Current Developments in Federal Indian Law

Cosponsored by the Indian Law Section

Friday, September 15, 2017 9 a.m.–5 p.m.

6.5 General CLE or Access to Justice credits CURRENT DEVELOPMENTS IN FEDERAL INDIAN LAW

SECTION PLANNERS Diana Jean Bettles, Attorney at Law, Klamath Falls, OR Diane Henkels, Attorney at Law, Newport, OR Nathan Karman, Oregon Department of Justice, Portland, OR Stephen Kelly, NW Natural, Portland, OR Douglas MacCourt, Senior Counsel, Rosette LLP, Washington, DC Holly Partridge, The Confederated Tribes of the Grand Ronde Community of Oregon, Grand Ronde, OR Suzanne Trujillo, Office of Legislative Counsel, Salem, OR Cathern Tufts, Attorney at Law, Siletz, OR Jessie Young, Department of the Interior, Office of the Regional Solicitor, Portland, OR

OREGON STATE BAR INDIAN LAW SECTION EXECUTIVE COMMITTEE Diane Henkels, Chair Nathan A. Karman, Chair-Elect Anthony Stephen Broadman, Past Chair Jessie D. Young, Treasurer Todd Albert, Secretary Kristy Kay Barrett Diana Jean Bettles Jennifer Biesack Sarah Rose Dandurand Stephen P. Kelly Douglas C. MacCourt Holly Ray Partridge Stephanie L. Striffler Patrick Sullivan Cathern E. Tufts Kristen L. Winemiller

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935

Current Developments in Federal Indian Law ii TABLE OF CONTENTS

Schedule ...... v Faculty ...... vii 1A. Federal Indian Case Law and Legislative Update ...... 1A–i — The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, New Mexico 1B. Oregon Legislative Update ...... 1B–i — The Honorable Benjamin Souede, Multnomah County Circuit Court, Portland, Oregon 2A. Indian Child Welfare Act and the 2016 Regulations—Presentation Slides ...... 2A–i — Brent Leonhard, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton, Oregon 2B. OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA) . . 2B–i — Amie Fender, Oregon Department of Human Services, Salem, Oregon — Emily Hawkins, Oregon Department of Human Services, Salem, Oregon 3A. Current Developments in Tribal Energy—Presentation Slides 3A–i — Douglas MacCourt, Senior Counsel, Rosette LLP, Washington, DC 3B. Evolution of Federal Agency Tribal Policies and Programs 3B–i — Bodie Shaw, Deputy Regional Director—Trust Services, Northwest Regional Office, Bureau of Indian Affairs, Portland, Oregon 3C. U.S. Department of the Interior Office of the Solicitor—Presentation Slides . . . . . 3C–i — Eric Shepard, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior, Washington, DC 4A. Water Rights—The Klamath Experience—Presentation Slides 4A–i — David Gover, Native American Rights Foundation (NARF), Boulder, Colorado 4B. Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission 4B–i — Rob Lothrop, Columbia River Inter-Tribal Fish Commission, Portland, Oregon 4C. Tribes as Government Stakeholders: Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA 4C–i — Tom Zeilman, Law Offices of Thomas Zeilman, Yakima, Washington 5A. Tribal Economic Development—Marijuana 5A–i — Howard Arnett, Karnopp Petersen LLP, Bend, Oregon 5B. Economic Development: Energy, Environment, Partnership, Infrastructure, and Utility—Presentation Slides 5B–i — Direlle Calica, Kanim Associates LLC, Portland, Oregon 5C. Creating Economies on Indian Reservations ...... 5C–i — Professor Robert Miller, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Arizona 6. The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides . . . . . 6–i — The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, New Mexico 7. Diversity Update ...... 7–i — Diane Henkels, Attorney at Law, Newport, Oregon — Jonathan Puente, Director of Diversity and Inclusion, Oregon State Bar, Tigard, Oregon

Current Developments in Federal Indian Law iii Current Developments in Federal Indian Law iv SCHEDULE

8:00 Registration 9:00 Federal Indian Case Law and Legislative Update F Recent key federal and tribal court cases F Oregon legislative update The Honorable Benjamin Souede, Multnomah County Circuit Court, Portland, OR The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM 10:00 Indian Child Welfare Act: Principles and Latest Developments Amie Fender, Oregon Department of Human Services, Salem, OR Emily Hawkins, Oregon Department of Human Services, Salem, OR Brent Leonhard, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton, OR 11:00 Break 11:15 Evolution of Federal Agency Tribal Policies and Programs Douglas MacCourt, Senior Counsel, Rosette LLP, Rosette LLP, Washington, DC Bodie Shaw, Deputy Regional Director—Trust Services, Northwest Regional Office, Bureau of Indian Affairs, Portland, OR Eric Shepard, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior, Washington, DC 12:15 Lunch 1:15 Tribes as Stakeholders F Klamath Basin water rights issues F Tribal participation in energy siting projects F Tribal participation through CERCLA David Gover, Native American Rights Foundation (NARF), Boulder, CO Rob Lothrop, Columbia River Inter-Tribal Fish Commission, Portland, OR Tom Zeilman, Law Offices of Thomas Zeilman, Yakima, WA 2:15 Tribal Economic Development F Energy F Economic development for the seventh generation F Economic development at Warm Springs Howard Arnett, Karnopp Petersen LLP, Bend, OR Direlle Calica, Kanim Associates LLC, Portland, OR Professor Robert Miller, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, AZ 3:15 Break 3:30 Tribal Courts 2017 and Beyond: An Update on Developments in Tribal Courts in Oregon and Nationally Moderator: Stephanie Striffler,Oregon Department of Justice, Portland, OR The Honorable Calvin Gantenbein, Chief Judge, Siletz Tribal Court, Siletz, OR The Honorable Lisa Lomas, Associate Judge, Confederated Tribes of Warm Springs, OR The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM

Current Developments in Federal Indian Law v SCHEDULE (Continued)

4:30 Diversity Update Diane Henkels, Attorney at Law, Newport, OR Jonathan Puente, Director of Diversity and Inclusion, Oregon State Bar, Tigard, OR 5:00 Adjourn

Current Developments in Federal Indian Law vi FACULTY

Howard Arnett, Karnopp Petersen LLP, Bend, OR. Mr. Arnett concentrates his practice in the area of federal Indian law, representing the Confederated Tribes of the Warm Springs Reservation of Oregon and other tribes on matters involving treaty rights, tribal sovereignty, tribal law development, government-to- government relations, and gaming. He also has expertise in civil litigation and appellate practice. He is statewide cochair of the Lawyers’ Campaign for Equal Justice. Mr. Arnett is an adjunct professor at the University of Oregon School of Law, where he teaches the survey course on American Indian Law and advanced seminars on Tribal Law and Tribal Courts, Contemporary Issues in American Indian Law, and Comparative Law of Indigenous Peoples. He previously was an adjunct professor at Lewis and Clark Law School. He has served as a member of the Oregon State Board of Bar Examiners and the Bar Examiners’ Review Board, lawyers’ representative to the Ninth Circuit Judicial Conference, and president of the Oregon Law Foundation Board. He is a past member of the Oregon State Bar Appellate Practice Section, Indian Law Section, and Legal Services Program executive committees. Mr. Arnett is admitted to practice in Oregon and Arizona and before the United States Supreme Court and the Navajo Nation Supreme Court. Direlle Calica, Kanim Associates LLC, Portland, OR. Ms. Calica focuses her practice on federal Indian law, business law, and natural resource law. She has extensive professional experience in intergovernmental affairs, hydro system planning related to tribes, environmental entrepreneurship, and tribal energy policy. Ms. Calica is the Director of the Institute for Tribal Government Center for Public Service at Portland State University and the Tribal Energy Advisor to the Affiliated Tribes of Northwest Indians Energy Program. She is a member of the Washington State Bar Association Environmental Law Section, the Northwest Energy Coalition Board of Directors, and Our Native American Business & Entrepreneur Network. She has served an Adjunct Professor of Law in the Indian Law Program at Lewis and Clark Law School. She is admitted to practice in Washington. Ms. Calica is a citizen of the Confederated Tribes of Warm Springs and is of Warm Springs, Wasco, Yakama, Molalla, and Snoqualamie tribal descent. The Honorable Cheryl Fairbanks, Attorney at Law, Cedar Crest, NM. Justice Fairbanks works in the area of Indian law as an attorney and tribal court of appeals justice. Her practice and consultation services concentrate on tribal-state relations, personnel, tribal courts, peacemaking (and family conferencing), mediation, family, school, educational, and indigenous law. She serves as a justice for the Inter-Tribal Court of Appeals for Nevada and is a Code of Federal Regulations Appellate Magistrate. Justice Fairbanks is a member of the National American Indian Court Judges Association, American Arbitration Association, and National Council of Juvenile and Family Court Judges. She was the Walter Echohawk Distinguished Professor of Law at Lewis and Clark Law School and a visiting professor of law at the University of New Mexico’s Southwest Indian Law Clinic. Justice Fairbanks is Tlingit-Tsimpshian. Amie Fender, Oregon Department of Human Services, Salem, OR. Ms. Fender is the Policy Manager and Rule Writer for the Department of Human Services, Child Welfare Programs, where she is the chief writer of the administrative rules for child welfare and manages the process for revising or creating new policies within the program. Prior to assuming her role with the State of Oregon, she led the accreditation effort for the University of Nevada, Las Vegas School of Public Health, drafted child welfare legislative recommendations for the Nevada Legislature, and clerked for a district court judge. She has also worked as an elder protective services social worker and as in-house counsel for an international corporation. The Honorable Calvin Gantenbein, Chief Judge, Siletz Tribal Court, Siletz, OR. Judge Gantenbein was appointed by the Siletz Tribal Council to the position of Tribal Court Chief Judge in July 1999. He previously served as the Chief Justice of the Metlakatla Indian Community Court of Appeals in Metlakatla, Alaska, and practiced family/juvenile law and criminal defense in Portland. He was the lead attorney in a death penalty defense case in 1980 and also served as a judge pro tern for Multnomah County District Court. For several years he was a contract judge for the Northwest Intertribal Court System and began serving as a judge pro tem in Siletz tribal court in 1995. He has earned certificates from the National Judicial College in general jurisdiction trial skills, special court trial skills, and tribal judicial skills. Judge Gantenbein is admitted to practice in Oregon.

Current Developments in Federal Indian Law vii FACULTY (Continued)

David Gover, Native American Rights Foundation (NARF), Boulder, CO. Mr. Gover works in the areas of water rights, repatriation, Indian child welfare, and tribal trust fund matters. He represents the Klamath Tribes in the Klamath Basin Adjudication, a general stream adjudication of the Klamath River and other Klamath water-related matters. He is admitted to practice law in Oklahoma, New Mexico, the Navajo Nation, and the Muscogee (Creek) Nation. Emily Hawkins, Oregon Department of Human Services, Salem, OR. In her current role as ICWA Consultant for the DHS Director’s Office, Ms. Hawkins focuses on providing support assistance to the nine federally recognized tribes of Oregon and maintaining Indian Child Welfare Act compliance for the Department of Human Services staff and field structure. She previously worked as the ICWA Active Efforts Specialist for Marion, Polk, and Yamhill counties, where she assisted in writing a new ICWA search procedure for the Polk and Yamhill Child Welfare offices, in developing and implementing many different procedures to ensure ICWA compliance from CPS assessments through permanency cases, and in training staff in ICWA compliance and supporting ICWA casework. Ms. Hawkins began her employment with the Department of Human Services in 2009 working primarily with permanency cases and in 2011 transitioned into carrying ICWA permanency cases. She holds a Bachelor’s of Science degree in Psychology. Diane Henkels, Attorney at Law, Newport, OR. Ms. Henkels has worked in federal Indian and tribal law for 20 years, both in-house and in private practice, litigating in tribal, federal, and state courts. In private practice she has represented personal and commercial clients in tribal trial and appellate courts and associated federal court and state administrative forums in issues involving the Indian Civil Rights Act, child welfare, marijuana, forfeiture, employment, repossession, and enrollment. Ms. Henkels collaborates regularly with partners in Indian country and has presented on Indian law issues in college and law school classes in the Pacific Northwest. Her work in Indian country began with the Confederated Tribes of Siletz Indians in court infrastructure projects involving natural resources and Public Law 280, and she later worked for the Confederated Tribes of the Umatilla Indian Reservation providing legal counsel for natural including cultural resources, realty, and Umatilla Army Depot, and other intergovernmental issues. Ms. Henkels is the chair of the Oregon State Bar Indian Law Section. Brent Leonhard, Confederated Tribes of the Umatilla Indian Reservation, Department of Justice, Pendleton, OR. Mr. Leonhard is an attorney in the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian Reservation (CTUIR). He routinely represents the Department of Children and Family Services on ICWA matters. He also helped lead the CTUIR in being the first jurisdiction to implement the Adam Walsh Act (along with the State of Ohio), implementing Tribal Law and Order Act (TLOA) felony sentencing in March 2011, housing the first two criminals in the federal Bureau of Prisons TLOA Pilot Program, and implementing VAWA 2013’s non-Indian criminal jurisdiction. In 2014 he was appointed to the United States Sentencing Commission’s Tribal Issues Advisory Group to analyze federal sentencing issues as they relate to Indian country. In 2011 he was appointed to U.S. Attorney General Eric Holder’s Federal/Tribal Domestic Violence Taskforce. He has authored several law review articles and a book on tribal contracting. Mr. Leonhard previously served as the City of Walla Walla’s Assistant City Attorney, lead prosecutor for the White Mountain Apache Tribe, and program manager for the Colville Tribe’s public defender office. The Honorable Lisa Lomas, Associate Judge, Confederated Tribes of Warm Springs, OR. Rob Lothrop, Columbia River Inter-Tribal Fish Commission, Portland, OR.

Current Developments in Federal Indian Law viii FACULTY (Continued)

Douglas MacCourt, Senior Counsel, Rosette LLP, Washington, DC. Mr. MacCourt has nearly 30 years of experience representing Native American tribes, tribal businesses and enterprises, Alaska Native Corporations, local governments, and industry on all areas of environmental, energy, and economic development activities on and off tribal lands across the United States. He also has a national practice in environmental permitting, compliance, and cleanup. Mr. MacCourt represents clients at all levels of administrative proceedings, in federal and state court trials and appeals, and before state and federal legislative bodies to obtain funding and other project approvals. He is a member of the boards of the Northwest Environmental Business Council and the National Association of Local Government Environmental Professionals, a member and past chair of the Oregon State Bar Indian Law Section Executive Committee, policy advisor to the Environmental Protection Agency US–Germany Bilateral Working Group, a member of the Oregon State Bar Environmental and Natural Resources Section and Real Estate and Land Use Section, and a member of the American Bar Association Natural Resources and Environmental Law Section Native American Subcommittee. Professor Robert Miller, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, AZ. Professor Miller is the faculty director of the Rosette LLP American Indian Economic Development Program. He also is a justice on the Grand Ronde Tribe Court of Appeals and serves as a judge for other tribes. He is an appointee to the Navajo Nation Council of Economic Advisors and a member of the American Law Institute, the American Philosophical Society, and the Tribal Leadership Forum board. Professor Miller is the author of Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny (2006), coauthor of Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (2010), and author of Reservation “Capitalism:” Economic Development in Indian Country (2012). He also works with the American Law Institute on the new Restatement entitled The Law of American Indians. He has written dozens of articles, books, editorials, and book chapters on Indian law issues and has spoken at conferences throughout the U.S. and in England, Canada, Australia, and India. Professor Miller is a citizen of the Eastern Shawnee Tribe of Oklahoma and was appointed by his tribe in 2003 to the Circle of Tribal Advisors, which was part of the National Council of the Lewis & Clark Bicentennial. Jonathan Puente, Director of Diversity and Inclusion, Oregon State Bar, Tigard, OR. Mr. Puente has been involved in equity and inclusion work for the last six years. As a child of immigrants, he is very passionate about serving historically underrepresented communities. He received his JD from Loyola University Chicago School of Law. Bodie Shaw, Deputy Regional Director—Trust Services, Northwest Regional Office, Bureau of Indian Affairs, Portland, OR. Mr. Shaw was appointed as the Deputy Regional Director—Trust Services for the Bureau of Indian Affairs (BIA) in Portland in 2011. His primary duties include the oversight of trust programs for the BIA associated with management and protection of trust and restricted lands, natural resources, and real estate services for Northwest tribes. His office provides land-related functions to Indian trust owners, including acquisition, disposal, rights-of-way, leasing, and sales, and assists them in the management, development, and protection of trust land and natural resource assets. Programs administered include real estate services, land title and records, probate, forestry, and wildland fire management. Mr. Shaw has testified before the United States Senate subcommittee on Forests and Public Land Management on tribal resource and environmental issues and briefed the United States House of Representatives House Resource Committee members regarding tribal land management issues. He has also lectured widely on tribal interests as they pertain to natural resource management. Mr. Shaw is an enrolled member of the Confederated Tribes of the Warm Springs Indian Reservation.

Current Developments in Federal Indian Law ix FACULTY (Continued)

Eric Shepard, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior, Washington, DC. Mr. Shepard serves in the Office of the Solicitor as the Associate Solicitor—Indian Affairs. He manages the Division of Indian Affairs, which provides legal guidance and assistance to a number of departmental clients including the Assistant Secretary—Indian Affairs, Bureau of Indian Affairs, Bureau of Indian Education, Office of Special Trustee, and Land Buy-Back Program. Mr. Shepard previously was General Counsel of the National Indian Gaming Commission, where he provided legal oversight, guidance, and assistance to the commission in carrying out its responsibilities under the Indian Gaming Regulatory Act. Before that, he was the Attorney General for the Colorado River Indian Tribes, serving as the chief legal officer and principal advisor to the chairman and tribal council on litigation, federal and state legislative and regulatory affairs, land use, and economic development proposals. The Honorable Benjamin Souede, Multnomah County Circuit Court, Portland, OR. Judge Souede was appointed to the Multnomah County Circuit Court by Governor Brown on July 17, 2017, after serving as general counsel in the Office of the Governor. Prior to his work as Governor’s Office General Counsel, he was in private practice in Portland and before that in Washington, DC. Earlier in his legal career, he was Senior Advisor to Senator Hillary Rodham Clinton. Stephanie Striffler, Oregon Department of Justice, Portland, OR. Ms. Striffler is the Native American Affairs Coordinator for the Oregon Department of Justice and counsel for the Oregon Governor’s negotiating team with respect to tribal gaming compacts. During her years in the Oregon Department of Justice, she has served in the Appellate Division, as Attorney-in-Charge of the Special Litigation Unit, and as Special Counsel to the Attorney General. She has handled a variety of natural resources, takings, treaty rights, and other litigation in trial and appellate courts. Ms. Striffler serves on the Oregon State Bar Indian Law Section Executive Committee and is past chair of the section. She has been responsible for the chapter on “State-Tribal Cooperative Agreements” in the last several editions of the Conference of Western Attorneys General’s American Indian Law Deskbook. She received the 2005 Jim Jones Public Service Award from the Conference of Western Attorneys General. Tom Zeilman, Law Offices of Thomas Zeilman, Yakima, WA.Mr. Zeilman represents the Yakama Nation and has worked in many areas of tribal natural and cultural resources law, including treaty fishing and hunting rights, Columbia River fisheries management and enforcement, environmental cleanup and hazardous waste management, and tribal water rights. He is past chair of both the Portland Harbor and Hanford Natural Resource Trustee Councils and has represented the Yakama Nation in many other federal- and state-led remediation sites throughout the Columbia Basin.

Current Developments in Federal Indian Law x Chapter 1A Federal Indian Case Law and Legislative Update

The Honorable Cheryl Fairbanks Attorney at Law Cedar Crest, New Mexico

Contents Federal Cases 1A–1 Petitions for Certiorari Granted ...... 1A–1 Petitions for Certiorari Pending ...... 1A–1 Other Federal Circuit Cases 1A–1 Tribal Cases 1A–2 State Cases ...... 1A–2 U.S. Legislative Matters 1A–3 H.R. 3490 ...... 1A–3 H.R. 3657 ...... 1A–4 U.S. Regulatory Matters 1A–4 Links ...... 1A–4 Chapter 1A—Federal Indian Case Law and Legislative Update

Current Developments in Federal Indian Law 1A–ii Chapter 1A—Federal Indian Case Law and Legislative Update

FEDERAL CASES: Lewis v. Clark, 489 U.S. 726 (1989) held that individual capacity suits against tribal employees are not cloaked by an Indian tribe's sovereign immunity. Plaintiff filed a tort claim in state court against a limousine driver who was employed by an Indian Tribe arising from an off-reservation accident. The Plaintiff sued the driver in the driver's individual capacity seeking money damages. The court held than an individual capacity suit, seeking money damages against a tribal employee that the employee, not the tribe is the real party in interest and the tribe’s sovereign immunity is not implicated. Further, an indemnification provision cannot as a matter of law, extend sovereign immunity to an individual employee who would otherwise not fall under its protective cloak. Reversed and remanded. http://sct.narf.org/caseindexes/lewis_v_clark.html PETITIONS FOR CERTIORARI GRANTED: Patchak v. Zinke, (No. 16-498), whether a statute directing the federal courts to "promptly dismiss" a pending lawsuit following substantive determinations by the courts (including this Court's determination that the "suit may proceed")--without amending underlying substantive or procedural laws- violate the Constitution's separation of powers principles? And does a statue which does not amend any generally applicable substantive or procedural laws, but deprives Petitioner of the right to pursue his pending lawsuit, violate the Due Process cause of the Fifth Amendment. Cert Granted 5/1/17. www.narf.org/nill/bulletins/sct/2016-2017update.html PETITIONS FOR CERTIORARI PENDING: French v. Starr, Docket No. 17-197, whether federal Indian law allows a federal court to disregard congressional statutes in a finding of tribal jurisdiction over a nonmember; whether federal Indian law allows utilization of estoppel to determine land status in a finding of tribal jurisdiction over a nonmember; is consideration of land status required in affirmation of tribal jurisdiction over a nonmember; whether an Indian Tribe can have the inherent authority to exclude on land that has not been determined to be within the boundaries of their reservation; Petition filed 8.2.17. S.S. v. Colorado River Indian Tribes, petition for certiorari was filed in U.S. Supreme Court on 7/17/17. (ICWA case). Whether ICWA sections 1912(d) and 1912 (f) apply in a private severance action initiated by one birth parent against the other birth parent of and Indian child; if so does this de jure discrimination and separate-and-substandard treatment of Indian children the Due Process and Equal Protection guarantees of the Fifth and Fourteenth Amendments? Great Plains Lending. LLC, et al., v. Consumer Financial Protection Bureau, Docket No. 17-184, whether a generally applicable federal statue, which is silent as to its applicability to Indian Tribes should nevertheless be presumed to apply to Tribes. Petition filed 8.3.17. Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians, Docket No. 17-40, Whether, when and to what extend the federal reserved right doctrine recognized in Winters v. United States, 207 U.S. 564 91908), preempts state law regulation of groundwater. www.narf.org/nill/bulletins/sct/2016-2017update.html OTHER FEDERAL CIRCUIT CASES: Murphy v. Royal, Nos. 07-7068 & 15-7041 (10th Cir.), state court jurisdiction-federal habeas corpus review of state court decisions, Indian country jurisdiction generally, Indian reservations specifically, how a reservation can be disestablished or diminished. The 10th Circuit held that allotted Muscogee (Creek) Nation reservation in Oklahoma has not been disestablished, reversing State death penalty conviction of Creek tribal member.

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Nooksack Indian Tribe v. Zinke, 2017 WL1957076. Defendant's motion to dismiss is granted because the holdover Council does not have the authority to bring these claims on behalf of the Nooksack Indian Tribe. Therefore the court lacks jurisdiction. This is due to a lack of quorum of the Tribal Council. Clerk directed to close the case. Rabang v. Kelly, C17-0088-JCC, Dkt. No. 62- alleged disenrolled Nooksack tribe members brining an action against the Nooksack tribal leadership, including the holdover Council members in their individual capacities. /rabab-plaintiffs have authority to bring their personal claims, and the DOI decisions confer jurisdiction over potentially intra-tribal matters because the plaintiffs have a lack of adequate opportunity to challenge the Nooksack tribal court's jurisdiction. Nooksack Tribal council tried to disenroll 306 tribal members. Barred from doing so by the tribal court, the tribal council removed a tribal judge and attempted to undermine the judiciary. When the tribal council's term expired, the disenrollment supporters canceled the next election and refused to leave office. The federal government recently decide to no longer recognize the holdover tribal council's actions, resulting in an impasse for both factions. Nooksack tribal members brought a RICO suit against the holdover tribal council members, an individual capacity suit. Applying Lewis v. Clark, the federal court proceeded. Osceola Blackwood Ivory Gaming Group, LLC v. Picayune Rancheria of Chukchansi Indians, (Gaming Contracts) Rincon Mushroom Corporation of America v. Mazzetti, (Exhaustion of tribal remedies; non-Indian fee simple lands) Ruchert v. Williamson, (Federal Tort Claims Act; Personal Injuries) Garcia v. Elwell, (Indian Civil Rights Act; Habeas Corpus from Tribal Court conviction; Tribal sovereign immunity) www.narf.org/nill/bulletins/sct/2016-2017update.html TRIBAL CASES: Hoopa Valley Tribe v. Bernardo, No. A-17-001(July 19, 2017). (Tribal Sovereign Immunity). The Tribe and Respondent Bernardo entered into a separation agreement in which the Tribe consented to suit in one paragraph but the next paragraph, the parties agreed nothing in the agreement waived immunity. The Court of Appeals held that the tribe is immune from suit and the matter must be dismissed. Mother H. v. Father H, 2017 WL 3039105, MPTC-CV-FR-2017-131. (child custody; jurisdiction) mother left Indiana while divorce action was pending in that state, and moved to Mashantucket Pequot Reservation with the parties daughter filing a divorce action in Tribal Court; the Indiana Court granted father's motion for emergency custody pending further order of that Court, that it was the only State entitled to exercise jurisdiction during pendency of the custody proceeding. Mother removed for jurisdictional hearing. MP Tribal Court Held that: 1) Tribal Court had jurisdiction over custody proceeding, and 2) tribal court would not defer to Indiana Court's jurisdiction. Arviso v. Muskett, No. SC-CV-18-17(2017) (elections) Office of Hearing and Appeals (OHA) disqualified Chapter Secretary/Treasurer for Chichiltah Chapter and set aside the election. Navajo Nation Supreme Court reverses the decision of the OHA. http://www.narf.org/nill/bulletins/tribal/2017.html STATE CASES: In the Matter of L.M.G.M., a Child. Department of Human Services v. M.L.M fka M.L. H. and J.L.M., aka J.L.M., II, Douglas County Circuit Court, 1200227, Mother and father appeal from a judgment terminating their parental rights to their child, L. in a case that is governed by ICWA. On de novo review,

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ORS 19.415(3)(a), we affirm the judgment of termination. The court concluded that the termination of parental rights is in the best interest of L, who has been living since birth with his biological brother in an Indian family foster placement that is also the planned adoptive resource for L. ORS 419B.500. Thus the termination of the mothers and father’s parental rights to L is affirmed. In the Interest of P.F., a person under eighteen years of age, G.F. v. State of Utah, No.20160247-CA, 2017 WL 3668103 (note Opinion has not been released, it is subject to revision or withdrawal). Appellant G.F. (Mother) challenges the juvenile court’s order terminating her parental rights to P.F. (Child). Mother’s position is that the Child should have been placed with family or a member of her tribe as prescribed in ICWA, that the juvenile court should have relied on her expert’s testimony to determine whether the State made active efforts under ICWA, and that the juvenile court erroneously denied her motion to invalidate a July 2014 custody order. The Utah Court of Appeals affirmed the lower court. The Court of Appeals concluded that the juvenile court could properly rely on the bond between Child and her foster family to find the good cause necessary to deviate from the ICWA placement preferences where Child’s initial placement with her foster family was not in violation of ICWA. The Court further concluded that the juvenile court did not err in disregarding the testimony of Mother’s expert. Finally, the lower court did not err when it denied Mother’s motion to invalidate the Custody Order because ICDWA did not apply. Narf.org/nill/bulletins/state/documents/utah_interest_pf.html In the Matter of the Adoption of B.B., a minor, E.T., Appellant, v. R.K.B. and K.A. B., Appellees, No 20150434, filed August 31, 2017. 2017 UT 59. The case is before the Utah Supreme Court on certification for their Court of Appeals. The central issue is whether the district court got it right when it denied Birth Father’s motion to intervene. Both Birth Father and Birth Mother are members of the Cheyenne River Sioux Tribe and B.B. is eligible for membership in the tribe. The Child is an Indian Child. ICWA applies. “The court is not of one mind on the issues. With respect to issue 1, a minority of this court would hold that whereas here, neither biological parent has validly consented to the adoption nor had their parental rights otherwise terminated, our course lack subject matter jurisdiction to go ahead with adoption proceedings. With respect to issue2, the minority would further hold that Birth Father has standing under our traditional approach to standing, and the right under section 1914 of ICWA, to challenge Birth Mother’s consent and the termination order and to argue the lack of subject matter jurisdiction. And with respect to issue 3, which is separate from the jurisdictional questions, a majority of this court holds that Birth Father is a “parent” under ICWA and, as such is entitled to participate in the proceeding below on remand. The decision of the district court is therefore reversed and the matter remanded for proceedings consistent with this opinion.” The Utah Supreme Court found for the biological Indian father in this case and reversed and remanded the trial court’s decision denying his intervention in the voluntary adoption case involving his biological child. The decision is 103 pages with a split court and it took the court nearly two years to issue its decision. U.S. LEGISLATIVE MATTERS: H.R. 3490: To amend the Public Health Service Act to authorize grants to eligible entities to develop and implement statewide or tribal post-adoption and post-legal guardianship mental health service prOH.R.3490: To amend Public Health Service Act to authorize grants to eligible entities to develop and implement statewide or tribal post-adoption and post-legal guardianship mental health service programs for all children who are adopted or placed in legal guardianship and for other purposes. http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html

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H.R. 3657: To amend title 38, United States Code, to authorize the Secretary of Veterans Affairs to provide headstones and markers for the graves of spouses and children of veterans who are buried in tribal cemeteries. http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html U.S. REGULATORY MATTERS: Proposed rule of Department of Interior, Bureau of Land Management regarding hydraulic fracturing on federal and Indian lands. http://www.narf.org/nill/bulletins/regulatory/2017.html Final interim rule of the Department of the Interior, Fish and Wildlife Service, on migratory bird hunting regulations on certain federal Indian reservations for the 2017-18 season. http://www/narf.org/nill/bulletins/regulatory/2017.html LINKS: http://www.narf.org/nill/bulletins/sct/2017-2018update.html http://www.narf.org/nillbulletins/news/currentnews.html http://www/narf.org/nill/bulletins/federal/2017.html http://www.narf.org/nill/bulletins/lawreviews/2017.html http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html The Tribal Court Clearinghouse: http://www.tribal-institute.org/lists/decision.htm The Northwest Intertribal Court System: www.codepublishing.com/WA/NICS

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Chapter 1A—Federal Indian Case Law and Legislative Update

Current Developments in Federal Indian Law 1A–5 Chapter 1A—Federal Indian Case Law and Legislative Update

Current Developments in Federal Indian Law 1A–6 Chapter 1B Oregon Legislative Update

The Honorable Benjamin Souede Multnomah County Circuit Court Portland, Oregon

Contents SB 13 Native American Curriculum ...... 1B–1 SB 62 Emergency Management Agreements with Tribes ...... 1B–3 SB 144 Cultural Resources Enforcement 1B–7 SB 317 Public Meetings on Tribal Lands 1B–11 SB 826 Tribal Victim Advocate Privilege 1B–13 HB 2197 Cannabis Tax 1B–17 Chapter 1B—Oregon Legislative Update

Current Developments in Federal Indian Law 1B–ii Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled Senate Bill 13 Printed pursuant to Senate Interim Rule 213.28 by order of the President of the Senate in conform- ance with presession filing rules, indicating neither advocacy nor opposition on the part of the President (at the request of Governor Kate Brown for Chief Education Office)

CHAPTER ......

AN ACT

Relating to Native American curriculum in schools; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2017 Act is added to and made a part of ORS chapter 329. SECTION 2. (1) The Department of Education shall: (a) Develop a curriculum relating to the Native American experience in Oregon and make the curriculum available to school districts; and (b) Provide professional development to teachers and administrators relating to the curriculum. (2) The curriculum required by this section must be: (a) For students in kindergarten through grade 12; (b) Related to the Native American experience in Oregon, including tribal history, sovereignty issues, culture, treaty rights, government, socioeconomic experiences and current events; (c) Historically accurate, culturally relevant, community-based, contemporary and de- velopmentally appropriate; and (d) Aligned with the academic content standards adopted under ORS 329.045. (3) School districts must implement the curriculum developed under subsection (1) of this section for students in kindergarten through grade 12. (4) The department may contract for the development of the curriculum under this section or for the provision of professional development. (5) The department shall ensure that the federally recognized Indian tribes in Oregon are given the opportunity to collaborate in the development of the curriculum and the provision of professional development, and may make moneys available to those tribes to support collaboration efforts. SECTION 3. (1) The requirement of section 2 (3) of this 2017 Act, relating to the implementation of the curriculum developed under section 2 (1) of this 2017 Act, first applies to the 2019-2020 school year. (2) The Department of Education shall report on the status of the implementation of section 2 of this 2017 Act to the Commission on Indian Services, the Government to Gov- ernment Indian Education Cluster and the State Board of Education no later than: (a) October 15, 2018; (b) October 15, 2019; and

Enrolled Senate Bill 13 (SB 13-INTRO) Page 1

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(c) October 15, 2020. SECTION 4. This 2017 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2017 Act takes effect on its passage.

Passed by Senate July 3, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Lori L. Brocker, Secretary of Senate

...... M.,...... , 2017

...... Peter Courtney, President of Senate ...... Kate Brown, Governor Passed by House July 7, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Tina Kotek, Speaker of House

...... Dennis Richardson, Secretary of State

Enrolled Senate Bill 13 (SB 13-INTRO) Page 2

Current Developments in Federal Indian Law 1B–2 Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled Senate Bill 62 Printed pursuant to Senate Interim Rule 213.28 by order of the President of the Senate in conform- ance with presession filing rules, indicating neither advocacy nor opposition on the part of the President (at the request of Governor Kate Brown for Oregon Military Department)

CHAPTER ......

AN ACT

Relating to intrastate mutual assistance; amending ORS 402.200, 402.205, 402.210, 402.215, 402.220, 402.225, 402.230, 402.235 and 402.240.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 402.200 is amended to read: 402.200. The Legislative Assembly finds that: (1) In order to minimize the impact of an event that overwhelms the resources of the state government or a local or tribal government, one [local] government entity should be able to make resources available to another [local] government entity as quickly as possible. (2) It is appropriate to establish an efficient and permissive intrastate mutual assistance [compact] agreement among [local governments] government entities that will allow [local governments] government entities maximum flexibility to protect life and property within their jurisdictions. SECTION 2. ORS 402.205 is amended to read: 402.205. As used in ORS 402.200 to 402.240: (1) “Event” means an incident that overwhelms or may overwhelm the resources of a [local government] participant. (2) “Local government” has the meaning given that term in ORS 174.116. (3) “Participant” means the state or a local or tribal government that participates in the Oregon Resource Coordination Assistance Agreement. [(3)] (4) “Requesting [local government] participant” means a [local government] participant that requests assistance from other [local governments] participants. [(4)] (5) “Resources” means employees, services, equipment and supplies of a responding [local government] participant. [(5)] (6) “Responding [local government] participant” means a [ local government] participant that has responded to a requesting [local government] participant by providing resources. (7) “State government” has the meaning given that term in ORS 174.111. (8) “Tribal government” has the meaning given that term in ORS 401.305. SECTION 3. ORS 402.210 is amended to read: 402.210. (1) There is created an intrastate mutual assistance [compact among the local governments within this state.] agreement called the Oregon Resource Coordination Assistance Agreement.

Enrolled Senate Bill 62 (SB 62-INTRO) Page 1

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(2)(a) The state government and, except as provided in this subsection, each local government is a participant in the agreement. (b) A local government may opt out of participation in the agreement by adopting a resolution or ordinance so declaring and transmitting a copy of the resolution or ordinance to the Director of the Office of Emergency Management. (c) An opt-out by a local government under this subsection is effective upon receipt by the director of a copy of the resolution or ordinance. (3)(a) A tribal government is not a participant in the agreement unless it opts in as described in this subsection. (b) A tribal government may opt in to participation in the agreement by adopting a resolution so declaring and transmitting the resolution to the Director of the Office of Emer- gency Management. (c) An opt-in by a tribal government is effective upon receipt by the director of a copy of the resolution. [(2)] (4) The [compact] agreement streamlines the process by which a [local government] participant: (a) Requests assistance from another [local government] participant whenever an event occurs; and (b) Temporarily acquires resources from another participant for training, drills or exercises. [(3)] (5) The [compact] agreement does not: (a) Require a [local government] participant to provide resources to a requesting [local government] participant. (b) Preclude a [local government] participant from entering into any other agreement with another [local government] participant. (c) Affect any other agreement to which a [local government] participant is a party or may become a party. (6) The Office of Emergency Management shall develop, adopt and disseminate: (a) Guidelines and procedures for requesting and providing assistance under the agreement; (b) Requirements for recordkeeping by participants; and (c) Other procedures and guidelines that the office considers necessary to implement the agreement in an effective and efficient manner. SECTION 4. ORS 402.215 is amended to read: 402.215. (1) A [local government] participant may request assistance to: (a) Prevent, mitigate, respond to or recover from an event; or (b) Work on its own or with other [local governments] participants in training, drills or exercises. (2) A request for assistance must be made by or through the presiding officer of the governing body of a requesting [local government] participant or the chief executive officer [or chief executive officer’s designee] of the requesting [local government] participant, or a designee of the presiding officer or chief executive officer. (3) A request for assistance may be oral or written. If a request is oral, [the] a responding [local government] participant must document its response to the requesting [local government] participant in writing within 30 days from the date on which the request was made. (4) [Response and the extent of the response are] A response to a request for assistance is voluntary and may be terminated at any time. SECTION 5. ORS 402.220 is amended to read: 402.220. (1) A responding [local government] participant may withhold resources to the extent necessary to provide reasonable protection and services for the responding [local government] participant.

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(2) For purposes of the operational and tactical objectives required by the requesting [local government] participant, the resources of a responding [local government] participant are under the direct command and control of the requesting [local government] participant. (3) Unless otherwise directed by the requesting [local government] participant: (a) The employees of the responding [local government] participant shall use the standard operating procedures, medical and other protocols and rating procedures used by the responding [ local government] participant to accomplish the strategic and tactical goals. (b) The services, equipment and supplies of the responding [local government] participant shall be used under the standard operating procedures, medical and other protocols and rating procedures used by the responding [local government] participant to accomplish the strategic and tactical goals. (4) Notwithstanding subsection (2) of this section, employees of the responding [local government] participant remain at all times employees of the responding [local government] participant and under the ultimate command and control of the responding [local government] participant. SECTION 6. ORS 402.225 is amended to read: 402.225. Subject to any limitations and conditions the governing body of the requesting [local government] participant may prescribe, if an employee of a responding [local government] participant holds a license, certificate, permit or similar documentation that evidences the employee’s qualifications in a professional, technical or other skill, the employee is considered to be licensed, certified or permitted in the jurisdiction of the requesting [local government] participant for the duration of the event or the training, drills or exercises. SECTION 7. ORS 402.230 is amended to read: 402.230. (1) The intent of the intrastate mutual assistance [compact] agreement created under ORS 402.210 is to provide for nonreimbursable assistance to a requesting [local government] participant. (2) Notwithstanding subsection (1) of this section, a responding [local government] participant may request reimbursement and a requesting [local government] participant may reimburse the responding [local government] participant. (3) A request for reimbursement must be made and agreed to in writing prior to the provision of resources by the responding [local government] participant. (4) Request and provision of reimbursement are the sole responsibility of the requesting and responding participants. The Office of Emergency Management is not responsible for requesting or providing reimbursement unless the office is a requesting or responding participant. [(4)] (5) If a dispute regarding reimbursement arises between a requesting [local government] participant and a responding [local government] participant, the involved [local governments] participants shall make every effort to resolve the dispute within 30 days of written notice of the dispute given by the [local government] participant asserting noncompliance to the other [local government] participant. [(5)] (6) If the [local governments] participants cannot resolve the dispute within 90 days after receipt of the notice of alleged noncompliance, either [local government] participant in the dispute may submit the dispute to arbitration under the commercial arbitration rules of the American Ar- bitration Association. SECTION 8. ORS 402.235 is amended to read: 402.235. If a person is an employee of a responding [local government] participant and the person sustains injury in the course of providing requested assistance, the person is entitled to all applicable benefits, including workers’ compensation, normally available to the employee while performing regular duties for the responding [local government] participant. SECTION 9. ORS 402.240 is amended to read: 402.240. (1) Assistance rendered by an employee of a responding [local government] participant is a governmental function.

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(2) Employees of a responding [local government] participant are agents of the requesting [local government] participant. (3) The requesting [local government] participant shall defend, save harmless and indemnify an employee of a responding [local government] participant to the same extent the requesting [local government] participant is required to do for its employees as provided in ORS 30.285 and 30.287.

Passed by Senate March 27, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Lori L. Brocker, Secretary of Senate

...... M.,...... , 2017

...... Peter Courtney, President of Senate ...... Kate Brown, Governor Passed by House May 23, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Tina Kotek, Speaker of House

...... Dennis Richardson, Secretary of State

Enrolled Senate Bill 62 (SB 62-INTRO) Page 4

Current Developments in Federal Indian Law 1B–6 Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled Senate Bill 144 Sponsored by Senator FERRIOLI, Representative STARK, Senator ROBLAN, Representative MCKEOWN; Representative SPRENGER (Presession filed.)

CHAPTER ......

AN ACT

Relating to archaeological objects; creating new provisions; and amending ORS 358.915 and 358.924.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 358.915 is amended to read: 358.915. The provisions of ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.961 and 390.235 do not apply to a person who unintentionally discovers an archaeological object that has been exposed by the forces of nature on [public land or] private property and retains the object for personal use, except for sacred objects, human remains, funerary objects or objects of cultural patrimony. SECTION 2. ORS 358.924 is amended to read: 358.924. (1) Archaeological objects, funerary objects, human remains, sacred objects and objects of cultural patrimony that are held in violation of the provisions of ORS 358.920 or 390.235 are contraband. A police officer shall seize all items declared to be contraband under the provisions of this section if the police officer has reasonable cause to believe the items are held in violation of the provisions of ORS 358.920 or 390.235. (2) A law enforcement agency employing a police officer who seizes contraband items under this section shall give notice of the seizure to the district attorney for the county in which the items are seized and the Commission on Indian Services. The district attorney shall promptly investigate to determine whether any person or Indian tribe claims the items seized. The commission shall designate any appropriate Indian tribe and give notice to the tribe of the seizure. (3) If any person claims items seized under this section, the district attorney shall file a petition with the circuit court for the county for an expedited hearing on the claim. The court shall conduct a hearing for the sole purposes of determining: (a) Whether the items are archaeological objects, funerary objects, human remains, sacred objects or objects of cultural patrimony; (b) Whether any arrowheads seized under this section were collected in compliance with ORS 358.920 (1)(b); and (c) Whether a person claiming an item other than an arrowhead can lawfully possess the item under ORS 358.905 to 358.961. (4) If items seized under this section are not claimed by any person, or the circuit court determines that the items may not be returned to the claimant under the provisions of subsection (3) of this section: (a) Archaeological objects shall be delivered to the Oregon State Museum of Anthropology and curated as described in ORS 358.920 (4)(a).

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(b) Funerary objects, human remains, sacred objects and objects of cultural patrimony shall be returned to the appropriate tribe for reinterment or other disposition as provided in ORS 358.940. SECTION 3. Section 4 of this 2017 Act is added to and made a part of ORS 358.905 to 358.961. SECTION 4. (1)(a) If a district attorney of a county declines to prosecute a violation of ORS 358.920 or 390.235 for a reason other than insufficient admissible evidence, within 30 days of the declination the district attorney shall give written notice of the declination to the Attorney General. The notice must contain the reasons underlying the declination to prosecute. Upon receipt of the notice, the Attorney General may take full charge of any investigation of, or prosecution for, conduct in violation of ORS 358.920 or 390.235. (b) The Attorney General may require the aid and assistance of the district attorney in all matters pertaining to any investigation or prosecution authorized under this section and to the duties of the Attorney General in the county in which the district attorney holds office. (2) If the Attorney General chooses to investigate or prosecute under this section, the Attorney General shall have all the powers of a district attorney including: (a) The power to issue subpoenas; (b) The power to prepare charging instruments; and (c) All other powers incidental to an investigation or a prosecution authorized under this section. (3) All costs, fees and other expenses related to the investigation or prosecution authorized under this section shall be paid by the county in which the investigation or prosecution occurs, to the same extent as if conducted by the district attorney of that county. (4) Except as otherwise provided by law, a local law enforcement agency investigating a violation of ORS 358.920 or 390.235 shall provide copies of all investigatory reports to the Commission on Indian Services. (5) The power granted to the Attorney General by this section does not deprive a district attorney of any authority or relieve a district attorney from any duty to prosecute criminal violations of law and advise the officers of the county in which the district attorney holds office.

Enrolled Senate Bill 144 (SB 144-A) Page 2

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Passed by Senate April 25, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Lori L. Brocker, Secretary of Senate

...... M.,...... , 2017

...... Peter Courtney, President of Senate ...... Kate Brown, Governor Passed by House May 25, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Tina Kotek, Speaker of House

...... Dennis Richardson, Secretary of State

Enrolled Senate Bill 144 (SB 144-A) Page 3

Current Developments in Federal Indian Law 1B–9 Chapter 1B—Oregon Legislative Update

Current Developments in Federal Indian Law 1B–10 Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled Senate Bill 317 Sponsored by Senator BOQUIST (Presession filed.)

CHAPTER ......

AN ACT

Relating to public meetings; amending ORS 192.630.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 192.630 is amended to read: 192.630. (1) All meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by ORS 192.610 to 192.690. (2) A quorum of a governing body may not meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as otherwise provided by ORS 192.610 to 192.690. (3) A governing body may not hold a meeting at any place where discrimination on the basis of race, color, creed, sex, sexual orientation, national origin, age or disability is practiced. However, the fact that organizations with restricted membership hold meetings at the place does not restrict its use by a public body if use of the place by a restricted membership organization is not the primary purpose of the place or its predominant use. (4)(a) Meetings of the governing body of a public body shall be held : (A) Within the geographic boundaries over which the public body has jurisdiction ; [, or] (B) At the administrative headquarters of the public body; [or] (C) At the [other] nearest practical location[.]; or (D) If the public body is a state, county or city entity, within Indian country of a federally recognized Oregon Indian tribe that is within the geographic boundaries of this state. For purposes of this subparagraph, “Indian country” has the meaning given that term in 18 U.S.C. 1151. (b) Training sessions may be held outside the jurisdiction as long as no deliberations toward a decision are involved. (c) A joint meeting of two or more governing bodies or of one or more governing bodies and the elected officials of one or more federally recognized Oregon Indian tribes shall be held within the geographic boundaries over which one of the participating public bodies or one of the Oregon Indian tribes has jurisdiction or at the nearest practical location. (d) Meetings may be held in locations other than those described in this subsection in the event of an actual emergency necessitating immediate action. (5)(a) It is discrimination on the basis of disability for a governing body of a public body to meet in a place inaccessible to persons with disabilities, or, upon request of a person who is deaf or hard of hearing, to fail to make a good faith effort to have an interpreter for persons who are deaf or

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hard of hearing provided at a regularly scheduled meeting. The sole remedy for discrimination on the basis of disability shall be as provided in ORS 192.680. (b) The person requesting the interpreter shall give the governing body at least 48 hours’ notice of the request for an interpreter, shall provide the name of the requester, sign language preference and any other relevant information the governing body may request. (c) If a meeting is held upon less than 48 hours’ notice, reasonable effort shall be made to have an interpreter present, but the requirement for an interpreter does not apply to emergency meetings. (d) If certification of interpreters occurs under state or federal law, the Oregon Health Author- ity or other state or local agency shall try to refer only certified interpreters to governing bodies for purposes of this subsection. (e) As used in this subsection, “good faith effort” includes, but is not limited to, contacting the department or other state or local agency that maintains a list of qualified interpreters and ar- ranging for the referral of one or more qualified interpreters to provide interpreter services.

Passed by Senate April 26, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Lori L. Brocker, Secretary of Senate

...... M.,...... , 2017

...... Peter Courtney, President of Senate ...... Kate Brown, Governor Passed by House June 14, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Tina Kotek, Speaker of House

...... Dennis Richardson, Secretary of State

Enrolled Senate Bill 317 (SB 317-A) Page 2

Current Developments in Federal Indian Law 1B–12 Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled Senate Bill 826 Sponsored by Senators GELSER, KNOPP; Senators FERRIOLI, MANNING JR, ROBLAN

CHAPTER ......

AN ACT

Relating to victim services programs; amending ORS 40.264 and 147.600.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 40.264 is amended to read: 40.264. (1) As used in this section: (a) “Certified advocate” means a person who: (A) Has completed at least 40 hours of training in advocacy for victims of domestic violence, sexual assault or stalking, approved by the Attorney General by rule; and (B) Is an employee or a volunteer of a qualified victim services program. (b) “Confidential communication” means a written or oral communication that is not intended for further disclosure, except to: (A) Persons present at the time the communication is made who are present to further the interests of the victim in the course of seeking safety planning, counseling, support or advocacy services; (B) Persons reasonably necessary for the transmission of the communication; or (C) Other persons, in the context of group counseling. (c) “Qualified victim services program” means: (A) A nongovernmental, nonprofit, community-based program receiving moneys administered by the state Department of Human Services or the Oregon or United States Department of Justice , or a program administered by a tribal government, that offers safety planning, counseling, support or advocacy services to victims of domestic violence, sexual assault or stalking; or (B) A sexual assault center, victim advocacy office, women’s center, student affairs center, health center or other program providing safety planning, counseling, support or advocacy services to victims that is on the campus of or affiliated with a two- or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant. (d) “Victim” means a person seeking safety planning, counseling, support or advocacy services related to domestic violence, sexual assault or stalking at a qualified [victims] victim services program. (2) Except as provided in subsection (3) of this section, a victim has a privilege to refuse to disclose and to prevent any other person from disclosing: (a) Confidential communications made by the victim to a certified advocate in the course of safety planning, counseling, support[,] or advocacy services. (b) Records that are created or maintained in the course of providing services regarding the victim.

