San Diego Lawyer September/October 2022

NATIVE AMERICAN TRIBES AND THE LAW

INCLUDING:

A Look at San Diego and

History

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EDITORIAL Woke Up This Morning Feeling ... Not Fine? by George W. Brewster Jr.

LAW SCHOOL COLUMN "You Don't Look Native American" by Galina Kaye

ETHICS

Sometimes a Necessary Remedy When a Lawyer Dies or Becomes Disabled by Edward McIntyre

TECHNOLOGY Tech Tips and Tidbits by Bill Kammer

BUSINESS OF LAW Space and Time in a Non-Einsteinian Universe by Edward McIntyre

WHY I LAWYER by Gabriela May Magee

WHAT TO DO WHEN YOUR CLIENT DISAPPEARS by Mallory H. Chase

SDCBA MEMBER PROFILE Get to Know Valerie Silverman Massey

MEET YOUR BAR-ISTA Martin Sabory Director of Finance & CFO

DISTINCTIONS

Community Members Honored for Their Achievements

PHOTO GALLERY

SCHOOL DISTRICTS ARE NOT STUDENTS' INSURERS by Rachel Garrard and Jacob Spaid

THE JUDICIAL APPOINTMENT PROCESS

San Diego Superior Court's Judicial Mentor Program by Judge Dwayne Moring

NATIVE AMERICAN TRIBES AND THE LAW

SPOTLIGHT OF THE INTERTRIBAL COURT OF SOUTHERN CALIFORNIA by Devon L. Lomayesva

A LOOK AT SAN DIEGO AND CALIFORNIA'S TRIBAL HISTORY by Devon L. Lomayesva and Angela Medrano

WHAT IS FEDERAL INDIAN LAW? by Colin C. Hampson and Angela Medrano

LAWRENCE BACA From Growing up Indian in San Diego to Fighting on Behalf of Indian Country Nationwide by Wilson Adam Schooley

THE CABAZON DECISION — 35 YEARS ON by Glenn M. Feldman

THE TRIAL OF ANTONIO GARRA, SAN DIEGO 1851 by Hon. William J. Howatt, Jr. (Ret.)

THE JURISDICTIONAL MAZE IN INDIAN COUNTRY AND PUBLIC LAW 280 by Dorothy Alther

Cover photo courtesy of Wilson Schooley.

Co-Editors

George W. Brewster Jr. Gayani R. Weerasinghe

Editorial Committee

Issue no. 5. San Diego Lawyer® (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is (619) 231-0781. The price of an annual subscription to members of the San Diego County Bar Association is included in their dues. Annual subscriptions to all others: $50. Single-copy price: $10.

Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright ©2022 by the San Diego County Bar Association.

All rights reserved. Opinions expressed in San Diego Lawyer are those of the authors only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board.

Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea for consideration. San Diego Lawyer reserves the right to edit all submissions, contributed articles and photographs at its sole discretion.

Eric Alizade Sara Gold Wendy House Julie Houth Anne Kammer Edward McIntyre

SAN DIEGO COUNTY BAR ASSOCIATION Board of Directors

President

David Majchrzak

President-Elect A. Melissa Johnson

Immediate Past President Renée N.G. Stackhouse Secretary Stacey A. Kartchner

Treasurer Michelle A. Gastil

Vice Presidents Warren Den Wilson A. Schooley L. Marcel Stewart Kimberly Swierenga

Directors

Leslie Abrigo

Jodi Cleesattle Brandon Kimura Tatiana Kline Brenda Lopez Angela Medrano Spencer Scott Robert M. Shaughnessy Fanny Yu

New Lawyer Division Chair Jake Zindulka

SDCBA Staff — San Diego Lawyer

Michael Olinik Stephanie Sandler Wilson Schooley Andrea Warren 401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 • bar@sdcba.org • www.sdcba.org

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44

Statement of Ownership

1. Publication title: San Diego Lawyer. 2. Publication number: 1096-1887. 3. Filing date: 10/1/2022. 4. Issue frequency: Bimonthly. 5. Number of issues published annually: 6. Annual subscription price: $50.00. 7. Complete mailing address of known office of publication: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, San Diego County, CA 92101. 8. Complete mailing address of headquarters or general business office of publisher: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 9. Full names and complete mailing addresses of publisher, editor and managing editor. Publisher: Keith Fisher, 401 West A Street, Suite 1100, San Diego, CA 92101. Editor: Ron Marcus, 401 West A Street, Suite 1100, San Diego, CA 92101. Managing Editor: Ron Marcus, 401 West A Street, Suite 1100, San Diego, CA 92101. 10. Owner: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 11. Known bond holders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: None. 12. Tax Status: Has Not Changed During Preceding 12 Months. 13. Publication title: San Diego Lawyer. 14. Issue date for circulation data below: 09/01/2021—08/31/2022. 15.

Extent and nature of circulation: Membership/Trade Publication. a. Total no. of copies. Average no. copies each issue during preceding 12 months: 5,227. No. copies of single issue published nearest to filing date: 5,223. b. Paid circulation. (1) Mailed outside-county mail paid subscriptions stated on Form 3541. Average no. copies each issue during preceding 12 months: 152. No. copies of single issue published nearest to filing date: 121. (2) Mailed in-county paid subscriptions stated on Form 3541. Average number copies each issue during preceding 12 months: 5073. No. copies of single issue published nearest to filing date: 5,101. (3) Paid distribution outside the mails including sales through dealers and carriers, street vendors, counter sales and other paid distribution outside USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (4) Paid distribution by other mail classes through the USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. c. Total paid distribution. Average no. copies each issue during preceding 12 months: 5,225. No. copies of single issue published nearest to filing date: 5,222. d. Free or nominal-rate distribution. (1) Outsidecounty copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (2) In-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (3) Not applicable. (4) Free or nominal-rate distribution outside the mail. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. e. Total free or nominal-rate distribution. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. f. Total distribution. Average no. copies each issue during preceding 12 months: 5,225. No. copies of single issue published nearest to filing date: 5,222. g. Copies not distributed. Average no. copies each issue during preceding 12 months: 100. No. copies of single issue published nearest to filing date: 100. h. Total. Average no. copies each issue during preceding 12 months: 5,325. No. copies of single issue published nearest to filing date: 5,322. i. Percent paid. Average no. copies each issue during preceding 12 months: 100%. No. copies of single issue published nearest to filing date: 100%. 16. Electronic copy circulation: Not applicable. a. Paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. b. Total paid print copies + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. c. Total print distribution + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. d. Percent paid. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. 17.

Publication of Statement of Ownership for a general publication is required and will be printed in the 10/2022 issue of this publication. I certify that all information furnished is true and complete.

Keith Fisher, Interim Executive Director, San Diego County Bar Association

EDITORS’ NOTE

By George W. Brewster Jr. and Gayani R. Weerasinghe

Putting out a regular issue of San Diego Lawyer six times a year is no small feat, and we as editors are blessed with outstanding Bar staff talent and a stable of regular writers to help us pull it off. This particular issue on Native American laws and practice, however, involved a number of additional brainstorming sessions and a search for writers with a particular knowledge of the selected topics. Therefore, in this month’s Editors’ Note, we wish to take note — and give much thanks — to Angela Medrano and Wil Schooley for their guidance, energy, and assistance in helping us put this special issue together.

There are approximately 110 federally recognized Native American tribes in California, with the County of San Diego having more Indian reservations than any other county in the United States. Over 30,000 Native Americans live in the County, although only a small percentage live on reservation land. Given the complexity of tribal law, and the rich and varying traditions maintained by the many tribal members in this County, it seemed well past time to devote an issue to Native American laws and practice. We are also cognizant of the upcoming National Native American Heritage Month this November, and we hope that this issue provides our readers with a better understanding of why November was set aside to recognize the many sacrifices and achievements of Native Americans, and to join them in celebrating their rich and vibrant cultures.

EDITORIAL

WOKE UP THIS MORNING FEELING … NOT FINE?

BY GEORGE W. BREWSTER JR.

This issue of San Diego Lawyer is devoted to some of the stories, laws and tribulations of Native Americans. This particular article is written by someone who is not Native American — me. But I volunteered to write from an old white guy perspective, which may bring very little to the table these days. Let’s start and find out.

First, I had wanted to use the term “woke,” which has a dictionary definition (used as an adjective) as defining one who is “alert to injustice in society, especially racism.” That sounds like a positive, but sadly the term has been politicized by some commentators, which is a shame. There is a unique history for this term, largely applying to African Americans and a call for an awakening to fight racism in all forms. It seemed like a good term to use to discuss racism against Native Americans, but I have been warned to tread carefully and so I will.

Second, turning my focus to Native Americans, I have a developing understanding of Indian culture, including the interplay of tribal laws and American jurisprudence. I recognize that I lack a full appreciation of the harm caused to Native peoples, and that my casual use of terms, words and phrases may now be deemed insensitive. I hope not; it is not my intent nor desire. For example, I pondered and debated the use of the word “Indian” in the first sentence of this paragraph — would I be wrong to use this term?

Third, I cannot explain the intolerance of people. Late in life, my dad would lament — jokingly I hope —

that “people are no damn good” — and this was after many years in LA politics. So he was probably jaded by that. But, really, are people good? Are we as a species able to appreciate diversity, to celebrate it, or are we doomed to turn toward a dark and selfish trait that pops up whenever we feel we are not getting all that we are somehow entitled too? That is how I have come to look at the sad and dark history of how non-Native people treated Native Americans.

As a kid I had playtime with plastic cowboy and Indian figures, but it was a pretty shallow exercise that only served to instill an “us vs them” sort of feeling. Tonto helped the Lone Ranger — he often seemed the wiser — but Tonto was still the side kick. Custer’s Last Stand was a mixed bag of messaging, until the movie Little Big Man showed things from a different perspective. A Native American came to the Oscars and turned it down on Marlon Brando’s behalf. Are we evolving yet?

In my work as a County lawyer, I encountered Sovereign Immunity issues and met very rarely with tribal leaders and their counsel. But it was eye-opening when I did meet with tribal elders and other members of a particular tribe and talked with them one on one. Was I woke (if I may borrow this word in its good sense)? Probably not, but maybe lingering down the right path.

None of this is meant to explain away anything, nor beg off the essential question I pose to myself: what is an old white male to do to be better at diversity?

The answer is simple: keep trying. Along these lines, I note with interest a recent flap at Lake Cuyamaca where tipis were used as rental accommodations. The area was near a location sacred to the Kumeyaay Tribe and using tipis as tent rentals was considered cultural appropriation. The general manager of the recreation district was unaware there was an issue until it was raised by a member of a local tribe. I surprised myself by immediately agreeing with the idea that it was inappropriate and felt empathy (“woke” might have been a good term here).

Another thing that has recently helped me in my own bumpy and long journey of understanding is watching an engaging comedy-drama series on Hulu, called Reservation Dogs . Written, directed by, and starring Native Americans, it presents small slices of teen life while living on a reservation. I like it, it’s often funny, and it makes me think about the lives of the teens, their elders, and the visiting spirits long after the episode is over.

The point of this essay is one of hope. Hope for myself, sure, but also a hope and a prayer that people can be damn good after all and that we can appreciate — and not deride — each other’s differences. As co-editor of

San Diego Lawyer, I am challenged and tasked with every issue to represent the interests of the bar membership, and to make sure we keep the diversity pledge in mind. I entrust this issue to your careful reading, and hope that you wake up tomorrow feeling, well, woke.

George W. Brewster Jr. (sandbrews@aol.com) is a retired attorney after 35 years of practice, including JAG, private practice, and the last 30 with the County of San Diego, Office of County Counsel.

“The point of this essay is one of hope. Hope for myself, sure, but also a hope and a prayer that people can be damn good after all and that we can appreciate — and not deride — each other’s differences.

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'YOU DON’T LOOK NATIVE AMERICAN'

In junior high, I asked a teacher “When would we learn more about Native Americans?” Being biologically Cherokee, I’d hoped to learn about my heritage. My teacher responded, “You can learn about them when you get to college.”

Despite being raised Jewish, I have always felt Native American. Yet, I know little about the people I came from, only that my mom got permission from the Cherokee Nation to adopt me.

