The year 2024 highlighted the complex relationship among Indigenous law matters, environmental justice concerns, and land use decisions. Tribal advocates found themselves opposing both traditional and green energy development projects – whether oil pipelines, hydroelectric power infrastructure, wind turbines, or natural resource extraction – across multiple federal forums. State courts continued to test the limits of cornerstone Indian law principles such as criminal and civil jurisdiction and tribal sovereign immunity. On a bright note, the U.S. Supreme Court affirmed Congress' mandate that the federal government fund Indian health care equally regardless of whether a health program is operated by the federal government or a tribal government.
On June 6, 2024, the U.S. Supreme Court issued a 5-4 decision consolidating two appeals from U.S. Department of Health and Human Services (HHS) – one pertaining to a contract with the San Carlos Apache Tribe from the Ninth Circuit and another with the Northern Arapahoe Tribe from the Tenth Circuit – resulting from similar breach of contract actions initiated by each Tribe against the HHS Secretary. In an opinion authored by Chief Justice John Roberts, the Supreme Court held that the Indian Self-Determination and Education Assistance Act (ISDEAA) requires the Indian Health Service (IHS), an HHS subagency, to reimburse the Tribes for expending income from Medicare, Medicaid, and private health insurers to further the "functions, services, activities, and programs” of their self-determination contract.
Under ISDEAA, Indian Tribes may enter a "self-determination contract" with IHS to receive funding to administer their own health care programs, which would otherwise be operated by IHS. The funding a Tribe receives through a self-determination contract must equal what IHS would have used to operate the program directly, plus "contract support costs" aimed at capturing administrative expenses IHS does not incur when operating a heath care program directly. The question in this case was whether ISDEAA requires IHS to reimburse Tribes for the costs incurred when Tribes expend income collected from third parties, such as Medicare, Medicaid, and private health insurers.
The first section of Chief Justice Roberts' opinion notes that Indian health care is a parallel funding system whether operated by a Tribe or IHS, with both direct Congressional appropriations and third-party payments from Medicare, Medicaid, and private insurers used for program operation. Thus, Chief Justice Roberts reasoned, Tribes would not be on equal footing with the IHS if they did not receive contract support costs on expenditures of third-party revenues. To support this conclusion, Chief Justice Roberts pointed to a provision of the ISDEAA which states: "[t]he program income earned by a tribal organization in the course of carrying out a self-determination contract shall be used by the tribal organization to further the general purposes of the contract." Chief Justice Roberts reasoned that because the ISDEAA requires Tribes to use third-party revenue to "further the general purposes of the contract," Tribes must receive contract support costs for expenditures of third-party revenues. Chief Justice Roberts also discussed the policy behind the ISDEAA– to promote tribal self-governance. By refusing to pay contract support costs on expenditures of third-party revenues, Chief Justice Roberts reasoned, the IHS penalized Tribes who entered into ISDEAA contracts and compacts.
Justice Brett Kavanaugh authored a dissent that focused extensively on the cost of requiring the IHS to pay contract support costs on expenditures of third-party revenues; the government had stated in briefing, for example, that it would cost between $800 million and $2 billion to pay contract support costs on these expenditures. This case represents a victory for all Indian tribes which contract with IHS to provide their own health care programs because the language at issue in the San Carlos Apache and Northern Arapahoe contracts is "model" language statutorily required to be in all IHS contracts.
On March 1, 2024, the Ninth Circuit Court of Appeals issued a split, 240-page en banc opinion affirming a Ninth Circuit panel and the U.S. District Court for the District of Arizona's (District Court) decision to deny a preliminary injunction against a federal government land transfer. 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. Oak Flat, however, is an area of spiritual significance to the Western Apache Indians. In 2021, Apache Stronghold, a nonprofit organization, filed suit in the District Court and sought a preliminary injunction order "preventing Defendants from publishing a Final Environmental Impact Statement . . . and from conveying the parcel(s) of land containing Oak Flat."
Pursuant to an evidentiary hearing, the District Court denied the preliminary injunction motion, concluding Apache Stronghold did not demonstrate "a likelihood of success on, or serious questions going to, the merits" of its claims. Apache Stronghold timely appealed the District Court's denial of the motion for a preliminary injunction with respect to its claims under the First Amendment's Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), and the 1852 Treaty with the Apache Nation (1852 Treaty). Notably, during the pendency of Apache Stronghold's appeal, the Government withdrew the published Environmental Impact Statement (EIS) concerning Oak Flat.
