Tenth Circuit Issues Historic Decision Recognizing Muscogee (Creek) Nation’s 1866 Reservation Boundaries

On August 8, 2017, the United States Court of Appeals for the Tenth Circuit issued an historic decision in favor of the Muscogee (Creek) Nation and Seminole Nation of Oklahoma (represented as amici by Kanji & Katzen, on brief and at oral argument).  See Murphy v. Royal, Nos. 07-7068 & 15-7041.  For the first time since the dawn of the twentieth century, a federal court squarely recognized that the Muscogee (Creek) Nation’s 1866 reservation boundaries remain intact, notwithstanding the allotment of the tribal land base and the widespread, erroneous belief that the Nation’s sovereignty over its reservation had long-since been eroded by the forces of history.

Applying the “well settled” test for determining whether a reservation’s boundaries have been diminished, which was reaffirmed by the Supreme Court just last term in Nebraska v. Parker, the Tenth Circuit’s 126-page opinion meticulously examines treaties, statutes, case-law, and historical documents dating from the infamous removal of the Five Tribes to the Indian Territory, through the allotment of their lands and Oklahoma’s admission into the union, and into the present day, and finds nothing to indicate that Congress had terminated the reservation boundaries.  Because “decisions about the borders of the Creek Reservation remain with Congress,” the Court unanimously held that the Nation’s reservation remains intact.

Ninth Circuit Affirms Legality of Lower Elwha Klallam Fish Hatchery Programs

On April 18, 2017, the United States Court of Appeals for the Ninth Circuit unanimously affirmed the District Court’s decision upholding the Lower Elwha Klallam Tribe’s conservation-based hatchery programs against challenges under the National Environmental Policy Act and Endangered Species Act.

For more than a century, the Elwha River dams denied native Elwha River salmon and steelhead access to their habitat, depleting the runs to the brink of extinction.

After working for decades to secure legislation to remove the dams, the Lower Elwha Klallam Tribe, in cooperation with its Federal and State partners and the independent scientific community, developed the hatchery programs to ensure the preservation and restoration of these native salmon and steelhead runs.

The Ninth Circuit’s decision will allow the Tribe to continue with those efforts. In conjunction with in-house counsel, the firm has represented the defendant Lower Elwha Klallam Tribal Officials throughout the district court and appellate proceedings.

EPA Affirms Tribal Interests in Supplemental Finding in Support of Mercury and Air Toxics rule

 On April 15, 2016, the Environmental Protection Agency (EPA) issued its supplemental finding that it is appropriate and necessary to set standards for emissions of air toxics, including mercury, from coal- and oil-fired power plants, clearing the final administrative hurdle for the implementation of its Mercury and Air Toxics Standards (MATS) Rule.  Kanji & Katzen drafted comments in support of the MATS Rule and EPA’s supplemental finding on behalf of a number of tribes and tribal organizations, including the National Congress of American Indians, Columbia River Inter-Tribal Fish Commission, Great Lakes Indian Fish and Wildlife Commission, Grand Traverse Band of Ottawa and Chippewa Indians, Fond du Lac Band of Lake Superior Chippewa, Little Traverse Bay Bands of Odawa Indians, and the Tribal Law and Government Center.  The preamble to EPA’s finding references those comments several times and strongly affirms the Tribes’ and tribal organizations’ central argument that the agency’s cost analysis must take into account harms incapable of monetization, including the negative effects of mercury pollution on tribal health, culture, and subsistence.  EPA’s final supplemental finding can be found here:  https://www3.epa.gov/mats/pdfs/20160414_mats_ff_fr.pdf.

EPA completed the supplemental finding in response to the Supreme Court’s narrow June 2015 holding, in Michigan v. EPA, that the agency must consider cost in its determination that it is “appropriate” to regulate hazardous pollutant emissions from power plants under section 112 of the Clean Air Act.  It remains to be seen whether opponents of the MATS Rule will once again try to thwart EPA’s attempts to limit the level of mercury and other air toxic emissions from power plants through further litigation.   In the event that litigation does ensue, the tribal comments and EPA’s attention to them in its supplemental finding will be of significant assistance in ensuring that the courts take those interests into account in assessing the validity of the Rule.

Little River Band wins major criminal jurisdiction victory in the Sixth Circuit

On January 15, 2016, the United States Court of Appeals for the Sixth Circuit issued an emphatic victory for the Little River Band of Ottawa Indians (represented by Kanji & Katzen) in a habeas action challenging the Band’s criminal jurisdiction over its members for conduct outside of its Indian country.  The petitioner, a Band member and elected official, was convicted in tribal court for a sexual assault committed at a tribal government function on property owned by the Band but not necessarily within the Band’s Indian country.  A federal district court granted habeas relief, holding that the Band’s criminal jurisdiction over its members terminated at its Indian country boundaries.  In a pathmarking decision, the Sixth Circuit unanimously reversed, holding that “as a historical matter, Indian tribes have the inherent sovereign authority to try and prosecute members on the basis of tribal membership even if criminal conduct occurs beyond a tribe’s Indian country,” and have retained that jurisdiction, at least where the criminal conduct implicates tribal self-government or internal relations.

A full-throated endorsement of tribal sovereignty, the Sixth Circuit’s decision affirms that tribes enjoy membership-based criminal jurisdiction in addition to and independent of their territorial jurisdiction, and that because this jurisdiction has never been divested either implicitly or by Congress, tribes retain it.  The Court explained that “Given the baseline assumption that, ‘until Congress acts, the tribes retain their historic sovereign authority,’ we ‘respect [] Congress’s primary role in defining the contours of tribal sovereignty’ and refuse to ‘lightly assume that Congress in fact intends to undermine Indian self-government.’” (quoting Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014)).  The Court also rejected petitioner’s argument that his prosecution by the Band for off-reservation conduct violated due process.

