Washington Tribes Win Treaty-Based Injunction to Protect Fish Habitat

On March 29, 2013, a coalition of Washington tribes, with the firm serving as lead counsel, obtained a precedent-setting injunction against the State of Washington, requiring it to correct culverts under state highways that block fish passage. The culverts cut off more than 1,000 miles of salmon habitat and undermine tribal treaty fisheries.  The court ruled that the treaties, which reserved to the tribes “the right of taking fish, at usual and accustomed grounds and stations,” necessarily implied protection of the habitat on which treaty fisheries depend.  The court gave the State seventeen years to correct 1,600 barriers, and required coordination with affected tribes.  The decision puts teeth into a 2007 summary judgment order, which declared that the culverts violate treaties made with the tribes in the 1850’s.  The culverts decision is the culmination of a decades-long legal effort by Washington tribes, who first presented their claims for treaty-based habitat protection as part of the 1974 “Boldt decision,” which recognized tribal treaty rights to half the salmon catch and freedom from most state regulation.

For a copy of the Injunction, click here.  For a copy of the Memorandum and Decision, click here.  And for a copy of the 2007 Summary Judgment decision, click here.

Federal Court Dismisses ICRA Action Against Seneca Nation

On March 29, 2013, the United States Court for the Western District of New York dismissed a petition for habeas corpus under the Indian Civil Rights Act against the Seneca Nation of Indians and its Councilors.  The firm defended the Nation and Council, which had acted to protect the best interests of the Nation and its citizens following a federal indictment of the plaintiff on charges of theft and fraud while acting as an officer of the Nation’s gaming enterprise.  The Court held that the plaintiff was not subject to custody, detention, or banishment, and thus his remedies to challenge the Council’s action lie in the Seneca Nation, not federal court.  For a copy of the decision, click here.

Federal Court Dismisses Claim Against Lower Elwha Klallam Tribal Officials

On February 12, 2013, the firm secured the dismissal of four officials of the Lower Elwha Klallam Tribe in an action challenging the Tribe’s preservation and restoration of native Elwha River salmon and steelhead populations through conservation-based hatchery programs.  To read the Order, click here.

Riyaz Kanji Recognized by Chambers and Partners

Riyaz Kanji was again recognized by Chambers and Partners in its annual review as a Notable Practitioner in its “Native American Law: Nationwide” category. Chambers described Mr. Kanji as “a superb litigator and a leading choice for appellate cases. He is recognized for his focus on core Native American issues… ‘He is strategic with his litigation tactics and extremely approachable.'” See the Chambers and Partners review.

Successful Land Into Trust Acquisitions in the Wake of Carcieri v. Salazar

The firm has successfully represented two Tribes in 2011 in their efforts to have the United States take land into trust on their behalf in the wake of the Supreme Court’s decision in Carcieri v. Salazar. The United States accepted a 13-acre parcel of land into trust for the Grand Traverse Band of Ottawa and Chippewa Indians in Michigan, which will be used to meet the Band’s vital member housing needs, and a 1.64 acre tract for the Sauk-Suiattle Indian Tribe in Washington Stat, which parcel is of tremendous historic and cultural significance to the Tribe. In both cases the United States agreed with the firm’s arguments that the Tribes were “under federal jurisdiction” in 1934 for a host of legal and historical reasons and hence entitled to the benefits of the Indian Reorganization Act under the legal standard set out by the Carcieri Court.

The firm remains deeply involved in Carcieri issues, including in efforts to have a Carcieri fix enacted by Congress and to work with the Department of the Interior on Carcieri matters in the meantime.

Tribal Membership Confirmed

The firm recently secured victory in defending a family of tribal members against a longstanding tribal membership disenrollment action. After taking over the matter, the firm argued that, under the express terms of the Tribe’s own enrollment ordinance, the disenrollment action against the members had been unlawful since its inception. Ultimately, the Tribe agreed and stipulated to dismiss the action with prejudice. (Note: this matter represented an exception to the firm’s general policy of not taking matters adverse to Indian nations, even on behalf of tribal members. This matter was exceptional because of the extremely compelling equities involved. The firm retains a strict policy against representing non-Indian entities or individuals in matters adverse to Indian nation interests.)

Landmark Agreement with U.S. Navy to Mitigate Effects of Submarine Base on Treaty Rights

Kanji & Katzen attorneys helped the Port Gamble S’Klallam, Jamestown S’Klallam, and Lower Elwha Klallam Tribes of Washington negotiate an agreement with the United States Navy to provide $6.6 million in mitigation projects for injuries to the Tribes’ treaty fishing rights. The agreement will offset impacts to shellfish and fish habitat from the construction of a second Explosives Handling Wharf at the Trident nuclear submarine base near Seattle. The funding will pay for the purchase and conservation of waterfront land near the Tribes’ reservations, improvements to tribal shellfish and fish hatcheries, seeding of clams and oysters on tribally-harvested beaches, and fisheries and environmental research and education. The agreement also resolves tribal challenges to Clean Water Act and navigational permits for the wharf and to the adequacy of the Navy’s environmental impact statement. For more information, see the related articles on Kitsapsun.com and Turtletalk.wordpress.com.

Cory Albright Addresses National Intertribal Tax Alliance Annual Conference

In September 2011, Cory Albright was invited to speak at the National Intertribal Tax Alliance annual conference at Santa Ana Pueblo in New Mexico. Mr. Albright’s presentation focused on the impacts of the Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”) on Indian tobacco economies and tax programs, the implementation of the PACT Act by the United States Bureau of Alcohol, Tobacco, Firearms and Explosives, the enforcement of the PACT Act against Indian nations and their members, and litigation challenging the constitutionality of the Act.