Washington Tribes Obtain Dismissal of Maverick Gaming Lawsuit in the Western District of Washington

On February 21, 2023, the Western District of Washington dismissed a lawsuit brought by Maverick Gaming LLC, the owner of several cardrooms in Washington, which challenged tribal gaming in Washington and sought to invalidate the Tribal-State class III gaming compacts negotiated under the Indian Gaming Regulatory Act (IGRA). Maverick argued that the compacts violate equal protection and are invalid because Maverick is not permitted to offer the same class III games as the Tribes. The District Court ruled that the Shoalwater Bay Indian Tribe was a required party to the lawsuit that could not be joined due to its sovereign immunity, and therefore dismissal was required under Federal Rule of Civil Procedure 19 and 12(b)(7). The Shoalwater Bay Indian Tribe had intervened in the lawsuit for the limited purpose of moving to dismiss Maverick’s claims on these grounds. Seventeen other Tribes in Washington jointly filed an amicus brief in support of the Shoalwater Bay Indian Tribe’s motion to dismiss, which the District Court cited in its decision.

Kanji & Katzen, P.L.L.C. represents the Confederated Tribes of the Chehalis Reservation, which was one of the Tribes that led the filing of the tribal amicus brief.

A copy of the decision can be found at the link below:

https://turtletalk.files.wordpress.com/2023/02/98-dct-order.pdf

Why the Supreme Court’s Expansion of State Criminal Jurisdiction in Oklahoma v. Castro-Huerta Likely Does Not Apply on Most Pueblo Lands in New Mexico, By Reed C. Bienvenu

In Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022), decided June 29, 2022, the United States Supreme Court announced an important new rule regarding state criminal jurisdiction within the territory of Indian tribes.

In a 5-4 decision, the Court ruled that states have the authority to prosecute crimes that occur in Indian country where the perpetrator is a non-Indian and the victim is an Indian. (“Indian” is a term of art used for jurisdictional purposes under federal law.) As stated by Justice Brett Kavanaugh: “Unless preempted, States may exercise jurisdiction to prosecute crimes committed by non-Indians against Indians within Indian country.” 142 S. Ct. at 2504 n.9.

This decision significantly alters the jurisdictional rules that have long been understood to govern tribal lands. Prior to Castro-Huerta, the prevailing view was that states only possessed jurisdiction over two types of crimes in Indian country: (1) crimes by non-Indians against other non-Indians, and (2) victimless crimes by non-Indians. Crimes involving Indians—either as perpetrators or victims—were believed to lie exclusively within the jurisdiction of the federal government or Indian tribes.

Castro-Huerta adds a third category of crimes in Indian country to the states’ jurisdiction: crimes by non-Indians against Indians. Specifically, the Court ruled that the states’ jurisdiction over these crimes is “concurrent” with that of the federal government. 142 S. Ct. at 2491. Justice Kavanaugh also noted that “[t]he Court’s holding is an interpretation of federal law, which applies throughout the United States.” 142 S. Ct. at 2504 n.9. The result of the Castro-Huerta decision is thus a substantial expansion of state criminal jurisdiction over tribal lands across the country.

Here in New Mexico, however, the effect of Castro-Huerta is likely to be more limited, due to a federal law known as the Indian Pueblo Land Act Amendments of 2005 (the “2005 IPLAA”), Pub. L. No. 109-133, 119 Stat. 2573 (codified at 25 U.S.C. § 331 Note). This law specifically defines the scope of state criminal jurisdiction within the exterior boundaries of the Pueblos’ Spanish land grants. As a result, Congress appears to have preempted any expansion of state criminal jurisdiction under Castro-Huerta on these Pueblo lands.

To understand the 2005 IPLAA, it is useful to know the unique history of the Pueblos’ landholdings. During the period of Spanish control over New Mexico, the Spanish recognized a minimum entitlement of land for each Pueblo, referred to as a “Pueblo league,” of about 17,350 acres. See Malcolm Ebright, Rick Hendricks & Richard W. Hughes, Four Square Leagues: Pueblo Indian Lands in New Mexico 11 (2014). After the United States took over New Mexico, a number of Pueblos possessed documents that purported to be Spanish land grants giving them a Pueblo league or, in some cases, a substantially larger area. Id. 205–34. Congress confirmed the Pueblos’ titles to the land identified in many of those written grants and recognized Pueblo leagues for the rest. Id.; see also United States v. Sandoval, 231 U.S. 28, 39 (1913). Today, these Spanish grant lands comprise the Pueblos’ core landholdings. But within the exterior boundaries of many of these grants are lands that were taken or purchased from the Pueblos, which are now owned by non-Indians.

