Deadwood, South Dakota CLE Excursion, July 17-20, 2020

Home , Great Sioux Reservation, Hunting (Succession), Inyan Kara Mountain, Red Cloud, Roosevelt Road, Sitting Bull

Washburn University School of Law

Deadwood, South Dakota CLE Excursion

July 17-20, 2020 Lodge at Deadwood

PARTICIPANT INFORMATION Washburn University School of Law Deadwood, SD CLE Excursion

July 17‐20, 2020

COVID-19 UPDATE Masks will be provided and required for all attendees when in public spaces. Social distancing will be implemented and several CLEs are outside to increase safety of participants.

SCHEDULE

FRIDAY, JULY 17

Information Table – 5 – 7 p.m. | Oggie’s Sports Bar & Emporium Stop by Oggie’s Sports Bar between 5 and 7 p.m. to grab your Washburn Law CLE and social distancing materials. Karli Davis, director of Alumni Relations, will also be available to answer any last‐ minute questions you have about all the upcoming activities.

SATURDAY, JULY 18

Attorney Mindfulness Through Yoga CLE – 1hr | 9 a.m. | Firepit near Lodge Pool (Rain Location – Conference Area Foyer) Dean Carla Pratt will discuss the benefits of lawyer mindfulness practice and use the construct of Yoga to conduct a mindfulness session. As our lives get busier and we are inundated with information throughout all hours of the day, it is important to step back to pause. Dean Pratt will share an update on the latest research on mindfulness, including how it benefits productivity, enhances relationships, and contributes to overall attorney wellness. This session will also teach a few basic yoga poses and include tips for being more mindful in everyday activities. Both attorneys and their guests are encouraged to attend. Yoga mats will be provided to each registrant for this CLE.

Indigenous Perspectives CLE – 1hr | 1:30 p.m. | Spearfish City Park South Shelter Both attorneys and guests will meet at the Lodge at Deadwood lobby before embarking with Dean Carla Pratt on a scenic driving tour through the Black Hills. Participants will caravan in their own vehicles and stop at an outdoor space in the Spearfish City Park for an hour CLE, where Dean Pratt will discuss the legal issues confronting tribal members and leadership regarding sovereignty,

land/resource usage, and climate change. Following the discussion, guests can continue the scenic drive to Spearfish and/or Devil’s Tower National Monument. Transportation not provided. If you get separated from the group, the south shelter is located at 119 S. Canyon Street in Spearfish.

SUNDAY, JULY 19

Physical Activity as a Tool for Coping with Stress CLE – 1hr | 8:45 a.m. | Mt. Roosevelt Trail Join Director of Alumni Relations Karli Davis and Dean Carla Pratt for a leisurely hike on the Mt. Roosevelt Trail. Along the way they will discuss the latest research about the level of physical activity that lawyers engage in on average and the wellness benefits of movement. Physical activity can replace alcohol as a way to decompress and relieve stress. The problem use of alcohol on the legal profession will be highlighted, along with how replacing a drink with a hike can be a healthy way to approach managing stress. Director Davis and Dean Pratt will share what the ideal step goal should be for each day and share with attendees the various mechanisms for monitoring and improving their daily movement. Dean Pratt will discuss the implementation of ʺwalking meetingsʺ at Washburn Law and how attorneys can encourage wellness in their workplace by adopting walking meetings when possible. Participants will enjoy the scenery on this guided hike while also learning about ways to incorporate healthy activities into their daily schedules. Directions: Leaving the Lodge at 8:45 a.m., head northwest on Pine Crest Drive toward Mt. Roosevelt Road (FSR‐133). Turn left onto Mt. Roosevelt Road. There will be a 2‐mile mark and a sign for the Mt. Roosevelt picnic area where the trailhead begins and where we will begin the hike at 9 a.m.

Sturgis Excursion | 11:00 a.m. | Sturgis, SD Meet in the Lodge lobby before we head out on our drive to Sturgis where we will spend the afternoon learning about the history of the Sturgis Motorcycle Rally and seeing the influential sights in Sturgis with Associate Dean for Centers and External Programs, Shawn Leisinger. Transportation and lunch not provided.

Reception | 5:30 – 7:30 p.m. | Pine Crest D Banquet Room Gather with CLE participants, guests and Washburn Law staff for an evening of fun conversations that are sure to include Black Hills trivia. Individually packaged appetizers provided. Cash bar.

MONDAY, JULY 20

Ethical Issues Related to Risk: Understanding & Advising Clients CLE – 1hr Ethics | 8 a.m. | Roosevelt Room This session examines ethical issues related to risk in the legal context. The presentation will look at how different people, and different attorneys, approach risk taking through a live exercise and application of academic risk approaches to the outcomes. Then, the discussion looks at how an attorney can get competent and ethically advise clients concerning risk decisions in practice. Participants will be challenged to contemplate how their personal approach to risk may impact, or fail to impact, client decisions and choices. Individually‐packaged continental breakfast provided.

Incorporating a Gun Trust into an Estate Plan CLE – 1hr |9 a.m. | Roosevelt Room This session explores the basic operation of a gun trust to hold firearms and the mechanics of such a trust’s operation. It will discuss the reasons to create a gun trust; their effectiveness as an estate planning tool to hold firearms; common myths and understandings about what a gun trust can do; special rules associated with gun trusts; and client counseling issues associated with gun trusts.

Law, Technology, & Ethics CLE – 1hr Ethics | 10:15 a.m. | Roosevelt Room This CLE will provide an overview of current topics concerning technology and ethics in the practice of law. Topics will include: Waiving the Attorney‐Client Privilege: Now Easier Than Ever Thanks to Technology; Advising Clients Regarding Communications Through Technology & Social Media; Spoliation of Digital Evidence; Other Ethical Issues Regarding Social Media; or, When to Friend and When Not to Friend (and How to Friend); Social Media Ethics and Juries

Deadwood Walking Tour | 8 a.m. | City of Deadwood For guests not attending the morning’s CLE, meet in the lobby and join Director of Alumni Relations, Karli Davis, for a walking tour of the city of Deadwood.

Lunch on Your Own | 11:30 a.m. – 12:45 p.m. Grab a bite to eat either in Deadwood or at the Lodge before heading out on our afternoon adventure.

Mount Rushmore/Crazy Horse Excursion | 1 p.m. End your time with the 2020 Washburn Law CLE Excursion with a caravan to the Mount Rushmore and Crazy Horse memorials. Setting out from the Lodge, the group will first take the scenic drive to Mount Rushmore for an afternoon of exploring. The group will then head to Crazy Horse to experience the Legends in Light Laser Show. Transportation, meals and memorial admittance not provided.

OTHER IMPORTANT INFORMATION

Attire Attire for the trip is casual. The weather is often windy, storms are unpredictable and the evenings get chilly, so we suggest dressing in layers with water resistant options.

Bicycle Rental For guests interested in exploring Deadwood by bicycle, the lodge recommends DeadWheels – Rabbit Bicycles. They can be reached at 605.574.4302or by visiting the following website: https://www.deadwood.com/business/recreation/deadwheels‐bicycle‐rentals/

CLE Materials In addition to receiving your CLE materials through email, they are available on our website and will be providing on a USB drive at the event. To access the password‐protected website, visit: XXX

Contact Information Because we are making several stops throughout the trip, if you get separated from the group or have any questions during your visit, please call or text either Karli Davis at 785.806.1393 or Kaitlin Alegria at 785.224.4400.

Attorney Mindfulness Through Yoga

Presented by: Dean Carla Pratt

Date: Saturday, July 18

Time: 9 a.m.

Location: Firepit near Pool, Lodge at Deadwood

Depression and Anxiety Disorders: Benefits of Exercise, Yoga, and Meditation Sy Atezaz Saeed, MD; Karlene Cunningham, PhD; and Richard M. Bloch, PhD East Carolina University Brody School of Medicine, Greenville, North Carolina

Many people with depression or anxiety turn to nonpharmacologic and nonconventional interventions, including exercise, yoga, meditation, tai chi, or qi gong. Meta-analyses and systematic reviews have shown that these interventions can improve symptoms of depression and anxiety disorders. As an adjunctive treatment, exercise seems most helpful for treatment-resistant depression, unipolar depression, and posttraumatic stress disorder. Yoga as monotherapy or adjunctive therapy shows positive effects, particularly for depression. As an adjunctive therapy, it facilitates treatment of anxiety disorders, particularly panic disorder. Tai chi and qi gong may be helpful as adjunctive therapies for depression, but effects are inconsistent. As monotherapy or an adjunctive therapy, mindfulness-based meditation has positive effects on depression, and its effects can last for six months or more. Although positive findings are less common in people with anxiety disorders, the evidence supports adjunctive use. There are no apparent negative effects of mindfulness-based interventions, and their general health benefits justify their use as adjunctive therapy for patients with depression and anxiety disorders. (Am Fam Physician. 2019;99(10):620-627. Copyright © 2019 American Academy of Family Physicians.)

Depression and anxiety disorders are among be effective for mild to moderate depression, but the most common psychiatric conditions, with less so for anxiety.2 However, the study designs an estimated 19.1% of U.S. adults experiencing had methodologic limitations, including lack anxiety and 10% experiencing depression in the of consistent definitions for exercise type (e.g., past year.1 Nearly one-half of people diagnosed aerobic, resistance), controls (e.g., other comple- with depression will also experience comorbid mentary treatments, waitlist controls), outcome anxiety. In addition, many will have symptoms measures (e.g., remission, treatment discon- that are distressing, but that do not meet duration tinuation), defined clinical populations (e.g., or intensity criteria to enable a clinical diagnosis. symptoms vs. diagnosed condition), and sample Complementary and integrative therapies (e.g., recruitment techniques.3 These study differences exercise, meditation, tai chi, qi gong, yoga) are increase heterogeneity and undermine the ability often sought by patients experiencing these con- of meta-analyses to demonstrate clear and conditions. This article provides a concise overview sistent effects. of the evidence on the effectiveness of comple- A Cochrane review on exercise for major mentary therapies in treating these conditions. depressive disorder concluded that exercise had a modest positive effect.4 However, when lower- Exercise quality studies were excluded, there was no effect. A review of meta-analyses on the effectiveness Similarly, recent meta-analyses and systematic of exercise for depression and anxiety disorders reviews found moderate positive effects of exer- noted that aerobic and resistance exercises may cise for depression and anxiety, particularly

CME This clinical content conforms to AAFP criteria for continuing medical education (CME). See CME Quiz on page 607. Author disclosure: No relevant financial affiliations. Patient information: A handout on this topic is available at https://www.aafp.org/afp/2010/0415/p987. html.

Downloaded620 from the American Family Physician website at www.aafp.org/afp. Copyright © 2019 American Academy of Family Physicians. For the ◆private, noncom- mercialAmerican use of one Family individual Physician user of the website. All other rightswww.aafp.org/afp reserved. Contact [email protected] for copyrightVolume questions 99, and/or Number permission 10 May requests. 15, 2019 DEPRESSION AND ANXIETY SORT: KEY RECOMMENDATIONS FOR PRACTICE

Evidence Clinical recommendation rating Comments

Exercise can be a modestly beneficial adjunc- B Several systematic reviews and meta-analyses show positive effects tive treatment option for depressive and anxiety of exercise on depressive5-10 and anxiety disorders,11-13 but the disorders, especially treatment-resistant depres- strength of these effects varies. General health benefits justify its use sion, unipolar depression, and posttraumatic as an adjunctive intervention for depression and anxiety disorders. stress disorder.

Yoga is a therapeutic option for depression and B Yoga can be suggested as a monotherapy for depression, but it is pre- has positive effects in people with anxiety disor- ferred as an adjunctive treatment for depression and anxiety.22,26,27,31 ders, particularly panic disorder. The optimal frequency and duration are not clear, but studies have shown symptom reduction with one 60-minute session per week.16,29

Tai chi and qi gong have inconsistent effec- B Tai chi and qi gong have shown inconsistent effects on anxiety and tiveness as complementary treatments for depression in several small studies. In studies that demonstrate ben- depression and anxiety. efits, their effect on depressive and anxiety symptoms is small.34-36

Mindfulness-based interventions are effective B There is limited support for mindfulness-based interventions as a as adjunctive treatment for depression, with monotherapy for depression or anxiety disorders, although they positive effects persisting through follow-up. may be effective for preventing relapse or as an adjunctive treat- Their effects on anxiety disorders also seem to ment.28,38,44 Until further adequately powered trials are conducted, be positive. physicians should use caution in recommending these interventions as a first-line treatment for anxiety or depressive disorders.

A = consistent, good-quality patient-oriented evidence; B = inconsistent or limited-quality patient-oriented evidence; C = consensus, disease- oriented evidence, usual practice, expert opinion, or case series. For information about the SORT evidence rating system, go to https://www.aafp. org/afpsort.

treatment-resistant and unipolar depression and systematic reviews and multiple individual stud- posttraumatic stress disorder (PTSD).5-15 How- ies conclude that yoga is an effective treatment ever, these effects were not sufficiently reliable for depression.16-23 A systematic review compared to assure short-term results or stable long-term yoga with other treatments for major depressive benefits. Adequate trials on the role of interval disorder and found similar benefits for yoga vs. training are lacking, although there are indica- exercise and yoga vs. medication. This review tions that the physiologic changes produced by showed that yoga was less effective than electro- this type of exercise are greater and longer lasting convulsive therapy for the treatment of major compared with changes from aerobic or resis- depressive disorder, suggesting that yoga would tance training. not be appropriate for treatment of resistant- In summary, despite efforts to demonstrate depression for which electroconvulsive ther- clear replicable positive therapeutic effects of apy is a treatment option.23 However, one study exercise on depression and anxiety disorders, has shown long-term effectiveness of yoga as an evidence is lacking (Table 1).5-15 Although there adjunctive treatment for women with persistent seems to be more support for exercise in depres- depression.24 Yoga also demonstrated effectiveness sion vs. anxiety disorders, there are physical in relieving depression in the perinatal period, benefits for both. One analysis specifically rec- but results varied based on the style of yoga.22,25 ommends exercise as an adjunct to medication Exercise-based yoga was not effective in reducing in people with treatment-resistant depression.5 depressive symptoms in the perinatal period, but No trials have shown that exercise worsens either integrative styles with stronger emphasis on med- condition, so it is safe to recommend to patients itation and breath control were effective.26 with the understanding that additional medica- Indications for yoga in the treatment of anx- tion or psychotherapy may be needed. iety disorders are less clear. A meta-analysis of hatha yoga (the most common style in the United Yoga States) found that people with more severe symp- Yoga is an ancient Eastern practice that combines toms benefitted most.27 However, the overall physical postures, breath control, and meditation. effect was relatively small, which suggests that There are several styles that differ in intensity, it is best used as an adjunctive treatment with duration, and emphasis on each component. Two cognitive behavior therapy, selective serotonin

Downloaded from the American Family Physician website at www.aafp.org/afp. Copyright © 2019 American Academy of Family Physicians. For the private, noncom- ◆ 621 mercial use of one individual user of the website. All other rights reserved. Contact [email protected] for copyright questions and/or permission requests. May 15, 2019 Volume 99, Number 10 www.aafp.org/afp American Family Physician DEPRESSION AND ANXIETY TABLE 1

Effectiveness of Exercise for Treatment of Depression and Anxiety Evidence source Findings

Systematic review of studies of exercise for unipolar or Exercise plus SSRI therapy was more effective than other treatments, bipolar depression5 especially for treatment-resistant depression

Meta-analysis of 23 RCTs of exercise for unipolar Exercise was generally helpful, particularly in studies of unipolar depres- depression or depressive symptoms6 sion; positive effects were reduced in studies with validity steps and no longer present at follow-up

Summary of meta-analyses and systematic reviews of Recommended 30 minutes of supervised aerobic or resistance exercise complementary and alternative medicine three times per week for mild to moderate MDD, and as adjunctive ther- therapies for MDD 7 apy for moderate to severe MDD

Meta-analysis of 41 studies with participants Significantly large control group response in exercise trials made evaluting experiencing MDD or subclinical depressive symptoms8 the actual effects of exercise challenging

Meta-analysis of 25 RCTs with participants Removing publication bias, which underestimated effects, increased experiencing MDD; investigated the effect of positive effects of exercise publication bias9

Meta-analysis of 35 RCTs with participants experiencing Inclusive analysis showed moderate positive effect for exercise, which was clinically diagnosed MDD; included trials from China eliminated when trials were limited to low risk of bias and South America10

Meta-analysis of eight RCTs of exercise for clinically Exercise had moderate positive effects on anxiety but was less effective diagnosed anxiety 11 than SSRIs; aerobic and nonaerobic exercises were effective

Qualitative review of 12 RCTs and five meta-analyses of Exercise had mild positive effects, but methodologic problems led authors exercise for clinically diagnosed anxiety or subclinical to withhold recommendation for use in anxiety disorders anxiety symptoms12

Meta-analysis of six RCTs with participants experiencing Exercise significantly reduced anxiety with moderate effect size; exclusion clinically diagnosed anxiety disorder and/or stress- of trials for posttraumatic stress disorder eliminated effect related disorder13

Meta-analysis of seven RCTs with participants No overall effect for aerobic exercise; cognitive behavior therapy or med- experiencing clinically diagnosed anxiety14 ication was significantly more effective than aerobic exercise; exercise was more effective than waitlist controls but not other controls; did not recommend aerobic exercise for anxiety disorders

Meta-analysis and network analysis of MDD15 No differences between exercise and antidepressants or other complementary and alternative therapies

MDD = major depressive disorder; SSRI = selective serotonin reuptake inhibitor; RCT = randomized controlled trial. Information from references 5 through 15.

reuptake inhibitors, or other antianxiety medi- was three to 24 weeks, with frequencies varying cations. Some studies suggest that yoga may be from once per week to daily for 40 to 100 minutes more effective at reducing anxiety symptoms per session. compared with no treatment17,19,28-30; however, In summary, yoga can be suggested as a mono- other studies do not show symptom improve- therapy for depression, but it is preferred as an ment.16,25 One study showed that yoga as mono- adjunctive treatment for depression and anxiety therapy or adjunctive therapy is effective in the disorders (Table 2).16-31 The optimal frequency treatment of panic disorder.29 and duration are unclear, but studies have shown There is not enough evidence to determine symptom reduction with one 60-minute session the optimal duration or frequency of yoga. Ini- per week. tial studies found no difference in reductions of depression symptoms when yoga was practiced Tai Chi and Qi Gong once vs. twice per week.21,28 However, more fre- Tai chi and qi gong are mind and body practices quent sessions are associated with reductions in that combine postures and gentle movements anxiety symptoms. The duration in most reports with mental focus, breathing, and relaxation.

622 American Family Physician www.aafp.org/afp Volume 99, Number 10 ◆ May 15, 2019 DEPRESSION AND ANXIETY TABLE 2

Effectiveness of Yoga for Treatment of Depression and Anxiety Evidence source Findings

RCT of 60 minutes of yoga per week for six weeks vs. Depression scores significantly improved in yoga group compared with usual treatment (medication with or without therapy) waitlist control; no significant reduction in anxiety scores in people with symptoms of depression and anxiety16

Three-arm RCT (yoga vs. meditation vs. control) in Depression and anxiety significantly improved in yoga and meditation groups college students with depression and/or anxiety17 compared with control, but did not significantly differ from each other

RCT of yoga in treatment-naive people with mild to Yoga participants had greater reduction in symptoms compared with moderate major depressive disorder18 control and were more likely to achieve remission; effect size suggested significant reduction in symptoms

RCT of yoga in older women with symptoms of Yoga reduced symptoms of depression and anxiety compared with controls depression and/or anxiety19

RCT of yoga vs. waitlist control in male military veter- Yoga had largest effect on symptoms of hyperarousal and reexperiencing ans with posttraumatic stress disorder 20 symptoms, and had significant effect on general distress and anxious arousal

Dosing trial assessing differences in symptom reduc- No differences in compliance, rate of response, or remission between tion between low-dose yoga (two 90-minute sessions high- and low-dose groups immediately after intervention; at 12 weeks, per week plus three home sessions) vs. high-dose yoga high-dose group had more participants in remission (three 90-minute sessions plus four home sessions)21

Meta-analysis of 12 RCTs of yoga vs. controls22 Moderate short-term effects of yoga compared with usual treatment; effects are less than or equal to those of relaxation and aerobic exercise; limited evidence of effect for anxiety

Systematic review of seven RCTs of yoga vs. controls Similar effects between yoga and other evidence-based treatments (e.g., for major depressive disorder 23 medication, exercise)

RCT of adjunctive yoga vs. health maintenance control No difference between yoga and control groups; yoga participants were in people with persistent major depressive disorder 24 more likely to show treatment response at three months

RCT of yoga vs. usual treatment in pregnant women Depression scores significantly improved in both groups, but yoga group with symptoms of depression and anxiety 25 had greater improvement in negative affect over time; no difference in anxiety symptom reduction

Meta-analysis of six RCTs of yoga for perinatal Depression was significantly reduced in yoga groups compared with depression26 controls; integrated yoga interventions significantly lowered prenatal depression, but exercise-based yoga did not

Meta-analysis of 17 studies of yoga for anxiety 27 Hatha yoga significantly reduced anxiety compared with waitlist controls, with moderate effect size; effectiveness was associated with total number of hours practiced

Three-arm RCT (weekly vs. twice-weekly yoga vs. Both yoga groups had significantly reduced symptoms of depression and waitlist control) in women with depression and/or anxiety compared with control; reductions were similar in yoga groups; anxiety 28 compliance was greater in yoga group with fewer sessions

RCT of yoga vs. yoga plus cognitive behavior therapy Both groups had significant improvement in panic symptoms, but the com- in people with panic disorder 29 bination group had nonsignificantly greater improvement

Three-arm RCT (yoga with relaxation vs. integrated Both yoga groups had significant decreases in anxiety compared with con- yoga vs. nonactive control) in women with anxiety 30 trol, with integrated yoga protocol showing greatest reduction

RCT of yoga vs. usual treatment in women with breast Significant improvement in state and trait anxiety compared with usual cancer and comorbid anxiety disorder 31 treatment

RCT = randomized controlled trial. Information from references 16 through 31.

The movements can be practiced while walking, depression.32,33 However, systematic reviews and standing, or sitting. Although limited, the litera- meta-analyses have shown variable effectiveness ture on these practices suggests that tai chi and qi based on the study population and methodologic gong may be effective in alleviating symptoms of rigor.34,35 One meta-analysis of tai chi’s effect

May 15, 2019 ◆ Volume 99, Number 10 www.aafp.org/afp American Family Physician 623 DEPRESSION AND ANXIETY

on depression symptoms found greater benefits suggesting that mindfulness-based training was among studies that included people with more moderately effective in reducing depression and severe symptoms, but some studies found small anxiety symptoms in pre-post and waitlist con- overall effects.34 The actual effect on depression trol comparisons, and when compared with other symptoms is likely small. Similarly, qi gong has a active treatments, including other psychological small but variable effect on depression. treatments.40 Mindfulness-based training was Another study showed that tai chi reduces as effective as cognitive behavior therapy, other anxiety among older adults with anxiety disor- behavioral therapies, and pharmacologic treat- ders who are receiving medical therapy.36 It found ments. The authors concluded that mindfulness- that anxiety recurrence rates were significantly based training is an effective treatment for a vari- lower among those in the tai chi group compared ety of psychological conditions, and was espe- with the control group (9.09% vs. 42.86%, respec- cially effective in reducing anxiety, depression, tively). A study investigating a qi gong–based and stress. stress-reduction program found greater reduc- Not all studies showed immediate benefit. A tions in state and trait anxiety among partici- meta-analysis of RCTs showed that MBIs were pants in the treatment group.37 However, these effective in people currently experiencing an epi- results contradict a meta-analysis of four ran- sode of depression, but not for anxiety.41 It found domized controlled trials (RCTs) that did not significant postintervention differences between find qi gong to be beneficial for the reduction of groups of participants with depressive disorders, anxiety symptoms.35 In summary, there is a small with a large effect size on primary symptom body of literature showing mixed results for these severity favoring the intervention. Evidence for interventions. benefit in anxiety was lacking. A 2012 literature review concluded that there Mindfulness-Based Meditation was growing evidence supporting MBIs in the There is no consensus on a definition of medita- prevention of depression and anxiety relapse.42 tion. However, it is generally agreed that it is a Another study with a two-year follow-up found form of mental training that requires calming that mindfulness-based cognitive therapy was the mind with the goal of achieving a state of as effective as subspecialist care in people with “detached observation.” Meditation approaches recurrent depression, and that it seemed to work that have been studied in people with depression well when combined with antidepressants.43 and anxiety disorders include mindfulness-based MBIs are typically integrated into a larger ther- interventions (MBIs), mindfulness-based train- apeutic framework, and it is not clear whether ing, mindfulness-based stress reduction, and stand-alone MBIs are beneficial without such mindfulness-based cognitive therapy. Although a framework. A systematic review and meta- these approaches differ, they all rely on calming analysis of the effects of stand-alone MBIs on the mind as their core modality. symptoms of anxiety and depression concluded A recent systematic review and meta-analysis of that these exercises had small to medium effects MBIs for psychiatric disorders found the clearest on anxiety compared with controls.44 This was evidence for their use for depression.38 MBIs were the first meta-analysis to show that regular per- superior to no treatment and other active thera- formance of mindfulness-based approaches is pies, and equivalent to evidence-based treatments beneficial, even if they are not integrated into a such as selective serotonin reuptake inhibitors. larger therapeutic framework. Another meta-analysis that included patients MBIs may be helpful for some subgroups of with clinically diagnosed anxiety and mood dis- patients with depression and anxiety disorders, orders showed that MBIs were moderately effec- but results are mixed. One RCT found that mind- tive in reducing anxiety symptoms and improving fulness-based cognitive therapy reduced symp- mood.39 Effect sizes were robust and did not seem toms of depression in people with a traumatic to depend on the number of sessions. Moreover, brain injury.45 A meta-analysis of MBIs in adults improvements were sustained over an average with PTSD found 10 RCTs that met inclusion of 27 weeks (median: 12 weeks). A systematic criteria.46 Adjunctive mindfulness-based stress review of 209 studies found effect size estimates reduction, yoga, and a mantra repetition program

624 American Family Physician www.aafp.org/afp Volume 99, Number 10 ◆ May 15, 2019 DEPRESSION AND ANXIETY

improved symptoms of PTSD and depression com- Some studies have evaluated MBIs for treat- pared with controls, but the findings were based ment of social anxiety disorder 48,49 and panic dis- on low- to moderate-quality evidence. Effects were order 50 with encouraging results. However, until positive but not statistically significant for quality adequately powered trials are conducted, clini- of life and anxiety, and no studies addressed func- cians should use caution in offering these treat- tional status. An RCT reported that mindfulness- ments as first-line interventions for social anxiety based stress reduction in veterans resulted in and panic disorders. a greater decrease in PTSD symptom severity In summary, MBIs seem to be effective for the compared with present-centered group ther- treatment of depression and anxiety disorders apy (a standard non–trauma-focused treatment (Table 3).38-45,47,48 Because no data suggest that for PTSD).47 Although meditation seems to be these interventions cause harm in patients with effective for PTSD symptoms, more high-quality these conditions, they can be recommended with studies are needed with samples large enough to the understanding that additional medications or detect statistical differences in outcomes.46 psychotherapy may be needed.

TABLE 3

Effectiveness of MBIs for Treatment of Depression and Anxiety Evidence source Findings

Systematic review and meta-analysis38 MBIs were superior to no treatment, minimal treatment, nonspecific active controls, and specific active controls

Meta-analysis of 39 studies of mindfulness-based Mindfulness-based therapies were moderately effective for improving anxiety therapies for anxiety and depression39 and mood symptoms in pre-post analyses

Systematic review of mindfulness-based Mindfulness-based therapies showed large and clinically significant effects on therapies40 anxiety and depression, which were maintained at follow-up

Meta-analysis of RCTs of MBIs for current epi- MBIs significantly improved primary symptom severity in people with depres- sodes of anxiety or depressive disorder 41 sion (outcomes may be similar to those achieved with group cognitive behavior therapy); results did not support MBIs for anxiety disorder

Review of mindfulness-based meditation as self- Mindfulness-based meditation may be viable approach to treatment of anxiety help for anxiety and depression42 and depression, but more rigorous studies are needed

RCT of MBCT for relapse or recurrence of depres- MBCT seemed to work well in combination with antidepressant therapy; com- sion over two years of follow-up43 bined treatment (MBCT plus medication) may be an effective option for many people with extensive histories of recurrent depression

Meta-analysis of 18 studies of stand-alone MBIs MBIs had small to medium effects on anxiety and depression compared with for symptoms of anxiety and depression44 controls

RCT of MBCT vs. control for depression45 MBCT reduced symptoms of depression in people with traumatic brain injury, as measured by the Beck Depression Inventory II; reduction was maintained at three-month follow-up

RCT of MBSR vs. person-centered group therapy MBSR group had greater improvement in self-reported severity of posttraumatic in military veterans with posttraumatic stress stress disorder symptoms during treatment and at two-month follow-up disorder 47

RCT of MBSR vs. aerobic exercise for social anxi- MBSR and aerobic exercise reduced social anxiety and depression, ety disorder 48 and increased subjective well-being immediately and at three months postintervention

MBCT = mindfulness-based cognitive therapy; MBI = mindfulness-based intervention; MBSR = mindfulness-based stress reduction; RCT = randomized controlled trial. Information from references 38 through 45, 47, and 48.

