Here are the materials in Smith v. Parker (D. Neb.):
DCT Order Granting Nebraska Motion to Intervene
Opposition to Motion to Intervene
Nebraska Reply in Support of Motion to Intervene
Prior posts on this very interesting case are here and here.
federal indian law
Department of the Interior Sued Over Tax Provision in New Indian Leasing Regulations
Update: Here is the complaint:
The Desert Water Agency, based in southern California, has sued the Department of the Interior over the tax provisions in its new Indian leasing regulations.
The Department of the Interior published revised surface leasing regulations in November 2012, after a year-long public notice and comment rulemaking process. Those regulations govern surface leasing of Indian lands, and include a new provision clarifying the tax status of property and activities under a lease:
§ 162.017 What taxes apply to leases approved under this part?
(a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.
(b) Subject only to applicable Federal law, activities under a lease conducted on the leased premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State. Activities may be subject to taxation by the Indian tribe with jurisdiction.
(c) Subject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction.
In its complaint, the Desert Water Agency is challenging the application of this provision to the fees it assesses to water users/lessees on tribal lands (particularly the Agua Caliente Reservation) in southern California. It asserts that its taxes are not preempted by federal law, and that the new regulation either does not apply or is arbitrary and capricious.
As part of its claim, the Desert Water Agency asserts that Congress has expressly permitted state and local government to levy such taxes on Executive Order reservations (like Agua Caliente’s) through 25 U.S.C. Section 398c. (It also asserts that its taxes are permitted under the traditional Bracker balancing test).
The Desert Water Agency’s reliance on 398c is curious, because that provision was included in 1927 legislation that Congress enacted to address Indian mineral leasing.
As most Indian law practitioners know, the federal Indian surface estate and the Indian mineral estate are governed under separate legal regimes. The Department of the Interior’s leasing regulations expressly apply to surface leasing under 25 U.S.C. Section 415 and related statutes. They are inapplicable to mineral leases on Indian lands (in fact, 398c is not even listed as authority for the regulations).
Either the Desert Water Agency’s attorneys are unaware of this key distinction in Indian law, or they are deliberately misrepresenting 25 U.S.C. 398c. Given the history of Indian law, either is possible – though I’m not sure that either is a good position to be in.
The Desert Water Agency has also claimed that it was unaware of the rule change until it had already gone into effect on January 2013. I find these types of claims particularly weak, given the fact that Indian leasing reform was a signature initiative of the Department of the Interior in President Obama’s first term. The President himself announced the proposed change at the 2011 Tribal Nations Conference, and it was published in the Federal Register through the traditional public notice and comment rulemaking process with a version of the tax provision included. The BIA even hosted a tribal consultation session in January 2012 at the publicly-owned Palm Springs Convention Center in the Desert Water Agency’s backyard.
Challenges to the tax provisions of the new leasing regulations were inevitable, especially considering the stakes involved. The fact that it has only taken several months for this type of suit to arise speaks to those stakes. It will be interesting to watch this case unfold.
Omaha Tribal Court Opinion Holding Tribe Has Authority to Tax Liquor Retailers on 1854 Reservation
Here is the opinion:
Village of Pender v Morris — Omaha Tribal Court
The District of Nebraska previously ordered exhaustion of tribal remedies in this matter, materials here.
And here is the briefing schedule:
News coverage here.
American Law Institute Proposed Project on American Indian Law
Today, I will be make a presentation at the 2012 American Law Institute annual meeting (agenda here) in support of a proposed restatement or principles project on American Indian Law.
I organized a meeting on behalf of the ALI in March here in D.C. to discuss whether the ALI could effectively contribute the field (coverage of the meeting is here):
On March 29, the Institute hosted a conference on American Indian law at The Mayflower in Washington, DC, to discuss whether the ALI could produce work that would have a positive impact in the area of American Indian law. Among those attending the meeting, moderated by Professor Matthew L.M. Fletcher of Michigan State University College of Law, were government officials, judges, practitioners, and law professors with expertise in the field, including Deputy Solicitor General Edwin S. Kneedler; Arvo Mikkanen of the U.S. Attorney’s Office for the Western District of Oklahoma; Jon M. Sands, Federal Public Defender for the District of Arizona; Judges William Cameron Canby, Jr., and William A. Fletcher of the U.S. Court of Appeals, Ninth Circuit; Judge Diane P. Wood, U.S. Court of Appeals, Seventh Circuit; Patricia Ann Millett of Akin Gump in Washington, DC; John E. Echohawk of the Native American Rights Fund; Dean Kevin K. Washburn of the University of New Mexico School of Law; and Dean Stacy L. Leeds of the University of Arkansas School of Law.
Ann Tweedy on Unjustifiable Expectations
Highly recommended!!!!
Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:
When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.
Peter Vicaire on A Comparative Analysis of Indigenous Rights in a North American Constitutional Context
Peter Vicaire, our 2010-2011 Center Fellow, has posted his paper, “Two Roads Diverged in a Wood: A Comparative Analysis of Indigenous Rights in a North American Constitutional Context,” on SSRN.