It has long been established that the Pueblos’ lands are “Indian country” for purposes of federal criminal jurisdiction. However, around the year 2000, questions arose as to whether lands owned by non-Indians within the Pueblos’ land grants also constituted Indian country. See United States v. Antonio, 936 F.3d 1117, 1121 (10th Cir. 2019). Congress responded to this uncertainty by passing the 2005 IPLAA, which was intended to “resolve the question of criminal jurisdiction” over Pueblo lands and also to “avoid checkerboard jurisdiction.” United States v. Smith, 482 F. Supp. 3d 1164, 1170 (D.N.M. 2020).

The 2005 IPLAA states:

SEC. 20. CRIMINAL JURISDICTION.

(a) IN GENERAL.—Except as otherwise provided by Congress, jurisdiction over offenses committed anywhere within the exterior boundaries of any grant from a prior sovereign, as confirmed by Congress or the Court of Private Land Claims to a Pueblo Indian tribe of New Mexico, shall be as provided in this section.

(b) JURISDICTION OF THE PUEBLO.—The Pueblo has jurisdiction, as an act of the Pueblos’ inherent power as an Indian tribe, over any offense committed by a member of the Pueblo or an Indian as defined in title 25, sections 1301(2) and 1301(4), or by any other Indian-owned entity.

(c) JURISDICTION OF THE UNITED STATES.—The United States has jurisdiction over any offense described in chapter 53 of title 18, United States Code, committed by or against an Indian as defined in title 25, sections 1301(2) and 1301(4) or any Indian owned entity, or that involves any Indian property or interest.

(d) JURISDICTION OF THE STATE OF NEW MEXICO.—The State of New Mexico shall have jurisdiction over any offense committed by a person who is not a member of a Pueblo or an Indian as defined in title 25, sections 1301(2) and 1301(4), which offense is not subject to the jurisdiction of the United States.

25 U.S.C. § 331 Note (emphasis added).

The final phrase of paragraph (d)—“which offense is not subject to the jurisdiction of the United States”—appears to exempt from state criminal jurisdiction any crime that is subject to federal jurisdiction. Id. And paragraph (c) expressly recognizes federal jurisdiction over any offense “committed by or against an Indian,” that is found in Chapter 53 of Title 18 of the United States Code. Id. (emphasis added). That chapter includes the Indian Country Crimes Act, 18 U.S.C. § 1152, which, in conjunction with the Assimilative Crimes Act, 18 U.S.C. § 13, incorporates the criminal laws of the states into federal law for acts committed in Indian country. See United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011).

In combination, these two provisions of the 2005 IPLAA appear to preempt the application of Castro-Huerta within the exterior boundaries of the Pueblos’ land grants by giving the federal government exclusive jurisdiction over crimes committed by non-Indians against Indians within this territory. In other words, due to an act of Congress predating Castro-Huerta by almost two decades, the State of New Mexico is likely prohibited from prosecuting crimes by non-Indians against Indians on most Pueblo lands.

Importantly, there are also many tribal lands in New Mexico that do not fall within the scope of the 2005 IPLAA because they are not “within the exterior boundaries of any grant from a prior sovereign.” 25 U.S.C. § 331 Note. The 2005 IPLAA would not affect the reach of Castro-Huerta on such lands.

Most significantly, the reservations of the Navajo Nation, the Jicarilla Apache Nation, and the Mescalero Apache Tribe do not originate from Spanish land grants. There might, however, be other laws or treaties that affect how Castro-Huerta applies to criminal jurisdiction on these reservations. Notably, Justice Neil Gorsuch’s dissent in Castro-Huerta stated that the 1868 Treaty between the Navajo Nation and the United States “appear[s] to promise tribal freedom from state criminal jurisdiction in express terms.” 142 S. Ct. at 2526.

