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.

Eleventh Circuit Holds Florida’s Rental Tax is Preempted by Federal Indian Law, but Not Utility Tax

Here is the opinion in Seminole Tribe of Florida v. Stranburg. An excerpt:

Benjamin Franklin said, “[I]n this world nothing can be said to be certain, except death and taxes.” He was almost right. As this case illustrates, even taxes are not certain when it comes to matters affecting Indian tribes. In this appeal, we consider whether Florida’s Rental Tax and Florida’s Utility Tax, as applied to matters occurring on Seminole Tribe lands, violate the tenets of federal Indian law. For the reasons that follow, we find that the Utility Tax as it involves activities on Tribe land does not, but the Rental Tax does.

Briefs here.

Live CLE Webinar: Update on State Taxation of Tribal Leased Lands: The New Leasing Regulations | February 25

This webinar explore the effect of the new Interior regulations excluding state taxes on business leases in Indian Country. The panel will describe recent changes to the regulations and chart the course of the litigation ongoing in several states over the new regulations. The panel will also discuss strategies being considered to resolve this longstanding state-tribal conflict outside of the ongoing litigation.

Featured Speakers

Wendy S. Pearson, Pearson Law Offices PS, Seattle, WA

Bruce Zimmerman, Confederated Tribes of the Umatilla Indian Reservation, Pendleton, OR

Joseph C. Lennihan, Attorney At Law, Santa Fe, NM

Shana Barehand, Tribal Liaison, Washington Department of Revenue, Olympia, WA

For more information and to register click here.

PLEASE NOTE: To receive CLE credit you must be logged into the webinar interface for the ENTIRE program (including the Q&A). Partial credit is not available for this program. Please see the CLE Informaton page for more details

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.):




We posted previously on this case here and here.