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.

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

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.

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.

 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.