Further complicating things, some Pueblos also have trust lands that are outside of the boundaries of their Spanish land grants. Castro-Huerta could be determined to apply to the Pueblos’ trust lands but not their Spanish grants lands, resulting in a confusing situation where state criminal jurisdiction varies on different parcels of land held by a single Pueblo.

Given the complexity of these issues, state officials in New Mexico should be cautious when exercising jurisdiction over crimes committed in Indian country by non-Indians against Indians, and they should consult with legal counsel to determine whether Castro-Huerta applies on the specific tribal lands involved. Pueblos and Tribes in New Mexico should also communicate with state officials to ensure that those officials are aware of any legal limitations that apply to Castro-Huerta within their respective territories.

This article was published in the 2022 Issue of the “Indian Law Times,” the newsletter for the State Bar of New Mexico Indian Law Section, which is available here.

Reed C. Bienvenu is a member of the Board of the State Bar of New Mexico Indian Law Section. Kanji & Katzen P.L.L.C. represented the Muscogee Nation in connection with an amicus brief filed in Oklahoma v. Castro-Huerta.

 

 

Suquamish Tribe Reaches Historic Settlement with King County to Prevent Future Seattle Sewage Spills

The Suquamish Tribe and King County, Washington have approved a settlement agreement resolving disputes over the unpermitted discharge of millions of gallons of untreated or improperly treated sewage over several years from the West Point Wastewater Treatment Plant and other sewage treatment facilities in Seattle.  The sewage spills had repeatedly contaminated the waters of Puget Sound, preventing Tribal citizens from exercising their right to harvest shellfish under the 1855 Treaty of Point Elliot, and interfering with cultural activities such as the annual Canoe Journey.  Kanji & Katzen, P.L.L.C., on behalf of the Suquamish Tribe, notified King County of its intent to sue in 2020 and 2021 for numerous violations of the Clean Water Act.  Under the settlement, the County will pay the Tribe $2.5 million for harm caused by the spills, will invest $2.4 million in environmental protection and habitat restoration projects, and will comply with an enforceable schedule to complete wastewater treatment infrastructure upgrades to reduce the risk of future untreated sewage discharges.  Kanji & Katzen congratulates the Tribe on this historic achievement for the benefit of everyone who treasures Puget Sound.  The Tribe’s press release regarding the settlement and interview with Leonard Forsman, Chairman of the Suquamish Tribe, and Tom Ostrom, the Tribe’s Ecosystem Program Recovery Manager, can be found in the links below.

https://www.kuow.org/stories/after-years-of-sewage-spills-king-county-settles-tribal-lawsuit-agrees-to-plant-upgrades.

https://suquamish.nsn.us/king-county-unanimously-approves-settlement-with-suquamish-tribe-over-sewage-spill-dispute/

U.S. Supreme Court Denies Oklahoma’s Attempts to Overturn Landmark McGirt Ruling

On January 24, 2022, the Supreme Court declined to consider overturning its landmark McGirt v. Oklahoma ruling.  The Court denied thirty-two petitions for certiorari from the State of Oklahoma that sought to overrule McGirt.

The Court’s denials of certiorari send a clear message to Oklahoma that the Court stands by the law and its ruling affirming the existence of the Muscogee (Creek) Nation Reservation, and that it will not engage with Oklahoma’s political requests to overturn that ruling.

Kanji & Katzen, P.L.L.C., was honored to continue to represent the Muscogee (Creek) Nation as amicus curiae opposing Oklahoma’s many petitions.  The Court’s denials are a testament to the Muscogee (Creek) Nation’s continued exercise of robust sovereignty, its efforts to ensure public safety for all Reservation residents, and the strength and persistence the Nation has demonstrated throughout its history.

The order list denying certiorari is here.

Phil Katzen’s Retirement from Law Practice

Phil Katzen, who founded the firm, with Riyaz Kanji in 2000, has retired from the Washington State Bar Association. He will continue to assist the firm in a consultant capacity on administrative and other matters.

