Federal Court Holds Burt Lake Band of Ottawa Indians Has Standing to Challenge 2015 Federal Acknowledgment Regs

Here is the order in Burt Lake Band of Ottawa and Chippewa Indians v. Zinke (D.D.C.):

20 DCT Order

Briefs here.

Here are some details on this as yet non-recognized tribe:

New Scholarship on the Burt Lake Burn-Out

Northern Express Article on the Burt Lake Burnout and Burt Lake Band

Mackinac Journal: “‘A Bitter Memory’ — The Burt Lake Burn-out of 1900”

Crow Indian Tribe Sues to Keep Yellowstone Grizzlies on Threatened Species List

Here are the documents and materials in the matter of Crow Indian Tribe et al v. U.S.A. et al, 17-cv-00089 (D. Mont. 2017):

Litigation Update on Cases Addressing the “Under Federal Jurisdiction” Requirement of the Indian Reorganization Act (Plus Other Things)


Prepared for the FBA’s DC Indian Law Conference this Friday!

Washburn & Cummings: “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands”

Kevin Washburn & Jody Cummings have posted “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands.”

The abstract:

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called “piggybacking” on pre-existing rights of way and clarifying the rules of taxation related to economic activity. On the other hand, the reforms also sought to assure greater deference to tribal decisions, even when tribal governments act for non-economic purposes. For example, the agency will now defer to decisions to lease land for less than fair market value if a tribal government wishes for approval for other reasons. This descriptive work, prepared for a Rocky Mountain Mineral Law Foundation conference in 2017, details these regulatory reforms.

Federal Court Allows Riverside County Possessory Interest Tax on Agua Caliente

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

163 DCT Order

Briefs here.

DOI Consultation Notice on DOI Reorganization

Download(PDF): Tribal Listening Sessions on E.O. 13871: Reorganization of the Executive Branch

Acting Assistant Secretary for Indian Affairs, Michael S. Black, invites Tribal leaders to attend one of the listed listening sessions to provide input on improving “efficiency, effectiveness, and accountability” at the Department of the Interior.


Tenth Circuit Strikes Down Part 291 Secretarial Procedures

Here is the opinion in State of New Mexico v. Dept. of Interior.

Briefs here.

Ninth Circuit Affirms Dismissal of Challenge to Tribal Leasing Regs

Here is the opinion in Desert Water Agency v. Dept. of the Interior.

An excerpt from the court’s summary:

The panel affirmed the district court’s dismissal for lack of standing and ripeness of a complaint brought by the Desert Water Agency (“DWA”), a political subdivision of the State of California, against the United States Department of the Interior and its Bureau of Indian Affairs, challenging a federal regulation that DWA believed might preempt certain taxes and fees DWA assessed against non-Indians who leased lands within an Indian reservation.

New federal regulation 25 C.F.R. § 162.017 concerns taxes applied to leases approved on Indian lands to third parties. DWA provides water supplies and water services to businesses and residences in Riverside County, California, and charges fees and taxes to non-Indians who lease land from the Agua Caliente Band of Cahuilla Indians within the Agua Caliente Indian Reservation.

The panel held that § 162.017 did not purport to change existing law, and therefore, did not itself operate to preempt DWA’s charges, and did not command DWA to modify its behavior by doing or refraining from doing anything. The panel concluded that DWA lacked standing because it had not suffered a cognizable injury at the hands of the Department of the Interior.


Opening Brief

Federal Brief

Reply Brief

Lower court materials here.

EPA Issues Water Quality Regulation to Protect the Penobscot River

Link: Bangor Daily News article by Judy Harrison,

Download: Promulgation of Certain Federal Water Quality Standards Applicable to Maine (Final Rule)Fact Sheet: Final Rule on Certain Federal Water Quality Standards Applicable to MaineResponse to Public Comments

EPA Issues Water Quality Regulation to Protect the Penobscot River

On Thursday, the EPA issued water quality standards governing the Penobscot River to protect the sustenance fishing rights of the Penobscot Nation.  Penobscot Chief, Kirk Francis, praised EPA.  “This is great news for the Penobscot River, the Penobscot People, and the State of Maine,” said Francis.  “This brings us one step closer to restoring the fish habitat of the Penobscot River for the betterment of all who use this extraordinary River.”

The Penobscot River, the aboriginal homeland of the Penobscot Indian Nation, historically supported the largest habitat for sea run salmon in the North Atlantic.  The Penobscot River has also supported robust populations of shad, eel, alewives, blueback herring and multiple other species that the Penobscots have relied upon for food.

The Atlantic salmon is an anadromous fish, which typically spends 2-3 years in freshwater before migrating to the ocean, where it also spends 2-3 years before returning to its natal river to spawn.  Although the Atlantic salmon has been listed on the endangered species list since 2009, the State of Maine, a number of US agencies, NGOs, and the Penobscot Nation are working together in an internationally-recognized river restoration project to improve fish habitats in the Penobscot River through dam removals and other efforts.

“The federal and private investment of millions of dollars to restore the Penobscot River’s migratory fisheries is now resulting in rebounding runs of herring, shad, sturgeon, and over time we expect, Atlantic salmon.” said Andrew Goode, Vice President of the Atlantic Salmon Federation.  “The EPA’s water quality standards are an important contribution to the restoration of these fisheries for the benefit of the Penobscot Indian Nation and the people of Maine.”

A year ago, the EPA disapproved human health criteria that Maine used in its water quality standards because they exposed Penobscot tribal members and other Maine Indians to cancer risks, given tribal fish consumption rates.  Maine used a fish consumption rate of 32.4 grams per day for Native populations.  The EPA found that rate erroneous and adopted water quality standards to protect the health of tribal members at a consumption rate of 286 grams per day.

Historically, Penobscot tribal members have consumed fish and other food sources from the Penobscot River at much higher rates.  In the 1980s and early 1990s, for example, Penobscots relied upon the River for food sources at the rates averaging up to 750 grams per day. But those consumption rates went down in the face of dioxin and other pollutant contamination in the River.

“We still have a ways to go to restore the health of the River,” said Chief Francis, “but EPA’s water quality standards are a huge step forward to ensure that Penobscot people can safely eat from the River as we have done for centuries.”

In 1980, upon settling land claims of the Penobscot Nation and other tribes, the US Congress confirmed that the tribes would have a right to take fish within their reservations for sustenance.  Last year, the EPA, backed by the US Department of the Interior, told Maine that the law required the existence of fish of a quality to eat at meaningful levels of consumption.  Maine officials have, in the past, taken the position that the Tribes’ sustenance fishing rights do not guarantee a fish habitat.

Public support for EPA’s water quality standards is overwhelming:  of the 107 comments provided to the Agency, 101 were in favor of the standards and only 6 voiced concerns. EPA’s standards protect the fishing rights of all Maine tribes.

“As indigenous people, we have long known that water is life,” said Chief Francis.  “EPA’s water quality standards protect life; it’s as simple as that.”