Litigation

Claims against the United States
Federal funding of Indian programs
Fee-to-trust
Indian Child Welfare Act (ICWA)
Indian Gaming Regulatory Act (IGRA)
Native American religious practice
Natural resources
Treaty rights – hunting and fishing rights
Tribal sovereignty and jurisdiction
Claims against the United States

Samish Indian Nation v. United States, 58 Fed. Cl. 114 (Ct. Cl 2003),  aff’d in part, rev’d in part, remanded, 419 F.3d 1355 (Fed.Cir. 2005), on remand, 82 Fed. Cl. 54 (Ct. Cl. 2008), 85 Fed. Cl. 525 (Ct.Cl. 2009), 90 Fed. Cl. 122 (Ct.Cl. 2009), aff’d, 657 F.3d 1330 (Fed. Cir. 2011).

After achieving federal acknowledgment, the Samish Tribe filed suit against the United States seeking payment for funding for 32 separate federal programs the Tribe should have received during the time it was unrecognized between 1969 and 1996. The Court held that the action of a BIA clerk in 1969 dropping the Samish Tribe off an internal Department of Interior list of recognized tribes was arbitrary and wrongful, and that the Samish Tribe should have been federally recognized between 1969 and 1996. However, the Court of Claims and the Federal Circuit both found that none of the federal statutes and programs for which Samish sought retrospective compensation were sufficiently “money mandating” to require the United States to require payment under the Tucker Act, and dismissed all of the Samish Tribe’s claims.

Federal funding of Indian programs

Samish Indian Nation v. Dept. of Interior, W.D. Wash. 2004, 2004 WL 3753251, 2004 WL 3753252.

The Samish Tribe sued the United States after achieving federal acknowledgment in 1996 because when the Tribe was restored to federal recognition, it was only appropriated inadequate “New Tribes” funding under the BIA Appropriations Act. The Tribe sued to enforce the provision of the Federal Acknowledgment Regulations that requires, after federal acknowledgment, the BIA to determine the New Tribe’s funding needs and to submit an appropriations funding request to Congress for that amount. The Tribe’s claims were dismissed on the grounds that the BIA’s refusal to make such request was not final agency action and that the language of the regulation was only advisory, not binding on the BIA.

Confederated Tribes of Siletz Indians v. Dept. of Interior, Civ. No. 01-1548-AS (D.Or., settled 2002).

The Siletz Tribe filed suit because the BIA was underfunding the Tribe’s General Assistance and then TANF program on the ground that as a Public Law 280 Tribe, the State of Oregon was responsible for providing those services rather than the BIA. The Tribe alleged that PL 280 only covered private civil lawsuits, and did not affect the provision of regulatory services such as General Assistance. The BIA settled the lawsuit based on a companion lawsuit in Washington, and agreed to fully fund the Siletz Tribe’s GA program at the funding level provided to non-PL 280 tribes.

Navajo Nation v. State of New Mexico, No. 86-576-M (D.N.M.); Memorandum Opinion and Order, March 30, 1987, 14 Indian Law Reporter 3047; Findings of Fact, Conclusions of Law and Judgment, July 15, 1991, 18 Indian Law Reporter 3123; aff’d, 975 F.2d 741 (10th Cir. 1992), cert. denied.

The Navajo Nation sued the State of New Mexico for withdrawing Title XX funding from the Tribe, which was providing Title XX services to on-reservation Navajo citizens under contract with the State, on the ground that the State’s distribution of Title XX funding and provisions of Title XX services discriminated against Navajo Indians in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court ruled in favor of the Tribal and enjoined the State from failing to fund the Navajo Nation’s Title XX contract for less that the amount that had been granted previous to the State’s withdrawal of funding. The Court enjoined the State form providing Title XX funds and services in a manner that failed to provide the same level of services to Navajo Indians as was provided to all New Mexicans. The Court also awarded attorney’s fees to the Tribe.

Fee-to-trust


City of Lincoln City v. U.S. Department of Interior, 229 F. Supp.2d 1109 (D. Or. 2002).

City appealed decision by Department of Interior to take land into trust for the Siletz Tribe, asserting violation of the Coastal Zone Management Act (CZMA) and other claims. Tribe intervened in City’s appeal. Summary judgment granted to Tribe and United States on all claims and land into trust decision affirmed.

Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552 (D.C.Cir. 2016)

Appeared as Amicus for the Samish Indian Nation

Agency properly determined to acquire parcel of land to be held in trust for Indian tribe since tribe was sufficiently shown to be under federal jurisdiction at time of enactment of Indian Reorganization Act under the Carcieri decision, and tribe was subsequently recognized under the Federal Acknowledgment Regulations. Tribe met conditions necessary to acquire parcel into trust, and gaming was properly allowed under IGRA  on that parcel.

Attorney:  Craig Dorsay

Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians v. United States, Not Reported in F.Supp., 1988 WL 135757, (D.Or., 1988) (CIV.A.No.88-1055-FR.), Order dated Nov. 29, 1988, 1988 WL 135757, 16 Indian Law Reporter 3033, Order dated March 30, 1989, 16 Indian Law Reporter 3087.

The Coos Tribe sought a federal radar base under the Surplus Property Act, and to have the property transferred to the Tribe in trust for tribal housing. The Court rejected the Tribe’s argument that the Tribe’s “Service Area,” an administrative designation created because the Tribe did not have a formal reservation, was equivalent to a reservation for purposes of granting the Tribe priority in the disposal of surplus federal property. The Court did, however, order the Secretary of Interior to consider acquiring the property for the Tribe under federal statues which allow the Secretary, in his discretion, to acquire property in trust for the benefit of Indian tribes. After the Secretary submitted a letter stating that no funds were available for acquiring land for Indian tribes, the case was dismissed.

Indian Child Welfare Act (ICWA)

In re Adoption of T.A.W., 383 P.3d 492 (Wash. 2016)  (Appeared as Amicus on behalf of the Samish Indian Nation).

We shared argument with appellate counsel, who was unfamiliar with the Indian Child Welfare Act (ICWA). Amicus Samish Indian Nation urged the Washington Supreme Court to formally reject Crews and uphold the Legislature’s intent to provide the best protection possible to the wellbeing and cultural connection of Indian children anytime a state child custody proceeding involving an Indian child is before a Washington court. The Court agreed with our amicus and held that the ICWA applies to step-parent adoption seeking to terminate rights of non-custodial father, that a non-custodial non-Indian father is a parent under the ICWA, and that active efforts must be made by petitioning adoptive parents to prevent termination of biological father’s parental rights. The Court also held that WICWA has functionally overturned In re Adoption of Crews, 118 Wash. 2d 561 (1992) and the judicially-created existing Indian family exception in Washington State.

Matter of Adoption of Halloway, 732 P.2d 962(Sup. Ct., Utah, 1986).

This is the leading decision on interpretation of the ICWA and was quoted with approval by the United States Supreme Court in the Holyfield decision. It held that tribes have exclusive jurisdiction over children domiciled on the reservation, that critical terms in the ICWA must be interpreted according to federal law to fulfill the purposes of the Act, that state law cannot be used to undermine the Act, and that Indian tribes have an interest in their children which is distinct from, but on the same level, as the legal interest parents have in their children.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 1989 WL 28806, 104 L.Ed.2d 29, U.S. Sup.Ct. 1989 (No.87-980).

This case was a duplicate of the fact situation I had argued and won in the Utah Supreme Court in Halloway. The Supreme Court followed our amicus brief and held that undefined terms in the Indian Child Welfare Act must be interpreted as a matter of federal law to accomplish the purposes of the statute in which they appear. The Court held that the term domicile in the ICWA could not be interpreted as a matter of state law to deprive Indian tribes of exclusive jurisdiction over their children. The Court ruled that the tribal court had exclusive jurisdiction over the children involved, despite the efforts of the Indian parents to deprive the Tribe of its jurisdiction. The Court held that the actions of individual Indian parents could not defeat the jurisdictional scheme of the ICWA. The Court adopted the holding of the Utah Supreme Court in Halloway that Indian tribes have an interest in the children that is equal to, but distinct from, the interest of parents in their children.

Quinn v. Walters, 881 P.2d 795 (Or. 1994), reversing Quinn v. Walters, 845 P. 2d 206 ( Or.App. 1993).

Mother of the child was not enrolled in the Cherokee Nation at the time she executed an irrevocable consent to adoption under Oregon law. Mother subsequently became enrolled in the Cherokee Nation one day before decree of adoption in State court was to be entered, and sought to revoke her consent. Court ruled that if the ICWA applied, mother was entitled to revoke her consent and obtain the return of her child at any time before the final decree of adoption was entered. However, Court ruled that eligibility for ICWA must be established pursuant to state law, and affidavit of Cherokee Nation faxed to court stating that mother was now enrolled and child was eligible for enrollment, but without tribal seal or letterhead on top of affidavit, did not qualify for admission as evidence under Oregon Evidence Rules, and child therefore did not qualify as Indian child under the ICWA. Adoption was affirmed. Court rejected existing Indian family exception to ICWA and challenge that ICWA was unconstitutional.

