Partner Brett Lee Shelton, is featured in this piece from Wyoming Public Radio, which discusses that state’s possible proposal to “opt out” of the federal health care program.
In the massive Cobell Indian land lawsuit settlement, many land owners are confused about what to do. Below are some links that may be helpful, as well as some important dates. You may need to cut and paste the links into your browser…
Claim form can be found at this link:
Informational Meeting Dates:
Settlement Agreement: December 7, 2009
President Obama Signs Legislation Approving the Settlement and Authorizing $3.4 billion in Funds:
December 8, 2010
Deadline to Exclude yourself
from the Settlement
(Trust Administration Class Only):
April 20, 2011
Deadline to Object or Comment
on the Settlement:
April 20, 2011
Deadline to Submit a Notice
of Intent to Appear and Speak
at the Fairness Hearing:
April 20, 2011
Fairness Hearing: June 20, 2011 at 10:00 a.m.
United States District Court
for the District of Columbia
333 Constitution Avenue NW
Deadline to File a Claim /
Register to Participate:
Due within 45 days
of the Court’s Final Approval
of the Settlement
(or, at a later date set by the Court)
Check out this great article about our very own Jennifer Baker, associate lawyer here at Smith, Shelton and Ragona. This was originally published in Sooner Lawyer (December 2010, University of Oklahoma College of Law, Norman, Oklahoma). It’s a great profile piece on a very accomplished professional.
Smith, Shelton and Ragona is pleased to share the comments of the Oglala Sioux Tribe to the National Indian Gaming Association, worked on by the firm and in the form of a letter from Tribal President John Yellow Bird-Steele to the NIGC dated February 1, 2011. The full letter can be seen at the link below… (you may need to cut and paste):
Parsing the Doctrine of Discovery
Lawyer examines new issues in Indian law
By Stephanie Woodard for Indian Country Today.
August 23, 2010
Westminster, Colorado — A June 2010 ribbon-cutting ceremony marked the opening of a new office for the Native American-owned law firm Smith, Shelton & Ragona. The year-old firm has three partners: Keith C. Smith, Navajo; Brett Lee Shelton, Oglala Lakota; and Donald M. Ragona, Matinnecock. Indian Country Today spoke to Shelton, who also serves as counsel for the Oglala Sioux Tribe, about the firm’s work with tribal communities.
ICT: Why did you set up shop in this area, just north of Denver?
Shelton: It places us in the center of Indian country, keeping us in touch with Native communities and their issues. Our partners and most of our staff are tribal members who are fluent or reasonably comfortable in our home languages and cultures. As a result, we understand that important concepts are sometimes formed in tribal languages, rather than in English, and can find ways to ensure these are considered when legal problems arise.
ICT: Can you give us an example?
Shelton: A 2007 child and family welfare code enacted by the Oglala Sioux Tribe, which I helped write in consultation with elders, translated beliefs about the rights of children and families to today’s family structures, which ranged from traditional ones to assimilated ones. Such ideas can also be part of regulations protecting tribal communities and providing a space in which they can live their lives as they see fit; for example, some tribes forbid photography to accomplish this.
ICT: What are the pressing new issues in Indian law?
Shelton: One important emerging area is the gathering of indigenous DNA, which may have unique characteristics, for medical or pharmaceutical research. Recently, the Havasupai settled a suit against researchers who used DNA collected from the tribe for wider-ranging purposes than the diabetes study tribal members had originally approved. The additional work included studies on mental illness and on theories of the tribe’s origins that contradicted the tribe’s own stories.
ICT: Is genetic research fundamentally problematic?
Shelton: Tribal people worldwide are generally very careful about the disposal of bodily remains, even nail and hair cuttings. As a result, some are deeply offended when scientists graft their DNA into bacteria or other species, make it part of what are essentially immortal cell lines, or trade or sell it to other scientists. However, the possibility that such things might happen is often buried in the boilerplate language of genetic-research agreements and consent forms. So, a community embarking on such a project should have a lawyer who understands the tribal thinking — which may not be expressible in English — go through any contract. When I did genetic-research activism among Maori people in New Zealand some years ago, we explained how the research worked in terms of an important framing concept of their culture. Only then could they make informed choices based on issues that mattered to them.
ICT: How do scientists justify such invasive research?
Shelton: They don’t have to with most mainstream people. However, for Native people, genetic research is one of the most recent frontiers of the doctrine of discovery. The mainstream has taken most of what it can from Native people in terms of land and resources. So now, I would argue, it’s getting under their skin and into their minds. Examples of the latter are traditional plant knowledge, from which pharmaceutical companies want to make new drugs, and indigenous ideas about ecosystem management.
