Native American Resources Committee Report

Judicial Developments

A. United States Supreme Court

1. Oklahoma v. Castro-Huerta

On June 29, 2022, in a 5-4 decision, the U.S. Supreme Court issued what became its most discussed – and controversial – Indian law decision of the term, notable primarily for its departure from long-held principles of Indian law, finding states possess concurrent criminal jurisdiction over non-Indian crimes against Indians in Indian country under federal law, and its rejection of Worcester v. Georgia. The Court reversed the decision of the Oklahoma Court of Criminal Appeals, finding that Oklahoma lacked jurisdiction over crimes committed by a non-Indian against an Indian within Indian country. The majority’s analysis took the position that “the Court’s precedents establish that Indian country is part of a State’s territory and that, unless preempted, States have jurisdiction over crimes committed in Indian country.” In so doing, the Court rejected arguments that the General Crimes Act (GCA) served to preempt state prosecution over certain crimes, distinguishing the GCA from the Major Crimes Act (MCA), noting the MCA, by its terms, explicitly subjects defendants to the same laws as those subject to the United States’ exclusive jurisdiction, whereas the GCA does not contain similar language. Similarly, the majority rejected the potential preemptive effect of Public Law 280.

Justice Gorsuch penned a scathing dissent. Following a detailed recitation of the legal and factual history rejected by the majority, Gorsuch wrote that

the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may “exercise jurisdiction.” But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.

Gorsuch rejected the majority’s fundamental premise – that states possess jurisdiction within Indian country unless preempted.

Tribal sovereignty means that the criminal laws of the States “can have no force” on tribal members within tribal bounds unless and until Congress clearly ordains otherwise. After all, the power to punish crimes by or against one’s own citizens within one’s own territory to the exclusion of other authorities is and has always been among the most essential attributes of sovereignty.

In light of this ruling, the Court on October 3, 2022, granted certiorari and vacated the decision of the Oklahoma Court of Criminal Appeals in Oklahoma v. Sims. In this case, the Oklahoma Court of Criminal Appeals had ruled Oklahoma lacked jurisdiction to prosecute a non-Indian charged with crimes against an Indian victim in Indian country.

2. Denezpi v. United States

On June 13, 2022, in a 6-3 decision, the Supreme Court affirmed lower court rulings concerning the nature of Courts of Indian Offenses (CFR Courts). Petitioner was arrested and charged in the Court of Indian Offenses of the Ute Mountain Ute Agency, where he entered a plea and was released for time served. When Petitioner was subsequently indicted by a federal grand jury on related charges, he unsuccessfully moved to dismiss based on the Fifth Amendment’s Double Jeopardy Clause. The Tenth Circuit Court of Appeals affirmed. In its decision, the Supreme Court noted that “Denezpi’s single act transgressed two laws: the Ute Mountain Ute Code’s assault and battery ordinance and the United States Code’s proscription of aggravated sexual abuse in Indian country.” Therefore, “[b]ecause Denezpi’s second prosecution did not place him in jeopardy again ‘for the same offence,’ that prosecution did not violate the Double Jeopardy Clause.” The Court determined it did not need to resolve the issue of “whether prosecutors in CFR courts exercise tribal or federal authority because we disagree with Denezpi’s premise. The Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign. It; rather, it prohibits successive prosecutions ‘for the same offence.’”

3. Ysleta del Sur Pueblo v. TexasYsleta del Sur Pueblo v. Texas

On June 15, 2022, in a 5-4 decision, the Supreme Court reversed a Fifth Circuit decision and upheld the Pueblo’s ability to engage in gaming on its land. The Fifth Circuit had previously entered a judgment, finding that “the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act,” which “prohibits any gaming that violates Texas law,” governed the legality of gaming on the Pueblo’s reservation, and affirmed a lower court injunction against the Pueblo’s gaming activities. The Fifth Circuit previously held that “Texas gambling laws and regulations are surrogate federal law” on the Pueblo’s land, even though the Restoration Act states that “[n]othing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas.” The United States filed a brief supporting the Pueblo’s position, arguing the Restoration Act does not subject the Pueblo to the full gamut of Texas gaming regulations, and the Court should narrow the application of the Restoration Act’s prohibitory language to conform with the framework of California v. Cabazon Band of Mission Indians, which would prohibit only those gaming activities the State prohibits, rather than those it merely regulates. This was the approach taken by the Supreme Court in its decision. The Court rejected the State’s arguments that such an approach would be unworkable, noting Public Law 280 and the Indian Gaming Regulatory Act have long provided appropriate frameworks for judging the lawfulness of class II gaming on reservations.

