Bears Ears National Monument Panel at Michigan Law: Nina Mendelson, Riyaz Kanji, and Wenona Singel
Author: Matthew L.M. Fletcher
Nick Reo & Kyle Whyte et al. on Indigenous Principles for Cooperating on Great Lakes Conservation
Nick Reo, Kyle Whyte, and others have posted “Seven Indigenous principles for successful cooperation in Great Lakes conservation initiatives.”
Chilkat Indian Village Suit over Mining Affecting Chilkat River [updated]
Here is the complaint in Chilkat Indian Village v. Bureau of Land Management (D. Alaska):
Five Tribes Complaint against Trump over Bears Ears
Here is the complaint in Hopi Tribe et al. v. Trump (D.D.C.):
Update on the parallel suit involving Grand Staircase-Escalante National Monument: Wilderness Society v. Trump is here
NARF Presser on Bears Ears
Here:
President Trump’s action to revoke and replace the Bears Ears National Monument is not only an attack on the five sovereign nations with deep ties to the Bears Ears region, it is a complete violation of the separation of powers enshrined in our Constitution. No president has ever revoked and replaced a national monument before because it is not legal to do so. Only Congress may alter a monument. In light of this blatant violation of law, the Native American Rights Fund, representing the Hopi Tribe, Pueblo of Zuni, and Ute Mountain Ute Tribe filed a lawsuit today to protect Bears Ears.
Five tribes—Hopi Tribe, Navajo Nation, Pueblo of Zuni, Ute Indian Tribe, and Ute Mountain Ute Tribe—led the effort to establish the Bears Ears National Monument, an area still used for cultural and religious purposes. Increased looting of the estimated 100,000 plus structures, sites, and objects within every reach of the monument dictated the need for protections in the form of a monument designation.
According to NARF Staff Attorney Matthew Campbell, “Bears Ears is one of the most important places for Indian Country, and that is why Indian Country came together to advocate for this important place. Trump’s attack on Bears Ears is an attack on all of us, and we will fight to protect it.”
NARF Staff Attorney Natalie Landreth said “The Administration is not telling the truth. The Bears Ears monument as created by President Obama preserved hunting, fishing, gathering and grazing rights, and protected these incredible lands from widespread looting and oil, gas and mineral development.” No matter what the President said today, his action does the opposite: by its own terms, in 60 days the revoked lands are open to “entry, location, selection, sale” and “disposition under all laws relating to mineral and geothermal leasing” and “location, entry and patent under mining laws.” Landreth continued, “this is taking public lands that belong to the American people and selling to the highest bidder, there is just no other way to understand it.”
This latest action follows on the heels of the Administration’s other actions against Tribes: (1) issuing the permit to the Dakota Access Pipeline, (2) issuing the permit to the Keystone XL, and (3) revoking the Executive Order to protect the Bering Sea on April 28th. Tribes vigorously opposed all of these efforts. The Administration uses the term “tribal sovereignty” but clearly does not understand what that means.
Read more about NARF’s work to protect Bears Ears National Monument.
Ninth Circuit Restores Navajo Nation Trust Breach Claim in Colorado River Water Rights Matter
Here is the opinion in Navajo Nation v. Dept. of the Interior.
An excerpt:
The panel held that the Nation’s breach of trust claim was not barred by sovereign immunity, and remanded to the district court to consider the claim on its merits. The panel held that the broad waiver of sovereign immunity found in § 702 of the Administrative Procedure Act (“APA”) waived sovereign immunity for all non-monetary claims, and § 704 of the APA’s final agency action requirement constrained only actions brought under the APA. The panel concluded that the Nation’s breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in § 702 applied squarely to the claim.
Lower court materials here.
NYTs: “President Trump Expected to Shrink Bears Ears by as Much as 90 Percent”
Here.
Ninth Circuit Rules in Favor of Lummi over Klallam Tribes in U&A Litigation
Here is the opinion in Lower Elwha Klallam Tribe v. Lummi Nation.
From the syllabus:
The panel reversed the district court’s summary judgment in favor of the Lower Elwha Klallam Indian Tribe, and held that the disputed waters west of Whidbey Island, Washington were included in the Lummi Nation’s right of taking fish at usual and accustomed grounds and stations (“U & A”) under the 1855 Treaty of Point Elliot.
