On July 9, 2020, the Supreme Court decided McGirt v. Oklahoma, No. 18-9526 and Sharp v. Murphy, No. 17-1107, affirming that the Muscogee (Creek) Nation’s historic Reservation boundaries were never diminished by Congress and accordingly remain in force to this day. Kanji & Katzen, P.L.L.C., was honored to represent the Muscogee (Creek) Nation as amicus curiae in both matters, through multiple rounds of briefing and oral argument at the Supreme Court.

These decisions are a testament to the strength and persistence the Creek Nation has demonstrated throughout its history. We are grateful for the Court’s careful explication of a period of that history in which the Nation and its citizens suffered so much, and for the Court’s resounding affirmation of the principle that promises made by the United States to the Indian Nations are meant to be kept, and that the Court will vindicate those promises regardless of dire and misplaced predictions about the consequences of doing so. As the Court stated:

“The federal government promised the Creek a reservation in perpetuity…. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right….

Because Congress has not said otherwise, we hold the government to its word.”

The opinion is Here.

Press Coverage:

Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma-NYT

Supreme Court Tribal Treaty Decision Praised as Game Changer -Bloomberg Law

Supreme Court says eastern half of Oklahoma is Native American land -CNBC

Supreme Court Ruling ‘Reaffirmed’ Sovereignty – ICT

Justices rule swath of Oklahoma remains tribal reservation – AP

The McGirt Case is a Historic Win for Tribes -The Atlantic

For Oklahoma Tribe, Vindication at Long Last -NYT

Neil Gorsuch Affirms That Treaties With Tribal Nations Are the Law  – The New Republic

How Native Tribes Started Winning at the Supreme Court  – Mother Jones

source: Jordan S. Rubin

When he argues this spring at the U.S. Supreme Court that Oklahoma couldn’t prosecute an American Indian for rape committed on Indian land, former acting U.S. solicitor general Ian Gershengorn will have widespread backing from Indian interests by way of the Tribal Supreme Court Project.

The issue at the heart of Muscogee (Creek) Nation member Jimcy McGirt’s appeal has profound implications for tribal jurisdiction and sovereignty that extend beyond matters of crime and punishment: Whether Congress “disestablished” the tribe’s 19th century boundaries and, in turn, whether large swaths of Oklahoma fall under tribal or state control.

The justices failed to answer the question last term in Creek member Patrick Murphy’s murder case, apparently deadlocking 4-4 due to the recusal of Justice Neil Gorsuch, who previously sat on the Tenth Circuit when Murphy’s appeal was pending there.

Now with the full court free to hear McGirt’s case, which comes from Oklahoma state court, it can finally put to rest the question with implications not just for the Creek but for other tribes as well.

Those stakes put the case right in the wheelhouse of the Project, which was formed two decades ago, in the face of several defeats in the high court’s 2000-01 term, with the mindset that one tribe’s loss could negatively impact others. The Project is run by the National Congress of American Indians and the Native American Rights Fund.

Inspired by states’ approach to bolstering government interests, it provides coordination and support for tribal issues at the high court, harnessing a vast network including subject matter experts and big name Supreme Court practitioners like Jenner & Block’s Gershengorn.

“It had become very clear with these decisions in 2001 that the court was not with the tribes anymore. It was a national emergency,” NARF executive director John Echohawk said.

Pay Attention

The Supreme Court heard five American Indian law cases in its 2000-01 term.

“Four of them were defeats for the tribes,” recalled Indian law attorney Riyaz Kanji, who clerked for the now-retired Supreme Justice David Souter in the 1994-95 term.

He pointed, for example, to Nevada v. Hicks and Atkinson Trading Co. v. Shirley, cases that “really had broad importance” and “got the attention of tribal leaders.”

Those cases limited tribes’ jurisdiction and taxing power—in their eyes, further limiting their sovereignty.

State Inspiration

After the term, tribal leaders called a meeting in Washington, D.C., and that’s when the Project was born.

It’s modeled after a similar group formed to help states protect their interests at the Supreme Court, said Kanji.

When he was clerking at the Supreme Court in the mid-90s, he said he heard “from a number of the justices” that “the quality of state advocacy in the 80s had not been good, the states were losing some big cases.”

So they formed a supreme court project that helped them.

Kanji thought the same approach could help tribes.

“It wasn’t rocket science,” he said.

Big Firms, Small Firms

There’s no official Project membership, noted Joel Williams, who leads it for NARF.