4. Haaland v. Brackeen

On November 9, 2022, the Supreme Court heard oral arguments in Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA) brought by Texas, Louisiana, Indiana and various individuals. The U.S. District Court for the Northern District of Texas granted summary judgment for plaintiffs in 2018, finding ICWA and related regulations violated the Constitution and the Administrative Procedures Act. Defendants, including the United States, various government agencies, and intervening tribal governments, appealed. On appeal, a Fifth Circuit panel reversed and ruled in favor of the defendants, finding ICWA is “constitutional because [it is] based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians.” The court held ICWA preempted conflicting state laws, did not violate the anti-commandeering doctrine or the non-delegation doctrine, and the regulations were valid. Plaintiffs then sought en banc review. On April 6, 2021, the Fifth Circuit issued eight separate opinions regarding aspects of ICWA’s constitutionality, but no majority opinion. As a result, the original District Court decision was upheld.

5. Arizona v. Navajo Nation

On April 28, 2021, the U.S. Court of Appeals for the Ninth Circuit found the Navajo Nation (Nation) could pursue litigation against the United States seeking, among other things, to compel the federal government to review the Nation’s needs for water, develop a plan to secure the water, and ensure further governmental actions would not interfere with the plan. The Ninth Circuit rejected a claim that the Supreme Court had original jurisdiction over the matter and found the Nation’s breach of trust claim was not barred by res judicata. Finally, the court held the Nation could base its breach of trust claim on its treaties with the government and its Winters rights to a reservation of “‘appurtenant water then unappropriated to the extent needed to accomplish’ [the] purpose [of the reservation].” The Supreme Court granted certiorari in this case on November 4, 2022, and heard oral arguments on March 20, 2023.

B. U.S. Circuit Courts of Appeals

1. Klamath Irrigation District v. U.S. Bureau of Reclamation

On September 8, 2022, the Ninth Circuit Court of Appeals upheld the dismissal of a challenge to an irrigation decision by the U.S. Bureau of Reclamation (USBR), because Plaintiffs had failed to join the Hoopa Valley Tribe and the Klamath Tribes. The suit arose from the USBR’s Klamath Project, which sets rules for water delivery from the Klamath Water Basin in Oregon. A number of irrigation districts filed suit against USBR, arguing the Klamath Project’s proposed rules would lower the amount of water the irrigators receive and prevent them from fulfilling contracts to provide water, but failed to join the Hoopa Valley Tribe and the Klamath Tribes. The U.S. District Court for the District of Oregon had ruled for the Plaintiffs, finding the plan would affect the Tribes’ water and fishing rights, making the tribes indispensable parties under Fed. R. Civ. P. 19. Because the tribes could not be joined due to the tribes’ sovereign immunity, the action was dismissed. On appeal, the Ninth Circuit panel determined the Tribes have long-recognized reserved fishing rights that correspond with the USBR’s obligations, but the federal government could not adequately represent the Tribes’ interests in the suit. Accordingly, the Ninth Circuit upheld the District Court’s decision to dismiss the case. The USBR continues to monitor levels of the Klamath Water Basin.

