College of Law in 1970. He and Josie, a graduate of the Good Samaritan School of Nursing and the University of Arizona with degrees in nursing and education, married that same year and celebrated their 50th wedding anniversary in 2020. In 1973, Judge Zapata graduated from law school and was admitted to the Arizona State Bar. Important to note is that from 1967 to 1973, during the time of his postgraduate studies and law school, Judge Zapata respectfully served in the Arizona Army National Guard. Immediately following his admission to the state bar, Judge Zapata served for one year as a staff attorney for Southern Arizona Legal Aid, during which he handled a general civil practice representing predominately minority clients, with an emphasis on poverty law issues that included landlord tenant disputes, consumer advocacy, domestic relations, and bankruptcy, in addition to various matters before administrative

agencies. During the year he worked as a staff attorney for Legal Aid, Judge Zapata returned to Little Hollywood to work on a relocation project for approximately 40 families displaced by the Gila River Flood of 1972, which destroyed most homes in the small rural community. The relocation project involved construction contracts and loans, individual disaster relief applications, and negotiations with county and federal government agencies and local utilities, providing the displaced residents with superior homes to those destroyed by the flood. In 1974, Judge Zapata accepted a position with the Federal Public Defender’s Office, where he served as an assistant public defender and chief assistant for 20 years. As an assistant public defender, Judge Zapata engaged in an intensive criminal trial and appellate practice, handling approximately 2,000 cases involving charges ranging from immigration violations to first degree murder. He tried approximately 125 cases as an assistant public defender and argued before the U.S. Court of Appeals for the Ninth Circuit on approximately 25 occasions. During his first year of federal practice, the Zapatas welcomed their first son, Eduardo, followed two years later by Antonio, both graduates of the University of Arizona. Antonio and his wife, Heather, have a son, Atticus, the Zapatas' only grandchild. In addition to the practice of law, Judge Zapata also taught trial practice as an assistant adjunct professor at the University of Arizona College of Law during his duties as chief assistant to the federal public defender. Prior to his judicial appointment, Judge Zapata held office and served on both legal and community public service boards of directors for more than 20 years. He also served as a lawyer delegate to the Ninth Circuit Judicial Conference from 1989 to 1993. In May 1994, Judge Zapata was appointed as a U.S. magistrate judge for the District of Arizona. During his tenure as a magistrate judge, he served on the executive board of the Ninth Circuit magistrate judges. When the late Hon. Richard C. Bilby took senior status, Judge Zapata was nominated to the district bench. It was the late Hon. Alfredo C. Marquez who tracked him down, while the judge and his family were on their annual San Diego beach vacation, to advise him of his nomination. Judge Zapata recalls writing down the information he received from Judge Marquez on a disposable white paper plate. Upon his confirmation by the Senate, Judge Zapata was appointed U.S. district judge by President William J. Clinton and sworn into office on Aug. 1, 1996. During his tenure, Judge Zapata has presided over hundreds of civil cases and thousands of criminal matters. As a border district with one of the heaviest criminal caseloads, the judge continues to preside over criminal matters to lessen the load of his colleagues. In addition to his extensive criminal caseload, Judge Zapata has presided over notable matters, including Hughes v. Kisela, which led to the 2018 decisive opinion by the U.S. Supreme Court on the issue of qualified

immunity, in which the Court summarily reversed the judgment of the Court of Appeals for the Ninth Circuit— which had reversed Judge Zapata’s finding of qualified immunity—in a very difficult case based on the determination that the officer’s actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This is just one example of many significant cases brought before the judge for review. In addition to his duties as a federal judge, Judge Zapata has served on a number of committees, including the Ninth Circuit Judicial Standing Committee on Alternative Dispute Resolution and the Magistrate Judge Utilization Committee, and has also participated in numerous judicial activities. During his tenure on the district bench, Judge Zapata sat by designation on the Ninth Circuit Court of Appeals in San Francisco, Pasadena, and Portland. Judge Zapata has received a number of distinctions and awards during his distinguished career. He was honored at the 2014 Roll-Zapata Criminal Seminar by the Tucson William D. Browning Chapter of the FBA for 40 years of dedication to the practice of law before— and as a distinguished member of—the federal bench, commemorating the 25-year friendship and profession he shared with the late Hon. John M. Roll. In October 2018, Judge Zapata was bestowed with the Lifetime Achievement Award of the University of Arizona James E. Rogers College of Law, from which he was also honored as the 2013 Distinguished Alumnus. In October 2019, he was selected to receive the Morris Institute for Justice Lifetime Achievement for Justice Award, which was previously received by the distinguished late former Dean Charles Ares, who was a professor and dean of the University or Arizona College of Law while Judge Zapata was a law student. He was honored at the time of the presentation of this award with a thoughtful comparison to the character Atticus Finch in Harper Lee’s Pulitizer Prize winning novel, To Kill a Mockingbird, as a man who is “civil in his heart” and one who “in their right minds never take pride in their talents.” It seems only fitting that the judge’s beloved grandchild is named Atticus. The U.S. District Court for the District of Arizona has been privileged to have this sincere, compassionate, humble, and civil-in-his-heart man serve on the federal bench. It is those, however, who have worked with, appeared before, and have come to know Judge Zapata who are truly the honored ones. 

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McGirt v. Oklahoma: The Indian Law Bombshell ROBERT J. MILLER

Note: A longer version of this article will be published in the 101 B.U. L. Rev. __ (2021).

n July 9, 2020, in a 5-4 decision, the U.S. Supreme Court held in McGirt v. Oklahoma that the 3,250,000-acre Muscogee Creek Nation (MCN) reservation still exists.1 This case has already created major political, legal, and societal changes for the MCN and Oklahoma, and it portends enormous adjustments in many different areas of law, life, and business in the decades ahead for the MCN, Oklahoma, other states and Indian nations, and the United States.

Overnight, the MCN Reservation, as defined in its 1866 treaty with the United States, was reaffirmed by the Court, and the entire area is now “Indian Country” as defined by federal law.2 Consequently, one million Oklahomans discovered that they now live on an Indian reservation, including 400,000 in the city of Tulsa. Oklahoma will now have to deal with the issue of MCN jurisdiction over an enormously larger expanse of land and population than had been previously assumed. This case has serious implications that will involve the MCN, the United States, Oklahoma, other Indian tribes located in that state, and Indian nations and states across the country

in negotiations, litigations, and legislative efforts to address the issues that will arise. I consider McGirt to be a “bombshell” because it is the most significant Supreme Court Indian law case in well over 100 years. The case has already been relied on to re-recognize the boundaries of other Indian reservations in Oklahoma and been cited by courts across the nation. The issue presented in McGirt is so important that even before the case was decided, several Indian nations and Oklahoma had negotiated, and then announced four days after the opinion, an agreement-in-principle to ask Congress for legislation to address the complications that the parties assumed would ensue. This agreement-in-principle would have completely reversed the MCN win in McGirt. At least two of those Indian nations have now repudiated that preliminary agreement. In fact, the MCN is working proactively across several fronts to protect its re-recognized reservation and its jurisdiction and sovereign authority over the entire MCN Reservation.

The MCN Reservation The MCN and people were located in the American Southeast and enjoyed a largely agricultural existence long before the creation of the United States. But as the United States increased in power and population, federal Indian policies morphed into coerced ethnic cleansing of Indian peoples and tribes from their original homelands to make room for American settlers. Thereafter, the United States March/April 2021 • THE FEDERAL LAWYER • 31

began to forcibly remove Indian peoples and nations west to the “Indian Territory,” which ultimately became the state of Oklahoma in 1907. As with most Indigenous peoples in North America, the MCN became surrounded by American settlers and state governments that attempted to enforce their laws and jurisdiction over Indians and to confiscate Indian lands and assets. President Andrew Jackson is primarily identified with the Removal Era of federal Indian policy, and he and many other federal officials and politicians informed tribal leaders that they would not be protected by the United States and would be subject to state laws and jurisdiction unless they removed. In the American Southeast, the MCN, Choctaw, Cherokee, Chickasaw, and Seminole nations (the so-called “Five Civilized Tribes”) ultimately decided to remove. These nations demanded a major concession from the United States in their removal treaties: they would never again be under the law of a federal territory or a state. With this constitutionally backed treaty promise, and the guarantees of the federal government to pay the costs of removal and to re-establish the nation and its economy and society in the Indian Territory, the MCN agreed to move west. Consequently, in 1832, the MCN and the United States entered into a treaty selling all MCN lands in the East and guaranteeing the MCN government and the MCN people a permanent home in the Indian Territory. As mentioned, the MCN obtained the U.S. promise that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” In addition, the MCN was determined to secure the strongest possible title to its land in the West, and it demanded the United States grant it fee simple absolute title. In 1833, after a MCN delegation selected its territory in the West, the MCN and the United States signed another treaty, and the United States subsequently conveyed these lands to the MCN in fee simple.3 In the 1860s, the Civil War adversely impacted the MCN. Almost all of the Indian nations in the Indian Territory signed treaties with the Confederacy, probably out of necessity and under some duress. The United States had withdrawn its forces and its Indian agents and left the tribes to the mercies of Southern troops. Thus, the MCN and other tribes signed treaties with the Confederate States of America in 1861. At the end of the war, the United States exacted revenge for the Indian nations engaging with the South, even though troops from various tribes fought for the North. In particular, the Five Civilized Tribes were forced to sign treaties in 1866 and sell half of their lands to the United States. For the MCN, this meant the forced sale of 3,250,000 acres of its reservation. In subsequent decades, the United States expressly breached its treaty promise to the Five Civilized Tribes when it created the federal Oklahoma and Indian Territories in 1890. Moreover, the United States broke other treaty promises because it began to actively attack their sovereignty, their existence as governments, and their land and property rights. As part of the new federal Indian policy called the Allotment and Assimilation Era, the United States ultimately outlawed the Five Civilized Tribes’ courts and the tribal governments themselves. The United States also tried to force these tribes to sell their remaining homelands. In 1893, Congress authorized a commission to negotiate with the MCN for the “extinguishment of the national or tribal title to any lands.” But as history demonstrates, and the U.S. Supreme Court noted, the MCN absolutely refused to sell any reservation land. After the commission reported this fact to Congress, Congress abandoned 32 • THE FEDERAL LAWYER • March/April 2021

its effort to buy MCN lands and instead just enacted the 1901 Creek Allotment Act that merely allotted some of the reservation lands to individual MCN citizens.4 In 1906, Congress broke more treaty promises and enacted the Oklahoma Enabling Act to admit Oklahoma to the Union as a state that would include the Indian Territory. Congress required the new state to disclaim all jurisdiction and rights over the tribes or their lands. Oklahoma became a state in 1907.5 Despite the disclaimers in its enabling act and constitution, Oklahoma aggressively assumed the very civil, criminal, and adjudicatory jurisdiction that it had expressly disclaimed. The federal government, the Bureau of Indian Affairs, Oklahoma, non-Indians, and even the Indian nations accepted these actions as a fait accompli. The McGirt Court, however, rejected the argument that this process and these assumptions had somehow legislatively erased the borders of the MCN Reservation: “None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.” The Court also stated that “[t]o hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”6

The McGirt Decision “On the far end of the Trail of Tears was a promise.”7 As set out in the treaties of the MCN and the United States, and under federal law, only the MCN and the United States are allowed to exercise governmental sovereignty and jurisdiction within the MCN Reservation. State governments had, and still have, very limited jurisdiction within Indian reservations. For over 100 years, however, Oklahoma exceeded its authority and applied its jurisdiction and laws inside the MCN Reservation and in Indian country across the state. The McGirt case challenged those actions. In 1997, Jimcy McGirt was convicted in state court of raping a child. In post-conviction proceedings, he alleged that Oklahoma never possessed criminal jurisdiction over him because he is an Indian, a Seminole Nation citizen, and because his crime was committed in Indian country on the MCN Reservation. The Oklahoma courts rejected his argument that the reservation continued to exist. The Supreme Court granted certiorari to answer “whether the land these [MCN] treaties promised remains an Indian reservation for purposes of federal criminal law.” Oklahoma argued that reservations within the state had been disestablished, completely erased, by the time of statehood in 1907. But the Court held: “Because Congress has not said otherwise, we hold the government to its word.” Consequently, since the MCN Reservation had never been disestablished, it continues to exist today, and Oklahoma had no criminal jurisdiction over Mr. McGirt.8

Diminishing or Disestablishing Indian Reservations The U.S. Supreme Court has long held that Congress possesses the authority to abrogate Indian treaties and thus can unilaterally diminish (decrease in size) or disestablish (erase) Indian reservations. The Court has heard nine diminishment and disestablishment cases over the past six decades. In the fifth case in this series, Solem v. Bartlett, the Court “established a fairly clean analytical structure” for addressing these issues.9 In Solem, the Court laid out the principles that guide this inquiry: only Congress can diminish or disestablish a reservation, and such

actions are not to be lightly inferred. The Court then set out what looked like a three-step test. First, courts should examine whether “Congress clearly evince[d] an ‘intent … to change … [reservation] boundaries.’” If Congress used “statutory language [making] [e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests[,] [then it] strongly suggests that Congress meant to” diminish or disestablish a reservation. In fact, if such language was also coupled with “an unconditional commitment from Congress to compensate the tribe for its opened lands, there is an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.”10 Consequently, a court commences its analysis by searching for the clear and explicit intent of Congress. Next, the Court stated that “explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment.” Courts can examine “events surrounding the passage of a surplus land act,” and if they “unequivocally reveal a widely-held, contemporaneous understanding that the affected reservation would shrink … we have been willing to infer that Congress shared the understanding that its action would diminish the reservation.”11 Finally, to “a lesser extent” courts can also look at subsequent history to determine whether Congress had the specific intent to diminish a reservation at the time it enacted the statute in question. This evidence can include how Congress and the Bureau of Indian Affairs treated the lands thereafter, “who actually moved onto opened reservation lands,” and the “subsequent demographic history of opened lands.”12 Legal scholars and the federal courts have considered the Solem test to be a three-step test and have applied it that way consistently since 1984. The McGirt Court, however, appears to have modified that test or, at the very least, made it abundantly clear that Solem did not create a mandatory three-“step” test.

The Majority Opinion McGirt argued that the Major Crimes Act allows only the federal government to prosecute an Indian for violating that act because “State courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.’” Thus, the Court noted the key question: “Did [McGirt] commit his crimes in Indian country?” As a matter of fact, no one disputed that the location of McGirt’s crimes was within the MCN Reservation if it still existed today. Consequently, Oklahoma asked the Court to declare that “the land once given to the Creeks is no longer a reservation.”13 The Court commenced its analysis by inquiring whether the United States and the MCN had ever created a reservation. The Court reviewed the treaties set out above in which the United States guaranteed a permanent homeland for the MCN to entice it to remove westward. The Court had no problem concluding that “Congress established a reservation for the Creeks,” guaranteed them a homeland in the Indian Territory, and “establish[ed] boundary lines [to] secure a country and permanent home to the whole Creek Nation of Indians.” The United States did not give these lands to the MCN; they were instead payment for the MCN to sell its lands in the East and to remove to the West.14 The early MCN treaties did not use the word “reservation” perhaps, as the Court recognized, because it was not then a term of art. The MCN treaty of 1866, however, expressly used the word “reservation” with regard to the MCN homeland. Thereafter, other federal laws and treaties referred to the MCN Reservation. In light of

this evidence, the Court stated there was “no question that Congress established a reservation for the Creek Nation.”15 The question now facing the Court was whether the reservation continues to exist today. The Court noted that there was only one place to look, “the Acts of Congress,” because as the Court has long held, “only Congress can divest a reservation of its land and diminish its boundaries.” But the Court has never required Congress to use special verbiage or specific words before holding that a reservation was diminished or disestablished. A variety of statutory language has been held to be sufficient. But what the Court does “require [is] that Congress clearly express its intent to do so.”16 The McGirt Court then reviewed numerous statutes looking for any congressional intent to disestablish the MCN Reservation. Oklahoma pointed to the 1901 act that allotted the MCN Reservation. In the Allotment Era of federal Indian policy, the United States allotted dozens of reservations into small pieces of land that were granted to individual Indian citizens of those tribal nations to ultimately be held in private fee simple ownership. However, Oklahoma was incorrect that the 1901 allotment act was relevant because the Supreme Court has often stated that merely allotting a reservation does not diminish or disestablish it. In fact, the actual process of allotting the MCN Reservation disproved Oklahoma’s argument. The facts demonstrate clearly that Congress chose only to allot the reservation and did not intend to disestablish it by enacting the 1901 Creek Allotment Act.

The question now facing the Court was whether the reservation continues to exist today. The Court noted that there was only one place to look, “the Acts of Congress,” because as the Court has long held, “only Congress can divest a reservation of its land and diminish its boundaries.” In contrast to Oklahoma’s argument, in 1893, Congress did attempt to get the MCN to sell land and to make changes to its reservation borders, but the MCN adamantly refused. Congress was aware that this might happen because it tasked a “Commission with negotiating changes to the Creek Reservation [and] identified two goals: Either persuade the Creek to cede territory to the United States, as it had before, or agree to allot its lands to Tribe members.” The commission failed to get the MCN to agree to sell any land and reported to Congress that the MCN “would not, under any circumstances, agree to cede any portion of their lands.” Thereafter, “Congress … turned [its] attention to allotment rather than cession” and the commission then concluded an allotment agreement with the MCN, which Congress enacted into law in 1901. The McGirt Court held, as precedent required, that this allotment act, and the other acts the court reviewed, had no impact on the boundaries of the MCN Reservation: “Missing in all this, however, is a statute evincing anything like the ‘present and total surrender of all tribal interests’ in the affected lands. … [and] because there exists no equivalent law terminating what remained, the Creek Reservation survived allotment.” The dissent even agreed with this statement.17 The court looked at numerous other statutes cited by OklahoMarch/April 2021 • THE FEDERAL LAWYER • 33

ma and the dissent in which Congress attacked tribal sovereignty and governance in the Indian Territory and in Oklahoma. “Despite these additional incursions on tribal authority, however, Congress expressly recognized the Creek’s ‘tribal existence and present tribal governmen[t]’ and ‘continued [them] in full force and effect for all purposes authorized by law.’” In fact, starting in the 1920s, Congress once again began supporting tribal nations and tribal governance in Oklahoma and authorized the MCN in 1936 to draft and adopt a constitution and bylaws. After reviewing this history and these acts of Congress, the Court concluded that “in all this history, there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”18 In light of the fact that Congress never intended to disestablish the MCN Reservation, the Court held, not surprisingly, that the reservation was never disestablished and still exists today. The Court’s analysis was straightforward and even simple. The Court found no explicit or even ambiguous statement that demonstrated a congressional intent to disestablish the reservation. Consequently, under the relevant Supreme Court precedent, the MCN Reservation continues to exist.19 The majority began and ended its analysis with the relevant congressional language, what most commentators would have called step one of Solem. However, the Court did discuss at length and dismissed the necessity and value of considering other evidence that Oklahoma and the dissent claimed—under steps two and three of Solem—showed that the MCN Reservation had been disestablished. In response, the majority noted that Supreme Court case

In light of the fact that Congress never intended to disestablish the MCN Reservation, the Court held, not surprisingly, that the reservation was never disestablished and still exists today. law demonstrates that the value step two and three “evidence has can only be interpretative—evidence that, at best, might be used if it sheds light on what the terms found in a statute meant at the time of the law’s adoption, not as an alternative means of proving disestablishment or diminishment.” Consequently, such evidence cannot be used to convert clear and explicit statutory language into ambiguous language that then requires a court to use interpretive tools.20 The majority also addressed the “chaos” theory and the “skyis-falling” argument that Oklahoma and the dissent relied on. The Court emphatically dismissed that point: “In the end, Oklahoma abandons any pretense of law and speaks openly about the potentially ‘transform[ative]’ effects of a loss today.” The Court also noted Oklahoma’s argument that “[i]f we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and dissent warn, our holding might be used by other tribes.” Furthermore, Oklahoma and the dissent argued that the Court’s decision “could unsettle an untold number of convictions and frustrate the State’s ability to prosecute crimes in the future.” The majority noted this argument was “admittedly speculative … [and] even Oklahoma admits that the vast majority of its prosecutions will be unaffected whatever we decide 34 • THE FEDERAL LAWYER • March/April 2021

today.” The Court discounted these potential issues.21 In addition, Oklahoma and the dissent went beyond just the criminal jurisdiction issue before the Court and argued civil law and civil jurisdictional matters. The majority also briefly addressed and refuted those points. The Court stated that “dire warnings are just that, and not a license for us to disregard the law.” In addition, the Court made an excellent point in response to Oklahoma and the dissent’s arguments about the radical changes that the majority would be allowing if the state was prevented from benefitting from the conditions it had created over the past century. The Court stated simply that “the magnitude of a legal wrong is no reason to perpetuate it.” Consequently, the Court did not allow Oklahoma to benefit from the status quo that had been created by its illegal actions in applying its jurisdiction in Indian country over the past 100 years.22 The Court was also more hopeful about future events than the dissent and Oklahoma. The majority noted that Oklahoma and many Indian nations, over a long period of time, have cooperatively negotiated hundreds of compacts that cover myriad topics, such as “taxation, law enforcement, vehicle registration, hunting and fishing, and countless other fine regulatory questions[,]” and that these successful endeavors portended well for Oklahoma and the tribes to also handle the criminal and civil issues that might arise after McGirt.23 The Court more sharply refuted the chaos argument and the “costs” that might arise from its decision. “By suggesting that our interpretation of Acts of Congress adopted a century ago should be inflected based on the costs of enforcing them today, the dissent tips its hand.” The Court expressly criticized step three of Solem: “Yet again, the point of looking at subsequent developments seems not to be determining the meaning of the laws Congress wrote in 1901 or 1906, but emphasizing the costs of taking them at their word.” And if “chaos” really did ensue, if the “costs” of McGirt become too burdensome, the majority noted that “Congress remains free to supplement its statutory directions about the lands in question at any time.”24 The majority emphasized that in “reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long.” But the Court also noted: [M]any of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. … Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.25 In sum, the Court applied the intent of Congress as expressed in the relevant statutes and enforced the rule of law. The McGirt Court did not find any express, or even ambiguous, language demonstrating that Congress ever intended to disestablish the MCN Reservation. It addressed but ultimately ignored evidence highlighted by Oklahoma and the dissent in the Solem steps two and three. The Court said that to use this uncertain evidence to try to obscure or disprove the clear intent of Congress would allow Oklahoma to benefit from its unauthorized and illegal actions, and in fact “would be the rule of the strong, not the rule of law.”26

Modifying the Solem Test? As already mentioned, the Solem test was presumed to allow courts to move beyond just what Congress expressly said or did not say about diminishing or disestablishing a particular Indian reservation. The commonly called step two of Solem allows a court to examine the contemporaneous history surrounding a statute that arguably diminished or disestablished a reservation to determine whether there had been a common and widely held understanding that the “reservation would shrink.’” In step three, a court could examine the subsequent history and events following the opening of a reservation to non-Indian settlement to determine if the reservation borders had been intended to be changed. Arguably, the majority in McGirt did modify the Solem test. The dissent alleged that the majority “announces a new approach” and did “not even discuss the governing approach reiterated throughout [Supreme Court] precedents.”27 The majority did not state anything of the sort, but it did expressly disparage the idea that Solem created putative steps and that those steps have to be applied in every diminishment or disestablishment case. It is possible, then, that McGirt can be read as disapproving the Solem analytical structure to some extent. In fact, after the majority analyzed the relevant congressional statutes, it turned to Oklahoma’s arguments about steps two and three: Oklahoma even classifies and categorizes how we should approach the question of disestablishment into three “steps.” … On the State’s account, we have so far finished only the first step; two more await. This is mistaken. When interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us. That is the only “step” proper for a court of law. To be sure, if during the course of our work an ambiguous statutory term or phrase emerges, we will sometimes consult contemporaneous usages, customs, and practices to the extent they shed light on the meaning of the language in question at the time of enactment.28 It is not surprising that Justice Gorsuch, the author of McGirt, and an avowed originalist/textualist, might disapprove of the view that Solem requires a court to use all three steps all the time. If Congress’ language and intent is clear and explicit, would not an originalist/ textualist argue that the interpretation of the statute ends there? Thus, unremarkably, the McGirt Court stated: “There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms.” The “only role such materials can properly play is to help ‘clear up … not create’ ambiguity about a statute’s original meaning.”29 In conclusion, the majority expressly disavowed the existence of a mandatory three-step approach to analyzing disestablishment questions, and it expressly denigrated the need to apply and consider step two and three type evidence in every case.