On appeal en banc, the Ninth Circuit concluded that Apache Stronghold failed to "establish (1) that [it] is likely to succeed on the merits, (2) that [it] is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in [its] favor, and (4) that an injunction is in the public interest" (each a Winter Factor). The panel determined that because Apache Stronghold failed to establish the most important Winter Factor – a likelihood of success on the merits –the Court disposed with addressing the remaining Winter Factors. Pursuant to Lyng v. Northwest Indian Cemetery Protective Association, the Court disposed of the Free Exercise Claim because the disputed transfer of Oak Flat for mining operations does not "discriminate" against, "penalize," or deny Apache Stronghold's members "an equal share of the rights, benefits, and privileges enjoyed by other citizens." Similarly, the Court discarded the RFRA claim by using Lyng to establish the parameters of what "substantially burdens a person's exercise of religion," and overruled Navajo Nation v. U.S. Forest Service "to the extent that it defined a 'substantial burden' under RFRA as 'imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.'" Lastly, the Court dismissed the 1852 Treaty claim, concluding that the 2014 land transfer act abrogated any tribal treaty rights preventing the ownership transfer of Oak Flat. Accordingly, the Ninth Circuit sitting en banc upheld the District Court's denial of Apache Stronghold's motion for a preliminary injunction.
On September 11, 2024, Apache Stronghold filed a petition for a writ of certiorari with the U.S. Supreme Court, seeking reconsideration of its RFRA and Free Exercise Clause-based claims. In October 2024, numerous amici curiae offered supplemental briefings in favor of Apache Stronghold's religious freedom positions, including hundreds of religious organizations, dozens of Indian Tribes and tribal organizations, and a few State attorneys general. As of January 2024, the petition is pending Supreme Court decision.
This appeal stems from the Natural Resources Defense Council's (NRDC) claim that the federal government failed to adequately consider the needs of two endangered fish species protected under the Endangered Species Act (ESA) – Chinook salmon and delta smelt – when approving water contracts related to the Bureau of Reclamation's (Reclamation) operation of the Central Valley Project (CVP). The CVP is "the largest federal water management project in the United States," and is comprised of a complex network of reservoirs, canals, dams, and hydroelectric powerplants to draw and regulate water from the Sacramento-San Joaquin River Delta. In 2005, NRDC initiated this lawsuit against Reclamation and U.S. Fish and Wildlife Service (FWS), disputing FWS' 2004 Operations Criteria and Plan (OCAP) biological opinion, which determined that CVP operations would not jeopardize the continued existence of the endangered fish species. Subsequently, NRDC amended its Complaint and also challenged FWS' 2005 OCAP biological opinion which concluded similarly. Consequently, FWS' 2004 and 2005 OCAP biological opinions were determined to be invalid, and Reclamation did not appeal either decision. In 2008, FWS issued a new OCAP biological opinion which determined CVP operations would jeopardize the continued existence of the endangered fish species, but also proposed "reasonable and prudent alternatives" (RPAs) that, if implemented, would avoid those negative consequences. The Ninth Circuit has since fully upheld FWS' 2008 OCAP biological opinion.
In 2015, FWS issued a letter of concurrence based on its 2008 OCAP biological opinion which purported to address "all of the possible effects" to the endangered fish species and concluded that the needs of the fish were ensured. In 2018 NRDC filed its sixth amended Complaint and made three claims for relief: (1) FWS violated the Administrative Procedure Act (APA) by acting in an arbitrary and capricious manner when relying on its 2008 OCAP biological opinion in its 2015 letter of concurrence, (2) Reclamation violated the Endangered Species Act (ESA) by improperly relying on FWS' 2015 letter of concurrence which NRDC alleged was based on flawed consultations, and (3) Reclamation unlawfully failed to consult with the National Marine Fisheries Service (NMFS) regarding the new CVP contracts' impact on the endangered fish species. Subsequently, on cross-motions for summary judgment, the U.S. District Court for the Eastern District of California (District Court) granted summary judgment in favor of Resolution and FWS on all three of NRDC's claims. NRDC appealed to the Ninth Circuit Court of Appeals (Court).
On appeal, the Court first rejected the mootness claim, reasoning that the Court is able to grant NRDC some form of "effective relief." Next, the Court dismissed the APA claim on the grounds that "[i]t was appropriate" for FWS to rely on its 2008 OCAP biological opinion for its 2015 letter of concurrence, and thus, did not act arbitrarily or capriciously. Then, the Court concluded Reclamation complied with its obligations under the ESA "by establishing RPAs that 'complied with the jeopardy standard and which could be implemented' by Reclamation," and disposed of the ESA claim. Lastly, the Court concluded that Reclamation did not have a duty to reinitiate consultation with the NMFS because Reclamation lacked "the discretion to take measures that would benefit" the endangered fish species and affirmed dismissal of NRDC's third claim. Therefore, the Court affirmed the District Court's grant of summary judgment in favor of Reclamation and FWS on all three claims. On August 1, 2024, a three-judge panel for the Court denied NRDC's petition for rehearing en banc.
