Mealey's Native American Law : Mealey's : Legal News & Analysis

Mealey's Native American Law

May 02, 2023
9th Circuit: Tribe’s Coho Salmon Regs Violate 1974 Fishing Grounds Ruling

SEATTLE — A Washington Indian tribe’s attempt to regulate fishing for coho salmon in two areas of the Skagit River is foreclosed by a nearly 50-year-old federal court finding that the main stem of the river was not a historical fishing ground for the tribe, the Ninth Circuit U.S. Court of Appeals held May 1 in affirming summary judgment for another tribe that does hold fishing rights to the main part of the river.
May 02, 2023
Native American Group Drops 9th Circuit Willow Project Appeal, Seeks Resolution

SAN FRANCISCO — A Native American organization has voluntarily dismissed its appeal against the U.S. Bureau of Land Management (BLM) related to the Willow Project in the Ninth Circuit U.S. Court of Appeals, saying it aims to resolve the case on the merits at the district court level before commencement of “further ground-disturbing activities” during the 2023-24 winter construction season.
May 01, 2023
Lack Of Proper Application Dooms Bid For Federal Recognition, D.C. Circuit Says

WASHINGTON, D.C. — A man’s attempt to gain federal recognition for a Native American tribe was shot down by the District of Columbia Circuit U.S. Court of Appeals, which affirmed dismissal of his lawsuit for failure to comply with the administrative process when seeking official recognition from the government.
April 28, 2023
Judge: Tribal Companies Need Not Pay Escrow For Tobacco Sales On Reservation

OMAHA, Neb. — A Nebraska federal judge on April 27 granted in part a motion for summary judgment filed by two entities that are subsidiaries of a Winnebago Tribe-owned company, finding that the state may not collect escrow payments from tobacco sales on the Winnebago Reservation but also granting in part the state’s motion for summary judgment and finding escrow payments required for sales on another tribe’s reservation.
April 28, 2023
Panel: Tribe Fails To Show COVID-19 Caused Physical Property Damage To Casino

VENTURA, Calif. — A California appeals court panel on April 27 found that an insured Indian tribe and its experts failed to present sufficient evidence to demonstrate that the COVID-19 virus caused property damage to the tribe’s casino and resort, affirming a summary judgment ruling in favor of the insurer in the tribe’s breach of contract and bad faith lawsuit seeking coverage for its losses arising from the pandemic.
April 24, 2023
Tribes’ Sovereign Immunity In U.S. Bankruptcy Code Debated At Supreme Court

WASHINGTON, D.C. — Are Indian tribes domestic or foreign governments? If Congress intended to abrogate the sovereign immunity of tribes in the U.S. Bankruptcy Code, why didn’t it use the word “tribes”? The U.S. Supreme Court grappled with these questions April 24, with a Wisconsin tribe in a payday lending dispute and the federal government on opposing sides of the fight.
April 24, 2023
New York Tribe Sues County Seeking End To Taxation On Vehicle Use

SYRACUSE, N.Y. — An upstate New York Indian tribe filed suit in federal court seeking an end to a county’s collection of its vehicle use tax from tribal members who live in Indian country and a refund to tribal members of the taxes paid, with interest.
April 19, 2023
Government Responds To Supreme Court Query In Navajo Nation Water Case

WASHINGTON, D.C. — The federal government does not track how much water the Navajo Nation uses and is not able to determine the tribe’s per capita or total water use, the solicitor general says in a letter to the U.S. Supreme Court in response to a question posed by one of the justices during oral argument in March.
April 18, 2023
Utah Monuments Plaintiffs: Intervention Order Does Not Require A Response

SALT LAKE CITY — Utah municipalities suing the Biden administration for its decision to reinstate the dimensions of Bears Ears and Grand Staircase-Escalante national monuments filed a brief in federal court contending they are not required to respond to a brief filed by parties which were denied the right to intervene because the order that denied them permission was non-dispositive and the plaintiffs are not required or authorized to respond to proposed intervenors’ objections unless the court orders them to do so.
April 18, 2023
U.S. High Court Denies Review Of Tribal Water Rights Case Affecting Other Users

WASHINGTON, D.C. — The U.S. Supreme Court denied a petition by two individuals and a landowners’ association to review a federal agreement for tribal reserved water rights that the petitioners say subjects their water rights to federal enforcement.
April 18, 2023
Arizona Federal Judge: 2 Landowners Forfeited Decreed Water Rights By Nonuse

TUCSON, Ariz. — An Arizona federal judge has ruled that two landowners forfeited their decreed rights to Gila River water for not putting the rights to beneficial use for five consecutive years, rejecting arguments that previous floods made the land unsuitable for irrigation and cultivation.
April 17, 2023
Having Lost Injunction, Tribe Defends Summary Judgment Bid In Trinity River Case

FRESNO, Calif. — After convincing a judge that the balance of harms did not rise to the level required for granting a tribe’s motion enjoining the Trinity River water plan, the government asked the court to stay summary judgment briefing and for expedited consideration of its motion to dismiss. In an April 14 response, the tribe told the federal California court there is nothing stopping the court from receiving briefing on motions to dismiss and for summary judgment and that doing so would conserve judicial resources.
April 17, 2023
Convicted Child Sex Offender In Kansas Fails In Petition For Habeas Relief