Future Issues In this short article, we can only touch upon the significant and perhaps unforeseeable ramifications of McGirt. The majority and the dissent realized that the case will lead to legal, political, economic, and societal changes for the MCN, Oklahoma, and the United States. In fact, the McGirt decision has already raised important collateral issues. On Sept. 3, 2020, for example, the District Court of Seminole

County Oklahoma held that the 1866 boundaries of the Seminole Nation Reservation remain intact. In addition, the issue of the continuing existence of the Miami Tribe Reservation is currently before the District Court of Ottawa County Oklahoma.30 It must be repeated, however, that Congress has the power to address most if not all of these possible issues. The McGirt Court expressly invited legislation if Congress thinks that is necessary. But it must also be pointed out that if Congress diminishes or disestablishes the MCN Reservation, the MCN would surely file a Fifth Amendment takings claim against the United States for the taking of treaty-protected sovereign and property rights.

Criminal Jurisdiction The MCN can now exercise its inherent criminal jurisdiction over all Indian defendants within its 3,250,000-acre reservation. In addition, under numerous federal laws, the United States now has greatly expanded jurisdiction in this area. Regarding Mr. McGirt, that means the MCN and the United States have concurrent criminal jurisdiction over him. The federal laws, however, create only limited federal criminal jurisdiction in Indian country. Thus, the MCN will have to take on widely expanded responsibilities and jurisdiction to prosecute Indian criminal defendants within its reservation. As McGirt held, Oklahoma no longer has criminal jurisdiction over Indian defendants within the MCN Reservation. It still possesses jurisdiction over non-Indian criminal defendants. Consequently, the MCN and the United States now hold important roles in enforcing law and order within the reservation. Obviously, close cooperation and good relations between all three governments will be needed to coordinate the enforcement of law and order on the newly re-recognized reservation.

Civil Jurisdiction The MCN can now exercise its inherent sovereignty over civil law issues within its re-recognized reservation that encompass the wide array of jurisdiction and authority that all governments exercise over daily life. The MCN will now be able to largely control the conduct of Indians living and operating on its reservation and, in some situations, can impose its jurisdiction on non-Indians operating and living within the reservation. The U.S. Supreme Court and Congress have often recognized the power of tribal civil jurisdiction over Indians and non-Indians in Indian country. These cases and various statutes are directly relevant to the authority the MCN will exercise over its reservation. For example, Indian nations have the authority to tax, zone, and regulate all sorts of conduct within Indian country, including activities as disparate as child welfare, taxation, and environmental issues. Tribes can regulate Indian and non-Indian conduct on reservations in many situations. By contrast, Oklahoma’s civil jurisdiction within the re-recognized MCN Reservation and over MCN Indians and other Indians will be greatly limited. Federal law, for example, and the sovereign powers that Indian nations exercise in Indian country, exclude and preempt most forms of state jurisdiction. “State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. It follows that Indians and Indian property on an Indian reservation are not subject to State taxation.” In addition, “State jurisdiction is pre-empted … if it interferes or is incompatible with federal and March/April 2021 • THE FEDERAL LAWYER • 35

tribal interests.” These principles will clearly affect Oklahoma’s jurisdiction over the lands and peoples that are now within the MCN Reservation.31 Disputes and litigation will no doubt arise regarding many of these issues. Critically, intelligent advance planning, negotiations, and cooperative agreements between Oklahoma and the MCN, and surely involving the United States, can reduce and perhaps prevent such issues from occurring. Hopefully, Oklahoma and the MCN will continue the decades-long practice that the state and Indian nations have established of negotiating and compacting on numerous issues, like tax revenues, gaming, law enforcement, and jurisdiction sharing. Moreover, the McGirt Court expressly recognized that these kinds of careful and respectful efforts have already borne fruit in many areas of law and Oklahoma society over the past three decades and resulted in hundreds of intergovernmental agreements.32

Adjudicatory Jurisdiction The recognition of the 3-million-acre MCN Reservation creates vastly expanded adjudicatory jurisdiction for the MCN’s court system. The U.S. Supreme Court and other federal courts have heard numerous cases over recent decades that define the subject matter and personal jurisdiction of tribal courts. The MCN government has already undertaken significant steps and committed significant resources to address this expansion of jurisdiction. In contrast, the McGirt decision, federal law, and tribal sovereignty restrict the adjudicatory jurisdiction of the Oklahoma state courts on the MCN Reservation. Again, one hopes that the state and the MCN continue their practice of coordinating the fair and even application of governmental jurisdiction in Oklahoma and within the MCN Reservation.

Conclusion The McGirt decision dropped on Oklahoma and the MCN like a bombshell on July 9, 2020. The case portends a new way of thinking and significant changes for the MCN, Oklahoma, and the United States. Congress possesses the power to alter the results of McGirt through legislation, and one must not forget that the Court itself might do something startling with the death of Justice Ruth Bader Ginsburg and the continuing dissatisfaction of the McGirt dissent.33 But McGirt is also an enormously important and significant victory for the MCN and for all Indian nations for varying reasons. Notwithstanding the decades of negotiations, and possible litigation and legislation that might follow, the MCN, and all Indian nations, should fight to preserve the enormous victory that McGirt represents.  Robert J. Miller is a professor at the Sandra Day O’Connor College of Law, an elected member of the American Philosophical Society, the Willard H. Pedrick Distinguished Research Scholar, the director of the Rosette LLP American Indian Economic Development Program, the chief justice of the Pascua Yaqui Tribe Court of Appeals, and an enrolled citizen of the Eastern Shawnee Tribe.

Endnotes McGirt v. Oklahoma, 140 S. Ct. 2452, 2020 WL 3848063 (2020). 18 U.S.C. § 1151(a). 3 McGirt, 140 S. Ct. at 2459, 2461. 1 2

36 • THE FEDERAL LAWYER • March/April 2021

Id. at 2463 & n.2, 2491. Robert J. Miller, Tribal, Federal, and State Laws Impacting the Eastern Shawnee Tribe, 1812 to 1945, in The Eastern Shawnee Tribe of Oklahoma: Resilience through Adversity 149, 164 (2017). 6 Id. at 164-65; McGirt, 140 S. Ct. at 2474, 2481-82. 7 McGirt, 140 S. Ct. at 2459. 8 Id. at 2459-66, 2482. 9 Solem v. Bartlett, 465 U.S. 463, 470 (1984); Lone Wolf v. Hitchcock, 187 U.S. 553, 566-68 (1903). 10 Solem, 465 U.S. at 470-71. 11 Id. at 471. 12 Id. 13 McGirt, 140 S. Ct. at 2459-60. 14 Id. at 2460-61. 15 Id. at 2461-62. 16 Id. at 2462-63; Solem, 465 U.S. at 470. 17 McGirt, 140 S. Ct. at 2463-64. The dissent even agreed: “No one here contends that any individual congressional action or piece of evidence, standing alone, disestablished the Creek reservation.” Id. at 2487. 18 Id. at 2465-68. 19 Id. at 2459, 2482. 20 Id. at 2468-69. 21 Id. at 2478-79. 22 Id. at 2480. 23 Id. at 2481. 24 Id. at 2481-82. 25 Id. 26 Id. at 2474. 27 Id. at 2486-2487. 28 Id. at 2468. 29 Id. at 2469. 30 Oklahoma v. Barker, No. CF-2019-92 (Dist. Ct. Seminole County, Ok., Sept. 3, 2020); Oklahoma v. Leoppard, No. CF-2019-194 (Dist. Ct. Ottawa County, Ok., Aug. 19, 2020) (Defendant’s Brief ). 31 McClanahan v. Az. Tax Comm’n, 411 U.S. 164, 170-71 (1973); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-34 (1983). See also Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 126-28 (1993) (Oklahoma could not impose income, excise, or sales taxes on an Indian who worked and lived in Indian Country). 32 McGirt, 140 S. Ct. at 2481 & n.16. 33 McGirt “‘profoundly destabilized the governance of eastern Oklahoma’ and ‘create[d] significant uncertainty’ about basic government functions like ‘taxation.’” Rogers Cnty. Bd. of Tax Roll Corrs. v. Video Gaming Techs., 141 S. Ct. 24 (2020) (quoting the dissent in McGirt) (Thomas J., dissenting from the denial of certiorari). 4 5

SAVE THE DATE

Annual Meeting & Convention September 23–25, 2021 HILTON MIAMI

DOWNTOWN – MIAMI, FL

38 • THE FEDERAL LAWYER • March/April 2021

A Seat at the Table:

Tribal Legal Representation in Out-of-State Indian Child Welfare Act Cases APRIL OLSON

hey made me stand. The small courtroom was packed with the usual parties in an Indian Child Welfare Act (ICWA) case: attorneys and social workers and a few observers who took up all the remaining seats. I stood against a wall while we waited for the judge to begin oral argument on my motion. After the judge called on me, I expected someone would offer me a seat or at least a small patch of table for my files, but no one did. Instead, I balanced my notebook and other materials on the edge of a low wall while I argued the tribe’s motion. As an ICWA attorney, I am used to not having a seat at the table (literally) or sitting off to the side in a courtroom. Juvenile courtrooms are small, and tribes are often the odd man out. Ironically, I was in the courtroom precisely because my client, an outof-state tribe, was denied a seat in this court proceeding. The tribe’s attorney, an attorney with over 20 years of experience, had filed a motion to intervene and transfer jurisdiction to the tribal court, and the court refused to consider the motion because she was not an Arizona-licensed attorney. This begs the question, what is a right without the means to enforce it?

ICWA is a federal law that sets minimum standards for state court “child custody proceedings” involving Indian children.1 A child custody proceeding includes a foster care placement, a termination of parental rights proceeding, a pre-adoptive placement, or an adoptive placement.2 An Indian child is one who is a member of a federally recognized Indian tribe or eligible for membership.3 A common ICWA case involves a state court dependency matter in which Indian children were removed from the custody of their parents by social services. ICWA was passed in response to many years of federal and state policies that involved removing Indian children from their homes, often for no reason, and placing them in non-Indian foster or adoptive homes or boarding schools in a deliberate campaign to assimilate Indians into Western culture.4 ICWA attempts to prevent these practices by setting minimum standards that govern state child custody proceedings and adoptions involving Indian children.

These standards include, among others, preferences that support placement with extended family members and heightened burdens of proof for placing Indian children in foster care and terminating parental rights. ICWA has often been called the “gold standard” in child welfare practice, because it advocates for only removing a child when there is no other safe alternative, it lessens the trauma of removal by promoting placement with family and community, and it requires that families receive “active efforts” and intensive services to prevent the breakup of the family, all while centering cultural connections for the child. An important aspect of the ICWA is that it recognizes the inherent authority of Indian tribes over their children and families and provides Indian tribes with an absolute right to intervene in state child custody proceedings involving tribal members.5 This unconditional right to intervene allows tribes to become parties to such proceedings, take March/April 2021 • THE FEDERAL LAWYER • 39

positions on matters such as where children are placed, and ensure the requirements of ICWA are followed. Therefore, tribes must have legal representation in such cases to enforce ICWA. Legal representation in ICWA cases gives tribes a seat at the table. Many tribes are represented in ICWA proceedings by tribal attorneys employed through tribal attorneys general or other in-house counsel. Although ICWA is a federal law, its provisions are implemented in state courts wherever Indian families and children are located. As a result, many tribes, especially large ones, have ICWA cases in multiple states across the country. The Navajo Nation, whose lands span three states, currently has ICWA cases in about 25 states. The Gila River Indian Community has ICWA cases in 20 states. In most years, the Cherokee Nation participates in ICWA child custody proceedings in all 50 states.6 Providing legal representation in all these jurisdictions is an overwhelming challenge. Most tribes have in-house attorneys who are licensed in a few states. How then does a tribe intervene and participate in an ICWA case in a state other than its home state?7 Over time, tribes have employed numerous strategies to ensure tribal participation in out-of-state ICWA cases. Tribes often participate in out-of-state cases through a social worker who appears by phone. This can be problematic if a tribe needs to file pleadings or take legal positions, particularly ones adverse to other parties in the case. Appearing by phone also has disadvantages that include not being able to fully hear or see parties or communicate tribal positions. In other situations, tribal attorneys appear as the tribal “ICWA representative” in states where the tribal attorney is not licensed. In such cases, tribal attorneys can assist the court with locating extended family for placement and advise the court on other tribal matters of culture and custom but generally cannot file legal pleadings or take other actions that may be considered the unauthorized practice of law. Tribal attorneys can also apply to appear pro hac vice in out-ofstate cases. However, pro hac vice fees are often high and are usually assessed per case. Even then, a tribal attorney must associate with local counsel, which can be cost prohibitive. Separately hiring local counsel to represent a tribe in an ICWA case also comes at a cost that is unaffordable to many tribes. In addition, some state courts will refuse to allow an out-of-state tribal representative to appear by phone, give testimony, or file documents. As discussed below, a tribe may challenge these actions, arguing that ICWA provides an absolute right to intervene under federal law, but often the state court case will continue without tribal participation during an appeal. Refusing to permit tribes to participate in ICWA cases unless they have local legal counsel defeats the very purpose of the act. Although ICWA was passed in 1978, the first reported decision to discuss the legal right to intervene and participate was not issued until 15 years later.8 In State ex rel. Juvenile Dept. of Lane County v. Shuey, the Confederated Tribes of the Grande Ronde Community of Oregon (“Grande Ronde”) filed a motion to intervene in a case where the Oregon Children’s Services Division (CSD) removed a child from her mother’s custody. The trial court denied the motion because it was not signed by an attorney. Under Oregon law, all pleadings must be signed by an attorney. Grande Ronde retained legal counsel and filed a motion to reconsider the ruling. After briefing and oral argument, the trial court upheld the denial of the original motion to intervene because it was not signed by an attorney, as required by Oregon law. 40 • THE FEDERAL LAWYER • March/April 2021

On appeal, the Oregon Court of Appeals saw the issue as one of federal preemption: “When a state law ‘interferes or is incompatible with federal and tribal interests,’ the Supreme Court requires balancing tribal and state interests. … Here, we must first determine whether the requirement that a tribe be represented by an attorney in an ICWA proceeding ‘interferes with or is incompatible with’ the tribe’s right to intervene and its interest in its children. If we find an interference or incompatibility, then we must balance the competing state and tribal interests.”9 Balancing the interests at stake, the court of appeals reversed and remanded with instructions to grant the motion to intervene. The court held that ICWA preempted state statutes requiring groups and associations to be represented by an attorney when applied to an Indian tribe’s attempt to intervene in child custody proceeding under ICWA. The court explained: “[t]ribal participation in state custody proceedings involving tribal children is essential to effecting the purposes of the ICWA. The state interests represented by ORS 9.160 and ORS 9.320 are outweighed by those purposes and the tribal interests that they represent. With the applicable preemption test weighted in favor of tribal interests, the state requirement of representation by an attorney is preempted in the narrow context of these ICWA proceedings.”10 The next case to explore this issue in depth arose nearly 15 years later in Iowa.11 In that case, an Indian mother wanted to terminate her parental rights and place her child with a non-Indian family. After presenting the mother and the mother’s consent to terminate directly to the district court in June, an adoption attorney mailed notice to the tribe advising them of a July 27 hearing. Shortly thereafter, the tribe filed a motion to intervene and requested a continuance. The court granted the motion to intervene and continued the hearing so that the tribe could investigate the adoptive placement. On the day before the rescheduled hearing, the tribe faxed a resolution to the court that stated the child’s eligibility for membership in the tribe, the belief that ICWA had been violated because a child custody proceeding had occurred without notice to the tribe, the tribe’s intent to ask for preferred placement if the mother relinquished her rights, and the tribe’s appointment of their ICWA director as the tribal representative in the case. The court again continued the case until Nov. 1 so that all parties could consider the tribe’s resolution. On Nov. 1, the court held a termination hearing. The adoption attorney and the mother’s attorney objected to the tribe appearing by phone. The guardian ad litem argued that the tribe’s ICWA director should not be able to present evidence because she was not a lawyer. The tribe asked for a continuance to appear in person. The court denied the continuance and allowed the tribe to remain on the phone but prohibited the ICWA director from presenting any evidence. The court then proceeded to terminate parental rights. The tribe filed an appeal arguing, inter alia, that the court erred by refusing to allow the ICWA director to act as a representative of the tribe at the November 1 hearing. The Iowa Supreme Court agreed and held that an Indian tribe should be permitted to represent itself in ICWA proceedings. Citing State ex rel. Juvenile Dept. of

Lane County v. Shuey, the court stated, “[t]ribal participation in state custody proceedings involving tribal children is essential to effectuating the purposes of the ICWA” and “the state’s interest in adequate representation and compliance with procedure and protocol in general cannot compare with a tribe’s interest in its children and its own future existence.”12 The court was also sensitive to the economic hardships faced by tribes and noted that many tribes lack the resources for legal representation. This fact remains true today. One year later, the Nebraska Supreme Court came to a similar conclusion in In re Interest of Elias. In that case, the trial court denied the Ponca Tribe of Nebraska’s motion to intervene because it was not signed by an attorney. The court reversed, holding “the Tribe’s right to intervene under the federal Indian Child Welfare Act (ICWA) preempts Nebraska’s laws regulating the unauthorized practice of law.”13 The court concluded that “tribal participation in state custody proceedings involving Indian children is essential to achieving the goals of ICWA,” and that the tribal interests represented by ICWA outweigh the state interests expressed in the unauthorized practice of law statute.14 The three cases above, combined with the federal preemption doctrine, provide support for any tribe asserting its rights in an ICWA proceeding outside their home state. Litigation, of course, takes time and is costly. Litigating the issue of tribal representation in ICWA cases also requires hiring local counsel to litigate the issue in the non-home state. Meanwhile, the child custody proceeding will continue without the input of the tribe, and valuable time is lost. In the case I described at the beginning of this article, after the court denied the out-of-state tribal attorney’s motion, the tribe hired me because a motion to terminate parental rights was also pending. Had they not hired local counsel, they would not have had legal representation in the termination of parental rights proceedings. In the end, this was crucial because the juvenile court denied the motion to terminate parental rights and returned the children to their home. Had the tribe not intervened and actively participated with legal representation, the result may have been different. More recently, states have begun adopting rules or laws that expressly permit out-of-state tribal attorneys to appear in ICWA cases or that relax the pro hac vice rules so that tribal attorneys may appear without the financial burdens of fees and retaining local counsel. As of November 2020, at least nine states recognize the unique issues faced by tribes trying to obtain effective legal representation in ICWA cases in non-home states.15 These states have passed laws or rules that either relax the pro hac vice requirements or hold that tribal attorneys in ICWA cases are not subject to the laws governing practice-of-law. The first state to pass such a law was Nebraska, in 2015. Under the Nebraska Indian Child Welfare Act, as under the federal ICWA, a tribe can intervene at any point in the proceeding and “[t]he Indian child’s tribe or tribes and their counsel are not required to associate with local counsel or pay a fee to appear pro hac vice in a child custody proceeding” under the Nebraska ICWA.16 In 2018, California amended its pro hac vice rule to provide that the requirement to associate with local counsel “does not apply to an applicant seeking to appear in a California court to represent an Indian tribe in a child custody proceeding governed by the Indian Child Welfare Act.”17 Minnesota amended its General Rules of Practice for Courts in 2019 to provide that the general rules of practice do not apply to attorneys who represent Indian tribes in juvenile protection

matters.18 Wisconsin also amended its Supreme Court Rules in 2019 to provide that a nonresident attorney who seeks to appear for the limited purpose of representing a tribe in an ICWA proceeding does not have to pay pro hac vice fees or associate with local counsel.19 And this year, Utah amended its practice rule to exempt non-Utah licensed attorneys from the requirements of its pro hac vice rule if such attorneys are in good standing in another U.S. jurisdiction and will appear for the limited purpose of participating in a child custody proceeding under ICWA.20 Other states have amended their pro hac rules to relax the financial and local counsel requirements if certain conditions are met. The states of Oregon, Michigan, Washington, and Arizona have all amended their pro hac vice rules to allow tribal attorneys to represent their clients in ICWA cases without associating with local counsel or paying the pro hac vice fee if they are representing a tribe in a child custody proceeding under ICWA and they submit a pleading to intervene affirming eligibility of the child.21 Oregon also relaxes its pro hac requirements if an attorney represents an Indian parent or custodian.22 A state may also have additional requirements to apply for special pro hac status, such as submitting a certificate of good standing from the attorney’s home state. It is important to review all of the rules carefully. The efforts to allow tribal attorneys to appear and practice in outof-state ICWA cases were led by tribes themselves or tribal, state, federal court forums. In California, Arizona, and Michigan, tribal, state, and federal court forums lead the efforts to amend the pro hac vice rules. In Wisconsin, the rule change was proposed by the Menominee Indian Tribe of Wisconsin.23 As mentioned earlier, only nine states have adopted rules that allow out-of-state tribal attorneys to participate in ICWA cases, but more states are likely to follow suit. Under ICWA, tribes have the absolute right to intervene in state child custody proceedings involving Indian children. That right is severely undermined if tribes cannot have a seat at the table by being represented by tribal attorneys in these matters. While tribes can argue in each case that the federal preemption doctrine requires state courts to allow them to intervene and fully participate in out-of-state cases, pursuing that course on a case-by-case basis could be costly and time consuming, and could lead to inconsistent results. A more effective way to facilitate tribal representation in ICWA cases would be for each state to waive or relax pro hac vice rules, waive pro hac fees, and waive the requirement to associate with local counsel, for a licensed out-of-state tribal attorney who seeks to represent a tribe in an ICWA case in state court. Under either approach, tribes deserve a seat at the table by having legal representation in ICWA cases.  April Olson is a partner at Rothstein Donatelli LLP in Tempe, Ariz. Her practice focuses exclusively on tribal law and federal Indian law, and a significant part of her work involves Indian Child Welfare Act cases.

Endnotes 25 U.S.C. §§ 1901-1963. Id. at § 1903(1). 3 Id. at § 1903(4). 1 2

March/April 2021 • THE FEDERAL LAWYER • 41

See Cohen’s Handbook of Federal Indian Law § 1.04, at 81-82 (2005 ed.). 5 25 U.S.C. § 1911(c). 6 Data regarding number of cases for Navajo Nation, Gila River Indian Community, and Cherokee Nation on file with author. 7 For purposes of this article only, I use “home state” to describe the state in which a tribe has attorneys licensed. I use “non-home state” or “out-of-state” to refer to states where a tribe does not have attorneys licensed. This term in no way suggest that a tribe’s ancestral lands are limited to their home states. I recognize and acknowledge that many tribes have ancestral lands in multiple states and many tribes were forcefully relocated against their will. 8 State ex rel. Juvenile Dept. of Lane County v. Shuey, 850 P.2d 378 (Or. Ct. App. 1993). 9 Id. at 188 (internal citations omitted). 10 Id. at 191. 11 In re N.N.E., 752 N.W.2d 1 (Iowa 2008). 12 Id. at 12. 13 In re Elias, 767 N.W.2d 98, 100 (Neb. 2009). 14 Id. at 1031. 4

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Neb. Rev. Stat. § 43-1504(3); Or. R. Unif. Trial Ct., R. 3.170(9); Mich. Ct. R. 8.126(B); Wash. R. Adm. & Prac., R. 8(b) (6); Cal. R. Ct., R. 9.40(g); Minn. R. Juv. Proc., R. 3.06; Wis. R. Sup. Ct., R. 10.03(cm); Utah R. Sup. Ct. Prof. Prac., R. 14802(r); Ariz. R. Sup. Ct., R. 39 (a)(13). 16 Neb. Rev. Stat. § 43-1504(3)). 17 Cal. R. Ct., R. 9.40(g). 18 Minn. R. Juv. Proc., R. 3.06. 19 Wis. R. Sup. Ct., R. 10.03(cm). 20 Utah R. Sup. Ct. Prof. Prac., R. 14-802(r). 21 Or. R. Unif. Trial Ct., R. 3.170(9); Mich. Ct., R. 8.126(B); Wash. R. Adm. & Prac., R. 8(b)(6); Ariz. R. Sup. Ct., R. 39 (a)(13). 22 Or. R. Unif. Trial Ct., R. 3.170(9). 23 See In the Matter of the Petition to Amend Supreme Court Rule (SCR) 10.03(4), Regarding Pro Hac Vice admission for Nonresident Counsel Appearing in Matters Involving the Indian Child Welfare Act, No. 18-04 (Feb. 12, 2019), https://www.wicourts.gov/sc/rulhear/ DisplayDocument.pdf?content=pdf&seqNo=234887. 15

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44 • THE FEDERAL LAWYER • March/April 2021

Policymakers’ Role in Changing the Washington Football Team’s Name MARY J. PAVEL

he word “Reds**n” is a racial slur, and I have always believed that renaming Washington’s football team would be important to changing how America views and treats native people. In just one of a lifetime of experiences with this racial slur, an African American attorney told me that I should not be offended by “Reds**n,” as it was not the same as the “N word,” it is a football team name, and that I needed to understand the difference. My experiences with the word and the historical trauma that it represents meant nothing to him; after all, it was just the name of a football team. He could not understand that the use of native mascots and the term “Reds**n” negatively impacted me personally, let alone appreciate more broadly how these mascots negatively impact society’s perception of native people.1 In particular, as an attorney working on policy related to native populations, I have to battle the negative stereotype perpetuated by this word and educate congressional staff and members about tribes and native people and the important place they have in today’s society and government.

