Complaint in Pawnee Nation lawsuit for Earthquake Damage caused by Wastewater Injection

Here is the complaint filed in the Pawnee Nation Tribal Court in Pawnee Nation of Oklahoma v. Eagle Road Oil LLC, et al.

On Friday, March 3, the Pawnee Nation sued 27 companies that operate wastewater disposal wells used in fracking operations in and near Pawnee, Oklahoma.  The complaint alleges that the actions of the defendants have contributed to earthquakes and resulting damage to the Pawnee Nation of Oklahoma, and it includes claims based on strict liability, negligence, private nuisance, and trespass. The Tribe seeks compensatory and punitive damages.

Pawnee Nation sues several oil and gas companies in Tribal Court for quake damage

We noted last November that the Pawnee Nation sued the Dept. of Interior in federal district court to challenge the approval of federal oil and gas leases on tribal lands here.

Today, several news agencies here, here, and here report that the Pawnee Nation has sued 27 oil and gas companies in the Pawnee Nation Tribal Court for damage caused by earthquakes.  Earthquakes have been associated with wastewater injection practices used in conjunction with hydraulic frackingLast September, the Pawnee Nation suffered damage to historic buildings due to a 5.6 magnitude earthquake.

We’ll post a copy of the complaint as soon as it becomes available.


Law Students: Enter the LSAC 2017 Diversity Writing Competition to win $5000

This year’s LSAC Diversity Writing Competition topic is “Why Pipeline Programs Targeting Students from Underrepresented Racial and Ethnic Backgrounds are Essential to the Future of the Legal Profession.”  Current JD candidates are invited to submit papers addressing this topic.  The deadline for submissions is Friday, March 31, 2017, and LSAC will award three $5000 prizes to the best paper submitted by a 1L, 2L, and 3L/4L.  In addition, one winner will have a chance to publish their entry in the Journal of Legal Education.

We know there are law students following Turtle Talk who could write excellent papers on this topic. LSAC’s rules for submissions are here.

EPA publishes Revised Interpretation of Clean Water Act TAS Provision

On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements.  This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status.  The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.

The Final Interpretive Rule published in the Federal Register is here.

The EPA’s Response to Public Comments on the Revised Interpretation here.

Continue reading

Indian Law Job Announcements

I added a new page that provides an overview for finding Indian law job announcements on Turtle Talk and elsewhere on the internet.  To access it, click on “Indian Law Job Announcements” in the black bar immediately below our Turtle Talk banner at the top of the webpage.  The page offers advice for first and second year law students seeking summer clerkships as well as third year law students and law graduates seeking permanent employment.


New Article by Lorinda Riley on the Role of Politics in Federal Recognition

Lorinda Riley has published “When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations,” in the American Indian Law Review.

Here is a description excerpted from the article’s introduction:

This article explores how each presidential administration has both shaped and bent the federal recognition regulations to fulfill its political priorities. By merging a quantitative analysis of each administration’s federal recognition record and the political realities that each administration faced, this study provides a rare inquiry into the political nature of the recognition process. First, this article examines the regulatory history of federal recognition, including a detailed discussion of various versions of the regulation and accompanying guidance published by the Department of the Interior (DOI). Then the article provides an overview of how politics play into the regulatory process and the implementation of regulation. Finally, the article re-visits each administration’s actions related to federal recognition, and considers how each administration has utilized these regulations to serve its own political priorities.



A Look at the New California Law Banning Public Schools from using the term Redskins

As widely reported here, here, and here, California is now the first state in the nation to enact legislation forbidding all public schools from using the term Redskins for school or team names, mascots, or nicknames.

From the L.A. Times:

As of Jan. 1, 2017, all public schools will be barred from using the term “Redskin,” which many Native Americans consider a racial slur. The measure by Assemblyman Luis Alejo (D-Watsonville) will allow schools that use materials that contain the term, such as uniforms, to phase out their use to alleviate cost concerns. The new law will affect four California high schools in Merced, Calaveras, Tulare and Madera counties.

The legislation, called the California Racial Mascots Act, was approved by the Governor on October 11.  It includes the following findings:

(a) The use of racially derogatory or discriminatory school or athletic team names, mascots, or nicknames in California public schools is antithetical to the California school mission of providing an equal education to all.
(b) Certain athletic team names, mascots, and nicknames that have been used and remain in use by other teams, including school teams, in other parts of the nation are discriminatory in singling out the Native American community for the derision to which mascots or nicknames are often subjected.
(c) Many individuals and organizations interested and experienced in human relations, including the United States Commission on Civil Rights, have concluded that the use of Native American images and names in school sports is a barrier to equality and understanding, and that all residents of the United States would benefit from the discontinuance of their use.
(d) No individual or school has a cognizable interest in retaining a racially derogatory or discriminatory school or athletic team name, mascot, or nickname.

The legislation provides that, “[B]eginning January 1, 2017, all public schools are prohibited from using the term Redskins for school or athletic team names, mascots, or nicknames.”  It also includes provisions that ameliorate the financial impact that this new law might otherwise cause for schools that use the term Redskins.  It allow schools to continue to use uniforms or materials bearing the term Redskins after January 1, 2017 as long as the school selects a new school or athletic team name, mascot, or nickname, and the school does not purchase new uniforms or other materials such as yearbooks, newspapers, marquees, signs or other fixtures that bear the term.  The targeted schools will essentially be able to slowly progress toward elimination of the use of word Redskins on team uniforms and materials as they purchase new uniforms and equipment in the ordinary course of replacing these items.

