Volume 69, Issue 2
Exposed: How High-Profile Litigation Impacts Indian Children’s Privacy page 26
FBA Nominations and Elections for FY2023
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
Jonathan O. Hafen
President-Elect
Glen R. McMurry
Treasurer
Bonnie S. Greenberg
Director
Joseph S. Leventhal
Director
Rachel V. Rose
Director
TO BE UPDATED
Scott P. Lopez
Vice President for the First Circuit
Dina Miller
Vice President for the Second Circuit
Mark L. Barbre
Vice President for the Fifth Circuit
Melissa Schoenbein
Vice President for the Seventh Circuit
Open
Vice President for the Ninth Circuit
Kristen R. Angelos
Vice President for the Tenth Circuit
Lauren Millcarek
Vice President for the Eleventh 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 1, 2022. 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 Anh Le Kremer, 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 May 15, 2022. Notice of Election, Ballots and Voting In accordance with Bylaw 6(D), by June 1, 2022, 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. The ballot shall contain the names of all nominated candidates and candidates by petition 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 June 15, 2022. 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 the next business day following June 15, 2022. Anh Le Kremer National President and Chair, Nominations and Elections Committee
Volume 69, 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: Indian Law
Book Review Editors Jon Jay Lieberman Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Kristine Adams-Urbinati Ellen Denum Sara Gold Niles Illich Bruce McKenna Amanda Thom Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Melanie L. Alsworth Anna Archer Tamar Birckhead John Black Luke P. Ihnen Elizabeth Kelley Jeffrie Boysen Lewis Glenda McGraw Regnart Kirsten Samantha Ronholt Jeremy Stone Weber Stewart Michael Young 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 2022 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.
26 Exposed: How High-Profile 52 Securing a Permanent Litigation Impacts Indian Children’s Privacy By Cassondra M. Church
32 The Problem of Double-
Taxation in Indian Country By Dr. Gavin Clarkson
42
Renewable Energy on Tribal Lands: Native American Tribes Are Well Positioned to Play a Key Role in the Clean Energy Transition
Homeland: The Federal Government’s Responsibility to Provide Clean Water Access to Tribal Communities By Heather J. Tanana
58
Keeping Your Opponent’s Expert Witness in Their Lane: Guardrails for a Would-Be “Vehicle to Present a Factual Narrative” By Lucas A. Westby and Peter L. Munk
By Ben Mayer, Endre Szalay, Elizabeth Crouse, and Bart Freedman
March/April 2022 • THE FEDERAL LAWYER • 1
COLUMNS 3 President’s Message Why the FBA?
By Anh Le Kremer
4 Beltway Bulletin
New Legislation in the House Would Establish Article I Immigration Courts By Dan Renberg and Cissy Jackson
6 At Sidebar
The Virtues of Latin for Lawyers By Jon J. Lieberman
8 Diversity & Inclusion
Nonprofit Law Firm Nurtures Pipeline of Indian Law Attorneys By Lisa M. Kpor
10 Focus on Indian Law
Historic Appointment of Tribal Citizens in Biden Administration May Increase Tribal Participation in Federal Policymaking by Kirsten Matoy Carlson
BOOK REVIEWS
65 The Black Man’s President: Abraham Lincoln, African Americans, & the Pursuit of Racial Equality and A House Built by Slaves: African American Visitors to the Lincoln White House Reviewed by Henry Cohen
68 Free Justice: A History of the Public Defender in Twentieth-Century America Reviewed by Jon M. Sands
69 The Original Meaning of the 14th Amendment: Its Letter and Spirit Reviewed by Henry S. Cohn
DEPARTMENTS
71 Supreme Court Previews
13 Commentary
A Call to Action on Rule of Law in the United States By William C. Hubbard
PROFILES
16 Hon. Allie Greenleaf Maldonado
FBA MEMBER NEWS
79 Chapter Exchange 80 Sections & Divisions 83 Member Spotlight 85 Calendar of Events
Chief Judge, Little Traverse Bay Bands of Odawa Indians By N. Lauryn Boston
19 Hon. Frank Pommersheim Associate Justice, Rosebud Sioux Supreme Court By Hon. Charles Abourezk
21 Hon. Scott O. Wright
U.S. District Judge for the Western District of Missouri By Larry M. Schumaker and Roger C. Geary
2 • THE FEDERAL LAWYER • March/April 2022
Federal Bar Association 1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • Anh Le Kremer akremer@nystromcounseling.com President-Elect • Matthew C. Moschella mcmoschella@sherin.com Treasurer • Jonathan O. Hafen jhafen@parrbrown.com Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Ernest T. Bartol etbartol@bartollaw.com Joey Bowers jbowersfba@gmail.com Richard Dellinger richard.dellinger@newlinlaw.com Anna W. Howard anna.howard@uga.edu Glen R. McMurry GMcMurry@taftlaw.com Adine S. Momoh adine.momoh@stinson.com Michelle M. Pettit michelle.pettit@usdoj.gov Kelly T. Scalise ktscalise@liskow.com Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members W. West Allen wwa@h2law.com Darrel J. Gardner mail@darrelgardner.com Nathan A. Olin nate@oliplaw.com Jenifer Tomchak jen.tomchak@tomchaklaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Deputy Director R. Yvonne Cockram ycockram@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Membership Coordinator Clarise Diggs cdiggs@fedbar.org Program Coordinator Daniel Hamilton dhamilton@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Marketing Director Jennifer Olivares social@fedbar.org Administrative Specialist Brittany Ransom bransom@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Program Coordinator Ariel White awhite@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Second Circuit Olivera Medenica Dina T. Miller Third Circuit Christian T. Haugsby Frank J. McGovern
Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Daniel J. Donnellon Donna J. Mikel Seventh Circuit Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Kate Marples Simpson Eleventh Circuit Lauren L. Millcarek Oliver Alan Ruiz D.C. Circuit Patricia D. Ryan Jessica R. Toplin SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Eric S. Daniel Alternative Dispute Resolution Angela Eastman Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law Michael Mancusi Bankruptcy Law Angela Sheffler Abreu Civil Rights Law Robin B. Wagner Corporate and Association Counsel David Greene Criminal Law E.J. Rymsza Environment, Energy & Natural Resources Vacant Federal Career Service Karen J. King Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Hon. Amiena Khan Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Federica Dell'Orto Judiciary Hon. Robin Feder Labor and Employment Law Jack Blum Law Student Glen R. McMurry LGBTQ+ Law Christine E. Dieter Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Albert Lionel Jacobs Jr. Social Security Law Jerrold A. Sulcove State and Local Government Relations Andrew S. Ballentine Taxation S. Starling Marshall Transportation and Transportation Security Law Ami Lovell Veterans and Military Law Stephen Charles Newman Younger Lawyers Jenifer Tomchak
President’s Message
Why the FBA? By Anh Le Kremer
Anh Le Kremer is a former business litigator at Stinson, LLP. She is currently the chief operating officer and general counsel for Nystrom & Associates, a behavioral health organization headquartered in Minnesota.
Bar associations across the board have seen their membership numbers dip these past two years during the COVID pandemic, and the FBA has not been immune from this trend. Successful retention and growth of our membership is key to the future of the organization. It is only through robust membership that we’re able to deliver our mission of strengthening the federal legal system and administration of justice. It’s time for each of us to remind our federal practice community why the FBA is so important to local practice and the U.S. courts. Help us reach out to potential new members and re-engage those who you have not seen at chapter events recently, and share why the FBA is the bar association for them. The following are just some of the reasons. We are the premier bar association that serves federal practitioners and the federal judiciary. There is no other national bar association that focuses exclusively on the needs of the federal courts and federal practice community. For federal practitioners, both public and private, the FBA allows you to develop strong relationships with the judges in your district. The FBA has roughly 100 local chapters across the country. All our active chapters have two things in common: great programming and a strong working relationship with the federal judges in their districts. It’s the collegiality between the bench and the bar that makes this organization so special. You truly are part of the “federal family” when you’re part of the FBA. The FBA brings value to federal practitioners in other ways too: 1) Relationships: We’re in the relationship business. When you get involved at the FBA at a national level, you develop a network of relationships with attorneys from other jurisdictions. These are attorneys who know the local rules in their district courts, the judges in those courts, and the custom and practice. It’s great to be able to pick up the phone and ask questions when you have a case in another federal jurisdiction. 2) Business generation/networking. Again, we’re a relationship business and develop strong relationships through the vast FBA network. When I was in private practice, I had cases referred to me from FBA members from out of state. Now
that I’m in house, I work with attorneys that I have known through the FBA. 3) Really great CLEs/conferences (not your “average” CLEs). As an example, at our Annual Meeting & Convention in Miami in September 2021, I attended a CLE titled “Interrogating Saddam Hussein.” It was fascinating. The speaker was George Piro, special agent in charge of the FBI Miami Division, who shared his experience of being selected to be the team leader to interrogate Saddam Hussein after Hussein’s capture in 2003. Special Agent Piro had been with the FBI for five years when he was selected for this job. He shared with us the strategy that he employed during his nine months in Baghdad to get Hussein to trust and talk to him after his capture. It was a fascinating story and a CLE that I will not forget. Another phenomenal CLE/seminar that the FBA holds is the annual Indian Law Conference (currently in its 47th year). It’s the single largest conference on Indian law in the country and draws attorneys, law professors, judges, and representatives from various government agencies. It’s an incredible event that over the years has covered everything from tribal sovereignty, jurisdiction, and governance to gaming, water, healthcare, and land claims (among many other topics). These are just two examples of the many valuable CLEs that the FBA puts together for members. For our judiciary, the reason the FBA is so important is because of the advocacy work that we do on the Hill for our judiciary. We are nonpartisan in our policies and relationships with lawmakers, and we work hard to maintain this nonpartisanship. The FBA’s nonpartisanship and emphasis on issues addressing federal jurisprudence and legal practice contribute to the association’s respect and credibility in the halls of Congress and throughout Washington, D.C. The FBA provides honorary membership to active, senior, and retired judges of the federal bench. The honorary membership is with the national organization as well as the judge’s local FBA chapter and the Judiciary Division. Honorary members have full rights and privileges of membership but are exempt from continued on page 7 March/April 2022 • THE FEDERAL LAWYER • 3
Beltway Bulletin
New Legislation in the House Would Establish Article I Immigration Courts By Dan Renberg and Cissy Jackson
A former senior Senate staff member and presidential appointee, Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.
On Feb. 3, 2022, one of the FBA’s top policy priorities took a giant leap forward. Rep. Zoe Lofgren, D-Calif, introduced long-anticipated legislation to establish independent immigration courts under Article I of the U.S. Constitution. As chair of the House Immigration and Citizenship Subcommittee, Lofgren laid a firm foundation for the bill in a hearing on Jan. 20, 2022, at which not one but two distinguished FBA members testified in support of the proposal. Elizabeth “Betty” Stevens, former Immigration Section chair, and Hon. Mimi Tsankov, current president of the National Association of Immigration Judges (NAIJ) and a member of the FBA board of directors, set forth the numerous problems with our broken immigration adjudication system, outlined various proposed solutions, and explained why an independent Article I immigration court will best improve the adjudication of immigration cases without having to make changes to substantive immigration law. This legislation is the product of decades of work and advocacy by the FBA in partnership with the American Bar Association, the Association of Immigration Lawyers, and the NAIJ to, in the words of Judge Tsankov, “craft an enduring solution that would separate the politics of immigration enforcement from the needs of immigration adjudication.” As Betty Stevens elaborated, This is not a partisan issue. It’s a good government issue. It has nothing to do with substantive immigration laws or broad immigration policy. Whatever the immigration laws are and whatever the policies that inform them, it is past time to lift the courts that apply them from “halfway there, not-quite-courts” to true courts under Article I. There has been much attention in recent years on the immigration court backlog, which now stands at approximately 1.6 million cases, with an average wait of 1,938 days from charging document to merits hearing. There has been much less focus, however, on
4 • THE FEDERAL LAWYER • March/April 2022
the reasons the immigration adjudication system is so dysfunctional. The Executive Office for Immigration Review (EOIR), which contains the immigration court structure, is housed within the U.S. Department of Justice (DOJ). According to experts, including some leading FBA members, EOIR is a top-heavy bureaucracy, not a true court system. Headquarters programs drain resources that should be devoted to adjudication. Unlike other judges, immigration judges have little control over their dockets and cannot use their contempt authority to manage litigants. Each new administration pulls the 69 EOIR immigration courts from one political priority to another, crippling their efficiency and decimating due process. DOJ does not consider Board of Immigration Appeals (BIA) members and immigration judges to be independent decision-makers; indeed, they can be disciplined if the attorney general disagrees with their decisions. This potential political influence means there can be no guarantees of either due process or decisions made solely based on the law. Moreover, as Stevens explained in her testimony, a broad perception exists that the immigration courts merely rubber-stamp DHS actions. Because of this perception, individuals often do not pursue relief for which they might be eligible. [This perception] also leads to more petitions for review in the circuit courts, as the hope of impartial review in federal court postpones finality and undermines the authority of BIA determinations. Lofgren’s bill would provide transparency regarding removal proceedings, judges’ conduct, and discipline. It would allow judges to manage their caseloads without undue pressure from the political branches and would free resources for much-needed modernization of videoconferencing and electronic filing systems. Although the bill as introduced insufficiently addresses the government’s right to appeal, the FBA hopes to continue to work with continued on page 7
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At Sidebar
The Virtues of Latin for Lawyers By Jon J. Lieberman
Jon J. Lieberman is a member of the editorial board of The Federal Lawyer and currently serves on the Executive Committee of the FBA Bankruptcy Law Section. He is a partner and chair of the Financial Institutions Litigation and Regulatory Compliance Department at Sottile & Barile LLC in Cincinnati. © 2022 Jon J. Lieberman. All rights reserved.
As the jam-packed Cincinnati Metro bus carried me to my first day of classes at Walnut Hills Jr. and Sr. High School back in 1976, I was quite apprehensive about attending one of the finest public college preparatory schools in the country. Of particular concern were the horror stories I had been told about Walnut’s Latin language course requirement for both effies and e-flats. (That’s what 7th and 8th graders were called there back then.) I heard those courses were grueling, and the purpose of them unknown. “Latin is a dead language. Dead as dead can be. First it killed the Romans. And now it’s killing me.” That’s what I remember students singing on the bus that warm September morning. But how wrong that song turned out to be. Actually, not only did I survive those early Latin courses, but I thrived. So much so that when my freshman year of high school rolled around, while a vast majority of the student body gladly switched over to studying a “modern” language, such as Spanish, French, or German, I stuck with Latin. I reveled in the study of Vergil, Catullus, Horace, and Ovid for the next four years. It actually got to the point where the Latin faculty basically created classes just for me. I had received the highest awards on the National Latin Exam, traveled throughout the country for the National Junior Classical League, and was invited to all the best toga parties. Yet, as graduation approached, stark reality hit me. How was any of this Latin in any way relevant to the real world? Listening to my contemporaries, I began to think that maybe it was just a big waste of time—well, except for the toga parties. I decided to spend the summer before my senior year in Washington, D.C., interning for Rep. Lyle Williams, R-Ohio. That experience was life changing. I got to drive the congressman, along with a famous constituent, the boxer Ray “Boom Boom” Mancini, to the White House for a photo op with President Reagan (I never got out of the car, but Boom Boom did punch me real hard after I asked him to—I thought I punctured a lung), and I flew in a humongous C- 5 Galaxy transport at Andrews Air Force Base during House appropriations hearings. Before I left Washington, my life path was set. I decided that I was going to Georgetown University and would then work on Capitol Hill as a defense analyst. My last year at Walnut Hills was going to be the best.
6 • THE FEDERAL LAWYER • March/April 2022
So, you can imagine my mixed emotions when Mrs. Kessis, my favorite Latin teacher, broke her “fantastic news” to me six months prior to graduation: I had been awarded the full-tuition Louise Taft Semple Classics Scholarship by the University of Cincinnati and was being offered a year’s worth of college credit for my Latin classes and test scores. Well, it wasn’t Washington, but Latin paid for my college. Three years later, my father pinned on my Second Lieutenant “butter bars” when I was commissioned as a Distinguished Military Graduate of Air Force ROTC Detachment 665 at the University of Cincinnati. Again, I pondered the same question in a different form: “How was any of this Latin relevant to an Air Force officer?” I realized the answer to that very quickly. Life is funny, and lo and behold, I received a special duty assignment to the headquarters of the Air Force Office of Special Investigations at Bolling Air Force Base in Washington, D.C. I was assigned to the Current Operations Center and was responsible for briefing senior commanders on critical events that happened around the world. I also had the opportunity to create literally hundreds of security passwords, which, of course, I made sure were in Latin. Well, it wasn’t exactly James Bond-type stuff, but Latin did make things a little more secure for the free world. Then came law school and, as of May 18, 2022, 30 years as a practicing lawyer. Once again, Latin has played a major role in my life. The study of Latin has enhanced my critical thinking as a lawyer. It has taught me patience, attention to detail, and precision. It has deepened my communication skills and helped me when I’ve struggled to find just the right words to express a thought. It has improved my English vocabulary. It has helped me read, write, and speak with confidence and decipher new thoughts quickly. My most memorable “Latin moment” occurred while arguing an appeal of a bankruptcy appellate panel decision before the Sixth Circuit Court of Appeals. I did my homework ahead of time and learned that one of the Sixth Circuit judges had been a classics major while attending Vanderbilt University. Well, of course, I made sure to include quite a few Latin phrases into the answer to a really tough question she posed. I don’t know that it played a significant role in the positive outcome, but the judge and I spent a good
amount of time discussing my use of Latin, and she ran out of time to ask me any more tough questions. Latin has been very, very good to me. I encourage every future and practicing attorney to learn a little Latin. It can go a long way.
President's Message continued from page 3 paying dues. We invite all active, senior, and retired judges of the federal bench to accept their honorary membership by completing a quick form at www.fedbar.org/honorary.
Beltway Bulletin continued from page 4 Chair Lofgren and other members of Congress to refine the bill as the process continues. Congress has successfully established independent Article I courts in other settings where executive policymaking and priority-setting also involve impartial adjudication, such as the Tax Court, the Court of Appeals for Veterans Claims, and the Court of Appeals for the Armed Forces. Like EOIR, they were originally housed within civilian or military bureaucracies but faced similar concerns about fairness and impartiality. In each instance, Congress transferred the adjudicative functions to independent Article I courts, leaving the agencies’ other processes intact. Other proposed solutions were considered, including creating a separate executive agency or placing the immigration courts within the Article III court system. But as Betty Stevens explained, those options were rejected because “the former would simply relocate but not eliminate the bureaucratic problems, and the Judicial Conference of the United States opposes the latter.” Simply put, the best option is an independent Article I immigration court. Chair Lofgren’s filing of the bill was critical, but only the first step in the process of implementing this important reform. The FBA
cannot rest on its laurels—FBA members must continue to educate both Congress and the public about the problems and the proposed solution in order to build the necessary support and momentum to move the bill from right idea to reality.
Editorial Policy The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment. The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.
ARE YOU A SUSTAINING MEMBER? Support Sixty dollars of every sustaining membership is used to support educational programs and publications of the FBA.
Save Sustaining members save 5 percent on national event registrations and publications orders.
Upgrade your membership—contact the membership department at (571) 481-9100 or membership@fedbar.org. March/April 2022 • THE FEDERAL LAWYER • 7
Diversity & Inclusion
Nonprofit Law Firm Nurtures Pipeline of Indian Law Attorneys By Lisa M. Kpor
Lisa M. Kpor is a litigation attorney at Holland & Knight, LLP and the vice chair of the FBA’s Diversity and Inclusion Committee. She concentrates her practice on shareholder litigation, product liability actions, financial services litigation, and complex breach of contract cases.
The call to increase diversity, equity, and inclusion throughout the legal industry rings loud and strong. Dozens of organizations and law firms have answered the call by spearheading pipeline programs aimed at preparing the next generation of diverse lawyers for successful careers in the legal profession. One law firm has used this model to create a pipeline of attorneys devoted to practicing a specific, nuanced area of law that asserts and defends the rights of a diverse group of people—Native Americans. Through the creation of various clerkships, internships, and fellowships, the Native American Rights Fund (NARF) has demonstrated its commitment to nurturing the pipeline of Indian law attorneys. NARF is a nonprofit law firm that fights to protect Native American rights, resources, and lifeways through litigation, legal advocacy, and legal expertise. It is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations, and individuals nationwide. Since 1970, NARF has successfully asserted and defended some of the most important rights of Native Americans and tribes in hundreds of major cases in critical areas such as tribal sovereignty, treaty rights, natural resource protection, voting rights, tribal child welfare, and Indian education. NARF engages in high-impact litigation and projects that move us toward a world where Native Americans thrive as their rights, resources, and lifeways are intact and protected; promises made to them are upheld; and tribes exercise their sovereign governmental right to manage their own affairs. NARF is governed by a board of directors composed of 13 Native Americans from tribes throughout the country. Early in NARF’s existence, these directors identified five priority areas for the organization: • • • •
Preserve tribal existence. Protect tribal natural resources. Promote Native American human rights. Hold governments accountable to Native Americans. • Develop Indian law and educate the public about Indian rights, laws, and issues. 8 • THE FEDERAL LAWYER • March/April 2022
As part of its fifth priority, NARF has created programs to enhance the professional development of new attorneys in the field of Indian law. Indian law often takes place in federal, state, and tribal courts and venues. Indian law cases often are complex and involve novel legal issues. Federal Indian law, which focuses on the relationship between tribes and the U.S. federal government, can touch on issues of constitutional law, international law, water law, jurisdiction, and much more. Because of this complexity, even experienced attorneys and judges are capable of misunderstanding concepts like treaty rights and tribal sovereignty. Until there is a more widespread understanding of these issues, fully asserting and defending Native American rights in the American court system will continue to prove difficult. To help address this knowledge gap, NARF offers programs for law students and recent law graduates that enable participants to gain hands-on experience in the practice of Indian law. Each year, NARF conducts a nationwide search for law students to participate in clerkship and internship programs in its three offices—Boulder, Colo.; Washington, D.C.; and Anchorage, Alaska. The NARF summer clerkship program is a paid, 10-12 week clerkship for students who have completed their second year of law school. The NARF school-year internship program is a semester-long internship where law students may work either for financial compensation or for school credit. Clerks and interns complete projects focused on legal research and writing that reflect aspects of NARF’s broad range of practice. NARF also invites third-year law students, recent law school graduates, and those currently serving as judicial clerks to apply for postgraduate public interest fellowships at the organization. NARF has NARF-funded fellowships, and the firm sponsors applicants for the Skadden Fellowship, the Equal Justice Works Fellowship, the Justice Catalyst Fellowship, and other similar fellowship programs. These NARF programs are designed to expand the knowledge of new and aspiring attorneys to include continued on page 14
HYBRID
CAPITOL HILL DAY April 25-28, 2022
Calendar of events Plan to participate in this hybrid 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.
March 29, 2022: An Introduction to Capitol Hill Day and FBA Advocacy Priorities (Virtual, noon ET)
April 21, 2022: Capitol Hill Day Preparatory Briefing (Virtual, noon ET)
April 25-28, 2022: Meetings with Lawmakers and Staff (In person or virtual based on availability and preference. In person attendees of Leadership Summit may choose to arrive early for meetings before programming begins on April 28 at 1:30 pm ET)
Focus on Indian Law
Historic Appointment of Tribal Citizens in Biden Administration May Increase Tribal Participation in Federal Policymaking By Kirsten Matoy Carlson
Kirsten Matoy Carlson is a professor of law at Wayne State University. She is a leading authority on federal Indian law and legislation. Her interdisciplinary, empirical research focuses on legal advocacy and law reform, with particular attention on the various strategies used by Indian nations to reform federal Indian law and policy effectively. It has been funded by the National Science Foundation and the Levin Center at Wayne Law. Carlson serves on the State Bar of Michigan Standing Committee on American Indian Law and is a fellow of the American Bar Foundation. She earned a Ph.D. in political science and a J.D. from the University of Michigan and was a Fulbright Scholar in New Zealand. © 2022 Kirsten Carlson. All rights reserved.
American Indian and Alaska Native Nations have engaged with non-Indigenous governments since contact.1 As sovereign governments, they understand the importance of relationships with other governments, especially the United States. The impact of federal Indian laws and policies on tribal governments and American Indian and Alaska Native communities cannot be overstated. The federal government has historically constrained tribal sovereignty through policies of dispossession, assimilation, relocation, and termination.2 American Indian and Alaska Native Nations have used different strategies to influence the federal government over time. They have gone to war, engaged in treaty-making, petitioned Congress and the president, protested, occupied federal land, exercised treaty rights, litigated, or used various combinations of these strategies to protect their sovereignty and resist encroachments on their lands and rights.3 Tribal governments have a new source of access and influence in the Biden administration, as President Biden has appointed an unprecedented number of tribal citizens to positions within his administration.4 For the first time, tribal governments have representation across numerous departments and agencies in a presidential administration. Groups often gain influence and representation when members of their communities are elected or appointed to positions within the government, so the Biden administration may provide new advocacy opportunities for tribal governments.5 For the first time in U.S. history, tribal citizens will lead the U.S. government in its government-to-government relationship with American Indian and Alaska Native Nations. This leadership reflects the priorities established by the Biden administration to guide the federal-tribal relationship. These priorities include upholding the trust responsibility of the United States to tribal nations, strengthening the nation-to-nation relationship between the United States and Indian tribes, and working to empower
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tribal nations to govern their own communities and make their own decisions.6 President Biden’s appointment of tribal citizens to positions within the U.S. Departments of Interior, Health and Human Services, Agriculture, Energy, and Transportation; the U.S. Environmental Protection Agency; and the U.S. Army Corps of Engineers is part of his efforts to meet these priorities.7 Tribal citizens have never served in many of these posts in the past. Their appointments may give them influence over policies that tribal governments have sought to influence through diplomacy and lobbying8 but not as governmental insiders. Recent studies show that government officials frequently engage in advocacy and “comprise more than 40 percent of the advocacy universe.”9 As congressional staffers and advisors to the White House, tribal citizens have shaped transformative federal laws, including the Indian Self-Determination and Education Assistance Act10 and the Indian Gaming Regulatory Act.11 Tribal citizens may now similarly affect federal policy in new roles as executive branch officials. For the first time, tribal citizens hold several key leadership positions within the Department of the Interior.12 Deb Haaland, a member of the Laguna Pueblo, made history when she became the first American Indian to lead the agency as the Secretary of the Interior.13 She will command an agency staffed with many tribal citizens. Larry Roberts, a well-respected lawyer and citizen of the Oneida Nation, served as chief of staff for the department from April to November 2021. Tribal citizens and experts in federal Indian law will represent the Department of the Interior legally.14 Former University of Washington law professor Robert Anderson, of the Bois Forte Band of Chippewa, has been appointed as the solicitor for the Department of the Interior.15 Three of his six deputy solicitors are also tribal citizens: • A nne Marie Bledsoe Downs, Winnebago Tribe of Nebraska, deputy solicitor for Indian affairs
• Natalie Landreth, Chickasaw Nation, deputy solicitor for land • Daniel Cordalis, Navajo Nation, deputy solicitor for water16 A fourth, former University of Colorado law professor Sarah Krakoff, deputy solicitor for parks and wildlife, is an expert in federal Indian law. Biden’s Native American Interior appointments extend beyond the solicitor’s office. He has appointed the former president of the Bay Mills Indian Community, Bryan Newland, as the assistant secretary-Indian Affairs (ASIA).17 Rose Petoskey, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, will provide legal advice to Assistant Secretary Newland as his senior counselor. Tribal citizens will also join Assistant Secretary Newland’s team. Wizipan Little Elk, Rosebud Sioux Tribe, has been named the principal deputy assistant secretary, and Joaquin Gallegos, Jicarilla Apache Nation and Santa Clara Pueblo, is the special assistant to the ASIA.18 Danna Jackson, a Salish and Kootenai descendant, serves as counselor to the director of the Bureau of Land Management. Similar to other recent presidents, Biden has named tribal citizens to the Department of Health and Human Services. Tribal citizens have often been appointed to the Department of Health and Human Services because the U.S. government has undertaken obligations to provide American Indians with adequate health care in treaties and under its trust responsibility to promote the physical, mental, and spiritual health of tribal communities.19 Elizabeth Fowler, a citizen of the Comanche Nation, has accepted a key leadership post in the department as the acting director of the Indian Health Service.20 Her team includes several other tribal citizens.21 Biden has greatly expanded the role of tribal citizens in the executive branch by appointing them to posts in four other agencies (Agriculture, Energy, the Environmental Protection Agency, and Transportation) and the U.S. Army Corps of Engineers. Three tribal citizens will serve in the Department of Agriculture. Heather Dawn Thompson, a citizen of the Cheyenne River Sioux Tribe, serves as director of the Office of Tribal Relations;22 Janie Hipp, a Chickasaw Nation citizen, is the general counsel; and Zachery Ducheneaux, another citizen of the Cheyenne River Sioux Tribe, is the administrator of the Farm Service Agency. Biden also named JoAnn Chase, a citizen of the Mandan, Hidatsa, and Arikara Nation, as the director of the American Indian Environmental Office at the Environmental Protection Agency;23 Wahleah Johns, a citizen of the Navajo Nation as director of the Office of Indian Energy in the Department of Energy; Nez Perce citizen and activist Jaime Pinkham as an advisor to the U.S. Army Corps of Engineers;24 and Arlando Teller, a citizen of the Navajo Nation, as deputy assistant secretary for tribal affairs in the Department of Transportation. In addition to his appointments of tribal citizens to positions within several federal agencies, President Biden has filled the White House with tribal citizens. His White House staff includes Elizabeth “Libby” Rodke Washburn, a citizen of the Chickasaw Nation, senior advisor on Native American issues; Matt Dannenberg, a citizen of the Bad River Band of Lake Superior Chippewa, senior associate director of the Presidential Personnel Office; and PaaWee Rivera, Pueblo of Pojoaque, associate director of Intergovernmental Affairs and Public Engagement. The service of so many tribal citizens in key positions in the White House and across executive branch agencies may increase tribal representation and access to the federal government. Public
officials frequently solicit the views of, and bring stakeholders into, the policymaking process.25 Policy developments favorable to Indian nations have occurred when members of Congress and the White House have engaged tribal leaders and organizations in the past. For example, the Nixon White House relied heavily on the National Council on Indian Opportunity in crafting the self-determination policy,26 and Senator Abourezk relied heavily on American Indian participation as the chair of the American Indian Policy Review Commission, which led to many of the federal policy developments in Indian Affairs over the past four decades.27 Never before, however, have tribal citizens been in so many positions across executive branch agencies and departments, and thus, been in positions to facilitate participation by American Indian and Alaska Native Nations in policymaking in so many areas. Access often leads to influence.28 The appointment of an unprecedented number of tribal citizens in the Biden administration presents tribal governments with multiple opportunities to build relationships with government officials in six executive branch departments and the White House. Tribal governments succeed politically by building relationships with governmental actors over time.29 Through these relationships, tribal advocates may influence policymaking by gaining governmental support and developing commitments to long-term incremental plans for achieving and implementing policy change.30 The appointment of a record number of tribal citizens in the Biden administration also provides departments and agencies with an opportunity to reconsider their relationships with tribal nations and Native communities. The federal government has a trust responsibility, based on treaties, statutes, and the course of dealings between the United States and tribes, to support tribal self-government and economic prosperity and to protect tribal lands, assets, and resources. Every department and agency within the executive branch has a duty to fulfill the trust responsibility and consult with American Indian and Alaska Native Nations.31 In the past, departments and agencies have often undermined tribal sovereignty by failing to consult with tribes, trying to confiscate tribal lands, destroying tribal fisheries and other resources, or undermining tribal cultural practices.32 The presence of tribal citizens may encourage departments and agencies to rethink the past and work to build better relationships with tribal governments.
Endnotes Kirsten Matoy Carlson, Lobbying as a Strategy for Tribal Resilience, 2018 BYU L. Rev. 1159, 1168 (2019); Daniel M. Cobb, Continuing Encounters: Historical Perspectives, in Beyond Red Power: American Indian Politics and Activism since 1900 57, 58 (Daniel M. Cobb & Loretta Fowler eds., 2007); Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017). 2 David H. Getches et al., Federal Indian Law: Cases and Materials 167-246 (7th ed. 2017). 3 Kirsten Matoy Carlson, Lobbying Against the Odds, 56 Harv. J. Legis. 24, 29-30 (2019); Carlson, supra note 1, at 1168-1172. 4 Lynda V. Mapes, Biden Appointments, including Nez Perce fisheries champion, bolster Native American Presence in Federal Government, The Seattle Times (Mar. 6, 2021), https://www.seattletimes.com/ seattle-news/environment/biden-administration-appointments1
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including-nez-perce-fisheries-champion-bolster-native-americanvoices-in-federal-government/. 5 Richard Witmer & Frederick J. Boehmke, American Indian Political Incorporation in the post-Indian Gaming Regulatory Act Era, 44 Soc. Sci. J. 127-145 (2007); Rufus P. Browning, et al., Protest is Not Enough: A Theory of Political Incorporation, 19 PS: Political Science and Politics 576-581 (1986); Rufus P. Browning, et al., Protest is Not Enough (1994). 6 Biden-Harris Plan for Tribal Nations, https://joebiden.com/ tribalnations/ (last visited Feb. 18, 2022). 7 Jenna Kunze, More Native Americans Named to Key Posts in Biden Administration, Native News Online (Feb. 16, 2021), https:// nativenewsonline.net/currents/more-native-americans-named-tokey-posts-in-biden-administratio; Kevin Abourezk, Native Women Land Key Leadership and Policy Roles in Biden Administration, Indianz.com (Feb. 5, 2021), https://www.indianz.com/ News/2021/02/05/native-women-land-key-leadership-and-policyroles-in-biden-administration/. 8 Tribal governments report lobbying and testifying before congressional committees on a wide range of issues, including but not limited to youth, claims, culture, economic development, education, environmental regulations, gaming, energy development, health care, housing, federal recognition of Indian groups, lands, transportation, taxation, and natural resources. Kirsten Matoy Carlson, Rethinking Legislative Advocacy, 80 Md. L. Rev. 960, 986993 (2021); Carlson, Lobbying as a Strategy for Tribal Resilience, supra note 1, at 1177-78; Carlson, Lobbying Against the Odds, supra note 3, at 71. 9 Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why 13 (2009). 10 E. Fletcher McClellan, The Politics of American Indian SelfDetermination, 1958-1985: The Indian Self-Determination and Education Assistance Act 121-160, 220-262 (1988) (Ph.D. dissertation, University of Tennessee, Knoxville) (on file with author) (noting the role of White House advisors and congressional staffers, including Forest Gerard, in crafting the ISDEAA). 11 Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 Ariz. St. L.J. 99 (2010). 12 U.S. Dep't of the Interior, Who We Are, Interior Organizational Chart, https://www.doi.gov/whoweare/ orgchart (last visited Feb. 18, 2022). 13 Lydia Wang, Here’s Why Rep. Deb Haaland Is Such an Important Choice for Biden’s Cabinet, MSN (Feb. 17, 2020), https://www.msn. com/en-us/news/politics/here-s-why-rep-deb-haaland-is-such-animportant-choice-for-biden-s-cabinet/ar-BB1c1g8f. 14 Description of the duties of the Office of the Solicitor, U.S. Dep’t of the Interior, Office of the Solicitor, https:// www.doi.gov/solicitor (last visited Feb. 18, 2022). 15 Jenna Kunze, Joe Biden Adds Several Native Americans to Administration, Native News Online ( Jan. 26, 2021), https:// nativenewsonline.net/currents/joe-biden-adds-several-nativeamericans-to-administration. 16 U.S. Dep’t of the Interior, Office of the Solicitor, Organizational Structure, https://www.doi.gov/solicitor/ organization-structure (last visited Feb. 18, 2022). 17 Kirsten Matoy Carlson, Bay Mills President’s Indian Affairs Appointment Will Transform Relationships, Detroit Free Press (Sept. 18, 2021), https://www.freep.com/story/opinion/ 12 • THE FEDERAL LAWYER • March/April 2022
contributors/2021/09/18/bay-mills-indian-affairs/8368381002/. U.S. Dep’t of the Interior, Interior Department Welcomes New Biden-Harris Appointees (Oct. 13, 2021), https://www.doi.gov/pressreleases/interior-department-welcomesnew-biden-harris-appointees. 19 U.S. Dep’t of Health and Human Servs., Indian Health Service, Agency Overview, https://www.ihs.gov/aboutihs/ overview (last visited Feb. 18, 2022). 20 U.S. Dep’t of Health and Human Servs., Indian Health Service, Key Leaders, https://www.ihs.gov/aboutihs/keyleaders (last visited Feb. 18, 2022). 21 Id. 22 Press Release, U.S. Dep’t of Agric., U.S. Department of Agriculture Announces Heather Dawn Thompson as Director, Office of Tribal Relations ( Jan. 25, 2021), https://www.usda.gov/media/ press-releases/2021/01/25/us-department-agriculture-announcesheather-dawn-thompson-director. 23 U.S. Env’t Prot. Agency, EPA Announces Additional Biden-Harris Appointees (Feb. 2, 2021), https://www.epa.gov/ newsreleases/epa-announces-additional-biden-harris-appointees-0. 24 Mapes, supra note 4. 25 Matt Grossmann, The Not-So-Special Interests: Interest Groups, Public Representation, and American Governance 91 (2012); Alan R. Parker, Pathways to Indigenous Nation Sovereignty: A Chronicle of Federal Policy Developments 14-17 (2018) (describing how Senator Abourezk designed the American Indian Policy Review Commission to ask Indians what to do about the issues). 26 McClellan, supra note 10, at 123-130. 27 Parker, supra note 25, at 14-17, 21-25, 45. See also George Pierre Castile, Taking Charge: Native American SelfDetermination and Federal Indian Policy, 1975-1993, at 34-37 (2006). 28 Frank R. Baumgartner & Beth L. Leech, Basic Interests: The Importance of Groups in Politics and Political Science 137-38 (1998) (discussing the relationship between gaining attention for an issue and influence); Baumgartner, supra note 9, at 69-75 (explaining how one of the biggest obstacles faced by advocates is lack of access and attention to issues). 29 Emma R. Gross, Contemporary Federal Policy Toward American Indians 82-85 (1989); Laura E. Evans, Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism 6-7 (2011); Carlson, supra note 1, at 1168-1172. 30 Evans, supra note 29, at 6-7. 31 Exec. Order No. 13175, 3 C.F.R. § 13175 (2000) (Consultation and Coordination with Indian Tribal Governments); Presidential Memorandum of Nov. 5, 2009 (Tribal Consultation); Presidential Memorandum of Jan. 26, 2021 (Tribal Consultation and Strengthening Nation-to-Nation Relationships). 32 Mapes, supra note 4. 18
Commentary
A Call to Action on Rule of Law in the United States By William C. Hubbard
William C. Hubbard is dean of the University of South Carolina School of Law. He is co-founder and chair of the board of the World Justice Project, a multinational, multidisciplinary initiative to strengthen the rule of law worldwide. He served as president of the American Bar Association (ABA) in 2014-2015. He previously served a twoyear term as chair of the ABA’s House of Delegates. Hubbard is a past president of the American Bar Foundation and the American Bar Endowment. He is a fellow of the American College of Trial Lawyers and a member of the Council of the American Law Institute. He is an Honorary Master of the Bench of Middle Temple in London. © 2022 William C. Hubbard. All rights reserved.
