Native American Law Watch Summer 2018

Current Law Watch


  • Supreme Court Ducks Addressing “Immovable Property” Exception to Tribal Sovereign Immunity
    As Chief Justice Roberts put it in his concurring opinion in Upper Skagit Indian Tribe v. Lundgren, “There should be a means of resolving a mundane dispute over property ownership, even when one of the parties to the dispute—involving non-trust, non-reservation land—is an Indian tribe.”However, the majority opinion of Justice Gorsuch concludes that a decision determining whether such a resolution may occur, and under what legal doctrine, must await a remand of the case to the Washington Supreme Court and any further review the Supreme Court may allow. Continue Reading
  • Supreme Court Declines Review of Tenth Circuit Case Holding Tribal Acquisition of an Interest in an Allotment Defeats Eminent Domain Authority
    The Supreme Court recently denied a petition to review the Tenth Circuit’s opinion in Public Service Company of New Mexico v. Barboan,on which we previously reported in our Summer 2017 Watch. The Tenth Circuit affirmed the district’s court ruling that tribal ownership of a fractional interest in an “allotment,” land the United States holds in trust for individual Indians, bars condemnation of any interest in the allotment, despite 25 U.S.C. § 357 that authorizes condemnation of “lands allotted in severalty to Indians” under state law. The Tenth Circuit agreed that tribal ownership of a fractional undivided interest in an allotment converts an allotment from “lands allotted in severalty” to “tribal land,” and so Section 357 no longer applied. The Supreme Court denied Public Service Company of New Mexico’s petition for a writ of certiorari on May 3, 2018.2 Continue Reading
  • Indian Law in the Next Supreme Court Term: Grants and Pending Applications
    The United States Supreme Court may have the opportunity to address a number of Indian law issues in its next term starting October 2018. To date, the Court has granted certiorari in Royal, Warden v. Murphy, No. 17-1107, an appeal from the Tenth Circuit Court of Appeals. In Murphy, the Tenth Circuit ruled that the State of Oklahoma did not have jurisdiction to prosecute Mr. Murphy for murder.The result in Murphy was based on the application of the three-part test established in Solem v. Bartlett2 and its progeny to determine whether a reservation has been disestablished. Chief Judge Tymkovich issued a strong dissent suggesting the Solem test was inoperable in the context of Oklahoma’s unique history. Continue Reading
  • Update on Dakota Access Pipeline Litigation
    We previously reported on the Dakota Access Pipeline litigation, including in our Summer 2017 Watch. The Dakota Access Pipeline litigation was originally brought by the Standing Rock Sioux Tribe in 2016, quickly joined by the Cheyenne River Sioux Tribe, to challenge construction of the Dakota Access pipeline (“DAPL”), and specifically DAPL’s crossing of the Missouri River at Lake Oahe. In June 2017, U.S. District Court Judge Boasberg granted in part and denied in part the Standing Rock Sioux and Cheyenne River Sioux Tribes’ motions for summary judgment, and remanded certain issues to the Corps.1 On March 19, 2018, Judge Boasberg denied claims brought by the Yankton Sioux Tribe and Robert Flying Hawk, chairman of the Tribe’s Business and Claims Committee (“Tribe”).2 Continue Reading


Of Note:

  • Chambers USA 2018 Legal Rankings
    The 2018 rankings from Chambers USA: America’s Leading Lawyers for Business recognize Modrall Sperling and 16 of its attorneys for excellence in ten Chambers-designated areas. The firm received national accolades for its Native American practice. Walter Stern, Lynn Slade and Brian Nichols were ranked in Nationwide Native American Law, while Deana Bennett was listed in New Mexico Native American Law. Chambers USA is published annually to assist clients in finding the highest quality legal representation. Rankings are determined by independent research including interviews with peers and clients, focusing on technical legal ability, client service, value, industry knowledge and professional conduct.