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.


Riyaz Kanji featured in SuperLawyers Magazine

The 2015 Michigan edition of SuperLawyers Magazine has a feature article entitled “Riyaz Kanji Walks Tall for Tribal Clients.”  The link to the article is here.

Riyaz A. Kanji stands at his Michigan-made Steelcase treadmill desk, eyes forward. He’s wearing shorts, running shoes, a casual shirt. An office treadmill is a great way to expend a lot of energy without going anywhere, but Kanji has already traveled an impressively long distance to get to his office at Kanji & Katzen in Ann Arbor.

He was born in 1964 Kampala, Uganda, just two years after the city became the new capital of the recently independent Uganda. Kanji’s East Asian family had been in Africa for three generations, and his father was a prominent doctor who had helped found a medical school. But by the mid-1960s, Idi Amin and political violence were on the rise. Some cabinet members were his father’s patients, and they began telling him he should leave as soon as possible. They did—first to England, then Ontario, Canada, before finally settling in the United States.  Read More..

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.

Kanji & Katzen Leads Boycott of D.C. N.F.L. Team Corporate Sponsors

Change.org NFL DC The firm of Kanji & Katzen PLLC has answered the call of the Seattle Human Rights Commission and voted to boycott the D.C. N.F.L. team’s key corporate sponsors until the team’s name changes.  This includes ceasing use of FedEx in the firm’s two offices, and closing the firm’s accounts at Bank of America.

Many people remain unaware that at one time in American history Native Americans were hunted, killed, and redeemed for bounties.  Native scalps, skin, and other body parts of women, children, and men served as proof of the bounty kill; hence the name “r*dskins.”  [Read more…]

Seattle Adopts Indigenous Peoples’ Day

Indigenous Peoples’ Day

Renée Roman Nose, Mayor Murray, Zona Evon, Ethel Branch Photo Credit: Chris Stearns

On Monday, October 13, 2014, the City of Seattle celebrated Indigenous Peoples’ Day for the first time, just one week after the Seattle City Council passed Resolution No. 31538 declaring the observance. On the day of the celebration, Mayor Murray signed the Resolution in a room packed with supporters. This historical moment marks Seattle’s commitment to a unique and human rights-driven approach to engaging with local Native Nations and with the significant urban Indian population that resides within Seattle.

Resolution No. 31538 recognizes that the city is built on Indigenous lands, acknowledges the contributions of the Indigenous Peoples of this region, and seeks to close the equity gap for Indigenous Peoples of Seattle. It establishes as official policy that city staff will participate in the annual Indigenous Peoples’ Day celebrations; encourages businesses, organizations, and public entities in the city to recognize the Day; and strongly encourages Seattle Public Schools to include the teaching of Indigenous Peoples’ history in its curriculum. Seattle Public Schools passed its own resolution on October 1st recognizing Indigenous Peoples’ Day and strongly encouraging district staff to teach the culture, history, and governments of the Indigenous Peoples of the region.

Resolution No. 31538 builds on the efforts of the 1977 delegation of Indigenous Peoples that proposed observance of the day to the United Nations and of the Affiliated Tribes of Northwest Indians, which passed a 2011 resolution supporting the observance of Indigenous Peoples’ Day. The Resolution was proposed by local Native community members and supported by the Seattle Human Rights Commission, which passed its own resolution requesting that the city and Seattle Public Schools recognize the second Monday of October as Indigenous Peoples’ Day.

Mayoral Signing

Native community members, including Matt Remle (with fist raised) and Nahaan (right of Matt), commemorating the day. Photo Credit: Chris Stearns

Successful passage of the Resolution was the result of the stalwart leadership of Matt Remle (a member of the Hunkpapa Lakota (Standing Rock Sioux Tribe) and one of the community members who presented the Indigenous Peoples’ Day proposal to the Human Rights Commission) and Millie Kennedy (a Tsimshian (Raven Clan) attorney at the Northwest Justice Project who helped organize events leading up to and memorializing the Day), the Seattle Human Rights Commission (including Co-Chair Ethel Branch, a member of the Navajo Nation and an Associate at Kanji & Katzen, PLLC), the City Council (including Resolution Co-Sponsors Bruce Harrell and Kshama Sawant), and Mayor Murray (including his Tribal Liaison, Nicole Willis, a member of the Confederated Tribes of the Umatilla Indian Reservation).