Enrolled Senate Bill 826 (SB 826-INTRO) Page 1

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(3) The privilege established by this section does not apply to the disclosure of confidential communications, only to the extent disclosure is necessary for defense, in any civil, criminal or administrative action that is brought against the certified advocate, or against the qualified victim services program, by or on behalf of the victim. (4) The privilege established in this section is not waived by disclosure of the communications by the certified advocate to another person if the disclosure is reasonably necessary to accomplish the purpose for which the certified advocate is consulted. (5) This section does not prohibit the disclosure of aggregate, nonpersonally identifying data. (6) This section applies to civil, criminal and administrative proceedings and to institutional disciplinary proceedings at a two-year or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant. SECTION 2. ORS 147.600 is amended to read: 147.600. (1) As used in this section: (a) “Certified advocate” means a person who: (A) Has completed at least 40 hours of training in advocacy for victims of domestic violence, sexual assault or stalking, approved by the Attorney General by rule; and (B) Is an employee or a volunteer of a qualified victim services program. (b) “Confidential communication” means a written or oral communication that is not intended for further disclosure to third persons except to: (A) Persons present at the time the communication is made who are present to further the interests of the victim in the course of seeking safety planning, counseling, support or advocacy services; (B) Persons reasonably necessary for the transmission of the communication; or (C) Other persons, in the context of group counseling. (c) “Qualified victim services program” means: (A) A nongovernmental, nonprofit, community-based program receiving moneys administered by the state Department of Human Services or the Oregon or United States Department of Justice , or a program administered by a tribal government, that offers safety planning, counseling, support or advocacy services to victims of domestic violence, sexual assault or stalking; or (B) A sexual assault center, victim advocacy office, women’s center, student affairs center, health center or other program providing safety planning, counseling, support or advocacy services to victims that is on the campus of or affiliated with a two-year or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant. (d) “Victim” means a person seeking safety planning, counseling, support or advocacy services related to domestic violence, sexual assault or stalking at a qualified [victims] victim services program. (2) Except as provided in ORS 40.252 and 40.264, without the written, informed consent of the victim that is reasonably limited in duration, a certified advocate or a qualified victim services program may not disclose: (a) Confidential communications between a victim and the certified advocate or qualified victim services program made in course of safety planning, counseling, support or advocacy services. (b) Records that are created or maintained in the course of providing services regarding the victim. (3) Notwithstanding subsection (2) of this section, a certified advocate or a qualified victim services program may disclose confidential communications or records without the victim’s consent only: (a) To the extent necessary for defense in any civil, criminal or administrative action that is brought against the certified advocate, or against the qualified victim services program, by or on behalf of the victim; and (b) As otherwise required by law. (4) This section does not prohibit the disclosure of aggregate, nonpersonally identifying data.

Enrolled Senate Bill 826 (SB 826-INTRO) Page 2

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Passed by Senate March 28, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Lori L. Brocker, Secretary of Senate

...... M.,...... , 2017

...... Peter Courtney, President of Senate ...... Kate Brown, Governor Passed by House May 25, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Tina Kotek, Speaker of House

...... Dennis Richardson, Secretary of State

Enrolled Senate Bill 826 (SB 826-INTRO) Page 3

Current Developments in Federal Indian Law 1B–15 Chapter 1B—Oregon Legislative Update

Current Developments in Federal Indian Law 1B–16 Chapter 1B—Oregon Legislative Update

79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled House Bill 2197 Introduced and printed pursuant to House Rule 12.00. Presession filed (at the request of Joint In- terim Committee on Marijuana Legalization)

CHAPTER ......

AN ACT

Relating to cannabis; creating new provisions; amending ORS 475B.700 and 475B.710; and prescrib- ing an effective date.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2017 Act is added to and made a part of ORS 475B.700 to 475B.760. SECTION 2. (1) The Department of Revenue may enter into an agreement with the governing body of a federally recognized Indian tribe that is qualified as described in this section for the purpose of making rebate payments for an estimate of the tax on marijuana items imposed under ORS 475B.705 as described in this section. (2) The governing body of a federally recognized Indian tribe is qualified to enter into an agreement under this section if the governing body has entered into an agreement with the Governor, or the Governor’s designee, pursuant to section 35, chapter 24, Oregon Laws 2016. (3) The department shall provide rebates under this section for: (a) Usable marijuana sold by a marijuana retailer that holds a license issued under ORS 475B.110 that is produced by a marijuana producer that is located on tribal trust land and licensed by the governing body of a federally recognized Indian tribe that has entered into an agreement with the Governor, or the Governor’s designee, pursuant to section 35, chapter 24, Oregon Laws 2016, provided that the licensing of the marijuana producer comports with the agreement; and (b) Cannabinoid concentrates, cannabinoid extracts or cannabinoid products sold by a marijuana retailer that holds a license issued under ORS 475B.110 that are processed by a marijuana processor that is located on tribal trust land and licensed by the governing body of a federally recognized Indian tribe that has entered into an agreement with the Governor, or the Governor’s designee, pursuant to section 35, chapter 24, Oregon Laws 2016, provided that the licensing of the marijuana processor comports with the agreement. (4) Payments made by the department to a federally recognized Indian tribe should represent the department’s estimate of the amount of revenue generated under ORS 475B.705 attributable to marijuana items: (a) Produced by a marijuana producer that is located on tribal trust land and licensed by the governing body of a federally recognized Indian tribe that has entered into an agreement with the Governor, or the Governor’s designee, pursuant to section 35, chapter 24, Oregon Laws 2016, provided that the licensing of the marijuana producer comports with the agreement; or

Enrolled House Bill 2197 (HB 2197-A) Page 1

Current Developments in Federal Indian Law 1B–17 Chapter 1B—Oregon Legislative Update

(b) Processed by a marijuana processor that is located on tribal trust land and licensed by the governing body of a federally recognized Indian tribe that has entered into an agreement with the Governor, or the Governor’s designee, pursuant to section 35, chapter 24, Oregon Laws 2016, provided that the licensing of the marijuana processor comports with the agreement. (5) There is continuously appropriated from the suspense account established under ORS 475B.760 the amounts necessary to make rebates pursuant to an agreement entered into under this section. SECTION 3. ORS 475B.700 is amended to read: 475B.700. As used in ORS 475B.700 to 475B.760: (1) “Cannabinoid concentrate,” “cannabinoid edible,” “cannabinoid extract,” “cannabinoid product,” “consumer,” “immature marijuana plant,” “marijuana flowers,” “marijuana items,” “marijuana leaves,” “marijuana processor,” “marijuana producer,” [and] “marijuana retailer” and “usable marijuana” have the meanings given those terms in ORS 475B.015. (2) “Retail sale” means any transfer, exchange, gift or barter of a marijuana item by any person to a consumer. (3) “Retail sales price” means the price paid for a marijuana item, excluding tax, to a marijuana retailer by or on behalf of a consumer of the marijuana item. SECTION 4. ORS 475B.710, as amended by section 7, chapter 91, Oregon Laws 2016, is amended to read: 475B.710. (1) Except as otherwise provided in ORS 475B.700 to 475B.760, the tax imposed upon the consumer under ORS 475B.705 shall be collected at the point of sale and remitted by each marijuana retailer that engages in the retail sale of marijuana items. The tax is considered a tax upon the marijuana retailer that is required to collect the tax, and the marijuana retailer is considered a taxpayer. (2) The marijuana retailer shall file a return to the Department of Revenue on or before the last day of January, April, July and October of each year for the previous calendar quarter. (3) The marijuana retailer shall pay the tax to the department in the form and manner prescribed by the department, but not later than with each quarterly return, without regard to an extension granted under subsection (5) of this section. (4) Marijuana retailers shall file the returns required under this section regardless of whether any tax is owed. (5) For good cause, the department may extend the time for filing a return under this section. The extension may be granted at any time if a written request is filed with the department during or prior to the period for which the extension may be granted. The department may not grant an extension of more than 30 days. (6) Interest shall be added at the rate established under ORS 305.220 for each month, or fraction of a month, from the time the return was originally required to be filed to the time of payment. (7) If a marijuana retailer fails to file a return or pay the tax as required by this section, the department shall impose a penalty in the manner provided in ORS 314.400. (8) Except as provided in subsections (9) and (10) of this section, the period prescribed for the department to allow or make a refund of any overpayment of tax paid under ORS 475B.700 to 475B.760 is as provided in ORS 314.415. (9)(a) The department shall first apply any overpayment of tax by a marijuana retailer to any marijuana tax that is owed by the marijuana retailer. (b) If after any offset against any delinquent amount the overpayment of tax remains greater than $1,000, the remaining refund shall be applied as a credit against the next subsequent calendar quarter as an estimated payment. (10) The department may not make a refund of, or credit, any overpayment of tax under ORS 475B.700 to 475B.760 that was credited to the account of a marijuana retailer under subsection (9)(b) of this section if the return for that tax period is not filed within three years after the due date of that return.

Enrolled House Bill 2197 (HB 2197-A) Page 2

Current Developments in Federal Indian Law 1B–18 Chapter 1B—Oregon Legislative Update

SECTION 5. This 2017 Act takes effect on the 91st day after the date on which the 2017 regular session of the Seventy-ninth Legislative Assembly adjourns sine die.

Passed by House June 13, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Timothy G. Sekerak, Chief Clerk of House

...... M.,...... , 2017

...... Tina Kotek, Speaker of House ...... Kate Brown, Governor Passed by Senate June 20, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Peter Courtney, President of Senate

...... Dennis Richardson, Secretary of State

Enrolled House Bill 2197 (HB 2197-A) Page 3

Current Developments in Federal Indian Law 1B–19 Chapter 1B—Oregon Legislative Update

Current Developments in Federal Indian Law 1B–20 Chapter 2A Indian Child Welfare Act and the 2016 Regulations—Presentation Slides

Brent Leonhard Confederated Tribes of the Umatilla Indian Reservation Department of Justice Pendleton, Oregon Chapter 2A—Indian Child Welfare Act and the 2016 Regulations—Presentation Slides

Current Developments in Federal Indian Law 2A–ii 9/11/2017

Chapter 2A—Indian Child Welfare Act and the 2016 Regulations—Presentation Slides

Indian Child Welfare Act and the 2016 Regulations

PRESENTED BY: M. BRENT LEONHARD

ICWA: The Historical Reasons

 25%-35% of all Indian children in the US “had been separated from their families and placed in adoptive families, foster care or institutions.” Mississippi Choctaw v. Holyfield (Supreme Court, 1989, citing a 1978 House Report).  In some states Indian children were 8 times more likely to be removed and placed in adoptive or foster care than non-Indian children. Holyfield, citing Senate hearings in 1974.  Of those, approximately 90% were placed with non- Indian families. Holyfield, citing hearings.

Current Developments in Federal Indian Law 2A–1

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ICWA: The Historical Reasons

 Congress found that, “the States… have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 USC 1901(5).  Congress also found that, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe.” 25 USC 1901(3).

ICWA: The Historical Reasons

 Congress found that it is in the best interest of Indian children to remain in the custody of their families and to protect their affiliation with their tribe. Holyfield.  Congress also found that, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe.” 25 USC 1901(3).

Current Developments in Federal Indian Law 2A–2

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Chapter 2A—Indian Child Welfare Act and the 2016 Regulations—Presentation Slides

ICWA: The Historical Reasons

2016 Regulations: When ICWA Applies

 ICWA applies when a State “child custody proceeding” involves and “Indian child”. It does not apply to parental custody disputes.  A “child custody proceeding” includes:  Foster care placement, broadly defined.  Termination of parental rights.  Pre-adoptive placement.  Adoptive placement.  NOTE: A voluntary placement by both parents is not included. HOWEVER, placement must be without threat of removal by an agency and can’t prevent parent from getting custody on demand.  The existing Indian family exception is prohibited. (Some courts held ICWA doesn’t apply if child has never been part of an “Indian” home or culture)

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2016 Regulations: When ICWA Applies

 State has no jurisdiction if the child is a resident or is domiciled on a reservation (if the tribe has exclusive jurisdiction over child-custody proceedings).  Domicile of a child is the parent’s domicile, or the mother’s domicile if not married to father. Note: Domicile can be in a place the child has never actually been.  A State has no jurisdiction of a child that is a ward of a tribal court regardless of current residence or domicile.  In EVERY emergency or voluntary or involuntary custody proceeding Court must ask if there is reason to know if a child is Indian. If there is reason to know, but evidence is insufficient to determine, must treat as if ICWA applies.

2016 Regulations: Emergency Removal

 Removal only if it is necessary to prevent imminent physical damage or harm to the child.  Removal must be for as short a time as possible. Agency must diligently investigate and document whether removal or placement is proper and continues to be necessary to prevent imminent physical damage or harm.  A new hearing must promptly occur if new evidence arises. If court determines emergency has ended, removal must be immediately terminated.

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2016 Guidelines: Emergency Removal

 Temporary emergency custody should not go beyond 30 days unless the following are determined:  Restoring child to parent would subject child to imminent physical damage or harm;  Unable to transfer the proceeding to the appropriate tribe; and  Not possible to initiate a child custody proceeding.

2016 Regulations: Transfers to Tribal Court

 A parent, custodian, or tribe can request the State court to transfer the case to tribal court and can be oral or in writing.  Right is available at any stage in each foster care or termination of parental rights proceeding.  Once a petition to transfer has been made, a State must transfer unless:  Either parent objects,  The tribal court declines, or  The court determines “good cause” exists to deny it.

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2016 Regulations: Transfers to Tribal Court

 Good cause to deny a transfer to tribal court must be stated orally on the record or provided in writing on the record and to the parties, and any party must have an opportunity to be heard on the issue.  A court cannot consider the following in making a good cause determination:  Whether the case is at an advanced stage if notice did not occur until the case was at an advanced stage,  If there were prior proceedings involving the child where no transfer request was made,  Whether transfer would result in a change of placement,  Child’s cultural connection with the tribe or reservation, or  Socio-economic conditions and perceptions of tribal or BIA social services or judicial systems.

2016 Regulations: Involuntary Placements, Adoptions, and Terminations

 Any party petitioning for involuntary placement or termination of parental rights must show:  Active efforts were made to avoid the breakup of the Indian family, and  That those efforts were unsuccessful.  Standard of proof for foster placement is clear and convincing evidence that demonstrates the child’s continued custody is likely to result in serious emotional or physical damage.  Termination is proof beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage.  This must be supported by qualified expert witness testimony. A caseworker regularly assigned to the child cannot serve as the expert.

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2016 Regulations: Voluntary Proceedings

 Practice Note: The same notice for involuntary proceedings should be given in voluntary proceedings, especially to tribes as they may have exclusive jurisdiction and can help with placements.  Consent to termination of parental rights or foster care placement must be in writing and recorded before a court.  Before accepting consent, a court must explain the consequences in detail including:  For foster-care placement, can withdraw consent at any time for any reason and have the child returned.  For termination, can withdraw consent at any time for any reason prior to final decree.  For consent to adopt, can withdraw consent at any time for any reason prior to final decree.  A consent is not valid if given prior to, or within 10 days after, the birth of a child.

2016 Regulations: Dispositions

 Adoption placement preferences are, in descending order:  A member of the child’s extended family.  Other members of the child’s tribe.  Other Indian families, including families of unwed individuals.  Foster care or pre-adoptive placements must be in the least restrictive setting that:  Most approximates a family.  Allows their special needs to be met.  Is in reasonable proximity to their home, extended family, or siblings.  Foster care or pre-adoptive placement preferences are, in descending order:  A member of the child’s extended family.  A foster home, licensed, approved or specified by the child’s tribe whether on or off reservation.  An Indian foster home licensed or approved by an authorized non-Indian licensing authority.  An institution for children approved by a tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.

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2016 Regulations: Dispositions

 If a tribe has a resolution establishing a different order of preference, that must be followed.  If none of the preferences can be met, the Agency must demonstrate clear and convincing evidence that a diligent search was conducted to satisfy the preferences and explain why they could not be met.  Departures can only occur if “good cause” is found by clear and convincing evidence and should be based on one of the following:  The parents request it,  The child requests it,  The child’s special needs can’t be met in a preferential placement,  A preferential placement is unavailable after active efforts have been made to find one.

2016 Regulations: Post Trial Rights

 A voluntary termination of parental rights or adoption can be vacated by a parent within 2 years of the final decree if consent was obtained by fraud or duress.  A foster care placement or termination of parental rights can be invalidated if it is shown that certain ICWA provisions were violated (1911, 1912, or 1913).  A child, parent or custodian, or Indian tribe can bring such an action.  It doesn’t have to be the petitioner’s rights that were violated for invalidation to occur.

Upon a showing of a violation, the court must determine if invalidation is an appropriate action.

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2016 Regulations: Post Trial Rights

 A child’s biological parents or Indian custodian, and Indian tribe must receive notice of any vacation of a final decree of adoption, voluntary termination of an adoptive parent’s rights, or a child is removed from foster care and placed elsewhere.  The notice must also notify them of their right to petition for return of custody of the child in these circumstances.  A final adoption decree must be given to the BIA in DC.  Adult adoptees have certain rights to obtain information regarding the tribal affiliation of their biological parents or any other information necessary to protect their rights, including rights to tribal membership.

Current Developments in Federal Indian Law 2A–9

9 Chapter 2A—Indian Child Welfare Act and the 2016 Regulations—Presentation Slides

Current Developments in Federal Indian Law 2A–10 Chapter 2B OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Amie Fender Oregon Department of Human Services Salem, Oregon

Emily Hawkins Oregon Department of Human Services Salem, Oregon Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Current Developments in Federal Indian Law 2B–ii Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

DEPARTMENT OF HUMAN SERVICES OFFICE OF CHILD WELFARE PROGRAMS

CHAPTER 413 DIVISION 115

APPLICATION OF THE INDIAN CHILD WELFARE ACT (ICWA)

Effective 08/6/17

TABLE OF CONTENTS

413-115-0000 Definitions ...... 3 413-115-0010 History, Purpose, and Applicability ...... 7 413-115-0020 Department Authority ...... 9 413-115-0030 Tribal Membership and Enrollment ...... 9 413-115-0040 Notification to the Tribe of Initial Contact; Inquiry and Actions to Determine a Child's Tribal Membership or Enrollment Under the ICWA ... . 11 413-115-0050 Notification to the Tribe of Placement or Change in Placement ...... 13 413-115-0060 Active Efforts ...... 14 413-115-0070 Emergency Removal and Return Upon Demand ...... 15 413-115-0080 Documentation of Imminent Harm to the Child Prior to Removal ...... 18 413-115-0090 Placement of Indian Children ...... 18 413-115-0100 Voluntary Placement Agreements ...... 21 413-115-0110 Consent to Termination of Parental Rights and Voluntary Relinquishment of Parental Rights ...... 23 413-115-0120 Notice Required Prior to a Child Custody Proceeding or Court Hearing ...... 24 413-115-0130 Standards of Evidence and Minimum Qualifications for a Qualified Expert Witness ...... 27 413-115-0140 Tribal-State Agreement ...... 28

Current Developments in Federal Indian Law 2B–1 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Current Developments in Federal Indian Law 2B–2 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

413-115-0000 Definitions (Amended 08/06/2017)

Unless the context indicates otherwise, the following definitions apply to OAR chapter 413, division 115.

(1) "Active efforts" means affirmative, active, proactive, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan.

(2) "Adoption" means a legal or administrative process that establishes a permanent legal parent-child relationship between a child and an adult who is not already the child's legal parent and terminates the legal parent-child relationship between the adopted child and any former parent.

(3) "Adoptive placement" means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

(4) "BIA" means the U.S. Department of the Interior, Bureau of Indian Affairs.

(5) "Child" means a person under 18 years of age.

(6) "Child-custody proceeding" includes any action, other than an emergency proceeding, that may culminate in one of the following outcomes: a foster-care placement, the termination of parental rights, a pre-adoptive placement, or an adoptive placement. An action that may culminate in one of these four outcomes is considered a separate "child- custody proceeding" from an action that may culminate in a different one of these four outcomes. There may be several child-custody proceedings involving any given Indian child. Within each "child-custody proceeding", there may be several hearings. If a child is placed in foster care or another out-of-home placement as a result of a status offense, that status offense proceeding is a "child-custody proceeding".

(7) "Continued custody" means physical custody, legal custody, or both, under any applicable tribal law or tribal custom or state law that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.

(8) "CPS assessment" means a child protective services assessment, which is an investigation into a report of child abuse or neglect pursuant to ORS 419B.020 that includes activities and interventions to identify and analyze threats to child safety, determine if there is reasonable cause to believe child abuse or neglect occurred, and assure child safety through protective action plans, initial safety plans, or ongoing safety planning.

(9) "Department" means the Department of Human Services, Child Welfare.

Current Developments in Federal Indian Law 2B–3 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(10) "Domicile" means:

(a) For a parent or Indian custodian, the place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.

(b) For an Indian child, the "domicile" of the Indian child's parents or Indian custodian or guardian, or in the case of an Indian child whose parents are not married to each other, the "domicile" of the Indian child's custodial parent.

(11) "Emergency proceeding" means any court action that involves an emergency removal or emergency placement of an Indian child. An "emergency proceeding" is not a child- custody proceeding.

(12) "Emergency removal" means a removal of an Indian child that occurs because removal is necessary to prevent imminent physical damage or harm to the child.

(13) "Entity" means any organization or agency including, but not limited to a private child placing agency, that is separate and independent of the Department, performs functions pursuant to a contract or subcontract with the Department, and receives federal funds.

(14) "Extended family member" is defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in- law, niece or nephew, first or second cousin, or stepparent.

(15) "Foster-care placement" means any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

(16) "Grandparent" for purposes of notification, visitation, contact, or communication ordered by the court under ORS 419B.876 means the legal parent of the child or young adult’s legal parent, regardless of whether the parental rights of the child or young adult’s legal parent have been terminated under ORS 419B.500 to 419B.524.

(17) "Guardian" means an individual who has been granted guardianship of a child through a judgment of the court.

(18) "ICWA" or "the Act" means the Indian Child Welfare Act of 1978, 25 U.S.C. §§1901-63.

(19) “Imminent physical damage or harm” means impending and certain physical harm will occur to the Indian child unless a protective action plan can be put in place or an emergency removal is initiated.

(20) "Indian" means any person who is a member of or eligible for membership in an Indian

Current Developments in Federal Indian Law 2B–4 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

tribe or who is an Alaskan native and a member of a Regional Corporation as defined in 43 U.S.C. § 1606.

(21) "Indian child" means any unmarried person who is under age 18 and either:

(a) Is a member or citizen of an Indian tribe; or

(b) Is eligible for membership or citizenship in an Indian tribe and is the biological child of a member or citizen of an Indian tribe.

(22) "Indian custodian" means any Indian who has legal custody of an Indian child under applicable tribal law or custom or under applicable state law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

(23) "Indian foster home" means a substitute care placement where at least one of the licensed or approved foster parents is an Indian.

(24) "Indian organization" means any group, association, partnership, corporation, or legal entity owned or controlled by Indians or a majority of whose members are Indians, such as an Indian Child Welfare Committee.

(25) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in 43 U.S.C. § 1602.

(26) "Initial safety plan" means a documented set of actions or interventions sufficient to protect a child from imminent physical damage or harm in order to allow for completion of the CPS assessment.

(27) "Involuntary proceeding" means a child-custody proceeding in which the parent does not consent of his or her free will to the foster-care, pre-adoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, preadoptive, or adoptive placement under threat of removal of the child by a state court or agency.

(28) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.610, or by a juvenile court. In cases involving an Indian child under the ICWA, parent means any biological parent of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(30) "Protective action plan" means an immediate, same day, short-term plan, lasting a

Current Developments in Federal Indian Law 2B–5 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

maximum of ten calendar days, sufficient to protect a child from imminent physical damage or harm.

(31) "QEW" means qualified expert witness. A qualified expert witness is a person who is qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. A person may be designated by the Indian child’s Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child’s Tribe.

(32) "Reservation" means Indian country as defined in 18 U.S.C. §1151, and any lands not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

(33) "Sibling" means one of two or more children or young adults who are related, or would be related but for a termination or other disruption of parental rights, in one of the following ways:

(a) By blood or adoption through a common parent.

(b) Through the marriage of the legal or biological parents of the children or young adults.

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(34) "Status offense" means an offense that would not be considered criminal if committed by an adult; they are acts prohibited only because of a person's status as a minor (e.g., truancy, runaway, beyond control).

(35) "Substitute care" means the out-of-home placement of a child or young adult who is in the custody and care of the Department.

(36) "Substitute caregiver" means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(37) "Termination of parental rights" means any action which results in the termination of the parent-child relationship.

(38) "Tribal Affairs Unit" means designated staff who monitor Department policy and procedures for compliance with the ICWA, investigate complaints of non-compliance from tribes, provide consultation to caseworkers and Department staff regarding related law and administrative rules, and provide ICWA materials and training.

(39) "Tribal court" means the court which holds jurisdiction over Indian child-custody proceedings and is either a Court of Indian Offenses, a court established and operated

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under code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child-custody proceedings. Tribal court may also include a tribal council, if so designated by the tribe.

(40) "Upon demand" means that the parent or Indian custodian can regain custody simply upon verbal request, without any formalities or contingencies.

(41) "Voluntary placement agreement" means a binding, written agreement between the Department and the parent or Indian custodian of a minor child that does not transfer legal custody to the Department but that specifies, at a minimum, the legal status of the child and the rights and obligations of the parent or Indian custodian, the child and the Department while the child is in placement.

(42) "Young adult" means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 418.625

413-115-0010 History, Purpose, and Applicability (Amended 08/06/17)

(1) History and Purpose.

(a) On November 8, 1978, utilizing its power over Indian affairs and its "responsibility for the protection and preservation of Indian tribes and their resources," while acknowledging "that there is no resource more vital to the continued existence and integrity of Indian tribes than their children," Congress enacted the Indian Child Welfare Act (the Act or ICWA). The Act was passed because Congress found that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children" by courts and welfare departments and placed in non-Indian foster homes and institutions. In 2016, the Bureau of Indian Affairs (BIA) revisited the ICWA and added a subpart to the regulations to improve ICWA implementation (see 25 C.F.R § 23).

(b) The Act sets forth that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families.

(A) Prevent the removal of such children; and

(B) If removal becomes necessary:

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(i) Take remedial actions to promote timely return; and

(ii) Place such children in foster or adoptive homes that comply with the placement preferences of the ICWA.

(2) Applicability and Limitations.

(a) The provisions of the ICWA apply when an Indian child is the subject of:

(A) A child-custody proceeding;

(B) An involuntary proceeding;

(D) A proceeding involving a status offense if any part of the proceeding results in the need for out-of-home placement of the child, including a foster care, pre-adoptive, or adoptive placement or termination of parental rights; or

(E) An emergency proceeding.

(b) If the ICWA applies during a proceeding, it will not cease to apply simply because the child reaches 18 during the pendency of the proceeding.

(A) A tribal court proceeding.

(B) A proceeding regarding a criminal act that is not a status offense.

(C) An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding.

(d) Cultural Heritage Protection. In instances where the ICWA does not apply, but the child is biologically an Indian or considered to be an Indian by the Indian community, the Department must respect the child's right to participate in the culture of origin in case planning. Participation in the culture includes the language, customary beliefs, social norms, and material traits including, but not limited to, the dress, food, music, and dance of a racial, religious, or social group that are transmitted from one generation to another.

(e) The Act does not cover the full range of procedures involved in a juvenile court proceeding; where it is silent, the usual state court procedure applies. Under constitutional law, the Act takes precedence where it conflicts with state law. When federal or state law affords a higher standard of protection than the ICWA,

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the higher standard applies.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005

413-115-0020 Department Authority (Amended 08/06/17)

Once it is found that an Indian child is involved, and the tribe or tribes who have an interest have been determined, the authority of the Department must be established. In some instances, the Department will have no authority to become involved in a case.

(1) Exclusive Tribal Jurisdiction. Indian tribes have exclusive jurisdiction over child- custody proceedings involving children who reside or whose domicile is on a reservation. The only exception is where Congress has transferred jurisdiction over family welfare matters to a state and the tribe in that state has not completed the administrative process to reassume exclusive jurisdiction.

(2) Tribal Court Ward. The Department has no authority in cases involving an Indian child who is a ward of a tribal court, except for an emergency removal, as described in section (3) of this rule.

(3) Emergency Removal—Limited Authority. Notwithstanding sections (1) and (2) of this rule, if an Indian child who resides or whose domicile is on any reservation is located off the reservation and removal is necessary to prevent imminent physical damage or harm, the Department has the authority to take physical custody regardless of whether the child is a ward of a tribal court or the tribe has exclusive jurisdiction.

Stat. Auth.: ORS 418.005, 418.627 Stats. Implemented: ORS 418.005, 419B.100, 419B.118

413-115-0030 Tribal Membership and Enrollment (Amended 08/06/17)

(1) Tribal Determination of Membership or Eligibility for Membership.

(a) The determination of whether the child is a member of a tribe (or eligible for membership), is solely within the jurisdiction of the tribe, except as otherwise provided in tribal or federal law.

(b) The determination of whether a biological parent is a member of a tribe is solely within the jurisdiction of the tribe, except as otherwise provided by tribal or federal law.

Current Developments in Federal Indian Law 2B–9 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(c) When the Indian child is a member or eligible for membership in only one tribe, that tribe must be designated as the Indian child's tribe.

(d) When the Indian child meets the definition of Indian child through more than one tribe, deference should be given to the tribe in which the Indian child is already a member, unless otherwise agreed to by the tribe or tribes.

(e) When the Indian child meets the definition of Indian child through more than one tribe because the child is a member in more than one tribe, or the child is not a member of but is eligible for membership in more than one tribe, the court must provide an opportunity for the tribes to determine which tribe should be designated as the Indian child's tribe in any involuntary proceeding.

(f) When the tribes are unable to reach an agreement, the court designates the Indian tribe with which the Indian child has the more significant contacts as the child's tribe, for purposes of the ICWA. That determination does not constitute a determination for any other purposes.

(2) Department Responsibilities.

(a) When a child may be a member or enrolled or eligible for membership or enrollment in a tribe, the Department must follow all notification requirements in OAR 413-115-0050 and notice requirements in OAR 413-115-0120.

(b) The Department must assist the parent or Indian custodian in completing and submitting information to the tribe(s) to determine membership or enrollment in the tribe(s).

(c) When a child may be a member of or enrolled in, or eligible for membership of or enrollment in, more than one tribe, the Department must gather and document information to assist the court in making a determination for purposes of the Act. The information, if available, must include, but is not limited to:

(A) The parents' preference for the membership or enrollment of the child.

(B) The length of past domicile or residence on or near the reservation of each tribe.

(D) Interest asserted by each tribe in the child-custody proceeding.

(E) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes.

Current Developments in Federal Indian Law 2B–10 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(F) Self-identification of the child if the child is of sufficient age and capacity to meaningfully self-identify.

(d) When the Department receives tribal confirmation regarding the status of a child's membership or enrollment or eligibility for membership or enrollment, the Department must:

(A) Document in the Department's information system either:

(i) The determination by the tribe of the child's membership or enrollment or eligibility for membership or enrollment; or

(ii) The determination by the tribe declaring the child is ineligible for membership or enrollment.

(B) Submit any and all confirmation from the tribe(s) regarding the child’s membership or enrollment status at subsequent court hearings.

(e) The Department must:

(A) Identify and work with all of the tribes of which the Department knows or has reason to know the child may be a member (or eligible for membership); and

(B) Treat the child as an Indian child when there is reason to know the child may be an Indian child unless it is determined by the court that the child does not meet the definition of an Indian child.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005

413-115-0040 Notification to the Tribe of Initial Contact; Inquiry and Actions to Determine a Child's Tribal Membership or Enrollment Under the ICWA (Amended 08/06/17)

(1) When the Department receives screening information under OAR 413-015-0205, the screener must inquire whether the child is an Indian child. If the screener receives information that the child may be an Indian child, and the tribe(s) is named, the screener must send a copy of the screening report to the tribe(s) within 24 hours after the screening decision is complete.

(2) When a decision is made to open a CPS assessment pursuant to OAR 413-015-0210 or a case for family support services, the CPS worker must inquire into whether the child is an Indian child, and must work with the child's parents or

Current Developments in Federal Indian Law 2B–11 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Indian custodian, and if the parents or Indian custodian are not available, any available extended family member, to gather detailed information regarding:

(a) Tribal membership or enrollment;

(b) Whether the child is a ward of a tribal court; or

(3) If at any time during an open child welfare case the Department receives information that the child is or may be an Indian child under the ICWA, the Department must work with the child's parents or Indian custodian to gather detailed information regarding tribal membership or enrollment.

(4) When information regarding potential tribal membership or enrollment is received under subsection (1), (2) or (3) of this rule and the provisions of the ICWA apply, the Department must:

(a) Within one business day of receiving information regarding tribal membership or enrollment, document the information on a form approved by the Department; and

(b) Submit written notification of initial contact and inquiry regarding the child's membership or enrollment eligibility to the tribe(s) in which the child is or may be a member or is enrolled or may be eligible for membership or enrollment.

(A) Oregon tribes. Notification of initial contact and inquiry must be sent to the appropriate tribe(s) within one business day of receiving the information regarding tribal membership.

(B) Out-of-state tribes. The search for the appropriate tribal contact(s) must be initiated within two business days of receiving the information regarding tribal membership. Notification of initial contact and inquiry must be sent to the appropriate tribe(s) within five business days of receiving the information regarding tribal membership.

(A) The name, birthdate and birthplace of the child.

(B) The child's domicile.

(D) The name of each Indian tribe in which the child is a member (or may be eligible for membership or enrollment if a biological parent is a member).

Current Developments in Federal Indian Law 2B–12 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(E) All known names (including maiden, married, former or aliases) of the parents, the parents' birthdates and birthplaces, and tribal enrollment numbers.

(5) When additional consultation is needed, the caseworker or Department staff may contact the Tribal Affairs Unit.

(6) The Department must document each action to determine the child's Tribal membership or enrollment status in the Department's information system within five business days of the assessment being complete.

(7) The Department must continue to inquire to obtain a child's status regarding tribal membership or eligibility for membership or enrollment until the documented determination required under OAR 413-115-0030 is completed.

(8) When the Department receives confirmation that the child is a member or enrolled or eligible for membership or enrollment, the case must be managed according to the provisions of the ICWA and OAR 413-115-0030(2).

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005

413-115-0050 Notification to the Tribe of Placement or Change in Placement (Amended 08/06/17)

(1) When the Department knows or has reason to know the child is an Indian child, the Department must ensure that notification is provided to the child’s tribe or tribes as soon as possible and within 24 hours of knowing when any of the following actions may occur:

(a) An emergency removal;

(b) An involuntary placement. Notification of an involuntary placement under this rule is separate from notice required under OAR 413-115-0120;

(d) A voluntary placement agreement has been requested by the parent or Indian custodian.

(2) Notification of any action in section (1) must include the following information, if known:

(a) The name, birthdate and birthplace of the child.

Current Developments in Federal Indian Law 2B–13 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(b) The name of the child's parents.

(3) Notification pursuant to this rule may be provided in person, telephonically or electronically, and must be documented in the Department's information system.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.878

413-115-0060 Active Efforts (Amended 08/06/17)

(1) Active efforts must begin when the Department has reason to know the child may be an Indian child, and that there is a possibility the Indian child might be removed from the home of the parents or Indian custodian. The ICWA then applies to any emergency proceeding or child custody proceeding, until it is determined by the court that the child does not meet the definition of Indian child. Active efforts must:

(a) Involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan;

(b) Be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's tribe whenever possible;

(c) Be conducted in partnership with the Indian child and the Indian child's parents, Indian custodians, extended family members and the tribe whenever possible;

(d) Be tailored to the facts and circumstances of the case; and

(e) Be designed to ameliorate the need for removal.

(2) During a CPS assessment and prior to a determination that the child must be removed from the home of the parents or Indian custodian, the Department must engage in active efforts and offer services of a remedial nature designed to rehabilitate and prevent the breakup of the Indian family. These active efforts must include efforts to:

(a) Counsel and modify the behavior of the parents or Indian custodian.

(b) Ameliorate any imminent physical damage or harm.

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(3) The Department must involve the Indian child's extended family members, tribe(s), and tribal organizations at the earliest possible point during the assessment to reduce the potential for cultural bias when evaluating home and family conditions and making decisions affecting Indian children and families.

(4) In order to demonstrate that active efforts have been made, the Department must, at a minimum:

(a) Assure that due consideration has been given to the cultural needs and values of the family and that resources have been diligently sought to provide services to the family.

(b) Collaborate with the parent, parents or Indian custodian, the tribe, and the Indian child, if the child is competent, when formulating the case plan.

(c) Actively assist and engage with the parent, parents or Indian custodian in achieving the case plan objectives and work with the parent, parents, or Indian custodian to engage them in remedial services and rehabilitation programs to prevent the breakup, or support the reunification of the family.

(d) Contact the tribe, potential service providers within the child's tribal community and other community resources to identify placement resources and culturally appropriate services.

(e) Contact and consult with the Indian child's extended family members and the tribe, to determine whether additional support for the Indian child and the Indian child's parents is available from any extended family member.

(f) Tailor the case plan to the facts and circumstances of the case.

(g) Document the active efforts in the Department's information system.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.185, 419B. 340

413-115-0070 Emergency Removal and Return Upon Demand (Amended 08/06/17)

(1) During a CPS assessment, the Department may take emergency protective custody of any Indian child, whether or not the child's domicile or residence is on a reservation, and regardless of the jurisdiction held by the child's tribe, if the following criteria are met:

(a) The child is not located on a reservation where the tribe has exclusive jurisdiction over child custody matters;

Current Developments in Federal Indian Law 2B–15 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(b) Removal is necessary to prevent imminent physical damage or harm to the child; and

(c) The Department cannot develop a protective action plan under OAR 413-015- 0432 in which the Indian child remains in the home, or an in-home initial safety plan per the requirements of OAR 413-015-0437, meeting the requirements of OAR 413-015-0432 to ensure child safety.

(2) If there is reason to know the child may be an Indian child, and in order to determine if the tribe has exclusive jurisdiction, Department staff must immediately inquire as to the child's residence or domicile, since the child may be a resident of or domiciled on a reservation but is temporarily off the reservation.

(3) When emergency removal is necessary, the Department must consult with the tribe and notify the Tribal Affairs Unit as soon as possible, and in no case more than 24 hours after the emergency removal.

(4) If there is reason to know the child is an Indian child, active efforts must be made to place the child during emergency protective custody in a setting which follows the placement priorities established by the ICWA or the tribe and set forth in OAR 413-115-0090.

(5) If there is reason to know the child is an Indian child, and the child is placed in emergency protective custody or the child cannot be returned to the child's parents upon demand during a protective action plan the Department must comply with the following:

(a) Treat the child as an Indian child.

(b) Complete and document all practicable actions to confirm whether the child is an Indian child under OAR 413-115-0030(2).

(c) Immediately notify the child's tribe pursuant to OAR 413-115-0050, the parents, the Indian custodian and if known, the grandparents, of the removal of the child and document the notification in the Department's information system.

(d) Comply with OAR 413-115-0120.

(e) Continually assess whether the removal and placement continues to be necessary to prevent imminent physical damage or harm to the child.

(6) Emergency protective custody can be terminated by one or more of the following actions:

(a) Initiation of a child-custody proceeding subject to the provisions of the ICWA.

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(b) Transfer of the case to the jurisdiction of the appropriate tribe.

(7) If an Indian child is removed pursuant to a protective action plan or emergency removal and cannot be returned to the parent or Indian custodian or the case is not transferred to the jurisdiction of the tribe, under ORS 419B.183 the Department must request that the court hold a hearing within 24 hours— excluding Saturdays, Sundays and judicial holidays—to request temporary custody of the child.

(8) A petition and accompanying documents filed pursuant to section (7) of this rule must contain the following information, if known, in addition to any information required by state law:

(a) The name, age, and last known address of the Indian child.

(b) The name and address of the child's parents and Indian custodians, if any.

(d) If the child's parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate BIA Regional Director.

(e) The residence and the domicile of the Indian child.

(f) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.

(g) The tribal affiliation of the child and of the parents or Indian custodians.

(h) A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action.

(i) A statement of the threat of imminent physical damage or harm to the child and any evidence that the emergency removal or placement continues to be necessary to prevent imminent physical damage or harm to the child.

(j) A statement of the active efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.

(k) If it is believed that a child's domicile or residence is on a reservation where the tribe exercises exclusive jurisdiction over child-custody matters, a statement of efforts that have been made and are being made to contact the tribe and transfer the child to the tribe's jurisdiction.

Current Developments in Federal Indian Law 2B–17 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

(9) Where the danger to the Indian child persists and the child's tribe does not have exclusive jurisdiction and will not request transfer of the case to its court, the Department must initiate a child custody proceeding and, in consultation with the child's parents and tribe, if known, explore available placement resources which meet the placement preferences in OAR 413-115-0090, unless such placement has already occurred.

Stat. Auth.: ORS 418.005, 419B.171 Stats. Implemented: ORS 418.005, 418.015, 419B.150, 419B.183

413-115-0080 Documentation of Imminent Harm to the Child Prior to Removal (Amended 08/06/17)

Except during an emergency removal described in OAR 413-115-0070, prior to removal of the child from a parent or Indian custodian and filing a petition, the Department must document:

(1) The causal relationship between the particular conduct of the parent or Indian custodian or conditions in the home and the serious emotional or physical damage which is likely to result to the child.

(2) If it is likely that such harm will occur, that active efforts have been made to counsel and modify the behavior of the parent or Indian custodian or the conditions in the home.

(3) Why those active efforts have not been successful.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005

413-115-0090 Placement of Indian Children (Amended 08/06/17)

(1) The Department must conduct a search for an appropriate placement, which includes, at a minimum:

(a) Contact with the appropriate representative from the child's tribe;

(b) A search for Oregon Indian foster home availability;

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(d) Extended family to the sixth degree of consanguinity.

(2) Foster-care placement preferences.

(a) In determining the appropriate placement for an Indian child, the Department must contact the child's tribe to determine if the tribe has established, by resolution, an order of placement preference or has placement resources different from those described in this rule.

(b) If the Indian child's tribe has established by resolution a different order of placement preference than that specified in subsection (c) of this section for Indian children of the tribe, the tribe's placement preferences apply, so long as the placement is the least-restrictive setting appropriate to the particular needs of the Indian child, as provided in subsection (d) of this section.

(c) If the child's tribe has not established by resolution a different order of preference, and the court has not determined on the record that there is good cause to depart from the ICWA prescribed placement preferences, preference must be given, in descending order as listed below, to placement of the child with:

(A) An extended family member of the Indian child;

(B) A foster home that is licensed, certified, approved, or specified by the Indian child's tribe;

(D) An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the child's needs.

(d) The child must be placed in the least restrictive setting that:

(A) Most approximates a family, taking into consideration sibling attachment;

(B) Allows the Indian child's special needs (if any) to be met; and

(e) The Department must inform the substitute caregiver that the child is an Indian child.

(3) Adoptive Placements.

(a) In determining the appropriate adoptive placement for an Indian child, the Department must contact the child's tribe to determine if the tribe has established,

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by resolution, an order of placement preference or has placement resources different from those described in this section for Indian children of the tribe.

(b) If the Indian child's tribe has established by resolution a different order of placement preference than that specified in subsection (c) of this section, the tribe's placement preferences apply for Indian children of the tribe.

(A) An extended family member of the Indian child;

(B) Other members of the Indian child's tribe; or

(4) Change of Placement.

(a) When an Indian child is moved from one placement setting to another or if the foster family moves, the placement preferences outlined in this rule must be followed for each subsequent placement, unless the child is returned to the parent or Indian custodian from whose custody the child was originally removed.

(b) The Department must notify the parent, Indian custodian, and the child's tribe in writing prior to a change in placement or before the foster family moves, as required in OAR 413-115-0050.

(5) Records of Placement.

(a) The Department must maintain a written record of each placement for each Indian child.

(b) The Department must document, in detail, in the Department's information system, the efforts to comply with the order of placement preferences established by the tribe.

(c) When the Department departs from the order of placement preferences established by the tribe, the Department bears the burden of providing to the court, by clear and convincing evidence, that there is good cause to depart from the order of placement preferences established by the tribe.

(d) Upon the request of the Indian child's tribe or the Department of the Interior, the Department must make available the record of every foster care, pre-adoptive, and

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adoptive placement of an Indian child for which the Department has records.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419.627, 419B.171, 419B.192

413-115-0100 Voluntary Placement Agreements and Voluntary Custody Agreements (Amended 08/06/17)

(1) The Department may enter into a voluntary placement agreement with the consent of a parent or Indian custodian of any Indian child, if:

(a) Pursuant to ORS 418.312 and OAR 413-020-0070, the sole reason for placing the child in a child-caring agency, foster home, group home, or institutional child- care setting is the need to obtain services for the child's emotional, behavioral, or mental disorder or developmental or physical disability;

(b) The child is more than ten days old;

(d) The written consent is accompanied by the court's certification that the terms and consequences of the consent were fully explained in detail on the record and that certification complies with section (2) of this rule.

(2) Court Hearing on Consent. The Department must request a court hearing to obtain consent from the parent or Indian custodian for the voluntary placement agreement. The Department must ensure that the court certifies on the record that the terms and consequences of the consent for the voluntary placement agreement were:

(a) Explained on the record, in detail, in English (or the language of the parent or Indian custodian, if English is not the primary language); and

(b) Fully understood by the parent or Indian custodian.

(3) The signed voluntary placement agreement consent must, at a minimum, contain:

(a) The name and birthdate of the Indian child.

(b) The name of the child's tribe.

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(d) The name and address, and other identifying information of the consenting parent or Indian custodian.

(e) The name and address of the prospective foster parents, if known.

(f) The name and address of the person, entity or Department, if any, who arranged the placement.

(g) If there were any conditions to the consent, the conditions must be clearly set out.

(4) The Department must place the Indian child into a substitute care setting which follows the placement preferences outlined in OAR 413-115-0090(2), unless the court has determined on the record that good cause exists to not apply those placement preferences. If the Indian child is moved to another placement while in substitute care, the placement preferences in OAR 413- 115-0090(2) continue to apply.

(5) Request for Anonymity. A request for anonymity does not relieve the Department from any duty of compliance with the ICWA, including the obligation to verify whether the child is an Indian child, and compliance with OAR 413- 115-0090.

(6) Ending a voluntary placement agreement.

(a) The parent or Indian custodian may withdraw consent to the voluntary placement agreement at any time.

(b) To withdraw consent, the parent or Indian custodian must:

(A) Provide written notice to the Department;

(B) File a written document with the court; or

(c) When a parent or Indian custodian withdraws consent to a voluntary foster-care placement, the Department must arrange the return of the Indian child to that parent or Indian custodian as soon as practicable.

(7) For voluntary custody agreements, refer to OAR 413-020-0005 through 413-020-0050.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 418.015

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413-115-0110 Consent to Termination of Parental Rights and Voluntary Relinquishment o Parental Rights (Amended 08/06/17)

(1) The Department may accept consent for termination of parental rights or voluntary relinquishment of parental rights from the parent of an Indian child if:

(a) The Department is pursuing adoption;

(b) The child is more than ten days old;

(d) The judge certifies in writing that the terms and consequences of the consent were fully explained in detail on the record and that certification complies with section (2) of this rule.

(2) Court Hearing on Consent. The Department must obtain consent from the parent for the termination of parental rights or voluntary relinquishment of parental rights in court. For the consent to be valid, the court must certify on the record that the terms and consequences of the consent to termination of parental rights or voluntary relinquishment of parental rights were:

(a) Explained in detail, in English (or the language of the parent, if English is not the primary language); and

(b) Fully understood by the parent.

(3) The signed consent to termination of parental rights or voluntary relinquishment of parental rights must, at a minimum, contain:

(a) The name and birthdate of the Indian child;

(b) The name of the child's tribe;

(c) The child's and parents' enrollment numbers, if known, or other indication of the child's membership in the tribe; and

(d) The name and address, and other identifying information of the consenting parent.

(4) Request for Anonymity. A parent's request for anonymity does not relieve the Department from any duty of compliance with the ICWA, including the obligation to verify whether the child is an Indian child.

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(5) Withdrawal of Consent.

(a) Termination of parental rights. The parent may withdraw consent to the termination of parental rights of an Indian child for any reason at any time prior to the entry of the final order for termination of parental rights, and have the child returned as soon as practicable.

(b) Voluntary relinquishment of parental rights. The parent may withdraw consent to a voluntary relinquishment of parental rights of an Indian child for any reason at any time prior to the entry the decree of adoption, and have the child returned as soon as practicable.

(c) If the parent withdraws consent to the termination of parental rights or voluntary relinquishment of parental rights, and the Department believes the child should not be returned to the custody of the parent because of an imminent threat of physical damage or harm to the child, the Department may initiate a child custody proceeding to petition the court to retain custody of the child.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.498, 419B.500, 419B.521, 419B.529

413-115-0120 Notice Required Prior to a Child Custody Proceeding or Court Hearing (Amended 08/06/17)

(1) Notice must be provided for each child custody proceeding where the Department knows or has reason to know the child is an Indian child.

(2) The Department must send notice for a child custody proceeding to:

(a) The parent or parents;

(b) The grandparent or grandparents;

(d) The Indian child's tribe or tribes (or the tribes in which the child is eligible for membership if a biological parent is a member);

(e) Any other party to the case; and

(f) The Portland Regional Director, BIA , only if the identity or location of a potentially interested Indian party to the proceeding cannot be determined, in which case the BIA has fifteen days to locate and notify that party.

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(3) Except for an emergency removal made pursuant to OAR 413-115-0070, the Department may not request a child custody proceeding regarding an Indian child until the following time frames have been met:

(a) Not less than ten days after receipt of notice by any the recipients in (2)(a)-(e) of this rule;

(b) Not less than thirty days after receipt of notice by any of the recipients in (2)(a)- (e) of this rule, if an additional twenty days has been requested the parent, Indian custodian, Indian child's tribe or the BIA; or

(4) Notice for each child custody proceeding must be provided to a tribe even if the tribe has not intervened, or has declined jurisdiction. If a tribe has declined jurisdiction, the tribe maintains the right to participate as an interested party or to intervene at any point in the case.

(5) Service of notice for a child custody proceeding.