Intersectionality has always played a role in my life. I am a Jewish, Native American woman, who has never fit into a box. I wish I could say I always wanted to be a lawyer. My mother was a single parent who practiced personal injury, employment, and elder abuse law. She didn’t want me to be a lawyer. And seeing how stressful her job was, I agreed it wasn’t for me.

In college, though, I majored in poli-sci and realized that politics impacts law. If I wanted to create positive change, law school would give me the best chance. I did not anticipate that my Native American heritage would play any direct role in my experience. I was wrong.

Another student asked me my race. I told her Native American and white. “You don’t look Native American,” she responded. My white appearance is rooted in genocide and rape. I realized how little most people know about us.

We want to hear from you.

I attend law school as a white-passing minority. I manage my time, take practice exams, and learn my weaknesses just like other students. But less obvious experiences differ. Thinking I was white, a Caucasian student assumed we shared a common experience and thought that I was the only person she could relate to. But I have more in common with other minority students, feeling at home with people who may have faced similar struggles. That others can’t see it when they look at me poses a different sort of challenge that other Native American students may share.

The only reason I have this opportunity is because my mom adopted me. My older twin brother and sister were separated by social services and just found each other. Many of my unadopted siblings have suffered from incarceration, homelessness, and drug addiction. I would be there too had a San Diego lawyer not chosen to give me the life I’ve had.

As the first in my biological family to go to college and graduate school, I will use my education to be a voice for those not heard.

Galina Kaye (kayegi@tjsl.edu) was raised in San Diego by her mother Marcy, who recently passed away in April. When she was 8 years old, Galina began working in her mother’s personal injury office. It was through her mom that she became passionate about the law, politics, and helping others.

San Diego Lawyer welcomes article submissions from practicing attorneys and industry experts on various law-related topics. Interested contributors can view guidelines and submit their ideas using the form at www.sdcba.org/SDLidea.

We also highly encourage the participation of diverse authors, including (but not limited to) people who have less than five years of legal practice, women, people of color, people with disabilities, and people who identify as LGBTQ+.

Please read posted submission criteria carefully. Publication cannot be guaranteed, but the SDCBA appreciates and will consider all article submissions.

ETHICS by Edward McIntyre

SOMETIMES A NECESSARY REMEDY When a Lawyer Dies or Becomes Disabled

Illustration by George W. Brewster Jr.

Jacob Sanders came early to his meeting with Macbeth. “Jake, come in. Let me get the brain trust assembled.”

Within minutes, they sat at Macbeth’s conference table with Sara and Duncan, introductions completed.

“Jake, you said this meeting was both sad and important?”

“My dear friend, Mark Lantz, died. Sole practitioner. Family law,” he shrugged, “about which I know nothing.”

“I’m so sorry. You two were close. Saw you from time to time at the Stout House near the courthouse. What can we do?”

“Yeah, we were.” He paused. “Lisa, his widow is not a lawyer. Knows nothing about his practice.”

“Is there anyone else?”

“He had a paralegal assistant. She knows his practice inside out. But, not a lawyer. She tells me there are unearned fees in his trust account. Files to go back to clients. Or new lawyers.” Sanders paused again. “Just so much to do. I want to help, if I can, but don’t know what to do — ”

“You can, Jake. We’ll give you the support you’ll need.”

“Appreciate that. Where do I start?”

“Did he and his wife have an A/B Marital Trust? Is she the successor trustee?”

“That’s my understanding.”

“Provisions in the Probate Code allow her, as trustee, to ask the court to appoint a ‘practice administrator’ to help close his practice.”

“That means going to court. Getting a probate lawyer. I’m just a real estate guy.”

“Don’t play humble. You’re one of the smartest transactional lawyers I know. The State Bar Act gives another option. That’s where you come in.”

“How so?”

“The Act allows an interested person to petition the court to assume jurisdiction over a deceased or disabled lawyer’s practice. The court will appoint a lawyer to carry out a whole list of duties to protect the interests of clients and others.”

“Like what?”

“Notify clients. Return their files. Or pass them to their new lawyers. Get courts to extend deadlines. Collect funds in trust and other accounts. Deliver funds to appropriate persons.”

Sara added, “If there are pending deadlines, a court can enter an emergency interim order to protect clients, for example.”

“But I’m not a family lawyer —”

Macbeth interjected: “You don’t have to be, Jake. If the court appoints you, you’ll act as administrator. You’ll have confidentiality obligations to Mark’s former clients, of course. But they won’t be your clients. Your role will be to get them to other, competent lawyers. His paralegal should be a terrific help.”

“It sounds like you’ve done this before.”

“We have. We’ve assisted other lawyers like you. Sara’s done several petitions.”

“I’m sure Lisa will pay —”

Macbeth held up both hands. “Jake, please. It’s our service to the profession. To someone who needs a bit of help.”

“What about his bank accounts?”

“His paralegal knows where he banked? What may be owed to former clients? What bills have to be paid?"

“Spoken with her. She’s on top of it.”

“You may consider speaking with Lisa about compensating the paralegal while this goes on. It sounds as if she’ll be critical to winding up the practice. Also, it’ll give her time to find another position.”

“Great point. I’m meeting with Lisa this afternoon.”

Sara spoke. “His practice may be an asset of his estate. If his wife, as trustee, wishes, you can attempt to sell his practice. There’s a whole separate procedure to do that. I can help you through it. If that’s what she’d like.”

“I’ll ask. What about the banks?”

Macbeth laughed. “Sara can fill you in.”

Sara shook her head. “Some understand the process. accept the court’s order of appointment, and cooperate. Others?” She shrugged. “Likely out of ignorance, they put up roadblocks. We’ve had to go back to court. Get specific, detailed orders. One judge had to use the C word.”

“Contempt?”

“The ultimate remedy. It worked.”

“One problem. I’m not a litigator. I do real estate deals.”

Macbeth nodded. “We’re trial lawyers. Sara’s been quite effective. We’re pleased to help. Let us know when you’re ready.”

Sanders gathered up his legal pad of notes. “You can’t imagine how relieved I feel. I wanted to help — but felt helpless. I appreciate your kindness. I came to the right place.”

Editor’s Note: Business and Professions Code section 6180, et seq. governs a court assuming jurisdiction over a practice. Probate Code sections 17200, subdivision (b)(22) & (23) and 9764, among others, address appointment of a practice administrator.

Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer.

GOT A LEGAL ETHICS QUESTION?

CALL THE LEGAL ETHICS HOTLINE: (619) 231-0781 x4145

The SDCBA Legal Ethics committee is here to help! SDCBA members can call our Legal Ethics Hotline* for guidance and perspective on a variety of ethical considerations in the practice of law. Your call will be taken by a seasoned attorney with significant experience in legal ethics issues.

Simply call the hotline and leave a message with your phone number, your question, and any context you can provide that can help our attorneys research your question before responding. One of our Legal Ethics Committee members will call you back to discuss your question with you.

*Before calling, please read this disclosure: https://www.sdcba.org/docDownload/47105.

TECHNOLOGY by Bill Kammer

TECH TIPS AND TIDBITS

Creative Rule 502 Stipulations

Previous articles discussed our profession’s slow adoption of the benefits of Federal Rule of Evidence 502. A year ago, the Sedona Conference published an excellent monograph on the Rule at https://thesedonaconference.org/downloadpublication?fid=5890. That lengthy commentary discusses the rule and its benefits, and its appendices include a model rule order and a table of all the federal districts with a listing of any local model rules or orders.

Recent cases and comments have focused on several interesting aspects of the rule. Though its terms explicitly cover Attorney-Client Privilege and the Work Product Doctrine, some have suggested revising stipulations and protocols to include other privileges relevant to the case. Whether that will succeed remains to be seen, but I cannot imagine the risk if it doesn’t.

Additionally, commentators have focused on revising stipulations and protocols to avoid restrictions in the adopted rule. These include the necessity of proving that the disclosure was inadvertent; that there had been reasonable steps to prevent it; and that prompt steps were taken to rectify the error. In those situations, cases have upheld the parties’ agreement to modify literal adherence to the specific terms of the rule.

Phishing Continues Its Evolution

Most prior cyber defense education about phishing has focused on emails, though it gradually included malevolent text messages. By now, who hasn’t received a text message from Walmart asking you to share your thoughts after your most recent visit? Just click on the link and enjoy the chance to win a $75 bonus.

However, the bad guys have now learned to exploit other communications whose users have not yet understood the need to keep their guard up. For instance, there has been a recent focus on Facebook as a venue and Facebook Messenger as a device. Using compromised Facebook accounts to scrape profile information, the threat actors use Messenger to spread phishing pages to targeted and unsuspecting recipients. The result has been a substantial increase in the number of Facebook phishing page views. In one case, 8 million visitors were redirected to a dangerous page. For further information, security consultants at KnowBe4 have amassed substantial resources at https://blog.knowbe4.com/ facebook-phishing-scam-steals-millions-of-credentials. This page also includes a free phishing security test you can immediately deploy for up to 100 users.

Another new development is an email notification stating that a voicemail attachment is waiting for you to listen. Clicking on that attachment redirects the recipient to a webpage requesting a login to Outlook or Office 365. Most people should know better. If they don’t, but have a password manager, that manager may refuse to autofill passwords into login forms that do not reside on the usual legitimate site’s pages. Cyber consultants at Zscaler have more information and some examples of this new phishing attack. Consider https://www.zscaler.com/ blogs/security-research/resurgence-voicemail-themedphishing-attacks-targeting-key-industry and https:// www.darkreading.com/remote-workforce/microsoftoffice-365-users-raging-spate-attacks.

Ransomware Update

Cyber security consultant Sophos issued a recent report based on a survey of over 5,000 IT professionals. Highlights included a 57% increase in the volume of

ransomware attacks and average ransomware payments of about $800,000 compared to the prior year’s $170,000. Insurance coverage of these risks has also become more complex and more expensive. Sophos reported that about half of the respondents found that qualification for coverage was more difficult and that policies were now more complex. The number of insurers offering coverage had declined by approximately 40% and, not surprisingly, 34% of the respondents found coverage more expensive. More details are available at https://assets.sophos. com/X24WTUEQ/at/tb4fv9bs9gwf4scbkbhn7sb/ sophos-cyber-insurance-2022-wp.pdf and https:// complexdiscovery.com/consumers-paying-the-pricecost-of-a-data-breach-hits-record-high-according-tonew-ibm-report.

LinkedIn: Reward vs. Risk

For years, marketing advisors working in our profession have recommended an intelligent and detailed use of LinkedIn. For instance, look at some of Dennis Kennedy’s blog posts: https://www.denniskennedy. com/blog/2012/02/using-linkedin-app-to-increaseyour-linkedin-accounts-value. Anyone with a LinkedIn account knows that the company aggressively suggests connections and comments and provides numerous notifications about new content. Sadly, recommended inclusion of significant biographical content and self-identification of contacts enables a miscreant to compile sufficient resources to achieve an apparently legitimate familiarity. That may begin with small talk over messages, but can ultimately progress into a fraudulent investment scheme or other sad consequences. LinkedIn investment frauds have become frequent enough to provoke a recent FBI warning, and CNBC published a report on these developing threats: https://www. cnbc.com/2022/06/17/fbi-says-fraud-on-linkedin-asignificant-threat-to-platform-and-consumers.html.

Allowing Access to Contacts

Most professionals use Microsoft products (and particularly Office 365) for many day-to-day tasks. Many are also using Apple devices to communicate. Ultimately, they integrate all resulting data and sync it across multiple platforms. Outlook’s contacts can present ethical concerns for lawyers who are tasked with a professional responsibility to preserve the confidences and secrets of their clients. How many lawyers populate their contacts’ notes with information about the client such as Social Security numbers, family details, and phone numbers? Perhaps we all do, plus even more detailed confidences.

Yet how many of us respond to the requests of applications to share our contacts? Those apps can include business sites such as banks and retailers, payment apps such as Venmo, and social sites such as Facebook and LinkedIn. Even Samsung’s internetconnected Smart Washer wanted to share contacts. This is all reminiscent of discussions years ago about why flashlight mobile apps wanted access to anything other than a phone’s camera. The obvious answers are always that someone is trying to monetize our data.

