Indigenous Law Committee Report

Following several notable years for Indigenous law practitioners and reporters, 2023 was comparatively quiet, except for the issuance of one extremely significant Supreme Court decision. Various fact-specific cases at the federal district court and appellate level demonstrated the complex interplay between environmental justice issues and Indigenous peoples and governments. Although not specific to this area of law, Congress generally failed to move legislation across the finish line, and some federal courts and agencies found themselves wrestling with the tension caused by the Biden administration’s efforts to restore policies the Trump administration had tried to dismantle.

I. Judicial Developments

A. United States Supreme Court

1. Haaland v. Brackeen

On June 15, 2023, the U.S. Supreme Court reaffirmed the validity of the Indian Child Welfare Act (ICWA), the landmark 1978 federal law governing child welfare matters involving Indian children which “[a]mong other things . . . requires a state court to place an Indian child with an Indian caretaker, if one is available.” Following a spate of other cases challenging ICWA since 2010, plaintiffs – including Texas, Louisiana, Indiana, and various individuals – filed suit in the U.S. District Court for the Northern District of Texas (District Court). The District Court initially granted summary judgment for plaintiffs in 2018, finding ICWA and related regulations violated the U.S. Constitution and the Administrative Procedure Act. Defendants, including the United States, various government agencies, and intervening tribal governments, appealed and, in 2019, the Fifth Circuit Court of Appeals, reversed, 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 Fifth Circuit panel held ICWA preempted conflicting state laws, did not violate the anti-commandeering doctrine or the non-delegation doctrine of the U.S. Constitution, and the related regulations were valid. Plaintiffs then sought, and received, en banc review, resulting in eight separate opinions analyzing ICWA’s constitutionality, none of which garnered a majority. As a result, portions of the original District Court decision holding ICWA unconstitutional were upheld without a precedential opinion. The U.S. Supreme Court granted certiorari.

The Supreme Court “reject[ed] all of petitioners’ challenges to the statute, some on the merits and others for lack of standing” in one of the most important nationally applicable Indian law cases in the last decade. First, the Supreme Court held ICWA was consistent with Congress’s Article I authority and, as such, the act lawfully preempts conflicting state laws. Second, the Supreme Court rejected all anticommandeering challenges to ICWA on the merits, finding plaintiffs’ claims did not implicate the Tenth Amendment to the U.S. Constitution. Finally, the Supreme Court dismissed the remaining equal protection and nondelegation doctrine challenges to ICWA, holding no plaintiff had standing to challenge ICWA on that basis.

2. Arizona v. Navajo Nation

On June 22, 2023, the U.S. Supreme Court held the United States lacks an affirmative treaty obligation to identify and account for Navajo Nation (Nation) water rights in the Colorado River Lower Basin (Basin), rejecting the Nation’s claims that the federal government breached trust obligations to the Nation by failing to manage the Basin in a manner that considered and met the Nation's water rights and water needs. The majority opinion, authored by Justice Kavanaugh, rejected the Nation’s argument that the 1868 Treaty of Bosque Redondo (1868 Treaty) established a general trust responsibility to the Nation to fulfill the purposes of the 1868 Treaty, including ensuring water rights and, with it, the Nation’s argument under the Indian Canons of Construction that the Treaty should be interpreted in the way its drafters would have intended and the Nation would have understood it. The majority concluded the 1868 Treaty did not support the claimed rights because they were not specifically enumerated.

As has become common in recent cases holding against tribal interests, Justice Gorsuch authored a dissent in which he scolded the majority. Applying the Indian Canons of Construction, and considering the historical context of the 1868 Treaty, which permitted the Nation’s members to return to homelands from which they were forcefully removed in 1864. Justice Gorsuch concluded the United States is required to fulfill obligations under the 1868 Treaty, including ensuring access to water resources. Justice Gorsuch also noted the Nation had not sought to force the Federal government to guarantee water rights, but merely to identify water rights it holds for them.

3. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin

On June 15, 2023, the U.S. Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (Coughlin), holding that – contrary to established precedent – in certain circumstances, a general abrogation of “government” sovereign immunity in federal statute may capture tribal governments and abrogate tribal sovereign immunity even if tribes are not mentioned. Similar to suits brought against governments generally, suits against Indian tribes are barred by tribal sovereign immunity unless the Indian tribe clearly waives immunity or Congress abrogates immunity via legislation.