We are living through a rule of law crisis, with authoritarianism on the rise in many countries around the world. Even those with strong rule of law traditions are under stress, and the events of Jan. 6, 2021, were a stark reminder that the United States is no exception. Indeed, data released by the World Justice Project (WJP) in late 2021 paint a particularly alarming picture of recent rule of law developments in the United States. Lawyers, bar associations, and legal educators have a critical role to play in reversing these trends. Drawing on surveys of 138,000 households and 4,200 practitioners about how governance and justice systems work in practice, the WJP Rule of Law Index scores and ranks countries on eight factors of the rule of law. The Index is widely recognized as the leading source of original rule of law data, relied on by a wide range of public and private sector institutions and scholars and the media. The 2021 Index, based on data collected between October 2020 and May 2021, shows rule of law declining in 74 percent of countries studied, with deterioration most prevalent in factors measuring constraints on government powers, civic space, timeliness of justice, and the absence of discrimination. The negative trends held in every region of the world and rich and poor countries alike. The negative slide in the United States is particularly striking and should be a wakeup call for American legal professionals. The United States’ overall Rule of Law Index score dropped 2.9 percent, more than any other high-income country or any other country in Western Europe and North America. Overall, the United States ranks 27th of 139 countries covered in the study. As we recently marked the 30th anniversary of the dissolution of the Soviet Union, it is notable that three former Soviet republics—Estonia, Latvia, and Lithuania—earned higher rule of law marks than the United States in the 2021 Index. U.S. rule of law performance declined in every factor measured except for regulatory enforcement. Deterioration was particularly marked in the factors measuring constraints on government powers, absence of corruption, open government, respect for fundamental rights, and criminal justice.
The pandemic crisis, including the short-term effects of social distancing, may explain some aspects of the deterioration (e.g., timeliness of judicial decision-making, restrictions on public assembly). It would be wrong to conclude, however, that rule of law in the United States will automatically bounce back as COVID recedes. Across many issues, the disappointing U.S. performance is part of a multiyear erosion of the rule of law. Between 2016 and 2021, for example, the United States’ Rule of Law Index score on constraints on government powers declined by 16 percent, with double-digit declines in each of the indicators that make up that score, including legislative checks on government powers (-16 percent), judicial checks on government powers (-17 percent), checks from independent auditing and review (-21 percent), nongovernmental checks (-16 percent), and whether government officials are sanctioned for misconduct (-14 percent). Over the same period, the U.S. score on respect for fundamental rights slid 11 percent, ranking 42nd of 139 countries on that factor in the 2021 study. On measures of discrimination in the justice system, the U.S. performance has gone from bad to worse, this year ranking 122nd of 139 countries on the indicator measuring discrimination in the civil justice system. Among the 44 indicators of the rule of law measured in the Index, the United States gets its lowest score on impartiality of the criminal justice system, falling 33 percent over the past five years and landing at a ranking of 111th in 2021. Reversing these trends and strengthening the rule of law in the United States will require committed action from all Americans over the long term, and legal professionals should take the lead. Studies of rule of law trends globally show that change comes slowly, often over generations. They also underscore the critical role played by individuals—including public- and private-sector legal professionals—who make choices to act with integrity, or not. Bar associations have a particularly important role in fostering a clear understanding of and commitment to the rule of law among their members and March/April 2022 • THE FEDERAL LAWYER • 13
the general public. Bar leaders should champion the rule of law and draw attention to resources such as the WJP Rule of Law Index and the concerns it highlights. Lawyers and legal associations should mount initiatives to address U.S. rule of law deficits through standard-setting, legislative reform, pro bono initiatives, and educational programming. An important priority should be educating the next generation of lawyers and the broader public about the meaning of the rule of law and the role that everyone has to play in upholding it.
As lawyers, we have assumed a special obligation to uphold the rule of law. Our profession’s Model Rules of Professional Conduct make it clear: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” Rekindling this spirit of service and commitment to the rule of law is an urgent cause of paramount importance.
Diversity & Inclusion continued from page 8 Indian law and the rights of this country’s first peoples. They are a pipeline for new attorneys and law students to obtain critical training, experience, networks, and education in Indian law. Graduates of NARF’s programs have ascended into leadership positions at tribes, federal and state policymaking bodies, public interest groups, and academic institutions.
Members of the FBA are encouraged to share information about NARF and its various clerkship, internship, and fellowship opportunities with law students and young lawyers in your personal and professional networks. To learn more information about NARF’s clerkship, internship, and fellowship opportunities, please visit https://www.narf.org/contact-us/join-team/clerks/.
ART LITIGATION & FASHION LAW CONFERENCE February 10-11, 2022
THANK YOU TO OUR SPONSORS Crowell & Moring LLP Bryan Cave Leighton Paisner LLP
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Join us in the in the great Midwestern city of Detroit as we debate and examine immigration law issues impacting those that work in the immigration practice area. Changes in law and policy will be at the forefront as we welcome discussions with experts and leaders in the field. Registration will include access to 40 educational sessions over the course of a two-day, multi-track program with up to 12 CLE credits available.
Judicial Profile
Hon. Allie Greenleaf Maldonado
Chief Judge, Little Traverse Bay Bands of Odawa Indians by N. Lauryn Boston
T
N. Lauryn Boston is a licensed attorney in Washington State and is privileged to work in Indian law. She earned her J.D. from the University of Colorado at Boulder, where she was active in the Native American Law Students Association and president of the American Constitution Society law student chapter. She holds a certificate in mediation from Harvard Law School. She can be reached at lauryn. boston@muckleshoot.nsn. us. © 2022 N. Lauryn Boston. All rights reserved.
he reservation lands of the Little Traverse Bay Bands of Odawa Indians (“LTBB Tribe”) lie along the picturesque northern shores of Michigan’s Lower Peninsula, where great white pine, red oak, and colorful sugar maple dominate the landscape of a region once called by the native Odawa “the land of the crooked tree.”1 It is here that the Hon. Allie Greenleaf Maldonado presides as chief judge of the LTBB tribal court, a position she’s held since 2012, after spending nine years as assistant general counsel for the LTBB Tribe. Judge Maldonado is both a citizen of the LTBB Tribe and a transplant to the great state of Michigan. She is simultaneously a Native American with roots deep in her ancestral homeland and a newcomer to the LTBB reservation and tribal community. The path that led her home to a place she’d never been before was motivated, in part, by a need to understand and reconcile a painful and buried family history that took place on the reservation between and 1889 and 1983.2 What she learned about her own family inspired her to pursue a career in law and ultimately a place on the bench in Indian Country. Set amid the burgeoning suburban enclave of Harbor Springs, Mich., and surrounded by art galleries, golf courses, and scenic shoreline walking trails, the reservation belonging to the LTBB Tribe occupies a small corner of the Eastern Woodlands territory that once belonged to the Odawa nation, a vast region of land stretching from Ontario, Canada, to the northeastern United States. Today, the LTBB Tribe consists of approximately 5,000 enrolled members who endeavor to maintain their cultural heritage while administering a modern tribal government, deftly combining traditional native practices with cutting-edge science and technology to address a range of issues, from forest management and climate change mitigation to food sovereignty and restorative justice.3 This type of innovation has helped the LTBB Tribe create promising opportunities for its citizens, even as it grapples with the long-term negative effects of historic trauma created by U.S. policies toward Native Americans that cost Indian families their land, their sovereignty, and even their children.
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The practice of removing Indian children from their parents and placing them for adoption or at Indian boarding schools was an official U.S. policy that ripped thousands of Native American children across the country from their families and communities. Ostensibly intended as a way to lift Indian children from poverty, it was in fact a form of cultural genocide that resulted in the destruction of entire family units, the effects of which still resonate today in the lives of thousands of tribal descendants and survivors of this practice.4 Located in Harbor Springs, Holy Childhood was one of the last Indian boarding schools to operate in Michigan. Opened as a mission school in 1889, it did not cease operation until 1983.5 Many Odawa tribal families were forever affected by its legacy. Despite these challenges, the LTBB Tribe continues to persevere. It could be said that through hard work and a focus on education and training, the LTBB Tribe has succeeded in creating an environment where its citizens and children can thrive, achieve their potential, and give back to their community— and in this sense, the LTBB Tribe and Allie Greenleaf Maldonado have much in common. After earning a bachelor’s degree in business from the City University of New York in 1995, Judge Maldonado graduated in the top third of her class from
the University of Michigan Law School. There, she was a contributing editor of the Michigan Law Review. She earned a spot in the highly competitive Honors Program at the U.S. Department of Justice and worked as a staff attorney in the Indian Resources Section of the Environment and Natural Resources Division before becoming assistant general counsel for the LTBB Tribe. She has received numerous awards and recognitions along the way. For her work on the drafting of the Michigan Indian Family Preservation Act, Judge Maldonado was voted “Woman of the Year” by her peers and the Michigan Lawyers Weekly in 2014.6 She successfully litigated the first case that, upon appeal, overturned a termination of parental rights due to the state of Michigan’s failure to follow the provisions of the Indian Child Welfare Act (ICWA). She wrote the amicus brief in In re Morris that successfully persuaded the Michigan Supreme Court to adopt a policy of “conditional reversal” in ICWA cases.7 Her advocacy for ICWA and determination to bring Michigan and other states into compliance have earned her the “Unsung Hero” award from the Michigan State Bar, as well as the “Michiganian of the Year” award from The Detroit News. Additionally, she is a 2016 Honoree of the “Women Inspiring Change” award from Harvard Law School as part of its annual International Women’s Day Portrait Exhibit, which showcases the astounding contributions of women to the areas of law and policy.8 In 2018, she was a contributing author for the book Tough Cases (The New Press, NY). In it, judges from across the country recount some of their most high-profile and challenging cases, providing a rare first-person account of how they arrived at the decisions they made from the bench. Judge Maldonado’s contribution is called Walking With My Ancestors: Tribal Justice for Salmon Running, which relates the story of a young tribal woman who lost parental rights to two young children due to substance abuse yet continued down a path of addiction, drug dealing, and criminal behavior seemingly without remorse. Balancing the need to protect the community as well as the rights and future of a tribal citizen, Maldonado found herself in the position of having to weigh the tribal court prosecutor’s harsh recommendations against her own instincts. Drawing upon the teachings of a respected tribal elder who started the LTBB Tribe’s first Healing-to-Wellness Program, Judge Maldonado arrived at a difficult decision: she would override the advice of her valued team members and give Salmon Running a second chance by allowing her to participate in the program instead of going to jail. Known as Waabshii Miigwan (White Feather) Healing Court, the innovative program offers a holistic approach to restorative justice for substance abuse offenders, providing them with a culturally centered pathway to wellness utilizing Odawa values and teachings. The decision proved pivotal, both for Salmon Running and for Judge Maldonado. For the young woman, it represented the first time anyone had demonstrated such faith in her ability to finally break free from the
cycle of drug abuse and addiction, and to work her way toward becoming a healthy and contributing member of her tribal community. For the judge, it represented a leap of trust in the power of traditional native teachings and alternatives to the familiar but punitive system of criminal justice. Such a decision would be difficult and risky even for a tribal judge raised within their own tribe and steeped in its traditions. Allie Greenleaf Maldonado did not have that advantage. Born to a native LTBB Odawa mother who was removed from her tribe as a child and a Jewish father who designed oil refineries all across the country, Judge Maldonado spent her entire childhood as an outsider learning how to be “the new kid on the block.” She lived in 19 different locations before she graduated law school, but the reservation in Harbor Springs was not one of them. “I grew up knowing I was Native American,” she says, “but my mother couldn’t teach me much more than that because she had had her own culture erased.” Judge Maldonado’s mother, Donna Lou Chapman, was removed from the LTBB Tribe after her own mother died. Although only a child, she was sent to live with a Mennonite minister and his wife to serve, essentially, as their live-in domestic servant. “They purposefully cut her off from her community,” says Judge Maldonado. “They cut her hair and put Clorox on her skin to try and lighten it. They told her she wasn’t wanted, that nobody [from the reservation] wanted her. And they told her to lie and say she was Armenian instead of Native American.” Likewise, Judge Maldonado’s grandmother, Ella Lou Bush, and all of her uncles had similar experiences after being sent to the Indian boarding school in Harbor Springs. “My grandmother kept taking my uncle Dale and running away. She would walk from Harbor Springs all the way back to the family in Goodheart. The third time she did that, the Indian agent took all four of her children away to the Mount Pleasant boarding school, where they stayed for nine years without ever being allowed to return home.” Like her mother, Judge Maldonado’s uncles were sent in the summers to work on local farms, providing free labor under the auspices of “job training.” The goal, in the words of Richard Henry Pratt, founder of Carlisle Indian Industrial School, the first government-run Indian boarding school, was to “kill the Indian, save the man.”9 The brutality of this practice began to wane in the 1930s yet did not completely cease in Michigan until the 1980s, leaving generations of native children forever scarred by what they endured. Many, like Judge Maldonado’s mother, never returned to their tribe or their families. Those who did return often faced the emotional trauma of trying to integrate back into a culture from which they had been alienated. “My mother spent her whole life looking for a purpose and a place. It left her feeling really lost,” Judge Maldonado recollects. “I remember my mother bouncing from religion to religion, from community to community, trying to be a part of all sorts of different things.” March/April 2022 • THE FEDERAL LAWYER • 17
The remnants of this lingering sense of isolation affected Judge Maldonado’s own self-identity, particularly growing up in various states without ever being able to put down roots in one place for very long. “I remember being mistaken for Chinese or Japanese by other kids in Louisiana or California,” she recalls. “In Texas, people thought I was Mexican, in New York it was Puerto Rican. I was literally mistaken for whatever the predominant ethnicity was, in whatever area we happened to live.” Facing discrimination was something Judge Maldonado learned to overcome at an early age. She was attending school in Louisiana when the federal courts issued their desegregation order following the decision in Brown v. Board of Education, prompting a crisis of intense public resistance. When 6-year-old Ruby Bridges enrolled in a New Orleans elementary school in 1960, it was followed by a resurgence of racial animosity against non-white students of all ethnicities. “It wasn’t easy growing up with a Native American mother and a Jewish father,” she laughs. “Not in that era.” The injustice of discrimination together with her knowledge of how racist assimilation policies had harmed her own family precipitated her desire to pursue a career devoted to social justice and the law. “I went to law school because I wanted to do whatever I could to make sure that what happened to my mother and to my grandmother, and to my great-grandmother who lost her children, didn’t happen to anyone else. There is not one person in my community [at Little Traverse Bay] who wasn’t affected.” Judge Maldonado was in law school the first time she set foot on the reservation at Little Traverse Bay, the place where her mother was born but to which she had never returned. I went to a pow wow and was stunned—because I had never seen faces that looked like my own, other than my mother’s. I never blended in anywhere. I never lived anywhere that I felt I fit in. And that makes you feel very alone. One psychologist has termed it “split feather syndrome.” You never feel like you fit in with the dominant majority, but you don’t quite fit in with the community in which you should have been raised. The experience of discovering her ancestry and tribe was transformative. “It just makes you think, maybe I belong here.” She joined the tribe as assistant general counsel shortly after law school and now, as chief judge, remains devoted to advocating for tribal rights and issues. Judge Maldonado’s dedication to this cause led her to excel both academically and professionally. Today, she is recognized as one of the nation’s leading experts on ICWA. She wrote the first draft of what would become the Michigan Indian Family Preservation Act (MIFPA), working closely with a group comprising 87 stakeholders including judges, court clerks, social workers, guardians ad litem, parents’ attorneys, and prosecuting attorneys. “We all got together and worked hard to draft it. I wrote the first draft but then everyone edited it and elevated it and worked together to get it passed in the state 18 • THE FEDERAL LAWYER • March/April 2022
legislature.” The same group wrote a judicial bench book on ICWA and revised some of Michigan’s court rules and forms relating to ICWA compliance. Thanks to their efforts, MIFPA exceeds the standards set forth by ICWA, thus insulating Michigan somewhat from the current court challenges to ICWA’s constitutionality. Judge Maldonado’s willingness to share her story has inspired others—from law students to judges and fellow attorneys—to take an interest in Indian child welfare and the protection of tribal sovereignty.10 She is a frequent speaker and trainer on the subject and has served as chair and co-chair of the FBA’s Indian Law Conference. Her tireless devotion to advocating for Indian children and tribal justice is something that undoubtedly makes her tribe, and her family, very proud.
Endnotes: NatureAdmin, Enhanced Migration of Trees – Climate Adaptation on Tribal Forest Lands, Nature Change, (Dec. 13, 2018), https://naturechange.org/2018/12/13/ enhanced-migration-of-trees-climate-adaptation-ontribal-forest-lands/. 2 Eric Hemenway, Indian children forced to assimilate at white boarding schools, Nat'l Park Serv. (Aug. 18, 2019), https://www.nps.gov/articles/boarding-schools. htm. 3 Little Traverse Bay Bands of Odawa Indians, https:// ltbbodawa-nsn.gov/ (last visited Feb. 16, 2022). 4 Nick Estes, The U.S. stole generations of Indigenous children to open the West, High Country News (Oct. 14, 2019), https://www.hcn.org/issues/51.17/ indigenous-affairs-the-us-stole-generations-ofindigenous-children-to-open-the-west. 5 Hemenway, supra note 2. 6 “Tribal Judge is Named MiLW’s ‘Woman of the Year,” Mich. Laws. Wkly. (Sept. 11, 2014), https:// milawyersweekly.com/news/2014/09/11/tribal-judgeis-named-milws-woman-of-the-year/. 7 In re Morris, 815 N.W.2d 62 (Mich. 2012). 8 Harvard Law International Women’s Day Portrait Exhibit 2016 Honorees, Harvard L. Int’l, https://orgs.law. harvard.edu/womeninspiringchange/2016-honorees/ (last visited Mar. 18, 2022). 9 Carlisle Indian School Project, Honoring the Children, Giving Voice to the Legacy, https:// carlisleindianschoolproject.com/ (last visited Feb. 16, 2022). 10 Judge Tim Connors, Our Children Are Sacred: Why the Indian Child Welfare Act Matters, The Judges’ J., Spring 2011, at 33. 1
Judicial Profile
Hon. Frank Pommersheim
Associate Justice, Rosebud Sioux Supreme Court by Hon. Charles Abourezk
T
Charles Abourezk is the current chief justice of the Rosebud Sioux Tribe Supreme Court, retired chief judge of the Oglala Sioux Tribal Court, and retired justice of the Oglala Sioux Nation Supreme Court. He is a documentary filmmaker and former trial lawyer. © 2022 Charles Abourezk. All rights reserved.
he 1960s and 1970s were a different time in America, tending toward inclusiveness and empathy. President Lyndon Johnson and the Congress initiated the War on Poverty, which included programs that perpetuated the idea that young Americans should reach out to the world and to our own forgotten and often poverty-stricken citizens in our inner cities, rural America, and Indian reservations around the country through the Volunteers in Service to America (VISTA), the Peace Corps, and other programs. Many young Americans heeded the call to join this effort, just as the Vietnam war was escalating, which also caused a mobilization of Americans opposed to the war and seeking to play a more constructive role in the United States and the world. A young Frank Pommersheim was the embodiment of the political and empathetic spirit of these times. After law school, Justice Pommersheim made a commitment to move to Alaska, where he became a VISTA attorney in a small community that was largely populated by American Indians and Alaska Natives. Although hearing from a fundamentalist minister upon his arrival that the Indigenous people there were “fundamentally evil,” Justice Pommersheim plunged into the culture and society during his time in Alaska. He worked closely with the Indigenous community, and developed many friendships, finding an “incredible warmth and generosity.” Justice Pommersheim was quite drawn to what he learned about the culture there, and to the social structure of the Native community. When he learned of an opening with the tribally operated college on the Rosebud Sioux Indian Reservation, he and his wife, Anne Dunham, moved there and lived on the reservation in South Dakota for 10 years. He had never owned a car in his life, but he and Anne bought a Chevy Nova and drove with their belongings from New York City to South Dakota. He first worked for Sinte Gleska University, one of the first tribally operated colleges in the nation, as a legal advisor and professor. After seven years with Sinte Gleska, he went to work for the legal services office on the reservation, later becoming director of the statewide legal services program. He wrote two books
while there, including Broken Ground and Flowing Waters and Reservation Street Law, co-written with the previous legal services director, Anita Remerowski. This was the beginning of a long and prominent career as an author and expert in the field of federal Indian law. This unexpected career grew from his profound experiences in Alaska and Rosebud. “There was just this openness and generosity I found in both Alaska and Rosebud,” Justice Pommersheim said. “It was so different from both the stereotypes of Indians I had heard, and very different from the places where I grew up.” “As I learned in Rosebud, everything is based upon relationships, which is a beautiful way to organize society. The Lakota concept of making a relative [the hunka adoption ceremony] is a beautiful recognition of the extension of relationship building,” said Justice Pommersheim. “This often doesn’t exist in western tradition.” Expanding on the generosity he found on the reservation, Justice Pommersheim also reflected on the idea of the giving away of gifts at important moments in one’s life, rather than receiving gifts. “This concept is a much more inclusive, non-selfish and generous way to be. It had a powerful influence on me,” Justice Pommersheim said. March/April 2022 • THE FEDERAL LAWYER • 19
“Perhaps the biggest lesson I learned was reciprocity,” Justice Pommersheim said. “Relationships are not a one-way deal, there has to be reciprocity.” He recalled when Anne and he lived on the reservation, she was the librarian at the St. Francis Indian School. She told him that teachers would often complain that the students would not warm up to them or open themselves up to the teachers. Later, he mentioned this in discussion and was told by a friend, “students don’t get close because the teachers come for a while and then soon leave, not staying long or reciprocating with the students warming up to them. That struck me. One doesn’t just extend oneself and then leave.” Justice Pommersheim suggests this cultural and social concept of reciprocity was an influence upon his later career choices. After leaving the Rosebud Reservation, Justice Pommersheim was accepted into the Kennedy School of Government at Harvard, where he obtained a master’s in public administration. Once again, faced with the choice of moving on to something else or returning to South Dakota, which is home to nine Indian tribes, Justice Pommersheim learned of an available faculty position at the University of South Dakota School of Law. He interviewed and immediately began teaching Indian law and Indian jurisdiction, among other courses. Although finding it difficult at first to find his comfort level as a law professor, he remained at that law school until last year, when he fully retired. During his teaching career at the law school, Justice Pommersheim continued his relationships with Indian tribes, mostly in South Dakota, serving as an appellate justice on several tribal supreme courts, both in South Dakota and in places like the Mississippi Band of Choctaw Indians and the Saginaw-Chippewa Reservation in Michigan. Several of the cases decided with other justices ended up in the U.S. Supreme Court. Justice Pommersheim presently continues his role as an associate justice on the Rosebud Sioux Tribe’s Supreme Court and as chief justice for the Cheyenne River Sioux Tribal Court of Appeals. Early in his law school teaching, Justice Pommersheim began to hear from his students at the law school that, despite living in South Dakota all their lives, most had never had any experiences going to Indian reservations. This was concerning to him. He developed a program at the law school that allowed him to undertake an annual field trip, where he traveled with his Indian law students to the Rosebud Sioux Tribal Court to meet people there; watch court proceedings; and discuss the experiences of tribal judges, prosecutors, defense lawyers, and others working in the system. Typically, the tribal court provided a meal and spent a lot of time with the students. “It’s a wonderful way to allow people to see and experience a whole different world from the stereotypes that often develop about Indian reservations,” Justice Pommersheim said. 20 • THE FEDERAL LAWYER • March/April 2022
Justice Pommersheim continued to publish while the University of South Dakota School of Law, including his book Braid of Feathers: American Indian Law and Contemporary Tribal Life and more than 40 law review articles mostly on the subject of federal Indian law. His newest book is Tribal Justice: 25 Years as a Tribal Appellate Justice, which was published in 2015. Justice Pommersheim is also a poet. He has published poetry and continues to self-publish poems he sends to friends. Since retirement, he has taken up welding and bird watching with his wife. “For me, I have to be doing something meaningful, something I love and enjoy,” Justice Pommersheim said. “It turned out the Rosebud Reservation was a good choice for us.” What lessons has he learned from his accidental life and career choices? “There are many Lakota values, but the three I was most taken by were courage, generosity, and humility,” Justice Pommersheim said. “They were very powerful for me. It is just a good way to be and live one’s life.” Justice Pommersheim has returned repeatedly to these themes of reciprocity and solidarity throughout his writing and his jurisprudence. In his book Braid of Feathers, Justice Pommersheim reflected on solidarity in a life that has clearly been changed by his experiences in Indian Country and his resulting choices. The ultimate goal is therefore not to undo difference but rather to create solidarity—a quality whose chief source is the imaginative ability “to see strange people as fellow sufferers.” Such efforts flow not from mere academic inquiry but from work of the heart and mind. Such reflection is an accumulation gathered from Justice Pommersheim’s years as a tribal justice, his literary and spiritual thought, his marriage and family life, and his relationships within and outside of Indian Country. Perhaps most importantly, Justice Pommersheim’s richly fascinating life began to take form as a result of a policy period in American history when we urged our own citizens to interact with the world because there was a belief in our society that such experience would be a benefit to all who came into contact with each other, and that some sort of innovation and social invention might follow from such an investment of our youth giving and receiving from the communities they served. Looking back, Justice Pommersheim reflected on his beginnings, his deep involvement with Indigenous people and their thought and philosophy, and where he is today in his twilight years. “It’s not like I chose a life, but a certain life chose me, and I am grateful for that.”
Judicial Profile
Hon. Scott O. Wright
U.S. District Judge for the Western District of Missouri by Larry M. Schumaker and Roger C. Geary
B
Larry M. Schumaker and Roger C. Geary are proud graduates of the University of Missouri–Columbia School of Law and prouder still of having clerked for Judge Wright in the mid-1980s. While they went on to have long and accomplished careers in private practice in Kansas City, each likes to say that, after the privilege of working for Judge Wright as their first job out of law school, it was all downhill from there.
iography, like other forms of history, can be written only in hindsight. Everyone has a life story that is told through the passage of time. Each of our stories is shaped by the circumstances of our upbringing, by the opportunities and challenges we encounter, and, most of all, by how we respond to those opportunities and challenges. Some individuals are timid, some are measured, and some— like Judge Scott Olin Wright—are fearless. In 1942, before he had any inkling of becoming a lawyer, much less a federal judge, 19-year-old Scott Wright interrupted his college studies to serve his country and enrolled in flight school. After earning his wings in 1943, he had the option of becoming a Naval aviator or joining the Marines. Thinking it would be a quicker way to get overseas and join the fight, he chose the latter and became a Marine dive bomber pilot. Let that sink in for a moment: at age 20, Judge Wright chose to serve his country as a Marine dive bomber pilot, which is a pretty good hint at how he handled his job as a fun-loving and fearless federal judge for nearly four decades.
Origins Judge Wright was born on Jan. 15, 1923, at his parents’ home outside Haigler, Neb. He was the second oldest of six children. Both of his parents grew up in rural Missouri, and both graduated from the University of Missouri. They married in 1918 and three years later bought a 1,500-acre ranch in the southwest corner of Nebraska. The family home didn’t have electricity or indoor plumbing, but Judge Wright fondly remembered exploring the great outdoors and commuting on horseback to a one-room schoolhouse run by Miss Boyle. Daily chores taught him the importance of hard work, but there was plenty of free time to play with his siblings and teach them how to swim in the Arickaree River. Most of all, he enjoyed hanging around the ranch hands and listening to them swap stories. As Judge Wright explained years later, his trademark colorful vocabulary traces all the way back to when he learned a lot of words from the ranch hands that were not part of Miss Boyle’s curriculum.
In 1931, the Great Depression hit the Great Plains in full force. Banks closed their doors, and prices for crops and beef plummeted. In 1933, Judge Wright’s parents lost the ranch to foreclosure. His father was devastated after working so hard for many years and having nothing to show for it. Judge Wright was 10 years old when his parents moved the family back to their home state of Missouri. Like many who were facing similar or worse challenges, Judge Wright’s family revered FDR for rescuing the country from catastrophe. His mother came from a family of Democrats, but his father had been a reliable Republican until he lost the ranch. There was no way to know it at the time, but this twist of fate played a pivotal role in Judge Wright’s appointment to the bench four decades later: as he liked to quip, if not for the Great Depression, he might have stayed on the ranch and ended up a rich Republican from Nebraska. The Wright family was more fortunate than most because their father had a degree in agriculture, which qualified him for a private-sector job teaching other farmers how to use state-of-the-art practices so that they could stay on their land. Besides helping his family avoid the devastation that befell so many, this reinforced to Judge Wright and his siblings the importance of education and looking out for others. March/April 2022 • THE FEDERAL LAWYER • 21
After graduating from Chillicothe High School in 1940, Judge Wright attended Central Methodist College in Fayette, Mo., where he was classmates with two other future jurists: Jack Higgins, who served on the Missouri Supreme Court, and Bill Hungate, who served as a federal district judge in St. Louis. In December 1941, destiny and opportunity came knocking on Judge Wright’s door when the United States entered World War II, and he did not blink before joining the fight against fascism.
Military Service After completing his sophomore year at Central College in May 1942, Judge Wright signed up for pilot training in the Navy V-5 program. He had never been in an airplane, let alone flown one, but his fearlessness and ability to focus made him a natural. Judge Wright excelled at every stage of flight training, both in the classroom and the cockpit. His education also included an expanding worldview as he met other young men from different backgrounds and every corner of the country. The glaring void in the melting pot of military service was the absence of African Americans; the military was segregated throughout World War II and would remain that way until 1948, when President Truman put a stop to it by issuing Executive Order 9981. Judge Wright was troubled by the prejudiced attitudes he encountered—his parents had raised him to regard “people as people”—and he was amazed at how gracious and friendly some of his brothers-in-arms could be, until the topic turned to Black people. In September 1943, Judge Wright earned his wings and was given the option of staying with the Navy or joining the Marines. He chose the latter because he thought he would get overseas faster, but he spent the next 18 months stateside, where his duties included ferrying brand-new fighter planes from the East Coast to the West Coast. In March 1945, he shipped out from California to Hawai’i on a brand-new aircraft carrier, the Bon Homme Richard. His flight group spent a couple weeks at Pearl Harbor before moving west to the Marshall Islands, from which they patrolled for enemy submarines. They didn’t see a lot of action because the fight already had moved closer to Japan, but they were stationed on Saipan preparing for a full-scale invasion when they heard the news about the bombing of Hiroshima and Nagasaki. After Japan surrendered and World War II ended, Judge Wright spent the next nine months at a Marine air base near Tsingtao, China. His job was flying with a photographer who took pictures of troop movements under the command of Mao Tse-Tung. While his time in China didn’t involve any military encounters, it did include a tragic event that stuck with him the rest of his life. In December 1945, Judge Wright’s squadron was assigned to fly from Tsingtao to make a show of force over Peking (as it was known back then). On the way back to base, the squadron split into three divisions of six planes each and ran into a winter storm front that had formed 22 • THE FEDERAL LAWYER • March/April 2022
over a mountain range. Each of the division leaders had to decide whether to fly through the storm or over it. Judge Wright knew it would be even colder at a higher altitude, but he wasn’t keen on instrument flying and made the call to lead his division over the front. A second division made the same call, but the third division made the ill-fated decision to fly through the front. The result was a disaster. Judge Wright and his men could hear it unfold on the radio as the pilots in the third division became disoriented and all six planes crashed in the mountains. Two of the pilots bailed out, and both were injured and captured by rebel forces. The other four pilots and all six gunners were killed. The funeral for the lost men was the most somber day of Judge Wright’s young life and reinforced in him the belief that nothing in life can be taken for granted.
Top-Flight Trial Lawyer When Judge Wright returned to civilian life in June 1946, he had been away for four years and looked forward to getting back home. He also had a pretty good idea what he wanted to do next: he didn’t know any lawyers before he joined the military, but an intelligence officer who had been a trial lawyer in Texas made a big impression on him. So, after spending the summer getting reacquainted with family and friends, he moved to Columbia, Mo., to finish his undergraduate studies and enroll in law school at the University of Missouri. He took his studies seriously but spent most of his time working for a practicing lawyer, Howard Major, because he knew he wanted to be a trial lawyer, not a paper lawyer. He graduated from law school in May 1950 and was thrilled that President Truman was the commencement speaker. After taking the bar exam, Judge Wright and a couple friends set off to Alaska for one last adventure before returning to Columbia and beginning his professional life. He was fearless in the courtroom and tried as many cases in a year as most contemporary litigators try in their entire careers. He learned early on that finding and developing witnesses was more important than spending most of his time in a law library. He handled cases in every county in Central Missouri and tried hundreds of them to verdict. At the end of his career in private practice, he held the highest verdicts in Boone County, Cooper County, Adair County, and Callaway County. In the 1950s, Judge Wright joined the Young Democrats and served as president of the local chapter, which led to him being hired as city attorney. He then ran for and was elected Boone County prosecutor for two terms. His campaign strategy was simple: he basically outworked the other candidates, knocking on as many doors as possible and getting up early so he could visit local farmers at the crack of dawn, which made a very favorable impression on them. As a prosecutor, Judge Wright was tough on serious crime but had a sense of compassion for defendants who could be rehabilitated. His role as Boone County prosecu-
tor also proved pivotal in leading him to the federal bench. The circuit attorney for the city of St. Louis at the time was a young Harvard Law School graduate named Tom Eagleton, who went on to serve Missouri as attorney general, lieutenant governor, and three terms as a U.S. senator. Judge Wright and Sen. Eagleton became great friends from the moment they first met at a statewide gathering of prosecuting attorneys in 1957. Twenty-two years later, Sen. Eagleton called his friend with a question that opened the next chapter of Judge Wright’s professional life and changed the history of the U.S. District Court for the Western District of Missouri.
An Uncommon Judge On Sen. Eagleton’s recommendation, President Carter appointed Judge Wright to the bench in 1979, along with Judge Howard F. Sachs. Judge Wright first met Judge Sachs at their confirmation hearing before the Senate Judiciary Committee. Over the following four decades, they became fast friends despite having distinctly different demeanors. Judge Sachs was tall and soft-spoken, sported a flowing mane of white hair, and was recognized as having a brilliant legal mind. Judge Wright was a wiry 5’7” athlete with close-cropped hair, a boisterous personality, and colorful vocabulary, and he quickly earned a reputation as a man of action. Despite these superficial dissimilarities, both were incredibly intelligent, took their role and responsibility seriously, and shared a passion for doing justice. Many lawyers underestimated Judge Wright’s intellect, but he had an uncanny ability to cut through the fog of sophistry (though he would have called it something else) and, like a chess player, he was able to anticipate how a case or trial would play out. He also was decisive and fearlessly independent in his rulings; as he often quipped, he did not worry about being reversed by the Eighth Circuit because “if all my rulings were affirmed, what’s the use of having a court of appeals?” Judge Wright had the same attitude about his six decisions that were reviewed by the U.S. Supreme Court. Four were upheld—including the case that set the standard for punitive damages in § 1983 cases1 and a ruling that invalidated the “board of freeholders” provision in the state constitution2—and in the other two,3 Judge Wright said he would have made the same decision if he had to do it over again. As he saw it, his
job was to make the right decision and do the right thing, even if others might come to a different conclusion. Judge Wright understood that his job was to serve the public, not the wealthy and powerful, and he admittedly had a soft spot for the underdog. His rulings did not necessarily favor the little guy, but he made sure to give everyone a fair shot in his courtroom, even if they lacked the resources of the government or big business. This commitment to equal justice for all manifested itself throughout his time on the bench, including hundreds of Social Security cases in which the government tried to deny or revoke benefits to people with disabilities, a precedent-setting case protecting farmers from foreclosure by the Farmers Home Administration,4 and a class action challenging the state of Missouri’s attempt to discontinue subsidies to families who adopted special needs children.5 He also presided over an antitrust trial that resulted in a $35 million verdict in favor of a local cable television company against an industry giant.6 Judge Wright also was a fierce protector of civil rights, including rulings upholding a woman’s right to reproductive freedom, a consent decree requiring sweeping changes in the conditions of confinement at Missouri State Penitentiary, a gender-discrimination class action against the Missouri Department of Transportation,7 a controversial decision staying what would have been the first execution in Missouri since the Supreme Court reinstituted the death penalty in 1976,8 a single-plaintiff sexual harassment case that resulted in a $50-million verdict,9 and hundreds of lower profile cases that were just as important to the parties. He also presided over one of the first—and to this day, few—criminal prosecutions under 18 U.S.C. § 245, which prohibits race-based assaults by private individuals.10 Fueled by his fearlessness and focus on doing justice, Judge Wright was one of the most innovative judges in the history of the Western District of Missouri or, for that matter, the entire country. After the 1981 Hyatt Skywalk disaster in which more than 100 people died and hundreds more were injured, he certified one of the first mass-tort class actions because he thought it would be more fair and efficient for the victims and their families instead of litigating individual cases over the next decade.11 The Eighth Circuit reversed Judge Wright’s certification of the Hyatt litigation as a mandatory class
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.
