Smoke Signals Indian Law Blog Tue, 21 Jun 2016 15:34:15 +0000 en-US hourly 1 Tribal Training: Developing Tribal Consumer Protection & Privacy Policies Thu, 09 Jul 2015 19:19:56 +0000 Continue Reading]]> iStock_000047149936_FullWorking with Law Seminars International, I’ve helped put together a program on how Tribes can effectively use their commercial operations in a way that preserves their tribal sovereignty with respect to Internet consumer protection regulations. The program will take place on August 27th and 28th in Seattle. Every day, Tribes gather personally identifiable information and have a responsibility to protect this information and the digital networks over which it flows.  This very week in fact, a tribal casino reported having been hacked and losing 85,000 credit card numbers.  Every tribal leader, tribal management, attorney and IT professional should understand what it means to operate a business in this new e-era.

By attending this program, Tribal leaders, their attorneys, and IT professionals will gain the knowledge and understanding necessary to begin to undertake essential steps to safeguarding their sovereignty and financial resources.

For registration and information: Tribal Online Consumer Protection, Information Security, and Privacy.

I look forward to seeing you there!



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Data Privacy, Consumer Protection and Tribal Sovereignty Thu, 13 Nov 2014 00:39:51 +0000 Continue Reading]]> I gave a presentation at the Tribal Net conference this week on the importance of tribal data protection laws and regulations.  Sounds like a snoozer, but think about this, yesterday there was a news article about a data breach at a tribal casino.  As tribal enterprises, we frequently gather information on our gaming patrons, hotel guests, employees, tribal members, etc.  But I have yet to find a tribe that has thought about this as a sovereignty issue and has taken steps to draft and enact data privacy and/or consumer protection laws.

As we bring people to our reservations or gaming websites and we gather their personally identifiable information, we have a responsibility to protect that information.  Of course tribes have sovereign immunity and cannot be sued without a waiver, but in my opinion, it is a poor business decision to rely on sovereign immunity as a defense for the release of an individual’s private information.  AND as we have seen in the payday lending context, the FTC is willing and has in fact exerted jurisdiction over tribes in that context. The fines imposed by the FTC can be significant and there is no sovereign immunity defense for FTC investigations and decisions.

Instead, a tribe should exercise its sovereignty by:

  1. Enacting data privacy laws or regulations.
  2. Enact consumer protection laws.
  3. Ensure these new laws have enforcement provisions and provide recourse to injured individuals.
  4. Create a contract review process so you know what data privacy and consumer protection laws you may have agreed to be bound by.
  5. Create a compliance process.
  6. Ensure you have cyber security insurance coverage.

Tribes are now a part of the global economy and governments (U.S. and internationally) are committed to protecting their citizens and their private information.  Tribes should be aware of this and begin to take proactive steps to protect their resources from potential liability.

One of the best things about being a Indian lawyer and advising tribes is that tribes can literally take destiny in our own hands and develop laws from the ground up that work for us, our people, our patrons, our employees all while protecting sovereignty!



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Prayers for Tulalip… Wed, 29 Oct 2014 18:34:19 +0000 Continue Reading]]> My first job out of law school was on the Tulalip Reservation.  The Tribes took a risk on a first year attorney with no clue how to practice law, just a passion to do the right thing for Indian Country and the Tulalip Tribes in particular.  My first three years were spent revamping the child welfare code, department and court processes and in the process I saw first-hand the incredible strength of that community and the terrific, deep, all encompassing love the Tribes have for their kids.

I know that if I feel this agonizing gaping hole in my heart over the tragedy that happened at the high school last week, then the community must be feeling it a thousand times more than I.

There are and will continue to be all the questions about what drove this beautiful boy with a family who loved him more than they love themselves to make that devastating decision that day.  I doubt we will ever have a satisfactory answer.  But I do know that the Tulalip Tribes and the families affected by this tragedy will survive and in the process demonstrate grace, leadership and love for family and community while walking through this fire.

Sending all my love and prayers to all the families, the Tribes and the entire Tulalip-Marysville community.