In 2013, I became the staff director and chief counsel for the Senate Committee on Indian Affairs. Prior to hiring me, my new boss, Sen. Maria Cantwell, D-Wash., attended a football game at FedEx Field when the Seattle Seahawks defeated Washington’s football team. In my first meeting with Sen. Cantwell, she told me that she was appalled by what she had seen at the game: people wearing fake headdresses, with paint on their faces, engaging in a horrible caricature of a native dance. She said that she knew that “Reds**n” was an offensive term, but it was not until she saw people behaving in such an offensive way that she understood the impact that the Washington football team name had on how America perceived native people. She said that, as the new chair of the Senate Committee on Indian Affairs, she wanted to bring her concern to the attention of her colleagues in the Senate. That gave

me my first chance, as someone who had worked on policy her whole career, to work directly on this issue and advocate for the name to change. Many have questioned whether there were more important issues in Indian country on which I should have been working. Certainly, tribal leaders battle every day to address critical challenges in their communities, including the lack of infrastructure, high crime rates, education gaps, and health gaps. However, fighting the impact of historical trauma and the daily macro and micro aggressions that are leveled at their members, in particular their children, because of America’s systemic belief that native people are not human beings, is critical to addressing these other challenges. In fact, studies demonstrate the significant negative psychological impact of mascots on native people and specifically native children.2 So, I determined that March/April 2021 • THE FEDERAL LAWYER • 45

working to rename Washington’s football team was about fighting to improve native children’s mental health. I briefed the senator on the history of the word “Reds**n,” the history of the team’s use of the name, the grassroots efforts to change the name, the pending Amanda Blackhorse cases challenging the Patent and Trademark Office’s registration of the name and logo,3 the psychological impact of the team’s name on native children, and my personal experiences with the word. Throughout the year, Sen. Cantwell discussed this issue with tribal leadership, current and former members of Congress, the NFL and NFL team owners, religious leaders, broadcasters, newspapers, and Washington’s football team itself. More people and organizations publicly called for the name to change. Sen. Cantwell gained powerful allies in the sports world, including Bob Costas, a renowned sports broadcaster, who on Oct. 13, 2013, delivered a monologue during halftime of the Sunday night game, in which he referred to the team’s name as an insult and a slur. As the senator was gaining more allies, we met on many occasions with NFL leadership and representatives of Washington’s football team. In doing this, the senator believed that if she brought the facts to the table with her powerful allies, the team and the NFL would finally make the right decision and that sound policy would be the straw that would ultimately break the camel’s back. However, at the 2014 pre-Superbowl press conference, NFL Commissioner Roger Goodell, in response to a question about the team’s name, stated: “This is the name of a football team … present-

The senators understood that preserving, protecting, and faithfully portraying tribal culture, tribal identity, and tribal history is critical to protecting tribal sovereignty and the well-being of Indian people. ed in a way that honors Native Americans.” It was at that point that the senator realized that sound policy arguments would inspire neither the NFL nor the team to change the name and that she had to bring other forces to bear on the issue. Thus, Sen. Cantwell, joined by Rep. Tom Cole, R-Okla., a citizen of the Chickasaw Nation, wrote to Mr. Goodell and asked the NFL to take a formal position in support of a name change and informed him that it was not appropriate for “a multibillion dollar 501(c)6 tax-exempt organization to perpetuate and profit from the continued degradation of tribes and Indian people.”4 The NFL’s response was to double down and defend the name, citing public polls that “90% of the Redskin fans support the name.”5 In May 2014, the NBA was rocked when Donald Sterling, then the owner of the Los Angeles Clippers, was caught on tape using disparaging terms to describe players in the NBA. The NBA acted quickly and decisively to sever Sterling’s ties with the NBA. Sen. Cantwell, although no longer chair of the Senate Committee on Indian Affairs, led the effort to send another letter to Commissioner Goodell asking him once again to support a name change. This letter 46 • THE FEDERAL LAWYER • March/April 2021

was joined by 48 of her colleagues, including Senate Majority Leader Harry Reid. In that letter, the senators pointed out that the fight to change the name was a matter of tribal sovereignty, as the heart of sovereignty is tribal identity, and that tribes have worked for generations to enact federal laws to protect tribal culture and identity, including the Native American Graves Protection Act, the American Indian Religious Freedom Act, the Native American Languages Act, and the Indian Arts and Crafts Act.6 The senators understood that preserving, protecting, and faithfully portraying tribal culture, tribal identity, and tribal history is critical to protecting tribal sovereignty and the well-being of Indian people. Sen. Cantwell took to the Senate floor to elevate this to the entire Senate, asking the NFL to get on “the right side of history.”7 In June 2014, the Trademark Trial and Appeal Board of the Patent and Trademark Office decided the Blackhorse case and canceled the registrations of the Reds**n marks as a violation of the disparagement clause of the Lanham Act, finding that at the time of the registrations, the marks consisted of matter that both “may disparage” a substantial composite of Native Americans and bring them into contempt or disrepute.8 The Washington Post, the team’s hometown newspaper, joined multiple media outlets and announced that it would cease using the word in its pages.9 While it seemed the scale was tipping in favor of changing the name, the NFL did not budge in the face of the Blackhorse decision or the growing cry for change. Instead, it issued a statement saying “The intent of the team’s name has always been to present a strong, positive and respectful image.”10 Thus, in September 2014, Sen. Cantwell introduced a bill that would remove the tax-exempt status of the NFL.11 Rather than face Congress’s continuing scrutiny, the NFL voluntarily gave up its tax-exempt status.12 Members of Congress continued to call for the team name to change, including Sen. Reid, who gave a speech on the Senate floor, during which he said the name “only fosters a tradition of racism, bigotry, and intolerance.”13 In 2017, the Blackhorse decision was vacated because the Supreme Court held in another case that the disparagement clause of the Lanham Act is an unconstitutional abridgement of free speech.14 As a result, the NFL and the team continued to profit from and broadcast this racial slur across the nation’s airwaves with impunity. This did not dissuade those calling for change. Members of Congress, tribal leadership, and the grassroots movement continued the advocacy for change.15 The change finally came in 2020, when America was confronted by the videos of George Floyd dying at the knee of a police officer and of Ahmaud Arbery being needlessly killed in a Georgia neighborhood. NFL players used their powerful megaphone to call upon America to acknowledge the systemic racism plaguing the country, which put a magnifying glass on the NFL’s continued support of a racial slur as the name of one of its most prominent teams.16 In response to America’s cries, corporate America stood up. In July 2020, FedEx told the team that unless it changed its name, the team would no longer be able to use the FedEx name and logo on its stadium.17 In addition, Nike stopped the sale of Redskin merchandise from its online store.18 On July 13, 2020, the team announced that it would cease using the name.19 While it was the voice of corporate America that was the straw that ultimately broke the camel’s back, policymakers’ efforts to amplify the issue played a major role in the outcome. Thus, as attorneys, and particularly those who practice in the policymaking arena, we

must be mindful of the important role that we can, and should, play in shaping and improving American society, especially as it continues to struggle with issues of social justice.  Mary J. Pavel is a member of the Skokomish Tribe of Washington. She is a partner at Sonosky, Chambers, Sachse, Endreson & Perry, LLP. During the 113th Congress, Pavel was the chief counsel and staff director for the Senate Committee on Indian Affairs.

Endnotes National Congress of American Indians, Ending the Legacy of Racism in Sports & the Era of Harmful “Indian” Sports Mascots (Oct. 2013), https://www.ncai.org/resources/ ncai_publications/ending-the-legacy-of-racism-in-sports-the-era-ofharmful-indian-sports-mascots. 2 Stephanie A. Fryberg, American Indian Social Representations: Do They Honor or Constrain American Indian Identities? Conference Presentation to University of Kansas (May 2004), http://www. indianmascots.com/ex-15---fryberg-brown-v.pdf. 3 Blackhorse v. Pro–Football, Inc., 111 U.S.P.Q.2d 1080 (C.C.P.A. 2014); see also Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015), vacated, 709 F. App'x. 182 (4th Cir. 2018) (citing Matal v. Tam, 137 S. Ct. 1744 (2017)). 4 Letter from Sen. Cantwell and Rep. Cole to Roger Goodell (Feb. 10, 2004), https://www.indian.senate.gov/sites/default/files/upload/ files/Feb%2010%202014%20Cantwell-Cole%20Letter%20to%20 Roger%20Goodell.pdf. 5 Letter from Roger Goodell to Sen. Cantwell and Rep. Cole (Feb. 24, 2014), https://www.scribd.com/doc/211050128/Roger-GoodellLetter-To-Senator-Cantwell-Rep-Cole. 6 Letter to Roger Goodell from Sen. Cantwell (May 22, 2014), https://www.washingtonpost.com/news/dc-sports-bog/ wp/2014/05/22/maria-cantwell-explains-the-senates-letter-to-thenfl-about-the-redskins/. 7 160 Cong. Rec. S 3261 (daily ed. May 22, 2014). 8 See Blackhorse v. Pro–Football, Inc., 111 U.S.P.Q.2d 1080 (C.C.P.A. 2014). 9 Annys Shin, Washington Post editorial board stops using the word ‘Redskins’, The Washington Post (Aug. 22, 2014), https://www. washingtonpost.com/local/washington-post-editorial-board-stopsusing-the-word-redskins/2014/08/22/39864ae0-2a0a-11e4-8593da634b334390_story.html. 10 Fifty U.S. Senators urge Redskins to change name, NFL.COM (May 24, 2014), https://www.nfl.com/news/fifty-u-s-senators-urgeredskins-to-change-name-0ap2000000353208. 11 To Amend the Internal Revenue Code of 1986 to Prohibit Tax-Exempt Status to Professional Sports Leagues That Promote the Use of the Term Redskins, S. 2884, 113th Cong. § 2 (2014). 12 Maxwell Strachan, Why Did the NFL Voluntarily Give Up its TaxExempt Status? Experts Weigh In, HUFFPOST (Apr. 28, 2015), https://www.huffpost.com/entry/nfl-tax-exempt-status_n_7166020. 13 161 Cong. Rec. S4904 ( July 9, 2015). 14 Pro-Football, Inc. v. Blackhorse, 709 F. App'x 189 (4th Cir. 2018) (citing Matal v. Tam, 137 S. Ct. 1744 (2017)). 1

165 Cong. Rec. H8391 (Oct. 23, 2019); Native Act to Transform Imagery in Various Environments, H.R. 5854, 116th Cong. § 2. (2020). 16 Dan Lucy, Mahomes Raises His Voice for Social Justice, OZARKSFIRST ( Jun. 15, 2020), https://www.ozarksfirst. com/sports/mahomes-raises-his-voice-for-social-justice/; Chris Lingebach, Richard Sherman Speaks Out Against Redskins Name, CBS DC (May 8, 2014), https://washington.cbslocal. com/2014/05/08/richard-sherman-speaks-out-against-redskinsname/; Stephen Whyno, Debate on racism renews calls for Redskins to change name, BOSTON.COM ( June 18, 2020), https://www.boston. com/sports/nfl/2020/06/18/redskins-name-change. 17 Liz Clarke, In private letter to Redskins, FedEx said it will remove signage if name isn’t changed, The Washington Post ( Jul. 10, 2020), https://www.washingtonpost.com/sports/2020/07/10/ private-letter-redskins-fedex-said-it-will-remove-signage-if-nameisnt-changed/. 18 Redskins to Review Team Name, NBCSPORTS ( Jul. 2, 2020), https://www.nbcsports.com/washington/redskins/nike-removesredskins-name-apparel-its-website. 19 Les Carpenter, Washington’s NFL team to retire Redskins name, following sponsor pressure and calls for change, The Washington Post ( Jul. 13, 2020), https://www.washingtonpost.com/ sports/2020/07/13/redskins-change-name-announcement/. 15

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48 • THE FEDERAL LAWYER • March/April 2021

Economics of Veterans Benefits for Indigenous Veterans CAROL SCOTT

ndigenous veterans (American Indians/ Alaska Natives [AI/AN], Native Hawaiians, Pacific Islanders) are proportionally the largest demographic in service in the armed forces. This is a tradition that pre-dates the Revolutionary War. It exists despite the broken treaties, physical and cultural genocide, and 200 years of confiscation of tribal lands and desecration of sacred grounds. Indigenous veterans also receive far fewer benefits, health care, and services than any other demographic. Native American veterans after Vietnam were virtually invisible.1

During the Vietnam era, a substantial number of native enlistees were not even identified as such, as there was no check mark for “Native American,” resulting in their identification as Black, Hispanic or “other.” In 2017, the census bureau population estimates found that 7.1% of the adult civilian Indigenous population of AI/ AN (1,986,419) are veterans, a number that probably reflected not only the (now) 574 federally recognized tribes but the (now) 55 state-recognized tribes, but excluded Hawaiian and Pacific Islanders.2 The Veterans Administration (VA) puts the total at approximately 140,000, a number that does not include veterans of state-recognized tribes, for which the VA Office of Tribal Government Relations offers no programs, services, or any other assistance. There is considerable reason to doubt the VA estimate of Indian veteran population, as anecdotal evidence from other sources place the number of individuals identifying as such as high as 300,000. Indigenous people serve in the military for two major reasons. The first is the historic warrior tradition and the status the warrior historically held within the tribal community as leader, protector and

provider, and conservator of ceremony and tradition. The second is the economic draft. The unemployment rate, particularly in many of the western tribes, is over 80 percent.3 There is a near-total lack of economic development opportunities and employment outside of the Bureau of Indian Affairs, the Indian Health Service (IHS), and tribal employment. Military service offers the potential for health care, benefits, and education. However, when veterans return home, there is still no economic opportunity, and health care is either very distant or lacking, as is any meaningful representation with which to pursue claims for VA benefits or access to VA services and programs. The economic impact of the acquisition of full benefits, services, and programs cannot be underestimated. In one Oklahoma tribe, a fully accredited Tribal Veterans Service Office (accredited through the state) brought into the tribal community $16,000,000 in benefits, health care, and other VA programs and services over a period of 12 years.4 In the majority of tribal communities, there is no representation of veterans within the community and thus, the potential for millions of dollars is left on the table. This paper will discuss the structure of the VA; the benefits, programs, and services it provides; and the economic benefit to the tribal community. The VA consists of three administrations: the Veterans Benefits Administration, which processes claims, including appeals to the Board of Veterans Appeals, and administers the fiduciary program, educational programs, housing programs, and many more for veterans, dependents and survivors; the Veterans Health Administration (VHA), which is responsible for all health care services and programs; and the National Cemetery Administration, which administers the National Cemeteries, including grants for veterans’ cemeteries on tribal lands. The VA has over 380,000 employees, of which only 1.5% are Native American.5 The budget for Fiscal Year (FY) 2020 is $220.2 billion, a 9.6 increase over 2019, with $93 billion in discretionary spending and $123 billion in mandatory spending.6 The requested budget for FY 2021 is $243.3 billion, a 10.2% increase over 2020.7 March/April 2021 • THE FEDERAL LAWYER • 49

Each year the Veterans Benefits Administration publishes a benefits booklet that outlines rating tables for compensation and pension for veterans, spouses, survivors, and dependents8 The VA budget for 2020 included $84.1 billion for health care.6 The agency currently has a Memorandum of Understanding with the IHS for reimbursement for care for veterans, which is under review for revision to conform with the provisions of the Mission Act.9 The National Congress of American Indians is urging a legislative fix to ensure that Indigenous veterans are not required to make co-pays to either agency and that quality of care is ensured. VA compensation is paid pursuant to a granted claim arising from illness or injury either resulting from events or conditions occurring during the term of service or that are aggravated during the term of service. There are three elements that must be met: a diagnosed medical condition, an event in service, and a nexus between the two. The prime reason for filing a claim for compensation is to obtain free health care from the VA, although the monetary aspect is also very important, particularly in economically challenged tribal communities. Compensation is tax free. The discharge must be under other than dishonorable conditions. Rates vary with the nature and degree of disability, with payments ranging from $1,730/year for 10 percent to $44,783/year for 100 percent for a veteran with a spouse, two parents, and one child. Additionally, when there is loss or loss of use of anatomical parts, and/or inability to perform Activities of Daily Living and/or the veteran is housebound or in need of aid and attendance, Special Monthly Compensation will be added to the basic rates, which can add a substantial sum, also tax-free.10 There is no penalty for employment while receiving compensation, with the exception of a rating of Total Disability by Virtue of Unemployability. This is based on the inability to work coupled with a lower rating. VA pension is needs-based and granted to veterans, survivors, and dependents. Pension eligibility requires a) a discharge under other than dishonorable conditions, b) service of 90 days or more of active duty, with at least one day during time of war, c) countable household income below the maximum annual pension rate, d) net worth limitations, and e) age 65 or older, or possessing a permanent and total non-service connected disability, or being a patient in a nursing home or receiving social security benefits.11 For 2021, the Maximum Allowable Pension Rate for a veteran without dependents and who does not qualify for Housebound or Attendance benefits is $9,344 per year with a three year lookback for assets transfers.12 This means that the VA reviews any asset transfer within the prior three years to determine whether those assets would render the veteran or surviving spouse or dependent ineligible for pension. Penalties for such transfers can be substantial, delaying pension for several years. All household income is offset against the Maximum Allowable Pension Rate, with some exceptions for unreimbursed medical expenses and some income earned by children in limited amounts. The VA provides free health care for five years to veterans deployed to a war zone since 1998.13 Otherwise, health care is available with 90 days of active duty in any branch of the service with anything other than dishonorable discharge. Care is tiered into eight priority levels, of which only levels seven and eight require co-pays of $30. There are no co-pays for service-connected conditions.14 The VA Family Caregiver Program was established by the Caregivers and Veterans Omnibus Health Services Act of 2010 (Part 71 of 50 • THE FEDERAL LAWYER • March/April 2021

Title 38 CFR). It should be far more utilized in tribal communities than we believe that it is. This program provides a stipend for the primary caregiver on the theory that caregivers forego income and employment in order to care for family members who are impaired by virtue of their military service. It provides an opportunity for the veteran to stay in the family home rather than in a nursing home or other residential facility far from home. This is particularly helpful when a tribal veteran has lost the ability to speak English and can only communicate in his/her native language. The stipend is $10 per hour.15 Participation in the Caregiver Program is available for injuries or illnesses incurred or aggravated in the line of duty in active military service. Eligibility rests on the veteran being 100 percent disabled under VA regulations: the inability of the veteran to perform one or more of the 10 Activities of Daily Living, such as bathing, eating, or walking any distance. There are now regulations that allow program participation to veterans with need of supervision or protection based on symptoms or residuals of neurological or other impairment or injury, such as severe post-traumatic stress or traumatic brain injury. While initially only veterans of Southwest Asian conflicts were eligible, The VA Mission Act of 2018 provides for inclusion of veterans serving prior to 9/11. The program provides free training that is roughly equivalent to that of an licensed practical nurse, with transportation and maintenance during training for the Primary and Secondary caregivers. The Primary Caregiver must be a family member, as should the Secondary. Both Primary and Secondary must reside in the home. The Primary Caregiver receives free medical care and a 30-day annual respite period. Instruction is also provided specific to the veteran’s needs, such as IV maintenance, maintenance of prostheses, and certain types of more specialized care. The third category of caregiver is classified as a General Caregiver, who does not have to reside in the home and receives training in care of the veteran with telehealth and counseling, and who may also receive respite care. The caregiver becomes part of a treatment team consisting of the caregiver and VA health care providers. There is close monitoring of progress, conditions in the home, and the level of need of the veteran. Education benefits are extremely important to the veteran transitioning from active duty to civilian life and are particularly beneficial to Indigenous veterans, as the knowledge and skills acquired bring opportunities for economic growth back into the community. The benefits include, for full-time students, all tuition and fees for in-state college, university or technical school, as well as tuition and fees up to $25,162 for private or foreign schools. The post 9/11 GI Bill also provides monthly housing with the equivalent of base housing allowances for E-5 rates within the geographical area of the school. There is also an allowance for books and supplies up to $1,000 proportionally. This benefit is very helpful for native veterans seeking an education away from the tribal community. Under the current rules, a service member may transfer the benefits to a spouse or a child. There is a provision for a one-time grant of $500 when a veteran needs to relocate from a highly rural area in which there are six people within a square mile area.16, 17 The VA also provides Veteran Readiness and Employment (VR&E) programs that include counseling, education, and job placement to veterans with service-connected disabilities along with subsistence housing support similar to that of educational housing support. There is a very broad range of vocational rehabilitation covered by this program, including professional education, such as law.

There tends to be considerable long-range periods involved with this area of benefits, as this assistance can continue for a number of years. Also included in VR&E is assistance in gaining the skills necessary for independent living, which includes evaluation of need, counseling, occupational therapy, and coordination with medical care. There is further assistance with information about and eligibility for grants providing adaptive housing and other structural amendments to provide safe and accessible housing, including home improvement. This is particularly important in instances of severe injuries that leave the veteran with limited mobility and the necessity of relearning many of the skills of daily living or living with debilitating disorders such as Parkinson’s disease and multiple sclerosis.18 Housing programs should be utilized in tribal communities because they introduce funds in the form of grants for construction and modification of living space for severely disabled veterans whose injuries or illnesses are service-connected, allowing them to stay within the tribal community. These programs include Special Adaptive Housing (SAH) grants, which must be utilized to build on land either owned or to be purchased, or to remodel an existing home if that home is suitable for adaptation. The grant may also be applied to an existing mortgage on an adapted home that was purchased without a VA grant. This grant has a ceiling of $100,896. A Special Housing Adaptation (SHA) grant may similarly be used to modify an existing home owned by either the veteran or his/her family. Eligibility requirements for these grants include loss or loss of use of appendages, sight, etc., which require adaptive accommodations. For SAH/SHA-eligible veterans living temporarily in a family member’s home that requires changes to meet the veteran’s needs, Temporary Residence Adaptation grants provide assistance up to $40,637 for SAH-eligible veterans and up to $7,256 for SHA-eligible veterans.19 Native American Direct Loans (NADL) may be used to purchase a home on trust land. These are loans, not grants, which must be repaid. Eligibility begins with an MOU between the tribe and VA, which is the lender. The veteran must have other than a dishonorable discharge or be on active duty. A survivor receiving Disability Indemnity Compensation is also eligible for a NADL. There is no down payment, interest rates start at 3 percent, and in most areas, veterans may borrow up to the Fannie Mae/Freddie Mac conforming loan limit. The NADL program was instituted in 1992. Since that time, only 108 of 574 tribes have MOUs with the VA for this program, and only 6,040 loans have been made under it. It does not appear to be highly utilized, and in those communities with high unemployment, it may not be feasible. The NADL program is very important, however, as it provides the opportunity of financing housing, otherwise very difficult on tribal trust lands . In virtually every tribal community this writer has visited in the last several years, veteran homelessness has been raised as an issue. Tribal Veterans Service Officers (TVSOs) consider it to be largely hidden in tribal communities because homeless veterans are usually taken in by family members or migrate among homes of friends. In response to veteran homelessness in general, the VA collaborated with Housing and Urban Development (HUD) to develop HUDVA Supportive Housing (HUD-VASH), a program by which HUD vouchers for rental assistance are coupled with VA supportive services such as health care, mental health treatment, and substance counseling to aid in the recovery process and the ability to maintain housing within the community. In tribal communities, the vouchers are frequently used to provide housing in veterans centers adapt-

ed for housing, or to support a veteran taken in by his/her family. The vouchers are particularly important for veterans experiencing long-term or repeated homelessness. It is important that the tribal community be aware of the HUD-VASH program. To be eligible, a veteran must be eligible for VA health care and be virtually without an income. The Tribal HUD-VASH program was instituted as a pilot project in 2018 under VHA. It is designed so that VHA provides clinical case management and supportive services to homeless and at-risk homeless American Indian and Alaska Native veterans living on or near Tribal HUD-VASH grantees’ trust land.20 The Tribal HUD-VASH program is now available for tribal communities. The Small Business Administration has developed the Veterans Business Outreach Centers (VBOCs) program to assist veterans in transitioning from active duty to veteran status and help them set up small businesses. The centers do everything from educating veterans about small business ownership and assisting in business plan development to finding a loan, providing counseling, and mentoring the running of the business.21 VBOCs also go onto tribal lands, and in the last year or so, the challenges of creating a veteran-owned small business on tribal lands has become a part of their annual training conference. A significant problem for veterans in tribal communities is the high incidence of Other Than Honorable (OTH) discharges.22 There are four OTH categories: 1) General Discharge, 2) Discharge in Lieu of Court-Martial (administrative), 3) Bad Conduct Discharge, imposed by a special court-Martial, and 4) Dishonorable Discharge, imposed by a general court-martial. The last three are the result of criminal activity. The first is generally imposed when there have been a series of minor infractions resulting in imposition of Article 15s and/or the servicemember is determined to be unsuited to military service. Personality disorders are frequently the rationale. For many tribal veterans, there is a considerable element of cultural disconnects involved. In many cases, there have been behavioral changes as the result of post-traumatic stress, military sexual trauma, or undiagnosed traumatic brain injury, which cause mental health issues, in turn leading to behavioral issues. In a number of cases, schizophrenia and bipolar disorder have been the causative factors, both of which tend to become symptomatic in the late teens and early 20s—the ages of enlistment—and emerge under stress. There are three sources for upgrading OTH discharges: 1. D ischarge Review Boards (DRBs), which have a 15-year time limitation and may review any punitive separation except one that results from a general court-martial. During the Vietnam era there were traveling DRBs. Now, they are centrally located or regional, depending on the branch of service. 2. B oards of Correction of Military Records, which each branch of service has except for the Marine Corps, which is under the Navy Board of Correction of Military Records. These may review any service record of punitive discharge and any record of any service member, including administrative records. 3. V A adjudication for purposes of awarding benefits. VA adjudication is permitted, although it tends to be more difficult to obtain relief before the VA than before the DRBs. The high incidence of OTH discharges results in the inability to access VA health care, which contributes to the high incidence of suicide both in tribal communities and society in general. It is comMarch/April 2021 • THE FEDERAL LAWYER • 51

