Oglala Sioux Tribe comments on NIGC Regulations

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):

www.nigc.gov/Linkclick.aspx?fileticket=tZ1zc5-SXL8%3d&tabid=992

Parsing the Doctrine of Discovery

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.

Deciding Custody Issues

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. 

TRIBAL HEALTH ORGANIZATIONS AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

By Molly Barnett, Esq.

Is my tribal organization subject to the requirements of HIPAA?

 

If you are a tribal organization which a) provides health care and transmits patient health information electronically OR b) is part of the Indian Health Service program under the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.), your organization must comply with the Health Insurance Portability and Accountability Act (HIPAA). [HIPAA applies to “covered entities”; refer to the following outside link for more information on “covered entities”: http://www.cms.gov/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf ]

 

Why is a tribal entity subject to federal requirements?

 

Interestingly enough, according to the Indian Health Service’s (IHS) website, “We have no official answer to that question [of whether Tribes are required to become compliant under HIPAA]… However, we urge all members of the Indian health community to begin work toward HIPAA compliance.” The issue has not yet been brought in court, although the federal agency which enforces HIPAA, the Office of Civil Rights, is requiring tribes to comply. Violations of HIPAA could result in fines. Thus, as a purely precautionary matter, tribal health care providers which transmit patient health information electronically and/or are part of an IHS program may want to seriously consider HIPAA compliance until the issue is resolved in court. Furthermore, compliance with HIPAA might help protect against damages lawsuits for privacy violation, even if HIPAA is determined by a court not to require tribal compliance.

 

            If the tribal organization would like to impose standards which are more stringent than HIPAA, it should feel free to do so.   

 

The basics of HIPAA:

 

            HIPAA requires organizations to safeguard patient health information and to restrict disclosure of patient health information. There are different rules for disclosure, depending on the person or organization requesting disclosure. Usually, the patient is entitled to receive their own health information (unless it will hurt them, another person or another exception applies). Usually, persons within the organization may access patient health information only if it is necessary to do their jobs (“need to know basis”). Disclosures to persons outside the organization is allowed only in certain circumstances, which may require an authorization/consent form from the patient (if there is an emergency or suspicion of child abuse, please consult HIPAA for specific disclosure rules in these circumstances). HIPAA has a number of requirements that must be included in the authorization/consent form for it to be valid. THIS IS ONLY A SUMMARY; PLEASE CONSULT HIPAA FOR A COMPLETE DESCRIPTION OF THESE REQUIREMENTS.

 

Other requirements of HIPAA:

 

            Patients must receive notice of the organization’s HIPAA policies and of their rights under HIPAA. A notice form is not valid unless it precisely complies with HIPAA’s notice requirements.

 

All employees of a health organization must be given training and a copy of written internal policies regarding HIPAA. Employees must report violations of HIPAA.

 

The Security Rule section of HIPAA requires certain precautions be taken regarding electronic patient health information (EPHI). Such precautions include encryption and restricting computer and software access to EPHI via secure log-on systems. THIS IS ONLY A SUMMARY; PLEASE CONSULT HIPAA FOR A COMPLETE DESCRIPTION OF THESE REQUIREMENTS.

 

            If your organization provides alcohol and/or substance abuse treatment, there are more stringent laws governing the protection of patient health information. See 42 C.F.R. Part 2.

 

HIPAA Resources

 

HIPAA Statute: P.L. 104-191, available online at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/index.html .

 

HIPAA Regulations: 45 C.F.R. Parts 160, 162 and 164, available online at http://www.hhs.gov/ocr/privacy/hipaa/administrative/combined/index.html .

 

U.S. Department of Health and Human Services, Office of Civil Rights Website: http://www.hhs.gov/ocr/office/index.html .

 

Indian Health Services Website: http://www.ihs.gov/adminmngrresources/hipaa/index.cfm?module=faq .

 

For more information about HIPAA compliance for tribal agencies or to request HIPAA training, please email meb@ssr-lawyers.com .

 

 

 

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. 

A Christmas Poem from Indian Country

Complements of someone who emailed Attorney Lisa Yellow Eagle

 

T’was the night before Christmas and all thru the teepee 

Not an eyelid was shut because nobody was sleepy.

The Wal-Mart bags were hung by the fire so neat,

Hoping Chief Nick would fill them up with smoked meat.

The children were nestled all snug in their beds

While visions of fry bread men danced in their heads.

With ya-yah in her kerchief and my hair braided tight

We turned up the scanner to entertain us tonight.

Then all of a sudden a crash we did hear,

The rez dogs started barking but that’s the norm around here.

The moon on the breast of the new falling snow

Gave the luster of midday to my rez car below.

When what do my ndn eyes should appear

But an ndn sleigh with eight tiny reindeer!

With a little rez driver so stoic but quick

I knew in a moment it must be Chief Nick.

More rapid then Rez Ballers the reindeer they came

And he pointed with his lips then called them by name.

On Fancy Dancer, on Smoked Meat, on Thomas and Victor,

On Back Strap, on Philbert, on Black Cloud and Trixster.

Ssshhh! Land beside the teepee, quiet for good reason

We have to be careful it’s deer hunting season.

The stickers on his sleigh read “I love baloney”

Another one said “My other ride is a pony.”

The one in the middle said “NDN Power”

There was duct tape and bailing wire holding it together.

When the teepee flap opened I just hung my head,

For I just finished off his stew and fry bread.

He was dressed in full regalia from his head to his moccs,

His outfit fully beaded right down to his socks!

His huckleberry eyes twinkled, his braids were like WOW!

You have to see it for yourself, he was just … somehow!

