Bureau of Indian Affairs

Ninth Circuit Affirms Injunction against Waste Disposal Facility on Indian Allotment

Matthew L.M. Fletcher

Not sure what tribe is involved, but this case (United States v. Tarlow Realty, Inc.)  involves the government’s efforts to shut down a waste disposal unit on an Indian trust allotment. It succeeded. Of note, the unpublished opinion offers this commentary about the potential conflict of interest demonstrated by the government:

Finally, we note that the Government instigated this suit at the behest of two different federal agencies — the EPA and the BIA — and that it thus represents both the general public and the allottees, whose interests may diverge in some respects. Congress permits the Government to serve dual advocacy roles as environmental steward and allotment trustee, see Nevada, 463 U.S. at 128, 135 n.14, but the Government’s focus in this case on the former, with little evident regard for the latter, raises some concern. The statutory scheme governing third-party commercial use of allotted land places the Government, in its capacity as landowner and trustee, in the paternalistic position of sanctioning only those land uses which strike an appropriate balance between economic development for the allottees and the impact of that development on the environmental health and safety of the allotment property and surrounding community. See 25 U.S.C. §§ 348, 415(a); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987); Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1074-75 (9th Cir. 1983); United States v. S. Pac. Transp. Co., 543 F.2d 676, 698, 699 (9th Cir. 1976). In litigating this case, the Government has vigorously pursued its role as advocate for the environment and the general public, and admirably so, but it may have given shorter shrift to its role as representative of the economic interests of the allottees. In fact, nowhere in the record or the Government’s brief is there a discussion of how and whether this litigation serves the allottees’ welfare. We suspect that enjoining further operation of the waste disposal facility and redeveloping the property probably does serve their long-term economic interests, but the Government’s failure to so much as mention its obligation in this regard leaves the impression, right or wrong, that it may have eschewed this duty altogether. Nevertheless, while in different circumstances that might have affected the outcome, in this case we are satisfied that the Government did not act in excess of its authority.

Federal Court Allows FTCA Claim to Proceed against BIA Cops

Matthew L.M. Fletcher

Here is the opinion in Garvais v. United States (E.D. Cal.) — Garvais v USA DCT Order

An excerpt:

The United States has now moved for dismissal arguing that the court lacks subject matter jurisdiction over the claims of false imprisonment and malicious prosecution because the only factual basis for such claim were the acts of tribal police officers and the tribal prosecutor, who do not qualify as federal employees for purposes of the FTCA. In response to the motion, Plaintiff concedes that any claim based upon the conduct of the tribal officials could not proceed against the United States. Instead, Plaintiff argues that the United States has misconstrued the factual basis of his claim. Plaintiff argues his claims against the United States are based upon the conduct of the investigating BIA officer, Officer Little. There is no dispute that Officer Little qualifies as an “investigative or law enforcement officer[] of the United States” for purposes of 28 U.S.C § 2680(h). Accordingly, the court DENIES the United States’ Motion to Dismiss based upon lack of subject matter jurisdiction.

Congrats, Del!

Matthew L.M. Fletcher1 Comment

From Indianz:


Montana Gov. Brian Schweitzer (D) hailed the selection of Donald “Del” Laverdure, a member of the Crow Tribe, as the principal deputy assistant secretary for Indian affairs.

“As Governor, I have had the opportunity to work with Del Laverdure in his role as chief legal counsel to the Crow Nation,” Schweitzer said. “He will be sorely missed in Crow Country and all across Montana.”

Laverdure helped the tribe finalize a water rights settlement with the state and worked with the state to promote the tribe’s coal energy project. He’ll now be working in Washington, D.C., as the top deputy to Larry EchoHawk, the head of the Bureau of Indian Affairs.

“Although in his new mission in the Bureau of Indian Affairs, Del will bring strong legal expertise in tribal governance and Indian law to the table that can help advance federal Indian policy and further federal-tribal relations across America,” Schweitzer said.

NYTs on New BIA Head

Matthew L.M. Fletcher

From the NYTs:

A member of the Pawnee tribe who was Idaho’s attorney general is the new head of the Bureau of Indian Affairs. By a voice vote late Tuesday, the Senate confirmed Larry EchoHawk, 60, a law professor at Brigham Young University, as assistant interior secretary for Indian affairs. When Mr. EchoHawk was elected attorney general in 1990, he became the first American Indian ever elected to that post in any state. The problem-plagued Indian affairs agency, which manages 66 million acres of land and oversees Indian schools and other programs, has been without a leader since early in 2008.