“We have a working group of about 300 or so attorneys: tribal attorneys, attorneys that practice Indian law, law professors, Supreme Court practitioners, other attorneys that have specialties that might fit in to Indian law cases at the Supreme Court in one way or another,” he said.

“We can go to those people for various types of assistance, whether that be directly assisting the parties in some way or writing amicus briefs or helping us to think through strategy,” he explained.

The working group comes from a wide swath of the legal community, including influential lawyers from Big Law and smaller firms.

Kanji, an advisor to the Project who represents the Creek as amicus in the McGirt case, singled out Gershengorn, who clerked for John Paul Stevens the same term Kanji clerked for Souter, saying “he specifically, and Jenner & Block more generally, have been very involved really from the get-go.”

The goal, Gershengorn said, “is to try to make sure that the tribes are being as well represented as the United States, as the state governments, as the best of private firm clients, and they’re getting the same level of advocacy that others who appear before the Court are getting.”

Kanji also pointed to Sidley Austin heavyweights Carter Phillips and Virginia Seitz as very helpful to the Project. He noted an amicus brief they took the lead on in United States v. Lara, a 2004 case involving tribal prosecution power.

Prominent federal judges Patricia Millett, appointed by President Barack Obama to the D.C. Circuit, and Jeffrey Sutton, appointed by President George W. Bush to the Sixth Circuit, also worked on tribal issues before taking the bench.

Millett argued Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, a 2012 case involving the government acquiring land for a tribe seeking to open a casino.

Shortly before he went on the bench, Sutton wrote an amicus brief in United States v. Navajo Nation, a 2003 case stemming from lease negotiations over mining on tribal lands.

Kanji said he called Sutton “out of the blue” to ask him to write a brief and Sutton called back that same day, even though he was on vacation.

Coordination Key

A big part of Project work is coordinating amicus briefs.

“Coordination at the earliest stage possible,” said NCAI general counsel Derrick Beetso, who heads the Project on that group’s end, “and just serving as a brain trust and technical assistance venue to make sure that, when we act as amici to educate different judiciaries, we do so in the best possible way that takes into consideration all of the tribes.”

When clerking, Kanji saw that the justices don’t “really have any obligation to read amicus briefs,” and so there’s been a “focus on streamlining the number of briefs, having them focus on different topics that add value, having counsel and or amici whose names the court will recognize and pay attention to on the briefs.”

Project in Action

The McGirt case is a repeat of sorts.

Last term, Gershengorn argued for Creek member Murphy, whose claim—that he shouldn’t have been prosecuted in Oklahoma state court because his crime really took place on reservation land—could have widespread consequences for that tribe and others, with the state warning of grave tax, regulatory, and crime fighting implications if the justices find the Creek’s 19th century boundaries haven’t since been undone by Congress.

Kanji argued for the Creek itself as an amicus, and hopes that the court will grant the Creek argument time again in McGirt.

But with only eight justices hearing Murphy’s case last term, they couldn’t reach a decision. Gorsuch was recused, presumably due to involvement when the case was at the Tenth Circuit, where he sat prior to his high court appointment.

Now with McGirt’s appeal, which raises the same issues without recusal concerns, all nine justices can weigh in. That sets up the possibility for Gorsuch to break a tie, with McGirt and supporters hoping the justice sides with them as he has in other tribal disputes.

Heading toward the McGirt argument, NARF’s Williams gave some insight into the process.

“What we do is we have a discussion that’s open to the entire Tribal Supreme Court Project working group just about the case generally, where we’ll have the lead attorneys”—here, Gershengorn—“and he’ll be on the call and talk about the case, describe the facts and posture and all of the legal issues, and there’s an opportunity for Q & A, anybody can ask questions during that call, provide feedback, provide their thoughts on law and strategy and all those sorts of things,” Williams said.

From there, he said, they formulate an amicus strategy and form a smaller working group that carries “right through the end” to make sure they’re “not duplicating efforts.”

Among the amicus briefs filed in the McGirt case are Kanji’s filing on behalf of the Creek as well as briefs from former federal prosecutors, advocacy groups concerned with indigenous women and domestic violence, and the Cherokee Nation, another one of the tribes that could be impacted by the ruling.

Playing Defense

The Project also sometimes works to keep disputes out of court, investing “significant resources in opposing certiorari in certain kinds of cases,” Sidley’s Phillips said, adding that he thinks the Project has been quite successful on that front.