(a) The Department must provide notice of a child-custody proceeding by registered or certified mail, with return receipt requested.

(b) In addition to providing notice of a child-custody proceeding by registered or certified mail, the Department may provide personal service, electronic service, or call the noticed party.

(6) Content of notice for a child custody proceeding. Notice must contain, at a minimum:

(a) The name, birthdate, and birthplace of the child;

(b) The name of each Indian tribe in which the child is a member (or may be eligible for membership or enrollment if a biological parent is a member);

(c) All known names (including maiden, married, former or aliases) of the parents, the parents' birthdates and birthplaces, and tribal enrollment numbers, if known;

(d) If known, the names, birthdates, birthplaces, and tribal enrollment information of other direct lineal ancestors of the child, such as a grandparent.

(e) A copy of the petition, complaint, or other document by which the proceeding was initiated;

(f) If a hearing has been scheduled, information on the date, time, and location of the hearing;

(g) The name of the petitioner and the name and address of the petitioner's attorney, if

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any;

(h) A statement setting forth the right of any parent, Indian custodian or the Indian child's tribe, if not already a party, to intervene and participate in the proceeding;

(i) A statement that if the parent or Indian custodian is unable to afford counsel, counsel may be appointed by the court to represent them;

(j) A statement of the right of the parent or Indian custodian and the Indian child's tribe to have, upon request, twenty additional days to prepare for the child-custody proceeding;

(k) The location, mailing address, and telephone number of the court;

(l) Information related to all parties to the hearing and individuals notified under this section;

(m) A statement of the right of the parent or Indian custodian or the Indian child's tribe to petition the court to transfer the child-custody proceeding to the Indian child's tribal court pursuant to 25 U.S.C 1911 and 25 C.F.R. §23.115.

(n) The potential legal consequences of the child-custody proceeding on future custodial rights of the parent or Indian custodian; and

(o) A statement that the notified party must keep the information contained in the notice confidential and may only reveal it to individuals who need the information to exercise their rights under the Act.

(7) Copies of notice for a child custody proceeding.

(a) To the BIA. The Department must provide a copy of the notices under this rule to the appropriate regional director of the BIA. The copy must include all the information in section (6) of this rule. A copy of these notices may be provided by personal service, registered or certified mail, with return receipt requested.

(b) To the court. The Department must file with the court a copy of each notice sent pursuant to this rule together with any return receipts or other proofs of service.

(8) Notice required prior to each court hearing.

(a) Notice of any court hearing subsequent to the initiation of a child custody proceeding must be provided to the child’s tribe or tribes.

(b) Notice for a court hearing described in (a) of this section must include the date, time and location of the hearing.

(c) Notice for a court hearing described in (a) of this section may be provided in person, telephonically or electronically.

Current Developments in Federal Indian Law 2B–26 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.875, 419B.878, 419B.923

413-115-0130 Standards of Evidence and Minimum Qualifications for a Qualified Expert Witness (Amended 08/06/17)

(1) Clear and Convincing.

(a) Foster-care placement. Except during an emergency proceeding, when requesting court authorization for the placement of an Indian child in foster care, the Department must demonstrate, by clear and convincing evidence, that continued custody of the child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The Department's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule.

(b) Guardianship finalization pursuant to ORS 419B.366. When requesting court appointment of a guardian pursuant to ORS 419B.366, the Department must demonstrate, by clear and convincing evidence, that continued custody of the child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The Department's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule.

(2) Beyond a Reasonable Doubt.

(a) Guardianship finalization pursuant to ORS 419B.365. When requesting court appointment of a guardian pursuant to ORS 419B.365, the Department must demonstrate, by evidence beyond a reasonable doubt, that continued custody of the child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The Department's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule.

(b) Termination of Parental Rights. When requesting judicial termination of parental rights, the Department must prove, beyond a reasonable doubt, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The Department's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule.

(3) Qualified Expert Witness (QEW).

(a) A QEW must be qualified to testify regarding whether the child's continued

Current Developments in Federal Indian Law 2B–27 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(b) The Department must work with the Indian child's tribe to determine who should be designated to testify as a QEW. If the Indian child's tribe declines or is unable to designate a QEW, the Department will identify a QEW.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.185, 419B.365, 419B.366, 419B.521

413-115-0140 Tribal-State Agreement (Amended 08/06/17)

These rules may be superseded for a particular tribe by a written, signed agreement between the state and that tribe. Such agreement must be retained by the Tribal Affairs Unit and produced upon request.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005

413-115-0150 Full Faith and Credit (Amended 08/06/17)

The United States, every state, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records and judicial proceedings of any Indian tribe regarding any Indian child-custody proceeding to the same extent that such entities give full faith and credit to Indian tribes.

Stat. Auth.: ORS 418.005 Stats. Implemented: ORS 418.005, 419B.100

Current Developments in Federal Indian Law 2B–28 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Current Developments in Federal Indian Law 2B–29 Chapter 2B—OAR Chapter 413, Division 115, Application of the Indian Child Welfare Act (ICWA)

Current Developments in Federal Indian Law 2B–30 Chapter 3A Current Developments in Tribal Energy—Presentation Slides

Douglas MacCourt Senior Counsel Rosette LLP Washington, DC Chapter 3A—Current Developments in Tribal Energy—Presentation Slides

Current Developments in Federal Indian Law 3A–ii Chapter 3A—Current Developments in Tribal Energy—Presentation Slides

Current Developments in Tribal Energy

Douglas C. MacCourt Senior Counsel, Rosette LLP

Oregon State Bar Indian Law Section Current Developments in Federal Indian Law Oregon State Bar Offices - Tigard, Oregon September 15, 2017

Overview of Presentation

• A look back at Indian Energy in DOE under President Obama – Where the program is headed from a funding perspective in the current administration • A bit about the Federal Budget • Regional Resources for Tribes - BPA • Thoughts on the future

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Some Terminology

• One megawatt is equal to 1 million watts or 1,000 kilowatts. In the Pacific Northwest, it is enough electricity to power about 600 homes. • Source: Northwest Power Planning Council • Tribal Energy or Indian Energy

Strategic Roadmap 2025 1 2 3 4 5

Promote Reduce or Enhance Foster Address Energy Stabilize Energy and Electrificatio Climate Developme Energy Economic n Change nt Costs Infrastructure

U.S. Department of Energy | Office of Indian Energy | 4

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The Situation on the Ground The gap in well-being between Indian Country and the rest of the country is staggering. American Indian and Alaska Native households in large tribal areas are more than 3 times as From 2002–2014, DOE likely to live in overcrowded housing and more provided $48 million in than 11 times as likely to live in housing without funding for tribal energy adequate plumbing projects, which equates to $3.86 per tribal member, American Indians and Alaska Natives account for or enough to buy: less than 1% of those who have earned a bachelor’s degree A day and half’s worth of lunch at a high school in Poverty and unemployment rates among Washington, D.C. American Indian and Alaska Natives living in tribal areas in 2006–2010 were at least twice as high as those among non-Indians nationally 1 Grande latte

Ready access to electricity is still considered a luxury in many tribal communities … an estimated 18,000 Navajo homes — about 40% — still lack electricity U.S. Department of Energy | Office of Indian Energy | 5

Resource Potential in the Lower 48 4

While American Indian land comprises ~2% of the total U.S. land base, it represents an estimated 5% of the total U.S. renewable energy generation potential.

U.S. Department of Energy | Office of Indian Energy | 6

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Resource Potential in Alaska

Alaska’s solar resource is comparable to that of Germany, which leads the world in PV installations with more than 38,500 megawatts (MW) of solar installed as of October 2015.

U.S. Department of Energy | Office of Indian Energy | 7

Resources Federal Grant, Loan, and Technical Assistance Programs

www.energy.gov/indianenergy

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Government-Wide Funding Legislation Approved by the House

September 14, 2017

The House of Representatives today passed a package of funding bills (H.R. 3354) to provide all discretionary funding for the federal government for the 2018 fiscal year.

Energy and Water Appropriations Subcommittees of House and Senate

• Appropriations bills from both Subcommittees proposed different funding levels for Indian Energy – House kept Indian Energy in the DOE Office of Science discretionary budget and proposes cutting that budget by nearly $500MM. – Senate proposes a line item budget and keeping funding at FY 16 levels, double what was initially proposed

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S1609 Senate Energy and Water Development Appropriations Bill

OFFICE OF INDIAN ENERGY POLICY AND PROGRAMS

For necessary expenses for Indian Energy activities in carrying out the purposes of the Department of Energy Organization Act (42 U.S.C. 7101 et seq.), $16,000,000, to remain available until expended: Provided, That, of the amount appropriated under this heading, $4,800,000 shall be available until September 30, 2019, for program direction.

Tribal Energy Loan Guarantee Program: House Proposal

TRIBAL ENERGY LOAN GUARANTEE PROGRAM Appropriation, 2017 ...... $– – – Budget estimate, 2018 ...... – – – Recommended, 2018 ...... 500,000 Comparison: Appropriation, 2017 ...... +500,000 Budget estimate, 2018 ...... +500,000

The Energy Policy Act of 2005 established a loan guarantee program for energy development to provide or expand electricity on Indian land. The funds provided support administrative operations only.

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Appropriations Vice Chairman Leahy Statement On The House Passage Of An Omnibus Appropriations Bill

What the House passed today does not bring us any closer to responsibly funding the government, and it will not pass the Senate. It wastes billions of taxpayer dollars on a useless border wall, which the President promised that Mexico would pay for, and contains poison-pill riders that have no place in the appropriations process. Its proposed increase for defense spending is a lie to the American people that would shatter the budget caps set in place by the Budget Control Act. This would directly result in a 13 percent sequester on national security programs starting in January, severely undermining our military readiness.

This is not a real solution. We need a bipartisan budget deal based on parity, like the ones we had in 2013 and in 2015, that raises the post-sequester budget caps for both defense and non-defense programs to address the needs and the real priorities of our nation.

I have been calling for these negotiations for months. It is time we get serious.

Examples of curious additions to the House budget

SEC. 506. None of the funds made available by this Act may be used for the removal of any federally owned or operated dam unless the removal was previously authorized by Congress.

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A Note On White House Transitions

• Senator Murkowski support for Indian Energy • Transition discussions: priorities for Indian Country – strengthening sovereignty through – Jobs – Investment – Energy development (see Strategic Plan) – Trust Modernization

One Bill to Watch

• S 245 • Hoeven (R-ND) and other Co-Sponsors • Revising the Tribal Energy Resource Agreement or TERA Process and rules • Other amendments – E.g., including federally recognized tribes in the municipal preference under the Federal Power Act

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Tribes Acquiring Major Regional Power Facilities

Salish Kootenai Dam – Former Kerr Dam

• A 200 foot high, 381 foot long concrete arch dam • 208 MW facility producing 1.1M mwh/yr • Salish Kootenai Dam’s reservoir is the top ten feet of Flathead Lake with 1.2 MAF • An historic reversal of assimilationist policies which allowed the Kerr Dam to be built on tribal land in the 1930’s

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BPA Tribal Affairs

Mission To help BPA achieve its mission, while fulfilling the agency's trust responsibility to tribes as defined by federal laws, treaties, executive orders and policies, including BPA's Tribal Policy.

We accomplish this by working with the tribes and BPA to: – Promote effective working relationships by identifying and resolving key issues – Communicate in a collaborative manner – Consult in a meaningful way Vision Tribal Affairs is a model program that achieves historic, innovative and mutually beneficial outcomes through collaborative relationships.

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Overview of BPA Tribal Interactions

Transmission Power Services Fish and Wildlife Cross Agency Services Transmission Energy Efficiency Fish and Wildlife Columbia River Projects Mitigation Treaty Utility Formation program: Operations and Integrated Maintenance Federal Columbia • Land Programs in River Power Acquisitions Review Right of Way System Cultural • Habitat Resources Restoration Tribal Education Vegetation Program • Research, and Capacity Management Monitoring and Building Evaluation • Hatcheries

50+ tribes in BPA service territory

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Tremendous Diversity in Indian Energy

• Fossil and renewables • Support for manufacturing and other enterprises • Reducing high utility costs • Improving reliability and resiliency • Expanding economic and workforce opportunities • Strengthening sovereignty

Thank you! For More Information

• Douglas C. MacCourt – Rosette LLP • [email protected] • 503-705-6031 • 503-856-2791

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Current Developments in Federal Indian Law 3A–13 Chapter 3A—Current Developments in Tribal Energy—Presentation Slides

Current Developments in Federal Indian Law 3A–14 Chapter 3B Evolution of Federal Agency Tribal Policies and Programs

Bodie Shaw Deputy Regional Director—Trust Services Northwest Regional Office, Bureau of Indian Affairs Portland, Oregon

Contents Introduction ...... 3B–1 Government to Government Relationship ...... 3B–1 Tribal Sovereignty ...... 3B–1 Self-Governance and Self-Determination ...... 3B–1 Trust Responsibilities ...... 3B–2 Consultation ...... 3B–2 Conclusion ...... 3B–2 Chapter 3B—Evolution of Federal Agency Tribal Policies and Programs

Current Developments in Federal Indian Law 3B–ii Chapter 3B—Evolution of Federal Agency Tribal Policies and Programs

Introduction

In the BIA Northwest Region, there are 45 tribes spread over nearly 6 million acres of trust land in the states of Alaska, Washington, Oregon, Idaho and Montana. And of those 45 tribes, 24 are self- governance. The Northwest Region has and continues to be a strong an advocate of self-governance tribes.

The federal government of the United States has not only a legal but moral obligation to Native Americans of this Country. This responsibility is defined by treaties, statutes, and interpreted by the courts; it is what’s called a Trust Relationship. The trust relationship requires the federal government to exercise the highest degree of care with tribal and Indian lands and resources.

The federal trust relationship arises from treaties with Indian nations, statutes, executive orders, regulations, case law and the historic relations between the United States and Indian tribes, grounded in the European law of nations. The trust responsibility extends to natural, cultural and economic resources, but also to the support of Indian self-governance.

Congress, with plenary power over Indian affairs, plays a primary role in defining the trust responsibility which it recently declared, “Includes the protection of the sovereignty of each tribal government (25 U.S.C. Sec. 3601).” The term “trust responsibility” is also used in a narrower sense to define the precise legal duties of the United States in managing property and resources of Indian tribes and, at times, of individual Indian people.

Government to Government Relationship:

The Government to Government relationship is the formal relationship that exists between agencies of the federal government and tribal governments under the laws of the United States. Tribal governments are considered domestic sovereigns with primary and independent jurisdiction (in most cases) over tribal lands.

Tribal Sovereignty

This was first addressed in the U.S. Constitution (Article I, Section 8 and Article VI). For Indian tribes that have Federal recognition, this is the inherently governmental power from which all specific political powers are derived. Indian governmental powers, with some exceptions, are not powers granted by Congress, but are inherent powers of a limited sovereignty that have never been extinguished. Congress has the authority to limit or abolish inherent right to self-government and no state may impose its laws on a reservation.

Self-Governance and Self Determination

Self-Governance - This refers to the ability of Indian tribal governments to make decisions that affect either the general tribal population or tribal assets – a modern U.S. Indian policy that reinstates the independent decision making process of Indian tribal entities. In 1982, Congress passed new authorities whereby Indian tribes could sign a compact directly with the Secretary of the Interior without involving

Current Developments in Federal Indian Law 3B–1 Chapter 3B—Evolution of Federal Agency Tribal Policies and Programs

the BIA in the delivery of Federal services. Using appropriations formerly sent through the BIA, Indians can now prioritize their own expenditures of federal funds.

Trust Responsibilities

The term ‘trust responsibility’ has never been legally defined by the U.S. Congress, any President, or any Cabinet official. Generally, it is a set of principles and concepts outlining the responsibilities of the U.S. Government to act as the trustee of Indian people and Indian-owned assets. The U.S. Government, through the President, has certain responsibilities to protect Indian property and rights, Indian lands, and resources. The trust responsibility may involve a fiduciary obligation in which the President, through the Secretary of the Interior, acts as the trustee of the Indian assets. Fulfilling or redeeming a trust responsibility can best be reflected or demonstrated as a matter of action; a stream that was protected, a site that was maintained intact, a property right that has been left unaffected by the federal action. The writing of an environmental document is not an example of fulfillment of a trust responsibility.

Consultation

Includes, but is not limited to: prior to taking any action with potential impact upon American Indian and Alaska native nations, providing for mutually agreed protocols for timely communication, coordination, cooperation, and collaboration to determine the impact on traditional and cultural life-ways, natural resources, treaty and other federally reserved rights involving appropriate tribal officials and representatives throughout the decision-making process, including final decision-making and action implementation as allowed by law, consistent with a government to government relationship.

Conclusion

The federal trust responsibility over the past century has evolved from a paternalistic obligation to care for the Indian people to a tool protecting the boundaries of tribal governmental authority to provide that care for itself. As Kevin Washburn explains in his recent article in the Harvard Law Review, “the evolution however is incomplete. New conflicts and questions are inevitable as the power of tribal governments grows and tribes flex more governmental authority.”

As the formerly paternalistic trust responsibility gives way to a new federal policy favoring tribal self- governance, the role of the federal government on Indian reservations will continue to be debated and modified. Will there be more federal oversight of tribal decisions or, in the alternative, stronger allegiance to norms of respect for tribal sovereignty.

Current Developments in Federal Indian Law 3B–2 Chapter 3B—Evolution of Federal Agency Tribal Policies and Programs

Current Developments in Federal Indian Law 3B–3 Chapter 3B—Evolution of Federal Agency Tribal Policies and Programs

Current Developments in Federal Indian Law 3B–4 Chapter 3C U.S. Department of the Interior Office of the Solicitor—Presentation Slides

Eric Shepard Associate Solicitor, Division of Indian Affairs Office of the Solicitor, Department of the Interior Washington, DC Chapter 3C—U.S. Department of the Interior Office of the Solicitor—Presentation Slides

Current Developments in Federal Indian Law 3C–ii 9/14/2017

Chapter 3C—U.S. Department of the Interior Office of the Solicitor—Presentation Slides

What is the Office of the Solicitor and how do I work with it?

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 Don’t forget to engage with SOL.

 Please share your analysis.

 Explain the hard stuff.

Portland Regional Solicitor Division of Indian Affairs

Lynn Peterson Eric Shepard Regional Solicitor Associate Solicitor

(503) 231-2126 (202) 208-3233 [email protected]

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Current Developments in Federal Indian Law 3C–3 Chapter 3C—U.S. Department of the Interior Office of the Solicitor—Presentation Slides

Current Developments in Federal Indian Law 3C–4 Chapter 4A Water Rights—The Klamath Experience—Presentation Slides

David Gover Native American Rights Foundation (NARF) Boulder, Colorado Chapter 4A—Water Rights—The Klamath Experience—Presentation Slides

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Chapter 4A—Water Rights—The Klamath Experience—Presentation Slides

WATER RIGHTS – THE WATER IS LIFE! KLAMATH EXPERIENCE

UNITED STATES V. WINANS 198 U.S. 371 (1905)

Implied Rights Doctrine Certain rights are impliedly reserved by the tribe to give effect to other negotiated treaty rights.

Photo Credit: John N. Cobb, “Scow fish wheel on the Columbia River near Skamania, Washington, June 25, 1924,” University of Washington Libraries: Special Collections Division, available at http://content. lib.washington.edu/cdm4/item_viewer.php?CISOROOT=/cobb&CISOPTR=202 2

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WINTERS V. UNITED STATES 207 U.S. 564 (1908)

The right to water was impliedly reserved for the resident tribes with the creation of their reservations, to carry out the purposes of

Photo Credit: John H. Minan, available at the reservation. http://home.sandiego.edu/~jminan/waterlaw/milkriver.gif 3

ARIZONA V. CALIFORNIA 373 U.S. 546 (1963) & 376 U.S. 340 (1964)

Practicably Irrigable Acreage, or PIA

The purpose of the reservation is agriculture, and the quantity of Indian water rights should be measured by the water needed to irrigate all practicably irrigable acreage to provide for present and future needs of the reservation.

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SECURING INDIAN WATER RIGHTS

LITIGATION SETTLMENT - General Stream - Favored by federal policy Adjudication - Tribes generally waive - Defendant Class Action Winters rights and claims - Implied Environmental against the United States Right - Ratification by congress - Flexible quantification, includes other provisions

KLAMATH RIVER BASIN

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STARTS WITH THE TREATY TREATY WITH THE KLAMATH, MODOC AND YAHOOSKIN BAND OF SNAKE - OCTOBER 14,1864

and the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits, is hereby secured to the Indians aforesaid

KLAMATH TRIBES’ TREATY RIGHTS

The Long Struggle to Vindicate the Klamath Tribes’ Treaty Water, Hunting, and Fishing Rights  Treaty of 1864 – 20M acres ceded; exclusive hunting, fishing, trapping, and gathering rights on-Reservation reserved  1917 – COPCO dam(s) cut off salmon/steelhead runs to Upper Basin  1950s Termination  1960s Termination is implemented; state crackdown on treaty hunting and fishing begins  1970s Kimball v. Callahan – Federal courts hold tribal hunting and fishing rights survived Termination; State commences Klamath Basin Adjudication  1980s United States v. Adair – Federal courts hold Tribes retain water rights to support Treaty harvest  2000s Water shutoff to ag in 2001; Dam relicensing begins (FERC); Salmon kill in Lower Klamath  2010s Klamath Basin Settlement Agreements-KBRA, KHSA, UKBCA; Tribes’ water rights recognized in Klamath Basin Adjudication 8

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UNITED STATES V. ADAIR 478 F. SUPP. 336 (1979)

Aboriginal Water Rights  The Federal District Court (Oregon) held that the Klamath Tribes have aboriginal water rights to accompany their right to hunt, fish, trap and gather on the former reservation lands.  The Termination Act of 1954 did not extinguish these rights.  Exercise of these rights was one of the primary purposes of the Treaty of 1864.  Ruling affirmed US v Adair, 723 F.2d 1394 (1983) cert den (1984) (Adair II) 9

KLAMATH WATER RIGHTS RESERVED

Time-immemorial aboriginal water rights to support hunting, fishing, trapping, gathering Instream flows 1864 water rights for agriculture Tribal consumptive use Allottee rights Walton rights

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KLAMATH BASIN ADJUDICATION AREA

KLAMATH BASIN ADJUDICATION: ACFFOD

March 2013 –After 38 years, KBA administrative phase concludes. Klamath Tribes’ water rights are recognized and become enforceable:  4 Rivers: Williamson, Sprague, Sycan, Wood  Klamath Marsh  140 Seeps & Springs  Klamath Lake (boundary water)  Klamath River and other off-reservation claims denied

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KLAMATH BASIN ADJUDICATION: JUDICIAL REVIEW PHASE

Ongoing in Klamath County Circuit Court (since March 2013) May take 10 or more years to complete Judicial review is occurring in phases and is currently in the final phase dealing with threshold, cross-cutting, and procedural issues. 13

Klamath Tribes

UKBCA area Commercial fishermen Klamath Hydroelectric Project

Klamath Irrigation Wildlife Project Refuges

Karuk Yurok Tribe Tribe Hoopa Valley Tribe

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KLAMATH BASIN STAKEHOLDERS

Native Nations (Klamath Tribes, Yurok, Karuk, Hoopa, Resighinni & Shasta) US Federal Agencies State & Local Governmental Entities PacifiCorp Klamath BOR Project Farmers Off Project Ag & Ranching Community Municipalities Commercial & Sport Fisheries Environmental NGOs 15

KLAMATH RIVER BASIN: KLAMATH ESA-PROTECTED SPECIES

Klamath River Southern Oregon/Northern California Coast coho salmon (listed as threatened) Klamath Lake Shortnose sucker Lost River sucker

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KLAMATH RIVER BASIN: DAMS

STATUS OF PAST SETTLEMENT EFFORTS

 Klamath Basin Restoration Agreement – terminated end of 2015 per its own terms.

 Klamath Hydroelectric Settlement Agreement – amended in 2016 but Klamath Tribes are not a party. FERC process that calls for the removal of 4 privately owned dams.

 Upper Klamath Basin Comprehensive Agreement – Impossible to implement as it was linked to the KBRA and never intended to be a stand-alone agreement, therefore, Klamath Tribes are seeking its termination. 18

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KLAMATH TRIBES AS STAKEHOLDERS

 Klamath Basin Adjudication and water rights enforcement activities  Endangered Species Act  Clean Water Act and water quality activities  Domestic, Commercial, Municipal and Industrial water supply  Federal land & wildlife management activities (i.e. USFW, NPS, USFS)  Federal project activities (i.e. FERC, BOR, USFW)  Past settlement efforts

WATER IS LIFE!

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Current Developments in Federal Indian Law 4A–11 Chapter 4A—Water Rights—The Klamath Experience—Presentation Slides

Current Developments in Federal Indian Law 4A–12 Chapter 4B Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Rob Lothrop Columbia River Inter-Tribal Fish Commission Portland, Oregon

Contents Presentation Slides 4B–1 Tribal Parties’ Post-Hearing Brief in the Tesoro-Vancouver Energy Proceeding ...... 4B–19 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–ii Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

CRITFC Formed in 1977 To ensure a unified voice in the overall management of the fishery resources: Ø Restore the Fish Runs Ø Protect our Fishing Rights Ø Coordinate Inter-Tribal Enforcement

Columbia River Inter-Tribal Fish Commission

The Columbia River Tribal Context

1. Tribal Sovereignty and Treaty Fishing Rights

2. Tribal Fisheries Management in the Columbia Basin

3. Regional Spill Response Planning and the Columbia River

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–1 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Tribal Authority

• U.S. Const. Article I recognizes sovereignty of Indian tribes • 1855 Treaties reserve tribal sovereignty – U.S. v. Winans: treaties are a grant of rights from the Indians to the U.S. and a reservation of rights not granted • Tribal Codes express tribal sovereignty – CTUIR Crim. Code 2.09 • Federal Statutes and Regulations recognize tribal sovereignty – NCP§300.115(d) and §300.180, • State Statutes and Courts recognize tribal sovereignty – Oregon SB 412 [Or. Enforcement] – Washington State v. Jim

Columbia River Inter-Tribal Fish Commission

Tribal Authority

Unless explicitly preempted by federal statute, tribes retain sovereignty over: – Members – Tribal lands – Treaty reserved activities

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–2 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

First Foods Salmon

Berries Water Game

Roots

Columbia River Inter-Tribal Fish Commission

Treaty Fishing Rights

The right of taking fish “…at all other usual and accustomed stations in common with the citizens of the United States, and of erecting suitable buildings for curing the same; the privilege of hunting, gathering roots and berries...” —1855 Treaty with the Tribes of Middle Oregon

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–3 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Sohappy v. Smith 302 F.Supp. 899, 911(D. Or. 1969); aff'd United States v. Oregon, 529 F.2d 570 (9th Cir. 1976).

“The treaty Indians, having an absolute right to that fishery, are entitled to a fair share of the fish produced by the Columbia River system.” (emphasis added).

Columbia River Inter-Tribal Fish Commission

Coho Sockeye Steelhead Chinook 2,500,000

2,000,000

1,500,000

1,000,000

500,000

1938 1942 1946 1950 1954 1958 1962 1966 1970 1974 Columbia1978 1982 River1986 Inter1990 -Tribal1994 Fish1998 Commission2002 2006 2010 2014

Current Developments in Federal Indian Law 4B–4 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Tribal Mainstem Fishery Management Processes

Columbia River fishing zones established by agreement among the four tribes, Oregon and Washington

Columbia River Inter-Tribal Fish Commission

Typical Columbia River Tribal Fisheries and Time Frames

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–5 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Gravel to Gravel Tribal Management

Wy-Kan-Ush-Mi Wa-Kish-Wit “Spirit of the Salmon” 1995, Updated in 2014 Goal of 4 million salmon returning by 2020 http://plan.critfc.org

Columbia River Inter-Tribal Fish Commission

CRITFC Projects • Kelt Reconditioning • Genetics Investigations • PCSRF Project Funding • Fall Chinook Tagging • Harvest Monitoring • Habitat Condition Assessment • Lamprey Translocation • Sturgeon Hatchery Development • Salmon Camp

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–6 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Tribal Salmon Restoration Projects Throughout the Columbia Basin ~$90M/Yr.

Columbia River Inter-Tribal Fish Commission

Pacific Salmon Treaty

Ø Ratified by US and Canada in 1985 after decades of negotiation to share salmon harvest.

Ø $4.8 billion in US and Canadian outputs (4-yr. average)

Ø 30%-40% of SE Alaska Chinook is Columbia origin.

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–7 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Columbia River Inter-Tribal Fish Commission

US v. Oregon Agreements

Ø 1977 Management Agreement (5-year plan), only covered in-river fisheries, pre- CRITFC

Ø 1988 CRFMP (10-year plan), expanded harvest sharing to include ocean fisheries and included hatchery production (reform releases to upriver locations), complicated by Endangered Species Act.

Ø 2008 Management Agreement (10-year plan), harvest rate schedules that protect weak stocks, allows harvest on healthier runs, includes hatchery production.

Ø NOAA just published a DEIS on options for a new U.S. v. Oregon Agreement. Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–8 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Tribal Enforcement on the Columbia River • CRITFC Enforcement is based in Hood River, Oregon. • The enforcement team consists of patrol officers, dispatchers, and administrative personnel. • They maintain a 24-hour effort to enforce all fishing regulations and protect treaty tribal fishing rights primarily in the 147-mile stretch of the Columbia River from Bonneville to McNary Dam. • CRITFE personnel have delegated enforcement authority from the 4- tribes, U.S. BIA (special law enforcement commissions), State of Oregon (S.B. 412). Washington state County sheriffs have provided mutual aid authority. Columbia River Inter-Tribal Fish Commission

Inter-Agency Fish Passage Management at U.S. Army Corps Dams

• Fish Passage Operations and Maintenance (FPOM), • Fish Facility Design Review Group (FFDRWG), • Scientific Review Work Group (SRWG) • Regional Implementation Oversight Group (RIOG) Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–9 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Pacific Lamprey Restoration

• Ancient fish species, hundreds of millions of years in their present form • Native to rivers from California to British Columbia • Similar life history as Salmon, but longer time span (9-11 years total) • Greatly impacted by hydropower development • Important cultural and subsistence food for the Tribes

Columbia River Inter-Tribal Fish Commission

Regional Response Planning and the Columbia River Over 300 Miles of Transportation Corridor alongside Tribal Fisheries, Villages and Access sites.

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–10 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Steps in Incident Command

1: Understand agency policy and direction – delegation of authority 2: Assess situation. 3: Establish objectives. 4: Select strategies to achieve objectives. 5: Perform tactical direction. EX5305-000001-TRB 6: Provide follow-up.

Columbia River Inter-Tribal Fish Commission

Overall Incident Priorities: Tribal Context • #1: Life Safety – Treaty fishers – Residents of IL/TFAS • #2: Incident Stabilization – Tribal HAZMAT – Tribal Enforcement • #3: Property Preservation – Tribal Fishery – IL/TFAS – Water Quality, Air Quality – Cultural Resources

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–11 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Assess Situation:

31 "In Lieu" and "Treaty Fishing Access Sites", authorized by Congress (PL 79-14 & 100-581), for the exclusive use and benefit of the four treaty tribes.

Columbia River Inter-Tribal Fish Commission

Cooks In Lieu Site: 25 Residents Year-round

Cascade Locks In Lieu Site: 60 Residents during Fall treaty fishery

EX5120-000001-TRB Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–12 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–13 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–14 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

WA Ecology ICS 202 High-Level Objectives

1. Ensure the Safety of Citizens and Response Personnel 2. Control the Source of the Spill 3. Manage Response Effort in a Coordinated Manner 4. Protect Environmentally Sensitive Areas 5. Contain & Recover Spilled Material 6. Recover & Rehabilitate Injured Wildlife 7. Clean-up Product from Impacted Areas 8. Keep the Public and Stakeholders Informed of Response Activities 9. Minimize Economic Impacts 10. Terminate the Response (Demobilization)

Columbia River Inter-Tribal Fish Commission

Columbia River Incident Objectives: Tribal Context

• Protect Treaty Fishing Rights

• Protect Cultural and Natural Resources

• Respect Tribal Sovereignty and Expertise

Columbia River Inter-Tribal Fish Commission

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Objective: Protect Treaty Fishing Rights

Strategies: • Protect Treaty Fishers and Families • Protect the salmon resource • Protect In-Lieu and Treaty Fishing Access Sites from contamination • Protect water quality • Protect air quality • Protect tribal gear and catch • Respect government-to-government relations and tribal expertise

Columbia River Inter-Tribal Fish Commission

Strategy: Protect Treaty Fishers and Families

Tactics: • Establish continuous air and water quality monitoring and report data to tribes in real time • Assess potential for contamination of tribal catch • Assess potential for contamination of tribal gear • Advise tribal fishers of spill and safety concerns via CRITFC text message system • Consider recommendations for emergency tribal regulations to close fishery

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–16 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Strategy: Protect tribal gear and catch

Tactics: • Assess location, extent and duration of tribal fishery • Determine oil toxicity and concentrations • Determine oil surface and subsurface trajectory in relation to fishing gear • Assess likelihood of OPA formation • Determine whether is necessary or desirable to remove fishing gear

Columbia River Inter-Tribal Fish Commission

‘Payshnam chaw shi’ix anaknuwita tichamna kunam tichamnim chaw inaknuwita shi’ix.’

If you take care of the fish, they will take care of you.

Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–17 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–18 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

4 BEFORE THE STATE OF WASHINGTON ENERGY FACILITY SITE EVALUATION COUNCIL 5

6 IN THE MATTER OF: CASE NO. 15-001

7 APPLICATION NO. 2013-01 TRIBAL PARTIES’ POST-HEARING BRIEF 8 TESORO SAVAGE, LLC

9 VANCOUVER ENERGY DISTRIBUTION TERMINAL 10

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 1 (206) 557-7509

Current Developments in Federal Indian Law 4B–19 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Table of Contents

3 I. INTRODUCTION ...... 3 II. ARGUMENT ...... 3 4 A. EFSEC Must Balance the Broad Interests of the Public...... 3 5 B. EFSEC Must Consider and Balance All Impacts of the Project’s Operation on Public Interests. The Balance Weighs in Favor of Rejecting the Application...... 4 6 C. The Tribal Parties Have Significant Cultural Interests at Risk...... 7 7 1. The Tribal Parties Consider Habitat Restoration a Sacred Duty...... 7 2. The Tribal Parties’ First Foods Were Provided By the Creator...... 8 8 3. Fishing is an Integral Part of Tribal Culture...... 9 9 4. Tribal Fisheries are Significantly Important to the Tribal Parties...... 11 Error! Bookmark not defined. 10 5. The Columbia River Contains Fish Species of Particular Importance to the Tribal Parties...... 2 11 i. Salmon in the Columbia River...... 13 ii. Other Species of Concern...... 14 12 Error! BookmarkD. The Public not Interestsdefined. Impacted by the Terminal, the Rail and Marine Vessels that Will 13 Service the Terminal, Tips the Balance in Favor of Rejecting the Application...... 5 14 1. The Rail Transport of Crude, Necessary for This Project, Increases Risks To Tribal 15 Resources...... 15 2. The Project Will Increase the Risk of Injury and Death for Tribal Fishers at Rail 16 Crossings...... 17

17 3. The Project Threatens Fishing Sites Along the Columbia River...... 18 4. The Project Threatens Extensive Cultural Resources Along the Columbia River...... 20 18 5. The Project Will Impact the Estuary and the Columbia River...... 22 19 i. The Estuary is Key to Restoring Salmonids...... 22 ii. Effectiveness of Booms...... 23 20 iii. Invasive Species...... 25 21 E. The Tribal Parties Will Bear the Consequences of an Oil Spill...... 25 22 1. Effects of an Oil Spill...... 25 2. The Geographic Response Plans Will Not Protect Tribal Interests...... 28 23 3. Persistence Of Oil Spilled...... 29 24 4. The Tribal Parties are Forced to Cleanup Spills on Tribal Lands...... 29 F. The Proponents Understate the Risks of the Project...... 32 25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 2 (206) 557-7509

Current Developments in Federal Indian Law 4B–20 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Error! Bookmark not defined.

2 III. CONCLUSION ...... I. INTRODUCTION...... 3

3 The Columbia River Inter-Tribal Fish Commission (“CRITFC”), the Confederated Tribes

4 of the Umatilla Indian Reservation (“Umatilla Tribes”), and the Confederated Tribes and Bands

5 of the Yakama Nation (“Yakama Nation”) (collectively referred to as the “Tribal Parties”)

6 respectfully request that the Energy Facility Site Evaluation Council (“EFSEC”) issue a

7 recommendation to the Governor to reject Tesoro Savage Petroleum Terminal LLC’s

8 Application for Site Certification for the Vancouver Energy Project1.

9 Based on the information provided through briefs, testimony, and exhibits, the Tribal

10 Parties, together with the other intervening parties, have demonstrated that the State of

11 Washington will not benefit from this project, that this project is not needed to provide abundant

12 energy, that it will not serve the public interest, that it will create substantial risks to the

13 environment, and that the project’s impacts tip the balance in favor of denial. 14

15 II. ARGUMENT

16 A. EFSEC Must Balance the Broad Interests of the Public.

17 The Washington State legislature created EFSEC because it recognized the need to

18 “balance the increasing demands for energy facility location and operation in conjunction with

19 the broad interests of the public.” RCW 80.50.010. This balancing of a need for energy in the

20 state with the public’s right to a clean, healthy, and safe environment is the heart of EFSEC’s

21 review of any proposed energy facility. EFSEC has repeatedly recognized the key role it plays

22 in this balancing exercise, noting that it must determine “whether [the proposed] energy facility 23 1 For ease of communication, this brief will refer to “Vancouver Energy Project” as a reference to the project, the 24 applicants, Tesoro and Savage, and, in most cases, the Port of Vancouver. Only where there is a need to specifically delineate Tesoro, Savage, and/or Port of Vancouver, will any other reference be used. 25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 3 (206) 557-7509

Current Developments in Federal Indian Law 4B–21 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 at [this] particular site will produce a net benefit after balancing the legislative directive to

2 provide abundant energy at a reasonable cost with the impact to the environment and the broad

3 interests of the public.” Desert Claim Wind Power Project, EFSEC Order 843 at 23 (Nov. 16,

4 2009); see also BP Cherry Point Cogeneration Project, EFSEC Order 803 at 12 (Oct. 26, 2004)

5 (“The Council has a comprehensive mandate to balance the need for abundant energy at a

6 reasonable cost with the broad interest of the public.”); Creston Generating Station, EFSEC

7 Order 645 at 51-61 (Dec. 13, 1982) (carefully evaluating the forecasted energy needs and

8 potential deficits in Washington, weighing those needs against alternatives to the project, and

9 concluding it was in the public’s interest to supply the energy because no preferable alternative

10 existed).

11 B. EFSEC Must Consider and Balance All Impacts of the Project’s Operation on Public Interests. The Balance Weighs in Favor of Rejecting the Application. 12 The Vancouver Energy Project will transport volatile and hazardous crude oil via rail 13 through the Columbia River Gorge to an off-loading facility at the Port of Vancouver, 14 transferring that hazardous material to large deep draft vessels to be sent through the Columbia 15 River estuary to refineries elsewhere. 16 The Vancouver Energy Project is composed of three inter-related components; none of 17 which can function without the other piece. The Vancouver Energy Project includes: (1) the rail 18 that will serve the terminal; (2) the terminal itself; and (3) the marine vessels that will carry the 19 product to refiners. It is a transitional, throughput facility that cannot operate but for the rail and 20 marine vessels that serve it. And while EFSEC is preempted by federal statutes and regulations 21 from regulating certain aspects of rail and vessel operations, EFSEC is not prohibited from fully 22 analyzing impacts of all aspects of the facility’s operations, including rail and vessel operations, 23 on the interests of the public. 24

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 4 (206) 557-7509

Current Developments in Federal Indian Law 4B–22 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 In order for EFSEC to “ensure through available and reasonable methods” that an energy

2 facility will have minimal adverse effects, EFSEC may issue terms and conditions on a permit.

3 RCW 80.50.010(2)-(3). The proponents have repeatedly argued that EFSEC is preempted by

4 federal statutes and regulations from conditioning any aspect of the rail transport and vessel

5 activities of this project. Applicant’s Pre-Hearing Brief at 3, 16, 19, 25, 61, et seq. If indeed this

6 is the case, then EFSEC must weigh vessel and rail risks to the human health and the

7 environment without the ability to impose mitigation to reduce these risks.

8 The Vancouver Energy Project will have far-reaching effects. Throughout the hearing,

9 testimony was provided that demonstrated that the risks posed by rail and marine vessel transport

10 are very high and that there are many potential and harmful consequences. The argument that the

11 Vancouver Energy Project is simple and safe fails on its face when the evidence is examined. In

12 reality, the proponent will not have control over most of the high-risk portions of the project;

13 especially for the rail, the marine vessels, but also for the terminal. Mr. Larrabee, the General

14 Manager of the terminal, could not assuage any concerns about the command and control

15 structure of management of the terminal. Transcript at 392-398. The ever-changing care and

16 custody of ownership of the crude oil was also never clearly explained. Transcript at 385-386.

17 The proponents call the project “simple”, and the risks it poses as “tolerable.” However, it is

18 clear that the proponents are narrowly analyzing the risks of the terminal, and understating the

19 risks. For example, their risk expert, Mr. Thomas, analyzed risks at the terminal without

20 contemplating the jail center population that lies in close proximity to the terminal. Transcript at

21 1288, 1291-96. See also, Applicant’s Pre-Hearing Brief at 3, 68.

22 Throughout the hearing and in their pre-hearing brief, Vancouver Energy continued to

23 proclaim the mind-bending assertion that adding as many as 32 trains each week to the current

24 rail traffic would not create some impact. Transcript at 138, 1483. See also Applicant’s Pre-

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 5 (206) 557-7509

Current Developments in Federal Indian Law 4B–23 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Hearing Brief at 17, 28, 61. Vancouver Energy also failed to acknowledge that the product which

2 they are transporting is highly volatile, flammable, and hazardous. Vancouver Energy proposes

3 that merely meeting federal standards is enough to protect the environment. Transcript at 138;

4 Applicant’s Pre-Hearing Brief at 16-17. However, accidents happen, even when safety protocols

5 are met. Transcript at 1504-1509. For Mosier, Oregon, the usual rail safety inspections failed to

6 find a weakness in the rail that led to a derailment and fire. Transcript at 2146 (Rhoads); 2310

7 (Appleton); 1547 (Kaitala). See also, Ex. 3125. In addition, the train that derailed was travelling

8 below the regulated speed for the area. See generally Transcript at 4678, 4699 (Barkan); 2853

9 (Holmes); 2561-2562 (Hildebrand).

10 If there is an accident, at any point along the rail, marine, or terminal route, Vancouver

11 Energy would not be able to cover the cultural and fishing losses that the Tribal Parties would

12 suffer. “Insurance responds to a financial loss. If you can quantify that, which I think would be

13 very difficult to quantify cultural impacts, there would be coverage. But it has to be a financial

14 loss that can be quantified in terms of dollars.” Transcript at 1781-1782.

15 EFSEC and Washington State are limited in exercising regulatory oversight over two of

16 the three high-risk components of this project, i.e., the rail and marine transportation. In addition,

17 and as highlighted often by Vancouver Energy, EFSEC and Washington State cannot control or

18 mitigate for the risks that are posed by these components. See, e.g., Transcript at 137 (“It’s

19 important to remember that the applicant does not own, operate or control rail or vessel

20 transportation to or from the facility. That is handled by others.”). This lack of control and

21 oversight should make EFSEC closely consider the risks posed by the project. In light of this

22 lack of oversight, and to avoid the risks posed by this dangerous proposal, EFSEC should

23 recommend denial of the project.

24 C. The Tribal Parties Have Significant Cultural Interests at Risk.

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 6 (206) 557-7509

Current Developments in Federal Indian Law 4B–24 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 The Tribal people of the Columbia River have lived along and survived off the Columbia

2 River since time immemorial. Over the last century, there have been many projects and

3 developments that have manipulated the resources of the river, leaving legacy pollution and

4 damage with which the tribal communities have had to contend. From the tribal perspective,

5 these projects rarely benefit the region for more than the short term, if at all. The Tribal Parties,

6 on the other hand, think about the long term, as Kathryn Brigham noted:

7 And as tribal leaders and tribal people, we have been taught more than once to talk about

8 and think about our next seven generations. One of the things that my grandfather said

9 was that you fight real hard for today, but not at the expense of your children, your

10 children's children and their children. That's why we talk about the next seven

11 generations and beyond.

12 Transcript at 3825, lines 5-12. As Vancouver Energy has admitted, the Vancouver Energy

13 Project has a life expectancy of twenty years. Transcript at 198, lines 10-12. This project does

14 not comport with Washington’s long-term interests, let alone tribal values and interests.

15 1. The Tribal Parties Consider Habitat Restoration a Sacred Duty.

16 As Dr. Zach Penney explained, tribal families have “a deep investment in salmon and

17 steelhead restoration.” Transcript at 4020. The Tribal Parties consider habitat restoration a

18 responsibility, tasked to them by the Creator. Ms. Sanchey noted that the Tribal Parties believe

19 they are “tasked [with] speaking for those things that cannot speak for themselves, protecting the

20 environment . . . It’s our belief… that we have to protect the land, and the land will protect us.”

21 Transcript at 3954-3955. “[I]f we don’t take care of our foods, they won’t take care of us . . . if

22 we’re not going to protect them, then we’re not Yakama people.” Transcript at 3956. The

23 Columbia River Gorge, where all the trains that will service the Vancouver Energy Project must

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 7 (206) 557-7509

Current Developments in Federal Indian Law 4B–25 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 transit, is considered sacred: “It’s not just a scenic area to us, it’s our lifeblood.” Transcript at

2 3956.

3 The Tribal Parties adopted the Wy-Kan-Ush-Mi Wa-Kish-Wit (Spirit of the Salmon Plan)

4 in 1996 and updated it in 2014. Transcript at 4348; Ex. 5219. The Columbia River Basin region

5 is now engaged in one of the largest fish and wildlife restoration efforts in the world. Transcript

6 at 4350. More than $300 million is being invested annually in this effort. Id; see Ex. 5116

7 ($13.75 billion from 1978 to 2013).

8 There is a flipside, however; habitat improvement as a mitigation concept has significant

9 limitations. Transcript at 3813. The “benefits of habitat improvements are very long term and

10 unfortunately sometimes kind of uncertain... It takes an enormous effort to fix a habitat to where

11 it's fully functioning as a good ecosystem again.” Id. Mitigation tends to be costly; where the

12 goals and benefits tend to, “pay out over decades sometimes, rather than right away.” Id. For

13 certain groups or subpopulations of fish, “simply rushing to do more habitat restoration than

14 we’re already doing” would not result in any benefits. Id.

15 2. The Tribal Parties’ First Foods Were Provided By The Creator.

16 The First Foods were given to tribal people by the Creator. Transcript at 4317-19, 4346-

17 47 (Lumley); 3840-41 (Brigham). The First Foods are salmon, game, roots and berries. Id. The

18 Tribal Parties’ right to First Foods are explicitly reserved in their treaties. Lumley Prefiled Dir.

19 Test., at 4. The treaties “guaranteed access to our first foods so that we can practice our culture,

20 continue our way of life and plan for the future.” Transcript at 3841.

21 There are many tribal ceremonies “where we are giving thanks to our food returning.”

22 Transcript at 3840. These include the Salmon Feast, Celery Feast, Root Feast and Huckleberry

23 Feast. Transcript at 3839-3840. First Foods are also used for ceremonial purposes in weddings,

24 name-givings, funerals and rejoinings. Transcript at 3840.

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 8 (206) 557-7509

Current Developments in Federal Indian Law 4B–26 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 First Foods have many cultural uses. For instance, the tail of a dried lamprey is used to

2 help babies with teething. Transcript at 3920. The oils sooth the gums and chewing on the tail

3 helps the teeth break through. Id. As Mr. Slockish said, lamprey “are very sacred to us.”

4 Transcript at 3922.

5 The Vancouver Energy Project poses a significant risk to the tribal First Foods of the

6 Columbia River Basin and provides no benefits whatsoever. Mitigation for these risks is either

7 not within the control of the project, is expressed only in monetary terms, or occurs after the fact

8 with certain irreparable physical consequences to cultural resources and uncertain biological

9 effectiveness to living resources.

10 3. Fishing is an Integral Part of Tribal Culture.

11 Fishing is a fundamental aspect of the Tribal Parties’ identities. It is an activity that their

12 people do for subsistence, economy, culture, and family. For example, the Brigham family of

13 the Umatilla Tribe currently has four generations fishing on the Columbia River. Transcript at

14 3825. “[We] teach our children and their children that this is something we’ve been doing from

15 generation to generation.” Transcript at 3826. Ms. Sanchey testified that the Yakama Nation are

16 river people, “[s]ince time immemorial, we’ve been fisher people . . . that’s the lifeblood of who

17 we are . . . it’s not just commerce. It’s not just something we do because we can. It’s something

18 we have to do . . . It’s in our blood.” Transcript at 3956-3957.

19 For young tribal fishers, their first salmon catch is a very special time, celebrated with a

20 specific ceremony. As Mr. Slockish testified, this is when a child becomes a fisherman:

21 And when we got the first one, it was put aside and then we had a dinner ceremony and

22 that fish was preserved ... and given to an older fisherman in the hopes that his

23 knowledge and his fishing ability would be transferred to the young person that was

24 doing his first fish ceremony.”

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 9 (206) 557-7509

Current Developments in Federal Indian Law 4B–27 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Transcript at 3917.

2 Fishing is priceless to tribal members; tribal people are intimately connected with the

3 fish. Transcript at 4021. “I can’t place a monetary values on my spiritual being and my cultural

4 awareness and my cultural teachings.” Transcript at 3924. The day before his testimony, Mr.

5 Slockish was passing on his teachings to youth from the Nez Perce, Umatilla, Warm Springs and

6 Yakama tribes. Transcript at 3930-3932. The systematic loss of First Foods makes it harder to

7 pass on these teachings. Transcript at 3932-3933.

8 Another witness, Mr. Dick, explained that the “concept of assigning a value to the treaty

9 fishing is very difficult” since “treaty fishing is integral to who we are as a people.” Transcript

10 at 4002. As a comparison, “it would be like asking the average US citizen what kind of value

11 you would put on the right to vote, the right to free speech, the right to freedom of religion[,]” in

12 other words, “the things that are integral that make a US citizen a US citizen.” Transcript at

13 4002. “That’s the level that treaty fishing has for the tribal people.” Id.