The Lac du Flambeau Band of Lake Superior Chippewa Indians (the Band), a federally recognized Indian tribe, conducted economic activity through Lendgreen, a wholly owned subsidiary of the Band involved in providing short-term loans. In 2019, Respondent Brian Coughlin borrowed $1,100 from Lendgreen through a high-interest, short-term loan. Prior to repaying Lendgreen, however, Coughlin filed for Chapter 13 bankruptcy in the U.S. Bankruptcy Court for the District of Massachusetts (Bankruptcy Court), triggering an automatic stay against creditors’ collection efforts. Lendgreen nevertheless continued efforts to collect its debt from Coughlin. In response, Coughlin filed a motion in the Bankruptcy Court to have the statutory stay enforced against both Lendgreen and the Band and, in addition, sought damages against both parties. The Band moved to dismiss the filings, claiming the Bankruptcy Court lacked subject matter jurisdiction over the Band and Lendgreen due to the Band’s tribal sovereign immunity.

Citing cases from both bankruptcy and federal appellate courts, the Bankruptcy Court agreed with the Band, finding the federal Bankruptcy Code did not represent a clear Congressional abrogation of tribal sovereign immunity. The First Circuit Court of Appeals, however, reversed, determining the Bankruptcy Code “unequivocally strips tribes of their immunity.” In doing so, the appellate court agreed with the Ninth Circuit. However, this court rejected a holding from the Sixth Circuit, regarding whether Congress, through enactment of the Bankruptcy Code, abrogated tribal sovereign immunity with respect to federal bankruptcy actions. The U.S. Supreme Court granted certiorari to address the circuit split.

The Supreme Court affirmed the First Circuit, holding the Bankruptcy Code’s abrogation of the sovereign immunity of “governmental unit[s]” applies to Indian tribes despite their absence from definition of “governmental unit” for purposes of the Bankruptcy Code. The Supreme Court reasoned the use of the phrase “foreign and domestic governments” is a term of art all-encompassing in scope, similar to “rain or shine” and “near and far.” Thus, the Supreme Court held, Indian tribes are “undeniably” governmental units under the Bankruptcy Code, and as such, Congress abrogated their tribal sovereign immunity for purposes of the Bankruptcy Code.

Justice Gorsuch penned yet another scathing dissent, explaining, “until today, there was not one example in all of history where this Court had found that Congress intended to abrogate tribal sovereign immunity without expressly mentioning Indian tribes somewhere in the statute.” Justice Gorsuch rejected the majority’s assertion that “foreign and domestic governments” is a catchall phrase, noting that Indian tribes are “sui generis entities falling outside the foreign/domestic dichotomy.”

B. U.S. Circuit Courts of Appeals

1. Apache Stronghold v. United States

On March 22, 2023, the Ninth Circuit Court of Appeals heard oral arguments en banc concerning the Religious Freedom Restoration Act (RFRA) and the First Amendment in a case concerning a copper mine. The en banc arguments followed the June 24, 2022, Ninth Circuit panel decision affirming a district court's denial of a preliminary injunction designed to stop a land exchange and prevent copper mining on lands in Arizona. In 2014, an act of Congress required the U.S. Secretary of Agriculture to convey a piece of national forest known as Oak Flat to Resolution Copper (Resolution), a mining company. In exchange, Resolution would convey land to the United States. Apache Stronghold, a nonprofit organization, sued to enjoin the land exchange, arguing it violated RFRA, the Free Exercise Clause of the First Amendment, and a trust obligation imposed on the United States by the 1852 Treaty of Santa Fe between the Apache and the United States because Oak Flat is a sacred religious site to certain Apache people. The District Court denied the motion for a preliminary injunction, and Apache Stronghold appealed.