On November 5, 2024, the U.S. District Court for the District of Arizona issued a preliminary injunction against the U.S. Bureau of Land Management (BLM), representing the latest development in a multi-year attempt by a private lithium company to drill near a Hualapai Indian Tribe sacred site known as Ha'Kamwe'. Specifically, the Court found that the Hualapai Indian Tribe had satisfied the four-part standard set forth in Winter for preliminary injunctive relief. The Court stated that the mining company, Arizona Lithium Limited, serves an "important public interest at a time when the United States is striving to transition to renewable sources of energy;" however, this public interest does not "outweigh the potential damage the [drilling project] may cause to Ha'Kamwe'" when "irreparable harm . . . is not just potential, it is likely." Therefore, the Hualapai Indian Tribe's preliminary injunction request was granted, as the Court stated that the Tribe is likely to succeed on its National Historic Preservation Act and National Environmental Protection Act claims, the drilling project is likely to cause irreparable harm, and the important public interest that Arizona Lithium Limited serves does not outweigh the potential damage to the Hualapai Indian Tribe's sacred site.
The U.S. District Court for the District of Montana (District Court) approved a plea agreement and sentenced a Washington man to three years and ten months in prison stemming from violations of the Bald and Golden Eagle Protection Act (Eagle Act). The District Court found that the Defendant, among others, had violated the Eagle Act by hunting and killing eagles on the Flathead Indian Reservation. Specifically, the Court reasoned that the defendants violated 16 U.S.C. §§ 668(a), 3372(a)(1) and 3373(d)(1)(B) when they were found to have killed "approximately 3,600 birds, including eagles . . . [and] illegally sold the eagles on the black market for significant sums of cash across the United States and elsewhere." The U.S. Fish and Wildlife Service and Flathead Tribal Law Enforcement jointly conducted the investigation.
The most recent development in the Dakota Access Pipeline (DAPL) controversy concerns a complaint filed on October 14, 2024, in the U.S. District Court for the District of D.C (District Court). Specifically, the Standing Rock Sioux Tribe filed for "vacatur, and equitable, declaratory and injunctive relief to protect the [Tribe's] water supplies, cultural resources, and Treaty rights" allegedly threatened by the U.S. Army Corps of Engineers' inaction, specifically by failing to regulate, permit, and remove DAPL. The Standing Rock Sioux Tribe requested that the District Court declare the Corps in violation of numerous federal laws, including the National Historic Preservation Act, National Environmental Policy Act, and Clean Water Act, as well as the Tribe's 1868 Fort Laramie Treaty. Further, the Standing Rock Sioux Tribe requested that the District Court "[i]ssue an immediate and permanent injunction" to prohibit the continued operation of DAPL across the Oahe Reservoir flood control project.
On December 18, 2024, the U.S. District Court for the Northern District of Oklahoma (District Court) determined that Enel Green Power North America, owner of Osage Wind, LLC (Osage Wind) must remove eighty-four wind turbines from the Osage Nation Reservation by December 1, 2025, returning the approximately 8,400-acre area to its "pre-trespass" condition, after mediation efforts to arrive at a mutual settlement were unsuccessful. The District Court found that the company was liable for trespass and conversion, awarding $66,780 and $242,652 in damages, respectively, in addition to attorneys' fees and costs for both the United States and Osage Nation parties.
This determination stemmed from a suit filed in 2014 by the United States against Osage Wind, 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 Osage Mineral Estate without first obtaining a lease," which the Osage Tribe Allotment Act of 1906 requires be approved by the Secretary of the Interior. In 2017, the Tenth Circuit Court of Appeals held the wind farm excavations constituted "mining." The court further reasoned that the extraction of mineral material through the excavation, alteration, and use of rocks, namely, the use of blasting in the excavation for installation of all but two wind turbines, amounted to mineral development and mining. Following an unsuccessful U.S. Supreme Court petition from Osage Wind, the matter was remanded to the District Court for the damages trial.