If we permit an app to access our contacts, what are we sharing? Where is that data going and how will it be used? We need to think twice about what we might include in our contacts’ notes and why we allow anyone to share our contacts. This is not a new problem but only a reminder that, in our often frantic practices, we need to stop and consider what we are allowing others to do with our data. See Business and Professions Code Section 6068(e)(1).

Starting a new firm? Or trying to tame your current operation? Wondering which practice management platforms to use? Confused about all those tools in your Microsoft 365® subscription?

Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.

Business of Law by Edward McIntyre

SPACE AND TIME in a Non-Einsteinian Universe

We practice our profession in time and space. For those who bill hourly, time is your friend. Space, on the other hand, for all of us, is more nuanced.

Payroll and rent remain two large segments of law office budgets, although COVID-driven technology acquisitions have pushed this category into the fore. COVID, with now almost three years of remote and semi-remote practice, has altered the space landscape. What do the experts say may be on the horizon?

In its August 10 “San Diego Market Update,” Hughes Marino reported: “The downtown San Diego office market has been plagued with a considerable amount of vacancy over the past three years.” That sounds like sweet music to the ears of any managing partner or sole practitioner looking to relocate to less expensive space — as not a few firms have already done.

To what does Hughes Marino attribute what it characterized as a “plague” of vacant space? “New office inventory, limited parking options and costs, homelessness and safety concerns, as well as the upkeep and cleanliness of streets. This is further exacerbated by the pandemic and safety-spurred hybrid work-from-home trend — and the associated rightsizing by many companies.”

Thus, if one were to attempt to apply the classic “law of supply and demand” to the downtown office space market — supply curve up; demand curve down; need for equilibrium — we would anticipate owners and

managers lowering the price of office space to achieve that “equilibrium” of profitable occupancy. More sweet music to the ears of managing partners and sole practitioners?

Apparently not, according both to Hughes Marino’s research and my conversations with law firm managers. Hughes Marino reports: “The ongoing increased availability has forced landlords to reconsider their options, and rather than lowering their rental prices to correspond with decreased demand” — Econ 101 — "a number of landlords have jumped on the bandwagon of reimagining the space for residential or hospitality redevelopment.” Suddenly, a sour note.

As lawyers, and law firm managers, our instinct is to take soundings, game-plan possibilities, consider hypotheticals. All so that we’re not taken by surprise when the facts play out. Downtown office space is no exception. What do those soundings suggest?

The Hughes Marino Market Update attempts to highlight conversion of office space to hospitality use. For example, it focused on Tower 180 — formerly the Executive Complex, at 1010 Second Avenue — said to be under contract to a real estate investment and development firm that focuses on hotels. Some have observed that the building would be an excellent hotel location with its “spectacular views” from upper floors. Other examples? The Granger Building at 964 Fifth Avenue, where it’s reported that its tenants were recently given notice their landlord planned to redevelop the property. Into what? Likely a hotel, given

the owner’s success with its conversion at The Guild Hotel, the former YMCA building on Broadway, across from 501 West Broadway and adjacent to One America Plaza, homes to law firms and lawyers.

Other possible conversions, if not to hotels, other uses?

The owner of the Medico Dental Building — the former Center City Building — at 233 A Street, one of San Diego’s first skyscrapers, is said to be exploring a residential conversion from the current Class C office space. When it opened in 1927, it was the tallest building in San Diego — then a towering 14 stories! Not far away, 530 B Street, a 24-story office building in the B Street corridor, has been considered for residential conversion. Perhaps, suggesting a trend, Hughes Marino reports that some landlords are now including termination clauses in new leases to keep their options open for potential future conversions. Two such are office space projects where one would not have expected residential conversion termination clauses.

What does this suggest for lawyers and law firm managers presently officed downtown? The face of downtown San Diego is changing.

We may see less Class C office space and more hospitality, residential and other uses — not lower rents in other, higher-rated office buildings. We may see welcome upgrades to existing buildings, both those in the process of conversion — consider The Guild Hotel on Broadway — as well as remaining office space trying to compete.

The competition? Life science development or redevelopment. We only have to consider Genesis – San Diego, at 1155 Island Avenue, formerly Thomas Jefferson School of Law; The Campus at Horton, formerly the Westfield Horton Plaza, the conversion of an iconic and funky former mall into a life science and technology hub; and IQHQ’s Research and Development District on the waterfront, yet another life science project.

Heraclitus may be proven right. The only constant is change. “No man ever steps in the same river twice.”

Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer.

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SCHOOL DISTRICTS ARE NOT STUDENTS’ INSURERS

By Rachel Garrard and Jacob Spaid

It has long been the law that school districts are not considered insurers of student safety while at school. In a recently published opinion, the California Court of Appeal has further confirmed that school districts also are not students’ insurers when it comes to injuries students cause to third parties.

Srouy v. San Diego Unified School District, 75 Cal.App.5th 548, involved former student Vanndrya Jason Srouy’s claims against the San Diego Unified School District for a defense and indemnity. Srouy was a high school football player who injured a referee during a school football game while tackling another player (allegedly after the whistle). The referee sued the District and Srouy personally. Srouy then requested a defense and indemnity from the District, which the District denied. Ultimately, Srouy hired counsel and was dismissed from the underlying action. He then sued the District for his attorneys’ fees.

At the trial court level, the District prevailed on two demurrers, the second without leave to amend. Srouy appealed, arguing, among other grounds, that the denial of a defense and indemnity was a violation of the Constitutional free public education guarantee, and a violation of several mandatory duties. The Court of Appeal disagreed on all grounds.

The Court’s denial of Srouy’s various arguments solidifies the standard of care required of school districts and speaks to several issues that often arise in litigation. Of primary note, school districts are not insurers of students’ physical safety, nor are school districts insurers of financial obligations students incur because of their own wrongful conduct, even if done during school hours, or during school events.

As to free education, the Court determined that the constitutional free education guarantee was not enacted to protect against the type of injuries alleged here, i.e., attorneys’ fees for civil litigation: “The relationship between the ability to fully participate in school on the one hand, and legal representation in a civil personal injury suit on the other, is more attenuated than the relationship between school transportation and the ability to fully participate in school. If transportation to and from school is a ’noneducational supplemental service’ ..., the provision of a legal defense, even to a suit against a student seeking

damages for an incident occurring during a schoolsponsored athletic game, is simply ‘noneducational.’" To be sure, Srouy’s theory of liability would have drastically changed school districts’ financial obligations (and, consequently, your tax bills), and the applicable standard of care for school districts.

Along with the constitutional right to free education, Srouy also attempted to use California Education Code Section 44808 to transform school district liability from that of educator to that of insurance company. The Court rejected Srouy’s theory, confirming that Section 44808 does not create a mandatory duty for a school to pay students’ attorneys’ fees in civil litigation: “Srouy’s interpretation of Education Code Section 44808 would effectively thrust the District into the role of liability insurer by obligating the District, even in the absence of any fault on its part, to protect students from the legal and financial consequences of conduct they commit while under a District employee’s supervision.” Indeed, students are not school district employees, thus not entitled to indemnity under California Government Code Sections 825 and 996.4.

Ultimately, this opinion represents a significant win for public schools throughout California. The consequences of a contrary holding would have been a sea change in school district liability, and potentially put in jeopardy the financial viability of extracurricular student sports. In other words, through Srouy v. San Diego Unified School District, the California Court of Appeal confirmed that school districts are educational institutions, not insurance companies.

The published opinion on the case can be found at https://scholar.google.com/scholar_case?case=167367 67813370410297&q=srouy+v.+san+diego+unified&hl=en& as_sdt=2006&as_vis=1.

Jacob T. Spaid (spaidj@higgslaw.com) is a litigation attorney at Higgs Fletcher & Mack LLP.

Rachel M. Garrard (rgarrard@higgslaw.com) is an appellate attorney at Higgs Fletcher & Mack LLP.

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WHY I LAWYER

GABRIELA MAY MAGEE

Senior Associate at Procopio, Cory, Hargreaves & Savitch LLP

My desire to become a lawyer was heavily influenced by the women in my life. I grew up on the Cahuilla Reservation and am an enrolled Tribal Member of the Cahuilla Band of Indians. My early childhood was spent at my great-grandmother's house. She was an amazing woman who endured the trauma of attending an Indian boarding school in the 1920s, which tore her away from her family and community, and which tried to force her and her siblings to assimilate into American society.

Spending time with her provided a very tangible connection to those that came before us, those that fought and endured so that I can be here today. I lawyer in large part to honor my great-grandmother and all the other people in our tribal communities who have fought and endured.

I do not remember the first time I thought about becoming a lawyer, but it has always felt as though it was something I was going to do. Federal Indian law and policy and tribal law were something I grew up with. My grandmother and mother were both very active in our tribal government, and my siblings and I would often find ourselves at General Council meetings (our legislative meetings), which included hearing reports from attorneys representing the Tribe. These reports included discussions on federal laws impacting the Tribe and the changing landscape in California Indian Country when California Tribes were seeking to bring economic development to their respective reservations through gaming in the late 1990s and early 2000s.

I also recall many car rides with my mom and grandmother where they would talk about issues facing the Tribe and the potential future of the Tribe. Their conversations always interested me, and my grandmother could cite specific details about a decision made by the Tribe decades earlier. She could recount the reasoning and history behind different decisions and, most importantly, the rights the Tribe retained to protect itself and its members. They would also often talk about how we, as native people, lead complicated lives; that we must learn to live in two worlds. They both made it clear that as those two worlds converged, we as tribal members making decisions for our Tribe must be lawyers, accountants, businessmen/ women, and politicians in order to make informed decisions that will benefit our Tribe.

My great-grandmother, grandmother, and mother each in their own way set an expectation that I (and my siblings) would go out and obtain the knowledge and experience necessary to make those informed decisions and make positive changes for our community. Going to law school to learn more about the rights and protections our tribal nations are entitled to, and applying them to ensure our tribal communities are protected, is what I believe it means to practice in federal Indian law and is my way of fulfilling that expectation.

Although my path to becoming a lawyer was inspired by my desire to help my own Tribe, I have had the pleasure of being able to represent a number of tribal governments and their businesses over the last six years. I lawyer because I want to make sure tribal governments have someone who represents them that is part of and understands their shared history and experience. But although we have a shared history and experience, each tribal government is unique, and representing a tribal government means learning their laws, culture, and practices. A one-size-fits-all approach does not work for tribal governments, and I try to use my experience and education to ensure that the tribal laws and policies that we draft with them reflect their unique tribal cultures and practices.

I enjoy practicing law, but I do not lawyer for myself. I lawyer for a community, one that has been through so much over the last 500 years of colonization by Spanish, Mexican, and later American laws and policies. It is a community that continues to face erosion of its tribal sovereignty and cultures, through federal, state, and local governments’ laws and policies, and continues to fight for its rights to exist as tribal governments and to maintain and revitalize the culture of its people.

I lawyer to be a part of that fight, and provide legal services to a community that deserves to have the best the legal world has to offer.

Gabriela M. Magee (gabriela.magee@procopio.com) is a Senior Associate at Procopio, Cory, Hargreaves & Savitch LLP, specializing in federal Indian law and tribal law. She regularly advises tribal clients on a variety of issues, including governance, gaming and economic development, intergovernmental agreements, cultural resource protection, and contracts.

