Written Comments on BIA Proposed ICWA Regulations Due May 19

Written comments on the proposed ICWA federal rule are due by May 19. In order for this process to be effective, Tribes need to speak up as do individuals who have strong feelings about ICWA or have been impacted by ICWA compliance or lack of compliance. It matters how many written comments are received.

In order to assist, NICWA has put together several resources such as sample talking points and a sample comment letter. The NICWA resource page is available here.

Comments can be submitted via email, mail, or hand delivery.

Email: comments@bia.gov.
Include ‘‘ICWA’’ in the subject line of the message.
—
Mail or hand-delivery:
Ms. Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action—Indian Affairs,
U.S. Department of the Interior, 1849 C Street NW., MS 364, Washington, DC 20240

(202) 273–4680

Previous coverage here.

 

Consumer Financial Protection Board Proposes to Regulate Payday Lending and Similar Activities

Here is the CFPB fact sheet, with links to outlines of proposals under consideration will be posted.

News coverage here and here.

Eleventh Circuit Briefs in Seminole Tribe Rental and Gross Receipts Tax Challenge

Here:

Florida Opening Brief

Seminole Answer Brief

Reply brief TK

Lower court materials here.

Live CLE Webinar: Update on State Taxation of Tribal Leased Lands: The New Leasing Regulations | February 25

This webinar explore the effect of the new Interior regulations excluding state taxes on business leases in Indian Country. The panel will describe recent changes to the regulations and chart the course of the litigation ongoing in several states over the new regulations. The panel will also discuss strategies being considered to resolve this longstanding state-tribal conflict outside of the ongoing litigation.

Featured Speakers

Wendy S. Pearson, Pearson Law Offices PS, Seattle, WA

Bruce Zimmerman, Confederated Tribes of the Umatilla Indian Reservation, Pendleton, OR

Joseph C. Lennihan, Attorney At Law, Santa Fe, NM

Shana Barehand, Tribal Liaison, Washington Department of Revenue, Olympia, WA

For more information and to register click here.

PLEASE NOTE: To receive CLE credit you must be logged into the webinar interface for the ENTIRE program (including the Q&A). Partial credit is not available for this program. Please see the CLE Informaton page for more details

Ninth Circuit Decides Redding Rancheria v. Jewell (Affirming Section 20 Regulations)

Here is the opinion. The court’s summary:

The panel affirmed the district court’s judgment in favor of the federal government insofar as it upheld the Secretary of the Interior’s denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe’s proposal to close its existing Tribal gaming operation upon construction of a new facility.

The Secretary denied the Tribe’s request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe’s application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation. 

The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary’s denial of the Tribe’s application was not inconsistent with prior agency practice, and was not arbitrary and capricious. 

The panel held that the agency should have considered the Tribe’s alternative offer to move all gaming to the new casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address the issue.

Judge Callahan concurred in parts I, II, and III of the majority’s opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.

Briefs and other panel materials here.

Lower court materials here and here.

Opening Eleventh Circuit Brief in Seminole Tribe Rental and Gross Receipts Tax Challenge

Here:

Florida Opening Brief

Lower court materials here.

Galanda Broadman Commentary on Rights-of-Way on Indian Land (25 CFR Part 169)

Here:

Galanda Broadman, PLLC, Occasional Paper – 21st Century Proposed BIA Indian Land Regs In a 19th Century State of Mind

The reg is here.

Federal Court Invalidates Part 291 Secretarial Procedures in Pojoaque Pueblo Case

Here are the materials in State of New Mexico v. Dept. of Interior (D. N.M.):

37 Interior Motion for Summary J

39 New Mexico Motion for Summary J

40 Pojoaque Opposition

41 New Mexico Opposition

42 Interior Opposition

43 Pojoaque Reply

44 Interior Reply

46 New Mexico Reply

48 DCT Order

An excerpt:

Plaintiff State of New Mexico challenges the Department of the Interior and the Secretary of the Interior’s legal authority to implement regulations found in 25 C.F.R. § 291 (“Secretarial Procedures” or “Part 291 regulations”). The Secretarial Procedures, if adopted, would allow the Pueblo of Pojoaque to conduct Class III gaming on its reservation. New Mexico asks this Court to declare the Secretarial Procedures invalid because they conflict with the unambiguous terms of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. and violate New Mexico’s sovereign immunity under the Eleventh Amendment.

National Intertribal Tax Alliance Amicus Materials in Agua Caliente v. Riverside County (Part 162 Leasing Regs)

From NITA:

Agua Caliente Band of Cahuilla Indians v. Riverside County, et al, 5:14-cv-00007-DMG-DBT (United States District Court, Central District of California).  The Aqua Caliente Tribe filed this civil action against Riverside County to stop the collection of taxes on Indian land leaseholders.  The Desert Water Agency intervened in this action.  Riverside County collects possessory interest taxes from Indian land leaseholders and then redistributes much of the money to cities, schools and other local governments.  The Tribe has long viewed as this tax as illegal and views these possessory interest taxes as an unlawful infringement on Tribal sovereignty rights.  The action was filed January 2, 2014 and is set for trial on June 16, 2015.

Here are the materials in Agua Caliente Band of Cahuilla Indians v. Riverside County (C.D. Cal.):

NITA_Request_to_File_Amicus_and_Brief

Opposition_to_File_Amicus_Desert_Water

Opposition_to_File_Amicus_Riverside_County

We posted previously on this case here and here.

Law Prof Comments on Proposed Federal Acknowledgement Process Revisions

Here:

Law Professor Letter – FAP Reform

Chi-miigwetch to Patty Ferguson for doing the heavy lifting.