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Indian Nations Law Focus May 2013, Volume 8, Issue 5

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Indian Nations Law Focus May 2013, Volume 8, Issue 5 Indian Nations Law Focus May 2013, Volume 8, Issue 5 U.S. DOE Announces $7 Million to Promote Clean Energy in Tribal Communities The U.S. Department of Energy (DOE) recently announced up to $7 million in new funding opportunities to help deploy clean energy projects in tribal communities. These grants can help tribes reduce reliance on fossil fuels and promote economic development and energy independence. The “Community-Scale Clean Energy Projects in Indian Country” ($2.5 to $4.5 million Brian L. Pierson total available funds) grant program will aid tribes in installing clean energy systems 414.287.9456 that reduce fossil fuel use by at least 15% in either new or existing tribal buildings. [email protected] Individual awards may range from $50,000 to $1.5 million, with a minimum 50% cost share required, and DOE anticipates making 10 to 20 awards. The “Tribal Renewable Energy and Energy Efficiency Deployment Assistance” grant “The Godfrey & Kahn Indian program (approximately $2.5 million total funds available) will aid tribes in installing Nations Law Practice Group renewable energy and energy efficiency technology that reduce fossil fuel use in provides a full range of legal existing tribal buildings by at least 30%. Individual awards may range from $50,000 to services to Indian nations, $250,000, with a minimum 50% cost share required. DOE anticipates making 10 to 20 tribal housing authorities, tribal awards. More information on DOE’s funding announcement can be found here: http:// corporations and other Indian apps1.eere.energy.gov/news/progress_alerts.cfm/pa_id=871. country entities, with a focus on business and economic Godfrey & Kahn has assisted tribes with the preparation of renewable energy and development, energy and energy efficiency grant applications that have resulted in total awards of more than environmental protection, and $5 million. Godfrey & Kahn also assists tribes in packaging federal grants with other housing development.” grants and tax incentives, including the 30% federal tax credit for renewable energy projects, state and/or utility grants and New Market Tax Credits. For more information about Godfrey & Kahn’s energy-related Indian country experience, or a free consultation, contact Indian Nations Law Practice Group leader Brian Pierson at 414.287.9456 or [email protected], or Environment and Energy Strategies Practice Group leader John Clancy 414.287.9256 or [email protected]. Godfrey & Kahn to Present on Financing Renewable Energy at National American Indian Housing Council Convention in Chicago May 22 The National American Indian Housing Council (NAIHC) is holding its annual convention and trade show at the downtown Sheraton in Chicago May 21-23, 2013. Godfrey & Kahn attorneys Brian Pierson and John Clancy will join with Kevin Fitzgibbons to present “Financing Wind, Solar and Bio-Power for Indian Housing” from 8:15-10:15 a.m. on Wednesday, May 22. Kevin is the immediate past administrator of the U.S. Department of Housing and Urban Development’s Eastern Woodlands Office of Native American Programs. The panel will describe successful Indian Nations Law Focus May 2013 | Page 1 renewable energy initiatives in Indian Energy Strategies Practice Group the tribe,” and (3) “[a]dditionally, country and discuss tax incentives leader John Clancy, 414.287.9256 or tribal laws may be fairly imposed and other funding sources that may [email protected]. on nonmembers if the nonmember enable tribes to convert to green consents, either expressly or through energy without spending tribal funds. Selected Court his or her actions.” For more information, visit: http:// Decisions naihc.net/index.php/events/annual- In U.S. v. Robertson, 709 F.3d 741 (8th convention. In Grand Canyon Skywalk Cir. 2013), Robertson, a member of Development, LLC v. ‘Sa’ Nyu Wa Inc., the Spirit Lake Tribe in North Dakota Godfrey & Kahn to 2013 WL 1777060 (9th Cir. 2013), the (Tribe), administered the Tribe’s Low Present on Financing plaintiff had entered into a business Income Home Energy Assistance Renewable Energy at agreement with the Hualapai Indian Program (LIHEAP). From 2007 Tribe (Tribe) pursuant to which the through 2011, Robertson approved Albuquerque Conference parties would develop a skywalk over applications for heating assistance June 11 the Grand Canyon, on trust land within by her adult daughters which did not the Tribe’s reservation, as a tourist disclose Robertson as a resident of The “Developing Tribal Energy attraction. When a dispute arose, the households that would receive this Resources and Economies the Tribe enacted a condemnation benefit, nor her substantial income. Conference” will be held June 10-12, ordinance and instituted proceedings Robertson was convicted of knowingly 2013 at Sandia Resort and Casino, to condemn the plaintiff’s property and willfully embezzling, stealing, Albuquerque, New Mexico. Godfrey rights. The plaintiff filed a suit in and misapplying tribal property & Kahn attorneys Brian Pierson and federal