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

Mealey's Native American Law

October 23, 2023
Minn. High Court Creates New General Rule Of Practice For Indian Child Welfare Act

SAINT PAUL, Minn. — The Minnesota Supreme Court announced in an order that a new General Rule of Practice for the District Courts will go into effect in January 2024 that will require parties and courts in third-party custody actions to take affirmative steps to determine whether a child is an Indian child for the purposes of the Indian Child Welfare Act (ICWA).
October 23, 2023
Kan. Federal Judge Dismisses Some Of Native American Woman’s Discrimination Claims

KANSAS CITY, Kan. — A Native American woman who says she was subject to racial harassment and discrimination by her employer failed to allege facts in support of her hostile work environment claim and failed to bring her retaliatory harassment claim under Title VII of the Civil Rights Act before the Equal Employment Opportunity Commission, a Kansas federal judge found Oct. 20 in partly granting the employer’s motion to dismiss.
October 20, 2023
Miss. Federal Judge: Tribal Remedies Must Be Exhausted Before Filing Federal Suit

NORTHERN JACKSON, Miss. — A Mississippi federal judge stayed claims brought by two men regarding a COVID-19 mask mandate enforced by the Mississippi Band of Choctaw Indians (MBCI) at one of the tribe’s casinos because the men failed to exhaust their tribal court remedies before bringing their action in federal court.
October 20, 2023
Fracking Advocates Say Ruling On President Biden’s Lease Moratorium Is Moot

ANCHORAGE, Alaska — Hydraulic fracturing advocates have moved in Alaska federal court for vacatur of the court’s ruling granting summary judgment to the Biden administration in a dispute over the president’s moratorium on federal fracking leases, arguing that the claims in the case are now moot because the U.S. Department of the Interior (DOI) has canceled the leases and the cancellation constitutes a new final agency action.
October 19, 2023
9th Circuit: Northwestern Shoshone Band Maintained Hunting Rights In 1868 Treaty

SAN FRANCISCO — The Northwestern Band of the Shoshone Nation maintained its hunting rights in an 1868 treaty it signed with the United States without the condition that the tribe maintain permanent residence on a reservation, a Ninth Circuit U.S. Court of Appeals panel found in reversing and remanding a trial court’s decision to dismiss the tribe’s case for declaratory judgment.
October 18, 2023
Washington Panel: Tribes Have Inherent Authority To Tax Tobacco On Reservations

SEATTLE — An arbitration panel fundamentally misunderstood tribal sovereignty when it found that tribal excise taxes on tobacco sales on reservations in Washington were authorized by the state through compact agreements it entered into with several tribes after the state had reached a settlement with tobacco companies over cigarette sales, a Washington appellate panel held in affirming a trial court’s interpretation of the terms of the legislation that was enacted in accordance with the settlement.
October 17, 2023
Following Settlement, High Court Dismisses Clash Over Sacred Tribal Site

WASHINGTON, D.C. — The U.S. Supreme Court dismissed a dispute over the destruction of a sacred Native American site for a highway expansion in Oregon after the parties filed a joint stipulation of dismissal in which they informed the court that they reached a settlement agreement.
October 16, 2023
Supreme Court Grants Certiorari In 2nd Challenge To Chevron Deference

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 13 granted a petition for a writ of certiorari in a second case challenging the doctrine of Chevron deference and ordered that it be briefed on a schedule allowing argument “in tandem” with a pending case pertaining to the same issue, both of which involve challenges to regulations that require fishing vessels to pay federal monitors.
October 16, 2023
Montana Federal Judge: Prisoner States Plausible Claims Against Blackfeet Nation

GREAT FALLS, Mont. — A man sentenced to more than a year in prison by the courts of the Blackfeet Nation plausibly states in his petition for a writ of habeas corpus against the tribe that he was denied effective assistance of counsel and that his sentence was improper, a Montana federal judge found in denying the nation’s motion for judgment on the pleadings.
October 16, 2023
Before Supreme Court, Tribes Respond In Health Care Funding Dispute

WASHINGTON, D.C. — In two separate cases before the U.S. Supreme Court, the Northern Arapaho Tribe and the San Carlos Apache Tribe responded to petitions filed by the secretary of Health and Human Services asking the same question: Whether the Indian Self-Determination and Education Assistance Act (ISDA) requires the Indian Health Service (IHS) to pay “contract support costs” for expenditures of income collected by Indian tribes from third parties under self-determination contracts.
October 13, 2023
Supreme Court Stays D.C. Circuit’s Mandate Regarding Tribe’s Online Gaming Pact

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 12 approved an application filed by two casinos and stayed the District of Columbia Circuit U.S. Court of Appeals’ mandate for two cases in which it found that a gaming compact between Florida and the Seminole Tribe of Florida, which grants the tribe exclusive rights to offer sports betting services in the state, was lawful.
October 12, 2023
Ariz. Panel: State Court Lacks Jurisdiction To Hear Tort Case Against Tribe Member

PHOENIX — State courts lack jurisdiction to hear tort cases brought against tribe members for actions that occurred on reservation land even if the actions took place on a state-maintained highway, an Arizona appellate panel found in affirming a trial court’s decision to dismiss two consolidated wrongful death cases arising from a traffic accident for lack of subject matter jurisdiction.
October 12, 2023
Tribal Court Says Council’s Actions In Authorizing Suit Were Unconstitutional

