Here is the opinion in Desert Water Agency v. Dept. of Interior (C.D. Cal.):
Regulations
D.C. Circuit Strikes Down EPA’s Indian Country NSR as Applied to Oklahoma
Here is the opinion in Oklahoma Dept. of Environmental Quality v. EPA. An excerpt:
The Oklahoma Department of Environmental Quality petitions for review of a final rule promulgated by the Environmental Protection Agency establishing a federal implementation plan for the attainment of national air quality standards in “Indian country.” See Review of New Sources and Modifications in Indian Country, 76 Fed. Reg. 38,748 (2011) (codified at 40 C.F.R. pts. 49 and 51) (hereinafter Indian Country NSR Rule). Jurisdiction to implement the Clean Air Act lies initially in either a state or an Indian tribe. The EPA may in certain circumstances implement a federal program in Indian country, see 42 U.S.C. § 7601(d), but when it does so, in our view, it is subject to the same jurisdictional limitations as the tribe in whose shoes it stands. Because the EPA requires a tribe to show it has jurisdiction before regulating Indian country outside a reservation, yet made no demonstration of tribal jurisdiction before itself regulating those areas, we hold the agency was without authority to displace Oklahoma’s state implementation plan in non-reservation Indian country. We therefore grant the petition for review and vacate the Indian Country NSR Rule with respect to non-reservation lands.
Briefs are here.
Final Rule: Patchak Patch
Here:
11-12-13 PR Land Into Trust Procedures
Excerpt:
“This rule provides greater certainty to tribes in their ability to develop lands acquired in trust for purposes such as housing, schools and economic development,” said Assistant Secretary Washburn. “For such acquisitions, the rule will create a ‘speak now or forever hold your peace moment’ in the land-into-trust process. If parties do not appeal the decision within the administrative appeal period, tribes will have the certainty and peace of mind to begin development without fear that the decision will be later overturned.”
Property & Environment Research Center on Native (Lack of) Property Rights
Here’s an interesting perspective from PERC. It’s hard to tell if it’s a termination/allotment perspective dressed up in new clothes or a true self-determination perspective.
New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations
Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.
Here is the abstract:
The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.
This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.
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:
Update in Desert Water Agency v. Bureau of Indian Affairs — Suit over BIA Leasing Regulations
Draft 25 CFR Part 83 Regs (Office of Federal Acknowledgment)
Here:
Quick Comments:
This revision strikes me as a response in some ways to the Carcieri decision. The first obvious change is that tribal groups need only to prove existence (for lack of a better word so early in the morning) dating back to 1934 instead of 1900. As a result, some of the substantive criteria has been changed due to the date change, and perhaps even liberalized to the benefit of petitioning groups.
Finally, there appears to be some changes allowing for expedited decisions favoring tribes previously recognized in some contexts, perhaps ala Tejon.
DOJ Publishes Notice of VAWA Pilot Program
Here.
Description:
This notice proposes procedures for an Indian tribe to request designation as a participating tribe under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project.
Tomorrow — Webinar on IRS General Welfare Guidance
NCAI & Partner Organizations Host Webinar on Comments to IRS General Welfare Guidance
this Thursday, May 9th
Join NCAI and our partners on a webinar this Thursday, May 9, 2013 at 2:00 p.m. eastern time to review draft comments and provide input on the IRS’ General Welfare Exclusion.
During the 2012 White House Tribal Nations Summit, the IRS released Proposed Guidance in Notice 2012-75 for how its Office of Indian Tribal Governments will examine certain programs administered by tribal governments, including programs for housing, education, elder and travel assistance, as well as cultural programs. In that notice, the IRS designated a June 3 comment deadline for tribes to submit suggestions and comments on the proposed guidelines.
NCAI, in partnership with the United South and Eastern Tribes (USET), the Affiliated Tribes of Northwest Indians (ATNI), the California Association of Tribal Governments (CATG), the United Indian Nations of Oklahoma, Kansas and Texas (UINOKT), the Midwest Alliance of Sovereign Tribes (MAST) and the Native American Finance Officers Association (NAFOA), has developed Draft Joint Comments on behalf of tribal nations.
Please join us as we discuss the Draft comments and seek additional views from tribal nations on the content of these collective draft comments.
After registering, you will receive a confirmation email containing information about joining the webinar.
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