In United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), Judge Boldt developed a framework for determining U & As for Indian signatories to the Treaty. In Finding of Fact 46, Judge Boldt stated that the U & A for the Lummi Indians “included the marine areas of Northern Puget Sound from the Fraser River south to the present
environs of Seattle.”To determine whether the waters west of Whidbey Island were included in the Lummi’s U & A, the panel followed a two-step procedure. At step one, the panel held that Fact 46 was ambiguous because it did not clearly include or exclude the disputed waters. At step two, the panel examined the record before Judge Boldt to clarify his intent, and concluded that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district court improperly imposed a heightened standard in holding that logic or linguistics needed to “compel the conclusion” that contested waters be included in a U & A.
Briefs here.
Federal Court Dismisses Habeas Petition by Kickapoo Member for Failure to Exhaust Tribal Remedies
Here are the materials in Darnell v. Merchant (D. Kan.):
An excerpt:
Petitioner Bobbie Darnell, a member of the Kickapoo Tribe in Kansas (the “Tribe”), filed a Petition for Writ of Habeas Corpus pursuant to 25 U.S.C. § 1303 seeking relief from her tribal court convictions and sentence. Petitioner requests that the Court issue a writ of habeas corpus commanding her immediate release from jail in Brown County, Kansas, overturning her convictions in Kickapoo criminal cases numbers CRM016-11 and CRM016-23, and staying all further tribal court action against her (Doc. 1). In addition, Petitioner has filed a motion for release on her own recognizance (Doc. 25). As explained below, the Court denies the Petition for Writ of Habeas Corpus because Petitioner has not exhausted her tribal remedies. The Court further denies Petitioner’s motion for release on her own recognizance as moot.
National Indian Law Library Bulletin (11/30/2017)
Here:
The National Indian Law Library added new content to the Indian Law Bulletins on 11/30/17.
U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2017-2018update.html
Petitions for certiorari were denied on 11/27/17 in:
Town of Vernon v. U.S. (Land into Trust)
Upstate Citizens for Equality v. U.S. (Land into Trust)
Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Petition for certiorari was filed on 11/20/17 in: Public Service Company of New Mexico v. Barboan, et al. (Condemnation – Rights of Way)
Read the latest Tribal Supreme Court Project update published on 11/30/17.
U.S. Federal Courts Bulletin
http://www.narf.org/nill/bulletins/federal/2017.html
Darnell v. Merchant (Exhaustion of Tribal Remedies; Sentencing)
Allen v. United States of America (Tribal Membership; Federal Recognition)
News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
Read about a tribal groundwater case in the Land & Water section.
U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html
We added the following bills and resolutions:
H.R.4443: Urban Indian Health Parity Act.
H.R.4485: To direct the Attorney General to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered Indians, and for other purposes.
H.R.4419: Bureau of Reclamation and Bureau of Indian Affairs Water Project Streamlining Act.
H.R.4436: Caguana Indigenous Ceremonial Park and Tribes Indigenous Ceremonial Center Study Act.
H.R.4448: To provide for an exchange of Federal land and non-Federal land in the State of Idaho, and for other purposes.
S.Res.342: A resolution expressing the sense of the Senate that States, cities, Tribal nations, businesses, and institutions of higher education in the United States should work towards achieving the goals of the Paris Agreement.
Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2017.html
We feature these articles:
The fairness of tribal court juries and non-Indian defendants.
Access to energy in Indian Counrty: The difficulties of self-determination in renewable energy development.
Continuning to work for Indian Country in the 115th Congress.
The Tribal Labor Sovereignty Act: Do Indian tribes finally hold a trump card?
Indigenous people, human rights, and consultation: The Dakota Access Pipeline.
Yellowbear v. Lampert – Putting teeth into the Religous Land Use and Institutionalized Person Act of 2000.
Salvaging the United Nations REDD Program against the backdrop of international human rights violations.
Making strategic choices: How and why Indian groups advocated for Federal Recognition from 1977-2012.
Legacy in paradise: Analyzing the Obama adiminstration’s efforts of reonciliation with Native Hawaiians.
“Why should I go vote without understanding what I am going to vote for?” The impact of first generation voting.
The case against property rights in old intangible Indigenous cultural property.
Water Security.
To sue and be sued: Capacity and immunity of American Indian Nations.
(Re)Righting history: Deconstructing the Court’s narrative of Hawai’i’s past.
Mitigating state sovereignty: The duty to consult with Indigenous peoples.
Turtle Talk 
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