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Grants Expert Ron Flavin Featured on Smoke Signals Blog Wed, 15 Oct 2014 16:32:17 +0000 Continue Reading]]> On October 15, Ron Flavin, will be a featured panelist at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort Casino, Tulalip, WA.

Ron Flavin is an internationally acclaimed Business Organizational Strategist who has specific expertise in developing and writing grant proposals for businesses of all sizes as well as for non-profit organizations, government agencies and educational institutions. To date, Ron Flavin has helped his clients secure more than $175 million in funding and develop successful, sustainable short and long term business growth strategies.  Due to his knowledge and contacts, Ronald Flavin is the bridge between two worlds: big businesses and organizations of all sizes, including NGOs and small businesses.

According to Ron Flavin, “Many entrepreneurs and organizations may not be aware that they are good candidates to secure millions of dollars in grants funding. The problem is a shrinking pool of dollars and few tribes are able to develop competitive applications that get funded. Compounding the problem further, many grant applicants do not follow the directions in their grant applications. They don’t develop solid proposals. And they don’t plan for the strategic development of the proposal. It’s surprising how many grant applicants do not do the research they need to do to get the accurate and current information that could win the grant. “

He has a successful track record in getting grants for tribal initiatives related to telecommunications. Clients include the Klamath River Rural Broadband Initiative (KRRBI) for the Karuk Tribe (California). He has also had a 100% success rate with the USDA’s Community Connect program and obtained a $1.4 million award for the Confederated Tribes of the Colville Reservation (Keller, Washington).

Ron Flavin stated, “At the conference, I want the participants to understand the most common reasons why tribal proposals do not get funded. They’ll have a better understanding of why some proposals get funded and others don’t. They’ll learn strategies or tips for strengthening their proposals. And finally, the participants will benefit by learning how they can improve their access to broadband funding.”
NOTE: Ron Flavin recently wrote the grant and consulted to the Three Rivers Valley Educational Foundation. The grant awarded was $10.8M.

As the author of Business Grants: Everything you need to know to connect with local, state and federal grants for business,he is known for identifying potential revenue streams in any organization and implementing a plan to develop these new sources of revenue. Flavin frequently announces current grants opportunities on his highly popular blog that is located at or on Twitter @rflavin.

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Andrea Alexander Featured on Smoke Signals Blog Tue, 14 Oct 2014 14:23:34 +0000 Continue Reading]]> On October 15-16, Andrea Alexander (Makah) will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort Casino, Tulalip, WA.

Andrea Alexander has over 30 years experience of development in the native community and runs her own business, Energy Innovation Foundation. Her firm provides strategic planning and project development for Tribal governments and non-profit organizations. Andrea Alexander has been a native community activist for 10 years for telecommunications and energy and stays current on the policy & programs that impacts the tribes.

Andrea Alexander commented on the problem facing native communities: The lack of reliable broadband has an adverse impact on the many services each Tribal government has to deliver in aspects of healthcare, education, transportation and commerce.

According to Andrea, “My tribe doesn’t have full access to broadband. The current policy depends on the private sector to build the infrastructure, but if the population is too small, the investment will not happen. It’s a huge problem and we’re in a huge crisis situation. The fact that our children can’t take the required state tests because we don’t have 4G has helped to motivate leadership to take action and give new to life to this important policy issue. We are seeking economic parity to broadband to gain full access to the internet as well as broader cell phone coverage for all rural tribal communities.”

Andrea has served as the Director of Energy for the Affiliated Tribes of Northwest Indians, Deputy Director for the Washington State Office on Indian Affairs, and her own tribe, the Makah Nation to create public/private partnerships in the Northwest. As the current Co-Chair for the ATNI Telecommunications Committee, she hopes the conference attendees will help:

“Recruit new stakeholders to this issue that will travel to Tulalip and learn about our issues. The conference location will help attract active allies willing to help northwest native people address the growing technology issues we face. We need help in building a broad-based, diverse movement committed to solving the lack of connectivity. In today’s world, all services and businesses are dependent on the internet and without it the people who live and work in these areas are at a distinct disadvantage. The fact that we still have large areas without broadband service is a form of economic racism and is essentially redlining these communities.”