monly known that 22 veterans a day take their own lives, an average of eight of which have had no contact with the VA. It is not known whether anyone is identifying, tracking, or counting veteran suicide on tribal lands. All of the foregoing discussion should demonstrate the critical need for fully accredited TVSOs. Full accreditation means that they hold a Personal Identity Verification card, which gives them electronic access to all of the VA records on the veterans they represent and the legal ability to hold the power of attorney. Without the Personal Identity Verification card, they have no power of attorney and no access. The VA promulgated regulations ostensibly to enable the accreditation of “Tribal Veterans Organizations.” They may be found at 38 C.F.R. Ch. 14 Sects. 627-629 ( January 2017). They were promulgated without any consultation that conformed to the requirements for consultation. There does not appear to have been any collaboration with any entity with expertise in Indian law either within or outside of the government. The regulations require tribal entities to meet the same requirements as national veterans’ service organizations, which is of course impossible. So far, three tribes have applied and three have been denied, one of them three times. The role of the TVSO within the tribal community is far more varied and critical than that of the common Disabled American Veterans office or American Legion veterans’ service organization. The TVSO has the responsibility of counseling and educating veterans (and tribal leadership) within the community about every program offered by the VA and other agencies. TVSOs file the initial claims, track their progress, and monitor the medical exams required, which is critically necessary with mental health exams to assess for cultural competence. They also evaluate the rating decisions for errors, cultural competence, and opportunities for appeal. They are the portal through which the tribal veteran gains access to every benefit, service, and program they have earned through their military service and sacrifice. TVSOs play a critical role in Tribal Veterans Treatment Courts, as they can develop potential claims and are able to work with justice-involved veterans in the state and federal systems when needed, ensuring cultural competence in VA treatment. TVSOs are the advocates for cultural competence in all contacts with the VA and other agencies by tribal veterans. It is through this knowledge and expertise that significant funds flow into the tribal community. Interest in the issue of full TVSO accreditation is currently increasing in the House Committee on Veterans Affairs and the Senate Committee on Veterans Affairs. A coalition has formed among the National Congress of American Indians, the American Bar Association, the FBA, and Holland & Knight to pursue the issue through resolution and advocacy before legislators.23 The critical need on the part of native veterans was seen in the historical first hearing devoted to native veterans in October 2019 before the House Committee on Veterans Affairs. The hearing addressed the access of native veterans to VA health care. It was followed by the first congressional delegation fact-finding trip to two reservations in South Dakota in January 2020 for the purpose of assessing the needs of tribal veterans. While the current estimate of suicide among veterans is placed at 17 per day,24 there is currently no agency or entity that is identifying, tracking, or counting veteran suicide on tribal lands—not the VA, the Department of the Interior, the IHS, or any other organization. Nor is there any culturally competent mental health care or suicide prevention program in place. A bill has been introduced in the House Veterans Affairs Committee by Rep. Julia Brownley, D-Calif., chair 52 • THE FEDERAL LAWYER • March/April 2021

of the Health Subcommittee, which will require the VA to address some of these issues. H.R. 8068, The American Indian Alaska Native Mental Health Act, will require the VA to design and implement culturally competent mental health care and suicide prevention programs. Fully accredited TVSOs are essential to the appropriate design and effective implementation of these programs, as they have the closest relationships with the veterans within the tribal community and provide their most effective voice. Tribal leadership understanding and support of Tribal Veterans Offices and TVSOs for office space, staff, and training is badly needed. Much of today’s leadership does not include veterans and does not understand the issues and needs of veterans. Financial support is badly needed in virtually every tribal community with a TVSO. While there is a growing belief that the VA should be required to provide funds for offices, staff, and training expenses under the trust and treaty obligation, the support of leadership and leadership advocacy for TVSO programs before governmental agencies is critical. Indian law practitioners advise tribal leadership regarding many issues. Educating leadership on the economic advantage of ensuring that veterans in the tribal community have every opportunity to obtain the full suite of benefits should be one of them. While many other avenues of income in tribal communities have been slashed or eliminated, VA programs will not go away anytime soon, as the political cost would be prohibitive. Veterans in tribal communities and their dependents and survivors need to have unfettered access to health care, programs, and financial benefits earned through service to this country.  Carol Scott, Esq., earned her law degree in 1970 and opened a solo practice in Gainesville, Fla., specializing in military law. She served as civilian counsel for President Ford’s Clemency Program and on the central staff of the U.S. Court of Military Appeals (now USCAAF) in Washington, D.C. In 1982, as supervisory attorney, she set up the staff attorney’s office of the U.S. Circuit Court of Appeals for the Eleventh Circuit when it was split from the Fifth Circuit. In 1995, she became deputy director of The Veterans Consortium Pro Bono Program until her semi-retirement in 2017. During that time she served first as chair of the Veterans & Military Law Section of the FBA and currently is chair of the Veterans Affairs & Legislative Committee of the section. She is a co-author of the Military Rules of Evidence and several articles for The Federal Lawyer.

Endnotes Tom Holm, Strong Hearts, Wounded Souls: Native American Veterans of the Vietnam War 13-18 (1996). 2 U.S. Census, American Community Survey 2017 1-Year Estimates Table, Sex by Age by Veteran Status for the Civilian Population (2017). 3 Vincent Schilling, Terrible Statistics: 15 Native Tribes with Unemployment Rates over 80 Percent, Indian Country Today (Aug. 29, 2013), https://indiancountrytoday.com/archive/terriblestatistics-15-native-tribes-with-unemployment-rates-over-80percent-iAV-3u_770-C6fEcCc3lfA. 4 Letter from James Floyd, Muscogee Creek Nation, to the Office of General Counsel, Department of Veterans Affairs (Mar. 29, 2016). 5 U.S. Dep’t of Veterans Affairs, Office of Diversity and Inclusion, Office of Human Resources and Admin, Mgmt. Directive 715, 105 (2018). 6 U.S. Dep’t of Veterans Affairs, Office of Budget, President’s Budget Request Fiscal Year 2020. 7 U.S. Dep’t of Veterans Affairs, Office of Public and Intergovernmental Affairs, VA Strengthens Care and 1

Benefits for Veterans with $243 Billion Budget Request for Fiscal Year 2021(Feb. 10, 2020), https://www.va.gov/opa/ pressrel/pressrelease.cfm?id=5393. 8 U.S. Dep’t of Veterans Affairs, Federal Benefits for Veterans, Dependents and Survivors (2019), https://www. va.gov/opa/publications/benefits_book/2019_Federal_Benefits_ for_Veterans_Dependents_and_survivors.pdf. 9 Memorandum of Understanding Between the United States Dep’t of Veterans Affairs, Veterans Health Admin. and United States Dep’t of Health and Human Servs., Indian Health Serv., Tribal Consultation Document: DRAFT (Nov. 2020) https://www.ihs. gov/sites/newsroom/themes/responsive2017/display_objects/ documents/2020_Letters/Enclosure_DTLL_12022020.pdf. 10 U.S. Dep’t of Veterans Affairs, 2021 Veterans Disability Compensation Rates (Dec. 1, 2020), https://www.va.gov/ disability/compensation-rates/veteran-rates/. 11 U.S. Dep’t of Veterans Affairs, VA Pension Fact Sheet (Aug. 2018), https://benefits.va.gov/BENEFITS/factsheets/ limitedincome/livepension.pdf. 12 U.S. Dep’t of Veterans Affairs, 2021 VA Survivors Pension Benefits Rates ( Jan. 19, 2021), https://www.va.gov/pension/ survivors-pension-rates/. 13 U.S.Dep’t of Veterans Affairs, Active-Duty Service Members and VA Health Care (Dec. 30, 2020), https://www. va.gov/health-care/eligibility/active-duty/. 14 U.S. Dep’t of Veterans Affairs, VA Priority Groups ( July 13, 2020), https://www.va.gov/health-care/eligibility/prioritygroups/. 15 U.S. Dep’t of Veterans Affairs, Stipend Benefit for the Primary Family Caregiver (Dec. 2016), https://www.va.gov/ COMMUNITYCARE/docs/pubfiles/factsheets/FactSheet_11-02.pdf.

U.S. Dep’t of Veterans Affairs, Post-9/11 GI Bill (Chapter 33) ( Jan. 27, 2021), https://www.va.gov/education/about-gi-billbenefits/post-9-11/. 17 U.S.Dep’t of Veterans Affairs, Post-9/11 GI Bill (Chapter 33) Payment Rates for 2020 Academic Year (Aug. 1, 2020– July 31, 2021) ( Jan. 13, 2021), https://benefits.va.gov/GIBILL/ resources/benefits_resources/rates/ch33/ch33rates080120.asp. 18 U.S.Dep’t of Veterans Affairs, Veteran Readiness and Employment (VR&E) ( June 23, 2020), https://www.benefits. va.gov/vocrehab/. 19 U.S.Dep’t of Veterans Affairs, Disability Housing Grants for Veterans (Nov. 12, 2020), https://www.va.gov/housingassistance/disability-housing-grants/. 20 U.S. Dep’t of Veterans Affairs, VHA Directive 1504 Transmittal Sheet ( June 6, 2018), https://www.va.gov/ vhapublications/ViewPublication.asp?pub_ID=6432. 21 U.S.Small Bus. Admin., Veterans Business Outreach Center (VBOC) Program, https://www.sba.gov/page/veteransbusiness-outreach-center-vboc-program (last visited Dec. 2020). 22 H.R.Rep. No. 115-390, at 4 n.3 (2017). 23 Resolution 110 passed the House of Delegates of the ABA during its convention in September 2020. The requirement for advocacy on the part of ABA government relations is being implemented. 24 U.S. Dep’t of Veterans Affairs, Office of Mental Health and Suicide Prevention, 2020 National Veteran Suicide Prevention Annual Report (2020), https://www.mentalhealth. va.gov/docs/data-sheets/2020/2020-National-Veteran-SuicidePrevention-Annual-Report-11-2020-508.pdf. 16

Acknowledgement: My deep gratitude to Heather Dawes, Ph.D., for a masterful job of editing this article.

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54 • THE FEDERAL LAWYER • March/April 2021

Changing Consultation ELIZABETH KRONK WARNER, KATHY LYNN, AND KYLE WHYTE

xamples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship.1 To date, however, many within Indian country2 would argue that effective consultation is not occurring. This may be due in part to a lack of effective guidance on what federal-tribal consultation should look like. Given the existing lack of effective guidance as to what tribal-federal consultation should normatively look like, this article looks to models of cooperative management and collaboration that may serve as useful mechanisms for improving consultation between tribes and the federal government. The article concludes with several discrete recommendations on what should be included in tribal-federal consultations to ensure that legal, moral, and ethical requirements are met. Note: This article is a revised version on an article by the same name that has been published in the U.C. Davis Law Review.

Legal Claims to Effective Consultation So, what does the law say? This part of the article examines existing federal law applicable to tribal-federal consultation. Ultimately, although federal law calls for consultations between tribes and the federal government, the existing law does not provide enough guidance as to what this consultation should look like.

Federal Trust Relationship To start, there exists a federal trust relationship between the federal government and federally recognized tribes. It obligates the federal government to provide certain services to tribal members; it is the

historical origin of congressional plenary power over Indian affairs; and it requires federal officials to protect tribal resources and tribal sovereignty. In keeping with these responsibilities, this federal trust responsibility calls for consultation between tribes and the federal government, as the trust relationship requires the federal government to act in the best interests of tribes. Further, the trust relationship is arguably the foundation of the duty to consult. Should the federal government breach this trust responsibility, tribes may bring a claim against the federal government, assuming certain criteria are met. Accordingly, in examining the scope of the federal government’s duty to consult, consideration of the federal trust relationship and its potential application in this context is helpful. Routel and Holth conclude that this responsibility “imposes a procedural duty on the federal government to consult with federally recognized Indian March/April 2021 • THE FEDERAL LAWYER • 55

tribes. Meaningful consultation with federal officials is necessary to determine what services are most needed for tribal members, to understand how federal and state actions may be encroaching on tribal sovereignty, and to analyze whether a federal project will have an adverse effect on tribal resources.”3 Today, in determining whether there is an enforceable trust relationship, courts focus their analysis on the amount of control by the federal government over the trust corpus in question. Where the federal government had near complete control over the trust corpus, as in White Mountain Apache,4 the the U.S. Supreme Court found in the Tribe’s favor. Therefore, scholars have concluded that “finding a ‘network’ of statutes to base a breach of trust damages claim depends on: 1) express statutory language supporting a fiduciary relationship; and 2) comprehensive control over government property.”5 The federal courts have required that a tribe asserting the federal trust responsibility as the basis of its claim against the federal government must first assert a substantive source of law that requires the federal government to act as a fiduciary or undertake certain obligations. Absent such an explicit requirement, neither the government’s control nor common law obligations matter in terms of recognizing an enforceable trust relationship against the United States. Furthermore, the federal courts have explained that mere federal oversight does not amount to the necessary day-to-day control over operations typically required for a successful claim based on the federal trust relationship.6 Also, in determining whether a particular law provides a cause of action, it is not necessary that the law explicitly provide a private right of action. In fact, “[a]ll that’s required for a private right of action to exist is a showing the statute at hand ‘can fairly be interpreted’ to permit it.”7

Tribal Treaty Rights Having explored the tribal federal trust relationship, it is helpful to now explore another potential tribal legal claim to effective consultation—tribal treaties and treaty rights. Such analysis is helpful to tribes because of the significance of treaties. Treaty rights are, in many cases, intimately connected to the cultural survival of tribes.8 As a result, given the importance of these rights, effective consultation may be necessary to protect tribal treaty rights. Given that tribes possess rights outside of their tribal lands, there is a need for direct interaction between tribes and the federal government to ensure that trust responsibility and treaty rights are upheld. Because over 400 treaties between tribes and the federal government exist, treaties play a significant role in determining the legal rights held by tribes. Cohen’s Handbook of Federal Indian Law, the seminal treatise on federal Indian law, explains: Many tribes view these treaties not only as vital sources of law for the federal government, but also as a significant repository of tribal law in such areas as identification of tribal boundaries, environmental regulation, and the use and control of natural resources on the reservation. As organic documents made with the federal government, treaties constitute both bargained-for exchanges that are essentially contractual, and political compacts establishing relationships between sovereigns. In both capacities, treaties establish obligations binding on Indian nations and the federal government alike. Because of their importance to both tribes and the federal government, it is helpful to understand what tribal treaty rights are 56 • THE FEDERAL LAWYER • March/April 2021

and how courts have used such rights to protect tribal interests in the past. Tribal treaty rights refer to rights that tribes retained following negotiation of a treaty with the United States. Between 1789 and 1871, when treaty making between the federal government and tribes was ended, the federal government and numerous tribes entered into treaties.9 A treaty between a tribe and the United States “is essentially a contract between two sovereign nations.”10 Such treaties have also been described as “quasi-constitutional” documents.11 Despite the strength of potential claims to tribal treaty rights, however, tribal treaties do not speak to how consultations between tribes and other stakeholders should take place. Therefore, even those are relatively robust legal claims available to tribes, such arguments do little to provide guidance as to how such consultations should occur.

Statutory Requirements for Consultation Another example of legal requirements that impact consultation between tribes and other sovereign governments are statutes. Despite speaking specifically to consultation, these statutes provide little guidance as to what such consultation should look like. Several statutes require some form of consultation between the federal government and relevant tribes. For example, the American Indian Religious Freedom Act (AIRFA) provides that it is the policy of “the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions … including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”12 Further, the joint congressional resolution provides that “[t]he President shall direct the various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices.” The U.S. Supreme Court, however, held that AIRFA does not create any judicially enforceable rights.13 Also, in a relevant part in Havasupai Tribe v. U.S., the district court explained that “AIRFA requires a federal agency to … to consult with Indian organizations in regard to the proposed action. AIRFA does not require Indian traditional religious considerations to always prevail to the exclusion of all else.”14 The finding that AIRFA does not require the federal government to act in a certain way that is protective of American Indian religions has been repeatedly upheld by the federal courts.15 Additionally, AIRFA is silent as to how consultation is to occur. Another example is Section 106 of the National Historic Preservation Act (NHPA), which also requires a consultation process for any “undertakings” by a federal agency, or assisted or licensed by a federal agency, that may have an effect on “any district, site, building, structure, or object” that is on, or is eligible to be included in, the National Register. Like AIRFA, however, the NHPA is also silent as to what the consultation process should look like. Additionally, the NHPA consultation requirement does not trigger an independent cause of action in the federal courts. The Ninth Circuit held that the NHPA creates no private right of action against the federal government.16 Although section 106 of the NHPA does require consultation, the legal effect of that requirement seems somewhat uncertain. Courts

are split on how to interpret the requirement. Some courts give the requirement “teeth” by pushing back in the face of inadequate consultation, and others do not. The fact that the statute itself does not specify when and how consultation is required complicates the matter. Also, all of these statutes require consultation when tribal resources are potentially being impacted; they do not require such consultation when tribal sovereignty is allegedly impacted.17 In May 1972, the federal government published a policy titled “Guidelines for Consultation with Tribal Groups on Personnel Management Within the Bureau of Indian Affairs.” Although the guidelines were specific to consultation, they generally defined consultation as merely “providing pertinent information to and obtaining the views of tribal governing bodies.”18 Accordingly, these guidelines did not provide any information on how tribal-federal consultations should be operationalized nor what constituted normatively good consultations. These guidelines were also limited in that they only applied to Bureau of Indian Affairs personnel matters. In sum, despite statutes and guidelines from the federal government, the question of what good or effective consultation is remains unanswered. Unlike the federal trust relationship and tribal treaties with the federal government, several federal statutes do require consultation. These statutes, however, fail to outline what such consultation should look like. A legal void therefore remains as to the scope and substance of consultations with tribes.

Executive Order Like statutes, presidential executive orders may impact the federal requirement to consult with tribes under certain circumstances. But also like statutes, these executive orders fail to provide clear guidance as to what such consultation should look like. President Clinton enacted several executive orders that potentially impact tribal-federal consultations. First, he enacted Executive Order 12895, “Enhancing the Intergovernmental Partnership.” This was a mandate imposed on “state, local, and tribal governments” to develop a process that would “provide meaningful and timely input into the development of regulatory proposals containing significant unfunded mandates.”19 In 1994, President Clinton signed a memorandum, Government to Government Relations with Native American Tribal Governments, which establishes principles for federal executive departments and agencies to consult with tribal governments before taking actions that affect federally recognized tribal governments, assessing the impact of federal initiatives on tribal trust resources, and ensuring that tribal rights are considered in those initiatives.20 Executive Order 13007 also created obligations to “(1) accommodate access to and ceremonial use of Indian sacred sites by Indian Religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites.”21 Consultation obligations are found in several statues as well as Executive Order 13175 (2000), Consultation and Coordination with Indian Tribal Governments, which requires federal agencies to “have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This order provided more guidance by requiring the creation of an internal consultation process.22 These “Executive Orders resulted in a proliferation of internal consultation policies and regulations within federal agencies. Since then, each President has reaffirmed that the federal government has a duty to consult with Indian tribes as necessary to achieve the substantive goals of trust

responsibility.” Despite this proliferation, however, consultation policies remain vague and ineffective.23 President Obama issued a memorandum to executive departments and agencies that formally adopted President Clinton’s Executive Order 13175. The memorandum also included a reminder that federal officials “are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.” Further, each agency was required to submit a plan that indicated what steps the agency would take to implement the mandate.24 Despite these requirements, however, “it [the Memorandum] falls short of initiating meaningful changes to the federal-tribal consultation process.” Further, the “Obama Memorandum does not even explain what ‘consultation’ means or when the consultation right is triggered.”25 So, again, despite executive orders addressing the requirement for tribal-federal consultation, what constitutes effective consultation remains largely undefined. Further, the timing and scope of such consultation also remains vague and ill-defined. And, finally, “[b]oth President Clinton’s Executive Order and President Obama’s Memorandum recite that their statements are not intended to create substantive or procedural rights enforceable against the United States.”26 On Jan. 26, 2021, President Biden released a presidential executive memorandum addressing tribal consultation. The memorandum provides that “[i]t is a priority of [the Biden] Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.”27 The memorandum goes on to specify that the Biden administration will work to ensure that tribal voices are included in federal deliberations, and it directs federal agencies to work to develop plans for how they will incorporate federal directives regarding tribal consultations into their work with tribes. While an encouraging step forward, the memorandum does not provide guidance on how consultations should be conducted. In sum, although numerous statutes, guidelines, and executive orders speak to tribal-federal consultations, much uncertainty exists as to how consultation should be conducted.28 This uncertainty is exacerbated by the fact that tribes and the federal government may have different definitions of what constitutes success. Additionally, if the federal government views consultations as purely a procedural requirement, there is an increased likelihood that tribes will be less likely to engage in a mere process of consultation.29

Moral Claims to Effective Consultation Having examined the requirement of consultation between tribes and the federal government from a legal lens and finding it lacking guidance as to what consultation should entail, it is helpful to examine the issue from other perspectives, such as a moral lens. Literatures in ethics and Indigenous studies have a lot to convey about consultation, for consultation can be considered key policy or a requirement of any government system that favors freedom, democracy, and cooperation. From a moral perspective, consultation can be linked to the norm that all parties should have a chance to give their free, prior, and informed consent (FPIC) to the actions of any other party when those actions may impact them (positively or negatively) in some way.30 In the literature on ethics, “free,” “prior,” and “informed” consent are taken as being defined in certain ways. While there is a range of legal and other purposes for consultation, March/April 2021 • THE FEDERAL LAWYER • 57

morally speaking, consultation can be understood as one process or strategy for fulfilling the general moral duty of consent.31 Emerging Indigenous studies literature pertaining to ethics adds additional moral requirements to these definitions. In the ethics literature, “free” simply means non-coerced or that they are not under external pressure to consent or dissent; “prior” means that the actions have yet to be performed and there is a chance to stop them in advance; and “informed” means that the parties have all the facts and possibilities in front of them when they weigh and deliberate the costs and benefits of consent, or decide to dissent or request more time to form a response. In Indigenous studies that work to define these terms—given the long histories of experiencing domination from states and societies such as the United States—are often modified and strengthened. “Free” can also include that tribes should not be pressured to consent or dissent owing to disadvantages in governance capacities that may have accrued over the years due to the consolidation of U.S. power and control over tribes. “Prior” means that tribes are able to deliberate with, give feedback, and even co-design at the early stages of the design of the actions themselves. “Prior” here means “at conception.” “Informed,” as is common in the medical ethics literature, must also include culturally relevant means of expression and sufficient time and access to expertise for analysis of any information relevant to consent.32 These meanings of FPIC suggest a particular type of conduct for U.S. federal agencies and corporations who are involved in actions that may impact tribes. Processes must be in place at the earliest design phases of the project in question.33 While unrealistic in some cases, this would mean that as plans are being solidified for a certain action, prior to even a permit application or other advance is made, tribes would be invited to the table. It would also suggest that measures were in place that would ensure that tribes, and all other parties, have the capacities to participate in the consultation process fairly. Finally it would suggest that any information about the costs, benefits, and risks of an action would both be expressed in culturally relevant ways and that tribes would be able to gather their own evidence. Tribal evidence, where appropriate, would be considered as empirically weighted as commonly accepted scientific forms of evidence.34 Additionally, FPIC should be viewed in many cases as including a “veto” right. Given that most tribes’ formal relationship to or incorporation into the U.S. is not legitimate by their perspectives, tribes often consider themselves ultimately—and factually so—as separate sovereign entities.35 Though tribes use the “trust” and other language to support their goals and the well-being of their members, many Indigenous persons still firmly ground themselves in the ultimate sovereignty of their peoples. Moreover, given the difference in relative power between the U.S., corporations and many Tribes, tribal communities are often at risk of being exploited. These features, as well as the norm of consent itself, indicate that tribes should be able to veto or dissent to the actions of others that may affect them. Another way of understanding this is that FPIC policies that have restrictions on veto powers must have justifications for why veto power has been restricted. The establishment of those justifications must itself be based on processes that are consensual. The ideal of consent as a moral norm suggests a relationship between the United States, tribes, and other parties that would flow much more like a cooperative partnership than a formal consultation, and where tribes would have veto rights (the right to say “no”) to any actions that 58 • THE FEDERAL LAWYER • March/April 2021

would impact them. Yet consultation policies and tribal contexts are rarely suited to meet such a version of this norm, even if doing so was the intent of consultation by the United States. Tribes also face some dilemmas when they critique consultation processes. Indigenous traditions of ethics place a great deal of emphasis on consent and dissent as a cornerstone of political relationships and political decision-making. Haudenosaunee and Anishinaabe peoples are well-known for traditions of treaty-making that prioritized the idea that all parties to the agreement should be able to consent or dissent. The Haudenosaunee Kaswentha refers to a philosophy that political agreements between two parties are like two vessels navigating parallel running rivers in a shared ecosystem. In the agreement, each party should maintain its independence and way of life, yet both parties should find beneficial ways to cooperate. In this way of thinking of political agreement, the core of treaty-making is respect for each party’s independence, or consent. Haudenosaunee people today continue to use the Kaswentha philosophy as the basis for environmental protection and justice. Susan Hill, speaking of treaties and agreements of Haudenosaunee people and colonists, writes that the “relationship was to be as two vessels travelling down a river—the river of life—side by side, never crossing paths, never interfering in the other’s internal matters. However, the path between them, symbolized by three rows of white wampum beads in the treaty belt, was to be a constant of respect, trust, and friendship … Without those three principles, the two vessels could drift apart and potentially be washed onto the bank (or crash into the rocks).” Hill’s account of the kaswentha embodies strong norms of consent and dissent through concepts of noninterference and independence. Such recognition of the importance of consent requires constant “respect, trust, and friendship,” which can be understood as a way to guide consultative processes between sovereigns. Within particular Indigenous peoples, consensus is also privileged as a best practice for how to organize a society. In the Navajo Nation, local leaders were selected by informal consensus. Robert Yazzie (1996-1997) writes that this ensures “everyone can have their say, and when someone is out of line, they get a ‘talking to’ by a naat’aani [peacemaker/mediator].” Yazzie describes this process as “a circle, where everyone (including a naat’aanii) is an equal. No person is above the other. In this 'horizontal' system, decisions and plans are made through consensus.” The Navajo process encourages discussion (long, when needed), the sharing of perspectives, and in-depth learning about the nature of the problem being looked at. Robert Yazzie describes the Navajo restorative justice process: For example, to Navajos, the thought that one person has the power to tell another person what to do is alien. The Navajo legal maxim is ‘it’s up to him,’ [sic] meaning that every person is responsible for his or her own actions, and not those of another. As another example, Navajos do not believe in coercion. Coercion is an undeniable aspect of a vertical justice system. However, because coercion tends to be authoritarian, it is thus alien to the Navajo egalitarian system …. It is illustrated as a circle where everyone is equal.36 These Indigenous North American models of consent fit well with the ethics literature on consent. Shared governance, whether within or between sovereign entities, ought to be consensual. Consultation is a key activity by which consent can occur and be appro-

priately legitimated. Or it can be a space in which dissent and veto can be expressed, and the different parties can begin to learn from each other before returning to the table. The vagueness of U.S. Indian law on consultation actually represents a breakdown in respect for the consent and veto rights of Indigenous peoples. The adequacy of a consultation policy can be judged according to how well it describes a process of consent between parties. The policy cannot be one in which some parties have more time or capacity to deliberate than others, or in which one cultural understanding of consent is dominant. It has to be a policy in which veto rights, even if restricted in various ways, are recognized, honored, and validated with respect.