NATIVE AMERICAN TRIBES AND THE LAW

SPOTLIGHT ON THE INTERTRIBAL COURT OF SOUTHERN CALIFORNIA

By Devon L. Lomayesva

It must first be understood that tribal courts are real courts; with real judges, attorneys, and clerks that serve real people. In fact, tribal courts have their history rooted in traditional forms of justice among the various American Indian tribes today. 1 These justice systems take many forms and culminate in what today are more commonly referred to as “tribal courts.” 2 Despite the nomenclature “court,” these essential bodies of tribal governments include inherent concepts of custom and tradition; mediation, including peacemaking and talking circles; wellness; and other ways to seek justice from a restorative and cultural perspective. 3 tribal courts are also relevant in the federal and state systems, where notions of full faith and credit and comity recognize tribal court orders on a myriad issues affecting tribal communities and individual Indian peoples. .4

Tribal courts operate in a handful of ways that combine the Western model and tribal custom and tradition, including individual tribal courts; Courts of Indian Offenses, commonly referred to as CFR Courts;5 and Intertribal Courts6. Tribal courts also include appellate courts that may also be in an Intertribal form.7

It has been stated that modern-day tribal courts were set in motion after the landmark decision in Ex parte Crow Dog, 109 U.S. 556 (1883).8 This case involved two Indians from the Brule Sioux Tribe.9 Crow Dog was arrested and prosecuted by federal officials for the murder of a chief named Spotted Tail.10 Crow Dog appealed his conviction to the U.S. Supreme Court, arguing the federal government had no jurisdiction over a crime involving only Indians within Indian territory.11 The Court sided with Crow Dog and he was ordered released.12 The United States Congress responded shortly thereafter and passed the Major Crimes Act in 188513 that authorized the federal government to prosecute seven major crimes, including murder, against any person, whether Indian or not.14 Despite this taking of criminal jurisdiction for these

major crimes, Indian tribes retained authority to resolve disputes for all other crimes and other disputes in Indian territory.15 That same year Ex parte Crow Dog was decided, Courts of Indian Offenses16 were authorized.17 These tribal courts were presided over by judges appointed by Indian agents assigned to reservations to oversee the Indians' adaptation to reservation life and were often influenced by organized religion that did not promote traditional tribal ways of dispute resolution.18

Since this time in history, tribal courts have evolved to address the many statutes and case laws that have shaped Federal Indian law and Tribal law.19 The types of cases that come into tribal courts are just as varied as those that come into the United States’ many federal and state courts.20 Those matters may be based on a written code or ordinance that is similar in form and substance to Western constructs of law, for example, child welfare or tort claims.21 These matters may also come in front of the court in the form of custom and tradition, based on cultural and societal norms and teachings of the tribe.22 These proceedings may involve a typical courtroom setting or a mediation in the form of a talking circle or groups of elders.23 These types of matters may include tribal housing or probate matters that are decided according to custom and tradition. A vital component in understanding the hundreds of tribal justice systems is to first understand American Indian tribes and who they are historically, culturally, and presently. See "A Look at San Diego and California’s Tribal History" on page 24 of this issue.

California is home to approximately 20 tribal courts serving 50 federally recognized tribal governments throughout the state.24 The Intertribal Court of Southern California (ICSC)25 serves over a dozen tribes primarily within Southern California.26 Formed in 2002 under the Southern California Tribal Chairmen’s Association, the Court formed as an independent entity in 2006 and is housed on the Rincon Indian Reservation in

Valley Center, California.27 Tribes join the ICSC under an Intergovernmental Agreement where each tribe appoints a delegate to sit on the ICSC Judicial Council that oversees governance and fiscal integrity of the Court.28 Tribes may also join on a Memorandum of Agreement basis for specific case types.29

The ICSC hears civil cases including, but not limited to, tort; employment discrimination and workers compensation claims; citations issued under Peace and Security Codes; child welfare; conservatorship; environmental; exclusions; enrollment; animal control; and landlord tenant issues.30 These matters are heard by the seven judges, including a Chief Judge, Associate Judge, and five Pro Tems.31 Many of these matters may be appealed to the ICSC Appellate Court, which consists of a panel of three judges.32

The ICSC has also recently expanded its services to better serve its member tribal communities. The Tribal Youth Court offers restorative justice-based wellness plans for youth offenders by providing a wellness plan that aims to provide targeted services and activities to address physical and mental health, life skills, cultural activities, and community service.33 The Agave Project, an Office of Victims of Crime (OVC)-funded program, offers victims and secondary victims’ self-help, referrals, and advocacy on issues related to domestic violence, elder abuse, bullying, sexual assault, child abuse, and other trauma.34 Lastly, the ICSC enjoys ongoing working relationships with its tribal and community partners, including tribal law enforcement, social services, and education departments; the San Diego Superior Court; District Attorney’s office; probation; and child welfare, as well as our other county and state partners. These partnerships are vital to the mission of the ICSC to provide our member tribes “Empowerment through the effective administration of equal justice for all."35

For more information on the ICSC, visit the Court website at www.intertribalcourt.org.

Devon L. Lomayesva is the owner of Lomayesva Law Corporation, P.C., where she primarily represents the Soboba Band of Luiseño Indians, as well as other Tribes, in her commitment to preserving the rights of Indian Tribes via the practice of Tribal and Federal Indian law. She is also the Chief Judge of the Intertribal Court of Southern California that serves 12 member tribes and numerous other tribes and tribal organizations throughout Southern California and beyond.

FOOTNOTES

1. Canby Jr., William C., American Indian Law in a Nutshell, 5th Ed., Thomson Reuters, 2009, p.70.

2. https://bjs.ojp.gov/topics/tribal-crime-and-justice/tribalcourts

3. EagleWoman, Angelique Townsend, Mastering American Indian Law, Carolina Academic Press, 2013, p. 110.

Pevar, Stephan L., The Rights of Indians and Tribes, 4th Ed., Oxford University Press, 2012, p. 162-163.

EagleWoman, Angelique Townsend, Mastering American Indian Law, Carolina Academic Press, 2013, p. 43.

https://bjs.ojp.gov/topics/tribal-crime-and-justice/tribalcourts

Canby, Jr., William C., American Indian Law in a Nutshell, 5th Ed., p.71, Thomson Reuters, 2009

"The History of the Tribal Courts," https://www.mptn-nsn.gov/ tchistory.aspx

Pevar, Stephan L., The Rights of Indians and Tribes, 4th Ed. Oxford University Press, 2012, p. 79.

as 18 U.S.C.

Canby, Jr., William C., American Indian Law in a Nutshell, 5th Ed. p. 150, Thomson Reuters,

Art by Manuel F. Monguia, Cahuilla/Luiseño multi-media artist

Welcome to San Diego County. Driving north up Interstate 15 at the edge of North County is the sign directing you to “Indian Reservations.” Driving east along Interstate 8 (aka Kumeyaay Highway), you will drive right through a handful of tribal lands.

In pre-contact times, there were over 500 distinct tribal groups within California. Now, California is home to over 100 federally recognized tribal governments. Eighteen are in San Diego County — more than any other county in the United States. The names of reservation lands and tribal governments do not always reveal the tribe’s cultural and social identity. To understand why, we must look to the history of the state and region. The California tribal experience is unique in this country. The native population lived through three colonizing experiences — Spanish, Mexican, and American.

The Spanish colonization focused on the establishment of missions along the coast of California. Mission Basilica San Diego de Alcala (established in 1769) was the first of 21 eventually maintained within the state. If you grew up in California, then you may have vague memories of a unit on the missions in elementary school. These units typically describe missionary intentions as benevolent, with the purpose of teaching religion and introducing “civilization” to create citizens for Spain. We know that many natives (called neophytes when taken by the missions) were coerced to join and stay on as working hands at mission grounds. As one might surmise, this was destructive to the existing socioeconomic structures of the tribes. This period of colonization is estimated to have

A LOOK AT SAN DIEGO AND CALIFORNIA’S TRIBAL HISTORY

By Devon L. Lomayesva and Angela Medrano

caused the loss of about one-third of the Indigenous population existing pre-contact. Today you will still find Catholic outposts on reservations; Mission San Antonio de Pala is open for services and has a small museum open to the public on the Pala Reservation, as does Mission Santa Ysabel on the Santa Ysabel Reservation.

The early 1820s marked the beginning of Mexican rule over the lands of California. A hallmark of this period is the number of land grants made and the establishment of large ranchos. Secularized mission lands were included in the land grants, with the neophytes set to be granted one-half of all mission lands. Shifts in ownership led to more native displacement as some returned home to lands that now belonged to a new grantee, and others received land grants but were unable to gainfully use and keep possession. During this period, the living experience of many natives has been described as a state of peonage within the ranchos.

American contact began prior to Mexico’s land loss, which occurred in 1847. But, when the United States began to address the native inhabitants of California, the impact of the Spanish, Mexican, and American occupations created Indian dilemmas unlike those previously faced. Tribal communities had already experienced displacement from traditional areas. Statefunded militias engaged in mass and indiscriminate killings of natives, and the United States had a difficult history of Indian relations. Early dealings with the United States and the California governments were often to the detriment of tribal communities. For example:

NATIVE AMERICAN TRIBES AND THE LAW

1850 — An Act for the Government and Protection of Indians. This Act and subsequent amendments legalized the indenturing of Indian children and adults. Male children under 14 could be indentured until they were 25.

1851 — Act to Ascertain and Settle Private Land Claims in the State of California. This required grantees of Spanish and Mexican land grants to have titles confirmed by a newly established Public Land Commission. The process was lengthy and expensive. Many could not prove their ownership to the standards of the Public Land Commission.

1851–1852 — The negotiation of 18 treaties with California Indian tribes. U.S. Indian Commissioners dispatched by the United States negotiated treaties throughout the state of California. With intense opposition to ratification, these treaties were rejected by the U.S. Senate in a secret session and kept secret for nearly 50 years. Relying on the agreements, tribes relocated to lands only to find that no reservation had been established.

Reservations were eventually established for tribes in California. In Southern California where missions had been established, tribes were generally referred to as the monolith “Mission Indians,” and this term was often incorporated into the tribal governments’ federally recognized name. San Diego County’s so-called Mission Indians had also come to be known by Spanish names, such as Diegueño and Luiseño. The tribes themselves are known in their own language as Kumeyaay/Iipay/Tipai and Payómkawichum. These traditional names may vary from group to group and are in use more often. Some tribal governments have been able to officially change their names accordingly.

If you visit the website of the Viejas Band of Kumeyaay Indians, they describe the Tribe as “one of the remaining bands of the Kumeyaay Indian Nation.” This does not mean that there is one singular Kumeyaay Indian Nation with each band being politically connected. Each band is recognized as a separate tribal government composed of Kumeyaay people. Each band elects its own leadership and makes its own laws. Each band shares a cultural connection as Kumeyaay people. The tribes/band routinely host cultural gatherings where they sing bird songs, dance, play peon, and catch up with family and friends.

Tribal visibility has exploded with the development of successful gaming enterprises. (Be sure to read the article by Glenn Feldman on tribal gaming in California on page 30 of this issue.) The gaming enterprises sometimes add to the confusion of tribal names and identities. The San Pasqual Band of Mission Indians are Kumeyaay people living on the San Pasqual Indian Reservation and own/operate Valley View Casino. I’ve heard people misname them the Valley View Indians or Reservation.

San Diego tribes today are investing much time and effort to maintain their tribal identities and cultural practices while strengthening their tribal governments through the exercise of their sovereignty. From the development of culture and language programs, traditional gatherings, and Native food revitalization, to the enhancement of tribal justice systems, government-to-government agreements, and diversification of enterprises, tribes are protecting and enhancing their way of life for now and future generations. This rich tribal history continues today through strong leadership and cultural values, and is part of what makes San Diego County incredible and demonstrates the resiliency of the original inhabitants.

For more information: "Early California Laws and Policies Related to California Indians," Kimberly Johnston-Dodds; http:// viejasbandofkumeyaay.org/viejas-community/ kumeyaay-history; https://www. sanpasqualbandofmissionindians.org/about.

Devon L. Lomayesva is the owner of Lomayesva Law Corporation, P.C., where she primarily represents the Soboba Band of Luiseño Indians, as well as other Tribes, in her commitment to preserving the rights of Indian Tribes via the practice of Tribal and Federal Indian law. She is also the Chief Judge of the Intertribal Court of Southern California that serves 12 member tribes and numerous other tribes and tribal organizations throughout Southern California and beyond.

Angela Medrano (angelamedrano78@gmail.com) is an attorney whose practice focuses on tribal and Indian law matters. She serves as the president of the Native American Lawyers Association of San Diego County and is a current board member of the SDCBA.

NATIVE AMERICAN TRIBES AND THE LAW

WHAT IS FEDERAL INDIAN LAW?

