FEDERAL INDI AN LAW Newsletter of the Federal Bar Association Indian Law Section Summer 2009 Issue u u A WORD FROM T HE CHA I R Committee have been dis- cussing potential panel topics By Elizabeth Ann Kronk and speakers for the 2010 Greetings! As you may know, I have been serving as the acting Annual Conference. If you chair of our section for the past few months, as our section chair, have any ideas to share, please Allie Greenleaf Maldonado, recently gave birth to a beautiful send your feedback to the baby girl. Although we miss Allie’s leadership, we are all incred- Annual Conference chair, ibly happy for Allie and wish her and her family all the best. Prof. Kristin Carpenter, at [email protected]. D.C. Midyear Conference It has been a truly humbling experience to serve as your acting Congratulations To The chair even these past months as there is so much going on within Newsletter Committee! our section. Our section Midyear Conference co-chairs, Heather On Sept. 12, 2009, Fed- FBA PRESIDENT LA WRENCE BA C A Dawn Thompson and Katie Morgan, have put together what prom- eral Indian Law received the A ND EL IZ ab ETH KRON K A T THE FBA ises to be a stellar conference in Washington, D.C. We will return Outstanding Newsletter ANNU al MEETING A ND CONVENTION IN Okla HO ma CITY to the National Museum of the American Indian for the Midyear Award at the national FBA Conference, as it was an excellent venue last year. Our Midyear Annual Meeting and Convention in Oklahoma City. This is Conference is scheduled for Friday, Nov. 13, 2009. Our conference a great honor, as the section has never previously received this co-chairs have put together a wonderful day of panels, including: award and our section newsletter “beat out” many other excellent Ethics: Inter-Tribal Investment and Ownership; Tribal Bankruptcy: newsletters for the award. We all owe our Newsletter Committee Options During Difficult Economic Times; Beyond Land-Into-Trust: a tremendous amount of gratitude for the time and effort they Creative Land Ownership Options for Tribes; Civil & Regulatory give to creating this now award-winning newsletter that is of great Jurisdiction Fix; and a short panel on a federal court update. I am benefit to us all. Please join me in congratulating the members of confident that this year’s Midyear Conference will be an excellent our Newsletter Committee: Trent Crable, Neal DuBois, Tim educational opportunity for all, as well as the fun experience that Evans, Kate Fort, Cameron Fraser, Vanessa Ray-Hodge, Casey we have all come to expect from FBA Indian Law Section events. I Ross-Petherick, and Ann Tweedy. KUDOS! If you are interested look forward to seeing you in D.C. on November 13! in contributing to our award-winning newsletter, please contact the editor in chief, Bill Wood, at [email protected]. 2010 Annual Conference Our Annual Conference chair, Professor Kristen Carpenter, is Section/Division Leadership Training Program Update also already hard at work planning our Annual Conference, which In August, I had the opportunity to attend the annual sec- will once again take place at the Hilton Buffalo Thunder Resort tion and division leadership training program at the FBA on the Pueblo of Pojoaque (just north of Santa Fe, N.M.) on April Headquarters. As always, I was truly impressed with the dedication 9–10, 2010. Professor Carpenter is working with three co-chairs— Professor Angela Riley, Paul Spruhan, and Tracy Toulou—to CHA I R continued on page 12 plan this year’s Annual Conference. Our conference chair and co- chairs bring a wealth of knowledge and experience to our Annual INS I DE TH I S ISSUE Conference, and I am confident that the Annual Conference will only continue to exceed expectations. This year’s conference Indian Law Cases, News, and Notes also promises to be our best one yet because it is our 35th Annual Supreme Court Update ...............................................................page 3 Conference. In recognition of this auspicious event, we have Inside the Beltway Update ..........................................................page 4 formed an Advisory Committee of some of the foremost experts in Southeast Update ........................................................................page 6 Indian law to work closely with our wonderful Annual Conference Southwest Update .......................................................................page 7 Co-chairs in planning the upcoming Annual Conference. The California and Hawai’i Update .................................................page 8 35th Anniversary Advisory Committee, chaired by Lawrence Pacific Northwest Update ...........................................................page 9 Baca, is composed of: Bob Clinton, Sam