On appeal, the Ninth Circuit panel first found Apache Stronghold was not likely to succeed on its RFRA claim. Under RFRA, the Court held, a claim may be sustained only if no governmental benefits will be lost because of the religious practice, or there will be government penalties associated with religious practice. The court held no government benefits would be lost because of the land exchange, nor would any government penalties be imposed on the Plaintiffs. Instead, the Court held the land exchange did not coerce the Apache to abandon their religion by threatening them with a negative outcome. Additionally, the Court found that, to the degree the 1852 Treaty created an enforceable trust duty on the part of the United States, it extended only to control or supervision over tribal monies or properties. Because Oak Flat was federal government land not designated as Apache territory under the 1852 Treaty, the Court reasoned there was no Indian trust responsibility attached to the land. Accordingly, the Ninth Circuit upheld the district court's denial of the motion for a preliminary injunction, and Apache Stronghold sought rehearing en banc, with support from several non-Indian religious institutions filing briefs as amici curiae. On June 30, 2023, the Ninth Circuit granted Resolution’s motion to intervene in the case. As of January 2024, no en banc decision has been issued.

2. Littlefield v. U.S. Department of the Interior

In a case demonstrating the ongoing struggle resulting from the Supreme Court’s Carcieri decision, on October 31, 2023, the First Circuit Court of Appeals affirmed a Bureau of Indian Affairs (BIA) decision to take two parcels of land into trust in Massachusetts for the Mashpee Wampanoag Indian Tribe (Tribe).

In 2007, BIA granted formal recognition to the Tribe and, shortly thereafter, the Tribe asked BIA to take into trust for its benefit two parcels of land in Massachusetts – one in Mashpee, the other in Taunton. Following multiple decisions that were challenged in court, first by residents of Taunton, and then by the Tribe, BIA issued a decision in December 2021, finding the Tribe met the "under Federal jurisdiction" requirement of the Indian Reorganization Act (IRA). The U.S. Department of the Interior (DOI) also found the Tribe could conduct gaming activities on the land taken into trust because the land qualified as the Tribe's “initial reservation” under the Indian Gaming Regulatory Act (IGRA). Taunton residents challenged the decision, arguing the Tribe did not qualify as a "tribe" within the meaning of the IRA as it was not “under Federal jurisdiction,” and, by extension, the land was not eligible for gaming under IGRA. The U.S. District Court for the District of Massachusetts agreed with DOI, and the Plaintiffs appealed, arguing Carcieri requires a finding that the Tribe was not under Federal jurisdiction and that the Tribe did not qualify as a “tribe” within the meaning of the IRA.

The First Circuit distinguished the facts of this case from those in Carcieri, noting that in Carcieri, BIA did not consider whether the Narragansett Tribe was under Federal jurisdiction in 1934, which the Supreme Court ultimately found to be the determining factor. Second, the First Circuit rejected the appellant’s argument that the Tribe was not a “tribe” under the IRA, holding DOI provided sufficient justification in the administrative record to conclude the Tribe had maintained a distinct community and autonomy from historical times until the present. Finally, the First Circuit clarified the requirement of “under federal jurisdiction” does not specifically require explicit modern federal recognition and instead articulated a two-step inquiry: (1) whether the United States had, prior to 1934, taken actions for or on behalf of the tribe establishing federal obligations, responsibility for, or authority over the Tribe; and (2) whether jurisdictional status remained intact in 1934. Here, the administrative record showed the Tribe’s children attended federal Indian boarding schools, the federal government considered whether to forcibly remove the Tribe from its ancestral homelands, and tribal members were counted in federal census records prior to 1934. In contrast, the First Circuit determined the administrative record did not demonstrate the Federal government terminated the Tribe's jurisdictional status in 1934 following the passage of the IRA. Accordingly, the First Circuit affirmed the District Court and upheld DOI’s decision to take the land into trust.

3. Swinomish Indian Tribal Community v. Lummi Nation

On September 11, 2023, the Ninth Circuit Court of Appeals upheld a district court decision granting summary judgment to the Swinomish Indian Tribal Community, Tulalip Tribes, and Upper Skagit Indian Tribe (Tribes) regarding fishing rights in the waters east of Whidbey Island in the Puget Sound. The three Tribes had filed suit in the U.S. District Court for the Western District of Washington (District Court) seeking a ruling that the recognized fishing rights of the Lummi Nation (Lummi), under a precedential 1974 decree known as the Boldt Decision, do not extend to waters disputed here. The District Court determined that the disputes waters were not Lummi’s usual and accustomed fishing grounds and granted summary judgment on the matter in favor of the Tribes.

