By Sheila Pursglove
Legal News
In childhood summers near the Cherokee Reservation in the Great Smoky Mountains, Jana Berger Simmons heard horrific stories of Cherokees forced from their homes in the 1800s and pushed westward on the “Trail of Tears.”
“Something, way back then, struck me and that something continues to resonate within me to this very day,” said Simmons, a partner in Foley & Mansfield's Detroit office, where she spearheads the firm’s American Indian Law practice area.
“The passion I have for the practice of federal Indian law and tribal law is more than just a fascination with the unique and historic aspects of the law and its evolution,” she said. “It’s a cause. It’s recognizing that, with every case I take, lies an opportunity to advance the rights of Native Americans and to take an active part in restoring what past generations nearly demolished.”
Licensed in Michigan and California, as well as several tribal courts, assistance to tribal members and tribal organizations includes tribal enrollment and disenrollment, Tribal Constitutions and regulations, and Federal Indian Law issues.
The co-author of “Navigating Tribal Membership Enrollment Issues” for the Thomson Reuters “Inside the Minds Series on Emerging Issues in Tribal-State Relations,” Simmons finds the often-contentious tribal enrollment and disenrollment cases particularly interesting with their mix of politics, history and tribal law. “You need to carefully consider more than just the law because membership — the right to determine membership — is within the exclusive jurisdiction of each tribe,” she explained.
As an example, Simmons noted that “winning a case for an aggrieved member could have the potential of displacing the sovereign rights of the tribal government.”
“When practicing in tribal courts,” she said, “I remain mindful that this is someone else’s home — that commands a level of respect and appreciation for the unique operations of that particular tribe and its courts.”
Recognized for her independent research on tribal gaming issues, Simmons published an analysis in Gaming Law Review criticizing legislative interference with the rights of the Narragansett Tribe of Rhode Island under the Indian Gaming Regulatory Act (IGRA).
In a major case in 2012, she secured more than $980,000 in settlement funds and debt relief for clients in the Keepseagle v Vilsak lawsuit, involving claims by Native Americans against the United States Department of Agriculture (USDA) as a result of discriminatory lending practices in the 1980s and 1990s in its farm loan program.
Simmons’ caseload brings her to Michigan tribal courts.
She remembers a gaffe in one of her first hearings in the Little River Band of Ottawa Indians tribal court, when she kept using the Greek word “Omega,” instead of “Ogema” — a term for someone akin to a tribe’s Chief.
“I’m so grateful neither the Tribe’s Appellate Justices nor opposing counsel ‘called me out’ on it,” she said. “It’s embarrassing to me that I could have offended the very same people who were consistently receptive to me, allowing me to practice in their court. Lesson learned! Always, always be mindful of the nuances of each Tribe so that you demonstrate respect for their customs, their governance and their tribal court operations.”
Her undergrad degree in political science/pre-law from Northern Michigan University gave her a grasp on the reasons various forms of government have evolved and why identifying the nuances of varying governments is critical, she notes.
“This is especially true in the practice of federal Indian law and tribal law where so many tribes operate under different forms of government,” Simmons said.
She earned her juris doctor from Roger Williams University School of Law in Bristol, R.I.
“As a kid, I always had a knack for parsing words, bringing up those otherwise long-forgotten facts or details, and plotting carefully-crafted arguments to make my case for things like breaking curfew or needing a new pair of designer jeans,” Simmons said.
Over the years, she said she’s “come to discover that the law is something I enjoy as a creative challenge.”
“I enjoy reading case law — again, parsing words,” Simmons said. “I enjoy legal writing and thinking strategy, anticipating my opponent’s next move. I enjoy advocating my clients’ positions in court.”
“Federal Indian law and tribal law,” she said, “are about the most intriguing areas of law I’ve ever come across, making it — and the clients I have the privilege of serving — the most fascinating aspect of my career.”
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