Here are the new materials in Southern Ute Indian Tribe v. Dept. of Interior (D. Colo.):
The complaint is here.
Indian Mineral Leasing Act
Southern Ute Indian Tribe Files Challenge to BLM’s Hydraulic Fracturing Rule
Here is the complaint in Southern Ute Indian Tribe v. Dept. of Interior (D. Colo.):
From the tribe’s press release:
Ignacio, Colorado: The Southern Ute Indian Tribe filed suit yesterday in the United States District Court in Denver against the Department of the Interior challenging the Department’s new hydraulic fracturing rule for federal and Indian lands. The suit alleges that the rule conflicts with the Indian Mineral Leasing Act (IMLA) and asks the court to vacate those parts of the rule that violate the IMLA and frustrate the Tribe’s authority over its own lands. “The Tribe values the Reservation environment, but the BLM was overreaching when it enacted this rule for tribal lands. Tribal lands should be treated differently than federal lands,” said Clement J. Frost, the Tribe’s Chairman. “Some of the provisions in this new rule are just burdensome regulations that are not tied to an environmental benefit. This rule is one more regulatory burden that delays energy development on the Reservation and these delays have a very real effect on the Tribe’s ability to provide services and benefits to the tribal membership,” he said.
Tribes are currently authorized by federal regulation to supersede the Secretary’s regulations governing lease operations, and the Tribe has passed its own Hydraulic Fracturing and Chemical Disclosure Regulations. “The BLM’s new rule did not strike the right balance. We can do better,” said Chairman Frost. Bob Zahradnik, Operating Director of the Southern Ute Growth Fund, explained that the Tribe’s regulations vary from the new federal regulations in two important ways: “The Tribe’s regulations provide more protection for aquifers with less bureaucratic morass. It’s a win-win. Our regulations are compatible with Colorado’s regulations, and they also avoid the pre-approval delays that will be caused by BLM’s hydraulic fracturing rule. Those delays put the Tribe in a bad position relative to adjacent fee landowners. If it is too burdensome to do business on tribal lands, operators just take their business elsewhere.”
Ninth Circuit Files Amended Opinion in EEOC v. Peabody Western Coal Co.
Here. The amendment appears minor:
At Slip Op. 22, 768 F.3d at 974, the sentence beginning with <The Indian preference exemption> and ending with <does not extend to Indians.> is deleted and replaced with:
The Indian preference exemption contained in Section 703(i) is therefore necessary to clarify that Title VII’s prohibition against racial or national origin discrimination does not extend to preferential hiring of Indians living on or near reservations.
Panel materials here.
Ninth Circuit Affirms Title VII Exemption for Tribal Preference in Employment`
Here is the opinion in EEOC v. Peabody Western Coal Co.:
The syllabus:
The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.
The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior. The panel also held that the EEOC waived on appeal its record-keeping claim. Finally, the panel held that the district court acted within its discretion in denying the EEOC’s eleventh-hour motion to supplement the record with a declaration and documents about Peabody’s hiring practices in 1999.
Oral Argument Audio in EEOC v. Peabody Western Coal
D.C. Circuit Briefs in Jicarilla Royalty Dispute with Interior and Merit Energy
Here are the briefs in Jicarilla Apache Nation v. Dept. of Interior:
Lower court materials here.
Ninth Circuit Briefs in EEOC v. Peabody Western Coal
Update in EEOC v. Peabody Western Coal — Tribal Preference Employment Valid if Enacted under Lease Approved under IMLA
The court has dismissed Peabody Coal’s third-party claims against the federal government:
DCT Order Dismissing Peabody Coal Claims
It’s weird (or is it in the case of the EEOC?) to see two federal agencies in opposition to each other. Regardless, the court here buys the Department of Interior’s argument that the tribal preference in employment rules applicable to Peabody Coal are okay under Title VII because Interior approved the leases from which the preference originated under the Indian Mineral Leasing Act, which predated Title VII. The court was not so persuaded that all tribal preference in employment rules are acceptable but was persuaded that Interior’s approval muted any invalid discrimination. Here is what I consider to be the crux of the opinion:
While it is likely that Congress intended to only exempt Indian employment preferences in general and not tribe-specific preferences from Title VII in situations where an employer discriminates against members of a particular tribe without oversight or approval by the federal government, that is not the situation presented in this case.
EEOC argued that Congress, in enacting the Indian preference statute, here (look for section 703(i)), implicitly intended to make tribe-based discrimination invalid. The court rejected that claim, relying in part on Morton v. Mancari‘s other less-famous holding:
Implied repeals are disfavored . [Mancari] The DOI’s practice of including tribe-specific employment preferences in mining leases dates back to before the passage of Title VII, and, as discussed above, such preferences are a part of the federal government’s attempt to meet its various obligations towards the Nation and to foster tribal self-sufficiency, self-governance, and economic development. In addition, the Nation has located and identified at least 326 DOI-approved business leases on tribal lands within the last decade that include a tribespecific employment preference. Elimination of this longstanding and ubiquitous DOI practice would require a far more explicit showing of Congress’s intention to do so than is reflected in § 703(I).
I guess we’ll see what the Ninth Circuit says next in this long-running case.
Jicarilla Loses Royalties Challenge with Merit Energy
Here is the opinion in Jicarilla Apache Nation v. Dept. of Interior (D. D.C.):
New Mexico Bankruptcy Court Holds Bankruptcy Code Waives Tribal Immunity
Here are some of the materials in In re Platinum Properties, Inc. (Bankr. N.M.):
Bkrcy CT Order re Platinum Oil
Jicarilla Motion for Summary J
Other materials are here.
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