Indian Nations Law Update

September 2009 ■ Vol 4, Issue 9

Federal Appellate Court Rejects State Challenge to ’s Off-Reservation Clean Air Act Authority In State of Michigan v. Environmental Protection Agency and Forest Potawatomi Community, 2009 WL 2870619 (7th Cir.), the Forest County Potawatomi Community (“Tribe”) had obtained a fi nal ruling from the Environmental Protection Agency (EPA) designating the Tribe’s reservation in Forest County, Wisconsin, as “Class I” for purposes of the Clean Air Act, triggering stricter air quality controls on air pollution in and around the reservation, extending into the State of Michigan. The Tribe negotiated a memorandum of understanding (MOU) with Wisconsin governing the exercise of the Brian L. Pierson Tribe’s Class I authority relative to off-reservation emissions. Michigan, by contrast, sued the EPA and (414) 287-9456 the Tribe, challenging the EPA’s Class I redesignation. The district court upheld EPA’s decision and the [email protected] Seventh Circuit Court of Appeals affi rmed, holding that (1) Michigan had no standing to challenge the Tribe’s Class I status based on the alleged procedural defect that a Tribal Implementation Plan had not been adopted, (2) EPA’s imposition of standard Class I emission restrictions on Michigan, stricter than those negotiated by Wisconsin under the MOU, was not retaliation from Michigan’s choice to pursue litigation, (3) the parens patriae doctrine pursuant to which states may sue to protect its citizens does not apply to suits against the challenging federal laws, and (4) Michigan’s purported uncertainty regarding its compliance obligations was unfounded. Godfrey & Kahn represented the Tribe in the Seventh Circuit Court of Appeals.

Assistant Secretary Revises Off-Reservation Non-Gaming Fee to Trust Review Process Assistant Secretary Larry Echo Hawk, in an August 25, 2009 memo to (“BIA”) Carl J. Artman (414) 287-9624 Regional Directors, stated that his offi ce will no longer review decision analyses prepared by BIA [email protected] regions for applications to acquire off-reservation land into trust for non-gaming purposes. This declaration rescinds a policy that had been in place since February 5, 2002, and that had become a bottleneck within the Department for processing these applications. Any pending applications have been returned to the regional offi ces for processing in accordance with 25 C.F.R. part 151.

HUD Announces Funding for Supportive Housing for the Elderly and Persons with Disabilities HUD has announced the availability of $420.9 million for supportive housing for the elderly under Section 202 of the 1959 Housing Act and $90.6 million for supportive housing for persons with disabilities under Sections 202 and 811 of the Housing Act of 1959, respectively. These related programs provide capital advances for new construction, rehabilitation or acquisition of housing for occupancy, for at least 40 years, by very low income elderly persons and persons with disabilities. The capital advances bear no interest and need not be repaid if program requirements are met. They are, therefore, the equivalent of grants. In addition, project rental assistance covers the difference between tenants’ contributions toward rent, not to exceed 30% of income, and project operating expenses. Project rental assistance may also be used to provide supportive services. Funds may not be used for nursing homes, medical facilities or community centers.

Sections 202 and 811 have rarely been used in Indian country because private nonprofi t organizations and nonprofi t consumer cooperatives are the only eligible applicants. In recent years, however, several tribes have teamed with nonprofi ts to meet the needs of their elderly and disabled members.

The following is based on a summary of Deadlines for applications are November 13, 2009 for the Section 202 program and legal principles. It is not to be construed November 16, 2009 for the Section 811 program. as legal advice. Individuals should consult with legal counsel before taking any action Assisting tribes with development of new housing is a major focus of Godfrey & Kahn’s Indian Nations based on these principles to ensure their Law practice. The fi rm authored the “Indian Housing Development Handbook” recently published applicability in a given situation. by the National American Indian Housing Council. For more information, contact Brian Pierson at 414-287-9456 or [email protected]. ©2009 Godfrey & Kahn, S.C. 2 Indian Nations Law Update

