University Showcase, 1/16 8:30a: On this episode we talk with Professor Emerita Gloria Valencia-Weber. She recently received the Pierce-Hickerson Award from the National Legal Aid and Defenders Association. The award honors law professionals who have made outstanding contributions to the advancement or preservation of Native American Rights.
Valencia-Weber has a long history of working in Native American law and was a founding director of the Indian law certificate program at the University of New Mexico. In 2010. President Barack Obama appointed her to the Board of Directors of the Legal Services Corporation. That's a publicly funded nonprofit created by Congress to ensure equal access to justice for all Americans by providing funding for civil legal aid. Valencia-Weber is also a judge for the Southwest Intertribal Court of Appeals administered by the American Indian Law Center in Albuquerque. Her Indian law publications focus on tribal sovereignty issues, and she's editing her book on changes to Santa Clara Pueblo’s membership laws to treat women and men equally.
KUNM: You said it was unusual for you to receive the Pierce Hickerson Award. Why was it unusual?
GLORIA VALENCIA-WEBER: These are life-time attorneys who have been doing pro bono work while their lives. I mean, these are the kind of attorneys we recruit for our legal services, organizations. And they are not paid as much as people in private practice. But they're people with special commitment to equality and justice. And so I have great admiration for them, because they have done the cases to get to the Supreme Court that establish critical rights for individuals, not just Native Americans, but everybody. And they have made those ground-making decisions that make it clear that, for instance, you're not going to be able to have your home foreclosed illegally without you having access to a proper judicial process where your interests are weighed, and you have a right for a defense to show that what is being attempted is not lawfully done.
KUNM: But the people who nominated you even though you're not, perhaps in the trenches, like some of those pro bono attorneys must think that you've done quite a bit.
VALENCIA-WEBER: I trained a lot of attorneys to go into pro bono work, both at University of Tulsa and here. And frankly, I think that our pro bono attorneys generally are some of the best attorneys in the whole United States, because they do work in the courtroom, and defend all kinds of needs of people. That includes people being evicted improperly, not following the law of the city or the county or the state they live in. You will also have to prove that that renter or that lease holder has failed to do what they should in the way of payment. And likewise, we find in some of those cases, that housing should not even have been leased, because it failed to meet the requirements of safe housing to be rented and leased.
KUNM: What first led you to work in the lawn specifically in Native American law?
VALENCIA-WEBER: Well, part of it is growing up. I come from mixed family that crossed into what became the United States when Arizona and New Mexico were territory. My maternal grandparents came into what became Arizona Territory. And likewise, on my father's side like they went to Texas, and particularly in Arizona. My maternal grandparents are affiliated are part of the tribe the Yaqui tribe of Guadalupe, which is a little Indigenous and Mexican population town just over the railroad tracks from the Tempe-Phoenix sprawl. I grew up in that part of the world where we were next also to one of the Gila River tribes, and it's part of your daily life.
KUNM: What was it about the law that attracted you? Well,
WEBER-VALENCIA: You could see what was different about those communities, and you can see the difference now that the law has made because their sovereignty has been recognized. Their governments, just sovereigns, just like the city of Albuquerque is, just like New Mexico is. And once they got their sovereignty clearly confirmed again, in cases from the Supreme Court, they have used it to build more than casinos -- the truly enlightened tribes, like we have some here in New Mexico as well, It's beyond that. They are in collaborative work with external funders, like you have outside of Albuquerque and Bernalillo, the Hyatt five-star resort, Tamaya. And then you have north of Santa Fe, same thing with Buffalo Thunder. You have all kinds of things in Southeast part of New Mexico, the Mescalero Apache, who have a big resort and big land holdings. And the tribes like in Arizona, they are in collaborative work in many instances with universities doing research on agriculture. The tribe there in Scottsdale has a big shopping center. It also has a collaborative with ASU and they have a big butterfly collection, a research facility on their land. They also own a yogurt factory. It's the major sponsor of the big baseball team, and they are people who are making jobs for everybody, not just Native Americans,
KUNM: I am hearing you say you saw the law as a way to help make these kinds of things happen?
VALENCIA-WEBER: That’s right, once they got past the battles that initially happened with gaming, and initially some of the states wanted to collect taxes wanted to regulate everything that happened on tribal lands, even though there was no state investment, no state role in developing those economic enterprises. So you had to fight those to begin with. You have those kinds of cases that arose everywhere, where initially states kept saying because these things happen in our boundaries, we have a right to reach. You cannot do that. That is a sovereign-to-sovereign relationship. That's the hardest part, for most people in this country to understand. It is not just another minority group. It's not a private club. It is a government.
KUNM: You established the country's first Indian law Certificate Program at the University of Tulsa College of Law in 1990. How has the field evolved?