Beneficial Outcomes Resulting From Effective Consultation The ethics literature, therefore, provides valuable guidance on what consultation between tribes and the federal government should look like. The effectiveness of consultation between federal agencies and tribes has the potential to lead to tribally led resource management decisions benefiting the tribe, or, alternatively, to have a detrimental impact on the management of tribally valued resources. Positive examples of effective consultation between tribes and the federal government prove instructive as to what effective consultation can look like and demonstrates how parties can incorporate the principles articulated in the ethics and morality literature. For example, the importance of the government-to-government relationship is emphasized in the 1994 Northwest Forest Plan (NWFP), which addresses management of federal forest land in the Pacific Northwest within the range of the northern spotted owl.37 The Record of Decision (ROD) for the NWFP recognizes that the implementation of the NWFP may affect tribal treaty rights and trust resources, as restrictions under the NWFP may limit access to tribal cultural resources; calls for consultation on a government-to-government basis with tribal governments when treaty-protected lands or trust resources may be affected.38 Agencies managing federal land within the NWFP region are required to monitor the effects of implementation and evaluate the conditions and trends of trust resources identified in treaties with tribes as well as protections for, access to, and use of forest species, resources, and places that are in religious and cultural heritage sites.39 These monitoring reports have consistently found that, while consultation is recognized in federal law and administrative policy as the primary mechanism for federal agencies to work with tribes when federal action may impact tribal lands and resources, consultation does not always ensure that tribal interests are upheld. In fact, consultation may in some cases be little more than notification of planned federal action.40 This is evidence of what this article concluded earlier—that although federal law may require consultation in some areas, little guidance is given as to what effective consultation looks like. The NWFP requires a series of monitoring reports to be conducted every five years to assess a broad spectrum of issues, including populations and habitat of the northern spotted owl and marbled murrelet, late-successional and old growth forests, watershed conditions, socio-economic conditions, and the tribal-federal relationship. As an initial starting point, it is laudable that the NWFP seeks to re-evaluate the tribal-federal relationship. This is consistent with the idea expressed in the ethics and morality literature that relationships should be dynamic partnerships. Since 1999, the USDA Forest Service Regional Ecosystem Office has published these monitoring reports that document the status and trends of these issues over time.

The most recent Tribal Monitoring Reports (for the 15-year, 20year, and forthcoming 25-year reports) have followed a protocol developed by the NWFP Tribal Monitoring Advisory Group to examine consultation processes, the affect of the NWFP on tribal values of interest (including cultural, social, and economic resources), and strategies to strengthen federal-tribal relations. To accomplish this, the monitoring team has reached out to tribal council members and tribal staff from all of the 75 federally recognized tribes with tribal lands and/or territories within the NWFP boundary in Washington, Oregon, and California in order to assess the impacts of the NWFP on tribes. Approximately 1/3 of the tribes within the NWFP region have participated in each of the past three monitoring reports.41 Pursuant to the interview protocol established by the Tribal Monitoring Advisory Group, the recommendations in the monitoring reports have focused on consultation, tribal rights, and access to cultural resources and improving the compatibility of federal-tribal forest management practices. In all of the tribal monitoring reports, many of the respondents focused on the need for more effective consultation that would move agency practices from merely notifying tribes of proposed actions to engaging tribes to work with federal agencies to develop strategies that would meet tribal cultural resource management objectives. Recommendations to strengthen consultation focused on increasing agency accountability for meeting the federal trust responsibility through staff education and training; developing formal agreements for consultation and government-to-government interactions, such as memorandums of understandings; and ensuring that agency and tribal leadership understand and come to agreement about consultation policies and practices.42 The NWFP tribal monitoring reports have also examined the extent to which tribal rights and access to cultural resources have been impacted by the NWFP. The 20-year tribal monitoring report describes some of the ways that tribal rights and access to resources have been impacted by the NWFP, including “road closure, decreased ability to harvest traditional cultural resources, reduced economic opportunities, and limitations on land management.”43 Recommendations to improve tribal rights and access to cultural resources under the NWFP focus on training agency staff across all levels to ensure strong cultural competency in tribal matters, reviewing and updating policies that severely impact tribes’ rights to interact with traditional lands and resources, and adopting practices that protect sensitive tribal and traditional knowledge. The NWFP monitoring reports also look at federal-tribal forest management compatibility. Interviews that took place for the 20-year tribal monitoring report described some ways that federal forest management practices align with tribal values, restoration and protection of fish and wildlife habitat, and the incorporation of tribal forest management practices in agency land management (e.g., prescribed fire). Some of the ways that respondents described incompatibilities in tribal and federal forest management included prioritization of timber and industry over other forest resources and tribal needs, lack of incorporation of traditional knowledge and tribal values into management, an all-or-nothing approach that could deplete ecosystems or impact economies.44 Recommendations to improve the compatibility of federal-tribal forest management focus on increasing formal consultation and collaborative approaches between federal agencies and tribes to enhance the compatibility of federal-tribal forest management practices. This would increase March/April 2021 • THE FEDERAL LAWYER • 59

opportunities for tribal leadership in land management decisions and leverage opportunities for funding and resources to support tribal natural resource departments. A 2018 synthesis of science to inform land management within the NWFP area examined strategies to promote tribal ecocultural resource management and effectively engage tribes in forest management and planning. Ensuring effective consultation was among the recommendations included in the report, along with strategies for bolstering federal-tribal collaboration, coordination, and cooperative management of tribally valued cultural resources.45 The NWFP, with its five-year review cycle and constant reflection on what constitutes effective consultation tribes with area tribes, demonstrates the principles for effective consultation articulated in the ethics and morality and Indigenous studies literature. This is because the ideal of consent, as a moral norm, suggests a relationship between the United States, tribes, and other parties that establishes collaborative processes and partnerships as mechanisms to help achieve more effective consultation.

Conclusion: Strengthening Federal-Tribal Relationships to Address Climate Change and Fossil Fuel Industries The government-to-government relationship is a formal mechanism for Indigenous peoples to interact with non-Indigenous entities in order to protect Indigenous cultural connections to the earth, address climate change at multiple scales, and negotiate policies to avoid multiple oppressions. Based on lessons gleaned from these examples, coupled with guidance from the morality and ethics literature, this section describes strategies to strengthen federal-tribal relations and effectiveness of consultation. Such strategies and considerations are incredibly valuable given the absence of effective guidance provided by existing federal law. Importantly, while this analysis focused on climate change and fossil fuel industries, the same considerations about consultation are important for other risks faced in Indian country with the emergence of the energy transition. Previously mentioned cases involving lack of consultation in solar energy and hydropower are illustrative of this need. 1. Establish a common understanding of the role, purpose, and principles of “consultation.” Consultation policies are not the sole domain of nontribal agencies—tribes may have their own consultation policies to address the many different policies under which agencies operate, and both agencies and tribes can initiate consultation. Agencies and tribes must remain on equal terms through consultation processes so that conflicts are not resolved by a presumption that agencies have the final word over tribes. Ensuring that tribes are treated as equal sovereigns in consultation and can initiate their own consultation processes can lessen some of the powerlessness and lack of respect that many Indigenous peoples face in relations with non-Indigenous nation states. Indigenous traditions of consultation should be considered as among the most important intellectual bases for envisioning roles, purposes, and principles. Consent, in particular, must be discussed as a key guiding norm for consultation. 2. Assess and build knowledge about the federal trust responsibility, government-to-government relationships, and consultation. The extent to which tribal and nontribal partners understand and are responsive to the federal-tribal relationship will directly affect the ability of agencies and tribes to engage meaningfully on climate change and other resource manage60 • THE FEDERAL LAWYER • March/April 2021

ment issues. Research ecologist Frank Lake notes that trust and understanding between tribes and nontribal partners can increase the effectiveness of research and management: “it is imperative that managers and researchers understand and use formal and culturally sensitive approaches for contacting tribal government and community members.”46 3. Agency climate change policies, research, resources, and plans should directly and meaningfully address issues related to Indigenous communities in the United States. When agency programs and initiatives related to climate change only include tribes as general stakeholders, they may fail to recognize the contributions that Indigenous communities in the United States can offer in addressing climate change, as well as the implications that climate change may have on off-reservation tribal resources and ancestral territory. 4. Recognize the role and protect the use of traditional knowledge in climate change initiatives. Some tribes have adopted their own policies and programs to assess and adapt to climate change impacts on resources of concern, and many of these efforts incorporate the use of traditional knowledge. Traditional knowledge can play an important role in understanding the impacts from climate change and identifying strategies for adaptation. Federal-tribal consultation on climate-change-related issues should involve procedures and agreements when traditional knowledge is involved as well as strategies to ensure the protection of culturally sensitive tribal information from disclosure.47 This recommendation avoids the cultural imperialism implicit in policies where tribal knowledge is not given a fair seat at the table in terms of informing policy and climate-change-related research. 5. E xamine how the impacts of climate change on the quantity and distribution of culturally important species will affect tribal access to and management of these tribal resources onand off-reservation. Climate change may result in changes to ecological processes as well as the quantity and distribution of species that have cultural and economic importance to tribes.48 These shifts create the need to examine treaty rights and federal land management obligations in consulting with tribes to assess and plan for the potential socio-economic and ecological impacts from climate change. There is a need to examine how tribal rights and access to culturally important resources (both on- and off-reservation) will be affected by the impacts from climate change. This level of investigation must happen at a local level and through direct consultation and collaboration between tribal and agency leadership and staff to identify strategies to protect tribal access to these resources in the future. 6. Identify resources that strengthen tribal and agency capacity to engage in meaningful consultation and achieve a more robust government-to-government relation. American Indian and Alaska Native tribes are faced with numerous calls for “consultation.” Finding the resources and staff to travel, respond to requests for information, or participate in consultations may be problematic and limit tribal capacity to respond to consultation requests. This is particularly important for helping tribes address climate change issues at multiple scales. It will support tribal engagement in consultations with agencies located outside their immediate geographic region. It will also prevent certain forms of powerlessness and marginalization that occur

when a tribe is not only isolated geographically but also lacks the capacity to travel outside of that region, even when there are willing agency partners located elsewhere. In terms of agency capacity, culturally sensitive training needs to be strengthened, and new relationships need to be facilitated when staff turnover occurs. 7. Find direct pathways to strengthen federal-tribal relations and opportunities for co-management. The management of tribally valued cultural resources will be strengthened by the inclusion of tribal leadership, traditional knowledge, and tribal direction in resource management decisions. Hydrologist Karletta Chief examines various participatory research frameworks and a number of case studies for tribal engagement in water management decisions and finds that tribal engagement is critical to the success of these management decisions: “Because of the deep connection tribes have to the natural environment and tribal specific challenges in water management, the manner of engaging tribal participants, from individuals to communities to nations, is important to the success of the project, goals, and dialogue.”49 Co-management or resource management goals and responsibilities shared by tribes and federal agencies offers a framework for this kind of meaningful tribal engagement by ensuring that tribes are a part of all stages of development, implementation, and monitoring of resource management decisions. These recommendations, if adopted, will go a long way toward realizing effective tribal consultation.50 Federal law provides a framework for such consultation to occur, as it provides legal claims, such as the federal trust relationship, treaties, statutes, and executive orders that may lead to consultation occurring. The law ultimately is limited, however, as it does not provide guidance on the scope or operation of such consultation. This is where turning to ethics and morality literature is helpful, as it fills the void left by existing law, and it does so in an effective manner. These strategies, based on lessons learned from the Dakota Access pipeline and NWFP examples, therefore provide a way forward in terms of finding effective consultation mechanisms that are acceptable to both tribes and the federal government. 

Elizabeth Kronk Warner is the Jefferson B. and Rita E. Fordham Presidential Dean at the S.J. Quinney College of Law at the University of Utah, as well as a professor of law. She is also an enrolled citizen of the Sault Ste. Marie Tribe of Chippewa Indians. Casey Bond, a third-year law student at S.J. Quinney, provided excellent research assistance with this article. Kathy Lynn is a faculty researcher in the University of Oregon’s Environmental Studies Program and coordinator of the Pacific Northwest Tribal Climate Change Project. Kyle Whyte is a professor and Timnick Chair in the Department of Philosophy and the Department of Community Sustainability at Michigan State University and an enrolled member of the Citizen Potawatomi Nation.

Endnotes Although this article largely examines the benefits of effective consultation from a tribal perspective, consultation often makes good business sense and will benefit nontribal parties. “The failure of corporations to respect indigenous peoples’ right to access, use and protect their sacred sites may result in legal liability, a lengthy lawsuit, loss of permits, licenses or concessions, or a harmed reputation.” Stuart R. Butzier & Sarah M. Stevenson, Indigenous Peoples’ Rights to Sacred Sites and Traditional Cultural Properties and the Role of Consultation and Free, Prior and Informed Consent, 32 J. Energy & Nat. Res. L., 297, 333 (2014). 2 See 18 U.S.C. § 1151 (defining “Indian country”). 3 Colette Routel & Jeffrey Holth, Toward Genuine Tribal Consultation in the 21st Century, 46 Univ. of Mich. J.L. Reform 417, 421-422, 435 (2013). 4 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). 5 David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, Federal Indian Law, 342 (West, 6th ed. 2011). 6 Blackfeet Housing v. United States, 106 Fed. Cl. 142, 151 (Fed. Cl. 2012). 7 Fletcher v. United States, 730 F.3d 1206, 1210-11 (10th Cir. 2013) (internal citation omitted). 8 Rebecca Tsosie, Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights, 47 UCLA L. Rev. 1615, 1619 (2000). 9 Cohen’s Handbook of Federal Indian Law §§ 1.03, 4.05[2] (Lexis Nexis 2012) (internal citations omitted). 10 Washington v. Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) (internal citation omitted). 11 Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381, 408 (1993) (explaining that tribal treaties are similar to constitutions because they are “fundamental, constitutive document[s].”). 12 42 U.S.C. § 1996. 13 American Indian Religious Freedom, H.R.J. 738 95th Cong. (1978). 14 Havasupai Tribe v. United States, 752 F. Supp. 1471, 1488 (D. Ariz. 1990). See also Wilson v. Block, 708 F.2d 735, 745-746 (D.C. Cir. 1983) (holding that AIFRA does require federal agencies to consult, but that it does not compel agencies to act in a way that is protective of American Indian religious practices). 15 Lyng v. Nw. Indian Cemetery, 485 U.S. 439, 455 (1988) (“[N]owhere in [AIRFA] is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.”); United States v. Mitchell, 502 F.3d 931, 949 (9th Cir. 2007). 16 National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 917, 1096. But see Boarhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3rd Cir. 1991); Vieux Carre Prop. Owners v. Brown, 875 F.2d 453, 458 (5th Cir. 1989) (both holding that the NHPA impliedly creates a private right of action). 17 Routel, supra note 3, at 441. 18 Ogala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 717 (8th Cir. 1979). 19 Exec. Order No. 12875, 58 Fed. Reg. 58093 (Oct. 26, 1993). 20 Government-to-Government Relations With Native American Tribal Governments, 59 Fed. Reg. 22,951 (May 4, 1994). 21 Exec. Order No. 13007, 61 Fed. Reg. 26771 (May 24, 1996). 22 Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000). 1

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Routel, supra note 3, at 443-444. President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 57881 (Nov. 5, 2009). 25 Routel, supra note 3, at 447-48. 26 Butzier, supra note 1, at 316. 27 The White house, Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships ( Jan. 26, 2021), https://www.whitehouse.gov/briefing-room/presidentialactions/2021/01/26/memorandum-on-tribal-consultation-andstrengthening-nation-to-nation-relationships/. 28 Notably, case law does little to remedy this uncertainty. “[T]he case law at least tends to show the tentative and slippery nature of consultation requirements: courts are split on whether or not they exist and split again as to whether those found have been violated or not.” Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21, 54-55 (2000). 29 Id. at 25, 28. 30 United Nations Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (2013), https://www.ohchr.org/documents/issues/ipeoples/ undripmanualfornhris.pdf. 31 Kristin Shrader-Frechette, Environmental Justice: Creating Equality, Reclaiming Democracy (2002); Iris Marion Young, Inclusion and Democracy 304 (2002). 32 Food and Agriculture Organization of the United Nations, Free Prior and Informed Consent 15-16 (2016), http://www.fao.org/3/i6190e/i6190e.pdf; Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics (Oxford Univ. Press 2009). 33 Beauchamp & Childress, supra note 32. 34 Id.; Kristen Shrader-Frechette, Analyzing Public Participation in Risk Analysis: How the Wolves of Environmental Injustice Hide in the Sheep's Clothing of Science, 3 Environmental Justice 119 (2010); Kristen Shrader-Frechette, Risk and Rationality: Philosophical Foundations for Populist Reforms (1991); Mary Arquette, et al., Holistic risk-based environmental decision making: a Native perspective, 110 Environmental Health Perspectives 259 (2002); Nicholas J. Reo, et al., Factors That Support Indigenous Involvement in Multi-actor Environmental Stewardship, 13 AlterNative 58 (2017). 35 Murray Lee, What is Tribal Sovereignty?, Partnership with Native Americans (Sept. 9, 2014), http://blog.nativepartnership. org/what-is-tribal-sovereignty/. 36 Robert Yazzie, Hozho Nahasdlii—We Are Now in Good Relations: Navajo Restorative Justice. Univ. of St. Thomas L. Rev. 117 (1996). 37 Northwest Forest Plan, Regional Ecosystem Office, https:// www.fs.fed.us/r6/reo/. 38 Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl, Forest Serv. & Bureau of Land Mgmt., https://www.fs.fed.us/r6/reo/nwfp/documents/reports/newroda. pdf. 39 U.S. Department of Agriculture Forest Service Regional Ecosystem Office, 1994. 40 U.S. Department of Agriculture, Northwest Forest Plan—the First 15 Years 1994-2008: Effectiveness 23 24

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of the Federal-Tribal Relationship (2011), https:// www.fs.fed.us/r6/reo/monitoring/downloads/tribal/ Nwfp15yrMonitoringReportTribal.pdf. 41 Id.; Kristen Vinyeta & Kathy Lynn, Strengthening the FederalTribal Relationship: A Report on Monitoring Consultation under the Northwest Forest Plan, U.S. Department of Agriculture (May 2015), https://www.fs.fed.us/r6/reo/monitoring/downloads/tribal/ Nwfp20yrMonitoringReportTribal.pdf. 42 Gary Harris, et al., Effectiveness of the Federal-Tribal Relationship (2011); Vinyeta, supra note 41. 43 Vinyeta, supra note 41, at 29. 44 Id. 45 Jonathan Long et al., Chapter 11: Tribal ecocultural resources and engagement, in Synthesis of Science to Inform Land Management With the Northwest Forest Plan Area (2018). 46 Frank K. Lake et al., Returning Fire to the Land—Celebrating Traditional Knowledge and Fire, 115 J. For. 343, 349 (2017). 47 Terry Williams & Preston Hardison, Culture, law, risk and governance: contexts of traditional knowledge in climate change adaption, in Climate Change and Indigenous People in the United States 23 (2013). 48 Karletta Chief et al., Indigenous experiences in the U.S. with climate change and environmental stewardship in the Anthropocene, in Forest conservation and management in the Anthropocene: Conference proceedings 161 (2014). 49 Karletta Chief et al., Engaging Southwestern Tribes in Sustainable Water Resources Topics and Management, 8 Water 350 (2016). 50 These recommendations are made from the perspective of a nontribal entity consulting with a tribe. Tribes interested in improving consultations with nontribal entities may want to adopt their own tribal consultation provisions. Butzier, supra note 1, at 323.

Book Reviews

Oliver Wendell Holmes: A Willing Servant to an Unknown God By Catharine Pierce Wells Cambridge University Press, Cambridge, UK 2020 222 pages, $99.99

Reviewed by Christopher C. Faille

Catharine Pierce Wells records early in her new book on the life and times of the renowned Supreme Court Justice, that in a wartime diary, young Oliver Wendell Holmes told us of his near-death thoughts after he was badly injured in the Battle of Ball’s Bluff in October 1861. Holmes sustained other injuries later in the war, but that was the one that gives Wells the following poignant anecdote. “Perhaps the first impulse was tremulous,” Holmes would write of himself as he became convinced of his coming demise. He was fearful of going to hell, as the idea had been taught to him, and he considered that perhaps he should turn to God, as God was conventionally understood, and make a deathbed recantation of certain heretical views of his own. Then, Holmes asserted “I

thought I couldn’t be guilty of a deathbed recantation.” Guilty? He explains further, before getting to a turning point: “Then came in my Philosophy—I am to take a leap in the dark—but now as ever I believe that whatever shall happen is best—for it is in accordance with a general law.” Therefore, at the age of 20, Holmes had a settled “Philosophy” with a capital P, the sort one looks to for guidance in his or her final moments. His Philosophy was important enough for him to occasion a deliberate refusal to recant it at such a moment. What was it? It was the very old idea (I would call it the stoic idea, though Wells does not use the term) that God is to be identified with a “general law” that determines all that happens, and that we are to rest content in this law, although we do not understand it and often will be baffled by its operations. At such moments, one might well see one’s own contentment—one’s decision to be content—as a leap in the dark. That attitude gives this book its subtitle but not really its thesis. For Wells’ thesis is that Holmes’ jurisprudence is to be explained not as that of a stoic, but as a pragmatist, or rather that the stoicism is incidental to the pragmatism. Further, Wells’ understanding of pragmatism takes us to a generation before Holmes or his friend, William James. It takes us back to Ralph Waldo Emerson. As Wells tells it, Emersonian pragmatism was a third way between the inherited European philosophies of rationalism and empiricism. The rationalist works from first principles and self-evident definitions. The empiricist works from facts as revealed by the sense. The pragmatist works from values, largely defined by social consensus, as “we learn to admire some things and scorn others.” I will refer to this compound of ideas hereafter as Wells/Holmes pragmatism—the sort of view Wells calls “pragmatism” and assigns to Holmes. I set aside until after further exposition, many quarrels with her take on the relevant intellectual history. Wells deserves to have her views expounded with some care first. So, let us proceed.

