Native American Law Watch – Spring 2015
Articles:
- Balancing Opposing Cultural and Religious Beliefs on a Shared Reservation: Agency consideration of “Native American culture” not enough to demonstrate narrowly tailored compelling interest
In Northern Arapaho Tribe v. Ashe, the United States District Court for the District of Wyoming contrasted two tribes’ eagle interests, the First Amendment, the Bald and Golden Eagle Protection Act, and the Supreme Court’s Hobby Lobby decision to conclude that the United States Fish and Wildlife’s decision to issue a bald eagle take permit, limited to the areas outside a Reservation shared by the two tribes, violated one tribe’s First Amendment right to the free exercise of religion. Continue Reading
- Federal District Court Upholds Uranium Mining Within a Traditional Cultural Property Without Further NEPA Review and With Abbreviated NHPA Consultation
In Grand Canyon Trust v. Williams, the United States District Court for the District of Arizona granted summary judgment to the U.S. Forest Service (“USFS”) on claims that USFS violated the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”) in 2012 when it issued a Valid Existing Rights Determination and approved resumption of operations at a uranium mine that had been in stand-by status since 1992. This decision will be of interest to the many uranium and other mines in the West that received approvals many years—sometime decades—ago, and are now considering resumption of mining with the rise in commodity prices. Importantly, the court found that continuation of mining under valid existing mineral rights does not trigger NEPA where the prior approved plan of operations provided for stand by operation and continuation of mining, and needs no modification. Further, the court upheld USFS’s abbreviated NHPA consultation process even regarding a newly designated Traditional Cultural Property. Continue Reading
- Washington Court Rules Property Tax Incentive Benefitting Indian Tribes Is Unconstitutional
Agreements for payments in lieu of taxes (PILOTs or PILTs) are used frequently by local governments to incentivize private investment in facilities or infrastructure that will provide a public benefit. A recent case in the State of Washington highlights the risk of reliance on PILTs when a project will be developed on fee land owned by an Indian tribe. In City of Snoqualmie v. King County, the court concluded that the PILT is a property tax under Washington law and is subject to the uniformity requirements of Article VII of the Washington Constitution, which requires that all taxes be uniform upon the same class of property within the territorial limits of the authority levying the tax. Continue Reading
- Indian Reserved Water Rights: Groundwater Included
Most Native American tribes have at least some land that was reserved by the federal government for the purpose of creating a homeland for the Tribe. Under the Winters doctrine, established by the United States Supreme Court in 1908, the reservation generally includes some amount of water necessary to support the purposes of the homeland. In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the court, following the “weight of authority,” ruled that reserved water rights include groundwater rights. Continue Reading
- Jurisdiction over Suits Against Tribal Entities or Employers
Federal courts must often grapple with the question of jurisdiction over claims brought by a plaintiff against a tribal entity or tribe pursuant to statutes of general applicability, such as the Civil Rights Act and the Age Discrimination in Employment Act (“ADEA”) or the Employee Retirement Income Security Act of 1974 (“ERISA”). Challenges to federal court jurisdiction arise either as a result of tribal sovereign immunity or based on the doctrine of exhaustion of tribal remedies. Three recent decisions illustrate these challenges. Continue Reading
Of Note:
- Enforceability of Arbitration Provisions in Agreements with Tribes or Tribal Entities
Over the past few years, federal courts have seen an influx of cases involving challenges to “payday” lending agreements referencing tribal law or courts. Several recent cases provide guidance on how to ensure that arbitration provisions contained in contracts are enforceable, i.e., by specifying a recognized arbitration service provider, specifically making applicable the FAA and its policies, and reviewing the arbitration provisions carefully to ensure that they are not susceptible to ambiguities that could undermine their effectiveness. Continue Reading
- Cross-Commissioned Pueblo Police Officer Must Be Defended by County
The New Mexico Supreme Court recently held that Santa Fe County was required to provide a cross-commissioned Pueblo of Pojoaque police officer a legal defense under the New Mexico Tort Claims Act. Cross-commission agreements are common in New Mexico, where Pueblos and Reservations often exist close to cities or are traversed by state highways, and experience has taught the respective governments that authorizing additional officers to enforce applicable laws is beneficial to all communities. The New Mexico court’s decision ensures that tribal officers—providing services to cities and counties by enforcing their laws—receive the benefit of protection from liability available to other police officers. Continue Reading
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