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.

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.

News Coverage of Supreme Court Oral Argument in Carpenter v. Murphy (Muscogee (Creek) Nation Reservation Boundaries case)

Wall Street Journal:  Supreme Court Revisits Westward Expansion

New York Times:  Is Half of Oklahoma an Indian Reservation? The Supreme Court Sifts the Merits

Tulsa World:  Life, tribal sovereignty at forefront of Oklahoma case before U.S. Supreme Court

E&E News:  Okla. Murder Spurs Tussle Over Tribal Control

Western District of Michigan Issues First Federal Decision Upholding Tribal Authority to Issue a Civil Protection Order Against a Non-Indian Under the Violence Against Women Act

On September 27, 2018, the United States District Court for the Western District of Michigan upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue and enforce civil protection orders against non-Indians under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e).  See Spurr v. Pope, No. 1:17-cv-1083 (W.D. Mich. Sept. 27, 2018).  This is the first federal decision to address tribal jurisdiction under section 2265(e) of VAWA.  Kanji & Katzen represents NHBP in all aspects of the case.

In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protective 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.  The district court decisively rejected the plaintiff’s challenge to tribal jurisdiction, holding that section 2265(e)’s plain text clearly confirms tribal authority to enter protection orders against non-Indians as well as Indians.

Additionally, the district court affirmed two important limitations on federal court review of tribal court decisions: (1) that tribal court determinations of tribal law do not by themselves serve as a basis for federal question jurisdiction, and (2) that outside of the habeas context, the Indian Civil Rights Act does not provide a federal cause of action to challenge tribal court decisions.

Supreme Court Tie Favors Indian Tribes in Washington State

SEATTLE — Washington state must restore salmon habitat by removing barriers that block fish migration after the U.S. Supreme Court on Monday left in place a lower court order.

The justices divided 4-4 in the long-running dispute that pits the state against Northwest Indian tribes and the federal government. The tie serves to affirm a lower court ruling.

Justice Anthony Kennedy stepped aside from the case because he participated in an earlier stage when he served on the 9th U.S. Circuit Court of Appeals.

At issue is whether the state must pay billions to fix or replace hundreds of culverts — large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they’re too steep to navigate.

Leaders of several western Washington tribes cheered the decision Monday, calling it a victory that affirms their treaty rights while protecting salmon central to their way of life.

Jay Julius, chair of the Lummi Indian Business Council, said it was a win for treaty rights, river rights and salmon.

“This is not just about tribes’ treaty right to fish, but also the inherent right to harvest from a plentiful, healthy supply of salmon,” he said in a statement.

Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, said the decision would “open hundreds of miles of high quality salmon habitat that will produce hundreds of thousands more salmon annually for harvest by Indians and non-Indians.”

The Supreme Court in April heard the state’s appeal of a ruling by the 9th U.S. Circuit Court of Appeals. That court affirmed a lower court order in 2013 requiring the state to fix or replace hundreds of the highest-priority culverts within 17 years.

Washington has argued that its treaties with the tribes created no obligation to restore salmon habitat. It said the ruling would force it to perform work that wouldn’t benefit salmon because other barriers may completely block fish, and it would also make the state’s taxpayers responsible for fixing problems created by the federal government when it specified the design for the state’s old highway culverts.

“It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design,” state Attorney General Bob Ferguson said in a statement.

He said salmon can’t reach many state culverts because they are blocked by culverts owned by others, such as counties and the federal government.

“The Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling,” Ferguson said.

In seeking a Supreme Court review, Ferguson was at odds with other state officials, including Washington Gov. Jay Inslee and Public Lands Commissioner Hilary Franz.

“For some time now I’ve hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat,” Inslee said.

“It is time to stop fighting over who should do what,” Franz said.

The U.S. government sued Washington in 2001 on behalf of the 21 tribes to force it to replace the culverts with structures that allow fish to pass through. Because the pipes block salmon from reaching their spawning grounds, they deprive the tribes of fishing rights guaranteed by treaty, the lawsuit said.

In 2013, U.S. District Judge Ricardo Martinez ordered Washington to fix or replace more than 1,000 culverts blocking access to 1,600 miles (2,575 kilometers) of salmon habitat. He also set a deadline of 2030 for the high-priority barriers.

By next year, the state transportation department would have spent $200 million to fix 66 high-priority culverts with about 425 remaining, said Paul Wagner, who heads that agency’s fish passage program.

“It will be a big victory for fisheries,” said Bob Anderson, a law professor and director the Native American Law Center at the University of Washington.

He said that since 1905, the court has consistently upheld the tribal position that they have a right to a fair share of the salmon, and implied rights that go along with that. “This case is a logical extension of those prior decisions.”

State Sen. Reuven Carlyle, chairman of the Senate Energy, Environment and Technology Committee, said Monday’s ruling was “a forcing function to double down on every level to re-prioritize our approach to salmon.”

Carlyle said that while he doesn’t think the Legislature needs an immediate special session to address the ruling, work will be done ahead of the next legislative session that begins in January.


AP writers Mark Sherman in Washington, D.C., and Rachel La Corte in Olympia contributed.
Source: NYTimes

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:

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.