Ninth Circuit Rejects Challenges to Coquille Timber Harvesting Plan

Here are the materials in Cascadia Wildlands v. Bureau of Indian Affairs:

CA9 Opinion

Cascadia Wildlands Opening Brief

BIA Answer Brief

Coquille Brief

Cascadia Wildlands Reply


Oregon COA Affirms Governor’s Authority to Enter into Indian Gaming Compacts

Here are the materials in Dewberry v. Kitzhaber (Or. App.):

Oregon COA Opinion

Appellants Opening Brief

Respondents Joint Answer Brief

Tribal Amicus Brief

Appellants Reply Brief

An excerpt:

In summary, the Oregon legislature authorized the Governor to enter into agreements with tribes to ensure that the state does not infringe on tribal rights under federal laws, such as IGRA. The trial court correctly concluded that the Governor acted lawfully under ORS 190.110 in negotiating and entering into the tribal-state compact with the Tribes.

Colville Enacts Same-Sex Marriage Recognition Statute

Here (h/t here). They join Coquille, Suquamish, Little Traverse, Pokagon, and Santa Ysabel. For other tribes interested, see the toolkit Ann Tweedy posted a while back.

An important point:

Practically speaking, Finley said, it will mean that gay partners can have the same rights as a married couple of different sexes. One change already enacted allows anyone who works for the tribe to add a spouse of the same sex to their insurance and benefits.

He said the tribe will now begin modifying its other codes, plans and policies to make sure they agree with the newly passed amendment.

Mashantucket Pequot Second Circuit En Banc Petition (and Amicus Support)

Here are the new materials in Mashantucket Pequot Tribe v. Town of Ledyard (2d Cir.):

MPN En Banc Petition

Amicus Brief in Support of En Banc Petition — Seminole, Umatilla, and Coquille

Panel decision and briefs are here.

En Banc Ninth Circuit Panel Decides Important NEPA Intervention Case

Here is the opinion in Wilderness Society v. USFS.

And the tribal amicus brief: Tribal Amicus Brief

An excerpt:

Today we revisit our so-called  “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321  et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether  “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors’ motion to intervene.

Washington Court of Appeals Sets Evidentiary Burden for Indian Grandparents

Here is the Washington Court of Appeals (Div. 1) decision in In re Custody of C.C.M. An excerpt:

The Mecums also claim both that ICWA requires C.C.M. to be placed according to her “best interests,” and that the standards set forth in ICWA, rather than state law, govern this dispute. The Mecums contend that because Mr. Mecum is C.C.M.’s Indian custodian, he has an equal right to custody of C.C.M. under ICWA as does Pomiak. We disagree. …


However, ICWA itself provides a solution to this problem. The Act mandates that when either a state or a federal law affords greater protection for either a parent or a custodian, the more protective law shall apply. 25 U.S.C. § 1921. Here, Washington law accords a clear preference for parental custody. Accordingly, we hold that state law, not ICWA, supplies the substantive legal standards governing this nonparental custody dispute between an Indian custodian and a parent. In addition, because a parent’s interests in the custody and care of his or her children at stake in a nonparental custody action under chapter 26.10 RCW are equivalent to those implicated in termination and dependency proceedings, we hold that the Mecums must make their case by clear and convincing evidence.

Tribal Amicus Brief Supporting Kickapoo v. Texas Cert Petition

Several tribes — Jena Band of Choctaw Indians, Alabama-Coushatta Tribe of Texas, Citizen Potawatomi Nation, Coquille Indian Tribe, Rincon Band of Luiseno Indians, Shoalwater Bay Indian Tribe, Spokane Tribe of Indians, Standing Rock Sioux Tribe — filed a joint amicus brief supporting the Kickapoo Tribe’s cert petition over the Secretarial procedures for establishing Class III gaming compacts, a rule struck down by the Fifth Circuit a few months ago. Here is the Tribal Amicus Brief. Here is the link to the Kickapoo cert petition. The State’s cert opposition is due later this month.

It is significant, of course, that the United States did not file a cert petition.