Adoption of M. v. Navajo Nation, 66 Wash. App. 475, 832 P.2d 518, 1992 WL 163702, (Wash.App.Div.2, 1992).

The Washington Court of Appeals ruled that the Indian Child Welfare Act applied to the independent adoption of a Navajo child even where both parents consented to the adoption of the child by non-Indians. The Navajo Nation had intervened on behalf of an aunt of the child who wanted to adopt the child. The Court distinguished the Crews decision by the Washington Supreme Court which had created a judicial exception to application of the ICWA where the child had not been part of a cultural Indian family. The Court held that Crews did not apply where the Indian parent had been removed from his Indian culture by past, abusive child welfare practices, and where the child would be placed back into her Indian culture and community by being returned to the reservation. The Court held that, on remand, the trial court had ample discretion to find good cause under the ICWA to leave the child in the non-Indian adoptive home.

Application of Angus, 60 Or.App. 546, 655 P.2d 208, (Or.App., 1982) (No. D8204-68177; CA A25245.), rev. denied, 294 Or. 569, 660 P.2d 683 (1983), cert. denied, 464 U.S. 830, 104 S. Ct. 107, 78 L. Ed. 2d 109.

The Oregon Court of Appeals applied the Indian Child Welfare Act to a private, voluntary adoption and held that a consent to adoption of an Indian child, where that consent was executed within ten days of the birth of the child, was void under the ICWA and invalidated the adoption of the child. The Court held that where the mother had revoked her consent to adoption, she was entitled to the return of the child. The Court ruled that the ICWA was constitutional and did not violate the Equal Protection Clause of the United Sates Constitution. The Court also ruled on the evidence necessary to prove membership in an Indian tribe and application of the ICWA and ruled that a tribal determination of membership was conclusive. The Court held that the child did not have to be eligible for enrollment in the same tribe in which the mother or father was enrolled.

State ex rel. Juvenile Dept., Multnomah County v. England, 292 Or. 545, 640 P.2d 608, (Or. Sup. Ct. 1982).

The question on this case was whether the maternal aunt of an Indian child who had obtained physical custody of the child and then had become a foster parent under state law was entitled to the protections of the ICWA as an “Indian custodian” when the State later sought to remove the child from her custody. The aunt had received the child numerous times before from the mother, but this time had been contacted by a neighbor with whom the mother had abandoned the child. The Court of Appeals and Oregon Supreme Court held that the State had legal custody of the child under state law, and the aunt therefore did not qualify as an Indian custodian under the ICWA. No claim was made the aunt had custody pursuant to tribal custom, which would have qualified her independently as an Indian custodian.

Navajo Nation v. District Court for Utah County, Fourth Judicial Dist., State of Utah, 624 F. Supp. 130, (D. Utah, 1985) (Civ. No. C85-317G), aff’d, 831 F.2d 929 (10th Cir. 1987).

When the Navajo Nation received an adverse decision from the state trial court in the Halloway ICWA case on the issue of domicile and tribal jurisdiction, we decided to approach the Navajo Tribal Court on the issue rather than leave determination of this critical issue to a non-Indian court to decide on appeal. After the Navajo Tribal Court held that the Navajo Nation had exclusive jurisdiction over the child, I went to federal court in Utah to enforce the tribal court order against the State. The District Court declined to enforce the tribal court order, holding that it was bound by the previous state court decision and that the tribal court decision had been issued too far along in the case to give it full faith and credit. On appeal the Tenth Circuit declined to rule on the issue since the Utah Supreme Court had ruled in the Tribe’s favor in Halloway and stated that it found the Utah Supreme Court decision to be well reasoned.

Navajo Nation v. Hodel, 645 F.Supp. 825 (D. Ariz. 1986). N. CIV 85-2029 PHX PGR.

The federal District Court held that the Indian Child Welfare Act established an express trust responsibility in the United States on behalf of Indian children. The Court reversed the denial by the Bureau of Indian Affairs of an ICWA grant application submitted by the Navajo Nation because of the failure of the Bureau to follow its own internal guidelines in processing ICWA grant application. The case was settled upon remand, with the Navajo Nation receiving an increase of approximately $400,000 a year in ICWA funding.