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The Disappearance of Subjectivity Wells/Holmes pragmatism has consequences for how we think of subjectivity. Rationalism can take the subject as a starting point: An “I” convinces itself that it thinks; therefore it exists, and it has to validate itself as a subject in this way before it can even work on establishing an objective reality. Empiricism, too, can take the subject as a starting point: “I” see red and get a roundish feel from an object presented to “my” senses, and only then start wondering whether this is a rubber ball or an apple. Wells/ Holmes pragmatism, though, considered as a third way, does not offer subjectivity as a starting point. After all, as noted above, social consensus is a starting point. “We” appears in the world before “I,” and we set the problems that I will reflect upon and seek to solve. This gets us back to those deathbed thoughts of Holmes. One way of reading it is that he was willing to have his subjectivity disappear when the functions of the body ceased, because “whatever shall happen is best.” Death is the overcoming of the subjective by the objective, and a peaceful death is the willing demise of that which is overcome. Wells believes that her reading of Holmes justifies a more charitable understanding of Holmes’ life’s work than some other readings, such as Albert Alschuler’s debunking take on Holmes in Law Without Values (2000). Wells’ reading allows us to see Holmes not as someone hopelessly marred by the war and helplessly spinning out dark amoral views from the bench. Rather, we can see him as someone working through and by the light of a coherent philosophy, even when we may disagree with the results in particular decisions or where he may have expressed himself too pithily for today’s comfort zones. Holmes was advancing the values he took to be those of the society in which he lived, seeking what would work, given what that society admired and scorned. And, though those values were not defined by legislation, the success of legislative initiatives was an indication of what they were. The development of the common

law was also an indication of what constitutes society’s consensus over values, and one gathers from Wells’ book that if Holmes (or her Holmes) did have an Archimedean “place to stand” in applying a rational lever to the ideas of legislatures, the common law tradition was that place. The Alschuler view of Holmes, and the analogous views of other writers, often begin with his wartime experiences. They treat Holmes as a medical patient who has had morality driven out of him by something akin to shell shock. The Wells view can start earlier, noting that Holmes survived the war by adherence to what he called “my Philosophy,” something which had been formed already before he enlisted.

Contracts and Race Wells addresses three big and contentious issues in Holmesian historiography: his pushback against his colleagues’ embrace of social Darwinism as expressed in the 1905 Lochner opinion; his view of race in America; and his notorious embrace of eugenics in the cause of an active weeding out of “imbecilic” gene lines in Buck v. Bell. I will not speak of his famous Abrams dissent and free speech issues in general because Wells, oddly, barely mentions them. Wells does discuss Lochner, and for her it is an exhibit both of what Homes was really about, and of how the political left misunderstood him, thinking him one of them on slender evidence. The question in Lochner was whether state-imposed limits on working hours at a bakery constituted a violation of the liberty of both employees and employers. A bare majority of five said that it did, relieving the owner of the bakery, Joseph Lochner, of any obligation to pay the fine for violating this limit. The misunderstanding was that Holmes, by dissenting in this case, was taking the side of working people. He was not (and on this, Holmes himself, Alschuler, and Wells all agree). Holmes was dissenting from the view that the Constitution can be read to instantiate any particular set of first principles, especially an economic theory, that “a large part of the country does not entertain.” The problem with the majority opinion, given Wells/Holmes pragmatism, is that there is no social consensus that the freedom of contract is as fundamental a value as it needs to be to justify Peckham’s opinion for the majority. The New York statute at issue is not the only evidence of dissension: Homes

makes reference in his dissent likewise to laws against Sunday trading and usury. Both violate freedom of contract, yet it would have been a fringe move even in 1905 to invoke substantive due process in either context. The evidence for the absence of any broad societal consensus for unlimited freedom of contract was, Holmes reasonably thought, pretty pervasive. As to racial questions, the touchstone is the case of Bailey v. Alabama (1911). Bailey was a Black man who quit his job. The terms of the job offer he had accepted sound a lot like peonage, also known as indentured servitude, or slavery on an installment plan. The law in Alabama that criminalized nonperformance of such a contract and that provided for the imprisonment of slacking peons seems on its face to have been a violation of the 13th Amendment. The majority of the Supreme Court struck down Alonzo Bailey’s conviction. One peculiar but important point in the posture of this case was that the pertinent statute described the nonperformance of an employment duty under certain circumstances as “fraud.” The defendant had presumably defrauded the employer by promising to work for a year and in fact only working for a month. But the Alabama courts did not allow the defendants in such cases to testify as to their own intent. Since fraud is historically an offense that does require a mens rea, this refusal to admit testimony on the point of the defendant’s state of mind indicated to the court that the appeal to the language of “fraud” was pretextual. Alschuler, in a Law without Values, credited Justice Hughes’ decision here with the adoption of realism before the days of the “legal realists.” Holmes, though, deserves no such credit. Holmes dissented from the decision in Bailey, writing for himself and for Justice Horace Lurton, a former Confederate soldier. Why the dissent? One could suggest racism. (Indeed, the fact that Bailey was “a Negro” was accepted as evidence during his trial). No one would be surprised should we offer that as an explanation for Lurton’s vote, but in explaining Holmes, at least by convention, we require more. Amoral and war-born acceptance of the decisions of the Alabama legislature and its judiciary’s practices? That is Alschuler’s view but not Wells’. In fact, Wells finds that the majority opinion in this case violated one of Holmes’ most “deeply held convictions”—that the

common law conception of contract was not about subjectivity. A contract is an objective fact, not a “meeting of the minds” in a sense that involves subjectivity, but the objective fact of a signature on a piece of paper or, perhaps, just a shaking of hands. Public, observable, physical matters of fact make up the agreement. Wells expresses Holmes’ view of contract as a rhetorical question, “What does it matter that I intended to sell you five cows if I signed a contract that promised ten?” His insistence on this point may reasonably be said to follow from Wells/ Holmes pragmatism, which is in essence an escape from subjectivity. Holmes was, then, unbothered by the fact that the law at issue in Bailey prohibited the defendant from testifying about his own intentions. Yet, that was not the only point that failed to bother Holmes here. He was unbothered by the fact that the state was enforcing what might normally be considered a mere civil debt by the force of the criminal law. He was also so unbothered, in this case, by so many fairly obvious contextual matters, that Wells dips into Alschulerian language after all, describing Holmes as the victim of a “deadening process” or of a “numbing,” as he worked to forget the sacrifices of the war that had brought about the 13th Amendment.

Excited by Dramatic Themes We arrive now at what may be the favorite case for anti-Holmes polemicists, Buck v. Bell (1927). A Virginia statute provided for the sexual sterilization of the inmates of institutions for the feeble minded, should their condition be deemed hereditary. Eugenics, a belief in the possibility of improving the human species by encouraging the reproduction of people deemed to have desirable heritable traits and/or discouraging or forcibly preventing the reproduction of people who did not, was enjoying a big run in the English-speaking world at the time. Virginia’s statute was in this line. Holmes, writing for the majority in an 8-1 split, said: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” Note that it is not the Commonwealth of Virginia that is “calling upon” Carrie Buck to make a sacrifice here. Holmes says that

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something more abstract, the “public welfare,” is doing the calling. The analogy entails that, because a soldier may be called upon to sacrifice himself to protect a collective entity against foes, foreign or insurgent, Carrie Buck can appropriately be called upon to protect the public against … Carrie Buck, her mother, and her unborn children, deemed incompetent by genetic fate. “Three generations of imbeciles are enough.” As with Bailey, so with Buck, Wells makes it clear that she is not defending these opinions as a matter of substantive justice. But she again wants to adopt a more sympathetic view of Holmes’ reasons for voting and writing the way he did than do his detractors. And again, she focuses on subjectivity as, for Holmes, a great culprit. This is a more sympathetic view because Holmes’ orientation toward objectivity is, in her view, a feature, not a bug, in his thought. She thinks he is right that without a tether to objective facts, law quickly becomes merely a power struggle. Beyond the objective/subjective distinction, Wells tries to explain where Holmes went wrong in a sympathetic way by explaining that he was “excited by the dramatic themes” exhibited by the facts of the case. “Science, evolution, eugenics—it was all there.” We may become more sympathetic to Holmes if we see him as prodded to support Virginia because of his own intellectual curiosity, and the way in which that state seemed to be at the forefront of scholarship and science. The problem, though, is that Carrie Buck as an individual—as a subject, one might

even say, rather than an object—seems to have been completely absent from Holmes’ mind. Note that in the passage quoted above, Holmes argues that the sacrifice Buck was called upon to make was “often not felt to be [a sacrifice] by those concerned.” Someone below some level of intelligence, however managed, may be incapable of understanding the significance of a tubal ligation (or a vasectomy) and so may not feel it to be a sacrifice. But Buck certainly did see it as such. So, why focus on what is “often” not here the case? Because what she actually felt about her sacrifice was not Holmes’s concern. That is a matter of her subjectivity after all.

Final Thoughts I do not know whether Wells, a professor of Boston College Law School, has in fact made a lasting contribution to the study of Justice Holmes. I am sure that specialists in Holmes’ life and work, far more expert than I, will review it and, over time, the extent of Wells’ contribution will become clear to the broader circle of interested parties. I have to note that as to Lochner, Wells and Alschuler are in accord. As to Bailey, she takes a different tack, but ends up referring to a war-related “deadening.” As to Buck, she may be marking out distinctive terrain. The contribution I wish to make is this: what Wells lays out, and what I have been calling here Wells/Holmes pragmatism, is not classical pragmatism. It warrants some other label: post-Emersonian Stoicism, perhaps. The views under discussion bear little or no relationship to the views of Charles Peirce and William James, paradigmatically

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considered pragmatic. In James’ classic article, “The Moral Philosopher and the Moral Life,” he writes the following: Or if the hypothesis were offered us of a world in which Messrs. Fourier’s and Bellamy’s and Morris’ utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? James’ “specifical and independent” emotion was an unabashedly subjective response to the torture of a subject, a “certain lost soul.” He was overstating a bit, it might be, the condition of an Alonzo Bailey or a Carrie Buck (and we should probably refrain from seeing Joseph Lochner in those terms at all). But contemplation of this passage might have complicated Wells’ thesis for the better, at least insofar as that thesis presumes to tell us not about Justice Holmes but about pragmatism. 

Christopher C. Faille is a member of the Connecticut Bar and the author of Gambling with Borrowed Chips, a heretical account of the Global Financial Crisis of 2007-2008. He regularly writes for AllAboutAlpha.com, a website devoted to the analysis of alternative investment vehicles, and for InsidetheNation.com, part of the OneQube network.

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Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

DOJ v. House Committee on the Judiciary (19-1328) Oral argument: Dec. 2, 2020 Courts below: U.S. Court of Appeals for the District of Columbia Circuit

Question as Framed for the Court by the Parties Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Facts In May 2017, an investigation was conducted to determine whether members of President Trump’s election campaign had cooperated with the Russian government to interfere in the 2016 presidential election. The Deputy U.S. Attorney General appointed Robert S. Mueller, III to report on the investigation. Mueller submitted a twovolume report (Mueller Report) to the attorney general in March 2019. The attorney general released a version of the report to the public in April that redacted all information concerning grand jury materials, among other information deemed harmful or compromising. The attorney general stated that members of the House Judiciary Committee could review an unredacted version of the Mueller Report, except for information pertaining to the grand jury, pursuant to Federals Rule of Criminal Procedure 6(e). The committee was conducting its impeachment investigation of President Trump and applied for an order to release certain grand jury materials pursuant to Rule 6(e)(3)(E) (i), including transcripts and exhibits. The Department of Justice (DOJ), which held

the grand jury documents, rejected the committee’s application to disclose the materials. The U.S. District Court for the District of Columbia granted the committee’s application to release the grand jury materials and ordered the DOJ to provide these materials because the impeachment trial was classified as a “judicial proceeding” under Rule 6(e). The district court found that the committee established a specific need for the grand jury materials in order to prevent inequity, which outweighed the demand for grand-jury secrecy. The DOJ appealed the district court’s decision and requested that the Court of Appeals elucidate the meaning of “judicial proceeding” in Rule 6(e). The Court of Appeals affirmed the district court’s decision. While the Court of Appeals recognized that Rule 6(e) denotes a general rule that matters before the grand jury should not be disclosed, the court also noted that the rule provides an exception that allows a court to order the disclosure of grand jury materials if a party has demonstrated a specific need and the materials are connected with a judicial proceeding. The U.S. Supreme Court granted the DOJ’s petition for a writ of certiorari on July 2, 2020.

Legal Analysis INTERPRETING THE TERM “JUDICIAL PROCEEDING” The DOJ argues that the term “judicial proceeding” is limited to proceedings that occur in a court in front of a judge and excludes proceedings that take place in front of a legislative body, such as the Senate. According to the DOJ, the references to “other courts” and “parties” in Federal Rule of Criminal Procedure 6(e) would not apply to the Senate and the House Judiciary Committee, respectively. The DOJ also maintains that

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Rule 6(e) refers to a “judicial proceeding” only as a proceeding in an ordinary court, demonstrating Congress’s intent that this term be applied consistently in the same way. The DOJ contends that the Court of Appeals erred in stating that the term “judicial proceeding” should be interpreted broadly because a broader interpretation is counterintuitive to the narrow construal set forth by the exceptions to grand-jury secrecy. Furthermore, the narrow interpretation of “judicial proceeding,” the DOJ argues, requires a clear indication that grand jury materials can be disclosed for impeachment inquiries, an indication that the DOJ points out is absent. The House Committee on the Judiciary, on the other hand, argues that the ordinary meaning of “judicial proceeding” encompasses any action that involves judicial action being taken in a court, which includes impeachment trials. The House Judiciary Committee maintains that dictionaries classify impeachment trials as instances in which the Senate takes on the role of a court. Furthermore, the House Judiciary Committee emphasizes, the Supreme Court, state courts, current writings, and past Senate impeachment proceedings classified the Senate as “sitting as a Court of Impeachment,” demonstrating that an impeachment proceeding is a particular circumstance that allows the Senate to function as a court. The House Judiciary Committee further argues that other parts of the Federal Rules of Criminal Procedure support the interpretation that “judicial proceeding” applies to a Senate impeachment trial. The House Judiciary Committee maintains that another subsection of Rule 6(e), which refers to transferring a case to “other courts,” is not relevant in determining whether a Senate impeachment trial is a “judicial proceeding” because the rule regarding case transfer does not need to apply to every case, only those that require a transfer.

CONSTITUTIONALITY OF CLASSIFYING AN IMPEACHMENT TRIAL AS A “JUDICIAL PROCEEDING” The DOJ argues that the House Judiciary Committee has not demonstrated the “par-

ticularized need” required to overcome the presumption in favor of grand-jury secrecy. The three factors that the DOJ asserts weigh in favor of maintaining secrecy in this case, outlined in Douglas Oil Co. v. Petrol Stops Northwest, establish that in order to demonstrate particularized need, the party seeking to disclose grand-jury materials must show (1) that the disclosure of the materials would prevent injustice; (2) that the need for disclosure outweighs the desire for secrecy; (3) and that the request for the materials is specific and not over-broad. The DOJ maintains that the analysis of the factors would force the federal courts to determine the likelihood that the majority would choose to impeach the President, placing the federal court in a difficult position to essentially predict the outcome of the impeachment proceedings. The federal court, the DOJ asserts, would be forced to take on a similar role to that of the House Judiciary Committee, which would create constitutional strain because this is not a role the Constitution grants to the federal courts. The DOJ contends that allowing the term “judicial proceeding,” as used in the exception to grand-jury secrecy under Rule 6(e), to apply to a Senate impeachment trial would create further constitutional difficulties. One of the key components of grand-jury secrecy under Rule 6(e)(3), the DOJ argues, is the district court’s ability to impose protective limitations on the disclosure of materials. The DOJ maintains that it would be extremely difficult to enforce the imposed limitations on disclosure when the court in question would involve members of Congress. The DOJ claims that enforcing these protective limitations in connection with an impeachment proceeding may be unconstitutional, making it even more apparent that an impeachment trial does not fall under the ordinary meaning of “judicial proceeding.” Once the grand jury materials are disclosed to Congress for the impeachment trial, the DOJ emphasizes that it would be incredibly difficult to prevent the materials from being distributed further. The House Judiciary Committee contends that applying the Douglas Oil “particularized need” factors does not weigh in favor of maintaining secrecy, but rather indicates that there is a range of flexibility conferred upon the district courts that allows them to accommodate specific circumstances in determining whether or not the situation warrants disclosure. There would be no

constitutional strain, the House Judiciary Committee argues, in applying the “particularized need” requirement because it does not render any part of Rule 6(e) unconstitutional. Furthermore, contrary to the DOJ’s argument, the Committee asserts that there would also be no constitutional strain on the federal courts. The federal courts, the House Judiciary Committee contends, would not be forced to undertake a role similar to that of the committee because there is no requirement that the federal court conduct an invasive analysis into the predicted outcome of the impeachment trial. The House Judiciary Committee argues that it would be a violation of the Constitution if Rule 6(e), which uses the term “judicial proceeding,” would not apply to an impeachment trial because it would prevent the committee from assuming its constitutional role in identifying and addressing any injustice committed by the President. The House Judiciary Committee maintains that the Constitution grants impeachment power to it, and the committee can only fulfill that role to its utmost extent if it has access to all the relevant information. Refusing to grant access to the grand jury materials in connection with the impeachment investigation, the House Judiciary Committee emphasizes, runs contrary to the power vested in the committee by the Constitution. The House Judiciary Committee asserts that preventing disclosure of grand jury materials to the committee would infringe on the separation of powers because it would impede the committee’s ability to exercise “an essential check” on the executive branch of government.

Discussion SEPARATION OF POWERS The DOJ contends that allowing a broad reading of “judicial proceeding” under the Federal Rules of Criminal Procedure Rule 6(e) to include a Senate impeachment trial would threaten the separation of powers envisioned by the Framers of the Constitution, who specifically sought to separate federal courts from political processes. The DOJ explains that in order to grant disclosure of grand jury materials, the district court must determine whether there is a particularized need for grand jury materials in impeachment proceedings. To do this, the DOJ warns that federal courts would necessarily have to weigh the probability that the majority will vote in favor of impeachment, creat-

ing constitutional tensions. This weighing is impermissible, the DOJ reasons, because the Founders intended for the judiciary to have no part in the impeachment process, which they specifically delegated to Congress. Additionally, the DOJ argues that the strong authority of federal courts would be threatened if disclosure was broadly interpreted because courts would be required to allow disclosure of confidential grand jury materials for any speculative impeachment proceedings. The Constitutional Accountability Center (CAC), in support of the House Judiciary Committee, conversely argues that, in the interest of justice and to fulfill its constitutional duty, Congress must have access to relevant information for its impeachment deliberations, including the evidence that was presented to the grand jury. Further, the House Judiciary Committee argues that its request is warranted and legitimate, citing a long-standing history of Congress taking on a judicial role and examining grand jury material in impeachment and other proceedings relating to members’ misconduct. The House Judiciary Committee contends that, contrary to the DOJ’s argument, permitting the disclosure of grand jury materials for an impeachment investigation would not result in an abuse of the system because the district court would still have the authority to impose limitations on the “time” and “manner” in which the materials were released.

BALANCING DISCLOSURE AND SECRECY The DOJ argues that there is a strong interest in maintaining grand-jury secrecy as the norm, and the Court must be extremely reluctant to find that breaking grand-jury secrecy is warranted. The DOJ asserts that, while grand-jury secrecy can be lifted, it can only be done in a discreet and limited way, entirely inconsistent with providing the committee with an unredacted report of the Mueller Report grand jury considerations. The DOJ further warns that even if a federal court allowed for discourse and stipulated protections to limit the use of the disclosed information, the federal court would be unable to impose and enforce those conditions on members of Congress, rendering the protections useless. The CAC argues that the need for disclosing the unredacted Mueller report outweighs any interest in continued secrecy. Traditional secrecy surrounding grand jury deliberations, the CAC asserts, has never been without limitations. The CAC explains

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that the role of grand-jury secrecy is to serve the interests of justice, and that public policy requires that the “veil of secrecy” be raised if the interests of justice so require. The CAC asserts that the impeachment of a president is one of the greatest and most consequential duties of the committee; therefore, access to all pertinent information is necessary and requires disclosure. Written by Ariella Banin and Micaela Lucero. Edited by Allison Franz.

Full text available at https://www.law. cornell.edu/supct/cert/19-1328. 

Facebook, Inc. v. Duguid (No. 19-511)

Oral Argument: Dec. 8, 2020 Court Below: U.S. Court of Appeals for the Ninth Circuit

Question as Framed for the Court by the Parties Whether the definition of an “automatic telephone dialing system” in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Facts Responding to the rise of unsolicited and intrusive robocalls, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA forbids calls from an automated telephone dialing system (ATDS). The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Congress enumerated three exceptions to this prohibition: calls for emergency purposes; calls made with express consent by the called party; and calls to collect a debt owed to the United States. Beginning in January 2014, Petitioner Facebook began sending Respondent Noah Duguid sporadic text messages stating that an unknown browser was attempting to access his (nonexistent) Facebook account. However, Duguid neither used Facebook nor consented to Facebook contacting his cell phone. Despite Duguid’s requests via text and email that Facebook stop sending him messages, Facebook continued sending him unwanted messages until at least October 2014. Duguid filed suit against Facebook on be-

half of classes of people who received similar unsolicited messages from Facebook, alleging that Facebook sent the messages using an ATDS in violation of the TCPA. Duguid alleged that Facebook’s messaging process was an ATDS because Facebook maintained a database of phone numbers and created a program in which an automated message would be sent to a phone number in the database each time a new device accessed the account associated with the phone number. The U.S. District Court for the Northern District of California dismissed Duguid’s claim under Federal Rule of Civil Procedure 12(b)(6), finding that Duguid failed to adequately allege that Facebook’s system was an ATDS as defined by the TCPA. Specifically, the District Court found that Duguid failed to provide facts suggesting that Facebook’s system either produced or dialed random numbers, emphasizing Facebook’s system of targeting its security notification messages to specific phone numbers as inconsistent with the existence of an ATDS. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that Duguid alleged facts sufficient to establish that Facebook’s system was an ATDS. The Ninth Circuit reasoned that the TCPA prohibits a system that can store numbers to be called and can dial such numbers automatically. In reaching this decision, the Ninth Circuit employed a grammatical analysis, stating that the phrase “using a random or sequential number generator” only modifies the verb “produce,” and not the verb “store.” Moreover, the Ninth Circuit asserted that the legislature intended the statute to be read broadly and emphasized the “TCPA’s animating purpose [of ] protecting privacy by restricting unsolicited, automated telephone calls.” The U.S. Supreme Court granted Facebook’s writ of certiorari on July 9, 2020.

Legal Analysis DEFINING AN ATDS: CONDUCTING A GRAMMATICAL ANALYSIS OF THE TCPA Facebook claims that conducting a rigid syntax analysis of the TCPA’s statutory language is proper to determine the meaning of an ATDS because when, as here, “the statute’s language is plain,” courts’ sole role “is to enforce it according to its terms.” Facebook claims that two grammar rules—the series-modifier rule and the punctuation canon—dictate that the phrase “using a random number generator” modifies both the verbs

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“store” and “produce.” Facebook states that the series-modifier rule dictates that a modifier applies to the entire preceding clause, especially when the modifier directly follows the clause. Facebook illustrates this rule through the phrase “appellate courts reverse or affirm district court decisions using the precedents at hand.” Facebook argues that according to the series-modifier rule, the example sentence would mean that appellate courts use precedent both when reversing and when affirming district court decisions because “reverse or affirm district court decisions” is one clause and “using precedents at hand” modifies and directly follows that clause. Indeed, Facebook emphasizes that “no one” would read the sentence to mean that appellate courts use precedent only when affirming district court decisions. Facebook states that the series-modifier rule similarly applies here because the verbs “store” and “produce” are part of one clause as they share a common direct object—“telephone numbers to be called”—and the modifying phrase “using a random or sequential number generator” immediately follows. Thus, relying on the series-modifier rule, Facebook concludes that the phrase “using a random number generator” modifies both “store” and “produce.” Duguid counters that Facebook errs in its overreliance on rigid syntax rules and argues that proper statutory interpretation “is governed not by the rules of syntax but by the sense of the passage.” Duguid claims that two grammar rules—the distributive-phrasing canon and the last-antecedent canon—dictate that “using a random or sequential number generator” only modifies “produce” and not “store.” Duguid argues that the distributive-phrasing canon states that when a sentence contains several antecedents and several consequents, courts should “read them distributivity and apply the words to the subjects which, by context, they seem most properly to relate.” Duguid provides the example “men and women are eligible to become members of fraternities and sororities.” The distributive-phrasing canon, explains Duguid, would match “men” with “fraternities” and “women” with “sororities” because of the definitions of the words. Here, Duguid defines “a random or sequential number generator” as a procedure of scrambling current numbers to produce a new number, emphasizing that this is a method of “producing numbers, not means of storing them.” Thus, argues Du-

guid, according to the distributive-phrasing canon, the phrase “using a random number generator” only modifies “produce” because the phrase is meant to describe only how the numbers are to be produced.