14 In contrast, Mr. Challenger, who has traveled all over the world acting on behalf of an

15 industry that has spilled oil, testified, “An oil spill is not a good thing. A fishery closure is a

16 good thing.” Transcript at 1937. These contrasting cultural values are at directly at issue when

17 discussing the potential impacts of the Vancouver Energy Project. The Tribal Parties who

18 testified in this proceeding have, for generation upon generation, since time immemorial, fished

19 the Columbia River and its tributaries. The Tesoro and Savage companies are headquartered San

20 Antonio, Texas and Salt Lake City, Utah, respectively. Their cultural ties to the Pacific

21 Northwest are primarily financial. The cultural ties of the Tribal Parties to the Columbia River

22 are inestimably deep. These tribal cultures are part of what defines the Pacific Northwest and the

23 Columbia River. As Ms. Brigham noted:

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 10 (206) 557-7509

Current Developments in Federal Indian Law 4B–28 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 I’m one example of a family that fishes. But out of our family, all of us fish, all of

2 us take care of the fish, all of us are planning for the future and all of us live off

3 that fishing income.

4 Transcript at 3838.

5 4. Tribal Fisheries are Significantly Important to the Tribal Parties.

6 There are significant tribal and non-tribal fisheries in the Columbia River. These include

7 commercial, recreational, subsistence and ceremonial fisheries. The Tribal Parties have been

8 fishing on the Columbia River since time immemorial. Transcript at 3827. As the witness, Mr.

9 Ellis, testified, tribal fisheries include those occurring at tribal fishing platforms where dip net

10 and hoop net gear is used. There are about 400 fishing platforms between Bonneville and

11 McNary dams. During the tribes’ commercial gillnet season, as many as 750 gillnets may be

12 fished during the peak of the fall Chinook run between Bonneville and McNary dams.

13 Transcript at 3791-3792. The Tribal Parties also have small but important commercial fisheries

14 for sturgeon and shad as well as very important subsistence fisheries for lamprey and smelt.

15 Transcript at 3797.

16 For many tribal members, fishing is an important source of their annual income.

17 Transcript at 3811. Tribal members have invested a significant amount of time and effort to

18 improve the value of their catch. Transcript at 3794.

19 The Tribal Parties’ fishing interests are not limited the Zone 6. Ex. 185 at 5, 7, & 8. First,

20 contrary to Vancouver Energy’s assumptions, the Tribal Parties’ interest are not limited to those

21 in-lieu fishing sites that are located in Zone 6. In-lieu treaty fishing access sites are sites that

22 were built by the U.S. Corps of Engineers to replace tribal fishing villages that were flooded by

23 the construction of the Bonneville Dam. Transcript at 4006. “[T]he in-lieu treaty fishing access

24 sites, they’re more like campgrounds, and the tribal members do use them when they’re fishing

25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 11 (206) 557-7509

Current Developments in Federal Indian Law 4B–29 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 but they’re different from a fishing site.” Transcript at 4007-4008. Tribal members regularly

2 fish in many areas that are not around an in-lieu treaty fishing access site. Transcript at 4008.

3 Accordingly, the treaty fishing access sites, themselves, are not a good gauge of the location of

4 tribal fishers’ fishing sites. Id.

5 Further, the Tribal Parties have not given up their claims to fish in other locations in the

6 Columbia River basin. Transcript at 3793, 3809 (Ellis); 4329-4332 (Lumley); 3925 (Slockish);

7 4008-4009 (Dick); 3827-28 (Brigham). For example, the Yakama Nation has not relinquished

8 any of its usual and accustomed fishing areas, which extend over a much larger area than Zone 6.

9 The Yakama Nation has tribal fishers that fish beyond Zone 6, including fishing in the Cowlitz

10 River for smelt and in Willamette Falls for lamprey. Transcript at 4008-4009.

11 Finally, the Tribal Parties’ interests are not limited to the harvest of fish. Transcript at

12 4009-4010. In fact, the Yakama Nation is “working to establish co-management . . . we’re trying

13 to rebuild the runs.” Transcript at 4009-4010. “All aspects of the salmon’s life cycle come into

14 play, not just the harvest[,]” the Tribal Parties are thinking about many components, including

15 habitat, hydrology, and hatchery. Transcript at 4010. As the salmon lifecycle extends far beyond

16 Zone 6, so do the Tribal Parties’ interests.

17 5. The Columbia River Contains Fish Species of Particular Importance to the Tribal Parties. 18 As discussed above, the Tribal Parties have a significant interest in habitat restoration as 19 they consider it their sacred duty to preserve the First Foods’ environments. The Tribal Parties 20 benefit from this management, as it allows them to preserve their cultural practices, including 21 fishing and the use of First Foods in a variety of cultural ceremonies. As discussed below, a 22 wide variety of fish species that are significant and important to the Tribal Parties, live in the 23 Columbia River. 24

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Current Developments in Federal Indian Law 4B–30 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 i. Salmon in the Columbia River.

2 In the last 10 years, Columbia upriver salmon run sizes for salmon runs originating above

3 Bonneville Dam as have averaged as follows:

4 Spring chinook 200,000

5 Summer chinook 70,000

6 Fall chinook 600,000

7 Sockeye 300,000

8 Steelhead 300,000

9 Coho 120,000

10 Chum (below Bonneville Dam)

11 Transcript at 3782-83. There are twelve different stocks of salmon and steelhead in the

12 Columbia River Basin that are listed under the Endangered Species Act (“ESA”). Transcript at

13 3809-10.

14 Both fall chinook and chum salmon spawn in the main stem of the Columbia River.

15 Transcript at 3783. Hatcheries above Bonneville dam release 95 million smolts per year. At the

16 peak of the juvenile salmon migration, around nine million smolts per day pass Bonneville Dam.

17 Transcript at 3800. The National Marine fisheries Service (NMFS) has estimated that 155

18 million smolts successfully reached the Columbia River estuary in 2014. Transcript at 3785.

19 These juvenile fish are migrating changes throughout the year, but most fish migrate from early

20 spring through the end of summer. Id. The Applicant failed to grasp the importance of these

21 numbers, which represent decades of mitigation effort and billions of invested dollars.

22 Maintaining and growing these numbers are of utmost importance to the Tribal Parties.

23 ii. Other Species of Concern.

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Current Developments in Federal Indian Law 4B–31 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 While salmon are an iconic species in the Columbia River Basin, where cities like White

2 Salmon and Chinook are important namesakes of the Basin’s heritage, other species are at risk

3 from the Vancouver Energy Project, including sturgeon, lamprey and smelt. The Tribal Parties

4 chose to highlight these species in their testimony, among other reasons, to help EFSEC

5 understand the lifecycles of aquatic specie, their place in the Columbia River Basin’s

6 environment and the risks that spilled oil represent, In their larval life stages, each of these

7 species have similar characteristics that make them vulnerable to oil spills. Rice Prefiled Dir.

8 Test. at 16.

9 Sturgeon are an ancient fish, as old as the dinosaurs. Transcript at 3893-3894. Sturgeon

10 support important tribal fisheries on the Columbia River. Transcript at 3790. Individually,

11 sturgeon are very long-lived, capable of reaching more than one hundred years of age. Sturgeon

12 feed on the bottom of the River. Transcript at 3885. They may reach sexual maturity after 25

13 years and reproduce infrequently thereafter. Sturgeon above Bonneville Dam no longer migrate

14 to the ocean, rather, their mobility is limited by the dams and they spend their entire life span in

15 the Columbia River. Sturgeon could be exposed to spilled oil persisting at the bottom of the

16 Columbia River through multiple breeding cycles. Transcript at 4101.

17 Pacific Lamprey, as a species, are even older than sturgeon dating back 450 million years

18 in the fossil records. Ex. 5109 at 11. Pacific Lamprey in the Columbia River Basin have been in

19 a steep decline. Id. At the same time, Pacific Lamprey are still a vitally important cultural food

20 source to tribal people. Id., Transcript at 3919-3920, 3922. The lamprey’s lifecycle is unusual.

21 Once the larval lamprey hatch, they spend up to seven years burrowed in the fine sediments of

22 freshwater streams and rivers. The juvenile lamprey ammocoetes then migrate to the ocean

23 where they spend one and one-half to three years before returning to freshwater to spawn. Ex.

24 5109 at 10. Transcript at 3877-3880.

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Current Developments in Federal Indian Law 4B–32 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Smelt, or Eulachon, also provide for important tribal fisheries. Compared to sturgeon and

2 Pacific Lamprey, smelt spend only a short time in freshwater, where they return to spawn.

3 Transcript at 3877-3879. Columbia River smelt are listed as threatened under the Endangered

4 Species Act (ESA).

5 Overall, the Tribal Parties are concerned about the project’s impact on a wide variety of

6 sensitive fish species. It is important that the Tribal Parties’ interests and efforts, as co-managers,

7 be recognized and protected.

8 D. The Public Interests Impacted by the Terminal, the Rail and Marine Vessels That Will Service the Terminal, Tips the Balance in Favor of Rejecting the Application. 9 1. The Rail Transport of Crude, Necessary for This Project, Increases Risks to 10 Tribal Resources.

11 The Vancouver Energy Project will add four to five unit trains to the current daily rail

12 traffic that transits the Columbia River Gorge. These trains will be carrying crude oil, a highly

13 volatile, hazardous, and flammable product.

14 Unit trains generally are long and heavy, and require a higher level of care and attention.

15 Mr. Holmes testified that since crude has been transported by rail, there has been over twenty

16 four derailments, which comes to an average of one derailment per 2.6 months. Transcript at

17 2852-2853. During the public comment session on the final day of the hearing, one commenter,

18 Mr. Herb Krohn, a railroad trainman started his comments by highlighting that he was the “only

19 person testifying who has actually worked on-board one of these trains.” Transcript at 5271. He

20 testified as a supporter of the Vancouver Energy Project, yet even he admitted that there are

21 unique safety considerations for unit trains. As he stated: “the dynamics [of unit versus mixed

22 commodity trains] are different because of the sheer weight of 100-plus-filled full tank cars;

23 longer, heavier trains are harder to control, slow, or stop.” Id. He further noted that even though

24 trains have carried crude before, the difference is now the length of trains are doubled: “In the

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Current Developments in Federal Indian Law 4B–33 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 past, these trains were limited to no more than fifty cars. Accidents were unheard of.” Transcript

2 at 5272. He later notes that “shorter trains are safer trains” and that the reason for the industry

3 use of longer trains is for “lower cost” but that the flip side is “less operational control.” Id.

4 During the hearing, Ms. Kaitala, who works for BNSF pointed out that trains can be very

5 vulnerable to damage or changes on the rail line: “[Trains] are very sensitive to track geometry,

6 which is why we inspect so often.” Transcript at 1511. In Mosier, a regular (non-walking) rail

7 inspection did not prevent a major derailment. Transcript at 2146, 2310, 1547. See also, Ex.

8 3125. As Chief Appleton testified: “the volume of risk is to me such a transparently clear issue

9 that by having a unit train, you're just increasing your exposure to the law of averages, and [an

10 accident is]going to be sooner or later. And I think our regulatory system needs to not encourage

11 things that attract that level of risk. Transcript at 2343.

12 Fire management along the Columbia River is a concern for management of the tribal In

13 Lieu and Treaty Fishing Access Sites. Fire occurs regularly along the Columbia River. It is

14 often wind driven and may travel 12 miles in as many hours. The firefighting capabilities are

15 very limited for protecting the In Lieu and Treaty Fishing Access Sites. Broncheau/Hicks

16 Prefiled Test. at 6-7; Transcript at 4269-4271. The Vancouver Energy project would impose

17 additional unacceptable fire risk due to crude-by-rail transportation along the Columbia River.

18 EFSEC should consider the risk of increased train traffic and increased risk of fire, taking

19 into account the types of substances that will be transported and the equipment used to transport.

20 These risks plus increases risks to tribal fishers, tribal fishing sites, and cultural resources, along

21 with the consequences of train derailments and any resulting oil spill, are discussed below. In

22 sum, the Tribal Parties believe these substantial risks and impacts, when weighed against any

23 potential benefit of the Vancouver Energy Project, tip the balance strongly in favor of denial.

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Current Developments in Federal Indian Law 4B–34 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 2. The Project Will Increase The Risk of Injury and Death For Tribal Fishers At Rail Crossings. 2 For many tribal fishing sites, “the railroad tracks run along the river and the tribal 3 members have to cross the tracks in a lot of cases to access their fishing sites.” Transcript at 4 3999. This means that train traffic has an impact on both access to tribal fishing sites and safety. 5 Id. For tribal fishers in remote areas, there are almost no warnings of coming trains. Transcript 6 at 4013-4014. “When the tribal fishers get out into the more remote areas to access sites, a lot of 7 times there’s really nothing. They’re just going along the tracks and then crossing where they 8 need to, that type of thing. So there could be really no safety apparatus at all.” Transcript at 9 4014. 10 “Every time a tribal fisherman crosses a train track, they are subjecting themselves to the 11 risk of injury or death.” Prefiled Direct Testimony of Roger Dick, Jr., at 4. “Over the years, 12 there have been a number of fatalities due to train strikes.” Id. The Yakama Nation Fisheries 13 have had employees get hit by trains when trying to access fishing sites. Id. 14 Further, tribal members have lost their lives to railroad crossings. As Ms. Brigham: 15 Just within my family, I've lost three members to the railroad crossing and all of 16 them were fishermen and it was in the spring of each year. I lost a nephew. He 17 was a very young man and he was going to the in lieu site after fishing, and later 18 lost his sister, and that was in 2006. And then in 2008, lost my niece, who is also 19 fishing on the Columbia River. Then in 2010, I lost my cousin who is fishing up 20 at all today, and he was crossing the tracks with his boat and trailer and he got hit 21 by the train as well. 22 Transcript at 3828-29. The risk of injury and death is significant to tribal fishers, who are 23 already exposed to these risks, resulting in devastating losses. Any increase in train traffic will 24

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Current Developments in Federal Indian Law 4B–35 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 result in an increased risk of injury and death. EFSEC must consider the Tribal Parties’ interest

2 in the safety of their members.

3 3. The Project Threatens Fishing Sites Along The Columbia River.

4 Historically, tribal fishers have endured the loss of traditional fishing places due to

5 development of the Columbia River and toxic spills. The loss of more fishing sites due to an oil

6 spill, train derailment or other mishap associated with the effects of the project would place an

7 unacceptable cumulative burden of loss on tribal peoples.

8 Celilo Falls was inundated by The Dalles Dam in 1957. Mr. Slockish’s family primarily

9 fished in the Klickitat River Basin after losing their fishing places at Celilo Falls when it was

10 buried behind The Dalles Dam. Transcript at p 3916-3917. Mr. Slockish fished for salmon and

11 lamprey in the Klickitat Basin. Eventually, lamprey numbers declined very dramatically in the

12 Klickitat Basin due to agricultural water related changes. Transcript at 3919. After that decline,

13 he fished for lamprey at Fifteen Mile Creek in Oregon near The Dalles Dam. That fishery,

14 however, was closed after a chemical spill and Mr. Slockish has not returned to gather lamprey at

15 that fishing site. Transcript at 3920. More than a decade after the spill, the chemical spilled

16 (oxyflourofen), was still present in juvenile lamprey sampled from Fifteen Mile Creek.

17 Transcript at 3881. Loss of fishing imposes metal, physical and spiritual stress to tribal people.

18 Transcript at 3925. Mr. Slockish is one of many tribal people who have endured multiple losses

19 of their fishing places.

20 Some tribal fishers lost their platforms to the Fifteen Mile Creek spill. Transcript at

21 3978. As a result of losing their platforms, they tried to move upriver and fish from a boat with

22 gillnets and unfortunately drowned. Transcript at 3978-79. The reality is that if you had to

23 move your fishing place you would be in somebody else’s spot or somewhere where the fishing

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Current Developments in Federal Indian Law 4B–36 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 is not as good. Transcript at 3817. The risk of displacement from oil spill is very real.

2 Transcript at 3817.

3 It is very difficult for tribal fishers to change the location of their fishing places.

4 “[T]ribal members develop and establish their fishing at very specific sites, every specific

5 locations.” Transcript at 4000. “[T]ribal fishers establish their sites, based on where they could

6 have the best catch rates” this is based on a multitude of factors, such as “water depth, the flow

7 of the water.” Transcript at 4001. In other words, “you can’t just go anywhere along the river . . .

8 there’s very specific conditions.” Transcript at 4000. Accordingly, tribal fishers cannot move

9 their fishing platforms without a great deal of effort.

10 Further, that assumes there is a place to move the platform to. The Yakama Nation

11 registers all commercial gillnet fishing sites. Transcript at 4000. Further, tribal fishers are very

12 territorial. Transcript at 4000. While some fishing platforms that are not officially registered

13 “they’re established through the traditional means of recognized usage” the “sites are associated

14 with – either with an individual or a family.” Transcript at 4000. As most fishing sites are

15 registered or traditionally reserved, most of the productive fishing sites “have already been

16 taken.” Id. Therefore, “it’s a long and difficult process” to acquire a new fishing site.

17 Transcript at 4001. “[I]f there were an area to be closed and fishers had to relocate, it’s not as

18 simple as just picking up and going to a different area.” Transcript at 4000.

19 It can be very difficult for tribal fishers to obtain compensation for the closure of a

20 fishing site. Transcript at 4002-4005. There are two primary reasons. Transcript at 4003. First,

21 tribal fishers have difficulty providing the necessary documentation. Id. There is documentation

22 for commercial fishers, for fish sold directly to wholesale buyers; these receipts are typically

23 referred to as fish tickets. Id. However, many fish sales come from buyers that do not issue fish

24 tickets; the fish are “sold directly to retailers, restaurants, casinos . . . directly to the public.”

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Current Developments in Federal Indian Law 4B–37 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Transcript at 4003. For those sales, “a lot of times there won’t be a receipt of documentation of

2 any kind.” Id. Further, for fishing done for subsistence or ceremonial purposes there is usually

3 no documentation. Id.

4 Second, for many tribal fishers there is a negative connotation to the idea of selling their

5 treaty rights. Transcript at 4004-4005. Most tribal fishers are “told a lot that it’s really bad to

6 take compensation in lieu of fishing.” Transcript at 4005. Mr. Dick believes that this may stem

7 from historical interactions, such as the Dalles Dam payment; when those payments were

8 distributed to tribal members they learned a lesson, that “the value of the money . . . it’s really

9 small compared to what is actually lost to the tribal people.” Transcript at 4005.

10 The Vancouver Energy Project poses a significant risk to tribal fishing sites. These

11 fishing sites have both a cultural and an economic value. These risks have been largely ignored

12 or summarily dismissed by the proponents. The Tribal Parties urge EFSEC to consider this risk

13 and recommend denial of the project.

14 4. The Project Threatens Extensive Cultural Resources Along The Columbia River. 15 “She Who Watches” is one of the most famous petroglyphs in North America. 16

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Current Developments in Federal Indian Law 4B–38 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Ex. 5332. She is located approximately 120 feet from the Burlington Northern Railroad tracks

2 near Columbia Hills State Park, along the Columbia River just upstream from The Dalles Dam.

3 She Who Watches and other important archeological resources would be at risk from increased

4 crude-by-rail traffic. As Mr. Huber testified, “I don’t know of any burning train that will

5 respond to an engineer structural or a stop work order.” Transcript at 3856. Tribal, federal and

6 state laws for good reason protect cultural and archeological resources for good reason. As Mr.

7 Huber testified:

8 Cultural resources represent the concrete, physical evidence of the tribes’

9 presence and the relationship to their tribal ancestors here. These are the sites that

10 represent the cultural record of the tribes being here since time immemorial him.

11 These are the tribal members’ sensitive place. This is where they’ve been. This is

12 where their ancestors did the same things they did; gathering food, hunting,

13 providing for their families. Rock images, specifically, often convey a sacred

14 nature to members, but archaeological sites themselves are that physical

15 connection to the way that they can see where their ancestors were and what they

16 did.

17 Transcript at 3859.

18 There are thousands of archaeological research sites up and down the Columbia River.

19 For instance, in Klickitat County, there are over 500 sites that have recorded within a half-mile

20 of the Burlington Northern Railroad line. Transcript at 3853. This archaeological record

21 documents one of the most continuously occupied sites in North America; 10,000 years of

22 occupancy. Transcript at 3854. These archaeological sites are at risk to oil spills and burning

23 trains. In fact, current railroad operations are impacting cultural resource sites along the

24 Columbia River due to grading and other operations. Transcript at 3857.

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Current Developments in Federal Indian Law 4B–39 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Oil spills and fires can be damaging to archeological resources. Huber 3860-61.

2 Archaeological resources are unique priceless and irreplaceable. They cannot be restored in the

3 event that a site is excavated. The best mitigation can do is provide data recovery, and that takes

4 the materials away from the ground, the in situ presence of the archeological resources that tribal

5 members can view and see when it comes to their connection to this spot. Transcript at 3861.

6 Further, as Ms. Sanchey noted, tribes don’t publish the location of sites to protect them

7 from potential looting or damage. Transcript at 3959. There are “sites throughout that we, as

8 Indian people are aware of, that aren’t on maps that Department of Archaeology doesn’t know

9 about. [J]ust because on the map there were no sites, doesn’t mean there wasn’t anything there.”

10 Transcript at 3958-3959.

11 The significance of these cultural resources cannot be understated. The Vancouver

12 Energy Project poses significant risks to these cultural resources. This risk must be considered

13 and weighed against any benefit the project may bring.

14 5. The Project Will Impact the Estuary and the Columbia River.

15 i. The Estuary is Key to Restoring Salmonids.

16 The Lower Columbia River Estuary (“Estuary”) is an important component to the

17 lifecycle of the salmonid and is critical habitat for numerous other aquatic life. The NMFS 2011

18 Recovery Plan (“Estuary Plan”) for the Estuary notes that every juvenile salmonid must use the

19 habitats of the Estuary to complete its lifecycle. Ex 5211. In fact the Estuary supports over 150

20 distinct salmon & steelhead populations at various seasons and time of the year. id. at 2-1.

21 Witnesses Ellis, Penney, and Lumley noted that all anadromous fish that are part of the tribal

22 treaty fisheries must pass, and may rear, in the Estuary. Transcript at 4332-4333

23 Human development has altered the Estuary, and estuarine restoration is part of the

24 billions of dollars in regional efforts to improve habitat for salmonids. The Estuary Plan calls for

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Current Developments in Federal Indian Law 4B–40 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 an overall reduction in over-water structures in Estuary, reduced impacts from ship ballast,

2 reduce effects of vessel wakes, protect remaining high quality habitat & intact riparian areas and

3 restore degraded riparian areas. Ex 5211, at 3-2, 3-10, 4-16, 5-3. The Vancouver Energy Project

4 will add additional burden to the Estuary by adding more deep draft vessel trips to the system.

5 Furthermore, these vessels will be carrying a high risk product that, if an accident occurred,

6 would cause devastating and potentially long-term effects.

7 During the public comment session, Michael O’Leary, representing the Association of

8 Northwest Steelheaders, discussed issues of safety and wake stranding. He noted that the

9 Sparna, a bulk carrier ship, had run aground in the Estuary during 2016. “A big boat hit the

10 rocks in the river. It’s not just a sandbox. It happens. We got lucky.” Transcript at 5240. He then

11 went on to describe his concerns about wake stranding “When a big cargo vessel goes by, the

12 smelts that are on the small edges of the river on gently sloping beaches, of which there are

13 many, wash up with the waves and get trapped.” Transcript at 5241. Further, Mr. O’leary noted

14 that the project has the potential to impact recreational and tribal fisheries as commercial

15 fisheries. Vancouver Energy’s economic analyses failed to take any of these impacts into

16 account. See, e.g., Transcript at 1075-1079, 1089-1090.

17 Here, the risk to the Estuary, and the resulting potential negative impact on the restoration

18 of the salmonid population, must be considered. The benefits of the Vancouver Energy Project

19 must also be weighed against the risk to the Estuary, including the potential to stifle or reverse

20 the restoration of the Estuary.

21 ii. Effectiveness of Booms.

22 There was extensive discussion of the use of booms, for both response and as a

23 precaution. As Dr. Rice explained: “The responders should do everything they can to minimize

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Current Developments in Federal Indian Law 4B–41 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 that spill, but to depend on them, to think that they're going to be protective of the river on a

2 large scale basis is, I think, not appropriate thinking there.” Transcript at 4098.

3 Booming at the 1984 MobilOil spill at Warrior Rock on the Columbia River just

4 downstream from Vancouver did not prevent oil from contaminating the Columbia River bottom,

5 mouths of sturgeon, ocean beaches in Oregon and Washington or reaching Grey’s Harbor. Ex.

6 5063 at 11-12, 22-28. The oil recovery rate for the DeepWater Horizon spill did not exceed ten

7 percent, even though an “armada” of booms and oil collection vessels had been deployed.

8 Transcript at 4009. After booming the 2014 Barge E2MS 303 spill in the lower Mississippi

9 Rivers, responders were able to recover three-tenths of one percent of the spilled Bakken crude

10 oil. Ex. 5027; Transcript at 4098-4099. Though occurring thirty years after the 1984 MobilOil

11 incident and presumably following numerous advancements in oil collection technology, weather

12 conditions (heavy fog) on day two of the Barge E3MS 303 incident delayed oil recovery at this

13 spill. NOAA and other first responders at this incident observed that the Bakken crude oil spread

14 very rapidly, recoverable amounts might persist for only 4-8 hours, and oil quickly adhered to

15 suspended solids in the water column. Ex. 5027 at 11-13.

16 Despite Vancouver Energy witness, Mr. Haugstead’s claims, the Tribal Parties’

17 emergency response official, Chief Mitch Hicks, who has decades of experience with the

18 currents, wind and wave conditions on the Columbia River, was dubious that the “Current

19 Buster” booming technology would operate effectively in the Columbia River Gorge and

20 upstream to McNary Dam. Transcript at 1402-1403 (Haugstead); 4299-4303 (Hicks).

21 Peak wind gusts may reach 60 miles an hour in the Columbia River Gorge in the winter

22 and summer. Transcript at 3804 (Ellis); 3872 (Parker). Then, “the waves are really being ripped

23 apart by the wind. It’s very, very difficult to even keep your footing in the boat.” Parker 3872.

24 The spray from the River reaches the highways. Transcript at 4298.The experience needed to

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Current Developments in Federal Indian Law 4B–42 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 navigate the waves on the Columbia River is comparable to experience needed to navigate the

2 rapids in the Hells Canyon section of the Snake River. Transcript at 4296.

3 iii. Invasive Species

4 The Columbia River is currently an ecosystem in peril from invasive species. Invasive

5 species change and reduce the overall vitality of the river. In the simplest terms, the Columbia

6 River does not need to suffer the introduction of any more invasive species. The ships that

7 would transport this crude oil would discharge their ballast water to the Columbia River. There

8 are measures to prevent invasive species from being transferred via ballast water discharges.

9 Federal ballast water exchange rules, however, are not perfect allowing a residual of ten

10 organisms per cubic meter of ballast water. Transcript at 3875-76. And, not everybody performs

11 a ballast water exchange. Transcript at 3902. And even with ballast water exchange, there are

12 opportunities for the organisms to persist and be transported and released. Transcript at 3903.

13 EFSEC, then, must consider, and weigh, an increased risk of invasive species and the resulting

14 impact to the Columbia River ecosystem.

15 E. The Tribal Parties Will Bear The Consequences of an Oil Spill.

16 1. Effects of an Oil Spill.

17 The two types of crude oil that will be shipped to the Vancouver Energy Project, Bakken

18 crude and Dilbit, are at opposite and of the spectrum in terms of their viscosity. Bakken crude is

19 one of the thinnest crude oils. Its viscosity makes it analogous to fuel oil. Dilbit, on the other

20 hand, is analogous to the very heaviest of crude oils. These two types of crude oil are among the

21 most persistent in the environment for different reasons. Spills of the very heavy crudes last

22 longer because they do not readily break down. Spills of the lighter crudes are persistent

23 because they penetrate into sediments. Dr. Rice differed with Mr. Challenger’s interpretation of

24 the chart prepared by Michel and Rutherford showing recovery times for estuaries impacted by

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Current Developments in Federal Indian Law 4B–43 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 crude oil spills. Ex. 108. Dr. Rice noted that some of the longest estuary recovery times shown

2 by Michel and Rutherford were for spills of very light and very heavy crude oils. Transcript at

3 4070-74.

4 Mr. Taylor testified about oil particle aggregates, which form when oil clings to particles,

5 such as sediment or organic matter, in the water column. Taylor Pre-filed Test. at 18. Mr. Taylor

6 and Mr. Challenger both testified that sediment load in the Columbia River is such that they

7 doubt that oil particle aggregates form in combination with the sediment loads in the Columbia

8 River. E.g. Transcript at 1792-1798 (Taylor); 1792-1793 (Challenger). However, their

9 testimony makes no mention of the tremendous amount of aquatic vegetation or organic matter

10 in the Columbia River. Id.

11 Several tribal witnesses testified about the substantial amounts of aquatic vegetation that

12 are present in the Columbia River pose challenges for tribal fishers. Transcript at 3804 (Ellis);

13 3831-3835 (Brigham); 3887-3890 (Parker); 4298-4299 (Hicks). They described instances when

14 fishers have to remove their nets from the river, sometimes on a daily basis, to clean them for

15 them to fish effectively. Transcript at 3805, 3831-34. Tribal witnesses expressed concern that

16 spilled oil could get bound up in this aquatic vegetation. Transcript at 3835; 3892-93. If oil is

17 bound up with the aquatic vegetation and subsides to the benthic zone at the bottom of the River

18 it would put a new contaminant in a portion of the River’s ecosystem. Transcript at 3885-3886.

19 Oil can linger at the bottom of the River for years exposing sturgeon and other fish that feed at

20 the bottom of the River. For sturgeon, who may not reach sexual maturity for 25 years and

21 reproduce infrequently, there is the potential for long term exposure and effects on their

22 productivity. Transcript at 4101-02.

23 In the Columbia River Basin, context is important. The Estuary has lost approximately

24 70% of its wetlands to human-caused impacts. This makes the remaining estuarine wetland

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Current Developments in Federal Indian Law 4B–44 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 habitat very important from an ecological perspective. Transcript at 4043. In fact, a great deal of

2 effort is going into restoring wetlands in the Columbia River estuary. Ex. 5077. The Applicant

3 does not address the massive regional effort that is going into restoring the Columbia River

4 Basin’s ecosystem, including its estuary wetlands.

5 Oil spills affect more than wetlands, they affect fish and fish populations. Pink salmon

6 populations in Prince William Sound Alaska declined significantly in the four years following

7 the Exxon Valdez spill. Testimony at 4081-4083

8 It is very important to note, contrary to the Applicant’s testimony, that adverse effects of

9 oil on fish have been repeatedly demonstrated at concentrations measured at less than 50 parts

10 per billion. The Tribal Parties submitted more than 80 scientific journal articles documenting

11 these effects. Exs. 5002 – 5183.

12 Dr. Rice and Dr. Penney discussed how oil and stress affect fish survival. In neither case

13 is oil or stress likely to cause high levels direct or acute mortality. Rather it is the secondary

14 effects in these cases, such as decreased mobility, susceptibility to predation, and diminished

15 resistance to disease, that kill fish. Testimony at 4030-4041, 4058-4060. Fish encounter many

16 stressors in the Columbia River Basin already. In 2015, high water temperatures reduced the

17 survival of upstream migrating sockeye to something like 10%, whereas normal survival would

18 be approximately 50%. Testimony at 4030-4032. An oil spill would certainly add stressing

19 conditions when water temperatures are high. Testimony at 4041.

20 For tribal fishers, there are many ways an oil spill will impact a fishing site. The most

21 immediate effect would be the closure of an area, making the area inaccessible for fishing.

22 Transcript at 4005. Also, any residual oil at a fishing site may make it so the fish avoid the area;

23 this would negatively impact the catch rate at the fishing site. Testimony at 4005-4006. Further,

24 among tribal fishers a spill may result in stigmatism; many tribal fishers are “really leery, really

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Current Developments in Federal Indian Law 4B–45 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 cautious of going back into the area to fish again.” Testimony at 4006. In sum, an oil spill may

2 impact both the catch rates and the fishing efforts at a fishing site. The potential impact of the

3 loss of a fishing site and the difficulties associated with moving to a different fishing site are

4 explored in greater depth below.

5 Crude oil can affect water quality in substantial ways, as was described on several

6 accounts during the hearing. See, e.g., Transcript at 4062-4112 (Testimony of Dr. Rice). In

7 Mosier, which was a relatively small spill, the crude ended up contaminating the groundwater.

8 Transcript at 2960-2961(Oregon DEQ memo indicates that groundwater has elevated levels of

9 benzene and other volatile organic compounds, which come from Bakken Crude). See also Ex.

10 5629. However, Vancouver Energy’s witnesses seem to downplay the potential for this harm.

11 After Councilman Stone asked a general question about groundwater contamination after delays

12 in oil cleanup at a site, Mr. Ames remarked: “It’s possible, but likely not probable. It depends on

13 the amount of petroleum spilled... [and] the depth to groundwater.” Transcript at 1686-1687.

14 2. The Geographic Response Plans Will Not Protect Tribal Interests.

15 The shoreline of the Columbia River is composed of riprap and large rocks along

16 substantial portions of the reservoirs. Transcript at 3803, 4272-4273. The Columbia River

17 surface elevations fluctuate as much as seven feet or more in The Dalles Reservoir and more in

18 other places. Transcript at 3802. In the rocky shorelines of Prince William Sound, oil spilled

19 from the Exxon Valdez tanker has persisted for decades. Transcript at 4073.

20 The Applicant would rely heavily on the Geographic Response Plans (GRPs) in the event

21 that oil was spilled into the Columbia River. E.g., Taylor Pre-Filed Test. at 9. The GRPs,

22 however, do not reflect the tribes’ input nor protect their important interests. Mr. Broncheau

23 testified about how the GRPs would direct booming operations to collect oil at the In Lieu and

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Current Developments in Federal Indian Law 4B–46 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Treaty Fishing Access Sites, such as Cooks Landing. Mr. Broncheau enumerated problems

2 associated with such measures:

3 x The GRPs did not reflect tribal input that the In Lieu and Treaty Fishing Access

4 Sites should not be used for oil collection operations;

5 x Many In Lieu Treaty Fishing Access Sites, such as Cooks Landing, were located

6 at ancient tribal villages;

7 x Tribal fishing platforms are located at the booming sites that would be

8 contaminated by oil collection operations;

9 x It would be difficult to clean the rocky berms protecting theIn Lieu and Treaty

10 Fishing Access Sites and the impacts could last for years;

11 x The In Lieu Sites have residents living there year around; and

12 x Many tribal residents at places like Cooks Landing have nowhere else to live.

13 Transcript at 4266, 4274-4277. Contrary to the Applicant’s assertions, the GRPs have serious

14 flaws that would exacerbate, not mitigate, the tribes’ treaty secured interests.

15 3. Persistence Of Oil Spilled.

16 Once a habitat is contaminated, however, the persistence in shorelines, particularly

17 wetlands, will be quite significant. Oil in contaminated wetlands from the Florida Barge spill at

18 West Falmouth Massachusetts has been thoroughly document and persisted more than three

19 decades. Rice Prefiled Test. at 7-8; Ex. 5085 (The West Falmouth Oil Spill after Thirty Years:

20 The Persistence of Petroleum Hydrocarbons in Marsh Sediments). Oil from the Exxon Valdez

21 spill continues to persist in contaminated beaches after 25 years. Testimony at 4073.

22 4. The Tribal Parties are Forced to Cleanup Spills on Tribal Lands.

23 The Tribal Parties have a vested interest in the prevention of oil spills; and are actively

24 involved in spill response and cleanup. For example, Ms. Sanchey serves as the Hazmat Lead

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Current Developments in Federal Indian Law 4B–47 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 for the Yakama Nation. The Hazmat Team is broadly tasked with responding to and cleaning up

2 hazardous waste spills “from the beginning to the very end” of spill cleanup. Testimony at 3944.

3 The Hazmat Team responds to spills that occur on the Yakama Nation’s reservation, ceded lands,

4 reserved rights areas or usual and accustomed areas. Testimony at 3944. The Hazmat Team

5 typically responds to ten to twelve spills a month, and coordinates its efforts with the

6 Washington State Department of Ecology, the Oregon State Department of Environmental

7 Quality, and the Environmental Protection Agency. Testimony at 3941. The Yakama Nation is

8 also on the Northwest Area Committee, Region 10 Response Team. Testimony at 3942.

9 Unfortunately, the Yakama Nation is very familiar with the threat of hazardous waste

10 spills. The Hazmat Team responded to the hazardous waste spill at Sulfur Creek, in 2015.

11 Testimony at 3946. There, oil from a used motor oil holding tank traveled fourteen miles,

12 through an irrigation system to a natural creek, and then out to the Yakima River (which is a

13 tributary of the Columbia River). Testimony at 3946. The cleanup took two weeks, as there was

14 an extensive amount of natural vegetation damage. Testimony at 3946.

15 The Hazmat also responded the to the hazardous waste spill caused by a Burlington

16 Northern train by McNary Dam. Testimony at 3947. In that matter, a boulder punctured the

17 train’s diesel tank. Testimony at 3947. After the puncture, the train continued for 15 miles,

18 leaking diesel fluid; the train continued after the puncture, because the train could only stop

19 where it could be serviced. Testimony at 3947. When the train finally stopped, it lost 300

20 gallons of diesel. Id. During cleanup, they were not able to locate all of the diesel on the bank of

21 the river. Id.

22 Finally, Ms. Sanchey also responded to the Mosier train derailment. Testimony at 3948.

23 Mosier is on the bank of the Columbia River, in the reserved area for the Yakama Nation.

24 Testimony at 3948. “[T]raffic delayed the response to the incident.” Testimony at 3950.

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Current Developments in Federal Indian Law 4B–48 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 “Traffic was backed up for miles bumper to bumper” it was “an absolute nightmare.” Testimony

2 at 3949. Ms. Sanchey remarked that it “was probably one of the most difficult responses I’ve

3 ever been involved in.” Testimony at 3950. Once Ms. Sanchey arrived in Mosier, she saw a

4 “huge cloud of just black smoke, flames.” Testimony at 3950. There “was a change in

5 temperature, probably 10 to 15 degrees.” Id. The scene was “apocalyptic,” it was “absolute

6 chaos.” Testimony at 3951. Overall, Ms. Sanchey spent approximately two weeks at Mosier.

7 Testimony at 3953. The tribes were concerned about the salmon and the lamprey; “oil was

8 reaching the river, it was coming through an outflow pipe from the wastewater treatment plant . .

9 . oil bubbled up, it bubbled up eight feet offshore.” Testimony at 3955-3956.

10 During the Mosier incident, the “water’s not moving, people aren’t catching fish. And so

11 there was . . . a subsistence impact and there was an economic impact.” Testimony at 3957. Mr.

12 Settler, a tribal fisherman, was camping and fishing nearby when the Mosier train derailment

13 occurred. Testimony at 3981-3984. He witnessed “a considerable amount of smoke . . .

14 billowing out and it was black.” Testimony at 3984. Ex. 5300, 5302. He said the air “taste[d]

15 like a burning tire” and that he could feel a residue on his skin, “almost like a flake that was

16 coming down on your skin.” Testimony at 3985-3986. Later that evening, Mr. Settler developed

17 a cough and a sore throat that persisted three days. Testimony at 3987. Because of the train

18 derailment, Mr. Settler stopped fishing in the area; multiple other fishers followed suit and

19 abandoned the area. Testimony at 3985-3987. Mr. Settler estimates that he suffered a direct

20 economic impact, because he lost two days of fishing. Testimony at 3988-3989. He estimates

21 that he lost $1500 in sales. Testimony at 3988. Afterwards, the the tribes held a healing

22 ceremony, a religious ceremony, cleansing the area. Testimony at 3954-3955.

23 Overall, the Tribal Parties will bear the costs associated with an oil spill. In addition to

24 the risk to fishing sites and cultural resources, the Tribal Parties will have to expend a significant

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Current Developments in Federal Indian Law 4B–49 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 amount of resources in dealing with the consequences of the Vancouver Energy Project. The

2 increased risk of oil spills will have a direct impact on the Tribal Parties. It is important that

3 these risks be considered by EFSEC, when weighing the benefits and risks of the project.

4 F. The Proponents Understate the Risks of the Project.

5 After several weeks of testimony, it is clear that Vancouver Energy is willing to take

6 short cuts in safety; they avoid true liability through a complex business structure that is vague

7 on management control and liability, their risk assessments neglect to examine risks even within

8 their project boundaries, and they’re satisfied with designing their terminal structures at lower

9 standards than risk practices should allow. Witnesses for Vancouver Energy admitted that they

10 could build this terminal to safer standards. Transcript at 1171-1172; 3846. Other witnesses

11 testified that the facilities have been developed to Risk Category II of the American Society of

12 Civil Engineers, Minimum Design Loads for Buildings and Other Structures 7-10 (ASCE 7-10).

13 See, e.g., testimony at 1171 (Rohrbach); 3845 (Gibbs); 3013-3014 (Wartman).

14 The Washington Building Code relies on the International Building Code. RCW §

15 19.27.031 (1)(a); WAC 51-50-0312. The International Building Code relies on ASCE 7-10.

16 Gibbs, Like ASCE 7-10, Section 1604.5 of the International Building Code describes Risk

17 Categories for structural design. And like ASCE 7-10, the key factor under the International

18 Building Code that distinguishes risk category III from lower risk categories, including Risk

19 Category II, is whether the structure “represent[s] a substantial risk to human life in the event of

20 structural failure.” International Building Code § 1604.5.2 If so, the structure should be

21 designed to Risk Category III. In so doing, the structure would be designed to more robust

23 2 ASCE 7-10 Risk Category III is intended for “structures the failure of which could pose a substantial risk to human life” including facilities that handle “hazardous fuels.” ASCE 7-10, Table 1.5-1. Perhaps reflecting the fundamental 24 importance of risk determinations, ASCE treats this topic extensively in its first chapter. ftp://ftp.consrv.ca.gov/pub/oil/SB4DEIR/docs/GEO_ASCE_2010.pdf. 25 Galanda Broadman PLLC 8606 35th Avenue NE, Suite L1 P.O. Box 15146 TRIBAL PARTIES’ Seattle, WA 98115 POST-HEARING BRIEF - 32 (206) 557-7509

Current Developments in Federal Indian Law 4B–50 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 standards by an importance factor of 1.25. That is, if built to Risk Category III instead of Risk

2 Category II, the facility would be built to be 25% more robust. Testimony at 3012-3014.

3 Numerous witnesses testified how about the risk to human life posed by the multiple

4 facilities to be located at the Vancouver Energy terminal. See, e.g., Transcript at 1292-1296. It is

5 abundantly clear to the tribes that Vancouver Energy regards its project as just another Class II

6 industrial facility. The Vancouver Energy Terminal adds more unacceptable risk burden to an

7 ecosystem that is under repair.

8 III. CONCLUSION

9 The Tribal Parties incorporate by reference and hereby preserve all issues previously

10 raised in this proceeding in their filings. For the reasons set forth above, the Tribal Parties

11 respectfully request that the Council issue a recommendation to the Governor, to reject Tesoro

12 Savage’s Application for Site Certification.

13 Respectfully submitted this 6th day of September, 2016.

15 ______16 JoeJoe Sexton,Sexton, WWSBASBA No. 380633 Amber Penn-Roco, WSBA No. 44403 17 Attorneys for the Confederated Tribes and Bands of the Yakama Nation 18 Galanda Broadman, PLLC 8606 35th Avenue NE, Suite L1 19 P.O. Box 15146 Seattle, WA 98115 20 Tel: (206) 557-7509 Fax: (206) 299-7690 21

22 ______BrentBrB ent H. H HallHall, OSB No. No 992762 23 Attorney for the Confederated Tribes of the Umatilla Indian Reservation 24 Office of Legal Counsel

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Current Developments in Federal Indian Law 4B–51 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 46411 Timine Way Pendleton, OR 97801 2 Tel: (541) 429-7407 Fax: (541) 429-7407 3

4 ______5 JuJulieullie A. CaCarter,rter, OSB NNo. 992390 Robert C. Lothrop, OSB No. 812986 6 Columbia River Inter-Tribal Fish Commission 700 NE Multnomah Street, Suite 1200 7 Portland, OR 97232 Tel: (503) 238-0667 8 Fax: (503) 235-4228

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Current Developments in Federal Indian Law 4B–52 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 CERTIFICATE OF SERVICE

2 I certify that on the date provided below, I sent a true and correct copy, via e-mail, of

3 the foregoing documents, to all parties or their counsel of record, as listed below:

4 Energy Facility Site Evaluation Council [ ] Via Hand Delivery PO Box 43172 [X] Via E-Mail 5 Olympia, WA 98504-3172 [ ] Via First Class Mail/Postage Prepaid E-Mail: [email protected] [ ] Via Facsimile 6 Kelly J. Flint [ ] Via Hand Delivery 7 Tesoro Savage Petroleum Terminal, LLC 110 [X] Via E-Mail Columbia Boulevard, Suite 108 & 110 [X] Via First Class Mail/Postage Prepaid 8 Vancouver, WA 98660 [ ] Via Facsimile [email protected] 9 Applicant

10 Jay P. Derr [ ] Via Hand Delivery 11 Dale N. Johnson [X] Via E-Mail Tadas A. Kisielius [ ] Via First Class Mail/Postage Prepaid 12 Van Ness Feldman, LLP [ ] Via Facsimile 719 Second Avenue, Suite 1150 13 Seattle, WA 98104-1728 [email protected] 14 [email protected] [email protected] 15 Attorneys for Applicant

16 Matthew R. Kernutt, Assistant Attorney General [ ] Via Hand Delivery Office of the Attorney General [X] Via E-Mail 17 1125 Washington Street SE [ ] Via First Class Mail/Postage Prepaid PO Box 40100 [ ] Via Facsimile 18 Olympia, WA 98504-0100 [email protected] 19 Counsel for the Environment

20 Ann C. Essko, Assistant Attorney General [ ] Via Hand Delivery Washington State Attorney General’s Office [X] Via E-Mail 21 Government Operations Division [ ] Via First Class Mail/Postage Prepaid PO Box 40108 [ ] Via Facsimile 22 Olympia, WA 98504-0108 [email protected] 23 Washington State Attorney General’s Office

24 David F. Bartz, Jr. [ ] Via Hand Delivery

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Current Developments in Federal Indian Law 4B–53 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Alicia L. Lowe [X] Via E-Mail Connie Sue Martin [ ] Via First Class Mail/Postage Prepaid 2 Schwabe, Williamson & Wyatt, P.C. [ ] Via Facsimile 1211 SW 5th Avenue, Suite 1900 3 Portland, OR 97204-3795 [email protected] 4 [email protected] [email protected] 5 Port of Vancouver

6 Taylor Hallvik, Deputy Prosecuting Attorney [ ] Via Hand Delivery Christopher Horne, Chief Civil Deputy [X] Via E-Mail 7 Clark County Board of Commissioners [ ] Via First Class Mail/Postage Prepaid Civil Division [ ] Via Facsimile 8 P.O. Box 5000 Vancouver, WA 98666-5000 9 [email protected] [email protected] 10 Clark County

11 E. Bronson Potter [ ] Via Hand Delivery Karen L. Reed [X] Via E-Mail 12 City of Vancouver [ ] Via First Class Mail/Postage Prepaid PO Box 1995 [ ] Via Facsimile 13 Vancouver, WA 98668-1995 [email protected] 14 [email protected] [email protected] 15 City of Vancouver

16 Susan Drummond [ ] Via Hand Delivery Law Office of Susan Elizabeth Drummond 5400 [X] Via E-Mail 17 Carillon Pt. Bldg 5000 [ ] Via First Class Mail/Postage Prepaid Kirkland, WA 98033-7337 [ ] Via Facsimile 18 [email protected] City of Vancouver 19 Robert W. Ferguson, Attorney General [ ] Via Hand Delivery 20 Terence A. Pruit, Assistant Attorney General [X] Via E-Mail Natural Resources Division [ ] Via First Class Mail/Postage Prepaid 21 1125 Washington Street SE [ ] Via Facsimile PO Box 40100 22 Olympia, WA 98504-0100 [email protected] 23 [email protected] Department of Natural Resources 24

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Current Developments in Federal Indian Law 4B–54 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Kristen L. Boyles [ ] Via Hand Delivery Janette K. Brimmer [X] Via E-Mail 2 Anna Sewell [ ] Via First Class Mail/Postage Prepaid Earthjustice [ ] Via Facsimile 3 705 Second Avenue, Suite 203 Seattle, WA 98104 4 [email protected] [email protected] 5 [email protected] [email protected] 6 Columbia Riverkeeper, at al.

