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.”

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.