Gershengorn observed that a brief opposing Supreme Court review can be the most important brief filed in a case.

He pointed to a case where his firm filed in a dispute—where tribal interests prevailed in the lower court—over when state law enforcement can follow someone onto a reservation.

Despite there being an alleged split in the lower courts on the “hot pursuit” question—the justices are more likely to take a case with a split—Jenner & Block filed an opposition brief and the justices rejected the state’s appeal.

“That’s a victory that never shows up in the annals of the court, in some ways,” Gershengorn said, “and yet, I think it was a potentially big victory for the tribes, to maintain a victory that they had won in a lower court.”

Pre-SCOTUS

More recently, Kanji observed, the Project is “coming down the chain in the courts of appeal and thinking ahead.”

One such case is pending in the Fifth Circuit, Brackeen v. Bernhardt, a closely-watched challenge to the constitutionality of the Indian Child Welfare Act, a law that seeks to keep children connected to their families and culture when making adoption and foster care decisions.

The case was argued Jan. 22 in front of the full circuit. It’s awaiting decision.

Briefs were strategized “just like a Supreme Court case,” Kanji said, “highly coordinated and a lot of outreach to good people to write the briefs.”

Michigan State law professor Kathryn Fort was one of the lawyers on the Fifth Circuit briefs.

“For us, as the tribal intervenors, obviously a lot of other tribes wanted to have a voice in that case, and so the Project was very helpful in coordinating that tribal amicus brief and handling all of the signatories,” she said.

The Project’s Brackeen involvement “is slightly unusual in that we typically don’t get that involved in a circuit case,” Williams noted. “It’s the Supreme Court Project.”

But the case, he said, “and this subject matter, ICWA, has such broad-reaching implications for tribes.”

On August 28, 2019, the United States Court of Appeals for the Sixth Circuit upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue a civil protection order against a non-Indian under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e).  See Spurr v. Pope, No. 18-2174 (6th Cir. Aug. 28, 2018).  This is the first decision of a federal appeals court to address tribal jurisdiction under section 2265(e) of VAWA.

Kanji & Katzen represented NHBP in all aspects of the case.

In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protection orders against “any person” for conduct occurring within a tribe’s Indian country.  Pursuant to this provision and NHBP tribal law, the NHBP Tribal Court issued a civil protection order barring the plaintiff, a non-Indian, from harassing and stalking a tribal member.  Rejecting plaintiff’s challenge to NHBP’s exercise of civil jurisdiction over her, the Sixth Circuit held that section 2265(e) “unambiguously” recognizes that tribal courts possess “the power to issue civil protection orders against any person in matters arising in the Indian country of the Indian tribe,” and that the provision’s reference to “any person” includes persons who are “Indian or non-Indian, tribal member or non-tribal member.”

Additionally, the Sixth Circuit concluded that tribal sovereign immunity barred plaintiff’s claims against NHBP and the NHBP Supreme Court.  It rejected plaintiff’s argument that 28 U.S.C. § 1331 abrogated tribal sovereign immunity, explaining that “[t]o upset the baseline rule of tribal immunity, the statute’s text ‘must unequivocally express that purpose’ – shout it, not whisper it.”

On July 23, 2019, the Bad River Band of the Lake Superior Tribe of Chippewa Indians filed suit against Enbridge in the United States District Court for the Western District of Wisconsin to force the decommissioning and removal of the Line 5 pipeline, which runs through twelve miles of sensitive habitat in the Bad River Reservation.  Enbridge has continued to operate the 66-year-old pipeline for six years since easements allowing it to maintain a right of way in the Reservation expired in 2013, and the Band’s action seeks to bring the company’s unauthorized presence to an end.  With each passing day, Enbridge’s continued unlawful operation of the pipeline threatens the Bad River watershed, including Lake Superior and the Kakagon and Bad River sloughs, which are complex freshwater estuaries stewarded by the Band for centuries and internationally recognized as some of the most sensitive freshwater estuarine ecosystems on earth.  While a significant threat of ruptures and leaks exists for the entire stretch of Line 5’s path across the Reservation, there is a looming disaster just east of where Line 5 presently crosses the Bad River, as the river channel is rapidly migrating towards the pipeline due to bank erosion.  Unless the pipeline is decommissioned and removed, the river will inevitably expose the pipeline, subjecting it to stresses that it was not designed to withstand and making a rupture all but certain.