7 David Bricklin [ ] Via Hand Delivery Bryan Telegin [X] Via E-Mail 8 Bricklin & Newman, LLP [ ] Via First Class Mail/Postage Prepaid 1424 Fourth Avenue, Suite 500 [ ] Via Facsimile 9 Seattle, WA 98101 [email protected] 10 [email protected] Columbia Riverkeeper, at al. 11 Linda R. Larson [ ] Via Hand Delivery 12 Marten Law, PLLC [X] Via E-Mail 1191 Second Avenue, Suite 2200 [ ] Via First Class Mail/Postage Prepaid 13 Seattle, WA 98101 [ ] Via Facsimile [email protected] 14 Columbia Waterfront LLC

15 Daniel Timmons [ ] Via Hand Delivery Marten Law, PLLC [X] Via E-Mail 16 1001 SW Fifth Avenue, Suite 1500 [ ] Via First Class Mail/Postage Prepaid Portland, OR 97217 [ ] Via Facsimile 17 [email protected] Columbia Waterfront LLC 18 Cager Clabaugh [ ] Via Hand Delivery 19 Jared Smith [X] Via E-Mail International Longshore Warehouse Union [ ] Via First Class Mail/Postage Prepaid 20 Local 4 [ ] Via Facsimile 1205 Ingalls Road 21 Vancouver, WA 98660 [email protected] 22 [email protected] International Longshore Warehouse Union 23 Local 4

24 Nancy Isserlis, City Attorney [ ] Via Hand Delivery

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Current Developments in Federal Indian Law 4B–55 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Michael J. Piccolo, Assistant City Attorney [X] Via E-Mail Office of the City Attorney [ ] Via First Class Mail/Postage Prepaid 2 5th Floor Municipal Building [ ] Via Facsimile W. 808 Spokane Falls Blvd. 3 Spokane, WA 99201 [email protected] [email protected] 4 City of Spokane

5 Donald L. English [ ] Via Hand Delivery Scott Russon [X] Via E-Mail 6 City Attorney, City of Washougal [ ] Via First Class Mail/Postage Prepaid 12204 SE Mill Plain, Suite 200 [ ] Via Facsimile 7 Vancouver, WA 98684 [email protected] 8 [email protected] City of Washougal 9 Brian Bonlender, Director [ ] Via Hand Delivery 10 Department of Commerce [X] Via E-Mail 1011 Plum Street SE [ ] Via First Class Mail/Postage Prepaid 11 PO Box 42525 [ ] Via Facsimile Olympia, WA 98504-2525 12 [email protected] Department of Commerce 13 Maia D. Bellon, Director [ ] Via Hand Delivery 14 Department of Ecology [X] Via E-Mail 300 Desmond Drive [ ] Via First Class Mail/Postage Prepaid 15 PO Box 47600 [ ] Via Facsimile Olympia, WA 98504-7600 16 [email protected] Department of Ecology 17 Jim Unsworth, Director [ ] Via Hand Delivery 18 Department of Fish and Wildlife [X] Via E-Mail 600 Capitol Way North [ ] Via First Class Mail/Postage Prepaid 19 Olympia, WA 98501-1091 [ ] Via Facsimile [email protected] 20 Department of Fish and Wildlife

21 David Danner, Chairman [ ] Via Hand Delivery Utilities and Transportation Commission 1300 S. [X] Via E-Mail 22 Evergreen Park Drive SW [ ] Via First Class Mail/Postage Prepaid PO Box 47250 [ ] Via Facsimile 23 Olympia, WA 98504-7250 [email protected] 24 Utilities and Transportation Commission

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Current Developments in Federal Indian Law 4B–56 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

1 Roger Millar [ ] Via Hand Delivery 2 Lynn Peterson [X] Via E-Mail Department of Transportation [ ] Via First Class Mail/Postage Prepaid 3 310 Maple Park Avenue SE [ ] Via Facsimile PO Box 47300 4 Olympia, WA 98504-7300 [email protected] 5 [email protected] Department of Transportation 6

7 I declare under penalty of perjury under the laws of the State of Washington that the 8 foregoing is true and correct. 9 Executed this 6th day of September, 2016, in Portland, OR. 10

11 ______12 Faronaron Scissons Legal Administrative Assistant 13 Columbia River Inter-Tribal Fish Commission 700 NE Multnomah Street, Suite 1200 14 Portland, OR 97232 General Tel: (503) 238-0667 15 [email protected] 16

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Current Developments in Federal Indian Law 4B–57 Chapter 4B—Tribes as Stakeholders—Columbia River Inter-Tribal Fish Commission

Current Developments in Federal Indian Law 4B–58 Chapter 4C Tribes as Government Stakeholders: Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA

Tom Zeilman Law Offices of Thomas Zeilman Yakima, Washington

Contents Introduction ...... 4C–1 1. Tribal Oversight and Participation in the CERCLA Remediation Process ...... 4C–1 2. What Are “Oversight Costs?” ...... 4C–2 3. Liability for Tribal Oversight Costs ...... 4C–3 4. Federal Grants vs. PRP Funding and Participation Agreements ...... 4C–4 5. The Bradford Island Case ...... 4C–5 6. Significance of the Bradford Island Decision ...... 4C–7 Chapter 4C—Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA

Current Developments in Federal Indian Law 4C–ii Chapter 4C—Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA

Introduction

Indian tribes have a critical interest and governmental duty to protect the health of enrolled members and the environment affected by releases of hazardous substances. However, tribes frequently find themselves in situations where a shortage of funding may limit their effectiveness in oversight of cleanups. Through negotiation of funding agreements with potentially responsible parties (PRPs) for oversight of response actions, tribes can participate meaningfully in the decision making process. This approach has taken on legal significance with last year’s decision by the U.S. District Court in Portland to permit the Yakama Nation to recover its response costs from the Army Corps of Engineers for its participation in cleanup of the Bradford Island on the Columbia River. This paper will outline what tribal response oversight costs are, how tribes can fund those costs to perform preliminary assessments of resource injury, and then explain the importance of the Bradford Island case for ensuring that those costs are legally recoverable.

1. Tribal Oversight and Participation in the CERCLA remediation process

In the removal and remediation of hazardous releases pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. § 9601 et. seq.), EPA and many state environmental regulators recognize an additional and separate sovereign role for tribes apart from trustees’ assessment of injury and damages to important natural resources. The 1986 Superfund Amendments and Reauthorization Act (SARA) amended § 126 of CERCLA by requiring response agencies to afford tribal governments the same treatment as states for purposes of several critical hazardous release response authorities. SARA also applied Subpart F of the National Contingency Plan (“NCP”) to Indian tribes and authorized EPA to interact directly with them. EPA received authority to negotiate cooperative agreements with tribes to undertake pre- remedial or remedial response actions at hazardous waste sites within the jurisdictional boundaries of Indian country.

In the off-reservation context, EPA and some states have also recognized an “oversight” role for tribes in locations where they can claim treaty rights to use natural resources and enforce tribal laws outside of Indian country. Participation in remedial investigations and feasibility studies in areas where tribes can also claim trusteeship has been an important element in ensuring protection of the health of enrolled members who exercise treaty rights to fish, hunt, and gather other traditional foods and medicines. Section 126 of CERCLA requires EPA to consult with any “affected” tribes before determining any appropriate remedial action pursuant to § 104. 42 U.S.C. § 9626(a); § 9604(c)(2). Tribes and EPA have interpreted this provision broadly in keeping with the statute’s remedial purpose; the word “affected” can usually mean any substantial interest that a tribal government may have in overseeing removal or remedial actions conducted in a particular geographic area, even outside of Indian country.

In that context, tribes should be recognized by lead agencies as sovereign cooperating partners that must be consulted, and having a right to provide comments on all

Current Developments in Federal Indian Law 2 4C–1

Chapter 4C—Tribal Participation in Off-Reservation Environmental Cleanups Under CERCLA

preliminary NCP authorized documents leading up to a final Record of Decision. For “removal” actions (the quicker and most common type of remedy), these would include preliminary evaluations and site inspections (PA/SI) to determine the nature, source and extent of the hazardous release(s), as well as the engineering evaluation/cost analysis (EE/CA), which examines alternatives for removal of contaminants of concern. 40 CFR §§ 300.410-415. For “remedial” actions, tribes should be consulted regarding all stages of a remedial investigation and feasibility study (RI/FS), which determines the extent of contamination at a particular site or operable unit and the alternatives available to remediate the site. EPA uses the RI/FS to develop a proposed remedy for a particular hazardous waste site, which should be made available to tribes prior to the general public in selection of a remedy for a site. 40 CFR §§ 300.430(a)-(e). The lead agency reviews and responds to the comments, and must consult with the affected tribe(s) before making a final decision.

Section 104 also specifically requires EPA and other response agencies to coordinate with natural resource trustees during response actions. 42 U.S.C. § 9604(b)(2). Pursuant to the NCP, tribes as trustees have the authority to “conduct a preliminary survey of the area affected by the discharge or release to determine if trust resources under their jurisdiction are, or potentially may be, affected.” 40 CFR § 300.615(c)(1)(i). They also have the power to coordinate with the Remedial Project Manager in any “assessments, investigations, and planning” in the remedial actions. 40 CFR § 300.615(c)(1)(ii). Consistent with this requirement, EPA has issued specific guidance for response agency coordination with trustees; this includes providing them an opportunity to comment on all documents produced during the RI/FS process. See CERCLA Coordination with Natural Resource Trustees, OSWER No. 9200-4-22A (July 31, 1997); see also The Role of Natural Resource Trustees in the Superfund Process, OSWER Publ. No. 9345.0-05I (March 1992).

2. What are “Oversight Costs?”

Section 107 of CERCLA does not specifically refer to the recovery of “oversight costs.” However, it allows Indian tribes to recover “costs of removal or remedial action.” 42 U.S.C. § 9607(a)(4)(A). Like other provisions of the statute, the term “response costs” is liberally construed. W.R. Grace & Co.-Conn. v. Zotos Int'l, Inc., 559 F.3d 85, 92 (2d Cir. 2009). Oversight costs are recoverable under CERCLA because they are included under the broad definition of “response costs.” See California ex rel. California Dep't of Toxic Servs. v. Neville Chem. Co., 213 F.Supp.2d 1134 (C.D.Cal. 2002) (“Response costs recoverable under CERCLA include oversight costs incurred by a government agency in an effort to ensure that a site is being adequately investigated and remediated by responsible parties”), aff'd, 358 F.3d 661 (9th Cir. 2004). CERCLA broadly defines “removal” as, in part:

Cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous

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substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.

42 U.S.C. § 9601(23) (emphasis added).1 Characterization of oversight costs pursuant to these definitions has become important in the context of both advance funding and cost recovery. Nowhere in the statute or the NCP is the term “all costs of removal or remedial action” defined, and the federal courts have therefore used an extremely broad interpretation. Tribes participating in remedial investigations, feasibility studies, proposed cleanup plans and other NCP procedures at CERCLA sites can certainly assert that they are monitoring, assessing and evaluating hazardous releases, remedial actions proposed to be taken, and the effect of those actions on tribal members and the environment. Nevertheless, the legal issue of whether tribes may recover their costs for their “oversight” at off-reservation sites despite a lack of lead agency status has become an issue in the context of federal facilities.2

3. Liability for Tribal Oversight Costs

When there is a release or threatened release of hazardous substances by a PRP from a facility that causes the incurrence of response costs, and the costs are not inconsistent with the NCP, all lead agency costs are recoverable. United States v. W.R. Grace, 280 F.Supp.2d 1149, 1166-69 (D. Mont. 2003), aff’d, 429 F.3d 1224, 1250 (9th Cir. 2005). Tribes can also take action and seek reimbursement from PRPs for their response expenditures pursuant to Section 107(a). 42 U.S.C. § 9607(a)(4)(A).

Federal courts have emphasized that consistency with the NCP is the only criterion for the recoverability of response costs. In considering consistency under the NCP, courts review EPA's selection of a response action under an arbitrary and capricious standard based on the administrative record. See California v. Neville Chemical Co., 358 F.3d 661 (9th Cir. 2004). The burden is on the defendant in a cost recovery action to prove that the costs are not consistent with the NCP. See Pakootas v. Teck Cominco Metals, Ltd., 632 F.Supp.2d 1029 (E.D. Wash. 2009).

At “federal facilities,” EPA has delegated authority for conducting CERCLA actions to particular federal lead agencies if they have jurisdiction, custody, or control of the facilities where the releases of hazardous substances occurred or which are the sole sources of the releases. Executive Order 12580, § 2(d). This is especially common at

A “remedial action” is also broadly defined, and includes “actions consistent with a permanent1 remedy.” 42 U.S.C. § 9601(24). This definition recognizes that remedial actions can be taken in addition to removal actions, and specifically includes “any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.” Id. 2 In §§ 7-8, infra, I discuss the U.S. District Court decision on this issue regarding federal agency liability for response costs at the Bradford Island cleanup near Bonneville Dam.

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facilities owned by the Departments of Defense and Energy where legacy waste has been the subject of CERCLA cleanup. Under Section 120(a) of CERCLA the United States waives its sovereign immunity from suit, and this waiver extends to “any instance in which the federal government may be deemed to have operated a facility, regardless of whether the government acted in a regulatory or in a proprietary capacity.” 42 U.S.C. § 9620(a)(1), see East Bay Municipal Utility Dist. v. U.S. Dept. of Commerce, 142 F.3d 479 (D.C. Cir. 1998). This provision should be interpreted to mean that if federal agencies are also PRPs, they are liable for all tribal response costs at a particular federal facility.

4. Federal Grants vs. PRP Funding and Participation Agreements

Unlike EPA and other lead response agencies, most Indian tribes do not have the financial resources to pay expenses for its participation in CERCLA remedial actions. Reimbursement of costs is therefore not realistic if a tribe is going to oversee cleanups at a meaningful level, and neither is recovery of up-front costs in federal court. Grants and cooperative agreements have been important instruments by which EPA or other lead agencies can provide funding to tribes for participation and oversight of facilities in which they have a stake. However, these funding programs in recent years have been limited to anywhere from $30,000 to $50,000 annually, which may cover costs for smaller sites but not the large legacy waste sites (e.g., mines, industrial waterways, military and nuclear waste disposal sites). Any additional costs incurred by tribal staff or attorneys would need to be recovered from the PRPs directly.

To ensure meaningful participation at the earliest stages of cleanups, “funding and participation” agreements (FPAs) should be offered to PRPs and negotiated with provisions for advance funding on an annual or semi-annual basis. This type of FPA is distinct from those negotiated by trustees with PRPs for natural resource damages assessment (NRDA) funding, which is usually done in the context of a multi-sovereign Trustee Council. Oversight FPAs are instead negotiated and funded directly between tribes and liable parties. Initial contacts with PRPs should include explicit legal and policy statements explaining why and how a tribe plans to participate so that there is no confusion as to the tribe’s authority. These funding agreements are legally enforceable contracts, and tribes should recognize that they have a judicial remedy if there is a breach by a PRP and dispute resolution procedures fail.

The advantage of using an FPA is that it is collaborative and can have check-in points: the parties negotiate and mutually agreed upon an annual budget and scope of work; PRPs usually provide the funds in advance on an annual basis; and tribes provide semi- annual cost documentation for all expenditures (cost reports serve as check-in points on budget expenditures). If there are multiple PRPs, the technical costs for reviewing documents, commenting on plans, and participation in meetings can be split among them however they choose. However, costs specific to an individual PRP (e.g., cost report questions) would be billed directly to the appropriate PRP. In a collaborative process these types of costs are greatly reduced because the need for attorney review and support is minimized.

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5. The Bradford Island case

In December 2014 the Yakama Nation filed a legal action against the U.S. Army Corps of Engineers pursuant to Section 107(a) of CERCLA3 in the U.S. District Court in Portland (Confederated Tribes and Bands of the Yakama Nation v. United States, et. al. (D. Or. No. 14-CV-1963-PK)). The case sought to recover the costs of the tribe’s participation in the removal action and remedial investigation at Bradford Island at Bonneville Dam over the past decade.

Releases of PCBs and other substances from forty years of hydroelectric powerhouse maintenance at the Bradford Island Site have impacted the Yakama treaty reserved fisheries resources in the Columbia River, and the enrolled members who rely on that resource. The Corps admits that elevated levels of PCBs have been found in resident fish nearby. For this reason, state health departments in Washington and Oregon have issued strict warnings not to eat resident fish in the area near the Site, and the Yakama Nation has elected to suspend traditional platform fishing on the island. The tribe has participated in the RI process for ten years, incurring costs amounting to over $100,000.

The civil complaint asked the court for a declaratory judgment holding the United States liable for all future costs of oversight by Yakama Nation Fisheries. This was based on the legal argument that the tribe has standing to recover its costs just like any other governmental agency. The reason for this is simple: the provision permitting Indian tribes to recover their costs has no express qualifying limitation on what costs are recoverable or where tribes can provide oversight for cleanups. PRP liability for costs incurred by an Indian tribe was a case of first impression.

The only issue in dispute on summary judgment was whether the Yakama Nation’s asserted costs were response costs caused by the release or threatened release of a hazardous substance, and whether the tribe’s response actions were “not inconsistent with the NCP.” In its defense of the Corps, the Department of Justice argued that there is an implied requirement in CERCLA that only lead agencies have authority to recover costs, because they are the only agencies that can provide “oversight” of facility cleanups. However, this goes against the principle that courts should not impart an implied congressional meaning or intent into statutes where the express plain language does not reflect it. CERCLA simply provides that PRPS are liable for “all costs of removal or remedial action incurred by [an]…Indian tribe not inconsistent with the [NCP].” 42 U.S.C. § 9607(a)(4)(A).

3 Actions for recovery of costs for a remedial action may be commenced any time after such costs are incurred, but not later than “6 years after initiation of physical on-site construction of the remedial action.” 42 U.S.C. § 9613(g)(2)(B). Costs incurred in a removal action may be recovered in a cost recovery suit for a subsequent remedial action if the RI/FS is initiated within 3 years of completion of the removal. Id.

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Magistrate Papak issued his findings and recommendations to the U.S. District Court Judge on December 18, 2015.4 He recommended that the Corps’ cross-motion for summary judgment on liability be denied, and the Yakama Nation’s cross-motion be partially granted. Summary judgment was only partial because Judge Papak concluded that the Yakama Nation was not entitled to a declaratory judgment for future response costs. He based this finding on his inability to predict “the exact nature or cause of the Tribe’s future response activities.”

The key holding in the decision disagreed with the Corps’ position that the tribe needed some type of “oversight authority” to collect its incurred costs:

Yakama Nation was not required to have express authority to engage in oversight activities with respect to the Bradford Island cleanup. Defendants cite no legal authority in support of their argument to the contrary. The text of CERCLA does not contain an authority requirement, and I am unable to find a single case construing the statute as containing such a requirement.

Id. at 8 (citations omitted). Judge Papak also pointed out that the “primary limitation on the Tribe’s ability to recover its response costs is the requirement that its response actions not be ‘inconsistent with the [NCP],’” and that the Corps had failed to meet its burden of proof that the tribe’s response actions were arbitrary and capricious. Id. at 9 (citing Firemen’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 949 (9th Cir. 2002)). This has never before been held to be the evidentiary standard for cost recovery actions brought by an Indian tribe. He concluded that “the Yakama Nation is therefore entitled to summary judgment on Defendants’ liability for the Tribe’s oversight costs.” Id.

Finally, Yakama also won on its argument regarding which costs are recoverable: “The costs Yakama Nation incurred in seeking funding for its response activities are themselves response costs recoverable under CERCLA.” Id. at 10. The judge examined the CERCLA definition of “removal action” and concluded that the tribe’s funding was “necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.” Id. at 11 (citing 42 U.S.C. § 9601(23)). Ironically, the federal government’s own CERCLA cost recovery standards and accounting methodology were used as authority on this point. See 65 Fed. Reg. at 35342. EPA’s interpretation of CERCLA cost recovery provisions is entitled to deference, and the court held that the same rule applied to tribal cost recovery. Id. at 12 (citing United States v. W.R. Grace & Co., 429 F.3d 1224, 1250 (9th Cir. 2005)).

After objections to the recommendations were filed by both parties, U.S. District Judge Anna Brown issued a final order on February 2, 2016, affirming the Magistrate’s holdings, with one exception – she reversed the denial of a declaratory judgment on Corps liability for all future response costs.5 She stated that the issuance of a declaratory judgment is not within the court’s discretion, as the statute is very clear: “A successful

4 The Westlaw citation is 2015 WL 9942044. 5 The Westlaw citation is 2016 WL 406344.

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CERCLA plaintiff is not required to re-try a polluter’s liability when the plaintiff incurs response costs in the future.” Order, No. 14-CV-1963-PK (D.Or) at 4 (citing 42 U.S.C. § 9613(g)(2) (“the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages”)). Thus, if liability is found, the court has no choice but to enter a declaratory judgment “that the responsible party will have continuing liability for the cost of finishing the job.” Id. at 5 (quoting In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir. 1991)).

6. Significance of the Bradford Island decision

The significance of this litigation lies not solely in the recovery of past costs, but in the precedent it sets for tribal participation in all cleanup sites in the Columbia Basin. Under the court’s holding the federal government’s argument – that some affirmative authority to take actions outside of Indian country is a prerequisite to recovering response costs – was rejected. PRP liability for oversight costs is not tied in any way to the tribe’s historical or current uses of an area, nor to the tribe’s status as an NRD trustee, nor to actual and/or threatened exposure of tribal members to hazardous substances. Such showings are not required in order to establish liability at sites even where an Indian tribe does not have treaty rights or established tribal uses, or where trusteeship could be disputed. A tribe merely needs to demonstrate that a cost is connected to a “removal or remedial action” under CERCLA, which includes virtually any action taken by a tribe to participate in cleanups. This ruling will encourage PRPs (including federal agencies) to quickly recognize Indian tribes as participants in any CERCLA cleanups in which they may have an interest, and PRPs are legally obligated to provide funding for those tribes’ oversight of remedial investigations and other actions.

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Current Developments in Federal Indian Law 4C–8 Chapter 5A Tribal Economic Development—Marijuana

Howard Arnett Karnopp Petersen LLP Bend, Oregon

Contents August 29, 2013, USDOJ “Cole Memorandum” Setting Out Federal Guidelines on Marijuana Enforcement ...... 5A–1 October 28, 2014, USDOJ “Wilkinson Memorandum” Extending Cole Memorandum Federal Enforcement Guidelines and Policy to Indian Country ...... 5A–5 Washington State Statute Authorizing the Governor to Negotiate Marijuana Agreements with the State’s Indian Tribes 5A–9 Suquamish Tribe/Washington Compact ...... 5A–11 Oregon Statute Authorizing the Governor to Negotiate Marijuana Agreements with the State’s Indian Tribes ...... 5A–25 2017 Oregon Statute Directing Department of Revenue to Negotiate Inter-Governmental Agreement with Tribes for Rebate of State Marijuana Taxes ...... 5A–27 Chapter 5A—Tribal Economic Development—Marijuana

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U.S. Department of Justice

Executive Officefor United States Attorneys

Officeof the Director Room 2261, RFK Main Justice Building (202) 252-1000 950 Pennsylvania Avenue, NW Washington, DC 20530

MEMORANDUM - Sent via Electronic Mail

DATE: OCT 2 8 2014 TO: ALL UNITEDST ATES ATTORNEYS ALL FIRST ASSISTANT UNITED ST ATES ATTORNEYS ALL CRIMINAL CHIEFS ALL APPELLATE CHIEFS ALL OCDETF COORDINATORS ALL TRIBAL LIAISONS

FROM: �� Director

SUBJECT: Policy Statement Regarding Marijuana Issues in Indian Country

ACTION REQUIRED: None. Information Only.

CONTACTS: Daniel Grooms Associate Deputy Attorney General Office of the Deputy Attorney General (202) 305-4127 Daniel.Grooms3(@,usdoj.gov

Jason F. Cunningham National Narcotics Coordinator Indian, Violent and Cyber Crime Staff Executive Officefor United States Attorneys (202) 252-5846 [email protected]

Tracy Toulou Director, Officeof Tribal Justice (202) 514-8812 Tracy. [email protected]

With a number of states legalizing marijuana for use and production, some tribes have requested guidance on the enforcementof the Controlled Substance Act (CSA) on tribal lands by

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the United States Attorneys' offices. With these requests in mind, the Attorney General's Native American Issues Subcommittee has reviewed the Memorandum from the Deputy Attorney General, dated August 29, 2013, regarding marijuana enforcement ("Cole Memorandum") and considered its impact on Indian Country.

The Cole Memorandum provides guidance to United States Attorneys on the proper prioritization of marijuana enforcement in their districts given the number of states that have moved to legalize marijuana for medicinal, agricultural, or recreational use. Specifically, the Cole Memorandum lists eight federal law enforcement priorities where the Department will focus its limited investigative and prosecutorial resources in all states. These eight priorities are as follows:

• Preventing the distribution of marijuana to minors; • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; • Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or illegal activity; • Preventing violence and the use of firearms in the cultivation and distribution of marijuana; • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and • Preventing marijuana possession or use on federalproperty.

The Cole memorandum contains the additional directive that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors . . . , in particular circumstances where the investigation and prosecution otherwise serve an important federal interest."

Indian Country includes numerous reservations and tribal lands with diverse sovereign governments, many of which traverse state borders and federal districts. Given this, the United States Attorneys recognize that effective federal law enforcement in Indian Country, including marijuana enforcement, requires consultation with our tribal partners in the districts and flexibility to confrontthe particular, yet sometimes divergent, public safetyissues that can exist on any single reservation.

Nothing in the Cole Memorandum alters the authority or jurisdiction of the United States to enforce federal law in Indian Country. Each United States Attorney must assess all of the threats present in his or her district, including those in Indian Country, and focus enforcement efforts based on that district-specific assessment. The eight priorities in the Cole Memorandum will guide United States Attorneys' marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country. Consistent with the Attorney General's 2010 Indian Country Initiative, in

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evaluating marijuana enforcement activities in Indian Country, each United States Attorney should consult with the affected tribes on a government-to-government basis. When in the judgment of a United States Attorney, significant issues or enforcement decisions arise that may implicate this policy statement, each United States Attorney should keep the Executive Office for United States Attorneys, the Office of Tribal Justice, and the Office of the Deputy Attorney General informed of those matters, in advance of any determination on how to proceed, in order to keep the Department's leadership apprised of significant issues and to maintain consistency throughout the Department.

cc: All United States Attorneys' Secretaries

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RCW 43.06.490 Marijuana agreements—Federally recognized Indian tribes—Tribal marijuana tax—Tax exemption. (1) The governor may enter into agreements with federally recognized Indian tribes concerning marijuana. Marijuana agreements may address any marijuana-related issue that involves both state and tribal interests or otherwise has an impact on tribal-state relations. Such agreements may include, but are not limited to, the following provisions and subject matter: (a) Criminal and civil law enforcement; (b) Regulatory issues related to the commercial production, processing, sale, and possession of marijuana, and processed marijuana products, for both recreational and medical purposes; (c) Medical and pharmaceutical research involving marijuana; (d) Taxation in accordance with subsection (2) of this section; (e) Any tribal immunities or preemption of state law regarding the production, processing, or marketing of marijuana; and (f) Dispute resolution, including the use of mediation or other nonjudicial process. (2)(a) Each marijuana agreement adopted under this section must provide for a tribal marijuana tax that is at least one hundred percent of the state marijuana excise tax imposed under RCW 69.50.535 and state and local sales and use taxes on sales of marijuana. Marijuana agreements apply to sales in which tribes, tribal enterprises, or tribal member-owned businesses (i) deliver or cause delivery to be made to or receive delivery from a marijuana producer, processor, or retailer licensed under chapter 69.50 RCW or (ii) physically transfer possession of the marijuana from the seller to the buyer within Indian country. (b) The tribe may allow an exemption from tax for sales to the tribe, tribal enterprises, tribal member-owned businesses, or tribal members[,] on marijuana grown, produced, or processed within its Indian country, or for activities to the extent they are exempt under state or federal law from the state marijuana excise tax imposed under RCW 69.50.535 or state and local sales or use taxes on sales of marijuana. Medical marijuana products used in the course of medical treatments by a clinic, hospital, or similar facility owned and operated by a federally recognized Indian tribe within its Indian country may be exempted from tax under the terms of an agreement entered into under this section. (3) Any marijuana agreement relating to the production, processing, and sale of marijuana in Indian country, whether for recreational or medical purposes, must address the following issues: (a) Preservation of public health and safety; (b) Ensuring the security of production, processing, retail, and research facilities; and (c) Cross-border commerce in marijuana. (4) The governor may delegate the power to negotiate marijuana agreements to the *state liquor control board. In conducting such negotiations, the *state liquor control board must, when necessary, consult with the governor and/or the department of revenue. (5) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise. (a) "Indian country" has the same meaning as in RCW 82.24.010. (b) "Indian tribe" or "tribe" means a federally recognized Indian tribe located within the geographical boundaries of the state of Washington. (c) "Marijuana" means "marijuana," "marijuana concentrates," "marijuana-infused products," and "useable marijuana," as those terms are defined in RCW 69.50.101.

[2015 c 207 § 2.]

NOTES:

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*Reviser's note: The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.

Intent—Finding—2015 c 207: "The legislature intends to further the government-to-government relationship between the state of Washington and federally recognized Indian tribes in the state of Washington by authorizing the governor to enter into agreements concerning the regulation of marijuana. Such agreements may include provisions pertaining to: The lawful commercial production, processing, sale, and possession of marijuana for both recreational and medical purposes; marijuana- related research activities; law enforcement, both criminal and civil; and taxation. The legislature finds that these agreements will facilitate and promote a cooperative and mutually beneficial relationship between the state and the tribes regarding matters relating to the legalization of marijuana, particularly in light of the fact that federal Indian law precludes the state from enforcing its civil regulatory laws in Indian country. Such cooperative agreements will enhance public health and safety, ensure a lawful and well-regulated marijuana market, encourage economic development, and provide fiscal benefits to both the tribes and the state." [2015 c 207 § 1.]

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78th OREGON LEGISLATIVE ASSEMBLY--2016 Regular Session

Enrolled House Bill 4014 Introduced and printed pursuant to House Rule 12.00. Presession filed (at the request of Joint In- terim Committee on Marijuana Legislation)

CHAPTER ......

AN ACT

Relating to cannabis; creating new provisions; amending ORS 90.396, 305.620, 316.680, 419C.239, 419C.420, 419C.443, 471.001, 471.775, 475.245, 475.752, 475.856, 475.858, 475.860, 475.862, 475.864, 475.898, 475B.015, 475B.063, 475B.070, 475B.075, 475B.090, 475B.100, 475B.110, 475B.150, 475B.160, 475B.185, 475B.218, 475B.235, 475B.245, 475B.250, 475B.255, 475B.340, 475B.375, 475B.415, 475B.420, 475B.428, 475B.435, 475B.443, 475B.450, 475B.705, 475B.710, 475B.760, 475B.800, 809.265 and 813.215 and section 3, chapter 20, Oregon Laws 2015; repealing ORS 475B.120, 475B.285 and 811.481 and sections 173 and 175b, chapter 614, Oregon Laws 2015; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

Enrolled House Bill 4014 (HB 4014-A) Page 1

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AGREEMENTS WITH FEDERALLY RECOGNIZED INDIAN TRIBES

SECTION 34. Section 35 of this 2016 Act is added to and made a part of ORS 475B.010 to 475B.395. SECTION 35. (1) The Governor, or the Governor’s designee, may enter into an agreement with the governing body of a federally recognized Indian tribe located in this state for the purpose of cross-jurisdictional coordination and enforcement of marijuana-related businesses licensed to conduct business on tribal trust land by the governing body of the federally recognized Indian tribe. (2) An agreement entered into under this section: (a) May provide for the cross-jurisdictional coordination and enforcement of marijuana producers, marijuana processors, marijuana wholesalers, marijuana retailers and marijuana testing laboratories licensed by the governing body of the federally recognized Indian tribe. (b) May require the governing body of the federally recognized Indian tribe to establish the same or similar requirements on marijuana producers, marijuana processors, marijuana wholesalers, marijuana retailers and marijuana testing laboratories that are consistent with the policies set forth in: (A) ORS 475B.010 to 475B.395; (B) ORS 475B.550 to 475B.590; and (C) ORS 475B.600 to 475B.655. (c) Must ensure enforceable public health and safety standards and include a system to regulate and track the purchase, sale, production, processing, transportation and delivery of marijuana items for marijuana producers, marijuana processors, marijuana wholesalers, marijuana retailers and marijuana testing laboratories that are licensed by the governing body of the federally recognized Indian tribe. (d) May authorize an agency of this state to assist in the implementation and enforcement of the terms of the agreement.

. . . .

Enrolled House Bill 4014 (HB 4014-A) Page 26

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79th OREGON LEGISLATIVE ASSEMBLY--2017 Regular Session

Enrolled House Bill 2197 Introduced and printed pursuant to House Rule 12.00. Presession filed (at the request of Joint In- terim Committee on Marijuana Legalization)

CHAPTER ......

AN ACT

Relating to cannabis; creating new provisions; amending ORS 475B.700 and 475B.710; and prescrib- ing an effective date.

Be It Enacted by the People of the State of Oregon:

Enrolled House Bill 2197 (HB 2197-A) Page 1

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Enrolled House Bill 2197 (HB 2197-A) Page 2

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SECTION 5. This 2017 Act takes effect on the 91st day after the date on which the 2017 regular session of the Seventy-ninth Legislative Assembly adjourns sine die.

Passed by House June 13, 2017 Received by Governor:

...... M.,...... , 2017 ...... Approved: Timothy G. Sekerak, Chief Clerk of House

...... M.,...... , 2017

...... Tina Kotek, Speaker of House ...... Kate Brown, Governor Passed by Senate June 20, 2017 Filed in Office of Secretary of State:

...... M.,...... , 2017 Peter Courtney, President of Senate

...... Dennis Richardson, Secretary of State

Enrolled House Bill 2197 (HB 2197-A) Page 3

Current Developments in Federal Indian Law 5A–29 Chapter 5A—Tribal Economic Development—Marijuana

Current Developments in Federal Indian Law 5A–30 Chapter 5B Economic Development: Energy, Environment, Partnership, Infrastructure, and Utility—Presentation Slides

Direlle Calica Kanim Associates LLC Portland, Oregon Chapter 5B—Economic Development: . . . —Presentation Slides

Current Developments in Federal Indian Law 5B–ii 9/7/2017

Chapter 5B—Economic Development: . . . —Presentation Slides

Economic Development Energy | Environment | Partnership | Infrastructure | Utility

ATNI Center for Energy Information & Training

Presented by Direlle R. Calica, J.D. Director, Institute for Tribal Government, Center for Public Service, Portland State University & ATNI Energy Program, Policy Advisor Email: [email protected]

Current Developments in Federal Indian Law Oregon State Bar - CLE September 18, 2017

About ATNI Energy & Economic Development

• About the Affiliated Tribes of Northwest Indians (ATNI): ATNI is dedicated to tribal sovereignty and self-determination. ATNI is organized and chartered as a non-profit 501(c)3 corporation under the laws of the State of Oregon. ATNI represents over fifty Northwest tribal governments from Oregon, Idaho, Washington, southeast Alaska, Northern California and Western Montana. • ATNI Executive Board, Committees and Programs – Committees: There are presently 22 Committees and Subcommittees on a host of topics—taxation, education, natural resources, health care, economic ATNI Energy Summit development, ocean caucus, etc. – Programs: Energy, Natural Resources, Climate Change and our sister organization ATNI Economic Development Corporation • About ATNI Energy: The ATNI Energy Program was started by a small group DOI Office of Indian Energy & of Northwest Tribes seeking greater representation in policy matters on the federal level at Bonneville Power Administration, Federal Energy Regulatory Economic Development Commission, and the U.S. Congress. – Began as a program under the ATNI Economic Development Corporation and a part of the ATNI Economic Development Committee, and later the ATNI Utility Subcommittee – The Energy Program later moved under ATNI and policy leadership changed to become the ATNI Energy & Telecommunications Committee – In 2017 the ATNI Executive Board separate Energy and Telecommunications and today Energy is a stand alone committee – Focus today is to continue to work on regional power, transmission policy and has expanded to provide policy support to Member Tribes and technical assistance.

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Chapter 5B—Economic Development: . . . —Presentation Slides

ATNI Energy Work & Progress

Tribal Utility Formation: Another impact of ATNI's efforts Early Years ATNI Energy with the BPA Subscription Program was a reaction to the process was that two ATNI changing policies of the Energy Deregulation: Tribes Transmission: Lastly, with the tribes immediately formed new Bonneville Power Administration correctly saw the obligation to changes deregulation brought to utilities to take advantage of the (BPA). Then the "deregulation" protect their rights and interests the power and transmission lower BPA rates. The Yakama of the electric power industry in the ongoing rule making at markets, tribes saw the need to Nation formed Yakama Power with the passage of the Energy the local, state and federal become part of the marketing and the Cow Creek Band of Policy Act of 1992 and later levels. Tribes also saw the efforts, and to reexamine the Umpqua formed Umpqua Indian orders issued by the Federal opportunities to obtain new and rights of way and facilities Utility Cooperative. Both utilities Energy Regulatory Commission better service providers, provide related to the power grid that continue to serve tribal loads on (FERC) offered both challenges their own electrical service, or crossed their lands. the reservation and utilities in the protection of tribal generate power on their terms. create tribal jobs and strong resources and energy business voices for tribal interests in the opportunities. energy industry and with state and federal entities.

Northwest Tribal Energy Leadership

• Utility-scale owners of large hydropower projects and wind generation projects, other energy resource asset – Yakama Power, Confederated Tribes of the Yakama Nation – Umpqua Indian Utility Cooperative, Cow Creek Band of U.S. DOE & Quinault Indian Nation Planning Umpqua – Energy Keepers, Inc., Confederated Tribes of Salish & Kootenai – Sovereign Power, Spokane Tribe of Indians • Community-scale renewable energy projects, e.g. solar, wind, and biomass – Tulalip Tribes, QualCo Energy, biomass co-generation – Quinault Indian Nation, biomass thermal – Warm Springs K-8 Academy, CTWS, STEM/solar – Tamastcklikt Cultural Center, Confederated Tribes of Umatilla Indian Reservation, utility-scale wind demo • Energy efficiency and conservation projects, for tribal government buildings, commercial, industrial, and residential – Cowlitz Tribe – CSKT & Mission Valley Power – Lower Elwah Klallam Tribe, housing • Energy and clean jobs – capacity development, workforce training, career opportunities, and succession planning Jason Campbell, CEO Sovereign Power – Enterprise owned by Spokane Tribe of Indians

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ATNI Center for Energy Information & Training

• Tribal Energy Resource Guide: This guidebook is dedicated to tribal leaders and tribal energy advocates of past and present who have done so much to exercise sovereignty over our shared energy, environmental, economic, educational, and infrastructure assets in the Pacific Northwest and Indian Country. Link: http://www.atnitribes.org/atni-energy-program • Tribal Energy Workshops for Tribal Leaders – working with state congressional leaders on a formal program • Technical Assistance and partnership – working with our Member Tribes and partners on developing energy projects/opportunities • Summit Series – Building capacity, identifying best practices, supporting project partnerships, and facilitate relationship building

Recent Influence

• ATNI Energy Committee, stand alone committee • Regional and National Tribal Energy Policy Platform • National Tribal Energy Legislation • State Legislative and Regulatory work • Local – city, county, municipal • Private sector partnership

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Recent & Upcoming Work

• Two recent policy summits July 2017— ATNI Energy & Economic Development Summit and August 2017—ATNI Changing Currents Tribal Water Summit • ATNI Annual Convention & ATNI Energy Committee, w/ coordination with ATNI Economic Development and ATNI Natural Resources Committees • National Congress of the American Indian (NCAI) working our resolutions and policy platform • ATNI is not a lobbying organization, at least for Energy issues, pass the heavy lifting to our tribes. • Conituing to support and leverage existing partnerships and serve as a resource for tribes and tribal partners

Contact

ATNI Center for Energy Information & Training ACE IT is a program and service provided by ATNI to support tribal energy Institute for Tribal Energy Partners: resource work. Affiliated Tribes Government, Funders, of Northwest Center for Public Resource Indians Service, Portland Providers, NGOs State University

Direlle Calica, J.D. | Tux-um-shush Director, Institute for Tribal Government, Center for Public Service, Hatfield School of Government, Portland State Univ. & ATNI Energy Program, Policy Advisor Email: [email protected] Phone: 503-913-4693

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4 Chapter 5B—Economic Development: . . . —Presentation Slides

Current Developments in Federal Indian Law 5B–5 Chapter 5B—Economic Development: . . . —Presentation Slides

Current Developments in Federal Indian Law 5B–6 Chapter 5C Creating Economies on Indian Reservations

Professor Robert Miller Sandra Day O’Connor College of Law Arizona State University Phoenix, Arizona

Contents Creating Economies on Indian Reservations ...... 5C–1 Keeping Dollars on Reservations 5C–1 Developing Entrepreneurial Businesses on Reservation ...... 5C–2 Presentation Slides 5C–7 Chapter 5C—Creating Economies on Indian Reservations

Current Developments in Federal Indian Law 5C–ii Chapter 5C—Creating Economies on Indian Reservations

Very few of the 300 Indian reservations in the United States have functioning economies in which reservation residents can be employed, spend their money on reservation, and find adequate housing. In contrast, almost all reservation residents have to travel to distant cities to find banks, businesses where they can engage in necessary and discretionary spending, higher education, livable wage jobs, and quality housing.1 This situation benefits state economies but helps impoverish reservations. In 1994, for example, a tribal official estimated that $0.80 of every dollar Navajos received left the reservation immediately; and studies demonstrate the same problem occurs on other reservations.2 This situation is a disaster for building reservation economies and community stability. It is also a major factor in creating the extreme poverty, unemployment, and the accompanying social issues that most Indian nations face. Tribal governments and tribal communities need to find solutions to these problems. In my opinion, increasing the number of privately and tribally owned small businesses on reservations is a strategy that can help create functioning economies in Indian country, to the maximum extent possible, and that can help to dramatically improve economic conditions on reservations and to sustain tribal communities.3

Keeping dollars on reservations

Reservations rapidly lose the money that residents receive because of the absence of a variety of tribally and privately owned businesses where people can spend their money on goods and services. This leads to the loss of an enormous amount of economic activity and employment that could occur in Indian country. Economists use the word “leakage” to define this situation; where money leaves a local community and economy sooner than is considered optimal.4 Ideally, money should circulate 5-7 times within a community, city, county, or state before it “leaks” away.5 The only solution to this problem seems to be for tribal governments and communities to assist in establishing a substantial number of privately-owned and tribally-owned businesses within their communities to help create economies that can capture the benefits of the consumerism of reservation residents and visitors.

The importance of having an economy and a critical mass of small businesses on reservations is demonstrated by other economic principles. First, every reservation resident has a

1 ROBERT J. MILLER, RESERVATION “CAPITALISM:” ECONOMIC DEVELOPMENT IN INDIAN COUNTRY 2-3, 135-37 (2012); Robert J. Miller, Economic Development in Indian Country: Will Capitalism or Socialism Succeed?, 80 OR. L. REV. 757, 829-30 (2001).

2 RESERVATION “CAPITALISM”, supra note 1, at 136-37.

3 Id. at 4, 155-56.

4 Id. at 4, 136-37.

5 Ron Selden, Economic Development Attitudes Must Change, INDIAN COUNTRY TODAY, June 13, 2001, at A1; Cathy Siegner, Making and Keeping Dollars on Montana Reservations, AM. INDIAN REP., Feb. 1999, at 18.

Current Developments in Federal Indian Law 5C–1 Chapter 5C—Creating Economies on Indian Reservations

certain level of disposable income.6 Even the poorest person has some money to spend. Obviously, if reservation residents would spend most of their income at businesses located on reservations that would help create even more reservation based businesses and jobs, and that would be an enormous benefit to the reservation economy.

The second relevant principle of economics is called the “multiplier effect.” This phrase defines the situation where every dollar that is spent by one person ends up as profit and salary in the hands of another person, whether it is the business owner or an employee or supplier for that business.7 This new person will then also spend that one dollar and pass it on to another person who will also spend it, etc., etc. In this circular fashion, one dollar echoes, or multiplies, throughout an economy and becomes pay, profit, and spending money for a greater number of people as long as that dollar stays within the local economy. The only way for reservation communities to benefit from the multiplier effect and to keep dollars circulating within their economies is to create opportunities for reservation residents and visitors to purchase goods and services at reservation-based businesses. In that way, the entire reservation economy can benefit and grow because of the re-spending of money and the multiplier effect.

Logically, the only way to keep dollars on reservations and circulating in the local economy is if there are a sufficient number of privately and publicly owned businesses offering a variety of goods and services. This situation would help to keep money circulating on a reservation and rotating between businesses, employees, and consumers. The primary answer, then, to building real reservation economies appears to be for tribal governments and Indian communities to create their own businesses and to work to attract private parties to develop and operate businesses to provide a wide variety of goods and services on reservations.8

Developing entrepreneurial businesses on reservation

Governments play a crucial role in developing a private, free market economic system. They protect the public interest, ensure fair competition, maintain law and order, and create laws and judicial systems that help enforce contracts and property rights. Governments create and enforce the rules that ensure a fair system that attracts investors to risk their time and money in a particular location. The stability provided by government encourages people to work to acquire economic rights and to risk their investments within the jurisdictions of those governments. Tribal governments must play this important role for reservation economies. It is important to note, however, that many tribal governments have not yet enacted the kinds of business codes and commercial codes that businesses and banks need before they can operate on reservations. Tribal governments can encourage businesses to locate on reservations by adopting these kinds of laws and creating stable and fair court systems and bureaucracies. In addition, tribes can use

6 PAUL A. SAMUELSON & WILLIAM D. NORDHAUS, ECONOMICS 439-42, 477 (14th ed. 1992).

7 Id.

8 RESERVATION “CAPITALISM”, supra note 1, at 135-39, 155-56; What Tribes Can Do: An Interview with Joseph P. Kalt, AM. INDIAN REP., Mar. 1999, at 16 (stating that there is an explosion of development waiting to happen in the private sector on reservations).

Current Developments in Federal Indian Law 5C–2 Chapter 5C—Creating Economies on Indian Reservations

taxation and regulatory strategies to attract private investments and new businesses to reservations.

Tribal policy makers could also consider lobbying Congress for a stronger federal “Buy Indian” act. The 1910 Buy Indian Act,9 leaves it totally up to the discretion of the Secretary of Interior whether to spend federal funds on “Indian labor” and Indian made products. If the Secretaries of Interior and of Health and Human Services were legally required to spend a set amount of the BIA and IHS budgets on Indian labor and products it would create an enormous incentive for tribal and Indian owned businesses to provide these goods and services and it would assist in creating many more Indian owned and reservation based businesses.

Tribal governments should also enact their own “Buy Indian” acts and should purchase as many goods and services as possible from tribal, reservation-based, and Indian owned businesses.10 This is a common sense, self-preservation idea, because it keeps “Indian money” in the “Indian community” and helps to grow tribal economies. In 1985, the Navajo Nation enacted just such a law.11 Tribal governments could even mandate the expenditure of a certain percentage of annual tribal revenues, or casino revenues for example, on private businesses owned by tribal citizens or other Indians. These kinds of statutory mandates and actions would certainly go a long way towards encouraging and supporting the creation, and operation and expansion, of more privately owned businesses on reservations and assisting in creating real reservation economies.

Tribal governments can also greatly assist the development of Indian-owned businesses by creating an environment that assists reservation residents to start businesses.12 Tribal nations

9 25 U.S.C. § 47.

10 RESERVATION “CAPITALISM”, supra note 1, at 129-30, 144-46.

11 The Navajo Nation Business Opportunity Act, 5 Navajo Nation Code § 201 (2009), states in subsection C & E: “The purpose of this act is to: 1. Promote the economic self-sufficiency of the Navajo Nation by granting ‘first opportunity’ and/or preference in contracting to Navajo and/or Indian owned and operated businesses . . . E. It is the intent of this Act to grant first opportunity and contracting preference to qualified Navajo-owned or Indian-owned businesses for all contracts, subcontracts, grants and subgrants issued by public and private entities within the Navajo Nation.” In the Findings section of this act, the Legislature stated one reason for the law: “Although the Navajo Nation has a population that is approximately 90% Navajo, approximately 76% of the contracts by the Navajo Nation between the years 1994 and 2003 were awarded to non-Navajos . . . .”

12 WHAT CAN TRIBES DO? STRATEGIES AND INSTITUTIONS IN AMERICAN INDIAN ECONOMIC DEVELOPMENT 28-30, 227, 235, 237 (Stephen Cornell & Joseph P. Kalt eds., 1992); THE HARVARD PROJECT ON AMERICAN INDIAN ECONOMIC DEVELOPMENT, THE STATE OF THE NATIVE NATIONS 121-23, 125-30 (2008); David D. Haddock & Robert J. Miller, Can a Sovereign Protect Investors From Itself: Tribal Institutions to Spur Reservation Investment, 8 J. SMALL & EMERGING BUS. L. 173, 201-11 (2004); Miller, Economic Development, supra note 1, at 842-48;

Current Developments in Federal Indian Law 5C–3 Chapter 5C—Creating Economies on Indian Reservations

can work to remedy some of the reasons for the abysmal rate of private business ownership among Indians. For example, the vast majority of privately-owned businesses in the United States are started using family savings, bank loans, or by borrowing money against home equity.13 But most American Indians lack access to these avenues due to historic poverty and unemployment rates, and rarely have home equity due to a nearly non-existent private housing market on most reservations. Consequently, seed money provided by tribal, private, state, and federal loan funds is crucial to alleviate this funding problem.14 Several Indian nations are well aware of this situation and offer tribal citizens business start-up loans.15

Reservations also rarely have role models of successful business owners from which others can learn, and on-reservation businesses where young people can get their first jobs and learn about work and business management. Tribal economic development departments can help address this situation by operating mentoring and training programs to develop entrepreneurs and to help them start businesses. A few organizations already provide this training for individual Indians. In 1992, for example, four tribes created the Oregon Native American Business and Entrepreneurial Network (Onaben) to train individual Indians to draft business plans, acquire financing, and to operate their own business.16 In 2000, the Four Bands Community Fund, a Native community development financial institution (CDFI) that focuses on entrepreneurship and financial literacy, was created on the Cheyenne River Sioux Indian Reservation and has had a significant beneficial impact on that reservation.17 And the Lakota Funds was created as the first native CDFI in 1986 on the Pine Ridge Reservation and has played a major role in assisting economic development on that reservation.18

As mentioned above, tribal governments also need to provide the laws, regulations, and independent court systems that will assist and protect business and property rights. No one will locate a business and risk their time and money on a reservation where the odds against being successful are too great. Indian nations must make reservations fair and reasonable locations for businesses to locate if they expect to attract private investment and build economies.

SAMUELSON & NORDHAUS, supra note 6, at 699, 704 (a key task of development is fostering “an entrepreneurial spirit.”).

13 Miller, Economic Development, supra note 1, at 841.

14 Id. at 841-42, 848-52.

15 Id. at 842.

16 http://onaben.org; RESERVATION “CAPITALISM”, supra note 1, at 128-29, 151-54.

17 http://fourbands.org/about.htm.

18 http://lakotafunds.org/ (Lakota Funds has disbursed over 900 loans since then, $7.2 million, that helped create 1,415 jobs and nearly 500 businesses on or near the reservation, and provided training to over 1,600 artists and over 4,300 aspiring entrepreneurs).

Current Developments in Federal Indian Law 5C–4 Chapter 5C—Creating Economies on Indian Reservations

In conclusion, American Indian governments must do everything they can to develop the entrepreneurial spirit in reservation residents and to ensure that more businesses are located in Indian country. Such businesses will provide jobs and economic activity that will stimulate the development of even more businesses, more jobs, and more economic activity. Then, when there are a sufficient number of tribally and privately-owned businesses operating on a reservation, a functioning economy will develop from the effects of money circulating and re-circulating between reservation consumers and businesses and employees. This is a laudable goal because a functioning economy will make native communities and reservations more sustainable, healthy, and viable when Indian families are able to acquire living wage jobs, adequate housing, and the necessary infrastructure of life on their own reservations.