The Bureau of Indian Affairs attempted to apply the State’s general assistance eligibility standard (which it is permitted to use to provide federal general assistance to on-reservation Indian) to on-reservation Indians receiving in-home custodial services. The Court ruled that in-home care was more analogous to Title XX services and therefore the Bureau was required to use the higher eligibility standard used to provide services under the Social Security Act.

In Interest of Armell, 194 Ill.App.3d 31, 550 N.E.2d 1060, 141 Ill.Dec.14, 1990 WL 2224. (Ill. App. 1 Dist., 1990).

The public guardian for an Indian child opposed transfer of the state court proceeding to the tribal court, arguing that such transfer was not in the best interest of the child because removal of the child from her non-Indian custodian would cause her emotional damage. The Illinois Court of Appeals ruled that transfer of jurisdiction to tribal court was a legal issue and psychological effects of potential transfer of child to other caretakers should be decided by the court with jurisdiction over the child. The court held that a best interest is relevant to the placement decision, not to the decision of whether to transfer jurisdiction to a tribal court. The Court ruled that the ICWA in constitutional.

Native Village of Venetie v. State of Alaska, 918 F.2d 797 (9th Cir. 1990), revised opinion, 944 F.2d 548 (1991).

The State of Alaska challenged the sovereign status of Alaska Native villages to make child custody determinations with regard to tribal children, arguing that Public Law 280, 28 USC §1360, divested Indian tribes of their child custody jurisdiction and vested exclusive jurisdiction over Indian child custody cases in the State. The Ninth Circuit ruled that Alaska Native villages retained concurrent jurisdiction over child custody proceedings under Public Law 280, since that statute had only delegated the federal government’s authority over Indian affairs to the States and had no effect on tribal sovereignty. The Ninth Circuit ruled, however, that the transfer of jurisdiction provisions of the Indian Child Welfare Act (25 USC §1911 (b)) would not apply in Public Law280 states until individual tribes petitioned to reassume ICWA jurisdiction pursuant to 25 USC §1918.

Matter of Appeal in Coconino County Juv. Action, 153 Ariz. 346, 736 P.2d 829 (Ariz. App. 1987).

The Indian Child Welfare Act applied to an Indian child who had not been living on an Indian reservation and had not previously resided in an Indian home. The ICWA’s standards for termination of parental rights and removal of an Indian child applied to an Indian parent who did not have physical custody of an Indian child. The phrase “continued custody” as used in the foster placement and termination of parental rights provisions of the ICWA refers to legal rights of custody, not just to actual physical custody.

State ex rel. Juv. Dept. v. Shuey, 119 Or. App. 185, 850 P.2d 378 (1993).

The Circuit Court refused to accept an ICWA Motion to intervene from the Tribe on the ground that it was not signed by an attorney, and Oregon law restricted signing of pleadings to legal counsel. The motion was signed by the Tribe’s social worker. The Tribe argued that requiring all ICWA pleadings to be signed by an attorney would deprive it of its substantive rights under the ICWA because it could not afford an attorney in all ICWA cases, and the ICWA permitted “tribes” to intervene in state child custody proceedings involving Indian children without expressly requiring that the Tribe be represented by an attorney, The Oregon Court of Appeals held that state law requirements requiring attorneys to sign pleading and appear in court were preempted by federal law in the narrow context of ICWA proceedings. We recently obtained amendment to Oregon attorney appearance rules allowing out-of-state attorneys to appear in Oregon ICWA proceedings without associating with local counsel or paying attorney appearance fee.

Johnson v. Jones, Chief Judge, Prairie Island Mdewakanton Dakota Community, No.6:05-CV-1256-Orl-22KRS (Nov.3, 2005), U.S. Dist. Ct., Fla., Middle Dist. [33 Indian L. Rep.3009] (2006).

The U.S. District Court for the Middle District of Florida dismissed an action challenging a Minnesota tribal court’s child dependency determination. The federal court held that the tribal court exercised concurrent jurisdiction over tribal children even though the family and child resided now in Florida. The federal court denied the family’s motion to refuse enforcement of the tribal court order for lack of subject matter jurisdiction on the grounds that the plaintiffs had failed to exhaust their tribal remedies. Beyond the tribal sovereignty impediment, habeas corpus is an improper means of challenging the tribe’s dependency determination. In that regard, “habeas corpus relief under 25 U.S.C. § 1303 is generally not available to challenge the propriety or wisdom of a tribal court’s decision in a child custody dispute.” In the Court’s view, this limitation applied with equal force to child dependency proceedings. Even if subject matter jurisdiction did exist, the Johnson’s failure to exhaust their tribal remedies prevented the case from proceeding.