March/April 2022 • THE FEDERAL LAWYER • 23
action but affirmed the certification of an opt-in class.12 Without skipping a beat, Judge Wright set a trial date, which led to a classwide settlement on the issue of liability and established a fund for the payment of punitive damages, all within 18 months after that terrible tragedy. Judge Wright also defied convention when he appointed a special master to help him manage one of the first Superfund environmental cleanup cases under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. In 1982, the government filed suit against the defunct proprietor of a toxic waste dump near the Missouri River, along with four companies that had generated some of the hazardous materials at the site. The Big Four, as they were called, first challenged the government’s assertion of strict liability, and when their motions to dismiss were denied,13 they filed third-party complaints against more than 200 companies that had contributed to the waste site. If anyone thought this would slow the litigation down, it had the opposite effect. Realizing that his docket did not afford time to focus on just one case, Judge Wright appointed a local law professor with expertise in land use and environmental law as a special master. With the help of the special master, Judge Wright kept the case on a fast track and the parties were able to reach a global settlement less than two years later.14 Throughout his time on the bench, Judge Wright was willing to try and adopt many other procedural innovations that made the process more efficient and served the interests of justice. He was a champion of the Accelerated Docket in the Western District of Missouri, in which the entire court set aside three weeks every April and October for civil jury trials. He adopted a similar procedure for the Central Division based in Jefferson City and cleared the backlog of cases on that docket within a few years by setting multiple cases during three-week stretches. From his years of private practice, he knew that setting cases for trial was the best way to “motivate” the parties to settle. His experience as a trial lawyer also allowed him to move seamlessly from one case to another and once resulted in a unique situation in which he had three juries working at the same time: two were in deliberations and one was in the box hearing evidence in a third case. Judge Wright also pioneered the use of telephone conferences to resolve discovery disputes, which saved time and money for the parties and allowed him to spend more time in the courtroom instead of wasting time wading through lengthy paper filings. He was the first in the district to use electronic recording instead of a stenographer, and he experimented with various forms of alternative dispute resolution (ADR), including summary jury trials, nonbinding arbitration, and mediation. After several years of trying various forms of ADR, he was a leading advocate for a districtwide Early Assessment Program, which required the parties to engage in good faith settlement negotiation at the outset of a case and became a model for the country. 24 • THE FEDERAL LAWYER • March/April 2022
Judge Wright also was an early adopter of in-trial procedures that improved the quality of justice by considering the role and perspective of jurors. When he became a judge, jurors were forbidden to take notes or ask questions until they went into deliberations. Judge Wright thought the ban on notetaking was odd, given that he and the lawyers were constantly making notes during a trial to help them remember what they had heard, and his practice of giving each juror a notebook at the outset of trial is now commonplace. He also saw how lawyers could be so deeply involved in a case that they would overlook important details or background information that jurors needed to know. He also questioned why judges, but not jurors, were allowed to ask questions, so he became one of the first in the country to let them submit questions (subject to his approval over whether they were appropriate) during trial. Judge Wright also was instrumental in overhauling the jury instructions used in federal court. When he joined the bench, he was astounded by the long-winded and often incomprehensible instructions given to the jury, so he and Judge Ross Roberts spearheaded a project to focus and simplify them. The result was the Eighth Circuit Model Instructions, which are the most comprehensive and useful in the federal judicial system. All of these innovations—and his entire approach to being a federal district judge—were grounded in Judge Wright’s love of the law, his belief that there always is room for improvement in the administration of justice, and his faith in the jury system. He often said, and genuinely believed, that the collective wisdom of a group of jurors was more valuable than the view of any single judge. He also recognized that the justice system is not the province of the privileged but an integral part of government of the people, for the people, and by the people.
Legacy Like so many members of his generation, Judge Wright cherished our system of government and his responsibility as a citizen of this great republic. He also understood that, while his role as a federal judge carried even greater responsibility, it did not make him better or smarter than the people he served; he simply had a different job in the legal system and wearing a robe had little effect on his fun-loving personality. Every lawyer who ever appeared before Judge Wright has a story to tell about him, and many have playfully imitated his distinctively loud and high-pitched voice or his boisterous cackle. His self-effacing and plain-spoken manner also led many to overlook his razor-sharp mind and uncanny ability to cut to the core of complex legal issues, which they did at their peril. His casual manner also made him a favorite of court personnel, and his law clerks treasured the time they spent working for him. Through it all, Judge Wright made his job appear deceptively simple by focusing on doing the right thing, never being afraid to try something new, and trusting the jury system. He was a living embodiment of the maxim
“actions speak louder than words,” and while he never said it directly, his example left this lasting legacy for everyone who knew him: to take our responsibilities seriously but never take ourselves too seriously, and to make sure we have a little fun along the way.
Endnotes Smith v. Wade, 461 U.S. 30 (1983). Quinn v. Missouri, 681 F. Supp. 1422 (W.D. Mo.), rev’d, 855 F.2d 856 (8th Cir. 1988); see also Quinn v. Millsap, 491 U.S. 95, 105 (1989). 3 Reprod. Health Servs. v. Webster, 662 F. Supp. 407 (W.D. Mo. 1987), aff ’d, 851 F.2d 1071 (8th Cir. 1988), rev’d in part, 492 U.S. 490 (1989); United States v. Johnson, 682 F. Supp. 1033, 1035-39 (W.D. Mo. 1988) (en banc) (dissenting opinion), aff ’d sub nom. Mistretta v. United States, 488 U.S. 361 (1989) (affirming majority decision). 4 Allison v. Block, 556 F. Supp. 400, 404 (W.D. Mo. 1982), aff ’d, 723 F.2d 631, 638 (8th Cir. 1983). 5 E.C. v. Sherman, No. 05-726-CV-W-SOW, 2006 WL 1 2
1307641 (W.D. Mo. May 9, 2006). 6 Cent. Telecomms., Inc. v. TCI Cablevision, Inc., 610 F. Supp. 891 (W.D. Mo. 1985), aff ’d., 800 F.2d 711 (8th Cir. 1986), cert. denied, 480 U.S. 910 (1987). 7 Catlett v. Mo. Highway & Transp. Comm’n, 589 F. Supp. 929 (W.D. Mo. 1983), rev’d in part, 828 F.2d 1260 (8th Cir. 1987), cert. denied, 485 U.S. 1021 (1988). 8 Smith v. Armontrout, 626 F. Supp. 936 (W.D. Mo. 1986). 9 Kimzey v. Wal-Mart Stores, Inc., 907 F. Supp. 1309 (W.D. Mo. 1995), rev’d in part, 107 F.3d 568 (8th Cir. 1997). 10 See United States v. Bledsoe, 728 F.2d 1094 (8th Cir. 1984). 11 In re Fed. Skywalk Cases, 93 F.R.D. 415 (W.D. Mo. 1982). 12 In re Fed. Skywalk Cases, 680 F.2d 1175 (8th Cir. 1982). 13 United States v. Conservation Chem., Co., 589 F. Supp. 59 (W.D. Mo. 1984). 14 United States v. Conservation Chem. Co., 628 F. Supp. 391 (W.D. Mo. 1986).
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26 • THE FEDERAL LAWYER • March/April 2022
Exposed: How HighProfile Litigation Impacts Indian Children’s Privacy CASSONDRA M. CHURCH
I
reminisced about the memories that were frozen within each photo on a lazy Sunday afternoon. Each photograph was neatly kept in a large leatherbound photo album, beginning with a blurry photo of an ultrasound and ending with a photo of my high school graduation. As I flipped through the weathered pages, I remember thinking how impressive it was to see the first 18 years of my life condensed into one large book. Based on the dust that filled its pages, it seemed as though this photo album was merely a shelf ornament that was rarely opened. Thinking about this book in the context of the current digital age sparked a consideration that few people contemplate: children’s privacy.
While some individuals still have physical photographs tucked away in albums, most young people today have only digital memories stored in the cloud or shared on various social media outlets. Imagine a world where nearly every moment of your childhood was available to the public with one click of a button, beginning on the day you are born and extending into perpetuity. Even worse, imagine one of your most traumatic childhood memories being preserved on the internet for all to see. Unfortunately, this is the reality that some Indian children face when they are involved in high-profile litigation.
Children’s Right to Privacy Children’s privacy is a dynamic and contentious topic. The controversy arises because often children’s rights are balanced against parents’ rights and are rarely assessed independently. The U.S. Constitution does not include any explicit right to privacy;1 however, the U.S. Supreme Court has addressed privacy in various contexts.2 Parents’ rights are often entangled in discussions surrounding children’s privacy. The Supreme Court has repeatedly acknowledged that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”3 Historically, children were viewed as the property of their parents. It was not until the 20th century that there was a steady shift towards viewing parents as trustees of their children’s interests.4 In the midst of this shift, the Supreme Court began to recognize children’s right to privacy in limited circumstances.5 This was movement in the right direction with regard to children’s rights; however, challenges still remain when attempting to find the correct balance between children’s right to privacy and parents’ right to “parentage and free speech.”6 Since parents possess such heightened authority over children, derived from fundamental rights and the First Amendment guarantee of free speech,7 difficulties arise when children attempt to deviate from this structure.8 Establishing privacy protections for children has been challenging and has become more troublesome with the advancements in technology and the accessibility of online media outlets. The creation of social media sites such as Facebook, Instagram, and Twitter sparked a significant change in the way individuals view privacy.9 Social media platforms allow the sharing of information inMarch/April 2022 • THE FEDERAL LAWYER • 27
stantaneously with the click of a button. While social networking sites may be a convenient platform to share information, the use of these platforms has created new concerns as well, especially with regard to children’s privacy. Unlike adults, children have no control over the information that is shared about them by their parents or guardians.10 Unfortunately, little is known about the impact or consequences that the internet and social media have on children and their privacy. Research has shown that some children are appearing on social media even before they are born, in the form of sonogram pictures posted by their parents.11 One study has found that in the United States, “92% of two-year-olds already have an online presence.”12 Another study has concluded that “nearly every child under eight years old in America (98%) has access to a mobile device at home.”13 “It’s shocking to think that a 30-year-old has an online footprint stretching back 10-15 years at most, while the vast majority of children today will have an online presence by the time they are two-years-old—a presence that will continue to build throughout their whole lives.”14 In addition to the alarming statistics, the new digital age has also raised concerns regarding the exploitation of children. Phoebe Maltz Bovy has shared her apprehensions “that parents are potentially exploiting their children through the public disclosure of personal information in online forums.”15 Unfortunately, “[p]rivacy laws provide little guidance, prohibitions, or remedial measures for children needing privacy protection from their parents’ online disclosures.”16 While research on this subject is fairly new, there is evidence to support the idea that “children who grow up with a sense of privacy … have a greater sense of overall well-being and report greater life satisfaction than children who enter adulthood having experienced less autonomy in childhood.”17 Turning to children’s own use of social media, in an effort to protect children’s online interactions, Congress enacted the Children’s Online Privacy Protection Act (COPPA) in 1998.18 COPPA was the first formal protection of children’s privacy online and is designed to “prohibit unfair or deceptive acts or practices in connection with personal information from and about children on the internet.”19 Specifically, “COPPA restricts how and what owners and operators of websites, social media plug-ins, mobile applications, advertising networks and other ‘Online Service Providers’ can collect from children under age 13 without parental permission.”20 In 1998, the Federal Trade Commission released a study that found that “89% of children’s websites collected personal information from children, many without disclosure, and only 10% offered parental control.”21 While the purposes of COPPA may have been well-intentioned, there have been several criticisms regarding its enforcement, compliance, and operation.22 While there have been some protections established for children regarding online privacy, there are few protections for children involved in high-profile litigation, especially if the parent or guardian is the one disseminating the information.
High-Profile Litigation and Its Impact on Indian Children Indian children’s privacy in the context of high-profile litigation is a cutting-edge topic with limited research and caselaw pertaining to it. One of the closest parallels related to this concept is the relationship between children involved in high-profile litigation and children involved in high-conflict family litigation.23 While high-profile and high-conflict litigation represent two separate concepts, some parallels can be drawn between the two. High-profile refers to 28 • THE FEDERAL LAWYER • March/April 2022
“attracting a lot of attention in newspapers, on television, etc.,”24 and high-conflict refers to a contentious divorce.25 Both types of litigation can be traumatizing for the children involved and can even result in harmful psychological effects.26 To introduce issues relating to high-profile litigation, the following section will focus only on litigation involving Indian children and the Indian Child Welfare Act.
Brief Overview of the Indian Child Welfare Act Congress enacted the Indian Child Welfare Act (ICWA) in 1978 to address the alarmingly high percentage of Indian families broken up by the removal of their children by nontribal agencies.27 Prior to the enactment of ICWA, forced child displacement and genocidal assimilationist policies were a tragic reality for several Indigenous communities.28 Surveys conducted in 1969 and 1974 indicated that “approximately 25-35 percent of all Indian children … [were] separated from their families and placed in foster homes, adoptive homes, or institutions.”29 Not only were Indian children removed from their homes at a greater rate than their non-native counterparts, but they were also adopted at a higher percentage too.30 In some states, such as South Dakota, “40 percent of all adoptions made by the State’s Department of Public Welfare” from 1967 to 1968 were Indian children, even though they only made up seven “percent of the juvenile population.”31 Essentially, ICWA was created to provide “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes.”32
Adoptive Couple v. Baby Girl Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), began as a petition for adoption and ended up becoming one of the most well-known ICWA cases decided by the U.S. Supreme Court. In Adoptive Couple, the birth mother placed Baby Girl up for adoption claiming that the father relinquished his rights via text message.33 The birth mother continued with the adoption process, and four months after Baby Girl was born, the adoptive couple provided the biological father, Mr. Brown, with notice of the pending adoption.34 Mr. Brown acknowledged service and signed the papers indicating that he was “not contesting the adoption.”35 However, Mr. Brown later indicated that he was unsure what he was signing and did not realize that he was relinquishing his rights to the adoptive couple.36 The trial took place in 2011, when Baby Girl was 2 years old.37 The South Carolina Family Court found that the adoptive couple did not carry the heightened burden under section 1912(f ) of ICWA and awarded custody to Mr. Brown.38 Subsequently, the South Carolina Supreme Court affirmed the decision of the lower court, awarding custody to Mr. Brown.39 Then, in 2013, the U.S. Supreme Court reversed the decision of the South Carolina Supreme Court and remanded the case.40 Following the Supreme Court decision, “there was a jurisdictional nightmare in both state and tribal courts.”41 Additionally, the “Adoptive Couple got an arrest warrant for biological father for interfering with their custody of Baby Girl” and were eventually ordered to attend mediation.42 The parties mediated for about a week, and then when it was clear that they were not going to arrive at an agreement, Mr. Brown made the ultimate sacrifice and surrendered custody for the sake of his daughter’s stability and privacy.43 In an interview after Mr. Brown announced that he was surrendering custody, “Brown said he could no longer stomach the prospect of her caught at the center of a contentious legal fight and in the glare of national media.”44
The outcome of Adoptive Couple was disheartening to say the least, but the frustration extended beyond the facts of the case. What was specifically disturbing was the portrayal of the case in the media and the use of Baby Girl as a press strategy. The case “began in the South Carolina courts with support from a private adoption agency and its attorney, supplemented by a lone public relations spokesperson, [and] morphed into a case that attracted high-profile groups and well-known counsel.”45 Eventually, this case turned into a “media frenzy.”46 Various versions of the case even appeared on the Dr. Phil show.47 Baby Girl’s privacy was, and still is, of grave concern. “The name of the child involved in Baby Girl is easily available online and in citations to articles about the case, as are other personal details.”48 The depth of information available on the internet about this young girl is alarming. There are pictures, videos, news stories,49 articles, television shows,50 social media posts, digital birthday cards, and even letters addressed to Baby Girl written by strangers,51 all of which are easily accessible on the internet, even years after the case has been decided. The direct impact that the national media attention had on Baby Girl and her privacy is unknown; however, one could surmise that the effects are great and long-lasting. To think about Baby Girl one day searching for her name on the internet and seeing all the horrific things that were written and said about her situation and the people that she loves is truly heartbreaking. Not only will she have to relive the past, but she may even come across news stories or the many publicly posted letters that wait for her online. These are just a few examples of the unintended repercussions that Baby Girl may face in the future because her privacy was disregarded.
In re Alexandria P. Unfortunately, the media circus did not end with Adoptive Couple and continued in other cases, such as In re Alexandria P.52 In Alexandria P., a 17-month-old Indian child was removed from her mother’s custody and placed in a non-native foster home.53 Alexandria54 was placed in the care of the P.s as a “respite care” placement while reunification efforts were attempted between Alexandria and her father.55 Alexandria’s extended family from Utah, the R.s, also expressed interest in adopting Alexandria.56 “The tribe agreed to [the] initial foster care placement with the P.s because it was [physically] close to father at a time when he was working on reunification.”57 About two years later, transition planning ensued in “anticipation of a possible court order directing placement with the R.s.”58 However, the P.s sought a permanent placement, and, after a good cause hearing, “Judge Pellman issued a written order concluding that the P.s had not demonstrated good cause to depart from the ICWA’s placement preferences”; the P.s then appealed.59 While the appeal was pending, numerous disputes arose between the P.s and the R.s.60 For example, “the P.s insisted that they must be present for Alexandria’s visits with the R.s, despite the Los Angeles County Department of Children and Family Service (“Department”) clarifying that unmonitored visits were permitted.”61 Additionally, the P.s attempted to prevent the R.s from taking Alexandria to Disneyland by filing an intervention.62 The intervention was unsuccessful, and the R.s were able to bring Alexandria to Disneyland for four hours.63 However, because the social worker got stuck in traffic and returned Alexandria to the P.s home later than expected, the P.s did not allow the R.s to have another visit the following day.64 Furthermore, when Alexandria’s therapist “sought to transition Alexandria’s play therapy with the P. family to individual sessions
outside of the home,” the P.s opposed such changes and stated that “sessions outside the home would cause her anxiety.”65 Additionally, the P.s attempted to prevent Alexandria from overnight visits with the R.s, despite Alexandria’s reported comfort and excitement about the visits.66 There were also instances where the P.s were insensitive to Alexandria’s Native American culture. Ultimately, the court found that there was “no good cause to depart from the ICWA’s adoptive placement preferences” and ordered Alexandria to be placed with the R.s, her extended family in Utah.67 Comparable to Adoptive Couple, this case attracted national media, with most of the media attention initiated by the foster parents and their family. One of the most unsettling displays was the video posted to the “Save our Lexi” website, as well as several other news and media outlets, depicting Alexandria (“Lexi”) being carried to the car by her foster father, Mr. P., in front of numerous news cameras, neighbors, and onlookers.68 As the foster father carried Lexi to the car, the foster mother screamed and cried with her distraught children by her side.69 “Rather than do the transfer in private, with coordination between the foster parents, family, and the state agency, the foster parents violated the child’s right to privacy by creating and distributing a video designed to drum up racial animus, even rage, against Indian families and Indian tribes.”70 Similar to Adoptive Couple, a plethora of information about Alexandria is easily accessible on the internet, such as a website titled “Save our Lexi,”71 news stories, social media posts, articles, and videos.
Looking Toward the Future In the digital age, there is often a fine line between advocacy and oversharing. The internet and social networking sites can serve as a beneficial tool for advocacy and raising awareness about issues; however, the internet and social media platforms can also be harmful and can create unintended consequences. Parents or guardians who overshare information about their children on the internet subject their children to risks and expose their children to potentially dangerous situations. For example, in some instances, parents have found pictures that they have posted of their children on strangers’ social media sites, a phenomenon that has been referred to as “digital kidnapping.”72 Phoebe Bovy discussed the concept of “parental overshare” in an article where she stated that “[p]arental overshar[ing] … does not refer to parents discussing their kids with friends and family” and further clarified that private or anonymous communication are not included in this definition.73 Additionally, Bovy indicated that “[t]wo criteria must be present: First, the children need to be identifiable. That does not necessarily mean full names. The author’s full name is plenty, even if the children have a different (i.e., their father’s) last name. Next, there needs to be ambition to reach a mass audience.”74 Bovy’s definition of “parental overshare” can aid parents and caretakers in finding a balance between oversharing and advocacy. To further explore Bovy’s analysis for determining parental oversharing, her methods can be applied to the situations that occurred in both Adoptive Couple and Alexandria P. In applying Bovy’s method, the first step is to determine whether the child is identifiable. In both Adoptive Couple and Alexandria P., the child was identifiable in more than one way. First, both of their names were used in articles, pictures, and videos. Second, there was personal information posted about both children, such as where they lived, how old they were, and the names of their parents and family members. Third, there March/April 2022 • THE FEDERAL LAWYER • 29
were several pictures and videos taken of both children. Some of the pictures and videos were even taken at their homes. Therefore, the first criteria would be met in identifying parental oversharing. The second step in applying Bovy’s method is to answer whether there was ambition to reach a mass audience. Again, in both cases, there was clearly an ambition to reach a mass audience. In both cases the children had their own websites dedicated to sharing information about them and their stories. These websites were open to the public, and the links to the websites were often shared on other social media and news outlets. Thus, the second criteria in Bovy’s method would be met for both cases, further indicating that there was parental oversharing in both the Adoptive Couple and Alexandria P. cases. Furthermore, applying Bovy’s analysis for determining parental oversharing to Adoptive Couple and Alexandria P. is a helpful way to discuss and think about what advocacy could look like in these cases without the presence of parental oversharing. Perhaps in a high-profile case such as Adoptive Couple or Alexandria P., information about the children could be shared anonymously without mentioning the children’s names. Additionally, instead of posting pictures and videos of the children involved in the case, pictures and videos of consenting adults who are working on the case could be posted instead. Since there is no predetermined line drawn between oversharing and advocacy, the focus should be on finding balance between the two and becoming more conscientious of what information is being posted about children and how that information may affect their privacy now and in the future. After reviewing various articles focusing on children’s privacy, I have identified three recurring suggestions that can be adopted to help protect children’s privacy. First, individuals can raise awareness about the issue. Helping others to be mindful about what they are posting about their children on the internet may spark a shift in how society views children’s privacy. Additionally, it may bring attention to the issue and spark law and policy changes at the macro level. Second, individuals can talk with their children about the internet and social networking sites to make them aware of the benefits and risks. Furthermore, when a child is old enough to communicate, it may become good practice to ask the child for their permission before posting something on the internet. Involving your child in the process will help them develop their own autonomy as well as create an opportunity to talk with your child about social media. Third, it may be beneficial for individuals to become familiar with the privacy restrictions on certain social networking sites. Individuals may be unaware that certain social networking sites have both a public and a private platform. Becoming familiar with the different privacy settings may aid in preventing certain information from ending up in the wrong hands. Lastly, it is important to mention that this is not an extensive list of recommendations and that these suggestions may work differently in various situations.
Conclusion While the advancements in technology have been beneficial in many regards, they have also created new issues and risks pertaining to Indian children’s privacy, especially in high-profile litigation. A challenge that often arises in this context is finding a balance between parents’ rights to parent their children as they see fit while still offering their children room for autonomy and personhood. While many parents attempt to find a happy medium between their right to parent and their child’s privacy, other parents disregard or do not consider their 30 • THE FEDERAL LAWYER • March/April 2022
children’s privacy, which can lead to negative outcomes, as illustrated in Adoptive Couple and Alexandria P. In both cases, it is apparent that the children involved were pushed into the national media spotlight, and their privacy was afforded little consideration. While the line between advocacy and oversharing may be thin, it is crucial that parents, caregivers, and the public attempt to find an appropriate balance to ensure the safety and privacy of the children involved. There is no one-size-fits-all approach when it comes to protecting children’s privacy in the age of technology; however, there are several strategies and precautions that can be adopted or considered. While this article covered an array of topics and addressed some important issues, there is still a vast amount of research needed on issues surrounding Indian children and their privacy, especially given continuing advancements in technology. Cassondra M. Church is the legal counselor at the Indigenous Law and Policy Center at Michigan State University College of Law, where she provides academic support to first-year Native American law students, works in the Indian Law Clinic, and conducts scholarly research. Church graduated from Michigan State University College of Law with a Certificate in Indigenous Law. She received her bachelor’s degree in interdisciplinary studies and a master’s degree in social work from Michigan State University. Church is a graduate of the Pre-Law Summer Institute (PLSI) class of 2018 and served as a PLSI teaching assistant in summer 2019. She is an enrolled member of the Pokagon Band of Potawatomi Indians. © 2022 Cassondra M. Church. All rights reserved.
Endnotes Roe v. Wade, 410 U.S. 113, 152 (1973). Barbara J. Nauck, Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution and the Family, 42 Clev. St. L. Rev. 675, 687-89, 699702 (1994). 3 Troxel v. Granville, 530 U.S. 57, 65 (2000). 4 Shannon Sorensen, Protecting Children’s Right to Privacy in the Digital Age: Parents as Trustees of Children’s Rights, 36 Child.'s Legal Rts. J. 156, 157 (2016). 5 See generally Planned Parenthood v. Danforth, 428 U.S. 52 (1976). 6 Id. 7 See U.S. Const. amend. I. 8 Keltie Haley, Sharenting and the (Potential) Right to Be Forgotten, 95 Ind. L.J. 1005, 1014-15 (2020). 9 Saleem Alhabash & Mengyan Ma, A Tale of Four Platforms: Motivations and Uses of Facebook, Twitter, Instagram, and Snapchat Among College Students?, Soc. Media & Soc’y, 1, 2 (2017). 10 Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 Emory L. J. 839, 846 (2017) (citing Digital Birth: Welcome to the Online World, Bus. Wire (Oct. 6, 2010, 1:02 PM), http://www.businesswire.com/news/home/20101006006722/en/ Digital-Birth-Online-World). 11 Id. at 849. 12 Id. 13 Ariel Fox Johnson, 13 Going on 30: An Exploration of Expanding COPPA’s Privacy Protections to Everyone, 44 Seton Hall Legis. J. 419, 432 (2020) (citing Victoria Rideout & Michael Robb, The Common Sense Census: Media Use by Kids Age Zero to Eight 3, 1 2
Common Sense Media (2017)). 14 Steinberg, supra note 10, at 850. 15 Id. (citing Phoebe Maltz Bovy, The Ethical Implications of Parents Writing About Their Kids, Atl. ( Jan. 15, 2013), http://www. theatlantic.com/sexes/archive/2013/01/the-ethical-implications-ofparents-writing-about-their-kids/267170/). 16 Id. at 862. 17 Id. at 867. 18 15 U.S.C. §§ 6501-6508. 19 Eldar Haber, The Internet of Children: Protecting Children’s Privacy in A Hyper-Connected World, 2020 U. Ill. L. Rev. 1209, 1224 (2020). 20 Julia Jacobson & Heather Egan Sussman, Protecting Children Online: New Compliance Obligations for Digital Marketing to Children, 57 Bos. Bar J. 17, 17 (Summer 2013). 21 Johnson, supra note 13, at 422 (citing Martha K. Landesberg et al., Federal Trade Commission, Privacy Online: A Report to Congress iii (1998)). 22 See generally Children’s Section on Children’s Privacy on the Internet, 6 U.C. Davis J. Juv. L. & Pol’y 79 (2002). 23 See generally Susan W. Savard, Through the Eyes of a Child: Impact and Measure to Protect Children in High-Conflict Family Law Litigation, 84 Fla. Bar J. 57 (Apr. 2010). 24 High-profile, Merriam Webster, https://www.merriam-webster. com/dictionary/high-profile (last visited Dec. 1, 2021). 25 Savard, supra note 23, at 58. 26 Id. at 57. 27 25 U.S.C. § 1901(4). 28 Leanne Gale & Kelly McClure, Commandeering Confrontation: A Novel Threat to The Indian Child Welfare Act and Tribal Sovereignty, 39 Yale L. & Pol’y Rev. 292, 299 (2020). 29 H.R. Rep. No. 95-1386 (1978). 30 Id. 31 Id. 32 25 U.S.C. § 1902. 33 Adoptive Couple v. Baby Girl, 570 U.S. 637, 643 (2013). 34 Id. at 644. 35 Id. at 644-45. 36 Id. 37 Id. 38 Id. 39 Id. 40 Id. at 656. 41 Kathryn E. Fort, American Indian Children and the Law 1, 250 (2019). 42 Id. 43 Id. 44 Glenn Smith, Dusten Brown Drops Legal Efforts to Win Back Custody of 4-year-old Veronica, Post & Courier (Oct. 9, 2013), https://www.postandcourier.com/archives/dusten-browndrops-legal-efforts-to-win-back-custody-of-4-year-old-veronica/ article_57c91678-0789-56da-b4cc-5e5d6630877d.html. 45 Caroline M. Turner, Implementing and Defending the Indian Child Welfare Act through Revised State Requirements, 49 Colum. J.L. & Soc. Probs. 501, 515 (2016). 46 Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67 Fla. L. Rev. 295, 296-97 (2015). 47 Id. at 297 (citing Dr. Phil: Adoption Controversy: Battle over Baby
Veronica (television broadcast June 6, 2013), http://www.drphil. com/shows/show/I 895/). 48 Fort, supra note 41, at 251. 49 See, e.g., “Baby Veronica” Adoptive Parents Matt, Melanie Capobianco Seek Deal Over Custody, CBS News (Aug. 14, 2013), https://www.cbsnews.com/news/baby-veronica-adoptiveparents-matt-melanie-capobianco-seek-deal-over-custody/; Max Ehrenfreund, Baby Veronica Returned to Adoptive Parents, Wash. Post (Sept. 24, 2013), https://www.washingtonpost.com/national/ baby-veronica-returned-to-adoptive-parents/2013/09/24/379eadca2525-11e3-b3e9-d97fb087acd6_story.html. 50 Dr. Phil: Adoption Controversy: Battle over Baby Veronica (television broadcast June 6, 2013), http://www.drphil.com/shows/ show/I 895/. 51 See tchaiki, To Veronica Capobianco on her 18th birthday, Illicit Memories (Sept. 27, 2013), https://illicitmemory.wordpress. com/2013/09/27/to-veronica-capobianco-on-her-18th-birthday/. 52 204 Cal. Rptr. 3d 617 (Cal. Ct. App. 2016). 53 Id. at 622. 54 I will refer to Alexandria by her name since it is a part of the caption of the case and is therefore already public information. This case is distinguishable from Adoptive Couple where Baby Girl’s name was not referenced in court documents. While you can find Baby Girl’s name on the internet, it is important to consider children’s privacy in the context of case captions and court documents when given the opportunity. 55 In re Alexandria P., 204 Cal. Rptr. 3d at 624. 56 Id. 57 Id. 58 Id. at 626. 59 Id. 60 Id. 61 Id. 62 Id. at 626-27. 63 Id. at 627. 64 Id. 65 Id. 66 Id. at 628. 67 Id. at 643. 68 See KTLA 5 News, A 6-year-old Girl at the Center of a Custody Dispute Was Removed From Her Foster Family in an Emotional and Chaotic Scene in Santa Clarita Monday, Facebook (Mar. 21, 2016), https://www.facebook.com/watch/?v=10154124058144614. 69 Id. 70 Matthew L.M. Fletcher, Limit Government Intrusion in Indian Families’ Lives, Cato Unbound: A Journal of Debate (Aug. 5, 2016), https://www.cato-unbound.org/2016/08/05/matthew-l-mfletcher/limit-government-intrusion-indian-families-lives#disqus_ thread. 71 See Save Our Lexi, http://saveourlexi.com/ (last visited Feb. 15, 2022). 72 Steinberg, supra note 10, at 854 (citing Jennifer O’Neill, The Disturbing Facebook Trend of Stolen Kid Photos, Yahoo! News (Mar. 3, 2015), https://www.yahoo.com/parenting/mom-my-son-wasdigitally-kidnapped-what-112545291567.html). 73 Id. 74 Id. March/April 2022 • THE FEDERAL LAWYER • 31
32 • THE FEDERAL LAWYER • March/April 2022
The Problem of Double-Taxation in Indian Country DR. GAVIN CLARKSON
D
espite the moral rectitude of the tribal position that federal treaty obligations require financial support for services such as tribal healthcare, economic dependency on the federal government is not a viable long-term strategy for tribal nations. If tribal sovereignty is to mean something, at a minimum, it should mean the ability of a tribe to tax and regulate all economic activity on its territory, just like states do. Tribal governments, just like state governments, need to develop a tax base in order to provide vital services to their citizens. Unfortunately, aided by fundamentally flawed Supreme Court jurisprudence,1 states repeatedly overran the boundaries of tribal sovereignty and created a pernicious problem of double-taxation for on-reservation economic activity. The impact is particularly acute for tribes that are trying to grow their economies by attracting outside capital and non-Indian businesses to the reservation.
The founding fathers were fully aware of the grave threat to tribal economies posed by the states and thus gave Congress the exclusive “power to ... regulate Commerce ... with the Indian Tribes.”2 Beginning in 1790, Congress passed a series of Indian Trader Statutes (ITS) asserting federal primacy in Indian affairs to completely preempt state involvement in tribal economies.3 The Supreme Court was similarly aware of this threat. Citing both the Constitution and the relevant acts of Congress, such as the Indian Trader Act,4 Chief Justice Marshall famously rebuked Georgia’s attempt to require non-Indians to obtain a license to interact with Indians as “repugnant to the Constitution, laws, and treaties of the United States.”5 Marshall went further, declaring that the Cherokee Nation was “a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.”6 The ITS were originally passed in the vacuum of accurate and clarifying federal regulations, and the current ITS regulations7 date from the late 1950s and early 1960s. In the interim, the states and the courts have filled the void with a patchwork of case law that could not have done a better job of destroying tribal economies than if it had been by purposeful design. Under no definition of a federal trust
responsibility to Indian Country is the goal to ensure and enforce poverty in perpetuity. While a Reagan-era Presidential Commission recommended that Congress pass legislation for “exclusive tribal government taxation authority and [tribal] responsibility for the provision of public services to all people,” 8 Congress failed to act. Instead, congressionally delegated authority allows the Department of the Interior to achieve these same goals via regulation.9 Federal common law decisions establish most rules governing on-reservation taxation, yet federal policy acknowledges that Indian tribes are sovereign governments with plenary power over their citizens and lands. Inherent in tribal authority is the power to tax, which is a necessary instrument of self-governance and territorial management, and for improving the dire economic conditions faced by many tribal communities. After successfully preempting all state tax, regulatory, and jurisdictional authority over tribal leasing (25 C.F.R. Part 162) and rightsof-way on trust lands (25 C.F.R. Part 169), an Obama appointee in the Department of Interior, Larry Roberts, issued an Advance Notice of Proposed Rulemaking10 (ANPRM) regarding updates to the IndiMarch/April 2022 • THE FEDERAL LAWYER • 33
an Trader regulations (ITR).11 That initiative prompted substantial tribal commentary that I incorporated in an article for the 2017 Sovereignty Symposium, “American Indians versus the Billion-Dollar Tax Weevil: The Pernicious Dual-Taxation of Tribal Economies after Cotton Petroleum.”12 Immediately thereafter, I took leave from my academic position and accepted a presidential appointment to serve as the Deputy Assistant Secretary for Policy and Economic Development – Indian Affairs (DASPED). My primary goal as DASPED was advancing revisions to the Indian Trader regulations to eliminate double-taxation in Indian Country. After obtaining empirical data from tribal leaders about what projects were not happening because of double-taxation, we developed a working paper13 that laid out the economic case for the proposed regulatory change as well as the accompanying empirical data provided by Indian Country.14 The economic model we developed was subsequently published in a peer-reviewed economics journal.15 Our research empirically demonstrated that the dual tragedy of double-taxation is not only that tribal economies are harmed, but so too are state economies. According to our model, for every $1,000 of exclusive tribal taxation authority, the surrounding states will receive upwards of $10,000 in benefit from increased economic activity in off-reservation communities as well as reductions in welfare transfer payments as on-reservation poverty diminishes. This article argues that careful revision of the ITR would provide a mechanism to reverse the judicially imposed disaster of double-taxation.
Background of the Problem16 While the Indian Trader laws have their origins in the Indian Trade and Intercourse Act of 1790, Congress legislatively reinforced the notion of excluding state authority in 1834, noting that: [E]ach tribe, by adopting those laws as their own, and establishing competent tribunals, may relieve us from the burden of executing them, and it is hoped that this will be done … Such regulations must be made either by the United States or by the tribes, [ but not the States]. They will be more satisfactory if made by them, than if made by us, and it must be our desire to do nothing for them which they can do for themselves.17 Similarly, in 1876 Congress delegated that “sole power and authority … to make such rules and regulations as he may deem just and proper … for the protection of said Indians,” to the “Commissioner of Indian Affairs.”18 The Supreme Court similarly attempted to maintain federal exclusivity in Indian Affairs. In Cherokee Nation v. Georgia,19 Chief Justice Marshall wrote that “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.”20 A half-century later, the Supreme Court would opine that the “relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character.”21 The concept that so confounds both Congress and the courts is that, on the one hand, Indian tribes are separate sovereigns, “domestic dependent nations,”22 ensconced as “third sovereign[s]”23 in the federal framework, while on the other hand, Congress has plenary authority over Indian tribes. While the fabrication of this plenary authority has dubious origins,24 it nonetheless 34 • THE FEDERAL LAWYER • March/April 2022
provides the authority, along with the Indian Commerce Clause, for congressional passage of the Indian Trader Acts. However, the acknowledged existence of tribal sovereignty has served to balance the exercise of that plenary authority, and the maintenance of tribal sovereignty is critical to the success of any revisions of the ITR, as the “first key to economic development is sovereignty.”25 As one tribal chairman noted, while the ITS are rooted in an antiquated historical, political, and legal foundation [and] presumes the inability of Indians to self-govern and self-regulate trade within their territories in a manner that protects their interests and thus requires the assistance of the federal government to prevent potentially harmful commercial interactions between Indians and non-Indians … the policy foundation supporting the [Indian] Trader Statutes— protecting trade with Indians—remains relevant today in a different context.26 The best guiding principle on this subject comes from Warren Trading Post Company v. Arizona State Tax Commission, holding that “Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for State laws imposing additional burdens upon traders.”27 In Warren Trading Post, Arizona sought to impose a tax on the gross proceeds of sales or gross income of a licensed Indian trader. After noting that Arizona had expressly disclaimed all rights and title to Indian lands within its boundaries28 and reviewing the legislative history of the Indian Trader Act, the Court held the tax invalid.29 A subsequent attempt by Arizona to tax on-reservation economic activity was similarly thwarted in Central Machinery Company v. Arizona State Tax Commission.30 Even though Central Machinery was not a licensed Indian trader and did not have a permanent place of business on the reservation, the Court applied Warren Trading Post and overruled the Supreme Court of Arizona, concluding that since the transaction was plainly subject to regulation under the federal statutes and implementing regulations governing the licensing of Indian traders, federal law pre-empts the asserted state tax. It is irrelevant that appellant was not a licensed Indian trader, since it is the existence of the Indian trader statutes, not their administration, that pre-empts the field of transactions with Indians occurring on reservations. Nor is it relevant that appellant did not maintain a permanent place of business on the reservation, since the Indian trader statutes and regulations apply no less to a nonresident who sells goods to Indians on a reservation than they do to a resident trader.31 Given the exclusively federal nature of the Indian Commerce Clause and the ITS, one would think that the Supreme Court holding in Warren Trading Post would serve as stare decisis. Unfortunately, cash-strapped states continued to look at on-reservation resources and activity as potential “free money,” and subsequent cases proved disastrous.