The effort was also buoyed by the support of local tribal leaders, including Fawn Sharp (President of Quinault Indian Nation and President of the Affiliated Tribes of Northwest Indians), Leonard Forsman (Chairman of Suquamish Indian Tribe), Ron Allen (Chairman of the Jamestown S’Klallam Tribe), David Bean (Councilmember of Puyallup Tribe of Indians), and Theresa Sheldon (Board Member of Tulalip Tribes and co-author on the ATNI resolution calling for recognition of Indigenous Peoples’ Day).

The city’s action is one positive step forward on the path to advancing indigenous human rights in the Pacific Northwest, and it enhances the city’s status as a human rights city. Indigenous Peoples elsewhere may soon join in this celebration as national momentum builds to observe the second Monday in October in similar fashion. Minneapolis officially recognized the day as Indigenous Peoples’ Day in April, and on October 13, 2014, the City of Bellingham recognized the day as Coast Salish Day. Berkeley and other California cities made the name change long ago, and several states do not observe Columbus Day, including Alaska, Hawaii, Oregon, and Washington. South Dakota observes Native Americans’ Day.

For coverage of this important change in the Seattle Times, please follow these links:
Mayoral Signing: http://seattletimes.com/html/localnews/2024772785_indigenoussigningxml.html
City Council Vote: http://seattletimes.com/html/localnews/2024715781_indigenousdayxml.html
Pre-Vote: http://seattletimes.com/html/localnews/2024708926_columbusday2xml.html

Supreme Court Denies Review in Katie John case!

On March 31, 2014 the Supreme Court denied review in the Alaska subsistence litigation known as the Katie John case.  The State of Alaska’s lawsuit was filed in 2005.  It asked the Court to overturn federal rules promulgated in 1999 that include waters subject to the federal reserved water rights doctrine in the definition of public lands in Title VIII of the  Alaska National Interest Lands Conservation Act (ANILCA).  The federal rules provide a subsistence priority on those waters during times of shortage for rural Alaskans. The case is the third in a series that was commenced in 1985 to obtain the subsistence protections promised in ANILCA.

Kanji & Katzen represented the Alaska Federation of Natives (AFN) in the litigation as an intervenor in support of the 1999 federal rules.  AFN is the largest statewide Native organization in Alaska. Its membership includes 178 villages (both federally-recognized tribes and village corporations), 13 regional Native corporations and 12 regional nonprofit and tribal consortiums that contract and run federal and state programs. The mission of AFN is to enhance and promote the cultural, economic and political voice of the entire Alaska Native community.

The State of Alaska was joined by thirteen states and the Pacific Legal Foundation in an effort to obtain Supreme Court review of a successful Ninth Circuit decision.   A link to AFN’s press release on the matter is below.


David Giampetroni Is Now A Member of Kanji & Katzen

Kanji & Katzen is pleased to announce that David Giampetroni is now a member of the firm.

David started with the firm as an associate in 2006 after a clerkship with the Honorable David F. Hamilton of the United States District Court for the Southern District of Indiana, now with the United States Court of Appeals for the Seventh Circuit.  Prior to his clerkship David graduated from Indiana University School of Law – Bloomington, magna cum laude, Order of the Coif, where he served as Managing Editor of the Indiana Law Journal.  Since joining Kanji & Katzen, David has represented tribes and tribal members in federal, state, tribal and administrative courts on numerous Indian law issues, including treaty rights, land claims, reservation issues,  gaming compact disputes, tribal jurisdiction, tribal employment and tribal membership and enrollment.