Kelsey v. Pope, No. 14-1537, 2016 WL 51243 (6th Cir. Jan. 5, 2016).

Seneca Nation wins major victory in the Second Circuit

On September 15, 2015, the United States Court of Appeals for the Second Circuit rendered a decisive victory for the United States and the Seneca Nation (represented by the Firm) in long-running litigation brought by anti-Tribal sovereignty groups over the legality of the Nation’s Buffalo Creek Casino.  The Circuit ruled on two issues.  First, it held that the Nation’s restricted fee lands qualify as Indian country over which the Nation properly exercises governmental jurisdiction because those lands have been set aside for the Nation’s use by the federal government.  The Circuit rejected arguments that the lack of formal designation of lands as reservation or trust lands automatically disqualifies them from Indian country status.  As such, this holding will have important implications for Tribes with various forms of landholding around the country.  Second, the Circuit held that the general prohibition found in the Indian Gaming Regulatory Act on gaming on lands acquired “in trust” after the effective date of the Act must be construed pursuant to its plain language, and hence does not apply to restricted fee lands that are not held in trust by the United States.   In a statement released after the decision and widely reported upon in the press, Seneca President Maurice John Sr. declared that “[t]he Seneca Nation will never tire in the battle to protect its sovereign rights and to exercise those rights for the benefit of its people and all those around us.”

Washington Supreme Court Upholds Tribal Fuel Tax Compacts

On  August 27, 2015, in a unanimous decision, the Supreme Court of Washington affirmed the validity of the motor vehicle fuel tax compacts entered into between the State and numerous Tribes.  Under the fuel tax compacts, the State refunds to the Tribes 75% of the tax collected from tribal and tribal member owned stations, which the Tribes use to support road construction, law enforcement, and other essential government services on their reservations.  These compacts have successfully ended decades of litigation and provide both state and tribal governments substantial revenues to support the important services they provide.  The Court rejected the constitutional challenges urged by Automotive United Trades Organization (AUTO), upholding the authority of the Legislature and the Governor to work constructively with Tribes to meet their respective needs.  Cory Albright and John Sledd of Kanji & Katzen PLLC played a leading role in drafting the brief amicus curiae submitted on behalf of fifteen Tribes, which the Court cited throughout its opinion.


Ethel Branch Named Attorney General of the Navajo Nation

Ethel BranchIt is with a mixture of great pride and sadness that the Firm announces that Ethel Branch is leaving to become the eleventh Attorney General of the Navajo Nation. Since joining the Firm in 2012, Ethel has served its clients with great distinction. She has brought her creative legal mind, unwavering attention to detail and stellar work ethic to bear on matters ranging from natural resources protection to the enforcement of gaming compacts. Moreover, in her position as co-chair of the Seattle Human Rights Commission, Ethel was instrumental in the City’s establishment of Indigenous Peoples Day and in the Commission’s decision to call for a boycott of corporate sponsors of the Washington NFL football team, a call the Firm was pleased to heed. Ethel has been a wonderful colleague, and we have all benefited greatly from her intellect, energy, kindness, and humor.

In short, the Firm will be very sorry to see Ethel go. However, we know that she will bring the same qualities that have made her such a valuable colleague and attorney to her new position. As the head of the Navajo Nation Department of Justice, Ethel will have the opportunity to discharge what she rightly views as a sacred responsibility to her own Nation, supervising a highly qualified team of lawyers engaged in an array of challenging and important legal matters on behalf of the country’s largest Indian nation. We have no doubt that she will work tirelessly to protect and advance the interests not only of the Nation but of Indian country more generally. We wish Ethel the very best in her new endeavor.

In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country

Philip H. Tinker of Kanji & Katzen, PLLC, will publish his article, In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country, in the September 2014 issue of the Tulsa Law Review.  This paper establishes a framework for tribal governments to use civil enforcement over non-Indian offenders on their reservations, and discusses various strategies to increase the likelihood for such exercises of tribal authority to survive judicial review.  The article is available at:  http://ssrn.com/abstract=2396940.

Here is the Abstract:

Violence in Indian Country is epidemic. Tribal governments, which ostensibly have primary responsibility for keeping the peace within their territory, are hampered by restrictive federal laws that prohibit Tribes from exercising criminal authority over non-Indians. This is so even where those non-Indian lawbreakers live on the reservation and commit acts of violence against tribal members. Instead, the federal government is responsible for investigating and prosecuting most on-reservation crime. This irrational system is the product an archaic federal policies dating back to the 19th century that have never been adequate to protect Indian communities.

This paper proposes for tribal governments to take a more active role in enforcing their laws against anyone who enters onto tribal lands. Federal law recognizes that Tribes retain some civil authority over non-Indians, under certain rather limited conditions. In order to maximize the scope of this retained authority, Tribes should adopt comprehensive civil law enforcement codes that are carefully designed to meet the United States Supreme Court’s stringent requirements for the exercise of such authority.

Thanksgiving and the Madison County v. Oneida Indian Nation Case

Please see the interesting article by Ann Tweedy, Assistant Professor of Law, Hamline University School of Law, and of-counsel to Kanji & Katzen, at the following link: http://www.thefacultylounge.org/2013/11/thanksgiving-and-the-madison-county-v-oneida-indian-nation-case.html.