On appeal, the Ninth Circuit considered whether the District Court gave effect to the intent of the Boldt Decision. The Ninth Circuit first looked to the Boldt Decision’s Findings of Fact and determined it was fundamentally ambiguous whether the parties would have understood the areas of North Puget Sound to include any waters east of Whidbey Island. Second, the Ninth Circuit the plaintiff Tribes and determined met their burden to show there was no evidence in the record before the 1974 Court demonstrating historical Lummi fishing in the disputed waters beyond what would be incidental or occasional. Accordingly, the Ninth Circuit affirmed summary judgment for the Tribes.

4. Western Watersheds Project v. McCullough

On July 17, 2023, the Ninth Circuit upheld the Bureau of Land Management’s (BLM) approval of a lithium mine project in Thacker Pass, in Nevada, after challenges by the Burns Paiute Tribe (Tribe), environmental groups, and Nevada residents. The plaintiffs sued in the U.S. District Court for the District of Nevada (District Court), arguing BLM’s approval was arbitrary and capricious and violated applicable water quality standards, the National Environmental Protection Act (NEPA), and the National Historic Preservation Act (NHPA). The District Court granted summary judgment in favor of BLM, and plaintiffs appealed. On appeal, the Ninth Circuit affirmed, first finding BLM’s approval of the project was not an abuse of discretion, finding BLM conditioned its approval on the mining company’s groundwater monitoring and water quality compliance. Second, the Ninth Circuit determined the project was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with NEPA. The Court found BLM addressed the cumulative impacts of the Project in its Final Environmental Impact Statement in a manner beyond conclusory statements and with a complete discussion of possible mitigation measures. In addition to the environmental issues, the Tribe argued BLM did not properly consult the Tribe, which claimed religious and cultural significance to sites within the Project area. The Ninth Circuit also dismissed claims BLM failed to properly consult with the Tribe, which attached religious and cultural significance within the project area, concluding BLM never received any information that the Tribe claimed a cultural, religious, or historical interest in the project area prior to BLM approval.

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

The State of Oklahoma’s challenges to federal regulation of mining on lands within the affirmed Indian reservations of Oklahoma tribes ended abruptly in May 2023, as Oklahoma, without explanation, dismissed an appeal against the U.S. Department of the Interior (DOI) before the Tenth Circuit Court of Appeals. Previously, Oklahoma sought a preliminary injunction in a case in which it attempted to block DOI from regulating coal mining on the Muscogee (Creek) Reservation (Reservation). There, Oklahoma argued the Reservation did not constitute “Indian lands” under the Surface Mining Control and Reclamation Act (SMCRA), which excludes Indian lands from state regulatory programs. Specifically, Oklahoma argued the McGirt decision, which affirmed the continued existence of the Reservation, concerned only criminal jurisdiction under the Major Crimes Act and not civil regulatory provisions, such as the SMCRA.

The U.S. District Court for the Western District of Oklahoma (District Court) disagreed with Oklahoma and denied its injunction request, finding the Reservation would likely be considered Indian lands under the SMCRA, even though most of the reservation is held in fee simple ownership, rather than held in trust by the Federal government. Cross-motions for summary judgment were filed by both Oklahoma and DOI, and, on November 9, 2022, the District Court denied Oklahoma’s motion for summary judgment and granted DOI’s motion for summary judgment in both the Muscogee (Creek) Reservation case and the companion federal case concerning the Choctaw and Cherokee Reservations. On January 9, 2023, Oklahoma appealed both cases to the Tenth Circuit. But on May 18, 2023, Oklahoma filed a stipulated dismissal of the mining cases with DOI, and the Tenth Circuit entered dismissal orders on the same day. As a result, Oklahoma may no longer operate its state mining regulatory program on the reservations of the Muscogee (Creek), Choctaw, and Cherokee nations. It is possible the effect of those decisions may extend to other affirmed reservations in Oklahoma.