Ryan O'Brien, an Osage Nation citizen, was charged in Tulsa, Oklahoma municipal court with several alcohol and driving-related municipal misdemeanor crimes incurred while in the City of Tulsa. Mr. O'Brien argued that the charges should be dismissed pursuant to the decision in McGirt v. Oklahoma in that as an Osage Nation citizen, he could not be prosecuted for municipal violations of ordinances on the Muscogee (Creek) Nation Reservation. In McGirt, the U.S. Supreme Court held that the Muscogee (Creek) Nation Reservation was never disestablished by Congress, and thus was "Indian country," as defined by federal law, for criminal jurisdiction purposes.
On January 13, 2023, Mr. O'Brien's Motion to Dismiss the municipal charges was denied by the municipal court, citing a U.S. District Court for the Northern District of Oklahoma (District Court) case, Hooper v. City of Tulsa, and the delegation of Congressional powers via Section 14 of the Curtis Act. Following the U.S. Court of Appeals for the Tenth Circuit's (Tenth Circuit) reversal of the District Court, in which the Tenth Circuit held that the Curtis Act did not grant Tulsa jurisdiction over Indians committing municipal violations, Mr. O'Brien filed a supplemental motion to dismiss the charges. Tulsa, now arguing in the alternative, cited Oklahoma v. Castro-Huerta, "claim[ing] that there was no federal statute granting exclusive jurisdiction to the Tribes or federal government over non-major crimes committed by Indian in Indian country." The municipal court then sided with Mr. O'Brien and dismissed the case based on the Tenth Circuit's intervening reversal.
On appeal, however, the Oklahoma Court of Criminal Appeals (OCCA) reasoned that the decision in Castro-Huerta acknowledged that the U.S. Constitution allowed state jurisdiction in Indian country. Additionally, the OCCA identified two (2) ways “a State’s jurisdiction in Indian country may be preempted (i) by federal law under ordinary principles of federal preemption, or (ii) when the exercises of state jurisdiction would unlawfully infringe on tribal self-government.” Thus, the Court construed the U.S. Supreme Court analysis in Castro-Huerta as meaning that federal criminal law was not intended to occupy the field and, thus, did not preempt state jurisdiction regarding prosecution of crimes in Indian country. Ultimately, the OCCA utilized a Bracker balancing test, purporting to balance federal, state, and tribal interests in Indian country criminal prosecutions, and opined that the principles of tribal self-government did not bar Tulsa from prosecuting crimes committed by non-member Indians in Indian country.
In 1959, the State of New York acquired a permanent easement for Highway Route 27 over 3.62 acres of the Shinnecock Indian Nation's reservation on Long Island, which the State continues to operate into present day. At the time, the land was considered to be fee simple land. In 2019, the members of the Council of Trustees of the Shinnecock Indian Nation (Trustees) entered into agreements with various digital advertising vendors for two large, fixed LED structures to display the Nation's seal on the highway easement. Trustees cut trees around the area where the signs would be placed on the easement without obtaining New York Department of Transportation work permits. New York issued several stop work orders and cease-and-desist letters to the Nation.
As the Nation continued the project, New York sued several of the vendors and Trustees in their official capacities. The Nation moved to dismiss citing sovereign immunity, while New York disagreed, citing a theory analogous to Ex parte Young. The lower court denied both Trustees' Motion to Dismiss and New York's request for a preliminary injunction to stop the site work at the easement. On appeal, the Supreme Court of New York, Appellate Division (Court) cited Michigan v. Bay Mills Indian Community, discussing relief in that individual tribal officials may be sued in their official capacities rather than the tribe itself for injunctive relief for off-reservation violations of state law. The Court opined that prohibiting tribal officials from being sued in their official capacities for violations of state law off-reservation would be tantamount to allowing tribes and tribal members to violate laws with impunity. The Court also rejected Trustees' argument that the law does not apply to them and they could not be directed to comply with it. The Court reasoned that the Nation owns the property in fee simple, the activities occurred off reservation, and the Nation engaged in activities beyond the reservation; therefore, the Nation is subject to generally applicable state laws.
Lake County, Montana sought an appeal of the dismissal of its complaint requesting reimbursement for its costs in enforcing state criminal law on the Flathead Indian Reservation in Montana. The Supreme Court of Montana (Court) considered the three following issues on appeal: (1) whether Lake County's claims are justiciable; (2) whether "the continuing tort or equitable tolling doctrines toll the statutes of limitations for Lake County's unfunded mandate and unjust enrichment claims (Counts I and II, respectively);” and (3) whether Montana law requires the State "to fully compensate Lake County for its costs incurred" under Public Law 280 (P.L. 280).