VALENCIA-WEBER: One of the most critical things about any tribe are, first of all, land: retention of their land, and in many instances, recovering land that was wrongfully taken. So, many tribes leave and buy land back to restore the reservation. And then what's on the land. First of all, the land, especially here in New Mexico, because of pueblos were among the fortunate. They were not really located, they were not, removed because of the President Jackson policy to remove them from the Southeastern states to Oklahoma. And many were removed many times. I mean, the Osage, the murder of them that is now the big topic in the film based on the book, “Killers of the Flower Moon,” were removed multiple, multiple times from the Great Lakes area. So the pueblos here were fortunate to stay in most of their homeland and not be removed. So they take their identity, most tribes, from the homeland, and it’s personal identity, cultural identity. Then, secondly, the protection of the resources on the land. And the key one here, especially in the Southwest, is water. Third, it’s natural resources, whether it's oil, or coal, or whatever it is they have, that they can develop, when they want, according to how they want, so that it protects land. And we've had the misfortune in the New Mexico, Arizona area of the uranium mining, and then the after-effect of illness and death. So this is where you are now. The tribes restricting what you can do on our land, and when, and the correctives that you owe us. And that's been very, very important. So I've worked with the coalitions that pursue those lawsuits. I've also trained the lawyers that pursue those. For instance, one of our prominent graduates from UNM Law School just won a decision in Arizona for the Gila Tribe just outside of Phoenix on their water rights. Their water rights were long-established. However, that was not coming as it should from the Colorado and stream system that set up. And so they proved the private landowners are drilling wells and stealing their water.
KUNM: So it seems important that you and others have helped fill the pipeline with Native American attorneys who can take on these battles.
VALENCIA-WEBER: And that's very important for that tribe, which raises crops, and our legal services board funds two organizations in their area. And in January of this year, the Legal Services Board met in Phoenix, we took a one-day trip to visit the Gila communities. And we could see the acequia, the ditches and the water streams where they were getting their water. And they also have wilderness areas that are preserving native land crops, native land trees, and protecting the native species. And they of course, do have a wonderful first-class resort with a lovely golf course for outside people who want to go and have walking trails and do recreation in this gorgeous mountain setting. They have a variety of other enterprises, they do not bank just on gaming, they have other things that they do. And then they are doing what a good sovereign should do to prove bride income to build health clinics, housing for the elderly.
And if you go here in New Mexico, to Sandia Pueblo, you can see the health clinic that they built, you can't tell the difference between that and one of the Pres or Lovelace clinics. And that's where the employees, as well as their members, go for health care. And they have a recreation facility so that kids have regular access to recreation and facilities so that they stay healthy. It just depends on the pueblo and which tribe and what they think is needed for their people. And so you see an astonishing, a variety across Indian country when you go and visit, and a number of tribes and pueblos across the United States, including here in New Mexico. If you are, by their education officers, identified early is a very promising student, they will make sure that you get access to the best education. And if you're bright enough, they will pay your way to law school, which we've had at UNM. And they will pay your way through medical school, business school, engineering school. They are investing in their people. That's what a very knowledgeable and enlightened and committed culturally based government can do.
KUNM: Can you talk about your forthcoming book on Santa Clara Pueblo?
VALENCIA-WEBER: One of the big cases that went to the Supreme Court was called Santa Clara Pueblo vs. Martinez. And during the Depression in the 1930s, Santa Clara Pueblo, decided that with finite land and resources and water, they were going to try to protect their land. And so what they did is they went back to all the way to when the Spanish first arrived in New Mexico, the Spanish followed by the Mexicans, and then by the U.S. in 1848. After the Mexico-U.S. war, you would have individuals from the Spanish, Mexican and U.S. thought that the way to get a piece of private land was to marry a Pueblo woman and then try to extract a piece of land out of your collective land. Pueblo and tribal lands are all communally held, and there were all kinds of unlawful schemes, including the period in the 19th century, when what was called the Santa Fe gang, attempted and succeeded in breaking up communally held lands. And that included the Mexican and Spanish land grants and tried to break them up into individual lands. And they did succeed in many cases. And other times, they did it by trespassing, and then going and filing at tax offices, county clerk's offices and listing the property and paying taxes on it so that later they could claim to own it.
And so in 1939, the pueblo passed that law and the law said -- this is Santa Clara only, this is not the law at other tribes -- that if you marry a non-member, you cannot leave your land assignment, your home, to your children and your children will not be members. If you are a male member and marry anyone of your choice, there are no such losses for you or your children. It was clearly, on its face gender discriminatory, undeniably against the Supreme Court, because during the Civil Rights period of the 1960s, federal law was passed called the Indian Rights Act. And this act says, which was modeled on the Constitution, that tribes had to protect the rights of its members by their government laws, and it did have an equal protection clause.