C. U.S. District Courts

1. Garfield County v. Biden

This case resulted from the consolidation of two related cases regarding proclamations by President Biden restoring and expanding the boundaries of Bears Ears National Monument and Grand Staircase Escalante National Monument, both located in southern Utah, in October 2021. In August 2022, a group consisting of Garfield and Kane counties, Utah, the State of Utah, and several private individuals and organizations (Utah Plaintiffs) filed complaints alleging President Biden violated the Antiquities Act in issuing the proclamations, and that the Utah Plaintiffs were adversely affected by defendant federal agencies through interim memoranda and denial of permits, both of which Plaintiffs alleged were final agency actions. Plaintiffs ultimately sought a declaration that the President’s proclamations were “unlawful, unenforceable, and void,” declarations that the purported final agency actions were unlawful, and injunctions prohibiting any enforcement of the proclamations. Tribal intervenors, including the Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe, responded by moving to dismiss the complaint in March 2023. On August 11, 2023, the U.S. District Court for the District of Utah granted the tribal parties’ Motion to Dismiss (alongside a similar motion from the federal parties), holding President Biden’s actions were not ”reviewable by a district court,” as Congress had explicitly authorized the President to take these actions as “necessary or appropriate to carry out the policy of Congress." Plaintiffs appealed to the Tenth Circuit Court of Appeals, with arguments expected in 2024.

2. United States v. Osage Wind, LLC

This was the latest development in more than a decade of litigation concerning a private company’s ability to establish a wind farm on land constituting a portion of the Osage Mineral Estate (OME). This development stems from a suit filed in 2014 by the United States against Osage Wind, LLC, seeking a permanent injunction and monetary relief, as well as a declaratory judgement that the company's actions constituted “unauthorized mining and excavation in the [OME] without first obtaining a lease,” which the Osage Tribe Allotment Act of 1906 requires be approved by the Secretary of the Interior. The U.S. District Court for the Northern District of Oklahoma ruled on September 30, 2015, in favor of Osage Wind, granting summary judgment and stating that its activities “did not constitute mining under 25 C.F.R. § 214” and, therefore, no lease was required. The Osage Mineral Council subsequently filed as a Plaintiff-Intervenor in the case and appealed the District Court’s 2015 holding. This resulted in a 2017 reversal by the Tenth Circuit Court of Appeals, which held the wind farm excavations constituted “mining,” and holding the phrase “mineral development” within the “mining” definition of the applicable regulations was ambiguous and was not limited to action to exploit the minerals themselves. In 2019, the U.S. Supreme Court denied Osage Wind’s petition for certiorari, after which the Tenth Circuit remanded the case to the district court. On December 20, 2023, the District Court granted summary judgment to the federal defendants and OME "as it pertains to the granting of declaratory, monetary, and equitable relief against Defendants." The Court anticipates trial "on the issue of damages" in 2024.

D. State Courts

1. Lustre Oil Company v. Anadarko Minerals, Inc.

From the 1950s until the 1980s, a large amount of private oil and gas exploration took place on the Fort Peck Indian Reservation (Reservation) in northeast Montana, home to the Assiniboine and Sioux Tribes (Tribes). Much of this mineral development occurred without regulation, and unsurprisingly, numerous environmental disasters resulted. This led the Tribes to begin actively managing and regulating all oil and gas extraction within the Reservation. In 2009, the Tribes formed A&S Mineral Development Compact (A&S) as a wholly owned economic development entity, formed under the laws of Delaware, in the business of developing oil and gas resources on the Reservation.

Another privately held company, Anadarko Minerals, Inc. (Anadarko), also conducted oil and gas exploration on the Reservation subject to tribal and federal regulation. Despite this, in 2018, Anadarko spilled more than 600 barrels of oil within the Reservation. As part of a resulting settlement agreement with the U.S. Environmental Protection Agency and the Tribes, Anadarko assigned all its oil and gas leases within the Reservation to A&S, which began to operate some of Anadarko’s 57 assigned wells.