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Current Developments in Federal Indian Law 5C–6 Chapter 5C—Creating Economies on Indian Reservations

CREATING INDIGENOUS ECONOMIES AND SUSTAINABLE COMMUNITIES

Prof. Robert J. Miller (Eastern Shawnee) Sandra Day O’Connor College of Law, ASU Faculty Director, Rosette LLP American Indian Economic Development Program Navajo Nation Council of Economic Advisors

Traditional North American Indian property regimes & rights • Successfully supported for centuries with agriculture, hunting & fishing • Private & community property rights • Trade networks & economic systems • Intellectual property rights

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Constitution 1 Chapter 5C—Creating Economies on Indian Reservations

BUSINESS OWNERSHIP PER CAPITA BUSINESSES PER THOUSAND POPULATION STATE OF OREGON

90 81.8

70 56.96 WHITE 60

50 BLACK

40 HISPANIC 28.37 30 ASIAN/PI 27.86 14.3 20 NATIVE 10 AMERICAN

0 RATE/1,000

Individual & Community Benefits

• Earned Income • Containing “Leakage” • Benefiting from the “Multiplier Effect” • Employment and Training • Community cohesion • Family stability • Long term perspective

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Constitution 2 Chapter 5C—Creating Economies on Indian Reservations

Governing institutions matter Effective governance creates environments in which individuals (tribal citizens etc.) will invest time, ideas & money

What does effective governance involve?

Stability in the rules & laws Separation of politics from business management Effective and non‐politicized dispute resolution A bureaucracy that can get things done

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Constitution 3 Chapter 5C—Creating Economies on Indian Reservations

Potential

• Poverty is not an Indian cultural trait • Improved education & health levels • Tribal gov’ts – to assist & be clients – “Buy Indian Acts” • Onaben, Lakota Fund, 4 Bands Comm. Fund • Multiplier effect & stop “leakage” (2000 Montana tribal study)

Current Developments in Federal Indian Law 5C–10

Constitution 4 Chapter 5C—Creating Economies on Indian Reservations

Current Developments in Federal Indian Law 5C–11 Chapter 5C—Creating Economies on Indian Reservations

Current Developments in Federal Indian Law 5C–12 Chapter 6 The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides

The Honorable Cheryl Fairbanks Attorney at Law Cedar Crest, New Mexico Chapter 6—The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides

Current Developments in Federal Indian Law 6–ii 9/11/2017

Chapter 6—The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides

The SHIFT: Tribal Sovereignty and Peacemaking Courts

Cheryl Demmert Fairbanks Oregon Indian Law Section CLE-2017 Tribal Courts and Peace Circles

The Shift….and the ripple effect…..

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 S: spiritual  H:holistic healing  I: issue focused  F: facilitated discussion  T: transition

SHIFT:

4  S: Spiritual-where everyone has a chance to Speak and silence is ok.  H:Holistic healing-a Holistic approach moving to Health and wellness  I: Issue focused-be gentle on the person and tough on the Issue; Indigenous wisdom; Indian core values and Indian solutions.  F: Facilitated discussion; Family and community Focused; Fundamental Fairness;  T: Transition to change; Transformation; Time is honored; Team approach

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Shifting from….Historical trauma:

 is cumulative emotional and  psychological wounding  over the lifespan and across generations,  emanating from massive group trauma.  Native Americans have, for over 500 years,  endured physical, emotional, social, and spiritual genocide  from European and American colonialist policy.

Historical Trauma cont.:

 Contemporary Native American life has adapted,  such that, many are healthy and economically self- sufficient.  Yet a significant proportion of Native people  are not faring as well.

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HISTORICAL TRAUMA:

 Domestic violence and physical and sexual assault  are three-and-a-half times higher than the national average  in Native American communities;  however, this number may be low,  as many assaults are not reported (Sue & Sue, 2012).

Breakdown of the family:

• the breakdown in Native American families • due to the forced removal of Native American children • can be seen as the reason for the high number of child abuse • and domestic violence incidents reported in these families. Cole (2006)

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More…

 Native American children are one of the most overrepresented groups in the care of child protective services (Hill, 2008).  fewer Native Americans have a high school education than the total U.S. population;  an even smaller percentage has obtained a bachelor’s degree:  11% compared with 24% of the total population.

Statistics:

 Almost 26% of Native Americans live in poverty  compared to 12% for the entire U.S. population (U.S. Census Bureau, 2006).  Native Americans residing on reservations  have double the unemployment rate  compared to the rest of the U.S. population (U.S. Census Bureau, 2006).

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ICWA old law; old patterns; same story:

 out-of-home placement of American Indian and Alaska Native children  remains significantly higher than the out-of-home placement of non-Native children  and is disproportionate to the percentage of Native

youth in the general population. -

Should we continue doing more of the same?

 …continuing to do the same thing but expecting different results:

INSANITY

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5 guiding principles:

1. We have been facing the wrong way

2. Understanding the impact of federal policies and the impact on Native America

3. Understanding the significance of oral tradition and Native American language as the common law of Tribes 4. Re-educate the educated 5. A call for consensus, cooperation, comity and unity

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UNIVERSAL Native PRINCIPLES: 15  Keep our language  Respect for Self, Elders and Others  Kindness, Patience, Prayer and Spirituality  Pride in children, elders, family, and traditions is found in love, caring and giving  Be Strong in Mind, Body and Spirit  Humor — Indian humor  Hold Each Other Up-support for our people  Listen Well and with Respect  Speak with Care and Respect  Respect for the land, earth and universe  Reverence for Our Creator  Live in Peace and Harmony  Be strong and Have Courage and practice Humility

Core Values for SILC Fall 2015

 Integrity: Be true to your word, with clients, colleagues and the Court.  Diligence/Hard Work: Go the whole distance; be careful and thorough.  “Warrior Spirit:” Be brave, confident and persistent in your representation. Stay balanced and happy. Be resilient, and adapt.  Respect: Affirm others. Use good manners, and listen well. Bring love and empathy to your interactions. Be positive, and pursue camaraderie with all parties.  Humility: Be authentic, and true to yourself. Resolve conflicts to preserve relationships.

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Teachings of the seven grandfathers:

 To cherish knowledge is to know wisdom; To know love is to know peace; To honor all of Creation is to have respect; Bravery is to face the foe with integrity; Honesty in facing a situation is to be brave; Humility is to know your self as a sacred part of Creation; Truth is to know all of these things

Turn around…..SHIFT:

18  Placing value on our ways, our traditions, culture and way of life  We have been looking to the outside for answers …  It’s time to turn around—the shift---  And look within our respective tribal communities  For the answers  Draw upon tribal values, traditions and law in a contemporary context

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1. We have been facing the wrong way….

19  A replication society - Adoption of federal and state court models

 The “be-like” factor  Our courts have been strongly criticized for this:  A pale replication of American justice-in both conception and operation some of the tribal courts are little more than pale copies of the white system. All remedies to their operational problems are directed toward making them better copies. ~ Samuel J. Brakel

2. Understanding the impact of failed federal policies: 20

Designed to:  Assimilate  And or  Terminate

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An overview of the policies:

21  Sovereignty intact---treaty making era  Removal-the forced removal of Indian people from their homelands-1838-forced migration of 12,000 Cherokees—4,000 perished—known as the “trail of tears; YAN, Choctaw-loss of children, elders and total families  Reservation-designed to civilize the Indian-isolated land base;-use of military and civilian agents; destroyed an Indian way of life and US obtained major land holdings. Courts of Indian Offenses were authorized;  Allotment-160 acres-everyone would be a farmer; major decline in total amount of Indian land and served to justify the non-Indian take over of Indian land;  IRA-model codes and boiler plate constitutions; replaced traditional governments; Aunt Naomi—”the polls are open”!  Termination-P.L. 280-extended state civil and criminal jurisdiction into five states; enhanced state role; Loss of language; Movement to the cities—relocation; ICRA; Indians are the most regulated citizens  Self-determination-P.L. 93-638—Santa Fe Indian School; Mississippi Band of Choctaw;  Self-governance-revitalization of traditional governments, language and culture;

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3. Significance of oral tradition:

• Using custom is essential for the cultural survival of Indian people and nations • The Indian common law comes directly from the native language and our cultural viewpoint— • It becomes the distinct unique law of each of the Indian tribes. • The elders are valued for their knowledge and wisdom and serve as a resource for the process • The oral tradition—has been the glue that has kept our people together in the face of severe termination policies of the federal government

3. SHIFT to OUR NATIVE LANGUAGE…

 “If we have our Indian language… we will always have the customs and laws of our tribe…” ~David Demmert Sr.

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4. Re-educate the educated

25  Education has always been valued in Indian country.  We must pause and rethink our education and systems…  due to the western education model, many of our indigenous concepts were deliberately destroyed and forbidden  Education was the way to assimilation and termination;  Now it is the greatest tool for the protection and strengthening of tribal sovereignty.  Elders-keepers of the wisdom  Understanding the significance of oral tradition  Never to replicate past termination and assimilation policies

5. SHIFT to: Unity, consensus, cooperation and comity 26  Universal law of respect.  Consensus: A process of decision-making that seeks widespread agreement among group members;  general agreement among the members of a given group or community,  each of which exercises some discretion in decision-making and follow-up action.  Comity: In law, specifically refers to legal reciprocity—  the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation),  particularly by recognizing the validity and effect of their executive, legislative, and judicial acts.  The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction.  Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them.  Unity: is the state of being undivided or unbroken.

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American justice is in crises:

 Interestingly America is looking a traditional Native American processes such as Peacemaking, Sentencing Circles and other dispute resolution processes

 The Native American lens—the traditional dispute resolution process is not “alternative”.

 It has been a way of life for indigenous communities

Family Conferencing ….

28  Pre-litigation/pre –peacemaking tool  Parties agree to meet  Use consensus process  Use similar rules as peacemaking  Very informal  Results in Family Safety and Wellness Agreement  Signed by all parties including Tribal Administration  Administrative process  Non-compliance…parties agree to peacemaking/court

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Indigenous concepts related to peacemaking and traditional dispute resolution: 29  based on a holistic philosophy and the world view of the aboriginal inhabitants of North America.  These systems are guided by the unwritten customary laws,  Traditions and practices that are learned primarily by example and through the oral teachings of tribal elders.  Holistic philosophy is a circle of justice  that connects everyone involved with a problem or conflict on a continuum  with everyone focused on the same center. ~ Ada Pecos Melton –Pueblo of Jemez

Peacemaking?

 Traditional dispute resolution  Not mediation  Formal process  A division of a tribal court  Result is an agreed upon document which requires compliance

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Peacemaking? Why?

 Whenever you have a continuing relationship  No anonymity in Indian country;  Process is critical and lends itself to healing  The law evolves from the process  Language is key  Consensus is necessary  Brings a spiritual element to difficult situations

MBCI: Indigenous law project:

 The Project Goal:

 “Through the process of oral tradition, we are recording the community voice of the Choctaw people by developing a library of indigenous law for future generations.”

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ITI KANA IKBI

 Mississippi Band of Choctaw  The peacemaker  The peacemaking process  Is established by tribal ordinance as a separate court

The peacemaker model:

34  Focuses on process— “making things right” “to repair”  Prayer is used initially and at the ending of process  Both civil and criminal jurisdiction  Use of customary and traditional law  Builds on trust and relationships-to promote healing and restoration  No attorneys representation by extended family or advocate  Talk and discussion are necessary- Native language can be used;  No time limit  The community right may supersede the individual right  Apology to victim , community, clan  Forgiveness—is essential  Enforceable as an order of the court  Can give full faith and credit or comity  Completion---finished; not to be spoken of again

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Choctaw Native American American Chahta okla Community Individualism

Ittibachaffa Cooperation Competition

Ittihalallih Relatedness Autonomy

Choctaw indigenous justice:

• “…it is a way to put back some of our people’s way into this justice system…” ~ Sr. Youth Court Judge Hilda Nickey 2004

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Adaptation of rules:

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Other tribal peacemaker models:

 Seneca Nation of Indians  Chickasaw Nation  Navajo Nation  Alabama-Coushatta Tribe of Texas  Ho-chunk  Pechanga Traditional courts:  Cochiti Pueblo  Taos

Example: Saddle Lake-Higher Indian Cree:

 Affirmation of the Whole-Continuity  Affirmation of the Creator- World  Affirmation of the Community-Nationhood  Law of Harmony  Law of Relationships  Law of Discourse-oral tradition; “good talk”  Law of Truth  Law of Personal Responsibility  Law of Pity  Law of Consequences  Law of Consensus  Law of Fairness and Equity  Law of Duty  Law of History

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Example: Native Hawaiian- Ho’ oponopono :

41  Pule-prayer  Statement of problem/issues  Recognition that injurer and injured are bound together by doing and blaming  Grudge and fault released from the one holding it  Ho’ omalu-put it in the shade—a moment of silence—quieting parties to consider issue at a deeper level

More Ho’ oponopono…

 Injurer and injured must be released-for each feels the pain of the other  Layers of trouble considered from all points of view  Forgiveness  Formal and binding statement-I release you from wrong, thus I may be released from it  The wrong is separated from the person  Pule-prayer of completion

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No appeal:

 Consensus model  May have legal counsel review the agreement and order  In agreement and order---10 day reconsideration  Must be submitted to the court in writing

Peacemaker:

 Any person selected as a Peacemaker  must be approved by the Tribal Council; and  must agree in writing and by oath to serve under the authority of the Peacemaker Code.  Judges and Peacemaker of the Peacemaker Court are  officers of the court and  shall have the same immunities as other judges of other Alabama Coushatta Tribe of Texas courts.

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Kinds of disputes:

 Domestic-family disputes-restitution  Juvenile  Child custody-CAN-per children’s code;  Domestic violence-forgiveness case  Probate-simple; tribal law precedent  Trespass  Property disputes-repatriation case  Commercial transactions  Employee-employer disputes  IDR-“Inter” dispute resolution [within companies/organizations/tribes, etc.]  Criminal  Tribal, state, national and international

The Basket: the weave of tribal sovereignty

 A talking tool—  Brings respect and presence of the tribe  Tears and laughter  It is symmetrical  Mind, body, spirit –the weaver  The tradition of the tribe  Each part of the weave is important to the whole  You are the design  Your input is necessary to the weave  Without your part….it is incomplete and flawed  Represents sovereignty  Used in court/family conferencing/state tribal meetings

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The power of the circle:

 Gathering in a circle is powerful  Allows us to experience each other as equals  Each person is the same distance apart and no one is seated higher than or stands apart from others in the circle  A group of people in a circle become united  The circle has no beginning or no end  Parties who take part in a circle—the energy forms to build resolution  Face to face in a circle—like ripples of water bringing about change!

48 Washtenaw County Peacemaking Court Est. 2013 [a state model]

 Relationships  Responsibility  Respect  Redirection

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What is it?

49  Model created to replace the limitations of an adversarial court system  Replace with a more comprehensive, harmonious and balanced solution that  Integrate the repairing of harm  Healing of relationships  And  Restoration of the individual within their family community

Honors tribal court traditions:

50  Integrates four intrinsic values:  Relationship, Responsibility, Respect and  REDIRECTION

 As a means of resolving conflict and returning balance and harmony to human relationship

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Facilitation:

51  Cases will be facilitated by trained persons from the  DR Center  Agreements made during the peacemaking circles are  BINDING AS A K

Outcomes: [in suitable cases]

52  94% of cases resulted in an agreement from both parties  82% agreed or strongly agreed that the result of the PM meeting were fair as compared to what might have occurred in the court setting  91% agreed or strongly agreed that after hearing everyone talk, the participant had a better understanding of the other person’s perspective  94% agreed to strongly agreed that they would recommend peacemaking to others

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UN Declaration of Rights of Indigenous People:

53  Indigenous peoples have the right to access to and  Prompt decisions through  Just and fair procedures for the  Resolution of conflicts and disputes [with due consideration to the  Customs, traditions, rules and legal systems of the indigenous peoples concerned

Alabama-Coushatta Judicial Symposium

54  “This forum was  an example of how with open minds and good will,  parallel judicial systems can learn from each other--  discovering new approaches to serving communities  and avenues for cooperation.”

~ Honorable William Thorne (Pomo), Utah State Court of Appeals, Speaker at the Alabama-Coushatta Tribe of Texas’ first Tribal-State Judicial Symposium (2011).

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AC State tribal round table

“Tribal Courts are important to community and to nation building. They’re the mechanisms to promote peace.”

~ Judge Joseph Flies-Away Hulapai

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Sovereignty begins at home…. Cheryl Demmert Fairbanks

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Thank you!

 “Gunalchesh.”*

*A Tlingit thank you.

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“Gunalchesh ho’ho’*

*A very big Tlingit thank you!!!!

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31 Chapter 6—The SHIFT: Tribal Sovereignty and Peacemaking Courts—Presentation Slides

Current Developments in Federal Indian Law 6–32 Chapter 7 Diversity Update

Diane Henkels Attorney at Law Newport, Oregon

Jonathan Puente Director of Diversity and Inclusion Oregon State Bar Tigard, Oregon

Contents Diversity & Inclusion in the Oregon Legal Profession 7–1 Oregon State Bar 2014–2016 Diversity Action Plan 7–3 OSB Diversity Action Plan 2016 Implementation Report ...... 7–23 OSB Diversity Action Plan 2015 Implementation Report ...... 7–39 OSB Diversity Action Plan 2014 Implementation Report ...... 7–53 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–ii Chapter 7—Diversity Update

Home 1638 – 1900 – 1960 – 1980 – 2000 – 2015… sponsors/ other 1899 1959 1979 1999 2014 contacts resources

The march toward diversity and inclusion in the legal profession in Oregon and the United States has been slow. Initially, the profession did not include women and people of color; this hampered our nation’s ability to ensure a fair and impartial system of justice. While the Oregon experience has, to a great extent, mirrored the national one, our own legal profession has made substantial progress, especially over the past 40 years. Nevertheless, there is more to be done. We must focus on continuing to advance diversity and inclusion within the profession to make our courts, the practice of law, and our system of justice stronger.

The timeline that follows presents a brief history of the progress toward diversity and inclusion, beginning with the early years of America’s establishment, the creation of a federal government, the founding of Oregon as the 33rd state, and the experience of Oregon’s diverse legal pioneers.

Current Developments in Federal Indian Law 7–1 Chapter 7—Diversity Update

Reverend Martin Luther King, Jr.

Diversity and inclusion mean acknowledging, embracing and valuing the unique contributions our individual backgrounds make to strengthen our legal community, increase access to justice, and promote laws and creative solutions that better serve clients and communities. Diversity includes, but is not limited to: age; culture; disability; ethnicity; gender and gender identity or expression; geographic location; national origin; race; religion; sex; sexual orientation; and socio-economic status.

Home 1638 – 1899 1900 – 1959 1960 – 1979 1980 – 1999 2000 – 2014 2015…

Current Developments in Federal Indian Law 7–2 Chapter 7—Diversity Update

2014 – 2016 DIVERSITY ACTION PLAN

Current Developments in Federal Indian Law 7–3 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–4 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

Diversity and Inclusion: Making Us Stronger

Welcome from the Board of Governors

A diverse bench and bar is vitally important to Oregon’s system of justice. No one has captured the importance of diversity better than U.S. Supreme Court Justice Ruth Bader Ginsberg, who said in a speech in 1998:

A system of justice is the richer for diversity of background and experience. It is the poorer, in terms of appreciating what is at stake and the impact of its judgments, if its members – its lawyers, jurors, and judges – are all cast from the same mold. Michael E. Haglund President, 2013

I am a longtime supporter of the bar’s efforts to promote diversity within the legal profession, and DSDVVLRQDWHDGYRFDWHIRUWKHLPSRUWDQFHRIFXOWXUDOGLYHUVLW\ZLWKLQRXUFRPPXQLW\0\ODZ¿UP Kranovich & Lucero, promotes diversity and equal opportunities for all regardless of race, ethnicity, gender, sexual orientation, and socioeconomic status. Diversity is not merely something we value, it LVZKRZHDUH$GLYHUVHODZ¿UPZRUNLQJZLWKGLYHUVHFOLHQWV,I\RXYLVLWRXUZHEVLWH\RXZLOOVHHWKDW language front and center, with further evidence of our deep commitment to diversity woven throughout.

With this action plan the OSB takes its commitment to diversity front and center, and also weaves it throughout the various programs and services of the bar. It is evidence of our growth as an RUJDQL]DWLRQ:HRQFHKDGDVWDQGDORQH$I¿UPDWLYH$FWLRQ3URJUDP:HQRZKDYHDFRPSUHKHQVLYH plan to make Diversity & Inclusion a part of every program and service we provide. I could not be PRUHSOHDVHGDQGSURXGWKDWWKLVSODQKDVFRPHWRJHWKHUMXVWDV,SUHSDUHWRWDNHRI¿FHDV3UHVLGHQW of the Oregon State Bar. I extend my congratulations to the Diversity Advisory Council and pledge my continued support. Tom Kranovich President, 2014

Cover inspired by the diversity represented in the portraits of the 2011 Convocation on Equality Champions. 1

Current Developments in Federal Indian Law 7–5 Chapter 7—Diversity Update

Overview

Diversity Advisory Council In 2012, the Oregon State Bar (OSB) Board of Governors created a Diversity Advisory Council (DAC) and directed the DAC to develop a recommended Diversity Action Plan by the end of 2013. This document is the product of the work of the Diversity Advisory Council, and contains a three-year Diversity Action Plan that the OSB Board of Governors adopted in November 2013.

Background Toni Kelich To fully achieve the Oregon State Bar’s mission we must ensure our programs, services, and activities Diversity & Inclusion Coordinator are delivered in an inclusive and culturally responsive manner to our diverse bar and community. The OSB Diversity Advisory Council (DAC) will help to promote a systemic, collaborative, and strategic approach to achieve set goals and objectives to enhance the OSB’s interest in advancing diversity and inclusion in the bar.

Charge Promoting access to justice, encouraging respect for the rule of law, increasing the quality of legal services, and developing a diverse and inclusive bar are key components of the OSB’s mission and values. The DAC serves in an advisory capacity to the OSB Executive Director. As stewards and agents of the OSB, the DAC is charged with developing an internal Diversity Action Plan (Plan) to ensure that the OSB’s programs, services, and activities are delivered in an inclusive and culturally responsive manner to our diverse bar and community. Upon approval of the Plan by the Executive Director and Benjamin James Diversity & Inclusion Assistant adoption by the Board of Governors (BOG), the DAC is charged with implementation and ongoing monitoring of the Plan, including measuring progress toward achieving goals and objectives. Also, the DAC advises the Executive Director generally on matters related to diversity and inclusion in all aspects Business Case of the OSB’s mission. for Diversity

A diverse and inclusive Membership bar is necessary to The Executive Director appoints members to the DAC, taking into consideration the need to have attract and retain talented representatives from each department and a diverse and inclusive team. The President of the OSB, at employees and leaders; his or her discretion, may appoint representatives from the BOG to serve as DAC members. effectively serve diverse clients with diverse DAC members are expected to participate in meetings and contribute to the work of the team. needs; understand and adapt to increasingly The OSB Diversity & Inclusion Department provides administrative staff to support the DAC’s activities. diverse local and global markets; devise creative Responsibilities solutions to complex The DAC’s responsibilities include developing a recommended Diversity Action Plan for the OSB that problems; and improve addresses all of the OSB’s departments and mission areas. The DAC is encouraged to address and access to justice, respect PDNHUHFRPPHQGDWLRQVFRQFHUQLQJWKHIROORZLQJLVVXHVDVZHOODVRWKHUVDVWKH\DUHLGHQWL¿HG for the rule of law, and credibility of the legal profession.

Current Developments in Federal Indian Law 7–6 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

• Development of strategies to increase the diversity of OSB staff; • Development of strategies to improve the OSB climate and the retention of diverse staff; • ,GHQWL¿FDWLRQDQGGHYHORSPHQWRIGLYHUVLW\EHVWSUDFWLFHV • ,GHQWL¿FDWLRQRIUHVRXUFHVWRVXSSRUWGLYHUVLW\LQLWLDWLYHVLQFOXGLQJUHVRXUFHVIRUHGXFDWLRQ training, and staff recruitment. • ,GHQWL¿FDWLRQRIUHVRXUFHVWRDVVLVWHPSOR\HHVLQHQKDQFLQJFXOWXUDOSUR¿FLHQF\ZKHQSURYLGLQJ services to diverse customers; • ,GHQWL¿FDWLRQRIUHVRXUFHVWRDVVLVWGHSDUWPHQWVZLWKGLYHUVLW\VWUDWHJLFSODQQLQJ • ,GHQWL¿FDWLRQRIUHVRXUFHVWRH[SDQGFRQWDFWVDQGFRQQHFWLRQVZLWKGLYHUVHFRPPXQLWLHVDQG organizations; • Development of programs and initiatives to promote and support diversity in all of the OSB’s mission areas; Mariann Hyland Director of Diversity & Inclusion • Development of a critical mass of support to bolster attendance at events dedicated to promoting diversity; and OSB Diversity • Improvement of services to diverse bar and community members. & Inclusion The DAC makes recommendations for an OSB Diversity Action Plan no later than the end of its 'H¿QLWLRQ ¿UVW\HDU8SRQDSSURYDODQGDGRSWLRQRIWKH3ODQWKH'$&PRQLWRUVWKH3ODQDQGPHDVXUHVDQG reports on progress toward achieving Plan goals and objectives at least annually. Also, the DAC’s Diversity and inclusion responsibilities include making recommendations concerning the DAC’s charge, membership, and mean acknowledging, responsibilities. embracing, and valuing the unique contributions our individual backgrounds make to Diversity Advisory Council Members strengthen our legal community, increase access to justice, and Judith Baker – Director of Legal Services Programs Linda Kruschke – Director of Legal Publications promote laws and / OLF Executive Director creative solutions that Karen Lee – Director of CLE Seminars better serve clients and Danielle Edwards – Director of Member Services Audrey Matsumonji – Board of Governors communities. Diversity Dawn Evans – Disciplinary Counsel Kay Pulju – Director of Communications includes, but is not / Director of Regulatory Services & Public Services limited to: age; culture; Susan Grabe – Director of Public Affairs disability; ethnicity; Josh Ross – Board of Governors gender and gender Helen Hierschbiel±&KLHI([HFXWLYH2I¿FHU Kateri Walsh – Director of Media Relations identity or expression; Executive Director and New Lawyer Mentoring Program (NLMP) geographic location; Amber Hollister – General Counsel Rod Wegener±&KLHI)LQDQFLDO2I¿FHU national origin; race; Mariann Hyland – Director of Diversity & Inclusion religion; sex; sexual orientation; and socio- Christine Kennedy – Director of Human Resources economic status.

Current Developments in Federal Indian Law 7–7 Chapter 7—Diversity Update

GOAL #1 Increase the diversity of the Oregon bar and bench — Page 5 Strategy 1 – Increase the accuracy of the bar’s diversity demographic membership data Strategy 2 – Develop a diverse pipeline of law students who feel supported, welcomed, and encouraged to practice law in Oregon Strategy 3 – Encourage a diverse applicant pool for judicial appointments Strategy 4 – Ensure the Board of Governors’ judicial appointment recommendations includes candidates who have demonstrated competency in dealing with diverse people and issues GOAL #2 Increase engagement by bar leadership for community outreach — Page 6 Strategy 1 – Increase participation in events hosted by diverse organizations Increase the diversity of the pool of volunteer bar and community members engaged — Page 7 GOAL #3 in OSB activities and leadership Strategy 1 – Increase the diversity of OSB CLE seminar speaker pool Strategy 2 – Increase the diversity of lawyers and community members in Board of Governors appointed volunteer positions and on the Board of Governors Strategy 3 – Increase the diversity of the New Lawyer Mentoring Committee and volunteer mentor pool GOAL #4 Increase bar staff diversity and education, and foster a welcoming and inclusive culture — Page 8 Strategy 1 – Assess the OSB climate and workforce Strategy 2 – Increase outreach to diversify the pool of applicants for vacant positions at the OSB Strategy 3 – Provide educational opportunities for OSB staff GOAL #5 Increase the diversity of OSB contractors, suppliers, vendors, and renters — Page 9 Strategy 1 – Conduct an assessment and implement a process to increase diversity GOAL #6 Foster knowledge, education, and advancement of legislation that increases access to justice — Page 10 Strategy 1 – Increase the participation of all OSB sections in the legislative process Strategy 2 – Increase the coverage of diversity-related subjects in the Capitol Insider newsletter GOAL #7 Expand public and bar member education, outreach, and service — Page 10 Strategy 1 – Increase Access to Justice CLE seminar programs Strategy 2 – Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law 6WUDWHJ\±(QKDQFH&OLHQW$VVLVWDQFH2I¿FHWRPHHWWKHQHHGVRIDGLYHUVHFRPPXQLW\ Strategy 4 – Enhance outreach and services provided to diverse constituents by Discipline and Regulatory Services Strategy 5 – Position the OSB to attract new members by adopting the Uniform Bar Exam Strategy 6 – Develop and sell e-books adapted for use by underserved individuals and communities Strategy 7 – Increase the diversity of the Bar/Press/Broadcasters Council and legal experts available to assist the media Strategy 8 – Enhance outreach to underserved communities regarding the modest means and lawyer referral programs Strategy 9 – Identify and remedy barriers to accessibility experienced by individuals with disabilities who access bar programs, services, activities and premises Increase representation of low income Oregonians and enhance accountability — Page 14 GOAL #8 for services to diverse clients Strategy 1 – Increase funding for The Oregon Law Foundation and the OSB Legal Services Program Strategy 2 – Increase pro bono representation of low income Oregonians Strategy 3 – Enhance legal services provider accountability for serving diverse clients

Current Developments in Federal Indian Law 7–8 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

GOAL #1 Increase the diversity of the Oregon bar and bench

Strategy 1 – Increase the accuracy of the bar’s diversity demographic membership data

Action Items Target Measures Lead Timeline 1.1 Require bar members to update their Develop and implement a mandatory online Executive Director 2014 – Develop demographic information or decline to demographic data updating mechanism in process report this information when they log into 2014; 75% of bar members disclose race/ the member dashboard. ethnicity by 2016. 2015–2016 – Implement process 1.2 Create a marketing campaign to Campaign developed and launched. Director of 2014 encourage bar members to disclose their Communications race and/or ethnicity. & Public Services; Director of Diversity & Inclusion

Strategy 2 – Develop a diverse pipeline of law students who feel supported, welcomed, and encouraged to practice law in Oregon

Action Items Target Measures Lead Timeline 2.1 Expand the OLIO orientation 1L Revised program and criteria used in 2014. Director of Diversity 2014 eligibility criteria and program to address & Inclusion multiple dimensions of diversity consistent with the bar’s diversity and inclusion GH¿QLWLRQ 2.2 Increase the number of 1L program Develop baseline data after new eligibility Director of Diversity 2014 – Develop participants. criteria is established in 2014. & Inclusion baseline 2.3 Support and encourage OLIO 35% of OLIO Orientation participants who Director of Diversity Yearly for orientation participants to take the Oregon graduate from law school become Oregon & Inclusion 2014–2016 bar exam and practice in Oregon. bar members by April of the year after they graduate. 2.4 Annually award six bar exam grants Bar exam passage rate for recipients meets Director of Diversity Yearly for and an MBE study course to pipeline or exceeds overall bar exam passage rates. & Inclusion 2014–2016 students. Gather baseline data in 2015 to determine what percentage of program participants who graduated from law school in 2014 became OSB members and obtained employment in Oregon. 2.5 Award eight $2,000 scholarships to 100% of scholarship recipients graduate Director of Diversity Yearly for support students in the pipeline enrolled in from law school. & Inclusion 2014–2016 Oregon law schools. Gather baseline data in 2015 to determine what percentage of program participants who graduated from law school in 2014 became OSB members and obtained employment in Oregon. 5

Current Developments in Federal Indian Law 7–9 Chapter 7—Diversity Update

Action Items Target Measures Lead Timeline 2.6 Assist students in exploring and 75% of program participant survey Director of Diversity Yearly for obtaining employment by sponsoring an respondents indicate the program enhanced & Inclusion 2014–2016 annual employment retreat. their skills for seeking employment. 2.7 Provide 14 annual summer clerkship All stipends awarded are utilized by the 14 Director of Diversity Yearly for stipends to subsidize the wages of recipients. & Inclusion 2014–2016 VWXGHQWVZKR¿QGHPSOR\PHQWLQ2UHJRQ 75% of program participant survey UHVSRQGHQWVUHSRUWWKHH[SHULHQFHDI¿UPHG or increased their interest in practicing law in Oregon.

Gather baseline data in 2015 to determine what percentage of program participants who graduated from law school in 2014 became OSB members and obtained employment in Oregon. 2.8 Award six grants annually to fund All fellowships awarded are utilized by the Director of Diversity Yearly for students in a public employment fellowship. recipients. & Inclusion 2014–2016

75% of program participant survey UHVSRQGHQWVUHSRUWWKHH[SHULHQFHDI¿UPHG or increased their interest in practicing law in Oregon.

Gather baseline data in 2015 to determine what percentage of program participants who graduated from law school in 2014 became OSB members and obtained employment in Oregon. 2.9 Establish and implement a Rural Develop baseline data addressing student Director of Diversity 2015–2016 Opportunity Fellowship and develop and employment site demographics. & Inclusion a statewide network of potential rural employers. Establish four rural employment sites for 2016.

Strategy 3 – Encourage a diverse applicant pool for judicial appointments

Action Items Target Measures Lead Timeline 3.1 Engage in outreach to sections, All section chairs and specialty bar leaders Director of Public For each judicial specialty bars, and bar leaders to QRWL¿HGRIMXGLFLDOYDFDQFLHV Affairs vacancy 2014–2016 encourage candidates interested in serving to apply.

Current Developments in Federal Indian Law 7–10 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

Strategy 4 – Ensure the Board of Governors’ judicial appointment recommendations includes candidates who have demonstrated competency in dealing with diverse people and issues

Action Items Target Measures Lead Timeline 4.1 Ask all applicants to address diversity At least one interview question focuses on Director of Public For each judicial as a key issue during the Board of diversity. Affairs vacancy 2014–2016 Governors interview portion of the screening process. 4.2 Ensure that a diverse group of people Diverse members are included in the Director of Public For each judicial are engaged in the interviewing process. committee conducting interviews. Affairs vacancy 2014–2016

GOAL #2 Increase engagement by bar leadership for community outreach

Strategy 1 – Increase participation in events hosted by diverse organizations

Action Items Target Measures Lead Timeline 1.1 Ensure a strong Board of Governors Each Board of Governors member attends Executive Director; Yearly for and bar leadership presence at two diverse law-related events per year; Board of Governors 2014–2016 events hosted by diverse law-related bar directors attend at least two events per organizations, such as the specialty year. bars, MBA, Campaign for Equal Justice, Classroom Law Project, etc. 1.2 Sponsor one major event annually 3XUFKDVHDQG¿OODWDEOHZLWKEDUOHDGHUV Executive Yearly for hosted by each of Oregon’s specialty Director; Board of 2014–2016 bars. Governors; Director of Diversity & Inclusion 1.3 Ensure a presence at events Board of Governors members and bar Executive Director; Yearly for hosted by diverse community-based directors attend at least one event per year. Board of Governors 2014–2016 organizations. 1.4 The OSB sponsors three major 3XUFKDVHDQG¿OODWDEOHZLWKEDUOHDGHUV Executive Director; Yearly for events hosted by diverse community- Board of Governors 2014–2016 based organizations annually. 1.5 Develop relationships with diverse Develop an outreach program with Executive Yearly for community organizations to address measuarable objectives in 2015. Director; Board of 2015–2016 issues of equity and access to justice. Governors; Director Implement outreach program beginning in of Diversity & 2016. Inclusion

Strategy 3 – Provide educational opportunities for OSB staff

Current Developments in Federal Indian Law 7–11 Chapter 7—Diversity Update

GOAL #3 Increase the diversity of the pool of volunteer bar and community members engaged in OSB activities and leadership

Strategy 1 – Increase the diversity of OSB CLE seminar speaker pool

Action Items Target Measures Lead Timeline 1.1 Develop a process to evaluate Baseline data gathered. Director of Member 2014 the diversity of section CLE seminar Services speakers. 1.2 Encourage and provide resources for Incentives developed and implemented in Director of Member Yearly for OSB sections to diversify their executive \HDURQHEDVHOLQHGDWDDQGVSHFL¿FWDUJHW Services 2014–2016 committee leadership and CLE seminar measure developed based on baseline speaker pool. Enhanced marketing data. and highlighting programs with diverse speakers, etc. 1.3 Sponsor low cost CLE seminar 25% of program participants become a Director of CLE Yearly for speaker training workshops marketed to CLE seminar speaker within one year after Seminars; Director 2014–2016 diverse bar members to increase the pool attending workshop. of Diversity & of diverse speakers. Inclusion 1.4 Conduct targeted outreach to An annual increase in the number of Director of CLE Yearly for specialty bars and diverse bar members CLE seminar speakers from historically Seminars; Director 2014–2016 to recruit CLE seminar speakers. underrepresented groups. of Diversity & Inclusion

Strategy 2 – Increase the diversity of lawyers and community members in Board of Governors appointed volunteer positions and on the Board of Governors

Action Items Target Measures Lead Timeline 2.1 Revise the lawyer and non-lawyer Form developed to determine the diversity Director of Member 2014 – Revise and volunteer application form to request of the applicant pool. Services implement new form diversity demographic information. 2015 – Develop baseline data 2.2 Collaborate with the Board of The representation of volunteer lawyers Director of Member Yearly Governors and Board Development DQGQRQODZ\HUVLVUHÀHFWLYHRIWKHLU Services; Board Committee to conduct targeted outreach representation in the bar and Oregon. of Governors to increase the pool of diverse lawyers members and non-lawyers for volunteer positions. 2.3 Collaborate with the Board of An increase in candidates from historically Director of Member Yearly for Governors and Board Development underrepresented groups serving on Services; Board 2014–2016 Committee to increase the diversity of the Board of Governors, including large of Governors leaders running for election and serving ¿UPSUDFWLWLRQHUVDQGUDFLDODQGHWKQLF members on the Board of Governors. minorities.

Current Developments in Federal Indian Law 7–12 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

Strategy 3 – Increase the diversity of the New Lawyer Mentoring Committee and volunteer mentor pool

Action Items Target Measures Lead Timeline 3.1 Conduct outreach where 3DUWLFLSDQWVDUHUHÀHFWLYHRIWKH NLMP Director; Yearly for underrepresentation exists to attract demographics of the bar’s membership. Director of Member 2014–2016 diverse volunteer applicants. Collaborate Services with the specialty bar associations, Members Services Department, and the Board Development Committee to identify diverse candidates. 3.2 Enhance services to support mentors Satisfactory evaluations concerning diverse NLMP Director Yearly for and their diverse mentees, including resources provided. 2014–2016 posting resources on the bar’s website, presenting CLE programming, and incorporating information in the mentoring program newsletter.

GOAL #4 Increase bar staff diversity and education, and foster a welcoming and inclusive culture

Strategy 1 – Assess the OSB climate and workforce

Action Items Target Measures Lead Timeline 1.1 Engage consultants to conduct Baseline data gathered. Director of Human 2014 an assessment and to make Resources; recommendations. Director of Diversity & Inclusion; Board of Governors members 1.2 Develop a process to assess the Process developed in 2016. Executive Director; 2016 workplace culture and climate using an Director of Human anonymous survey tool. Assessment implemented and results Resources; analyzed in 2016. Director of Diversity $VVHVVPHQW¿QGLQJVXVHGWRLQIRUPIXWXUH & Inclusion; goals.

Strategy 2 – Increase outreach to diversify the pool of applicants for vacant positions at the OSB

Action Items Target Measures Lead Timeline 2.1 Track where applicants learned about Baseline data gathered. Director of Human 2014 employment opportunities at the OSB Resources to assess the effectiveness of targeted advertising. 9

Current Developments in Federal Indian Law 7–13 Chapter 7—Diversity Update

Action Items Target Measures Lead Timeline 3.1 Develop a variety of educational 100% of all staff attend at least one Director of Human Yearly for opportunities offered to bar staff on a educational opportunity each year. Resources; 2014–2016 regular basis, and use data from climate Director of Diversity and workforce assessment to determine & Inclusion areas of greatest need.

GOAL #5 Increase the diversity of OSB contractors, suppliers, vendors, and renters

Strategy 1 – Conduct an assessment and implement a process to increase diversity

Action Items Target Measures Lead Timeline 1.1 Assess the diversity of current Baseline data gathered. Chief Financial 2014 contractors, suppliers, and renters, 2I¿FHU and develop a process for tracking and encouraging increased diversity. 1.2 Implement a plan to increase diversity Baseline data will provide guidance Chief Financial 2015 of the OSB’s contractor, supplier, and regarding target measures. 2I¿FHU vendor pool.

1.3 Advertise room availability in diverse One advertisement per year in each Chief Financial Yearly for newspapers, such as The Asian Reporter, publication. 2I¿FHU 2014–2016 The Skanner, The Portland Observer, Just Out, and El Hispanic News. 1.4 Advertise room rental availability on Increase in room rentals by people who saw Chief Financial Yearly for WKHPRQLWRURQWKH¿UVWÀRRURIWKHEDU the monitor. 2I¿FHU 2014–2016 RI¿FHVGXULQJSHDNWLPHVZKHQPHPEHUV of the public are present. 1.5 Increase the diversity of lawyers The representation of outside counsel is Chief Financial Yearly for retained as OSB outside counsel. UHÀHFWLYHRIWKHLUUHSUHVHQWDWLRQLQWKHEDU 2I¿FHU*HQHUDO 2014–2016 Counsel

Current Developments in Federal Indian Law 7–14 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

GOAL #6 Foster knowledge, education, and advancement of legislation that increases access to justice

Strategy 1 – Increase the participation of all OSB sections in the legislative process

Action Items Target Measures Lead Timeline 1.1 Identify sections that have not Baseline data gathered. Director of Public 2014 historically participated in the legislative Affairs process. 1.2 Meet in person with the chair of Sections participate by monitoring one Director of Public Yearly for HDFKVHFWLRQLGHQWL¿HGDVQRWKLVWRULFDOO\ legislative item. Affairs 2014–2016 participating to discuss and promote section engagement with the legislative process.

Strategy 2 – Increase the coverage of diversity-related subjects in the Capitol Insider newsletter

Action Items Target Measures Lead Timeline 2.1 Assess the coverage in past issues Baseline data gathered, which will inform Director of Public 2014 – Develop of the Capitol Insider for inclusion of target measure for future issues. Affairs baseline data diversity-related content, and enhance the diversity of future issues. 2015–2016 – Enhance coverage

GOAL #7 Expand public and bar member education, outreach, and service

Strategy 1 – Increase Access to Justice CLE seminar programs

Action Items Target Measures Lead Timeline 1.1 Develop a process that allows Oregon Four programs are approved and Director of CLE Yearly for attorneys to receive access to justice implemented in year one, six in subsequent Seminars; 2014–2016 CLE credits by attending community years. Director of Diversity events where diversity is discussed in & Inclusion conjunction with a program, class, or theatrical performance. Communicate the process to bar membership through the bar’s website and member communication tools, as well as outreach to local and specialty bars.

Current Developments in Federal Indian Law 7–15 Chapter 7—Diversity Update

Action Items Target Measures Lead Timeline 1.2 Collaborate with Race Talks in Two Race Talk programs are eligible for Director of CLE 2014 Portland to pilot the process of offering access to justice credits. Seminars; CLE credits for attending Race Talks Director of Diversity programs. & Inclusion 1.3 Include the Race: The Power of Positive participant evaluations and yearly Director of CLE Yearly for an Illusion DVD series and panel CLE increase in program usage. Seminars; 2014–2016 speaker presentation as a CLE seminar Director of Diversity available for purchase online. & Inclusion 1.4 Develop and foster more access to Develop baseline data and goals that are Director of CLE Yearly for justice and CLE seminar presenters and informed by the baseline data. Seminars; 2014–2016 programs. Director of Diversity & Inclusion

Strategy 2 – Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law

Action Items Target Measures Lead Timeline 2.1 Identify vulnerable populations Develop and distribute at least two products General Counsel 2014 targeted for exploitation, such as WRLGHQWL¿HGSRSXODWLRQV 2015 – Expand immigrants, and develop and distribute coverage language appropriate outreach materials.

2.2 Enhance outreach to and protection of ,GHQWLI\DQGPHHW\HDUO\ZLWKNH\RI¿FLDOV General Counsel Yearly for vulnerable populations by strengthening from these organizations. 2014–2016 relationships and coordinating enforcement with U.S. Immigration and Customs Enforcement, the Attorney *HQHUDO¶V2I¿FHDQGWKH$PHULFDQ Immigration Lawyers Association. 2.3 Ensure the OSB Unlawful Practice of An attorney from the Department of Justice General Counsel; Yearly for Law Committee has one member from serves on the Committee. Board of Governors 2014–2016 the Department of Justice. members 2.4 Participate in legislatively formed Task Participate in HB 3525 Task Force in General Counsel 2015 Force on Immigration Consultant Fraud Immigration Consultant Fraud. (HB 3525) and assist with drafting of report to the Legislative Assembly.

6WUDWHJ\±(QKDQFH&OLHQW$VVLVWDQFH2I¿FHWRPHHWWKHQHHGVRIDGLYHUVHFRPPXQLW\

Action Items Target Measures Lead Timeline 3.1 Develop a plan to evaluate the Plan developed. General Counsel 2014 accessibility and effectiveness of CAO services in diverse communities.

Current Developments in Federal Indian Law 7–16 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

Action Items Target Measures Lead Timeline 3.2 Implement plan and identify barriers (YDOXDWLRQFRPSOHWH%DUULHUVLGHQWL¿HG General Counsel 2015 to accessibility and effectiveness of CAO services in diverse communities. 3.3 Identify possible solutions to barriers 6ROXWLRQVLGHQWL¿HG)HDVLELOLW\HYDOXDWHG General Counsel 2015 LGHQWL¿HGDQGHYDOXDWHIHDVLELOLW\RI implementation of such solutions. 3.4 Implement at least two solutionis to Solutions implemented. General Counsel 2015-2016 barriers to accessibility.

Strategy 4 – Enhance outreach and services provided to diverse constituents by Discipline and Regulatory Services

Action Items Target Measures Lead Timeline 4.1 Survey individuals involved in the Baseline data gathered. Director of 2014 disciplinary process to assess services. Regulatory Services 4.2 Increase outreach by Disciplinary Review annually the geographic diversity Director of Yearly for Counsel and Regulatory Services to an intended audience of public contacts to Regulatory 2014–2016 bar and community members. Ensure ensure an expanded reach. Services outreach occurs in geographically diverse locations and in underserved communities.

Strategy 5 – Position the OSB to attract new members by adopting the Uniform Bar Exam

Action Items Target Measures Lead Timeline 5.1 Collaborate with the Board of Bar Concept of Uniform Bar Exam submitted Director of 2016 Examiners and others as needed. to Supreme Court for adoptions and Regulatory implementation. Services

Strategy 6 – Develop and sell e-books adapted for use by underserved individuals and communities Action Items Target Measures Lead Timeline 6.1 Start a pilot program to market family Chapters receive a four star rating on Director of Legal 2014–2016 law e-books on Amazon with information Amazon after six months. Publications about lawyer referral and legal services. Promote chapters on the OSB’s member and public websites in 2015-16. 6.2 Expand e-book offerings to consumer Chapters receive a four star rating on Director of Legal 2014–2016 law topics. Amazon after six months. Publications

Promote chapters on the OSB’s member and public websites in 2015-16. 6.3 Expand e-book offerings to other Chapters are published on Amazon and Director of Legal 2015 substantive areas of law in high demand promoted on the OSB’s member and public Publications by consumers. websites.

Current Developments in Federal Indian Law 7–17 Chapter 7—Diversity Update

Action Items Target Measures Lead Timeline 6.4 Translate high-demand e-books into Chapters are published on Amazon and Director of Legal 2016 Spanish. promoted on the OSB’s member and public Publications websites.

Strategy 7 – Increase the diversity of the Bar/Press/Broadcasters Council and legal experts available to assist the media

Action Items Target Measures Lead Timeline 7.1 Recruit and recommend diverse The applicant pool contains diverse NLMP Director Yearly for candidates to serve in the 12 OSB candidates and the Board of Governors 2014–2016 appointed positions and in the six GLYHUVL¿HVWKHDSSRLQWPHQWV television and six print representative positions on the Bar/Press/Broadcasters Council. 7.2 Collaborate with Oregon’s specialty Baseline data gathered in year one; develop NLMP Director 2014 – Develop bars to diversify the pool of legal experts a target measure informed by the baseline baseline data & referred to the media. data in 2015.

Strategy 8 – Enhance outreach to underserved communities regarding the modest means and lawyer referral programs

Action Items Target Measures Lead Timeline 8.1 Develop and implement an Baseline data gathered and assessment Director of 2014 assessment process to identify a strategy developed. Communications & for public outreach using various means Public Services of communication, including individual outreach, public access television, social media, websites, speaker bureaus, and advertising. 8.2 Implement a public outreach plan. Plan implemented and use of programs Director of 2015 increased. Communications & Public Services 8.3 Revise the lawyer referral criteria to A recommendation to the Board of Director of 2014 give individuals seeking assistance the Governors endorsed by the Advisory Communications & opportunity to identify diverse attorneys. Committee on Diversity and Inclusion and Public Services Public Service Advisory Committee.

Current Developments in Federal Indian Law 7–18 Chapter 7—Diversity Update

Oregon State Bar | 2014–2016 Diversity Action Plan

Strategy 9 – Identify and remedy barriers to accessibility experienced by individuals with disabilities who access bar programs, services, activities and premises

Action Items Target Measures Lead Timeline 9.1 Establish an assessment review Assessment team established and General Counsel; 2014 team and implement an assessment assessment of bar’s programs, services, Director of process to identify barriers to accessibility activities and premises complete. Communications & experienced by individuals with Public Services disabilities. 9.2 Develop and implement a plan to Prioritize action items and implement plan General Counsel; Yearly for 2014-16 UHPHG\LGHQWL¿HGDFFHVVLELOLW\EDUULHUV with steady progress toward remedying Director of LGHQWL¿HGEDUULHUV Communications & Public Services 9.3 Develop and implement a process Reporting and feedback process General Counsel; Yearly for 2014-16 to facilitate reporting and tracking of established Director of accessibility concerns. Communicate Communications & with constituents when barriers are Public Services addressed.