May 15, 2019 ◆ Volume 99, Number 10 www.aafp.org/afp American Family Physician 625 DEPRESSION AND ANXIETY

This article updates a previous article on this topic by 7. Ravindran AV, Balneaves LG, Faulkner G, et al.; CANMAT Saeed, et al.2 Depression Work Group. Canadian network for mood and anxiety treatments (CANMAT) 2016 clinical guidelines for Data Sources: PubMed searches were completed the management of adults with major depressive disorder: section 5. Complementary and alternative medicine treat- using the key terms anxiety (specific diagnoses), ments. Can J Psychiatry. 2016;61(9): 576-587. depression (specific diagnoses), yoga, qi gong, tai chi, 8. Stubbs B, Vancampfort D, Rosenbaum S, et al. Challenges meditation, exercise, and RCT. Also searched were establishing the efficacy of exercise as an antidepressant the Cochrane database, Medline, and Sumsearch. treatment: a systematic review and meta-analysis of con- Search date: November 2018. trol group responses in exercise randomised controlled trials. Sports Med. 2016;46(5):699-713. 9. Schuch FB, Vancampfort D, Richards J, Rosenbaum S, The Authors Ward PB, Stubbs B. Exercise as a treatment for depression: a meta-analysis adjusting for publication bias. J Psychiatr SY ATEZAZ SAEED, MD, is professor and chairman Res. 2016;77: 42-51. of the Department of Psychiatry and Behavioral 10. Krogh J, Hjorthøj C, Speyer H, Gluud C, Nordentoft M. Medicine at East Carolina University Brody School Exercise for patients with major depression: a systematic of Medicine, Greenville, N.C., and executive direc- review with meta-analysis and trial sequential analysis. tor of behavioral health service line for Vidant BMJ Open. 2017;7(9):e014820. Health, Greenville. 11. Jayakody K, Gunadasa S, Hosker C. Exercise for anxiety disorders: systematic review. Br J Sports Med. 2014;48(3): KARLENE CUNNINGHAM, PhD, is clinical assis- 187-196. tant professor in the Department of Psychiatry 12. Stonerock GL, Hoffman BM, Smith PJ, Blumenthal JA. and Behavioral Medicine at East Carolina Univer- Exercise as treatment for anxiety: systematic review and sity Brody School of Medicine. analysis. Ann Behav Med. 2015;49(4):542-556. 13. Stubbs B, Vancampfort D, Rosenbaum S, et al. An exam- RICHARD M. BLOCH, PhD, is professor emeritus ination of the anxiolytic effects of exercise for people with in the Department of Psychiatry and Behavioral anxiety and stress-related disorders: a meta-analysis. Psy- Medicine at East Carolina University Brody School chiatry Res. 2017;249: 102-108. of Medicine. 14. Bartley CA, Hay M, Bloch MH. Meta-analysis: aerobic exercise for the treatment of anxiety disorders. Prog Neuropsy- Address correspondence to Sy Atezaz Saeed, MD, chopharmacol Biol Psychiatry. 2013;45:34-39. Brody School of Medicine, East Carolina Univer- 15. Asher GN, Gartlehner G, Gaynes BN, et al. Comparative sity, 600 Moye Blvd., Ste. 4E-100, Greenville, NC benefits and harms of complementary and alternative 27834 (e-mail: saeeds@ecu.edu). Reprints are not medicine therapies for initial treatment of major depres- available from the authors. sive disorder: systematic review and meta-analysis. J Altern Complement Med. 2017;23(12): 907-919. 16. de Manincor M, Bensoussan A, Smith CA, et al. Individ- References ualized yoga for reducing depression and anxiety, and improving well-being: a randomized controlled trial. 1. Harvard Medical School. National Comorbidity Survey Depress Anxiety. 2016;33(9):816-828. (NCS): 12-month prevalence of DSM-IV/WMH-CIDI disorders by sex and cohort (n = 9282). July 19, 2007. https:// 17. Falsafi N. A randomized controlled trial of mindfulness www.hcp.med.harvard.edu/ncs/ftpdir/table_ncsr_ versus yoga: effects on depression and/or anxiety in col- 12monthprevgenderxage.pdf. Accessed February 16, lege students. J Am Psychiatr Nurses Assoc. 2016;22(6): 2019. 483-497. 18. Prathikanti S, Rivera R, Cochran A, Tungol JG, Fayaz- 2. Saeed SA, Antonacci DJ, Bloch RM. Exercise, yoga, and manesh N, Weinmann E. Treating major depression with meditation for depressive and anxiety disorders. Am Fam yoga: a prospective, randomized, controlled pilot trial. Physician. 2010;81(8): 981-986. PLoS One. 2017;12(3):e0173869. 3. Hazelton AG, Bloch R, Saeed S. Research issues and clin- 19. Ramanathan M, Bhavanani AB, Trakroo M. Effect of a ical implications of exercise effects in the treatment of 12-week yoga therapy program on mental health status in depressive and anxiety disorders. In: Farooqui T, Farooqui elderly women inmates of a hospice. Int J Yoga. 2017;10(1): AA, eds. Diet and Exercise in Cognitive Function and Neu- 24-28. rological Diseases. Hoboken, N.J.: Wiley-Blackwell; 2015: 295-308. 20. Seppälä EM, Nitschke JB, Tudorascu DL, et al. Breath- ing-based meditation decreases posttraumatic stress dis- 4. Cooney G, Dwan K, Mead G. Exercise for depression [pub- order symptoms in U.S. military veterans: a randomized lished correction appears in JAMA. 2014;312(20):2169]. controlled longitudinal study. J Trauma Stress. 2014;27(4): JAMA. 2014;311(23): 2432-2433. 397-405. 5. Mura G, Moro MF, Patten SB, Carta MG. Exercise as an 21. Streeter CC, Gerbarg PL, Whitfield TH, et al. Treatment of add-on strategy for the treatment of major depressive major depressive disorder with iyengar yoga and coherent disorder: a systematic review. CNS Spectr. 2014;19(6): breathing: a randomized controlled dosing study. J Altern 496-508. Complement Med. 2017;23(3):201-207. 6. Kvam S, Kleppe CL, Nordhus IH, Hovland A. Exercise as a 22. Cramer H, Lauche R, Langhorst J, Dobos G. Yoga for treatment for depression: a meta-analysis. J Affect Disord. depression: a systematic review and meta-analysis. 2016;202:67-86. Depress Anxiety. 2013;30(11):1068-1083.

626 American Family Physician www.aafp.org/afp Volume 99, Number 10 ◆ May 15, 2019 DEPRESSION AND ANXIETY

23. Cramer H, Anheyer D, Lauche R, Dobos G. A systematic 37. Hwang EY, Chung SY, Cho JH, Song MY, Kim S, Kim JW. review of yoga for major depressive disorder. J Affect Dis- Effects of a brief qigong-based stress reduction program ord. 2017;213:70-77. (BQSRP) in a distressed Korean population: a randomized 24. Uebelacker LA, Tremont G, Gillette LT, et al. Adjunctive trial. BMC Complement Altern Med. 2013;13:113. yoga v. health education for persistent major depression: 38. Goldberg SB, Tucker RP, Greene PA, et al. Mindful- a randomized controlled trial. Psychol Med. 2017;47(12): ness-based interventions for psychiatric disorders: a sys- 2130-2142. tematic review and meta-analysis. Clin Psychol Rev. 2018; 25. Davis K, Goodman SH, Leiferman J, Taylor M, Dimidjian S. 59:52-60. A randomized controlled trial of yoga for pregnant women 39. Hofmann SG, Sawyer AT, Witt AA, Oh D. The effect of with symptoms of depression and anxiety. Complement mindfulness-based therapy on anxiety and depression: a Ther Clin Pract. 2015;21(3):166-172. meta-analytic review. J Consult Clin Psychol. 2010;78(2): 26. Gong H, Ni C, Shen X, Wu T, Jiang C. Yoga for prenatal 169-183. depression: a systematic review and meta-analysis. BMC 40. Khoury B, Lecomte T, Fortin G, et al. Mindfulness-based Psychiatry. 2015;15:14. therapy: a comprehensive meta-analysis. Clin Psychol 27. Hofmann SG, Andreoli G, Carpenter JK, Curtiss J. Effect of Rev. 2013;33(6):763-771. hatha yoga on anxiety: a meta-analysis [published online 41. Strauss C, Cavanagh K, Oliver A, Pettman D. Mindfulness- ahead of print May 20, 2016]. J Evid Based Med. https:// based interventions for people diagnosed with a current onlinelibrary.wiley.com/doi/abs/10.1111/jebm.12204. episode of an anxiety or depressive disorder: a meta-anal- Accessed August 20, 2018. ysis of randomised controlled trials. PLoS One. 2014;9(4): 28. Michalsen A, Jeitler M, Brunnhuber S, et al. Iyengar yoga e96110. for distressed women: a 3-armed randomized controlled 42. Edenfield TM, Saeed SA. An update on mindfulness medi- trial. Evid Based Complement Alternat Med. 2012;2012: tation as a self-help treatment for anxiety and depression. 408727. Psychol Res Behav Manag. 2012;5:131-141. 29. Vorkapic CF, Rangé B. Reducing the symptomatology of 43. Meadows GN, Shawyer F, Enticott JC, et al. Mindful- panic disorder: the effects of a yoga program alone and ness-based cognitive therapy for recurrent depression: a in combination with cognitive-behavioral therapy. Front translational research study with 2-year follow-up. Aust Psychiatry. 2014;5: 177. N Z J Psychiatry. 2014;48(8): 743-755. 30. Parthasarathy S, Jaiganesh K, Duraisamy. Effect of inte- 44. Blanck P, Perleth S, Heidenreich T, et al. Effects of mind- grated yoga module on selected psychological variables fulness exercises as stand-alone intervention on symp- among women with anxiety problem. West Indian Med J. toms of anxiety and depression: systematic review and 2014;63(1):78-80. meta-analysis. Behav Res Ther. 2018;102:25-35. 31. Kovačič T, Zagoričnik M, Kovačič M. Impact of relaxation 45. Bédard M, Felteau M, Marshall S, et al. Mindfulness-based training according to the Yoga In Daily Life® system on cognitive therapy reduces symptoms of depression in anxiety after breast cancer surgery. J Complement Integr people with a traumatic brain injury: results from a ran- Med. 2013;10: 16. domized controlled trial. J Head Trauma Rehabil. 2014; 32. Tsang HW, Tsang WW, Jones AY, et al. Psycho-physical 29(4):E13-E22. and neurophysiological effects of qigong on depressed 46. Hilton L, Maher AR, Colaiaco B, et al. Meditation for post- elders with chronic illness. Aging Ment Health. 2013;17(3): traumatic stress: systematic review and meta-analysis. 336-348. Psychol Trauma. 2017;9(4):453-460. 33. Yeung AS, Feng R, Kim DJ, et al. A pilot, randomized con- 47. Polusny MA, Erbes CR, Thuras P, et al. Mindfulness-based trolled study of tai chi with passive and active controls in stress reduction for posttraumatic stress disorder among the treatment of depressed Chinese Americans. J Clin veterans: a randomized clinical trial. JAMA. 2015;314(5): Psychiatry. 2017;78(5):e522-e528. 456-465. 34. Yin J, Dishman RK. The effect of tai chi and qigong prac- 48. Jazaieri H, Goldin PR, Werner K, Ziv M, Gross JJ. A ran- tice on depression and anxiety symptoms: a systematic domized trial of MBSR versus aerobic exercise for social review and meta-regression analysis of randomized con- anxiety disorder. J Clin Psychol. 2012;68(7): 715-731. trolled trials. Ment Health Phys Act. 2014;7(3):135-146. 49. Koszycki D, Thake J, Mavounza C, Daoust JP, Taljaard 35. Wang C, Bannuru R, Ramel J, Kupelnick B, Scott T, Schmid M, Bradwejn J. Preliminary investigation of a mindful- CH. Tai chi on psychological well-being: systematic ness-based intervention for social anxiety disorder that review and meta-analysis. BMC Complement Altern Med. integrates compassion meditation and mindful exposure. 2010;10: 23. J Altern Complement Med. 2016;22(5):363-374. 36. Song QH, Shen GQ, Xu RM, et al. Effect of tai chi exercise 50. Kim B, Lee SH, Kim YW, et al. Effectiveness of a mindful- on the physical and mental health of the elder patients ness-based cognitive therapy program as an adjunct to suffered from anxiety disorder.Int J Physiol Pathophysiol pharmacotherapy in patients with panic disorder. J Anxi- Pharmacol. 2014;6(1):55-60. ety Disord. 2010;24(6): 590-595.

May 15, 2019 ◆ Volume 99, Number 10 www.aafp.org/afp American Family Physician 627

Indigenous Perspectives

Presented by: Dean Carla Pratt

Date: Saturday, July 18

Time: 1:30 p.m.

Location: Spearfish City Park (Depart from Lodge)

PART TWO: BRIDGING THEORY AND PRACTICE: The Heart of Everything That Is: Paha Sapa, Treaties, and Lakota Identity

Spring / Summer, 1998

Reporter 23 Okla. City U.L. Rev. 317 *

Length: 18843 words

Author: Alexandra New Holy *

* Assistant Professor, Department of Native American Studies, Montana State University; Ph.D., University of California at Berkeley. Dr. New Holy's husband, an Oglala Lakota from Grass Creek on the Pine Ridge Indian Reservation, descends from a world-renowned tiospaye of porcupine quill artists.

Highlight

The Black Hills, or Paha Sapa, are a critical source of Lakota identity. One of the most important and visible mechanisms the Lakota have employed to preserve and reassert their relationship to Paha Sapa has been the United States legal system. In this Article, the author theorizes three historical periods of the Lakota-Paha Sapa relationship, analyzing each period in terms of Lakota interaction with, and interpretation of, the Euro-American legal system. Through this analysis the influence of the Euro- legal system on the confluence of Lakota identity and resistance can be traced and assessed diachronically.

Text

[*317]

The Black Hills in Western South Dakota are the center of several interrelated and contested domains of identity and well- being. This is an ancient position for Paha Sapa, "The Heart of Everything That Is," as the Lakota understand them. 1 Today their recovery by the Lakota stands at the center of hope for mending the sacred hoop, broken by years of domination and oppression in the folds of a dominant ideology of manifest destiny based on cultural, religious, racial, and economic [*318] hegemony. Lakota medicine man Pete Catches described Paha Sapa in 1993:

1 Looking Horse, Speech to Unrepresented Nations and Peoples Organization, 2 Akwesasne Notes New Series 12 (1996); Black Elk, Children of the Four Relations Around the Heart of Everything That Is, in Lakota Star Knowledge 44 (Ronald Goodman ed., 2d ed. 1992). Three distinct dialect groups, the Lakota, Dakota, and Nakota, comprise the Great Sioux Nation, or Oceti Sakowin (Seven Council Fireplaces). This Article focuses on the western-most nation, the Lakota, consisting of seven bands: Oglala, Sincangu, Hunkpapa, Minikowojou, Itazipco, Oohenunpa, and Sihasapa located on the Pine Ridge, Rosebud, Cheyenne River, Standing Rock, Crow Creek, Flandreau, and Lower Brule reservations in South Dakota and North Dakota as well as the Fort Peck reservation in Montana. See William K. Powers, Oglala Religion 13 (1975). Page 2 of 22 23 Okla. City U.L. Rev. 317, *318

To the Indian spiritual way of life, the Black Hills is the center of the Lakota people. There ages ago, before Columbus came over the sea, seven spirits came to the Black Hills. They selected that area, the beginning of sacredness to the Lakota people . . . . The seventh spirit brought the Black Hills as a whole--brought it to the Lakota forever, for all eternity, not only in this life, but in the life hereafter. The two are tied together. Our people that have passed on, their spirits are contained in the Black Hills. This is why it is the center of the universe, and this is why it is sacred to the Oglala Sioux. In this life and the life hereafter, the two are together. 2

According to Charlotte Black Elk, Oglala Lakota and great-granddaughter of Nicholas Black Elk, a spiritual covenant exists between the Lakota and Paha Sapa: "Wakan Tanka created the Heart of Everything That Is to show us that we have a special relationship with our first and real mother, the earth, and that there are responsibilities tied to this relationship." 3 Today, however, the Black Hills are also home to thousands of non-Indians and central to South Dakota's second largest source of income--tourism. 4 They are central to domestic and international movements by indigenous peoples for self-determination. 5 They are the implicit center of South Dakota's program for "reconciliation" between Indian and non-Indian. 6 And they are central in the minds of many Native American Indians, and their allies, to a healing between Indian and non-Indian. The Black Hills, from their beginning, have simultaneously provided for different Nations, including the Sutai, Absaroka, Kiowa, Sioux, Buffalo, Deer, Eagle, and the Rooteds. 7 Through all of Creation, the Lakota say, Paha Sapa has been "The Heart of Everything That Is." [*319]

For the Lakota, Paha Sapa has always been their center. Every period of their history bears this essential impression. Indeed, a key metaphor of Lakota identity is the Black Hills. Anthropologists have pointed out that an understanding of another people's culture may be approached through their central or unifying themes. 8 For the Lakota, the concept of hocoka (the center) mediates several interlinked metaphors of cultural significance, including Paha Sapa. "Hocoka is an old word that refers to the inner part of a camp circle, but as used ritually it means a sacred space, the center of the universe, within which a sacred person or supplicant prays, sings, or otherwise communicates with spirits." 9 For Lakota, interlinked hocoka include: the cannupa (sacred pipe), the can wakan (Sun Dance tree), the cante (heart) or Seventh Direction, 10 and Paha Sapa. All of these centers are one; they are interconnected and inseparable. 11 The Lakota Oyate (Nation) is one of the sacred hoops encircling and indivisible from these hocoka. In order to be healthy, in order to be Lakota, one must have a relationship to all of these centers.

Lakota identity, deeply connected to Paha Sapa, mediated through metaphor (oral history and teachings) and physical presence in the Hills, must also be understood to be dynamically influenced by history. The meaning of the relationship, while consistently central to Lakota identity, expresses and manifests itself in different ways through historical time. In this Article, I theorize three historical periods of the Lakota-Paha Sapa relationship. These three periods are all constructed, in significant part, through interaction with Euro-American legal theory and practice. One of the primary territories that the contest for hegemony over Paha Sapa, between the United States and the Lakota, has played itself out, is the United States legal arena.

2 Mario Gonzalez, The Black Hills, 19 Cultural Survival Q. 63, 67 (1996). 3 Indian Country Today, Apr. 18, 1996, at B2. 4 See Frank R. Pommersheim, The Black Hills Case On the Cusp of History, 4 Wicazo Sa Rev. 18, 22 (1988). 5 See Richard Trink, Lakota Efforts in the International Arena, 4 Wicazo Sa Rev. 39 (1988). 6 Pommersheim, supra note 4, at 23. 7 See Linea Sundstrom, Mirror of Heaven: Cross-cultural Transference of the Sacred Geography of the Black Hills, 28 World Archaeology 177 (1996). 8 See John R. Farella, The Main Stalk 14 (1984); see also Witherspoon, The Central Concepts in Navajo World View (I), Linguistics: An International Review 1, 46 (1974). 9 William K. Powers, Yuwipi 14 (1982). 10 See Doyle Arbogast, Wounded Warriors 325 (1995). 11 See A. Witkin-New Holy, The Significance of Place (1997) (unpublished dissertation, University of California, Berkeley) (on file with author). Page 3 of 22 23 Okla. City U.L. Rev. 317, *319

One of the most important and visible mechanisms the Lakota have employed to preserve and reassert their relationship to Paha Sapa has been the U.S. legal system. The U.S. legal system, in terms of Native Americans, has been and continues to be an instrument of their repression. 12 The Lakota, however, have formulated within this repressive system an ideology of treaty rights that differentiates Lakota [*320] identity from that of dominant society. The treaty rights ideology was developed by the Lakota as "an alternative representation of their relations with the U.S. government." 13 According to Thomas Biolsi:

Resources and political arrangements on the reservation were not matters to be left by wards to the wise discretion of fatherly bureaucrats, in the terms of this ideology, but matters clearly provided for in law (woop'e)--in the treaties and agreements by which the Lakota had ceded land to the United States. 14

Thus, the Lakota increasingly defined and exercised their relationship to Paha Sapa, including their own individual and tribal identities, in terms formulated from their interaction with the institutions of U.S. law, especially those terms that involved their treaty rights. Briefly summarized below are the three historical periods I have theorized that explicate this process. After the summary, I more fully develop each of the historical periods and the Lakota-Paha Sapa relationship as defined by the treaty rights ideology. Theorizing Lakota identity in this manner can help clarify and explain some of the seemingly sudden changes in their approaches to Paha Sapa, through an analysis that takes their identity as members of a sovereign and culturally distinct nation seriously. Such an approach can help to inform scholars and practitioners of Indian law, native studies, and cultural studies that the relationships between land, identity, and treaties are mediated through philosophic and spiritual values.

The first period, the pre-reservation era, includes mythic time, contact, and the military struggle for hegemony over the territory demarcated by the United States and Plains Indians as Sioux territory. During this time, Paha Sapa provided physical, social, and spiritual well-being for the People. Legal scholar Robert Williams, in his assessment of the meaning of Mount Graham to the San Carlos Apache, set out three interconnected domains, the physical, social, and spiritual, within which the basic human-land relationship forms and reproduces itself. 15 Mount Graham is the home of the Gaan, the elemental forces of the Apache universe which in mythic time provided the Apache with the medicine needed for their survival. The Gaan continue to live in Mount Graham [*321] where traditional Apache continue to focus their on-going relationship with the Gaan through, among other ways, prayers of thanksgiving for the original gift of medicine. 16 Today, as always, Mount Graham provides physical, social, and spiritual nourishment.

It is a source of food and other forms of sustaining nourishment. It provides herbs and healing medicines. The Gaan story teaches that not only does Mt. Graham sustain you physically, but socially as well, because the sacred story of the Gaans connects the tribal community around a set of cohesive values which define tribal social life. The tribal society is sustained by the mountain's life-giving forces. Protecting Mt. Graham fulfills our obligations to the future generations which will constitute the tribal society. And the Gaan story also illuminates how the mountain sustains us spiritually, because those values represented by the story connect us to a transcendent vision of our place in the world . . . . Trouble for the people will ensue if the mountain is not treated properly with respect and humility. 17

In a similar manner, Lakota sacred stories connect them to Paha Sapa and Paha Sapa to their physical, social, and spiritual well-being. In the pre-reservation era, this lived-relationship became threatened by the invasion of non-Indians into the Lakota homelands, and the leaders of the Lakota people sought to protect their relationship to Paha Sapa through the mechanism of treaties. The 1868 Treaty of Fort Laramie, signed by a contingent of Lakota leaders, is a translation of the Lakota-lived relationship and spiritual covenant of guardianship over Paha Sapa that characterizes the first historical period of the Lakota-

12 See generally Robert A. Williams, Jr., The American Indian in Western Legal Thought (1990) (discussing different periods of discourse relative to Native Americans). 13 Thomas Biolsi, Organizing the Lakota 31 (1992). 14 Id. 15 See Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Pinatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, in Readings in American Indian Law 126 (J. Carrillo ed., 1998). 16 See id. at 134. 17 Id. at 136. Page 4 of 22 23 Okla. City U.L. Rev. 317, *321

Paha Sapa relationship. 18 This period ended after the 1868 Treaty was illegally abrogated by the U.S. Congress through an 1877 "agreement" appropriating the Black Hills to the United States. 19 After the Hills were stolen, Lakota not already firmly entrenched on reservations were arrested, forced onto reservations, and massacred at Wounded Knee for Ghost Dancing--a peaceful religious movement to regenerate the past into the future. [*322]

The second period is characterized by the hope for a better life to be obtained from a monetary settlement for the theft of the Black Hills. The 1868 Treaty that secured the Hills to the Lakota also provided the basis for a judicial claim for compensation. The judicial claim, based on treaty-rights, and the hope for compensation, aided the Lakota in articulating their cultural and political distinctiveness apart from the dominant society.

The third period, beginning around the time of the siege at Wounded Knee II in 1973, is characterized by a rejection of a monetary settlement. Instead, Lakota began to negotiate a partial return of the Black Hills lands and moved towards congressional remedies to secure land in addition to a monetary settlement. During all three periods the ideology of treaty rights, as defining the relationship between the Lakota and dominant society, and preserving to the Lakota the right to obtain well-being from Paha Sapa, remains central.

Period One: The Preservation of the Lived-Relationship

A lived-relationship between Paha Sapa and the Lakota characterizes the first period. Lakota oral history teaches that the Ikce Wicasa (Lakota) are the descendants of the Pte Oyate (Buffalo People) who emerged on to the surface of the earth from Wind Cave in the Black Hills. 20 Since that time, the Lakota have lived in and around the Hills, depending on buffalo, deer, and sheep. 21 Before their confinement on reservations, Lakota freely entered Paha Sapa for physical, social, and spiritual reasons. Small groups entered to perform ceremonies such as the Spring Journey 22 and individual hanblecheya. 23 Knowledge and use of rock art and therapeutic hot springs drew the Lakota into the Hills as well. 24 Paha Sapa provided plentiful small game and firewood, sheltered [*323] valleys, and the best tipi poles available. 25 Sitting Bull described some of the Black Hills' value to the People during this phase: "these hills are a treasure to us Indians. That is the food pack of the people and when the poor have nothing to eat we can all go there and have something to eat." 26 Many Lakota sought to preserve this relationship for future generations by signing the 1868 Treaty of Fort Laramie.

In the late 1860s, when the Sioux blocked United States expansionism on the Great Plains, the United States decided to negotiate an international treaty of peace to prevent its further economic and moral exhaustion on the heels of the Civil War's conclusion. 27 Because of the relative strength of the Lakota and their complete mistrust of Whites and the government, some- -most notably Crazy Horse and Sitting Bull--did not even feel it necessary to sign the treaty. These non-treaty Indians, also known as northern Indians, preferred to live in the northern sections of Sioux territory, especially the Powder River country.

18 See Treaty with the Sioux Indians, opened for signature Apr. 29, 1868, ratified Feb. 24, 1869, 15 Stat. 635, 636. 19 Act of Feb. 28, 1877, ch. 72, 19 Stat. 254. 20 See James R. Walker, Lakota Myth 370-81 (Elaine A. Jahner ed., 1983). 21 See Linea Sundstrom, Culture History of the Black Hills 78-104 (1989) (discussing prehistoric uses of the Black Hills). 22 The Spring Journey is a series of ceremonies performed at least once every seven years in the Black Hills since approximately 500 b.c. The ceremonies are performed at five or more sites correlated with four or more constellations. The synchronicity of the ceremonial practitioners, the celestial, and terrestrial worlds serves to renew the cosmos. See Ronald Goodman, Lakota Star Knowledge passim (1992). 23 See generally Black Elk, The Sacred Pipe (Joseph Epes Brown ed., 1953) (describing the hanbleceya (pipefast) as one of the seven rites given to the Lakota). It is one of the ways Lakota pray to Wakan Tanka, the Creator. See Pete Catches, Sr., & Peter Catches, Oceti Wakan 92- 104 (1997); see also James R. Walker, Lakota Belief and Ritual 84-86, 132-33 (Raymond J. DeMallie & Elaine A. Jahner eds., 1980). 24 See Helen Rezatto, Tales of the Black Hills 16 (1989). 25 See Robert M. Utley, The Lance and the Shield 115 (1993). 26 See John G. Neihardt, The Sixth Grandfather 171-72 (Raymond J. DeMallie ed., 1984). 27 See Rex Alan Smith, Moon of Popping Trees 44 (1975). Page 5 of 22 23 Okla. City U.L. Rev. 317, *323

This northern territory was included in the 1868 Treaty establishing the Great Sioux Reservation, as well as all of present day South Dakota west of the Missouri River. This portion of the aboriginal Lakota homelands was

set apart for the absolute and undisturbed use and occupation of the Sioux . . . the United States now solemnly agrees that no persons except those herein designated and authorized so to do . . . shall ever be permitted to pass over, settle upon, or reside in the territory [inclusive of the Black Hills]. 28

The treaty identified the Powder River country west of the Great Sioux Reservation to the summit of the Bighorn Mountains as "unceded Indian territory"; 29 the inference, according to historian Robert M. Utley, being that "Indians who wished to live by the chase rather than by government dole might continue to reside in this tract. That neatly postponed a dispute over going to the reservation, but White officials confidently looked to the day when the extinction of the buffalo would eliminate the issue." 30

At this historical moment, there became a rather fluid division between those Sioux who signed the treaty and moved onto the [*324] reservations and into agency culture, and those who disdained the reservations and agencies and preferred to adhere to "the chase"-- hunting buffalo and raiding traditional Sioux enemies and illegal white settlers. With Paha Sapa secured, from either vantage point, differences among various Lakota centered around dependence on, or independence from, agency life. Sitting Bull was appointed as the leader of the non-treaty Indians, while Red Cloud and Spotted Tail led the reservation Lakota. 31 Utley summarizes:

Throughout the first half of the 1870s, with the firm backing of Black Moon, Four Horns, and Crazy Horse, Sitting Bull carried the banner around which all true Lakota rallied. These were the "hunting bands," the "northern Indians," the "hostiles" who remained in the unceded territory year round. Some drifted into agencies to visit relatives and make trouble for the agent, as Gall did on occasion. But most, imitating Sitting Bull and Crazy Horse, never went near an agency.