2. Apache Stronghold v. United States

On November 11, 2022, the en banc Ninth Circuit Court of Appeals reheard a case exploring the intersection between environmental issues and Native American religious practices. The case concerned whether a land exchange between the United States and a copper mining operation violated the Religious Freedom Restoration Act (RFRA). Plaintiffs challenged a land swap, in which the United States proposed transferring to Resolution Copper nearly 2,500 acres of land within the Tonto National Forest in exchange for more than 5,000 acres held by Resolution Copper nearby. The Tonto National Forest contains Oak Flat, a sacred religious site for many Apache people. Plaintiff Apache Stronghold, a nonprofit organization with ties to the San Carlos Apache Tribe, sought an injunction, arguing the land exchange violated RFRA, the Free Exercise Clause of the U.S. Constitution, and the federal government’s trust responsibility created by the 1852 Treaty of Santa Fe between the Apache Tribe and the United States.

The U.S. District Court for the District of Arizona denied Apache Stronghold’s motion for a preliminary injunction, and Apache Stronghold appealed. On June 24, 2022, a three-judge panel of the Ninth Circuit ruled the land exchange did not violate the RFRA, the Free Exercise Clause, or the federal government’s trust responsibility to the Apache Tribe. First, the panel determined Plaintiff had failed to show a likelihood of success on the merits of its RFRA claim because Apache Stronghold had failed to show a “substantial burden to religious exercise.” Apache Stronghold petitioned for rehearing en banc, and on November 17, 2022, Chief U.S. Circuit Judge Mary H. Murguia issued a one-page order vacating the panel’s decision and ordering rehearing en banc. Rehearing occurred on March 21, 2023.

3. Lac Courte Oreilles Band of Lake Superior Chippewa v. Evers

On August 15, 2022, the Seventh Circuit Court of Appeals held four Wisconsin Tribes retain a treaty-based right not to pay state property taxes on lands that have been reacquired by tribal members. The Lac Courte Oreilles Band, Lac du Flambeau Band, Red Cliff Band, and Bad River Band filed suit against Wisconsin, arguing that lands that were sold from tribal ownership and later reacquired by tribal members are exempt from state taxation. The U.S. District Court for the Western District of Wisconsin had ruled in favor of the state, holding that, generally, tribal owned reservation lands are tax exempt, but only so long as they have remained in Indian ownership since allotment. The Seventh Circuit, however, agreed with the Tribes, reasoning that the Treaty of 1854 was not a cession of jurisdiction over the lands, but rather contained protections against state taxation. Similarly, even though many of the lands had passed into non-Indian ownership following allotment, there had been no congressional action to declare the lands taxable by the state while they are owned by tribal members. The Seventh Circuit distinguished this case from similar cases in which courts have held the General Allotment Act constituted congressional action allowing state taxation. The Seventh Circuit held the General Allotment Act did not directly apply to these reservations because the Treaty of 1854 was executed before the passage of the Act and contained the same provisions that were contained in the Act. Accordingly, the Seventh Circuit reversed the decision of the District Court, holding reservation lands held by tribal members are exempt from state taxation even if they have passed out of Indian ownership after allotment.

4. Friends of Alaska National Wildlife Refuges v. Haaland

On December 13, 2022, the Ninth Circuit Court of Appeals heard oral arguments on a challenge to a land exchange between King Cove Corporation, the Alaska Native Village Corporation (ANVC) for the Agdaagux Tribe of King Cove (Tribe), and the federal government. In 2019, the U.S. Department of the Interior (DOI) offered lands for an eighteen-mile road through the Izembek National Wildlife Refuge connecting King Cove, home of the Tribe, to the Alaska Native Village of Belkofski. In exchange, the ANVC would grant property along the Tribe’s shoreline to DOI, which would be added to the Izembek National Wildlife Refuge. Plaintiffs Friends of Alaska National Wildlife Refuges and the Center for Biological Diversity challenged the swap in 2019, arguing the deal violated the Alaska National Interest Lands Conservation Act (ANILCA) and the Administrative Procedures Act (APA). Passed in 1980, the ANILCA provides for the designation and conservation of certain public lands in Alaska, including the National Wildlife Refuge System, and for the continuing subsistence needs of Alaska Native people. Plaintiffs argued an environmental impact statement conducted by DOI found the land exchange “would have major adverse effects to birds and land mammals” and would hinder the U.S. Fish and Wildlife Service’s efforts to comply with the ANILCA through preservation of the Izembek National Wildlife Refuge. The plaintiffs argued the DOI’s justifications for the project in light of the findings of the environmental impact statement violated the APA. Additionally, the Plaintiffs argued the land exchange did not further the purposes of the ANILCA.