The Update Goes Green communities” and, therefore, Indian country, and (6) the district Subscribers to Godfrey & Kahn’s Indian Nations Law Update have court’s determination that fee lands continuously held in Indian increasingly asked to receive the Update by email in electronic ownership were reservation lands was not ripe for decision for format. In view of this reader preference and in an effort to lack of facts and would be vacated. minimize environmental impacts, the fi rm will phase out the mailed copy of the Update. In United States v. Doe, et al., 572 F.3d 1162 (10th Cir.), Native minors who vandalized a church on the Ute Reservation were Readers who are currently receiving the Update in hard copy convicted of juvenile delinquency, specifi cally arson under the who wish to continue to receive the Update in the future should Major Crimes Act (MCA), which prohibits the commission of provide their email addresses to Gloria Wilbur at 414.287.9321. certain crimes by Indians “against the person or property of The email version provides for a pdf printout option. Readers who another Indian or other person.” The defendants argued on currently receive the Update by mail and do not regularly use appeal that the church was not a “person” within the meaning email may wish to provide the e-mail address of an administrative of the MCA. The court of appeals affi rmed, agreeing that assistant or secretary who can then print out a hard copy. “person” applied to living individuals and corporations, but not to unincorporated associations but holding that the evidence Selected Court Decisions was suffi cient to show that building was owned by a nonprofi t In Ottawa Tribe of Oklahoma v. Logan, 2009 WL 2497936 (6th corporation. Cir.), the Ottawa Tribe of Oklahoma (“Tribe”) sued to establish that it retains the right to fi sh in Lake Erie, and that the state of In Bressi v. Ford, 575 F.3d 891, 2009 WL 2366552 (9th Cir.), Ohio, through the Director of the Ohio Department of Natural Bressi, a non-Indian, sued four offi cers of the Tohono O‘odham Resources, defendant Sean Logan (“State”), lacks the authority to Police Department (“Tribal Police Department”) and the United regulate this activity. Specifi cally, the Tribe contended that when it States pursuant to 42 U.S.C. § 1983, the Bivens doctrine, the ceded the northern portion of Ohio by the Treaty of Greenville Federal Tort Claims act, and for malicious prosecution under in 1795, it reserved the right to fi sh in Lake Erie. The Sixth Circuit state law after he was stopped and cited at a sobriety checkpoint Court of Appeals disagreed, holding that “because the Tribe, roadblock on a state highway crossing the Tohono O‘odham under these treaties, retained at most a right of occupancy to the Nation . The district court granted summary lands in Ohio, and this right was extinguished upon abandonment, judgment to the tribal offi cers and the United States. On appeal, any related fi shing rights it may have reserved were similarly the Ninth Circuit Court of Appeals reversed the district court’s extinguished when the Tribe removed west of the Mississippi.” grant of summary judgment on the Section 1983 action as it related to the operation of the tribal roadblock, affi rmed the Yankton Sioux Tribe v. Podhransky, et al., 2009 WL 2591319 dismissal of Bressi’s claims relating to his arrest and citations (8th Cir. 2009) addresses the status of the Yankton Sioux Tribe and affi rmed summary judgment on the Bivens action, the right Reservation, established by an 1858 treaty. Originally comprising to privacy under the Arizona Constitution, and the malicious 430,400 acres, 262,3000 acres were distributed to members as prosecution claim. With respect to the reversal of summary scattered allotments under the General Allotment Act (“GAA”) and judgment relative to the roadblock, the court held that once an act of 1891. The remaining 168,000 acres of “surplus” lands the tribal offi cers determined that Bressi was non-Indian, their were sold pursuant to an act of 1894. In 1998, the U.S. Supreme further actions were under color of state law and the roadblock Court held that the reservation was diminished to the extent thereby became subject to constitutional standards applicable to of the surplus lands sold under the 1894 Act. On remand, the suspicionless stops. Tribe and its members sought declaratory and injunctive relief against offi cials of Charles Mix County and the State of South In Upper Skagit Tribe and United States v. Washington, 2009 Dakota to establish that the reservation still included all lands WL 2393488 (9th Cir.), the Upper Skagit Tribe sued to obtain a not ceded under that Act. The district court ruled for the Tribe. ruling that the Suquamish Tribe had no right to fi sh in Skagit Bay On appeal, the Eighth Circuit affi rmed in part and vacated in under the rulings made 30 years earlier in the treaty fi shing part, holding that (1) the 1894 act did not disestablish the rights litigation presided over by Judge Boldt. The district court Yankton Sioux reservation, (2) lands allotted to tribal members granted summary judgment to Upper Skagit, fi nding that it had under the GAA and 1891 Act and still in trust were part of the met its burden of demonstrating that Judge Boldt did not intend reservation, (3) lands allotted to tribal members under the GAA to include these areas in Suquamish’s traditional fi shing grounds. and 1891 Act subsequently patented in fee and sold to non- The Ninth Circuit Court of Appeals reversed, holding that Judge Indians lost reservation status if sold before “Indian country” was Boldt had used the term Puget Sound unambiguously to refer to re-defi ned in 1948 but retained reservation status if patented in all the marine areas inward from the mouth of the Strait of Juan fee simple and sold to non-Indians after 1948, (4) lands taken de Fuca, including Skagit Bay. into trust under the Indian Reorganization Act (IRA) within the boundaries of the old 1858 reservation were not only Indian In High Desert Recreation, Inc. v. Pyramid Lake Paiute Tribe, 2009 country but also restored to the Reservation, notwithstanding WL 2371883 (9th Cir.), High Desert Recreation (HDR) sued the the lack of any declaration of reservation under Section 7 of the Tribe for breach of HDR’s tribal lease relating to marina property IRA, (5) lands purchased by the BIA and held in trust for tribal on the reservation. The district court dismissed for lack of purposes under acts other than the IRA were “dependent Indian subject matter jurisdiction and the Ninth Circuit Court of Appeals 3

