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in Nebraska v. Parker, the Tenth Circuit’s 126-page opinion meticulously examines treaties, statutes, case-law, and historical documents dating from the infamous removal of the Five Tribes to the Indian Territory, through the allotment of their lands and Oklahoma’s admission into the union, and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.

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).

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.”