Here are the materials in Seminole Tribe of Florida v. State of Florida (S.D. Fla.):
59 Seminole Motion for Summary J
61 Florida Motion for Summary J
An excerpt:
The Seminole Tribe of Florida filed this lawsuit challenging the imposition of two Florida taxes: the Rental Tax and the Utility Tax. After considering the extensive briefing by the parties, as well as hearing oral argument from each side, the Court finds that Federal law prohibits both taxes from being imposed.
Here is the opinion.
An excerpt:
Appellants filed suit against the Department of the Interior (the
“Department”) seeking a declaration of rights that the Department’s enforcement of the Migratory Bird Treaty Act (the “MBTA”) and the Bald and Golden Eagle Protection Act (the “Eagle Protection Act”) violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”) because it prohibits American Indians who are not members of federally recognized tribes from possessing bald and golden eagle feathers. The district court granted the Department’s motion for summary judgment, finding that the Department’s implementation of the Eagle Protection Act was narrowly tailored to a compelling governmental interest. Because we find that the Department did not provide sufficient evidence that the policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes survives the scrutiny required by RFRA, we REVERSE the district court’s grant of summary judgment and REMAND for proceedings consistent with this opinion.
Briefs here.
Mining Permit decision here.
This case reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources, and public health. At issue is appellee Kennecott Eagle’s proposal to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County.
Groundwater Discharge permit decision here.
The court found the balance on the side of the underground mine. The state decision makers have managed to find at least three alternative grounds for not considering Eagle Rock a place of worship.
News article here.
Proposed Rule here:
2014-05-22 Proposed Rule 25 CFR 83
Related materials:
Frequently Asked Questions on Proposed 25 CFR 83
Summary of Comments and Responses on Part 83 Discussion Draft
Press release here:
Interior Proposes Reform of Federal Acknowledgment Regulations
Proposed rule would address “broken” process
Washington, D.C. — Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn today announced publication of proposed regulations that would reform the 35-year old process by which the Department of the Interior officially recognizes Indian tribes. Federal acknowledgment establishes the U.S. Government as the trustee for Tribal lands and resources and makes Tribal members and governments eligible for federal budget assistance and program services.
“President Obama believes that reforming the federal acknowledgment process will strengthen our important trust relationship with Indian tribes. Acknowledgment by the Department of the Interior confirms the existence of a nation-to-nation relationship between an Indian Tribe and the United States,” said Secretary Jewell. “Through this Administration’s outreach initiatives, tribal leaders have told us that the current process can be inconsistent, cost millions of dollars and take decades to complete. Our proposed rule maintains the rigorous integrity needed, but allows that process to be conducted in a timely, efficient and transparent manner.”
The existing regulations, known as “the Part 83 process”, were originally adopted in 1978 and were updated only once 20 years ago. Prior to that, Interior had addressed requests for Tribal acknowledgment on a case-by-case basis. While the 1978 regulations established a structured process for federal acknowledgment, these regulations have been widely criticized as being too time-consuming, sometimes arbitrary and generally “broken.”
Complaint here.
Press Release here.
The lawsuit speaks of the Minnesota 1862 Sioux revolt where Congress later helped to regain lands for the Mdewakanton who saved settlers and did not participate in the revolt. A never repealed February 1863 Act instructed the Secretary of Interior to set aside about 12 square miles of reservation land for the loyal Mdewakanton’s “for ever.” Because of white-settler hostility, the loyal Mdewakanton were not able to settle on those lands. But, the United States, although it never had the legal authority to transfer title, did so and sold the land to subsequent possessors. Thus, all subsequent land owners never had clear title to those Indian lands.
Decision here.
Briefs here.
Lower court briefs and decision here.
For various reasons, this might be a good case for en banc review by the 11th Circuit. First, one of the three judges deciding this was from the D.C. district court, sitting by designation. Second, the decision is based on an issue not briefed (which leads to a broader research question we have about federal Indian law generally–how often this happens). Third, and perhaps most importantly, the Court’s analysis of Ex Parte Young an issue of broader, national, concern.
The Court’s issues with equitable relief, and characterizing the relief should the Tribe win as a continued “damages” against the state because of the state’s collection regime is strange.
A declaratory judgment exempting the Tribe from the tax is the functional equivalent of ordering recurring payments of money damages. The Tribe points to no other way around the alleged constitutional violation other than a recurring refund paid to the Tribe from the Department after it precollects the tax from the fuel suppliers.