Phil has had a long legal career dedicated to protecting, enforcing, and upholding Tribes’ treaty rights, first at the Native American Project at Evergreen Legal Services (known today as Columbia Legal Services) and later at Kanji & Katzen. Phil spent over three decades of his career working to secure and implement Tribes’ treaty right to take a fair share of shellfish from public and private property in United States v. Washington, the long-running treaty fishing rights case. His involvement with the case started with a memorandum on the Tribes’ shellfish treaty right in 1979. He subsequently represented the Tribes in multi-year negotiations with the State of Washington regarding this treaty right throughout the 1980s, represented the Tribes in litigation to secure this right in the 1990s, and represented the Tribes during implementation of the shellfish treaty right after it was established by the Court.

Phil is known in the Indian Law bar for his commanding knowledge of the law surrounding treaty rights in Washington, his strategic mind, and his generous mentoring of less-experienced attorneys. The firm is fortunate that Phil will continue in a consultant role.

Phil looks forward to serving the firm in his new capacity. He is also excited to continue to spend time with his new grandchild, to play pickleball with his wife and community, and to serve on the board for various nonprofits.

Kanji & Katzen Named 2021 “Native American Law Firm of the Year”

Kanji & Katzen P.L.L.C. is honored to have been named “Native American Law Firm of the Year” for 2021 by Chambers USA.  Chambers notes that “the firm receives universal acclaim, with clients describing the lawyers as ‘among the finest Indian Law practitioners in the country.’”

In addition to being awarded “Native American Law Firm of the Year,” Kanji & Katzen is  again  ranked as a top tier (Band 1) Indian law firm, sharing this honor with only three other firms in the United States.  The firm is described as “an exceptional group of legal minds.  Their strengths are strategizing, dedication to their craft, and passion for their clients.”  Clients attest that “the team is top-notch.  They work well together and are tremendously collaborative, both internally and with clients and co-counsel,” and that one of the firm’s strengths is that “they only take cases that will either benefit all tribes or not hurt other tribes.”

Kanji & Katzen attorneys again received individual nationwide rankings.  Peers describe Riyaz Kanji as “the best litigator in Indian country.  He is a fine individual, confident diplomat, and is kind and considerate.”  Others note that he “is one of the finest lawyers I have worked with.  He is brilliant and relentless for his clients while remaining an absolute pleasure to deal with.”

Cory Albright is described as a “thorough, thoughtful, and very diligent” attorney whose “work and contributions [are] exceptional.” David Giampetroni is described as a “brilliant lawyer” who is “very passionate about his work” and “a very eloquent writer, dedicated researcher, and exceptional strategist.”

All of the attorneys at Kanji & Katzen bring a commitment to ethics, excellence, and creativity, and work tirelessly on behalf of our tribal clients and Indian country at large.  We are honored to be recognized by Chambers USA and to have the privilege of serving Indian nations on issues of vital importance.

D.C. Circuit Confirms that Only Federally Recognized Indian Tribes and Alaska Native Villages Are Entitled to COVID-19 Emergency Relief Funds

On September 25, 2020, the Court of the Appeals for the D.C. Circuit held that state-chartered Alaska Native Corporations (ANCs) are not “Indian Tribes” eligible to share in the $8 billion reserved in the CARES Act for Tribal Governments to fight the COVID-19 pandemic. The Court explained that ANCs do not satisfy the “terms of art denoting federal recognition of a sovereign Indian tribe”— they do not maintain a government-to-government relationship with the United States, and they are not “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Therefore, the approximately $500 million in emergency funding set aside by the Department of the Treasury for ANCs must be distributed to federally recognized Indian Tribes and Alaska Native Villages to support essential governmental services. Kanji & Katzen, P.L.L.C. represents the lead Plaintiffs: Confederated Tribes of the Chehalis Reservation, Tulalip Tribes, Houlton Band of Maliseet Indians, Akiak Native Community, Asa’carsarmiut Tribe, and Aleut Community of St. Paul Island.

