Crow Tribe Attempts to Reopen Crow Treaty Rights Suit

Here is the motion in Crow Tribe v. Repsis (D. Wyo.):

70 Crow Tribe Motion

An excerpt:

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.

D. Wyoming Finds BLM Fracking Regulations Unlawful

Here are materials in Wyoming v. U.S. Dept. of Interior, et al, 15-cv-00043 (Jun. 21, 2016):

Doc. 176 – Brief in Support of Wyoming, Colorado, and Utah’s Petition for Review of Final Agency Action

Doc. 180 – Ute Indian Tribe of the Uintah and Ouray Reservation Merits Brief

Doc. 191 – Respondents’ Merits Brief in Response to the Ute Tribe of The Uintah and Ouray Reservation’s Merits Brief

Doc. 193 – Federal Respondents’ Brief in Response to Merits Briefs of Industry and State Petitioners

Doc. 197 – Reply in Support of Wyoming, Colorado, and Utah’s Petition for Review of Final Agency Action

Doc. 199 – Ute Indian Tribe of the Uintah and Ouray Reservation’s Reply in Support of its Merits Brief

Doc. 207 – Order on Petitions for Review of Final Agency Action

The DOI and respondents have filed a leave to appeal.

Link to previous coverage here.

Federal Court Dismisses Northern Arapaho Tribe Challenge to Affordable Care Act Regs

Here are the materials in Northern Arapaho Tribe v. Dept. of Health and Human Services (D. Wyo.):

27 HHS Motion to Dismiss

38 Opposition

39 Reply

41 DCT Order

Previous post in this case is here.

Northern Arapaho Tribe Prevails against Fish & Wildlife Service/Eastern Shoshone Tribe over Eagle Permits in Accordance with Hobby Lobby

Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):

93 DCT Order

An excerpt:

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).

Briefs:

79 NAT Motion for Summary J

85 Eastern Shoshone Supplement to Amicus Brief

87 FWS Motion for Summary J

89 NAT Opposition

90 NAT Reply

92 NAT Letter re Hobby Lobby

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.

Northern Arapaho Tribe’s Challenge to ACA Regs Rejected

Here are the materials in Northern Arapaho Tribe v. HHS (D. Wyo.):

9 NAT Motion for PI

13 HHS Opposition

21 DCT Order Denying PI

An excerpt:

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.

News coverage here, via Pechanga.

Fremont County, Wyo. Ordered to Pay $960K in Attorney Fees to Indian Plaintiffs in Voting Rights Case

Here are the new materials in Large v. Fremont County (D. Wyo.):

180 Motion for Atty Fees

181 Response

182 Reply

183 DCT Order

News coverage here.

Lower court materials on the merits here. Appellate materials here.

Federal Court Refuses to Allow N. Arapaho Tribe to Add Establishment Clause Claim to Eagle Act Regulatory Dispute

Here are the new materials in Northern Arapaho Tribe v. Ashe (D. Wyo.):

DCT Order Denying Motion

N. Arapaho Motion to File Second Amended Complaint

USFWS Opposition

N. Arapaho Reply

An excerpt:

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.

Northern Arapaho Tribe v. Ashe — Eagle Take Permits

The Court rejects the argument that the record rule applies to Plaintiffs’ RFRA claims because RFRA and the APA provide two distinct causes of action with different standards of review. Plaintiffs lack standing to pursue a declaratory judgment that the FWS violated RFRA by delaying issuance of Plaintiffs’ eagle take permit for two and a half years and injunctive relief ordering the FWS to process Plaintiffs’ future eagle take permit applications within three months of submission because Plaintiffs have failed to demonstrate that they are likely to suffer similar delays in the future. Plaintiffs have standing to seek a declaratory judgment that FWS’s refusal to allow eagle take within Plaintiffs’ Reservation violates RFRA and an injunction ordering the FWS to modify Plaintiffs’ current eagle take permit because Plaintiffs have established injury, causation, and redressability. The Court assumes (without deciding) that the FWS’s refusal to allow Plaintiffs to take eagles within their Reservation places a substantial burden on Plaintiffs’ religious exercise, and it concludes that the FWS did not violate RFRA because it advanced and balanced its compelling interests via the least restrictive means. It is therefore
ORDERED that Plaintiffs’ motion for partial summary judgment is DENIED.

N Arapaho Motion for Summary Judgment

E Shoshone Amicus Brief

Order

N Arapaho Motion to Amend DCT Order

Tenth Circuit Affirms Dismissal of Northern Arapaho Tribe Tax Case for Failure to Join Eastern Shoshone Tribe

Here is today’s opinion in Northern Arapaho Tribe v. Harnsberger.

Briefs here.

Lower court materials here.