During these years, as the hunting bands followed the buffalo in the unceded territory, the agency culture took root and bloomed. The two factions drifted even farther apart, separated not only by distance but also by thought, habit, relationship to [*325] the government, and above all by patterns born of dependence and independence. 32

From the very beginning, both the United States and the non-treaty Indians failed to honor the treaty provisions. The difference being that the non-treaty Indians were not signatories to the treaty; whereas, the United States was responsible for initiating the treaty. First, Congress failed to appropriate the necessary funds to fulfill the rations and annuities provisions of the treaty. 33

28 Treaty with the Sioux Indians, supra note 18, at 636. 29 Id.

30 Utley, supra note 25, at 82. 31 The idea of a supreme chief in Lakota had been foreign prior to the appointment of Sitting Bull as supreme chief of the Sioux confederation in approximately 1869. Individuals, bands, and tribes gloried in their independence and fiercely guarded their freedom to do just as they pleased, constrained only by social conventions and the obligations of kinship. They responded to authority only as it sprang from consensus or a chief highly respected for wisdom, and even then some people had to be "soldiered" into obedience by the akicita. Id. at 85. In fact, a significant percentage of the non-treaty Indians never accepted Sitting Bull's appointment as supreme chief. See id. Four Horns, Sitting Bull's uncle and respected leader of the Hunkpapa, largely responsible for the appointment of Sitting Bull as supreme chief, understood the nature of the greatly changed circumstances of Lakota existence: The Treaty of 1868 accelerated trends that had been forming for a decade or more, creating historical forces that, to Four Horns at least, exposed a leadership hierarchy inadequate either in structure or personality. Even if alien to traditional ways, his idea made sense when viewed against the backdrop of the conditions engendered by the treaty. Id. at 86. 32 Id. at 88. Page 6 of 22 23 Okla. City U.L. Rev. 317, *325

"The reservation Sioux suffered without the blankets, clothes, knives, kettles, and other goods they had been promised, and they suffered from their new diet--too short on meat, too long on flour (which they did not know how to use), and altogether lacking in quality." 34 In 1871, in order to complete the Northern Pacific Railroad, the United States built a fort and brought in the 7th Cavalry to hold the line in unceded Indian territory. 35 This invasion and the inevitable consequence of the railroad-- the annihilation of the northern buffalo--inflamed relations between the Lakota, the federal government, and its agents. The country's plunge into economic depression in 1873, combined with frontier hostilities and frustration at the non-treaty Lakota's refusal "to become civilized," spurred the federal government into sending an illegal expedition, in direct violation of the treaty, into the heart of Lakota territory--the Black Hills. 36 The 1874 expedition, led by General George Armstrong Custer, had the dual purpose of scouting out a site for a possible fort and confirming reports of gold. 37 The expedition's embellished reports of Black Hills' gold combined with the economic depression and a general anti-Sioux feeling created an immediate gold rush into the Black Hills. 38 Even though the 1868 Treaty stipulated that the federal government was to keep miners [*326] and settlers out of Paha Sapa, President Grant rescinded enforcement of that particular provision in late 1875. 39

The Allison Commission's failure earlier in 1875 to get even the reservation Lakota to sign an agreement ceding Paha Sapa precipitated Grant's order. The Allison Commission met with over 20,000 Sioux to negotiate a lease for the Black Hills. It specifically attempted not a sale of the Hills but a lease in order to evade the "inconvenience" of obtaining the 1868 Treaty- mandated consent of threequarters of the adult Sioux male population for any land cession. 40 The idea of a lease so that miners could remove gold from the Hills seemed absurd to the Lakota negotiators. At the next session, nineteen days later, the non-treaty Lakota who had refused to attend any meeting organized to discuss the possibility of selling (or leasing) the Hills, sent 300 mounted warriors in full battle regalia. 41 They approached the commissioners and in unison sang: "Black Hills is my land and I love it and whoever interferes will hear this gun." 42 Little Big Man, a close friend of Crazy Horse and Sitting Bull, shouted that he would kill the first Indian who spoke to sell Paha Sapa. 43 Nevertheless, Spotted Tail and Red Cloud attempted to explain to the commissioners the value of Paha Sapa using the commissioners' terms--an exchange, either temporary (lease) or permanent (sale), for provisions and annuities. 44 Spotted Tail said, "As long as we live on this earth, we

33 See Edward Lazarus, Black Hills White Justice 56 (1991). 34 Id. 35 The 1868 Treaty failed to delineate the northern limit of the protected "unceded Indian territory," yet both the federal government and the United States regarded the land in question as Sioux territory. Id. at 68. "No plausible interpretation, based upon either legislative history or the longstanding occupation by the Sioux, could justify [a contention that the territory in question was not Sioux territory]." Id. The government conceded this point by sending a negotiating commission to win a right-of-way for the railroad but abandoned the negotiations early on, opting instead to build the fort and bring in the cavalry. See id. 36 See Smith, supra note 27, at 54.

37 See id. 38 See id. at 54-55. 39 See Charles M. Robinson, III, A Good Year to Die 40-41 (1995); Utley supra note 25, at 127. 40 Lazarus, supra note 33, at 81. 41 See id.; Utley, supra note 25, at 125. When a delegation approached Sitting Bull to invite him to meet with the Allison Commission to discuss selling the Black Hills, one of the delegation, Frank Grouard, reported Sitting Bull's words: He said he would not sell his land. He said he had never been to an agency and was not going in. He was no agency Indian. He told me to go out and tell the white men at Red Cloud Agency that he declared open war and would fight them wherever he met them from that time on. His entire harangue was an open declaration of war. Utley, supra note 25, at 125. 42 Lazarus, supra note 33, at 81. 43 See id.; Utley, supra note 25, at 126. 44 Dollar amounts converted into annuities and provisions were the standard currency of land cessions. Page 7 of 22 23 Okla. City U.L. Rev. 317, *326 expect pay . . . the amount must be so large that the interest will support us . . . . If even only two Indians remain, as long as they live they will want to be fed, as they are now." 45 Red Cloud followed: [*327]

There have been six nations raised and I am the seventh, and I want seven generations ahead to be fed . . . . These Hills out here to the northwest we look upon as the head chief of the land. My intention was that my children depend on these for the future . . . . I think that the Black Hills are worth more than all the wild beasts and all the tame beasts in the possession of the white people. I know it well, and you can see it plain enough, that God Almighty placed these Hills here for my wealth, but now you want to take them from me and make me poor, so I ask so much that I won't be poor. 46

Eventually Red Cloud and Spotted Tail asked for $ 70 million. 47 Whether they understood this to be for a lease, as the commission had suggested on the first day of negotiations, or for the purchase of Paha Sapa is unclear. According to Lazarus, "the figure itself, perhaps suggested by a missionary or interpreter, was irrelevant to the Sioux; they did not reckon in millions. What it represented--food, clothing and shelter in perpetuity, security in a frightening world--meant everything." 48 The Allison Commission made a counter-offer to lease the Hills for $ 400,000 per year or to buy them for $ 6 million. 49 The offer was unacceptable to even these agency chiefs, and the Allison Commission returned to Washington D.C. empty-handed. 50

Thus, the federal government opted for a policy of open warfare to secure title to the Black Hills. 51 In order to obtain the Black Hills and bring the Lakota to their knees, the government launched an all out assault on both the treaty and non-treaty Lakota. The onslaught of miners into Paha Sapa following Grant's decision not to enforce the 1868 Treaty provision to keep them out, greatly aided the government assault. Less then two years after Custer's foray into the Hills, there were 10,000 prospectors in Custer City alone. 52 Just a few months later, the most infamous of all Indian-United States battles occurred-- the Battle at the Little Big Horn--where Custer paid the ultimate price for his transgression in Paha Sapa.

Three months after the United States defeat at Greasy Grass (the Little Big Horn), Congress declared that it would no longer appropriate [*328] any money for Lakota rations until a cession of the Black Hills occurred. 53 At the time, many Lakota were forcibly confined to reservations, dependent on government provisions since their horses, guns, and ammunition had been confiscated by the government. 54 Other Sioux were relegated to dependence on government provisions because of the massive sport hunting by Euro-Americans that all but eliminated the southern buffalo. Not only did the buffalo provide physical subsistence, it was also the foundation for much of Sioux social and spiritual life as well. In this physically and spiritually weakened state, a number of agency Lakota had no choice but to sign documents ceding the Black Hills and 22.8 million acres of other reservation lands to the United States. One of the reservation leaders, Red Cloud, spoke at the invocation leading up to the affixing of signatures, including his, on the documents: "Which God is our pious brother praying to now? Is it the same God whom they twice deceived, when they made treaties with us which they afterward broke?" 55

The 1876 Mannypenny Commission, whose duty was to secure the Black Hills through the threat of starvation and relocation to Indian Territory, reported back to President Grant, the proceedings of its councils with the various Sioux nations. The commission did not obtain signatures of "three-quarters of all adult males" as provided for in the 1868 Treaty. In fact, only ten

45 Lazarus, supra note 33, at 82. 46 Id. 47 See id. 48 Id. 49 See id. 50 See id. at 82-83. 51 See Utley, supra note 25, at 127. 52 See Peter Matthiessen, In The Spirit of Crazy Horse 11 (1980). 53 See S. Doc. No. 9, 44th Cong. 2d Sess. 4 (1876). 54 See Matthiessen, supra note 52, at 12. 55 Charles Alexander Eastman, From the Deep Woods to Civilization: Chapters in the Autobiography of an Indian 100 (1936). Page 8 of 22 23 Okla. City U.L. Rev. 317, *328 percent of the male population signed the "agreement." 56 The commission's preface to the record of its proceedings at the councils unambiguously states the desperation of the Lakota. "The present condition of the Sioux Indians is such as to awaken the deepest sympathy." 57 The war waged on them by the military to secure the holiest lands of the Lakota left them devastated.

Again and again the Indians spoke with sorrow of the present war, and urged us "to rub it out." They said, "Tell the white people that this is not an Indian war; it is a white man's war." It seemed strange for Christian men to hear from the lips of a savage sic, "A great many widows and orphans have been made [*329] on both sides. It is time to ask who is to take care of them . . . . It is displeasing to the Great Spirit." 58

The document of the proceedings plainly states the terms faced by the Lakota. Commissioner Bulis opened up his councils with statements like those he used on October 14 at the Cheyenne River Agency: "If you accept [the "agreement"], and carry out this agreement in good faith, you will be prosperous and happy and growing people. If you refuse to accept it, death and starvation stare you in the face." 59 The pain in the words of those who signed the "agreement" is palpable in the record of the proceedings. At the Red Cloud Agency, Nebraska, at the September 20 council, Little Wound said:

Yesterday another arrangement was mentioned concerning the Black Hills, and the words that I heard from the Great Father and from the commissioners from the Great Council made me cry. The country upon which I am standing is the country upon which I was born, and upon which I heard that it was the wish of the Great Father and of the Great Council that I should be like a man without a country. I shed tears. 60

Many who signed the "agreement" did so reluctantly, choosing life over death for their families and the future generations. At the same council, Baptiste Good said, "You have come here with considerations that will make my people live." 61 The Lakota clearly stated, and the record reflects, that the Black Hills were to provide prosperity for the present and future generations of the People. Running Antelope, at the Standing Rock Agency on October 11 explained the relationship to Paha Sapa:

The land known as the Black Hills is considered by the Indians as the center of their land. The ten nations of Sioux are looking toward that as the center of their land . . . . In return for this country I expect to have issued to me rations, that I and my children and children's children may live and be taken care of and provided for by the Government. I want the Indians to obtain wealth equal to the wealth that the whites realize from the Black Hills. The children of the Great Father will obtain wealth from the Black Hills that will make them rich as long as the country [*330] lasts, and I wish the Indians to be cared for as long as that wealth lasts the whites. 62

At the same council, Two Bears also spoke:

For three winters the Great Father's young men have been carrying the good things out of my country, and now that he has proposed to pay me for it I am very glad. I give to the Great Father all the different kinds of metal and different kinds of timber and different kinds of earth that are in the hills. This will make the Great Father rich, but a part of this he is to give back to me-- half of it. I am of the fifth generation of Sioux Indians, and the sixth generation is growing up around me. I want the Government to provide for the same number of generations in the future. 63

56 Biolsi, supra note 13, at 40. 57 S. Doc. No. 9, 44th Cong. 2d Sess. 9 (1876). 58 S. Doc. No. 9, 44th Cong. 2d Sess. 8 (1876). 59 Id. at 56. 60 Id. at 36. 61 Id. at 40. 62 Id. at 48. 63 Id. at 49. Page 9 of 22 23 Okla. City U.L. Rev. 317, *330

The 1877 "agreement," a gross violation of the 1868 Treaty, did not have the required number of signatures, and those that it did have were coerced under the threat of starvation. 64 In a stunning admission of the United States' criminal behavior in the matter of the 1877 "agreement" appropriating the Black Hills, the Supreme Court in 1980 declared that "a more ripe and rank case of dishonorable dealings [than the government's conduct in obtaining the Black Hills] will never, in all probability, be found in our history." 65

Invigorated by the "cession" of so much Lakota land, military forces moved into the Powder River country relentlessly attacking the non-treaty Indians who were not involved in the signing of the 1877 "agreement." Feeling the loss of Paha Sapa and the force of military repression against him, Sitting Bull and many of his followers retreated into Canada. 66 After United States promises of a Powder River reservation, Crazy Horse and 900 of his followers surrendered at Fort Robinson. 67 Eventually, both Crazy Horse and Sitting Bull were assassinated by U.S. agents. The period of a Lakota-lived relationship in and with Paha Sapa, free from the presence of Americans seeking to alter and reside permanently in the Hills, came to a close with the deaths of [*331] these two anti-treaty leaders. After their deaths, their followers sought to spiritually recover an older relationship with the Paha Sapa through the teachings of the Ghost Dance. They were gunned down or arrested at Wounded Knee by the 7th Calvary under a white flag. 68

Period Two: The Survival of Lakota People

Even before the massacre at Wounded Knee, councils were called by the Lakota to strategize some sort of redress for the abrogation of the 1868 Treaty. According to one of the primary chroniclers of the Black Hills' legal claim, Edward Lazarus, the first documented treaty meeting occurred in 1887. 69 By 1891, the Oglala had established an official treaty rights organization--the Oglala Council. 70 Many of the participants in the Oglala Council were direct descendants of treaty signatories, thus they had authority to handle not only matters related to the treaties, but all matters pertaining to tribal business. 71 Comprised of 300 old chiefs and non-progressives, they met every month to "discuss the old treaties, figure out how much money the Government owed them on account of the Black Hills . . . and make life as unpleasant as possible for the agent and other employees." 72 Other councils were also organized, all based on [*332] a need to rectify and remember the treaties--the promises both made and broken. Although no records were kept of these early meetings, Lazarus figures that approximately

64 Act of Feb. 28, 1877, ch. 72, 19 Stat. 254. 65 United States v. Sioux Nation, 448 U.S. 371, 388 (1980). 66 See Utley, supra note 25, at 182. 67 See Matthiessen, supra note 52, at 13. The reservation promised to Crazy Horse that precipitated his surrender never materialized. 68 See id. at 20.

69 See Lazarus, supra note 33, at 119. 70 See id. 71 See Biolsi, supra note 13, at 58 (1992). This authority was recognized by the federal government until the 1870s when the Office of Indian Affairs ("OIA") attempted to depose the treaty chiefs by abolishing their prerogatives in distributing rations and instituting agency police forces. See id. at 38. The OIA intended to enforce the right of individuals to decide as individuals and in 1889 established the franchise to undermine the chiefs. See id. at 42. Full disempowerment of the treaty chiefs, however, did not occur until tribal councils, as mandated by the Indian Reorganization Act, were voted into existence. See 25 U.S.C. §§ 461-479 (1994). The Lakota vote to accept the provisions of the IRA occurred because of widespread misinformation leading the Lakota to believe that if they accepted the IRA they would receive extra benefits, and even the return of the Black Hills. See Biolsi, supra note 13, at 78-80. 72 Lazarus, supra note 33, at 119. Lazarus' account of the Black Hills claim documents the legal struggle to gain monetary compensation for the theft of the Black Hills. See id. Lazarus' father was one of the lead attorneys for the Sioux in the claim. Lazarus focuses on the prudence and integrity of his father and the law firm handling the claim in that they pursued the only remedy available to the Lakota at the time, monetary compensation. Moreover, it is their belief that the pursuit, award, and acceptance of a monetary settlement would not in any way prevent the Lakota from later seeking a return of some of the lands in question. See id. at 358. Thus, Lazarus' treatise couches the struggle in the above quotation as one for money, when in all probability the Councils did not focus exclusively on a monetary settlement at this time. See also Frank Pommersheim, Making all the Difference: Native American Testimony and the Black Hills, 69 N.D. L. Rev. 337 (1993) (providing a review essay of several authors including Edward Lazarus). Page 10 of 22 23 Okla. City U.L. Rev. 317, *332

100 meetings were held during the 1890s. 73 These councils were an integral part of the Peoples' processes of survival and redefinition after Wounded Knee. 74 The remembering of the treaties and the era of Lakota ascendancy the treaties represented, combined with a sense of grievance and inflicted tragedy, bonded these Lakota and served as the basis of a new reservation identity.

Significantly, this period of treaty rights ideology included the belief that proper tribal authority rested in three-quarters of the majority. Based on article XII of the 1868 Treaty requiring three-quarters of the adult males to ratify any land cession, okaspe yamni (three-quarter majority rule) became the primary principle of Lakota political authority. 75 According to Thomas Biolsi, okaspe yamni was based in an indigenous Lakota reading of treaty law, and embraced by the chiefs as the proper, legal, and traditional method of decision-making. 76 After the passage of the Indian Reorganization Act ("IRA") and the election of tribal councils, treaty councils and "old-dealers" refused to recognize the IRA tribal councils because the IRA had not been voted in by three-quarters of the population. 77 Article XII of the 1868 Treaty and the illegitimacy of the IRA tribal councils constituted the central tenets of the treaty councils whose primary purpose was to redress the theft of Paha Sapa.

The theft of Paha Sapa not only provided the traditional Lakota leaders with a sense of purpose in the reservation context, but also gave them the only hope they believed they had for a better life. The now stolen Black Hills furnished one of the few remaining connections to a glorious and cherished past. Confronted with the impoverished and depressing circumstances of the reservation, just emergent from a military assault meant to pacify them at any cost, and still contending with a dominant attitude that was not beyond genocide in the matter of Indians--hope for the Lakota was a precious commodity. The legacy of all the broken promises would be a gift to the future.

In the beginning it was not apparent what form that gift would take. Many of the old dealers, familiar with the Allison Commission's attempt [*333] to lease the Hills, believed that even though the government had stolen the Hills, they had done so only temporarily because they had illegally leased them. In 1918, twenty old men who had been with Sitting Bull during the Allison Commission testified to this effect. 78 During the first public meeting to discuss the Black Hills Treaty, called by George Sword and American Horse and attended by South Dakota Congressman E.W. Martin, Red Cloud and some of the other chiefs stated the need for food for their children. 79 Linking their lack of food to the treaty issue, Red Cloud simply said that they would like to have something for the Black Hills. 80 The Lakota could not hire attorneys or sue the government until Congress passed an act allowing them to do so. The Sioux Jurisdictional Act of 1920, passed to repay a "debt to the relatives of the 10,000 killed in World War I," and to bring closure to the "uncivilized" Sioux past, opened the way for the Lakota to file a claim against the United States in the matter of the Black Hills. 81 On June 23, 1923, Ralph Case, the first attorney hired by the Sioux to represent them in the matter, met with representatives from all nine reservations. He informed his clients that they could file suit only for "just" compensation--the fair market value of the land at the time it was taken, plus interest from that time forward. 82 He told the Lakota and other Sioux that it was impossible for them to get the Hills back, and that the government acted illegally only by paying inadequate compensation for the taking, but the taking itself was legal. 83 The President of the Standing Rock Sioux spoke on behalf of his people who did not "think for a minute that they could secure the

73 See Lazarus, supra note 33, at 119. 74 See id. 75 See Biolsi, supra note 13, at 151. 76 See id. at 31. 77 Id. at 151. 78 See Lazarus, supra note 33, at 137. 79 See id. at 122. 80 See id. 81 Act of June 3, 1920, ch. 222, 41 Stat. 738; Lazarus, supra note 33, at 138. 82 Lazarus, supra note 33, at 147. 83 See id. Page 11 of 22 23 Okla. City U.L. Rev. 317, *333

Black Hills country again in the near future, but they seem to have the sentiment that the government should make it good in the way of pay." 84 Case proceeded to take a vote from the representatives to ensure that they agreed to pursue a monetary award. The Sioux representatives were unanimously in favor of seeking such an award. 85

For the next fifty years, the Lakota placed most of their hope for a better life in receiving a monetary award for the theft of the Black Hills. The only remedy ever explained as available to them--money--could not heal the wounds, yet survival as a People became the necessary first step. The Lakota survived as a People, in part, because they defined [*334] themselves as a People based on a spiritual covenant between them and Paha Sapa; it provided sustenance and well-being, and in turn, the People respected and acknowledged that gift through prayer and ceremony both within and outside of the Hills. The quest for a monetary award helped to continue the relationship with the Black Hills on the basis of the treaties signed by the chiefs to preserve the relationship. The hope, by itself, provided an ongoing connection with the Black Hills, and eventually the wounds began to heal. The People became well enough to require aspects of the older relationship with the Hills. Survival was no longer enough, and presence in the Hills became necessary. It was at this moment that the Lakota denounced the 1980 monetary award for $ 106 million, 86 asserting they no longer were content only to survive.

Period Three: The Return of Paha Sapa Lands

In 1964, a group of Sioux relocatees and children of relocatees in San Francisco, California, occupied the abandoned federal penitentiary and island of Alcatraz in San Francisco Bay. 87 It was the initial occupation of Alcatraz, led by a small group of Sioux in the name of the Sioux nation, that marked the first contemporary action to reclaim land on the basis of the 1868 Treaty of Fort Laramie. 88 The more well-known nineteen-month occupation of Alcatraz occurred five and one-half years later. 89 Five of the key players in the initial occupation were Sioux:

Al "Chalk" Cottier, a house painter from Pine Ridge reservation who had been in the Bay Area since 1952, Dick McKenzie from Rosebud reservation, who was active in the urban Indian community, Garfield Spotted Elk, a twenty-six-year-old section hand on relocation, Walter Means, a retired traveling high iron worker who was helped in this endeavor by his son Russell, and Martine Fire Thunder Martinez, who had come to Oakland in the [*335] late 1950s on relocation and was a focal person in the urban Indian community. Cottier's wife Belva did most of the legal research. 90

These Sioux relocatees studied the 1868 Treaty of Fort Laramie and concluded that article VI provided for the grant of abandoned or surplus federal lands to Sioux. 91 Smith and Warrior point out that the occupiers "likely knew the treaty claim

84 Id. at 149. 85 See id. 86 See Sioux Nation v. United States, 448 U.S. 371 (1980).

87 The BIA established a national relocation program for Indians in 1951. By 1960 there were offices in ten major U.S. cities. The BIA subsidized migration from reservations to these cities where Indians theoretically would be employed permanently and full-time. For a study of the failure of relocation for Lakota peoples see Ruth Hill Useem & Carl K. Eicher, Rosebud Reservation Economy, in The Modern Sioux 3 (Ethel Nurge ed., 1970). 88 See Russell Means & Marvin J. Wolf, Where White Men Fear To Tread 105 (1995). 89 In commemoration of the twenty-fifth anniversary of the second occupation of Alcatraz Island, 18 Am. Indian Culture & Res. J. (1994) devotes an entire edition to the event. 90 Luis Kemnitzer, Personal Memories of Alcatraz, 1969, 18 Am. Indian Culture & Res. J. 103 (1994). 91 The relevant provision reads: Any male Indians over eighteen years of age, of any band or tribe that is or shall hereafter become a party to this treaty, who now is or who shall hereafter become a resident or occupant of any reservation or territory not included in the tract of country designated and described in this treaty for the permanent home of the Indians, which is not mineral land, nor reserved by the United States for special purposes other than Indian occupation, and who shall have made improvements thereon of the value of two hundred dollars or more, and continuously occupied the same as a homestead for the term of three years, shall be entitled to receive from the United States a patent for one hundred and sixty acres of land including his said improvements . . . . Page 12 of 22 23 Okla. City U.L. Rev. 317, *335 was tenuous in its specifics, but they were quite serious about the central point: treaties were not irrelevant and Indians had not forgotten them." 92 One of the leading participants in both occupations of Alcatraz Island, Adam (Nordwall) Fortunate Eagle, writes that "the Sioux action conceived by Richard McKenzie had been successful in what it set out to do: point out the government violations of the 1868 Treaty and make symbols of them." 93 Treaty-rights ideology was alive and well.

The social ferment of the 1960s dialectically interacted with the two occupations, and subsequent Indian activism in the 1970s. The Black Power movement, feminism, and the protests against U.S. imperialism in Viet Nam fueled the ferment of similar oppressions among Indians who themselves shared a common history of oppression. The American Indian Movement ("AIM"), the most visible organization of Indian protest during this time, as well as localized actions such as the Northwest fish-ins, embraced the tactics of the time: the politics of militancy. 94 The politics of militancy did not originate with AIM nor [*336] belong exclusively to the organization founded after the first Alcatraz occupation in 1964. 95 Todd Gitlin expresses well the sentiment common to the activists and their varied, but connected, social struggles in his assessment of anti-war militancy:

Fighting back could be defended, arguably, as part of a strategy for ending the war, since neither civil disobedience nor Establishment grumbling seemed sufficient by itself. But the militant surge was more than strategic: it was at least as much the expression of an identity, a romance, an existential raison d'etre. 96

For AIM, leaders in moving Indian concerns into the public-eye for the first time since the early part of the century, identity sprang from and informed their treaty-based politics.

This identity, often formed in the crucible of actions centered on the 1868 Treaty of Fort Laramie, expressed itself as Lakota. Non-Lakota Native American activists sought out their own tribal identities through exposure to treaty-based Lakota politics and identity based on treaty rights. A critic of the 1970s era Indian movement notes how fundamental identity-formation was to its actions. Jerry Wilkinson (Cherokee), Executive Director of the National Indian Youth Council, declared that most people were at protest events "not primarily to correct a wrong but to make a personal identity statement and assert their pride in being Indian." 97

Occupations and armed resistance, hallmarks of AIM politics, centered on compliance with treaties. One of the first occupations undertaken by AIM was based on the 1868 Fort Laramie Treaty affirming the Lakota claim to the Black Hills. At the request of two Lakota elders, AIM helped to organize a protest-turned-occupation of Mount Rushmore in the Black Hills. 98 The four month long protest in 1970, instigated by Lakota and AIM to publicize the Sioux claim to the Black Hills, established an alliance between the urban youth of AIM and the traditional Lakota elders. 99 These elders taught the youth the meaning [*337] of treaties. The elders had learned from their elders, some of whom were treaty-signers, that treaties represented and preserved their relationship to Paha Sapa.

The alliance formed between reservation elders and younger, urban Natives was instrumental in precipitating the Siege at Wounded Knee in 1973. An organization of Oglala Lakota on the Pine Ridge Reservation in South Dakota, the Oglala Sioux

Treaty with the Sioux Indians, supra note 18, at 637. 92 Paul Chaat Smith & Robert Allen Warrior, Like A Hurricane 11 (1996). 93 Fortunate Eagle, Urban Indians and the Occupation of Alcatraz Island, 18 Am. Indian Culture & Res. J. 38 (1994). 94 It is important to note that Indian activist politics have changed significantly since the seventies. One indication of this transformation is the statement by Russell Means, one of the founders of AIM, in his recently published autobiography: "Take your message to the streets--but even though government is not going to give away anything, force begets only brutality and injustice. I have swallowed my share of official violence, and I now feel that real change cannot come except through non-violence." Means & Wolf, supra note 88, at 542. 95 See Rex Weyler, Blood of the Land 35 (1982). 96 Todd Gitlin, The Sixties: Years of Hope, Days of Rage 256 (1993). 97 Smith & Warrior, supra note 92, at 275. 98 See Means & Wolf, supra note 88, at 167. 99 See id. Page 13 of 22 23 Okla. City U.L. Rev. 317, *337

Civil Rights Organization ("OSCRO"), invited the leaders of AIM, Russell Means and Dennis Banks, to help them address rampant intimidation and violence by the IRA tribal government. 100 It was OSCRO's desire to not only put an end to the corruption and intimidation of the Richard Wilson tribal council, but also to "fundamentally restructure the government on the reservation. They wanted a new system, one adapted from traditional Oglala culture and ways of governance." 101 The underlying blueprint for the hoped-for restructuring was the Fort Laramie Treaty of 1868. 102 Five traditional chiefs, responsible for carrying on the mandates of the 1868 Treaty, were present at the initial meeting between AIM and OSCRO: Red Cloud, Iron Cloud, Fools Crow, Bad Cob, and Kills Enemy. 103 The alliance between the two generations, treatychiefs, and urban militants, proved to be a potent force, leading to the seventy-one-day siege and occupation at Wounded Knee. Smith and Warrior describe the complimentary nature of the intergenerational force:

The old chiefs had everything the young bloods of the movement wanted: tradition and ceremony, wisdom and ancient knowledge. Those things had been denied the shock troops of the movement. To them it burned like the theft of something priceless, irreplaceable, and with it came a smoldering resentment they felt nearly every waking moment. This, more than any specific grievance, fueled their bold activism.