Moe, Larry, and Cotton: The Intellectual Dishonesty of RaceBased Taxation A state ordinarily may not regulate or tax property or economic activity in Indian Country. As stated by the Supreme Court in a case
invalidating a state tax on royalty interests held by a tribe under oil and gas leases to non-Indians: The Constitution vests the Federal Government with exclusive authority over relations with Indian tribes…, and in recognition of the sovereignty retained by Indian tribes even after formation of the United States, Indian tribes and individuals generally are exempt from state taxation within their own territory.32
Moe v. Salish and Kootenai33 In Moe, the Court presumed that a state could tax cigarette sales to non-Indians and upheld a state requirement that tribes keep records of such sales, reasoning that these requirements amounted to a “minimal burden.”34 Moe constituted a departure from established law, which has required a clear expression of congressional intent to justify extension of state governmental power over Indians or Indian tribes on reservations without regard to the extent of regulatory burden on Indian tribes.35
Colville v. Washington36 The Colville Court extended the Moe exception to allow a state to require more burdensome collection and recordkeeping requirements on Indian cigarette sellers.37 Ironically, the Court seemed far more concerned about non-Indians off-reservation than Indians on-reservation, citing Moe for the notion that “the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax.”38 While the duty of a non-Indian to pay tax for an on-reservation purchase has a dubious basis, the Court completely rejected the foundational principles from Warren Training Post. The Court stated, “We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere.”39 The intellectual dishonesty inherent in this opinion is discussed infra.
The Presidential Commission Addresses Bracker’s “Unbalancing” On Jan. 24, 1983, President Ronald Reagan issued a Statement on Indian Policy declaring that “responsibilities and resources should be restored to the governments which are closest to the people served. This philosophy applies not only to state and local governments but also to federally recognized American Indian tribes.”40 President Reagan further acknowledged that “growing economies provide jobs, promote self-sufficiency, and provide revenue for essential services. Past attempts to stimulate growth have been fragmented and largely ineffective [in part because of the failure at] reducing the numerous and complex regulations which hinder economic growth.” While accordingly declaring that it is vitally “important to the concept of self-government that tribes reduce their dependence on federal funds by providing a greater percentage of the cost of their self-government,” President Reagan noted that tribes “have had limited opportunities to invest in their own economies, because often there has been no established [tax] base for community investment and development. Many reservations lack a developed physical infrastructure, including utilities, transportation, and other public services.”
In an effort to “reverse this trend by removing the obstacles to self-government and by creating a more favorable environment for the development of healthy reservation economies,”41 President Reagan established the Presidential Commission on Indian Reservation Economies to “identify obstacles to Indian reservation economic development and to promote the development of a healthy private sector on Indian reservations.”42 After extensive review, the Commission concluded that two primary factors exacerbated poor on-reservation economic conditions. First, A Byzantine system of overregulation actually deters investment by raising costs, creating uncertainty, and undermining local initiative. … The [federal support] system is designed for paternalistic control and it thrives on the failure of Indian tribes…. A reorganization of government systems which focuses on trust responsibility from the perspective of protection, rather than management, which provides a population-resource formula for block grants to tribes, and which acknowledges their rights to manage their own affairs, would provide the right kind of support.43 The Commission also lamented the lack of a viable tribal tax base, which itself stemmed in large part from the lack of exclusive tribal tax authority over Indian Country: When businesses believe that there will be [double] taxation if they locate on Indian reservations and do business there, they tend to locate along the outside border of a reservation. In spite of White Mountain Apache Tribe v. Bracker,44 denying the state’s right to tax a non-Indian business entity doing business with an Indian tribe, there is still widespread ambiguity over the extent to which state taxing power may reach.45 While Bracker was a relatively new decision at the time of the Presidential Commission’s report, as discussed infra, courts have since applied Bracker’s “balancing test” to further damage tribal tax revenue generation capabilities and thwart tribes’ abilities to meet the needs of their members. Perhaps in anticipation of how Bracker would be misused, the Presidential Commission recommended that: In order to minimize the adverse effects of double-taxation on economic activity and to avoid discouraging a partnership among non-Indians and Indians, legal persons residing or doing business within the boundaries of a reservation should not incur the burdens of supporting two sovereigns. Indians and non-Indians [should be subject to] the exclusive taxing authority and jurisdiction of an Indian tribe. [Such] exclusive tribal taxing authority would also create a responsibility on the part of the tribe to provide necessary public services to all residents within its boundaries.46 The Presidential Commission found that “significant litigation and jurisdictional conflicts [over issues such as double-taxation constituted] a major source of obstacles to Indian reservation economic development,”47 and those obstacles have only grown more problematic in the 33 years since the report. Bracker held that when a state seeks to tax non-Indians doing business in Indian Country, courts must conduct “a particularized March/April 2022 • THE FEDERAL LAWYER • 35
inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.”48 This test, which has come to be known as “Bracker balancing,” examines factors such as the state’s provision of public services related to the tax, the level of federal regulation of the activity being taxed, and the scope of adverse economic consequences on the tribe. If the examining court determines that the state’s interests outweigh those of the federal government and the tribe, the state tax is authorized. Unfortunately, courts overwhelmingly use Bracker balancing against tribal interests, and the results of such balancing are rarely, if ever, revisited, even in the face of substantially altered circumstances.49 The practical effect of Bracker has been to discourage on-reservation economic activity and deprive tribes of revenue. As states aggressively tax non-Indians doing business in Indian Country, tribes face several unsatisfying options. First, tribes may impose tribal taxes on top of the state taxes, resulting in double-taxation that often makes a given project financially unviable or at the very least drives it off-reservation. Second, tribes may forego imposing taxes altogether and lose the revenue necessary to provide government infrastructure and services such as roads, schools, electric power, water and sanitation services, telecommunications, law enforcement, fire departments, and healthcare, which most states neither directly provide nor fund in Indian Country. Third, tribes may challenge the state taxation in court, leading to protracted, expensive, and uncertain litigation that may permanently damage the relationship between tribes and state and local governments.50 Finally, tribes may attempt to enter into taxation agreements with state and local governments; to the extent that these governments are willing to do so, the tribes still only recover a percentage of the revenue to which they would otherwise be entitled. Thus, Bracker obstructs tribes from fully promoting, fostering, and encouraging on-reservation economic development.
Cotton Petroleum v. New Mexico
51
The Cotton Petroleum Court took up the question of whether, after Bracker, the commerce clause prohibited state taxes on oil and gas production also taxed by a tribe. The Court held that the tax was not sufficiently confiscatory to violate the due process clause. The Court did not rule on the impact of the Indian commerce clause on the double-taxation problem. Instead, it declared that it was “treacherous” to import concepts developed under the interstate commerce clause to the application of the Indian commerce clause.52 In the years following Cotton Petroleum, there was some discussion of a federal legislative solution to double-taxation.53 To date, however, Congress has failed to act.
Intellectual Dishonesty Like many of the justices who decided Moe and Colville, I also attended Harvard Law School. During my time at Harvard, both public and private economic interests continually invited everyone to “shop tax-free in New Hampshire,” yet the Supreme Court’s flawed notion of tribal sovereignty in Colville54 denied tribes the ability to similarly market tax differentials with the surrounding states. When a state government markets a tax incentive, it is considered savvy. When a tribal government markets a tax incentive, it is attacked in court as implementing unfair market practice, has its core sovereignty as a nation challenged, and incurs millions of dollars in legal fees. 36 • THE FEDERAL LAWYER • March/April 2022
In its ANPRM comments, the National Congress of American Indians pointed out the intellectual disconnect created by the Supreme Court: We also strongly encourage Interior to displace the uncertain balancing test created in [Bracker] because the application of this extremely fact-specific test, and the accretion of inconsistent holdings it has spawned provides strong incentives for state and local governments to take aggressive positions in taxing transactions and property on Indian reservations, thereby forcing tribes and the Department [of Interior] into costly and frequent litigation to protect their economic rights. The outcome of such litigation is frequently unpredictable. For example, in Bracker, the Supreme Court found that federal regulation of Indian timber is “comprehensive” and Arizona’s taxes could not be applied to a non-Indian company working under contract with a tribal corporation. Nine years later in Cotton Petroleum Corp. v. New Mexico, the Court upheld imposition of state severance taxes on a non-Indian company extracting oil and gas on Jicarilla tribal trust lands. Yet federal regulation of both trust resources, timber and minerals, is comprehensive, and in both cases resource revenues constituted the largest source of tribal government revenue. The two cases cannot be reconciled, making it difficult to predict outcomes in balancing test cases.55 Instead of the intellectually dishonest Bracker balancing test, both the NCAI and this article argue that the best approach is the elimination of double-taxation through a careful revision of the ITR.
Economic Impacts Leakage An earlier article demonstrated56 how economic leakage operates in Indian Country. Although we identified fractionated land interests and problems with trust land as significant factors in the pervasive problem of economic leakage, double-taxation also has a substantial and negative impact on tribal entrepreneurship. Because of double-taxation, it is almost always more expensive for a non-Indian to engage in commerce on a reservation, so tribal communities cannot expand their economic base beyond the on-reservation population. Even when communities can use tourism to attract off-reservation customers, double-taxation thwarts those efforts. For example, Crownpoint, N.M., attracts thousands of visitors to its monthly Navajo rug auctions each year. Yet, there are no hotels for visitors in Crownpoint, nor are there other stores for shopping, in part because New Mexico would impose additional taxation on those ventures and thus make them less profitable if the entrepreneurs want to be competitive with hotels and stores in Gallup. Nationwide, there are fewer entrepreneurial ventures on reservations and thus fewer options for on-reservation consumers to spend their money on the reservation. The inevitable consequence of such a lack of consumer spending options on-reservation is leakage. The 2014 Diné Policy Institute Food Sovereignty Report57 found that 60 percent of respondents needed food items that were not available locally.58 The Navajo Nation Department of Economic Development reports that 71 percent of Navajo dollars are spent off-reservation,59 and nearly 80 percent of tribal consumers purchased their groceries off-reservation.60 This economic leakage happens despite
the long drives off-reservation to the grocery store, some drives as long as 240 miles.61 These startling statistics not only demonstrate the magnitude of the economic leakage that pervades the Navajo Nation but also explain why the Walmart in Gallup is one of the largest in the world. Such leakage is not unique to the Navajo Nation but instead is pervasive throughout Indian Country. The former chairman of the Crow Nation in Montana suggests that if “anyone doubts that money flows into Billings [from the Crow Nation], go to Walmart today after members receive their per-capita check from the tribe. ‘We don’t call it Walmart, we call it Crow-Mart.’”62 The Crow Nation and the six other federally recognized tribes in Montana also conducted a study that found that tribal and BIA salaries pump more than $200 million directly into the state economy, and “since every dollar turns at least five times in a local economy, the total annual contribution may reach $1 billion.”63 When private-sector wages as well as goods and services purchased by tribal and BIA entities are considered, the contribution to the state of Montana “could reach $3 billion to $5 billion a year.”64 In his book, Reservation Capitalism, Professor Robert Miller identifies several studies on leakage from various reservations in addition to the Montana tribal study, such as research on the Zuni Pueblo economy that found that 84 percent of all individual income was spent off-reservation.65 Former commissioner of Indian Affairs, Robert L. Bennett, perhaps best summarized the problem of leakage: “[w]hen a million dollars is invested in most communities, it generates approximately ten million dollars of cash flow. But in Indian communities, one million dollars generates just one million dollars of cash flow.”66
Double-Taxation Chases Away Outside Investment When states wrongly insist on taxing on-reservation resources and economic activity, they make otherwise economically viable projects impossible to pursue. Perhaps the single greatest impediment for tribes that want to monetize the wealth contained within their natural resource endowment is the double-taxation after Cotton Petroleum. In a 2015 study, the Government Accountability Office determined that double-taxation by state and tribal governments is one of seven factors that has hindered tribal economic development.67 On Sept. 21, 2017, Deputy Secretary of Energy Dan Brouillette told the Indian Country Energy and Infrastructure Working Group that double-taxation “prevent[s] many projects from ever happening. 68 Thus, tribal governments face a Hobson’s choice when faced with double-taxation. As the National Congress of American Indians noted, if tribes: impose a tribal government tax, then the resulting [double] taxation drives business away. Or, tribes collect no taxes and suffer inadequate roads, schools, police, courts and health care. To add insult to injury, reservation economies are funneling millions of tax dollars into treasuries of state and local governments who spend the funds outside of Indian Country. This dilemma is fundamentally unfair to tribal governments, undermines the Constitution’s promise of respect for tribal sovereignty, and keeps Indian reservations the most underserved communities in the nation.69 The impact is particularly acute for tribes that are trying to grow their economies by attracting outside capital and non-Indian business-
es to the reservation. As one tribal chairman noted, “Our non-Indian customers and business partners are targeted for tax assessment by the state and local governments simply because they are non-Indians. As a result of this discriminatory taxation, our commerce with them is economically burdened and our economic growth frustrated.”70
Economic Modeling of Revised Indian Trader Regulations During my time as DASPED, my primary focus was on making the economic case to eliminate double-taxation in Indian Country. I initiated a new round of tribal leader listening sessions and asked tribal leaders for empirical data in a July 28, 2017, “Dear Tribal Leader” letter.71 Specifically, we requested details on Specific projects that your tribe or tribal organization cannot initiate or approve under existing regulatory requirements, but which you believe could move forward if new regulations gave tribes greater economic flexibility. For each project include: a) D etails regarding Indian Country capital investment under the project. b) D etails regarding the annual tribal revenue associated with the project. c) Th e number of Indian Country jobs that could be created under the project. d) Any specific impediment preventing forward progression on your project. Indian Country responded like never before in terms of empirical economic data, and we went to work. My colleague Dr. Steven Payson and I took that data and developed an economic model that demonstrated that when states stop attempting to tax on-reservation activity, those same states will generate additional revenue rather than experience any net loss of revenue.72 We also made sure that the underlying data was published so that others could replicate our work,73 and the economic model we developed was subsequently published in a peer-reviewed economics journal.74 There is a sense of poetic justice in the notion that the Indian Trader regulations, born out of an antiquated sense of paternalism, could potentially be used to benefit Indian Country and strengthen tribal sovereignty in the 21st century and beyond. Our research proved that revising those regulations to secure exclusive tribal taxation authority will lead to dramatic increases in state revenues and significant reductions in welfare transfer payments, both of which will enhance state budgets. We estimated that the nationwide impact could be as high as a $40-billion increase in economic activity, with the vast majority of that benefit flowing into the most economically disadvantaged parts of the country. Given the solid empirical and economic case that we made, eliminating double-taxation should have been a win-win. Unfortunately, complaints from state tax collectors and congressional turf battles stymied our efforts at the Department of Interior to solve double-taxation via updated Indian Trader regulations. Such opposition was particularly unfortunate given that many of those same states have previously reduced or eliminated their severances taxes on “high-cost” gas mining operations so as to spur economic activity. The reduction in tax burden resulted not only in increased oil and gas development but also an increase in research and development March/April 2022 • THE FEDERAL LAWYER • 37
activity that ultimately led to the advancement of horizontal drilling technologies that allow for the extraction of petrochemicals in the Eagle Ford and Bakken formations. Concomitant with the increase in drilling activity was an economic boom in previously economically depressed areas. That increased activity led to increased state tax receipts that ultimately dwarfed the forgone severance tax revenue. My research similarly demonstrates that a reduction in the tax burden in Indian Country would spur significant and positive economic activity, both on- and off-reservation. Obviously, the political climate has changed since I was DASPED, but many of the folks who were instrumental in launching the initial ANPRM have returned to the Department of the Interior, with several in much higher positions. Thus, given that the necessary empirical work has been done to make the economic case for eliminating double-taxation, the current administration will hopefully revisit this issue.
Administrative Authority Exists to Eliminate Double-Taxation The Constitution expressly delegates to Congress the authority to regulate tribal commerce. Any and all laws, regulations, state or federal actions, or case law regarding Indian commerce or Indian traders all stem from the Indian Commerce Clause. The Indian Trader Act is essentially a codification of the Indian Commerce Clause. Congress has not abrogated these rights to states; to the contrary, Congress explicitly delegated this power to the Commissioner of Indian Affairs in the Indian Trader Act. In 1787, the U.S. Constitution assigned Congress the exclusive power to “regulate Commerce … with the Indian tribes.” Between 1790 and 1834, Congress passed five separate bills regulating trade between Indians and non-Indians. As the Supreme Court has noted, while these early statutes had multiple purposes (such as preventing the illegal occupation of Indian lands by non-Indians, preventing the sale of Indian lands to non-Indians, and enforcing the laws by garrisoning troops in and around Indian Country), their overarching goal was “to prevent ‘fraud and imposition’ upon the … Indians.”75 For example, referring to these series of laws, President George Washington stated in a 1790 speech to the Seneca Nation that the tribe “will perceive by the law of Congress, for regulating trade and intercourse with the Indian tribes, the fatherly care the United States intend to take of the Indians,”76 and reassured the Nation that the United States would put an end to non-Indian physical and economic impositions and depredations of tribal communities. Early iterations of these Indian trade statutes included language and legislative history indicating that the states lacked authority over Indian Country commerce. For example, the 1790 Act stated that Indian traders “shall be governed in all things touching the said trade and intercourse, by such rules and regulations as the President shall prescribe.” Similarly, the legislative history of the 1834 Act noted that the “regulations of trade and intercourse among the tribes should be liberal and uniform; such regulations must be made either by the United States, or by the tribes.”77 When considered in light of contemporary understanding that each Indian tribe comprised “a distinct community, occupying its own territory … in which [state] laws … can have no force,”78 it suggests that Congress viewed these trade statutes as reinforcing exclusive federal and tribal authority over Indian Country commerce to the exclusion of the state. With this historical backdrop in mind, Congress eventually enacted the “modern” ITS statutes that authorized the Department of the 38 • THE FEDERAL LAWYER • March/April 2022
Interior to promulgate preemptive regulations. In the ITS, Congress delegated the “Commissioner of Indian Affairs” (now the BIA Director) the “sole power and authority to appoint traders … and to make such rules and regulations as [that official] may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.”79 In addition, the ITS mandated that non-Indian businesses seeking to engage in on-reservation trade must obtain a federal license and subsequently operate “under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.”80 The ITS represent congressional delegation to broadly regulate in the area of Indian trade and commerce, including the authority to preempt state taxation. Congress may authorize agencies to issue regulations displacing federal common law court decisions. Federal common law decisions are those that “amount[], not simply to an interpretation of [the Constitution,] a federal statute or a properly promulgated administrative rule, but, rather, to the judicial ‘creation’ of a special federal rule of decision.”81 Bracker and its progeny represent “federal common law” in that they fashioned a special rule for determining when states may or may not tax on-reservation activity. Thus the ITS represent the necessary congressional delegation for Interior to promulgate regulations displacing Bracker altogether (although this may not address other cases specifically interpreting the scope of the ITS). The ANPRM comments from the National Congress of American Indians contain an excellent analysis of the Department of Interior’s authority to issue regulations that completely preempt state tax laws: Consistent with traditional administrative law principles, validly promulgated regulations authorized by the agency’s organic statute displace conflicting state laws by operation of the Supremacy Clause, because “[t]he phrase ‘Laws of the United States’ encompasses both federal statutes themselves and federal regulations that are properly adopted in accordance with statutory authorization.”82 The Supreme Court has found that “a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation” and hence render unenforceable state or local laws.83 As the Supreme Court stated in Altria Group v. Good,84 a federal law that conflicts with a state law will trump, or “pre-empt,” that state law. The Supreme Court has long recognized that state laws that conflict with federal law are “without effect.”85 Regulatory pre-emption by the Department of Interior can be detected in almost every aspect of natural resources use and development on federal lands in the United States; from surface mining reclamation requirements in coal fields to protection of wild horses and burros on grazing ranges to the terms of timber sales in federal forest holdings; from the TVA to Grand Coulee Dam, with FERC licensed facilities on nearly every river in the country. The Department of Interior is intimately familiar with the doctrine of federal regulatory pre-emption, and exercises it daily on federal lands throughout the United States. In comparison, revised Indian Trader Regulations will be a modest exercise of regulatory preemption. The Indian Commerce Clause is an enumerated Congressional authority, Indian Country is land traditionally reserved to federal authority to preserve tribal self-government, and Congress
has specifically delegated authority to regulate commerce with Indians on reservations to Interior under 25 U.S.C. 262.86 NCAI also pointed out that validly issued federal regulations can also overturn federal common law: Validly issued federal regulations may also displace federal common law. Common law is a collection of judicial decisions that govern matters that do not fall within the realm occupied by Congress. Legislation has primacy over areas formerly within the domain of the common law.87 Administrative agencies, created and empowered by statute to carry out mandates, regularly promulgate regulations that carry the force of laws passed by Congress. Such agencies also have the authority to issue regulations overturning common law decisions. Under the balance of power inherent in our system, courts have a limited role only to invalidate regulations only if they exceed statutory authority.88 The language in the Indian Trader Act is about as broad, discretionary, and comprehensive as any language in any statute. It clearly delegates to the Commissioner of Indian Affairs the “power” to protect that naturally accompanies the “duty” to protect, as the Court discussed in Kagama.
Conclusion: A Template for Regulatory Revisions The Indian Trader regulations should be completely revised consistent with many of the guiding principles elucidated by the various tribal leaders and organizations that submitted comments. The new regulations should: 1. Advance tribal self-governance and self-determination by ensuring that tribes have final decision-making authority on matters related to trade within Indian Country. 2. Include both comprehensive standards related to final decisions made by Indian tribes on matters involving trade within Indian Country and provisions regarding state taxation similar to those contained in 25 C.F.R. Part 162 (Leasing) and 25 C.F.R. Part 169 (Rights of Way), as necessary to bolster the preemptive weight of the ITR as applied to state and local taxation within Indian Country.89 3. Require all persons engaging in trade within Indian Country to comply with all tribal laws and regulations. 4. Declare that all persons engaging in trade within Indian Country are subject to the laws and regulations of the tribe and are subject to the jurisdiction of tribal courts. 5. Restore the exclusive constitutional authority of Congress to regulate trade in Indian Country and to ensure the protective authority of the ITS that existed as recently as 1980.90 Dr. Gavin Clarkson is an enrolled member of the Choctaw Nation of Oklahoma and is managing director of Clarkson PLLC. He earned undergraduate and MBA degrees from Rice University, graduated cum laude from Harvard Law School, was the first-ever tribal member to earn a doctorate from Harvard Business School, and remains the only Harvard Business School doctoral graduate to have placed in a livestock show. Named the nation’s “leading scholar in tribal finance” by The Financial Times, Clarkson has been cited by Bloomberg, the Wall Street
Journal, and USA Today on matters of tribal finance, economic development, and federal Indian law.
Endnotes Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463 (1976); Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989). 2 U.S. Const. art. I, § 8, cl. 3. 3 Indian Trade and Intercourse Act of 1790, ch. 33, 1 Stat. 137. Subsequently updated by Congress and eventually renamed the Indian Trader Act ch. 19, 1 Stat. 329 (1793); ch. 30, 1 Stat. 469 (1796); ch. 46, 1 Stat. 743 (1799); ch. 13, 2 Stat. 139 (1802); ch. 161, 4 Stat. 729 (1834). 4 Indian Trader Act, ch. 161, 4 Stat. 729 (cited in Worchester v. Georgia, 31 U.S. 515 (1832) (Marshall, J.)). 5 Worcester v. Georgia, 31 U.S. 515, 562 (1832). 6 Id. at 520. 7 See, e.g., 25 C.F.R § 140. 8 Presidential Comm’n on Indian Rsrv. Econs., Report and Recommendations to the President of the United States 38 (Nov. 30, 1984), https://files.eric.ed.gov/fulltext/ED252342.pdf. 9 25 U.S.C. § 262 (“Any person desiring to trade with the Indians on any Indian reservation shall … do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians”); see also 25 U.S.C. § 9. 10 Traders With Indians, 81 Fed. Reg. 89015 (Dec. 9, 2016) (to be codified at 25 C.F.R. 140). 11 See 25 C.F.R. § 140 12 Proceedings of the 30th Annual Sovereignty Symposium (Oklahoma Supreme Court Network, Oklahoma City, OK) ( June 7, 2017) (hereinafter Tax Weevil). 13 Steven Payson & Gavin Clarkson, An Economic Analysis of the Effects of State Taxes on Infrastructure Development and Economic Growth in Tribal Nations, (Dec. 14, 2017), https://ssrn.com/ abstract=3943926. 14 2017 Review of Licensed Indian Trader Regulation, https://www. bia.gov/as-ia/raca/archived-regulatory-efforts/indian-traders-25cfr-140 (last visited Feb. 17, 2022) (hereinafter Indian Trader Data). 15 Steven Payson, The Economic Effects of Infrastructure Development in American Indian Tribal Areas with Low Income and High Unemployment, 11 Am. J. of Econ. & Bus. Admin. 61, 77 (2019). 16 A fuller examination of the background of the Indian Trader Act can be found in Tax Weevil, supra note 12. 17 H.R. Rep. No. 23-474 at 19 (May 20, 1834). 18 25 U.S.C. §§ 261, 262. 19 Cherokee Nation v. Georgia, 30 U.S. 1 (1831). 20 Id. 21 United States v. Kagama, 118 U.S. 375, 381 (1886). 22 Cherokee Nation, 30 U.S. at 17. 23 In the words of Justice O’Connor, “Today, in the United States, we have three types of sovereign entities – the Federal government, the States, and the Indian tribes. Each of the three sovereigns . . . plays an important role . . . in this country.” Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 2 (1997). 24 Tax Weevil, supra note 12, at n.78. 25 Stephen Cornell, Sovereignty, Prosperity and Policy in Indian Country Today, 5 Comm. Reinvestment 5 (1997). 1
March/April 2022 • THE FEDERAL LAWYER • 39
Advanced Notice of Proposed Rulemaking, comments (Apr. 10, 2017); Indian Trader Data, supra note 14. 27 Warren Trading Post v. Tax Comm’n, 380 U.S. 685 (1965). 28 Id. at 687, n.3. 29 Id. 30 Central Machinery Co. v. Arizona Tax Comm’n, 448 U.S. 160 (1980). 31 Id. 32 Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985). 33 Moe v. Salish & Kootenai, 425 U.S. 463 (1976). 34 Id. at 483. The Court’s opinion does not provide an analysis for its view that a state may tax Indian retailers’ on-reservation sales of cigarettes to non-Indian purchasers, but appears instead merely to assume the validity of this proposition. See Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1203– 1204 (1995). 35 See, e.g., Blackfeet Tribe, 471 U.S. 759; Bryan v. Itasca Cnty., 426 U.S. 373 (1976); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973). 36 Washington v. Colville, 447 U.S. 134 (1980). 37 Id. at 159–160. 38 Moe, 425 U.S. at 482. 39 Colville, 447 U.S. at 155. 40 President Ronald Reagan, Statement on Indian Policy (Jan. 24, 1983), https://www.reaganlibrary.gov/archives/speech/statement-indian-policy. 41 Presidential Commission on Indian Reservation Economies, Report and Recommendations to the President of the United States, at 19 (Nov. 30, 1984). 42 Id. at 1. 43 Id. at 31. 44 Central Machinery, 448 U.S. at 160. 45 Presidential Commission, supra note 8, at 38. 46 Id. 47 Id. 48 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980). Absent congressional authorization to the contrary, states are generally prohibited from taxing tribes or their members for onreservation economic activity. 49 At the time I served as DASPED, DOI was unaware of a single instance of Bracker balancing being revisited. The reasons for this lack of reexamination could be due to a perception that tribes are barred from revisiting these cases or tribes may simply be choosing not to expend resources revisiting these cases. 50 Bracker balancing is extraordinarily fact-specific and thus particularly difficult to litigate: the tribe will have to develop a factual record concerning whether the incidence of the tax fell on Indians or nonIndians, the ownership and nature of the business, use of funds, place of incorporation, whether there is “value added” on reservation, which government provides services and infrastructure, whether there are improvements, the type of customer and employees, whether there is a lease, whether work is being outsourced off-reservation, etc. 51 Cotton Petroleum Corp., 490 U.S. at 163. 52 Id. at 192-93. 53 See Jeanne S. Whiteing, Tribal and State Taxation of Natural Resources on Indian Reservations, 7 Nat. Resources & Env’t L. Rev. 17, 59 (1993). 54 Washington v. Yakima Indian Nation, 439 U.S. 463 (1979). 55 Proposed Rulemaking, supra note 26; Indian Trader Data, supra note 14. 26
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Gavin Clarkson & Alisha Murphy, Tribal Leakage: How the Curse of Trust Land Impedes Tribal Economic Self-Sustainability, 12 J. of Law, Econ. and Policy 31 (2016). 57 Dine Policy Institute, A Report on the Navajo Nation Food System and the Case to Rebuild a Self-Sufficient Food System for the Dine People, 17 (Apr. 2014) (hereinafter Food Sovereignty Report). 58 Id. 59 Trib Choudhary, 2002-2003 Comprehensive Economic Development Strategy of the Navajo Nation 13 (2003); Navajo Nation Division of Development, Navajo Economic Data Bulletin, 001-0212, 1 (2012), http://navajobusiness.com/pdf/Ads/ NavEconomicDataBulletinFinal_030212.pdf. 60 Id. 61 Food Sovereignty Report, supra note 57, at 17. 62 Becky Shay, Crow Leader Outlines Plan for Fuel Plant, Billings Gazette (Dec. 6, 2007), http://billingsgazette.com/news/local/ crow-leader-outlines-plan-for-fuel-plant/article_d0207741-ec0151a6-9596-c2a3bacd2f1f.html. 63 Ron Selden, Economic development attitudes must change, Indian Country Today ( June 13, 2001). 64 Id. 65 Robert Miller, Reservation Capitalism, 136 (2012). 66 Robert L. Bennett, The War on Poverty, in Indian Self-Rule: First Hand Accounts of Indian-White Relations from Roosevelt to Reagan at 224 (Kenneth R. Philp ed., 1986). 67 See U.S. Gov’t Accounatbiliy Off., GAO 15-502, Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands 15 ( June 2015). 68 Dan Brouillette, Deputy Secretary, United States Dep’t of Energy, Remarks before the Indian Country Energy and Infrastructure Working Group (Sept. 22, 2017). 69 Advanced Notice of Proposed Rulemaking, supra note 55; Indian Trader Data, supra note 14. 70 Proposed Rulemaking, supra note 26; Indian Trader Data, supra note 14. 71 See Letter from Dep. Ass’t Secretary, U.S. Dep’t of the Int., Gavin Clarkson to Tribal Leader ( July 28, 2017), https://www.bia.gov/ sites/bia_prod.opengov.ibmcloud.com/files/assets/as-ia/raca/pdf/ DTLL_Indian_Trader%20Extension%2009-11-17.pdf ("Dear Tribal Leader Letter"). 72 Payson & Clarkson, supra note 13. 73 All of the tribal responses to the Dear Tribal Leader Letter are available at https://www.bia.gov/as-ia/raca/archived-regulatoryefforts/indian-traders-25-cfr-140. 74 Payson, supra note 15, at 61-77. 75 Cent. Mach. Co. v. Ariz. State Tax Comm’n, 448 U.S. 160, 163 (1980) (internal citation omitted). 76 Am. State Papers: Indian Affairs 1:142-144 (1823). 77 H.R. Rep. No. 23-474, at 19 (May 20, 1834). Note that Congress again excluded the states from the list of sovereigns responsible for regulating trade and commerce in Indian Country. 78 Worcester, 31 U.S. at 536. 79 25 U.S.C. § 261. 80 25 U.S.C. § 262. 81 Atherton v. Fed. Dep. Ins. Corp., 519 U.S. 213, 218 (1997). 82 City of New York v. Fed. Comm. Comm’n., 486 U.S. 57, 63 (1988). continued on page 56 56
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Renewable Energy on Tribal Lands:
Native American Tribes Are Well Positioned to Play a Key Role in the Clean Energy Transition BEN MAYER, ENDRE SZALAY, ELIZABETH CROUSE, AND BART FREEDMAN
D
emand for renewable energy projects is at an all-time high and trending up. As part of this acceleration, there has been a push for renewable energy projects with positive social impacts and benefits for traditionally marginalized communities. Indeed, some of the most significant consumers and supporters of renewable and carbon-free power have made environmental and economic justice a central focus and condition of their use of and investments in renewable energy projects. At the same time, clean energy transition legislation throughout the country is accelerating the need for carbon-free resources (e.g., wind, solar, and storage projects) to replace traditional fossil fuel resources (e.g., coal, oil, natural gas) to power the grid.
Native American tribes are uniquely situated to be leaders in this transition while simultaneously benefiting from it. Tribes make up one of the most underrepresented and underserved communities in the United States, both historically and at present. They also own large areas of land with abundant natural resources. Tribal reservations in the West, Midwest, and Southwest, for example, are particularly well suited for solar, wind, and storage projects. Tribes, meanwhile, have their own economic diversification, energy independence, environmental stewardship, and sustainability goals. They can also leverage flexibility inherent in sovereign tribal governments to support partnerships between tribal and nontribal entities for the development of renewable energy projects on tribal lands, all while driving positive economic and social development for tribal communities.
As discussed in this article, however, there are ways in which that flexibility could be enhanced to support tribal self-determination and incentivize investor, developer, and offtaker participation in projects on tribal lands. Congress could bolster renewable energy development on tribal lands by enacting legislation that (1) expressly precludes state and local taxes and other fees on nontribal entities and their generating assets on tribal lands, and (2) allows tribes to receive the cash equivalent of renewable energy tax credits even though tribes are tax exempt.
Renewable Energy Potential on Tribal Lands Tribal lands make up almost 6 percent of the land area within the contiguous United States with considerable access to wind and solar resources. According to the Department of Energy (DOE) Office March/April 2022 • THE FEDERAL LAWYER • 43
of Indian Energy, that comprises 44 million acres of rangeland, 2.5 million acres of farmland, and 5.3 million acres of commercial forest.1 A 2018 study by DOE’s National Renewable Energy Laboratory (NREL) determined that tribal lands have the potential for over 6,000 gigawatts (GW) of utility-scale solar power generating capacity and almost 900 GW of wind power.2 Two maps from the Office of Indian Energy show the utility-scale solar and wind potential on tribal lands in the contiguous United States. But it is not all potential, as there are already some significant and impactful projects on tribal lands.
Renewable Energy Projects on Tribal Lands Over the last decade, there has been a gradual push for utility-scale renewable energy projects on tribal lands. Tribes have led the way, but they have also been assisted by project developers, investors and investment managers, and renewable energy offtakers, all of whom are devoting more time and resources to this opportunity. Three notable examples highlight the opportunities and different approaches to utility-scale renewable energy development on tribal lands.
Navajo Nation: The Tribal Utility Model The Navajo Nation, home to the largest reservation in the United States, is fast becoming one of the leaders in renewable energy development in Indian Country. In the past few years alone, the Navajo Nation has installed or planned at least three solar generation plants (Kayenta Solar, Red Mesa Tapaha Solar, and Cameron Solar). The keys to the Navajo Nation’s success are two-fold: (1) tribal direction and support for utility-scale renewable energy development and (2) a well-established and sophisticated tribally owned utility, the Navajo Tribal Utility Authority (NTUA). In 2019, the Navajo Nation announced the Navajo Háyoołkááł Proclamation, or Sunrise Proclamation, setting forth the Navajo Nation’s new economic vision: “[T]he Navajo Nation will strive for a balanced energy portfolio and will pursue and prioritize clean renewable energy development for the long-term benefit of the Navajo
Utility-Scale Solar on Tribal Lands3
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People and our communities.”5 The Navajo Nation’s push toward renewable energy development dovetails with the 2019 closure of the 2,250-megawatt (MW) Navajo Generation Station coal-fired power plant, which provided well-paying, steady jobs to the Navajo community but also brought severe environmental and human health consequences.6 With the Sunrise Proclamation, the Navajo Nation is intent on bringing to life a new economic and environmental vision for the Navajo community. NTUA, established in 1959, is the largest and oldest tribally owned utility in the United States. Through its NTUA Generation, Inc. (NGI) subsidiary, NTUA owns the Kayenta Solar Project located within the Navajo Nation. The construction of Kayenta Phase I (27.3 MW) generated over $3 million in tax revenue for the Navajo Nation. The 30-year total for Phase I is projected to generate over $7.5 million in additional tax revenue, and the 30-year total for Phase II (27.8 MW) is projected to generate an additional $5.1 million, which the Navajo Nation will use for the electrification of Navajo homes. In 2021, the Navajo Nation and the NTUA finalized leases under Navajo leasing regulations for the construction of two additional solar projects (Red Mesa Tapaha and Cameron Solar generation plants) totaling 270 MM of solar capacity. NTUA will be the majority owner of Red Mesa, and Utah Associated Municipal Power Systems has executed a 25-year power purchase agreement (PPA) for 66 MW from Red Mesa. The Navajo Nation projects that Cameron Solar will generate over $13 million in land-lease payments and $90 million in transmission payments over its 30-year life.7
Moapa Band of Paiutes: The Developer Leasing Model The Moapa Band of Paiutes foray into renewable energy is similar to the Navajo Nation’s in that it tracks closely with the 2017 closure of the 557-MW Reid Gardner coal-fired power station immediately adjacent to the Moapa River Indian Reservation in Nevada. In 2017, the Moapa Band of Paiutes partnered with First Solar to develop the 250-MW Moapa Southern Paiute Solar Project, considered the first utility-scale solar project on tribal lands. The Moapa Southern Paiute Solar Project has a 25-year PPA with the Los Angeles Department of
Utility-Scale Wind on Tribal Lands4
Water and Power to deliver clean energy to Los Angeles residents, and the project will generate millions of dollars of income for the Moapa Band in the form of lease payments.8 The Moapa Band, unlike the Navajo Nation, does not have a tribal utility that can leverage unique financing arrangements for renewable energy project development, operation, and ownership. Instead, to take advantage of federal investment tax credits, the Moapa Band entered into a lessor-lessee relationship with its nontribal partner, First Solar, to develop and operate the Moapa Southern Paiute Solar Project on the Moapa River Indian Reservation. After the nontribal owners and investors recoup the investment tax credits, the Moapa Band will obtain ownership rights.9 With valuable lessons and insights from the Moapa Southern Paiute Solar Project, including concerted efforts between the Moapa Band, the developer, and investors to build trust throughout the process, the Moapa Band has additional solar generation projects in the pipeline. In 2021, for instance, the Bureau of Indian Affairs (BIA) released a final Environmental Impact Statement for BIA’s approval of two leases for Southern Bighorn, a 400-MW facility proposed by developer 8minute Solar Energy and located 30 miles east of Las Vegas. The purpose of the project is to “(1) [p]rovide a long-term, diverse, and viable economic revenue base and job opportunities for the Moapa Band; [and] (2) assist Nevada to meet their State renewable energy needs.”10
Oceti Sakowin Power Authority: The Joint Venture Leasing Model The Oceti Sakowin Power Authority (OSPA) is a unique—and first of its kind in Indian Country—partnership of six tribes (Cheyenne River Sioux, Flandreau Santee Sioux, Oglala Sioux, Rosebud Sioux, Standing Rock Sioux, and Yankton Sioux). OSPA is focused on fostering tribal sovereignty, self-determination, and energy independence by bringing over two gigawatts of renewable energy development to tribal lands through financing, constructing, and operating renewable power generation and transmission facilities. OSPA is a federally chartered Section 17 corporation organized under the Indian Reorganization Act. OSPA’s nonprofit governmental entity structure—modeled in part after municipal power authorities—guarantees that surplus revenues are (1) evenly distributed to the member
tribes and (2) used for “municipal purposes,” such as infrastructure and economic development for the benefit of tribal communities.11 OSPA’s first innovative project is a joint venture ( JV) with a nontribal developer on two utility-scale wind projects on reservations in South Dakota. OSPA intends to enter into land leases with the Cheyenne River and Oglala Sioux as well as individual tribal members. The JV model is designed to qualify the project for federal tax credits, and the OSPA ownership stake in the JV ensures tribal ownership and revenue. The projects are expected to generate tens of millions in tax dollars for the member tribes and will also generate significant lease payments for the member tribes and to individual Native American landowners for the anticipated 25- to 50-year life of the projects. OSPA is “looking at the project[s] as a way of reaching out to corporations interested in purchasing green energy” and as “a chance to help the community.” OSPA and the JV model could provide a template for other wind projects on tribal lands of OSPA member tribes and tribal lands of other tribes seeking to develop and take an ownership stake in utility-scale renewable energy projects.12
Impediments to Renewable Energy Development on Tribal Lands Although significant resources and potential as well as successful projects demonstrating feasibility exist, there are still relatively few utility-scale renewable energy projects on tribal lands. As of 2019, there was only slightly more than 400 MW of installed renewable energy (solar, wind, biomass, geothermal, and hydropower combined) capacity on lands held by tribes.13 There are a variety of reasons for this unrealized potential. A 2016 Sandia National Laboratories report evaluates some of the key barriers to renewable energy development on tribal lands. These include mistrust of outsiders, knowledge and capacity, federal permitting laws and regulations, and access to capital and infrastructure.14
Mistrust of Outside/Nontribal Entities The long history of mistrust in tribal communities of outside nontribal entities can make partnerships between nontribal developers and investors and tribal landowners difficult to navigate and complete. Partnering with tribes and developing projects on tribal March/April 2022 • THE FEDERAL LAWYER • 45
lands demands cultural competencies—each tribe is a sovereign and unique governmental entity separate and distinct from other tribes. The history of resource exploitation on tribal lands casts a long shadow over energy development in Indian Country. Some tribes may simply not trust outsiders to develop projects on their lands. Further, energy project financing requires complex structures, which can also raise fears of being taken advantage of and/or deceived.
