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.”

Bad River Band Files Federal Suit Seeking Removal of Enbridge Pipeline

On July 23, 2019, the Bad River Band of the Lake Superior Tribe of Chippewa Indians filed suit against Enbridge in the United States District Court for the Western District of Wisconsin to force the decommissioning and removal of the Line 5 pipeline, which runs through twelve miles of sensitive habitat in the Bad River Reservation.  Enbridge has continued to operate the 66-year-old pipeline for six years since easements allowing it to maintain a right of way in the Reservation expired in 2013, and the Band’s action seeks to bring the company’s unauthorized presence to an end.  With each passing day, Enbridge’s continued unlawful operation of the pipeline threatens the Bad River watershed, including Lake Superior and the Kakagon and Bad River sloughs, which are complex freshwater estuaries stewarded by the Band for centuries and internationally recognized as some of the most sensitive freshwater estuarine ecosystems on earth.  While a significant threat of ruptures and leaks exists for the entire stretch of Line 5’s path across the Reservation, there is a looming disaster just east of where Line 5 presently crosses the Bad River, as the river channel is rapidly migrating towards the pipeline due to bank erosion.  Unless the pipeline is decommissioned and removed, the river will inevitably expose the pipeline, subjecting it to stresses that it was not designed to withstand and making a rupture all but certain.

The Band’s Complaint asserts public nuisance, trespass, and ejectment claims, and requests that the district court enjoin Enbridge from further use of the pipeline and require it to remove the pipeline from the Reservation.

Kanji & Katzen, P.L.L.C., the National Wildlife Federation, and Hooper Hathaway Price Beuche & Wallace represent the Bad River Band of Lake Superior Chippewa in this case.

Press Release

July 23, 2019 – Bad River Band of Lake Superior Tribe of Chippewa Indians

Kanji & Katzen Recognized for Excellence in Representing Tribes

Chambers USA’s rankings for 2019 have been released and Kanji & Katzen, P.L.L.C. and its attorneys once again received stellar rankings.

As a firm, the team 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 praised for its ability to provide “such a strong marriage of Indian law and appellate expertise.  Their litigation expertise is very hard to match.”  Chambers quotes clients as attesting that “the team as a whole is first-rate” with “dedication, good judgment, superior writing and negotiation skills.”  A peer lawyer states that Kanji & Katzen attorneys “reach a level of excellence that few others have time for.  They are phenomenal lawyers.”

Founding Member, Riyaz Kanji, a “superb strategist and excellent lawyer,” is recognized as the only “Star Individual” among Indian law practitioners in the United States.  His peers describe him as “the leading Indian lawyer in the country” and as “a real thought leader in this area.”  Others note that “[h]e combines a deep knowledge of Indian law with a keen sense of how to craft a winning appellate argument.  He is relentless in pursuit of his client’s interest, but manages to keep an even keel.  Nothing ruffles him.”

Chambers USA also ranks Cory Albright as among the best Indian law practitioners in the United States and describes him as “a really strong writer” and “very good at the tactical and strategic elements of a case.”

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


Chambers, USA ranks the top attorneys and law firms across the United States.  These rankings are the result of a year-long process based on thousands of interviews conducted by over 200 full-time analysts.  Individual law firms are ranked based on the quality of their client service, technical legal ability, industry awareness, diligence, efficiency, and team depth.  Kanji & Katzen, P.L.L.C.’s rankings are available here.

Ethel Branch, Former Navajo Nation Attorney General, to Return to Kanji & Katzen and Lead Flagstaff Office

Ethel BranchKanji & Katzen is pleased to announce that Ethel Branch will be returning to the Firm as a Member, effective May 1, 2019.  Ethel, who made invaluable contributions to the Firm and its clients as an Associate from 2012 to 2015, will open and lead an office for the Firm in Flagstaff, Arizona.