DEFINING AN ATDS: ANALYZING THE LEGISLATIVE HISTORY OF THE TCPA Facebook argues that its interpretation of the TCPA comports with the legislative history of the TCPA. Facebook emphasizes that during the TCPA’s drafting, Congress had different concerns with ATDS technology compared to robocalls. Facebook claims that Congress created more prohibitions on robocalls because they were considered a “nuisance” and an “invasion of privacy.” In contrast, Facebook states that Congress was more concerned with how ATDS technology could potentially tie up emergency and business lines or impose significant costs on pay-per-minute lines, like cellular phone lines. Facebook claims that Congress narrowly addressed ATDS problems by prohibiting ATDS calls only to emergency lines, certain hospital lines, cellular phone numbers, and business lines. Facebook emphasizes Congress’s intention to narrowly address ATDS problems by highlighting Congress’s prohibition of robocalls, but not ATDS calls, to residential lines. Thus, Facebook argues that its definition of an ATDS is faithful to Congress’s concerns by preventing devices that actually use random- or sequential-number generators, which could clog important phone lines or impose charges on pay-per-minute lines. Duguid counters that Congress intended the TCPA to be broadly construed to protect the public from “intrusive nuisance calls.” Duguid claims that the enumerated exception for calls made with express consent by the called party resulted from Congress’s balance of individual privacy rights and legitimate telemarketing practices. According to Duguid, this exception protects consumers by enabling them to avoid intrusive automated calls and only allowing callers to use an ATDS for recipients with whom the callers have a valid business relationship. Duguid claims the express consent exception is proof that Congress presumed that “absent consent, automatically dialed calls are a nuisance and an invasion of privacy, regardless of the type of call.” In addition, Duguid cites a House Committee Report that raised concerns about telemarketing use of automatically dialed numbers from a

stored database of current and prospective clients. Further, Duguid emphasizes that the report was increasingly concerned with the frequency of automated calling because of the creation of telephone number databanks to be sold to telemarketers. Countering Facebook’s assertion, Duguid claims that Congress was not merely worried about a system that could generate random numbers to be called but was worried about “all systems capable of storing numbers and dialing them automatically.”

Discussion EFFECTS ON PRIVATE INDIVIDUALS AND FIRST AMENDMENT CLAIMS In support of Facebook, Midland Credit Management, Inc. (Midland) argues that adopting the Ninth Circuit’s definition of an ATDS would impose severe speech restrictions. Midland contends that under the Ninth Circuit’s reading of the TCPA, most cell phones would be considered an ATDS, and thus, most cell phone users could be subject to liability. Also in support of Facebook, Salesforce.com (Salesforce) argues that the Ninth Circuit’s definition of an ATDS would lead to impractical results. Salesforce contends many modern cars can be connected to smartphones to permit automatic phone calls, which reduces the dangers associated with making and receiving calls while driving. According to Salesforce, using such technology to make calls while driving would be prohibited by the TCPA under the Ninth Circuit’s holding. Salesforce also asserts that other safety mechanisms, such as privacy notifications sent by text, could be prohibited by the Ninth Circuit’s holding. Furthermore, Portfolio Recovery Associates, LCC (Portfolio) argues that the Ninth Circuit’s interpretation of the TCPA would lead to an overbroad application of the legislation and impose excess speech restrictions, which would violate individuals’ First Amendment right to free speech. Portfolio contends that such a reading could even potentially expose the entire TCPA to First Amendment challenges. In support of Duguid, Dr. Henning Schulzrinne counters that the Ninth Circuit’s interpretation of the TCPA would not impose excess liability on private individuals. According to Schulzrinne, ordinary cell phone usage, including smartphone usage, does not consist of automatic dialing because “[f ]actory default smartphone applications require a human to cognitively

select numbers to call,” so “[t]hey do not automatically dial stored contacts.” Schulzrinne also counters Salesforce’s argument regarding safety and automatic calling features in cars by arguing that such technology is “neither automatic nor unsolicited” for the same reasons that smartphones are generally not considered automatic dialing technology. Also arguing in support of Duguid, the National Consumer Law Center, Consumer Federation of America, and Consumer Reports (the Consumers) argue that there is no history of cell phones being the subject of TCPA litigation. Regardless, the Consumers note that even if litigation involving cell phones arose under the TCPA, the Federal Communications Commission has the authority to clarify the law’s scope to avoid any First Amendment violations. Written by Brett J. Duffek and Katsuhiro Onishi. Edited by Emma Horne.

Full text available at https://www.law. cornell.edu/supct/cert/19-511. 

Pham v. Chavez (19-897) Oral argument: Jan. 11, 2021 Court below: U.S. Court of Appeals for the Fourth Circuit

Question as Framed for the Court by the Parties Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.

Facts Maria Angelica Guzman Chavez and her fellow respondents are a group of noncitizen individuals that were removed from the United States based on an order of removal. Once the individuals returned to their respective countries, the individuals allegedly faced torture, persecution, death threats, and other “threats of persecution” and violence. Chavez and the other individuals returned to the United States without permission, in violation of the removal orders. When the government discovered Chavez was in the United States, it reinstated the removal order under 8 U.S.C. § 1231(a) (5). Under this provision, the removal order was not able to be reviewed. Chavez argued that under 8 U.S.C. § 1231(b)(3)(A), her removal from the country should be delayed as she would face torture and persecution in her country of origin. An asylum officer

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found that Chavez did have a reasonable fear of persecution or torture, which allowed Chavez to receive a withholding-only hearing in front of an immigration judge. Chavez and her fellow respondents were detained by the government. Chavez sought release on bond. However, bond hearings were denied under the mandatory detention requirement of § 1231. In 2017, two sets of petitioners filed habeas petitions in the U.S. District Court for the Eastern District Court of Virginia. Matthew T. Albence, the petitioner and the acting director of U.S. Immigrations and Customs Enforcement (ICE), argued that the court should apply 8 U.S.C. § 1226 which would grant an individualized bond hearing to Chavez. The district court stated that § 1226 controls the detention of noncitizens, “pending a decision on whether the alien is to be removed from the United States.” Tony H. Pham, Senior Official Performing the Duties of the Director, ICE, contended that § 1231 should apply to Chavez, which would not allow Chavez to receive a bond hearing. Pham became the named petitioner after he became the Director of ICE. The Court of Appeals stated that § 1231 applies, “when an alien is ordered removed” and requires the government to detain the alien for 90 days. During those 90 days, the individual is “removed” from the United States. In November of 2017, the district court granted summary judgment in favor of Chavez and ruled that § 1226 governed Chavez’s detention and that Chavez was entitled to a bond hearing. Relief to Chavez and her fellow respondents was granted in two separate district court decisions. Pham appealed the case to the U.S. Court of Appeals for the Fourth Circuit, which consolidated the two sets of petitioners from the district court and affirmed the district court’s ruling. The Court of Appeals concluded that § 1226 applied to Chavez. The Court noted that under the statute, § 1226 applies before the United States has the “actual authority” to deport a noncitizen whereas § 1231 applies once the government has “actual authority” to deport a noncitizen. The Court stated that the United States did not have the “actual authority” to remove Chavez until the United States received the result of the withholding-only hearing. The Court of Appeals rejected Pham’s argument that the court should treat the original removal order as final for detention but not final for judicial review.

The United States Supreme Court granted certiorari on June 15, 2020.

Legal Analysis WHETHER 8 U.S.C. § 1231(a) OR 8 U.S.C. § 1226 GOVERNS DETENTION DURING REINSTATED REMOVAL ORDERS Pham argues that 8 U.S.C. § 1231(a) governs the detention of an alien who has been ordered to be removed from the United States, rather than 8 U.S.C. § 1226, which governs the detention of an alien who is still awaiting a decision on removal. Pham contends that because Chavez is subject to reinstated orders of removal, and requests for withholding and CAT protection do not affect the validity or finality of the removal orders, § 1231(a) is the governing provision. In support of this argument, Pham refers to numerous instances within § 1231(a) that reference the detention of aliens that have been “ordered removed,” as opposed to § 1226’s reference to the pending decision of “whether the alien is to be removed.” Pham contends that Chavez’s removal is no longer pending, but has been ordered, and that this is true regardless of Chavez seeking statutory withholding and CAT protection, which leave the underlying removal order intact. Pham also argues that the context and structure of the two provisions confirm that § 1231(a) is the governing provision. Pham contends that Congress intended for the detention of aliens with reinstated removal orders to be governed by § 1231, because the statutory provisions addressing reinstatement of removal orders and statutory withholding of orders are placed within § 1231, rather than § 1226. Likewise, Pham also refers to the sequential organization of the statute as a whole, where the sections preceding § 1226 govern the initial removal order, but the sections surrounding § 1231 govern when that removal order has been reinstated. Pham further notes that when Congress adopted the current reinstatement statute in 1996, it sought to clarify the removal procedures for illegal reentrants specifically to ensure aliens subject to orders of removal were actually removed. Pham argues that applying § 1231(a) better serves this purpose by ensuring that aliens remain subject to conditions of removal, while applying § 1226 would allow aliens to demand a bond determination hearing and an appeal, in an opportunity to be released from their order.

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On the other hand, Chavez argues that § 1226 applies before the government’s decision to remove a person from the United States, during which an immigration judge has discretion to order detention, while § 1231(a) only applies after the decision for removal has been made and the removal period has begun. Chavez contends that during withholding proceedings, the question of whether the government will remove the person from the United States is still pending, as no final decision as to removal has been made yet, because the individual still is entitled to certain legal challenges. In addition, Chavez contends that there is a distinction between whether the government has legal authority to remove a person, and whether there are still legal obstacles that may prevent that exercise of authority, which occur before the government obtains such removal authority. Chavez notes, specifically, that during withholding proceedings, the government does not yet have the authority to execute removal orders. Therefore, Chavez argues that § 1226 applies to this proceeding, because there remains a question as to whether the government has authority for removal. Chavez also cites § 1231’s language in support of this argument, which is said to apply “during the removal period,” which only begins when there is an obligation to execute the removal of an individual, rather than when the removal is still being challenged in some manner. Further, Chavez argues that Congress intended § 1226 to apply to these proceedings because § 1226 provides for detention authority during immigration proceedings and challenges to the order of removal, which align with Congress’s intention to balance the liberty of noncitizens with the interests of detention. This is contrasted with § 1231, which requires mandatory detention as one step in the execution of the removal order. Chavez also argues that the duration of withholding proceedings suggests that § 1226 should apply. Chavez notes that § 1231(a)’s removal period is prescribed to be only 90 days long, while withholding proceedings typically last longer than 90 days. Finally, Chavez argues that interpreting the statutory structure of § 1231(a) to read as a final removal order would conflict with the specific protections establishing withholding proceedings in § 1231(b).

Discussion THE EFFECTS OF DETENTION ON INDIVIDUALS AND THE IMMIGRATION SYSTEM Pham notes that § 1231(a) provides adequate protections for detained aliens against unwarranted detention. Pham notes that any exercise of discretion for detention is reviewed by an ICE field office and is subject to periodical review by a review panel at ICE headquarters. Pham explains that these reviews allow for the detained alien to submit information believed to be helpful for their release, specifically to rebut the factors that they may pose a flight risk or engage in future criminal activity. Pham argues that these reviews provide a sufficient opportunity to present evidence and an argument against detention. Finally, Pham also notes that any detention period that lasts longer than six months must be supported by evidence from the government, which again, allows for the detained individual to submit a written request for release. In sum, Pham argues that there are already sufficient procedural protections under § 1231(a) that justify it to be the governing provision, without needing to look to other provisions, such as § 1226. The American Immigration Council and other non-profit organizations (AIC et al.), in support of Chavez, note that dangerous conditions of detention mean that mandatory detention creates substantial risk of harm to the individuals. AIC et al. argue that these conditions dissuade some individuals from pursuing their otherwise meritorious withholding proceedings to fruition. They specifically refer to both inhumane treatment of detainees, as well as inadequate levels of medical care, that have been, at times, fatal. Former U.S. Immigration Judges and Members of the Board of Immigration Appeals (Immigration Judges), in support of Respondents, contend that the government maintains responsibility for the health and safety conditions of immigration detention system as a matter of due process. The Immigration Judges note that COVID-19 has presented an unreasonable risk to detained individuals, who are unable to socially distance and are not provided with protective equipment. This is further supported, the Immigration Judges argue, by the large amount of federal lawsuits that have been filed seeking bond hearings on the basis of the lack of safety of detention. Further, various groups, in support of Chavez, argue that the practices

of mandatory detention may run afoul of various international human rights treaties, including the United States’ international human and civil rights commitments under the UN Convention Relating to the Status of Refugees, International Covenant on Civil and Political Rights, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Written by Noah Welch and Chris Mao. Edited by Julia Canzoneri.

Full text available at https://www.law. cornell.edu/supct/cert/19-897. 

Uzuegbunam v. Preczewski (No. 19-968) Oral argument: Jan. 12, 2021 Court below: U.S. Court of Appeals for the Eleventh Circuit

Question as Framed for the Court by the Parties Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff ’s constitutional right.

Facts Chike Uzuegbunam and Joseph Bradford were both students attending Georgia Gwinnett College (“GGC”) who shared similar religious beliefs and a desire to express those beliefs publicly. In July 2016, Uzuegbunam was distributing literature that promoted his religious beliefs in an outdoor plaza on campus when a campus police officer approached him. The officer informed Uzuegbunam that, under GGC’s “Freedom of Expression Policy,” the distribution of literature in the plaza was forbidden because students could only engage in expressive activities on campus in the two designated “speech zones,” which were available on a reservation basis. After this incident, Uzuegbunam reserved one of the speech zones in order to continue distributing his religious literature. Shortly thereafter, Uzuegbunam was again stopped by campus police. According to the officer, the police had received “some calls” complaining about Uzuegbunam’s religious speech. The officer informed Uzuegbunam that he was again in violation of GGC’s Freedom of Expression Policy because his speech zone reservation did not include “open-air speaking,” which he was engaging in by speaking to passing students about his be-

liefs. The officer also told Uzuegbunam that his activities constituted disorderly conduct under GGC’s Student Code of Conduct. Given the threat of disciplinary action, Uzuegbunam ceased his expressive activities entirely and left his reserved speech zone. The incident also deterred both Uzuegbunam and Bradford from making future attempts to distribute religious literature elsewhere on campus or to engage in any expressive activities in the designated speech zones. Uzuegbunam and Bradford then filed a complaint against multiple GGC officials, including GGC’s president, Stanley Preczewski, for violating their constitutional rights. Uzuegbunam and Bradford sought a declaratory judgment that the speech policies in GGC’s Freedom of Expression Policy and Student Code of Conduct violated their rights under the First and Fourteenth Amendments. They also sought an injunction preventing the enforcement of the policies and requested nominal damages for the violation of their rights. While the suit was pending, Uzuegbunam graduated from GGC, and GGC revised its speech policies to generally allow students to speak anywhere on campus without a permit and to remove disorderly conduct as a violation. Thereafter, GGC filed a motion to dismiss the suit as moot, arguing its speech policies were no longer unconstitutional, and thus declaratory and injunctive relief were no longer necessary. The U.S. District Court for the Northern District of Georgia granted the motion to dismiss, holding that a claim for nominal damages could not save a complaint that was otherwise moot. Uzuegbunam and Bradford appealed to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the district court’s ruling. Uzuegbunam and Bradford petitioned the U.S. Supreme Court for a writ of certiorari on Jan. 31, 2020, which the Supreme Court granted on July 9, 2020.

Legal Analysis MOOTNESS AND NOMINAL DAMAGES Petitioner Uzuegbunam argues that according to Article III of the Constitution, a case becomes moot when a court is no longer able to grant effectual relief. Therefore, Uzuegbunam argues that so long as there is some monetary relief sought, however small, the suit is not moot. This relief, Uzuegbunam argues, includes both compensatory and nominal damages because they both affect the behavior of the defendant in response

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to an earlier violation of the rights of the plaintiff. Uzuegbunam claims that because nominal damages offer actual relief to the plaintiff on the merits of the claim, there is no need for corresponding compensatory damages to make the claim justiciable. Uzuegbunam further argues that a subsequent change in an unconstitutional policy cannot eliminate a plaintiff ’s right to relief for a violation of a constitutional right. In support of this argument, Uzuegbunam notes that nearly all of the circuit courts of appeals have held that a claim for nominal damages remains justiciable even after a defendant’s change in policy. Uzuegbunam also argues that permitting stand-alone nominal-damages claims will not destroy the mootness doctrine. Specifically, Uzuegbunam contends that invalid nominal claims would still be considered moot. For example, Uzuegbunam argues that some statutes restrict nominal-damages claims, like § 1983’s bar on nominal-damages against state defendants in their official capacity. Uzuegbunam also asserts that nominal-damages claims would still be unavailable in cases in which the plaintiff did not suffer an injury. Respondent Preczewski counters that Article III requires a plaintiff to have a personal stake in a case to avoid mootness. Specifically, Preczewski argues that the court must be able to “grant the plaintiff personal and tangible relief that is likely to redress his asserted injury.” Preczewski asserts that a remedy must provide a plaintiff a “real world” benefit that rectifies an injury. For example, Preczewski contends that compensatory damages redress an injury by “making the plaintiff whole.” By contrast, Preczewski argues that nominal damages are merely symbolic. Preczewski contends that, therefore, nominal damages only prevent mootness if used to prevent a current or threatened violation of a plaintiff ’s legal rights. Thus if the conduct has ceased, Preczewski asserts, the plaintiff no longer faces a potential injury and has no tangible benefits to gain from the damages. While Preczewski acknowledges that nominal damages serve the public interest as “vindication of the rule of law,” he notes that Article III requires a plaintiff to claim a personal benefit, rather than a generalized public benefit, for a case to be justiciable. Preczewski further argues that allowing claims for nominal damages that allege no injury would upend the mootness doctrine.

Specifically, Preczewski asserts that permitting the claim for nominal damage in this case would allow plaintiffs to insulate their claims from mootness by merely claiming that a constitutional right was “chilled.” Preczewski argues that the elimination of the mootness doctrine would encourage and draw out litigation and reduce incentives for defendants to correct unconstitutional policies.

NOMINAL DAMAGES VERSUS DECLARATORY JUDGMENTS Uzuegbunam argues that his claim for nominal damages cannot be substituted with a declaratory judgment because nominal damages serve a different purpose. Uzuegbunam contends that declaratory judgments were created to determine a legal right before a controversy has occurred to prevent future violations of the law, while nominal damages serve to vindicate a legal violation after it has occurred. While Uzuegbunam concedes that declaratory judgments can sometimes be retrospective, he highlights that their general purpose is to guide future behavior. On the other hand, Uzuegbunam asserts that the general purpose of nominal damages is to address past violations. Uzuegbunam further argues that while nominal damages have some declaratory effect, so do compensatory damages. Therefore, Uzuegbunam concludes that the declaratory feature of a nominal-damages claim cannot by itself render the claim moot, or else it “would moot all damages claims.” Uzuegbunam also notes that a claim for nominal damages is not equivalent to a declaratory judgment because declaratory judgments are optional, while nominal damages are required if the court finds that a violation has occurred. Finally, Uzuegbunam argues that the courts have recognized a distinction between nominal damages and declaratory judgments because they have continued to award nominal damages in the 80 years since Congress enacted the Declaratory Judgment Act. Preczewski counters that in the absence of a continuing or threatened injury, a claim for nominal damages serves only to provide declaratory relief. Preczewski notes that, historically, nominal damages were created to provide an avenue for declaratory relief in common-law courts, since declaratory judgments did not exist at that time. Therefore, in common-law courts, the issuance of nominal damages served the purpose of indirectly declaring the existence or nonexistence of

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plaintiffs’ rights. Preczewski notes that the cases which permitted nominal damages in common-law courts all involved rights that could be violated or threatened in the future, and thus, the declaration of those rights served to protect against future injuries. Preczewski argues that while nominal damages were sometimes permitted even when they would not serve a prospective purpose, they were never treated as the primary or sole redress for a past injury. Preczewski asserts that issuance of nominal damages in this case would be analogous to a declaratory judgment. Since a court can only issue a declaratory judgment involving a “present right,” Preczewski argues that a declaration that GGC’s previous speech policies violated Uzuegbunam’s constitutional rights would merely constitute an advisory opinion.

Discussion PROTECTION OF CONSTITUTIONAL RIGHTS The American Humanist Association (AHA), in support of Uzuegbunam, argues that finding nominal damages insufficient to create a controversy would endanger religious liberty, as nominal-damages claims are often the only legal remedy citizens have to vindicate violations of their First Amendment rights. AHA also asserts that First Amendment infringements always cause irreparable harm, so courts should not give governments a “free pass” by dismissing claims alleging such violations. The Justice and Freedom Fund, in support of Uzuegbunam, also contends that litigation over constitutional rights raises awareness of important issues, which can lead to larger-scale legislative changes that better protect those rights for all. The District of Columbia and 11 states (the States), in support of Preczewski, argue that dismissing cases as moot following subsequent policy revisions will protect the constitutional rights of citizens by incentivizing governments to remedy unconstitutional laws once they are challenged instead of defending them through the end of litigation. The National Conference of State Legislatures and other local government associations (local government associations), in support of Preczewski, contend that such a rule would also serve the public interest by encouraging officials to act quickly and decisively during emergencies and fix harmless mistakes as they arise, without the fear of never-ending litigation.

ADMINISTRATIVE BURDENS The United States, in support of Uzuegbunam, argues that allowing litigation to continue over nominal damages will not impose significant administrative burdens because very few civil rights claims are likely to claim solely nominal damages, as constitutional violations often involve significant harm. The United States asserts that defendants can choose to avoid litigating the merits of those claims and conserve their resources by simply settling or accepting a judgment of nominal damages against them without contesting it. The Public Citizen, in support of Uzuegbunam, further contends that adjudicating the merits of constitutional claims falls under the duty of federal courts to “say what the law is,” and thus, courts are obligated to adjudicate even nominal-damages claims in order to fulfill their duty of clarifying and facilitating the development of constitutional law. The States counter that refusing to dismiss nominal-damages claims will substantially burden governments by forcing officials to divert extensive time and money from their regular obligations to prepare to defend themselves at trial. The States argue that this litigation can drag on for years, which both strains judicial resources and drives up attorney’s fees that the government may be ordered to pay in addition to nominal damages. Local government associations further contend that states cannot simply concede claims to conserve resources, as the United States suggests, because they will still be subject to the negative collateral consequences that accompany losing a lawsuit, such as increased insurance costs and ineligibility for federal funding. Written by Daniel M. Bialer and Julia Mikolajczak. Edited by Zora Franicevic.

Full text available at https://www.law. cornell.edu/supct/cert/19-968. 

Trump v. New York (No. 20-366)

Oral Argument: Nov. 30, 2020 Court below: U.S. District Court for the Southern District of New York

This case asks the Supreme Court to decide whether the president may exclude undocumented immigrants when apportioning congressional seats by population. On July 21, 2020, President Donald Trump issued a memorandum declaring that the United States would exclude undocumented

immigrants from the congressional apportionment base. Petitioner Trump argues that New York lacks standing to bring this case since 2020 census questionnaires are no longer being collected and it cannot point to how much federal funding or congressional representation certain states stand to lose. Trump further contends that even if New York has standing, Trump has discretion not to count undocumented immigrants for apportionment purposes. Respondent New York asserts that it has standing because it has demonstrated that the memorandum will deter undocumented immigrants from participating in the 2020 decennial census. Moreover, New York asserts that federal statutes require the government to make funding decisions based on the total population count and that certain states could lose congressional representation if the memorandum is implemented. Finally, New York argues that the Census Act, Reapportionment Act, and the Constitution prevent the president from exercising discretion to exclude undocumented immigrants from the census. The outcome of this case has implications for the apportionment of representatives from states with large undocumented populations and the participation of undocumented immigrants in the decennial census. Full text available at https://www.law.cornell.edu/supct/cert/20-366. 