Knowledge and Capacity Tribes, particularly smaller tribes, often lack the institutional knowledge and technical capabilities to complete utility-scale projects on their own. Partnering with a nontribal third party is a logical arrangement for evaluating and developing renewable energy projects on tribal lands. In order to avoid the trust issues described above, however, nontribal individuals and entities must approach and attend to these partnerships with due care and respect for their tribal counterparts. These relationships are not typical commercial transactions between corporate entities.
Federal Permitting Laws and Regulations Drawn out regulatory and permitting processes under federal law can hamper projects on tribal lands. The federal regulatory and permitting overlay can be difficult to navigate, cause delays, and embroil projects in litigation, particularly when it comes to environmental review under the National Environmental Policy Act (NEPA). In light of these complexities, it should come as no surprise that the vast majority of installed solar and wind projects have been completed on private lands.15 The federal regulations underlying wind and solar leasing also do not promote tribal ownership of projects, which can discourage tribal leadership and participation.
Access to Capital and Infrastructure Many tribal communities do not have immediate access to the significant amounts of capital necessary to develop renewable energy projects, especially utility-scale solar and wind farms. Securing project financing and funding can also be difficult. Due to the tax-exempt status of Native American tribes, federal tax incentives available and critical to private developers and investors may not be readily available to tribes that wish to develop and own renewable energy projects. To finance projects, tribes often have to invite nontribal developers and investors into the project who are not familiar with their cultures and customs or applicable federal and tribal law. Tribal lands are also often situated in remote areas that lack access to transmission lines, gen-tie lines, roads, and other infrastructure necessary to bring utility-scale solar and wind to the grid. This means more financing, longer wait times for projects to come online, and more potential for pushback from tribal and nontribal communities to renewable energy projects on tribal lands. Against these odds, however, projects like the ones discussed above have been taking off on tribal lands.
Incentivizing Renewable Energy Development on Tribal Lands Given that development cannot occur on tribal lands without tribal authorization, tribes are key to maximizing the renewable energy project potential on their lands. We have discussed some of the reasons tribes may have hesitated or been unwilling to be involved in utility-scale renewable energy projects on their lands. We have also 46 • THE FEDERAL LAWYER • March/April 2022
seen that other tribes are at the forefront of renewable energy development. In this section we will discuss some of the federal, state, and private investment initiatives that can spur continued and new growth of renewable energy projects on tribal lands.
Federal Leasing Regulations In 2012, BIA, the agency responsible for overseeing the federal government’s relationship with Native American tribes, issued leasing regulations for wind and solar projects on tribal lands.16 The regulations set forth guidance and requirements for short-term wind evaluation leases for purposes of wind energy evaluation equipment, such as metrological towers, and for long-term wind and solar resource development leases. BIA’s regulations are designed to streamline the leasing and lease approval process, advance economic development, and spur renewable energy development on tribal lands. The regulations outline requirements for, among other things: • B IA approval and enforcement authority and tribal/individual landowner consent (e.g., including consent and approval requirements for lease amendments, assignments, subleases, and leasehold mortgages). • Lease package submittals (e.g., tribal resolution or ordinance authorizing lease, valuation for lease rent payments, insurance, performance bond, environmental and archeology reports, resource development plans, and restoration and reclamation plans). • NEPA review and BIA processing and timeline considerations. While the regulations are designed to streamline the leasing process, they are, in some instances, complex and add a layer of government approval (BIA acting in a trustee capacity for tribes and individual landowners) that would not apply on private lands. To overcome these complexities, tribes and nontribal lessees should begin the leasing process early and identify legal matters that need to be addressed for a successful agreement, including constraints within the tribe’s constitution and laws with respect to negotiating a limited and enforceable waiver of the tribe’s sovereign immunity and any related dispute resolution provisions in the lease. Tribes and their lessees should also develop lease terms in close coordination with BIA to identify and resolve potential issues that could delay BIA’s approval or result in outright disapproval of the lease, including NEPA review and fair market valuation for lease payments. To get out in front of any potential issues, a tribe may request that BIA review a proposed wind/solar resource lease before or during the NEPA process and identify provisions that would justify disapproval of the lease pending the completion of the NEPA review.17 Some tribes have drafted and received BIA approval for their own leasing regulations under the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act) amendments to the Indian Long-Term Leasing Act of 1955.18 These tribes are authorized to negotiate and enter into leases without further BIA approvals, which can streamline the leasing process. To obtain BIA approval, a tribe’s regulations must be consistent with the agency’s wind and solar leasing regulations at 25 C.F.R. Part 162 Subpart E, including the requirement for an environmental review process. HEARTH Act-approved regulations apply only to tribal lands. Thus, if a project involves other Indian Country lands (e.g., individual landowner allotments), BIA lease approval would still be required.
Preemption of State and Local Taxes under BIA’s Regulations BIA’s leasing regulations also address taxes, stating that (1) an “Indian tribe with jurisdiction” may assess taxes on lessees of trust or restricted lands and (2) “[s]ubject only to applicable Federal law,” state and local governments may not tax lessees of trust or restricted lands.19 In addition to taxes, these provisions cover fees, assessments, levies, and other charges on permanent improvements on trust or restricted lands, activities of lessees of trust or restricted lands, and leasehold possessory interests.20 The plain language of the definition of permanent improvements in the regulations—“buildings, other structures, and associated infrastructure attached to the leased premises”21—appears to cover solar and wind facility infrastructure. Existing federal tax law and case law on the applicability of state and local taxes to nontribal entities on tribal lands, however, has complicated the application of these regulations. Notably, in the preamble to BIA’s regulations, the agency listed the federal regulations that “occupy and preempt the field of Indian leasing” and analyzed the federal and tribal interests and policies at stake in leasing trust and restricted lands. It also stated that a tribe’s ability “to convey an interest in trust or restricted land arises under Federal law, not state law” and that “Federal legislation has left the state with no duties or responsibilities for such interests.” Finally, the agency concluded that state taxation undermines federal interests with respect to tribal land leases.22 Courts have, however, muddied the waters for investors and developers of projects in Indian Country. Courts in the Ninth and Eleventh Circuits, for instance, have upheld possessory interest and utility taxes on nontribal lessees of tribal lands, notwithstanding that both are expressly precluded by BIA’s regulations.23 Congress could help clear up this potentially watershed incentive for renewable energy development in Indian Country by passing legislation that codifies the state and local tax preemption in BIA’s regulations.
State Renewable Portfolio Standards Many states have enacted laws that require electric utilities to provide their customers with electricity from greenhouse gas-neutral and carbon-free resources, including wind and solar, by 2050 or earlier, and others are considering such legislation. Indeed, more than half of states have established renewable energy targets. At least some of these laws acknowledge the need for equitable distribution of the environmental and economic benefits associated with the transition to a clean energy economy. The Washington Clean Energy Transformation Act, for example, specifically recognizes the need for “equitable distribution of energy benefits and reduction of burdens to vulnerable populations and highly impacted communities,” including tribes and other marginalized communities.24 The law requires utilities to transition to carbon-free and renewable resources in a way that ensures “that all customers are benefiting from the transition to clean energy” through, among other things, “the equitable distribution of energy and nonenergy benefits,” “the reduction of burdens to vulnerable populations and highly impacted communities[,]” and “long-term and short-term public health and environmental benefits and reduction of costs and risks.”25
Environmental, Social, and Governance and Impact Investing Many of the investors who utilize environmental, social, and governance (ESG) or impact investing styles in the renewable energy sector also recognize the benefits of investment in historically
underserved communities, including those in Indian Country and otherwise involving tribal communities. Combining the relative value of renewable energy investment with the value of providing tangible financial benefits to tribes, tribal communities, and tribal businesses can significantly amplify the value of an investment in an ESG or impact portfolio.
Legal Considerations for Renewable Energy Development on Tribal Lands Tribes are Sovereign Nations Native American tribes are independent sovereign governments. They can create tribal agencies to carry out tribal programs and policies and form tribal businesses to accomplish and carry out various tribal goals, such as the development of renewable energy projects. Like other sovereigns, including the federal and state governments, tribes have sovereign immunity from suit. A tribe cannot be sued in court, including tribal court, unless it waives its immunity. Tribal businesses incorporated under tribal, federal, and state law can also retain tribal sovereign immunity. In the renewable energy context, entities (both tribal and nontribal) entering into development agreements, leases, and other contracts with tribes and tribal businesses must negotiate and enter into waivers of sovereign immunity for those agreements to be enforceable. Absent a clear, express, and unequivocal waiver, a counterparty cannot enforce an agreement against a tribe. Tribes and their governmental and business entities will often waive their immunity in contracts for economic development opportunities. Each tribe of course approaches waivers differently. A tribe, for example, might require approval by the tribal council or by a popular vote of the tribe’s members. Waivers also typically include dispute resolution provisions in which the parties agree to resolve disputes through alternative dispute resolution, such as arbitration.
Tribal Jurisdiction on Tribal Lands As sovereign nations, tribes have the power to exclude nonmembers from their lands and to control economic activities on those lands. A tribe’s authority over nontribal entities doing business on reservation lands stems at least in part from this power to exclude. In Merrion v. Jicarilla Apache Tribe, for example, the U.S. Supreme Court relied on the Jicarilla Apache Tribe’s power to exclude to uphold a tribal severance tax on nontribal businesses that produced oil and gas on the tribe’s reservation under federally approved leases.26 A tribe’s jurisdiction over nontribal entities is also analyzed under the framework announced by the Supreme Court in Montana v. United States. In that case, the Supreme Court held that the Crow Nation could not regulate nonmember hunting and fishing on reservation fee lands. The Court stated that a tribe has jurisdiction over nontribal entities (1) who enter “consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements,” or (2) whose conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”27 These so-called Montana exceptions have become a primary lens through which courts analyze tribal jurisdiction over nontribal entities and individuals,28 even in cases involving nontribal activity on trust lands.29 Tribal laws that could apply to renewable energy projects and operations under either Merrion or the Montana test include (1) tribal March/April 2022 • THE FEDERAL LAWYER • 47
employment rights ordinances, known as TEROs, which are common and have job training and hiring requirements to benefit tribal communities; (2) tribal business licenses and operating permits; (3) tribal environmental and permitting laws; (4) historic and cultural preservation laws; (5) tribal taxes, including severance, business and occupation, excise, and sales taxes; and (6) tribal leasing requirements.
Federal Laws on Tribal Lands Federal laws apply on tribal lands either expressly or as laws of general applicability. Under the Supreme Court’s Tuscarora progeny, federal laws of general application—i.e., those laws that apply to all U.S. citizens and territories—may apply on tribal lands.30 While there are exceptions to this general rule, for renewable energy projects on tribal lands, various federal permitting statues apply. Those include NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, the National Historic Preservation Act, and the Clean Water Act, among others.31
State and Local Laws on Tribal Lands State and local laws may also apply to activities conducted by nontribal entities and individuals on tribal lands, unless preempted by federal law or if those laws would infringe on a tribe’s inherent sovereignty. In White Mountain Apache v. Bracker, the Supreme Court announced a balancing test for determining if state and local laws are preempted. The Bracker test requires a weighing of the tribal and federal interests, on the one hand, against the state and local interests, on the other. In Bracker, the Court held that Arizona could not require a nontribal logging company operating on tribal and BIA roads within a reservation to pay state motor carrier license and use fuel taxes.32 A few years later, in New Mexico v. Mescalero Apache Tribe, the Court held that New Mexico could not require non-Indians to comply with New Mexico’s hunting and fishing laws on the reservation where the tribe, in coordination with the federal government, had enacted its own comprehensive hunting and fishing laws.33 Determining the applicability of state or local law in a particular scenario will require a review and analysis of applicable tribal law and interests, BIA’s leasing regulations and other applicable federal law and interests, the state or local interests, and court decisions addressing the particular law and application of it in context.
Ownership and Deal Structures for Projects on Tribal Lands In addition to the legal considerations discussed above, tribes and their development partners have a number of deal options available to them. Tribes are dynamic political and business entities. They consist of tribal governments, agencies, and other tribal entities, such as tribally charted corporations under tribal, federal, and/or state law. Any or all of these tribal entities can be involved in the development, ownership, and operation of renewable energy projects on tribal lands. They can serve as landlords under federal leasing regulations as well as developers, contractors, owners, operators, utilities, and offtakers. Nontribal parties can also serve as project developers, owners, operators, contractors, investors, financiers, utilities, and offtakers. Tribes and their nontribal partners can also form JVs or enter into other arrangements depending on the needs of the particular project and tribe.
Renewable Energy Project Financing on Tribal Lands Financing renewable energy facilities in Indian Country is generally more complicated than financing facilities that are outside Indian 48 • THE FEDERAL LAWYER • March/April 2022
Country. All the traditional financing sources (e.g., equity, debt, tax equity) are available to fund renewable projects on tribal lands. However, there are unique financing considerations specific to tribes and tribal entities. Renewable energy installations may be built and operated by tribes and tribal entities. In those cases, the emphasis will be on whether the borrower is creditworthy and what rights it can agree to surrender to a lender. This evaluation is complicated by the fact that tribes are sovereign entities and must be comfortable with waiving their sovereignty, as discussed above. In addition, since tribes cannot pledge trust or restricted lands in the traditional sense, lenders or equity investors must be comfortable with financing the facility only as well as their rights to access it, in case the facility must be seized. Financing renewable facilities that will not be wholly owned by a tribe or tribal entity can be even more challenging. In addition to the complications with ground leases mentioned previously, under the most commonly used financing structures, it is difficult for a tribe or tribal entity to own any portion of the facility or have a right to acquire the facility other than for fair market value. Even then, the tribe or tribal entity will generally be able to exercise an option to acquire the facility only after any U.S. federal income tax credits and accelerated depreciation have expired. This is all because tribes and tribal entities are not subject to U.S. federal income tax. Finally, as discussed above, there is still some question regarding the extent to which state and local governments may tax renewable energy facilities installed on trust land but not owned by a tribe or tribal entity. There is reason to be hopeful, however. Not only has recent interest in ESG and impact investing led to more investors searching for investment in renewable energy facilities in Indian Country, but Congress is also actively working on increasing the opportunities for tribes. For example, a bill was recently introduced in the U.S. Senate aimed at improving access to credit, capital, and financial services for Native Americans. A senate bill also recently passed to committee that would set up an “Office of Indian Affairs” within the Small Business Administration. In addition, the Build Back Better Act would create an opportunity for tribes and tribal entities to own equity in renewable energy facilities that are financed with tax equity and claim the U.S. federal income tax credit through a “direct pay” mechanism. These initiatives could help tribes and tribal businesses access capital on favorable terms and increase investment in Indian Country.
The Future of Renewable Energy on Tribal Lands Renewable energy projects, particularly installed solar and wind, have expanded rapidly in recent years. Tribal lands across the United States offer an abundance of potential renewable energy resources, and therefore, tremendous opportunity for tribes and tribal communities as well as nontribal developers, investors, and offtakers. Despite the impressive resource and potential, however, relatively few utility-scale renewable projects have been completed on tribal lands. This landscape is changing and seems poised for even more change. Now, more than ever, tribal governments are looking to maximize renewable energy development as a means to strengthen tribal communities and institutions, promote self-determination, aid in economic development strategies, and align energy development prospects with tribal interests in sustainability and environmental protection. Renewable energy developers, investors, and offtakers, guided by emerging principles like ESG criteria, are also increasingly looking to renewable energy and partnerships with tribes. The feder-
al government is also doing its part—but can and should do more— to incentivize and reduce the regulatory and tax burdens associated with developing on tribal lands held in trust by the United States. To make the most of these resources for tribes and nontribal parties in the clean energy transition, developers, investors, and offtakers must consider and implement the best strategies for navigating the unique regulatory framework applicable to tribal lands and the potential deal structures, including partnerships with tribes, tribal land leases, and other investment and contractual structures and incentives. By all metrics, the future looks bright for renewable energy development on tribal lands.
Ben Mayer is a partner at K&L Gates. He represents clients in negotiations, transactions, and partnerships with tribes, including the development of renewable energy projects. Mayer also counsels clients on environmental and utility laws and regulations. Endre Szalay is an associate at K&L Gates. With an emphasis on renewable energy development, he advises clients on complex issues involving environmental review and permitting, cultural resources, and federal Indian law. Elizabeth Crouse provides business-focused solutions for federal, state, and international tax problems in a variety of transactions and investment structures. She has particular experience assisting investor, developer, and operator clients in the renewable energy and carbon capture industries. Bart Freedman is a partner at K&L Gates. His practice encompasses federal Indian law, a broad range of environmental and business litigation in federal and state courts, alternative dispute resolution, and eminent domain advice.
Endnotes U.S. Dep’t of Energy, DOE Indian Energy Program Overview (Nov. 10, 2018), https://www.energy.gov/sites/prod/ files/2018/12/f58/1-indian-energy-overview.pdf. 2 Anelia Milbrandt, et al., Techno-Economic Renewable Energy Potential on Tribal Land ( July 2018), https://www.nrel.gov/docs/ fy18osti/70807.pdf. 3 U.S. Dep’t of Energy, Office of Indian Energy, Utility-Scale Solar PV (within tribes), https://maps.nrel.gov/tribal-energy-atlas/?aL=urh vHj%255Bv%255D%3Dt%26x4azd8%255Bv%255D%3Dt%26x4azd8 %255Bd%255D%3D1&bL=clight&cE=0&lR=0&mC=43.548548110 91286%2C-67.1484375&zL=4 (last visited Jan. 7, 2022). 4 U.S. Dep’t of Energy, Office of Indian Energy, Utility-Scale Wind (within tribes), https://maps.nrel.gov/tribal-energy-atlas/?aL=urhv Hj%255Bv%255D%3Dt%26lZyCHI%255Bv%255D%3Dt%26lZyCHI %255Bd%255D%3D1&bL=clight&cE=0&lR=0&mC=43.548548110 91286%2C-67.1484375&zL=4 (last visited Jan. 7, 2022). 5 Navajo Nation, Off. of the President & Vice President, Navajo Sunrise Proclamation (2019), https://www.opvp.navajo-nsn.gov/ Portals/0/Files/PROCLAMATION/Navajo%20Hayoolkaal%20 Declaration.pdf. 6 Johnnye Lewis et al., Mining and Environmental Health Disparities 1
in Native American Communities, in Current Env’t Health Reps. (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5429369/. 7 NTUA/NTUA Generation, Renewable Project Development Overview (Aug. 29, 2018), https://www.energy. gov/sites/prod/files/2018/10/f56/steiger-wapa.pdf; Abigail Sawyer, NTUA, Navajo Nation Sign Leases for 270 MW of Solar to Serve Utah, Arizona, Cal. Energy Mkts. (Apr. 16, 2021), https://www. newsdata.com/california_energy_markets/southwest/ntua-navajonation-sign-leases-for-270-mw-of-solar-to-serve-utah-arizona/ article_07271f8a-9e5b-11eb-93c4-abfe9740d898.html. 8 First Solar, Moapa Southern Paiute Solar Project, https://www. firstsolar.com/en/Resources/Projects/Moapa-Southern-PaiuteSolar-Park (last visited Jan. 7, 2022); Kelsey Misbrener, First Solar begins operation of first utility-scale solar project on tribal land, Solar Power World (Mar. 20, 2017), https://www. solarpowerworldonline.com/2017/03/moapa-southern-paiutesolar-project/. 9 Michael Maruca, From Exploitation to Equity: Building Native-Owned Renewable Energy Generation in Indian Country, 43 Wm. & Mary Envtl. L. & Pol’y Rev. 391 (2019). 10 Final Environmental Impact Statement for the Proposed Southern Bighorn Solar Projects, Clark County, Nevada, 86 Fed. Reg. 29,804 ( June 3, 2021). 11 Oceti Sakowin Power Auth., http://ospower.org/about-us/; Corporate Charter of Oceti Sakowin Power Auth., http://ospower. org/wp-content/uploads/2017/08/OSPA-Corporate-CharterRatified-as-of-July-2017-Compressed.pdf (last visited Jan. 7, 2022). 12 Apex Clean Energy, Apex and Sioux to Develop Largest U.S. Tribal Wind Projects, https://www.apexcleanenergy.com/insight/ apex-clean-energy-recognized-best-largest-pipeline-wind-projectsu-s-2/; Michael Zimmerman, Overcoming Barriers to Wind Energy Development: A Case Study Analysis of Native American Projects (2020), https://tethys.pnnl.gov/sites/default/files/publications/ Zimmerman-Thesis.pdf; GreenBiz, A just energy transition in action: Developing 1G of wind power with tribes (Mar. 5, 2021), https://www. greenbiz.com/article/just-energy-transition-action-developing-1gwind-power-tribes. 13 Inst. for Energy Econ. & Fin. Analysis, Native American tribes pushing into renewable energy development across the U.S. (Aug. 29, 2019), https://ieefa.org/native-american-tribes-pushing-intorenewable-energy-development-across-the-u-s/ (summarizing data compiled by NREL). 14 Sandia Report, Identifying Barriers and Pathways for Success for Renewable Energy Development on American Indian Lands (Nov. 2016), https://www.energy.gov/sites/default/files/2017/05/f34/ Sandia_Report_2016-311J.pdf. 15 Alexandra Klass, Public Lands and Just Energy Transitions (Mar. 18, 2020), http://progressivereform.org/cpr-blog/public-lands-andjust-energy-transitions/. 16 25 C.F.R. pt. 162 subpart E (Wind and Solar Resource Leases). 17 Id. § 162.654. 18 25 U.S.C. § 415(h); Bureau of Indian Affs., HEARTH Act of 2012, https://www.bia.gov/bia/ots/hearth (listing Tribes with leasing regulations approved by BIA). 19 25 C.F.R. § 162.017. 20 Id. 21 25 C.F.R. § 162.003. 22 Bureau of Indian Aff., Residential, Business, and Wind and Solar March/April 2022 • THE FEDERAL LAWYER • 49
Resource Leases on Indian Land, 77 Fed. Reg. 72,440, 72,447, 72,448 (Dec. 5, 2012). 23 Agua Caliente Band of Cahuilla Indians v. Riverside Cnty., Case No. ED CV 14-0007-DMG (DTBx), 2017 WL 4533698 (C.D. Cal. June 15, 2017) (upholding County’s possessory interest tax on nontribal lessees of trust and allotted lands), aff ’d, 749 F. App’x 650 (9th Cir. 2019); Seminole Tribe of Fla. v. Florida, 799 F.3d 1324 (11th Cir. 2015) (finding rental tax on nontribal lessees preempted but utility tax not preempted). 24 Wash Rev. Code § 19.405.010(6); Wash Rev. Code §19.405.020(23) (“‘Highly impacted community’ means a community designated by the department of health based on cumulative impact analyses in RCW 19.405.140 or a community located in census tracts that are fully or partially on ‘Indian country’ as defined in 18 U.S.C. Sec. 1151.”). 25 Wash Rev. Code § 19.405.040(8); Wash Rev. Code §19.405.060(1)(c)(iii); Wash Rev. Code § 19.405.060(2)(b)(iii). 26 455 U.S. 130 (1982). 27 450 U.S. 544 (1981). 28 See, e.g., United States v. Cooley, 593 U.S. ___ (2021) (holding that Crow Nation police officer had authority, under the second Montana exception, to detain and investigate non-Indian driver on U.S. Highway 212 for violations of federal and state law in order to protect the Crow community); FMC v. Shoshone-Bannock Tribes, 942 F.3d 916 (9th Cir. 2019) (holding that the Tribes had authority under both Montana exceptions to impose and enforce permit fees on FMC for the storage of hazardous substances on reservation fee lands). 29 See, e.g., Knighton v. Cedarville Rancheria of N. Paiute Indians, 922
F.3d 892, 903-04 (9th Cir. 2019) (“We now clarify Water Wheel and our subsequent cases involving tribal jurisdictional issues on tribal land do not exclude Montana as a source of tribal regulatory authority over nonmember conduct on tribal land. Rather, our caselaw states that an Indian tribe has power to regulate nonmember conduct on tribal land incident to its sovereign power to exclude nonmembers from tribal land, regardless of whether either of the Montana exceptions is satisfied. . . . Accordingly, although we conclude that the Tribe had authority to regulate Knighton’s conduct on tribal land pursuant to its sovereign exclusionary powers, a separate question remains as to whether the Tribe also had regulatory authority over Knighton’s conduct pursuant to Montana.”); Stifel, Nicolaus & Co., Inc. v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 807 F.3d 184, 207 (7th Cir. 2015) (“Montana applies regardless of whether the actions take place on fee or non-fee land. We therefore turn to the Montana exceptions.”); Reservation Tel. Co-op v. Henry, 278 F. Supp. 2d 1015, 1022 (D.N.D. 2003) (“[T]he Montana analysis and framework is applicable whether the easements are located on tribal, trust, or fee lands.”). 30 Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960). 31 Some federal laws, including the Clean Water Act, the Clean Air Act, and the Safe Drinking Water Act, authorize tribes under certain circumstances to administer and enforce those laws. So for any specific project, in addition to tribal laws, the tribe could be the primary permitting authority for certain federal laws as well. 32 448 U.S. 136 (1980). 33 462 U.S. 324 (1983).
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Securing a Permanent Homeland:
The Federal Government’s Responsibility to Provide Clean Water Access to Tribal Communities HEATHER J. TANANA
W
ater is life—critical to the health, socioeconomic, and cultural needs of any community. Every household in the United States needs and deserves access to clean, reliable, and affordable drinking water. Yet, tribal communities face high rates of water insecurity. More than a half million people—nearly 48 percent of tribal homes in Native communities across the United States—do not have access to reliable water sources, clean drinking water, or basic sanitation. In comparison, as a whole, less than 1 percent of households in the United States lack these facilities.1 This persistent problem became a matter of life or death during the COVID-19 pandemic, as the lack of running water increased the risk of transmission of the virus.2 This article addresses the lack of clean water access experienced in Indian Country today. Various challenges to water access are highlighted, followed by a discussion of the federal government’s responsibility to ensure clean water access for tribes. The article concludes by identifying federal actions to fulfill this responsibility, including the recent commitment of unprecedented funds to support tribal water infrastructure. Water Access in Indian Country Lack of water access in tribal communities can take four different but related forms: (1) lack of piped water service, (2) poor water quality, (3) deteriorating or inadequate water infrastructure, and (4) unsupported operation and maintenance (O&M). First, Native American households are 19 times more likely than white households in the United States to lack indoor plumbing with running water.3 Navajo residents, in particular, are 67 times less likely than other Americans to live with access to running water.4 In one neighborhood in Coconino County, Ariz.—an area that includes portions of five different reservations—73 percent of households lack a plumbing connection.5 These families must haul water, often from long distances and at significantly greater cost than plumbed water, to meet their basic domestic needs.
Second, substandard water quality is pervasive in Indian Country. The Hopi Tribe, which has struggled with arsenic contamination since the 1960s, estimates that approximately 75 percent of people living on Hopi land are drinking contaminated water.6 A recent study on the Crow reservation revealed that 39 percent of tribal family wells are unsafe for long-term consumption. However, faced with limited water options, 80 percent of families drink and cook with untreated well water, despite the associated health risks.7 Third, infrastructure investments have not kept up with tribal needs. Native Americans are one of the youngest and fastest growing populations. Because of deteriorating infrastructure, many tribes struggle to support their growing communities. The Colorado River Indian Tribes, among others, have water systems dating back to the late 1800s and early 1900s. Improvements and expansions are March/April 2022 • THE FEDERAL LAWYER • 53
required to ensure that water delivery and quality are not put at risk. Finally, tribes face structural challenges in supporting the O&M requirements of existing water systems.8 The Quechan Tribe has highlighted challenges supporting O&M costs to avoid disruptions to water service to their community. Their homes have clean water delivered through indoor plumbing. But to continue providing clean water, they need a reliable meter reading and billing system and a method of enforcement for nonpayment to continue these services. Supporting O&M requires capital and expertise, both of which can be challenging for tribes. Tribes cannot rely on traditional revenue streams (e.g., taxation of their lands) due to the nature of their governance. And, Indian Health Service (IHS), the only agency with authorization to support O&M,9 has never actually been funded to do so. As a result, tribes must navigate limited federal technical assistance programs for operator training and financial assistance. When O&M funding is inadequate or unobtainable, the water system inevitably deteriorates. Overcoming all four challenges is necessary to achieve and maintain water security.
The Right to Clean Water Many other countries, along with the United Nations, have recognized the urgency of water access by passing laws or resolutions on the basic human right to clean water and sanitation. In the United States, the federal government has treaty and trust responsibilities to ensure clean and safe water access to tribal communities. Each tribe has its own unique history, traditions, and community. However, many tribes share common experiences stemming from colonization, including forced removal from their homelands, treaty-making with the federal government, and establishment of reservations. When the United States established reservations, it did so to provide a permanent home for each tribe that would support their people forever. “The key to carrying out that promise is water—a fact that the tribal leadership has always known but which the United States has sometimes forgotten.”10 Treaties did not always specifically address the water needs of reservations. However, in Winters v. United States,11 the U.S. Supreme Court held that tribes have a reserved right to water sufficient to fulfill the purposes of their reservation, including the residential development, economic development, and governmental needs of the tribe. Moreover, the federal government has an underlying trust responsibility “to protect Tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal Indian law.”12 The trust responsibility is different from statutory or regulatory mandates, which the U.S. Supreme Court recognized when it noted that “[i]f the fiduciary duty applied to nothing more than the activities already controlled by other specific legal duties, it would serve no purpose.”13 While courts have previously reviewed the federal government’s trust responsibility related to drinking water on reservations, these analyses have generally focused on drinking water quality but not broad access to clean water.14 Nonetheless, it is undisputed that treaties, executive orders, and other documents that established reservations promised a permanent homeland for tribes, and access to clean and safe water is an integral part of any homeland. Under federal common law, courts have “long construed treaties between the United States and Indian Tribes in favor of the Indians.”15 In addition to this canon of federal Indian law, many treaties specifically state that their provisions must be liberally construed. “For decades, experts have documented how 54 • THE FEDERAL LAWYER • March/April 2022
lack of access to clean water and sanitation in Indian country contributes to high rates of morbidity and mortality among American Indians and Alaska Natives.”16 The promises expressed in the treaties between the United States and tribes can reasonably be interpreted to require the federal government to ensure and fund access to clean water on reservations. In particular, treaty language requiring the federal government to create laws that ensure the permanent “prosperity” and “happiness” of the tribes should be interpreted to include water security.17 Failure to provide basic water service cannot be reconciled with the general trust responsibility of ensuring the survival and welfare of tribes and their communities. The federal government also has a treaty and trust responsibility “to ensure the highest possible health status for Indians” and to provide healthcare services to tribes.18 Notwithstanding the strong connection between water access and public health, the federal government has contributed to health disparities and other inequities in tribal communities by prioritizing non-tribal water projects in the past. A century ago, the U.S. government invested in modern water and sanitation systems as a means of eradicating waterborne diseases. But government investment in water infrastructure over the past century has largely bypassed reservations.19 “Ensuring access to water and sanitation for all people is not simply a question of water resources, technology and infrastructure, but also of setting priorities, tackling poverty and inequality, addressing societal power imbalances, and above all, political will.”20 Recent actions by the Biden administration and Congress indicate that we are entering a new era of federal–tribal relations—one where the federal government delivers on its promises. Achieving universal access to clean and safe water aligns with each of the four priorities of the current administration: COVID-19; Economic Recovery; Racial Equity; and Climate Change.21 First, clean water access in Indian Country is necessary to follow the sanitation procedures recommended by health professionals to protect Native Americans from COVID-19 and other public health threats. Building water infrastructure in Indian Country will also promote economic recovery and address income injustice by creating jobs and resilient communities at the same time. Racial equity will also improve as we remove barriers that prevent Native communities from thriving and reduce the existing disparity in public health, educational attainment, and economic prosperity. Finally, universal clean water access will help create more resilient water systems on reservations to withstand the impacts of climate change.
Fulfilling the Federal Responsibility to Provide Clean Water Access At least seven different federal agencies with over 20 different programs provide some type of funding for tribal drinking water or sanitation projects.22 Each agency has unique strengths and challenges in effectively implementing its programs to address some or all of the four forms of lack of access to clean drinking water in Indian Country. Every program provides different types of assistance and levels of funding, and each has its own eligibility, cost share, and application requirements.23 The IHS is responsible for delivering healthcare services to tribes and, through its Sanitation Facilities Construction Program, provides Native American homes with domestic water supply and wastewater facilities. The Environmental Protection Agency ensures that drinking water is potable and assists communities in constructing and repairing water and wastewater systems through its Drinking Wa-
ter Infrastructure Grants–Tribal Set-Aside (DWIG–TSA) and Clean Water Indian Set-Aside (CWISA) programs. The U.S. Department of Agriculture’s Rural Development Division seeks to improve the economy and quality of life for rural Americans, in part through its water-focused programs. The Department of Agriculture’s section 306(c) and 306(d) programs provide funding for the construction of drinking water and wastewater systems in tribal communities. The Bureau of Reclamation helps the western states meet water needs and balance multiple competing uses of water. The Bureau of Reclamation is integrally involved in the implementation of tribal water rights settlements, funds a tribal technical assistance program, and, through its Rural Water Supply program, has constructed water projects that serve tribal communities. The mission of the Bureau of Indian Affairs is to enhance the quality of life, promote economic opportunity, and carry out the responsibility to protect and improve the trust assets of tribes.24 The Bureau of Indian Affairs has been a critical component in tribal water rights settlements and adjudications that frequently result in construction of domestic water infrastructure, and it provides economic development and workforce training as well as technical support. Limited historical funding for these programs has forced responsible agencies to prioritize and circumscribe the projects and efforts to which their funding has been directed. However, with the passage of the Infrastructure Investment and Jobs Act and other legislation, these limitations are no longer necessary or appropriate. The Infrastructure Investment and Jobs Act provided unprecedented funding for infrastructure in Indian Country, creating a historic opportunity for the federal government to more fully realize its responsibility to provide clean drinking water and sanitation services to Native Americans. For the first time since the Sanitation Facilities Construction Program was created in 1959, Congress fully funded the program at $3.5 billion.25 The Environmental Protection Agency’s tribal set-asides for clean water and safe drinking water received approximately $700 million that can benefit tribes ($234 million each for CWISA and DWIG-TSA, as well as funding for the Indian Reservation Drinking Water Program and Operational Sustainability of Small Public Water Systems).26 BOR also received $2.5 billion to complete tribal water right settlements that already have been authorized by Congress and frequently include funding for tribal water infrastructure, in addition to funding for other water access related projects, such as water storage, recycling, and reuse.27 The administration has advocated for a “whole of government” approach to other issues in which the responsibilities of several departments and agencies overlap, including combating climate change and protecting public and environmental health.28 The same type of approach is warranted to ensure that the newly appropriated funds get to the tribal communities they are meant to serve. To deploy this intentional and coordinated approach, the Biden administration must (1) formally establish the goal of achieving universal clean water access for tribes; (2) direct federal agencies to work together, pooling their resources and optimizing their expertise; and (3) task an interagency working group to carry out the mission by establishing a process that allows agencies to draw on their strengths, facilitates agency collaboration, and holds agency leadership accountable for progress toward the ultimate goal. Successful implementation of a whole of government approach is critical to providing adequate drinking water and sanitation to tribes. Additionally, there are changes that each agency can make to its existing drinking water
and sanitation programs to make these programs more accessible to tribes and more effective in their implementation. For example, IHS could revisit its definition of an “Indian community” to cover all base infrastructure within a reservation, including schools and hospitals, and to better account for and support future tribal growth.29 Now is the time to get all American citizens access to clean water. Native Americans must not be left behind again. This will ensure that the inequitable impact we’ve seen during the COVID-19 pandemic will not be repeated in the future. This article is based on the work of the Water & Tribes Initiative–Universal Access to Clean Water for Tribal Communities, available at https://tribalcleanwater.org. Contributing authors to the Water & Tribes Initiative reports include Bidtah Becker (California Environmental Protection Agency); Anne Castle (Getches-Wilkinson Center/University of Colorado); Ana Olaya (CK Blueshift, LLC); Jaime Garcia (Getches-Wilkinson Center/University of Colorado); and Chelsea Colwyn (Getches-Wilkinson Center /University of Colorado).
