Native American Law Watch – Fall 2014
- State Taxation of Tribal Leases Preempted by Federal Law
In Seminole Tribe of Florida v. State of Florida, the United States District Court for the Southern District of Florida concluded that two Florida state taxes were precluded by federal law, including recently promulgated Bureau of Indian Affairs regulations governing leases on Indian lands. Assuming it is not appealed and overruled, this decision could be used by tribes to seek to invalidate state taxation of leases on tribal lands. This decision may also impact how courts interpret other provisions of the revised leasing regulations. Continue Reading.
- Revisiting Tribal Sovereign Immunity under Michigan v. Bay Mills Indian Community
On May 27, 2014, the Supreme Court decided Michigan v. Bay Mills Indian Communitybroadly reaffirming tribal sovereign immunity from suit, even for suits regarding commercial activities off reservation lands, but only by a slim 5-4 margin. While an important victory for tribes, the majority opinion of Justice Kagan reaffirms at least one avenue for relief against tribal officials and suggests categories of cases where the rule may not hold. Continue Reading.
- Private Employers May Utilize a “Tribal” Employment Preference, at Least Under Some Circumstances
In Equal Employment Opportunity Commission v. Peabody Western, the Ninth Circuit upheld the lower court’s conclusion that Peabody Western Coal Co.’s tribal hiring preference did not constitute national origin discrimination in violation of Title VII of the Civil Rights of Act of 1964. The Ninth Circuit concluded, as did the district court, that the Navajo hiring preference contained in Peabody Western’s leases with the Navajo Nation is a political classification, rather than a prohibited classification based on national origin. Continue Reading.
- Bald and Golden Eagle Take Permits: Challenges Based on Religious Freedom and Failure to Adequately Analyze Impacts
The Bald and Golden Eagle Protection Act provides for civil and criminal penalties for the take of eagles without a permit. This article discusses two recent developments regarding the BGEPA: Whether the BGEPA and related regulations comply with the Religious Freedom Restoration Act, and a recent challenge to the proposed Department of the Interior’s Programmatic Take Permit Rule. While the regulations governing the protection of eagles play a central role in each of these challenges, the eventual outcome of these challenges may result in far broader change. Continue Reading.
- Ninth Circuit Court of Appeals Limits Class of Transfers Approvable Under Section 81
In Chemehuevi Indian Tribe v. Jewell, the Ninth Circuit upheld the Secretary of the Interior’s decision that the Indian Nonintercourse Act, 25 U.S.C. § 177, requires Congress to expressly authorize a class of transfer of Indian lands, and 25 U.S.C. § 81 does not authorize BIA to approve transfers of essentially perpetual exclusive possession of tribal lands. The decision reinforces the importance of determining the specific statutory authority supporting any transfer of an interest in trust or restricted Indian land. Continue Reading.
- Michigan Court of Appeals Upholds Mining Permit Despite Concerns Over Potential Impacts to Traditional Religious Site
On August 12, 2014, the Michigan Court of Appeals upheld decisions by state regulators to grant mining and groundwater discharge permits for a nickel and copper mine. The appellants challenged the approval of the mining permit arguing that, in relevant part, the proximity to Eagle Rock, a Native American religious site, necessitated further review. A three-judge panel unanimously upheld the granting of the permits. Continue Reading.
- BIA Extends Comment Period Regarding Revisions to Proposed Rights-of-Way Regulations
The Bureau of Indian Affairs is revising its regulations governing rights-of-way across Indian lands currently found in 25 C.F.R. Part 169. On September 30, the BIA announced a further extension of the deadline to submit comments through November 3, 2014. Continue Reading.
- EPA Announces Final Policy on Environmental Justice for Tribes
On July 24, 2014, EPA Administrator Gina McCarthy signed EPA’s Final Policy on Environmental Justice for Tribes (“Policy”). The Policy is “designed to better clarify and integrate environmental justice principles in a consistent manner in the Agency’s work with federally recognized tribes and indigenous peoples.” This article discusses several of the Policy’s key components. Continue Reading.
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