The Symposium will be held at the Hilton Santa Fe at Buffalo Thunder. The announcement can be seen here.
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Bethel subsistence fishers defend prosecution on religious and cultural grounds
Articles on this matter can be found here, and here.
The State’s Motion to Exclude the Defense can be seen here: Mtn to Exclude – AK v Ivan.
Amicus and Defendants’ Briefs on the 1st Amendment issue can be seen here: Briefs on 1st Am – AK v Ivan
Department of the Interior Sued Over Tax Provision in New Indian Leasing Regulations
Update: Here is the complaint:
The Desert Water Agency, based in southern California, has sued the Department of the Interior over the tax provisions in its new Indian leasing regulations.
The Department of the Interior published revised surface leasing regulations in November 2012, after a year-long public notice and comment rulemaking process. Those regulations govern surface leasing of Indian lands, and include a new provision clarifying the tax status of property and activities under a lease:
§ 162.017 What taxes apply to leases approved under this part?
(a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.
(b) Subject only to applicable Federal law, activities under a lease conducted on the leased premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State. Activities may be subject to taxation by the Indian tribe with jurisdiction.
(c) Subject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction.
In its complaint, the Desert Water Agency is challenging the application of this provision to the fees it assesses to water users/lessees on tribal lands (particularly the Agua Caliente Reservation) in southern California. It asserts that its taxes are not preempted by federal law, and that the new regulation either does not apply or is arbitrary and capricious.
As part of its claim, the Desert Water Agency asserts that Congress has expressly permitted state and local government to levy such taxes on Executive Order reservations (like Agua Caliente’s) through 25 U.S.C. Section 398c. (It also asserts that its taxes are permitted under the traditional Bracker balancing test).
The Desert Water Agency’s reliance on 398c is curious, because that provision was included in 1927 legislation that Congress enacted to address Indian mineral leasing.
As most Indian law practitioners know, the federal Indian surface estate and the Indian mineral estate are governed under separate legal regimes. The Department of the Interior’s leasing regulations expressly apply to surface leasing under 25 U.S.C. Section 415 and related statutes. They are inapplicable to mineral leases on Indian lands (in fact, 398c is not even listed as authority for the regulations).
Either the Desert Water Agency’s attorneys are unaware of this key distinction in Indian law, or they are deliberately misrepresenting 25 U.S.C. 398c. Given the history of Indian law, either is possible – though I’m not sure that either is a good position to be in.
The Desert Water Agency has also claimed that it was unaware of the rule change until it had already gone into effect on January 2013. I find these types of claims particularly weak, given the fact that Indian leasing reform was a signature initiative of the Department of the Interior in President Obama’s first term. The President himself announced the proposed change at the 2011 Tribal Nations Conference, and it was published in the Federal Register through the traditional public notice and comment rulemaking process with a version of the tax provision included. The BIA even hosted a tribal consultation session in January 2012 at the publicly-owned Palm Springs Convention Center in the Desert Water Agency’s backyard.
Challenges to the tax provisions of the new leasing regulations were inevitable, especially considering the stakes involved. The fact that it has only taken several months for this type of suit to arise speaks to those stakes. It will be interesting to watch this case unfold.
Trying to Get to Fed Bar
File this under very bored travel posts.
MSU Law students Emily, Angie, Sarah, John, Tamera and Nellie (taking the photo), and Kate Fort waiting. And waiting. And waiting.
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Briefs in Motion to Dismiss Hickory Ground Suit
Kansas SCT Reverses Suspension of Prairie Band Driver’s License Holder
Here is the opinion in Rodewald v. Kansas Dept. of Kansas.
From the court’s opinion:
Jacob C. Rodewald appeals from the district court’s summary judgment in favor of the Kansas Department of Revenue (KDR), upholding the suspension of Rodewald’s Kansas driver’s license. The basis for the suspension was K.S.A. 8-1567a, which prohibits any person less than 21 years of age from operating a vehicle in this state with a breath or blood alcohol content (BAC) of .02 or greater and which provides for a driver’s license suspension if the test results are greater than .02, but less than .08. Rodewald contends that because he is an enrolled member of the Prairie Band Potawatomi Nation and was operating a vehicle on the reservation when stopped by a tribal officer, the tribal court had exclusive jurisdiction over any civil matter arising from the incident, and the KDR acted outside the scope of its authority. We agree. The grant of summary judgment is reversed, and the matter is remanded to the district court with directions to order the reinstatement of Rodewald’s driver’s license.
Michalyn Steele: “Comparative Institutional Competency and Sovereignty in Indian Affairs”
Michaelyn Steele has posted her paper, “Comparative Institutional Competency and Sovereignty in Indian Affairs,” on SSRN.
Here is the abstract:
While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are best situated ultimately to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority — beyond where the Supreme Court has held tribal inherent authority to reach — underscores the importance of addressing the question of which branch ought to resolve the issue. This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.
Upcoming NCAI Webinars: VAWA, HEARTH Act, & Tribal-State Public Safety Agreements
The National Congress of American Indians will host a series of webinars which will focus on the implementation of recently passed legislation as well as the continued importance of working with federal, state, and local governments. These webinars will address implementation of the expanded jurisdiction provisions within VAWA (April 5), implementation of the HEARTH Act (March 28), and working with states and local governments to develop strong public safety agreements (March 26).
Please register for each of these informative webinars:
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NBC News Coverage of Little Traverse Same-Sex Marriage Ceremony
Here.
Atlantic.com Profile of Niijii Radio
Here.
Turtle Talk 
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