“On October 16, there will be an ATNI Technology Committee work session to bring the common policy issues to light and build the necessary consensus to create strategies to overcome obstacles in the technology field. Once we get people to agree on the problem, then we can work on developing a shared strategy to overcome any barriers. Funding for broadband initiatives is our biggest challenge right now; the lack of funds and the high level of complexity in the application process is one area we can address right away. We have a short game and long game for policy change. As northwest native people, we linked to our sense of place – we will always be here. I have been taught by my Elders, success is not just about big money or big politics, it is also being committed to hanging in over the long haul. We always look forward to the great hospitality of our Tulalip brothers and sisters & thanks to all the organizers”.

Andrea gained her philanthropic experience through the First Nations Development Institute, than as the Director of Grants for Social Justice Fund Northwest, as a volunteer for the

Philanthropy Northwest Grantmakers of Color and as the founder for the Potlatch Fund. Here are her comments about the need for new funding for technology training programs.

“We need new sources of funding so any rural community, tribal or not can apply to get access to technology training. Technology is changing so rapidly and a native led effort will ensure we can keep up. We are developing the Tribal Technology Training Program or T3 to educate people at the grass roots level with tech skills that will support their educational and employment potential. One of the main outcomes I’d like to see is direct financial support for T3 initiatives. The technology training needs to happen now.”

Andrea Alexander and her husband Mike, a Haida tribal member, along with their 13 year old daughter, Antonia, reside in the Seattle area.

For further information contact Andrea Alexander,

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Senator John McCoy Featured on Smoke Signals Blog Mon, 13 Oct 2014 20:51:10 +0000 Continue Reading]]> On October 15, Senator John McCoy (Tulalip), Washington State Legislature, will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort Casino, Tulalip, WA.

John McCoy represents the Everett, Marysville, and Tulalip communities, and neighborhoods of Snohomish County in the Washington State Senate. John was elected to the House of Representatives in 2003, and appointed to the Senate in November 2013.

John served in the United States Air Force for 20 years, retiring in 1981 and went to work as a computer technician in the White House, where he stayed from 1982 to 1985, continuing his career in computer programming and operations and management in the private sector.

He returned to his home state almost two decades back to help bring the Tulalip community into the digital world. John was instrumental in the development of the Quil Ceda Village Business Park. John and his wife, Jeannie McCoy, make their home in Tulalip. Bringing the tribe and other underserved areas of Snohomish County fully into the 21st century with high speed broadband access to the Internet has been one of the driving goals for John since coming home.

“There are still many areas of Washington State where being underserved or not served by broadband is still a prevalent problem,” said McCoy recently. “We still have neighborhoods in Seattle that do not have broadband. For example in there are pockets in the 11th legislative district in South Lake Union, close to where Amazon is located, that do not get broadband. The problem is how to get broadband in there.

“There are wide expanses of rural areas that are going without broadband. For example on the Makah reservation the connectivity issue has been moving forward and making progress and yet, on the day the students have to take tests online, the tribal government has to shut down so the kids have bandwidth to take their tests. Another example is when high school seniors from Davenport had to drive 35 miles to Spokane to find Wi-Fi hotspots, and stop in parking lots so they could do their homework and get their senior projects done.”

McCoy said he can point to other areas of the state where the situation is the same. In the 1980s and 1990s, he points out, the term “Digital Divide” was being used to refer to individuals – who had broadband and who did not. These days, however, it means whole areas that are underserved or not served at all.

“When I served in the United States Air Force,” he recalled, “I learned technology from the ground floor. When I came home to the Tulalip Reservation, Stan Jones [Chairman of the Tulalip Reservation Board of Directors] recruited me to build an economy. I grew-up in technology but all I had on the reservation was dial-up. I had to figure out how to get the latest technology on the reservation.”

“When it comes to being wired,’ he said, “people claim 90 percent of Washington State had broadband connectivity, but the majority live in Seattle, Tacoma, Bellingham, Everett, and in the small cities and towns between Seattle and Olympia.” Places outside of these areas, he said, have pretty sparse connectivity. “In the Tri-cities, they have holes in their network too,” McCoy said. “This is a statewide problem and we need to fix it.” In some places, city and county codes are keeping broadband out for aesthetic reasons. Cities and the counties both need to address this problem and fix it, he said.