The stump of his peace pipe held tight in his teeth

And the smoke signals encircled his head like a wreath.

His face was kind of greasy and he was ndn size,

He had a commod bod only a skin could recognize.

He spoke not a word just flashed his Tribal ID.

He left a block of cheese and new tape recorder under the tree.

He left hand drums and blankets and round dance CDs,

Huckleberry pies and the new Northern Cree!

Then he pointed with his lips, gave a big hearty AYYE!

And he danced out the door and jumped in his sleigh.

I heard him exclaim as he flew out of sight

Merry Christmas to all!  Let’s round dance tonight!

HO! HO! HO!

WHY IS YOUR CREDIT REPORT IMPORTANT?


A credit report is a document that contains information about where you live, who you have borrowed money from, whether you pay your bills on time, whether you have been sued, whether you have been arrested, and whether you have filed for bankruptcy.  Credit reports are compiled by consumer reporting companies.  The three nationwide consumer reporting companies are Equifax, Experian, and TransUnion.  Federal law requires each of these companies to provide you with a copy of your credit report free of charge, at your request, once every 12 months.

Your credit report is important for two major reasons.  First, information in your credit report is used to evaluate your applications for credit, insurance, employment, and housing.  Second, careful review of your credit report is a good way to spot identity theft.

It is important to request your credit report from each of the three companies because each report may contain different information.  The safest way to ensure that you receive these reports free of charge is to request them online at AnnualCreditReport.com.  Other sources for credit reports may require fees or trial memberships.

Once you receive your credit reports, review each one carefully to make sure the information they contain is accurate.  If a report contains wrong information, it may be because a creditor made a mistake when it reported the information or it may be because someone else has used your identity or personal information.  If you receive a credit report with inaccurate information, you should contact the credit reporting company and the creditor in writing to dispute the error, explain why the information in incorrect (providing copies of supporting documents is helpful), and request that the information be removed or corrected.  If your credit report contains information about accounts that are not yours, or if you have other reason to believe that your identity may have been stolen, you should place a “fraud alert” on your credit reports by calling at least one of the nationwide consumer reporting companies.  The phone numbers are:

  • Experian: 1-888-EXPERIAN
  • TransUnion: 1-800-680-7289
  • Equifax: 1-800-525-6285

You should also consult an attorney about additional steps you can take if this happens.

Consumer Rights Against Debt Collectors

YOUR RIGHTS AGAINST DEBT COLLECTORS

The Fair Debt Collection Practices Act (FDCPA) is a federal law that provides protections for consumers against harassment and improper behavior by debt collectors.  It is important to know your rights under this law even if you pay your bills on time, because creditors do make mistakes which can result in debt collection activities.

Under the FDCPA, a “debt collector” is someone (a third party) who regularly collects debts owed to others.  This means that FDCPA protections do NOT apply to activities of creditors (to whom the money is directly owed).  The FDCPA applies to personal debts – not to business debts.

Debt collectors CANNOT:

  • Call you before 8:00 am or after 9:00 pm without your permission
  • Call you at work, if you tell them you are not allowed to receive calls there
  • Contact you after you inform them in writing to stop contacting you (except to tell you that they will cease contacting you or that they intend to take a specific action, such as filing a lawsuit)
  • Contact other people about your debt (but they may contact other people for the limited purpose of finding out your contact information or where you work)
  • Threaten you with violence or harm
  • Publish a list of people who do not pay their debts
  • Use obscene or profane language
  • Call repeatedly to annoy you
  • Make false statements about who they are or who they work for
  • Misrepresent the amount you owe
  • Tell you that you will be arrested if you do not pay your debt

If a debt collector does any of these things, you may have a cause of action against them.  If this happens, you should keep a detailed record of the debt collector’s actions (a phone log of when calls were made and what was said can be helpful) and consult with an attorney immediately.

Please note that this list is not exhaustive, and the state in which you live may provide additional legal protections.  If you have questions about these issues, please consult an attorney.

WILLS, ESTATES AND TRUSTS PRACTICE INFORMATION


If you own property, a will and other estate planning tools like trusts can make decisions easier for your loved ones if something happens to you. Planning ahead by having the proper estate plan -just in case- can make it so that your final wishes about your possessions will be honored.  The alternative is to have the State determine what happens to your property.  Why risk leaving your loved ones to deal with a lengthy formal court proceeding to administer your estate? Why risk increased tax liabilities by not planning ahead?  Whether you need a will drafted for the first time or need to update a previous will or trust due to changes in family, tax or other life changing  circumstances, Smith, Shelton and Ragona, LLC, can assist clients in every stage of the estate planning process. The following are examples of estate planning tools we utilize:

1.      The appropriate estate planning documents to accommodate different family situations and different estate values

2.      Revocable and non-revocable trusts

3.      Planning and utilizing estate tax exemptions/credits and marital deduction formulas to reduce estate and gift taxes whenever possible

4.      Living wills

5.      Powers of attorney

6.      Medical Durable Power of Attorney

7.      Trusteeships, fiduciary, conservatorship, guardianship and personal representative issues

8.      American Indian wills, trusts and estates

In addition, we can help clients with the administration of a decedent’s estate, including probate of wills and intestate estates (estates without wills) and advising personal representatives with the administration of an estate.

Please call us at 303-255-3588 to set up an initial interview and to find out more about our wills, trusts and estates law practice.

Please NOTE: The information in this flyer is intended to inform you about our practice; it is not intended to be an advertisement. Please also note that the information in this flyer is not intended to be legal advice and that this flyer in no way creates an attorney-client relationship. An attorney-client relationship may only be created with Smith, Shelton and Ragona, LLC via a written contract of representation.