By Colin C. Hampson and Angela Medrano

Federal Indian law governs the legal relationship between tribal, state, and federal governments within the U.S. legal system. It is a body of law reflected in hundreds, if not thousands, of treaties, statutes, executive orders, and administrative and court decisions. It covers a wide range of matters, such as intergovernmental relations, cultural resources, employment, taxation, commercial matters, health care, torts, dispute resolution, Indian child welfare, water rights, natural resource development, and environmental protection. As tribal communities grow in size and activity, practitioners will come across issues of federal Indian law with increased frequency.

Federal Indian law defines the unique status of Indian1 tribes and applies principally in Indian Country, which is defined as lands within the limits of an Indian reservation, “dependent Indian communities,” and allotments of land to individual Indians.2 Tribal governments recognized by the United States have a government-to-government relationship. A list of Indian tribes that are federally recognized is published yearly in the Federal Register.3 There are currently 574.

Indian tribes existed as sovereigns here long before the arrival of European powers and the formation of the United States as a nation. Treaties between tribes and the United States varied but often provided for terms of peace, the establishment of tribal reservations and cessions (sometimes removal) of territory, and the terms of tribal occupancy of reserved lands, meant to ease conflict between settlers and tribal communities and facilitate western expansion.

In the early 19th century, the U.S. Supreme Court issued three decisions known as “The Marshall Trilogy,”4 named in reference to John Marshall, the Supreme Court Chief Justice from 1801 to 1835. The trio of cases is regarded as foundational. Those decisions establish that tribal governments retain inherent sovereignty over internal matters. The Supreme Court found tribes were “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.”5 Based on these decisions, the Court later repeatedly stated, “(t)he policy of leaving Indians free from state

jurisdiction and control is deeply rooted in the Nation's history.”6 Inherent tribal sovereignty means, among other things, tribal power to form their own government, legislate, enforce their laws, determine citizenship, and establish courts.7

Congress and the Court have placed limits on tribal power. For example, after the Supreme Court’s decision in California v. Cabazon Band of Mission Indians8 that California could not apply its gaming laws to tribal gaming operations on Indian reservations, Congress enacted the Indian Gaming Regulatory Act,9 requiring tribes to enter into compacts with states governing casino-style gaming. The U.S. Supreme Court has also said that tribal sovereignty is limited in certain circumstances. For example, in Oliphant v. Suquamish Indian Tribe, 10 the Court held that tribes lack criminal jurisdiction over non-Indians.

The Court has found that Congress has “plenary” power to legislate in Indian affairs.11 This power has sources in congressional power over property belonging to the United States,12 the treaty-making power, and the Commerce Clause, which says, “Congress shall have the Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."14 The “trust relationship” is also a source of congressional power. 15

Key eras of federal Indian policy reflected in laws passed by Congress throughout the Nation’s history are summarized below.16

1. Treaty Making (late 1700s to mid-1800s) — Tribes and the United States begin their relationship with the federal government moving to consolidate control over Indian affairs and negotiating agreements with tribes.

2. Removal and Relocation (1800s) — The United States expanded, and tribes were subject to removals, of which the most renowned is the Trail of Tears involving the removal of the five civilized tribes (Cherokee, Creek, Chickasaw, Choctaw, and Seminole) to Indian Territory west of the Mississippi River.

3. Allotment and Assimilation (late 1800s to early 1900s)

— This policy was to assimilate Indians into American society by breaking up the tribal lands and distributing them to Indian and non-Indian individuals.

4. Reorganization and Self-Rule (1930s to 1940s) —

This era ended allotment to assist tribes to organize and work toward greater self-rule and economic independence. This was in response to The Meriam Report: The Problem of Indian Administration17 published in 1928 on the poor social and economic state of tribal communities following allotment.

5. Termination (1940s to 1960s) — In order to cut governmental expenses and promote individualized success, Congress terminated dozens of tribes and directed that reservation lands be divided in fee status among former tribal citizens of the terminated tribe.

6. Self-Determination (late 1960s to present) —

The current policy supports tribal self-sufficiency. For example, the Indian Self-Determination and Education Assistance Act permits tribes to contract with the Secretaries of the Interior and Health and Human Services to administer programs for tribal citizens previously run by the agency. In recent years, the self-determination policy has required federal agencies to consult with tribes on matters affecting tribes before taking action or adopting a policy.18

Federal departments and agencies have developed consultation policies with the intent of strengthening the relationship between the United States and Indian tribes. This has created more opportunities for tribes to press federal law and policy toward greater respect for tribal sovereignty.

The Supreme Court continues to decide significant issues in federal Indian law. Recently the Court ruled in McGirt v. Oklahoma19 that the Creek Reservation was not disestablished and continues to exist, which led to state court decisions reaching the same conclusion with respect to other reservations in Oklahoma. In light of those decisions, the Court earlier this year held states have

FOOTNOTES

NATIVE AMERICAN TRIBES AND THE LAW

concurrent jurisdiction to punish criminal offenses by nonIndians against Indians in Indian Country.20 Later this fall, the Supreme Court will hear Brackeen v. Haaland involving constitutional challenges to the Indian Child Welfare Act (ICWA). ICWA was enacted in 1978 to establish federal minimum standards for state child welfare proceedings in order to reduce historically high rates of separation of Indian children from their families and tribal communities.

Likewise, Congress continues to legislate in Indian affairs. For example, the Violence Against Women Reauthorization Act included provisions recognizing tribal civil and criminal jurisdiction over Indians and non-Indians and for prosecution by Alaska Native villages participating in a pilot program of certain offenders of domestic violence and other crimes.21

While federal Indian law and policies continue to change, tribes and their citizens continue to adapt in response to those changes and overcome centuries of loss, displacement, and deprivation. Tribal communities continue to work hard to protect their rights to self-governance and develop tribal economies, restore the tribal land base, and improve social conditions in Indian Country.

Colin Hampson is a partner at Sonosky law firm.

Angela Medrano (angelamedrano78@gmail.com) is an attorney whose practice focuses on tribal and Indian law matters. She serves as the president of the Native American Lawyers Association of San Diego County and is a current member of the SDCBA Board of Directors.

VIII,

B,

LAWRENCE BACA

From Growing Up Indian in San Diego to Fighting on Behalf of Indian Country Nationwide

Interview with Lawrence Baca, conducted by Wilson Adam Schooley

Lawrence R. Baca is a Pawnee Indian who grew up here in San Diego. After attending Harvard Law School, he spent a 32-year career with the Civil Rights Division of the United States Department of Justice. He is a recipient of the ABA Thurgood Marshall Award for civil rights and the Federal Bar Association Sarah T. Hughes Award for civil rights; and the Indian Law Section of the FBA annually presents the Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law. At his retirement, Baca was presented with the Attorney General’s Medallion, the highest award the Attorney General can present to a retiring employee.

Lawrence, you grew up here in San Diego in the 1950s and '60s, and from there went to the University of California, Santa Barbara, Harvard Law School and the Civil Rights Division of the United States Department of Justice. How was San Diego your launchpad? California has a very racialized history that wasn’t kind to American Indians. There were state laws preventing Indians from testifying in court cases involving white people, Indians were not allowed to vote, and school districts could establish separate schools for American Indians.

The impact of that history was tangible when you arrived in San Diego in 1953?

Yes, that’s the foundation for racial attitudes in the 1950s and 1960s. There were signs in stores and restaurants in some parts of San Diego County that said “No Indians Served.” A sign at Lindo Lake Park said “No Dogs or Indians Allowed.” When my father was 21 he made the mistake of walking into a whitesonly establishment and six white men assaulted him and stabbed him 27 times and threw him out in the

dirt parking lot. I became conscious of the scars on his chest and rib cage when I was 10 years old.

Those scars meant to our family that the signs saying “No Indians Allowed” were more than prohibitive of entry; they represented existential threats.

Your father was a Pawnee Indian and your mother was white.

When I was in high school, there were girls that I could not date because I was half Indian; there were no girls that I could not date because I was half white. Race is partly genetics and partly social construct. My brothers and I all dated girls whose parents raised objections, referring to us as “half-breeds” or “savages.” One girl was beaten by her mother with a metal soup ladle. We had to ask ourselves, “Do you like that girl enough to not ask her out?” My father’s best friend, who was a white man, invited him to come to his Elks Club meetings so that he could put Dad forward for membership. At the meeting, the officers told Mac, “We don’t allow Indians in the club.” Mac dropped his membership. So, growing up in San Diego was my launchpad to becoming a civil rights lawyer.

After law school in 1976 you went to work for the Civil Rights Division. When you retired in 2008, the Assistant Attorney General said you’d filed more civil rights cases on behalf of American Indians than any other attorney in history.

Yes. Between 1953, when the Division was created, and 1973, the Division had filed thousands of cases on behalf of African Americans and two on behalf of American Indians. In 1973, the Division created an Office of Indian Rights to focus on cases involving the civil rights of American Indians. I was one of seven lawyers in that unit but the only Indian lawyer in the

Division. In 1980, AG Drew Days disbanded the OIR, saying that it would be better for Indian people if all 225 CRD attorneys could bring “Indian cases.” But the Division reverted to its previous dismal record of not filing cases on behalf of Indians. Between 1980 and 1990, I didn’t just file more cases on behalf of American Indians than any other attorney in the Division; I filed more cases on behalf of American Indians than all 224 of them combined. And, for the record, the majority of my cases overall were on behalf of African Americans.

In 2012, the American Bar Association’s Civil Rights and Social Justice Section, which I chaired in 2018–2019, awarded you the Thurgood Marshall Award. The ABA made a big deal out of my being the first American Indian to receive the award. But in my acceptance speech, I made a big deal out of being the first attorney to receive the award for civil rights work with American Indians. I was also the first federal government attorney to receive the award.

What were the most important cases you filed?

Tough choice. I filed the first case the United States ever filed on behalf of an Indian who was denied the right to run for political office and the first education case the Department ever filed on behalf of American Indians. When the court ruled, for the first time ever, that American Indians have a right to equal educational opportunities under the 14th Amendment, the private

NATIVE AMERICAN TRIBES AND THE LAW

attorney for the tribe called the decision “the Brown v. Board of Indian Country .” I also filed the first five racial redlining cases the CRD ever filed under the Equal Credit Opportunities Act, and all of them were against banks or other credit-granting entities that were offering different terms and conditions to Indians than non-Indians. When we settled our case with the General Motors Acceptance Corporation, then the largest finance company in the world, a thunderbolt went through the lending community opening up credit for American Indians.

But, the most important work I did was recruiting other Native Americans to apply to the DOJ. The American Indian Trial Lawyers Association of the DOJ says that while I didn’t recruit every Indian lawyer who has worked at the Department, those I didn’t recruit were recruited by someone that I did.

Wilson Schooley is a reformed big firm trial and appellate lawyer who manages a public service law firm program providing pro bono services in historically marginalized communities. He is Past Chair of the ABA Civil Rights Section; on the ABA Journal Board of Editors and Standing Committee on Pro Bono and Public Service; Delegate to the ABA House of Delegates; SDCBA Vice President; and an actor, author and photographer.

Left and top-right photos: Coso petroglyphs in Inyo County, CA; bottom-right photo: Sky Rock in Bishop, CA; photos by Lawrence Baca

THE CABAZON DECISION – 35 YEARS ON

By Glenn M. Feldman

F ebruary 25, 2022 marked the 35th anniversary of an important event in the history of tribal gaming. On that day in 1987, the U.S. Supreme Court issued its opinion in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (the “Cabazon Decision”). In an 18-page opinion, a 6-3 Court majority upheld the right of the Morongo and Cabazon Bands of Mission Indians to conduct poker and high-stakes bingo on their reservations and denied the State of California authority to regulate or prohibit those tribal activities.

The Cabazon Decision was an important tribal victory in a long and contentious legal battle between tribes and states over which government had the power to authorize and regulate tribal gaming. Today we have a large, mature and profitable Indian gaming industry in this country. But 35 years ago, the future of tribal gaming was not at all clear due to strong opposition from states, the Nevada gaming industry and national horseracing organizations.

