Ninth Circuit Affirms Conviction in US v. Polequaptewa

We have scoured the web. Here are some of the latest materials related to Indian Law. Find all of the latest updates at https://narf.org/nill/bulletins/

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2021.html

Loring v. Daly (Tribal Sovereign Immunity; Religious Land Use and Institutionalized Persons Act)
United States, Osage Minerals Council v. Osage Wind, LLC (Wind Turbines; Property Rights)
Noem v. Haaland (National Historic Preservation Act; Religious Freedom Restoration Act)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2021.html

Petitioner/Cross-Respondent: The People of the State of Colorado, In the Interest of Minor Children: K.C. and L.C., v. Respondents/Cross-Petitioners: K.C. and L.C., and Concerning Respondent: D.C. (Indian Child Welfare Act)
Great Plains Lending, LLC v. Department of Banking (Tribal Sovereign Immunity; Sovereign Lending)
Jamelle A. v. Department of Child Safety (Indian Child Welfare Act)

U.S. Legislation – 117th Congress Bulletin
https://narf.org/nill/bulletins/legislation/117_uslegislation.html

S.1725 – A bill to grant a Federal charter to the National American Indian Veterans, Incorporated.
S.1735 – A bill to establish an Office of Native American Affairs within the Small Business Administration, and for other purposes.
S.1797/H.R.3496 – To amend the Indian Health Care Improvement Act to expand the funding authority for renovating, constructing, and expanding certain facilities.

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2021.html

Ending the interminable gap in Indian Country water quality protection.
Native treaties and conditional rights after Herrera.
“The rule of the strong, not the rule of law”: Reexamining implicit divestiture after McGirt v. Oklahoma.
Tribal lending after Gingras.

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
This week, in brief:

Bipartisan bill brings long-overdue boost to urban Indian health providers
Washington State Tribal Coalition passes unprecendented climate change bill, puts consent instead of consultation into law
Gov. Noem’s Mount Rushmore lawsuit sparks legal fight with tribe
In new ad campaign, tribal coalition urges Biden to ‘restore and expand’ Bears Ears monument
Colonization’s dark history puts heavy burden on tribes seeking repatriation of remains, objects
Protocol will help guide Indigenous knowledges and data collecting, sharing, interpretation and storage
Indigenous healthcare professional and student discuss their journeys in the healthcare field
The Gila River Indian Community innovates for a drought-ridden future
Call Number with American Libraries Podcast: NILL Director Anne Lucke discusses the importance of a library dedicated to tribal law
Petroglyph vandalism is not a victimless crime

Washington COA Rejects Makah Challenge to State Land Exchange (and Three Tribes’ Effort to Stop the Whole Thing)

May 26, 2021January 10, 2022Matthew L.M. Fletcher

Here are the materials in Makah Indian Tribe v. Commissioner of Public Lands (Wash. Ct. App.):

D2 54945-0-II Unpublished Opinion

Makah Reply

State Response to Hoh-Quiluete-Quinault Amicus Brief

Makah Answer to Hoh-Quiluete-Quinault Amicus Brief

[missing from the court’s website are the initial briefs of the tribe and state, and the Hoh-Quiluete-Quinault amicus brief]

An excerpt:

The Makah Indian Tribe appeals the superior court’s order denying a constitutional writ to block a land exchange proposed by the Department of Natural Resources (DNR) and approved by the Board of Natural Resources. The land exchange, called the “Peninsula Exchange,” would exchange state forestlands with forestlands owned by a private timber company, Merrill & Ring. The Peninsula Exchange parcels border tribal lands of a number of Indian tribes, including the Makah, the Hoh, the Quileute, and the Quinault. The Makah argue that DNR violated (1) the State Environmental Policy Act (SEPA) by failing to conduct a SEPA environmental review prior to approval of the proposal and (2) the public lands management statute, Title 79 RCW, by insufficiently addressing the Makah’s concerns.