Yet the old men who barely spoke English needed the young men of AIM, who possessed power and knowledge of a different sort. This new warrior society spoke the fast language of distant cities. Their power came from hard times and fierce [*338] pride, the unlikely product of prison cells and drunk tanks, street demonstrations and liberal alliances. 104

The occupation and siege at Wounded Knee II in 1973, climaxed a reawakened treaty-andland-centered Lakota identity. In declaring the new Independent Oglala Nation at Wounded Knee on March 11, 1973, the Oglala stated "we will revive the Treaty of 1868 and it will be the basis for all negotiations." 105 The White House agreed to the primary condition for surrender at Wounded Knee on May 4, 1973, to send "top-level representatives" to meet with "the headmen and chiefs of the Teton Sioux" during the third week of May "for the purpose of examining the problems concerning the 1868 Treaty." 106 Russell Means summarizes the results of the promised meeting:

Hundreds of Oglala people came on May 17 to Grandpa Fools Crow's place in Kyle . . . to meet the promised White House delegation and to discuss our treaty. Those emissaries from Washington, however, had no official standing and no authority to offer anything. After hours of evasions, the white men left, promising to come back in two weeks with answers. The Oglala people returned on May 31, the day the white delegates had said they would come back, but nobody from Washington D.C., showed up. Instead, [White House counsel] Leonard Garment . . . sent an insulting note. It said, in part, "The days of treaty making with the American Indians ended in 1871; . . . only Congress can rescind or change in any way statutes enacted since 1871." 107

100 See Smith & Warrior, supra note 92, at 198.

101 Id. at 209. 102 See Biolsi, supra note 13, at 182. 103 See Smith & Warrior, supra note 92, at 198. 104 Id. at 199. 105 Id. at 217. 106 Means & Wolf, supra note 88, at 293 (citations omitted). 107 Id. at 293. Congress' end to treaty-making in 1871, promulgated to balance more evenly the powers of treaty-making and appropriating money for those same treaties between the House and Senate, simply resulted in the negotiations of agreements. See Francis Paul Prucha, Documents of United States Indian Policy 136 (1975). Agreements and treaties differed only in that the House and Senate equally shared in the responsibility of "ratifying" agreements. However, language in the bill is often misused, as for example the above statement of Leonard Garment, to deny the sovereign rights of Indian nations: "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." 25 U.S.C. § 71 (1994). Regardless of the constitutionality of Congress' power to limit the treaty-making authority of the President among other questions, the Treaty of 1868 preceded the 1871 Act, and hence the Act had no effect on the 1868 Treaty. According to the Act "no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired." Id. Page 14 of 22 23 Okla. City U.L. Rev. 317, *338

[*339]

The federal administration, however, greatly benefited from the talks. One of the low-level aides, who attended the talks with Fools Crow in full regalia and appeared on the front pages of the nation's newspapers, considered the meeting an excellent photo-op for the beleaguered Nixon administration. 108

Nonetheless, a reinvigorated sense of pride in being Indian, in being Lakota, derived in part from the militant protests of the seventies, provided the conceptual space necessary for the Lakota to distance themselves from a legal claim seeking only money, and to call for a return of land. In an atmosphere that provided esteem for being Lakota, the People could once again assert that the Black Hills were not for sale. The resistance of Sitting Bull and Crazy Horse revived itself in the confrontational tactics of AIM. Recent chroniclers of the AIM, P.C. Smith and R.A. Warrior, describe the outcome of Wounded Knee II:

For Indian people, the movement's grand entry had raised dizzying hopes of respect for treaties and sacred lands, but also of a new kind of person, a new kind of democracy, and a new kind of Indian future . . . . The season of occupations may have ended in defeat at Wounded Knee, but with those occupations a door had been opened, and with it a world of new possibilities. 109

One of the doors opened by the siege and occupation was that the Lakota could no longer tolerate the idea of a monetary settlement for the Black Hills. Edward Lazarus reflects on the situation:

If the relationship between the United States and the Sioux nation was to be governed strictly by the 1868 treaty, then the Black Hills were still Sioux land. Seeking compensation for the taking of the Black Hills was not only logically absurd, it represented a capitulation to U.S. treaty breaking, a sellout to white and capitalist notions that land and money were interchangeable, or, more crassly, that the Sioux and their lands could be bought. 110

The attorneys hired by the Sioux in the 1930s continued, however, to pursue monetary compensation for the Black Hills. They justified their [*340] decision to do so on the basis that they did not represent the treaty councils, who were the first to withdraw from the claims process, but rather the IRA tribal governments. 111 Testifying before a Senate Subcommittee on Indian Affairs in the matter of the Sioux claim, Matthew King, Fools Crow, and Kills Enemy stated: "The land belongs to us, . . . and we haven't said much in the past, but we are getting fed up . . . and now we are talking." 112 And, again at a later subcommittee hearing on the same issue, they testified: "There can only be one settlement for the Black Hills. The Black Hills must be immediately returned to the rightful owners, the Lakota people. After that we can talk about compensation for damages done to . . . the land." 113 Nevertheless, after fifty-six years, the Court of Claims, in 1979, entered a judgment for the Sioux nation in the amount of $ 17,553.00 plus five percent interest for a rough total of $ 105 million for the taking of the Black Hills. 114 According to the Distribution of Judgment Funds Act of 1973, the money was to be distributed by Congress within a year. 115 No such plan was ever drawn up, and eventually all eight Sioux tribes (Rosebud, Oglala, Cheyenne River, Standing Rock,

108 See Smith & Warrior, supra note 92, at 266. 109 Id. at 268. 110 Lazarus, supra note 33, at 325. 111 See id. at 360. The Black Hills Sioux Nation Council ("BHSNC") formerly disassociated itself from the claims process as early as May 10, 1977, at Subcommittee Hearing. On July 23, 1977, the BHSNC filed a Special Appearance and Notice before the Indian Claims Commission stating: This Council is not and does not wish to become a party to these proceedings, for the reason that the Indian Claims Commission provides only money awards and this Council expressly renounces any claim for money as compensation for our sacred Black Hills . . . . Any judgment or award of the Commission in this matter will be null and void. Id. at 359 (citations omitted). 112 Id. at 351 (citations omitted). 113 Id. at 354 (citations omitted). 114 See United States v. Sioux Nation, 448 U.S. 371 (1980). 115 See 25 U.S.C. §§ 1401-1407 (1987). Page 15 of 22 23 Okla. City U.L. Rev. 317, *340

Lower Brule, Crow Creek, Santee, and Fort Peck) passed tribal resolutions in opposition to any distribution of the judgment. 116

Lakota first attempted to reoccupy a part of Paha Sapa in 1981 through the establishment of the Yellow Thunder Camp ("YTC") on 800 acres of public use lands in the Black Hills. After filing a claim for possession of the Black Hills and damages, and having it dismissed, Lakota pursued extralegal methods for reestablishing their presence in the Black Hills. 117 Russell Means, one of the Lakota founders of YTC, [*341] calls it "an exercise in freedom and a reawakening to the wisdom of our ancestors." 118 The return was a peaceful reoccupation initiated by AIM at the bequest of the spirits. 119 Yellow Thunder Camp evolved into a "spiritual youth camp," and along the way the federal government pressed the Lakota into defending their occupation and guardianship of the Camp in court. Court proceedings in the matter forced Lakota, for the first time, to elaborate for the public record on the nature of their relationship to the Black Hills and how the federal government stifled that relationship. 120

Eighteen days after establishing camp in the Black Hills, the YTC community applied for a special use permit. 121 "According to uncontroverted testimony in our subsequent federal lawsuit, every Indian "application to the Forest Service to use Black Hills land had been turned down--and every non-Indian one approved. We really wanted to help our youth, so we decided to try the white man's paper route." 122 The National Forest Service denied the permit two days later, on August 24, 1981, and ordered the campers to leave by September 8. Yellow Thunder Camp filed an administrative appeal, and on September 9, the United States filed an action against the campers seeking to eject them from the camp; in response, the campers filed a separate action on September 15 claiming authority to occupy the site and unlawful denial of a special use permit. The last three actions were consolidated, and on December 6, 1985, the United States District Court for the District of South Dakota issued its opinion on the matter. 123 The district court held that:

(1) the laws, regulations, and policies of the Forest Service burden the free exercise of the Lakota religion in the Black Hills and thus violate the First Amendment; (2) the denial of the special use permit was arbitrary and capricious; and (3) William Means and others were entitled to a special use permit to allow them to establish a religious camp at the YTC site. 124

The district court concluded that "access to the Black Hills is critically important to the meaningful and fulfilling practice of the Lakota religion. [*342] Also, the idea of the Black Hills provides a foundation for many of the beliefs of the Lakota religion." 125

When addressing the restrictions placed on Lakota practitioners, the court found that the restrictions were "not merely inconveniences preliminary to the ceremony, but interfere with or negatively impact upon the manner in which the ceremony itself is conducted." 126 In general, the Forest Service: restricts the location chosen by an individual or spiritual leader; prohibits portions of some ceremonies (i.e., sweat lodge fires); restricts portions of the ceremony to remote areas; bans the temporary movement of stones; 127 and requires ceremonial participants to pay camping fees. 128 In addition, existing Forest

116 See Pommersheim, supra note 4, at 21. 117 See Oglala Sioux v. United States, No. 85-062 (W.D.N.D. 1980). 118 Means & Wolf, supra note 88, at 489. 119 See id. at 407. 120 See id. at 417. 121 See United States v. Means, 858 F.2d 404 (8th Cir. 1988). 122 Means & Wolf, supra note 88, at 416. 123 See United States v. Means, 627 F. Supp. 247 (D.S.D. 1985). 124 Means, 858 F.2d at 405. 125 Means, 627 F. Supp. at 252. 126 Id. at 254. Page 16 of 22 23 Okla. City U.L. Rev. 317, *342

Service regulations do not protect against disruption caused by tourists. 129 By 1983, YTC had dwindled to only a few residents, 130 and in 1988, the United States won an appeal from the district court decision. 131

Restrictions on religious freedom and interferences with the Lakota relationship to Paha Sapa kindled the peaceful establishment of the YTC. 132 Acts of contemporary resistance and protest, including the struggle to establish the YTC, help to solidify contemporary Lakota identity based in treaty rights and teachings that proscribed guardianship of the Black Hills, including active religious practice. While YTC residents lived in the Black Hills, other Lakota were working on a larger and more permanent solution for reuniting the Lakota with Paha Sapa.

A decisive shift in strategy occurred in 1985 with the introduction of the Sioux Nation Black Hills Act into Congress. 133 Recognizing the hostility of the judiciary in the YTC cases, and the Indian Claims Commission Act which limited remedies to monetary compensation, 134 Lakota began to look to Congress for redress. 135 The shift in focus, [*343] predated by the grassroots actions to reoccupy Black Hills lands, was initiated by two highly educated and experienced mixed-blood Lakota. Mario Gonzalez, an attorney, and Gerald Clifford, a former military contract worker and monk, spent two years designing legislation to satisfy a broad constituency of Sioux interests. 136 Clifford, as head of the Black Hills Steering Committee legislative effort, faced formidable and continuous opposition from Oliver Red Cloud, great-grandson of the Fort Laramie treaty-signer. Oliver Red Cloud, chairman of the Black Hills Sioux Nation Council, "detested Clifford, whom he derided as a 'white man' who had no business acting as caretaker for the tribal claims. That role, Red Cloud believed, belonged to no one but himself." 137 Moreover, the dissention between Red Cloud and Clifford descended from ancestral divisions. Gerald Clifford's lineage, both through birth and marriage, derives from non-treaty Indians, including Little Big Man and Crazy Horse. 138 Nevertheless, Clifford and Gonzalez convinced democratic Senator Bill Bradley of New Jersey to sponsor the bill. It initially received minimal support, 139 but by 1987 it had accumulated over a dozen Congressional supporters. 140 The bill contains two central provisions. First, approximately 1.3 million acres of federal lands would be returned to the Sioux nation. 141 Second, the Sioux National Council was established to administer the "reestablished area" as defined by the legislation. 142 Two weeks after reintroducing the bill in 1987, the Black Hills Sioux Nation Council and the Grey Eagles, a society of Lakota elders, both controlled by Oliver Red Cloud, declared their opposition to the Bradley bill.

127 Traditional practice requires the taking of stones from Inyan Kara Mountain for use in the Sun Dance at Devil's Tower. The stones are returned after the ceremony. See id. 128 See id. 129 See id. 130 See Means & Wolf, supra note 88, at 436. 131 See Means, 858 F.2d at 404.

132 YTC was never conceptualized or administered as an exclusive-use area and remained open to the public; although, an entry-point security gate served to restrict access to anyone intoxicated or carrying firearms for safety reasons. See Means, 627 F. Supp. at 252. 133 See S. 705, 100th Cong. (1987). 134 Indian Claims Commission Act, ch. 949, § 1, 60 Stat. 1049-53 (1946) (repealed 1978). 135 Congress has a short history of restoring native lands. See Alaska Native Claims Settlement Act, 43 U.S.C. § 1629 (1994); Maine Indian Claims Settlement Act, 25 U.S.C. §§ 1721-1735 (1994). 136 See Lazarus, supra note 33, at 416. 137 Id. 138 See id. at 417. 139 See S. 1453, 99th Cong. (1985); H.R. 3651, 99th Cong. (1985). 140 See Pommersheim, supra note 4, at 22. 141 See S. 705, 100th Cong. § 5 (1987). 142 See id. §§ 11-15, 21; Pommersheim, supra note 5, at 22. Page 17 of 22 23 Okla. City U.L. Rev. 317, *343

Prior to declaring their opposition, the Grey Eagles aligned themselves with California entrepreneur-millionaire, Phil Stevens, who in November of 1987 sold his engineering firm, Ultrasystems, Inc., for $ 89.1 million "in order to pursue his Indian commitments full time." 143 Phil Stevens, claiming to be a great-grandson of the Oglala chief Standing Bear, quickly persuaded Red Cloud and the other Grey Eagles that through his experience and influence, he could lead, and win, the [*344] effort to have the Black Hills returned to the Lakota. 144 Stevens also convinced his new Lakota constituents that the Bradley bill did not adequately compensate them for the extraction of resources and use of the Black Hills after 1877 (the year Congress illegally appropriated the Hills from the Sioux). 145 The Court of Claims awarded the Sioux the 1877 fair market price for the taking of the Black Hills, $ 17.1 million, five percent simple interest on that amount, and an additional $ 450,000 for gold extracted from the Hills between the years 1868 and 1877 for a total of approximately $ 106 million. 146 The estimated value of the land did not include any valuation for its mineral or resource wealth. 147 The Bradley bill awarded the Sioux the same $ 106 million (plus interest from the time of the appropriation of the funds on July 18, 1980), but not for the extinguishment of title to the lands; instead the amount represented the value of the "denial of the absolute and undisturbed use" of the Hills from 1877 forward. 148 Stevens points out that the Bradley bill inadequately compensates the Sioux for the $ 18 billion worth of the gold extracted from 1877 to 1980. 149 Moreover, unlike other United States creditors entitled to compound interest, the Sioux were awarded only simple interest--a difference of $ 2.8 billion. 150 In order to neither "betray the Sioux tradition of courage and honor" nor "condemn future generations to the grinding poverty and chronic injustice that the People have suffered in the past," Stevens proposed that the Sioux seek $ 3.1 billion in compensation. 151

Gerald Clifford did not support Stevens' emphasis on monetary compensation. Stevens' focus on money, as opposed to the need for presence in the Hills, distorted the relationship between the Lakota and the Black Hills. By focusing on the issue of economic justice, Stevens swayed many Lakota into losing sight of the central goal--reestablishing Lakota presence in the Hills. Because traditional Lakota made very little distinction between law and morality, the desire to attain a complete and [*345] moral justice proved overriding. 152 The strong support Stevens received from many Lakota persuaded Clifford to allow Stevens to present his proposal to the Sioux congressional supporters; however, it was unanimously dismissed and perceived as a betrayal of the progress made on behalf of restoring the Black Hills to the Sioux. Bradley refused to reintroduce his bill into Congress until the Lakota sorted out their priorities and differences.

The return to a claim for money, in addition to the return of lands, by mostly older Lakota, led by the Grey Eagles, Oliver Red Cloud, and Phil Stevens, represents an older vision of Lakota identity and meaning of the Black Hills. These Lakota had grown up knowing only the prayers for monetary compensation for the Black Hills. The shift in consciousness, precipitated by contemporary activism, was grafted on to their more deeply rooted understanding of the Black Hills as providing sustenance in the form of economic and physical security. This older vision, handed down from the generation directly confronted with military force and starvation at the hands of the federal government, did not reflect a younger generation's need for spiritual sustenance and cultural, as opposed to strictly physical survival. Both visions, both sets of desires, were part and parcel of

143 Los Angeles Times, Nov. 16, 1987, at 15. 144 See Lazarus, supra note 33, at 423. 145 See Phillip J. Stevens, Compensation for the Plundering of $ 18 Billion of Sioux Gold, Silver, and Other Natural Resources from the Black Hills Is Unjust and Unacceptable, 4 Wicazo Sa Rev. 49 (1988). 146 See United States v. Sioux Nation, 448 U.S. 371 (1980). 147 See Stevens, supra note 145, at 49. 148 See S. 705, 99th Cong. § 10 (1985). 149 See Stevens, supra note 145, at 49. 150 See id. 151 Id. at 49-50. Stevens based his calculations on 110 years of rent at 11 per acre, with compound interest, and $ 310 in mineral royalties. See Lazarus, supra note 33, at 423. 152 Traditional Lakota culture structures itself on four interdependent philosophical concepts from which all common codes of group and individual behavior flow: bravery, fortitude, generosity, and wisdom. See Royal B. Hassrick, The Sioux 32, 46 (1964). Page 18 of 22 23 Okla. City U.L. Rev. 317, *345

Lakota identity--two sides of the same coin--both handed down from Lakota--treaty and non-treaty. One group emphasized the need for cultural survival, one for physical.

By 1989, Mario Gonzalez had drafted another bill that refined Bradley's bill on a number of critical points and avoided the issue of compensation by establishing a blue ribbon panel to decide the compensation issue. 153 The Sioux Nation Black Hills Restoration Act of 1990 was introduced by California House Representative Matthew Martinez, and popularly referred to as the Grey Eagle bill. 154 Stevens funded the writing of the bill and has become widely associated with it. 155 The bill conveyed 1.7 million acres of public lands to the Sioux in fee patent, as opposed to trust status. 156 It also clarified the status of lands within the reestablished area. Only those lands conveyed in the [*346] reestablished area would have reservation status. 157 Finally, Title III of the bill guarantees the territorial and political integrity of Sioux governments strengthening tribal governments vis-a-vis state and federal governments. 158 In order to diffuse the fragmentation within the tribe over compensation, the Grey Eagles, according to Gonzalez, proposed the blue-ribbon panel to "hear everybody's proposals-- including Gerald Clifford's and Phil Stevens'." 159 Congress never acted on the bill, and Martinez refused to reintroduce it due to widespread Lakota opposition to the bill. 160

The polarization of the Sioux nations, between supporters of the Bradley bill and those of the Martinez bill, continues to linger to this day. Much of that polarization centers around the role of Phil Stevens. His unsubstantiated claim to Lakota ancestry, unprecedented appointment as an Itancankel (special chief) by the Grey Eagles, and his turning the Grey Eagles against the Bradley bill has left lingering mistrust, concern, and ill-will. Charlotte Black Elk, secretary of the Black Hills Steering Committee (now defunct) and Bradley bill supporter says, "Phil Stevens makes us non-credible, he paints us with a wide brush of idiocy. Nothing will be done until he's gone. With him, the Black Hills are for sale, for $ 3 billion. It will take us a generation to live down what we did to ourselves." 161 Moreover, the sudden turn against the Bradley bill by the Grey Eagles in Washington, D.C., at the same time the bill was being considered, alienated congressional supporters of the Sioux. By 1993 all sides were calling for Stevens to step aside and let reservation-based Lakota leaders take charge of the issue. 162 [*347]

In 1993, a proposed third bill, the Sioux Nation Black Hills Restoration Act of 1993, was circulated among several different Lakota tribes for approval. 163 This proposal was similar to the Martinez bill, but instead of a blue ribbon panel to decide

153 See H.R. 5680, 101st Cong. § 203 (1990). 154 See id. 155 See Interview with Victor Douville, member of the Sicangu Treaty Council and Professor of Lakota Studies, Sinte Gleska University, in Mission, South Dakota, Rosebud Indian Reservation (Sept. 13, 1994). 156 See H.R. 5680, 101st Cong. § 103 (1990).

157 See id. § 104. 158 See id. §§ 301-306. 159 Lakota Times, Dec. 24, 1991, at A8. 160 See Lazarus, supra note 33, at 427. Martinez also cites the opposition of the South Dakota delegation to legislation containing land return provisions as a reason for not reintroducing the bill. Then-President Royal Bull Bear of the Grey Eagle Society and a number of other Lakota observers believe that this was the primary reason for Martinez's lack of action. See Lakota Times, Apr. 17, 1991, at A1. Although, several editorials and articles in the Lakota newspaper, Lakota Times, recognize the lack of tribal unity--with some factions backing the Bradley bill, and others the Grey Eagle Bill--as the most significant obstacle to progress in resolving the Black Hills issue. See Lakota Times, Feb. 5, 1991, at A4; Feb. 26, 1991, at A1; Apr. 17, 1991, at A4; May 15, 1991, at A4; Dec. 24, 1991, at A8. Much of the dissension was focused around the personality and role of Phil Stevens and his association with the Grey Eagles. 161 Interview with Charlotte Black Elk, former secretary of the Black Hills Steering Committee, in Manderson, South Dakota, Pine Ridge Indian Reservation (July 24, 1995). 162 A July 1992 Lakota delegation to Washington, D.C., began their presentation by explaining that Phil Stevens did not represent the Sioux nation. A newspaper article detailing the event describes Phil Stevens as "a California businessman who was appointed a special chief of the Great Sioux Nation by Oliver Red Cloud . . . . Several Sioux tribes have disowned Mr. Stevens, passing resolutions through their tribal councils saying he does not represent them." Lakota Times, July 22, 1992, at A2. Page 19 of 22 23 Okla. City U.L. Rev. 317, *347 compensation, it is directly addressed. The proposed bill details two forms of compensation. The first, "Compensation for Past Damages," allocates as "back rent," on the illegally confiscated Black Hills lands, the monies in the United States treasury (including all interest) appropriated for the 1980 judgment. Second, "Future Compensation for Continuing to Deny the Sioux People the Use and Occupation of 6,000,000 Acres of Land in the Black Hills," calls for "future rent" on the lands. 164 Under the provisions of the legislation the future rent shall be

equivalent to the combined sum of funds provided by the U.S. Government in Fiscal Year 1992 (the last available auditable year) to the eight Sioux tribes involved in this settlement agreement for health, education, general welfare, tribal administration, and other services provided by the U.S. Government and that rental fee shall be paid annually, or until such time as the lands are returned to the Sioux. 165

Phil Stevens lobbied the proposed bill among the Sioux tribes. In a letter to the tribal chairmen of the eight involved tribes, Phil Stevens promised to get the legislation introduced into Congress if the tribes approved it. 166 Even though some of the tribal councils expressed support for the proposal, none formally approved it, and the proposal was shelved. 167 No further legislation for the return of the federal lands in the Black Hills and appropriate compensation for the loss of hunting rights and resource extraction has been introduced in Congress as of this writing.

Within the past few years, Lakota people and their allies have taken a somewhat different approach to the Black Hills. Lakota have begun to exercise their spiritual title to the Black Hills. The Lakota have [*348] intervened in Black Hills land exchanges between the United States Forest Service and private citizens on the basis of the 1868 Treaty. The most high-profile action of this type involved the Hollywood star, Kevin Costner, and his brother, Dan. The Costners needed a piece of federal Black Hills land in order to complete their eighteen-hole golf course at their five star resort in Deadwood. They offered to trade 585 acres of Spearfish Canyon, valued at $ 1.15 million for the 630 acre Deadwood Hills tract valued at $ 1.14 million. 168 Lakota publicly protested the land swap deal, calling for "meaningful consultations between tribes and federal agencies involved in land transfers in the Black Hills." 169 The Cheyenne River Sioux Tribe passed a resolution stating: "We continue to resist business dealings pertaining to lands wrongfully taken from the Great Sioux Nation by the United States." 170 Victor Douville, Secretary of the Sicangu Treaty Council stated: "We believe the United States Forest Service is managing the Black Hills temporarily." 171 Also in 1995, a Final Climbing Management Plan, written by tribal representatives, climbers, environmentalists, and National Park Services representatives, closed commercial climbing on Devils Tower during the month of June to accommodate American Indian religious ceremonies. 172 The mandatory closure was later declared unconstitutional; however, a voluntary ban on climbing during the month of June reduced the number of climbers by ninety percent. 173

Lakota continue to intervene in land management issues in the Black Hills. Most recently, the Rosebud, Standing Rock, and Oglala Sioux tribes, the Lakota Land Owners Association, and the Grey Eagles filed for intervenor status in the revised Black Hills National Forest Service management plan. 174 In doing so, they formed alliances with several high profile environmental

163 See Lakota Times, Aug. 11, 1993, at A1. The author retains a draft of the proposed bill in her files. 164 See the Sioux National Black Hills Restoration Act § 205.1 (1993) (copy on file with author). 165 Id. 166 See Lakota Times, Aug. 11, 1993, at A1. 167 See id. 168 See Indian Country Today, May 4, 1995, at A1. 169 Indian Country Today, June 6, 1995, at B1. 170 Indian Country Today, Apr. 20, 1995, at B1. 171 Id. 172 See Indian Country Today, Mar. 28, 1996, at A1. 173 See Indian Country Today, Apr. 18, 1995, at B2. The voluntary ban on climbing in the month of June was upheld by the District Court. Bear Lodge Multiple Use Ass'n v. Babbitt, 2 F. Supp. 2d 1448 (1998). Page 20 of 22 23 Okla. City U.L. Rev. 317, *348 groups including the Sierra Club and the Audubon Society. 175 The Lakota are opposed to the Plan's exploitative use of the forest that would result in the logging of over 25,000 acres each year with an estimated 22,000 acres to be clear-cut in [*349] the first ten years. 176 Oglala Fifth Council member Philip Under Baggage cites the lack of government-to-government relations in the plan as a key issue. 177 The Standing Rock tribal council passed a resolution on the matter, stating, in part: "the Black Hills initiated the creation of the universe and has many areas that are holy and the 1996 Revised Management Plan does not create a balance between growth in industry, domesticated animals and the natural ecosystem and the cultural uses of the Native American people." 178 As part of their spiritual covenant with the Black Hills, the Lakota are pursuing a variety of avenues to exercise guardianship in the area.

Initiating small-scale Black Hills land returns has also been a focus of Lakota action in the past several years. As early as 1991, Lakota tribes passed resolutions in favor of acquiring surplus lands from the U.S. Forest Service in the Black Hills. 179 In 1992, Phil Stevens and Oglala Tribal Chairman Harold Salway went to Washington, D.C. to discuss draft legislation for a land transfer. 180 The trip was not approved by the Oglala Tribal Council which sent an official delegation to Washington for discussions on the same issue in July. 181 In the private sector, Oglala Tribal Chairman John Steele, on behalf of the Great Sioux Nation, helped to negotiate the first land return of 1200 acres in the southern Black Hills from Alliant Techsystems. 182

Other protests, actions, and lawsuits all seek to reestablish the Lakota spiritual guardianship of Paha Sapa. In 1994, a Lakota- organized rally at Bear Butte protested "new-age exploitation" of the sacred site. 183 In 1996, the Lakota Student Alliance held a peaceful assembly at Mount Rushmore during the filming of a music video by the rock band Presidents of the United States. 184 "The students expressed an alternative viewpoint of the four presidents carved in the mountain and the reasons why the Sioux Nation continues to refuse monetary compensation from the United States government." 185 The Cheyenne River Sioux Tribe filed a lawsuit against the Homestake Mining Company, located in the Black Hills, for polluting South Dakota's watershed with over 100 million tons [*350] of toxic mine tailings. 186 The suit alleges that in addition to the tailings, a daily average of 240 pounds of zinc, 72 pounds of copper, and 10 tons of arsenopyrite were discharged into Whitewood Creek through 1977. 187 Other hazardous substances discharged into the Creek include: mercury (until 1970), cadmium, chromium, lead, nickel, selenium, and silver. 188

The Lakota have also exercised their spiritual guardianship in the Black Hills by continuing to hold both small and large ceremonies within Paha Sapa. On June 21, 1996, a World Peace and Prayer Day was held at Grey Buffalo Horn Butte (Devils Tower). This ceremony, organized in part by the Keeper of the Sacred Pipe, Arvol Looking Horse, is part of a series of ceremonies and prophetic unfoldings to "mend the sacred hoop of the Lakota" and begin global healing by working toward

174 See Indian Country Today, Nov. 24, 1997, at B1. 175 See id. 176 See id.

177 See id. 178 Id. 179 See Lakota Times, Oct. 30, 1991, at A1. 180 See Lakota Times, Feb. 26, 1992, at A1. 181 See Lakota Times, July 22, 1992, at A1. 182 See Indian Country Today, Dec. 29, 1997, at B1. 183 Indian Country Today, June 29, 1994, at A1. 184 See Indian Country Today, Feb. 29, 1996, at B1. 185 Id. 186 See Indian Country Today, Dec. 15, 1997, at A1. 187 See id. 188 See id. Page 21 of 22 23 Okla. City U.L. Rev. 317, *350 world peace and harmony. 189 According to Looking Horse, "In August of 1994, a White Buffalo Female Calf was born. This tells us it is time to take our rightful place in leading the people towards Peace and Balance once again. We will be strong and the people will heal. Our healing is global." 190 Looking Horse has been instrumental in helping the Lakota return to Paha Sapa to pray, stating that on June 21, 1996, the people "prayed for the return of our holy land." 191 Other ceremonies that have focused on mending the sacred hoop of the Lakota people, which includes a reunification of the People with the Black Hills, include the Chief Sitting Bull-Chief Bigfoot Memorial Rides of 1986, 1987, 1988, and 1989; the Wiping of Tears Ride in 1990 and 1992; and the Unity Rides of 1993, 1994, 1995, and 1996. 192 Moreover, Sun Dances and ceremonies at other specific sites in the Black Hills occur annually. 193

While working to reclaim lands and revitalize the spiritual connection to Paha Sapa, the Lakota have had to contend with two of the smaller Sioux tribes attempting to collect their portion of a 1989 Court of Claims award for $ 40 million. While the case does not involve the Black Hills, it does involve the 1868 Treaty of Fort Laramie. In 1961, Sioux [*351] land claims based on the 1868 Treaty against the United States government were split into two dockets. The claim involving the illegal taking of the Black Hills became Docket 74B, and the claim for lands ceded under the 1868 Treaty became Docket 74A. In 1994, the Santee Sioux of Nebraska contacted Representative Bill Barrett (Republican from Nebraska) to draw up legislation to distribute the interest from their portion of the Docket 74A award. Introduced into the House on June 6, 1996, hearings were held on August 1 by the Subcommittee on Native American and Insular Affairs. The hearings were attended by representatives of the Lakota tribes who vehemently oppose any distribution of land claims money. Their opposition centers on the principle that they continue to seek a "fair and honorable" legislative settlement. Moreover, there is a legitimate legal question as to whether or not the Santee are eligible for Docket 74A money. 194

Under tribal chairman Art "Butch" Denny, the Santee pursued the award monies because of their desperate economic situation. In 1996, the small Nebraska reservation faced an unemployment rate of ninety-five percent and was unable to bury three tribal members because the tribe had no money to do so. 195 In addition, according to Denny,

tribal members feel the land will never be returned. They are hurting because of recent budget cuts and accepting the award at this time will benefit the Santee people. . . . the Santee supported the Bradley bill. We never jumped on the Phil Stevens' band wagon . . . . We are being realistic. We know we will never get those lands back. We could use that money to buy land here. People need to be realistic. What would we do if given the Black Hills anyway? What would happen, it would cause one of the biggest fights in Indian country. 196

The bill proposed that the Santee would receive their proportion of the interest accrued on their proportion of the judgment, transferring $ 3.2 million to the tribe to be used for economic development, burials, and tribal budgeting. 197

Three Santee tribal council members opposed the distribution legislation. Their reasoning for doing so involved the principles of [*352] identity bound up in the 1868 Treaty of Fort Laramie. Their position paper states:

We further stress that this action to seek Docket 74A has threatened the future of our Tribal members and the generations to come. This self-governing act has violated the contents of the 1868 Ft. Laramie Treaty and disrespect to bands involved. This

189 See Looking Horse, World Peace and Prayer Day, 2 Akwesasne Notes New Series 19 (1996). 190 Looking Horse, supra note 1, at 13. On the birth and meaning of White Buffalo calves, see Indian Country Today, May 28, 1996, at A1; March 11, 1996, at A1; and Sept. 8, 1994, at B1. 191 Looking Horse, supra note 189, at 19. 192 See Hill, Mending the Sacred Hoop, 2 Akwesasne Notes New Series 47, 51 (1996). 193 See Indian Country Today, Mar. 28, 1996, at A3; June 22, 1995, at B1. 194 See Indian Country Today, July 12, 1996, at A1. 195 See Indian Country Today, Oct. 14, 1996, at A1. 196 Indian Country Today, May 21, 1996, at A2. 197 See H.R. 3595, 104th Cong. § 1 (1996). Page 22 of 22 23 Okla. City U.L. Rev. 317, *352 gross action has hindered the Laws of the Great Sioux Nation by weakening the 1868 Treaty that serves as a legal binding agreement with America to acknowledge all Tribes as sovereign entities. 198

With the election of a new tribal chairman in September of 1996, the Santee are no longer pursuing 74A award monies. However, in November of 1996, Fort Peck Sioux, by a vote of 507 to 138, voted to accept their share of 74A monies. 199 Nevertheless the majority of Sioux still take the position that the taking of any monies from either of the judgments, including interest monies, "is to abandon the claim to the Black Hills." 200 The strength of the Lakota in defining themselves as Lakota in relationship to a lived physical, social, and spiritual relationship with Paha Sapa, as defined by treaties, can be demonstrated by their refusal to accept monetary compensation without a return of Black Hills lands. In order to know who they are, they must remember and uphold their spiritual covenant with Paha Sapa. Arvol Looking Horse states: "we protect the Black Hills, the sacred altar, so that our people will always know and remember that it is the center, the place where our relatives came from." 201 As of April 8, 1996, $ 391,211,943, including interest, the award for the Black Hills, remains in the United States Treasury unclaimed. 202

End of Document

198 Indian Country Today, Sept. 2, 1996, at B1. 199 Indian Country Today, Dec. 1, 1996, at A1. 200 Indian Country Today, Oct. 14, 1995, at A1. 201 Indian Country Today, June 18, 1996, at B2. 202 See Indian Country Today, Apr. 23, 1996, at A1.