“My frustration is that so many schools are doing without broadband connectivity, especially when the Washington state Board of Education is pushing for wide scale electronic testing. How can they implement that requirement when there are so many areas without broadband?

As the ranking Democrat on the Senate Energy, Environment & Telecommunications Committee, Sen. McCoy is in a better situation than many to try to address this problem.

“The problem with the lack of broadband has been identified,” he said. “Now, there will be a lot of conversation on what kind of funding the government will provide. How do we get funding? How do we get the big telecoms to play? The telecom companies will not go to an area unless it’s financially feasible. At what point should they do something because it’s the right thing to do?”

Wherever broadband goes, business follows, he points out. “Broadband is an economic engine. Let’s take a look at the Quil Ceda Village Business Park that was developed in 2000. The Quil Ceda Village business park has become vital to building and sustaining the Tulalip culture and regional economy. Today the Quil Ceda Village is a popular destination for thousands of shoppers and provides a highly visible opportunity for a variety of businesses.

Today, thanks in large part to the efforts of John McCoy, the entire area in and around the Tulalip Reservation is double ringed in fiber. Tulalip owns its own phone and broadband Internet providers, an HDTV company and a fiber optic company.

“Once the latest technology was adopted, many businesses came knocking on our door and said they wanted to be there because the infrastructure was there,” said McCoy. “We think our success can be shared and serve as an example to many other areas on the state of Washington.”

Sen. McCoy also serves on the Senate Government Operations Committee and the Senate Rules Committee. He is an active member of four National Conference of State Legislatures (NCSL) panels. John is a co-chair of the NCSL committee on the Environment, and he’s also a member of the NCSL Labor & Economic Development Committee; the NCSL Communications, Financial Services & Interstate Commerce Standing Committee, and the NCSL Environmental Management Legislative Roundtable.

John and Jeannie McCoy have three daughters, nine grandchildren, and two great-grandchildren.

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Monica L. Babine Featured on Smoke Signals Blog Thu, 09 Oct 2014 19:53:20 +0000 Continue Reading]]> On October 15, Monica Babine, will be a featured speaker at the “Taking Smoke Signals Digital” Conference at the Tulalip Resort Casino, Tulalip, WA. 

Monica Babine leads the Program for Digital Initiatives at Washington State University (WSU) Extension’s Division of Governmental Studies and Services. A Senior Associate with WSU, she works with business, government, economic and community development organizations on promotion, research and technical assistance to increase broadband awareness, access and adoption. Monica assists with broadband planning in several rural areas in Washington. Prior to joining WSU, Monica led a consulting firm that provided presentations, consultation and training on telework, compressed workweeks, flextime as well as community and economic development for public, private and non-profit organizations.

“From my standpoint, access is both availability of the network and the ability for people to afford it,” said Monica. “Many tribal lands and rural communities in Washington still have needs related to increasing broadband awareness, access, and adoption,” she observes.

“Here’s what I mean by each of these:

Broadband awareness – There is still a need for better understanding of the relevance, the benefits broadband provides individuals and organizations.

Access – which includes middle and last-mile infrastructure, but also the technology needed to use these services.

Adoption – Broadband is not a field of dreams. Just because you build it doesn’t mean people will use it. Adoption is the ability to use the resources (infrastructure and technology) which often includes training and technical assistance.”

“Over the past few years I have been supporting broadband projects in rural areas of Washington State. I manage the WSU Program for Digital Initiatives, where I focus on business, community and economic development.”

“Through American Recovery and Reinvestment Act funds, the Washington State Department of Commerce’s Broadband Office  awarded approximately a dozen Local Technology Planning Team grants,” Ms. Babine said. “I supported five of those including the West Olympic Local Technology Planning Team project (WOLTPT) which involved several tribes in Clallam and Jefferson counties.”