Although California is the first state to use legislation to ban public school use of Redskins, it is not the first state to adopt a state-wide measure that phases out use of the term. In 2012, the Oregon State Board of Education adopted a resolution and final rule that prohibits the use of any Native American mascot by a public school on or after July 1, 2017.  For those interested in the findings and sources relied upon the Oregon Board of Education in reaching its decision to adopt the rule, the Board’s final report on the use of Native American mascots is available here.  Some may also be interested in a 2014 report on Native American mascots in schools produced by the Center for American Progress, which is available here.

California and Oregon aside, there remain 21 states representing 58 high schools in the U.S. that use Redskins as a team name or mascot.  These schools are marked on the map below.  Many more schools throughout the U.S. use other Indian mascots, such as Indians, Warriors, Braves, and Chieftans.

Map of high schools that use the Redskins name

Interestingly, the area of lower Michigan, Indiana, Ohio, and Pennsylvania have the highest concentration public high schools using the name Redskins, constituting nearly half of the schools on the map.  This “Redskins Belt” includes six Michigan high schools, identified on the list and map below.

List of Michigan high schools that use Redskins as a name or mascot   Map of Michigan public high schools using Redskins name

Past efforts to ban the use of Native American mascots throughout the state of Michigan have been unsuccessful.  In 2013, the Michigan Department of Civil Rights filed a complaint with the U.S. Department of Education Office for Civil Rights on behalf of all present and future students who self-identify as American Indians, alleging that thirty-five schools in Michigan engage in the continued use of American Indian mascots, names, nicknames, logos, and other imagery, creating a hostile environment and denying equal rights to all current and future American Indian students.  The complaint was dismissed because, in an effort to protect students from a possible backlash at their schools, the Michigan Dept. of Civil Rights offered empirical studies that supported the psychological harm experienced by American Indian students in lieu of specific examples of race-based incidents and the identity of students and individuals who suffered specific harm because of the alleged discrimination.  The US Dept. of Education Office for Civil Rights concluded that these omissions rendered the complaint insufficient to support an inference that racial discrimination had occurred or was occurring.

For states like Michigan with public schools that continue to use Indian mascots, the strategies pursued in California and Oregon provide new examples of pathways to successfully banning Indian mascots. One thing is clear, however.  Any state that takes seriously 1) its commitment to ensure that students are not subjected to unlawful discrimination in public schools on the basis of race or color and 2) its obligation to provide an educational environment that is not hostile and that promotes educational attainment for all,  should closely examine the effect of and potential prohibition of the use of Indian mascots in schools.

Congrats, Whitney Gravelle and Alayna Farris! 2015 Summer Clerks’ work recognized by NARF

Alayna Farris, Whitney Gravelle, and John Echohawk recognize the donation from the Confederated Tribes of Siletz
Alayna Farris, Whitney Gravelle, and John Echohawk recognize the donation from the Confederated Tribes of Siletz

At the Indigenous Law & Policy Center, we’re very proud of the work of current and past MSU College of Law Students. This week, Whitney Gravelle (MSU COL ’16, Anishinaabe from the Bay Mills Indian Community) was featured in an update from NARF.  Whitney and her summer clerk colleague, Alayna Farris from the University of Arkansas School of Law, worked on several matters, including the revision and updating of A Compilation of Federal and State Education Laws regarding Native Language in Curriculum and Certification of Teachers in Native Languages.   Their work at NARF this summer was made possible by a grant from the Confederated Tribes of Siletz Indians and the Siletz Tribal Charitable Contribution Fund.

More information is available here.

Although the deadline for the NARF Summer 2016 Clerkship program has passed,  interested first year law students should research this excellent opportunity and prepare to apply in the early fall of 2016 for the Summer 2017 Clerkship program.

Whitney Gravelle at NARF
Whitney Gravelle at NARF

Resources for Lawyers and Law Students with ADHD

A conservative estimate of 44,000 lawyers have ADHD/ADD, the majority of which are diagnosed. Lynn Phillip’s article in the ABA’s GPSolo Magazine outlines some of the major warning signs for lawyers.

In lawyers, one of the most obvious manifestations of the condition is their ongoing attempts to “get organized”—which always end in only short-term success, if any. They report falling behind in their work or being fearful they missed something important, and frequently they feel that they are not living up to their potential. By this point in their lives, many lawyers have learned to work around the manifestations of their ADHD symptoms. They struggle to stay focused on boring tasks, have trouble managing their time, and often start projects enthusiastically but quickly lose their excitement and, with it, the desire to finish the project. They are usually aware of being facile and quickly grasping and building on concepts, but planning for the eventual goal is a problem. They often have low self-esteem because of their inability to be consistent, stay focused, and curb impulses, and frequently they struggle with relationships—partly because they miss or misunderstand the social cues people give one another. They question why things that seem easy for others can be such problems for them.

This does not mean lawyers with ADHD are not extremely successful in practice. Here is one lawyer’s story of living with ADHD.

The World Health Organization has created a short self-diagnostic test, which can help in determining whether taking the time for a professional evaluation would be worthwhile.

Lawyer Assistance Programs are a great first resource for lawyers and law students with ADHD. State LAPs are often able to provide short-term counseling, referrals to doctors and counselors, and additional resources.

Law students with diagnosed, or undiagnosed, ADHD experience an especially difficult time staying organized, focusing on reading assignments, and ensuring deadlines are met throughout the semester. Students with an ADHD diagnosis should ensure they are working with their law school’s student services office to obtain any necessary exam or classroom accommodations needed.

The Harvard University Bureau of Study Counsel in the Center for Academic and Personal Development has developed many resources for students with ADHD, including short guides on Remembering What You Read, the Fundamentals of Time and Task Management, Practices in Managing Time, and Strategies for Focus and Concentration.