Physical Activity As a Tool for Coping with Stress

Presented by: Dean Carla Pratt & Karli Davis

Date: Sunday, July 19

Time: 8:45 a.m.

Location: Mt. Roosevelt Trail (Depart from Lodge)

ssionalinterestinthematter r understanding of the needs ation, the public health and been regularly studied among Volume 10, Number 1, January/February 2016 While the authors of the 1990 study called for Although the consequences of attorney impairment may ittle is known about thein current the behavioral health legal climate profession. Despite a widespread belief that ESEARCH L among lawyers, therefore,must has be substantial addressed. implicationslong Although understood and the need many for greater inattorneys resources and the struggling support for profession withconcerns, have the addiction formulation of or cohesivefor and other informed strategies addressing mental those health issues has been handicapped by the 1990). Researchers founddrinkers, 18% which of theymated stated attorneys was prevalence were almost of problem American twice alcohol adults the abuse at 10% that and time.the esti- dependence Washington They lawyers further among suffered found from thatelevated statistically 19% levels significant of of depression, whichthen-current depression they estimates contrasted of with 3%in the to Western 9% industrialized of countries. individuals additional researchand about depression the amongcentury practicing prevalence has passed US with ofbehavioral no attorneys, such health alcoholism a data issues emerging. have quarter Inphysicians, contrast, providing aof firme thatphysicians population experience (Oreskovichsimilar substance et to use al., thesafety disorders 2012). general issues at Although popul associatedledtointensepublicandprofe a with rate physician(DuPont impairment et al., have 2009). seem less direct orphysicians, urgent they than are theAs nonetheless threat a posed profound licensed by profession and that impaired economy, far-reaching. influences all and aspects ofattorneys society, government, are levels ofclosely of evaluated great (Rothstein, importance 2008). impairment Acurrent and scarcity among rates of should data of on therefore the substance be use and mental health concerns attorneys experience substance use disorders andhealth other concerns mental at ataken high to rate, few validateAlthough studies have these previous been research beliefs under- legal had empirically indicated profession or thatdepression, statistically. those struggle and anxiety in more with the the so issues than have problematic the largely general gonemin population, alcohol unexamined et for al., decades use, (Benja- 1990;most Eaton recent and et also al.,issues the 1990; most comes Beck widely et cited from1200 al., research on a 1995). these attorneys The 1990 study in involving Washington approximately State (Benjamin et al., J Addict Med R RIGINAL O 0.001). Age group predicted < P Patrick R. Krill, JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW 0.001). Levels of depression, anxiety, and stress < 2016;10: 46–52) Health Concerns Among American Attorneys Attorneys experience problematic drinking that is attorneys, mental health, prevalence, substance use P Rates of substance use and other mental health concerns 2016 American Society of Addiction Medicine. This is an open- A sample of 12,825 licensed, employed attorneys com- ß Substantial rates of behavioral health problems were found, The Prevalence of Substance Use and Other Mental Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited. Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction Foundation. No conflicts of interest are identified. Hazelden Betty Ford Foundation,55012-0011. PO E-mail: Box [email protected]. 11 (RE 11), Center City, MN Assistance Program (LA). American Bar Association Commission on Lawyer Assistance Programs. Wisconsin. Remaining authors are employees of the Hazelden Betty Ford access article distributedAttribution-Non under Commercial-No the Derivativespermissible License to terms download and 4.0, of shareThe where the the work work provided it cannot Creative it be is is Commons changed properly cited. in any way or used commercially. J Addict Med at a higher ratedistress is than also other significant. These professional data underscore populations.resources the for Mental need lawyer for health greater assistance programs,available and attorney-specific also prevention and the treatment expansion interventions. of Key Words: ( of age or younger wereolder more likely peers to have ( aamong higher attorneys score were than their significant, withencing 28%, symptoms 19%, of and depression, 23% anxiety, and experi- Conclusions: stress, respectively. hazardous, harmful, or otherwise consistent with alcohol use disorders Alcohol Use Disorders Identification Test scores; respondents 30 years 46 Send correspondence and reprint requests to Patrick R.Copyright Krill, JD, LLM, From the Hazelden Betty Ford Foundation (PRK,Received RJ); for Wisconsin publication Lawyers JuneFunding: The 26, study was 2015; funded by accepted the Hazelden October Betty Ford 25, Foundation and 2015. the Conflicts of interest: Linda Albert is an employee of the State Bar of depression, anxiety, and stress. Results: with 20.6% screening positivetially for alcohol-dependent hazardous, drinking. harmful, Menpositive and had screens, and poten- a also higher younger proportion participantsthe and of field those working for in a shorter duration ( harm that attorney impairmentthemselves, poses and to to thesociety. This our struggling study measured individuals communities, the prevalence government, oflicensed these concerns economy, attorneys, among their and utilizationbarriers of existed treatment between services, them andMethods: and what the services theypleted may surveys, need. assessing alcohol use, drug use, and symptoms of Objectives: among attorneys are relatively unknown, despite the potential for ISSN: 1932-0620/15/0901-0031 DOI: 10.1097/ADM.0000000000000182

Downloaded from https://journals.lww.com/journaladdictionmedicine by BhDMf5ePHKav1zEoum1tQfN4a+kJLhEZgbsIHo4XMi0hCywCX1AWnYQp/IlQrHD31kf1ZzWr4Xtu2R0Q4B1fCE7yv7m2G6KyyN58rugxEog= on 07/12/2020 Downloaded from https://journals.lww.com/journaladdictionmedicine by BhDMf5ePHKav1zEoum1tQfN4a+kJLhEZgbsIHo4XMi0hCywCX1AWnYQp/IlQrHD31kf1ZzWr4Xtu2R0Q4B1fCE7yv7m2G6KyyN58rugxEog= on 07/12/2020 J Addict Med Volume 10, Number 1, January/February 2016 Substance Use and Other Mental Health Concerns

outdated and poorly defined scope of the problem (Associ- TABLE 1. Participant Characteristics ation of American Law Schools, 1994). Recognizing this need, we set out to measure the n (%) prevalence of substance use and mental health concerns Total sample 12825 (100) among licensed attorneys, their awareness and utilization Sex of treatment services, and what, if any, barriers exist between Men 6824 (53.4) Women 5941 (46.5) them and the services they may need. We report those Age category findings here. 30 or younger 1513 (11.9) 31–40 3205 (25.2) METHODS 41–50 2674 (21.0) 51–60 2953 (23.2) 61–70 2050 (16.1) Procedures 71 or older 348 (2.7) Before recruiting participants to the study, approval Race/ethnicity was granted by an institutional review board. To obtain a Caucasian/White 11653 (91.3) representative sample of attorneys within the United States, Latino/Hispanic 330 (2.6) Black/African American (non-Hispanic) 317 (2.5) recruitment was coordinated through 19 states. Among Multiracial 189 (1.5) them, 15 state bar associations and the 2 largest counties Asian or Pacific Islander 150 (1.2) of 1 additional state e-mailed the survey to their members. Other 84 (0.7) Those bar associations were instructed to send 3 recruit- Native American 35 (0.3) Marital status ment e-mails over a 1-month period to all members who Married 8985 (70.2) were currently licensed attorneys. Three additional states Single, never married 1790 (14.0) posted the recruitment announcement to their bar associ- Divorced 1107 (8.7) ation web sites. The recruitment announcements provided a Cohabiting 462 (3.6) brief synopsis of the study and past research in this area, Life partner 184 (1.4) Widowed 144 (1.1) described the goals of the study, and provided a URL Separated 123 (1.0) directing people to the consent form and electronic survey. Have children Participants completed measures assessing alcohol use, Yes 8420 (65.8) drug use, and mental health symptoms. Participants No 4384 (34.2) Substance use in the past 12 mos were not asked for identifying information, thus allowing Alcohol 10874 (84.1) them to complete the survey anonymously. Because of Tobacco 2163 (16.9) concerns regarding potential identification of individual Sedatives 2015 (15.7) bar members, IP addresses and geo-location data were Marijuana 1307 (10.2) not tracked. Opioids 722 (5.6) Stimulants 612 (4.8) Cocaine 107 (0.8)

Participants A total of 14,895 individuals completed the survey. Substance use includes both illicit and prescribed usage. Participants were included in the analyses if they were currently employed, and employed in the legal profession, Materials resulting in a final sample of 12,825. Due to the nature of recruitment (eg, e-mail blasts, web postings), and that recruit- Alcohol Use Disorders Identification Test ment mailing lists were controlled by the participating bar The Alcohol Use Disorders Identification Test (AUDIT) associations, it is not possible to calculate a participation rate (Babor et al., 2001) is a 10-item self-report instrument among the entire population. Demographic characteristics are developed by the World Health Organization (WHO) to presented in Table 1. Fairly equal numbers of men (53.4%) screen for hazardous use, harmful use, and the potential for and women (46.5%) participated in the study. Age was alcohol dependence. The AUDIT generates scores ranging measured in 6 categories from 30 years or younger, and from 0 to 40. Scores of 8 or higher indicate hazardous or increasing in 10-year increments to 71 years or older; the harmful alcohol intake, and also possible dependence (Babor most commonly reported age group was 31 to 40 years old. et al., 2001). Scores are categorized into zones to reflect The majority of the participants were identified as Caucasian/ increasing severity with zone II reflective of hazardous use, White (91.3%). zone III indicative of harmful use, and zone IV warranting full As shown in Table 2, the most commonly reported legal diagnostic evaluation for alcohol use disorder. For the pur- professional career length was 10 years or less (34.8%), poses of this study, we use the phrase ‘‘problematic use’’ to followed by 11 to 20 years (22.7%) and 21 to 30 years capture all 3 of the zones related to a positive AUDIT screen. (20.5%). The most common work environment reported The AUDIT is a widely used instrument, with well was in private firms (40.9%), among whom the most common established validity and reliability across a multitude of positions were Senior Partner (25.0%), Junior Associate populations (Meneses-Gaya et al., 2009). To compare current (20.5%), and Senior Associate (20.3%). Over two-thirds rates of problem drinking with those found in other popu- (67.2%) of the sample reported working 41 hours or more lations, AUDIT-C scores were also calculated. The AUDIT-C per week. is a subscale comprised of the first 3 questions of the AUDIT

ß 2016 American Society of Addiction Medicine 47

TABLE 2. Professional Characteristics research setting. The DAST scores range from 0 to 10 and are categorized into low, intermediate, substantial, and severe- n (%) concern categories. The DAST-10 correlates highly with both Total sample 12825 (100) 20-item and full 28-item versions, and has demonstrated Years in field (yrs) reliability and validity (Yudko et al., 2007). 0–10 4455 (34.8) 11–20 2905 (22.7) 21–30 2623 (20.5) RESULTS 31–40 2204 (17.2) Descriptive statistics were used to outline personal and 41 or more 607 (4.7) professional characteristics of the sample. Relationships Work environment between variables were measured through x2 tests for inde- Private firm 5226 (40.9) Sole practitioner, private practice 2678 (21.0) pendence, and comparisons between groups were tested using In-house government, public, or nonprofit 2500 (19.6) Mann-Whitney U tests and Kruskal-Wallis tests. In-house: corporation or for-profit institution 937 (7.3) Judicial chambers 750 (7.3) Alcohol Use Other law practice setting 289 (2.3) Of the 12,825 participants included in the analysis, College or law school 191 (1.5) Other setting (not law practice) 144 (1.1) 11,278 completed all 10 questions on the AUDIT, with Bar Administration or Lawyers Assistance Program 55 (0.4) 20.6% of those participants scoring at a level consistent with Firm position problematic drinking. The relationships between demographic Clerk or paralegal 128 (2.5) and professional characteristics and problematic drinking are Junior associate 1063 (20.5) Senior associate 1052 (20.3) summarized in Table 3. Men had a significantly higher pro- Junior partner 608 (11.7) portion of positive screens for problematic use compared with 2 Managing partner 738 (14.2) women (x [1, N ¼ 11,229] ¼ 154.57, P < 0.001); younger Senior partner 1294 (25.0) participants had a significantly higher proportion compared Hours per wk with the older age groups (x2 [6, N ¼ 11,213] ¼ 232.15, Under 10 h 238 (1.9) 11–20 h 401 (3.2) P < 0.001); and those working in the field for a shorter duration 21–30 h 595 (4.7) had a significantly higher proportion compared with those who 31–40 h 2946 (23.2) had worked in the field for longer (x2 [4, N ¼ 11,252] ¼ 230.01, 41–50 h 5624 (44.2) P < 0.001). Relative to work environment and position, 51–60 h 2310 (18.2) 61–70 h 474 (3.7) attorneys working in private firms or for the bar association 71 h or more 136 (1.1) had higher proportions than those in other environments 2 Any litigation (x [8, N ¼ 11,244] ¼ 43.75, P < 0.001), and higher pro- Yes 9611 (75.0) portions were also found for those at the junior or No 3197 (25.0) senior associate level compared with other positions (x2 [6, N ¼ 4671] ¼ 61.70, P < 0.001). Of the 12,825 participants, 11,489 completed the first focused on the quantity and frequency of use, yielding a range 3 AUDIT questions, allowing an AUDIT-C score to be calcu- of scores from 0 to 12. The results were analyzed using a cut- lated. Among these participants, 36.4% had an AUDIT-C score off score of 5 for men and 4 for women, which have been consistent with hazardous drinking or possible alcohol abuse or interpreted as a positive screen for alcohol abuse or possible dependence. A significantly higher proportion of women alcohol dependence (Bradley et al., 1998; Bush et al., 1998). (39.5%) had AUDIT-C scores consistent with problematic Two other subscales focus on dependence symptoms (eg, use compared with men (33.7%) (x2 [1, N ¼ 11,440] ¼ impaired control, morning drinking) and harmful use (eg, 41.93, P < 0.001). blackouts, alcohol-related injuries). A total of 2901 participants (22.6%) reported that they have felt their use of alcohol or other substances was problem- Depression Anxiety Stress Scales-21 item version atic at some point in their lives; of those that felt their use has The Depression Anxiety Stress Scales-21 (DASS-21) is been a problem, 27.6% reported problematic use manifested a self-report instrument consisting of three 7-item subscales before law school, 14.2% during law school, 43.7% within 15 assessing symptoms of depression, anxiety, and stress. Indi- years of completing law school, and 14.6% more than 15 years vidual items are scored on a 4-point scale (0–3), allowing for after completing law school. subscale scores ranging from 0 to 21 (Lovibond and Lovi- An ordinal regression was used to determine the pre- bond, 1995). Past studies have shown adequate construct dictive validity of age, position, and number of years in the validity and high internal consistency reliability (Antony legal field on problematic drinking behaviors, as measured by et al., 1998; Clara et al., 2001; Crawford and Henry, 2003; the AUDIT. Initial analyses included all 3 factors in a model to Henry and Crawford, 2005). predict whether or not respondents would have a clinically significant total AUDIT score of 8 or higher. Age group Drug Abuse Screening Test-10 item version predicted clinically significant AUDIT scores; respondents The short-form Drug Abuse Screening Test-10 (DAST) 30 years of age or younger were significantly more likely to is a 10-item, self-report instrument designed to screen and have a higher score than their older peers (b ¼ 0.52, Wald quantify consequences of drug use in both a clinical and [df ¼ 1] ¼ 4.12, P < 0.001). Number of years in the field

48 ß 2016 American Society of Addiction Medicine

Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited. J Addict Med Volume 10, Number 1, January/February 2016 Substance Use and Other Mental Health Concerns

TABLE 3. Summary Statistics for Alcohol Use Disorders Identification Test (AUDIT) AUDIT Statistics nMSDProblematic % P Total sample 11,278 5.18 4.53 20.6% Sex Men 6012 5.75 4.88 25.1% <0.001 Women 5217 4.52 4.00 15.5% Age category (yrs) 30 or younger 1393 6.43 4.56 31.9% 31–40 2877 5.84 4.86 25.1% 41–50 2345 4.99 4.65 19.1% <0.001 51–60 2548 4.63 4.38 16.2% 61–70 1753 4.33 3.80 14.4% 71 or older 297 4.22 3.28 12.1% Years in field (yrs) 0–10 3995 6.08 4.78 28.1% 11–20 2523 5.02 4.66 19.2% 21–30 2272 4.65 4.43 15.6% <0.001 31–40 1938 4.39 3.87 15.0% 41 or more 524 4.18 3.29 13.2% Work environment Private firm 4712 5.57 4.59 23.4% Sole practitioner, private practice 2262 4.94 4.72 19.0% In-house: government, public, or nonprofit 2198 4.94 4.45 19.2% In-house: corporation or for-profit institution 828 4.91 4.15 17.8% <0.001 Judicial chambers 653 4.46 3.83 16.1% College or law school 163 4.90 4.66 17.2% Bar Administration or Lawyers Assistance Program 50 5.32 4.62 24.0% Firm position Clerk or paralegal 115 5.05 4.13 16.5% Junior associate 964 6.42 4.57 31.1% Senior associate 938 5.89 5.05 26.1% <0.001 Junior partner 552 5.76 4.85 23.6% Managing partner 671 5.22 4.53 21.0% Senior partner 1159 4.99 4.26 18.5%

The AUDIT cut-off for hazardous, harmful, or potential alcohol dependence was set at a score of 8. Comparisons were analyzed using Mann-Whitney U tests and Kruskal-Wallis tests. approached significance, with higher AUDIT scores predicted Drug Use for those just starting out in the legal profession (0–10 yrs of Participants were questioned regarding their use of experience) (b ¼ 0.46, Wald [df ¼ 1] ¼ 3.808, P ¼ 0.051). various classes of both licit and illicit substances to provide Model-based calculated probabilities for respondents aged a basis for further study. Participant use of substances is 30 or younger indicated that they had a mean probability of displayed in Table 1. Of participants who endorsed use of 0.35 (standard deviation [SD] ¼ 0.01), or a 35% chance for a specific substance class in the past 12 months, those using scoring an 8 or higher on the AUDIT; in comparison, those stimulants had the highest rate of weekly usage (74.1%), respondents who were 61 or older had a mean probability of followed by sedatives (51.3%), tobacco (46.8%), marijuana 0.17 (SD ¼ 0.01), or a 17% chance of scoring an 8 or higher. (31.0%), and opioids (21.6%). Among the entire sample, Each of the 3 subscales of the AUDIT was also inves- 26.7% (n ¼ 3419) completed the DAST, with a mean score tigated. For the AUDIT-C, which measures frequency and of 1.97 (SD ¼ 1.36). Rates of low, intermediate, substantial, quantity of alcohol consumed, age was a strong predictor of and severe concern were 76.0%, 20.9%, 3.0%, and 0.1%, subscore, with younger respondents demonstrating signifi- respectively. Data collected from the DAST were found to cantly higher AUDIT-C scores. Respondents who were not meet the assumptions for more advanced statistical 30 years old or younger, 31 to 40 years old, and 41 to 50 procedures. As a result, no inferences about these data years old all had significantly higher AUDIT-C scores than could be made. their older peers, respectively (b ¼ 1.16, Wald [df ¼ 1] ¼ 24.56, P < 0.001; b ¼ 0.86, Wald [df ¼ 1] ¼ 16.08, Mental Health P < 0.001; and b ¼ 0.48, Wald [df ¼ 1] ¼ 6.237, P ¼ 0.013), Among the sample, 11,516 participants (89.8%) com- indicating that younger age predicted higher frequencies of pleted all questions on the DASS-21. Relationships between drinking and quantity of alcohol consumed. No other factors demographic and professional characteristics and depression, were significant predictors of AUDIT-C scores. Neither the anxiety, and stress subscale scores are summarized in Table 4. predictive model for the dependence subscale nor the harmful While men had significantly higher levels of depression use subscale indicated significant predictive ability for the (P < 0.05) on the DASS-21, women had higher levels of 3 included factors. anxiety (P < 0.001) and stress (P < 0.001). DASS-21 anxiety,

ß 2016 American Society of Addiction Medicine 49

TABLE 4. Summary Statistics for Depression Anxiety Stress Scale (DASS-21) DASS Depression DASS Anxiety DASS Stress nMSDP nMSDP nMSDP Total sample 12300 3.51 4.29 12277 1.96 2.82 12271 4.97 4.07 Sex Men 6518 3.67 4.46 <0.05 6515 1.84 2.79 <0.001 6514 4.75 4.08 <0.001 Women 5726 3.34 4.08 5705 2.10 2.86 5705 5.22 4.03 Age category (yrs) 30 or younger 1476 3.71 4.15 1472 2.62 3.18 1472 5.54 4.61 31–40 3112 3.96 4.50 3113 2.43 3.15 3107 5.99 4.31 41–50 2572 3.83 4.54 <0.001 2565 2.03 2.92 <0.001 2559 5.36 4.12 <0.001 51–60 2808 3.41 4.27 2801 1.64 2.50 2802 4.47 3.78 61–70 1927 2.63 3.65 1933 1.20 2.06 1929 3.46 3.27 71 or older 326 2.03 3.16 316 0.95 1.73 325 2.72 3.21 Years in field 0–10 yrs 4330 3.93 4.45 4314 2.51 3.13 4322 5.82 4.24 11–20 yrs 2800 3.81 4.48 2800 2.09 3.01 2777 5.45 4.20 21–30 yrs 2499 3.37 4.21 <0.001 2509 1.67 2.59 <0.001 2498 4.46 3.79 <0.001 31–40 yrs 2069 2.81 3.84 2063 1.22 1.98 2084 3.74 3.43 41 or more yrs 575 1.95 3.02 564 1.01 1.94 562 2.81 3.01 Work environment Private firm 5028 3.47 4.17 5029 2.01 2.85 5027 5.11 4.06 Sole practitioner, private practice 2568 4.27 4.84 2563 2.18 3.08 2567 5.22 4.34 In-house: government, public, or nonprofit 2391 3.45 4.26 2378 1.91 2.69 2382 4.91 3.97 In-house: corporation or for-profit institution 900 2.96 3.66 <0.001 901 1.84 2.80 <0.001 898 4.74 3.97 <0.001 Judicial chambers 717 2.39 3.50 710 1.31 2.19 712 3.80 3.44 College or law school 182 2.90 3.72 188 1.43 2.09 183 4.48 3.61 Bar Administration or Lawyers 55 2.96 3.65 52 1.40 1.94 53 4.74 3.55 Assistance Program Firm position Clerk or paralegal 120 3.98 4.97 121 2.10 2.88 121 4.68 3.81 Junior associate 1034 3.93 4.25 1031 2.73 3.31 1033 5.78 4.16 Senior associate 1021 4.20 4.60 <0.001 1020 2.37 2.95 <0.001 1020 5.91 4.33 <0.001 Junior partner 590 3.88 4.22 592 2.16 2.78 586 5.68 4.15 Managing partner 713 2.77 3.58 706 1.62 2.50 709 4.73 3.84 Senior partner 1219 2.70 3.61 1230 1.37 2.43 1228 4.08 3.57 DASS-21 category frequencies n % n % n % Normal 8816 71.7 9908 80.7 9485 77.3 Mild 1172 9.5 1059 8.6 1081 8.8 Moderate 1278 10.4 615 5.0 1001 8.2 Severe 496 4.0 310 2.5 546 4.4 Extremely severe 538 4.4 385 3.1 158 1.3

Comparisons were analyzed using Mann-Whitney U tests and Kruskal-Wallis tests. depression, and stress scores decreased as participants’ age or Treatment Utilization and Barriers to years worked in the field increased (P < 0.001). When com- Treatment paring positions within private firms, more senior positions Of the 6.8% of the participants who reported past treat- were generally associated with lower DASS-21 subscale ment for alcohol or drug use (n ¼ 807), 21.8% (n ¼ 174) scores (P < 0.001). Participants classified as nonproblematic reported utilizing treatment programs specifically tailored to drinkers on the AUDIT had lower levels of depression, anxiety, legal professionals. Participants who had reported prior treat- and stress (P < 0.001), as measured by the DASS-21. ment tailored to legal professionals had significantly lower Comparisons of DASS-21 scores by AUDIT drinking classi- mean AUDIT scores (M ¼ 5.84, SD ¼ 6.39) than participants fication are outlined in Table 5. who attended a treatment program not tailored to legal pro- Participants were questioned regarding any past mental fessionals (M ¼ 7.80, SD ¼ 7.09, P < 0.001). health concerns over the course of their legal career, and Participants who reported prior treatment for substance provided self-report endorsement of any specific mental use were questioned regarding barriers that impacted their health concerns they had experienced. The most common ability to obtain treatment services. Those reporting no prior mental health conditions reported were anxiety (61.1%), treatment were questioned regarding hypothetical barriers in followed by depression (45.7%), social anxiety (16.1%), the event they were to need future treatment or services. The attention deficit hyperactivity disorder (12.5%), panic dis- 2 most common barriers were the same for both groups: not order (8.0%), and bipolar disorder (2.4%). In addition, 11.5% wanting others to find out they needed help (50.6% and 25.7% of the participants reported suicidal thoughts at some point for the treatment and nontreatment groups, respectively), and during their career, 2.9% reported self-injurious behaviors, concerns regarding privacy or confidentiality (44.2% and and 0.7% reported at least 1 prior suicide attempt. 23.4% for the groups, respectively).