***
Unlike the tax regimes in those appeals, the only relief available to the Tribe under Florida law is a refund of taxes it will already have paid, and state sovereign immunity bars that relief. See Ford Motor Co., 323 U.S. at 463–64, 65 S. Ct. at 350.
As Judge Jordan in the dissent writes:
The majority’s opinion, as I read it, apparently would allow a state to shield the enforcement of any tax, no matter how constitutionally untenable, from challenge in federal court simply by enacting a precollection procedure.
Here.
An excerpt:
A leading bird conservation organization—American Bird Conservancy (ABC)—has announced its intention to sue the Department of the Interior (DOI), charging DOI with multiple violations of federal law in connection with its December 9, 2013, final regulation that allows wind energy companies and others to obtain 30-year permits to kill eagles without prosecution by the federal government. The previous rule provided for a maximum duration of five years for each permit.
Here are the materials in Redding Rancheria v. Salazar [Jewell]:
Redding Rancheria Opening Brief
Robinson Rancheria Amicus Brief
Oral argument audio here.
Details here (PDF):
Assistant Secretary Washburn Approves Four HEARTH Act Applications
to Help Spur Economic Development in Tribal Communities (PDF)
Dry Creek Rancheria, Jamestown S’Klallam, Mohegan, and Wichita and Affiliated Tribes join eight others already cleared to process economic development leases without BIA approval
WASHINGTON, D.C. — Assistant Secretary – Indian Affairs Kevin K. Washburn today approved leasing regulations submitted by four federally recognized tribes, restoring their authority to control the leasing of their trust lands and promoting their self-determination and economic development. This streamlined process for restoring tribal leasing authority is consistent with the objectives of the Helping Expedite and Advance Responsible Tribal Homeownership Act, or HEARTH Act.
“Thanks to the HEARTH Act, more tribes have been empowered to take over leasing on their lands,” Assistant Secretary Washburn said. “Tribal governments are the drivers of economic self-sufficiency and prosperity on their reservations and in their communities. The HEARTH Act restores their ability to directly control how their lands can and should be used for the good of their people, now and in the future.”
The four tribes, submitted requests for Secretarial approval of their leasing regulations, are: Dry Creek Rancheria Band of Pomo Indians in California, Jamestown S’Klallam Tribe in Washington State, Mohegan Indian Tribe of Connecticut, and Wichita and Affiliated Tribes in Oklahoma. Each tribe plans to authorize leases for general economic development.
The HEARTH Act was signed by President Obama in July 2012. It restores the authority of federally recognized tribes to develop and implement their own laws governing long-term leasing of federal Indian trust lands for residential, business, renewable energy and other purposes, which greatly expedites the approval of leases for homes and small businesses in Indian Country. Upon one-time approval of its regulations by the Department of the Interior, a tribe may process land leases without having to first gain approval from the Bureau of Indian Affairs (BIA).
The Assistant Secretary’s action brings to 12 the number of tribes who have had their tribal leasing regulations approved under the Act. The others are: Federated Indians of Graton Rancheria, California (Feb. 1, 2013); Pueblo of Sandia, New Mexico (March 14, 2013); Pokagon Band of Potawatomi Indians, Michigan (April 11, 2013); Ak-Chin Indian Community; California (Nov. 10, 2013); Santa Rosa Band of Cahuilla Indians, California (Nov. 10, 2013); Citizen Potawatomi Nation, Oklahoma (Nov. 25, 2013); Ewiiaapaayp Band of Kumeyaay Indians, California (Dec. 10, 2013); and Kaw Nation, Oklahoma (Dec. 13, 2013).
In November 2012, the Department announced new regulations resulting from a comprehensive reform of the BIA’s antiquated regulations governing its process for approving surface leases on lands held in trust by the Federal Government for Indian tribes and individuals. As trustee, Interior manages about 56 million surface acres in Indian Country.
The new regulations streamlined the leasing approval process on Indian land, spurring increased homeownership and expediting business and commercial development, including renewable energy projects.
The Assistant Secretary – Indian Affairs oversees the BIA, which is headed by a director who is responsible for managing day-to-day operations through four offices – Indian Services, Justice Services, Trust Services and Field Operations. These offices directly administer or fund tribally based infrastructure, law enforcement, social services, tribal governance, natural and energy resources, and trust management programs for the nation’s federally recognized American Indian and Alaska Native tribes and villages through 12 regional offices and 85 agencies.
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