The Opinion is here:  https://turtletalk.files.wordpress.com/2020/09/opinion-2.pdf

U.S. Supreme Court Issues Landmark Decisions Recognizing the Historic Boundaries of the Muscogee Creek Reservation

On July 9, 2020, the Supreme Court decided McGirt v. Oklahoma, No. 18-9526 and Sharp v. Murphy, No. 17-1107, affirming that the Muscogee (Creek) Nation’s historic Reservation boundaries were never diminished by Congress and accordingly remain in force to this day. Kanji & Katzen, P.L.L.C., was honored to represent the Muscogee (Creek) Nation as amicus curiae in both matters, through multiple rounds of briefing and oral argument at the Supreme Court.

These decisions are a testament to the strength and persistence the Creek Nation has demonstrated throughout its history. We are grateful for the Court’s careful explication of a period of that history in which the Nation and its citizens suffered so much, and for the Court’s resounding affirmation of the principle that promises made by the United States to the Indian Nations are meant to be kept, and that the Court will vindicate those promises regardless of dire and misplaced predictions about the consequences of doing so. As the Court stated:

“The federal government promised the Creek a reservation in perpetuity…. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right….

Because Congress has not said otherwise, we hold the government to its word.”

The opinion is Here.

Press Coverage:

Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma-NYT

Supreme Court Tribal Treaty Decision Praised as Game Changer -Bloomberg Law

Supreme Court says eastern half of Oklahoma is Native American land -CNBC

Supreme Court Ruling ‘Reaffirmed’ Sovereignty – ICT

Justices rule swath of Oklahoma remains tribal reservation – AP

The McGirt Case is a Historic Win for Tribes -The Atlantic

For Oklahoma Tribe, Vindication at Long Last -NYT

Neil Gorsuch Affirms That Treaties With Tribal Nations Are the Law  – The New Republic

How Native Tribes Started Winning at the Supreme Court  – Mother Jones

Project Bolsters Tribes’ High Court Claims Following Defeats

source: Jordan S. Rubin

When he argues this spring at the U.S. Supreme Court that Oklahoma couldn’t prosecute an American Indian for rape committed on Indian land, former acting U.S. solicitor general Ian Gershengorn will have widespread backing from Indian interests by way of the Tribal Supreme Court Project.

The issue at the heart of Muscogee (Creek) Nation member Jimcy McGirt’s appeal has profound implications for tribal jurisdiction and sovereignty that extend beyond matters of crime and punishment: Whether Congress “disestablished” the tribe’s 19th century boundaries and, in turn, whether large swaths of Oklahoma fall under tribal or state control.

The justices failed to answer the question last term in Creek member Patrick Murphy’s murder case, apparently deadlocking 4-4 due to the recusal of Justice Neil Gorsuch, who previously sat on the Tenth Circuit when Murphy’s appeal was pending there.

Now with the full court free to hear McGirt’s case, which comes from Oklahoma state court, it can finally put to rest the question with implications not just for the Creek but for other tribes as well.

Those stakes put the case right in the wheelhouse of the Project, which was formed two decades ago, in the face of several defeats in the high court’s 2000-01 term, with the mindset that one tribe’s loss could negatively impact others. The Project is run by the National Congress of American Indians and the Native American Rights Fund.

Inspired by states’ approach to bolstering government interests, it provides coordination and support for tribal issues at the high court, harnessing a vast network including subject matter experts and big name Supreme Court practitioners like Jenner & Block’s Gershengorn.

“It had become very clear with these decisions in 2001 that the court was not with the tribes anymore. It was a national emergency,” NARF executive director John Echohawk said.

Pay Attention

The Supreme Court heard five American Indian law cases in its 2000-01 term.

“Four of them were defeats for the tribes,” recalled Indian law attorney Riyaz Kanji, who clerked for the now-retired Supreme Justice David Souter in the 1994-95 term.

He pointed, for example, to Nevada v. Hicks and Atkinson Trading Co. v. Shirley, cases that “really had broad importance” and “got the attention of tribal leaders.”

Those cases limited tribes’ jurisdiction and taxing power—in their eyes, further limiting their sovereignty.

State Inspiration

After the term, tribal leaders called a meeting in Washington, D.C., and that’s when the Project was born.

It’s modeled after a similar group formed to help states protect their interests at the Supreme Court, said Kanji.

When he was clerking at the Supreme Court in the mid-90s, he said he heard “from a number of the justices” that “the quality of state advocacy in the 80s had not been good, the states were losing some big cases.”