California Court of Appeals Publishes ICWA Notice Case

Matthew L.M. Fletcher

The case is In re Jeremiah G. An excerpt:

We publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, “may” have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry. Here, the assertion that there was a “possibility” the great-grandfather of the minor’s father “was Indian,” without more, was too vague and speculative to require ICWA notice to the Bureau of Indian Affairs. ( Id. at p. 157.) This is particularly so in this case because the minor’s father, who made the assertion, later retracted it, telling the juvenile court that he “didn’t actually have [Indian ancestry].” Thus, mother’s appellate claim of ICWA error lacks merit.

Michigan Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The case is In the Matter of Mayberry (unpublished opinion) and the proper notice went out to the Grand Traverse Band, the Muscogee (Creek) Nation, and the BIA. See how easy that was, California?

In this case, the trial court record shows that notice was given to the Grand Traverse Band of Ottawa and Chippewa Indians, the Muscogee (Creek) Nation, and the Midwest Bureau of Indian Affairs, requesting written verification of the tribal status of the minor child. Responses to these notices were received from the tribes. The Grand Traverse Band of Ottawa and Chippewa Indians noted that the minor child was a non-member and ineligible for Ottawa-Chippewa Indian status. The Muscogee (Creek) Nation stated that the tribal records were examined and the minor child was not considered an Indian child in relationship to the Muscogee (Creek) Nation as defined in the ICWA. These determinations were conclusive. See In re Fried, supra at 540, In re TM, supra 191-192, and 44 Fed Reg 67584 (1979).

Wyoming Supreme Court Upholds Authority of BIA Officers to Detain Non-Indians until State Law Enforcement Arrives

Matthew L.M. Fletcher

Here is the Wyoming Supreme Court’s decision in Coyler v. State Dept. of Transportation. This case contains a very nice review of the various state and federal cases involving the authority of tribal cops to detain non-Indians until state law enforcement arrives. An excerpt:

Viewing the facts of the instant case in the context of the law just recited, we must conclude that nothing occurred in the detention of the appellant to render his arrest unlawful. The appellant could not have been arrested and prosecuted within the tribal court system because he was not a tribal member. He could not have been arrested by the B.I.A. officer and prosecuted within the federal system because the DWUI offense was a State offense, making him subject to arrest and prosecution by the State. Despite the jurisdictional olio on the reservation, the law is clear that the appropriate action to be taken in circumstances such as those presented in this case is for the reservation officer to detain the appellant for formal arrest by a state officer. That is what happened.

California Valley Miwok Tribe Loses Claim re AFA Funding Claim

Matthew L.M. Fletcher1 Comment

The BIA refused to renew the California Valley Miwok Tribe’s annual funding agreement under PL 638. The Tribe sued the BIA in the Eastern District of California, which has now dismissed on grounds the Tribe did not exhaust administrative remedies.

calif-miwok-tribe-v-kempthorne

Gun Lake Band Parcel Put Into Trust

Matthew L.M. Fletcher

From Indianz:


After a lengthy court battle, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, finally has a place to call home.

The tribe celebrated after the Bureau of Indian Affairs placed 147 acres into trust. The land was the subject of an anti-gaming lawsuit that ended last week. “Today we rejoice knowing that all our hard work has paid off and the sacrifices of our ancestors was not made in vain,” said Chairman D.K. Sprague. “Now it’s official. Justice has been served to those who were motivated by greed and power to delay this project for nearly ten years.” The tribe plans to build a casino on the site in western Michigan. A press conference will be scheduled in the coming works to announce details.

Get the Story:
Gun Lake tribe says casino land in Wayland has been taken into trust (The Grand Rapids Press 1/30)

United States v. Menominee Tribal Enters. — False Claims Act Suit

Matthew L.M. Fletcher

Here is the opinion — us-v-menominee-tribal-enters-dct-order

An excerpt:

The United States brought this action against Menominee Tribal Enterprises (“MTE”) and two of its employees. The Government alleges that the Defendants submitted invoices seeking payment that contained false information, in violation of the False Claims Act, 31 U.S.C. § 3729. It further alleges that MTE breached contracts it had with the Bureau of Indian Affairs (“BIA”) when it made several large purchases without receiving prior approval. All parties have moved for summary judgment, at least as to some of the claims. For the reasons given herein, I conclude that all claims should be dismissed as to Defendant MTE; False Claims Act claims brought against the individual Defendants will remain.