Heather Tanana is an assistant research professor at the S.J. Quinney College of Law, University of Utah, and a citizen of the Navajo Nation. Tanana led the research team for the Water & Tribes Initiative–Universal Access to Clean Water for Tribal Communities. © 2022 Heather Tanana. All rights reserved.
Endnotes Democratic Staff of the H. Comm. on Nat. Res., Water Delayed Is Water Denied (Oct. 10, 2016), https:// naturalresources.house.gov/imo/media/doc/House%20Water%20 Report_FINAL.pdf. 2 Desi Rodriguez-Lonebear et al., American Indian Reservations and COVID-19: Correlates of Early Infection Rates in the Pandemic, 26 J. Pub. Health Mgmt. Prac. 371 (2020). 3 Dig Deep & U.S. Water All., Closing the Water Access Gap in the United States: A National Action Plan (2019), http:// uswateralliance.org/sites/uswateralliance.org/files/publications/ Closing%20the%20Water%20Access%20Gap%20in%20the%20 United%20States_DIGITAL.pdf. 4 DigDeep, About the Navajo Water Project, https://www. navajowaterproject.org/project-specifics (last visited Feb. 15, 2022) 5 Shiloh Deitz & Katie Meehan, Plumbing Poverty: Mapping Hot Spots of Racial and Geographic Inequality in U.S. Household Water Insecurity, 109 Annals Am. Ass’n Geographers 1 (2019). 6 U.S. House of Representatives Comm. on Appropriations, Subcomm. on Interior, Environment, & Related Agencies, 115th Cong.____ (Mar. 7, 2019) (testimony of Timothy Nuvangyaoma, Chairman, Hopi Tribe), https://www.congress.gov/116/ meeting/house/109008/witnesses/HHRG-116-AP06-WstateNuvangyaomaT-20190307.pdf; Rowan Lynam, “It Eats You.” Cancer-causing Arsenic Plagues Hopi Tribe, The Progressive Magazine (Apr. 28, 2018), https://progressive.org/dispatches/iteats-you-cancer-causing-arsenic-plagues-hopi-Tribe-180428/; Mary Katherine Wildeman, Arsenic in Hopis’ Water Twice the EPA Limit, and It May be Making Them Sick, The Republic (Aug. 24, 2016). 7 Christine Martin et al., Our Relationship to Water and Experience of Water Insecurity among Apsáalooke (Crow Indian) People, Montana, 18 Int. J. Env’t. Res. Pub. Health 582 (2021). 1
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See U.S. Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership Tribal Water Study, Chapter 7 at 11-13 (2018) (discussing tribal O&M challenges, including financial support). 9 Pub. L. No. 86-171 § 7; Pub. L. No. 94-437 §§ 302(b)(2) and 302(e)(1). 10 Colorado Ute Settlement Act Amendments of 1998: Hearing on H.R. 3478 Before the U.S. H. Natural Res. Comm. ( July 28, 1998) (testimony of Clements Frost, Chairman, Southern Ute Indian Tribe). 11 207 U.S. 564 (1908). 12 Bureau of Indian Affairs, What is the Federal Indian Trust Responsibility?, https://www.bia.gov/FAQs/index.htm (last visited Jan. 6, 2022). See also United States v. Kagama, 118 U.S. 375, 384 (1886) (“From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.”). 13 Varity Corp. v. Howe, 516 U.S. 489, 504 (1996). 14 See, e.g., Hopi Tribe v. United States, 782 F.3d 662, 669-71 (Fed. Cir. 2015) 15 United States v. Washington, 853 F.3d 946, 963 (9th Cir. 2017), aff ’d by an equally divided court, 138 S. Ct. 1832 (2018). 16 Water Delayed Is Water Denied, supra note 2, at 3; T.K. Thomas et al., Impact of Providing In-Home Water Service on the Rates of Infectious Diseases: Results from Four Communities in Western Alaska, 14 J. Water Health 132 (2016). 17 See, e.g., Treaty with the Navaho Art. IX, , 9 Stat. 974 (1849). 18 Indian Health Care Improvement Act, Pub. L. No. 94-437 § 2, 601. 19 U.S. House of Representatives Comm. on Appropriations, Subcomm. on Energy and Water Dev., 116th Cong. ______ (Mar. 10, 2021) (testimony of Bidtah Becker, Navajo Nation). 20 U.N., Outcome of the International Experts’ Meeting on the Right to Water, Paris, France, July 7-8, 2009, at 2. 21 The Biden-Harris Admin., Immediate Priorities, https://www. 8
whitehouse.gov/priorities/ (last visited Jan. 6, 2022). 22 Water& Tribes Initiative, Achieving Universal Access to Clean Water for Tribal Communities, Appendix D, List of Existing Federal Programs and Authorities, https://tribalcleanwater. org/wp-content/uploads/2021/09/WTI-Full-Report-4.20.pdf; U.S. Gov’t Accountability Off., Drinking Water and Wastewater Infrastructure (May 2018), https://www.gao. gov/assets/700/692322.pdf. 23 Id. 24 Bureau of Indian Affairs, Mission Statement, https://www.bia. gov/bia (last visited Jan. 6, 2022). 25 Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021). 26 Id. at §§ 50102, 50106, 50111, 50210 (codified as amended at 42 U.S.C. §§ 300j-12, 300j-19f, 300j-3c and 33 U.S.C. §§ 1383, 1387). 27 Id. at § 70101 (codified as amended at 25 U.S.C. § 149). 28 Tackling the Climate Crisis at Home and Abroad, Proclamation No. 14,008, 86 Fed. Reg. 7,619 ( Jan. 27, 2021); Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, Proclamation No. 13,990, 86 Fed. Reg. 7,037 ( Jan. 20, 2021). 29 IHS is authorized to construct, improve, and maintain essential sanitation facilities, including domestic and community water supplies and facilities, for “Indian homes, communities, and lands.” Pub. L. No. 94-437, 90 Stat. 400 (1976). IHS does not have any agency regulations defining an Indian community. However, current agency interpretation limits support for projects that service non-Natives or support broader economic growth within the tribal community. To proceed with such projects, the tribe generally must procure additional funding to cover the ineligible costs, which is a cumbersome process, if not entirely infeasible.
The Problem of Double-Taxation in Indian Country continued from page 40 La. Public Service Comm’n v. Fed. Comm. Comm’n, 476 U.S. 355, 368-369 (1986). 84 Altria Grp., Inc. v. Good, 555 U.S. 70 (2008). 85 Maryland v. Louisiana, 451 U.S. 725, 746 (1981). 86 Proposed Rulemaking, supra note 26; Indian Trader Data, supra note 26. 87 See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). 88 Proposed Rulemaking, supra note 26; Indian Trader Data, supra note 14. 89 As further noted in the Pokagon comments: [In order] to counteract the Supreme Court’s apparent devaluing of the preemptive weight of the Indian Trader [Acts] and the Regulation, the Regulations should be updated to include provisions regarding state and local taxation similar to those contained in 25 C.F.R. Part 162 (Leasing); and 25 C.F.R. Part 169 (Rights of Way). See 25 C.F.R. 162.0017; 25 C.F.R. 169.11. These provisions, which were structured in part based upon Warren and Central Machinery, have proven valuable in helping to insulate Indian Country economic activity from state and local taxation. See Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324 (11th Cir. 2015) (noting: “[T]he extensive and exclusive regulation of Indian leasing – as evidenced by federal law and regulations – precludes the imposition of state [rental] taxes 83
56 • THE FEDERAL LAWYER • March/April 2022
on that activity.”). See Indian Trader Data, supra note 14. As the Lummi comments noted, “Congress has never consented to the broad authority of outside governments to regulate trade in Indian Country and the Department should revise Part 140 to conform with the Constitution and Congressional authorization,” Proposed Rulemaking, supra note 26; Indian Trader Data, supra note 14.
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58 • THE FEDERAL LAWYER • March/April 2022
Keeping Your Opponent’s Expert Witness in Their Lane:
Guardrails for a Would-Be “Vehicle to Present a Factual Narrative” LUCAS A. WESTBY AND PETER L. MUNK
Y
our opponent’s expert report has just landed in your inbox. The expert’s credentials are solid, but you believe the facts are in your favor. You have already retained your rebuttal expert and are well prepared to dissect the flawed opinions you anticipate in the report. Off the bat, you notice that several of the expert’s conclusions are supported by unflattering internal email correspondence that your client produced. You expected that. But something else sticks out to you: the expert does not simply recite the emails—he applies his own interpretation and makes his own inferences about your client’s motives and subjective intent. Not surprisingly, the expert interprets every email in lockstep with your opponent’s theory of the case, making his factual narrative strikingly similar to your opponent’s pleadings. You continue reading, and you have another thought: what, exactly, do the narrative facts highlighted by the expert have to do with his opinions? The expert also appears to rely heavily on witness deposition testimony. Isn’t the source of the expert’s understanding and conclusions expected to testify himself? As you are finishing the report—which carefully details a subject you know borders on incomprehensible for a lay juror—you are concerned that the expert’s credentials may overshadow those flaws in the minds of the jury.
“They can’t do that,” you recognize, thinking again about the outsized influence this credentialed expert’s opinions could have on the jury. Expert witnesses can certainly articulate the factual bases for their opinions, but they cross a line when they try to interpret communications and ascribe subjective intent to their authors. Right? You know the other side will argue that their hired gun is simply recounting the facts on which they rely, which is not just allowed but required. You are confident the expert has crossed lines, but why and how do you address it? What principles should you consider to combat their improper factual narrative? What arguments must you marshal to keep the expert in their lane? Many courts have observed that the very nature of expert witness testimony and opinions—often composed of impressive-sounding jargon on intimidating topics—can unduly influence lay juries if not kept within proper bounds. Parties on both sides routinely attempt to leverage the aura of “expertise” by attempting to expand matters on which their expert witness can opine. The Federal Rules of Evidence provide limits, of course, but the case law can be inconsistent, and application of those theoretically straightforward rules can be as complicated as the testimony itself. As highlighted in the example that begins this article, practitioners must be able to distinguish when an expert is a “vehicle to present an improper factual narrative,” as opposed to an expert witness who is appropriately “articulat[ing] the factual underpinning on which she bases her opinion.” This article uses real-world examples March/April 2022 • THE FEDERAL LAWYER • 59
from federal case law to illustrate how district court judges and other lawyers have employed the Federal Rules of Evidence, common law, and common sense to deal with straying expert witnesses. The goal is to help lawyers determine when their opponents’ experts are attempting to weaponize the facts, and to arm the reader with principles to help combat experts’ improper use of narrative testimony.
Some Throat Clearing: The Ground Rules for Expert Testimony Federal Rules of Evidence 702 and 703 Experienced lawyers know these standards by heart, but there is no getting around the stuffy statutory preliminaries (we’ll be quick). Under Federal Rule of Evidence (“Rule”) 702, expert testimony must meet the following requirements: • The expert must be appropriately qualified. • The expert’s scientific, technical, or other specialized knowledge must help the trier of fact to either Understand the evidence or Determine a fact in issue. • The expert’s testimony must be based on sufficient facts or data. • The expert’s testimony must be the product of reliable principles and methods. • The expert must reliably apply those principles and methods to the facts.1 Also relevant to this article is Rule 703, which explains that experts can reasonably rely on inadmissible facts or data to form an opinion if experts in their field would do the same.
Daubert and the “Aura” of Experts Approaching its third decade, Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 (and its now sprawling and sometimes unwieldy progeny) designates district courts as “gatekeepers” of Rule 702 to ensure that proposed expert testimony is both relevant and reliable.3 The proponent of the expert carries the burden of proving admissibility, which it must do by a preponderance of the evidence.4,5 This standard is meant to ensure that jurors are presented with only relevant and reliable evidence. This is important given lay persons’ understandable impulse to defer to the judgment and opinions of those purporting to be “experts” on specialized topics. (If your annual tangle with TurboTax leaves you bewildered and stressed, why wouldn’t you listen to the credentialed tax expert in your midst as he opines on plaintiff ’s tax loss carryforward?) Courts describe this phenomenon in a variety of ways, including an “aura of authority [that] experts often exude, which can lead juries to give more weight to their testimony.”6 This creates “an inherent danger with expert testimony unduly biasing the jury because of its aura of special reliability and trust.”7 The more “impressive” the expert’s qualifications, the greater the risk of undue influence.8 Courts warn “that due to the difficulty of evaluating their testimony, expert witnesses have the potential to be both powerful and quite misleading.”9 As a result, expert testimony may well have a “a greater potential to mislead than to enlighten.”10 This is why keeping experts in their lanes is so vitally important.
Keeping Experts in Their Lanes The standards detailed above create pitfalls for expert testimony that attentive lawyers routinely litigate. This article does not address every pitfall, but instead focuses on expert testimony that attempts to 60 • THE FEDERAL LAWYER • March/April 2022
improperly leverage the underlying facts to help tell their side’s story. There is a “you know it when you see it” quality to the inadmissible “narrative” expert testimony discussed in this article. But experienced litigators can readily identify certain warning signs, which include an expert (1) constructing a self-serving set of “facts” based on record evidence outside a witness’s expertise or personal knowledge, (2) testifying about someone else’s subjective intent, and (3) acting as a “mouthpiece” for non-testifying witnesses. By employing one or more of these tactics, experts try to be the (to borrow a baseball term) cleanup hitter for their side, capable of driving home facts and contentions that lawyers could not otherwise establish through admissible evidence. Concerningly, they do so by leveraging the full weight of their substantial authority as experts. Much of what follows is common-sense lawyering, but often overlooked in the rush to flip to the back of a new expert report and dive headlong into the technical and scientific aspects of the expert’s ultimate opinions. It is well worth an advocate’s time to look closely at the factual narrative that the expert relies on, which often contains spin and self-serving interpretations of otherwise innocuous (or even irrelevant) documents that could sway a lay jury.
Factual Narrative Outside the Scope of the Expert’s Expertise An expert can’t be “a vehicle for factual narrative” or a “conduit for a factual narrative.” That is the job of percipient witnesses or for attorney summation of the evidence in opening and closing statements. As one district court put it: “Mere narration fails to fulfill Daubert’s most basic requirements” because “[a]cting simply as a narrator of the facts does not convey opinions based on an expert’s knowledge and expertise; nor is such a narration traceable to a reliable methodology.”11 Stated another way, an expert is not an “all-purpose ‘color commentator’ on the evidence,” nor is he allowed to “interpret” the evidentiary record for the jury outside the bounds of his expertise.12 It is inappropriate for an expert to cobble together a party’s preferred story from cherry-picked parts of the record. 13 But isn’t an expert required to explain the factual basis for his opinions? Case law is full of examples of courts navigating the sometimes hazy distinction between improper “factual narrative” the requirement that experts explain the facts that undergird their opinions.14 Indeed, absent “the necessary factual underpinning for his opinions,” an expert’s report might run afoul of Federal Rule of Civil Procedure 26(a) (2)(B)(ii), which requires disclosure of the “facts or data considered by the [expert] witness.”15 And, as your opponent will undoubtedly argue, it is ultimately the jury’s role to determine the “soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis.”16 How does an expert or lawyer navigate this? One court put it this way: “experts may cite facts and case documents to explain how they support an opinion,” but “an expert goes too far if she characterizes the document or makes non-technical inferences from the facts for the purpose of having the fact finder accept her interpretation as fact.”17 Real-world examples from federal case law help explain how this plays out in practice: In Scentsational Technologies, LLC v. Pepsi, Inc., the plaintiff offered a purported expert for the “relatively narrow area” of “microencapsulation in aroma packaging.”18 Following in-depth review of the expert’s opinions and conclusions, the district court excluded much of her testimony as “inadmissible factual narrative—and
speculation.”19 A nonexhaustive list of the expert’s “improper factual narrative” testimony included the following: • C omment on plaintiff ’s security measures to protect trade secrets. • Claim that certain individuals and partners were given limited access to trade secrets. • Contention that plaintiff spent significant sums developing its trade secrets. • Contention that defendants had shown strong “interest” in the technology dating to 2001. • Claim there was strong “consumer interest” in plaintiff ’s technology. • Allegation that one defendant “turned to” plaintiff for expertise. • Claim that plaintiff was “foregoing other potential opportunities” by operating under an exclusivity agreement with a defendant. • Characterization of verbal and written communications to show a defendant’s reason for canceling its projects with plaintiff.20 These topics are not necessarily inappropriate for an expert with the appropriate qualifications, but the expert’s conclusions went “well beyond her packaging expertise.”21 In Tourre, the Securities and Exchange Commission retained an expert to opine on a specific type of synthetic collateralized debt obligation, referred to as ABACUS 2007-AC1 (“AC1”), and related matters.22 The district court found aspects of the expert’s testimony “problematic and not admissible” because they would make him a “conduit for a factual narrative.”23 Opinions that would “invade the province of the jury by ‘finding facts’ that are in contention in this case,” included the expert’s testimony of the following: • D efendant Tourre was “primarily responsible” for the AC1 transaction. • A third-party’s role was “undisclosed” in the offering material. • The same third party “actively” participated in the collateral selection process, and related matters. • Certain marketing materials were “misleading.”24 In this manner, the court “limited [the expert’s] testimony to industry custom and practice and general descriptions” of the products and concepts, halting any presumption he would “be a narrator of the facts.”25 Be aware, however, that other courts apply these principles differently, placing more confidence in juries’ capacity to understand that an expert opinion may depend on a factual predicate that might not be true. In Duling v. Domino’s Pizza, LLC, defendants complained that plaintiffs’ experts were “articulating Plaintiffs’ version of the disputed facts in a manner that would appear to ‘resolve several factual issues.’”26 The court rejected this argument, reasoning that “there is no risk of the jury failing to understand [the experts’] opinions are based on plaintiffs’ version of the disputed facts.”27 According to the court, the experts “provide opinions based upon facts that could be accepted by the jury,” and opinions “based on a version of ‘disputed’ rather than ‘established’ facts can be properly brought to the jury’s attention by Defendants thorough cross-examination.”28 The court reiterated that there was “no risk that the jury in this case will fail to understand [the experts’] opinions are based on a version of facts that the parties dispute.”29
Similarly, in Pledger v. Reliance Trust Company, the defendant claimed that plaintiff ’s expert’s opinions “largely consist of a factual narrative concerning the actions [Reliance] allegedly took (or did not take).”30 The court agreed that expert opinions can’t simply be “a recitation of historical facts based on information conveyed by others,” but found that the expert’s testimony passed muster because he “does not merely recite the facts upon which Plaintiffs rely; instead [he] explains the facts upon which [his] opinions are based.”31 The court then quoted Duling for the proposition that cross-examination—rather than exclusion—was the appropriate method for testing the facts upon which the expert rested his case.32 Finally, in Scott v. Chipotle Mexican Grill, Inc., defendant Chipotle sought to exclude portions of the expert’s testimony as “a biased factual summary of the evidence provided to him by Plaintiffs’ counsel in an effort to construct a narrative that comports with Plaintiffs’ theories.”33 The expert cited to and relied upon facts in evidence, but the court found he did so in support of the specific “role” he was retained to fill.34 Laying the requisite foundation required him to restate facts in evidence.35 Importantly, the expert’s specialized knowledge encompassed the factual narrative he recited, as he drew conclusions about Chipotle’s historical growth and the costs associated with its business practices” On this ground, the court denied Chipotle’s motion to exclude.36 To summarize, trial lawyers must distinguish between fact and advocacy masquerading as fact. Ask yourself whether the facts that the expert recites have anything to do with his opinions, or if is he just another conduit for the opposition’s “narrative” or “story.” If the expert is reciting or interpreting evidence, question whether the evidence is germane to his conclusions. Qualification to opine on a complex or highly specialized subject doesn’t qualify the expert to read ambiguous emails and interpret them one way or another. As demonstrated in Scott v. Chipotle, there must be a specific purpose behind any factual narrative provided by the expert.37 Even where courts defer to a jury’s ability to resolve factual issues, spin or self-serving amplification of the facts usually won’t be allowed.38 If you suspect your assigned judge may be inclined to allow the testimony and let the jury sort it out, it is important to explain how your client will be prejudiced if the testimony is not excluded.
Testimony About Subjective Intent or State of Mind Relatedly, experts are dangerously “over their skis” when they make “[i]nferences about the intent or motive of parties.”39 Unless the expert is specifically retained to opine on a topic related to subjective intent (e.g., psychiatrists or other mental health professionals), it is a red flag to pass judgment on what might have been going on inside someone’s head. When reviewing the factual narrative, look for instances when the expert characterizes the motives or subjective intent of a party. A proffered expert on forensic accounting or thoracic surgery may have a lengthy curriculum vitae, but “mind-reader” is unlikely to be listed among their core competencies.40 Concepts and key phrases that should set off alarm bells include what a party “knew,” “believed,” “made clear,” “considered,” or “contemplated,” whether a party was acting in “good faith” or “bad faith,” the “purpose behind” an action, or whether an action was a “scheme,” “conspiracy,” or intended to “defraud.” That is not to say that no experts could ever opine on such matters, but such declarations must be within their expertise. Returning to Scentsational Technologies, LLC v. Pepsi, Inc., the March/April 2022 • THE FEDERAL LAWYER • 61
district court took specific exception to the expert’s testimony about the defendants’ “actions and motivations.”41 The court found that the expert “purports to assign motives and draw conclusions wholly outside her expertise.”42 Examples of overreaching expert testimony include the following: • C laiming that a defendant “did not enter into the agreements in good faith.” • Claiming that a defendant entered into agreements “to get information that would allow [the defendant] to commercialize the technology ‘in-house.’” • Claiming, with no reference to a reliable methodology, that “[e]motions were undoubtedly running high.” • Claiming that the defendant allegedly coveted plaintiff ’s technology. • Claiming that the defendant “knew of ” the commercial viability of plaintiff ’s technology by 2001. • Claiming that plaintiff ’s technology was not known to the defendant, and it “desired to obtain confidential and/or trade secret information” from plaintiff because they had signed confidentiality and development agreements. • Claiming that the defendant “knew” and disseminated plaintiff ’s “process, technique and strategy.”43 The expert’s testimony would have been great for closing argument, but it was deeply problematic and was ultimately excluded as expert testimony.44 Expert witnesses are often intelligent and experienced individuals. Yet however highly they are regarded (or regard themselves), their talents do not qualify them to divine the inner thoughts of another person.
Experts Serving as a “Mouthpiece” for Non-Testifying Witnesses Is your opponent using its expert witness as a stealth vehicle for introducing otherwise inadmissible testimony from non-testifying witnesses? Experts may rely on inadmissible facts or data “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”45 But under what has been called the “mouthpiece rule,” “a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.”46 Federal district courts routinely exclude proposed expert testimony on the following grounds: • E xcluding testimony consisting “largely of quotes from newspaper articles” published at the time because the expert’s summary “would bring no specialized knowledge that might assist,” and he would be a mere “mouthpiece for hearsay” if he read the articles to the jury.47 • Excluding testimony because an expert “exceeds the bounds of Rule 703” by “narrat[ing] the views of persons whose credentials are unknown and who are not subject to deposition or cross-examination in this action.”48 • Excluding testimony about a regression analysis conducted by another expert who was not produced to testify.49 • Excluding expert reports based on the experts’ “review of secondary sources and interviews that attempt to reconstruct events about which neither has first-hand knowledge.”50 62 • THE FEDERAL LAWYER • March/April 2022
• E xcluding expert testimony based on conversations with MS-13 gang members and reading articles, because the expert “did not analyze his source materials so much as repeat their contents.”51 In contrast, one federal district court admitted an expert’s testimony because, even though the expert calculated the replacement value of a chemical plant based on interviews with employees, the expert “did more than just repeat information gleaned from external sources” by educating and guiding those employees about depreciation theory.52 Do not let Rule 703’s authorization of expert testimony based on otherwise inadmissible facts or data intimidate you from challenging expert testimony unrelated to any methodology for forming the expert’s opinion. An expert is not a catch-all vehicle for advancing a party’s narrative.
Excluding Improper Narrative Testimony We began this article with a situation you’ve likely encountered before: the opposing expert has seeded his report with self-serving factual narrative that could bias a jury if not properly excluded. The hypothetical expert has fallen into more than one trap highlighted by this article by reciting your opponent’s preferred narrative of the case, even though those facts are not germane to his conclusions; drawing inferences about your client’s motives and subjective intentions; and attempting to bat “cleanup” for your opponent by trying to introduce into evidence issues for which they otherwise could not find a testifying witness with personal knowledge. So, what do you do about it? Your first opportunity to expose an expert’s improper factual narrative will likely be at his deposition. Press the expert not just on ultimate conclusions, but also on what facts must be true to arrive at those conclusions, and his basis for those facts. Your goal will be to elicit testimony to support a motion to exclude to be filed with your motion for summary judgment, or before trial. In your briefing, it is important to specifically explain the threat of prejudice to the fact finder, lest the court determine that the jury can sort it out. Pick your spots and don’t get greedy: as the cases referenced in this article show, courts are less likely to exclude an expert witness altogether than to parse their testimony for inadmissible evidence. Be willing to narrow your motion. Finally, your chances of success increase if your own expert cannot be credibly accused of fudging the narrative in his own report. In a close case, you would like to deprive your opponent of a “what’s good for the goose” type response to your motion. Put your own best foot forward at the trial court level, as courts of appeals will review a district court’s decision on the admissibility of expert testimony for abuse of discretion.53
Conclusion Given the persuasive power of experts, limiting the scope of matters on which an expert can opine will constitute a major victory for your client. One method for doing so is to carefully scrutinize the factual narrative that an expert relies on to ensure that it is germane to his opinions and experience, does not purport to pass judgment on subjective intent, and is not an end-around to introduce otherwise inadmissible evidence beyond what is allowed under Rule 703. Keeping experts in their lane will pay significant dividends to your client, and to you as an advocate.
Lucas A. Westby is a commercial and products liability litigator who represents plaintiffs and defendants in state and federal courts across the country. He has substantial experience counseling individual and corporate clients in a variety of areas, including intellectual property, contract disputes, product liability, and cybersecurity. Peter L. Munk represents businesses and individuals in complex commercial, business, intellectual property, and employment disputes in courts and arbitrations across the country. Experienced in all facets of civil litigation and arbitration, from pre-suit through trial, Munk develops strategies to protect his clients’ rights and achieve their business objectives. © 2022 Lucas A. Westby and Peter L. Munk. All rights reserved.
Endnotes Fed. R. Evid. 702 (emphasis added). 509 U.S. 579, 591 (1993). 3 See United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (finding that Daubert observed that Rule 702 “imposes a ‘gatekeeping’ obligation on the trial judge”). 4 Daubert, 509 U.S. at 593, n.10 (discussing applicability of Federal Rule of Evidence 104(a) to expert testimony and citing Bourjaily v. United States, 483 U.S. 171, 175-176 (1987)). 5 The federal judiciary’s Advisory Committee on Evidence Rules has proposed amendments to Rule 702 that would “clarify and emphasize that the admissibility requirements set forth in the rule must be established to the court by a preponderance of the evidence.” (Preliminary Draft and Request for Comment can be found at https://www.uscourts.gov/sites/default/files/preliminary_ draft_of_proposed_amendments_2021_0.pdf, pp. 308-12 (last visited Feb. 8, 2021)). Lawyers for Civil Justice examined one year of federal court rulings on the admissibility of expert testimony to determine how courts were applying Rule 702 and found inconsistent application of the preponderance standard. See https:// www.lfcj.com/uploads/1/1/2/0/112061707/lcj_study_of_rule_702_ decisions_from_2020_--_sept_30_2021.pdf (last visited Feb. 8, 2022). 6 Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063-64 (9th Cir. 2002). 7 United States v. Boney, 977 F.2d 624, 631 (D.C. Cir. 1992). 8 United States v. Litzky, ---F. 4th ---, No. 20-10709, 2021 WL 5476151, at *5 n.3 (11th Cir. Nov. 23, 2021). 9 Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). 10 Id. 11 S.E.C. v. Tourre, 950 F. Supp. 2d 666, 675, 681 (S.D.N.Y. 2013) (hereafter “Tourre”). 12 Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16-CV-1318, 2021 WL 4810266, at *16 (S.D.N.Y. Sept. 30, 2021) (hereafter “Joint Stock Co.”). 13 Scentsational Technologies, LLC v. Pepsi, Inc., No. 13-cv-8645 (KBF), 2018 WL 1889763, at *4 (S.D.N.Y. Apr. 14, 2018) (hereafter “Scentsational”); see also United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (“Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.”); LaSalle Bank Nat’l Assoc v. CIBC Inc., 2012 WL 466785, at *7 (S.D.N.Y. 2012) (“[A]n expert witness may not offer testimony which merely rehashes the testimony of percipient witnesses.”). 1 2
See, e.g., Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 664 (6th Cir. 2005). 15 FNB Bank v. Park Nat. Corp., 996 F. Supp. 2d 1187, 1190 (S.D. Ala. 2014). See also R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (“Expert reports must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert’s conclusory opinions.”); Duling v. Domino’s Pizza, LLC, No. 1:13-CV-01570-LMM, 2015 WL 3407602, at *13 (N.D. Ga. Jan. 14, 2015) (hereafter “Duling”) (“[A]s opposed to providing a mere factual narrative, [an] expert is allowed to articulate the ‘factual underpinning’ upon which he bases his opinion.”) accord Pledger v. Reliance Trust Co., No. 1:15-CV-4444-MHC, 2020 WL 6101409, at *9 (N.D. Ga. Jan. 24, 2020) (hereafter “Pledger”); Scentsational, 2018 WL 1889763 at *4 (“[E]xperts may, and to some extent must, set forth facts which provide the basis and reasons for their opinions.”) 16 Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); see also Hostetler v. Johnson Controls, Inc., No. 3:15-CV-226 JD, 2020 WL 4915668, at *5 (N.D. Ind. Aug. 21, 2020) (rejecting argument “that the narrative provides the factual underpinning for [the ex[pert’s] opinions”). 17 J.S.T. Corp. v. Robert Bosch LLC, No. 15-13842, 2021 WL 2431719, at *4 (E.D. Mich. June 15, 2021) (citing Scentsational, supra); see also Sherrod v. McHugh, 334 F. Supp. 3d 219, 272 (D.D.C. 2018) (prohibiting expert testimony on security video because “allowing the experts to opine on what the video shows will not assist the jury in understanding the evidence or determining a material fact at issue”). 18 Scentsational, 2018 WL 1889763, at *6. 19 Id. at *8. 20 Id. at *9-12. 21 Id. at *9. 22 Tourre, 950 F. Supp. 2d, 666, 672, 680-81 (S.D.N.Y 2013). 23 Id. at 681. 24 Id. at 682. 25 Id. at 682. 26 Duling v. Domino's Pizza, LLC., No. 1:13-cv-1570-LMM, 2015 WL 3407602, at *12 (N.D. Ga. Jan. 14, 2015). 27 Id. 28 Id. at *13. 29 Id. 30 Pledger v. Reliance Trust Co., No. 1:15-cv-4444-MHC, 2020 WL 6101409, at *8-10 (N.D. Ga. Jan. 24, 2020). 31 Id. at *8. 32 Id. at *11. 33 315 F.R.D. 33, 45-46 (S.D.N.Y. 2016). 34 Id. at 46. 35 Id. 36 Id.; see also In re Aluminum Warehousing Antitrust Litig., 336 F.R.D. 5, 31 (S.D.N.Y. 2020) (finding that expert did not provide a mere factual narrative, as he “engaged in empirical and economic analysis of, and discussed and presented calculations relating to, purchases and sales of aluminum”). 37 See Scott, 315 F.R.D. at 45 (“Expert testimony is … admissible where it ‘synthesizes’ or ‘summarizes’ data in a manner that ‘streamlines the presentation of that data to the jury ….”). 38 See United States v. Finazzo, 682 F. App'x. 6, 10 (2d Cir. 2017) (“For an expert’s testimony to be admissible … it must be directed to matters within the witness’ scientific, technical, or specialized 14
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knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert’s help.”). 39 See, e.g., In re Rezulin Prods. Liab. Litig., 209 F. Supp. 2d 531, 547 (S.D.N.Y. 2004). 40 See In re Intuniv Antitrust Lit., No. 1:16-cv-12653-ADB, 2020 WL 5995326, at *18 (D. Mass. Oct. 9, 2020) (“No level of expertise or experience will make an expert witness a mind-reader.”) (quotation omitted); see also Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 187 (S.D.N.Y. 2008) (prohibiting experts from testifying as to what the defendant “believed,” making “inferences regarding the knowledge and intent of RBC employees,” and from testifying that parties were “concerned” or “pleased”); Travelers Indem. Co. v. Northrop Grumman Corp., No. 12 Civ. 3040(KBF), 2014 WL 464769, at *5 (S.D.N.Y. Jan. 28, 2014) (expert could not testify about what parties “must have known” or “could reasonably have anticipated”). 41 Scentsational Technologies, LLC v. Pepsi, Inc. et al., No. 13-cv-8645 (KBF), 2018 WL 1889763, at *8 (S.D.N.Y. Apr. 18, 2018). 42 Id. 43 Id. at *8-13. 44 See also Scott, 315 F.R.D. at 45-46 (finding that the expert’s
assignment of “motivation or intent” to Chipotle—by referencing “Wall Street investor expectations” and referring to a “desperate need” for new managers—was “improper”). 45 Fed. R. Evid. 703. 46 Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666 (S.D.N.Y. 2007); Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 808 (N.D. Ill. 2005) (“Rule 703 was never intended to allow oblique evasions of the hearsay rule.”). 47 In re Rsrv. Fund Sec. & Derivative Litig., Nos. 09 MD.2011(PGG), 09 Civ. 4346(PGG), 2012 WL 12356742, at * 3 (S.D.N.Y. Sept. 10, 2012). 48 Joint Stock Company Channel One Russia Worldwide v. Infomir LLC, No. 16-cv-1318 (GBD) (BCM), 2021 WL 4810266, at *19 (S.D.N.Y. Sept. 30, 2021); Factory Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 524 (5th Cir. 2013) (holding that Rule 703 was not intended to “allow a witness, under the guise of giving expert testimony, to in effect become a mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion”) (quoting Loeffel Steel Prods., Inc., 387 F. Supp. 2d at 808). 49 Malletier, 525 F. Supp. 2d at 665-66. 50 Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 729 (S.D.N.Y. 2011). 51 United States v. Mejia, 545 F.3d 179, 198 (2d Cir. 2008). 52 Factory Mut. Ins. Co., 705 F.3d at 525. 53 Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004); Factory Mut. Ins. Co., 705 F.3d at 525 (“In light of the deferential standard on appeal, we affirm because the district court did not abuse its discretion.”).
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Book Reviews
your race is made the equal of a single man of ours…. See our present condition—the country engaged in war!—our white men cutting one another’s throats…. But for your race among us there could not be war…. I repeat, without the institution of Slavery and the colored race as a basis, the war could not have an existence. It is better for us both, therefore, to be separated….
The Black Man’s President: Abraham Lincoln, African Americans, & the Pursuit of Racial Equality By Michael Burlingame Pegasus Books, Ltd., 2021 313 pages; $29.95
A House Built by Slaves: African American Visitors to the Lincoln White House By Jonathan W. White Rowman & Littlefield, 2022 251 pages; $26.00
Reviewed by Henry Cohen
On Aug. 14, 1862, Abraham Lincoln became the first U.S. president to invite a group of African Americans to the White House for an interview. Then he proceeded to lecture his guests—five men who “were all well-educated members of Washington’s black elite,” as Jonathan W. White describes them in A House Built by Slaves—telling them that African
Americans were to blame for the Civil War, and that it would be better for both Black and white people if the former would agree to colonization in Africa or Central America. Yet Michael Burlingame, in The Black Man’s President, writes that “Lincoln felt a degree of compassion and empathy for Black Americans unusual for his time and place.” White adds that, apart from this instance, “Lincoln warmly welcomed black visitors into his home and office” in the White House, in ways that “would have been simply unthinkable to most mid-nineteenth-century white people.” So, what happened on Aug. 14? Let’s first look more closely at what Lincoln said to his five guests. Here are three excerpts from early in his remarks: I think your race suffer very greatly, many of them by living among us, while ours suffer from your presence. In a word we suffer on each side. If this is admitted, it affords a reason at least why we should be separated…. Your race are suffering, in my judgment, the greatest wrong inflicted on any people…. [N]ot a single man of
Michael Burlingame quotes all three of these excerpts and reads them in a favorable light. He does not comment on the first, but he calls the second “remarkably empathetic.” As to the third, he writes, "Lincoln was stating an obvious truth: the Civil War was caused by the South's desire to maintain slavery and White supremacy at all costs. If no African Americans had been in the country, no fierce devotion to White supremacy would exist and hence no war would have occurred.” This statement is literally true, but Burlingame does not consider that it suggests that Black people were the cause of the war. Moreover, the first excerpt above would be difficult to read in the benign way that Burlingame reads the third. Perhaps “ours suffer from your presence” in the first excerpt could be read as stating the obvious truth that, without Black people, there would be no slavery and hence no war. The difficulty with that interpretation, however, is that Lincoln seems to equate the suffering of the two races (although he does say that Black people suffer “very greatly” and does not use those words to describe white people’s suffering) and also to make the blame for that suffering reciprocal. Lincoln also fails to note that white people cause Black people’s suffering (by enslaving them and otherwise mistreating them and discriminating against them), whereas Black people do not cause white people’s suffering; white people cause their own suffering by killing one another. Although white people would not suffer in a war if there were no Black people in the country, Black people are not causing their suffering.