50 ß 2016 American Society of Addiction Medicine

TABLE 5. Relationship AUDIT Drinking Classification and attorneys aged 31 to 40 (26.1%), with declining rates DASS-21 Mean Scores reported thereafter. Levels of depression, anxiety, and stress among attor- Nonproblematic Problematic neys reported here are significant, with 28%, 19%, and 23% M (SD) M (SD) P experiencing mild or higher levels of depression, anxiety, and DASS-21 total score 9.36 (8.98) 14.77 (11.06) <0.001 stress, respectively. In terms of career prevalence, 61% DASS-21 subscale Depression 3.08 (3.93) 5.22 (4.97) <0.001 reported concerns with anxiety at some point in their career scores and 46% reported concerns with depression. Mental health Anxiety 1.71 (2.59) 2.98 (3.41) <0.001 Stress 4.59 (3.87) 6.57 (4.38) <0.001 concerns often co-occur with alcohol use disorders (Gianoli and Petrakis, 2013), and our study reveals significantly higher AUDIT, Alcohol Use Disorders Identification Test; DASS-21, Depression Anxiety Stress Scales-21. levels of depression, anxiety, and stress among those screen- The AUDIT cut-off for hazardous, harmful, or potential alcohol dependence was set ing positive for problematic alcohol use. Furthermore, these at a score of 8. mental health concerns manifested on a similar trajectory to Means were analyzed using Mann-Whitney U tests. alcohol use disorders, in that they generally decreased as both age and years in the field increased. At the same time, those DISCUSSION with depression, anxiety, and stress scores within the normal Our research reveals a concerning amount of behavioral range endorsed significantly fewer behaviors associated with health problems among attorneys in the United States. Our problematic alcohol use. most significant findings are the rates of hazardous, harmful, While some individuals may drink to cope with their and potentially alcohol dependent drinking and high rates of psychological or emotional problems, others may experience depression and anxiety symptoms. We found positive AUDIT those same problems as a result of their drinking. It is not clear screens for 20.6% of our sample; in comparison, 11.8% of a which scenario is more prevalent or likely in this population, broad, highly educated workforce screened positive on the though the ubiquity of alcohol in the legal professional culture same measure (Matano et al., 2003). Among physicians and certainly demonstrates both its ready availability and social surgeons, Oreskovich et al. (2012) found that 15% screened acceptability, should one choose to cope with their mental positive on the AUDIT-C subscale focused on the quantity and health problems in that manner. Attorneys working in private frequency of use, whereas 36.4% of our sample screened firms experience some of the highest levels of problematic positive on the same subscale. While rates of problematic alcohol use compared with other work environments, which drinking in our sample are generally consistent with those may underscore a relationship between professional culture reported by Benjamin et al. (1990) in their study of attorneys and drinking. Irrespective of causation, we know that co- (18%), we found considerably higher rates of mental occurring disorders are more likely to remit when addressed health distress. concurrently (Gianoli and Petrakis, 2013). Targeted interven- We also found interesting differences among attorneys tions and strategies to simultaneously address both the alcohol at different stages of their careers. Previous research had use and mental health of newer attorneys warrant serious demonstrated a positive association between the increased consideration and development if we hope to increase overall prevalence of problematic drinking and an increased amount well being, longevity, and career satisfaction. of years spent in the profession (Benjamin et al., 1990). Our Encouragingly, many of the same attorneys who seem to findings represent a direct reversal of that association, with be at risk for alcohol use disorders are also those who should attorneys in the first 10 years of their practice now experi- theoretically have the greatest access to, and resources for, encing the highest rates of problematic use (28.9%), followed therapy, treatment, and other support. Whether through by attorneys practicing for 11 to 20 years (20.6%), and employer-provided health plans or increased personal finan- continuing to decrease slightly from 21 years or more. These cial means, attorneys in private firms could have more options percentages correspond with our findings regarding position for care at their disposal. However, in light of the pervasive within a law firm, with junior associates having the highest fears surrounding their reputation that many identify as a rates of problematic use, followed by senior associates, junior barrier to treatment, it is not at all clear that these individuals partners, and senior partners. This trend is further reinforced would avail themselves of the resources at their disposal while by the fact that of the respondents who stated that they believe working in the competitive, high-stakes environment found in their alcohol use has been a problem (23%), the majority many private firms. (44%) indicated that the problem began within the first Compared with other populations, we find the signifi- 15 years of practice, as opposed to those who indicated the cantly higher prevalence of problematic alcohol use among problem started before law school (26.7%) or after more than attorneys to be compelling and suggestive of the need for 15 years in the profession (14.5%). Taken together, it is tailored, profession-informed services. Specialized treatment reasonable to surmise from these findings that being in the services and profession-specific guidelines for recovery man- early stages of one’s legal career is strongly correlated with a agement have demonstrated efficacy in the physician popu- high risk of developing an alcohol use disorder. Working from lation, amounting to a level of care that is quantitatively and the assumption that a majority of new attorneys will be under qualitatively different and more effective than that available to the age of 40, that conclusion is further supported by the fact the general public (DuPont et al., 2009). that the highest rates of problematic drinking were present Our study is subject to limitations. The participants among attorneys under the age of 30 (32.3%), followed by represent a convenience sample recruited through e-mails and

ß 2016 American Society of Addiction Medicine 51

Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited. Krill et al. J Addict Med Volume 10, Number 1, January/February 2016 news postings to state bar mailing lists and web sites. Because The authors also thank the Hazelden Betty Ford the participants were not randomly selected, there may be a Foundation and The American Bar Association for their voluntary response bias, over-representing individuals that support of this project. have a strong opinion on the issue. Additionally, some of those that may be currently struggling with mental health or sub- REFERENCES stance use issues may have not noticed or declined the Antony M, Bieling P, Cox B, Enns M, Swinson R. Psychometric properties of invitation to participate. Because the questions in the survey the 42-item and 21-item versions of the depression anxiety stress scales in asked about intimate issues, including issues that could clinical groups and a community sample. Psychol Assess 1998;2:176–181. jeopardize participants’ legal careers if asked in other contexts Association of American Law Schools. Report of the AALS special committee on problems of substance abuse in the law schools. J Legal Educ (eg, illicit drug use), the participants may have withheld 1994;44:35–80. information or responded in a way that made them seem Babor TF, Higgins-Biddle JC, Saunders JB, Monteiro MG. The alcohol use more favorable. Participating bar associations voiced a con- disorders identification test: guidelines for use in primary care [WHO web cern over individual members being identified based on site]. 2001. Available at: http://whqlibdoc.who.int/hq/2001/who_msd_ms- responses to questions; therefore no IP addresses or geo- b_01.6a.pdf. Accessed August 5, 2014. Beck C, Sales B, Benjamin, GA. Lawyer distress: alcohol-related problems location data were gathered. However, this also raises the and other psychological concerns among a sample of practicing lawyers. possibility that a participant took the survey more than once, J.L. Health 1995–1996; 10(1):1–60. although there was no evidence in the data of duplicate Benjamin GA, Darling E, Sales B. The prevalence of depression, alcohol responses. Finally, and most importantly, it must be empha- abuse, and cocaine abuse among United States lawyers. Int J Law Psychiatry 1990;13:233–246. ISSN 0160-2527. sized that estimations of problematic use are not meant to Bradley K, Bush K, McDonell M, Malone T, Fihn S. Screening for problem imply that all participants in this study deemed to demonstrate drinking comparison of CAGE and AUDIT. J Gen Intern Med symptoms of alcohol use or other mental health disorders 1998;13(6):379–989. 0884-8734. would individually meet diagnostic criteria for such disorders Bush K, Kivlahan D, McDonell M, Fihn S, Bradley K. The AUDIT Alcohol in the context of a structured clinical assessment. Consumption Questions (AUDIT-C): an effective brief screening test for problem drinking. Arch Intern Med 1998;158:1789–1795. 0003-9829. Clara I, Cox B, Enns M. Confirmatory factor analysis of the depression- CONCLUSIONS anxiety-stress scales in depressed and anxious patients. J Psychopathol Attorneys experience problematic drinking that is Behav Assess 2001;23:61–67. hazardous, harmful, or otherwise generally consistent with Crawford J, Henry J. The Depression Anxiety Stress Scale (DASS): normative data and latent structure in a large non-clinical sample. Br J Clin Psychol alcohol use disorders at a rate much higher than other 2003;42:111–131 (0144-6657). populations. These levels of problematic drinking have a DuPont R, McLellan AT, White W, Merlo L, Gold M. Setting the standard for strong association with both personal and professional recovery: Physicians’ Health Programs. J Subst Abuse Treat 2009;36: characteristics, most notably sex, age, years in practice, 1597–2171 (0740-5472). position within firm, and work environment. Depression, Eaton W, Anthony J, Mandel W, Garrison R. Occupations and the prevalence of major depressive disorder. J Occup Med 1990;32(11):1079–1087 anxiety, and stress are also significant problems for this (0096-1736). population and most notably associated with the same Gianoli MO, Petrakis I. Pharmacotherapy for and alcohol comorbid depres- personal and professional characteristics. The data reported sion dependence: Evidence is mixed for antidepressants, alcohol depend- here contribute to the fund of knowledge related to behav- ence medications, or a combination. January 2013. Available at: http:// www.currentpsychiatry.com/fileadmin/cp_archive/pdf/1201/1201CP_ ioral health concerns among practicing attorneys and serve Petrakis.pdf. Accessed June 1, 2015. to inform investments in lawyer assistance programs and an Henry J, Crawford J. The short-form version of the Depression Anxiety Stress increase in the availability of attorney-specific treatment. Scales (DASS-21): construct validity and normative data in a large non- Greater education aimed at prevention is also indicated, clinical sample. Br J Clin Psychol 2005;44:227–239 (0144-6657). along with public awareness campaigns within the pro- Lovibond, SH, Lovibond, PF. Manual for the Depression Anxiety Stress Scales. 2nd ed. Sydney: Psychology Foundation; 1995. fession designed to overcome the pervasive stigma surround- Matano RA, Koopman C, Wanat SF, Whhitsell SD, Borggrefe A, Westrup D. ing substance use disorders and mental health concerns. The Assessment of binge drinking of alcohol in highly educated employees. confidential nature of lawyer-assistance programs should be Addict Behav 2003;28:1299–1310. more widely publicized in an effort to overcome the privacy Meneses-Gaya C, Zuardi AW, Loureiro SR, Crippa A. Alcohol Use Disorders Identification Test (AUDIT): an updated systematic review of psycho- concerns that may create barriers between struggling attor- metric properties. Psychol Neurosci 2009;2:83–97. neys and the help they need. Oreskovich MR, Kaups KL, Balch CM, et al. Prevalence of alcohol use disorders among American surgeons. Arch Surg 2012;147(2):168–174. ACKNOWLEDGMENTS Rothstein L. Law students and lawyers with mental health and substance The authors thank Bethany Ranes, PhD, and Valerie abuse problems: protecting the public and the individual. Univ Pittsburgh Law Rev 2008;69:531–566. Slaymaker, PhD, of the Hazelden Betty Ford Foundation for Yudko E, Lozhkina O, Fouts A. A comprehensive review of the psychometric their contributions to the analyses (BR) and overall manu- properties of the drug abuse screening test. J Subst Abuse Treat script (VS). 2007;32:189–198.

52 ß 2016 American Society of Addiction Medicine

Contents lists available at ScienceDirect

Psychology of Sport & Exercise

journal homepage: www.elsevier.com/locate/psychsport

Full Length Article “I’m just too busy to exercise”: Reframing the negative thoughts associated with exercise-related cognitive errors T

∗ Sean R. Locke , Rhyann C. McKay, Mary E. Jung

The University of British Columbia, Canada

ARTICLE INFO ABSTRACT

Keywords: Objectives: Exercise-related cognitive errors (ECEs) represent a negative lens that distorts individuals’ view of Cognitive bias exercise. Such thinking can inhibit individuals’ behaviour change efforts. Reframing is an evidence-based Social cognitions counselling strategy used to help individuals evaluate the evidence for and against their biased thoughts. Reframing Reframing is commonly used within the clinical counselling domain, however, there is no systematic evidence Physical activity base for its use in an exercise setting for a sample of non-clinical individuals. Two proof-of-concept studies examined whether reframing could attenuate ECEs in the exercise context. Design: Study 1 (N = 22) used a one-group pre-post design to examine cognitive error reframing (REF) in a sample of university staff and students. Study 2 (N = 28) used a randomized design (REF vs. attention control [AC]) to examine ECEs and exercise changes in a sample of individuals with prediabetes. Methods: Those receiving REF were prompted to identify, challenge, and reframe their negative exercise thoughts. Results: Both studies demonstrated ECE reductions following reframing. Changes in self-regulatory social cognitions were observed in Study 1. Those receiving REF in Study 2 reported greater increases in their self-reported exercise four weeks following the diabetes program compared to those in AC. Conclusions: REF may help individuals to reduce their biased exercise thoughts when making behaviour change efforts. While findings should be viewed as preliminary given the early research stage and sample sizes, we hope they spark future reframing research within the exercise context.

One of the most commonly cited perceived barriers to exercise is the the cognitive errors framework has been used to understand the psy- lack of time or being “too busy” to exercise (Booth, Bauman, Owen, & chology of biased exercise perceptions (e.g., Locke & Brawley, 2018). Gore, 1997). Usually this thought has truth to it, but individuals may Exercise-related cognitive errors (ECEs) represent a biased view of ex- come to that conclusion without fully thinking through whether they ercise-relevant information that distorts how individuals perceive and are actually too busy to exercise. Some may feel busier than they ac- make decisions about their exercise participation (Locke & Brawley, tually are and only evaluate information that confirms their busy 2016, 2017; Milman & Drapeau, 2012). Catastrophizing is one example feeling. In these situations, has the decision to exercise been accurately of a cognitive error. Catastrophizing occurs when “one predicts that a evaluated? The cognitive errors model would suggest that, for some, future outcome of some situation will be negative without giving con- perceived exercise barriers result from a biased evaluation of one’s si- sideration to more likely outcomes, which may be less negative” tuation. Cognitive errors provide a framework that may aid our un- (Drapeau & Perry, 2010, p. 18). The following is an example of a cat- derstanding and modification of these biased perceptions. astrophizing reaction to a typical exercise situation that might be en- countered: you have just come off holidays and have not exercised in 1. The biasing influence of cognitive errors two weeks. When it comes time to exercise, you think to yourself, “It’s been so long since I’ve exercised that I’m going to be painfully sore for Cognitive errors have been predominantly studied in relation to days.” depression and anxiety as the psychological mechanism causing mala- Recent research has demonstrated that ECEs may be one cognitive daptive and negative thoughts (Beck, 1976; Lefebvre, 1981). Recently, mechanism that is detrimental to regular physical activity engagement,

∗ Corresponding author. School of Health and Exercise Sciences Faculty of Health and Social Development The University of British Columbia, Okanagan ARTS 118, 1147 Research Road, Kelowna, BC, V1V 1V7, Canada. E-mail address: [email protected] (S.R. Locke). https://doi.org/10.1016/j.psychsport.2019.03.011 Received 20 November 2018; Received in revised form 28 March 2019; Accepted 28 March 2019 Available online 05 April 2019 1469-0292/ © 2019 Published by Elsevier Ltd. S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287 particularly for those who are insufficiently or irregularly active. For exercise is brought to a person’s mind. The biased evaluation through example, those reporting higher and lower levels of ECEs differentially which cognitive errors can impact decision making may represent the processed information about an exercise decision-making vignette deliberative processes described in system 2. Understanding the system (Locke & Brawley, 2017). Those viewing exercise through an ECE through which cognitive errors function can guide intervention efforts. predominantly paid attention to the challenging aspects of exercise, while ignoring or discounting the positive aspects. ECEs have been associated with lower levels of physical activity and lower intentions to 4. Modifying cognitive errors through reframing be physically active (Locke & Brawley, 2016). ECEs impact the aspects of a situation that to which individuals pay attention and evaluate. Reframing is a system 2 approach for modifying the thoughts as- They can cause individuals to perceive that they are too busy to exercise sociated with cognitive errors. Cognitive error reframing is a common when, in reality, they are forming their conclusion based on the feeling technique used within clinical counselling settings (Leahy, 2017). This of being too busy rather than the time constraints of their actual technique is effective in modifying biased thoughts in the treatment of schedules. Modifying the cognitive errors may be one fruitful means to posttraumatic stress disorder (Mueser, Rosenberg, & Rosenberg, 2009) help individuals form more accurate perceptions about their exercise and depression (Leahy, 2017). Reframing represents a flexible set of engagement. techniques aimed at identifying core thoughts and cognitive errors that contribute to biased and negative thinking then systematically evalu- 2. The impact of cognitive errors on self-regulatory exercise ating the evidence for and against those negative thoughts (Mueser cognitions et al., 2009). Cognitive errors are targeted in reframing counselling because they are the hypothesized mechanism in forming biased per- Regular exercise engagement is complex and requires self-regula- ceptions (Beck, 1976; Leahy, 2017). Reframing is typically the first tion (e.g., scheduling, regulating motivation, managing thoughts and strategy used in counselling to help individuals to challenge their biased feelings; Carver & Schier, 2011). Social cognitive theory maintains that thoughts (Mueser et al., 2009). Once individuals form a balanced per- self-regulatory efficacy, the confidence to self-regulate exercise, is a spective, self-regulatory behavioural techniques are then employed to prerequisite for regular exercise participation (Bandura, 1986). Self- help individuals modify their behaviours (e.g., self-monitoring, goal regulatory efficacy beliefs are one of the most consistent determinants setting). As such, the purpose of reframing is to modify biased cogni- of physical activity participation (Ashford, Edmunds, & French, 2010) tions. On its own, reframing may indirectly impact behaviour through and may be one of the best targets to promote continued participation the change in cognitions (Leahy, 2017). (Bandura, 2004). ECEs may have the capacity to negatively impact Cognitive errors have been demonstrated as occurring in the ex- individuals’ self-regulatory efficacy for exercise. For example, biased ercise context with resulting biased perceptions in a non-clinical sample thoughts such as, “I’m just too busy to exercise” may thwart motivation (Locke & Brawley, 2018). While reframing may hold promise in mod- and confidence to develop, schedule, and follow through with exercise ifying biased exercise perceptions in the physical activity context, it has plans. Past research has demonstrated that high ECE scores were not been systematically examined. Reframing may also help individuals strongly associated with less adaptive self-regulatory cognitions related to more accurately perceive exercise self-management (e.g., dealing to physical activity adherence (e.g., lower self-regulatory efficacy, more with partial success), which may be an important step prior to teaching struggle in deciding to exercise, less persistence to self-manage exercise; individuals how to self-monitor and set exercise goals. Locke & Brawley, 2018). An individual’s self-regulatory efficacy beliefs are typically strengthened by their experiences of success and diminished by ex- 5. Purpose periencing failure. Exercise initiates or low-active populations may not have personal experiences to draw on to form self-efficacy beliefs re- The goal of reframing is to modify biased cognitions. Since this requiring them to draw on other sources of information that may not be as search represents the first examination of an exercise-specific reframing accurate (Bandura, 1997). Evaluating self-efficacy through a cognitive in attenuating ECEs, the broad purpose was to examine whether a one- error may cause an individual to perceive partial success (e.g., at- off reframing session could shift participants’ cognitions in the im- tending three out of four scheduled exercise classes) as a complete mediate and short-term. Two experimental studies were conducted to failure and internalize it as being less capable to self-manage their ex- examine the capacity of reframing to help individuals to challenge the ercise. Enhancing self-regulatory efficacy beliefs by modifying cognitive biased exercise perceptions associated with their ECEs. errors may be an important outcome to promote exercise for people who are affected by ECEs and view previous experience with exercise through a negative and one-sided perspective. 6. Study 1

3. Understanding the impact of cognitive errors through a dual- 6.1. Purpose process model The purpose of Study 1 was to pilot test reframing as a means to The importance of self-regulatory cognitions in understanding exchange biased exercise cognitions in a sample of university staff and ercise adherence cannot be understated. However, there is increasing students. Participants also provided feedback on the reframing session, recognition that automatic processes impact motivational aspects of which provided context to the quantitative findings. exercise engagement (Conroy & Berry, 2017). Dual-process models can Hypothesis 1. Participants will decrease their level of ECE and level of help to position the impact of cognitive errors on exercise self-regula- struggle in making the decision to exercise following reframing. tion. Dual-process models suggest that two systems operate in parallel to regulate our feelings, decisions, and actions (Hagger, 2016; Hypothesis 2. Participants will increase their intention to exercise and Kahneman, 2011). System 1 is characterised as being a relatively fast their self-regulatory efficacy to manage their biased exercise thoughts process that reflects learned associations that automatically come to following reframing. mind. System 2 is characterised as being a deliberative or reflective Hypothesis 3. Following reframing, participants will anticipate feeling process that reflects controlled reasoning. In this way, the activation of less negative about their decision to either exercise or NOT exercise. a perceived barrier may be characteristic of the automatic associations described in system 1. They may involuntarily arise when the idea of

280 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287

7. Method when deciding how many times you wanted to exercise, (3) when planning your exercise, and (4) when following through with your 7.1. Participants and procedure planned exercise. Items were rated on a scale ranging from 1 (no struggle)to9(tremendous struggle). The scale is an expanded oper- A sample of adults was recruited via printed posters from a ationalization of a one-item decisional struggle item used in previous Canadian university, which included both students and staff. cognitive error research (Locke & Brawley, 2018). The overall scale Participants consented and completed an online pre-test and eligibility means were calculated and demonstrated low reliability (αs > 0.64). questionnaire. Inclusion criteria included being over 18 years old, not Anticipated affect for action and inaction. Two measures (3 items currently in an uncontrolled mood disorder, must have reported that each) were used to assess how participants would feel (a) if they they have struggled with making the decision to exercise in the past decided to exercise, and (b) if they decided NOT to exercise. month, and must have an ECE score above a 3 (out of 9). A minimum Participants were asked how much they would, “regret it”, “feel proud ECE cut-off score was set to ensure that participants reported some level of myself” (reverse coded), and “feel worried and tense” if they decided of bias that could be reframed. This rationale parallels the evaluation of to exercise and if they decided NOT to exercise today by responding on mood-disorder treatments; that is, an intervention for depression is a scale ranging from 1 (unlikely)to9(likely). This exercise version of the examined with individuals who report depressive symptoms. Eligible scale was based on Ajzen and Sheikh (2013), who hypothesized that participants were contacted and scheduled for their reframing within anticipated affect of engaging in an action and or not engaging in an one week of the pre-test. Participants completed a post-test ques- action would predict behaviour, particularly in circumstances of deci- tionnaire immediately following the reframing session. sional struggle. The overall scale means were calculated and demonstrated low reliability (αs > 0.61). 7.2. Measures Reframing session feedback. After completing the reframing session, participants were asked to respond to and explain four online, Exercise-specific cognitive errors. The Exercise-Related Cognitive open-ended session feedback questions. They were asked, (1) did to- Errors Questionnaire (E-CEQ; Locke & Brawley, 2016) assesses cogni- day’s reframing session help you to reframe how you think about ex- tive errors that occur within an exercise context. The 16-item E-CEQ ercise?; (2) what parts of the session did you find useful?; (4) what parts represents the degree to which individuals believe that their thoughts of the session did you find not useful?; (4) would you use this reframing are consistent with ECEs, which are based on a model of cognitive er- strategy in the future? Participants were also given the opportunity to rors described by Drapeau and Perry (2010). Items took the form of provide additional comments. very short vignettes (i.e., depicting a cognitively errored response to a variety of exercise situations). An example item reads, “You consider 7.3. Reframing procedure starting an exercise routine, but think to yourself, ‘I’m not good at sticking with anything. I’ll probably quit after a month so why start’”. The reframing sessions consisted of three key steps: (1) identifying Participants responded to items on a nine-point Likert scale ranging the main biased thought; (2) evaluating the evidence for and against the from 1 (not at all like I would think) to 9 (exactly like I would think). thought; and (3) reframing the thought (Leahy, 2017). Participants The overall scale mean was calculated and demonstrated good relia- received one-on-one counselling sessions lasting approximately 15 min. bility (Cronbach’s αs > 0.88). Please refer to Locke and Brawley Participants were given a handout outlining the session and were given (2016) for additional information on the E-CEQ and its psychometric the option of either recording their thoughts or follow along as they properties. talked through the handout (see supplementary file 1 for the handout). Exercise intention. Cognitive errors should affect intentions (i.e., In the first step, participants were asked to identify the thought they proximal goals), during the exercise decision-making process. struggled with most when making the decision to exercise. The re- Participants were asked a single item question, “how many 30-min or searcher continued to ask follow-up questions until both participant more bouts of moderate or strenuous exercise do you intend on doing in and researcher had a clear view of the problem. For example, partici- the next 7 days?” This one-item measure has demonstrated predictive pants were asked to carefully describe their past exercise efforts and the utility in previous research (e.g., Bloomquist, Gyurcsik, Brawley, Spink, last time that they struggled in deciding to exercise. & Bray, 2008; Locke & Brawley, 2016). In the second step, participants were prompted to ask themselves Self-regulatory efficacy for managing cognitive errors (SRE). Four two general questions aimed at evaluating the evidence for and against SRE items were used to assess participants’ confidence in their ability to their biased thought, “am I exaggerating part of this situation,” and “am regulate their exercise when they were thinking in a manner consistent I seeing both sides of this situation.” The following is an example of with cognitive errors (e.g., similar to facing a challenge/obstacle; Locke what the researcher might have said, & Brawley, 2018). In responding to the SRE items, participants were “You had mentioned that you’re too busy to exercise. Sometimes we asked to reflect on their responses on the E-CEQ, and the unhelpful get home from work all we can focus on is how busy we are. exercise thoughts and situations that they struggled with most. On a Sometimes we are actually too busy but other times we aren’t too scale ranging from 0 (not at all confident) to 100 (completely confident) busy, we just feel that we are too busy. In this way, we exaggerate participants were asked, “how confident are you that you can”: (1) how busy we are. Do you think this has ever happened to you? If so, Prevent your unhelpful thoughts from interfering with deciding to ex- please tell me about it.” ercise as planned; (2) Manage your unhelpful thoughts about exercise so that they do not make you indecisive about engaging in exercise?; (3) Participants then received a second hand-out describing four Maintain your motivation to exercise despite having unhelpful thoughts common ECEs (see supplementary file 1). ECEs included all-or-nothing about exercising?; (4) Focus solely on the positive outcomes of exercise thinking (i.e., views a situation as fitting into only two extreme cate- important to you instead of the negative outcomes you think about? gories), mental filter (i.e., pays undue attention to only one aspect of a The 4-item SRE measure had good internal consistency (Cronbach’s situation), catastrophizing (i.e., predicts future negative outcomes αs > 0.92). without considering more likely positive outcomes) and emotional Decisional struggle. Participants were first asked to write a thought reasoning (i.e., infers truth based on belief while ignoring evidence to or situation that they struggle with most (or most often) when thinking the contrary). Participants were asked to identify the ECE(s) influencing about exercising (e.g., “I’m too busy to exercise”). They were then their view of exercise and how they were influencing their view. After asked, “in the past week how much struggle did this thought cause challenging their biased exercise thought, participants were asked to you”: (1) when deciding whether or not you wanted to exercise, (2) reframe their unhelpful view of exercise by proposing a more balanced

281 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287

Table 1 Participant characteristics for Study 1 and 2.

Demographics Study 1 Study 2

Age 18-25 years old 11 0 26-34 years old 6 0 35-44 years old 1 1 45-54 years old 1 7 55-65 years old 4 18 Unknown 0 2 Gender Male 8 3 Female 14 25 Transgendered 0 0 Education High School Diploma 4 5 College Diploma or Trade Certificate 3 10 Some University 7 2 University Degree or higher 8 9 Not Provided 0 2 Employment Status Full-Time 7 9 Part-Time or Contract 1 6 Student 14 0 Retired 0 11 Other/Unknown 0 2 Relationship Status Figure 1. Study 1 data depicting the individual-level change in exercise-related Single 16 6 cognitive error (ECE) scores from pre-reframing (M = 4.81, SD = 1.39; out of Married 5 16 9) to post-reframing (M = 3.94, SD = 1.66). Widowed/Divorced 1 6 Ethnicity Caucasian 14 27 intentions, while 16 increased them. Participants significantly increased Aboriginal/Metis/First Nations 2 0 their self-regulatory efficacy to manage their unhelpful thoughts from Asian 5 0 M = 36.67 (out of 100; SD = 31.16) to M = 63.19 (SD = 22.20, African 0 1 t = 5.95, df = 21, p < .001, Cohen’s d = 0.98). Sixteen participants Other/Unknown 1 0 increased their self-regulatory efficacy, while 6 decreased their self- Note: Study 1 (N = 22), Study 2 (N = 28). regulatory efficacy. There was no change between participants’ anticipated negative affect if they did NOT exercise (Mpre = 6.23, SD = 1.33, response to the situation they were struggling with. Mpost = 6.12, SD = 1.71, t = 0.32, df = 21, p = .75). However, there was a significant decrease in participants’ anticipated negative affect if 7.4. Analytic plan they did exercise from Mpre = 3.47 (SD = 1.58) to Mpost = 2.62 (SD = 1.17, t = 2.75, df = 21, p = .012, Cohen’s d = 0.61). In other There were no a priori power calculations used in Study 1 as this was words, participants anticipated being less likely to feel regret/nega- the first study examining the impact of reframing cognitive errors in the tively if they ended up deciding to exercise. Finally, 18 participants exercise context and relevant literature was lacking. Paired-samples t- decreased their anticipated negative affect, while 2 increased, and 1 tests were used to examine pre-post changes in ECEs, decisional remained unchanged. struggle, exercise intentions, SRE, and anticipated affect. The magnitude of pre-post change was examined using Cohen’s d (Cohen’s d effect 8.1. Participant feedback size conventions: small = 0.2, medium = 0.5, large = 0.8; Cohen, 1988). Participant feedback provided context to the quantitative data. The following are illustrative examples of participants reframing experiences. Participant feedback in the post-session survey corrobo- 8. Results rated the quantitative findings. For example, when asked how the reframing session helped to reframe their view of exercise, one partici- See Table 1 for participant demographic information. Participants pant suggested that “it helped me take a step back and look at the whole (N = 22) were eight university staff and 14 university students, with an picture of my situation. As I already know all the major benefits to exercise, average age of 31 years old (SD = 14), with eight males and 14 females looking at the whole picture allowed me to focus on all these positive things participating in the study. Figure 1 presents individual-level data de- and not just the one aspect that was holding me back.” This individual was picting pre-post ECE change. All of the following results are with re- able to identify an ECE that was biasing her exercise thoughts (i.e., gards to change following reframing. Participants significantly de- mental filter) and challenge their biased thoughts. When asked if they creased their level of ECE from M = 4.81 (out of 9; SD = 1.39) to would use reframing in the future, one participant agreed and said, “I M = 3.94 (SD = 1.66, t = 2.75, df = 21, p = .012, Cohen’s d = 0.57). often have negative thoughts about exercising but like exercising, I know it Seventeen participants decreased their ECE score, while 5 increased has great benefits and I know I will feel better afterwards. I like that this is a their score. Participants significantly decreased their struggle from tool I can use to help motivate me to get out the door to a class or out running M = 5.60 (out of 9; SD = 1.61) to M = 2.89 (SD = 1.23, t = 5.95, because once I am exercising I don't have any more negative thoughts.” This df = 21, p < .001, Cohen’s d = 1.90). Seventeen participants de- statement also suggested that this participant was able to gain a more creased their decisional struggle, while 3 increased their struggle, and 2 balanced view of exercise and perhaps use reframing strategies to did not change. Participants significantly increased their intentions manage their decisional struggle. from M = 2.76 (SD = 1.90) bouts of physical activity over the next Participant feedback on the reframing sessions was predominantly week to M = 4.86 (SD = 3.49, t = 3.74, df = 20, p < .001, Cohen’s positive, and some reported on various strategies they may employ to d = 0.76). Six participants did not change their physical activity gain a more balanced view of exercise. One participant explained, “I can

282 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287

Figure 2. Timeline for Study 2 schedule of the main intervention, reframing sub-study, and measures. Note: DPP = diabetes prevention program; REF = reframing; AC = attention control; ECEs = exercise-related cognitive errors. more honestly evaluate my thoughts and feelings and challenge the thoughts experiment to immediately post-experiment and four weeks post that may be negative and hinder my desire to exercise.” This comment diabetes prevention program. demonstrated that reframing sessions enabled participants to more ac- Hypothesis B. Compared to attention control, those receiving curately evaluate their biased thoughts and develop more balanced reframing will report greater increases in their self-report level of thoughts that may lead them to exercise in the future. Conversely, some exercise from pre-experiment to four weeks post diabetes prevention participants became aware of their biased thinking, and as such, their program. social cognitions were not in the hypothesized direction. One participant explained, “there were several things I did not consider until now and Hypothesis C. Compared to attention control, those receiving this has opened my eyes to the way I have been thinking in the past”. In this reframing will report a greater readiness to make behavioural instance, reframing brought the pattern of biased thinking to the par- changes immediately-post experiment. ticipant’s awareness.