In 2021, however, A&S and Anadarko were sued in Montana state district court by Lustre Oil Company (Lustre), which alleged it obtained valid title to 41 of the 57 wells from a third party after Anadarko let its then-current leases expire before the assignment to A&S. Anadarko and A&S moved to dismiss Lustre’s action, arguing A&S’s sovereign immunity (as a tribal subsidiary) deprived the state district court of subject matter jurisdiction over the case. The state court agreed and dismissed the suit on tribal sovereign immunity grounds, noting that A&S’ necessary dismissal from the matter created a situation where an indispensable party could not be joined.

The Montana Supreme Court reversed the state district court, holding that A&S was not entitled to assert tribal sovereign immunity because it was not an “arm” of the Tribes for purposes of the sovereign immunity analysis. The Montana Supreme Court considered persuasive the Tribes’ choice to incorporate A&S under Delaware law, which subjected A&S to Delaware laws pertaining to corporations and lawsuits. Additionally, the Montana Supreme Court also considered a lengthy history of actions from the Tribes’ governing body to separate and distinguish A&S from the tribal government. Thus, the Montana Supreme Court remanded the case to the state district court.

II. Legislative and Executive Developments

A. Legislative Developments

In 2023, the U.S. Congress moved only 27 bills through both houses and to the President’s desk, a notable decline from previous years. Nevertheless, Congress managed to approve a significant tribal bill: the Pala Band of Mission Indians Land Transfer Act (Land Transfer Act), which required the federal government to take more than 720 acres of land in San Diego County, California, into trust on behalf of the Pala Band of Mission Indians (Pala Band). The Land Transfer Act also declared the added acreage - known as Chokla to the Pala Band - part of the Pala Band's reservation. Chokla is part of the Pala Band's ancestral homelands and, according to the Pala Band in 2019 testimony before the U.S. House of Representatives, the land is also the site of an ancestral Pala Band village, rock art paintings, sacred artifacts, and other culturally significant objects. The Land Transfer Act permits the Pala Band to expand its land base while foregoing the sometimes arduous land-into-trust process through the Bureau of Indian Affairs.

B. Executive Developments

On December 6, 2023, President Biden, while attending his administration’s Tribal Nations Summit, issued Executive Order 14112, “Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination” (Order). The Order explained that Indian tribes’ progress over the last 50 years of the “Self-Determination Era” has been hindered by federal programs being "administered in ways that leave Tribal Nations unduly burdened and frustrated with bureaucratic process." In response, the Order first requires all federal agencies, other than independent regulatory agencies, to coordinate with the White House Council on Native American Affairs ("Council") to share best practices and implement reforms to "promote accessible, equitable, and flexible administration of Federal funding and support programs for tribal Nations." The Council, tasked with “improv[ing] coordination of federal programs and the use of resources available to Tribal communities,” was originally created by President Barrack Obama in June 2013 via executive order. From January 2017, until April 2021, the Council did not meet regularly; however, President Biden reinstated the Council during the early days of his administration.

Additionally, the Order requires development of guidance memoranda, following tribal consultation, to assess agency funding and regulatory shortfalls related to federally funded tribal programs. Finally, the Order requires agencies, as permissible, to revise regulations to encourage: (1) intergovernmental agreements with Indian tribes; (2) tribal set-asides in grants programs; (3) streamlined reporting criteria; and, among other goals, (4) removal of limitations on tribal spending. According to the Biden administration, the Order will better serve the U.S. government's trust responsibility to Indian tribes by requiring new assessments and progress reports regarding agencies’ use of federal funds devoted to tribal purposes. Contemporaneous with President Biden’s issuance of the Order, the Biden administration launched the Tribal Access to Capital Clearinghouse, described as “a one-stop-shop for federal funding available to Tribes.”

During 2023, the Biden administration continued implementing the Infrastructure Investment and Jobs Act of 2021 (referred to as the Bipartisan Infrastructure Law) and the Inflation Reduction Act of 2022, making tribal-specific investments and funding contributions. The U.S. Department of Energy, the U.S. Department of the Treasury, and the U.S. Department of Transportation (DOT) held numerous consultations during 2023. Together, these three federal agencies allocated, in 2023, more than $13 billion for roads, bridges, public transit, and internet infrastructure through the Bipartisan Infrastructure Law and $700 million for climate resilience and adaptation, drought mitigation, and clean energy development programs through the Inflation Reduction Act.