In re C.H., 997 P.2d 776 (Mont. 2000).

 The Supreme Court of Montana reversed the lower court’s findings that the extraordinary physical or emotional needs of the Indian child constituted good cause not to place the child according to the placement preferences of the ICWA. The Court held that the lower court incorrectly applied ICWA and the BIA ICWA Guidelines to the facts of the case. As a result, the court held that the District Court erred in denying the adoptive placement with the Indian extended family. Reversed and remanded to the District Court for entry of an order directing DPHHS to promptly commence proceedings for the Indian family to formally adopt C.H.

Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. 2003); affirming Navajo Nation v. Superior Court of Yakima County, 47 F.Supp.2d 1233 (E.D.Wash. 1999).

Birth parents, one Navajo and one Yakama, resided their entire lives on the Yakama and Navajo Reservations. Parents moved off-reservation one month before birth of child and executed papers stating that they were domiciled off-reservation, never intended to move back to the reservation, and did not want the ICWA to apply to the adoption of their new infant. One month after executing consents to adoption, they moved back to the Yakama Reservation and remained there. Grandparents discovered the adoption had happened six years later and filed to invalidate it and assume custody of the child. District Court and Ninth Circuit ruled that the state court holding that the parents’ domicile was off-reservation at the time the consents to adoption were executed was not clearly erroneous and confirmed the adoption. Grandparents claim to be Indian custodians of the child under Navajo or Yakama custom was denied.

In re Brittany Kirk v. Klamath Tribe, 11 P.3d 701 (Or. App. 2000).

Klamath Tribes entered into ICWA Agreement with State of Oregon to treat Klamath children who were children of members but who were below the blood quantum necessary to enroll in the Klamath Tribes as Indian children under ICWA. Klamath Tribes would not consent to termination of parental rights of any Klamath children. Public Guardian ad Litem sued to free such children from the provisions of the ICWA. Oregon Court of Appeals ruled that federal law expressly defined who was an Indian child and that definition could not be expanded in an ICWA State -Tribal Agreement or constitutional issues for the children who did not qualify for enrollment in Klamath might exist. Court ruled that the provisions of the ICWA did not apply to those Klamath descendants, and that the Tribes could apply the ICWA to those children by reducing the blood quantum necessary to qualify as a tribal member.

State ex rel. State Office for Serv. to Children and Families v. Lucas, 33 P.3d 1001 (Or. App. 2000).

Court rule that an expert witness with cultural knowledge of the tribe was not required when cultural bias was not implicated. Mother’s chemical addiction issues and lack of treatment and progress were sufficient to support termination of parental rights. Transfer of jurisdiction to tribal court at an advanced stage of the state court proceeding was properly denied.

Indian Gaming Regulatory Act (IGRA)

Confederated Tribes of Siletz Indians v. United States, 841 F.Supp. 1479 (D. Or. 1994), rev’d, 110 F.3d 688 (9th Cir. 1997).

Governor refused to concur in Dept. of Interior’s §20 determination that proposed off-reservation gaming operation was in best interests of tribe and not detrimental to local community. After initially indicating Governor’s non-concurrence was not a veto of the gaming proposal, Secretary of Interior reversed position and determined that non-concurrence was a veto. Tribe challenged Governor’s veto, arguing that giving state official veto authority over federal decision violated separation of powers doctrine. District Court agreed. Ninth Circuit reversed, holding that Governor’s non-concurrence was only a contingent action that did not impermissibly intrude on federal authority. Court affirmed denial of off-reservation gaming operation.

Confederated Tribes of Siletz Indians v. State of Oregon, 143 F.3d 481 (9th Cir. 1998)

State proposed to release results of police investigation into tribal gaming operation, pursuant to State public records law. State police conducted investigation under authority granted in State-Tribal IGRA Class III Gaming Compact. Tribe asserted that release of information under state law was preempted by IGRA and Compact. Ninth Circuit held that release of information by State agency pursuant to state public records law did not impermissibly interfere with or intrude upon tribal sovereignty and was not preempted by IGRA. Court held the issue should be dealt with in Compact language.     

State ex rel. Dewberry v. Kitzhaber, 210 P.3d 884 (Or. 2009) (tribal amicus)

Appeared as Amicus filing on behalf of 7 Oregon Indian Tribes. Challenge to authority of Governor to enter into Compact with tribes under IGRA. The seven tribes raised the issue of tribal sovereign immunity and set out their interests in this case to discuss the impact that an adverse decision in this case could have on the other tribes, their members, and the communities surrounding the tribes. Any decision the Court makes with regard to the Coos Compact would impact the remaining federally recognized tribes in the State and their gaming revenue generating activities.