ICT: Can you give us short primer on the doctrine of discovery?
Shelton: The underlying belief, which goes back at least to old England, is that things in nature have no value until someone captures them or does something with them. Then they can be legally protected so the discoverer or creator can profit. In essence, this says, ‘finders keepers.’ In contrast, Native people see things — an echinacea plant, let’s say — as having intrinsic value and requiring knowledge and perhaps a ceremony to use. There’s a responsibility before there’s a right. In the Euro-American model, you just dig it up; then you can make something out of it and patent that thing.
ICT: Should Native people be patenting, copyrighting and trademarking?
Shelton: Intellectual property law looks helpful, but isn’t. Let’s say you copyright a song; it’s protected for some years, then passes into the public domain, which makes matters worse. It’s no longer necessary to understand the song in order to sing it. We Native people have to live in the world according to our own instructions, so we have to find other ways to regulate what’s acceptable — such as a recent Oglala Sioux Tribe code addressing collection of paleontological and archaeological remains on tribal land.
ICT: What about off-reservation instances?
Shelton: As a lawyer, you have to think on your feet and find creative solutions when such problems arise. Courts and regulations aren’t always the best choices. Sometimes the answer may be negotiation. For example, in the late 1990s, the Native American Rights Fund worked with the National Parks Service to close Devil’s Tower to climbing during June, the time during which tribes associated with the site felt it was most important to restrict this activity. Public education, to create dialogue between Native and non-Native people, is also needed, in order to recruit as many allies as possible and alleviate opposition — which might not exist if understanding were advanced.
ICT: Do the courts provide useful remedies?
Shelton: We try to go to court only with cases with the most favorable facts, and with an eye on the biases of the courts — which are all over the map. Litigation is also expensive, so we’re cautious about advising a client to take that route.
ICT: With all the complex and changing issues in Indian country, is there a need for more attorneys, especially those who are “on the ground,” as your firm is?
Shelton: There are many young Indian lawyers coming along, as well as Indian people considering this profession. I tell them to develop broad legal expertise, but also to specialize if they’re drawn to a subject — the environment or business, let’s say. That way you’ll bring to your people the best legal toolkit possible. There is certainly need for more attorneys dedicated to providing high-quality services to tribes, particularly if they have both real expertise in the legal system and an awareness of tribal thinking.
How do Colorado Courts decide custody issues, i.e how much parenting time a parent should have with a minor child?
Courts rely heavily on the standard of the “best interest of the child” in making this determination. This standard, however, needs further definition in its application. Under Colorado statutory law, C.R.S. § 14-10-124, some of the factors which help define the best interest of the child are as follows:
1) The wishes of the child’s parents as to parenting time [this is not the only consideration, however];
2) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule [no, you cannot coach a three-year old to say he/she wants to spend every week with a parent];
3) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests [sometimes mental health professionals may be helpful analyzing and reporting to the court on the parent-child relationship];
4) The child’s adjustment to his or her home, school, and community [if, for example, you are proposing a substantial modification of parenting time, your child will need an adjustment phase];
5) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time [if you have mental health issues and those issues may affect your child(ren), courts may want to see that a parent is taking proactive steps and/or working with a mental health professional to address these issues];
6) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party [even though you and your children’s other parent are quarreling, keep these arguments from your children as much as possible; never talk to your children about custody disputes; always encourage your children to have a relationship with both Mom and Dad (kids with two, involved parents are much more likely to avoid drugs, teenage pregnancies, etc., etc.)];
7) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support [For example, if you make parenting time arrangements, keep them!];
8). The physical proximity of the parties to each other as this relates to the practical considerations of parenting time [if Mom lives in Florida and Dad lives in Colorado, a week-on, week-off parenting time arrangement will not be possible because exchanging children from one end of the country to the other every week is neither fair nor appropriate for the children];
9) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence [upon motion, a court may immediately restrict any arrangements for parenting time which endanger a child’s physical health or significantly impairs the child’s emotional development];
10) Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence;
11) The ability of each party to place the needs of the child ahead of his or her own needs [For example, do not make parenting time matters a means of retaliation against your ex-spouse].
C.R.S. § 14-10-124.
For more information regarding parenting issues and assistance, please go to www.uptoparents.org — which is a great resource on effective parenting during a divorce (by clicking the above, you will be directed to a new website with no affiliation with SSR Law).
This post is for informational purposes only; it is not intended to be legal advice. This post in no way creates an attorney-client relationship. Please consult with an attorney of your choice for advice about your particular case.