For the past four years, Ethel served with great distinction as the 11th Attorney General of the Navajo Nation.  In that capacity, she oversaw the work of an 88-member staff and of numerous outside law firms as she fought for the Nation’s legal interests on a wide variety of fronts.  For example, Ethel led the Nation’s litigation and public relations response to the Gold King Mine spill, which contaminated the San Juan River with over 3 million gallons of acid mine waste.  Ethel also played a key role in the Nation’s first limited public offering, where she developed documents for the transaction, presented to Standard & Poor’s on the Nation’s financing laws and legal framework, and presented to investors on the stability of the Nation’s legal system.  In December 2017, Ethel joined other tribal co-counsel in filing a federal complaint challenging President Trump’s unlawful revocation of the 1.35-million-acre designation of the Bears Ears National Monument by President Obama.  As part of that work, Ethel worked closely with the litigation teams for all plaintiff groups and the Bears Ears Inter-Tribal Coalition to advocate for the protection of the Monument in court, before Congress, and in the media.

Among other important work as Attorney General, Ethel led a substantial Criminal Code and Criminal Rules of Procedure revision effort, which included successful passage of stronger white-collar criminal laws; spearheaded a Nation-wide effort to coordinate public safety, prosecutorial, defense, judicial, substance abuse, family, and emergency response services; and established a Public Integrity Task Force that pursued law reform to combat public corruption.  She also negotiated a settlement for the Nation with Urban Outfitters regarding trademark infringement and Indian Arts and Crafts Act violations, participated in settlement negotiations with the Hopi Tribe regarding the Little Colorado River basin, and oversaw work that led to the Utah Water Rights Settlement Act.  Ethel supervised a successful voting rights claim in Utah resulting in court-ordered redistricting, oversaw numerous special prosecutions and ethics inquiries, and brought vacancies at the Nation’s Department of Justice and the Prosecutor’s Office to historic lows.  She instituted a lawsuit against Wells Fargo regarding Consumer Finance Protection Act violations targeted at vulnerable populations within the Navajo Nation, and brought suit against opioid manufacturers, distributors, and pharmacies for the adverse impacts to Navajo tribal members (now part of the Multi-District Litigation).  Ethel also worked closely with the state attorneys general for Arizona, New Mexico, and Utah and coordinated prosecutorial matters with the U.S. Attorneys for the three states.

Ethel holds three degrees from Harvard University: an A.B., cum laude, in History; a Master’s degree in Public Policy; and a Juris Doctor.  The Firm is delighted to welcome Ethel back and is excited about the tremendous acumen, experience, and energy she will be bring to the advancement of our clients’ interests.  Questions may be directed to David Giampetroni, Managing Partner, at or (734) 769 5400.

Federal Judge Preserves EPA Water Quality Standards Protecting Tribal Sustenance Fishing Rights in Maine

In an order dated December 3, 2018, U.S. District Judge Jon D. Levy for the District of Maine provided that federal water quality standards developed by the U.S. Environmental Protection Agency (EPA) must remain in place to protect the sustenance fishing practices of the Houlton Band of Maliseet Indians, Penobscot Indian Nation, and other tribes in Maine.  See Maine v. Wheeler, No. 1:14-cv-00264-JDL, Doc. 162 (D. Me. Dec. 3, 2018).  While the Court granted EPA’s request for voluntary remand of its 2015 decisions under the Clean Water Act, which disapproved Maine’s proposed water quality standards for tribal waters because they did not “ensure a water quality sufficient to take fish from tribal waters for sustenance,” the Court denied Maine’s request to vacate those decisions pending remand.

These decisions provide the foundation for the water quality standards developed by EPA in 2016 to protect tribal sustenance fishing uses, also called the “Maine Rule.”  The Court further conditioned its remand order “upon the EPA (1) continuing the Maine Rule in effect during the remand period, and (2) not taking any action that would terminate or undermine the effectiveness of the Maine Rule without prior Court approval.”  This important ruling means that the waters where members of the Houlton Band of Maliseet Indians and of other tribes fish will continue to be protected while EPA reconsiders its decisions.

Kanji & Katzen, PLLC represents the Houlton Band in all aspects of this case and looks forward to working with the Band during the remand process to ensure that EPA carefully considers and protects Maliseet sustenance fishing practices under the Clean Water Act.