affi rmed, holding that (1) the Tribe enjoyed sovereign immunity warrant on March Point and its related businesses. The ATF from suit, (2) a provision in the lease permitting attorney fees did located and seized approximately 3,543,820 contraband cigarettes not constitute an unambiguous waiver of the Tribe’s immunity for and seized business and fi nancial records evidencing payment and purposes of a federal suit because it could relate to suits brought shipment of such cigarettes. (Id.) in tribal court, and (3) federal regulations governing leases of trust land, 25 C.F.R. Part 162, did not waive tribal sovereign In Liska v. McArro, et al, 2009 WL 2424293 (S.D.Cal.), Liska, a immunity for purposes of lease enforcement. descendant of the Pechanga Band of Mission Luiseño Mission Indians (“Tribe”) sued individuals alleged to be on the Tribe’s In New York v. Smith, 2009 WL 2390809 (E.D.N.Y.), Smith was General Council, alleging that the defendants excluded Liska charged with violations for New York fi shing laws. Asserting from the reservation and refused to enroll him as a member, in membership in the Shinnecock Tribe, he removed the case to violation of the Indian Civil Rights Act (“ICRA”). The court federal court, contending that New York State’s regulation of dismissed for failure to state a claim, holding that the exclusion the Tribe violated federal law based on (1) sovereign immunity; of the plaintiff, a non-member of the Tribe, did not constitute a (2) The Fort Albany Treaty of 1664; (3) Wyandanch’s Deed; detention suffi cient to trigger the habeas corpus provisions of the (4) the Contract Clause; (5) the Indian Commerce Clause; (6) ICRA. Congressional Indian Policy; (7) Federal Trust, and (8) United Nations’ International Convention on the Elimination of All Forms In Patchak v. Salazar, et al., 2009 WL 2576039 (D.D.C.), the of Racial Discrimination. The district court granted the State’s plaintiff sued under the Administrative Procedures Act to motion, holding that Smith could make his arguments in State challenge the Secretary of the Interior’s decision to take into trust court. two parcels of land in Allegan County, Michigan, on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“Tribe”) In Paddy v. Mulkey, et al., 2009 WL 2602001 (D.Nev.), Paddy sued pursuant to Section 5 of the Indian Reorganization Act (“IRA”). employees of the Reno-Sparks Indian Colony, alleging that they The Secretary’s decision had earlier been the subject of a lawsuit illegally terminated his employment after he took medical leave by Michigan Gambling Opposition (“MichGO”) alleging that under the Family Medical Leave Act (“FMLA”). The district section 5 of the IRA was an unconstitutional delegation of court stayed the matter on the ground that Paddy should exhaust legislative authority. The D.C. Circuit Court of Appeals affi rmed his tribal court remedies, rejecting Paddy’s argument that the a judgment in favor of the government and the tribe in that tribal court lacked jurisdiction to hear an FMLA claim. suit. Patchak, an owner of land near the parcels, fi led his new challenge after the U.S. Supreme Court granted certiorari in In United States v. Funds from First Regional Bank, 2009 WL the case of Carcieri v. Kempthorne, alleging that the Tribe was 667188 (W.D.Wash.), the federal government brought a civil not under Federal jurisdiction in June 1934, when the IRA was forfeiture action to seize bank account