The Hoh, Quileute, and Quinault Tribes (the Amici Tribes) filed a joint amicus curiae brief requesting dismissal under CR 19, arguing that they are necessary and indispensable parties who cannot be joined due to their sovereign immunity. The Amici Tribes claim that the Peninsula Exchange parcels are part of their respective treaty hunting areas. The Makah argue that the Amici Tribes are not necessary and indispensable parties under CR 19 because this appeal can be decided without a determination of treaty rights of various tribes as the Makah’s claims are procedural challenges to DNR’s Peninsula Exchange.

Because we resolve this appeal without implicating the treaty rights of the various interested tribes, we hold that the Amici Tribes are not necessary or indispensable parties. Accordingly, dismissal of this appeal under CR 19 is not appropriate.

DNR’s interpretation of the SEPA categorical exemption is entitled to substantial weight and its determination that a land exchange is categorically exempt from SEPA review will be overturned only if it is clearly erroneous. We hold that DNR properly interpreted and applied the SEPA categorical exemption for state land exchanges to determine that the Peninsula Exchange was categorially exempt from SEPA review and that DNR’s finding that the Peninsula Exchange was exempt from SEPA was not clearly erroneous. Additionally, DNR complied with the public lands management statute by adequately consulting with the Makah prior to the Board’s approval of the Peninsula Exchange. Because the superior court’s decision was not manifestly unreasonable, or exercised on untenable grounds or for untenable reasons, we hold that the superior court did not abuse its discretion by denying the Makah a constitutional writ. We affirm.

Update with the rest of the briefs:

2020.08.17 QTA Amicus Motion

2020.08.17 QTA Declaration and Report

2020.08.18 Order Allowing QTA Amicus Brief

2020.08.29 Opening Brief of Makah Tribe

2020.09.11 QTA Amicus Brief

2020.09.11 QTA Amicus Declaration

2020.09.18 Opening Brief of Respondents

Ruling denying stay and accelerating review (7.17.20)

Prisoner Suit against Salt River Corrections Dismissed

May 26, 2021Matthew L.M. Fletcher

Here are the materials in Loring v. Daly (D. Ariz.):

1 Complaint

31 Tribe Motion to Dismiss

39 Response

40 Reply

45 DCT Order

Congrats to Michael Petoskey, Newest Member of the NARF Board of Directors!

Image May 26, 2021Matthew L.M. Fletcher

Tribal Law Journal Call for Papers

May 25, 2021Matthew L.M. Fletcher

Here:

Fall21_CallforSubs

Decision out of the Colorado Supreme Court on the Tribal Enrollment Hearing

May 24, 2021Kate Fort

kc-and-lc-opinion-1 Download

The Indian Law Clinic represented the Chickasaw Nation in this case.

In their petitions, the parties asked us to address whether (1) ICWA requires
a district court to hold an enrollment hearing in circumstances like those present
here as a prerequisite to the termination of parental rights; (2) a district court can
order the Department to enroll children over a parent’s objection; and (3) the
division below erred in reversing the district court’s judgment rather than
ordering a limited remand.
All of the parties before us, and the Nation itself, agree that the division
erred in requiring an enrollment hearing. Because we perceive no statutory basis
for such a hearing, and because such a hearing conflicts with the Nation’s exclusive
right to determine who is an enrolled citizen, we agree that the division erred in
requiring such a hearing.

With respect to the second issue presented, we note that neither parent
objected to the children’s enrollment. Accordingly, the issue as presented in the
petition for certiorari is not properly before us. In their briefs, however, the parties
appear to construe the question presented more broadly, namely, as asking us to
decide whether the Department has an obligation to assist children who are
eligible for enrollment in becoming enrolled citizens of a tribal nation. Although
the issue is an important one and may call for legislative action, we conclude that
under current law, the Department has no such obligation. In certain
circumstances, however, it might well be the better practice for the Department to
advise on and perhaps assist with the enrollment process.