GOAL #8 Increase representation of low income Oregonians and enhance accountability for services to diverse clients

Strategy 1 – Increase funding for The Oregon Law Foundation and the OSB Legal Services Program

Action Items Target Measures Lead Timeline 1.1 Increase interest earned by IOLTA Maintain the current IOLTA deposits that OLF Executive 2014 accounts. earn .7% to 1% interest. Director 1.2 Develop and implement marketing tools Marketing tools developed and OLF Executive Ongoing that encourage banks to increase their implemented. Director interest rates.

1.3 Make banks aware that they can get Document developed and distributed OLF Executive 2014 Community Reinvestment Act credit under to banks for use as evidence for Director the investment test for paying a supportive CRA examiners to obtain Community interest rate on IOLTA accounts. Reinvestment Act credit. 1.4 Continue to explore additional funding Increase funding for legal aid to achieve the Director LSP; Yearly for opportunities for the OSB Legal Services goal of having at least two legal aid lawyers Director of Public 2014–2016 Program to increase the amount of revenue per ten thousand low-income clients. Affairs for legal aid.

Current Developments in Federal Indian Law 7–19 Chapter 7—Diversity Update

Strategy 2 – Increase pro bono representation of low income Oregonians

Action Items Target Measures Lead Timeline 2.1 Assess current reported data to Baseline data gathered concerning pro Director of LSP 201 understand trends and develop methods bono participation. to measure pro bono participation with the goal to implement strategies that increase participation. ,QFUHDVHWKHQXPEHURI26%FHUWL¿HGSUR A measurable yearly increase occurs. Director of LSP Yearly for bono programs. 2014–2016

2.3 Ensure the new AMS allows for easier Project scope includes this feature and Director of LSP 2015-2016 and more complete pro bono reporting. testing indicates it is working during development stage.

Strategy 3 – Enhance legal services provider accountability for serving diverse clients

Action Items Target Measures Lead Timeline 3.1 Better measure the cultural Assessment conducted. Director of LSP 2015-2016 responsiveness of Legal Aid Service providers to client community by implementing the ABA standards used to measure key areas: 1) staff diversity; 2) community outreach; and 3) staff training to enhance cultural responsiveness.

Current Developments in Federal Indian Law 7–20 Chapter 7—Diversity Update

Diversity and Inclusion: Making Us Stronger

Values of the Oregon State Bar Mission Integrity The mission of the Integrity is the measure of the bar’s values through its actions. The bar adheres to the Oregon State Bar is highest ethical and professional standards in all of its dealings. to serve justice by promoting respect Fairness for the rule of law, by The bar works to eliminate bias in the justice system and to ensure access to justice improving the quality of for all. legal services, and by increasing Leadership access to justice. The bar actively pursues its mission and promotes and encourages leadership among its members both to the legal profession and the community. Functions of Diversity the Oregon The bar is committed to serving and valuing its diverse community, to advancing State Bar equality in the justice system, and to removing barriers to that system. Justice We are a regulatory agency providing The bar promotes the rule of law as the best means to achieve justice and resolve protection to the public. conflict in a democratic society. We are a partner with Accountability the judicial system. The bar is accountable for its decisions and actions and will be transparent and open We are a professional in communication with its various constituencies. organization. Excellence We are leaders helping Excellence is a fundamental goal in the delivery of bar programs and services. Since lawyers serve a diverse excellence has no boundary, the bar strives for continuous improvement. community. Sustainability We are advocates for The bar encourages education and dialogue on how law impacts the needs access to justice. and interests of future generations relative to the advancement of the science of jurisprudence and improvement of the administration of justice.

Diversity & Inclusion Department Mariann Hyland Toni Kelich 16037 SW Upper Boones Ferry Rd. Director of Diversity & Inclusion Diversity & Inclusion Coordinator PO Box 231935 phone: (503) 431-6337 phone: (503) 431-6338 fax: (503) 598-6938 Tigard, OR 97281-1935 fax: (503) 598-6937 [email protected] [email protected] Benjamin James Diversity & Inclusion Assistant www.osbar.org/diversity phone: (503) 431-6335 fax: (503) 598-6999 April 2014 (Revised January 2016) [email protected]

Current Developments in Federal Indian Law 7–21 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–22 Chapter 7—Diversity Update Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger.

DiversityOregon and Inclusion: Making StateOregon BarState Bar Celebrating YearThree Diversity Action Plan | 2016 Implementation Report

Current Developments in Federal Indian Law 7–23 Chapter 7—Diversity Update

GOAL #1 Increase the diversity of the Oregon bar and bench Strategy 1 – Increase the accuracy of the bar’s diversity demographic membership data Strategy 2 – Develop a diverse pipeline of law students who feel supported, welcomed, and encouraged to practice law in Oregon Strategy 3 – Encourage a diverse applicant pool for judicial appointments Strategy 4 – Ensure the Board of Governors’ judicial appointment recommendations includes candidates who have demonstrated competency in dealing with diverse people and issues GOAL #2 Increase engagement by bar leadership for community outreach Strategy 1 – Increase participation in events hosted by diverse organizations Increase the diversity of the pool of volunteer bar and community GOAL #3 members engaged in OSB activities and leadership Strategy 1 – Increase the diversity of OSB CLE seminar speaker pool Strategy 2 – Increase the diversity of lawyers and community members in Board of Governors appointed volunteer positions and on the Board of Governors Strategy 3 – Increase the diversity of the New Lawyer Mentoring Committee and volunteer mentor pool GOAL #4 Increase bar staff diversity and education, and foster a welcoming and inclusive culture Strategy 1 – Assess the OSB climate and workforce Strategy 2 – Increase outreach to diversify the pool of applicants for vacant positions at the OSB Strategy 3 – Provide educational opportunities for OSB staff GOAL #5 Increase the diversity of OSB contractors, suppliers, vendors, and renters Strategy 1 – Conduct an assessment and implement a process to increase diversity GOAL #6 Foster knowledge, education, and advancement of legislation that increases access to justice Strategy 1 – Increase the participation of all OSB sections in the legislative process Strategy 2 – Increase the coverage of diversity-related subjects in the Capitol Insider newsletter GOAL #7 Expand public and bar member education, outreach, and service Strategy 1 – Increase Access to Justice CLE seminar programs Strategy 2 – Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law Strategy 3 – Enhance Client Assistance Office to meet the needs of a diverse community Strategy 4 – Enhance outreach and services provided to diverse constituents by Discipline and Regulatory Services Strategy 5 – Position the OSB to attract new members by adopting the Uniform Bar Exam Strategy 6 – Develop and sell e-books adapted for use by underserved individuals and communities Strategy 7 – Increase the diversity of the Bar/Press/Broadcasters Council and legal experts available to assist the media Strategy 8 – Enhance outreach to underserved communities regarding the modest means and lawyer referral programs Strategy 9 – Identify and remedy barriers to accessibility experienced by individuals with disabilities who access bar programs, services, activities and premises Increase representation of low income Oregonians and GOAL #8 enhance accountability for services to diverse clients Strategy 1 – Increase funding for The Oregon Law Foundation and the OSB Legal Services Program Strategy 2 – Increase pro bono representation of low income Oregonians Strategy 3 – Enhance legal services provider accountability for serving diverse clients

Current Developments in Federal Indian Law 7–24 Chapter 7—Diversity Update

Diversity and Inclusion: Making Us Stronger

Messages from the CEO/Executive Director and OSB President

2016 marks the third and final year of the Oregon State Bar’s first Diversity Action Plan. I am proud of what the bar has accomplished so far, and I recognize there is still much work to be done. Because our work in this arena is mission critical, it requires strategic vision and thinking. And so, even as we celebrate our successes of the past, we are in the process of developing a new plan for the future. I want to extend special thanks to Christopher Ling and Benjamin James, who worked tirelessly throughout 2016 to maintain the smooth and uninterrupted operation of D&I programs during the search for a new D&I Director. This transition reinforced my belief that success in advancing diversity, equity, and inclusion in Oregon’s bench and bar requires that all bar leaders take responsibility for understanding, valuing, and carrying forward the bar’s efforts. Helen Hierschbiel I look forward to championing this important work in the years to come. Executive Director My theme as OSB President has been equity, inclusion, and access to justice. I believe that if you have an inclusive and equitable society, you will have diversity. Building inclusion and equity starts by looking inward. With the first cycle of the bar’s diversity action plan coming to a close, the hiring of a new D&I Director, and the 20-year anniversary of OLIO just around the corner, the bar is uniquely positioned to take its work in advancing diversity, equity, and inclusion to the next level. I feel fortunate that past BOG members and OSB presidents have valued and promoted diversity, and I am excited to be at the helm during this critical juncture. Michael Levelle President, 2017

Current Developments in Federal Indian Law 7–25 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2016 Implementation Report

Goal #1_ Increase the diversity of the Oregon bar and bench Strategy 1 – Increase the accuracy of the bar’s diversity demographic membership data Strategy 2 – Develop a diverse pipeline of law students who feel supported, welcomed, and encouraged to practice law in Oregon Strategy 3 – Encourage a diverse applicant pool for judicial appointments Strategy 4 – Ensure the Board of Governors’ judicial appointment recommendations include candidates who have demonstrated competency in dealing with diverse people and issues

Accuracy of OSB Member Demographic Data Improved The Oregon State Bar first created an online reporting tool and promoted participation through regular communication channels. Step two, implemented in November 2014, was to require members visiting the bar’s website to either complete the form or decline to participate. After eight weeks, the percentage of bar members listed in our database as “declined to state” dropped significantly across all demographic categories. The effort continued in 2015, with gains in all areas of reporting.

For 2016, the OSB continued to see a reduction in members who “declined to state” in the areas of gender ID, sexual orientation, and disability, compared with 2015, and no change with regard to the percentage of members who “declined to state” with regard to race. The chart below details our progress to date.

Percentage of active members with unknown/declined to state demographic data in their bar record:

Field 12/31/2013 12/31/2014 12/31/2015 12/31/2016 Race 43% 32% 26% 26% Gender ID 93% 58% 43% 41% Sexual Orientation 94% 62% 48% 47% Disability 93% 59% 45% 43% Active Member Count 15,098 15,161 15,178 15,104

Student Pipeline Outreach Efforts Enhanced and Yield Results The OSB wants to see at least 35% of Opportunities for Law in Oregon Orientation participants who graduate from law school become Oregon bar members by April of the year after they graduate. For the 2015 graduating class, 38% of OLIO Orientation participants who graduated law school passed the Oregon bar exam, exceeding our 35% goal. We reached our goal in 2016, with 35% of OLIO Orientation participants who graduated from law school in 2016 passing the Oregon bar exam.

In 2016, the D&I Department awarded six OSB Bar Exam Grants in July and three Bar Exam Grants in February. Our February 2016 bar exam grant recipient pass rate was 67%, exceeding the overall February 2016 bar passage rate of 60%. Our July 2016 bar exam grant recipient pass rate was 50%, which did not meet the overall July 2016 passage rate of 58%, although it is worth noting that Oregon bar exam passage rates in general have dropped over the past two years1.

In 2016, the D&I department awarded ten scholarships.

1 Overall pass rate for 2014 (February and July combined): 65%. For 2015 (combined): 61%. For 2016 (combined): 58%

Current Developments in Federal Indian Law 7–26 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2016 Implementation Report

The D&I Department held its annual OLIO Employment Retreat on January 23, 2016. Survey results showed that 96% of student participants indicated the program enhanced their skill set for seeking employment, exceeding our goal of 75%.

In 2016, the D&I Department awarded nine clerkship stipend awards. Survey results showed that 100% of student participants indicated the clerkship experience affirmed or increased their interest in practicing law in Oregon, exceeding our goal of 75%.

In 2016, the D&I Department awarded six Public Honors Fellowships and one Access to Justice Fellowship to fund law students pursuing summer legal opportunities with public employers and non-profit organizations in Oregon. Survey results showed that 100% of student participants indicated the clerkship experience affirmed or increased their interest in practicing law in Oregon, exceeding our goal of 75%. In 2016, two Rural Opportunities Fellowships were available but were not utilized by law students. The D&I Department will look at how uptake of this opportunity can be improved—or replaced if appropriate—for future years.

Diversifying Applicant Pool for Judicial Appointments

In 2016, the Public Affairs Department actively engaged in outreach to sections, specialty bars, and bar leaders to encourage candidates interested in serving to apply. This engagement included notifying section chairs and specialty bar leaders of judicial vacancies, and ensuring that these vacancy notifications were distributed to members via section leaders. Additionally, a diversity inclusion statement was added to judicial vacancy notices, and coordination with the Oregon Judicial Diversity Coalition (OJDC) on interview process and vacancy coordination for judicial appointments was implemented.

Improved Appellate Judicial Screening Process

The Oregon State Bar participates in the appellate judicial selection process by interviewing appellate judicial candidates and making recommendations for appointment to the governor. The 2017 Appellate Selection Committee rewrote the candidate questions to address diversity in the selection process, and to allow follow-up questions to clarify answers. Per the process initiated in 2014 as part of the Diversity Action Plan, the Appellate Selection Committee continued to reach out to the minority bar associations to share information about the candidate selection process to ensure minority bar input was factored into the process, and identified other stakeholders to participate in the screening process to ensure that diverse viewpoints were considered.

GOAL #2_ Increase engagement by bar leadership for community outreach Strategy 1 – Increase participation in events hosted by diverse organizations

Bar Leaders Expand Engagement with Diverse Communities and Organizations

Members of the Board of Governors continue their engagement with diverse communities by attending and supporting events hosted by diverse specialty bars and community-based organizations. In 2016, the board sponsored 18 events hosted by a variety of specialty and local bar associations, as well as events for broader communities of color in Oregon. At each one of these events, at least one board member and senior staff member (usually the bar president or president-elect and the executive director) attended the event. At several events, multiple board members attended and shared a table with lawyers and students of color, resulting in more one-on-one and personal engagement between bar leaders and individuals from the communities served by the bar.

Current Developments in Federal Indian Law 7–27 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2016 Implementation Report

Media relations staff are part of a small team of Multnomah County leaders working on local outreach regarding the construction of the new Multnomah County Courthouse. In 2016, OSB staff facilitated a focus group of diverse community leaders to discuss what they seek in both the courthouse, and in the justice system more broadly.

GOAL #3_ Increase the diversity of the pool of volunteer bar and community members engaged in OSB activities and leadership

Strategy 1 – Increase the diversity of OSB CLE seminar speaker pool Strategy 2 – Increase the diversity of lawyers and community members in Board of Governors appointed volunteer positions and on the Board of Governors Strategy 3 – Increase the diversity of the New Lawyer Mentoring Committee and volunteer mentor pool

Increased Diversity of CLE Seminar Speakers and Section Leadership

Oregon State Bar sections continued to improve diversity of CLE seminar speakers in 2017. Of the nearly 100 members who presented one or more CLE programs, 13% of the speakers self-identified as belonging to a historically underrepresented group. This reflects a 1% increase from the 2015 data and an overall increase of 6% since implementation of the action plan in 2014.

Diversity of section leadership also increased by 2% over the three-year action plan implementation period, with 16% of current executive committee members representing one or more historically underrepresented groups. The Member Services Department will continue to work with sections to encourage balanced executive committee membership and CLE speaker participation.

Diversity of OSB Volunteers and Board of Governors Members Increased

The BOG Board Development Committee focused on strengthening relationships with minority and specialty bar associations as well as bar-affiliated and community organizations. As a result, the number of diverse candidates interested in volunteering with the OSB increased significantly over the three-year implementation period. In 2016, there were 28 non-lawyer volunteer candidates, 54% self-identified as racial or ethnic minority, 7% indicated they had a disability, and 4% indicated a sexual orientation other than heterosexual.

There were 356 bar members who applied to serve as volunteers in 2016. Of those who provided their sexual orientation, 5% identified as lesbian, gay, or bisexual, which represented a slight increase over 2015 volunteer interest. Of the members who provided their demographic information on the survey, 5% indicated they had a disability that remained steady from the prior year and 8% of the volunteers were from historically underrepresented racial and ethnic groups.

In 2016, there were four new Board of Governors members elected by the membership. Of those, one is female and two are from historically underrepresented racial and ethnic groups.

Current Developments in Federal Indian Law 7–28 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2016 Implementation Report

GOAL #4_ Increase bar staff diversity and education, and foster a welcoming and inclusive culture Strategy 1 – Assess the OSB climate and workforce Strategy 2 – Increase outreach to diversify the pool of applicants for vacant positions at the OSB Strategy 3 – Provide educational opportunities for OSB staff

Continued Assessment, Outreach, and Educational Opportunities for OSB Staff

The Human Resources Department continues to monitor gender and racial diversity throughout bar staff. In 2016, there were eight positions filled in a predominately female Caucasian employee population. Of those hired, 25% were not Caucasian and 50% were male. Of the 15 people who left the bar, 20% were not Caucasian and 27% were male. Racial diversity statistics monitor only those groups monitored by the Metropolitan Statistical Area to allow the bar to have accurate data for comparison. The groups monitored are Caucasian, African American, Asian, Hispanic, and other. At the end of 2016, the makeup of bar staff by race and gender remained relatively consistent. The bar does not monitor other racial groups, employees who represent the LGBTQ community, or employee age category.

Outreach for increasing a diverse applicant pool included surveying other businesses for additional diversity- related media and organizations that accept open-position postings.

In 2016, the bar presented for staff a seminar titled, Implicit Bias. All staff were required to attend the seminar presented by April Lewis and Carol French of Figure 8 Consulting.

GOAL #5_ Increase the diversity of OSB contractors, suppliers, vendors, and renters Strategy 1 – Conduct an assessment and implement a process to increase diversity

OSB Continues Assessment and Plans for Further Data Collection

In 2015, the bar began an assessment of its contractors, suppliers, vendors, and renters and looked for opportunities to increase the diversity of the pool of those individuals and entities with whom it does business.

In 2016, the bar had occasion to hire outside counsel on one new litigation matter, when it was named as an appellee as a result of a cy pres judgment entered in favor of the Legal Services Program. The bar hired a woman partner to represent the bar on appeal.

In 2016, the bar rented part of the first floor of the OSB Center to the Oregon Chapter of the American Lung Association, an organization that shares the bar’s commitment to diversity. According to its guiding principles, the ALA is committed to “overcom[ing] health disparities to ensure universal lung health” and actively seeks to create a “diverse, active, and engaged pool of volunteers.”

General Counsel is formulating a plan to collect data regarding the bar’s contractors, suppliers, vendors, and renters using its new Aptify Contract Management system. In particular, General Counsel will seek data on whether businesses are certified as Oregon Minority Business Enterprises or Women Business Enterprises.

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GOAL #6_ Foster knowledge, education, and advancement of legislation that increases access to justice Strategy 1 – Increase the participation of all OSB sections in the legislative process Strategy 2 – Increase the coverage of diversity-related subjects in the Capitol Insider newsletter

Bar Expands Legislative-Process Education, Outreach, and Focus on Access to Justice

The Public Affairs Department reached out to sections identified as not historically participating in the legislative process to encourage a higher level of awareness and possible engagement.

The Public Affairs Department has worked to include greater coverage of diversity-related issues in the Capitol Insider, including articles on the use of radical and ethnic impact statements for proposed legislation and the efforts to combat notario fraud.

Diversity-related subjects addressed in the Capitol Insider newsletter included articles on Minoru Yasui Day and Japanese Internment Camps, and the racial profiling bill.

GOAL #7_ Expand public and bar member education, outreach, and service Strategy 1 – Increase Access to Justice CLE seminar programs Strategy 2 – Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law Strategy 3 – Enhance Client Assistance Office to meet the needs of a diverse community Strategy 4 – Enhance outreach and services provided to diverse constituents by Discipline and Regulatory Services Strategy 5 – Position the OSB to attract new members by adopting the Uniform Bar Exam Strategy 6 – Develop and sell e-books adapted for use by underserved individuals and communities Strategy 7 – Increase the diversity of the Bar Press Broadcasters Council and legal experts available to assist the media Strategy 8 – Enhance outreach to underserved communities regarding the modest means and lawyer referral programs Strategy 9 – Identify and remedy barriers to accessibility experienced by individuals with disabilities who access bar programs, services, activities, and premises

Diversity Focused CLE Seminar Programs in 2016

Two 2016 programs co-sponsored by the CLE Seminars Department focused on significant diversity and inclusion issues. The Litigation Institute & Retreat featured a presentation by a Japanese female OSB member who represented another Japanese OSB member whose civil rights had been violated 74 years earlier during WWII under Executive Order 9066. The presentation was very well-received; at the conclusion of the presentation the speaker received a standing ovation, a first in the institute’s almost 25-year history.

In the spring of 2016, CLE Seminars and the Multnomah Bar Association explored the possibility of including an implicit bias presentation at the MBA annual awards lunch. Due to scheduling conflicts with the speaker, that presentation was not possible. Instead, the planners focused on enhancing the OSB fall social, which

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traditionally did not include a CLE component. This event evolved into a 90-minute CLE panel discussion on diversity in hiring, followed by a networking reception. Members of the Portland metro area specialty bars and other stakeholders were invited to the event. Almost 100 individuals attended the two events.

Outreach to Diverse Communities Regarding the Unlawful Practice of Law Continues

The bar identified Spanish and Russian-speaking immigrants as vulnerable populations that have been the target of exploitation by illegal immigration consultants. General Counsel’s Office developed an outreach plan to combat such exploitation and began implementation of that plan in partnership with various bar departments and key stakeholders outside the bar. Together we:

• Placed increased focus on community outreach by forming a Public Outreach Subcommittee of the UPL Committee, which is charged to seek out new opportunities to educate and protect vulnerable populations. • Developed print and electronic versions of a Stop Notario Fraud brochure in Russian, which was published on the bar’s website in early 2016. • Distributed an additional 5,000 copies of a Stop Notario Fraud brochure in Spanish through community partners, including the Mexican Consulate and Catholic Charities. Updated the bar’s webpage devoted to notario fraud by adding a Spanish version of the UPL Complaint Form. • Worked with the Oregon Secretary of State to improve enforcement of notario fraud prohibitions, by referring cases involving individuals with notary public certifications to the SOS for review. • After the conclusion of the HB 2225 Legislative Task Force (http://www.oregon.gov/OAC/PDFs/Task_ Force_on_Immigration_Consultant_Fraud_Report_09-2015.pdf), advocated for the successful passage of HB 4125 (2016), which creates significant new protections for victims of notario fraud, and provides increased enforcement opportunities to stop perpetrators of notario fraud. • Presented on UPL and notario fraud at 2015 and 2016 community forums focused on DACA, DAPA, and other immigration relief, which were attended by over 75 social service agencies that serve immigrant communities. • Hosted an informational table at the 2016 Arabic Oregonians Fair and provided UPL materials, thanks to the participation and support of the Diversity & Inclusion interim director. • Included representatives on the UPL Committee from the Oregon Department of Justice and Department of Consumer and Business Services, the Oregon Chapter of the American Immigration Lawyers Association, and local immigration nonprofit organizations to help better coordinate enforcement efforts. Added members from the Multnomah County District Attorney’s Office to develop closer relationships with law enforcement on issues related to notario fraud. • Media Relations staff worked with the UPL Committee and members of AILA to assist with publicity of several particularly troubling cases of notario fraud. The staff also aggressively pushed for widespread media attention of a bar member who was suspended under a BR 3.1 petition, but who was suspected of continuing to accept clients in Spanish-speaking communities. This was late in the year, and is expected to continue into 2017 as the discipline case continues.

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Move Toward Adoption of the Uniform Bar Examination

The Admissions Department—which processes bar applications, conducts character and fitness investigations, administers two bar examinations annually, and supports the work of the Board of Bar Examiners—assisted the BBX in its continued study of the question of whether to recommend that Oregon become a Uniform Bar Examination state. During 2016, the BBX recommended to the Oregon Supreme Court that Oregon become a UBE jurisdiction and began work on formulating an Oregon law component to the admissions process. On October 11, 2016, and December 14, 2016, the Oregon Supreme Court approved amendments to the Rules for Admission that will make Oregon a Uniform Bar Examination jurisdiction effective July 1, 2017. Adoption of the UBE will make it more feasible to attract a wider diversity of lawyers from other jurisdictions who can qualify through the transfer of UBE scores from other states.

Bar Promotes E-Books on Bar’s Website

The Legal Publications Department continues to offer both a Family Law Series and a Consumer Law Series of e-books, which are available for purchase on Amazon. Each e-book includes a Quick Resource Guide in the front with links to lawyer referral and legal services websites. A total of 37 Family Law Series e-books and 5 Consumer Law Series e-books were sold in 2016. Two additional books, one in each series, were purchased but returned. We enhanced the marketing of the availability of this resource in 2015 by adding a Legal Publications page to the bar’s main website with links to each of the e-books on Amazon. We discussed plans with the Communications and Public Services Department to add links to the Legal Publications page from the public pages of the bar’s website, but those links have not yet been added.

Because of the focus on promotion and evaluation of the success of the existing titles, the Legal Publications Department did not expand the e-book library in 2016.

Diversity of the Bar Press Broadcasters Council Assessed as Area for Improvement; Diversity of Legal Experts for Media Increased

We have struggled with the first goal of increasing the diversity of the Council, and should make this a priority for the 2017 appointments process. The type of bar member sought for this group draws from a narrow subset of criminal law practitioners who regularly handle high-profile cases garnering media attention. That said, we could do better in reaching out earlier in the year to encourage a more diverse pool of members to seek appointments. This should be a focus in 2017. The other key area—identifying media spokespersons—has been more successful. Staff continues to expand the list of some 200 members that serve as subject-area experts for media on a wide variety of law-related stories. Staff this year identified three diverse law professors and six new practitioners to add to this always-evolving list. This effort will continue through 2017.

Public Education Project on Lawyer Referral Service and Modest Means Program Launched

In 2016, the OSB launched a new public education project called Legal Q&A, a series of short (2-3 minute) videos featuring lawyer volunteers answering common legal questions. The first clips produced focused on bar services, including the Client Assistance Office, Referral and Information Services, and the Modest Means Program. The latter two were produced in both English and Spanish, and are now available on the OSB website.

RIS continues to work with other bar staff on meeting with specialty bars to discuss OSB services and this action plan, including the new policy encouraging referral service panelists to list their specialty bar membership on their registration forms, which will allow referral staff to better meet client expectations in making referrals. 8

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Bar Continues Its Efforts to Identify and Remedy Barriers to Accessibility Experienced by Individuals with Disabilities Who Access Bar Programs, Services, Activities, and Premises

In 2014, the OSB established the Bar Accessibility Review Team to review and address accessibility issues reported by bar staff, bar members, and members of the public, and to raise awareness of accessibility issues within and around the bar. In 2015, the BART met quarterly to discuss and address barriers to accessibility experienced by individuals with accessibility and maintained a log of accessibility issues discussed and resolved throughout the year. The BART undertook an Americans with Disabilities Act self-evaluation of the bar’s services and programs. The evaluation process included a survey of all members who self-identified as experiencing a disability and is included as a link on the bar’s ADA webpage to allow others to complete the survey and provide ongoing feedback.

As a result of the self-evaluation process, the bar designated an ADA Coordinator, and published its ADA Notice and Grievance Procedures on the bar’s website. The ADA Notice is also present in the bar’s second floor lobby, and in conference rooms, to help educate individuals about the availability of accommodations.

In 2015, the bar’s webmaster attended a day-long training on advanced methods for ensuring online materials are accessible to people with disabilities. Multiple bar staff also attended Adobe software trainings, with follow- up instructions on how to save documents in Adobe format so they work with screen readers. The Creative Services Department worked with software vendor Survey Monkey to improve the accessibility of OSB surveys, including one sent to all bar members who have self-identified as having a disability. The BART is using the survey results for planning purposes.

In 2015, all bar staff attended a two-part mandatory ADA training to educate them on the requirements of the Act. This training was video recorded, and is required to be viewed by all new hires. The first training was hosted by the bar’s ADA Coordinator, and focused on ADA basics. The second training was provided by a third party trainer and focused on welcoming individuals with disabilities to the bar.

In early 2016, the BART published the bar’s self-evaluation under the ADA. The BART continues to meet quarterly to discuss and address barriers to accessibility in the bar’s services, programs, and physical locations.

To increase the accessibility of section events, the Member Services Department published Section Leadership Guidelines on the topic of accessibility. To improve the accessibility of the OSB Center to individuals with disabilities, the BOG voted to designate the Member Room as a Member Health Room, to be used by persons visiting the bar for official business with health needs (including lactating mothers). The Member Health Room offers a private space, complete with handwashing station and locking door.

The bar’s project to make its website fully accessible continues to progress. That involves both reviewing and updating materials on the public and member sites, and working with the sections as their individual websites are migrated to the bar’s WordPress platform. As of the end of 2016, 26 section websites have been transitioned to the bar, with Workers Compensation the latest site to launch: https://workerscomp.osbar. org/. Another four WordPress sites have been developed and are in review by those sections, and the goal by year end is to transfer six sites that are currently on the public WordPress site over to the OSB platform. Discussions have begun with the five remaining sections that will be transferred in 2017.

In 2016, the BART has worked with Admissions to publicize accommodations related to the bar exam and to prepare training materials specifically targeted to those persons—bar staff, as a general rule—who serve as proctors in modified testing environments. Admissions is also working on facilities to accommodate nursing mothers during the test.

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The CLE Seminars Department likewise continues to focus on accessibility issues. The bar is developing a continuing education program on ADA accommodations that will be helpful to members as they assess their own obligations to clients under the law. CLE Seminars focuses continuously on increasing the diversity of CLE speakers.

The Client Assistance Office and General Counsel continue to provide accommodations to individuals with disabilities during the disciplinary complaint intake process. Accommodations have included in person meetings, the opportunity to voice record complaints, written confirmation of verbal complaints, and extensions of time.

GOAL #8_ Increase representation of low income Oregonians and enhance accountability for services to diverse clients

Strategy 1 – Increase funding for the Oregon Law Foundation and the OSB Legal Services Program Strategy 2 – Increase pro bono representation of low income Oregonians Strategy 3 – Enhance legal services provider accountability for serving diverse clients

Goals Met for IOLTA Account Interest Rates

Although some banks entered and exited the Leadership Bank Program in 2016, the Oregon Law Foundation maintained the total number of Leadership Banks providing interest between 0.7% and 1.0% to the OLF. Additionally, OLF met the goal of maintaining approximately 60% of overall IOLTA deposits in OLF Leadership Banks.

In 2016, the first cy pres award funds generated as a result of ORCP 32 O were delivered to the Legal Services Program, a total of $30,760. Class action cy pres awards are not common in Oregon so this kind of modest revenue is expected for most years; however, there is the possibility of occasional significant amounts of funding from cy pres awards. The LSP received an additional $205,000 from the state general fund to provide for legal services.

New Certified Pro Bono Program

In 2016, one new certified pro bono program was added, bringing a new specific practice area and a new client base to the certified pro bono program: refugee disability benefit claims.

New in 2016, attorneys can receive CLE credit for pro bono work completed with certified pro bono programs. Attorneys receive up to six credits for pro bono work per reporting period and two hours of pro bono translates into one hour of CLE credit. This change creates additional incentive for attorneys to seek out certified pro bono programs and for pro bono programs to seek certification.

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Assessment of Legal Service Providers Completed

Legal aid providers are currently assessed using the OSB LSP Standards and Guidelines, which incorporate the American Bar Association’s (ABA) Standards for the Provisions of Civil Legal Aid. The ABA standards already measure the cultural responsiveness of legal aid in the key areas of staff diversity, community outreach, and training. In 2015, the LSP Accountability Self-assessment tool collected information in those key areas and resulted in a number of recommendations to the programs. An outgrowth of the assessment process was the recommendation to merge the Lane County Legal Aid and Advocacy Center into Oregon Law Center. The programs successfully completed their merger at the end of 2016.

Thanks to the Diversity Advisory Council Members

Judith Baker – Director of Legal Services Programs Linda Kruschke – Director of Legal Publications / OLF Executive Director Karen Lee – Director of CLE Seminars Danielle Edwards – Director of Member Services Michael Levelle – Board of Governors Dawn Evans – Disciplinary Counsel Jonathan Puente – Director of Diversity & Inclusion / Director of Regulatory Services Kay Pulju – Director of Communications Susan Grabe – Director of Public Affairs & Public Services Helen Hierschbiel – CEO/Executive Director Kateri Walsh – Director of Media Relations Amber Hollister – General Counsel and New Lawyer Mentoring Program Christine Kennedy – Director of Human Resources Rod Wegener – Chief Financial Officer

Why Diversity and Inclusion Matters A diverse and inclusive bar is necessary to attract and retain talented employees and leaders; effectively serve diverse clients with diverse needs; understand and adapt to increasingly diverse local and global markets; devise creative solutions to complex problems; and improve access to justice, respect for the rule of law, and credibility of the legal profession.

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GLOSSARY

ACRONYMS ACDI ...... Advisory Committee on Diversity and Inclusion MBE ...... Multistate Bar Exam BART ...... Bar Accessibility Review Team NLMP ...... New Lawyers Mentoring Program BBX ...... Board of Bar Examiners OLF ...... The Oregon Law Foundation BOG ...... Board of Governors OLIO ...... Opportunities for Law in Oregon CAO ...... Client Assistance Office OSB ...... Oregon State Bar CRA ...... Community Reinvestment Act RIS ...... Referral and Information Services IOLTA ...... Interest on Lawyers Trust Accounts SOS ...... Secretary of State UBE ...... Uniform Bar Examination LSP ...... Legal Services Program UPL ...... Unlawful Practice of Law MBA ...... Multnomah Bar Association

TERMS AND CONCEPTS

Community Reinvestment Act A United States federal law designed to encourage commercial banks and savings associations to help meet the needs of borrowers in all segments of their communities, including low and moderate income neighborhoods.

Culture: The system of shared beliefs, values, customs, behaviors, and artifacts that the members of society use to cope with their world and with one another, and that are transmitted from generation to generation through learning.

Source: Cultural Proficiency, San José • Evergreen Community College, www.sjeccd.edu

All human beings are programmed by cultural “software” that determines our behavior and attitudes. Once we recognize what our programming teaches us, we have the capacity to control our choices. Gardenswartz & Rowe, www.gardenswartzrowe.com

Cultural Proficiency Cultural proficiency is the level of knowledge-based skills and understanding that is required to successfully interact with and understand people from a variety of cultures. Cultural proficiency requires holding cultural difference in high esteem; a continuing self-assessment of one’s values, beliefs, and biases grounded in cultural humility; an ongoing vigilance toward the dynamics of diversity, difference, and power; and the expansion of knowledge of cultural practices of others. To provide culturally proficient services, both the individual and the institution must be culturally proficient. Five essential elements contribute to an institution’s ability to become more culturally proficient:

1. Valuing diversity 2. Having the capacity for cultural self-assessment 3. Managing the dynamics of difference 4. Having institutionalized cultural knowledge 5. Having developed adaptations to services reflecting an understanding of cultural diversity

These five elements should be manifested at every level of an organization, including policy making, administration, and practice.

Source: Cultural Proficiency, San José • Evergreen Community College, www.sjeccd.edu 12

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Cultural Responsiveness The ability to respond to and interact with people from a variety of different cultures in a culturally proficient manner.

OSB Diversity Demographic Membership Data The bar collects and tracks member diversity demographic data based on the following criteria: sex, gender, race/ethnicity, disability, sexual orientation, and gender identity.

Demonstrated Competency Showing or presenting a combination of knowledge, skills, behaviors, and values that indicate a person is culturally proficient.

OSB Diversity and Inclusion Diversity and inclusion mean acknowledging, embracing, and valuing the unique contributions our individual backgrounds make to strengthen our legal community, increase access to justice, and promote laws and creative solutions that better serve clients and communities. Diversity includes, but is not limited to: age; culture; disability; ethnicity; gender and gender identity or expression; geographic location; national origin; race; religion; sex; sexual orientation; and socio-economic status.

E-Books Books available for purchase electronically for use on a digital reading device.

Low-income Oregonians For the purpose of statewide legal aid services, low-income Oregonians are defined as households with incomes at or lower than 125% of the federal poverty level. This would be $24,413 for a household of four in 2013. Another way to look at it is a single person household who makes minimum wage in Oregon would be ineligible for legal aid because they are over income.

Member Dashboard Customized web page displayed for members logged into the OSB website. The dashboard includes regulatory notifications and provides tools to access and update member record information.

Underserved Populations Low income and other populations who lack access to or the ability to afford legal services.

Vulnerable Populations Communities and people who are disadvantaged and at risk due to socio-economic status, gender, age, disability, geography, language ability, race, ethnicity, or any marginalized status.

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Diversity and Inclusion: Making Us Stronger

Values of the Oregon State Bar Mission Integrity The mission of the Oregon State Bar is Integrity is the measure of the bar’s values through its actions. The bar adheres to the to serve justice by highest ethical and professional standards in all of its dealings. promoting respect Fairness for the rule of law, by The bar works to eliminate bias in the justice system and to ensure access to justice for improving the quality of all. legal services, and by increasing Leadership access to justice. The bar actively pursues its mission and promotes and encourages leadership among its members both to the legal profession and the community. Functions of Diversity the Oregon The bar is committed to serving and valuing its diverse community, to advancing equality in the justice system, and to removing barriers to that system. State Bar Justice We are a regulatory The bar promotes the rule of law as the best means to achieve justice and resolve agency providing conflict in a democratic society. protection to the public. Accountability We are a partner with The bar is accountable for its decisions and actions and will be transparent and open in the judicial system. communication with its various constituencies. We are a professional Excellence organization. Excellence is a fundamental goal in the delivery of bar programs and services. Since excellence has no boundary, the bar strives for continuous improvement. We are leaders helping lawyers serve a diverse Sustainability community. The bar encourages education and dialogue on how law impacts the needs We are advocates for and interests of future generations relative to the advancement of the science of access to justice. jurisprudence and improvement of the administration of justice.

Diversity & Inclusion Department Jonathan Puente Diversity & Inclusion Coordinator 16037 SW Upper Boones Ferry Rd. Director of Diversity & Inclusion phone: (503) 431-6338 PO Box 231935 phone: (503) 431-6337 fax: (503) 598-6938 Tigard, OR 97281-1935 fax: (503)684-1366 [email protected] [email protected] www.osbar.org/diversity April 2017

Current Developments in Federal Indian Law 7–38 Chapter 7—Diversity Update Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger. Diversity and Inclusion: Making us Stronger.

DiversityOregon and Inclusion: Making StateOregon BarState Bar Celebrating YearTwo Diversity Action Plan | 2015 Implementation Report

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Diversity and Inclusion: Making Us Stronger

Messages from the CEO/Executive Director and OSB President

As the new CEO/Executive Director for the Oregon State Bar, I understand that a diverse and inclusive bench and bar are vital components to ensuring access to justice, respect for the rule of the law, the credibility of the legal profession, and the integrity of the justice system. I have been a long-time supporter of the bar’s mission and efforts around diversity and inclusion, starting with my first year at OLIO in 2008. As a member of the Diversity Action Council, I am proud to have participated in development of the Diversity Action Plan and have shared in the celebration of our accomplishments. I look forward to continuing the bar’s strategic work to promote diversity and inclusion within the legal profession, the judicial system, and the bar in 2016 and beyond. I also welcome feedback about our progress and recommendations for the future. I want to thank all of the bar staff and volunteers who worked tirelessly to Helen Hierschbiel advance the OSB mission and goals around diversity and inclusion; this report is Executive Director a reflection of your commitment to and achievements in this important work.

As OSB President my main goal is to challenge our profession to adapt to change and prepare for the future. One aspect of that is the importance of fostering diversity and inclusion within the bar. According to the Pew Research Center’s Next America project we are now in the midst of two different demographic transformations: “Our population is becoming majority non-white at the same time a record share is going gray.” These shifts present both challenges and opportunities, and it is vitally important that the legal profession recognize and address them both. I am honored to serve the OSB during a time of such focused, concrete effort to advance diversity, inclusion, and accessibility for all. R. Ray Heysell President, 2016

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Accuracy of OSB Member Demographic Data Improved The Oregon State Bar first created an online reporting tool and promoted participation through regular communications channels. Step two, implemented in November 2014, was to require members visiting the bar’s website to either complete the form or decline to participate. After eight weeks, the percentage of bar members listed in our database as “declined to state” dropped significantly across all demographic categories. In addition, several categories achieved significant gains in member totals: sexual orientation other than heterosexual (+211); multiple ethnicities (+235); and disability of some type (+129). The effort continued in 2015, with gains in all areas of reporting. The chart below, displaying the declining percentage of active members with unknown/declined to state demographic data in their bar record, details our progress to date.

Field 12/31/2013 12/31/2014 12/31/2015 Race 43% 32% 26% Gender ID 93% 58% 43% Sexual Orientation 94% 62% 48% Disability 93% 59% 45% Active Member Count 15,098 15,161 15,178

Student Pipeline Outreach Efforts Enhanced and Yield Results The OSB wants to see at least 35% of OLIO Orientation participants who graduate from law school become Oregon bar members by April of the year after they graduate. For the 2014 graduating class, 45% of OLIO Orientation participants who graduated law school passed the Oregon bar exam, exceeding our 35% goal. Currently, 25% of OLIO Orientation participants who graduated from law school in 2015 have taken and passed the Oregon bar exam. We will know whether we reach our 35% goal after the February 2016 bar exam results are available.

In 2015 the D&I Department awarded six bar exam grants in July and three bar exam grants in February. Our July 2015 bar exam grant recipients pass rate was 66%, exceeding the overall July 2015 bar pass rate of 60%. Our February bar exam grant recipient pass rate did not meet the overall February 2015 pass rate.

In 2015, ten D&I scholarships were awarded by the department, increasing the number of scholarships awarded in 2014 by two.

The D&I Department held its annual employment retreat on January 25, 2015. Survey results show that 95% of student participants indicated the program enhanced their skill set for seeking employment, exceeding our goal of 75%.

In 2015 the D&I Department awarded thirteen clerkship stipend awards. Survey results show that 85% of student participants indicated the clerkship experience affirmed or increased their interest in practicing law in Oregon, exceeding our goal of 75%. 2

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In 2015, the D&I Department awarded six grants to fund students in public employment fellowships. Survey results show that 85% of student participants indicated the clerkship experience affirmed or increased their interest in practicing law in Oregon, exceeding our goal of 75%.

In 2015, the D&I Department established and implemented its first rural opportunity fellowship. The first fellowship took place in Medford, Oregon. In 2016 the department will increase the number of rural opportunity fellowships to two.

Improved Appellate Judicial Screening Process

The Oregon State Bar participates in the appellate judicial selection process by interviewing appellate judicial candidates and making recommendations for appointment to the governor. In 2015, there were several appellate judicial openings. The OSB Appellate Screening Committee rewrote the candidate questions to address diversity in the selection process and to allow follow up questions to clarify answers. In addition, the Appellate Screening Committee reached out to the minority bar associations to share information about the candidate selection process to ensure minority bar input was factored into the process. Finally, the Appellate Screening Committee identified other stakeholders to participate in the screening process.

GOAL #2_ Increase engagement by bar leadership for community outreach Strategy 1 – Increase participation in events hosted by diverse organizations

Bar Leaders Expand Engagement with Diverse Communities and Organizations

Members of the Board of Governors continue their engagement with diverse communities by attending and supporting events hosted by diverse specialty bars and community-based organizations. In addition, the Board of Governors appointed Tom Kranovich in 2015 to lead an effort to meet with members of the Oregon minority business community to open a conversation about what other efforts the Board could be making to advance diversity and inclusion in the legal profession in Oregon.

GOAL #3_ Increase the diversity of the pool of volunteer bar and community members engaged in OSB activities and leadership

Steps Taken Increase Diversity of CLE Speakers, Section Executive Committees, and OSB Volunteers

Of the 140 members who presented one or more CLE programs in 2015, 12% of the speakers self-identified as belonging to a historically underrepresented group. This reflects a 5% increase from the 2014 data.

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During the section annual meeting planning process executive committees were encouraged to offer a demographically balanced election slate to their membership. To assist them with development of the slate, each executive committee was provided a membership list with demographic information for all section members. The Member Services Department will continue to work with sections to encourage balanced executive committee membership and CLE speaker participation.

In February 2015, the bar sponsored a complimentary CLE seminar speaker training workshop, which it marketed to diverse bar members as a strategy to increase the pool of diverse speakers. A survey will be sent to participants in March 2016 to ascertain the level of speaker engagement.

The BOG Board Development Committee focused on strengthening relationships with minority and specialty bar associations as well as bar affiliated and community organizations. As a result, the number of diverse candidates interested in volunteering with the OSB increased significantly. Of the 22 non-lawyer volunteer candidates, 50% self-identified as a racial or ethnic minority, 18% indicated they had a disability, and 5% self- identified as gender nonconforming.

There were 407 bar members who applied to serve as a volunteer in 2015. Of those who provided their race and ethnicity, 13% are minority, which is an increase of 4% over 2014. Regarding gender, 49% self-identified as female and 51% self-identified as male as compared to 43% and 57% respectively in 2014. Of those who provided their sexual orientation, 4% identified as lesbian, gay, or bisexual, which represented a 2% reduction over 2014 volunteer interest. Of the members who provided their demographic information on the survey, 5% indicated they have a disability, which is a 2% increase from last year.

The Oregon State Bar continued to advance its objective of diversifying the membership on the New Lawyer Mentoring Program Committee. New appointments for 2016 increased both our Hispanic and Asian representation. We also specifically sought a balance in generational representation, with appointment of several senior members of the OSB. Finally, we are striving to reach beyond the Portland Metro area, and with the appointment of a new volunteer from Eugene have begun to begin to expand that geographic reach.

Of particular note this year is an increased focus on partnerships with our specialty bars. Beginning in 2015, we started informing OWLS of new lawyers who requested mentors who are also OWLS members. That organization’s leadership, in turn, is assisting with identifying possible mentors. We see that as a valuable tool for recruiting, but also a way to more closely engage the specialty bars in the greater objectives of the mentoring program. Ultimately, we also expect this to help us attract a more diverse mentoring pool to the New Lawyer Mentoring Program.

OSB Expands Assessment and Staff Education

The Human Resources Department continues to monitor gender and racial diversity of bar staff. From 2014, there were nineteen positions filled and gender diversity remains consistent; however, over the last ten years,

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the male population has increased 10% in a predominantly female employee population. Racial diversity statistics monitor only those groups monitored by the Metropolitan Statistical Area so the bar has accurate data for comparison. The groups monitored are Caucasian, African American, Asian, Hispanic, and other. At the end of 2015, the makeup of bar staff by race remained consistent. The bar does not monitor other racial groups, employees who represent the LGBT community, or an employee’s age category.

Outreach for increasing a diverse applicant pool included a presence at the “Say Hey” events.

In 2015, the bar presented for staff a seminar titled, “Appropriate Workplace Conduct: Anti-Harassment and Anti-Discrimination.” All staff were required to attend the seminar presented by Clarence Belnavis of Fisher & Phillips.

GOAL #5_ Increase the diversity of OSB contractors, suppliers, vendors, and renters Strategy 1 – Conduct an assessment and implement a process to increase diversity

OSB Prepares to Begin Assessment in 2015

In 2015, the bar began its assessment of its contractors, suppliers, vendors, and renters, and looked for opportunities to increase the diversity of those individuals and entities with whom it does business. The bar had occasion to hire outside counsel on one new litigation matter and encouraged its insurance provider to hire a firm that has been a leader in promoting diversity among partners. As a result, counsel who was ultimately hired in the case is an Asian-American woman.

Bar Expands Legislative Process Education, Outreach, and Focus on Access to Justice

The Public Affairs Department reached out to bar sections and committees to provide an overview of the bar’s legislative process as well as to explain how to engage at whatever level is appropriate for the makeup of that particular group. Particular attention was given to sections identified as not historically participating in the legislative process to encourage a higher level of awareness and possible engagement.

Current Developments in Federal Indian Law 7–45 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2015 Implementation Report

Access to Justice CLE Seminar Programs Are Increased

In 2015, access to justice credit was approved for six community events that involved a discussion of diversity in conjunction with a program, class, or theatrical performance. In addition, one Race Talks program was approved for access to justice credits. Finally, there were 18 online sales in 2015 of Race: The Power of an Illusion, a DVD series and CLE panel presentation.

Outreach to Diverse Communities Regarding the Unlawful Practice of Law Is Expanded

The bar identified Russian-speaking immigrants as a vulnerable population that has been the target of exploitation by illegal immigration consultants. General Counsel’s Office developed an outreach plan to combat such exploitation and began implementation of that plan in partnership with various bar departments and key stakeholders outside the bar. We also continued our outreach efforts into the Spanish-speaking immigrant communities in order to combat notario fraud. Together we:

• Developed print and electronic versions of a Stop Notario Fraud brochure in Russian, which will be published in early 2016. • Distributed an additional 5,000 copies of a Stop Notario Fraud brochure in Spanish through community partners, including the Mexican Consulate and Catholic Charities. • Created a new webpage devoted to notario fraud, including English and Spanish language materials: www.osbar.org/upl/notario.html • Worked with the Oregon Secretary of State to update their online materials regarding notario fraud, and include information about notario fraud in the Notary Public training materials: http://sos.oregon.gov/business/Pages/notary-public-notario-publico.aspx • Worked with Oregon Advocacy Commissions to develop a legislative proposal on improving enforcement of prohibition on notario fraud, and reducing harm to victims. Based on this work, Deputy General Counsel was appointed to serve on the Legislative Task Force on Immigration Consultant Fraud, participating in work sessions and drafting a final report and recommendations to the Legislature. www.oregon.gov/OAC/PDFs/Task%20Force%20on%20Immigration%20Consultant%20Fraud%20Report%2009-2015.pdf. • Presented on unlawful practice and notario fraud at a March 2015 community forum titled “Forum for Community Service Providers on DACA and Notario Fraud” attended by over 75 social service agencies that serve immigrant communities. 6

Current Developments in Federal Indian Law 7–46 Chapter 7—Diversity Update

• Worked with American Immigration Lawyers Association Oregon Chapter and Catholic Charities to host Refugee Adjustment Day in November 2015 with Oregon New Lawyer Division volunteers. • Included representatives from the Oregon Department of Justice and Department of Consumer and Business Services on the UPL Committee to help better coordinate enforcement efforts and added members from the Multnomah County District Attorney’s Office to develop closer relationships with law enforcement on issues related to notario fraud.