Deloria, John Echohawk, Feature Articles Walter Echo-Hawk, Doug Endreson, Paul Frye, Carole Goldberg, Tribal Leaders Weigh In on Climate Change Legislation ........page 10 Heather Kendall-Miller, Arlinda Locklear, Wilson Pipestem, Negotiations to Resume on Draft of the American Judith Royster, Gloria Valencia-Weber, and Sue Williams. The Declaration on the Rights of Indigenous Peoples.......................page 11 Annual Conference co-chairs and 35th Anniversary Advisory Federal Indian Law Federal Indian Law Newsletter Board William Wood Holland & Knight LLP is published by the Federal Bar Association Indian Law Section. ©2009 The Federal Bar Assoc ED it OR IN CH I E F Dawn Baum CON T R I BU ti NG ED it OR , WASH I NG T ON , D.C. Trent Crable Law Offices of Kyme A.M. McGaw PLLC CON T R I BU ti NG ED it OR , NOR T H W ES T REG I ON Neal DuBois Taleff Law Office P.C. CON T R I BU ti NG ED it OR , RO C KY MOUN T A I N REG I ON Timothy Q. Evans Holland & Knight LLP CON T R I BU ti NG ED it OR , SOU T HEAS T REG I ON Kate Fort Michigan State University College Of Law FEA T URES ED it OR Cameron Fraser Michigan Indian Legal Services CON T R I BU ti NG ED it OR , U.S. SUPREME COUR T iation. All rights reserved. The opinions expressed herein are solely those of the authors unless otherwise specified. Sarah Perlman, Managing Editor. Vanessa Ray-Hodge Akin Gump Strauss Hauer & Feld LLP CON T R I BU ti NG ED it OR , CAL if ORN I A /HA W A I ’I Casey Ross-Petherick Native American Legal Resource Center, Oklahoma City University School Of Law CON T R I BU ti NG ED it OR , OKLAHOMA Ann Tweedy California Western School Of Law CON T R I BU ti NG ED it OR , U.S. SUPREME COUR T FBA Indian Law Section Executive Board Elizabeth Ann Kronk University of Montana School of Law CHA I R Jennifer Harvey Weddle Greenberg Traurig LLP DEPU T Y CHA I R Heather Dawn Thompson Sonnenschein Nath & Rosenthal LLP SE C RE T ARY Matthew L.M. Fletcher Michigan State University College of Law TREASURER D. Michael McBride Crowe & Dunlevy, P.C. IMMED I A T E PAS T CHA I R Lawrence R. Baca CHA I R EMER it US AND FBA PRES I DEN T 2 Federal Indian Law IND I AN LA W CASES , NE W S , AND NO T ES the exceptions in Montana v. United Sates and the role that tribal ownership of the land plays in establishing tribal Supreme Court Update est fire. In an attempt to attract the jurisdiction. Concluding that tribal The big news from the Supreme attention of the helicopter, she set a court jurisdiction was colorable under Court was the confirmation of Justice signal fire which grew into the Chediski the circumstances, the court noted that Sonia Sotomayor on Aug. 6, 2009. In forest fire that later combined with the tribe made “a compelling argu- addition, three petitions for certiorari the Rodeo fire. The combined Rodeo- ment that the regulations at issue are of particular interest to Indian County Chediski fire caused millions of dol- intended to secure the tribe’s political have been filed so far in the 2009-2010 lars in damage and burned more than and economic well-being, particularly term: Harjo v. Pro-Football Inc.; Elliot 400,000 acres. The White Mountain in light of the result of the alleged vio- v. White Mountain Apache Tribal Court; Apache Tribe brought eight claims lations of those regulations in this very and Barrett v. United States. against Elliott in tribal court, including case: the destruction of millions of dol- On Sept. 14, 2009, petition for alleged violations of tribal executive lars of the tribe’s natural resources.” certiorari was filed in Harjo v. Pro- orders, the tribal game and fish code, Elliott asks the Supreme Court to Football Inc. from the Court of Appeals the tribal natural resources code, and resolve the following question: “Can for the District of Columbia Circuit. common law negligence and trespass. a tribal court assert jurisdiction over a In the late 1990s, a group of Native Elliott brought a motion to dismiss for nonconsenting non-Indian and force Americans petitioned to cancel the lack of jurisdiction, which the tribal her to defend against civil claims in Washington Redskins football team’s court denied; she then sought inter- that unfamiliar forum when it is plain trademark registrations on the grounds locutory review with the tribal appel- that the tribal court has neither regula- that the registrations disparaged Native late court, which denied her request on tory nor adjudicatory jurisdiction and peoples. In 1998, the Trademark Trial the ground that the tribe’s code did not where the conduct at issue by the non- and Appeal Board cancelled the regis- grant the court with jurisdiction to hear consenting non-Indian on tribal land trations, and the team sought judicial interlocutory appeals.