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In fact, Black people are in the country only because white people kidnapped them or their forebears from Africa. Finally, in the first excerpt Lincoln says that Black people should emigrate because “we suffer on each side.” Why should Black people take white people’s suffering into account in deciding whether to emigrate? Jonathan White seems more neutral than Burlingame in his reporting of this incident. Although White has as high a regard for Lincoln as does Burlingame, he does not downplay the egregiousness of Lincoln’s remarks to the five Black men. He acknowledges, “Few moments in Lincoln’s presidency appear as regrettable as this one…. Lincoln’s words were terribly condescending.” Yet, he adds, “[T]he tone of Lincoln’s lecture to the black delegation should not skew how we understand his other interactions with African Americans. This meeting was unlike any other. Never again did he lecture a black guest. The infamous meeting of August 1862, in short, is the exception that proves the rule.” So why was this meeting so different? Why did Lincoln behave so out of character, condescendingly lecturing instead of listening to his African American guests? The key is that, in White’s words, “Lincoln had a stenographer in the room for this … meeting so that his remarks would quickly appear in newspapers throughout the nation.” Although Lincoln’s immediate audience was his five guests, his true audience was the racist white people of the nation, which means just about all white people. Lincoln had to establish his bona fides as someone unsympathetic to Black people. Why? Because he was about to issue the preliminary Emancipation Proclamation. On July 22, 1862, Lincoln had read the preliminary Emancipation Proclamation to his cabinet; it provided that, on Jan. 1, 1863, “all persons held as slaves within any state” then “in rebellion against the United States shall be then, thenceforward, and forever free.” Secretary of State William Seward advised Lincoln to delay issuing it until after a Union victory so that it would not appear a sign of weakness. That victory came with the Battle of Antietam on Sept. 17, and Lincoln issued the proclamation five days later. Lincoln’s meeting with the African Americans occurred after he had decided to issue the proclamation and while he was waiting for a propitious time to do so. Lincoln knew that, whereas many white people were willing to fight a war to preserve
the Union, fewer were willing to fight to end slavery. To retain public support for the war, he had to make clear that he was issuing the proclamation as a military necessity to help preserve the Union, not to free the slaves. He also had to deal with white people’s fears of freed slaves’ moving to their communities and competing with them for jobs. That’s probably why he pushed for voluntary colonization, saying, in effect, we’ll free them, but we’ll also be rid of them. In June 1862, writes Burlington, a congressman predicted that alarm about emancipation “would spread to every man of my constituents … if the public mind was not lulled and put to sleep with the word ‘colonization.’ I say the word, not the thing; for no practicable and adequate scheme for it has ever been presented or devised. The word is sung to us as a sort of ‘lullaby.’” In addition, Burlingame and White both quote the Black abolitionist Henry McNeal Turner as writing, in September 1862, a few days after Lincoln issued the preliminary Emancipation Proclamation, “Mr. Lincoln is not half such a stickler for colored expatriation as he has been pronounced,” and his colonization proposal was a “strategetic [sic] move upon his part in contemplation of this emancipatory proclamation just delivered.” Furthermore, white support for colonization was not necessarily racist. Burlingame speculates that Lincoln believed Negrophobia was so deeply ingrained that at least some African Americans might reasonably agree with Black abolitionist John Russwurm … who considered it a “waste of words to talk of every enjoying citizenship in this country; it is utterly impossible in the nature of things; all, therefore, who pant for this, must cast their eyes elsewhere.” Burlingame also quotes a historian who concluded that Lincoln’s plans for colonization “were the product of a genuine regard for humanity.” Lincoln’s need to appease white racists also explains why, on Aug. 22, having decided to issue the preliminary Emancipation Proclamation, he published his famous open letter to Horace Greeley, writing, “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I
66 • THE FEDERAL LAWYER • March/April 2022
would also do that.” Lincoln was being disingenuous, for he had already decided upon the third option.
Other Matters These two books, which are both excellent and highly readable, deal, of course, with matters besides Lincoln’s Aug. 22, 1862, meeting with his five Black guests. Ostensibly, Burlingame’s book covers more territory than White’s, because Burlingame’s addresses Lincoln’s interactions with African American people generally, whereas White’s is about African American visitors to the White House. But White doesn’t merely discuss one visit after another, which might become tedious. Rather, he provides much background, and, like Burlingame, creates a flowing narrative. Burlingame begins with Lincoln’s interactions with African Americans in Springfield, Ill., before he became president. The Black Springfielder closest to Lincoln was William Florville (also spelled Fleurville). Affectionately referred to as “Billy the Barber,” … [h]is shop became a popular social center where Lincoln not only received shaves and haircuts but also spent time swapping stories with the humorous Florville and other customers. Burlingame moves on to Lincoln’s relationships with African Americans on the White House staff. Lincoln was said by an acquaintance to be “blinded by no prejudices against race or color.” A Black waiter at the White House remembered Lincoln as “kind to everybody,” and the daughter of the head butler at the White House reported that the president “never treated [the employees] as servants, but was always polite and requested service, rather than demand it of them.” Burlingame also discusses Lincoln’s meeting with leaders of Washington’s African American community, receptions at the White House at which Black people were welcome, Lincoln’s allowing Black religious groups to hold picnics on the White House lawn, his support for giving Black people the vote in various states, such as Louisiana and Arkansas, and much more. All these actions were unprecedented and horrified many white people. Throughout the book, Burlingame emphasizes Lincoln’s racial egalitarianism, quoting scholars such as African
American historian Benjamin Quarles, who wrote that Lincoln was “without bigotry of any kind,” and Roy P. Basler, who said that Lincoln’s personal relations with African Americans “were almost models of democratic correctness and friendly courtesy.” Burlingame makes a persuasive case for Lincoln’s egalitarian attitude and courtesy to African Americans. The problem, however, is that he seems to be making a case rather than, like White, letting the facts speak for themselves. Burlingame relegates to an appendix his “Evaluation of Evidence Cited to Illustrate Lincoln’s Purported Racism,” and his evaluation explains all the evidence away. Burlingame’s conclusions may be wholly justified, yet his bias in favor of Lincoln comes through. Note the “purported” in the title of the appendix. In the appendix, Burlingame focuses on two examples of Lincoln’s purported racism: his racist remarks during his debates with Stephen A. Douglas in the 1858 U.S. Senate campaign in Illinois, and his occasional use of racist language. As for the debates, Douglas was a virulent racist who baited Lincoln by claiming that Lincoln sought equal rights for Black people and favored racial intermarriage. Burlingame quotes historian George Frederickson that it “is clear that no one who did not pay at least lip service to white supremacy could get elected to a statewide office in Illinois.” Moreover, Lincoln was more concerned with the greater evil of the enslavement of 4 million people in the South than with the lack of civil rights for the much smaller number of free African Americans. Therefore, Lincoln would concede to Douglas that Black people should not have equal rights, but argue against the counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she is certainly not my equal; but in her natural right to eat the bread she earns with her own hands ... she is my equal, and the equal of all others. Lincoln chose his words carefully, so as never really to support Douglas’s racism. He said that Black women were not his equal in some respects, but what respects were those? Well, Lincoln said, “Certainly the negro is not our equal in color.” What, if any-
thing, does that mean? Burlingame finds it is “probably a satirical concession designed to make White supremacists look ridiculous.” As for Lincoln’s use of racist language, Burlingame writes: In responding to Douglas’s unvarnished race baiting, Lincoln occasionally employed the N-word, for he “generally used” racial epithets “to satirize his opponents,” according to James Oakes. Elizabeth Brown Pryor agreed, noting that Lincoln uttered the N-word “when he wanted to mock those who used the term without irony….” White’s and Burlingame’s books overlap considerably, and much in the preceding paragraphs citing Burlingame could have cited White without being substantially different. But White delves into other matters as well. Being about African Americans’ visits to the Lincoln White House, White’s book naturally discusses Frederick Douglass’s three famous visits, but we also learn of Lincoln’s meetings with lesser-known people. On Jan. 2, 1864, for example, the Washington Daily Chronicle reported, “Yesterday four colored men, of genteel exterior and with the manners of gentlemen, joined in the throng that crowded the Executive mansion and were presented to the President of the United States.” The paper added, “Years ago had any colored man presented himself at the White House at the President’s levee … he would in all probability have been roughly handled for his impudence.” The Daily Chronicle “rejoice[d]” in this, but a Maine paper complained, “What a hideous travestie this is—what an abject and shameful truckling to the shocking and unnatural doctrine of negro equality … forbidden by the decrees of the Almighty.” The next month, in February 1864, White relates, “two black Army surgeons— Alexander Thomas Augusta and Anderson R. Abbott—also decided to enter the White House, uninvited, for a public reception.” After detailing how Augusta and Abbott got to be Army surgeons (and officers), White describes how Lincoln graciously shook their hands, to the consternation of some onlookers. The Detroit Free Press reported, “The ladies were very much disgusted with the social equality thus attempted.” Some of Lincoln’s African American
visitors came to the White House on more serious business. “In January 1864,” writes White, “two Creole citizens of New Orleans—E. Arnold Bertonneau and Jean Baptiste Roudanez—drafted a lengthy petition addressed to Lincoln and Congress, urging them to enfranchise ‘all the citizens of Louisiana of African descent, born free before the rebellion.’” They met with Lincoln in March, and he said that Black suffrage was “not a military question,” and, as president, he “did nothing in matters of this kind upon moral grounds, but solely upon political necessities.” In other words, giving Black men the vote would not, like the Emancipation Proclamation, help win the war. One of the men, with Lincoln’s assistance, drafted a new petition, arguing that Black men should be enfranchised to help secure loyal Union majorities in Louisiana elections. Lincoln then wrote to the governor of Louisiana, Michael Hahn, suggesting that he extend the franchise to “some of the colored people … for instance, the very intelligent, and especially those who have fought gallantly in our ranks.” These were essentially the same words Lincoln uttered a year later, which induced John Wilkes Booth to murder him. After Lincoln’s murder, Black Americans, White writes, “felt the keenest sense of loss…. Reflecting on this moment many years later, a black Union Army veteran wrote, ‘Our faith was almost staggered, that faith which had sustained us in so many battles, was now staggering under a blow which was severer than any battles, the death of our Immortal leader.’” Secretary of the Navy Gideon Welles saw “several hundred colored people, mostly women and children, weeping and wailing their loss” outside the White House on the day Lincoln died. Some ex-slaves worried that they would become slaves again. On April 14, 1876, at the unveiling of the Freedmen’s Memorial, paid for by Black people, in Lincoln Park in Washington, D.C., Frederick Douglass spoke. White writes: Douglass alluded to Lincoln’s infamous colonization meeting with the black delegation in August 1862, reminding his audience of “when he strangely told us that we were the cause of the war,” and “when he still more strangely told us that we were to leave the land in which we were born.” Yet, Douglass continued, “we are compelled to admit that this
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unfriendly feeling on his part may be safely set down as one element of his wonderful success in organizing the loyal American people for the tremendous conflict before them…. Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible.” Douglass was a wise man. Henry Cohen was a legislative attorney with the Congressional Research Service, Library of Congress, from 1975 to 2010, and was the book review editor of The Federal Lawyer from 1989 to 2017. Since 2021, he has been the copy editor of The Lincoln Forum Bulletin. © 2022 Henry Cohen. All rights reserved.
Free Justice: A History of the Public Defender in Twentieth-Century America By Sara Mayeux The University of North Carolina Press, 2020 296 pages; $32.95
Reviewed by Jon M. Sands
Public defenders are integral to the criminal justice system. They are extolled as heroic—a testament to American justice—and blamed as ineffective. They are viewed both as solitary paladins and as participants in a cruel system interested only in churning out cases.
The idealistic vision is of a public defender doing everything possible in fighting for their indigent client and achieving justice. Too often, the reality is a public defender facing daunting odds, working in dismal conditions, in desperate financial straits, and with a crushing caseload. Their clients view them with suspicion, deride them as “public pretenders,” and view them as part of the very system aligned against the indigent. Between the idealistic vision and the grim reality, how exactly did the public defender become a legal stalwart, called to constitutional service by Gideon’s trumpet. This is the subject of Sara Mayeux’s revelatory study. In Free Justice, Mayeux explains “how and why lawyers came to believe in the public defender as a quintessentially American institution, one that ideally should exist in communities all around the country.” Her history of the origin of the modern public defender system is at odds with the story the profession has told itself. The bar did not rally around “an apolitical, professional commitment to ‘due process’ or ‘rule of law.’ Rather, it is a story of contestation and uncertainty … over the proper relationship between lawyers, markets, and the modern state.” Mayeux follows how these competing narratives play out in case studies examining the establishment of institutional public defending. She contrasts Gideon’s triumphant and lofty promise that the Sixth Amendment ensures a right to counsel with the circumscribed reality of local public defense. Her important study of the institution’s history chronicles how we got where we are and ends by charting some paths forward. Mayeux advances two explanations for the rise of public defenders. First, the legal profession saw the United States as a liberal democracy maintained by lawyers committed to the rule of law. This liberal ideology, under which lawyers serve individuals, contrasted with socialism and communism, under which lawyers serve the state. Second, support for public defenders was partial. Although funding counsel for the criminally accused was virtuous, representation was only for the criminally accused and came with a limited scope and inadequate funding. The legal profession and the government were ambivalent, providing just enough support to bolster the rule of law, but not enough to serve as a wedge to achieve further affirmative rights, such as equality, public assistance, and health care. The grudging support has frustrated the public
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defender system and resulted in continuing curtailment of its scope. The ideal of the public defender arose at the turn of the century. Progressives advanced a vision of social reforms across all of society, and especially in urban communities. They would reform education, social welfare, health care, and law. Instead of private defenders, replete with corruption and unscrupulous practices, reformers envisioned public defenders as working not only for their clients but for the public at large. Adequately funded, they would hold themselves to a higher standard than the unscrupulous private bar. Public defenders, it was envisioned, would both represent the indigent and work with prosecutors to address a range of legal and social problems. Reformers, academics, and progressive lawyers circulated proposals. They found a willingness to experiment out West, especially in California (the first public defender organization was established in Los Angeles). The eastern established bar and other entrenched interests were unreceptive and derided the proposals as untenable, unworkable, and socialistic. Charitable pro bono legal aid was one thing; government funding was a threat to their livelihoods. The rise of communism and fascism, the World War II, and the civil rights movement renewed interest in providing public defenders. The Cold War provided the final impetus: Funding public defenders was reimagined and recast as an American right. They became viewed not as a socialist endeavor but as an anticommunist necessity. A lawyer for the accused standing up for an individual in, say, a county courthouse, contrasted strongly with a lawyer castigating his client in a staged political show in a Moscow court. Mayeux charts the social movements and debates that led finally to Gideon. Indeed, by the time Gideon was decided, many jurisdictions already had created and funded public defenders. Mayeux follows the aftermath of Gideon’s mandate. Gideon’s trumpet call to legal representation soon faded, and the idealistic vision became clouded with difficulties. In many jurisdictions, the challenge to adequately create, build, and expand public defenders came up short. Mayeux discusses several case studies of how local jurisdictions struggled to develop governance structures that allowed for high-quality representation and preserved autonomy against opposition from institutions such as the private bar, prosecutors, police, and the bench; against
political interference, animosity towards the poor, and pervasive racial prejudice; and despite the ever-present problem of inadequate funding. The first people to head public defender offices were on quixotic quests, and too often, in jousting with their controlling boards, found themselves defeated. Mayeux examines what it means to be a public defender organization. Public defenders could have been agents of legal and even social change, a reform movement, or at least a check on government power. The organizations could have been a way for “imagining the proper balance of power in a modern society between lawyers, the individual, and the state.” But nearly all the organizations were narrowly confined to criminal representation, usually in one jurisdiction, with a constant struggle for funding. Adversaries in court, public defenders found themselves also pitted against the police and prosecutors in legislative budget fights. We know who wins. Mayeux ends her study just as harsh mandatory minimum sentences and the War on Drugs impacted the criminal justice system and strained public defense even more. The lack of adequate funding warped court decisions. Scholars, most notably the late William Stuntz, decried this fact because it precludes effective representation and leads to a skewing of criminal justice and procedure. Mayeux points to hopeful exceptions. Small nonprofit organizations that take a holistic approach have sprung up. They represent indigent defendants, but they also deal with their clients’ substance abuse, mental illness, housing needs, domestic matters, and employment. They seek to fulfill the reformers’ promise. They work. We still live with the consequences. As praiseworthy as these models are, it is hard to envision them as other than small nonprofits. Public defender organizations as they presently exist struggle to deal with just the criminal caseload and are not capable of providing indigent services. It would be too daunting to reconstruct local, state, and federal indigent defense as they presently exist. They require radical rethinking and funding. Public defenders meanwhile seek to remedy many of the harsh and punitive policies of the past half century. In this way, public defender organizations can lead the way “to unwind mass incarceration, promote racial justice, alleviate economic inequality, challenge draconian immigration enforcement, and serve as the vanguard of a twenty-first
century civil rights movement.” These public defenders can join with progressive prosecutors to change how we treat indigent defendants and can advocate for legislation. This means bringing back the ideals of social reform that initially animated the movement to provide indigent defense. Still, the path is hard. The federal experience is cautionary. A recent report on the federal defender system, the Cardone Report, set forth principles for indigent representation, the most important being independence for the system. Though it was released with much fanfare, the judiciary considered many of the recommendations too radical. Congress has scant interest. Alas, the report is honored more in principle than in practice. Mayeux would understand. Jon M. Sands is the federal public defender for the District of Arizona.
The Original Meaning of the 14th Amendment: Its Letter and Spirit By Randy E. Barnett and Evan D. Bernick Harvard University Press, 2021 465 pages; $35.00
Reviewed by Henry S. Cohn
Professors Randy Barnett and Evan Bernick, both of Georgetown University Law Center, have two purposes in writing The Original Meaning of the 14th Amendment:
Its Letter and Spirit. The first is to find “the original public meaning of the text” of the Fourteenth Amendment. In his forward to the book, leading Civil War historian James Oakes finds the authors’ efforts with respect to this purpose “superb.” He is impressed by the authors’ efforts to explain where phrases in the Fourteenth Amendment originated, what they meant when the Fourteenth Amendment was adopted by Congress in 1866, and how their meaning has changed over time. Having examined the original meaning of the Fourteenth Amendment, the authors’ second purpose is to apply the original meaning to various Supreme Court cases that interpret the Fourteenth Amendment. They do so because they follow the originalist approach to interpreting the U.S. Constitution. This approach has been defined as respecting, and adopting as final, the original meaning of phrases in the Constitution, at least where this meaning is specifically discernable. According to originalists, this meaning alone is to be used to decide constitutional cases. Originalism is highly controversial and has been rejected by other academics. Indeed, a 2009 New York University Law Review article by Mitchell N. Berman is titled “Originalism is Bunk.” The book’s finest moments are in its discussion of three clauses in section 1 of the Fourteenth Amendment: the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause. The authors’ most dramatic conclusion is that, although before the Civil War, the abolitionists were a disliked minority, their ideas had the most impact on the Fourteenth Amendment. Congressman John Bingham drafted the amendment, and abolitionism, according to Bingham’s biographer Gerard Magliocca, “was his life’s pursuit.” The authors spend several chapters on the phrase in section 1 that declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The phrase comes from Sir William Blackstone’s Commentaries on the Law of England, published in the 1770s. Blackstone’s volumes were a major source for legal education in 18th-century America. Thomas Jefferson, following Blackstone and Lord Mansfield (whose 1772 decision in Somerset v. Stewart declared that American slaves became free when they were brought to England), used the concept of privileg-
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es and immunities in the Declaration of Independence, referring to “Life, Liberty and the pursuit of Happiness” as “unalienable Rights.” Alexander Hamilton and early American legal scholar James Kent relied on Blackstone in concluding that Americans also had privileges and immunities stemming from their citizenship. Although not well remembered today, the main body of the Constitution also contains a Privileges and Immunities Clause. Article IV, section 2 provides, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As the authors point out, however, this clause was interpreted by the Supreme Court before the Civil War to refer not to fundamental rights held by the citizens of each state, but to comity between the states. It prohibited one state from imposing greater burdens on citizens of another state. The phrase took on new life and meaning with Bingham’s submission to Congress of a series of drafts, one of which was eventually adopted in the Fourteenth Amendment. President Andrew Johnson had vetoed the Civil Rights Act of 1866, and Bingham’s draft attempted to remedy Johnson’s veto. In addition, the Thirteenth Amendment, by making permanent a ban on slavery that superseded Lincoln’s partial ban in the Emancipation Proclamation, did not set forth that certain federal rights were fundamental and protected from interference by the states. Bingham’s draft, as adopted, remedied this as well by recognizing life, liberty, and property as fundamental rights that states could deny only with due process of law. A debate arose over whether the right to vote was a privilege protected by the Fourteenth Amendment’s Privileges and Immunities Clause. To protect the rights of Black citizens to vote, the Fifteenth Amendment was adopted in 1870. Susan B. Anthony failed to get the amendment to include women’s suffrage. The authors note that the Fourteenth Amendment’s Privileges and Immunities Clause was not generally relied upon by the courts after ratification of the amendment in 1868. In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Court, over a strong dissent by Justice Steven J. Field, limited the clause to fundamental rights in areas controlled by the federal government, not to those controlled by the states. This controversial holding was later relaxed. For example, in Hague v. CIO, 307 U.S. 496
(1939), the Court held that city permit requirements could not limit the freedom to assemble peaceably, which “is a privilege or immunity of a citizen of the United States secured against state abridgment.” Barnett and Bernick spend less time discussing the other two clauses of section 1 of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” With regard to due process, the authors trace the term back to the Magna Carta, in which King John in 1215 promised the barons at Runnymede that no free man would be imprisoned or otherwise punished except by the lawful judgment of his peers or in accordance with “the law of the land.” The phrase “law of the land” was later converted by the 16th-century treatise-writer Edward Coke to “due process of law.” The writings of Alexander Hamilton prior to the adoption of the Fifth Amendment influenced James Madison to include a due process clause in that amendment. When John Bingham drafted the Fourteenth Amendment, he included a similar guarantee of due process. According to Barnett and Bernick, neither the Fifth nor Fourteenth Amendment distinguished between procedural and substantive due process. The difference between the Fifth Amendment’s and the Fourteenth Amendment’s Due Process Clauses was that the Fifth Amendment’s limits the federal government, whereas the Fourteenth Amendment’s applies to state action. A point that the authors raise but do not resolve is the scope of the term “law” in “due process of law.” “Law” may include more than state legislative action. With regard to equal protection, the authors make three points. First, although the phrase prohibits a state from denying “equal protection of the laws,” it does not require equality. Second, as with the Due Process Clause, the Equal Protection Clause leaves uncertain the scope of the term “laws.” Third, although the Privileges and Immunities Clause protects “citizens,” the Equal Protection Clause protects “any person.” In the 1870s, for example, it was held to cover Chinese immigrants who were not yet citizens. Barnett and Bernick summarize their conclusions as follows: 1. The first sentence of the Fourteenth Amendment, added after Bingham
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submitted his initial drafts to Congress, is known as the Citizenship Clause. It overruled the Dred Scott decision by promising “full national citizenship to all those who meet its disjunctive criteria of birth or naturalization and who are subject to the jurisdiction of the United States.” 2. “The Privileges or Immunities Clause promises unstratified citizenship for all citizens, with a foundation of fixed civil rights on which subsequent generations can build and expand—but which they cannot destroy.” 3. “The Due Process of Law Clause promises to all persons within our territory that their natural rights to life, liberty, and property, the security of which justifies state power, will not be arbitrarily restricted by states.” 4. “The Equal Protection of the Laws Clause promises these same persons that states will not merely refrain from violating their natural rights but will actively protect them from private action.” 5. Section 5 of the Fourteenth Amendment, allowing Congress to pass laws to enforce these guarantees, radically changed the Constitution. Thus, according to Barnett and Bernick, with the ratification of the Fourteenth Amendment, the abolitionists, with John Bingham in the lead, had finally prevailed. Judge Henry S. Cohn was appointed a judge of the Connecticut Superior Court in 1997 and became a Connecticut Judge Trial Referee in 2015. He is the co-author of a book on the 1944 Hartford, Connecticut, Circus Fire published by Yale University Press. He has written several law review articles, and The Federal Lawyer has published his book reviews for many years.
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.
Biden v. Missouri (No. 21A240) Oral argument: Jan. 7, 2022
Question as Framed for the Court by the Parties Whether the Supreme Court should issue a stay of the injunction issued by the United States District Court for the Eastern District of Missouri blocking a federal rule that requires all health care workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption.
Facts On Nov. 5, 2021, the Centers for Medicare and Medicaid Services’ (CMS), an agency within the Department of Health and Human Services (HHS), promulgated 86 Fed. Reg. 61,555, an Interim Final Rule with Comment Period (IFC) titled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The mandate requires almost all staff who work or volunteer at Medicare- and Medicaid-certified healthcare facilities to be fully vaccinated against COVID-19. On Nov. 10, 2021, the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (collectively Missouri) challenged the mandate in the United States District Court for the Eastern District of Missouri. Missouri requested that the district court issue a preliminary injunction that would temporarily block CMS from enforcing the vaccine mandate. Before considering Missouri’s request for an injunction, the district court first noted that it had jurisdiction over the claims, re-
jecting the Biden administration’s argument that the Medicare Act, 42 U.S.C. § 1395ii, bars the court from hearing the matter. Next, in deciding whether to grant the preliminary injunction, the district court applied Dataphase Sys., Inc. v. C L Sys., Inc.’s four-factor balancing test. The test weighs the moving party’s likelihood of success on the merits, the threat of irreparable harm to the moving party absent an injunction, the overall balance of equities and hardships, and whether the public interest supports an injunction. The district court first assessed the States’ likelihood of success on the merits of their argument that CMS exceeded its authority in enacting the mandate. The court noted that because the mandate will have a wide-ranging impact and raises significant federalism concerns, an express grant of authority from Congress is required. Congress did not provide such authority and the court held that it would not infer Congressional intent. Moreover, the court indicated that Missouri would likely succeed on the merits because CMS did not abide by notice and comment requirements, CMS did not have “good cause” to bypass the requirements, and the mandate is arbitrary and capricious. Next, the district court found that Missouri would suffer irreparable harm absent an injunction. The court indicated that enforcement of the mandate would hinder Missouri’s ability to enforce their own laws. The court also pointed to potential harm that those receiving care in affected facilities would suffer because of the loss of unvaccinated staff. Lastly, the court merged consideration of the balance of equities factor with the public interest factor, finding that although the public has an interest in reducing the transmission of COVID-19, maintaining
the status quo pending final resolution of the case is in the public interest. Upon weighing the four factors, the district court granted the preliminary injunction. The Biden administration appealed the district court’s decision to the United States Court of Appeals for the Eighth Circuit. Pending consideration and disposition of the appeal in the Eighth Circuit, the Biden administration requested that the United States Supreme Court issue a stay of the injunction, allowing CMS to continue to enforce the mandate. On Dec. 22, 2021, the Supreme Court decided to hear oral argument on the question of whether to issue the stay. This case is consolidated with Becerra v. Louisiana, in which the United States District Court for the Western District of Louisiana similarly enjoined enforcement of the mandate.
Legal Analysis STATUTORY AUTHORIZATION THROUGH MEDICAID The Biden administration contends that a stay of the injunction is proper because the administration is statutorily authorized to issue the mandate. Specifically, the Biden administration argues that HHS possesses the statutory authority to require facilities that participate in the Medicare or Medicaid programs to comply with restrictions that protect patient health and safety. The Biden administration asserts that the text of the Medicare Act, 42 U.S.C. § 1302(a), unambiguously vests authority in the secretary of HHS to make rules that “may be necessary and efficient” to the administration of the Medicare and Medicaid programs. The Biden administration points to several provisions of the Medicare Act that recognize the HHS secretary’s broad power to set standards that ensure patient health and safety. The Biden administration contends that the vaccine mandate is analogous to these provisions and similarly necessary to protecting patient health and safety. The Biden administration also posits that science and common sense support the conclusion that requiring healthcare staff to be vaccinated protects patients by reducing the likelihood of patient COVID-19 infection and provid-
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ing greater assurance to patients that they are less likely to be exposed to the virus. Moreover, the Biden administration claims that vaccination requirements are consistent with both the history of the Medicare Act and public-health measures generally. Accordingly, the Biden administration argues that Congress did in fact authorize the mandate and that the district court erred in finding otherwise. Missouri and nine other states (collectively Missouri) counter that a stay is improper because the mandate unequivocally lacks statutory authorization. Missouri notes that the Biden administration impermissibly applies an expansive reading to § 1302(a), which Missouri argues only recognizes a general responsibility of the HHS secretary to maintain the Medicare and Medicaid programs. Missouri claims that the authority recognized in § 1302(a) only permits the secretary of HHS to promulgate practical rules such as billing procedures and cannot support a far-reaching and consequential vaccine mandate. Missouri claims that because of the vaccine mandate’s broad and serious implications, Congress needed to provide CMS with an express grant of authorization and that no such grant exists here. Missouri points to several Supreme Court precedents for the proposition that agency decisions with significant economic and political ramifications must be made consistent with a clear showing that Congress has ordered the action. Missouri asserts that the mandate will affect over two million healthcare staff, will reduce healthcare access for almost all Americans, places billions of dollars of federal funding at risk if facilities do not comply, and endangers the states’ own police power. Accordingly, Missouri contends that the decision to require such widespread vaccination cannot be imposed and enforced without exceedingly clear Congressional authorization. Furthermore, Missouri posits that even if Congress had authorized the mandate, the mandate is nonetheless unconstitutional under both the Spending Clause and the Non-Delegation Doctrine.
THE ARBITRARY AND CAPRICIOUS STANDARD The Biden administration asserts that a stay should issue because the mandate is not arbitrary and capricious but rather is supported by extensive evidence of the efficacy of the vaccination requirement. The Biden administration argues that the district court erred when it determined
that the secretary of HHS failed to consider the effects of staff shortages brought on by the mandate. The Biden administration contends that the HHS secretary did assess the possibility that some healthcare staff would quit instead of receiving the vaccine but concluded that this concern was not enough to outweigh the benefits of the nationwide vaccine mandate. For instance, the Biden administration notes that only 0.6% of the staff at the Houston Methodist Hospital system chose to resign when a vaccine mandate was imposed there. Additionally, the Biden administration posits that countervailing factors, such as reduced staff absenteeism resulting from COVID-19 infections, would yield a substantial benefit to healthcare facilities. Moreover, the Biden administration indicates that the vaccine mandate enjoys widespread support from leading healthcare associations. The Biden administration also asserts that the secretary of HHS considered alternatives to a vaccination requirement, such as repeated testing, and determined that those alternatives would not adequately protect patients. Missouri counters that the mandate is arbitrary and capricious because the evidence overwhelmingly counsels against imposing a nationwide vaccine mandate. Missouri notes that the mandate disregards both patient well-being and access to care. Specifically, Missouri argues that the Biden administration downplays the significant staff shortages that will result from mandating the COVID-19 vaccine, and that these shortages will only exacerbate the healthcare crisis that the nation already confronts. Missouri contends that fewer healthcare workers necessarily means that patient care will suffer. Moreover, Missouri posits that the Biden administration ignores the particularly detrimental impact that the mandate will have on rural hospitals, which flouts the protections that the Medicare Act provides for rural populations in § 1302(b). Furthermore, Missouri asserts that the Biden administration does not provide any evidence that alternatives to a vaccine mandate cannot effectively guarantee both patient well-being and ensure access to care. For instance, Missouri contends that a testing requirement would prevent the staff shortages that a vaccine mandate would generate.
Discussion PROTECTION OF HEALTHCARE STAFF The Service Employees International Union and two other unions (collectively the
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Unions), in support of the Biden administration, argue that the vaccine mandate protects not only patients, but also healthcare staff. Specifically, the Unions argue that healthcare workers are at significant risk of exposure to the virus and that the death rate among healthcare staff during the first year of the pandemic supports this conclusion. The Unions assert that stricter vaccination policies aimed at protecting workers can significantly mitigate the risks that they face, as recent healthcare facility outbreaks are often linked to under-vaccination among staff. The American Medical Association and several other medical associations and academies (collectively the AMA), also in support of the Biden administration, contend that COVID-19 vaccines are both a safe and effective way to reduce the alarming rate of transmission of COVID-19 in healthcare facilities. The AMA posits that reputable studies and analyses reinforce the Biden administration’s contention that the vaccine is the most effective method of saving lives. The Doctors for Disaster Preparedness and Eagle Forum Education & Legal Defense Fund (the Doctors and Eagle Forum Fund), in support of Missouri, counter that the COVID-19 vaccine mandate does not effectively protect workers because of the questionable nature of the vaccine’s efficacy. The Doctors and Eagle Forum Fund maintain that the COVID-19 vaccine itself has led to thousands of adverse reactions, hospitalizations, and deaths. The Doctors and Eagle Forum Fund argue that the Biden administration fails to consider the harms that the COVID-19 vaccine poses and ignores the data showing that even though most healthcare workers are already vaccinated, COVID cases continue to surge. The Doctors and Eagle Forum Fund posit that natural immunity and early treatment through medications such as hydroxychloroquine and ivermectin are more effective means of protecting healthcare staff than requiring them to receive the COVID-19 vaccine.
EFFECT ON HEALTHCARE FACILITIES Former secretaries of HHS, former administrators of CMS, and other former federal health officials (collectively the secretaries, administrators, and officials), in support of the Biden administration, argue that the vaccine mandate benefits healthcare facilities through reduced COVID-19 hospitalizations and fewer staff shortages. The secretaries, administrators, and officials contend that
healthcare facilities, already stretched thin, cannot afford to lose available staff who become infected with COVID-19 and must quarantine. The secretaries, administrators, and officials assert that healthcare facilities exist to care for patients and that this care suffers immensely when staff shortages are abundant. Additionally, the secretaries, administrators, and officials maintain that patients may be more likely to seek care at facilities that impose a staff-vaccination requirement. Baptist Homes & Healthcare Ministries (BHHM) and the Christian Life Commission of the Missouri Baptist Convention (CLC MBC), in support of Missouri, counter that the vaccine mandate will result in healthcare facilities suffering economic and constitutional harm. BHHM and CLC MBC note that many healthcare workers, especially nursing home staff, are unlikely to receive the vaccine and will choose to quit, placing the economic viability of the facility at risk. BHHM and CLC MBC also posit that healthcare facilities that fail to comply with the mandate risk losing significant Medicare and Medicaid funding. Moreover, BHHM and CLC MBC contend that the vaccine mandate poses constitutional harms to religiously affiliated healthcare providers. Specifically, BHHM and CLC MBC argue that the mandate violates the First Amendment because it infringes on the autonomy that religious institutions enjoy. Full text available at https://www.law. cornell.edu/supct/cert/no._21a240. Written by Moataz Abdelrasoul. Edited by Stewart Rickert.
Federal Election Commission v. Ted Cruz for Senate (No. 21–12) Oral argument: Jan. 19, 2022
Question as Framed for the Court by the Parties Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.
Facts In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions
through the Federal Election Campaign Act of 1971 (FECA). Approximately thirty years later, Congress amended FECA in the Bipartisan Campaign Reform Act of 2002 (BCRA), which set forth in Section 30116(j) that a “candidate who incurs personal loans . . . in connection with the candidate’s campaign for election shall not repay (directly or indirectly), to the extent such loans exceed $250,000, such loans from any contributions made to such candidate or any authorized committee of such candidate after the date of such election.” Under BCRA and its implementing regulations, which are administered by the Federal Election Commission (FEC), after an election, a campaign may either fully reimburse a candidate within 20 days of the election using pre-election contributions, or it may use contributions made after election day to repay up to $250,000 of the candidate’s loans. If the campaign does not repay the loan with pre-election funds within the 20 days, any remaining balance exceeding $250,000 is re-designated as a campaign contribution from the candidate. Senator Rafael Edward (Ted) Cruz (Senator Cruz) ran for re-election in 2018. On the day before the 2018 general election, Senator Cruz loaned his election committee, Ted Cruz for Senate (the Committee), $260,000. The Committee did not repay Senator Cruz within the 20-day deadline set by the FEC’s regulations. After the 20-day period passed, the Committee repaid $250,000 to Senator Cruz and the outstanding $10,000 was recharacterized as a contribution from Senator Cruz to his campaign. Senator Cruz and the Committee then sued the FEC in the United States District Court for the District of Columbia under BCRA Section 403(a) which provides for jurisdiction in the District Court for the District of Columbia for any constitutional challenges to BCRA. There, Senator Cruz and the Committee alleged that BCRA’s loan-repayment limit violates the First Amendment and sought declaratory and injunctive relief invalidating and enjoining the enforcement of Section 304. The district court concluded that Senator Cruz had standing to sue because he had suffered a “$10,000 financial injury” due to BCRA’s loan-repayment limit. The court granted Senator Cruz’s motion for summary judgment, denied the FEC’s motion for summary judgment, and held that BCRA’s $250,000 loan-repayment limit violates the
First Amendment by burdening the exercise of political speech. The court applied heightened scrutiny, and concluded that the government had not adequately justified the provision’s burden on candidate speech. The court found that the FEC failed to show that use of post-election contributions to repay candidate loans posed a risk of corruption. Therefore, the limit was not sufficiently tailored. The FEC appealed to the Supreme Court and filed a jurisdictional statement challenging the ability of the Court to hear the case on the grounds that the district court had erred in holding that Senator Cruz and the Committee had standing. Under BCRA Section 403(a)(3), a final decision of the three-judge panel as to the constitutionality of challenged sections of the BCRA is only reviewable on appeal directly to the Supreme Court. The Supreme Court granted certiorari, postponing its consideration of the jurisdictional standing question to its hearing of the case on the merits.
