Here:
The reg is here.
Regulations
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
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
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.
Federal Court Holds that Federal Indian Country Leasing Regs Preempt State Rental and Utility Taxes
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.
Fifth Circuit Holds Eagle Act Regulations May Violate RFRA
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.
Michigan Court of Appeals Affirms Mining and Groundwater Discharge Permits at Eagle Mine
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 Part 83 Changes to Federal Acknowledgment Process
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.”
Land Claim Filed in Minnesota Federal District Court
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.
Seminole Tribe Complaint Dismissed by 11th Circuit in Revenue Case
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.
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