So they formed a supreme court project that helped them.

Kanji thought the same approach could help tribes.

“It wasn’t rocket science,” he said.

Big Firms, Small Firms

There’s no official Project membership, noted Joel Williams, who leads it for NARF.

“We have a working group of about 300 or so attorneys: tribal attorneys, attorneys that practice Indian law, law professors, Supreme Court practitioners, other attorneys that have specialties that might fit in to Indian law cases at the Supreme Court in one way or another,” he said.

“We can go to those people for various types of assistance, whether that be directly assisting the parties in some way or writing amicus briefs or helping us to think through strategy,” he explained.

The working group comes from a wide swath of the legal community, including influential lawyers from Big Law and smaller firms.

Kanji, an advisor to the Project who represents the Creek as amicus in the McGirt case, singled out Gershengorn, who clerked for John Paul Stevens the same term Kanji clerked for Souter, saying “he specifically, and Jenner & Block more generally, have been very involved really from the get-go.”

The goal, Gershengorn said, “is to try to make sure that the tribes are being as well represented as the United States, as the state governments, as the best of private firm clients, and they’re getting the same level of advocacy that others who appear before the Court are getting.”

Kanji also pointed to Sidley Austin heavyweights Carter Phillips and Virginia Seitz as very helpful to the Project. He noted an amicus brief they took the lead on in United States v. Lara, a 2004 case involving tribal prosecution power.

Prominent federal judges Patricia Millett, appointed by President Barack Obama to the D.C. Circuit, and Jeffrey Sutton, appointed by President George W. Bush to the Sixth Circuit, also worked on tribal issues before taking the bench.

Millett argued Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, a 2012 case involving the government acquiring land for a tribe seeking to open a casino.

Shortly before he went on the bench, Sutton wrote an amicus brief in United States v. Navajo Nation, a 2003 case stemming from lease negotiations over mining on tribal lands.

Kanji said he called Sutton “out of the blue” to ask him to write a brief and Sutton called back that same day, even though he was on vacation.

Coordination Key

A big part of Project work is coordinating amicus briefs.

“Coordination at the earliest stage possible,” said NCAI general counsel Derrick Beetso, who heads the Project on that group’s end, “and just serving as a brain trust and technical assistance venue to make sure that, when we act as amici to educate different judiciaries, we do so in the best possible way that takes into consideration all of the tribes.”

When clerking, Kanji saw that the justices don’t “really have any obligation to read amicus briefs,” and so there’s been a “focus on streamlining the number of briefs, having them focus on different topics that add value, having counsel and or amici whose names the court will recognize and pay attention to on the briefs.”

The Long family, subject of the 2008 case Plains Commerce Bank v. Long Family Land & Cattle Co., outside of the U.S. Supreme Court with people who participated with the Tribal Supreme Court Project and worked on the case.
Source: Joel Williams, Native American Rights Fund

Project in Action

The McGirt case is a repeat of sorts.

Last term, Gershengorn argued for Creek member Murphy, whose claim—that he shouldn’t have been prosecuted in Oklahoma state court because his crime really took place on reservation land—could have widespread consequences for that tribe and others, with the state warning of grave tax, regulatory, and crime fighting implications if the justices find the Creek’s 19th century boundaries haven’t since been undone by Congress.

Kanji argued for the Creek itself as an amicus, and hopes that the court will grant the Creek argument time again in McGirt.

But with only eight justices hearing Murphy’s case last term, they couldn’t reach a decision. Gorsuch was recused, presumably due to involvement when the case was at the Tenth Circuit, where he sat prior to his high court appointment.

Now with McGirt’s appeal, which raises the same issues without recusal concerns, all nine justices can weigh in. That sets up the possibility for Gorsuch to break a tie, with McGirt and supporters hoping the justice sides with them as he has in other tribal disputes.

Heading toward the McGirt argument, NARF’s Williams gave some insight into the process.

“What we do is we have a discussion that’s open to the entire Tribal Supreme Court Project working group just about the case generally, where we’ll have the lead attorneys”—here, Gershengorn—“and he’ll be on the call and talk about the case, describe the facts and posture and all of the legal issues, and there’s an opportunity for Q & A, anybody can ask questions during that call, provide feedback, provide their thoughts on law and strategy and all those sorts of things,” Williams said.