So, Mrs. Martinez in the 1970s was a member who had married a Navajo, and they had resided in Santa Clara their whole life. Their children were raised there, but they were not members. One of them got ill, and Mrs. Martinez wanted a membership card so this daughter could get access to specialized medical care from the Indian Health Service. And Santa Clara Pueblo said they could not give her one because of the 1939 law. However, the pueblo governor then said, “We will help you. And there's another way you can get a health card by establishing that you are biologically a Native American.” And that's the promises made with all the treaties, and all the laws that the federal government made with tribes to provide Indian health care. So the pueblo governors and officials went with Mrs. Martinez, and they got that card. And in fact, the daughter that had the illness later attends UNM on her federal benefits that she now had. But it goes to the Supreme Court under the federal law, and the federal government went in support of the tribes. And you had groups like the American Civil Liberties Union, they came in on the side of Mrs. Martinez, and the legal aid provided attorneys for Mrs. Martinez, so that she would not be unrepresented.
The Supreme Court looked first at the total history of tribes and the US government, when formed when constitutionally created, and said we have always recognized them as sovereigns, even before we were the United States. And in the process, we have made almost 400 treaties, as a nation-to-nation as sovereign, they have the right to make their own laws. And secondly, they enjoy like all other sovereign immunity unless they give it up or unless Congress expressly takes it away. Because that's true for states as well. So upholding that power. The statute was left untouched.
Almost 75 years later, a group of women under women leaders, traditional women leaders, said it's time to change this. We're in a different century, a different time. By now, we're electing women to office. We have pueblos around us they're electing women as pueblo governors. We are electing, in Santa Clara, women on to our tribal council as officers. And so they began in December of 2010, the campaign that went through 2014 and 15. To change the law, they first start organizing men and women whose families are affected because somebody married a non-member. You had now grandparents, very concerned about their children and grandchildren ever been members. And they basically ran a campaign that respected the culture of how Santa Clara people engage with each other. But it was also modern. They had a website. They had newsletters. They had organizational meetings, they had telephone chains. They organized and analyzed everything that had happened in the history, starting from the Spanish to where they are now. And how, over time, different families tracing their biological generations, were losing members. And when in the future, if this continued, there would cease to be members for Santa Clara. And they did the whole analysis. And then they had a meeting with the pueblo council, of which they bring their data and their charts and the graphs. And the pueblo council says “We have to do something.” They had a referendum vote, this was a directive to the pueblo council, you have to change this. And then what intervened was the 2011 Las Conchas Fire, and it burned a good part of Santa Clara land, including a 10,000-foot mountain they had and a forest and streams and rivers, because they had a business of providing cabins for fishermen and recreation. So you have first fires, and then the floods, as you know, in New Mexico to follow the fires, they have three seasons of first immediately responding to the fires, and then the floods rebuilding the whole watershed. And in between they're doing the work with the pueblo council on changing the law. And in 2014, the tribe passed three resolutions. And as a result of that, now, any child born to one parent, who is a member, is a member and fully entitled to all citizen rights. And that's a major internal governance reform.
KUNM: Why did you want to write a book focused on that?
VALENCIA-WEBER: Because people frequently do not see tribes as democratic-practicing governments. Look at what changed the law. It was voters as participants who formed collective action, what you see, in every city, every state of this country, where groups, whether it's Common Cause or a neighborhood association that says, you know, if you're going to do this zoning, we have a say in what it is, we're going to work, and press was our government to make sure it considers what we have at stake. And that's all that was behind this. And then you have them gathering in readings and writing letters, visiting with their tribal council representatives. You have them then persuading them, and they use newsletters to educate their community, 500 newsletters, 500 households got newsletters, here's how we got to this form of government. This is what we were before. This is what we've been in our 700-year history. And by the time the referendum vote, they had had years then of advising their voters who should be elected to tribal council, because they understand what's needed to be changed. And that tribal council changed. You have more women voted on and males who said this needs to change. And that's ultimately what led to the change and those were all democratic practices.
KUNM: What issues around Native American law do you see coming up on the horizon?
VALENCIA-WEBER: We will always have land, water and natural resources. And you have a U.S. Supreme Court that at various times has been hostile other times, quite understanding. What has changed more recently is the effort to allow states to intrude. And you have some people on the Supreme Court now that do not understand. I give credit to the more recent justice – Gorsuch. He was a 10th Circuit judge where he was educated. He's also from Colorado. So he knew Indian law from that. But the 10 Circuit has been the main generator of some of the key decisions, and he was well-educated in Indian law. And also, Justice Sotomayor makes an effort. And she visits in New Mexico repeatedly. She has been here on multiple visits. I've been with her when she's gone to the reservations. She listens to tribal people and visits their tribal courts to see how they are implementing their laws. And you have some understanding from the justice who came from being the dean at Harvard Law School -- Kagan. I've known Justice Kagan since law school, she understands much. Gorsuch was unable to convince the court to make the right decision on a couple of recent cases, including that which did not follow the Supreme Court decisions since the 19th century and turn of the 20th century on water law to acknowledge that the federal government, as a trustee, has to protect Navajo water rights. So that has to be undone by some other way. We'll see what happens with the next appointees. It took some time for Justice Ginsburg, to learn some of Indian law. Towards the end of her term she was among the rhetoric people. It takes a lot of understanding of sovereignty and what it means, being open to learning what you did not learn in your classical basic law education because it's not taught in all of our schools.