In June 2020, the U.S. District Court for the District of Alaska entered summary judgment in favor of the Plaintiffs, holding the land exchange was not permissible under the ANILCA and was not properly supported by the administrative record. DOI appealed. A split Ninth Circuit panel reversed the District Court’s decision, finding DOI properly weighed the social needs of Alaska Natives against the environmental impacts of the land exchange. Following a petition filed by Friends of Alaska National Wildlife Refuges, the Ninth Circuit reheard the case en banc, with oral arguments taking place December 13, 2022. The Native Village of Hooper Bay Tribal Council and Sea Lion Corporation filed an amicus brief in support of the Plaintiffs, arguing the land exchange would damage the Village’s ability to continue a subsistence lifestyle. Former President Jimmy Carter also filed an amicus brief supporting Plaintiff, arguing the Ninth Circuit panel’s decision expands secretarial powers in a way that would affect many activities on federal conservation lands, including National Parks, National Forests, and National Wildlife Refuges.

5. Big Horn County Electric Cooperative v. Big Man

On March 11, 2022, the Ninth Circuit Court of Appeals held the Crow Tribe has regulatory and adjudicatory authority over an electric cooperative doing business on the Tribe’s reservation. The case arises from a Crow Tribe member’s challenge to termination of electric service to his home. Under the Crow Law and Order Code, termination of electric service is prohibited between November 1 and April 1 without specific approval of the Crow Tribal Health Board. The Crow tribal member challenged the termination of service, and Big Horn County Electric Cooperative (Big Horn) argued the Crow Tribe’s restriction did not control Big Horn’s actions on the reservation. The District Court held Big Horn’s business on the reservation meets both exceptions detailed in Montana v. United States, namely (1) Big Horn formed a consensual relationship with the Tribe and there is a sufficient nexus between the regulation and that relationship and (2) Big Horn’s conduct has a direct effect on the health and welfare of a tribal member through providing electric services to homes on the reservation. The Ninth Circuit affirmed the District Court’s Decision and determined the provision of services to tribal members on the reservation creates a consensual relationship between Big Horn and the Tribe, meaning the Tribe is able to exercise regulatory and adjudicatory authority over Big Horn on the reservation. On December 12, 2022, the Supreme Court denied certiorari in this matter.

C. U.S. District Courts

1. Oklahoma v. U.S. Department of the Interior

On December 22, 2021, the U.S. District Court for the Western District of Oklahoma denied Oklahoma’s motion for preliminary injunction to block the federal government from regulating coal mining on the Muscogee (Creek) Reservation (Reservation). The issue was whether the Reservation constitutes “Indian lands” under the Surface Mining Control and Reclamation Act (SMCRA), which excludes Indian lands from state regulatory programs. Oklahoma argued the McGirt decision’s holding that the Reservation was not disestablished should be limited to criminal jurisdiction under the Major Crimes Act, and not extend to the civil regulatory provisions of the SMCRA. The Court disagreed, reasoning the Reservation would likely be considered Indian lands under the SMCRA, even though the majority of the reservation is held in fee simple ownership, rather than held in trust by the Federal government. On June 13, 2022, Oklahoma filed a motion for summary judgment, and on July 28, 2022, the Department of the Interior (DOI) filed for a cross-motion for summary judgment. On November 9, 2022, the Court denied Oklahoma’s motion for summary judgment, instead granting DOI’s motion for summary judgment. As a result, Oklahoma may no longer operate its program on the reservation. Also on November 9, the Court entered substantively identical orders in the companion case concerning the Choctaw and Cherokee Reservations. On January 9, 2023, Oklahoma appealed both cases to the Tenth Circuit Court of Appeals.

