Here is the AG opinion.
Arizona AG Opinion: Tax Statute re Mojave Indian Reservation Land Unconstitutional
Here is the AG opinion.
Author: Matthew L.M. Fletcher
SCT Calls for Response from Adoptive Couple by Friday
From SCOTUS Blog:
UPDATED Monday 11:30 a.m. The Chief Justice has called for a response to the application; it is to be filed by 2 p.m. on Friday of this week.
The application is here.
World’s Newest Government — Republic of Murrawarri
Here.
An excerpt:
The world is welcoming its newest government – the Republic of Murrawarri, a nearly 82,000 square kilometer territory stretching across northern New South Wales and Queensland in Australia, has declared its independence as a sovereign nation.
Tribal Amicus Brief in Oklahoma DEQ v. EPA (D.C. Circuit) — Updated to Include Osage Brief
Here:
An excerpt:
In the 1990 amendments to the Clean Air Act, 42 U.S.C. §§ 7401-7671q (“CAA”), Congress recognized that tribal governments are the appropriate authorities to implement CAA programs in Indian country. In particular, Congress added the “treatment as a state” (“TAS”) provision in CAA § 301(d), 42 U.S.C. § 7601(d), allowing tribes to administer CAA programs in Indian country the same way states fulfill this function outside of Indian country. That provision gives the Environmental Protection Agency (“EPA”) discretion to determine how best to integrate tribes into the CAA framework. It also authorizes EPA to administer CAA programs in Indian country when tribes are unable to or otherwise do not do so. As this Court explained in Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1284 (D.C. Cir. 2000), the TAS provision “constitute[s] an attempt by Congress to increase the role of native American nations in [the federal-state] partnership.”
Specifically, CAA § 301(d)(1)(A) provides that EPA “is authorized to treat Indian tribes as states under this chapter” and § 301(d)(2) asserts that EPA “shall promulgate regulations … specifying those provisions for which it is appropriate to treat Indian tribes as States,” under the conditions enumerated in § 301(d)(2)(A)-(C) (emphases added). At the same time, § 301(d)(4) provides that when “the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions” (emphasis added).EPA implemented the TAS provision through the CAA Tribal Authority Rule (“TAR”), 40 C.F.R. §§ 49.1 – 49.22, which was upheld by this Court in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Tribal participation under the rule is voluntary, in recognition of the limited resources of tribal governments, and EPA retains the ultimate responsibility to implement and enforce the CAA and to fill in the gap when tribes do not act. 63 Fed. Reg. 7254, 7263 (Feb. 12, 1998) (final TAR).
EPA already had federal regulations for some CAA programs when it promulgated the TAR.2 EPA recognized, however, that the lack of federal regulations for other CAA programs would result in a gap in CAA regulation in Indian country until tribes developed those programs for tribal lands. 63 Fed. Reg. at 7263. EPA noted in the TAR that it was revising the federal operating permit regulations, found at 40 C.F.R. Part 71, so that they would apply to Indian country as well as to states that lacked approved Title V operating permit programs. Id. EPA also stated its intent to develop the rule that Petitioner Oklahoma Department of Environmental Quality (“ODEQ”) is now challenging: “Review of New Sources and Modifications in Indian Country,” 76 Fed. Reg. 38748 (July 1, 2011) (“NSR Rule”). See 63 Fed. Reg. at 7263.
The NSR Rule applies to all areas of Indian country, as that term is defined in 18 U.S.C. § 1151. ODEQ challenges its application to “non-reservation” Indian country only. Pet. Br. at 11.
The EPA merits brief is here:
Birth Father v. Adoptive Couple — SCT Stay Application
New MPP Thesis on Health Insurance Coverage and American Indian Access to Health Care
Abstract:
This study uses Medical Expenditure Panel Survey data from 2001 to 2010 to measure the differences of utilization, access, and health disparities between whites and the combined group of American Indians and Alaska Natives. Comparing the two groups based on their insurance coverage type – private, public, and uninsured – the study finds that insurance coverage increases health care utilization and access and that this access has the potential to reduce the gap in health disparities between the two sub-populations. Additionally, the study illustrates that insurance status is not the sole predictor of health care access and utilization for American Indians and Alaska Natives. The results show there are still significant access differences among those with private and public insurance.
Aaron Huey, Ernesto Yerena & Shepard Fairey “Honor the Treaties” Posters
Excellent!
Here.
Federal Court Dismisses Cherokee County Challenge to Quapaw Casino
Here are the materials in Board of Commissioners of Cherokee County Kansas v. Jewell (D. D.C.):
DCT Order Dismissing Cherokee County Suit
Cherokee County Motion for Summary J
News coverage here.
Baby Veronica’s Birth Mother Sues to Declare ICWA Provisions Unconstitutional
Here is the complaint in Maldonado v. Holder (D. S.C.):
Wonder whether Baby Veronica’s birth mother has any Article III injury, since she’s given up parental rights to her daughter. I really don’t know.
There is a second plaintiff, described in the complaint as “a Caucasian woman who resides in Minnesota and who believes she may be 1/64th Cherokee,” who has chosen non-Indian parents to adopt her child.
Still waiting on the promised civil rights complaint on behalf of Baby Veronica.
Tribal Interests Win-Loss Rates in the 21st Century — Trend Downward for Tribal Interests?
Ok, so I used the westlaw search function and dug up all the cases from the federal courts of appeal (published and whatever unpublished opinions show up) that included the words “Indians” or “tribe.” That got me well over 3600 cases for 2000-present, so I used westlaw’s relevance function to make them most relevant for me. The first 850 or cases usually included what I call “tribal interests” — then the drop-off was steep so I stopped looking at 1000. [I should note that the Tohono O’odham case that went to the Supreme Court didn’t show up until 990s, so there’s that.] I counted wins and losses, excluded cases where tribes went against tribes, Indians went against tribes (except in criminal cases — a few ICRA habeas cases, in other words), and most criminal cases involving Indian defendants (except where Indian country/reservation boundaries had play, and Duro fix-style cases). I split them up by 2000-2009, and 2010-present.
2000-2009
Tribal interest wins — 233
Tribal interest losses — 179
Winning percentage — 56.6 percent
2010-present
Tribal interest wins — 55
Tribal interest losses — 77
Winning percentage — 41.7 percent
So we’re one-third or so through the 2010s, and things aren’t looking so great for tribal interests. Is this significant, statistically or otherwise? Make your own judgments.
A few more comments on methodology. Yeah, I know “wins” and “losses” are subjective, but they’re not really. A tribe is an appellant, the appellate court reverses. That’s a win. Also, what is a “tribal interest”? That’s a little more in the eye of the beholder. And since I am the beholder, I call it as I see it.
With a few thousand RA hours at my disposal, I could do this going back forever, set it out by appellate court, whether there was a dissenter, results in published versus unpublished opinions, what the majority of the panels’ political affiliations were, and how often the Supreme Court granted cert and reversed, etc. Not going to happen this year, but it will happen.
That reminds me. Nineteen times the Supreme Court granted cert off of tribal interest wins below (no idea out of how many cert petitions). Twice the Supreme Court granted cert off of tribal interest losses below (Patchak and Chickasaw, both cases in which the OSG sought or acquiesced in the petition, and both affirmed).
Certiorari off of Tribal Interest Wins in COAs
288 wins
19 grants
6.6 percent of wins end up at the Supreme Court
Certiorari off Tribal Interest Losses in COAs
256 losses
2 grants
0.8 percent of losses end up at the Supreme Court
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