Discipline and Regulatory Services Enhanced Outreach to Diverse Constituents

2015 was a year of internal transition. There was a turnover in one-quarter of the lawyer staff within the Disciplinary Counsel’s office. This afforded an opportunity to broaden our perspective with an infusion of new lawyers with diverse practice backgrounds and experience. There was also an in-depth examination of the disciplinary process. The ad-hoc Disciplinary System Review Committee (DSRC) poured over the ABA study of Oregon’s discipline system and ultimately made its own recommendations by the end of the calendar year. This is a process that will continue during 2016 as the Board of Governors determines which recommendations to endorse and recommend to the Oregon Supreme Court. Staff served as a resource to the DSRC and engaged in member outreach through participation in continuing legal education opportunities in diverse locations to enhance member awareness of the issues being explored.

Bar Promoted E-Books on Bar’s Website

The Legal Publications Department continues to offer both a Family Law Series and a Consumer Law Series of e-books, which are available for purchase on Amazon. Each e-book includes a Quick Resource Guide in the front with links to lawyer referral and legal services websites. A total of 23 e-books were sold in 2015, primarily from the Family Law Series. However, there have been no reviews or ratings. We enhanced the marketing of the availability of this resource in 2015 by adding a Legal Publications page to the bar’s main website with links to each of the e-books on Amazon. We discussed plans with the Communications and Public Services Department to add links to the Legal Publications page from the Public pages of the bar’s website, but those links have not yet been added.

Because of the focus on promotion and evaluation of the success of the existing titles, the Legal Publications Department did not expand the e-book library in 2015.

Bar Enhanced Public Outreach Efforts to Underserved Communities Regarding Lawyer Referral Service and Modest Means Program

Beginning with the 2015–16 program year, which runs from September 2015 through August 2016, Lawyer Referral Service and Modest Means Program panelists will have the option of indicating whether they are a member of an Oregon-based specialty bar. A primary purpose of this new option is to promote diversity within the legal profession and in the provision of legal services. Membership in these groups is now a searchable referral criteria, similar to foreign language ability and other special services, e.g., credit card acceptance. The organizations that currently qualify, all of which hold membership open to any Oregon lawyer, are: OWLS (Oregon Women Lawyers), OMLA (Oregon Minority Lawyers Association), OC-NBA (Oregon Chapter of the National Bar Association), OAPABA (Oregon Asian-Pacific American Bar Association), OGALLA (Oregon Gay & Lesbian Law Association), and OHBA (Oregon Hispanic Bar Association).

This development will help referral staff to better respond to lawyer referral requests, while remaining consistent with a long-held policy that we do not refer on the basis of sex, gender, religion, national origin,

Current Developments in Federal Indian Law 7–47 Chapter 7—Diversity Update

sexual orientation, or race. It offers an opportunity to help clients find lawyers who are more likely to understand them personally and culturally. In 2015, key bar staff began meeting with the relevant specialty bars to spread the word about the new policy and encourage their members who participate in the LRS and MMP to list their specialty bar memberships.

Bar Continued Its Efforts to Identify and Remedy Barriers to Accessibility Experienced by Individuals with Disabilities Who Access Bar Programs, Services, Activities, and Premises

In 2014, the OSB established the Bar Accessibility Review Team (BART) to review and address accessibility issues reported by bar staff, bar members, and members of the public, and to raise awareness of accessibility issues within and around the bar. In 2015, BART met quarterly to discuss and address barriers to accessibility experienced by individuals with accessibility, and maintained a log of accessibility issues discussed and resolved throughout the year. BART finalized an ADA self-evaluation of the bar’s services and programs, which is under final review. The evaluation process included a survey of all members who self-identified as experiencing a disability, which is available via a link on the bar’s website to allow others to complete the survey.

In 2015, the bar’s web developer attended a day-long training on advanced methods for ensuring online materials are accessible to people with disabilities. Multiple bar staff also attended Adobe software trainings, with follow-up instructions on how to save documents in Adobe format so they work with screen readers. The Creative Services Department worked with software vendor Survey Monkey to improve the accessibility of OSB surveys, including one sent to all bar members who have self-identified as having a disability. BART is using the survey results for planning purposes.

In addition, the Creative Services Department has been working with bar sections to ensure that new sites developed on the WordPress platform are accessible. Seven new sites were completed in 2015 and seven more are currently under construction or set for construction in 2016. Section sites previously built on WordPress using older themes will also be transitioned to new formats in 2016. The Disability Law Section was key in this effort, reviewing its revised site several times with a focus on accessibility issues and providing helpful feedback.

GOAL #8_ Increase representation of low income Oregonians and enhance accountability for services to diverse clients

Efforts to Increase IOLTA Account Interest Rates for Legal Services Funding

The Oregon Law Foundation made a concerted effort to convince banks to increase the amount of interest offered for IOLTA Accounts, which goes directly to fund legal services for low-income Oregonians. The goal in 2015 was to have 60% of total IOLTA deposits earn 0.7% to 1% interest. The Oregon Law Foundation met that goal with 60% of overall IOLTA deposits in OLF Leadership Banks.

Current Developments in Federal Indian Law 7–48 Chapter 7—Diversity Update

In 2015, the OSB continued to explore funding options for legal aid. Two things happened during the 2015 Legislative Session. HB 2700 was passed, allowing 50% of class action cy pres awards to go to the OSB Legal Services Program to fund legal aid. Class action cy pres awards are not common in Oregon so although important legislation it is not expected to provide the funding necessary to achieve the goal of obtaining minimally adequate funding for legal aid. The OSB LSP was also awarded $600,000 from the General Fund to provide funding for legal aid services.

Call to Action: Report Pro Bono Service Hours

Baseline data regarding pro bono participation gathered for approximately nine years shows a fairly steady but low reporting of pro bono hours by attorneys. Without mandatory pro bono reporting it is impossible to measure pro bono activity accurately. OSB staff will continue to encourage voluntary reporting and will work with the new OSB data system to find more efficient ways to encourage pro bono reporting. Since 2013, five new programs have become Certified Pro Bono Programs bringing the total, with required pro bono reporting, to 19. Staff will continue to encourage new programs to become certified. Current programs, under-staffed due to shrinking budgets, do not have the staff support to increase pro bono participation by 10% annually for the foreseeable future.

Assessment of Legal Service Providers (LSP) Underway

Thanks to the Diversity Advisory Council Members

Judith Baker – Director of Legal Services Programs Karen Lee – Director of CLE Seminars / OLF Executive Director Christopher Ling – Acting Director of Diversity & Inclusion Danielle Edwards – Director of Member Services Audrey Matsumonji – Board of Governors Dawn Evans – Disciplinary Counsel Kay Pulju – Director of Communications / Director of Regulatory Services & Public Services Susan Grabe – Director of Public Affairs Josh Ross – Board of Governors Helen Hierschbiel – CEO/Executive Director Kateri Walsh – Director of Media Relations Amber Hollister – General Counsel and New Lawyer Mentoring Program (NLMP) Christine Kennedy – Director of Human Resources Rod Wegener – Chief Financial Officer Linda Kruschke – Director of Legal Publications

Current Developments in Federal Indian Law 7–49 Chapter 7—Diversity Update

GLOSSARY

ACRONYMS

ACDI ...... Advisory Committee on Diversity and Inclusion CAO ...... Client Assistance Office CRA ...... Community Reinvestment Act IOLTA ...... Interest on Lawyers Trust Accounts LSP ...... Legal Services Program MBE ...... Multistate Bar Exam NLMP ...... New Lawyers Mentoring Program OLF ...... The Oregon Law Foundation OLIO ...... Opportunities for Law in Oregon OSB ...... Oregon State Bar

TERMS AND CONCEPTS

Source: Cultural Proficiency, San José • Evergreen Community College, www.sjeccd.edu

These five elements should be manifested at every level of an organization, including policy making, administration, and practice.

Source: Cultural Proficiency, San José • Evergreen Community College, www.sjeccd.edu

Current Developments in Federal Indian Law 7–50 Chapter 7—Diversity Update

Cultural Responsiveness The ability to respond to and interact with people from a variety of different cultures in a culturally proficient manner.

Demonstrated Competency Showing or presenting a combination of knowledge, skills, behaviors, and values that indicate a person is culturally proficient.

E-Books Books available for purchase electronically for use on a digital reading device.

Underserved Populations Low income and other populations who lack access to or the ability to afford legal services.

Current Developments in Federal Indian Law 7–51 Chapter 7—Diversity Update

Diversity and Inclusion: Making Us Stronger

Diversity & Inclusion Department Christopher Ling Benjamin James 16037 SW Upper Boones Ferry Rd. Acting Director of Diversity & Inclusion Assistant PO Box 231935 Diversity & Inclusion phone: (503) 431-6335 fax: (503) 598-6999 Tigard, OR 97281-1935 phone: (503) 431-6338 [email protected] fax: (503) 598-6938 [email protected] www.osbar.org/diversity

April 2016

Current Developments in Federal Indian Law 7–52 Chapter 7—Diversity Update Diversityersity and IInclusion:nclusion: MaMakking us Stronger.Strongerg . DiDiversityiversityy and Incluusion:usion: MMakingaking us SStrongtronger. Div ng us ndd Inc er. DivDi ng us nd Inc er. Div ng us nd Inc er. Div ng us nd Inc er. Oregoni StateOregonegon BarState Bar earOne Diversity Action Plan | 2014 Implementation Report

Current Developments in Federal Indian Law 7–53 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–54 Chapter 7—Diversity Update

Diversity and Inclusion: Making Us Stronger

Messages from the Executive Director and BOG President

To fully achieve the Oregon State Bar’s mission, we must ensure that our programs, services, and activities are delivered in an inclusive and culturally responsive manner to our diverse bar and community. Our goals and strategies for achieving that objective are contained in the Diversity Action Plan 2014–2016 developed by the Diversity Action Council (comprised of senior staff and two members of the Board of Governors) and adopted by the Board of Governors in November 2013. In this report, we are pleased WRFHOHEUDWHWKHDFFRPSOLVKPHQWVRIRXU¿UVW\HDURILPSOHPHQWDWLRQDQG WRDI¿UPRXUFRPPLWPHQWWRFRQWLQXHGSURJUHVVLQWKHFRPLQJ\HDUV7KH Diversity Action Plan is a living document and we will adjust our strategies based on our implementation results. I wish to thank the Diversity Action Council as well as all of the bar staff and volunteers for their hard work Sylvia E. Stevens over the past year and their genuine commitment to our collective efforts. I ecutive irector welcome feedback from the bar and community about our progress to date and recommendations for the future.

As a member of the Board of Governors, I was pleased to see this plan develop and proud to have a role in approving it. Now as OSB President I am delighted to see how much progress has been made over the past year. I am excited to pursue my goal of encouraging lawyers of all backgrounds to volunteer for OSB-related services and governance opportunities, including service on the Board of Governors. I also want to express my appreciation for fellow board members Josh Ross and Audrey Matsumonji, who serve on the Diversity Advisory Committee charged with implementing the plan. This is important work, and I thank them for their dedication.

Why Diversity and Inclusion Matters Richard . Spier A diverse and inclusive bar is necessary to attract and retain talented resident, employees and leaders effectively serve diverse clients with diverse needs understand and adapt to increasingly diverse local and global markets devise creative solutions to comple problems and improve access to justice respect for the rule of law and credibility of the legal profession.

Current Developments in Federal Indian Law 7–55 Chapter 7—Diversity Update

AL Increase the diversity of the regon bar and bench Strategy 1 Increase the accuracy of the bar’s diversity demographic membership data Strategy 2 evelop a diverse pipeline of law students who feel supported, welcomed, and encouraged to practice law in Oregon Strategy 3 Encourage a diverse applicant pool for judicial appointments Strategy Ensure the Board of overnors’ judicial appointment recommendations includes candidates who have demonstrated competency in dealing with diverse people and issues AL Increase engagement by bar leadership for community outreach Strategy 1 Increase participation in events hosted by diverse organiations Increase the diversity of the pool of volunteer bar and community AL members engaged in SB activities and leadership Strategy 1 Increase the diversity of OSB E seminar speaker pool Strategy 2 Increase the diversity of lawyers and community members in Board of overnors appointed volunteer positions and on the Board of overnors Strategy 3 Increase the diversity of the ew awyer entoring ommittee and volunteer mentor pool AL Increase bar staff diversity and education and foster a welcoming and inclusive culture Strategy 1 Assess the OSB climate and workforce Strategy 2 Increase outreach to diversify the pool of applicants for vacant positions at the OSB Strategy 3 Provide educational opportunities for OSB staff AL Increase the diversity of SB contractors suppliers vendors and renters Strategy 1 onduct an assessment and implement a process to increase diversity AL oster knowledge education and advancement of legislation that increases access to justice Strategy 1 Increase the participation of all OSB sections in the legislative process Strategy 2 Increase the coverage of diversity-related subjects in the apitol nsider newsletter AL pand public and bar member education outreach and service Strategy 1 Increase Access to ustice E seminar programs Strategy 2 Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law 6WUDWHJ\±(QKDQFH&OLHQW$VVLVWDQFH2I¿FHWRPHHWWKHQHHGVRIDGLYHUVHFRPPXQLW\ Strategy Enhance outreach and services provided to diverse constituents by iscipline and Regulatory Services Strategy 5 Position the OSB to attract new members by adopting the Uniform Bar Exam Strategy 6 evelop and sell e-books adapted for use by underserved individuals and communities Strategy 7 Increase the diversity of the BarPressBroadcasters ouncil and legal experts available to assist the media Strategy 8 Enhance outreach to underserved communities regarding the modest means and lawyer referral programs Strategy 9 Identify and remedy barriers to accessibility experienced by individuals with disabilities who access bar programs, services, activities and premises Increase representation of low income regonians and AL enhance accountability for services to diverse clients Strategy 1 Increase funding for The Oregon aw Foundation and the OSB egal Services Program Strategy 2 Increase pro bono representation of low income Oregonians Strategy 3 Enhance legal services provider accountability for serving diverse clients

Current Developments in Federal Indian Law 7–56 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

I am conscious The OSB unveiled the Diversity Story Wall of a soul- and received positive sense that press concerning the bar’s appreciation of our lifts me above diverse pioneers and commitment to diversity the narrow, and inclusion. cramping circumstances of my life. The Board of Governors Board Development Committee’s outreach efforts My physical led to historic increases in the diversity of the board membership, including WKHDGGLWLRQRIDPHPEHUIURPDODUJH¿UPDVZHOODVWZRIRUPHUDQGRQH limitations are current specialty bar leaders: forgotten – my world lies upward, the length and the breadth and Per Ramfjord Simon Whang athleen Rastetter Ramn Pagn artner, toel ives ormer resident ormer resident resident the sweep of OAAA O OA the heavens are The OSB established an accessibility review mine. team and provided two mandatory ADA training sessions for all bar staff. Helen Keller, Author and advocate

The OSB enhanced its diversity demographic collection efforts. The rate at which members volunteer to share information about their race and ethnicity increased by 15%.

58% 73%

an an

Current Developments in Federal Indian Law 7–57 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

Goal #1_ Increase the diversity of the regon bar and bench When we have Strategy 1 Increase the accuracy of the bar’s diversity demographic membership data judges who are Strategy 2 evelop a diverse pipeline of law students who feel supported, welcomed, biologically and encouraged to practice law in Oregon Strategy 3 Encourage a diverse applicant pool for judicial appointments different from Strategy Ensure the Board of overnors’ judicial appointment recommendations include candidates who have demonstrated competency in dealing with men, or who diverse people and issues have different cultural Accuracy of SB Member Demographic Data Improved training and 7KH2UHJRQ6WDWH%DU¿UVWFUHDWHGDQRQOLQHUHSRUWLQJWRRODQGSURPRWHG participation through regular communication channels. Step two, uniquely implemented in November 2014, required members logging in to the bar’s website to either complete the form or decline to participate. After different live eight weeks, the percentage of bar members listed in our database experiences, DV³GHFOLQHGWRVWDWH´GURSSHGVLJQL¿FDQWO\DFURVVDOOGHPRJUDSKLF FDWHJRULHV,QDGGLWLRQVHYHUDOFDWHJRULHVDFKLHYHGVLJQL¿FDQWJDLQV they will see in member totals: sexual orientation other than heterosexual (+211); multiple ethnicities (+235); and disability of some type (+129). the law from a different set Student ipeline utreach fforts nhanced and ield esults of values. And In 2014, the Opportunities for Law in Oregon(OLIO) Orientation program that will make eligibility criteria was expanded to include multiple dimensions of diversity, which increased the diversity and number of 1L participants. The OSB a difference wants to see at least 35% of OLIO Orientation participants who graduate in results, and from law school become Oregon bar members by April of the year after they graduate. Currently, 31% of OLIO Orientation participants who how the courts graduated from law school in 2014 have taken and passed the Oregon bar exam. We will know whether we reach our 35% goal after the are perceived. February 2015 bar exam results are available. Regardless, we have Betty Roberts, Oregon PDGHVLJQL¿FDQWSURJUHVVWRZDUGDFKLHYLQJRXUWDUJHWPHDVXUH Supreme Court Justice

on. arco on. ichael . on. ynn R. on. Adrienne . on. arleen ernande cShane akamoto elson Ortega istrict ourt istrict ourt Oregon ourt of ultonamah nty Oregon ourt of Appeals ircuit ourt Appeals

Current Developments in Federal Indian Law 7–58 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GOAL #2_ Increase engagement by bar leadership for community outreach As you discover Strategy 1 Increase participation in events hosted by diverse organiations what strength

Bar Leaders pand ngagement with Diverse Communities you can draw and rganiations from your Members of the Board of Governors and bar staff have expanded their engagement with diverse communities by attending and supporting community events hosted by diverse specialty bars and community-based in this world organizations. In 2015, the board plans to meet with the leadership of selected community organizations to learn about and address access to from which it justice concerns. These outreach efforts help the bar better understand the diversity, strengths, and needs of our membership and the community stands apart, that we serve. look outward as well as inward. Build bridges instead of walls. Sonia Sotomayor, U.S. Supreme Court Justice

Current Developments in Federal Indian Law 7–59 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GOAL #3_ Increase the diversity of the pool of volunteer bar and community We have members engaged in SB activities and leadership

become not a Strategy 1 Increase the diversity of OSB E seminar speaker pool melting pot Strategy 2 Increase the diversity of lawyers and community members in Board of overnors appointed volunteer positions and on the Board of overnors but a beautiful Strategy 3 Increase the diversity of the ew awyer entoring ommittee and mosaic. volunteer mentor pool Different Steps aken Increase Diversity of CL Speakers Section ecutive people, different Committees and SB olunteers beliefs, different Data was gathered for all section sponsored CLE programs beginning in the spring. During the tracking period, 129 members presented one or yearnings, more CLE programs. Of the speakers who provided their demographic different hopes, LQIRUPDWLRQWRWKH26%RIWKHPVHOILGHQWL¿HGDVEHORQJLQJWRD historically underrepresented group. different ,Q\HDURQHWKH0HPEHU6HUYLFHV'HSDUWPHQWDVVLVWHG¿YHVHFWLRQVLQ dreams. open recruitment for diversifying their executive committees. Membership lists were made available to sections during creation of nomination President Jimmy Carter committees and included demographic information. The department will continue to work with sections in subsequent years to encourage balanced executive committee membership.

Current Developments in Federal Indian Law 7–60 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

Both lawyer and non- lawyer volunteer forms ZHUHPRGL¿HGWRFROOHFW demographic information We need every corresponding to the OSB demographic human gift and ¿HOGV9ROXQWHHUVZHUH cannot afford also informed that the demographic information to neglect any they choose to disclose could be used to update gift because the OSB member RIDUWL¿FLDO data. Members of the Board Development barriers of sex Committee worked with VHYHUDOEDUDI¿OLDWHG or race or class and community organizations to recruit diverse candidates for various bar volunteer positions. Eight non-lawyer volunteers applied in 2014; none or national RIWKHPVHOILGHQWL¿HGDVDPLQRULW\IURPDQ\RIWKH¿YHGHPRJUDSKLF categories. In 2014, 268 bar members applied to serve as a volunteer. origin. Of those who provided their race and ethnicity, 9% are minority. In terms Margaret Mead, RIJHQGHUVHOILGHQWL¿HGDVIHPDOHDQGVHOILGHQWL¿HGDVPDOH anthropologist 2IWKRVHZKRSURYLGHGWKHLUVH[XDORULHQWDWLRQLGHQWL¿HGDVOHVELDQ gay, or bisexual. Of the members who provided their demographic information on the survey, 3% indicated they have a disability. Members of the Board Development Committee built relationships with a variety of minority and specialty bar associations to encourage candidates from underrepresented groups to run in the Board of Governors election. As a UHVXOWRIWKHRXWUHDFKWKHFDQGLGDWHGLYHUVLW\LQFUHDVHGVLJQL¿FDQWO\7KH election held in the fall of 2014 and a special BOG appointment made in HDUO\UHVXOWHGLQ¿YHQHZ%RDUGRI*RYHUQRUVPHPEHUVLQFOXGLQJ RQHIURPDODUJHODZ¿UPRQHUDFLDODQGHWKQLFPLQRULW\DQGWZRIHPDOH lawyers.

The Oregon State Bar was successful WKLV\HDULQVLJQL¿FDQWO\GLYHUVLI\LQJ the appointments to the New Lawyer Mentoring Committee, with the addition of three new members, including members of Asian, Indian and Native American descent. One new member in particular works closely with immigrant populations and is already proving to be a valuable resource in our outreach to a more diverse community. Additionally, as staff begin the planning for both New Lawyer Mentoring Program (NLMP) CLE seminars this year, we have discussed including a diverse pool of speakers and topics in both of those programs. An additional goal is to conduct some outreach to specialty bars to begin to establish greater partnerships to enhance the diversity and overall success of the NLMP. 7

Current Developments in Federal Indian Law 7–61 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GOAL #4_ Increase bar staff diversity and education and foster a It is time for welcoming and inclusive culture

parents to teach Strategy 1 Assess the OSB climate and workforce young people Strategy 2 Increase outreach to diversify the pool of applicants for vacant positions at the OSB early on that Strategy 3 Provide educational opportunities for OSB staff in diversity there is beauty SB pands Assessment and Staff ducation and there is The bar engaged a consultant to review the diverse composition of FXUUHQW26%VWDII7KHRYHUDOOUHVXOWVVKRZWKDWEDUVWDIIUHÀHFWVWKH strength. diverse composition of surrounding communities. Recruitment efforts continue outreach to reach out to diverse communities and continue Maya Angelou, author tracking which outreach activities are most effective.

In May 2014, Figure 8 Consulting presented a seminar “The Power of Unveiling Unconscious Bias.” Evaluations show the seminar was very well received by staff. Amber Hollister presented a seminar reviewing the Americans with Disabilities Act and Denise Spielman was brought in to present “Creating a Welcoming Environment for People with Disabilities.” $WWHQGDQFHZDVUHTXLUHGRIDOOVWDIIDWHDFKRIWKHVHVHPLQDUVDQGD'9' created so future staff are exposed to them as well.

GOAL #5_ Treat all men Increase the diversity of SB contractors suppliers vendors and renters alike. Give them Strategy 1 onduct an assessment and implement a process to increase diversity all the same

law. Give them SB repares to Begin Assessment in

all an even Plans are under way to fully assess the diversity of OSB contractors, chance to live suppliers, vendors and, renters in 2015. The OSB began advertising QRWLFHRIURRPUHQWDODYDLODELOLW\RQWKHPRQLWRURQWKH¿UVWÀRRUDWWKHEDU and grow center in Tigard. Additional outreach is planned for 2015. Chief Joseph, Nez Perce leader

Current Developments in Federal Indian Law 7–62 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GOAL #6_ oster knowledge education and advancement of legislation that increases access to justice Few will have

Strategy 1 Increase the participation of all OSB sections in the legislative process the greatness Strategy 2 Increase the coverage of diversity-related subjects in the apitol Insider to bend history, newsletter but each of us

Bar pands Legislative rocess ducation utreach and ocus on Access can work to to Justice change a small The Public Affairs Department reaches out to every bar committee and group to provide an overview of the bar’s legislative process as well as portion of to explain how to engage at whatever level is appropriate for the makeup events. of that particular bar group. Also, the Public Affairs Department has worked to include greater coverage of diversity-related issues in the Senator Robert F. Kennedy Capitol Insider, including articles on the use of racial and ethnic impact statements for proposed legislation and the efforts to combat notario fraud.

Current Developments in Federal Indian Law 7–63 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GOAL #7_ pand public and bar member education outreach and service It takes no Strategy 1 Increase Access to ustice E seminar programs compromise Strategy 2 Increase outreach to diverse communities regarding OSB services to address the unlawful practice of law to give people 6WUDWHJ\±(QKDQFH&OLHQW$VVLVWDQFH2I¿FHWRPHHWWKHQHHGVRIDGLYHUVH community their rights…it Strategy Enhance outreach and services provided to diverse constituents by takes no money iscipline and Regulatory Services Strategy 5 Position the OSB to attract new members by adopting the Uniform Bar to respect the Exam Strategy 6 evelop and sell e-books adapted for use by underserved individuals and individual. communities It takes no Strategy 7 Increase the diversity of the Bar Press Broadcasters ouncil and legal experts available to assist the media political deal Strategy 8 Enhance outreach to underserved communities regarding the modest means and lawyer referral programs to give people Strategy 9 Identify and remedy barriers to accessibility experienced by individuals with freedom. It disabilities who access bar programs, services, activities, and premises

takes no survey Concerted fforts ield otable pansion of ducation utreach and to remove Service repression. In 2013, the CLE Seminars Department created a new program, utilizing 5DFH7KH3RZHURIDQ,OOXVLRQSDQHOSUHVHQWDWLRQRQ'9'DQGDVDQRQ Harvey Milk, demand seminar. As of December 31, 2014 there were 91 sales. American politician During 2014, the CLE Seminars Department sponsored or cosponsored WKHIROORZLQJVHPLQDUVWKDWTXDOL¿HGIRUDFFHVVWRMXVWLFHFUHGLW

Sponsored Thurgood Marshall’s Coming! a movie presentation and panel discussion to commemorate the 60th anniversary of Brown v. Board of Education (31 live attendees) Sponsored an encore presentation of Race: Myths and Realities, featuring the documentary Race: The Power of an Illusion and a panel discussion (172 live and webcast attendees) Cosponsored Echoes of Inequality: Oregon’s Exclusionary Laws from Past to Present with the Legal Heritage Committee (91 live and webcast attendees; 61 on demand purchases) Sponsored a CLE seminar on notario fraud, which had an audience of both ethnic minority community members and leaders and OSB members (88 live and webcast attendees; 4 on demand purchases) Cosponsored Special Topics in Disability Law with the Disability Law Section (34 live and webcast attendees; 14 on demand purchases)

Current Developments in Federal Indian Law 7–64 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

Hosted an online video replay of Echoes of Inequality (25 attendees) ocus on otario raud in SpanishSpeaking Immigrant Communities

7KHEDULGHQWL¿HG6SDQLVKVSHDNLQJLPPLJUDQWVDVDYXOQHUDEOHSRSXODWLRQWKDWKDVEHHQWKHWDUJHWRI H[SORLWDWLRQE\QRWDULRVSXEOLFRVDQGRWKHULOOHJDOLPPLJUDWLRQFRQVXOWDQWV*HQHUDO&RXQVHO¶V2I¿FHGHYHORSHG an outreach plan to combat notario fraud and began implementation of that plan in partnership with various bar departments and key stakeholders outside the bar. Together we:

Developed and distributed 4,000 copies of a Stop Notario Fraud brochure in Spanish, with an electronic version posted on the OSB website. Coordinated an interview with Univision regarding notario fraud. Provided information to the Oregonian for publication of an article on notario fraud. Translated the UPL Advisory Opinion on notario fraud into Spanish and posted it on the OSB website. Sponsored the Notario Fraud Conference, bringing together key representatives from state and QRWIRUSUR¿WHQWLWLHVZKRHLWKHUKDYHVXEVWDQWLDOFRQWDFWZLWKQRWDULRIUDXGLVVXHVRUDUHLQYROYHGLQ the investigation and prosecution of notario fraud. There were 88 attendees, and evaluations were overwhelmingly positive. Attended and hosted a table with notario fraud prevention materials at the Oregon Attorney General’s Open House on Consumer Fraud in Hillsboro, Oregon. $WWHQGHGPHHWLQJVZLWK$,/$2UHJRQ&KDSWHUUHSUHVHQWDWLYHVDQGZLWK2UHJRQ&ULPH9LFWLP¶V3URJUDP Immigrant Subcommittee regarding problem solving around notario fraud. Sought appointment of persons with Spanish and Russian language skills to Unlawful Practice of Law Committee. Included representatives on the UPL Committee from the Oregon Department of Justice and Department of Consumer and Business Services to help better coordinate enforcement efforts. Bar Launches Books for Consumers

In May 2014, the Legal Publications Department launched a Family Law Series, which is available for purchase on Amazon. Each e-book includes a Quick Resource Guide in the front with links to lawyer referral and legal services websites. A total of 25 e-books have been sold to date. However, there have been no reviews or ratings. We plan to enhance marketing of the availability of this resource in 2015, and we will develop a new target measure.

In November 2014, the Legal Publications Department expanded the e-book library to include six e-books in the Consumer Law Series. Each e-book again includes the Quick Resource Guide. To date, no e-books in this series have been sold. We will continue marketing the availability of this resource in 2015. The Family Law Series is available on Amazon.com Discipline and egulatory Services nhances utreach to Diverse Constituents

,QODZ\HUVIURPWKH'LVFLSOLQDU\&RXQVHO¶V2I¿FHUHDFKHGRXWWRERWKORFDODQGVSHFLDOW\EDUVVHHNLQJ to educate members about Oregon’s attorney discipline system and foster communication about upcoming developments. Presentations took place in Portland, Pendleton, Medford, Grants Pass, Coos Bay, and Gold Beach, as well as before the Oregon Public Defenders, the Oregon Criminal Defense Lawyers Association, and the Oregon Women Lawyers.

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OSB Diversity Action Plan | 2014 Implementation Report

Bar pands Diversity in elationships with ress and Media

The OSB was successful in recruiting participants with greater geographic diversity to the Bar Press Broadcasters Council (BPBC), adding members from Eugene and Central Oregon. We had somewhat less success increasing our racial and ethnic diversity, which will remain a focus in the coming year. We did, however, invite increased minority participation in the BPBC’s biggest event of the year, the Building a Culture of Dialogue program, which will see an increase in minorities both in the bar member and the media participation. This was particularly important this year, as the discussion will be loosely based on the events RI)HUJXVRQ0LVVRXULZKLFKFRQWLQXHWRUHYHUEHUDWHWKURXJKRXWRXURZQFRPPXQLW\$QRWKHUEHQH¿WRIRXU H[SDQGHGLQYLWDWLRQSRROWRWKDWHYHQWZLOOEHWKHLGHQWL¿FDWLRQRIEDUPHPEHUVZKRPD\EHDSSURSULDWHWRXVH as expert sources for media throughout the state. Although this was not a stated action item, we also began what we hope will be a successful relationship with The Oregonian’s new beat reporter assigned to coverage RIGLYHUVLW\LVVXHV7KLVLVDQHZIRFXVDUHDIRUKHUDQGWKH¿UVWWLPH7KH2UHJRQLDQKDVKDGDUHSRUWHU VSHFL¿FDOO\DVVLJQHGWRVHHNRXWWRSLFVDGGUHVVLQJGLYHUVLW\:HORRNIRUZDUGWRZRUNLQJZLWKKHUWRDVVXUHWKDW issues impacting the health and vitality of the justice system, as that relates to diversity, are regularly included in her coverage.

SB Diversity Story all Unveiled on ovember eceives ositive ress

The OSB’s exhibit featuring our diverse pioneers received positive press and media attention. An online version of the exhibit is scheduled to launch in February 2015. For additional information about the exhibit go to: www.osbar.org/storywall. To see the Story Wall Unveiling Ceremony, go to: www.youtube.com/ watch?v=97hoq0Iic5w.

he regonian Story Wall - www.oregonlive.com/ portland/index.ssf/2015/01/oregon _state_bar_leaders_debut.html acial ias eport www.oregonlive.com/portland/index. ssf/2015/01/oregon_state_bar_ diversity_rac.html#incart_river Pioneers www.oregonlive.com/portland/index. ssf/2015/01/pioneers_of_diversity_in_ orego.html#0 he Sanner Story Wall - www.theskanner.com/ news/northwest/22120-oregon-bar- celebrates-progress-in-diversity P onthly Story Wall - www.pqmonthly.com/ oregon-state-bar-unveils-diversity- inclusion-story-wall/21088

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Bar nhances ublic utreach fforts

Baseline data is gathered annually with ongoing assessment of the OSB’s public outreach programs coordinated by the Communications and Public Our greatest Services Department. Grassroots marketing efforts, including distribution of Referral Information Services posters and business cards, continued glory is not in in 2014, with additional outreach to state court administrators and legal aid programs. The Legal Links cable series was revived, along with a never falling, new focus on shorter videos designed to be embedded into our website. but in getting Ongoing assessment has shown decreased effectiveness in yellow pages advertising (now largely discontinued) and the Tel-Law system as a up every time means of delivering legal information (discontinued for 2015). Speakers’ Bureau requests, while also on the decline, will continue based on its we do. potential for high-quality information, positive interaction between lawyers, Confucius and the public and minimal expense. Social media and advertising, while RIIHULQJOLPLWHGEHQH¿WLQH[LVWLQJFLUFXPVWDQFHVZLOOFRQWLQXHWREH explored.

OSB’s current focus is promoting the public information and legal help pages of our website; the Communications and Public Services Department has begun testing new website promotions, including increased use of embedded video as mentioned above and online message board and advertising as discussed below. In 2014, the IRFXVZDVWRLQFUHDVHWUDI¿FWRWKHEDU¶VSXEOLFIDFLQJZHESDJHZZZ oregonstatebar.org. In addition to regular promotional activities, we launched test ad campaigns through Craig’s List and Google Ad Words. %RWKFDPSDLJQVGLUHFWHGWUDI¿FWRVSHFL¿HG³ODQGLQJ´SDJHVIRUJHQHUDO information on the bar’s services to the public, the Lawyer Referral Service (LRS), and the online LRS request form. Over the course of the \HDUWUDI¿FWRWKHVHVSHFL¿FSDJHVLQFUHDVHGE\PRUHWKDQ7KH FDPSDLJQVZLOOEHFRQWLQXHGDQGUH¿QHGLQZLWKVSHFLDODWWHQWLRQWR under-served communities and under-accessed areas of law.

Bar staff have developed, and members of the Public Service Advisory Committee have approved, a procedural change in lawyer referral practices to help members of the public identify lawyers they believe will better meet their needs. Beginning with the 2015–16 program year, LRS and Modest Means Program panelists will have the option of indicating whether they are a member of an Oregon-based specialty bar with a primary purpose of promoting diversity within the legal profession and in the provision of legal services. Membership in these groups would be a searchable referral criteria, similar to foreign language ability or special services, e.g., credit card acceptance. The organizations that currently qualify, all of which hold membership open to any Oregon lawyer, are: OWLS—Oregon Women Lawyers, OMLA—Oregon Minority Lawyers Association, OC-NBA—Oregon Chapter of the National Bar Association, 2$3$%$²2UHJRQ$VLDQ3DFL¿F$PHULFDQ%DU$VVRFLDWLRQ2*$//$² Oregon Gay & Lesbian Law Association, and OHBA—Oregon Hispanic Bar Association.

Current Developments in Federal Indian Law 7–67 Chapter 7—Diversity Update

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Bar Launches Accessibility eview eam

The OSB established the Bar Accessibility Review Team (BART) to review Just because a and address accessibility issues reported by bar staff, bar members, and members of the public, and to raise awareness of accessibility issues man lacks the within and around the bar. BART completed an initial self-assessment of bar programs, services, activities, and premises, but will continue its use of his eyes assessment in 2015 through one-on-one meetings with bar managers doesn’t mean he and a survey of bar members and the public. Highlights of BART efforts to raise awareness of accessibility issues include: lacks vision. 3URYLGLQJWUDLQLQJWRDOO26%VWDIIUHJDUGLQJLGHQWL¿FDWLRQRI Stevie Wonder, barriers and appropriate response to requests for accommodation; musician and composer Creating an intranet page with accessibility resources; Posting the ADA Notice & Grievance Procedure on the bar’s website, in the OSB Center lobby, and in the large conference rooms; Publishing an article about the ADA in the November 2014 OSB Bulletin; and Publishing a newsletter article for Lawyer Referral Service panelists regarding ADA compliance.

ADA at 25 Americans with Disabilities Act Continues to Elevate Civil Rights, with Mental Health Now at the Forefront

By Melody Finnemore

ational preparations are underway for the 25th what they had to pay for. There has been a shift not only in how anniversary of the Americans with Disabilities Act, accommodation is perceived, but also about who pays for the Nincluding a legacy project that provides multiple forums accommodation.” for people to talk about the act’s history and its future. Sullivan, a partner with Buchanan, Angeli, Altschul & Oregon attorneys who have worked with the ADA since its Sullivan and president of the Multnomah Bar Association, says passage in 1990 say its impact has been overwhelmingly positive she also witnessed a sea change in the focus of litigation once the over the last quarter century. Its implementation got off to a amendments act was passed. rocky start, however, and while the public’s understanding of it “The fight is where it should be, which is over what is being has grown, there are several improvements that need to be made done to accommodate people with disabilities,” she says. over the next 25 years. Eric Fjelstad of Smith & Fjelstad in Gresham also began Portland attorneys Dana Sullivan and Dennis Steinman handling ADA cases shortly after the act’s passage and has seen have litigated a host of ADA-related cases over the years. They a definite evolution. “The changes in our cases have directly agree that the goals originally intended for the act were sorely reflected the amendments. It used to be a drag-out fight about misinterpreted, largely due to the U.S. Supreme Court’s early whether the client was disabled,” he says, recalling a particular rulings. These rulings severely limited the act by focusing on client who was diabetic and the ensuing argument about whether what constituted a disability rather than how disabilities should that qualified as a disability. “It was interesting because I had just be accommodated. Congress in 2008 effectively reversed the been diagnosed as a diabetic and I learned a lot during that case.” Supreme Court’s approach with the ADA Amendments Act, Fjelstad says the battle now wages about how to provide which significantly broadened the definition of disability and accommodations and who is responsible. As he sees it, there is a focused on legal interpretations of what constitutes reasonable lot of gray area surrounding these issues. accommodation for people with disabilities. “There are very liberal standards that need to be fleshed out “From a litigation standpoint, defendants were winning through case law as far as who is responsible for the breakdown summary judgments the majority of the time before the ADA in the conversation about reasonable accommodations and how Amendments Act. The amendments act shifted it the other way, they should occur,” he says. “These are questions that are out and the vast majority of cases were in the employment arena,” there and need to be addressed in the relatively near future.” says Steinman, a civil rights litigator with Kell, Alterman & Runstein and one of the state’s first lawyers to become fluent in Litigation Common Despite Clearer Rules American Sign Language. Bob Joondeph, executive director of Disability Rights Oregon, “The amendments act alone, even if you disregard everything says a noticeable change regarding the ADA is the increased else in the ADA, has been a rollercoaster ride for disabled enforcement that has occurred under the Obama administration. people in terms of employment and other aspects of their daily This has generated more action and clarity for businesses and other lives,” Steinman says. “It took a very long time for the public private and public entities, which now face greater accountability and private sectors to grasp what they were responsible for and after years of stagnation in meeting ADA requirements. iStock

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OSB Diversity Action Plan | 2014 Implementation Report

GOAL #8_ Increase representation of low income regonians and enhance accountability for services to diverse clients Injustice

Strategy 1 Increase funding for The Oregon aw Foundation and the OSB egal anywhere is a Services Program threat to justice Strategy 2 Increase pro bono representation of low income Oregonians Strategy 3 Enhance legal services provider accountability for serving diverse clients everywhere Martin Luther King, Jr., U.S. clergyman and fforts to Increase ILA Account Interest ates for Legal Services unding civil rights leader

The Oregon Law Foundation made a concerted effort to convince banks to increase the amount of interest offered for IOLTA Accounts, which goes directly to fund legal services for low-income Oregonians. US Bank holds approximately 30% of all IOLTA deposits in Oregon. When it decided to no longer pay a supportive interest rate on its IOLTA accounts starting in 2014, there was a large impact on the Oregon Law Foundation’s revenue and ability to meet the metric of .7% to 1% interest. Accordingly the target metric of the total IOLTA deposits that earn .7% to 1% interest will be adjusted from 80% to 60%.

The Oregon State Bar, Oregon Law Foundation, and the Campaign for Equal Justice continue to explore funding options for legal aid. There are current options being explored in the 2015 Legislative session and through the Campaign for Equal Justice’s Task Force on Legal Aid Funding that set goals to achieve minimally adequate funding for legal aid.

Current Developments in Federal Indian Law 7–69 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

Call to Action: eport ro Bono Service ours

Baseline data regarding pro bono participation gathered for approximately In recognizing eight years shows a fairly steady but low reporting of pro bono hours by attorneys. Without mandatory pro bono reporting it is impossible the humanity to measure pro bono activity accurately. OSB staff will continue to encourage voluntary reporting and will work with new OSB data system of our fellow WR¿QGPRUHHI¿FLHQWZD\VWRHQFRXUDJHSURERQRUHSRUWLQJ6WDIIZLOO beings, we pay FRQWLQXHWRHQFRXUDJHQHZSURJUDPVWREHFRPHFHUWL¿HG&XUUHQW programs, under-staffed due to shrinking budgets, do not have the ourselves the staff support to increase pro bono participation by 10% annually for the foreseeable future. highest tribute. Thurgood Marshall, U.S. Supreme Court Justice Assessment of Legal Service roviders LS Underway

Legal aid providers are currently assessed using the OSB LSP Standards, and Guidelines, which incorporate the American Bar Association’s (ABA) Standards for the Provisions of Civil Legal Aid. The ABA standards already measure the cultural responsiveness of legal aid in the key areas of staff diversity, community outreach, and training. A better target measure for this strategy is to change the LSP Accountability Self-Assessment tool to better collect information in those key areas. The Self-Assessment tool will be revised in 2015 to better gather information and measure Strategy 3.

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Current Developments in Federal Indian Law 7–70 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

GLOSSARY

AROS

ACDI...... Advisory ommittee on iversity and Inclusion CA...... &OLHQW$VVLVWDQFH2I¿FH CA...... ommunity Reinvestment Act ILA...... Interest on awyers Trust Accounts LS...... egal Services Program MB...... ultistate Bar Exam LM...... ew awyers entoring Program L...... The Oregon aw Foundation LI...... Opportunities for aw in Oregon SB...... Oregon State Bar

TERS A OEPTS

Community einvestment Act A United States federal law designed to encourage commercial banks and savings associations to help meet the needs of borrowers in all segments of their communities, including low and moderate income neighborhoods.

6RXUFH&XOWXUDO3UR¿FLHQF\6DQ-RVp(YHUJUHHQ&RPPXQLW\&ROOHJHwww.sjeccd.edu

&XOWXUDO3URÀFLHQF\ &XOWXUDOSUR¿FLHQF\LVWKHOHYHORINQRZOHGJHEDVHGVNLOOVDQGXQGHUVWDQGLQJWKDWLVUHTXLUHGWRVXFFHVVIXOO\LQWHUDFWZLWKDQG XQGHUVWDQGSHRSOHIURPDYDULHW\RIFXOWXUHV&XOWXUDOSUR¿FLHQF\UHTXLUHVKROGLQJFXOWXUDOGLIIHUHQFHLQKLJKHVWHHPDFRQWLQXLQJ VHOIDVVHVVPHQWRIRQH¶VYDOXHVEHOLHIVDQGELDVHVJURXQGHGLQFXOWXUDOKXPLOLW\DQRQJRLQJYLJLODQFHWRZDUGWKHG\QDPLFVRI GLYHUVLW\GLIIHUHQFHDQGSRZHUDQGWKHH[SDQVLRQRINQRZOHGJHRIFXOWXUDOSUDFWLFHVRIRWKHUV7RSURYLGHFXOWXUDOO\SUR¿FLHQW VHUYLFHVERWKWKHLQGLYLGXDODQGWKHLQVWLWXWLRQPXVWEHFXOWXUDOO\SUR¿FLHQW)LYHHVVHQWLDOHOHPHQWVFRQWULEXWHWRDQLQVWLWXWLRQ¶V DELOLW\WREHFRPHPRUHFXOWXUDOO\SUR¿FLHQW

1. aluing diversity 2. aving the capacity for cultural self-assessment 3. anaging the dynamics of difference . aving institutionalied cultural knowledge +DYLQJGHYHORSHGDGDSWDWLRQVWRVHUYLFHVUHÀHFWLQJDQXQGHUVWDQGLQJRIFXOWXUDOGLYHUVLW\

7KHVH¿YHHOHPHQWVVKRXOGEHPDQLIHVWHGDWHYHU\OHYHORIDQRUJDQL]DWLRQLQFOXGLQJSROLF\PDNLQJDGPLQLVWUDWLRQDQGSUDFWLFH

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Current Developments in Federal Indian Law 7–71 Chapter 7—Diversity Update

OSB Diversity Action Plan | 2014 Implementation Report

Cultural esponsiveness 7KHDELOLW\WRUHVSRQGWRDQGLQWHUDFWZLWKSHRSOHIURPDYDULHW\RIGLIIHUHQWFXOWXUHVLQDFXOWXUDOO\SUR¿FLHQWPDQQHU

SB Diversity Demographic Membership Data 7KHEDUFROOHFWVDQGWUDFNVPHPEHUGLYHUVLW\GHPRJUDSKLFGDWDEDVHGRQWKHIROORZLQJFULWHULDVH[JHQGHUUDFHHWKQLFLW\ disability, sexual orientation, and gender identity.

Demonstrated Competency 6KRZLQJRUSUHVHQWLQJDFRPELQDWLRQRINQRZOHGJHVNLOOVEHKDYLRUVDQGYDOXHVWKDWLQGLFDWHDSHUVRQLVFXOWXUDOO\SUR¿FLHQW

SB Diversity and Inclusion 'LYHUVLW\DQGLQFOXVLRQPHDQDFNQRZOHGJLQJHPEUDFLQJDQGYDOXLQJWKHXQLTXHFRQWULEXWLRQVRXULQGLYLGXDOEDFNJURXQGVPDNHWR strengthen our legal community, increase access to justice, and promote laws and creative solutions that better serve clients and FRPPXQLWLHV'LYHUVLW\LQFOXGHVEXWLVQRWOLPLWHGWRDJHFXOWXUHGLVDELOLW\HWKQLFLW\JHQGHUDQGJHQGHULGHQWLW\RUH[SUHVVLRQ JHRJUDSKLFORFDWLRQQDWLRQDORULJLQUDFHUHOLJLRQVH[VH[XDORULHQWDWLRQDQGVRFLRHFRQRPLFVWDWXV

Books Books available for purchase electronically for use on a digital reading device.

Lowincome regonians )RUWKHSXUSRVHRIVWDWHZLGHOHJDODLGVHUYLFHVORZLQFRPH2UHJRQLDQVDUHGH¿QHGDVKRXVHKROGVZLWKLQFRPHVDWRUORZHUWKDQ 125 of the federal poverty level. This would be 2,13 for a household of four in 2013. Another way to look at it is a single person household who makes minimum wage in Oregon would be ineligible for legal aid because they are over income.

Member Dashboard &XVWRPL]HGZHESDJHGLVSOD\HGIRUPHPEHUVORJJHGLQWRWKH26%ZHEVLWH7KHGDVKERDUGLQFOXGHVUHJXODWRU\QRWL¿FDWLRQVDQG provides tools to access and update member record information.

Underserved opulations ow income and other populations who lack access to or the ability to afford legal services.

ulnerable opulations ommunities and people who are disadvantaged and at risk due to socio-economic status, gender, age, disability, geography, language ability, race, ethnicity, or any marginalied status.

Thanks to the Diversity Advisory Council Members

Judith Baker irector of egal Services Programs aren Lee irector of E Seminars OF Executive irector Audrey Matsumonji Board of overnors Danielle dwards irector of ember Services ay ulju irector of ommunications Dawn vans isciplinary ounsel Public Services irector of Regulatory Services Josh oss Board of overnors Susan rabe irector of Public Affairs Sylvia Stevens OSB Executive irector elen ierschbiel eneral ounsel ateri alsh irector of edia Relations Mariann yland irector of iversity Inclusion and ew awyer entoring Program P Christine ennedy irector of uman Resources od egener±&KLHI)LQDQFLDO2I¿FHU Linda ruschke irector of egal Publications

Current Developments in Federal Indian Law 7–72 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–73 Chapter 7—Diversity Update

Diversity and Inclusion: Making Us Stronger

Values of the Oregon State Bar Mission Integrity The mission of the Oregon State Bar is Integrity is the measure of the bar’s values through its actions. The bar adheres to the to serve justice by highest ethical and professional standards in all of its dealings. promoting respect Fairness for the rule of law, by The bar works to eliminate bias in the justice system and to ensure access to justice for improving the quality of all. legal services, and by increasing Leadership access to justice. The bar actively pursues its mission and promotes and encourages leadership among its members both to the legal profession and the community. Functions of Diversity the Oregon The bar is committed to serving and valuing its diverse community, to advancing HTXDOLW\LQWKHMXVWLFHV\VWHPDQGWRUHPRYLQJEDUULHUVWRWKDWV\VWHP. State Bar Justice We are a regulatory The bar promotes the rule of law as the best means to achieve justice and resolve agency providing conflict in a democratic society. protection to the public. Accountability We are a partner with The bar is accountable for its decisions and actions and will be transparent and open in the judicial system. communication with its various constituencies. We are a professional Excellence organization. Excellence is a fundamental goal in the delivery of bar programs and services. Since excellence has no boundary, the bar strives for continuous improvement. We are leaders helping lawyers serve a diverse Sustainability community. The bar encourages education and dialogue on how law impacts the needs We are advocates for and interests of future generations relative to the advancement of the science of access to justice. jurisprudence and improvement of the administration of justice.

Diversity & Inclusion Department Mariann yland Benjamin James 16037 SW Upper Boones Ferry Rd. Director of Diversity & Inclusion Diversity & Inclusion Assistant PO Box 231935 SKRQH SKRQH ID[ Tigard, OR 97281-1935 ID[ [email protected] [email protected] www.osbar.org/diversity

April 2015

Current Developments in Federal Indian Law 7–74 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–75 Chapter 7—Diversity Update

Current Developments in Federal Indian Law 7–76