9. Conclusion 11. Method

Study 1 represented the first pre-post test of cognitive reframing in a 11.1. Participants and procedure non-clinical sample within the exercise context. It demonstrated the proof-of-concept for a brief 15-min reframing session to help in- Study 2 is a randomized experimental sub-study within an ongoing dividuals reduce their biased exercise perceptions. Study 2 builds on community-based diabetes prevention program. Briefly, the three-week these findings by examining exercise perceptions and behaviour four diabetes prevention program employed social cognitive theory and weeks following reframing in a community-based chronic disease behaviour change techniques aimed to help individuals at high risk of sample. This iterative process is consistent with recommendations by developing type 2 diabetes to change their exercise and dietary beha- Rothman, Klein, and Cameron (2013) regarding the importance of viours (Jung, Bourne, Beauchamp, Robinson, & Little, 2015). Partici- conducting experiments outside of the lab in community settings. pants were asked to perform either moderate-intensity exercise at a continuous pace or high-intensity interval exercise. Individuals under- going annual bloodwork whose HbA1c values were in the prediabetes 10. Study 2 range were invited to participate (HbA1C between 5.7% and 6.4%; American Diabetes Association, 2012). Other recruitment strategies 10.1. Purpose included: 1) online ads (i.e. castanet.net or kijiji.ca), 2) pamphlets distributed in doctor’soffices, and 3) program website traffic. Data Often, there is a gap between translating lab-based health research were collected between July and December 2017. Participant eligibility and real-world contexts where health problems are managed. A call was for the diabetes prevention program included adults aged 18–65 years put out for researchers to conduct controlled experiments in applied old who were classified as having prediabetes and had no contra- health settings (Mermelstein & Revenson, 2013; Rothman et al., 2013). indications to exercise. Early-stage research examining psychological mechanisms within ex- The sub-study included one additional eligibility criteria: partici- isting health programs can produce ecologically valid theoretical ex- pants must report an ECE score above a 3 (out of 9). Adults with pre- periments that are poised to have a greater potential real-world impact diabetes who joined the diabetes prevention program were randomly compared to tests in student or asymptomatic populations. The purpose assigned to either receive reframing counselling or attention control at of Study 2 was to experimentally test cognitive reframing in a sample of their pre-program testing, which took place two weeks before partici- low-active individuals with prediabetes to ready them to begin a pants began the three-week program. Participants were emailed a community-based diabetes prevention program. questionnaire four weeks following the diabetes prevention program, Hypothesis A. Compared to attention control, those receiving which occurred nine weeks post-reframing. See Figure 2 for the time- reframing will report greater decreases in their level of ECE from pre- line of the main study, sub-study, and measurement schedule.

283 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287

11.2. Measures issues are salient to individuals with prediabetes because they are one of the most common symptoms associated with the progression of type Exercise-specific cognitive errors. See Study 1 measures for de- 2 diabetes (Abbott et al., 2002). Participants were asked about any foot scription. The E-CEQ was assessed at three points: pre-test, immediately issues they were currently experiencing or recently had, and then dis- post-test, and nine weeks later (i.e. four weeks following the program). cussed proper foot care practices recommended by Diabetes Canada The overall scale mean was calculated and demonstrated good relia- (2018). The discussion lasted approximately 15 min. bility (Cronbach’s αs > 0.94). Self-report exercise (Metabolic equivalents [METs]). Participants 11.5. Analytic plan reported the number of 30-min bouts of moderate and vigorous exercise fi in which they engaged during the past week using the modi ed Godin Using G*Power 3.1.9.2, a minimum sample size of 22 was calcu- Leisure-Time Exercise Questionnaire (GLTEQ; Godin & Shephard, lated to detect a significant within-between ECE interaction effect be- 1985). The validity of the alteration to the scale (30-min bouts) has tween reframing and control groups across three repeated measures. been demonstrated (Amireault & Godin, 2012). MET scores were cal- This calculation was based on the observed pre-post treatment-only ’ culated from participants self-reported moderate and vigorous exercise effect from Study 1 (Cohen’s d = 0.57) and no hypothesized change for ’ using Godin and Shephard s (1985) scoring system. MET scores were those receiving attention control (Cohen’s d converted to effect size chosen as an outcome to appropriately credit exertion level for parti- f = 0.285; Cohen, 1988), α = 0.05, Power = .8, 2 groups, and 3 re- cipants who were prescribed either vigorous or moderate intensity ex- peated measurements. Given that reframing seeks to directly modify ercise in the diabetes prevention program. The GLTEQ was assessed cognitive errors as the mechanism causing negative exercise thoughts, pre-test and four weeks following the program. it is very reasonable to suspect a larger magnitude change in ECEs, Readiness to start the program. Participants were asked about their requiring a smaller sample. Mixed-design ANOVAs using group as the readiness to start the diabetes prevention program. Participants rated between- and time as the within-subject factor were run to examine their level of agreement on four items ranging from 1 (completely dis- changes in ECEs and physical activity between reframing and control … agree)to5(completely agree) on four items: (1) I am ready to start , (2) groups across time using SPSS version 25. Follow-up contrasts were run … I am hesitant to start , (3) I am willing to make exercise changes to examine whether the magnitude of ECE change significantly differed … during , and (4) I am willing to challenge negative exercise thoughts between groups from (1) pre-to immediate post-reframing and (2) from … during the diabetes prevention program. Items were examined in- pre-to four weeks post-program. Four Bonferroni-adjusted between- dividually and were compared between intervention and control groups groups t-tests (α = 0.0125) were run to examine post-test only differ- post-reframing. The four items were created for this study to oper- ence in readiness to start the diabetes prevention program following the ationalize readiness as described by Meichenbaum and Turk (1987) to receipt of reframing or attention control. The magnitude change was begin the Small Steps for Big Changes diabetes prevention program. examined using Cohen’s d to compare the magnitude change between groups between pre- and immediately post-experiment and from pre-to 11.3. Reframing procedure four weeks post-program.

Study 2 added supplementary probing questions to the first two steps of the previously described reframing protocol (Study 1). The 11.6. Results additions were based on: participant feedback from Study 1, review of session recordings, and examination of in-session counsellor notes. The Participant characteristics. See Table 1 for participant demo- ’ counsellor used the probing questions to help participants—especially graphic information. Participants (N = 28) average age was 56 years fi those struggling to identify or evaluate their thoughts—reflect more old (SD = 6.5), with three men and twenty- ve women participating in deeply. In the first step, error identification and description, probing the study. questions helped participants to fully think through the context and Change in cognitive errors. See Table 2 for group means and stan- typical reactions to exercise. Examples of probing questions included, dard deviations across the study. There was not a statistically sig- fi ff “Describe when this thought typically occurs.”; “Describe what happens ni cant di erence in ECE score between groups at baseline (t = 1.21, when you think about exercising.”; and “Think back to the last time you df = 26, p = .235) suggesting the equivalency of the two randomized fi ff planned to exercise, what do you think and immediately decide to do?”. groups. There was a statistically signi cant main e ect for ECEs (F[2, η2 fi Probing questions were written in a general form and were made par- 25] = 17.17, p < .001, partial = 0.34) and a signi cant interaction ff η2 ticipant-specific in the sessions. To make the last probing participant- e ect (F[2, 25] = 3.85, p = .028, partial = 0.13). Using a planned fi ff specific, the reframing counsellor could have said, “last week you just got contrast, there was a statistically signi cant di erence in pre-post ECE home from a long day at work and hadn’t eaten dinner yet, the thought of change between reframing and control groups (F[1, 26] = 5.79, ’ – exercise went through your mind. What did you think at that moment?” p = .023; Cohen s d = 1.03, 95% CI: 0.23 1.82). Those receiving re- fi In the second step, evidence evaluation, probing questions helped framing reported signi cantly greater decreases in their level of ECE participants to more critically examine the validity of their exercise post-reframing compared to those receiving control who did not perceptions. Examples included, “What if I told you that when you get home from work tomorrow you had to exercise. How would you do it?”; Table 2 “You mentioned a lot of your colleagues regularly exercise. How do you Study 2 descriptive statistics. think they are able to fit their exercise in? What strategies help them become Pre Mean Post Mean 4 weeks post program successful?”; and “You mentioned you were too busy to exercise. What do (SD) (SD) Mean (SD) you think would happen if you did end up exercising?”. By the time par- ECEs ticipants reached the third step, reframing, they had a clearer per- Reframing 5.39 (1.44) 4.51 (1.66) 3.36 (1.35) spective of their response to exercise, and additional probing questions Attention control 4.72 (1.38) 4.76 (1.37) 4.00 (0.97) were not required. The reframing session lasted approximately 15 min. Exercise (METs) Reframing 23.23 (16.79) – 49.85 (22.67) Attention control 20.54 (9.12) – 30.00 (20.79) 11.4. Attention control Note: Table 2 depicts the strength of exercise-related cognitive error across Those randomized to the attention control group received in- Study 2 (N = 28), reframing (n = 16), and attention control (n = 12). formation about foot care associated with diabetes management. Foot ECE = exercise-related cognitive error; METs = metabolic equivalents.

284 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287 change. Using a planned contrast, there was a statistically significant intention to exercise following reframing. Study 1 represented the first difference in pre-to four-weeks post-experiment ECE change between pilot-test of reframing in the exercise context in an asymptomatic reframing and control groups (F[1, 26] = 23.15, p < .001; Cohen’s sample. d = 0.90, 95% CI: 0.11–1.60). Both groups reduced their level of ECE Study 2 examined pre-intervention reframing in a sample of in- from pre to the 4-week post program follow-up. However, those in the dividuals with prediabetes about to start a diabetes prevention program reframing group reported significantly greater decreases. which targeted exercise and diet change. Those receiving reframing Change in exercise. There was a statistically significant main effect reported significant decreases in their level of ECE following reframing, for exercise (F[1, 22] = 28.59, p < .001, partial η2 = 0.57) and a sig- supporting the Study 1 findings. Four weeks following the diabetes nificant interaction effect (F[1, 22] = 6.47, p = .019, partial η2 = 0.23). prevention program, individuals in both groups lowered their ECE le- Both reframing (Cohen’s d = 1.33) and control (Cohen’s d = 0.59) vels and reported greater levels of exercise. Those receiving reframing groups increased their exercise level from pre to the 4-week post pro- reported greater ECE decreases compared to attention control. gram follow-up, however, those in the reframing group observed a To put the observed magnitude of effects in context, the decrease in significantly greater exercise increase (Cohen’s d = 1.09, 95% CI: ECE following reframing aligns with annual analytic reviews suggesting 0.23–1.95). cognitive behavioural counselling typically yields large effects (Butler, Change in readiness. Following reframing, there were no significant Chapman, Forman, & Beck, 2006). They are of a similar magnitude to between-group differences in readiness to begin the program for all four the effects reported in systematic reviews of other physical activity variables: (1) ready to start (Mreframing = 4.72, SD = 0.21, intervention strategies such as action planning (Carraro & Gaudreau, Mcontrol = 4.96, SD = 0.48; t = 2.00, df = 26, p = .057), (2) hesitant to 2014), enhancing barrier self-efficacy (Higgins, Middleton, Winner, & start (Mreframing = 2.00, SD = 1.04, Mcontrol = 1.48, SD = 1.37; t = 1.36, Janelle, 2014), and self-monitoring (Michie, Abraham, Whittington, df = 26, p = .181), (3) willing to make exercise changes McAteer, & Gupta, 2009). The ECE decline observed in both groups

(Mreframing = 4.78, SD = 0.29, Mcontrol = 4.96, SD = 0.42; t = 1.63, from post-experiment to four weeks following the diabetes prevention df = 26, p = .117), and (4) willing to challenge negative exercise program can be understood through social cognitive theory (Bandura, thoughts (Mreframing = 4.65, SD = 0.52, Mcontrol = 4.87, SD = 0.50; 1986). Participants were initiate exercisers who may not have sufficient t = 1.60, df = 26, p = .122). All participants reported readiness values exercise experience to form accurate perceptions about exercise or their close to the scale basement or ceiling. capabilities to exercise. Without experience, initial perceptions have the potential to be inaccurate or biased, which may be the case for those 12. Discussion reporting high ECEs. According to Bandura (1986), the successful per- formance of exercise increases individuals’ self-efficacy. These mastery Two reframing studies were undertaken to examine whether re- experiences might also provide individuals with sufficient information framing could be effectively tailored and applied in an exercise context to form more accurate perceptions about exercise such that they were to help individuals to challenge their biased thoughts and gain a more less negatively biased. The ECE decline observed in the control group balanced view of their exercise efforts. Some individuals report biased one month following the program aligns with this supposition. thoughts about exercise leading them to focus exclusively on the An alternative explanation for the observed ECE decreases in both challenging aspects of exercise. Biased thoughts can exacerbate in- groups could be, in part, due to the receipt of behaviour change dividuals’ struggle in making the decision to exercise and can ultimately counselling throughout the diabetes prevention program. The suc- lead them to choose not to exercise (Locke & Brawley, 2018). The cessful implementation of strategies like self-monitoring and goal findings from these first two preliminary studies represent first-gen- feedback may have increased the accuracy of individuals’ exercise eration research (Zanna & Fazio, 1982) demonstrating proof-of-concept perceptions, providing a possible explanation for the decreased ECE for a reframing counselling intervention in an exercise setting. levels. Cognitive strategies like reframing are hypothesized to have a Study 1 represented the first examination of a reframing interven- synergistic effect with behavioural strategies (e.g., with problem sol- tion to modify exercise-related adherence cognitions. The findings de- ving; D'Zurilla & Nezu, 2007). For example, reframing may help in- monstrated the immediate pre-post effects of a short 15-min reframing dividuals to more effectively process information about their un- session. Participants successfully challenged and reframed their biased successful exercise experiences and improve their future ability to set exercise thoughts. Following the reframing session, most participants and follow through with exercise goals. The greater declines in ECEs decreased their level of ECE and decisional struggle, and anticipated observed for those receiving reframing could be the result of the in- feeling less negatively if they ended up deciding to exercise. teraction between reframing and the behavioural counselling inter- Additionally, most participants increased their exercise intentions and vention in the diabetes prevention program. self-regulatory efficacy to manage their unhelpful thoughts. These self- Dual-process models purport that automatic associations about ex- regulatory social cognitions are important for regular adherence to ercise are learned over time and through experience (Conroy & Berry, exercise (Bandura, 2004; Schwarzer & Luszczynska, 2015). Findings 2017). Individuals who regularly struggle with exercise may have suggest that reframing may improve self-regulatory cognitions that learned maladaptive patterns of rationalizing the decision not to ex- allow an individual to manage their exercise participation more effec- ercise (i.e., system 2 evaluations). Reframing may be a system 2 ap- tively. proach that helps individuals to more carefully and accurately think While most of the 22 participants in Study 1 reported changes in through inconsistencies in their mental associations and evaluations ECEs, decisional struggle and self-regulatory efficacy in the hypothe- about exercise. Future conceptual research examining cognitive errors sized direction, 6 did not. One tenable explanation for the findings for relative to dual-process models would provide a stronger foundation for these individuals is that reframing resulted in some participants be- understanding the impact of reframing. coming aware of their biased thinking, which was corroborated by All participants increased their self-report exercise four-weeks fol- participant feedback. For these participants, initially high confidence lowing the diabetes prevention program. However, those receiving re- and low level of ECEs may have been inaccurately estimated. As such, framing reported significantly greater increases in exercise. Recall that reframing may have illuminated biased thinking for some individuals reframing is hypothesized to have a smaller and indirect impact on and may have resulted in mentally recalibrating their cognition behaviour through a change in cognitions (Leahy, 2017). The between- strength. These reframing outcomes are congruent with what might be groups differences in exercise levels were greater than anticipated. expected in the clinical setting, where individuals with a certain pa- Future research is needed to corroborate these findings using a design thology may be initially unaware of their biased thought processes that is powered to detect changes in exercise since Study 2 was powered (Leahy, 2017). It is noteworthy that no participants decreased their to detect changes in ECEs, not exercise. The use of accelerometer-

285 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287 measured exercise or behavioural measures of exercise frequency Acknowledgements should be considered in future research. Treatment adherence experts have suggested that readiness to en- Support to the first author was provided by Diabetes Canada, gage in behaviour change efforts is necessary and facilitates treatment Canada (Grant # PF-3-16-5152-SL) and Michael Smith Foundation for adherence (Meichenbaum & Turk, 1987; Rejeski, Brawley, McAuley, & Health Research, British Columbia, Canada (Grant # 16530) post- Rapp, 2000). There were no differences in readiness to start the pro- doctoral fellowship awards. gram between groups. Both groups reported scores at the ceiling of the scale, and therefore, group differences could not be detected. While pre- Appendix A. Supplementary data post measures of readiness would have been a stronger design, we were mindful of participant burden and limited the number of questions Supplementary data to this article can be found online at https:// asked as part of this sub-study. Those participants who enrolled in the doi.org/10.1016/j.psychsport.2019.03.011. program were the highly motivated 20% who contacted the program after receiving a study invitation. Reframing may have a stronger im- References pact on readiness for those individuals who have low motivation and did not join the program. Future reframing efforts examining readiness Abbott, C. A., Carrington, A. L., Ashe, H., Bath, S., Every, L. C., Griffiths, J., ... Ryder, C. H. should target those individuals with low motivation or who are hesitant (2002). The north‐west diabetes foot care study: Incidence of, and risk factors for, new diabetic foot ulceration in a community‐based patient cohort. Diabetic Medicine, to join behaviour change programs. 19(5), 377–384. One major strength of the research was the strong evidence base Ajzen, I., & Sheikh, S. (2013). Action versus inaction: Anticipated affect in the theory of from which reframing was drawn. Established and effective protocols planned behavior. Journal of Applied Social Psychology, 1(43), 155–162. American Diabetes Association (2012). Diagnosis and classification of diabetes mellitus. developed by Leahy (2017) within the clinical setting provided a strong Diabetes Care, 35(Suppl. 1), S64–S71. https://doi.org/10.2337/dc14-S081. foundation for the tailored application of reframing to the exercise Amireault, S., & Godin, G. (2012). Physical activity guidelines for health: How valid are the context. A second strength was the use of findings from Study 1 to godin-shephard leisure-time physical activity Questionnaire and the international physical enhance the reframing protocol for Study 2. A third strength was the activity questionnaire-short form? Poster session presented at the annual meeting of the international society for behavioural nutrition and physical activity. Austin, TX. experimental test of reframing within an existing community-based Ashford, S., Edmunds, J., & French, D. P. (2010). What is the best way to change self‐- diabetes prevention program, which answered calls by Rothman et al. efficacy to promote lifestyle and recreational physical activity? A systematic review ‐ – (2013). with meta analysis. British Journal of Health Psychology, 15(2), 265 288. Bandura, A. (1986). Social foundations of thought and action: A social cognitive theory. Study limitations include small sample size which may have limited Englewood Cliffs, NJ: Prentice-Hall. the power to detect changes in our outcomes. The small sample size Bandura, A. (1997). Self-efficacy: The exercise of control. New York: Freeman. may have also limited the generalizability of our findings. The self-re- Bandura, A. (2004). Health promotion by social cognitive means. Health Education & Behavior, 31(2), 143–164. https://doi.org/10.1177/1090198104263660. port nature of the exercise measure was also a study limitation as it may Beck, A. T. (1976). Cognitive therapy and the emotional disorders. New York: International be subject to recall bias and overestimation (Prince et al., 2008). Re- Universities. garding the internal consistency of our measures, the study was limited Bloomquist, C. D., Gyurcsik, N. C., Brawley, L. R., Spink, K. S., & Bray, S. R. (2008). The fi ff road to exercise is lled with good intentions: Why don't my proximal exercise in- by low alphas for the decisional struggle and anticipated a ect which tentions match my actions? Journal of Applied Biobehavioral Research, 13(2), 102–118. increased measurement error. Another potential limitation was that https://doi.org/10.1111/j.1751-9861.2008.00030.x. outcomes were measured immediately following reframing, which Booth, M., Bauman, A., Owen, N., & Gore, C. (1997). Physical activity preferences, preferred sources of assistance, and perceived barriers to increased activity among could be subject to a form of mere exposure method bias (Zajonc, physically inactive Australians. Preventive Medicine, 26, 131–137. https://doi.org/10. 2001). While study 2 included a third follow-up timepoint, future re- 1006/pmed.1996.9982. search should seek to measure post-reframing effects either one- or Butler, A. C., Chapman, J. E., Forman, E. M., & Beck, A. T. (2006). The empirical status of seven-days post-reframing. Including these time points would also en- cognitive-behavioral therapy: A review of meta-analyses. Clinical Psychology Review, 26(1), 17–31. hance the interpretability of measures like decisional struggle which Carraro, N., & Gaudreau, P. (2013). Spontaneous and experimentally induced action ask individuals about their perceptions of struggle over the past seven planning and coping planning for physical activity: A meta-analysis. Psychology of – days. Sport and Exercise, 14(2), 228 248. Carver, C. S., & Schier, M. F. (2011). Self-regulation of action and affect. In K. D. Vohs, & There are many advantages to conducting experiments within ex- R. F. Baumeister (Eds.). Handbook of self-regulation: Research, theory, and applications isting community health programs. However, one disadvantage was our (pp. 3–21). Ney York: Guilford Press. inability to manipulate the behaviour strategies received by partici- Cohen, J. (1988). Statistical power analysis for the behavioral sciences (2nd ed.). Hillsdale, NJ: Erlbaum. pants in Study 2. Future research should experimentally examine the Conroy, D. E., & Berry, T. R. (2017). Automatic affective evaluations of physical activity. synergistic effect of delivering reframing with behavioural strategies. Exercise and Sport Sciences Reviews, 45(4), 230–237. Another limitation was the use of an arbitrary minimum ECE cut-off D'Zurilla, T. J., & Nezu, A. M. (2007). Problem-solving therapy: A positive approach to clinical ff intervention (3rd ed.). New York: Springer Publishing Co. score. A minimum score was necessary to prevent baseline e ects in Diabetes Canada (2018). Foot care. A step towards good health. Retrieved from http:// ECE change. Future research should seek to determine an empirically- www.diabetes.ca/diabetes-and-you/healthy-living-resources/foot-care/a-step- driven cut-off score and examine whether reframing is beneficial to towards-good-health. Drapeau, M., & Perry, J. C. (2010). The cognitive errors rating scales 3rd ed. Unpublished individuals with low ECE scores. Research should also examine re- manual. Retrieved from https://mpprg.mcgill.ca/CERS%20Manual.pdf. framing delivered across multiple sessions and with a longer follow-up Godin, G., & Shephard, R. J. (1985). A simple method to assess exercise behavior in the period. The treatment of depression or anxiety is rarely accomplished in community. Canadian Journal of Applied Sport Sciences, 10(3), 141–146. a single session. Similarly, reframing negative exercise thoughts may Hagger, M. S. (2016). Non-conscious processes and dual-process theories in health psychology. Health Psychology Review, 10(4), 375–380. https://doi.org/10.1080/ require practice and feedback over multiple sessions. In this way, dose- 17437199.2016.1244647. response could be examined to find the optimal number of required Higgins, T. J., Middleton, K. R., Winner, L., & Janelle, C. M. (2014). Physical activity interventions differentially affect exercise task and barrier self-efficacy: A meta- sessions. – fi analysis. Health Psychology, 33(8), 891 903. https://doi.org/10.1037/a0033864. These two studies were the rst to demonstrate that reframing could Jung, M. E., Bourne, J. E., Beauchamp, M. R., Robinson, E., & Little, J. P. (2015). High- be tailored to the exercise context to help individuals challenge the intensity interval training as an efficacious alternative to moderate-intensity con- biased thoughts associated with their ECEs. Together, these findings tinuous training for adults with prediabetes. Journal of Diabetes Research, 2015,1–9. Kahneman, D. (2011). Thinking, fast and slow. New York, NY: Farrar, Straus & Giroux. provide preliminary evidence that we hope sparks future reframing Leahy, R. L. (2017). Cognitive therapy techniques: A practitioner's guide. New York: Guilford research within the exercise context. Press. Lefebvre, M. F. (1981). Cognitive distortion and cognitive errors in depressed psychiatric and low back pain patients. Journal of Consulting and Clinical Psychology, 49(4), 517. Locke, S. R., & Brawley, L. R. (2016). Development and initial validity of the exercise-

286 S.R. Locke, et al. Psychology of Sport & Exercise 43 (2019) 279–287

related cognitive errors questionnaire. Psychology of Sport and Exercise, 23,82–89. stress disorder in special populations. Washington, DC: American Psychological https://doi.org/10.1016/j.psychsport.2015.11.003. Association. Locke, S. R., & Brawley, L. R. (2017). Perceptions of exercise consistency: Relation to Prince, S. A., Adamo, K. B., Hamel, M. E., Hardt, J., Gorber, S. C., & Tremblay, M. (2008). exercise-related cognitive errors and cognitions. Journal of Health Psychology, 22(5), A comparison of direct versus self-report measures for assessing physical activity in 684–694. https://doi.org/10.1177/1359105315611956. adults: A systematic review. International Journal of Behavioral Nutrition and Physical Locke, S. R., & Brawley, L. R. (2018). Making one-sided exercise decisions: The inﬂuence Activity, 5(1), 56. of exercise-related cognitive errors. Journal of Health Psychology, 23(9), 1240–1249. Rejeski, J. W., Brawley, L. R., McAuley, E., & Rapp, S. (2000). An examination of theory https://doi.org/10.1177/1359105316648485. and behavior change in randomized clinical trials. Controlled Clinical Trials, 21(5), Meichenbaum, D., & Turk, D. (1987). Facilitating treatment adherence: A practitioner's S164–S170. guidebook. New York, NY: Plenum. Rothman, A. J., Klein, W. M., & Cameron, L. D. (2013). Advancing innovations in social/ Mermelstein, R. J., & Revenson, T. A. (2013). Applying theory across settings, behaviors, personality psychology and health. Opportunities and Challenges, 32(5), 592–596. and populations. Translational Challenges and Opportunities, 32(5), 592–596. Schwarzer, R., & Luszczynska, A. (2015). Social cognitive theory and the health action Michie, S., Abraham, C., Whittington, C., McAteer, J., & Gupta, S. (2009). Eﬀective process approach. In M. Conner, & P. Norman (Eds.). Predicting health behaviour (pp. techniques in healthy eating and physical activity interventions: A meta-regression. 127–169). (3rd ed.). London, England: Open University Press. Health Psychology, 28(6), 690–701. https://doi.org/10.1037/a0016136. Zajonc, R. B. (2001). Mere exposure: A gateway to the subliminal. Current Directions in Milman, E., & Drapeau, M. (2012). Cognitive errors in cognitive behavioural therapy: A Psychological Science, 10(6), 224–228. survey of researchers and practitioners and an assessment of the face validity of the Zanna, M. P., & Fazio, R. H. (1982). The attitude behavior relation: Moving toward a third cognitive error scale. Journal of Cognitive and Behavioral Psychotherapies, 12(2), generation of research. In M. P. Zanna, T. E. Higgins, & P. C. Herman (Eds.). 125–138. Consistency in social behaviour (pp. 283–301). London, Ontario: Lawrence Erlbaum Mueser, K. T., Rosenberg, S. D., & Rosenberg, H. J. (2009). Treatment of posttraumatic Associates.

287 HHS - Physical Activity Guidelines for Americans

The Department of Health and Human Services issued the federal government's first-ever Physical Activity Guidelines for Americans in 2008 to help Americans understand the types and amounts of physical activity that offer important health benefits. Physical activity is any form of exercise or movement of the body that uses energy. Some of your daily life activities—doing active chores around the house, yard work, walking the dog—are examples. HHS has now released the second edition of the Physical Activity Guidelines for Americans.

This second edition of the Physical Activity Guidelines for Americans provides science-based guidance to help people ages 3 years and older improve their health through participation in regular physical activity. It reflects the extensive amount of new knowledge gained since the publication of the first Physical Activity Guidelines for Americans were released. This edition of the Guidelines discusses the proven benefits of physical activity and outlines the amounts and types of physical activity recommended for different ages and populations.

KEY GUIDELINES

Adults

 Adults should move more and sit less throughout the day. Some physical activity is better than none. Adults who sit less and do any amount of moderate-to-vigorous physical activity gain some health benefits.

 For substantial health benefits, adults should do at least 150 minutes (2 hours and 30 minutes) to 300 minutes (5 hours) a week of moderate-intensity, or 75 minutes (1 hour and 15 minutes) to 150 minutes (2 hours and 30 minutes) a week of vigorous-intensity aerobic physical activity, or an equivalent combination of moderate- and vigorous-intensity aerobic activity. Preferably, aerobic activity should be spread throughout the week.

 Additional health benefits are gained by engaging in physical activity beyond the equivalent of 300 minutes (5 hours) of moderate-intensity physical activity a week.

 Adults should also do muscle-strengthening activities of moderate or greater intensity and that involve all major muscle groups on 2 or more days a week, as these activities provide additional health benefits.

Older Adults

The key guidelines for adults also apply to older adults. In addition, the following key guidelines are just for older adults:

 As part of their weekly physical activity, older adults should do multicomponent physical activity that includes balance training as well as aerobic and muscle-strengthening activities.

 Older adults should determine their level of effort for physical activity relative to their level of fitness.  Older adults with chronic conditions should understand whether and how their conditions affect their ability to do regular physical activity safely.

 When older adults cannot do 150 minutes of moderate-intensity aerobic activity a week because of chronic conditions, they should be as physically active as their abilities and conditions allow.

Women During Pregnancy and the Postpartum Period

 Women should do at least 150 minutes (2 hours and 30 minutes) of moderate-intensity aerobic activity a week during pregnancy and the postpartum period. Preferably, aerobic activity should be spread throughout the week.

 Women who habitually engaged in vigorous-intensity aerobic activity or who were physically active before pregnancy can continue these activities during pregnancy and the postpartum period.

 Women who are pregnant should be under the care of a health care provider who can monitor the progress of the pregnancy. Women who are pregnant can consult their health care provider about whether or how to adjust their physical activity during pregnancy and after the baby is born.

Adults with Chronic Health Conditions and Adults with Disabilities

 Adults with chronic conditions or disabilities, who are able, should do at least 150 minutes (2 hours and 30 minutes) to 300 minutes (5 hours) a week of moderate-intensity, or 75 minutes (1 hour and 15 minutes) to 150 minutes (2 hours and 30 minutes) a week of vigorous-intensity aerobic physical activity, or an equivalent combination of moderate- and vigorous-intensity aerobic activity. Preferably, aerobic activity should be spread throughout the week.