Tulalip Tribes v. Washington, 783 F.3d 1151 (9th Cir. 2015).

Tulalip Tribes argued an interpretation of its Gaming Compact with the State of Washington under IGRA that would have ended terminal lease payments to tribes in Washington that were not operating their own casinos, threatening their major non-federal source of tribal government revenue. We filed an amicus brief on behalf of the Samish Indian Nation arguing against Tulalip’s position, advocating the position of Washington’s non-casino tribes. The 9th Circuit disagreed with Tulalip’s arguments and upheld the terminal lease agreements and payments to non-casino tribes.

Native American religious practice

Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (U.S. Sup.Ct. 1990)

I was retained to argue this case in the United States Supreme Court, after it had already been to the United States Supreme Court once, the Oregon Supreme Court twice, and the Oregon Court of Appeals once. The issue was whether the State of Oregon’s general prohibition on use and possession of peyote could extend to use of peyote in religious ceremonies conducted by the Native American Church. The Oregon Supreme Court had ruled that applying the State’s prohibition on use and possession of peyote to religious use of peyote violated the United States Constitution. The United States Supreme Court, Justice Scalia, reversed the Oregon Supreme Court, distinguished its previous First Amendment decisions, and held that a neutral law of general applicability which has the incidental effect of prohibiting the exercise of religious beliefs by a minority religion does not violate the Unites States Constitution. This decision was subsequently overridden by Congress in the Religious Freedom Restoration Act.

Oregon State Penitentiary Religious Freedom case – Mark Clark (Insert when found)

State v. Allen, 113 Or. App. 306, 832 P.2d 1248 (1992)

A witness was prohibited from testifying in a criminal proceeding because he refused to remove his religions headgear when in the courtroom. The witness was a Muslim and testified that his religious beliefs prohibited him from removing his headgear from anyone. The trial judge applied a court rule which stated that persons attending court shall be dressed so as not detract from the dignity of the court. The Court of Appeals held that prohibiting the witness from testifying because of this refusal to revoke his headgear, in the absence of compelling reasons, would violate the witness’ constitutional rights to practice his religion and the defendant’s right to compulsory process.

Natural resources

Confederated Tribes of Siletz Indians v. Fish & Wildlife Comm’n, 260 P.3d 705 (Or.App. 2011).

The Confederated Tribes of the Grand Ronde Community of Oregon (“Grand Ronde”) requested a cultural hunt to Grand Ronde Indians within the boundaries of the original 1855 Siletz Coast Reservation. The State regulation allowing the hunt stated that the hunt was only authorized under State law, not as a federally authorized or tribal-retained right. The Siletz Tribe challenged the regulation on the grounds that the hunt infringed on Siletz territory (although no longer owned by the Siletz Tribe), and that authorized under state law, that the regulation was an impermissible race-based benefit. The Oregon Court of Appeals disagreed, holding that the Oregon Fish & Wildlife Commission had broad authority under state law to authorize the use of the State’s wildlife resources by user groups.

Treaty rights – hunting and fishing rights

United States v. Washington (“Samish”), 19 F.Supp. 3d 1317 (W.D. Wash. 2002), rev’d, 394 F.3d 1152 (9th Cir. 2005), on remand, 20 F.Supp. 3d 899 (W.D.Wash. 2008), aff’d on other grounds, 593 F.3d 790 (9th Cir. En Banc 2010).

The Samish Tribe was originally denied treaty status in the U.S. v. Washington Boldt off-reservation treaty fishing rights case in 1979. The Tribe spent the next 17 years achieving re-recognition under the Federal Acknowledgment Regulations, finalized in 1996. The standards the Tribe had to meet to achieve administrative federal acknowledgment were the same standards necessary for exercise of treaty rights. In 2001, the Tribe file an FRCP 60(b)(6) motion to reopen its 1979 treaty rights decision on the ground that federal recognition was an extraordinary circumstance that warranted allowing the tribe to relitigate its treaty status in U.S. v. Washington. The District Court denied the motion in 2002. The 9th Circuit reversed in 2005, finding that meeting the standard for federal acknowledgment virtually guaranteed the Samish Tribe met the standard for treaty status. On remand, the District Court refused to enforce the 9th Circuit’s decision and denied the Samish Tribe’s Rule 60(b)(6) motion again on various grounds. On appeal, the Ninth Circuit convened an en banc panel to address the conflict in various 9th Circuit Samish decisions. The en banc Court upheld denial of the Samish Tribe’s Rule 60(b)(6) motion on the ground that too much time had passed and entry of the Samish Tribe into U.S. v. Washington at this late date would disrupt long-settled fishery management agreements. The Court held that an administrative federal acknowledgment decision was not a sufficiently extraordinary circumstance to reopen a long-settled judicial decision that had reached a contrary result. The en banc Court ruled that the Samish Tribe could relitigate its treaty status on any other treaty right that had not yet been adjudicated, but that its federal acknowledgment would not carry any weight in such proceeding.