court to enjoin the Tribe from in violation of 18 U.S.C. § 1163. John Clancy will join with Forest enforcing its condemnation ordinance. On appeal, she contested the district County Potawatomi Attorney General The district court dismissed on the court’s refusal to instruct the jury on Jeffrey Crawford to present “Casino ground that the plaintiff was required her theory that she believed in “good Energy Consumption and the Seven to exhaust tribal court remedies. faith” that the household was under Generations Ethic” from 3:00 to The Ninth Circuit Court of Appeals the 150% threshold for benefits. The 4:30 pm on Tuesday, June 11. The affirmed, holding that plaintiffs had Eighth Circuit affirmed: “Robertson presentation will describe successful not shown that the Tribe’s bad faith knowingly approved applications Indian country projects and focus on justifying an exception to the rule that by her daughters that failed to financing strategies that enable tribes tribal remedies must be exhausted and disclose the facts most essential to to convert to cleaner, less expensive that there was no clear lack of tribal eligibility—how many people were energy using federal tax incentives and jurisdiction since (1) the skywalk was living in the household, and what was other non-tribal funding sources. For located on tribal trust land, the rule their combined income. Robertson more information, visit: http://www. of Montana v. U.S., restricting tribal was clearly aware of the importance regonline.com/builder/site/Default. jurisdiction over non-Indians, did not of those disclosures because her aspx?EventID=1155048 apply and the Tribe could exercise formal duties included verifying jurisdiction pursuant to its “inherent income disclosures and personally Godfrey & Kahn works with tribes powers to exclude and manage its reviewing numerous applications to maximize outside funding sources own lands” where there were no for completeness and accuracy. Her to finance green energy and promote competing state interests, and (2) even good faith theory ignored Robertson’s tribal energy independence. For more if Montana v. U.S. applied, the Tribe responsibilities as LIHEAP program information about Godfrey & Kahn’s could exercise jurisdiction under the Coordinator.” Indian country experience, or a free exceptions for “consensual” dealings In Bristol Bay Area Health consultation, contact Indian Nations with the Tribe and conduct that Corporation v. United States, 2013 Law Practice Group leader Brian “threatens or has some direct effect on WL 1715605 (Fed.Cl.), Bristol Bay Pierson at 414.287.9456 or bpierson@ the political integrity, the economic Area Health Corporation (Bristol Bay) gklaw.com, or Environment and security, or the health or welfare of Indian Nations Law Focus May 2013 | Page 2 sued in the Court of Federal Claims, from plaintiffs’ delay in commencing Land), with $25,000 withdrawn from alleging that the government breached suit, (3) the Borough qualified as its main investment account. In 2006, a statutory and contractual duty when a “museum” for purposes of the the Nation requested that the Park City it entered into contracts with plaintiff NAGPRA, and (4) the plaintiffs were Land be accepted in trust for gaming under the Indian Self-Determination entitled to repatriation of Thorpe’s purposes under discretionary authority and Education Assistance Act remains: “The [NAGPRA] recognizes granted to the Secretary of the (ISDEAA) for plaintiff to provide the importance of compliance with Interior under Section 5 of the Indian health care services to tribal members Native American culture and tradition Reorganization Act. In 2008, the but failed to pay plaintiff for certain where dealing with the remains of one Nation changed its position, asserting contract support costs from fiscal years of Native American heritage, and this that acquisition of the property in trust 1993 through 1999. The court denied is a case which fits within the reach of was mandatory under the Settlement the government’s motion to dismiss, this congressional purpose.” Act. The State of Kansas objected, holding that (1) the question whether arguing that the Nation had used the six-year statute of limitations was In Poulson v. Tribal Court for the the entire appropriated $100,000 to tolled was not ripe for determination, Ute Indian Tribe of the Uintah and purchase the Shriner Tract, property in (2) the plaintiffs’ claims for contract Ouray Reservation, Not Reported Kansas City that had generated lengthy support costs were sufficiently in F.Supp.2d, 2013 WL 1367045 litigation. When the Secretary had plausible to survive a motion to (D.Utah), the Ute Indian Tribe gave not acquired the Park City Land by dismiss, and (3) additional discovery notice to Edson Gardner and Lynda 2011, the Nation sued seeking a court was necessary to determine whether Kozlowicz that their licenses to order that the Secretary immediately the plaintiffs’ claims were barred practice as lay advocates before the take the land into trust under the by res judicata based on a previous Ute Tribal Court would be suspended mandatory acquisition provisions of settlement.
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