MANISTEE, Mich. — The Little River Band of Ottawa Indians Tribal Council violated the tribe’s constitution by authorizing a suit challenging the validity of the employment of the tribe’s prosecutor in a closed session because the council member’s votes were not recorded, a tribal judge found in granting two motions for summary disposition of the case.
October 11, 2023
Tribal Supreme Court: Too Early To Consider Standing Arguments In Adoption Case

OKMULGEE, Okla. — It is irrelevant to the issue of standing that the relatives of a minor child are not among the classes of individuals permitted to file an application for termination of paternal rights in the Muscogee (Creek) Nation District Court because the two never filed such an application, the Muscogee (Creek) Nation Supreme Court opined in finding that an interlocutory appeal regarding the adoption of the child was unripe.
October 11, 2023
Washington Administrative Law Judge: High Court Decision Preempts Tax On Tribe

TACOMA, Wash. — A Washington Indian tribe does not have to pay state tax on gasoline it hauls within the state because it has a right under its treaty with the United States to travel unburdened on state highways, an administrative law judge (ALJ) found in applying a U.S. Supreme Court judgment from 2019 to an appeal over a tribal company’s tax returns.
October 10, 2023
2 Alaskan Tribes Appeal Water Permit Approvals For Planned Gold Mine

ANCHORAGE, Alaska — Two Native American tribes have filed a notice of appeal to the state Supreme Court of a state district court’s finding that the state’s approval of 12 water permits for a proposed gold mine was not unconstitutional or arbitrary.
October 04, 2023
Groups: Court Should Strike Willow Project Parties’ Extra-Record Documents

ANCHORAGE, Alaska — A coalition of environmental groups and Native Americans on Oct. 3 filed a brief in Alaska federal court arguing that it should strike extra-record materials submitted by intervenor defendants in a dispute over hydraulic fracturing operations in the National Petroleum Reserve-Alaska as part of what is known as the Willow Project. The groups say the intervenors fail to carry their burden to demonstrate that submission of their extra-record documents was proper.
October 03, 2023
Supreme Court Denies Tribe’s Petition On Hydroelectric Dam And The Futility Doctrine

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for a writ of certiorari filed by a Washington Indian tribe that argued that its original action, asking whether the construction of a dam in the Skagit River used for hydroelectric power violated provisions of the U.S. and Washington constitutions as well as state and federal statutes by not allowing for the passage of salmon and other migratory fish, should not have been dismissed under the futility doctrine.
October 03, 2023
Tribal Business Council’s Sovereign Immunity Won’t Be Considered By Supreme Court

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for a writ of certiorari filed by a member of an Indian tribe and her company that asserted that sovereign immunity does not bar the fraud and racketeering claims the two brought against an Indian tribe’s business council because the council waived its immunity in a mandatory arbitration clause in a joint venture agreement signed by the parties.
October 02, 2023
9th Circuit Says Navajo Law Does Not Govern Traffic Accident On Federal Highway

SAN FRANCISCO — Despite the fact that a traffic accident occurred within the boundaries of the Navajo Nation, a Ninth Circuit U.S. Court of Appeals panel found that a district court did not err in dismissing claims raised under Navajo law because the accident occurred on a federal highway, which renders the accident site nontribal land.
October 02, 2023
Judge Moots Cross-Motions In Gila River Subflow Case Until Related Appeal Decided

TUCSON, Ariz. — An Arizona federal judge held that cross-motions for summary judgment involving alleged unlawful pumping of Gila River subflow are moot and stayed them until after the Ninth Circuit U.S. Court of Appeals issues a ruling in a related appeal.
October 02, 2023
Oregon Water Department Won’t Respond To Water District’s High Court Petition

WASHINGTON, D.C. — The Oregon Water Resources Department (OWRD) has waived its right to respond to a petition for a writ of certiorari in which the Klamath Irrigation District seeks review of an appeals court’s application of the doctrine of prior exclusion jurisdiction in an ongoing water adjudication under the McCarren Amendment.
October 02, 2023
Magistrate Judge Recommends Summary Judgment Against Klamath Tribes’ ESA Case

MEDFORD, Ore. — An Oregon federal magistrate judge has recommended that a judge grant summary judgment in favor of the U.S. Bureau of Reclamation and against the Klamath Tribes, finding that the agency has “equal obligations” to three species of fish in the Upper Klamath Lake and in the Klamath River under the Endangered Species Act (ESA) and did not prioritize river salmon over suckers in the lake.
September 29, 2023
Virginia Federal Judge Awards $43 Million In Tribal Lending RICO Suit

RICHMOND, Va. — In light of several stipulations regarding damages and defenses, a Virginia federal judge ordered a nontribal member of a tribally owned payday lending business to pay more than $43 million to a class of customers who signed usurious loan agreements with the business for claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).
September 27, 2023
Inmate’s Religious Claims Now Moot As Grooming Policy Changed, Federal Judge Says

VICTORIA, Texas — Whether the Texas Department of Criminal Justice’s (TDCJ) grooming policy violates the First Amendment and federal law by failing to permit inmates to wear their hair in accordance with Native American religious beliefs is now moot because the TDCJ changed its policy during the pendency of an inmate’s case, a Texas federal judge found in dismissing the inmate’s claims without prejudice.