United States v. Washington, 129 F.Supp.3d 1069 (W.D.Wash. 2015), aff’d, Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157 (9th Cir. 2017).

The Makah Tribe filed suit against the Quileute Tribe and Quinault Nation in U.S. v. Washington as a sub-proceeding, 09-01, asserting that the two tribes did not reserve the right to fish in the Pacific Ocean under the 1855 Treaty of Olympia. We represented the Hoh Tribe, which is the 3rd signatory tribe to the Treaty of Olympia but was not named as a defendant by the Makah Tribe in the sub-proceeding. We were not responsible for the primary defense in this case, but actively participated in the 23 day federal trial – longer than the original Boldt decision trial – that involved hundreds of exhibits and the testimony and cross-examination of many different experts in different fields – historians, archeologists, linguists, biologists, etc. The District Court ruled that the Treaty of Olympia Tribes had fished for whales, seals, finfish and other animals in the Pacific Ocean at and before treaty time, and that the Indians considered sea mammals to be fish under the language of the treaty. The court upheld the right of the signatory tribes to the Treaty of Olympia to fish 30 to 40 miles out in the Pacific Ocean. The Ninth Circuit affirmed the decision on appeal. A petition for certiorari to the U.S. Supreme Court is expected.

Oregon v. Nanpooya, Sr., No. G86-88 (Or.Dist.Ct., Wallowa C’ty, April 29, 1987), 14 Indian Law Reporter 5072.

When Chief Joseph and his band of Nez Perce Indian were finally trapped and caught 30 miles from the Canadian border in 1877 after a flight of 2000 miles, most of the bank was settled in Oklahoma. In 1885 Chief Joseph’s band was permitted to return to the Northwest, but not to the Nez Perce reservation because of the fear of new hostilities. Instead they were settled on the Colville reservation, the home of their historical enemies. Oregon state police arrested a number of the Chief Joseph band who was hunting elk in the Wallowa Mountains, an area reserved in the Nez Perce treaties for continued hunting. The State and Nez Perce Tribe of Idaho argued that the Chief Joseph bank lost their treaty hunting rights when the band was settled on the Colville reservation and assimilated into that Tribe. The court ruled that the Chief Joseph band retained their separate identity on the Colville reservation, and that their treaty right to hunt in the Wallowa Mountains had never been terminated.

Tribal sovereignty and jurisdiction

Alire v. Jackson, 65 F.Supp.2d 1124, 1999 WL 701695, D. Or., 1999.

Non-member Indian employee of Warm Springs Health Clinic was banished from the Warm Springs Reservation by the Warm Springs Tribal Council. Employee filed suit in federal court under the habeas corpus provision of the Indian Civil Rights Act, asserting that banishment from the reservation was equivalent to incarceration, allowing habeas petition. Court dismissed claim, ruling that banishment was not equivalent to a criminal sentence, and habeas was therefore not allowed.

Confederated Tribes of the Siletz Indians of Oregon v. Employment Dept., 995 P.2d 580, Or. App., 2000.

Tribal Council member who left office filed for state unemployment. State Employment Division granted unemployment benefits. State law exempted state and local officials from unemployment compensation. Siletz Tribe did not directly elect coverage for Tribal Council members. Siletz at Restoration in 1979 made a broad election of coverage for “all occupations and employments” within the Tribe. Court of Appeals held that Indian tribes fell within the common dictionary definition of “organizations,” which are included under the statute. Because Siletz expressly and unambiguously elected coverage for “all occupations and employments,” and tribe falls within coverage of the state statute, Unemployment Board’s finding that Siletz elected coverage for all of its employees, including tribal council members, is supported by substantial evidence.