funds held in the name of enacted, and therefore Interior lacks authority to take the Claimants R.K. Company, Inc. d/b/a Cigar Cartel (“RK”) and Global Bradley Property into trust for the Tribe. Patchak alleged that the Trading Company of Tampa, Florida (“Global”), who allegedly sold casino the Tribe intended to build on the site would diminish his and transported unstamped, contraband cigarettes to The Trading enjoyment of his property. The district court dismissed, holding Post at March Point (“March Point”), a privately owned Indian that Patchak lacked “prudential standing,” a doctrine that bars smoke shop located on the Swinomish Indian Reservation. RK is a suits by persons whose interests are “so marginally related to tobacco wholesaler licensed in the State of Washington and Global or inconsistent with the purposes implicit in the statute that it is a tobacco wholesaler licensed in the State of Florida. Claimants cannot reasonably be assumed that Congress intended to permit RK and Global moved for summary judgment, requesting that the suit…. Plaintiff … fails to point to any explicit, or implicit, the Court dismiss the Government’s Complaint and order the indication in the IRA or its legislative history that the statute is return of the funds seized from their bank accounts, arguing intended to protect, or benefi t, an individual in plaintiff’s position.” that the cigarettes sold and transported to March Point were not “contraband” under the Contraband Cigarette Traffi cking In re Fess, 408 B.R. 793, 2009 WL 2341831 (Bkrtcy.W.D.Wis.) Act (the “CCTA”). The court denied the motion, fi nding that the involved a member of the Ho-Chunk Nation who had fi led for Claimants failed to comply with the state and federal regulations bankruptcy protection under chapter 13 of the Bankruptcy Code governing cigarettes and that the gross receipts, not just profi ts, but later converted to a chapter 7 proceeding. At the motion of were subject to forfeiture. the bankruptcy trustee, the court directed the Ho-Chunk Nation to turn over per capita income distributions otherwise intended Beginning in 2003, federal offi cials began an investigation of for Fess to the trustee, but the Ho-Chunk Nation refused to honor traffi cking in contraband cigarettes in Washington State. (Compl. the order. The chapter 7 trustee moved that all future per capita ¶ 5 (Dkt. No. 1 at 2).) From 2003 and continuing into 2007, income distributions received by Fess be turned over to the unstamped contraband cigarettes were sold to undercover bankruptcy estate, but the court denied the motion, holding that offi cers from March Point and its related businesses. (Id.) The (1) in a case converted to chapter 7, property of the bankruptcy investigation revealed that the unstamped contraband cigarettes estate consisted only of property under the debtor’s control on were shipped to March Point from outside Washington. (Id.) the date of conversion, (2) tribal law controlled whether the Based upon this information, agents from the Bureau of Alcohol, debtor had a right to future per capita payments as of the date of Tobacco, Firearms and Explosives (the “ATF”) executed a search conversion, and (3) under Ho-Chunk law, the debtor had no legal Receive Future Client Updates and Alerts Via E-mail If you would prefer to receive this type of information by e-mail, please send your name, address, phone number and e-mail address to [email protected].