Legal Analysis SELF-INFLICTED INJURY OR REDRESSABLE INJURY-IN-FACT The FEC argues that Senator Cruz does not have Article III standing to bring this suit. Under Article III, a party must satisfy three requirements to have standing to sue: (1) he has suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant’s challenged action; and (3) the judicial relief he seeks would likely redress the injury. The FEC concedes that Senator Cruz suffered a concrete injury—the unpaid $10,000 balance on a $260,000 loan—but disputes that Section 304 was the cause. The FEC reasons that the Committee voluntarily and without justification missed the 20-day window to repay Senator Cruz’s loan, and is therefore responsible for Senator Cruz’s injury. Since the injury is self-inflicted and not fairly traceable to any unlawful conduct by the FEC, the FEC contends that Senator Cruz fails the causation requirement for standing. The FEC notes that Senator Cruz also fails the causation requirement because his injury does not stem directly from Section 304, but rather from a regulation promulgated to implement it. The FEC explains that since the $250,000 limit only applies to post-election funds, and Senator Cruz used pre-election funds to recoup $250,000 of his $260,000 loan, the Committee could
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have satisfied the remaining $10,000 using post-election funds without ever implicating Section 304’s cap. Senator Cruz’s injury stems not from Section 304, therefore, the FEC contends, but rather from the Committee’s non-compliance with the regulation; once the 20 days passed, the regulation redesignated the $10,000 loan as a contribution, which rendered it ineligible for reimbursement, regardless of whether preor post-election funds were used. Failure to meet the deadline, according to the FEC, constitutes an injury that is “so completely due to the plaintiff ’s own fault as to break the causal chain” required for standing. The FEC concedes that an intentional delay can be excusable in the rare circumstance when a party is compelled to self-inflict injury to avoid a greater harm. Here, however, the FEC contends that the Committee has not shown that it would have suffered any concrete harm from disbursing the $10,000 within the 20-day window. The FEC concludes, therefore, that since Senator Cruz cannot attribute his self-inflicted injury to Section 304, invalidating that statutory provision would not offer him redress. Senator Cruz counters that his injury is directly traceable to Section 304. Senator Cruz agrees that the regulation represents an intermediate link between his injury and Section 304, but maintains that this chain of causation is sufficiently direct for standing purposes. Senator Cruz asserts that parties with far more indirect causation arguments have repeatedly successfully established standing. For example, Senator Cruz points out, litigants injured through government action successfully challenged the appointment process of the agency officials who inflicted those injuries. Here, Senator Cruz asserts that the chain of causation is comparatively direct: since Section 304 is the sole statutory provision that authorizes the 20day regulatory rule, it is plainly the but-for cause of his injury. Senator Cruz next argues that it is irrelevant that the Committee voluntarily bypassed the regulatory deadline because a party does not forfeit standing by refusing to adhere to the very provision they allege is unlawful. Senator Cruz points out that a party’s standing to bring a post-enforcement challenge should not depend on their ability to prove, pre-enforcement, that they were compelled to choose between alternative harms. Senator Cruz claims that his complaint does not describe a generalized, speculative harm, but
rather a concrete injury caused by violation of his constitutional right to have his loan repaid using post-election contributions. Senator Cruz further reasons that the Committee’s non-compliance was justified: they sought to avoid harm to creditors by prioritizing those who more urgently required reimbursement than Senator Cruz. Finally, Senator Cruz contends that the FEC misstates the facts: the Committee did indeed repay $250,000 of Senator Cruz’s loan using post-election funds and was constrained by the cap: they used funds received after the 2018 election but that were designated for use in the 2024 election. Finally, Senator Cruz asserts that invalidating the statute would also vacate its implementing regulations, therefore redressing his injury and fulfilling the final requirement for standing. Senator Cruz points out that, as established in fundamental principles of administrative law, “the regulatory branch cannot survive the death of the statutory tree.” Senator Cruz concludes that both the authorizing statute and the 20-day regulatory rule are responsible for his injury, and therefore both must fall for his injury to be redressed.
A MODEST OR SEVERE BURDEN ON FREE SPEECH The FEC argues that the loan-repayment limit places only a modest burden on free speech, which is adequately tailored to serve the government’s compelling anti-corruption interest, and that the limit survives any standard of review. The FEC points out that the First Amendment right to spend money on, and to contribute money to, political campaigns is not absolute: it is subject to a balancing of interests. Here, the FEC reasons that the government’s interest outweighs the modest burden imposed by the limit. The FEC contends that the burden is modest: first, because the regulation imposes a narrow timing requirement, the type of restriction that the Court has often upheld. Secondly, according to the FEC, candidates often make loans without expectation of repayment or in amounts well below $250,000. The FEC reasons that since the majority of loans are unaffected by the cap, and since candidate lending practices remained stable subsequent to the promulgation of the BCRA, fears of deterrence are likely exaggerated. The FEC asserts that the government’s interest in preventing corruption is compelling because contributors are more likely to have improper motivations post-election:
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special interests may make donations to avoid retaliation from a prevailing candidate or to incentivize that candidate to vote in their favor. The FEC observes that a candidate is also more likely to change their votes to align with special interests when they stand to increase their personal wealth. Therefore, the FEC concludes that a post-election contribution can be dangerously akin to a gift and points out that Section 304’s purpose in guarding against the risk of quid pro quo corruption underlies many federal laws prohibiting government officials from receiving gifts. Senator Cruz argues that Section 304 unconstitutionally deters candidates, committees, and contributors from exercising their free speech rights. According to Senator Cruz, increasing the risk that a candidate’s personal loans will not be repaid in full or at all impermissibly causes candidates to be less likely to contribute to their own campaigns. Senator Cruz points out that the cap unjustifiably compels committees to redirect their limited funds to repaying candidates for loan balances exceeding $250,000. Finally, Senator Cruz argues that the cap represents yet another constraint that further burdens contributors already affected by existing federal contribution limits. This direct and significant burden, Senator Cruz contends, fails strict scrutiny because it does not serve any anti-corruption interest. Senator Cruz points out that the original purpose of the limit was to “level the playing field” between incumbents and challengers with differing fundraising capabilities. Senator Cruz observes that Congress already addressed the corruption risk by imposing a federal limit of $2900 on individual contributions; to imply that any post-election contribution inherently poses a corruption risk would illogically contradict Congress’s judgment in allowing post-election contributions at all. Senator Cruz argues that, following the FEC’s logic, the anti-corruption concern should apply only to winning candidates; losing candidates pose no risk of changing their votes to serve special interests. Senator Cruz also points out that this risk should implicate loan-repayments of any amount; here, however, the cap inexplicably only bars amounts in excess of $250,000. Cruz observes that the FEC failed to submit any evidence of actual quid pro quo corruption in the record and concludes that their fear is therefore unfounded. Loan repayment,
Senator Cruz contends, is not analogous to a gift because it does not increase a candidate’s personal wealth, but merely reimburses a personal investment. Therefore, Senator Cruz contends that Section 304 is not sufficiently tailored because it is overbroad, applying to both winning and losing candidates, and underinclusive, addressing only loan repayments exceeding $250,000, and therefore should not survive strict scrutiny.
Discussion STANDING, TRACEABILITY, AND THE EASE OF CONSTITUTIONAL CHALLENGES TO ALLEGEDLY UNLAWFUL GOVERNMENT ACTION Public Citizen, in support of the FEC, contends that while unduly narrowing the scope of standing threatens the ability of genuinely injured persons to challenge the constitutionality and legality of government actions, traceability between the alleged injury and the defendant’s purportedly illegal or unconstitutional action does not pose an onerous requirement. Public Citizen further argues that requiring the injury to be “fairly traceable” to the challenged action of the defendant is key to ensuring that would-be plaintiffs have a personal connection to the government action that they seek to challenge, and that courts do not exceed the boundaries of their constitutionally-prescribed role. Public Citizen elaborates that the function of courts is limited—they are a non-political branch of government and therefore, courts should only resolve “‘real controvers[ies] with real impact on real persons,” rather than making policy via engineered test cases with no actual link between the alleged injury and the challenged action. The New Civil Liberties Alliance (NCLA), in support of Senator Cruz, counters that adopting the heightened standing requirement proposed by the FEC, which would require that the alleged injury be “fairly traceable” to the challenged conduct, would have disastrous effects for advocacy organizations conducting impact and public-interest litigation. In particular, NCLA contends that a “fairly traceable” standing requirement would “seriously hamper NCLA’s—and everyone else’s— ability to raise separation-of-powers and similar structural constitutional challenges” including “all nondelegation doctrine challenges, regardless of who brings them.” NCLA asserts that for organizations which
primarily bring structural challenges to the legality of actions taken by the administrative state, the “fairly traceable” doctrine would foreclose challenges to underlying statutes as would-be plaintiffs usually only sustain injury from implementing regulations and agency action—not the statute itself. Ultimately, even beyond administrative-law challenges, NCLA claims that such a “heightened standard . . . would have a devastating impact on the ability of individuals to raise judicial challenges to unlawful action by federal officials.”
COMBATING APPARENT OR ACTUAL CORRUPTION AND PRESERVING THE INTEGRITY OF GOVERNMENT The Brennan Center for Justice at New York University School of Law (Brennan Center), in support of the FEC, contends that the loan-repayment limit furthers the government’s key interest in preventing actual or perceived quid pro quo corruption, in which public officials are “misusing their position for personal gain or otherwise acting—or even appearing to act—in favor of personal financial interests, rather than the public good.” The Constitutional Accountability Center (CAC), also in support of the FEC, additionally argues that this anticorruption interest is so important because “[c]orruption was a chief concern that informed the Framers’ design of the Constitution” as the Framers believed that even perceived corruption could destabilize the Republic, destroy the public trust, and risk the “integrity of the fledgling American government.” To this end, the CAC points to existing constitutional provisions such as the Foreign Emoluments Clause, the Domestic Emoluments Clause, the Ineligibility and Emoluments Clause, and the Elections Clause as illustrative of the Framers’ concerted efforts to create constitutional safeguards against even the perception of corruption. The CAC claims that the loan-repayment limit similarly furthers this foundational anti-corruption interest by narrowly targeting post-election contributions which directly benefit the candidate. The CAC contends that such contributions are especially dangerous because there are no restrictions on a candidate’s use of the repaid funds, and donors make post-election contributions with the knowledge of which candidate won, thereby risking at least the appearance that the donor expected political favors from a winning candidate in return
for his contribution. The Campaign Legal Center (CLC), further in support of the FEC, concurs, arguing that even if there is not a single actual instance of quid pro quo corruption stemming from repayments with post-election contributions, the potential for corruption inherent in such transactions is sufficient to merit the loan-repayment limit. The Public Policy Legal Institute (PPLI), in support of Senator Cruz and the Committee, counter that the FEC’s regulation is unnecessary because there is no record of actual quid pro quo corruption occurring in the use of post-election contributions to repay a candidate’s personal loan to his campaign. PPLI additionally claims that studies show that campaign finance restrictions actually increase public suspicion of government misconduct, undermining the idea that the loan-repayment restrictions minimize the appearance of corruption. Senators Blunt, Cassidy, Cramer, Hyde-Smith, and Wicker (Senators), also in support of Senator Cruz and the Committee, further contend that the loan-repayment limit is unnecessary as any risk of corruption is already addressed by general limits on contributions and disclosure requirements. Furthermore, the Republican National Committee (RNC), also in support of Senator Cruz and the Committee, claims that candidates do not actually benefit from making loans to their campaigns; rather, upon repayment, the candidates are merely returned to their prior financial position. The Institute for Free Speech (IFS) further concurs in support of Senator Cruz and the Committee, arguing that by making a loan to their campaign, candidates risk losing their principal or the interest they could have made by investing their money elsewhere. The IFS adds that candidates are limited to commercially reasonable rates if they do charge interest. Furthermore, the IFS contends that a winning candidate may actually frown upon “fair-weather” donors who contribute only after the candidate wins the election, further minimizing the risk of corruption. Ultimately, Senator McConnell argues, in support of Senator Cruz and the Committee, that rather than furthering a legitimate government interest in anti-corruption, the loan-repayment limit serves only to protect incumbents from self-funded challengers. Full text available at https://www.law. cornell.edu/supct/cert/21-12. Written by Arisa Herman and Amaris Cuchanski. Edited by Alyssa Ertel.
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National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (No. 21A244)
Oral argument: Jan. 7, 2022 Court below: U.S. Court of Appeals for the Sixth Circuit
This case asks the Supreme Court to consider whether a stay should be issued against the Occupational Safety and Health Administration’s (OSHA) vaccine-or-testing regime for businesses with 100 or more employees. The petitioner, the National Federation of Independent Business, argues that the Court should stay the emergency temporary standard because it is likely that the emergency temporary standard at issue exceeds OSHA’s authority, and the businesses will suffer irreparable harm absent a stay. In response, Respondent OSHA argues that Congress explicitly authorizes it to address COVID-19 exposure at the workplace; and therefore, an emergency temporary standard is lawful when OSHA determines, based on substantial evidence, that it is necessary to address the immediate risk of COVID-19. The Court’s decision on this case could have significant impacts on the economy, constitutionally protected liberties, and public health. Full text available at https://www.law. cornell.edu/supct/cert/no._21a244.
Gallardo v. Marstiller (No. 20-1263)
Oral argument: Jan. 10, 2022 Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to determine whether, pursuant to the federal Medicaid Act, a state Medicaid program may recover reimbursement for its payment of a beneficiary’s past medical expenses by allocating funds from a portion of the participant’s settlement that compensates for future medical expenses. Florida law requires Medicaid beneficiaries to assign any rights to reimbursement for medical care from third parties to the state. In this case, Gianinna Gallardo contends that a state cannot collect reimbursement for future medical expenses from a Medicaid beneficiary’s settlement against a third party. In response, Simone Marstiller, secretary of the Florida Agency for Health Care Administration, counters that the state may recover
reimbursement for both past and future medical expenses because the Florida statute does not explicitly bar recovery for future medical care. The outcome of this case will affect how the burden of Medicaid costs is allocated between individuals and the state and federal governments. Full text available at https://www.law. cornell.edu/supct/cert/20-1263.
Johnson v. ArteagaMartinez (No. 19-896)
Oral argument: Jan. 11, 2022 Court below: U.S. Court of Appeals for the Third Circuit
This case asks the Supreme Court to determine whether, under the Immigration and Nationality Act, the government must prove to an immigration judge by clear and convincing evidence, that an alien who has been detained for six months is a flight risk or dangerous to the community. In 2018, U.S. Immigration and Customs Enforcement agents detained Antonio Arteaga-Martinez, a native and citizen of Mexico, who had illegally entered the United States in September 2012. The parties differ on whether 8 U.S.C. § 1231 requires a bond hearing after six months of detention, or whether the Department of Homeland Security needs to prove that an alien is a flight risk or danger to the community. The government, represented by Tae Johnson, maintains that neither are required based on the plain meaning of the statute. Further, Johnson claims that current Immigration and Customs Enforcement policies satisfy due process requirements, citing mechanisms such as required hearings, review processes, and access to attorneys. In response, Arteaga-Martinez argues that a bond hearing is required after six months of detention, and that the Department of Homeland Security must then prove that the immigrant is a flight risk or a danger to the community. Mr. Arteaga-Martinez adds that due process is not met by the government’s scheme. This case has important implications for immigrant rights and the administration of immigration law. Full text available at https://www.law. cornell.edu/supct/cert/19-896.
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Garland v. Gonzalez (No. 20–322)
Oral argument: Jan. 11, 2022 Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to consider the due process rights of noncitizens detained within the United States immigration system for over six months. Attorney General Merrick Garland argues that these detainees are not entitled to bond hearings before immigration judges after six months of detention and maintains that courts may not grant them classwide injunctive relief. Class action representative Esteban Aleman Gonzalez counters that the Due Process Clause requires that noncitizen detainees receive bond hearings before immigration judges and asserts that detainees may receive classwide injunctive relief. The outcome of this case will have impacts on the functioning of the federal immigration system as well as the safety of detainees. Full text available at https://www.law. cornell.edu/supct/cert/20-322.
Boechler, P.C. v. Commissioner of Internal Revenue (No. 20-1472)
Oral argument: Jan. 12, 2022 Court below: U.S. Court of Appeals for the Eighth Circuit
This case asks the Supreme Court to determine whether a 30-day filing deadline serves as a flexible procedural rule or a limitation on the Tax Court’s jurisdiction. Petitioner Boechler argues that the filing deadline is a procedural rule that is subject to the remedy of equitable tolling to effectively grant extensions in appropriate circumstances. Respondent Commissioner of Internal Revenue counters that the 30-day filing deadline proscribes a jurisdictional prerequisite, limiting the Tax Court’s jurisdiction to only those petitions that were timely filed within the 30-day period. The outcome of this case has important implications for the treatment of tax law, interpretation of filing deadlines within interconnected statutory schemes, and disparate outcomes for low-income taxpayers. Full text available at https://www.law. cornell.edu/supct/cert/20-1472.
Cassirer v. ThyssenBornemisza Collection Foundation (No. 20-1566)
Oral argument: Jan. 18, 2022 Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to consider whether a federal court should apply the forum state’s choice-of-law rules or federal common law in cases brought against a foreign state under the Foreign Sovereign Immunities Act (FSIA). Petitioner David Cassirer contends that the forum state’s choice-of-law rules should apply, arguing that Congress intends state law to apply so that results in cases against a foreign national and against a foreign state are the same. Thus, Cassirer argues that, in this case, California substantive law should apply. In response, Respondent Thyssen-Bornemisza Collection Foundation (TBCF) contends that federal common law should apply because jurisdiction under FSIA is more analogous to federal question jurisdiction rather than diversity jurisdiction. In this case, TBCF argues that Spanish law should govern. This case has important policy implications for foreign relations, international justice, and the separation of powers. Full text available at https://www.law. cornell.edu/supct/cert/20-1566.
Shurtleff v. City of Boston (20-1800)
Concepcion v. United States (No. 20-1650)
The Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff ’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff ’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties. Full text available at https://www.law. cornell.edu/supct/cert/20-1800.
This case asks the Supreme Court to determine whether the First Step Act requires or merely allows courts to consider post-sentencing developments during First Step Act sentence modifications. Petitioner Carlos Concepcion argues that the First Step Act requires courts to consider post-sentencing legal and factual developments during sentence modifications. Respondent United States counters that the First Step Act grants courts the discretion to consider post-sentencing developments during sentence modifications. The outcome of this case will impact the sentencing of many low-level drug offenders as well as a court’s authority over resentencing under Section 404 of the First Step Act. Full text available at https://www.law. cornell.edu/supct/cert/20-1650.
Oral argument: Jan. 18, 2022 Court below: U.S. Court of Appeals for the First Circuit
Oral argument: Jan. 19, 2022 Court below: U.S. Court of Appeals for the First Circuit
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FIFTH CIRCUIT Mississippi Chapter The Mississippi Chapter of the FBA hosted U.S. Circuit Court of Appeals Judge Cory Wilson, who spoke at an in-person luncheon at the Capital Club. Judge Wilson provided some personal background, discussed the role of federal appellate courts, offered some insights into trends in federal cases, and then responded to questions.
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Sections & Divisions
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TRANSPORTATION & TRANSPORTATION SECURITY LAW SECTION The Transportation & Transportation Security Law Section selected Ami Lovell as chair and Sarah Nural as deputy chair for the FY22 term. On December 8, the section hosted its 30th Annual Lawyers of the Year Award Ceremony. Given the circumstances, the event was held virtually. The section awarded honors to John Donaldson of the National Highway Traffic Safety Administration and Susan Prosnitz of the Transportation Safety Administration. For many years, the section has annually sponsored a reception on Capitol Hill to honor the general counsels of the Departments of Transportation and Homeland Security, as well as the chief counsels and general counsels of the various transportation-related agencies. On April 28, the section hosted a virtual lunchtime program on Commercial Space Transportation Regulation with three panelists from the Federal Aviation Administration. The program was well attended by FBA current and prospective members, including law students. On July 28, the section hosted a virtual event titled “Meet DOT Acting General Counsel John
Susan Prosnitz
Putnam.” 100+ members and guests were in attendance for a moderated discussion with the deputy general counsel for the U.S. Department of Transportation, who serves as the acting general counsel. In addition, the section held its annual Transportation Security Law Forum as a two-day event on September 8 and September 15. The 2021 theme was “Responding to Evolving Threats to Transportation Security.” The first panel discussed “COVID-Related Mandates in Transportation: Lessons Learned and Considerations for the Future,” and the second panel discussed “Transportation Cybersecurity: Federal and Industry Initiatives.” Nearly 200 members and guests attended the sessions.
BANKRUPTCY LAW SECTION
On May 4, 2022, from 2 p.m. to 3 p.m. ET, the FBA’s Bankruptcy Law Section will present the webinar “Ripped from the Headlines—A Discussion of Today’s Hottest Bankruptcy Cases.” With increased frequency, bankruptcy decisions and case names (e.g., Boy Scouts of America, Purdue Pharma L.P., National Rifle Association of America) are making nationwide news, headlines, and even segments on late night shows. As with
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every headline, there’s so much more to the story and the case than just the headline. During the webinar, our panel will discuss the headlines and delve into why every practitioner should be aware of the implications. Moderated by Jon Jay Lieberman, partner at Sottile & Barile LLC in Cincinnati, the webinar features bankruptcy judge Elizabeth Gunn of the District of Columbia, professor Sally Henry of the Texas Tech University School of Law, and Ben A. Barnes, partner at Kirkland & Ellis LLP in Dallas. Register at https://www.fedbar.org/events/.
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March/April 2022 • THE FEDERAL LAWYER • 81
Member Spotlight * Denotes Sustaining Member Michael Argenal Doug Barber* Leslie Batchelor John Bode Sam Brietbart Donald Bunton* Kasi Chadwick Charles Cohen Hector Colon Jason Comrov Michael Condyles Samantha Davis Alejandra Diaz Marrero Grace Driggers Janellis Figueroa PÈrez Jordan Foster Casey Frew Ben Glass Emily Grace Gonzalo Grovas Matthew Guy James Hardman Spencer Hashagen Amanda Herman Hillary Hurst Fred Kelly Alexander Kleinman Eli Klenberg Richard Lee Charles Lee Tian Chi Ma Jacqueline Matthews William Mauldin* Tatiana MelÈndez Kelley Messer Sergio Minero Sarah Morgan Daniel Mujica Amanda Nesta Kelly Norris Bryan O’Boyle Sergio PÈrez Stephen Pfaff Diego PicÛ-V·zquez Susan Pitchford Christopher Poole Kierra Powell Manuel Quintana Reid Rector Yelitza Rivera Aponte Abby Rivera ColÛn* Christopher Rogers Shannon SalmÛn Norsheli Sanchez Zion Savory Kasey Schlueter Jessica Schulberg Christopher Seelie Caitlyn Silhan Alexis Smith Natalia Sorgente Garrett Stadler Jaclyn Stahl Austin Stokes April Stone Peter Toren* Judah VanSyckel Claudia VÈlez Plumey Amy Weisgram-Engstram Christopher Williams* Jenna Wright Alexander Wyman
Charles Yi Marissa Yuen Amelie Zimmer
FIRST CIRCUIT
Hon. Raymond L. Acosta Puerto Rico
Barbara Becerra-Marcano Joseph Feldstein-Del Valle Maria Torralbas
Maine
Jillian O’Brien
Massachusetts
Marcella Alvarez Morgan Felicia Carboni Eloa Celedon Dean Elwell Daniel Guenther Douglas Louison Tim Mara* Robert Mellion Stella Oyalabu Michelle Schaffer Matthew Schnall
SECOND CIRCUIT
District of Connecticut John Court Jody Cummings Charles Goetsch
Eastern District of New York Michele Abatangelo Melissa Alessandro Komal Ashrafi Amber Barbone Liora Ben-Sorek Jordan Berger Samantha Bouchard Chava Cohen Kimberly Drake Mary Fatscher Jacqueline Fink Nancy Gallagher Felicia Gaon Waheda Islam Ksenia Kolesnikov Tiffany Lacy Cindy Laurent Mark Loevinger Matthew Miller Brian Mitchell Brian Muff Sarah Noel Alyssa Parisi Juliana Pires Shahzadi Raza Serena Rivera Madison Scarfaro Allison Schmidt Samantha Schneider Spencer Shapiro Brittany Sider Nicole Smith Christopher Spinosa Christina Taparata Ellen Tobin Ann Vitti Cabrera Efthemia Vlitas
Southern District of New York
Maria-Costanza Barducci Jean Dassie Amiena Khan Jessica Mencher Margery Neale David Richan* Juliann Roche Morgan Silva
Western District of New York Bernadette Gargano
THIRD CIRCUIT
Third Circuit At Large Matthew DiClemente
Delaware
Michelle Ankenbrand Bracy Dixon Amy Dudash Michael McTaggart Regina Murphy
Eastern District of Pennsylvania Daniel Krisch Ryan Thomas Eric Yun*
Middle District of Pennsylvania
Anthony Bowser Kuyomars Golparvar Royce Morris Chad Sweigart Cory Winter Sonia Wise
New Jersey Glenn Kohles Serina Vash
Western District of Pennsylvania Brian OíLoughlin
FOURTH CIRCUIT
Fourth Circuit At Large Charity Lehmann
Eastern District of North Carolina Sean Cecil Jeffrey Warren
Hampton Roads Jennifer Flurry Gaela Normile William Palmer
Maryland
Laura Abelson Akin Adepoju Himedes Chicas Charles Gamper* Dawinder Sidhu* Sheridan Yeary*
Middle District of North Carolina Jeremy Demmitt Renorda Pryor Emily Scotton
Northern District of West Virginia Christopher Prezioso
Northern Virginia Ryan Faulconer* Stacey LaRiviere Daniel Mauler Sheila Mayers Nathaniel Smith Tessa Tilton
Richmond
Peter Barrett Joseph Davis Evan Tucker
South Carolina Joe Brewer* John Cuddy Beth Richardson Benjamin Stevens
Western District of North Carolina Jonathan Ferry Jeffrey Harris Dena King James Manning Malcolm Doubles Jaime McGuire
FIFTH CIRCUIT
Fifth Circuit At Large D. Daniel Karla Garcia Anthony Guerino Nishi Kumar Venus Prince* David Quan
Austin
William Parrish
Baton Rouge
Elizabeth Bailly Bloch Ashley Deschamp Bobby Domengeaux Harley Ferguson Catherine Giering GeFranya Graham John Herrick Johnae Jefcoat-Broussard Tara Madison Ali Meronek John Parker Erin Pedrami Deidre Peterson Claire Popovich Anna Reed Cameron Robichaux Leona Scoular Mercedes Townsend
Dallas
Angela Brown Jason Cagle Angela Powers
Fort Worth Patt Gibbs*
Lafayette/Acadiana Cristie Gibbens Thomas Hightower Ross Roubion
Mississippi
Jonathan Buckner Krystal Walker Noble
New Orleans
Andrew Albritton John Alford Warren Bates Elana Beiser Jennifer Bergeron Rowan Bienes Alexander Breaux Jonathan Brehm Sara Bruce Camille Bryant Angelina Christina Kevin Cole Jonathan Forester* Kansas Guidry-Leingang Danielle Hufft Alex Keiser Robert Lansden Kelly Legier Christopher Lemieux* Audrey Martin Elizabeth McIntosh Jennifer Medley Jamie Miller Mary Mitchell Townsend Myers Jeffrey Sandman Elizabeth Sconzert Olivia Simkins Cecilia Vazquez Jimmy Whitehead Sharonda Williams Taylor Katherine Wimberly Sam Winston Ava Wolf
San Antonio
Brandon Cook* Erica Giese Jorge Grajeda Bujanda Luis Guerrero Jose Loredo Abigail Orgeron
Southern District of Texas West Bakke Zenobia Bivens Steven Boman Haley Carter John Deis Marcus Esther Bonnie Fraase Kenna Giffin Joshua Gold-Quiros
March/April 2022 • THE FEDERAL LAWYER • 83
Richard Hollenbeck Alexander Kykta* Scott Martin Charles Stam Sherri Zack
SIXTH CIRCUIT
Sixth Circuit At Large William Braff Wendy Cornejo
Chattanooga
William Bible Stacie Caraway Hardy DeLaughter Myrlene Marsa Jennifer Smith Emma Wolfenbarger
CincinnatiNorthern Kentucky, John W. Peck Samantha Berten David Boyles David Dornette* Margaret Fechtel Ariel Fox Nathaniel Garrett Jessie Greive Alesha Hamilton Jennifer Johnson Maura Lang Jacob Metzger Mollie Miller Emma Morehart Jennifer O’Connor Michael Soder Elizabeth Tuck Carley Weinberg Andrew Whelan
Columbus
Maxwell King Jeannine Lesperance Joseph Miller John Perez Amy Vogel
Dayton
Sabra Tomb
Eastern District of Michigan Theron Korsak Daniel Weininger
Kentucky
Daniel Kissane
Memphis Mid-South Tyrone Paylor Naira Umarov
Montgomery Steven Brackin Daniel Johnson
Nashville
Michael Braun
Northern District of Ohio Tameem Abdullah Ayesha Ahmad Jennifer Armstrong Fritz Berckmueller Kendyl Biondich John Breig
Christian Capece Tim Collins* Derek Diaz Marilyn Eble Brenna Fasko Dominic Frisina Allison Gerberick Eleanor Hagan Lucas Katz Jacob Kelly Tianna Kirkpatrick Spencer Luckwitz Alexandra Mendez-Diez Matthew Mullins Katie Raymond Donald Scherzer Debra Shifrin Philip Shipman Nathaniel Sinn Benjamin Syroka Ethan Weber
Minnesota
Western District of Michigan
Nikola Datzov
Marcus Guith Allie Maldonado*
SEVENTH CIRCUIT Seventh Circuit At Large Daniel McGinnis
Samuel Audley Leyla Bari Shauna Coons Mary Fee R. David Hahn Austin Keller Rachel Kohler Laura Matson Emily McAdam Joshua Mone Kevin O’Laughlin Caitlin Opperman Miguel Alexander Pozo Elizabeth Scheibel Mary Shaw Conor Smith Tony Stauber Blue Bird Thomas* Steven Wolter
North Dakota St. Louis
Samuel Freedlund Mark Thomas
NINTH CIRCUIT
Ninth Circuit At Large
Central District of Illinois Alana Hart
Yasmin Cader* John Cramer Matthew Macklin Rebekah Young Stephen Zollman
Chicago
Alaska
Thomas Ford Maria Teresa Gonzalez Kelsey Killion Laura McNally John Moynihan
Indianapolis Kellie Barr Taylor Kirklin
Southern District of Illinois Peter Alexander John Leskera Kindra Speech Nathan Stump Luke Weissler
Wisconsin
Wade Williams
EIGHTH CIRCUIT
Kansas and Western District of Missouri Danielle Atchison Mark Cole Beth Crosser Hannah Eubanks Scott Geroux Justin Howard Cathryn Lind Richard Love Ryan McCarty Karen McLeese Mary McMullen Colin Newbold Olivia Ruschill Nicholas Smith Taylor Thompson Candice Wilson
84 • THE FEDERAL LAWYER • March/April 2022
Michael Heyman
Hawaii
Gurudev Allin Chloe Berridge Joyce Chang Ethan Chun Kukui Claydon* Megan Coburn Isabelle Constant Megan Freney Terri Fujioka-Lilley Robin Girard Cori Grunenwald Ying Gu David Imanaka Jacob Kamstra Jai Keep-Barnes Nicole Kim Joshua Kim Gillian Kim Jazmyn Kim Nicole Kim Kyla Livingston Madelyn McKeague Maile Miller Sophia Morgan Lane Mullin Christopher Muzzi Jennifer Patricio* Jennifer Price-Smith J. Rogers Tatyanna Serraro Dallas Walker Jamie Williams Michael Wong Brandon Yahiro
Idaho Chapter
Jean-Claude Andre Richard Baum Elizabeth Berecin Javier Castillo Laura Inlow Robyn Loza Melissa Meister Arthur Severance Michael Simeone Mark Young
Douglas Ottenwess William Petti Sarah Pike Jenna Rangel Hannah Rawdin Kelly Reis Brittany Roberts Adam Scott Janice Sperow Paul Starita Courtney Strange Philip Tullo Hana Willard Esther Yu Darren Zhang
Nevada
San Joaquin Valley
Charles Johnson Richard Roberts
Los Angeles
Andrew Clark
Northern District of California Chapter Eleonora Antonyan Ian Barlow Lindsay Nako Kurt Nutting
Orange County Benjamin Barron Kristina Martinez Joshua Robbins
Oregon
Joshua Capp Jeffrey Eden Andrew Ho Christopher Rifer Samantha Sheehan
Phoenix
Krystal Ahart Edward Bernatavicius Janessa Doyle Whitney Harvey Caroline Larsen Jennifer Lee-Cota Randal McDonald Joseph Mckay Sophia Petrillo Elise Phalen Kedharnath Sankararaman William VanDehei
Sacramento
Quinten Jones Mitch Neumeister
San Diego
Anissa Badea Rebecca Bavlsik Nadia Bermudez Jasmine Berndt Frantz Biamby Hannah Brown Galen Cheney Gerissa Conforti Meghan Crumm Talia Edelman Crystal Erlandson Holly Hanover Dakota Hickingbottom Christina Hough Eric Jung Charlotte Kamai Jonah Kavanaugh Minjae Kim Ashley Markson Caroline Massey Cornelius Ogunsalu
Curtis Jimerson Roger Nuttall Mary Varni Gabriel Waddell Geoffrey Wilson
Washington State Rochelle Doyea Sungeun Kim Jonathan Tebbs Aaron Wagner
William D. Browning Tucson Tessa Dysart Kory Koerperich Zoey Kotzambasis Jessica Turk
TENTH CIRCUIT
Tenth Circuit At Large Morgan Lawson Clairesse Lewis
Colorado
John Scorsine Joe Tenorio
New Mexico
Maymangwa Flying Earth
Northern/Eastern Oklahoma Phillip Berry Francesca Boewe Kayla Finnegan Travis Fulkerson Scott Graham Nicholas Hartman Morgan Hinds Nicholas Kowalski Ian McDonald Kirsten Pfeiffer Jansen Rigney Logan Roehm James Russell Laurel Sitton Connor Sitton
Oklahoma City
D Colby Addison Anna Bookout Bobbie Cate Allison Christian Nick Coffey Gerard D’Emilio David Donahoe Aaron Easton Taylor Freeman Peshehonoff Austin Hamm Luke Helms
Jessica James Curtis Sarah McMurray Elyse Mendoza Jonathan Ortwein Chelsie Pratt Alison Sells Geren Steiner Quinton Tews
Helen Schroeder Michalyn Steele Robert Tensmeyer Melissa Townsend Trent Waddoups John Walsh Nicolas Wilde
Broward County
Utah
Wyoming
William Elliott
Ashleigh Baeh Colin Baker Najwa Beydoun Sara Bowland Ethan Carlos Vincent Citro Elizabeth George Zarina Hernandez Jill Kelso Deborah Moskowitz Radica Patel Jordan Trumbach
Kade Allred Thomas Alvord Jamie Bjazevich Austin Carpenter Emily Cook Richard Daynes Patricia Geary Glenn Greg Hewitt Anikka Hoidal Laura Kyte Reid Lambert Garrett Messerly Quist Michelle Benjamin Mills Alec Monson Anne Morgan Aida Neimarlija Michael Petrogeorge Nathan Phelps Jacob Roberts Rick Roskelley Nathan Schmutz
ELEVENTH CIRCUIT Eleventh Circuit At Large Taylor Cressler Riviere Duffy Danny Hydrick Teodora Maftei Sam Marticke Mary Rizzardi Ashleigh Smith Daniel Smith
Atlanta
Saraliene Durrett Ramsey Prather Cathy Scarver Matthew Sellers Samuel Smith Michael Tarleton Brittney Walker Rory Weeks
Eunice Cabrera Jennifer Friedman
North Alabama
Kyle Cunningham-Clark
Orlando
South Florida
Daniela Anidjar Karla Aponte Corey Berkin Andrew Fuller Michael Greenberg Ron Herman James Hurley Michael Mikulic Joseph Nascimento* Luis Reyes
Ta’Ronce Stowes Brian Toth Fernando Valle Jose Vazquez Zachary Weinstein
Southwest Florida Becket McGinn Michelle Otero Valdes
Tallahassee
Ambree Barnes
Tampa Bay
Lucero Ayala Feliciano Daniel Cardwell Adam Gilbert Joseline Hardrick Stephen Hill Kathryn Hopkinson Vanessa King Mitchell McBride Louis Meyer Ashley Trehan
D.C. CIRCUIT Capitol Hill
Shih-Kuei Chen Bryan Evans
District of Columbia Kara Altman Britt Biles Micah Bluming Jason Cejka Grace Chang Leonard Gendelberg Mark Grundvig Mary Beth Hasty Katrien Keyaerts Sharadha Kodem Marj Leaming Carol Messito Hilary Miller* Michael Podberesky Paul Schmidt Thomas Scott Kathryn Seen Bogdan Tereshchenko Marie Wicks Cai Xu
District of Columbia At Large Ami Lovell Jasmine MarchbanksOwens Jane Pearce
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March/April 2022 • THE FEDERAL LAWYER • 85
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Federal Bar Association Calendar of Events
MARCH
M A RC H 3 – 4
Tax Law Conference M A RC H 9
COVID-19 Workplace Safety after the OSHA Emergency Temporary Standard M A RC H 1 4
Washington State Chapter: Monthly Chapter Meeting M A RC H 1 4 – 1 8
APRIL 27
National Board of Directors Meeting APRIL 28–30
2022 Hybrid Leadership Summit
M AY
M AY 5
Banking Law Section: General Counsels’ Dinner M AY 1 3 - 1 4
Immigration Law Conference
2022 [Virtual] Thurgood Marshall Moot Court Competition
M AY 3 1
M A RC H 2 3
JUNE
Just When I Thought I Was Out They Pull Me Back In! Will the Military Continue to Retain CourtsMartial Jurisdiction Over Retirees? M A RC H 2 5
Barriers to Success and Safety for Female Lawyers and Judges
APRIL APRIL 4
Diversity & Inclusion Federal Clerkship Panel: Confidently Navigating Your Interview APRIL 7–8
Indian Law Conference APRIL 11
Washington State Chapter: Monthly Chapter Meeting APRIL 13
A Practitioner’s Guide to Evaluating Wrongful/ Reversed Conviction Claims
Visit Fedbar.org for more information.
2022 Supreme Court Admissions Ceremony
JUNE 2-3
Insurance Tax Seminar JUNE 10
National Board of Directors Meeting JUNE 12
John W. Peck Cincinnati-Northern KY Chapter: Federal Practice Seminar for the Southern District of Ohio
SEPTEMBER
SEPTEMBER 15-17
2022 FBA Annual Meeting & Convention – Charleston, SC SEPTEMBER 15
National Board of Directors Meeting
Preservation and Protection of Indigenous Nations Join the Indian Law Section for the Annual Indian Law Conference on April 7-8, 2022 at the Sandia Resort & Casino in Albuquerque, New Mexico. Tribal nations continuously work to overcome longstanding legal and policy issues facing Indian country and Native people. This year’s conference will focus on how tribal nations preserve and protect their ways of life by confronting pressing issues such as the Missing and Murdered Indigenous Peoples crisis, climate change, Indian lands issues, economic development, attacks on the Indian Child Welfare Act and the Indian Gaming Regulatory Act, and much more. Join leading experts, colleagues, and fellow advocates to explore solutions for these critical issues and implement strategies for generations to come. For information and to register visit www.fedbar.org/event/indianlaw22