Cabazon was not the first Indian gaming case, but it was the first to reach the U.S. Supreme Court. The Court had been asked to review other tribal gaming disputes in 1981 and 1982, but had declined. By 1985, Indian gaming had exploded across the country, with more than 100 tribal gaming facilities nationally and 25 in California.

So, in April 1986, when the State of California asked the

Court to review the Cabazon Band’s lower court victory, it was no surprise that the Court agreed to hear the case.

Cabazon was argued before the Court on December 9, 1986, and decided on February 25, 1987. While the decision addressed many legal issues, two in particular are worthy of note.

The first issue was “organized crime.” Thirty-five years later, it is hard to believe that a major element of the state's argument against tribal gaming was that tribes would be powerless to prevent “organized crime” from infiltrating their gaming operations. According to the State of California, “the possibility that the [tribal] bingo operations may be taken over by organized crime is a very serious concern ….” But when asked by one of the Justices at oral argument whether “there is any evidence that organized crime has infiltrated the bingo operations of the tribes that are before us,” the attorney for the State conceded there was not. Further, the same issue had been argued to the lower courts in the Cabazon litigation and the Ninth Circuit Court of Appeals found “there is no evidence whatsoever that organized crime exists on these Indian reservations.”

So, despite the strong efforts of the State to interject the organized crime threat into the case, the Supreme Court rejected that effort, noting that this theoretical concern

NATIVE AMERICAN TRIBES AND THE LAW

by the State, while “legitimate,” was supported by no evidence and could not overcome the strong tribal and federal interests in promoting Indian gaming.

The second important legal issue the Court addressed in Cabazon was the applicability of the 1976 Bryan v. Itasca County tax decision to tribal gaming activities. In Bryan, the Court had analyzed a 1953 federal law, commonly known as “PL-280,” applicable in Minnesota, California, and several other states. The Court concluded this federal law authorized those states to apply their criminal laws (i.e., those laws that prohibited certain conduct) to tribal activities on reservations in those states, but did not give the states jurisdiction to enforce their civil laws (i.e., those laws that allowed but regulated conduct) against tribes. The issue in Cabazon was whether California’s bingo and poker laws should be characterized, to use Bryan’s terminology, as “civilregulatory” or “criminal-prohibitory.”

This distinction was the subject of much discussion at oral argument. Justice Scalia, in his first year on the high court, was particularly interested in this question and made clear that, to his mind, California’s $250/ game limit on charitable bingo games was “criminalprohibitory” and so enforceable by the State against the tribes.

In the end, however, a majority of the Court reaffirmed the validity of the Bryan analysis and found the State’s bingo and poker laws to be civil-regulatory.

In light of the fact that California permits a substantial amount of gambling activity, including bingo and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particular.

As a result, the Court found that California could not enforce its state laws against the tribes’ gaming activities, handing tribes nationally a major victory.

Why is the Cabazon Decision still relevant 35 years later?

First, the Cabazon Decision led directly to the enactment of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”), in 1998. While Congress had considered Indian gaming legislation as early as 1983, no agreement could be reached until Cabazon was decided in 1987. Cabazon gave renewed impetus to those efforts, and in

1988, IGRA was passed by both chambers of Congress and signed by President Reagan. While IGRA was far from perfect and, in fact, cut back some rights tribes had won in Cabazon, 35 years of experience has proven that IGRA provided a regulatory framework that has worked reasonably well for most tribes and allowed tribal gaming to expand exponentially from modest beginnings in the late 1970s.

Second, the Cabazon Decision, coupled with IGRA, has dramatically improved economies in much of Indian Country. While the economic benefits of Indian gaming are not spread evenly among tribes, 250 tribes in 29 states are now operating over 500 gaming facilities, many as large and luxurious as any in the world. Those facilities employ more than 350,000 people and are pumping billions of dollars into Indian Country annually; revenues that allow tribes to provide unprecedented programming, services, and benefits to their members, and to neighboring communities as well.

Finally, in addition to their direct benefits, tribal gaming revenues have provided much of Indian Country with economic and political means to broaden and strengthen their sovereign powers. A number of major gaming tribes have used their management expertise and financial resources to expand into off-reservation gaming activities in Nevada, New Jersey, Pennsylvania, and even overseas. Tribes are also asserting their rights to surface and groundwater resources in ways and places not seen before. Many tribes, recognizing that gaming need not be an end in itself, are actively diversifying their tribal economies in important and creative ways, including clean energy projects, expanded agriculture, and the retail/commercial development of reservation lands.

Thirty-five years ago, no one could have predicted the dramatic impact the Cabazon Decision would have on Indian Country. February 25, 2022 was an important anniversary in the history of tribal government gaming.

This article is dedicated to the citizens of the Cabazon Band, a small tribe that made a big difference.

Glenn M. Feldman is of counsel to Procopio, Cory, Hargreaves & Savitch LLP. He has practiced federal Indian law, and served as general counsel to the Cabazon Band, for more than 40 years.

THE TRIAL OF ANTONIO GARRA, SAN DIEGO, 1851

By Hon. William J. Howatt Jr. (Ret.)

The city of San Diego (Old Town) was once where the Kumeyaay village of Kosa’aay thrived. This is where the first invasion by the Spanish of Indigenous Natives occurred in 1769. What followed was the dominance of the Spanish, Mexicans, Americans, and the rapid influx of gold rush adventurers. Each successive invasion drove the Indians further from their lands along the coast and into the foothills and mountains. The trial and execution of Antonio Garra reflects the relationships between settlers of San Diego and the imposition of different legal rights and obligations, including taxes leveled by the city on the Indians.

Little is known of Garra’s birth date or birthplace prior to being included in the neophyte population of the Mission San Luis Rey. He was baptized and educated there. He was fluent in Spanish, Latin, and numerous dialects of Native languages. Garra was a leader of the Cupeno people at Agua Caliente (Warner Hot Springs) and the village called Cupa (“Kupa”).

Garra was described in the San Diego Herald (Nov. 27, 1851) as “regarded by all who knew him as a man of energy, determination, and bravery. As one of the most outstanding chiefs, his power and influence among the Indians is almost unbounded.”

The city of San Diego in 1850 and 1851 was in need of resources. Sheriff/Tax Collector Agoston Haraszthy imposed significant taxes on Indian property, including land and cattle when the Indians paid. In 1851 the Sheriff imposed more taxes, which angered the Indians. When the taxes weren’t paid, animals and property of the Indians were confiscated and sold to meet their tax burden. General Joshua Bean of the state military told Garra that the Indians did not have to pay the taxes assessed, but the Sheriff received authorization from the State Attorney General to levy and collect taxes from the Indians. Garra was extremely angered by the new taxes and he began to seek to establish an alliance of tribes to maintain their independence and to drive the settlers from Indian lands.

The “Garra Uprising” began with an attack by the Yumas and the Cupenos on five white sheepherders who had just crossed the Colorado River at Yuma with their flock of 1,300-1,500 on Nov. 10, 1850. Four of the five sheepherders were killed; one barely escaped. The sheep were taken by the Indians and divided between the participating tribes. News of this attack reached San Diego and the citizens met, declared martial law, and raised a defense against a possible and predicted Indian attack.

The major attack by the Indians was on Nov. 23, 1851, at Warner’s Ranch. Warner had been forewarned of an attack and sent his family to San Diego for safety. He stayed at the ranch to protect his property. During the night, a large group of Indians surrounded his ranch house. After the confrontation where Warner shot and killed at least two Indians, he escaped on horseback to San Diego and raised the alarm.

The next day, Nov. 24, 1851, Major Fitzgerald and his group of volunteers set out to capture Garra. The group first stopped at Warner’s ranch and found his cattle scattered, agricultural implements burned and destroyed, and the ranch house looted and burned to ashes. This contingent went the short distance to Cupa and found four Americans, who had gone to the springs for health reasons, dead. Before leaving Cupa the volunteers burned the village. Garra was nowhere to be found.

Garra was captured in late December 1851 by Juan Antonio of the Cahuillas. He was turned over to General Bean and brought to San Diego. Garra was placed in the cobblestone jail to await his court-martial trial, martial law still being in effect in San Diego. Garra twice confessed to his attempts to gather support from the other tribes. Some Cahuillas did participate in the action against Warner’s ranch, but as he was sick, Garra did not himself participate in that action.

NATIVE AMERICAN TRIBES AND THE LAW

The court-martial trial of Garra began on Jan. 9, 1852, in the City Council Chambers in the Old Town courthouse. The panel of seven military officers was chosen by General Bean. Warner was designated as the interpreter for the trial. Capitan Cave Couts was appointed the Judge Advocate (Prosecutor). Major McKinstry was designated to defend Garra.

Garra was arraigned on three charges (San Diego Herald, Jan. 17, 1852):

I. Treason: That Antonio Garra levied war against the State of California during November and December 1851.

II. Murder: That Antonio Garra did aid and abet and order the attack at Agua Caliente (“Cupa”) and Warner’s ranch on or about November 23, 1851.

III. Robbery: That Antonio Garra did aid and abet in the stealing of certain stock and cattle from the rancho of J. J. Warner and in burning his house. That Garra did aid and abet the stealing of a number of sheep at or near the Rio Colorado from a party of Americans who were murdered.

Garra entered pleas of not guilty to treason, murder, and robbery regarding the looting of Warner’s ranch. He entered a plea of guilty to the theft of sheep.

At the trial, Warner testified he knew nothing that would incriminate Garra on the charge of treason. All he could say was that he knew war was levied. (“Treason” under California law at this time was levying war against the State.)

Warner also confirmed the report of Major Fitzgerald as to the destruction of his property, the looting of his house, and his cattle scattered. He also testified to having shot two or three Indians. When asked if he knew the names of any of the Indians he responded “no.” Warner was next asked: “Who is looked upon as Chief of the party that made the attack upon your house?” He answered: “Antonio Garra.”

Garra was questioned after Warner completed his testimony. He said that the Indians who attacked Warner’s ranch were Cahuillas. He was asked why he stopped at San Taicho rather than returning to Cupa where his people had killed the four Americans. He said he did not go because he was sick. Garra said specifically

that he never ordered nor commanded the raid on Warner’s ranch, nor the death of the Americans.

Major McKinstry gave some opening remarks and argued that, in his opinion, Garra could not be convicted of treason because he was not a citizen of the United States and owed no allegiance to the State of California. Ultimately, this argument prevailed and Garra was not convicted of treason.

Lieutenant Hamilton had been a member of the council of war to investigate the Indian difficulties. Hamilton reported that Francis Necate said that Garra, on the night of the attack, was at his house. Garra told him that he ordered the attack at Warner’s ranch and threatened to kill anyone who did not comply with his orders. Necate recalled that the next morning it was reported to Garra that the attack had been accomplished and four Americans were killed at Cupa.

Garra demanded that Joaquin Ortega be called to testify. In one of his two confessions, Garra disclosed that he had been encouraged to take up arms against the Americans by Joaquin Ortega and Don Jose Antonio Estudillo. He had been advised by these men that if he took up arms against the Americans, the Californios (Mexican ranch owners) would join with him to drive out the Americans.

On Friday, Jan. 10, 1851, General Bean cleared the court for deliberations. Garra was found guilty of murder and theft, and sentenced to be shot to death. He was held in the cobblestone jail until all was ready for the execution. Garra was marched from the jail on the evening of Jan. 11, 1852, to an already dug grave in Campo Santo in Old Town by a contingent of Fitzgerald’s volunteers. He was made to kneel at the open grave and was exhorted by the priest that accompanied him to ask for forgiveness. Garra said: “Gentlemen, I ask your pardon for all of my offenses, and expect yours in return.” Ready, aim, fire was commanded, and 10 riflemen shot him to death. He fell into his grave.

The San Diego Herald (Jan. 17, 1852) observed that those present at the execution “whilst acknowledging the justness of Antonio’s fate, failed not to drop a tear o’er the grave of a brave man and once powerful chieftain.