Here is the abstract:
Fueled by contrasting political backdrops, Indigenous tribes on opposite sides of what has become the Canadian/American border have traveled upon very different trajectories, receiving dissimilar treatment from the respective governments that have laid claim to their lands. Tribes in Canada have retained significantly less rights as Indigenous peoples than have tribes in the United States.
Philosophical critique of plenary power
George Martinez has published an interesting article critiquing plenary power in the Indian law context and other contexts from a philosophical standpoint. Basically, he says that plenary power harms those that wield it. The article is “Race, American Law and the State of Nature,” 112 W. Va. L. Rev. 799 (2010). Unfortunately, it doesn’t seem to be available on SSRN or Bepress. Here’s the abstract:
“This Article advances a new theoretical framework to help explain and understand race and American law. In particular, the Article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The Article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, the Article argues that there is a tendency for the dominant group to act as though it were in the state of nature when dealing with persons of color. There is a tendency not to feel any constraints or move toward a situation with fewer constraints on the dominant group. The Article contends that there is reason to believe that operating with great power or lack of constraint will have bad effects on the persons wielding such power.”
Bethany Berger on Equal Protection and Federal Indian Law
Bethany Berger has posted “Reconciling Equal Protection and Federal Indian Law” on SSRN. Here is the abstract:
In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.
Alex Skibine Posts “Tribal Sovereign Interests Beyond the Reservation Borders”
Tribal Sovereign Interests Beyond the Reservation Borders
Lewis & Clark Law Review, Utah University Legal Studies Research Paper Series, Research Paper No. 08-21
Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Abstract here:
In this article, after exploring the evolution of ‘sovereignty’ from a territorially based concept to a more flexible and fluid principle, professor Skibine examines the sovereign interests Indian tribes may have beyond the borders of their reservations.
Federal Indian Law in Other Indian Country General Law Reviews
Here’s the last list promised. This is the same criteria applied to the rest of the general law reviews that are geographically linked to Indian Country, excluding the general law reviews in the top 75, which appears in the earlier list here:
- North Dakota (26) — Halldin (2008), Zuger (2007), Weber (2007), Martell and Deer (2005), Miller (2004), Leeds (2000), Bradford (2000), King (1999), Jones (1999), Stoner (1999), Scafidi (1999), Strommer & Jacobson (1999), Holcomb (1999), Jensen (1999), Wastewin (1999), Hakansson (1999), Jones (1997), Hakansson (1997), Rice (1996), Garnett (1996), Dineen (1994), Davis (1993), J. Jensen (1992), Jones (1992), Laurence (1992), Norgren (1988). 52 sympossium pieces and student notes.
- South Dakota (17) — Garry (2008), Kunesh (2007), Spruhan (2006), Leach (2005), Gardner (2002), Parsons and Woodward (1999-2000), Royster (1998), Marx et al. (1998), Zellmer (1998), Singer (1995-1996), Piersol (1995), Pacheco (1994), Duffy (1994), Pommersheim (1991), Gover et al. (1991), Lux (1991), Jeffrey (1990). 24 symposium pieces and student notes.
- Idaho (12) — McClatchey (2006), Miller (2005), Bluemel (2005), Echohawk (2004), Nash (2002), Wood (2000), Blumm (2000), Gunter (1998), Wilkinson (1998), McCarthy (1998), Randall (1995), Laurence (1991-1992). 9 student papers and symposium pieces.
- Montana (10) — Hanlon (2008), Meyring (2006), Struve (2000), Jensen (1999), Poore (1998), Pommersheim (1997), O’Brien (1995), Dumontier-Pierre (1995), Simpson (1993), Brown (1991). 6 symposium pieces and student papers.
- Tulsa (8) — Zimmerman (2005), Deer & Tatum (2003), Seielstad (2002), Schlosser (2001), Marsh (1997), Royster (1994), Chandler (1994), Bell (1984). Plus, 85 or more symposium pieces and student notes.
- Oklahoma City (6) — Fletcher (2006), Creel (2002), Wilkins (2000), Byram (2000), Arrow (1989), Arrow (1987). 27 student papers and symposium articles.
- UMKC (6) — Ragsdale (2003), Ragsdale (2001), Ragsdale (2000), Ragsdale (2000), Ragsdale (1996), Ragsdale (1990). 7 symposium pieces and student notes.
- Gonzaga (5) — McCann (2005-2006), Fletcher (2004-2004), Prince (1997-1998), Joranko (1993-1994), Oringer (1984-1985). 5 symposium pieces.
- Hamline (4) — Laughlin (2007), Kim (2002), Jarboe (1994), Lenertz (1994). 10 student notes and symposium pieces.
- William Mitchell (4) — Wahl (2000), Beach (2000), Jones (1998), Zehnder (1996). 6 symposium pieces, notes, and book reviews. Continue reading
Turtle Talk 
You must be logged in to post a comment.