The Band’s Complaint asserts public nuisance, trespass, and ejectment claims, and requests that the district court enjoin Enbridge from further use of the pipeline and require it to remove the pipeline from the Reservation.

Kanji & Katzen, P.L.L.C., the National Wildlife Federation, and Hooper Hathaway Price Beuche & Wallace represent the Bad River Band of Lake Superior Chippewa in this case.

Press Release

July 23, 2019 – Bad River Band of Lake Superior Tribe of Chippewa Indians

Chambers USA’s rankings for 2019 have been released and Kanji & Katzen, P.L.L.C. and its attorneys once again received stellar rankings.

As a firm, the team ranked as a top tier (Band 1) Indian law firm, sharing this honor with only three other firms in the United States.  The firm is praised for its ability to provide “such a strong marriage of Indian law and appellate expertise.  Their litigation expertise is very hard to match.”  Chambers quotes clients as attesting that “the team as a whole is first-rate” with “dedication, good judgment, superior writing and negotiation skills.”  A peer lawyer states that Kanji & Katzen attorneys “reach a level of excellence that few others have time for.  They are phenomenal lawyers.”

Founding Member, Riyaz Kanji, a “superb strategist and excellent lawyer,” is recognized as the only “Star Individual” among Indian law practitioners in the United States.  His peers describe him as “the leading Indian lawyer in the country” and as “a real thought leader in this area.”  Others note that “[h]e combines a deep knowledge of Indian law with a keen sense of how to craft a winning appellate argument.  He is relentless in pursuit of his client’s interest, but manages to keep an even keel.  Nothing ruffles him.”

Chambers USA also ranks Cory Albright as among the best Indian law practitioners in the United States and describes him as “a really strong writer” and “very good at the tactical and strategic elements of a case.”

All of the attorneys at Kanji & Katzen bring a commitment to excellence and creativity, and work tirelessly on behalf of our clients.  We are honored to be recognized by Chambers USA and to have the privilege of serving Indian nations and tribes on issues of vital importance.

Chambers, USA ranks the top attorneys and law firms across the United States.  These rankings are the result of a year-long process based on thousands of interviews conducted by over 200 full-time analysts.  Individual law firms are ranked based on the quality of their client service, technical legal ability, industry awareness, diligence, efficiency, and team depth.  Kanji & Katzen, P.L.L.C.’s rankings are available here.

In an order dated December 3, 2018, U.S. District Judge Jon D. Levy for the District of Maine provided that federal water quality standards developed by the U.S. Environmental Protection Agency (EPA) must remain in place to protect the sustenance fishing practices of the Houlton Band of Maliseet Indians, Penobscot Indian Nation, and other tribes in Maine.  See Maine v. Wheeler, No. 1:14-cv-00264-JDL, Doc. 162 (D. Me. Dec. 3, 2018).  While the Court granted EPA’s request for voluntary remand of its 2015 decisions under the Clean Water Act, which disapproved Maine’s proposed water quality standards for tribal waters because they did not “ensure a water quality sufficient to take fish from tribal waters for sustenance,” the Court denied Maine’s request to vacate those decisions pending remand.

These decisions provide the foundation for the water quality standards developed by EPA in 2016 to protect tribal sustenance fishing uses, also called the “Maine Rule.”  The Court further conditioned its remand order “upon the EPA (1) continuing the Maine Rule in effect during the remand period, and (2) not taking any action that would terminate or undermine the effectiveness of the Maine Rule without prior Court approval.”  This important ruling means that the waters where members of the Houlton Band of Maliseet Indians and of other tribes fish will continue to be protected while EPA reconsiders its decisions.

Kanji & Katzen, PLLC represents the Houlton Band in all aspects of this case and looks forward to working with the Band during the remand process to ensure that EPA carefully considers and protects Maliseet sustenance fishing practices under the Clean Water Act.

Wall Street Journal:  Supreme Court Revisits Westward Expansion

New York Times:  Is Half of Oklahoma an Indian Reservation? The Supreme Court Sifts the Merits

Tulsa World:  Life, tribal sovereignty at forefront of Oklahoma case before U.S. Supreme Court

E&E News:  Okla. Murder Spurs Tussle Over Tribal Control

On September 27, 2018, the United States District Court for the Western District of Michigan upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue and enforce civil protection orders against non-Indians under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e).  See Spurr v. Pope, No. 1:17-cv-1083 (W.D. Mich. Sept. 27, 2018).  This is the first federal decision to address tribal jurisdiction under section 2265(e) of VAWA.  Kanji & Katzen represents NHBP in all aspects of the case.

