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Indian Nations Law Update Indian Nations Law Update September 2009 ■ Vol 4, Issue 9 Federal Appellate Court Rejects State Challenge to Tribe’s Off-Reservation Clean Air Act Authority In State of Michigan v. Environmental Protection Agency and Forest County 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 United States 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 Bureau of Indian Affairs (“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 Indian Reservation. 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.
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