Turtle Talk

DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)

December 10, 2015Kate Fort4 Comments

This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.

Here is the order.

This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.

(emphasis added)

And:

…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.

As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.

Federal Tort Claims Act against Seminole Police

December 10, 2015Matthew L.M. Fletcher

Here is the complaint in Perez v. Seminole Tribe of Florida (S.D. Fla.):

Complaint

Judith Royster on Treaty Rights and Tribal Civil Jurisdiction

December 10, 2015Matthew L.M. Fletcher

Judith Royster has posted “Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands,” published in the Arizona Law Review. PDF SSRN

Here is the abstract:

In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes’ territories. Initially, the Court confined itself to hobbling tribes’ inherent sovereign authority over non-tribal members only on non-Indian (“fee”) lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian (“trust”) lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian lands is not clear, however, and lower federal courts are struggling to interpret it. The primary issue is whether Hicksintended the Montana approach to extend to all nonmembers on trust lands or whether the decision in Hicks is confined to its particular set of facts. That uncertainty could lead to further inroads on the inherent sovereign authority of tribes.

The Court in Montana, however, recognized a second approach to tribal authority over nonmembers on trust land: the tribal treaty right of use and occupation. Although the Court held that those treaty rights are extinguished on fee lands, it agreed that the rights survive on trust lands. This Article argues that the treaty rights argument—that Indian tribes have rights to govern nonmembers on trust lands recognized by treaty and treaty-equivalent—must be resurrected. If inherent tribal authority over nonmembers on trust lands is under increasing judicial attack, tribes may assert their treaty right to govern as a path to ensure their sovereignty on Indian lands.

Snoqualmie Tribe Brings Civil Rights Action against City of Snoqualmie

December 10, 2015Matthew L.M. Fletcher

Here is the complaint in Snoqualmie Indian Tribe v. City of Snoqualmie (W.D. Wash.):

Complaint

An excerpt:

The Snoqualmie Indian Tribe, as parens patriae on behalf of its Tribal members acting through the Tribal member governing body of the Snoqualmie Casino, brings this legal action to stop the City of Snoqualmie from engaging in intentional race discrimination against the Tribe. The City is the only provider of sewer utility services to the Tribe’s Snoqualmie Casino, and has been providing such services under an agreement entered into in 2004. In October 2015, the City informed the Tribe that, despite the Tribe’s continuous payment for such services, the City intends to terminate providing sewer services to the Casino by no later than November 2016. The City is also actively blocking the Tribe’s efforts to obtain sewer services without relying exclusively on the City. Without sewer services, the Casino will be forced to close indefinitely, threatening the Tribe’s ability to offer core governmental programs and services to its Tribal members, jeopardizing business relationships upon which the Tribe depends, and risking the jobs of 1200 employees. The Tribe seeks declaratory and injunctive relief to protect its right to the full and equal benefit of the law, and to enjoin Defendants from terminating sewer services in violation of 42 U.S.C. § 1981 and RCW 35.67.310, and from interfering with business expectancies.

White Earth Nation/Honor the Earth Effort to Fight Enbridge Pipelines Fails

December 10, 2015Matthew L.M. Fletcher

Here are the materials in White Earth Nation v. Kerry (D. Minn.):

71 Motion for Summary J

90 Enbridge Motion for Summary J

94 US Motion for Summary J

102 Plaintiff Opposition

103 US Reply

105 Enbridge Reply

113 DCT Order

Complaint here.

Galanda on Tribal Lawyer Ethics & Gaming Per Capita Disputes

December 10, 2015December 10, 2015Matthew L.M. Fletcher

Gabriel Galanda has sent me his paper for the 13th Annual Northwest Gaming Law Summit, “Tribal Lawyer Ethics: Gaming Per Capita Disputes”:

Gaming Law Summit Tribal Lawyer Ethics Gaming Per Capita Disputes

New BIA Rights-of-Way Regulations: Webinar on Significant Opportunities for Indian Country

December 9, 2015Sarah M Donnelly1 Comment

On November 17th the Department of the Interior published a final rule on Rights-of-Way on Indian Lands. The new regulations go into effect on December 21, 2015 and will have a substantial impact throughout Indian Country, particularly in eliminating state taxation, creating opportunity for new revenue streams for tribes, and increasing compensation for “piggybacked” uses. Virtually every reservation has multiple rights-of-way for varied purposes. These regulations contain a great deal of opportunity for tribes, but will require action and attention.

To prepare for the implementation of this final rule, NCAI is hosting a webinar to review the Rights-of-Way regulations, and will include discussion with BIA Realty on how to get started reviewing your rights of way. We will also have a discussion on negotiating. Please join us on December 11, 2015 at 2:00 pm EST. Register here.

David Mullon, former Chief Counsel of Senate Committee on Indian Affairs will offer an overview of the regulations.

Sharlene Roundface, Chief, BIA Division of Real Estate Services will share information on how to find documentation of existing Rights of Way

Stephen LeCuyer, Tribal Attorney for Swinomish Tribe, will related the Swinomish Experience with implementing tax provisions in the similar BIA Leasing regualations.

David Harrison, past Director, BIA Office of Trust Services, will discuss experiences in negotiating rights-of-way.

DOI Rights-of-Way Regulations – Final Rule

Highlights of this final rule include:

“Piggybacked” uses must be compensated, likely increasing values significantly;
State taxation of Rights of Way preempted;
Significant opportunity to create new sources of tribal tax revenue;
Simplified requirements and clarified processes for BIA review;
Streamlined process for obtaining a right-of-way on Indian land by eliminating the need to obtain BIA consent for surveying and establishing timelines for BIA review;
BIA disapproval only where there is a stated compelling reason;
Providing Indian landowners with notice of actions affecting their land;
Greater deference to individual Indian landowner decisions;
Promoting tribal self-determination and self-governance by providing greater deference to Tribes on decisions affecting tribal land;
Clarified tribal jurisdiction over lands subject to a right-of-way; and
Incorporating tribal land policies in processing.

NCAI Contact Information: Colby Duren, Staff Attorney & Legislative Counsel, cduren@ncai.org, or Christina Snider, Staff Attorney, csnider@ncai.org

Still Another Cert Petition: Oklahoma “Sacred Rain Arrow” License Plate

December 9, 2015Matthew L.M. Fletcher

Here is the petition in Cressman v. Thompson:

Cert Petition

Question presented:

Oklahoma compels Keith Cressman to display an image of the “Sacred Rain Arrow” sculpture from his vehicle – via his standard license plate – although he objects to displaying that image. This Court addressed the same issue in Wooley v. Maynard, 430 U.S. 705 (1977), holding New Hampshire violated a couple’s right to free speech by forcing them to display the state motto “Live Free or Die” on their vehicle’s standard license plate over their objection. But the Tenth Circuit distinguished Wooley on the ground that Wooley concerned words, not images.

The Tenth Circuit – creating a conflict with the Sixth Circuit- held artistic images disseminated in significant numbers are not pure speech and must be analyzed as symbolic speech instead. The Tenth Circuit then compounded a pre-existing circuit split on the protection afforded symbolic speech, using an approach different from all others, holding symbolic speech must present an “identifiable message to a reasonable observer” to ensure constitutional covering. And, in applying these novel principles to Cressman’s compelled speech claim, the Tenth Circuit contravened precedent further in holding Cressman’s speech was not compelled because his objection did not match the inference a “reasonable observer” would draw about the image.

The question presented is whether the State can compel citizens to display images that are objectionable to them?

Lower court materials here.