From there, he said, they formulate an amicus strategy and form a smaller working group that carries “right through the end” to make sure they’re “not duplicating efforts.”

Among the amicus briefs filed in the McGirt case are Kanji’s filing on behalf of the Creek as well as briefs from former federal prosecutors, advocacy groups concerned with indigenous women and domestic violence, and the Cherokee Nation, another one of the tribes that could be impacted by the ruling.

Playing Defense

The Project also sometimes works to keep disputes out of court, investing “significant resources in opposing certiorari in certain kinds of cases,” Sidley’s Phillips said, adding that he thinks the Project has been quite successful on that front.

Gershengorn observed that a brief opposing Supreme Court review can be the most important brief filed in a case.

He pointed to a case where his firm filed in a dispute—where tribal interests prevailed in the lower court—over when state law enforcement can follow someone onto a reservation.

Despite there being an alleged split in the lower courts on the “hot pursuit” question—the justices are more likely to take a case with a split—Jenner & Block filed an opposition brief and the justices rejected the state’s appeal.

“That’s a victory that never shows up in the annals of the court, in some ways,” Gershengorn said, “and yet, I think it was a potentially big victory for the tribes, to maintain a victory that they had won in a lower court.”

Pre-SCOTUS

More recently, Kanji observed, the Project is “coming down the chain in the courts of appeal and thinking ahead.”

One such case is pending in the Fifth Circuit, Brackeen v. Bernhardt, a closely-watched challenge to the constitutionality of the Indian Child Welfare Act, a law that seeks to keep children connected to their families and culture when making adoption and foster care decisions.

The case was argued Jan. 22 in front of the full circuit. It’s awaiting decision.

Briefs were strategized “just like a Supreme Court case,” Kanji said, “highly coordinated and a lot of outreach to good people to write the briefs.”

Michigan State law professor Kathryn Fort was one of the lawyers on the Fifth Circuit briefs.

“For us, as the tribal intervenors, obviously a lot of other tribes wanted to have a voice in that case, and so the Project was very helpful in coordinating that tribal amicus brief and handling all of the signatories,” she said.

The Project’s Brackeen involvement “is slightly unusual in that we typically don’t get that involved in a circuit case,” Williams noted. “It’s the Supreme Court Project.”

But the case, he said, “and this subject matter, ICWA, has such broad-reaching implications for tribes.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergtax.com

Sixth Circuit Becomes First Federal Appeals Court to Uphold Tribal Authority to Issue Civil Protection Orders Against Non-Indians Under the Violence Against Women Act

On August 28, 2019, the United States Court of Appeals for the Sixth Circuit upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue a civil protection order against a non-Indian under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e).  See Spurr v. Pope, No. 18-2174 (6th Cir. Aug. 28, 2018).  This is the first decision of a federal appeals court to address tribal jurisdiction under section 2265(e) of VAWA.

Kanji & Katzen represented NHBP in all aspects of the case.

In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protection orders against “any person” for conduct occurring within a tribe’s Indian country.  Pursuant to this provision and NHBP tribal law, the NHBP Tribal Court issued a civil protection order barring the plaintiff, a non-Indian, from harassing and stalking a tribal member.  Rejecting plaintiff’s challenge to NHBP’s exercise of civil jurisdiction over her, the Sixth Circuit held that section 2265(e) “unambiguously” recognizes that tribal courts possess “the power to issue civil protection orders against any person in matters arising in the Indian country of the Indian tribe,” and that the provision’s reference to “any person” includes persons who are “Indian or non-Indian, tribal member or non-tribal member.”

Additionally, the Sixth Circuit concluded that tribal sovereign immunity barred plaintiff’s claims against NHBP and the NHBP Supreme Court.  It rejected plaintiff’s argument that 28 U.S.C. § 1331 abrogated tribal sovereign immunity, explaining that “[t]o upset the baseline rule of tribal immunity, the statute’s text ‘must unequivocally express that purpose’ – shout it, not whisper it.”