Van Buren v. United States (No. 19-783) Oral argument: Nov. 30, 2020 Court below: U.S. Court of Appeals for the Eleventh Circuit

This case asks the Supreme Court to determine the scope of the “exceeds authorized access” clause of the Consumer Fraud and Abuse Act (CFAA). A person violates the CFAA when the person “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from the computer. Petitioner Van Buren was a policeman who was authorized to access a law enforcement database. For reasons unrelated to his job, he used that access to search a license plate for financial gain. Respondent United States contends that when Van Buren accessed the database for a reason unrelated to his job, he exceeded his authorized access and violated the CFAA. Van Buren argues that he did not exceed his authorized access because the “exceeds authorized access” provision does

not punish individuals who misuse information they are otherwise authorized to access. The outcome of this case will have broad implications on how employers protect sensitive data and how prosecutors can pursue hacking and computer fraud. Full text available at https://www.law. cornell.edu/supct/cert/19-783.

CIC Services, LLC v. Internal Revenue Service (No. 19-930)

Oral argument: Dec. 1, 2020 Court below: U.S. Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to interpret the Anti-Injunction Act and to determine whether it bars pre-enforcement legal challenges to agency guidelines and regulations that incorporate a tax-penalty enforcement mechanism into the framework. CIC Services argues that the Supreme Court should construe the Administrative Procedure Act’s review provisions broadly enough and the Anti-Injunction Act’s prohibitory provisions narrowly enough to provide material tax advisors relief from the Internal Revenue Service’s new interpretative guidelines concerning reportable transactions. Respondent Internal Revenue Service counters that the Anti-Injunction Act applies to CIC’s challenge so the lawsuit is barred and that none of the available exceptions to the Anti-Injunction Act’s provisions apply to CIC’s sought injunction. This case has important implications for corporations whose business involves reporting earnings to the Internal Revenue Service, as well as for federal agencies’ abilities to avoid lawsuits by tying in certain tax-penalty provisions. Full text available at https://www.law. cornell.edu/supct/cert/19-930. 

Edwards v. Vannoy (No. 19-5807)

Oral argument: Dec. 2, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to decide whether Ramos v. Louisiana, which held that a criminal defendant charged in state court can only be convicted by a unanimous jury, applies retroactively to cases that were finalized before Ramos was decided. Petitioner Thedrick Edwards was convicted under Louisiana’s nonunanimous jury rule and contends that Ramos recognized an ancient

March/April 2021 • THE FEDERAL LAWYER • 75

guarantee of criminal procedure that should be given retroactive effect under Teague v. Lane. Alternatively, Edwards asserts that Ramos enunciated a new watershed rule that must be applied retroactively because of the importance of juror unanimity to ensure accurate convictions. In response, Respondent Darrel Vannoy, the Warden of the Louisiana State Penitentiary, argues that Ramos overruled Apodaca v. Oregon and announced a new rule that significantly changes criminal proceedings in states that allowed conviction by nonunanimous juries. Additionally, Vannoy claims that the Antiterrorism and Effective Death Penalty Act of 1966 independently bars the retroactive application of Ramos. The outcome of this case has heavy implications for individuals seeking retrial for guilty verdicts decided by nonunanimous juries. Full text available at https://www.law. cornell.edu/supct/cert/19-5807. 

Federal Republic of Germany v. Philipp (No. 19-351)

Oral argument: Dec. 7, 2020 Court below: U.S. Court of Appeals for the District of Columbia Circuit

This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent U.S. courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (FSIA) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether U.S. courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in U.S. courts.

Full text available at https://www.law. cornell.edu/supct/cert/19-351. 

Republic of Hungary v. Simon (No. 18-1447)

Oral Argument: Dec. 7, 2020 Court below: U.S. Court of Appeals for the District of Columbia Circuit

This case asks the Supreme Court to decide whether the common-law doctrine of international comity provides federal courts with the discretion to dismiss claims under the Foreign Sovereign Immunities Act (FSIA). Respondent the Republic of Hungary argues that the FSIA must be construed in light of international comity doctrine, and that the federal court should defer to Hungary as Hungary’s interests in hearing this case outweigh those of the United States. Petitioners Rosalie Simon and other Hungarian Holocaust survivors argue that the FSIA has displaced common law and that federal courts should exercise jurisdiction in cases such as this one, where a sovereign state has failed to provide an adequate alternate forum. The outcome of this case will have implications on foreign policy, the extraterritorial reach of U.S. law, and the remedies available to the victims of Holocaust. Full text available at https://www.law. cornell.edu/supct/cert/18-1447. 

Henry Schein Inc. v. Archer and White Sales Inc. (19-963) Oral argument: Dec. 8, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to consider whether an arbitration agreement that incorporates the American Arbitration Association’s (AAA) rules delegates the question of arbitrability to the arbitrators, in light of an express exclusion clause for injunctive relief, where the plaintiff sought both damages and injunctive relief. The arbitration agreement at issue in this case includes a “carve-out” provision excluding from arbitration any claims seeking injunctive relief. Rule 7(A) of the AAA’s rules states that the arbitrator has the power to rule on the arbitrability of any claim or counterclaim. Petitioner Henry Schein, Inc. argues that the incorporation of the AAA rules “clearly and unmistakably” delegates all questions of arbitrability to the arbitrator, and that, because some issues are delegated to the arbitrator, the presumption

76 • THE FEDERAL LAWYER • March/April 2021

of arbitrability should be read to delegate to the arbitrator the question of the application of the exclusion clause. On the other hand, Respondent Archer and White Sales, Inc. contends that the question of arbitrability should remain for the court to decide because of the explicit carve-out exemption. The outcome of this case has heavy implications for the efficiency and fairness of dispute resolution. Full text available at https://www.law. cornell.edu/supct/cert/19-963. 

Collins v. Mnuchin (19-422) Oral argument: Dec. 9, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional. If so, this structure may render the placement of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) into FHFA’s conservatorship void. Petitioner Secretary of the Treasury Steven T. Mnuchin argues that the succession and anti-injunction clause of the Housing and Economic Recovery Act of 2008 (Recovery Act) bars Collin’s claim because that claim is derivative. Mnuchin asserts the Recovery Act’s removal clause does not invalidate the challenged amendment to the FHFA’s agreement with the Treasury Department and that the court should sever the removal clause from the rest of the statute. Respondent Patrick J. Collins counters that neither the succession clause nor the anti-injunction clauses bar a direct suit under the Administrative Procedure Act (APA). Collins contends that the Court’s response to the removal clause should set aside both the challenged amendment to FHFA’s agreement with the Treasury and the Recovery Act’s conservatorship clause. This case’s outcome has implications for the separation of powers and protections for “for-cause” removal. The case could impact private individuals’ incentives to bring constitutional challenges to the court and the government’s ability to intervene in moments of economic crises. Full text available at https://www.law. cornell.edu/supct/cert/19-422. 

AMG Capital Management, LLC v. Federal Trade Commission (No. 19-508)

Oral Argument: Jan. 13, 2021 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to clarify whether the Federal Trade Commission’s authority to seek injunctive relief includes requests for monetary recovery as restitution. The FTC sued Petitioner Scott Tucker, his wife, Kim Tucker, and his various businesses (AMG Capital Management, LLC, et al.) for deceptive business practices. Tucker argues that the plain language of § 13(b) does not support the Ninth Circuit’s interpretation to allow monetary restitution as relief. Tucker also contends that such an interpretation may disrupt procedural safeguards in the FTC Act and that the old case law emanating from Porter and its progeny does not control the current case. Citing equity law cases that treat monetary restitution as a part of injunctive relief, the FTC maintains that Tucker’s argument is misleading because it fails to consider that the FTC Act takes into consideration the dual enforcement system of the FTC. Lastly, the FTC argues that Porter and its progeny are still good law and hence control the current case. The outcome of this case has heavy implications for consumer protection, business norms, and adhering to court precedent Full text available at https://www.law. cornell.edu/supct/cert/19-508. 

case has implications for state and federal jurisdiction, climate change, and congressional delegation of power. Full text available at https://www.law. cornell.edu/supct/cert/19-1189. 

Federal Communications Commission v. Prometheus Radio Project (No. 19–1231)

Oral argument: Jan. 19, 2021 Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to decide whether the U.S. Court of Appeals for the Third Circuit erred when it vacated several Federal Communication Commission orders that, among other things, relaxed agency cross-ownership restrictions. Prometheus Radio Project, which challenges the FCC’s orders, claims that the FCC acted arbitrarily and capriciously because it did not consider how repealing cross-ownership restrictions would affect minority and female ownership of broadcast services. The FCC counters that courts owe the agency substantial deference when it considers multiple policy factors in its rulemaking capacity. The Supreme Court’s decision could affect the scope of judicial review of administrative actions, the integrity of local news coverage, and the diversity of broadcast media. Full text available at https://www.law. cornell.edu/supct/cert/19-1231. 

BP P.L.C. v. Mayor and City Council of Baltimore (No. 19-1189) Oral Argument: Jan. 19, 2021 Court below: U.S. Court of Appeals for the Fourth Circuit

This case asks the Supreme Court to decide whether 28 U.S.C. § 1447(d) allows courts of appeals to review an entire order remanding a removed case back to state court. Normally, § 1447(d) forbids courts of appeals from reviewing remand orders, except when a federal officer seeks removal, or the case involves civil rights. Based on a plain reading of the text and the purpose of the exceptions, BP argues that if a defendant asserts either jurisdictional ground, § 1447(d) permits a court to review the entire order. Baltimore contends that this reading contravenes the purpose and historical understanding of the proper scope of review. This March/April 2021 • THE FEDERAL LAWYER • 77

FBA Nominations and Elections for FY2022

Pursuant to the FBA Constitution and Bylaws, and in accordance with the notice disseminated earlier this year, the Nominations & Elections Committee has met and considered applications for nomination to FBA national office. The committee has nominated the following members for the offices indicated.

Candidate

Position

Matthew C. Moschella

President-Elect

Jonathan O. Hafen

Treasurer

Richard Dellinger

Director (Group 1-Vice Presidents for the Circuits)

Kelly T. Scalise

Director (Group 2-Chairs for the Sections and Divisions)

Michelle M. Pettit

Director (Group 3-Chapter Presidents)

Anna W. Howard

Director (Group 4-Younger Lawyers)

Ashley L. Belleau

ABA Delegate

To be appointed

Vice President for the First Circuit

Olivera Medenica

Vice President for the Second Circuit

Christian T. Haugsby

Vice President for the Third Circuit

Kacy L. Hunt

Vice President for the Fourth Circuit

Paul D. Barkhurst

Vice President for the Fifth Circuit

Donna J. Mikel

Vice President for the Sixth Circuit

To be appointed

Vice President for the Seventh Circuit

David A. Goodwin

Vice President for the Eighth Circuit

Darrel J. Gardner

Vice President for the Ninth Circuit

Kate Marples Simpson

Vice President for the Tenth Circuit

Oliver A. Ruiz

Vice President for the Eleventh Circuit

Patricia D. Ryan

Vice President for the D.C. Circuit

The names of these candidates will be listed on the Notice of Election that will be distributed to each member in good standing as of June 15, 2021. Petitions Members who have not been nominated for office by the Committee, but who wish to be placed on the ballot for national office, may do so by delivering to Christian K. Adams, Chair of the Nominations and Elections Committee, at elections@fedbar.org, a petition, including an Application, specifying the office being sought and bearing the required number of signatures, i.e., fifty (50) signatures for national offices; twenty (20) signatures for vice presidents for the circuits by members within the respective circuit. No member shall be eligible as an endorser of a petition whose dues are not paid for the current fiscal year or who is not otherwise in good standing. Each petition may propose nominees for one or more offices; however, in no event shall any member be eligible as an endorser of more than one candidate for the same office. Petitions must be received by 11:59 p.m. EDT on Monday, April 26, 2021. Notice of Election, Ballots and Voting In accordance with Bylaw 6(D), by June 15, 2021, the Committee shall cause a Notice of Election to be sent to each member of the Association in good standing. The notice shall list the names of all nominated candidates and candidates by petition in alphabetical order under each elective office. The notice also shall contain such instructions as necessary for members to cast their votes as prescribed by policy adopted by the Board of Directors. A suspended member who is restored to good standing after the transmittal of the notice and who, prior to the election’s close, delivers to the Committee evidence of good standing, shall thereupon be entitled to vote. In an uncontested election, the Association shall only send the Notice of Election electronically to members. The ballot shall contain the names of all nominated candidates and candidates by petition for each elective office as well as space for a write-in candidate for each elective office. Completed ballots shall be received by the Chair of the Committee or by such person as designed by the Chair no later than July 1. The Committee shall review and certify the tabulated votes and report as elected the candidate for each office who has received a plurality of the votes cast for that office by July 2. W. West Allen National President and Chair, Nominations and Elections Committee

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Member News 82 | 84 | 86 |

Sections & Divisions Chapter Exchange Member Spotlight

Not a member? FBA members enjoy these great benefits: ADVOCACY • Regular Issues Updates for Federal Practitioners • “Washington Watch” Articles • Government Relations Efforts • Annual Capitol Hill Day NETWORKING AND LEADERSHIP • Legal Career Center • More Than 90 Chapters Across 12 Circuits • 23 Practice Area Sections • Six Career Divisions • Volunteer Leadership Opportunities

EDUCATION • Judicial Profile Index • Bimonthly CLE Webinars • National CLE Conferences COMMUNICATIONS AND PUBLICATIONS • The Federal Lawyer Magazine • Bimonthly eNewsletter • Section, Division, and Chapter Newsletters OTHER • Member Plus Affinity Program • Member-Only Directory • “Need an Attorney” Listing

March/April 2021 • THE FEDERAL LAWYER • 81

Sections & Divisions

Erwin Chemerinsky and Maria Andrade from the Immigrant Justice Idaho conference discussing Supreme Court limits on executive power in immigration law.

SECTION ON IMMIGRATION LAW The Immigration Law Section (ILS) proudly supported the Idaho Justice Center’s November 2020 symposium on immigration law and policy. The annual conference is the brainchild of Maria Andrade, founder and executive director On Nov. 30, 2020, the Supreme Court heard arguments in Trump vs. New York, involving the Trump administration’s July 20, 2020, memorandum instructing the director of the census to provide an accounting of those unauthorized to be in the United States for the purpose of excluding them from the decennial census. This memorandum came on the heels of the Court blocking the administration from inserting a question regarding U.S. citizenship on the census. ILS section chair Mark Shmueli moderated this panel, which included Terry Ao Minnis, senior director of Census and Voting 82 • THE FEDERAL LAWYER • March/April 2021

Programs for Asian Americans Advancing Justice, and Cori Alonso Yoder, director of the Federal Litigation Clinic, Georgetown University College of Law. The panel discussed the arguments in this case along with the radical public policy implications if the Court were to uphold the constitutionality of excluding those living in the United States based on their lack of immigration status from the decennial population count states use to apportion congressional representation. Also, the panel covered the difficulty that the Court had, not only with the exclusion based on immigration status but also on the administration’s inability to articulate a concrete plan for how to discern the status of those counted by the census and also to provide a clear analysis of which people it planned to exclude under the memorandum. Along with this critical webinar, the ILS also sponsored a webinar that discussed COVID-19 challenges to practicing immigration law and provided strategies and tips

to get our practices through the pandemic. Thanks to presenters Ray Lahoud and Murat Berdyev. In early January, the ILS also launched a new series of informal roundtables with a “Breakfast from the Border” presentation by San Antonio attorney and ILS board member Carlos Castaneda and Tucson-based journalist and author of three books on the border, Todd Miller. The ILS was also a proud co-sponsor of the annual New York Asylum & Immigration Law Conference on February 5. 

Chapter Exchange

San Diego Chapter: (left to right) Renowned courtroom illustrator Bill Robles and District Judge Larry Alan Burns unveil at the State of the District event an illustration of the U.S. District Court for the Southern District of California’s 17 district judges.

NINTH CIRCUIT San Diego Chapter The San Diego Chapter rounded the corner on a year that presented not only many challenges but also new opportunities for the chapter to serve its members and community. By harnessing videoconference technology, the chapter’s events continued to reach a wide audience and keep the legal community informed, despite the COVID-19 pandemic. In September 2020, the San Diego Chapter presented the 16th Annual Judith N. Keep Federal Civil Practice Seminar. In the virtual sessions, over 1,250 attendees heard from three circuit judges, six district judges, and three magistrate judges on topics such as expert witnesses, professionalism, and appellate practice during the pandemic.

In November 2020, nearly 300 people attended the chapter’s 2020 Supreme Court Case Review, featuring renowned scholar and educator Erwin Chemerinsky, dean of Berkeley Law. The chapter also partnered with the U.S. District Court for the Southern District of California to host the court’s annual State of the District event. Community members watched virtually as the court’s leadership shared updates on operations during the pandemic and presented criminal defense attorney Charles H. Adair with the Hon. David H. Bartick Award for Civility and Professionalism. The court also posthumously honored Bruce C. Smith, an assistant U.S. attorney, and Peter C. Mazza, the chapter’s former president, with the same award. Both were public servants and exemplary attorneys whose untimely deaths

84 • THE FEDERAL LAWYER • March/April 2021

shocked the legal community. In December 2020, the San Diego Chapter presented the capstone of its three-part series on civility in the law, which averaged over 100 attendees. Titled Promoting Civility in the Legal Profession, the webinar featured leaders of the legal community who shared how the profession can foster civility among practitioners. The San Diego Chapter continued its mission into the new year by assisting with the Southern District’s Passing of the Gavel as Chief Judge from Hon. Larry Alan Burns to Hon. Dana M. Sabraw. And, to close out January 2021, the chapter presented How to Apply to be a U.S. District Judge, a webinar where a distinguished panel shared advice on the application process for the position.

South Carolina Chapter President Janet Brooks Holmes and President-elect Beattie Ashmore presented Harvest Hope Food Bank with a check for over $10,000.

FOURTH CIRCUIT South Carolina Chapter

The South Carolina Chapter of the FBA gave back to food banks this past holiday season. South Carolina Chapter President Janet Brooks Holmes and President-Elect Beattie Ashmore presented Harvest Hope Food Bank with a check for over $10,000. Board members voted unanimously on Dec. 3 to roll out the campaign to raise money for food banks, naming it “This Season Put Your Money in the Bank—The Food Bank.” What began as a $5,000 donation doubled within weeks with the help of board members and South Carolina FBA members as well as their friends and families. “The coronavirus pandemic has led to rising food insecurity across the country, including in our state,” said Holmes. “These folks are our neighbors. They have lost jobs, and families and individuals are hungry. Their hearts are broken, and our hearts also break as we realize how fragile it all is. “That’s why the South Carolina Chapter of the FBA decided to donate $5,000 from its funds to food banks across our state in time for the holidays. We challenged our members, families, and friends to meet our donation, as collectively we could make a huge difference in our state this holiday season by turning hunger into hope. Not only did they meet our donation, they exceeded it.” Harvest Hope Food Bank is South Carolina’s largest food bank, providing over 22.6 million meals each year. Serving the Midlands, Pee Dee, and Upstate, Harvest Hope is dedicated to eliminating hunger and food insecurity in South Carolina. Harvest Hope partnered with Lowcountry Food Bank for this donation to ensure residents across the state could receive meals during the holiday season. Food insecurity has been on the rise due to the COVID-19 pandemic, increasing donation needs for local food banks. Harvest Hope has quadrupled its 2019 numbers. If you are interested in donating to Harvest Hope or Lowcountry Food Bank, visit HarvestHope.org and Lowcountryfoodbank.org. 

Friend Us. Follow Us. Join Us. www.fedbar.org

March/April 2021 • THE FEDERAL LAWYER • 85

Member Spotlight † Denotes New Member * Denotes Sustaining Member

Michelle Corea* Matthew McReynolds

NINTH CIRCUIT

ELEVENTH CIRCUIT

Robert Montenegro Ruth Dorough

Jerusha Adams Emily Marks

San Diego

Montgomery

Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. 86 • THE FEDERAL LAWYER • March/April 2021

CAPITOL HILL DAY Calendar of events Plan to participate in this virtual event as FBA leaders from across the country meet with House and Senate offices to discuss important FBA legislative issues that impact the administration of justice and the federal courts. During these meetings, FBA participants will discuss issues critical to the Third Branch of government, including: adequate funding for the federal courts, filling judicial vacancies, adding new judgeships, and establishing an independent immigration court. FBA Capitol Hill Day is becoming more popular each year. Don’t miss out on this opportunity to broaden the FBA’s visibility and influence in Congress. Training and materials will be provided to Capitol Hill Day participants in advance of the event. Visit www.fedbar.org for additional information and to register.

April 14: Capitol Hill Day Preparatory Briefing (3 pm ET)

May 3-7: Meetings with Lawmakers and Staff

May 8: Capitol Hill Day Debrief (noon ET)

On Demand Now Available: Making an Impact on Capitol Hill: An Introduction to FBA’s Government Relations and Capitol Hill Day Program Available March 17: Legislative Update

1st Circuit This index contains profiles as they were published in The Federal Lawyer magazine. The index is organized by circuit and district, which can be accessed via the tabs at right. If you would like to search for a specific judge, it is recommended that you use the search function above and type in the judge’s last name. This index will be updated with both new profiles and historical profiles on a regular basis. If the judge you are looking for does not appear, this either means that they have not yet been added to the index or have not been profiled. The Federal Lawyer encourages submissions of judicial profiles; contact Managing Editor Sarah Perlman at sperlman@fedbar.org for more information.

Access the index today at www.fedbar.org/JPI

Federal Bar Association Calendar of Events 

MARCH

MARCH 1 Capitol Hill Chapter Presents: What Girls Need: How to Raise Bold, Courageous, and Resilient Women By Marisa Porges, PhD.

M A RC H 1 1 Southern District of Texas Chapter: Immigration Law Update Idaho Chapter: Ninth Circuit Cowboy (Movie & Presentation)

MARCH 3–5 [Virtual] Tax Law Conference

M A RC H 1 5 – 1 9 [Virtual] Leadership Summit

MARCH 8–12 [Virtual] 2021 Thurgood Marshall Moot Court Competition

M A RC H 1 7 Legislative Update

MARCH 9 Southern District of Texas Chapter: Federal Practice Series: Appellate Advocacy

M A RC H 1 8 [Virtual] FBA Board of Directors Meeting

MARCH 10 Eastern District of New York Chapter: Ninth Annual Federal Criminal Practice Update MARCH 11–12 [Virtual] Wyoming/ Idaho/Utah Chapters: 16th Annual Virtual TriState Conference

[Virtual] FBBC Board of Directors Meetings

Southern District of Texas Chapter: Trailblazing Women Judges of the Fifth Circuit

M A RC H 1 9 [Virtual] National Council Meeting M A RC H 2 4 Veterans and Military Law: An Update on Law of War M A RC H 2 5 Roanoke Chapter: Virtual Brown Bag Lunch with Judge Thomas T. Cullen

MARCH 30 Immigration Law Section: Categorically Ridiculous: The Categorical Approach and Determining the Immigration Consequences of Criminal Convictions

APRIL

Visit Fedbar.org for more information.

APRIL 29–30 [Virtual] Art Law & Litigation Conference

JUNE 11 [Virtual] FBA Board of Directors Meeting

M AY

JUNE 24 [Virtual] FBBC Board of Directors Meeting

M AY 3 – 7 [Virtual] Capitol Hill Day Meetings with Lawmakers and Staff

APRIL 8–9 [Virtual] Indian Law Conference

M AY 5 Corporate and Association Counsel Division

APRIL 8 False Claims Act Today – District of Massachusetts

M AY 7 [Virtual] Capitol Hill Day Debrief

APRIL 14 [Virtual] Capitol Hill Day Preparatory Briefing

M AY 1 0 The Capitol Hill Chapter’s Quarterly Supreme Court Update

APRIL 20 IP Section: Small Group SCOTUS Admissions Ceremony APRIL 21 International Business Transactions: A Guide for the Practitioner APRIL 22 False Claims Act Today – Northern & Southern Districts of Mississippi

M AY 1 9 Alternative Dispute Resolution and Labor & Employment Law M AY 2 0 False Claims Act Today – District of Colorado

JUNE

JUNE 9 False Claims Act Today – Western District of Missouri & District of Kansas

AU G U ST

AU G U S T 2 The Capitol Hill Chapter’s Quarterly Supreme Court Update

SEPTEMBER

SEPTEMBER 23–25 2021 FBA Annual Meeting & Convention Miami SEPTEMBER 23 [Virtual] FBA Board of Directors Meeting SEPTEMBER 24 [Virtual] FBBC Board of Directors Meeting SEPTEMBER 25 [Virtual] National Council Meeting

Resilience: From Trying Times to a Brighter Future

VIRTUAL

INDIAN LAW CONFERENCE APRIL 8-9, 2021

Join the Indian Law Section for the 46th Annual Indian Law Conference on April 8-9, 2021. This newly formatted two-day virtual program will offer the same great content online. As tribal nations move down a path of healing and reaffirming inherent rights, this conference examines challenges posed by the prior administration and global pandemic, as well as how tribal nations are moving forward in a new political and global health climate. This conference will examine recent significant judicial decisions for tribes, lessons learned from the COVID-19 pandemic, challenges to civil rights, and how tribes are mobilizing in a new environment— both politically and economically. Registration closes on Friday, April 2.

For information and to register visit www.fedbar.org/event/indianlaw21