The Court discussed the genesis of P.L. 280 in the Termination Era of Indian legal history in 1953, with the verbiage expressly granting certain civil and criminal jurisdiction in Indian country lands within certain states' borders. The court detailed the adoption of P.L. 280 with mention that pursuant to P.L. 280, Montana "could assume criminal jurisdiction over Indian country without seeking tribal consent.” Subsequently, in 1963, the Montana Legislature passed House Bill No. 55, obligating and binding the State to assume criminal jurisdiction over Indian lands within its bounds, while at the same time adopting a statutory consent procedure requiring the consent of the Tribe and "the board of the county commissioners of each county that encompasses any portion of the reservation of the tribe." The requirement stated that once consent was obtained from the tribe and the boards of county commissioners, the governor would issue a proclamation within sixty days declaring that P.L. 280 would apply on such reservation, with the restriction that the governor could only issue such a proclamation if the tribal resolution was approved in the manner provided for by the laws of the Tribe.
Here, the Confederated Salish and Kootenai Tribal Council consented to the State's assumption of jurisdiction under P.L. 280 in 1964, and Lake County accepted the Tribe's resolution, consenting to P.L. 280 jurisdiction under Montana law. The governor issued the proclamation within sixty days of the Tribe's and County's consent. The Tribe, however, then repealed, revised, and re-enacted the resolution granting consent in 1965. The governor then issued another proclamation in 1965 effectuating the Tribe’s consent. In 1993, the Legislature amended Montana law to permit the Tribe to withdraw its consent for the State to exercise jurisdiction over most misdemeanors explicitly granted previously, which became effective in 1994, when the governor issued a proclamation recognizing such action.
In 2017, Lake County issued a resolution that it could not afford to keep exercising felony jurisdiction. Over the Tribe's objection, the Montana Legislature passed an amendment allowing Lake County to withdraw consent to enforce felony jurisdiction for Montana on the Flathead Indian Reservation by gubernatorial proclamation, which was ultimately issued in 2021. The amendment also required the state to reimburse Lake County for the cost of assuming criminal jurisdiction annually to the extent funds are appropriated by the legislature; however, the legislature appropriated just $1 to reimburse Lake County in 2021.
Here, the Court decided that Lake County was not precluded from suing the state for damages, nor did the County's claims violate the political question doctrine. The Court held that Lake County's unfunded mandate and unjust enrichment claims were time-barred by the applicable statute of limitations, and the Montana Legislature does not bear more of the cost than it chooses to appropriate each year for the enforcement of state law on the Flathead Reservation by Lake County under P.L. 280.
Following passage by the U.S. House of Representatives in 2023, the U.S. Senate passed H.R. 663 on December 17, 2024, titled the Native American Child Protection Act, which was subsequently signed into by President Biden on December 23, 2024. The Act revises the criteria of a federal child abuse treatment grant to permit the use of treatment programs which align with tribal traditional or cultural practices. Additionally, the Act expands eligible grant activities to include operational costs of child protective services. Finally, the Act mandates that U.S. Department of the Interior, Bureau of Indian Affairs, provide specific supplemental resources, including child abuse and neglect prevention technical assistance, as well as the development of a model tribal-state intergovernmental agreement to prevent, treat, and prosecute child abuse and neglect cases.
In December 2024, both houses of the U.S. Congress passed the Jamul Indian Village Land Transfer Act, which was subsequently signed into law by President Biden on December 23, 2024. The Act takes into trust, for the benefit of the Jamul Indian Village of California, just over 160 acres in San Diego, California, and declares such land to be part of the Tribe's reservation. The Act prohibits gaming activity on the newly acquired land.
In December 2024, both houses of the U.S. Congress passed the National Advisory Council on Indian Education (NACIE) Improvement Act, which was subsequently signed into law by President Biden on December 23, 2024. The Act mandates that at least one member of NACIE be a president of a Tribal College or University. NACIE is a fifteen-member, presidentially-appointed advisory committee housed within the U.S. Department of Education (Department) which reviews and makes recommendations concerning the Department's Indian education programs.
During 2024, 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 from the over $45 billion set aside for Indian tribes and tribal communities in the two acts. Additionally, on October 25, 2024, while visiting the Gila River Indian Reservation in Arizona – the first official visit to Indian country by a sitting U.S. president in ten years – President Biden issued a formal apology for the United States government's role in the federal Indian boarding school policy. The apology coincided with his administration's studying and reporting of the Indian boarding school era, between the late 1800s to the 1960s, which was spearheaded by U.S. Secretary of the Interior Deb Haaland– the first Native American to hold such office in United States history.