 Adults with chronic conditions or disabilities, who are able, should also do muscle-strengthening activities of moderate or greater intensity and that involve all major muscle groups on 2 or more days a week, as these activities provide additional health benefits.

 When adults with chronic conditions or disabilities are not able to meet the above key guidelines, they should engage in regular physical activity according to their abilities and should avoid inactivity.

 Adults with chronic conditions or symptoms should be under the care of a health care provider. People with chronic conditions can consult a health care professional or physical activity specialist about the types and amounts of activity appropriate for their abilities and chronic conditions.

Safe Physical Activity

To do physical activity safely and reduce risk of injuries and other adverse events, people should:

 Understand the risks, yet be confident that physical activity can be safe for almost everyone.

 Choose types of physical activity that are appropriate for their current fitness level and health goals, because some activities are safer than others.  Increase physical activity gradually over time to meet key guidelines or health goals. Inactive people should “start low and go slow” by starting with lower-intensity activities and gradually increasing how often and how long activities are done.

 Protect themselves by using appropriate gear and sports equipment, choosing safe environments, following rules and policies, and making sensible choices about when, where, and how to be active.

 Be under the care of a health care provider if they have chronic conditions or symptoms. People with chronic conditions and symptoms can consult a health care professional or physical activity specialist about the types and amounts of activity appropriate for them.

Ethical Issues Related to Risk: Understanding & Advising Clients

Presented by: Shawn Leisinger

Date: Monday, July 20

Time: 8:00 a.m.

Location: Roosevelt Room, Lodge at Deadwood

7/14/2020

ETHICAL ISSUES RELATED TO RISK: UNDERSTANDING AND ADVISING CLIENTS

Shawn Leisinger, J.D. Washburn Law Associate Dean for Centers and External Programs Externship Director

CLE Content and Coverage:

This CLE session will take a look at ethical issues related to risk in the legal context. We will first look at how different people, and different attorneys, approach risk taking through a live exercise and application of academic risk approaches to the outcomes. We will then look at how an attorney can get competent and ethically advise clients in regards to risk decisions in practice. Participants will be challenged to contemplate how their personal approach to risk may impact, or fail to impact, client decisions and choices.

WASHBURN LAW 2 2

Why Talk About Risk?

Consider for a moment how you frame the potential outcome for a client filing bankruptcy:

(Positive) If we file this plan to reorganize we have a one in four chance of success that would involve saving your business and your employees’ jobs.

(Negative/Realistic) We can file this plan but there is a 75 percent likelihood that it will fail and you will ultimately lose the business and the jobs for your employees.

WASHBURN LAW 3 3

1 7/14/2020

How We Evaluate and Discuss Risk

In the example the chance of success is/was 1 in 4.

How do we come up with that statistical evaluation and outcome?

How do we decide how we will relate the likely outcome, as we see it, to our client?

Is that a realistic scenario – can’t clients realistically evaluate and determine risk for themselves?

WASHBURN LAW 4 4

Think About That Same Example as it Would Apply to Framing Risk as “Gains or Losses” for a Client

Every one coming in the room today has the option of paying $25 to participate in a random drawing.

As each person leaves they will pick an envelope and 1 out of every 4 envelopes will have $100 in it.

Will you play it safe and not play understanding that the functional result and risk does not have a positive outcome?

Do you prefer to “roll the dice “ on that one out of four chance of coming out ahead?

How do we frame this risk for the client – do we talk about the potential gain or do we focus on the likely (75% of the time) loss?

Is not playing a means of insurance that you will not risk losing the $25 (settlement)?

Do you stack the deck and buy four chances knowing it is fairly likely you will at least win on one of them and, if so, do we still advise the client that there is still a chance that if there are 8/12/16 players they may still walk away with nothing?

WASHBURN LAW 5 5

An Exercise

When we think about risk a simplistic way to look at it is “what are you willing to gamble”?

To get a real look at how different people approach risk differently we are going to play a few rounds of roulette and then talk about how different attendees today approached their risk taking in different ways touching, as we are able, on why they did so.

WASHBURN LAW 6 6

2 7/14/2020

Modern Roulette Table

WASHBURN LAW 7 7

The Roulette Wheel

WASHBURN LAW 8 8

The Results Monitor

WASHBURN LAW 9 9

3 7/14/2020

Instructions for the Exercise

Grab a writing instrument and a piece of paper.

Start with $10,000 imaginary dollars.

As I announce each round you can bet as much or as little as you wish.

Bets will be odd or even (pay 2 to 1), red or black (pay 2 to 1) or either single or double zero (pays 35 to 1). To make the exercise easy to track.

We will play 6 or 7 rounds as time allows.

WASHBURN LAW 10 10

Roulette Rounds Live

I have a random computer generated roulette wheel outcome printed version to keep me honest.

I will give you a minute to make your bet and then I will announce the result and move to the next round.

Calculate your winnings (or losses) as we move round and I will announce our final spin before it begins.

WASHBURN LAW 11 11

Roulette Rounds

Roulette live experience will be shown during program only.

WASHBURN LAW 12 12

4 7/14/2020

Results

How many lost money?

How many made money?

Hands up for $11,000, $12,000 more?

Did you make it at the end or earlier?

WASHBURN LAW 13 13

Heuristics and Academic Principles

Satisficing – Choosing a solution set that satisfies a minimal set of criteria. Elimination by Aspects – Using a set list of criteria and the solution is dropped as soon as it fails to meet a single criteria in the list. Heuristics – Models that help people make decisions including availability, representativeness and anchoring and adjustment.

WASHBURN LAW 14 14

Heuristics

Availability – Decisions are based on recent information in our memory in regard to causes, frequency, and probability of past and future events. More recent or vivid events are more readily available to impact decisions.

Representativeness – Decision made on the similarity of the current situation to past situations. This approach assumes people will act in the future the same way they did in the past. Efforts are made to match up the current situation with past experiences.

Anchoring and Adjustment – People tend to link decisions to some sort of initial base point such as what they believe the “going rate” to be for labor or pay for a particular job. Offers and counteroffers are then based around that reference point.

WASHBURN LAW 15 15

5 7/14/2020

Problems With Availability Bias

Recalling recent or vivid events – People only tend to recall recent or vivid events. Plaintiffs are more likely to file suit after high verdicts and defendants are more risk adverse as a result of reading the same information.

Connecting events based on our experiences – If we know of a few bad examples we tend to overestimate the bad examples but if we know of overly positive outcomes we overestimate the likelihood of those re- occurring.

WASHBURN LAW 16 16

Problems with Representative Bias

Ignoring base rates – This is best explained by the fact that folks going into business generally ignore the high failure rate of new businesses. It also covers attorneys estimating a likelihood of success as a percentage without any statistical basis for it.

Ignoring sample size – Seeing a few big verdicts may fail to take into account the small sample size of cases in that particular cause of action. Being aware of the cases that have succeeded and failed to compare the current facts with gives a more accurate picture.

Ignoring chance events – People believe that if a coin flip comes out the same way four times it either cannot repeat or it is a “hot streak” and will come out that way again.

WASHBURN LAW 17 17

Anchoring and Adjustment Biases

Inaccurate or irrelevant anchors – A series of low guesses with encourage others to guess low as well. Four great outcomes will encourage an estimate of a another great outcome.

Overconfidence – Many people are unrealistically confident in their ability to predict the outcome of an event.

Looking for confirmation – People look for information that confirms their view of things. For example attorneys and clients are blinded by the positives in their case and fail to see the shortcomings and contrary facts or law.

Professional blindness – Professionals often have a sort of tunnel vision and fail to see outside factors that may influence a change in how a judge or jury might view facts in a new case versus past experience.

WASHBURN LAW 18 18

6 7/14/2020

Citation

The prior information was greatly summarized from chapter 7 of, The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling.

Citation: Robert F Cochran et al., The Counselor-At-Law : A Collaborative Approach to Client Interviewing and Counseling (LexisNexis Third edition.) (2014)

WASHBURN LAW 19 19

Competence

Client-Lawyer Relationship Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Is competence in understanding how clients (and attorneys) address risk ethically required?

WASHBURN LAW 20 20

Allocation of Authority

Client-Lawyer Relationship Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Do we provide enough information about risk to the clients so that they can make the decision that are to be theirs alone to make in representation?

WASHBURN LAW 21 21

7 7/14/2020

Communication

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In representing a client does the communication rule require us to talk with the client about risk to be sure that they understand and can make choices that take all issues into consideration?

WASHBURN LAW 22 22

Corporate/Entity Clients

Client-Lawyer Relationship Rule 1.13 Organization As Client

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. …

In representing an entity are we obligated to evaluate risk, at least in the context of potential financial harm to the organization, and take steps to safeguard against bad decisions by the corporate officers?

WASHBURN LAW 23 23

Clients With Diminished Capacity

Rule 1.14 Client With Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. …

Do we have an obligation to evaluate with the young, old or others with diminished capacity can understand risk, and especially risk as we explain it to them, to an extent reasonably necessary to protect their interests? May we or must we step in to protect their interests if they do not?

WASHBURN LAW 24 24

8 7/14/2020

Attorney as Advisor

Counselor Rule 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Do we find an obligation to understand and advise as to risk here in the attorney as advisor role?

WASHBURN LAW 25 25

Expediting Litigation

Advocate Rule 3.2 Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Does explaining risk in a way that encourages reasonable settlement consideration serve our directive to expedite litigation?

WASHBURN LAW 26 26

Risk in Dealing With Unrepresented Parties

Transactions With Persons Other Than Clients Rule 4.3 Dealing With Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Are we obligated to clearly explain risk especially when we negotiate or discuss settlement with unrepresented parties? Going back to the initial one in four chance example do we need to be careful how we discuss and present offers to unrepresented parties?

WASHBURN LAW 27 27

9 7/14/2020

Rule 8.4 Misconduct

Maintaining The Integrity Of The Profession Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(d) engage in conduct that is prejudicial to the administration of justice; …

When we choose how to represent a particular risk decision do we need to think about whether we are accurately “representing” the risk? When we throw numbers at the choice are we being dishonest or clear in where we are providing those predictions from?

WASHBURN LAW 28 28

Preamble – A Lawyer’s Roles

PREAMBLE: A LAWYER'S RESPONSIBILITIES

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

In closing what roles do properly understanding, evaluating and explaining risk choices to our clients matter? Do we do enough to be sure clients have adequate information to make information choices?

WASHBURN LAW 29 29

Contact Information

Presented by: Shawn Leisinger, J.D. Associate Dean for Centers and External Programs Externship Program Director Washburn University School of Law 1700 SW College - Suite 331C Topeka, Kansas 66621 (785)-670-2464 (785)-670-2462 fax [email protected]

WASHBURN LAW 30 30

Incorporating a Gun Trust Into an Estate Plan

Presented by: Jeff Jackson

Date: Monday, July 20

Time: 9:00 a.m.

Location: Roosevelt Room, Lodge at Deadwood

Incorporating a Gun Trust into an Estate Plan Presented by: Jeffrey D. Jackson Professor of Law Director, Center for Excellence in Advocacy Washburn University School of Law 1700 SW College Ave Topeka, KS 66621-1140 (785) 670-1833

The purpose of this session is to provide a brief explanation of the basic operation of a gun trust to hold firearms and the mechanics of such a trust's operation. It will discuss the reasons to create a gun trust; their effectiveness as an estate planning tool to hold firearms; common myths and understandings about what a gun trust can do; special rules associated with gun trusts; and client counseling issues associated with gun trusts. I have also provided some resources to help with the drafting of these trusts and to provide more information.

I. Gun Trust Basics

A. What is a gun trust? Simply put, a gun trust is a type of trust specifically designed to hold ownership of firearms. While it is often used for firearms that are subject to strict federal and state regulations, it can also be used to hold other types of firearms

as well. The purpose behind a gun trust is to make it easier for firearm to be transferred after the death of the trust creator. The gun trust is the legal entity to which any firearm is registered. A gun trust also allows more than one person to use or own firearms that are held in trust. The trustees and beneficiaries may use the firearms owned by the trust under conditions both specifically dictated in the trust instrument and prescribed by all federal, state, and local firearms laws.

B. Some Brief Definitions

1. Gun Control Act of 1968, 18 U.S.C. § 921, et seq. (Title I) This is the main federal firearms law, regulating interstate commerce in firearms, and providing for transfers among licensed manufacturers, dealers, and importers. It provides for a class of “prohibited persons” who may not own firearms under federal law, as well as for criminal penalties for transferring to, receiving, or possessing firearms with regard to those prohibited persons. Although most firearms are covered under the Gun Control Act, the term “Title I” firearms is used to refer to ordinary firearms such as pistols, rifles and shotguns whose ownership and transfer are mostly regulated by state law. 2. National Firearms Act, 26 U.S.C. § 5801, et seq. (Title II)

This act regulates weapons such as machine guns, short- barreled rifles and shotguns, and heavy weapons. It also regulates as “firearms” devices that are not technically firearms, such as grenades, mortars, and rocket launchers, as well as devices for firearms such as suppressors, silencers and machine gun parts and receivers. These are collectively referred to as “Title II” firearms. Acquiring a Title II firearm requires a transfer fee, along with government approval and registration. In addition to compliance with the National Firearms Act, owners of Title II firearms must also comply with the Gun Control Act and applicable state laws. 3. Parties to a Trust In general terms, parties to a trust fall into three categories, although multiple persons can fall into each category, and a single person may fall into more than one category. The settlor is the person who creates the trust and transfers the original items into the trust. For a gun trust, the settlor is usually the original owner of the firearm or firearms. The trustee or trustees are the persons who control and manage the property in the trust for the benefit of the beneficiaries. For a gun trust, the trustee and any co-trustees have the power to possess and use the firearms in the trust. The beneficiary or beneficiaries are the persons to whom the trust property will ultimately be distributed when the trust concludes. In a gun trust, the settlor is generally also a trustee, so that he or she can have use of the trust property. C. Is a Gun Trust Still a Thing?

Originally, gun trusts were designed to solve two very important issues having to do with the transfer of Title II firearms under the National Firearms Act. The first of these had to do with transfer of Title II firearms after the death of the owner. Prior to 2016 revisions to the Act, there was an issue when a person who could legally own Title II weapons died. If the executor of the estate or a spouse or other family member then had constructive possession of a firearm, there was a chance that such possession could be deemed to be “unlawful” and the firearm subject to confiscation and forfeiture. The law was unclear as to how the items could be transferred. By having the possession of the firearm located in a gun trust, the ownership could be maintained by the trust after the owner’s death so long as there was a co-trustee who could validly possess the weapon. In 2016, the Attorney General issued Rule 41F. As a part of that rule, a new section was added to 21 C.F.R. part 479. This new section, codified at 21 C.F.R. § 479.90(a), provides that “[t]he executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate (collectively “executor”) may possess a firearm registered to a decedent during the term of probate without such possession being treated as a “transfer” as defined in § 479.11.” This allows the executor to hold temporary possession of a Title II firearm and to transfer possession to a beneficiary, or if no beneficiary is willing or able to take possession, to dispose of the firearm to an authorized person outside of the estate. The second major issue had to do with what some people term the “gun trust loophole.” As with most things, however,

there was actually a problem underlying the issue. Prior to 2016, an individual who was the transferee of a Title II firearm was required to not only comply with state and federal transfer regulations (including ATF Form 4), but also to attach a photograph and two sets of fingerprints for a background check, purchase the $200 tax stamp, and get the signature of a local Chief Law Enforcement Officer (CLEO) on the application. The required CLEO signature caused some problems. A CLEO had complete discretion whether or not to sign off on the Form 4, and there was no review process under federal law to challenge a refusal. This led to accusations that CLEOs in some areas were refusing to sign off on transfers, either because of personal animosity, or simply personal policy. When the owner of the firearm was a gun trust, however, the same requirements for transfer did not apply. Although the trust was required to pay fees and complete a Form 4, no photographs or fingerprints were required. Further, the trust did not have to obtain a CLEOs signature, and no background check was performed. This made the gun trust an attractive vehicle for those who wanted to cut through the regulatory red tape, preferred quick action on purchases, or who feared that a CLEO in their area might arbitrarily and capriciously deny their application. Unfortunately, it also made gun trusts vulnerable to the accusation that they were being used as a loophole to circumvent federal firearm regulations. Rule 41F also addressed this issue. Now, all “responsible persons” including “responsible persons” of entities such as trusts, are subject to the same basic rules for receiving or transferring firearms. To make or acquire a Title II firearm, all responsible persons of a trust must fill out and submit a

copy of Form 5320.23 (National Firearms Act Responsible Person Questionnaire) along with photographs and fingerprints, and also to forward a copy of the form to the chief law enforcement officer of the locality that is the primary location where the firearm will be maintained. This mirrors the new requirement for an individual, who must fill out and submit a Form 4, along with photographs and fingerprints, and also forward it to the chief law enforcement officer of the locality in which he or she resides. See 27 C.F.R. § 479.84. Thus, there is no longer any special benefit for a gun trust regarding background checks or submission of photographs and fingerprints, and also no requirement that an individual gain a CLEO signature. However, although Rule 41F has equalized and eliminated many of the inconsistencies and uncertainties that spurred the widespread use of the gun trust, it has not made gun trusts obsolete. Instead, using a gun trust to hold both Title II and even Title I firearms can provide a number of benefits.

II. The Benefits of a Gun Trust

A. Allowing Multiple Users for Title II Firearms This is one of the most obvious benefits for having a gun trust. Under 26 U.S.C. § 5861, it is illegal for any person to own, transfer or possess a Title II Firearm not registered to him or her. This means that only the owner can actually possess such a firearm (although the ATF has generally defined possession to allow others to use the firearm in the presence of and under the supervision and control o the

owner). However, with a gun trust, the trust itself is the actual owner, and anyone who is a co-trustee can have equal access to the firearm. This also allows multiple individuals to go together to purchase a Title II Firearm with the assurance that they will have equal access to its use. B. Ease of Transfer of Ownership Under a gun trust, adding owners to a Title II Firearm can be accomplished simply by naming someone a co-trustee. Interestingly, while the new co-trustee is a “responsible person” under the terms of federal law, the new regulations do not require that the trust fill out a new Responsible Person Questionnaire or obtain his or her fingerprints and photograph, or even notify the CLEO before he or she is added to the trust. Although this was originally part of the proposed rule, it was not included in the final rule. Instead, the new responsible person only needs to undergo this procedure if the trust takes some activity, such as purchasing a new Title II Firearm, that requires the submission of a new Form 1 (Application to Make or Register a Firearm); Form 4, or Form 5. Further, adding a new co-trustee does not trigger the federal transfer tax. Of course, criminal liability still applies, so it is important to make sure that the new co-trustee is able to legally possess the firearm, that is, not barred by some provision of federal or state law. C. Control over Distribution and Continuity A gun trust allows the settlor (maker) of the trust to manage control over his or her firearms in an estate plan. Through the use of a trust, the firearms can be kept separate from the rest of the estate, and the settlor can make provisions for the trust

to hold items for the benefit of minor children who may not yet be of age possess Title II Firearms (21) or even Title I Firearms (18). The trust can hold those items, and even provide that the children become co-trustees at the required age to have access to those firearms. A gun trust can also provide for continuity in case individual co-trustees die or become incapacitated. By providing for successor trustees and the ability to name new co-trustees, the trust can keep continuous possession of the firearms in the hands of persons who can use and appreciate them. This is one of the benefits that makes it sensible to include even Title I Firearms in a gun trust. It should be noted that at least one respected legal treatise recommends against including Title I Firearms in a gun trust on the grounds that “[i]nclusion of these items into the gun trust may subject them to regulation by the federal government, including the [Gun Control Act and National Firearms Act] to which they would not otherwise be subject.” See Myron Cove, George Gleason Bogert & George Taylor Bogert, Bogert’s The Law of Trusts and Trustees §1089 (2019). However, it is difficult to see why this would be the case in a well-drafted gun trust. A drafter can easily choose language that makes it clear which law applies to which class of firearm, and thus gain the benefits of a gun trust without incurring additional regulation. D. Providing Instruction for Trustees and Beneficiaries on the Law This is one of the most often-overlooked benefits of a gun trust. The law surrounding ownership and use of Title II

Firearms is extremely complex, and many people who may be beneficiaries (or even owners) might not understand it all that well. A well-drafted trust can include detailed instructions to beneficiaries and co-trustees about how to comply with all pertinent state and federal regulations. This too is a benefit that can extend to not only Title II, but also Title I firearms. E. Protecting Privacy A gun trust can also be useful in protecting privacy regarding the contents of the trust. Without such a trust, firearms owned by a decedent would pass according to the decedent’s will or through intestacy. This could result in the contents of the estate being listed in public documents. However, with a gun trust, the items pass as directed in the trust and the contents do not become public. While they must still be disclosed to federal and/or state officials in compliance with firearms transfer laws, they do not thereby become public documents.

III. What a Gun Trust Won’t Do Unfortunately, certain misconceptions have sprung up surrounding gun trusts. It is important to realize that there are some things that gun trusts don’t do. A. Gun Trusts Don’t Allow Prohibited Users to Own Firearms Someone who is a prohibited person under the law cannot evade the law by claiming that the “real” owner is the gun trust. If the prohibited person has access to firearm, then there is criminal liability.

B. Gun Trust Don’t Allow Persons to Access Prohibited Firearms This is the flipside of A above. Just because the trust “owns” the firearm, this does not allow the trust to violate federal law. For instance, under 18 U.S.C. 922(o), it is illegal for any person to make or possess a machine gun, with some exceptions, including the lawful possession or transfer of a machine gun before the statute took effect. This prohibition applies to “persons,” a term which includes “any individual, corporation, company, association, firm, partnership, society, or joint stock company.” 18 U.S.C. 921(a)(1). An enterprising individual, upon realizing that this definition did not include the word “trust,” argued that the prohibition did not apply to gun trusts, and therefore his trust should be allowed to make and possess a machine gun – in this case a fully automatic M16 replica. See United States v. One (1) Palmetto State Armory PA-15 Machinegun/Receiver Frame, 822 F.3d 136, 138-39 (3d Cir. 2016). Unfortunately, the Third Circuit Court of Appeals took a dim view of this argument. The court noted that a trust does not have a legal identity distinct from its trustees, and held that a trustee is a natural person that falls under the prohibition, even when acting on behalf of a trust. 822 F.3d at 140-41. C. Gun Trusts Don’t Exonerate Trustees from Liability for Firearms Violations Remember that a gun trust is still a trust, and thus if a violation occurs concerning firearms laws, there is not a “trust did it” defense concerning criminal liability. Thus, trustees

will be liable for any criminal violations, which could include allowing prohibited individuals to possess firearms.

IV. Some Things to Remember when Drafting a Gun Trust There are a number of things that attorneys need to remember when drafting a gun trust. While a lot of them are common sense, it pays to get things right. The following are some of the more important ones. A. A Gun Trust is still a Regular Trust Every attorney drafting a gun trust should remember that a gun trust is still a trust. That means that all of the laws of the jurisdiction that govern the drafting of an inter vivos revocable trust will still apply to the drafting of a gun trust. For instance, if you make the settlor the sole trustee and the sole beneficiary, you may still run into problems with the doctrine of merger. Therefore, you need to treat the gun trust as you would any other trust when drafting it. The gun trust should also contain such provisions as a spendthrift clause in order to protect the beneficiaries’ interests from creditors. B. A Gun Trust is more than a Regular Trust While a gun trust is a regular trust, it’s also much more than that. It’s a special trust for assets that are heavily regulated, both under federal and state law. The penalties for getting a gun trust wrong can be severe, and care must be taken to draft one. A well-drafted gun trust can not only be an especially useful document that serves not only its settlor, but provides guidance and utility for trustees and beneficiaries.

Getting a gun trust right for the client is the value an attorney adds to the transaction. Clients could very easily just download a gun trust form from the internet or purchase one at a local firearms dealer. While the ATF might approve transfers of firearms to these trusts, this approval does not protect the settlor or trustees if it turns out the trust is invalid for some reason. Each client needs a trust that is constructed specifically to handle his or her firearms, both those currently owned and those that might be purchased in the future. Therefore, the attorney drafting the gun trust needs to pay attention to a number of issues, including: 1. Be very familiar not only with the federal laws regarding transfer of certain firearms, but also the state laws that might govern other firearms placed in the trust. This is one of the most important services that an attorney can provide. Knowledge of federal and state requirements allow the attorney to draft the trust that the client needs. To do this, the attorney must be familiar with terms such as “prohibited persons” and the new designation of “responsible persons” who are required to submit fingerprints and other information. Knowledge of these laws help the attorney advise the client so that the client doesn’t end up designating someone as a co-trustee who is legally unable to possess the firearm, or include as a beneficiary someone who is prohibited from possessing the firearm, and thus inadvertently violate federal or state law. The attorney also needs to be aware that while Title II firearms are generally governed by federal law, some states have imposed additional restrictions on the sale and transfer of such firearms. Therefore, the attorney needs to be familiar

with those laws in the jurisdiction of the trust as well. Some jurisdictions, such as Texas, allow transfer of Title II firearms so long as the transfer complies with federal law, while other jurisdictions, such as California and New York, have requirements that are much more restrictive. 2. Be very clear in directing the client with regard to how items are to be listed, transferred to, and transferred out of the trust, and draft the trust with detailed procedures to advise the trustee as to issues such as distribution of trust assets. As I mentioned above, the assets in the gun trust are highly regulated. While the client who wants a trust may have a solid understanding of the procedures necessary to obtain or transfer a Title II firearm, he or she probably will not have as complete an understanding of how that ownership works in connection with a trust. For instance, because the gun trust is revocable, the settlor of a trust may want to revoke the trust at some point. With a normal revocable trust, this is not an issue. With a gun trust, however, it is. Under 26 U.S.C. § 5861, it is illegal for any person to transfer, receive, or possess an NFA firearm not registered to him or her. Further, 26 U.S.C. § 5812 requires the government's permission to transfer NFA firearms. If the settlor simply revokes the trust and takes possession of the firearm, he or she has violated the law, even if he or she owned the firearm to begin with. These types of issues need to be explained by the attorney and incorporated into the trust document. Further, even if the client who is creating the trust is knowledgeable, those designated as co-trustees, or those who might become co-trustees in the future, may not be. It is

generally not possible for the attorney drafting the trust to meet with those people. A well-drafted trust should help guide those persons in their duties regarding how trust property is to be titled and ultimately distributed. 3. Make sure that you have protected your client from civil or criminal liability to the extent possible. As noted above regarding misconceptions, a gun trust does not on its own exonerate trustees and others from criminal liability. However, a well-drafted trust document can help reduce accidental exposure to liability. It can explicitly prohibit trustees from taking actions that would violate the National Firearms Act, for example, and can clearly make certain actions contingent on government approval. It can also provide language that enables the removal of a trustee without delay if that trustee becomes a “prohibited person.” Like other revocable trusts, a gun trust document can also take steps to absolve trustees of civil liability to beneficiaries. It might also specify how disagreements regarding the trust are to be resolved, that is, through arbitration in those jurisdictions that allow a settlor to mandate such a procedure. This helps to protect the privacy of the property in the trust.

V. Additional Resources

The following are additional resources that provide good information on gun trusts and requirements for complying with federal law:

Sean P. Healy et al., The Legal Guide to NFA Firearms and Gun Trusts (2d ed. 2016) United States Dept. of Justice, ATF National Firearms Act Handbook, https://www.atf.gov/firearms/national-firearms-act- handbook David Goldman, Gun Trust Lawyer Blog, https://www.guntrustlawyer.com/

Law, Technology & Ethics

Presented by: Blake Klinkner

Date: Monday, July 20

Time: 10:15 a.m.

Location: Roosevelt Room, Lodge at Deadwood

7/14/2020

Professor Blake A. Klinkner Washburn University School of Law Washburn Law CLE Excursion Deadwood, South Dakota July 20, 2020

1 1

•Waiving the Attorney-Client Privilege •Advising Clients Regarding Technology & Social Media •Spoliation of Digital Evidence •Social Media Research •Social Media and Juries

2 2

Waiving the Attorney-Client Privilege  Technology has made it easier for parties to waive the attorney-client privilege  Social media  Third-parties  Lenz v. Universal Music Corp., 2010 WL 4789099 (N.D. Cal. Nov, 17, 2010)  Gulliver Schools, Inc. v. Snay, 137 So.3d 1045 (Fla. Dist. Ct. App. 2014)

3 3

1 7/14/2020

Advising Clients Regarding Technology & Social Media  Advise clients to restrict or cease social media  Change security settings / restrict access to social media  Don’t “friend” people you don’t know  Think Before Sending Texts/Emails/Blogging  DO NOT ADVISE A CLIENT TO DELETE

4 4

Spoliation of Digital Evidence  Rule of Professional Conduct 3.4(a): A lawyer shall not “unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.”  In the Matter of Matthew B. Murray, Virginia State Bar Docket Nos. 11-070-088405 & 11-070-08842 (2013)  Beware of inadvertent spoliation of digital evidence  Updated Federal Rules of Civil Procedure

5 5

Social Media Research  What is “fair game” when it comes to seeking evidence through social media and online?  What constitutes a “crossing the line” when using social media and the internet to research opponents, witnesses, and jurors?

6 6

2 7/14/2020

Social Media Research

 “What is public is public”  Be cautious with “Friends only” information  Don’t forget traditional discovery mechanisms  Scenarios:  Simply browsing through an adversary’s Facebook profile without having any “friend” requests made

7 7

Social Media Research  Scenarios (continued):  Having your paralegal send a “friend” request on Facebook to an individual who just happens to be the adversary in your case…and who also happens to be represented by counsel at the time  Having a 3rd-party friend submit a “friend request” to a hostile witness, using his real name, but not identifying why he is submitting a friend request  Contacting unrepresented persons  Contacting members of an organization

8 8

Social Media Research  Be aware of the Stored Communications Act, 18 U.S.C. §§ 2701-2712  Juror No. One v. Superior Court, 206 Cal. App. 4th 854, 142 Cal. Rptr. 3d 151 (2012), reh'g denied (June 21, 2012), review denied (Aug. 22, 2012)

9 9

3 7/14/2020

Social Media and Juries  Attorney use of social media for juror research  Carino v. Muenzen, A-5491-08T1, 2010 WL 3448071 (N.J. Super. Ct. App. Div. Aug. 30, 2010)  Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010)  Juror use of social media during trial

10 10

Professor Blake A. Klinkner Washburn University School of Law [email protected] Phone: 785-670-1787

11 11