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,” says 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 says. “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,” she 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 explains. “For example, 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, 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 says. “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,” she says.
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. I even ‘appealed’ being grounded,” she says. “Strangely enough, over the years, I’ve come to discover that the law is something I enjoy as a creative challenge. I enjoy reading case law – again, parsing words. 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 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.”
She is currently pursuing a master of jurisprudence in Federal Indian Law from the University of Tulsa College of Law.
“These courses are incredible and my professors are highly accomplished scholars,” she says. “I enrolled because not all attorneys fully appreciate the importance of the scholarly perspective and vice versa. My goal is to achieve both – to be a litigator who is well rounded and well versed in all areas of federal Indian law and tribal law.”
A recipient of the Michigan Defense Trial Counsel’s Distinguished Service Award in 2011, and named a Super Lawyers Rising Star in 2009 and 2010, Simmons is also a defense litigator in the areas of toxic torts and product liability. She successfully defended an environmental remediation subcontractor involved in a 6-year cleanup of the Pine River adjacent to the old Velsicol Chemical Plant in St. Louis, in mid Michigan; and in one of her favorite cases, successfully defended a high profile worldwide pump manufacturer in a highly complex product liability lawsuit involving a chemical and pulp explosion at a paper mill resulting in employee injuries.
“I’ve never been much of a science or tech person, but this case was so interesting because I had to learn the ins and outs of the workings of this particular pump, its emissions, the fluid consistencies, steam pressures and electrical components – all kinds of stuff that would otherwise be of no interest to me,” she says.
A member of the Board of Editors of Michigan Lawyers Weekly, Simmons has taught Workplace Law for seven years as an adjunct professor at DePaul University. She teaches this undergrad course similar to a law school course, using the IRAC (Issue, Rule, Analysis, Conclusion) legal analysis process.
“It’s been gratifying to have had a number of my former students go on to successfully apply for and attend law school— and, more often than not, Workplace Law was a catalyst in their decision to transition into law school,” she says.
She was recently appointed by Gov. Rick Snyder to a 4-year term on the nine-member Michigan Board of Counseling that assists the Michigan Department of Licensing and Regulatory Affairs with the licensing and oversight of more than 9,000 counselors.
“I’m very excited, and I regard it as an honor to serve my home-state,” she says. “And, I regard it as an incredible opportunity to work with an amazing and talented group of folks who are passionate about the important role of those counselors who serve the residents of Michigan.”
A member of Foley & Mansfield since 2004, Simmons participated in one of the firm’s mission trips, to Guatemala – a life-changing experience.
“Sure, every day was a bad-hair-day. It was humid and we worked hard. I got sweaty. I stunk. The shower trickled ice-cold water and my bed felt like a pile of straw. My husband would tease me when I even bothered to apply mascara because it generally ended up a complete mess,” she says. “But, these kinds of experiences teach you about what matters most. The villagers we helped were so generous even though they had so very little to give. They exemplified grace and humility like I had never seen before. They were truly a beautiful people with a very powerful presence.”
Simmons and her husband, Brian, and stepson, Ben, live in Ferndale, “A fantastic community,” she says. “Folks are friendly and I enjoy its numerous restaurants and the nightlife.”
Her home is also close to the office, and she often walks to work, sometimes with her two-year-old pup, Adie.
A frequent traveler in Eastern Europe, Simmons is excited for her 2015 family reunion in Berlin.
“My Oma was born in Transylvania, Romania. However, as a ‘Deutschlander’ – that was actually her maiden name – she always spoke German with me and taught me about life growing up as the daughter of a teacher-preacher in a Lutheran church,” she says.
Other hobbies include snowboarding, training her dog and working in the yard; and as a big fan of northern Michigan’s fresh air and sparkling lakes, she takes most any opportunity to land herself “up north.”
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