According to Monica, “An important opportunity for folks at the Taking Smoke Signals Digital Conference to take actions on technology policy issues and training needs is to attend the Affiliated Tribes of Northwest Indians Telecommunications Committee strategy session on October 16, from 3 to 5 pm.” Topics to be discussed include broadband and cell phone access and infrastructure build out issues; EMS planning needs such as those Washington OneNet/FirstNet is addressing; and, next steps for the T3. The last ATNI Annual Conference, and the Tribal Technology Training (T3) Kick-Off held at Microsoft, linked tribes and Native people with IT resources, and identified these as the areas to be addressed next.

“I have enjoyed working with local and regional leaders to increase broadband awareness, access and adoption in our state and hope this conference leads to continued opportunities to support this important need,” said Babine.

Monica Babine is on the Washington OneNet team, providing outreach and engagement regarding FirstNet in the state. She was an active member of the Washington State Broadband Advisory Council and currently serves on the Washington State Library Digital Literacy Advisory Team, Telework Coalition, and the Mobile Work Exchange Visionary Committee.

Monica is the Vice Chair of the Inland Northwest Partners and on the Advisory Board for the National e-Commerce Extension Initiative. She was at a major telecommunications company in Washington for fourteen years working in operator services, accounting, marketing and public affairs.

Monica has a BA from Eastern Washington University in Social Work and worked in several social service agencies.

For further information, contact Monica L. Babine,


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BIA Extends Comment Period for Proposed Alaska Land into Trust Rule to July 31, 2014 Mon, 07 Jul 2014 21:34:57 +0000 Continue Reading]]>  

BIA extends comment period for Proposed Alaska Land into Trust Rule to July 31, 2014.

We posted in June about the opportunity to comment on the proposed Rule which would eliminate the “Alaska exception” to acquiring land into trust for Alaska Natives. 25 C.F.R. Part 151 Land Acquisitions lays out the regulatory framework by which the Secretary reviews land into trust applications. See my previous blog with suggestions for comments.

The Comment period has been extended to July 31, 2014. Comments can be submitted via:

  • Federal rulemaking portal: The rule is listed under the agency name ‘‘Bureau of Indian Affairs.’’ The rule has been assigned Docket ID: BIA–2014–0002.
  • Email: Include the number 1076–AF23 in the subject line of the message.
  • Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW., Washington, DC 20240. Include the number 1076–AF23 in the submission.
  • Hand delivery: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW., Washington, DC 20240. Include the number 1076–AF23 in the submission.
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Trust Land – A New Era of Sovereignty for Alaska Natives Fri, 13 Jun 2014 15:37:53 +0000 Continue Reading]]>


  • The State of Alaska makes up approximately 17.5 percent of the United States.
  • There are 229 federally recognized Tribes in the State of Alaska. Alaska Native villages are those federally recognized tribes.
  • The Annette Islands Reserve is the only reservation in the State of Alaska.
  • A reservation is land held in trust by the Unites States for the benefit of federally recognized tribe.
  • A tribe with trust land can govern those lands.
  • The ability to govern ones land and people is the definition of sovereignty.

Key Fact

So why do these facts matter?

Here’s the deal. Since the discovery of oil on the North Slope, the state and federal government have struggled with how to eliminate the inherent right of the Native people of Alaska to govern their traditional homelands, so that the oil could flow from the Slope to Valdez. Money talks, and…well you know the rest of the saying.

One way to do that was to restrict the ability of the Secretary of Interior to acquire land into trust on behalf of Tribes. That restriction was in place until the Native American Rights Fund litigated and won Akichak Native Cmty. V. Salazar. That case is still winding its way through the court BUT the positive opinion has motivated the BIA to draft a proposed rule that would eliminate the “Alaska exception” from 25 C.F.R. 151.

The “Alaska exception” to the rule has meant that while land can be placed into trust for the benefit of all federally recognized tribes in the lower 48 states, land could not be placed into trust on behalf of the tribes in Alaska (except for the Metlakatla Indian Community which is located on the Annette Island Reserve in Alaska).

The proposed rule, if made final, will give Alaska Native tribes another tool in their toolbox towards exercising self-determination.

There is the very valid point to be made that trust land and the resulting federal oversight over that land, and the inability to use it as collateral, has limited the ability of the Lower 48 tribes to truly exercise self-governance without the United States stamp of approval. The trick will be to learn from what has happened elsewhere and find an outcome that suits that particular community.