TOPEKA, Kan. — The landmark criminal jurisdiction ruling in McGirt v. Oklahoma provides no relief for a Kansas man convicted of rape and sexual assault of a child, a federal judge in the state held April 14 in denying the man’s request for post-conviction relief.
April 17, 2023
Navajo Nation Claim For Damages Over Mine Blowout Not Preempted By CERCLA

ALBUQUERQUE, N.M. — The limitations on natural resource damages set forth in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) apply to Indian tribes, a federal judge in New Mexico has concluded.
April 14, 2023
McGirt Provides No Relief To Oklahoma Inmate, 10th Circuit Rules

DENVER — The 10th Circuit U.S. Court of Appeals on April 13 denied a certificate of appealability sought by an Oklahoma prisoner based in part on the decision in McGirt v. Oklahoma, finding that “reasonable jurists could not debate” that his application to appeal was untimely.
April 13, 2023
Hawaii Judge Clears Way For Criminal Defendant’s Extradition To Tribe

WAILUKU, Hawaii — A man wanted on criminal charges by an Arizona Native American tribe can be extradited by Hawaii at the request of the tribe, a Hawaiian judge ruled in denying a motion to dismiss the extradition proceeding filed by the now-incarcerated man, who argued that the tribe is neither a state not a federal territory under Hawaii’s extradition law.
April 11, 2023
North Dakota Denied Summary Judgment In Native Americans’ Voting Suit

FARGO, N.D. — A challenge by two Indian tribes and three Native American voters to North Dakota’s redrawn legislative districts under the Voting Rights Act (VRA) will proceed after a federal judge on April 10 denied the state’s attempt to have the case dismissed on summary judgment.
April 11, 2023
Immunity Does Not Extend To Tribal Oil Company, Montana Supreme Court Rules

HELENA, Mont. — A tribal company created to develop oil and gas resources on tribal land is not protected by two tribes’ sovereign immunity from a suit by oil companies seeking to invalidate the tribal entity’s interests in 41 oil and gas leases, the Montana Supreme Court held in reversing a trial court’s ruling.
April 11, 2023
Federal Government Rejects Tribe’s Sovereign Immunity In Bankruptcy Code

WASHINGTON, D.C. — The words in the U.S. Bankruptcy Code and how they are used leave no doubt that the sovereign immunity of Native American tribes is abrogated, as it is for all other governmental units, the federal government tells the U.S. Supreme Court in an amicus curiae brief urging affirmance of a divided First Circuit U.S. Court of Appeals decision.
April 07, 2023
Ousted Tribal Council Head Seeks To Amend Claims Against Other Council Members

LAFAYETTE, La. — The former chairman of a Louisiana Indian tribe is asking a federal court to alter its judgment barring his claims against the tribal council members who ousted him due to sovereign immunity so he can file an amended complaint against them with “far greater detail” about his malicious prosecution and abuse of process allegations.
April 06, 2023
Sauk-Suiattle Tribe Takes Fight For Fish Passage At Dam To Supreme Court

WASHINGTON, D.C. — The “futility doctrine” in the federal remand statute needs to be scrapped because it “is contrary to established principles of federalism and comity toward state courts,” a Washington Indian tribe tells the U.S. Supreme Court in a petition for certiorari challenging dismissal of its suit over the lack of a migratory fish passageway at a hydroelectric dam.
April 06, 2023
Native American Group Files Emergency Motion In 9th Circuit To Stop Willow Project

SAN FRANCISCO — A Native American organization on April 5 moved in the Ninth Circuit U.S. Court of Appeals for an emergency injunction pending appeal to halt all construction activities associated with the hydraulic fracturing development project in the National Petroleum Reserve on Alaska’s North Slope known as the Willow Project, arguing that if it is allowed to proceed, it will “irreparably harm fragile Arctic tundra, permanently alter wetlands, and displace subsistence and recreational use.”
April 04, 2023
Judge Stays Briefing In National Monuments Case Against Biden Administration

SALT LAKE CITY — A federal judge in Utah on April 4 granted a motion by the Biden administration staying the briefing in a lawsuit brought by the state of Utah and two municipalities over the dimensions of Bears Ears and Grand Staircase-Escalante national monuments, ruling that threshold legal issues must be resolved before addressing the plaintiffs’ motion for summary judgment.
March 30, 2023
Bankruptcy Code Clearly Cancels Tribes’ Sovereign Immunity, Supreme Court Told

WASHINGTON, D.C. — As domestic governments, Indian tribes’ sovereign immunity from suit is revoked in the U.S. Bankruptcy Code as it is for all other governments, even though the word “tribe” is never used in the code, a debtor tells the U.S. Supreme Court in a respondent brief on the merits.
March 29, 2023
Rail Company Owes Tribe Profits For Willful Trespass, Washington Federal Judge Says

SEATTLE — BNSF Railway Co. owes a Washington Indian tribe the profits it made from willfully trespassing on the tribe’s land by running 100-car trainloads of crude oil across a reservation easement for nearly nine years without permission from the tribe, a federal judge in the state held on remand after a bench trial.