In the Matter of Cougar Den, Inc., Oregon Dept. of Transportation: Fuels Tax Group, Final Order, OAH Case No. 1102410, Feb. 7, 2012, affirming Ruling on Summary Determination and Proposed Order , Office of Administrative Hearings, State of Oregon, January 9, 2012.

Cougar Den, a Yakama Nation license fuel distribution company, applied for a fuel export license from the State of Oregon to export fuel purchased in Oregon to the Yakama Reservation. The Oregon Department of Transportation (ODOT) rejected the license application, on the ground that the Yakama Reservation is within the State of Washington, and therefore under Oregon law, Cougar Den had to have a fuel import license from Washington State. Cougar Den only had a tribal license and did not have a Washington State license. On appeal, ODOT granted the fuel export license to Cougar Den on the ground that the Yakama Reservation is a “territory” as defined by Oregon law, and therefore export of fuel from Oregon to the Yakama Reservation without a Washington State fuel dealers license complied with Oregon law.

Confederated Tribes of Siletz Indians v. Oregon Fish & Wildlife Comm’n, 260 P.3d 705 (Or. App. 2011).

State Fish & Wildlife Commission entered into agreement with Grand Ronde Tribe allowing tribal members to engage in cultural hunt under State law within original Siletz Reservation, not as a federal right. Siletz appealed, arguing that allowing only Grand Ronde tribal members to engage in a special hunt without a connection to a federal Indian right was a race based decision that violated the Constitution and applicable law. The Oregon Court of Appeals held that the Fish & Wildlife Commission had broad authority under state law to provide for wide enjoyment of the wildlife resources of the State, and that the hunt was permissible under that authority.

Siletz Tribal Forest Products v. Devils Lake Justice Court, Lincoln County Circuit Court, State of Oregon, No. 950913, Opinion and Order.

Tribal arm sued in state court for wage dispute. Court holds that Indian tribes and arms of the tribe are protected by tribal sovereign immunity from suit without consent.

North Pacific Ins. Co. v. Switzler, 924 P.2d 839 (Or. App. 1996).

On-reservation auto accident involving minor tribal member driver, resulting in the death of or injury to several other minor tribal members. Personal injury suit filed in Warm Springs Tribal Court. There was no direct insurance coverage for the accident. The driver’s mother argued that since she lived off-reservation with her parents, non-Indians, that the driver should be covered by the grandparents’ insurance. The insurance company filed a declaratory coverage action in state court. The Court of Appeals dismissed the lawsuit for lack of personal jurisdiction over the tribal members seeking coverage under the policy, holding that: (1) circuit court had subject matter  jurisdiction over declaratory action, which arose off reservation, since the subject matter of the suit was the insurance policy, which had been entered into off-reservation between a non-Indian insurance company and non-Indian insureds; (2) the Warm Springs Reservation is not fully part of the State of Oregon under federal Indian law principles and tribal members living on reservation were therefore not residing or domiciled within state for jurisdictional  purposes; (3) state lacked long-arm jurisdiction over accident victims; and (4) jurisdictional defect prevented joinder of accident victims who, as claimants under policy, were necessary parties to declaratory action.

Platero v. Platero, No. 83-0952HB (D.N.M. 1983), 10 Indian Law Reporter 3108.

In a jurisdictional dispute between two Indian tribes, the Navajo Nation and the Mescalero Apache Tribe, where the tribal courts of both tribes had issued conflicting custody orders with regard to a child who was part Navajo and part Mescalero but was enrolled in the Mescalero Apache Tribe, the Federal Court ruled that neither the Indian Civil Rights Act, the Indian Child Welfare Act, nor the Parental Kidnapping Prevention Act gave it jurisdiction to decide the dispute.

Navajo Nation v. Confederated Tribes of the Warm Springs Reservation of Oregon, No. 87-915-DA (D. Or.), Magistrate’s Decision, April 26, 1988, 15 Indian Law Reporter 3058; affirmed by District Court Judge, May 16, 1988), 15 Indian Law Reporter 3060).

The United States District Court ruled in a jurisdictional dispute between two Indian tribes, the Navajo Nation and the Confederated Tribes of the Warm Springs reservation of Oregon, where the tribal court of both tribes had issued conflicting orders, both taking jurisdiction over a child who was ¾ Navajo and ¼ Warm Springs but enrolled in Warm Springs, that the federal court lacked jurisdiction under either the Indian Child Welfare Act or the Indian Civil Rights Act to determine which tribal court order should be enforced. The Court also ruled that the Warm Springs Tribe was immune from suit and could not be sued by the Navajo Nation.

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