Hon. William J. Howatt, Jr. (Ret.) is an Old Town Courthouse and Museum Board Member

NATIVE AMERICAN TRIBES AND THE LAW

THE JURISDICTIONAL MAZE IN INDIAN COUNTRY AND PUBLIC LAW 280

By Dorothy Alther

Criminal and civil jurisdiction in Indian Country1 is shared among the federal, state, and tribal governments. The historical and common jurisdictional rules applied throughout most of Indian Country in the United States is determined by who is the defendant/ victim or plaintiff/defendant. For example, the state and federal government have concurrent criminal jurisdiction over crimes committed in Indian Country where the defendant is non-Indian. Major felonies committed by Indians in Indian Country are prosecuted exclusively by the federal government. Lesser crimes committed by Indians are tried in tribal courts. In the civil arena, the state can only entertain cases where the act occurred in Indian County if both the plaintiff and defendant are non-Indians. If a civil plaintiff is Indian and the defendant is non-Indian, the tribal court can only hear the case if (1) the non-Indian defendant consented (usually transactional consent) to tribal jurisdiction or (2) the non-Indian’s conduct threatens the health, safety, welfare, or political and economic integrity of the tribe.

These common jurisdictional rules were upended in 1953, when Congress passed Public Law 93-280 (PL 280) granting five states, including California, criminal jurisdiction in Indian Country (18 U.S.C.§ 1162) and limited civil jurisdiction (28 U.S.C. § 1360). This new expanded state jurisdiction is not exclusive and is exercised concurrently with the tribes in the five “mandatory” states.2 Under the criminal jurisdictional provision of PL 280, crimes committed in California Indian Country can be prosecuted in state court regardless of whether the defendant is Indian or non-Indian. Conversely, tribes can also prosecute the same crime in tribal court, but only if the defendant or both parties are Indian.

On the civil side of PL 280, state jurisdiction is more limited and was designed to open the courtroom door for Indians to file private civil suits in state court regardless of whether the defendant is an Indian or a non-Indian and the cause of action occurred in Indian Country. Tribes concurrently have civil jurisdiction over private causes of action occurring in Indian Country if the parties are both Indian or where the plaintiff is non-Indian. However, if the plaintiff is Indian and the defendant is non-Indian, the tribal court must determine if the defendant consented to jurisdiction or their conduct threatens the welfare of the tribe.

Although PL 280 opened the door for state civil jurisdiction in California Indian Country, it did not remove the hinges. Under the PL 280 civil statute, Congress lists a number of exceptions

to state jurisdiction in Indian Country. For example, there is no state jurisdiction to tax trust lands, probate allotted lands, regulate or encumber trust lands, or determine the right of possession or ownership of trust land or property. Additionally, the state has no regulatory jurisdiction in California Indian Country. As such, state regulatory laws like labor laws, environmental laws, fire and building codes, and the tax code do not apply in California Indian Country. Nor do any county laws, such as animal control ordinances.

It is this area of regulatory jurisdiction that generates the most PL 280 litigation. The state’s attempts to apply a state regulatory law in Indian Country has resulted in the courts having to determine whether the regulation is “criminal prohibitory” and thus applicable in Indian Country, or “civil regulatory,” not applicable in Indian Country.

The distinction between these two (prohibitory vs. regulatory) requires the court to first ask whether the conduct being regulated is completely prohibited or if there are exceptions or exemptions for the conduct. If the answer is not determinative, the court will turn to the public policy behind the regulation — the greater the degree of injury to persons or damage to property, the greater likelihood the regulation is “criminal prohibitory” and applicable in Indian Country. A quick example is fireworks sold on a California Indian reservation. The federal court found that Cal. Health and Safety Code §§ 12500 et seq., was criminal/prohibitory because the intent behind the law was to prohibit the sale of certain dangerous fireworks and the sale of these fireworks on the reservation violated the state’s public policy to protect life and property. Quechan Indian Tribe v. McMullen, 984 F.2d 304 (9th Cir. 1993).

The above jurisdictional rules are confusing, complicated, and ever-changing. Hopefully, this article provides a road map for any attorney who decides to take a trip into Indian Country.

Dorothy Alther has practiced Indian law since 1985 and been with CILS since 1989, where she was made Legal Director in 2021. Her current work focuses on impact litigation in matters of federal Indian law as well as working directly with tribes on building tribal governmental infrastructure.

FOOTNOTES

1. “Indian Country” is defined as Indian reservations, individual Indian allotments and “dependent Indian communities.”

2. The four other “mandatory” states are Minnesota, Oregon, Nebraska, and Wisconsin. Alaska was added in 1958.

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WHAT TO DO WHEN YOUR CLIENT DISAPPEARS

By Mallory H. Chase

So, you’re representing a client in pending litigation, and when you try to get a hold of the client to discuss a development in the case — perhaps a draft answer, discovery responses, or a settlement offer — the client is suddenly nowhere to be found. Now what?

While the best course of action will depend on the specific facts of each case, the attorney must be mindful of three overarching principles: 1) limitations on the attorney’s authority on behalf of the client; 2) protecting the client’s interests; and 3) complying with professional obligations along the way.

As attorneys, there are limitations to the actions we can appropriately take on behalf of our clients without their express consent. On the one hand, an attorney has implied authority to act with regard to procedural

matters without consulting the client, so long as the client’s cause of action or defense is not impaired. Filing an answer generally falls within this first category, such that an attorney can protect the client’s interests by getting a responsive pleading on file, notwithstanding that the client has gone AWOL. (See State Bar Opinion No. 1989-111.)

However, when it comes to substantive acts — such as entering into a settlement agreement or providing verified discovery responses — the attorney is severely limited in what can be done when the client cannot be located. If substantive deadlines are looming, the attorney should promptly contact opposing counsel to request any appropriate extensions. In doing so, the attorney must be mindful of the duty to maintain the client’s secrets and confidences (Bus. & Prof. Code, § 6068, subd. (e)(1)), and that disclosure of the inability to locate the client could be detrimental to the client’s interests. (See State Bar Opinion Nos. 1980-82, 1983-74.)

The attorney must expend a reasonable amount of time and funds in making a diligent effort to locate the client. What that looks like will depend on the circumstances of

the case, but it could include attempting to contact the client’s family or friends, a search of public records, or retention of a private investigator.

If the client still cannot be located, the attorney must withdraw from the representation. Before doing so, the attorney must take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including a diligent effort to give actual notice to the client prior to withdrawal. (CRPC 1.16.)

Mallory H. Chase (mchase@wingertlaw.com) is a partner with Wingert Grebing Brubaker and Juskie, LLP.

The Professional Responsibility Practice Group focuses on ethics, litigation and regulatory issues that impact lawyers and law firms, in addition to public entities, inhouse departments, as well as judges and law students.

Amber and David can help lawyers and law firms navigate the ethics rules and develop strategies to avoid and manage sticky situations. And they defend lawyers when they need it most.

AMBER BEVACQUA-LYNOTT JOINS DAVID ELKANICH AS A MEMBER OF BUCHALTER’S PROFESSIONAL RESPONSIBILITY GROUP

SDCBA MEMBER PROFILE

VALERIE SILVERMAN MASSEY

Areas of practice: Legal and Governmental Ethics; Civil Litigation

The best thing about being an attorney is ...

The challenge! Every day brings a new problem, a new legal question, or a new set of facts that a client needs help finding a solution to.

What is your proudest career moment?

It’s not a singular instance, but each and every time I complete something that I was told was not possible, I experience a great sense of accomplishment.

These moments include drafting a winning brief on a complicated issue, finding the “needle in a haystack” precedent to support a legal argument, or managing the “impossible” settlement.

If I weren’t an attorney, I’d be ...

I have no idea! I have wanted to be an attorney for as long as I can remember. But if I were to do anything else, I would want it to involve travel and the ability to experience new

cultures, people, places, foods, etc. I love learning and experiencing new things.

What fills your time outside of work?

With a full workload and four active children, my children think my hobbies include extensive calendar organization, driving carpool, and “just talking to other parents” (aka attending parent informational meetings, volunteering on school and sports committees, and organizing the associated events). When I have a few minutes to myself, I enjoy silence, if that can be considered a hobby. I spend my free time with my kids, either engaging in activities that interest them, or spending time being active outdoors — at the beach surfing or boogie boarding, snowboarding in the winter, hiking, playing (or attending — Go Padres!) baseball games, soccer games, and swimming.

What is your favorite book? Why?

My current collection of leisure reading caters to elementary-age children. My current favorite in that genre is The Berenstain Bears and the Messy Room — with the hopes that my children will understand the messaging. I recently attended a Lawyers Club event featuring Hon. LaDoris Hazzard Cordell (Ret.) and look forward to reading her book Her Honor

What skills have helped you to be successful as an attorney?

Organization and preparation.

Office of the San Diego City Attorney — Chief Ethics & Compliance Officer

DEMYSTIFYING THE JUDICIAL APPOINTMENT PROCESS

SAN DIEGO SUPERIOR COURT'S JUDICIAL MENTOR PROGRAM

By Judge Dwayne Moring

The San Diego Superior Court launched a local Judicial Mentor Program (JMP) last year to encourage the development of a well-qualified and diverse judicial applicant pool with a varied background of legal practice areas.

In its inaugural year, 30 mentor judges from various assignments in the San Diego Superior Court dedicated their time to assist potential judicial applicants with understanding the start-to-finish process for appointment to vacant seats on the bench.

2022 JMP mentees praised the benefits of the program in a mid-year survey including feedback that participation in the program accelerated timelines to apply for judicial appointment and that having a mentor was inspiring. Other survey respondents stated that the program was exceptional and gave them the confidence to apply, and that encouragement from their mentor brought something that seemed impossible within reach. They shared that the one-on-one relationship was a great resource, and there were frank discussions throughout the mentorship that would benefit any applicant.

More than 70% of survey respondents have indicated that they are now more likely to apply or have already submitted their application for judicial appointment.

If you would like to be paired with an experienced judicial mentor to provide guidance and encouragement as

you prepare for the judicial application process, please complete an application for the Judicial Mentor Program by October 31, 2022.

The Judicial Mentor Program will accept applicants with a minimum of eight years of experience as an attorney in California; however, priority will be given to attorneys with 10 years or more of experience. Applicants must also be licensed in California for at least eight years, in good standing with the State Bar of California and the community and have a commitment to public service. Finally, they may not have already submitted an application for judicial appointment.

For more information on the San Diego Superior Court’s Judicial Mentor Program or to download an application, please visit sdcourt.ca.gov/JudicialMentorProgram.

San Diego Superior Court Judge Roderick Shelton serves on the statewide Trial Court Mentor Program Working Group. The local Judicial Mentor Program committee is chaired by Judge Dwayne Moring and additional committee members include Judges Judy Bae, Alexander Calero, Rachel Cano, Cynthia Freeland and Garry Haehnle.

Judge Dwayne Moring was appointed to the San Diego Superior Court bench by Gov. Arnold Schwarzenegger in July 2008. He currently is assigned to the South County courthouse and is the chair of the Judicial Mentor Program Committee.

MARTIN SABORY

DIRECTOR OF FINANCE & CFO

What are your main responsibilities at the Bar?

As the CFO, I am responsible for directing and managing the financial and operations functions of the SDCBA.

How long have you been working at the Bar? Almost two months.

What is your favorite part of your job?

The people. I love interacting with staff and association members, and helping the association accomplish its mission of connecting lawyers and supporting their success and fulfillment.

What is your favorite movie and why?

The Godfather . It’s a huge story that spans generations. It dives into a fascinating topic (the Mafia) while still being relatable (we all know family drama).

What's your favorite quote?

Love the life you live. Live the life you love. — Bob Marley

What do you love about San Diego?

Everything!! Location, location, location. I love being able to enjoy the beach one day and hike a mountain the next day.

The following individuals in our community were recently honored for their achievements. If you achieve a professional success, feel welcome to submit it to bar@sdcba.org for inclusion in an upcoming issue of San Diego Lawyer

Supreme Court Associate Justice Patricia Guerrero has been confirmed and will serve as California’s next Chief Justice after Chief Justice Tani Cantil-Sakauye concludes her current term of office on Jan. 2, 2023. A first-generation Californian, Justice Guerrero is the first Latina to serve as California’s Chief Justice.