2. Bad River Band of the Lake Superior Tribe v. Enbridge Energy Co.

On November 28, 2022, the U.S. District Court for the Western District of Wisconsin denied a motion for a preliminary injunction by the Bad River Band of Lake Superior Tribe of Chippewa Indians of the Bad River Reservation (Band) to stop the operation of Enbridge’s subsurface Line 5 pipeline on the Band’s reservation. The issues were whether Enbridge committed trespass on the Band’s land when it continued to operate its pipeline under easements that expired in 2013, and whether the Band would suffer a grave, irreparable harm if the Enbridge pipeline were not decommissioned. The Band had originally granted easements to Enbridge for the Line 5 pipeline near the migrating channel of the Bad River in 1953 that required Enbridge to remove the equipment when the easements expired. In 2013, the Band decided to stop renewing easements, concerned that the point where the pipeline passes under the river could become vulnerable due to riverbank erosion. Enbridge argued it had proposed several viable strategies for damage mitigation should the pipeline fail. The Band disagreed, arguing the only solution sufficient to mitigate the risk of harm would be removing the pipeline. The court found the Band had failed to engage meaningfully with Enbridge to address the risk of further erosion at the potential failure point, but Enbridge had also failed to produce a long-term plan to address the risk of a pipeline failure. The court ordered both parties to produce a joint remediation plan. Failing that, each party was ordered to submit an individual plan.

D. State Courts

1. Trenton Indian Housing Authority v. Poitra

Plaintiff-Appellee, the tribal housing authority of the Turtle Mountain Band of Chippewa Indians (Band), sought to evict Defendant-Appellant tribal member from a tribal housing unit owned by the Band, but located hundreds of miles outside the Band’s reservation. The unit was funded in part by federal housing dollars. The Housing Authority began seeking eviction in the Band’s court in 2012 and reached an initial settlement, only to later face a restraining order prohibiting eviction. As a result, in 2020, the Housing Authority sought relief in North Dakota state court. After the tribal tenant contested subject matter jurisdiction, stating her eviction was solely subject to the Band’s courts, the state district court both found it had such jurisdiction and granted the Band’s eviction request.

The North Dakota Supreme Court affirmed, finding the off-reservation housing complex was not a “dependent Indian community” within the definition of federal criminal law, and therefore not “Indian country” subject to federal and tribal criminal jurisdiction. Noting the federal definition of Indian country “applies in the civil context as well,” the court rejected a finding of tribal court jurisdiction primarily based on its interpretation of federal case law requiring “dependent Indian communities” be “under federal superintendence” and found inadequate evidence by the tribal tenant that the federal government set aside the land for the Band. The Court denied rehearing in May 2022.

2. Ahtna, Inc. v. Alaska Department of Natural Resources

Ahtna, Inc. (Ahtna) appealed a 2016 action in which Alaska claimed a right to clear land and launch boats using a right-of-way on an Alaska Native Corporation’s land. Ahtna argued its prior aboriginal title prevented the federal government from conveying a right-of-way to Alaska. Ahtna had alleged trespass by Alaska, while Alaska sought to quiet title on the right-of-way in dispute. The issue in this case was whether Ahtna’s aboriginal title would prevent Alaska’s acquisition of the right-of-way under Alaska law. The court affirmed the lower court’s decision that Ahtna’s aboriginal title would not disturb the right-of-way rights claimed by Alaska, but vacated the lower court’s order that the right-of-way use would be limited to ingress and egress, stating only that Alaska’s use would still be limited to “highway” use as defined by state law, which would be broader than ingress and egress, but more narrow than “recreation.”

Legislative and Executive Developments

A. Legislative Developments

1. Inflation Reduction Act

On December 21, 2022, President Biden signed into law the Inflation Reduction Act. As part of the Inflation Reduction Act, tribal communities received hundreds of millions of dollars to implement energy development and climate resilience initiatives. Of the over $370 billion in climate, environment, and energy investments included in the Inflation Reduction Act, the following allocations are especially notable to Indian country: $2.15 billion for federal forest restoration, inclusive of tribal lands; $1.5 billion to Indian Tribes for tree planting activities; $2.6 billion to tribal governments for protecting costal and marine habitats from the effects of climate change; $225 million to Indian Tribes for the development and implementation of high-efficiency electric home rebate (HEEHR) programs; an increase of $18 billion, from $2 billion to $20 billion, for tribal energy loan guarantees under the Energy Policy Act of 1992; $4 billion in part to Indian Tribes for drought mitigation activities; $37.5 million to Indian Tribes for air pollutant reduction activities in tribal schools under Section 103 of the Clean Air Act; and, among many other appropriations, $2.8 billion to create a block grant program, in part for Indian Tribes, to create climate justice and environmental justice programs.

