Ok, so it’s just one brief so far….
Lower court materials here.
Here is the motion in Crow Tribe v. Repsis (D. Wyo.):
But that was not the end of the story. In 2014, Clayvin B. Herrera, a Crow Tribe member, along with other Crow Tribe members in his hunting party, took three elk in the Bighorn National Forest. Mr. Herrera was cited for, and convicted of, violations of Wyoming hunting laws. Mr. Herrera’s case went all the way to the U.S. Supreme Court, which held that the Crow Tribe’s off-reservation treaty hunting right was not extinguished by Wyoming’s statehood. Herrera v. Wyoming, 139 S. Ct. 1686, 1700 (2019). In so doing, the Court also held “that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.” Id. at 1697. Today, this Court has the opportunity to relieve the Crow Tribe from the judgment, based on Race Horse, that it entered more than 25 years ago.
This is precisely the sort of circumstance that Federal Rule of Civil Procedure 60 was written to remedy. This Court’s Repsis judgment remains in force; but that judgment was based entirely on a case that has been expressly and entirely repudiated by the U.S. Supreme Court, which affirmed the vitality of the very same treaty right that that this Court and the Tenth Circuit found extinct. To allow this Court’s Repsis judgment—which might have been correct when it was made, but now has been unequivocally repudiated by the Supreme Court—to bar the Crow Tribe and its members from legally exercising their off-reservation treaty hunting rights would be a profound injustice. Equity requires that the Crow Tribe, and by extension its members, be relieved from this Court’s Repsis judgment, which this Court should now vacate.
Here are materials in Wyoming v. U.S. Dept. of Interior, et al, 15-cv-00043 (Jun. 21, 2016):
The DOI and respondents have filed a leave to appeal.
Link to previous coverage here.
Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):
While the foregoing discussion is mired in legal nuance, at the end of the day, the federal government burdened one federally-recognized Indian tribe’s free exercise of religion based on the religious objection of another federally-recognized Indian tribe. Whether the First Amendment prevents the federal government from imposing the burden of law on one federally-recognized Indian tribe’s free exercise of religion for the benefit of another is a question of first impression, but it is clear that the First Amendment forbids such conduct—”The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Church of the Lukumi Babalu Aye, 508 U.S. at 542. The Court finds that Defendants’ decision in its informal adjudication of Plaintiffs’ permit application violated the Free Exercise Clause of the First Amendment because the decision was not justified by a compelling governmental interest and was not narrowly tailored to advance the asserted interest.
The Court finds and that Defendants made an error of law when adjudicating Plaintiffs’ permit application and that Defendants’ error is capable of repetition, yet evading review. Therefore, this Court must set aside Defendants’ Permit Findings and Renewal Permit Findings, and remand to the U.S. Fish and Wildlife Service to reconsider those findings consistent with this Order. “When an administrative agency has made an error of law, the duty of the Court is to correct the error of law committed by that body, and, after doing so to remand the case to the [agency] so as to afford it the opportunity of examining the evidence and finding the facts as required by law.” Miami Tribe of Oklahoma v. United States, 656 F.3d 1129, 1138 (10th Cir. 2011).
News coverage here.
Prior to Hobby Lobby, the court had not allowed the N. Arapaho Tribe to add an establishment clause claim, materials here.
A 2012 order on the merits — again, pre-Hobby Lobby — with materials is here.
Here are the materials in Northern Arapaho Tribe v. HHS (D. Wyo.):
This case asks whether the Northern Arapaho Tribe (the “Tribe”), a federally-recognized Indian tribe, should be exempted from the “large employer mandate” of the Patient Protection and Affordable Care Act of 2010 (the “ACA”). The large employer mandate is found at 26 U.S.C. § 4980H and, in short, requires a large employer to sponsor a health insurance plan meeting certain minimum requirements for its full-time employees or face an “assessable payment” if it fails to do so. As relevant to this case, § 4980H(c)(2) defines a “large employer” as employing an average of at least 50 full-time employees on business days.
The Tribe operates several different economic enterprises on the Wind River Indian Reservation in Wyoming, including a casino, a convenience store, a gas station, a grocery store, and other businesses. The Tribe employs over 900 people in its economic enterprises and governmental agencies. (Conrad Decl. 2, 4.) Nonetheless, the Tribe argues it should not be subject to the large employer mandate.
After the ACA was passed, the Tribe discovered its employees could buy health insurance plans on the federal health insurance exchange that offered superior coverage at a lower price than any other plan previously available in the insurance market. The Tribe encouraged and assisted its members in purchasing individual health insurance plans through the federal exchange, including paying up to 80% of the premiums for its tribal members.
As of January 1, 2015, the ACA’s large employer mandate became effective. The Tribe alleges the health insurance plan it would offer as a large employer would be more expensive for its employees and offer less coverage than the individual plans available on the federal exchange. The Tribe believes the individual health insurance plans purchased through the federal exchange are superior to any employer-sponsored insurance plan it could provide under the large employer mandate, primarily because most of the Tribe’s members qualify for income-based tax credits and cost-sharing exemptions under the individual plans that are unavailable within an employer sponsored plan.
Here are the new materials in Northern Arapaho Tribe v. Ashe (D. Wyo.):
With these principles in mind, the Court denies Plaintiffs’ motion because they waited too long to amend their complaint. Plaintiffs knew or should have known the facts underlying an Establishment Clause claim when they filed their amended complaint nearly a year ago. And Plaintiffs undoubtedly knew about the Establishment Clause claim by May 31, 2012, because on that date they filed a memorandum stating that “[d]efendants’ denial of the [tribe’s] permit application creates Establishment Clause problems.” Pls.’ Mem. 14 n.19, ECF No. 30. Yet Plaintiffs waited over eight months from the time they clearly knew about the Establishment Clause claim to file the present motion. That’s simply too long a wait. The Court therefore DENIES Plaintiffs’ motion for leave to amend their complaint (ECF No. 59) based on undue delay.
Our prior post on this case is here.