right to future per capital payments. consider all amounts included in O.S.’s federal income tax return, including $196,800 in regular Indian Nations In Three Affi liated Tribes of the Fort Berthold Indian per capita disbursements; $83,333.32 in bonus per Team Members Reservation v. United States, 2009 WL 2223040 capita payments; $4,428 for education and training; (D.D.C.), the Three Affi liated Tribes sued the $52.64 for tribal life insurance; and $35,162.25 for Appleton offi ce: U.S. Department of Health and Human Services legal fees. The court ruled that all of the income and Michael Lokensgard for declining to approve provisions of a contract benefi ts should be included in the calculation except ([email protected]) proposed by the Tribes under the Indian Self the amount the Tribe paid to O.S.’s attorney in fees: Choua Vang ([email protected]) Determination Act (“ISDA”) that included contract “We agree with O.S. that because the payments support costs for health care services the Tribes go directly to his attorneys, and are not part of his Green Bay offi ce: proposed to provide and that authorized services income or cash fl ow available for child support, Ronald Pfeifer to non-Indians pursuant to the Indian Health Care the attorney fees benefi t may be considered only ([email protected]) Improvement Act. The government moved to dismiss under section 4057 as a circumstance potentially on the ground that the interests of at least nineteen warranting an upward departure from guideline Madison offi ce: tribes currently receiving contract support costs amount.” Jed Roher under existing ISDA contracts could be impaired and ([email protected]) that these tribes, therefore, were required parties In Anderson & Middleton Company v. Salazar, et Mike Wittenwyler for purposes of Rule 19. The government argued al., 2009 WL 2424446 (W.D.Wash.) the Bureau of ([email protected]) further that it had not waived its immunity to permit Indian Affairs (BIA) had received an application the Tribes’ suit relating to services to non-Indians. by an Indian landowner to sell 26 parcels of land, The court denied the motion, holding that (1) the making up 1,462.58 acres within the Quinault Milwaukee offi ce: other tribes were not necessary parties because Indian reservation. In June 2007, the BIA issued Mike Apfeld ([email protected]) the government could adequately represent their an invitation for bids for the lands. The Anderson Carl Artman interests, and (2) the waiver of the government’s & Middleton Company (“A&M”) submitted bids on ([email protected]) sovereign immunity for claims “arising under” the 20 of the parcels and the Quinault Indian Nation Debra Baesemann ISDA extended to the government’s refusal to (“QIN”) bid on all 26 parcels pursuant to the ([email protected]) John Clancy authorize provision of services to non-Indians in the Indian Land Consolidation Act (“ILCA”). The ([email protected]) Tribes’ proposed contract. BIA determined that QIN had the right to match Todd Cleary A&M’s bid and purchase all 26 parcels but that QIN ([email protected]) In Wynn v. Superior Court, 2009 WL 2370990 (Cal. forfeited its right when, contending that it had the Daniel Geraghty ([email protected]) App. 5 Dist.), Wynn had been born out of wedlock in right to purchase the parcels at “fair market value” Thomas Griggs 1951. When she was adopted in 1952, a new birth regardless of A&M’s bid, it failed to make a deposit ([email protected]) certifi cate was issue indicating her adoptive parents within the period prescribed by law. Both parties Arthur Harrington ([email protected]) as her parents. Wishing to apply for membership in appealed. The district court affi rmed the Interior Brett Koeller an Indian tribe, she applied to the family court for Board of Indian Appeals (IBIA) determination that ([email protected]) a birth certifi cate refl ecting her correct biological QIN had a right to match A&M’s bid but was not Carol Muratore parents. The court denied the request on the permitted to purchase at fair market value but ([email protected]) Tom O’Day ground that the birth certifi cate issued following vacated BIA’s determination that QIN forfeited by ([email protected]) her adoption was legally correct. On appeal the failing to make a deposit: “QIN had a statutory Brian Pierson California appellate court ruled that Wynn was right to match the highest bid, but did not have the ([email protected]) entitled to (1) an adjudication of her true parentage right to preempt the bidding process and purchase Roxana Wizorek ([email protected]) and, (2) if the court determined that plaintiff’s trust allotments at an appraised fair market value. original birth certifi cate was not accurate, a new The IBIA’s decision is affi rmed in its entirety. … birth certifi cate refl ecting her biological parents. The BIA acted arbitrarily and capriciously when it forfeited QIN’s deposit and right to purchase the In M.S. v. O.S., 176 Cal.App.4th 548, 97 Cal. 20 allotments subsequent to the IBIA decision. Rptr.3d 812, 2009 WL 2413662 (Cal.App. 4 Dist.), QIN’s interest in the consolidation of tribal lands M.S. sued O.S., a member of an Indian tribe, for under ILCA is not served when it is precluded child support. M.S. argued that, in calculating from purchasing the land based on a procedural the amount of monthly support, the court should technicality….”

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