N. Dakota SCT Rules in Favor of Tribal Jurisdiction in Utility Regulation Dispute

Here is the opinion in North Central Electrical Coop., Inc. v. North Dakota Public Service Commission.

An excerpt:

North Central Electric Cooperative appeals from a district court judgment affirming a Public Service Commission order dismissing North Central’s complaint against Otter Tail Power Company after the Commission decided it did not have regulatory authority over Otter Tail’s extension of electric service to a facility owned by the Turtle Mountain Band of Chippewa Indians on tribal trust land within the Turtle Mountain Indian Reservation. North Central argues (1) the Commission’s decision is not in accordance with the law because the Commission has jurisdiction under North Dakota law and (2) the Commission’s findings are not supported by a preponderance of the evidence and do not sufficiently address North Central’s evidence. We affirm, concluding the Commission did not err in deciding it lacked authority to regulate the Tribe’s decision to have Otter Tail provide electric service to a tribal-owned facility on tribal-owned land within the reservation.

Briefs are here:

North Central Opening Brief

Turtle Mountain Brief

North Central Reply

New Student Scholarship on Tribal Authority to Zone Nonmember Lands under the Montana 1 Exception

Alexis Applegate has published her note, “Tribal Authority to Zone Nonmember Fee Land Using the First Montana Exception: A Game of Checkers Tribes Can Win” (PDF), in the Boston College Environmental Affairs Law Review.

The abstract:

The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign authority by implementing limits on tribal authority over nonmembers and nonmember land. These impediments began with the divestiture of tribal jurisdiction over crimes committed by nonmembers and expanded to limitations on tribal authority to assert civil regulatory and adjudicative jurisdiction over nonmembers. The Supreme Court first applied this theory of implicit divestiture on limitations of tribal civil regulatory authority in the landmark case Montana v. United States. This limitation on tribal sovereignty continues to severely impact the ability of tribal governments to implement successful zoning and comprehensive land use plans withinreservation boundaries. This Note accepts the status of the law for the time being and offers advice and suggestions for tribes to use the language of these decisions to develop consensual relationships with nonmember fee land owners in the creation of comprehensive zoning plans.

Rogers-Dial v. Rincon Band Complaint

Interesting case, involving the right of a tribe to evict non-Indians from tribal lands. The complaint, with a tribal court opinion attachment, is here: Rogers-Dial Complaint & Motion for PI

Quinault Indian Nation v. Sea Crest Inc. — Briefing in Montana Case

Here are the briefs in this matter, in which the Quinault Indian Nation is attempted to prevent or regulate the development of part of its reservation by Sea Crest. Sea Crest has developed coastal lands, wetlands, and all without a permit from anyone, according to the Nation’s brief. The case is pending in the Washington Supreme Court. Classic case of why the Supreme Court’s Montana rule guarantees unaccountable and often illegal activity by non-Indian property owners.

Quinault Brief

Sea Crest Brief

Quinault Reply Brief

Pacific Legal Foundation Amicus Brief

Where are the tribal amici?!?!