Various federal agencies, such as the Department of Energy, Department of the Treasury, Department of the Interior, the Department of Transportation, and the Department of Commerce (specifically through the National Oceanic and Atmospheric Administration) will be tasked with distributing and overseeing the use of Inflation Reduction Act funds over the next decade, either to tribal governments or for projects on tribal lands. Various tribal consultations either occurred in late 2022 or have been scheduled for 2023, which will be followed by the promulgation of regulations to implement the Inflation Reduction Act and administer its funds.

2. Safeguard Tribal Objects of Patrimony (STOP) Act

On December 21, 2022, President Biden signed the STOP Act into law. The STOP Act strengthened the Native American Graves Protection and Repatriation Act (NAGPRA) and the Archaeological Resources Protection Act by expanding both acts’ domestic prohibition on trafficking various tribal cultural heritage items into a global exportation ban. Additionally, the STOP Act increased penalties for NAGPRA violations and created a federal framework to support the voluntary return of Native American tangible cultural heritage.

B. Executive Developments

1. New Indian Probate Regulations Take Effect

On January 19, 2022, new regulations took effect modifying the process in which Department of Interior (DOI)-led Indian probate hearings are conducted. The new regulations create a streamlined process for small estates without land holdings, codify more estate distribution examples to increase certainty, and improve notice requirements – in part through a new DOI web page for probate notices. The DOI’s promulgation of these modified rules will allow DOI to better fulfill the intent of the American Indian Probate Reform Act to reduce fractionation of land interests in Indian country.

2. Federal Government Takes a Varied Approach to Environmental Protection in Indian Country

In implementing the Biden administration’s priority of mitigating the effects of climate change on tribal homelands, the Environmental Protection Agency (EPA) and other federal agencies have drafted policies with tribes in mind – although the execution of such plans has been varied. On February 10, 2022, the EPA approved a Tribal Implementation Plan under the Clean Air Act (CAA) from the Northern Cheyenne Tribe – a plan which was submitted to the agency over four years prior in September 2017, and enacted as tribal law in December 2016. The plan governs the Northern Cheyenne’s reservation, as well as four off-reservation parcels, and incorporates the EPA’s National Ambient Air Quality Standards.

Conversely, on July 21, 2022, the EPA approved an update to the State of Oklahoma’s plan to assume environmental jurisdiction over the state’s Indian country under a controversial and state-specific Congressional authorization from 2005 known as the Midnight Rider. While admitting the new plan represents a further intrusion by Oklahoma into Indian country, the EPA also noted its past and expected future tribal consultations on the matter, and a pending challenge to the action in federal court.

Additionally, on November 30, 2022, the Federal Emergency Management Agency (FEMA) announced the awarding of three $25 million relocation grants to Pacific northwest Indian communities – the Newtok Village in Alaska, the Village of Napakiak in Alaska, and the Quinault Indian Nation in Washington – to assist these tribes in building new infrastructure “out of harm’s way” from rising sea levels. Alongside this, FEMA also awarded eight $5 million grants to tribes in Alaska, Arizona, California, Louisiana, and Maine to begin relocation-based planning and research, namely due to “coastal and riverine erosion, permafrost degradation, wildfire, flooding, food insecurity, sea level rise, hurricane impacts, potential levee failure and drought.”

Moreover, on December 8, 2022, the EPA promulgated a Federal Implementation Plan under the CAA for the Ute Indian Tribe of the Uintah and Ouray Indian Reservation. Once effective in February 2023, the plan will apply “necessary” stricter air quality standards than those currently implemented by the surrounding State of Utah in order to curb air pollution from oil and natural gas producers.