I do have a recommendation, however. I’ve worked on these land-into-trust applications in the Lower 48. The current rule distinguishes between “on-reservation” applications and “off-reservation” applications. The current interpretation of the rule would mean that applications submitted by Alaska tribes would be treated as “off-reservation” applications. This means additional hoops AND additional opportunity for the State to weigh in on the application.

My recommendation?

Any comments submitted in support of this proposed rule (and there should be comments submitted in support of the proposed rule) MUST include a recommendation that so long as the application includes land located within the exterior boundaries of the ANSCA (Alaska Native Settlement Claims Act ) regional lands to which that tribe belongs, that application should be treated as an “on-reservation” application.

Will it happen?  I don’t know. BUT I do know that while I was at the federal government, I worked on almost 20 proposed rules. And that while serving under this Obama Administration, I was required to respond to each comment that was submitted in response to the proposed rule. The more comments in support of a reasonable recommendation, the more difficult it was to disregard those reasonable recommendations.

This Administration is working diligently on our behalf. This proposed rule is a solid representation of their dedication to the ideal that the United States Government is our trustee and that the trust responsibility is a real responsibility. The comment period is our opportunity to ensure that the implementation of the rule truly addresses the need of our communities.

Comments are due June 30, 2014.

Lael is a proud member of the Pawnee Nation of Oklahoma and granddaughter of Katie John of the Headwater people of Mentasta Lake Village, Alaska.

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Redskins, Racism and Human Rights Wed, 04 Jun 2014 16:18:39 +0000 Continue Reading]]> I was at karaoke last weekend for my sister’s birthday at our favorite local dive karaoke spot. Unbeknownst to us, it was a “Cowboys & Indians” theme, and you know the rest of the story.

At one point, I had to go pick up some guy’s sweaty beanie to which his “headdress” was pinned, off the floor where he threw it during his horrendous rendition of some country rock song. I know it wasn’t a real headdress, but isn’t that the point? When non-Natives appropriate Native people, they relegate “us” to something inferior – something less than human that can be easily discarded and forgotten.

As he was talking me down, my boyfriend said, “He just doesn’t know any better.” Hashtag. Blank-Stare. Personally, I am sick and tired of the excuses given to justify this racist garbage we are constantly exposed to, like the Washington Redskins, the “Sioux-per Drunk” t-shirts, Chief Wahoo, and on, and on, and on, and on, and on and ENOUGH ALREADY!!

So what can “we” do?

I heard my brilliant uncle, Walter Echo-Hawk give a talk recently about how the “doctrine of discovery” and notion of “plenary power” (bedrock principles of federal Indian law) are built upon the racist notions that the Native people of these United States were (and are) “savages.”  Justice Marshall, author of that famous opinion “Johnson v. M’Intosh, himself says “[t]he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”

“Houston, we have Plenary Power. Please feel free to dispose of the savages and their land at will. Over.”

And yet, as my uncle argues, we (i.e., Indian Country) continue to cite to this case and others like it as if it is the B-I-B-L-E.

Uncle Walter’s proposition goes something like this:  we need to mount an attack on this legal framework of statutes and common law that is built solidly on the principle that Native people are an inferior race, and which framework is diligently trying to annihilate us. And we should attack it using the principles of human rights found in the U.N. Declaration on the Rights of Indigenous Peoples.

I like it!  (And not just because I am related to him.)

Think about this, while we continue to work on eradicating Native mascots, stereotypes, blatantly racist t-shirts and fraternity party themes, shouldn’t we also be doing what the African American community did in the late 1800’s with Plessy v. Ferguson? That is, mount a strategic attack on the legal principles founded on the idea that another race is somehow inferior to another.  If we succeed at challenging those racist legal principles I have to believe these other issues (such as Native mascots) will begin to resolve themselves.

Maybe, if the Supreme Court of the United States of America says that Native people possess human rights too… the rest of the country will start to agree.

For a more in-depth discussion about this idea, check out Walter Echo-Hawk’s website and read his books “In the Courts of the Conqueror” and “In the Light of Justice”.

Photo credit of John Wayne Painting belongs to Bunky Echohawk

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