In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protective orders against “any person” for conduct occurring within a tribe’s Indian country.  Pursuant to this provision and NHBP tribal law, the NHBP Tribal Court issued a civil protection order barring the plaintiff, a non-Indian, from harassing and stalking a tribal member.  The district court decisively rejected the plaintiff’s challenge to tribal jurisdiction, holding that section 2265(e)’s plain text clearly confirms tribal authority to enter protection orders against non-Indians as well as Indians.

Additionally, the district court affirmed two important limitations on federal court review of tribal court decisions: (1) that tribal court determinations of tribal law do not by themselves serve as a basis for federal question jurisdiction, and (2) that outside of the habeas context, the Indian Civil Rights Act does not provide a federal cause of action to challenge tribal court decisions.

SEATTLE — Washington state must restore salmon habitat by removing barriers that block fish migration after the U.S. Supreme Court on Monday left in place a lower court order.

The justices divided 4-4 in the long-running dispute that pits the state against Northwest Indian tribes and the federal government. The tie serves to affirm a lower court ruling.

Justice Anthony Kennedy stepped aside from the case because he participated in an earlier stage when he served on the 9th U.S. Circuit Court of Appeals.

At issue is whether the state must pay billions to fix or replace hundreds of culverts — large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they’re too steep to navigate.

Leaders of several western Washington tribes cheered the decision Monday, calling it a victory that affirms their treaty rights while protecting salmon central to their way of life.

Jay Julius, chair of the Lummi Indian Business Council, said it was a win for treaty rights, river rights and salmon.

“This is not just about tribes’ treaty right to fish, but also the inherent right to harvest from a plentiful, healthy supply of salmon,” he said in a statement.

Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, said the decision would “open hundreds of miles of high quality salmon habitat that will produce hundreds of thousands more salmon annually for harvest by Indians and non-Indians.”

The Supreme Court in April heard the state’s appeal of a ruling by the 9th U.S. Circuit Court of Appeals. That court affirmed a lower court order in 2013 requiring the state to fix or replace hundreds of the highest-priority culverts within 17 years.

Washington has argued that its treaties with the tribes created no obligation to restore salmon habitat. It said the ruling would force it to perform work that wouldn’t benefit salmon because other barriers may completely block fish, and it would also make the state’s taxpayers responsible for fixing problems created by the federal government when it specified the design for the state’s old highway culverts.

“It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design,” state Attorney General Bob Ferguson said in a statement.

He said salmon can’t reach many state culverts because they are blocked by culverts owned by others, such as counties and the federal government.

“The Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling,” Ferguson said.

In seeking a Supreme Court review, Ferguson was at odds with other state officials, including Washington Gov. Jay Inslee and Public Lands Commissioner Hilary Franz.

“For some time now I’ve hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat,” Inslee said.

“It is time to stop fighting over who should do what,” Franz said.

The U.S. government sued Washington in 2001 on behalf of the 21 tribes to force it to replace the culverts with structures that allow fish to pass through. Because the pipes block salmon from reaching their spawning grounds, they deprive the tribes of fishing rights guaranteed by treaty, the lawsuit said.

In 2013, U.S. District Judge Ricardo Martinez ordered Washington to fix or replace more than 1,000 culverts blocking access to 1,600 miles (2,575 kilometers) of salmon habitat. He also set a deadline of 2030 for the high-priority barriers.

By next year, the state transportation department would have spent $200 million to fix 66 high-priority culverts with about 425 remaining, said Paul Wagner, who heads that agency’s fish passage program.

“It will be a big victory for fisheries,” said Bob Anderson, a law professor and director the Native American Law Center at the University of Washington.

He said that since 1905, the court has consistently upheld the tribal position that they have a right to a fair share of the salmon, and implied rights that go along with that. “This case is a logical extension of those prior decisions.”

State Sen. Reuven Carlyle, chairman of the Senate Energy, Environment and Technology Committee, said Monday’s ruling was “a forcing function to double down on every level to re-prioritize our approach to salmon.”

Carlyle said that while he doesn’t think the Legislature needs an immediate special session to address the ruling, work will be done ahead of the next legislative session that begins in January.

___

AP writers Mark Sherman in Washington, D.C., and Rachel La Corte in Olympia contributed.
Source: NYTimes