Here.
DOJ Procedures for Tribes to Request Assumption of Federal Concurrent Criminal Jurisdiction in PL 280 States
Here.
Regulations
IRS Issues Proposed Rule re: Tribal Governmental Plans under ERISA
Federal Court Rejects Leech Lake Band Regulatory Authority over Otter Tail Power
Here are the materials in Otter Tail Power v. Leech Lake Band of Ojibwe (D. Minn.):
Oregon approves protective new water quality standards
The standards will become effective once they receive EPA approval. The State’s press release reports that they were developed in collaboration with tribes and others and that they are designed to be protective of those, including tribal members, who consume large amounts of fish. The press release is here.
Brian Lewis’ article on DOI regulations under IGRA published in Thomas M. Cooley Journal of Practical and Clinical Law
The article is called “A Day Late and a Dollar Short: Section 2719 of the Indian Gaming Regulatory Act, the Interpretation of its Exceptions and the Part 292 Regulations,” 12 T.M. Cooley J. Prac. & Clinical L. 147 (2010), and concerns regulations about which lands tribes may operate casinos on. Here’s a one paragraph excerpt from the Introduction:
“The DOI’s Regulations, which impose added burdens on tribes and narrow the exceptions, impair the settled expectations of tribes and businesses. Moreover, this impairment may persist because the Supreme Court’s holding in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., requires courts to defer to agencies, despite having been the first to interpret and define statutes. However, because of the difference of circumstances, unlike in Brand X, the DOI’s interpretations should not be deferred to. Chevron deference, as applied in Brand X, may unconstitutionally reallocate authority from Article III to Article II. Lastly, the discipline of law and economics tells us that the Regulations’ changes and the majority’s opinion in Brand X promulgates an inefficient legal rule that may be-and should be-changed.”
Umatilla & other tribes support Oregon’s proposed adoption of stricter water quality standards
DOJ Issues SORNA Implementation Guidelines
Here.
Scientists’ Suit over New NAGPRA Regs?
From Rob Capriccioso at ICT:
WASHINGTON – Scientists are considering a lawsuit against a new rule that would help repatriate thousands of Native American remains to tribes across the nation.
The rule, published March 15 and open for comment for 60 days, is a clarification from the Interior Department to the 1990 Native American Graves Protection and Repatriation Act. It states that after appropriate tribal consultation, transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. Civil penalties are proposed for museums and learning institutions that do not follow the law.
The development has been largely celebrated by Native American communities, although tribal advocates say it has shortcomings, like not including sacred culturally unidentifiable funerary objects in its scope. Some tribes are using the open comment period to make that concern known, noting that common law and some state laws require repatriation of such objects.
Some scientists, however, are outraged by the new rule, believing that important human knowledge could be lost if the remains go back to tribes.
NAGPRA News: Regs on Culturally Unidentifiable Remains to be Published on March 15
From the National NAGPRA site:
CUI RULE TO PUBLISH MARCH 15
The reserved section of the NAGPRA regulations, 10.11, the disposition of culturally unidentifiable Native American human remains, is set to publish on Monday, March 15, as a final rule. The rule will be effective on May 14, 2010. During the 60 days, the public may submit additional comments on the rule to Regulations.gov. The comments will thereafter be considered as to whether amendment to the rule is appropriate.
The National NAGPRA Program will offer a webinar prior to the comment deadline, which will include a training on the rule. The webinar date will be announced shortly anticipating a 200 capacity access line.
Gaming on Newly Acquired Lands Rule Apparently Not Submitted to GAO
A recent Congressional Research Service (CRS) report detailed the number of agency rules which were not passed on to the Government Accounting Office (GAO). Hat tip, Constitutional Law Prof Blog. The report concludes that over 1,000 rules over the past 10 years had not been submitted to the GAO. The reason for this requirement, according to the CRS report is as follows:
Agency regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Therefore, Congress has a vested interest in overseeing the regulations that agencies issue pursuant to those statutes. Because congressional authority over agency rulemaking was believed to have waned in recent decades (while presidential authority over rulemaking had increased), the CRA was enacted in an attempt to reclaim a measure of congressional control.107 Although Congress can learn about the issuance of agency rules in many ways, the requirement in Section 801(a)(1)(A) of the CRA that agencies submit all of their final rules to GAO and Congress before they can take effect helps to ensure that Congress will have an opportunity to review, and possibly disapprove of, agency rules.
Curious, we decided to try to find out if the recent advisory letter turned rule regarding gaming on newly acquired trust lands (with the 25 mile radius or near a “significant number of tribal members” requirement) was one that hasn’t been submitted to the GAO pursuant to the Congressional Review Act. It appears it is. 25 CFR 292, “Gaming on Trust Lands Acquired After October 17, 1988” does not come up in a search of the GAO’s database Federal Rules Database.
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