Native American Law Watch – Summer 2016

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  • The Silver Lining: Efficiencies in BIA’s Newly Effective Right-of-Way Regulations
    The BIA’s Final Rule revising the right-of-way regulations in 25 C.F.R. Part 169 have a silver lining; the Final Rule includes provisions that create efficiencies by carving out exceptions to landowner consent and BIA approval and by adding more detail to certain regulations regarding consent. This article discusses landowner consent/BIA approval exceptions for renewals, assignments, and mortgages. Continue Reading
  • Recent Cases Confirm Sovereign Immunity
    The Ninth Circuit Court of Appeals and the New Mexico Supreme Court recently issued opinions which reject arguments to evade the defense of sovereign immunity. In so doing, both the Ninth Circuit and the New Mexico high court confirmed the importance of sovereign immunity, the latter relying, in part, on the United States’ Supreme Court’s recent Bay Mills decision. Both cases give narrow scope to exception to the immunity defense. The New Mexico decision reflects what could be a trend building upon Carcieri and extended in Parker to decline to rely upon expectations or equities in interpreting statutes in light of clear statutes or established case law. Continue Reading
  • Native American Trust Asset Reform Act Becomes Law: New Tribal Options, Questions Unanswered
    On June 10 2016, Congress passed the Native American Trust Asset Reform Act and on June 22, 2016, President Obama signed it into law. One benefit of the Act is the potential streamline the approval process for surface leasing transactions, once a tribal trust asset management plan is approved, which encourages tribal self-determination and governance of tribal assets, and removes sometimes inefficient federal approvals and associated regulatory review that can slow down or project development. The Act, however, does have some potentially problematic components. Continue Reading
  • BLM’s Hydraulic Fracturing Rule Applicable to Indian Lands Is Back in Play—For Now
    This article provides an update on the current status of the HF Rule and the litigation and congressional activity it has spawned, together with a more focused discussion of the HF Rule’s applicability to Indian lands and bases therefor, as well as the tribal consultation and coordination processes that were both employed in the development of the Rule itself and contemplated in the wake of the Rule’s adoption. Continue Reading


  • Modrall Sperling Attorney Lynn Slade to Speak at the New Mexico State Bar Annual Meeting on August 20, 2016

    Modrall Sperling attorney Lynn Slade will be part of an esteemed panel discussing the United States Supreme Court’s recent Indian Law decisions at the New Mexico State Bar Annual Meeting — Bench and Bar Conference on August 20, 2016 in Pojoaque, New Mexico. Along with University of New Mexico School of Law Professor Barbara Creel and Navajo Nation Department of Justice Litigation and Employment Unit Assistant Attorney General Paul Spruhan, Mr. Slade will discuss and debate the importance and effect of the United States Supreme Court’s most recent Indian Law opinions: United States v. Bryant, Nebraska v. Parker, and Dollar General v. Mississippi Band of Choctaw Indians. Continue Reading