Regina Petty, member and past President of the San Diego County Bar Association has been named DEI Executive of the year by HRO Today. The award recognizes executives that effectively implement programs that promote an inclusive workplace, enhance their employer brand, and improve employee engagement and retention.

Jason EVANS James FAZIO Daniel GARDENSWARTZ

Dan OWENS Jason S. SHEINBERG Cynthia L. STRATTON

AT-LARGE CANDIDATES

Nicole

WILLIAMS

Michael

CROWLEY

Michael R. HIRMAN

EAST COUNTY

We Connect You With More Clients

The San Diego County Bar Association’s Lawyer Referral and Information Service (LRIS) helped participating attorneys gain just under 38,000 qualified clients in 2021, resulting in nearly six million dollars in legal fees earned.

With results like these, LRIS can offer you the most cost-effective way to gain high-quality clients, hands down. The cost is much lower than other marketing methods, including advertising, SEO, listing/rating services, you name it (lower still with the highly discounted LRIS enrollment

fee offered to SDCBA members — your membership will immediately pay for itself).

The public trusts LRIS as the reliable way to get connected with qualified attorneys. Lawyers trust LRIS too, because we carefully pre-screen potential clients to ensure we only send you referrals that match well with your practice area.

Best of all, by participating in LRIS, you will be helping clients access quality legal services they wouldn’t find otherwise — a true win-win.

L AW YER REFERRAL & INFORMATION SERVICE

BENCH/BAR/MEDIA EVENT: THE TOLL OF DECLINING TRUST — CAN AMERICA’S FAITH IN THE COURTS BE RESTORED?

Hon. Dwayne Moring

L to R: Hon. Dwayne Moring, Hon, Margaret McKeown, Hon. Joan Weber

L.A. Times Reporter David Savage

L to R: Hon. Margaret McKeown, Hon. Dwayne Moring, Erwin Chemerinsky, Dean of UC Berkeley School of Law

Julie Myres and Emily Cox

Dobbs leak,

diversity

bench

Hon. Joan Weber

We’ve got you covered.

Introducing the One-Stop Insurance Shop for your business and personal life, with member-preferred pricing.

Exclusively for SDCBA Members!

Thanks to our partnership with some of the largest and most trusted insurance brokers in the world, we can offer you preferred pricing on a variety of insurance products, including professional liability, 10 or 20 year level term life, group term life, accidental death and dismemberment, small group medical, and workers’ compensation, with more products coming — exclusively for members of the San Diego County Bar Association.

THANK YOU TO OUR PATRON & FRIEND MEMBERS

The SDCBA gratefully acknowledges the generous commitment of members who support our community at the Patron and Friend membership levels. You can become a Patron or Friend member when you activate or renew your membership online, or by request at any time. For more information about upgrading, please contact mbr@sdcba.org.

Patron and Friend member lists as of October 2022

PATRON MEMBERS

Marc D. Adelman

Doc Anthony Anderson III Danielle Patricia Barger Hon. Victor E. Bianchini (Ret.)

Jedd E. Bogage

James A. Bush

Adriana Cara Joseph S. Carmellino Andy Cook

Steven T. Coopersmith Ezekiel E. Cortez

Tricia D'Ambrosio-Woodward Taylor Darcy Warren K. Den John A. Don William O. Dougherty Hon. Bonnie M. Dumanis (Ret.) Alexander Isaac Dychter James J. Eischen Jr.

Ben E. Embry Matthew J. Faust Sergio Feria Nicholas J. Fox

Rochelle A'Hearn Alison K. Adelman

Alicia Aquino

Pedro Bernal Bilse Linda Cianciolo David B. Dugan

James P. Frantz

Matthew David Freeman

Jennifer French Michelle Ann Gastil Olivia J. Gilliam

Douglas A. Glass

Alvin M. Gomez Van E. Haynie Nicole L. Heeder Stephen M. Hogan

Ted Holmquist

A. Melissa Johnson Stacey A. Kartchner Carla B. Keehn Garrison Klueck Lilys D. McCoy Joseph Jay McGuire Mark M. Mercer Peter P. Meringolo Jillian M. Minter Virginia C. Nelson Erin C. O'Kane Ron H. Oberndorfer

Anthony J. Passante, Jr. Frank J. Polek

Kristin Rizzo Shannon D. Rose Ana M. Sambold

Pamela J. Scholefield

Seana Kelly Scholtemeyer Wilson A. Schooley Khodadad Darius Sharif D. Elizabeth Silva David G. Sizemore Hon. Stephanie Sontag (Ret.) Renée N.G. Stackhouse Todd F. Stevens Christopher J. Sunnen Genevieve A. Suzuki Cassandra C. Thorson Thomas J. Warwick Lenden F. Webb Bhashini Weerasinghe Andrew H. Wilensky Karen M. ZoBell

FRIEND MEMBERS

Ronald Leigh Greenwald

Rolando Israel Gudiel Sanchez

Mark Kaufman

Randall E. Kay

Elysian M. Kurnik Matthew J. Norris

Anne Perry Kristi E. Pfister

Blanca Quintero Stella Shvil Michael A. Van Horne

THANK YOU 100% CLUB 2022

The San Diego County Bar Association wants to thank all of the San Diego law firms, public agencies, and nonprofit legal organizations that have provided SDCBA membership to 100% of their attorneys in 2022. Your commitment to the San Diego legal community is greatly appreciated.

Allen Matkins Leck Gamble Mallory & Natsis LLP

Ames Karanjia LLP

Antonyan Miranda, LLP

Appellate Defenders, Inc.

Astuno Sabel Law PC

Atkinson, Andelson, Loya, Ruud & Romo

Balestreri Potocki & Holmes ALC

Beamer, Lauth, Steinley & Bond, LLP

Bender Kurlander Hernandez & Campbell, APC

Best Best & Krieger LLP

Blackmar, Principe & Schmelter APC

Blanchard Krasner & French

Bobbitt, Pinckard& Fields, APC

Brierton Jones & Jones, LLP

Buchanan Ingersoll & Rooney PC

Burke, Williams & Sorensen, LLP

Burton Kelley, LLP

Butterfield Schechter LLP

California Western School of Law

Casey Gerry Schenk Francavilla Blatt & Penfield, LLP

Christensen & Spath LLP

Cohelan Khoury & Singer

Dean Gazzo Roistacher LLP

Devaney Pate Morris & Cameron, LLP

Dietz, Gilmor & Chazen, APC

District Attorney’s Office of San Diego

Donald R. Holben & Associates, APC

Duckor Metzger & Wynne ALC

Dunn DeSantis Walt & Kendrick, LLP

Erickson Law Firm APC

Farmer Case & Fedor

Ferris & Britton, APC

Fitzgerald Knaier LLP

Fleischer & Ravreby

Gatzke Dillon & Ballance LLP

Gomez Trial Attorneys

Goodwin Brown Gross & Lovelace LLP

GrahamHollis APC

Green Bryant & French, LLP

Greene & Roberts LLP

Grimm, Vranjes Greer Stephan & Bridgman LLP

Hahn Loeser & Parks, LLP

Henderson, Caverly, Pum & Trytten LLP

HHJ Trial Attorneys

Higgs Fletcher & Mack LLP

Hoffman & Forde

Hooper, Lundy & Bookman, PC

Horton Oberrecht & Kirkpatrick, APC

Hughes & Pizzuto, APC

Hurwitz Holt, APLC

Jackson Lewis PC

Johnson Fistel LLP

Judkins, Glatt & Rich LLP

JWB Family Law

Karen D. Wood & Associates

Kennedy & Souza, APC

Klinedinst PC

Koeller, Nebeker, Carlson & Haluck, LLP

Konoske Akiyama | Brust LLP

Kriger Law Firm

Law Offices of Beatrice L. Snider, APC

Legal Aid Society of San Diego, Inc.

Lincoln Gustafson & Cercos LLP

McCloskey Waring Waisman & Drury LLP

McDougal, Love, Eckis, Boehmer, Foley, Lyon & Mitchell

Miller, Monson, Peshel, Polacek & Hoshaw

Mintz Levin

MoginRubin LLP

Moore, Schulman & Moore, APC

Musick, Peeler & Garrett LLP

Neil, Dymott, Frank, McCabe & Hudson APLC

Niddrie | Addams | Fuller | Singh LLP

Noonan Lance Boyer & Banach LLP

Office of the Public Defender

Office of the San Diego City Attorney

Paul, Plevin, Sullivan & Connaughton LLP

Pettit Kohn Ingrassia Lutz & Dolin PC

Pillsbury Winthrop Shaw Pittman LLP

Preovolos Lewin, ALC

Procopio, Cory, Hargreaves & Savitch LLP

Pyle Sims Duncan & Stevenson APC

Rowe | Mullen LLP

San Diego County Counsel

San Diego Unified Port District

Schulz Brick & Rogaski

Schwartz Semerdjian Cauley & Evans LLP

Seltzer|Caplan|McMahon|Vitek ALC

Sheppard, Mullin, Richter & Hampton LLP

Shustak Reynolds & Partners, PC

Siegel, Moreno & Stettler, APC Smith, Steiner, Vanderpool, APC

Solomon Minton Cardinal Doyle & Smith LLP

Solomon Ward Seidenwurm & Smith, LLP

Stokes Wagner, ALC

Sullivan Hill Rez & Engel APLC

Sullivan, McGibbons, Crickard & Associates, LLP

Thorsnes Bartolotta McGuire LLP

Tresp, Day & Associates, Inc.

Walsh McKean Furcolo LLP

Webb Law Group, APC

Wilson Turner Kosmo LLP

Winet Patrick Gayer Creighton & Hanes ALC

Wingert Grebing Brubaker & Juskie LLP

Wirtz Law APC

Witham Mahoney & Abbott, LLP

Withers Bergman LLP

Wright, L'Estrange & Ergastolo

100% Club member list as of October 2022

EXCLUSIVE MEMBER BENEFITS sdcba.org/memberdiscounts

All information shown is as of October 2022, and subject to change without notice.

PREMIER MEMBER BENEFIT ONE-STOP INSURANCE SHOP

Enjoy preferred pricing from some of the largest and most trusted insurance brokers in the world, on a variety of insurance products, including professional liability, 10 & 20 year level term life, accidental death and dismemberment, small group medical, and workers’ compensation.

FREE BAR BENEFITS!

LISTSERVS TO CONNECT YOU WITH FELLOW MEMBERS

TECH & LAW PRACTICE CONSULTING

Level up your law practice management with online expert help from our resident Technology and Practice Management Advisor!

CONFERENCE ROOMS & WORKSPACE

Come to the SDCBA Downtown Bar Center and enjoy free desk space, conference rooms, Wi-Fi, printing/copies, snacks, and more.

EDUCATION

CUSTOM-CRAFTED EXPERT CLE!

Choose from a wide selection of timely CLE content spanning the gamut of topics, designed to best help you fulfill your CLE requirements. Visit www.sdcba.org/clecenter

BUSINESS SERVICES

EXCLUSIVE FREE BANKING BENEFITS

Remote deposit service, interest-bearing personal checking, no-first-year-fee commercial credit card & business line of credit.

TAKE 10% OFF OFFICE PRODUCTS

Enjoy savings on more than 30,000 office supplies.

PRACTICE MANAGEMENT

®

LEGAL ETHICS HOTLINE

Call for guidance and perspective on a variety of ethical considerations in the practice of law. (619) 231-0781 x4145

NOTARY SERVICE

Schedule your free appointment with one of our notaries at the SDCBA Downtown Bar Center. Visit www.sdcba.org for COVID-19 closure updates.

DOWNTOWN PARKING

Park at the lot at Union and B street for free after 5 p.m. and all day on weekends. SDCBA dashboard placard required.

CLE ALL YEAR FOR JUST $100!

Get unlimited CLE access all year for just $100! Get your pass when you join the SDCBA, or purchase at any time from your Member Profile.

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GET MORE CLIENT REFERRALS IN SAN DIEGO & IMPERIAL COUNTIES!

The SDCBA’s Lawyer Referral

Service (LRIS) referred nearly 38,000 clients to participating lawyers in 2021, resulting in nearly $6 million in legal fees earned. Learn more about joining LRIS at www.sdcba.org/joinlris.