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Indian Nations Law Update - December 2013

December 09, 2013

Supreme Court Hears Oral Argument in Bay Mills Case
Oral arguments were heard December 2 in the case of Michigan v. Bay Mills Indian Community. The Bay Mills Indian Community (Tribe) had opened a casino on land off reservation that it claimed to be within the "land claim settlement" exception to the prohibition against gaming on lands acquired after the enactment of the Indian Gaming Regulatory Act (IGRA). The National Indian Gaming Commission (NIGC) determined that the land did not fall within the exception and, therefore, was not "Indian land" where gaming could be conducted under IGRA. The NIGC declined, however, to order the casino closed, asserting that its enforcement powers extended solely to gaming on Indian lands. The State of Michigan sued the Tribe directly for money damages and injunctive relief, asserting that the Tribe’s sovereign immunity should not protect it from a state suit to enforce state law off reservation. The Tribe suspended operations pending the outcome of litigation.

During oral argument, Michigan focused on the fact that, under the Foreign Sovereign Immunities Act, Michigan would be able to sue a foreign sovereign, like France or Germany, for alleged illegal activities of a commercial nature and that, under Supreme Court precedent, Michigan could also sue another state but that, under the Court’s 1998 decision in Kiowa, Michigan could not sue a tribe. The Tribe argued that there was no reasons to depart from the Kiowa ruling and that Michigan has other means of enforcing state law to shut down an illegal tribal gaming operation off reservation, including a suit for injunctive relief under the Ex Parte Young doctrine or criminal enforcement actions against the individuals operating the casino. The court will decide the case before its term ends in June, probably much earlier.

BIA Amends Fee-to-Trust Regulations
On November 13, the Bureau of Indian Affairs (BIA) published a final rule amending the fee-to-trust regulations at 25 C.F.R. Part 151 to remove the requirement that the Secretary of the Interior publish a notice of intent to take land into trust in the Federal Register or in a newspaper of general circulation at least 30 days before acquiring title in trust. The 30-day notice requirement, adopted in 1996, was based on the assumption that the Quiet Title Act prohibition against suits challenging title to trust lands would make a challenge impossible once the Secretary had taken title and that the 30-day window was necessary to allow suits to be filed before the acquisition became final. The amendment reflects BIA's determination that the 30-day notice is unnecessary in light of the Supreme Court’s decision in Match-E-Be-Nash-She-Wish Band v. Patchak, 132 S.Ct. 2199 (2012). In that case, the Court held that a person challenging the Secretary’s acquisition of land in trust, but not asserting his title to the land, could bring suit at any time within the six-year statute of limitations for actions under the Administrative Procedure Act (APA), even if the Secretary had already accepted a deed in trust.

The new rule clarifies that notice of fee-to-trust decisions by BIA officials below the Assistant Secretary-Indian Affairs (AS-IA) will be published in a local newspaper of general circulation and that persons wishing to challenge such decision must exhaust administrative remedies by filing a notice of appeal pursuant to the 25 C.F.R. Part 2 procedures within 30 days. Fee-to-trust decisions by the Secretary or AS-IA, by contrast, are "final actions" within the meaning of the APA and subject to federal court challenge.

Godfrey & Kahn to Present on Financing Renewable Energy at NAIHC Symposium
Brian Pierson, leader of Godfrey & Kahn’s Indian Nations Law team, and John Clancy, leader of the firm’s Environmental and Energy Strategies team, will present "Financing Renewable Energy for Indian Housing" from 10:45 a.m. - 12:15 p.m. on Wednesday, December 11, 2013 at the Venetian in Las Vegas as part of the National American Indian Housing Council’s (NAIHC) Annual Legal Symposium.

The presentation will describe strategies and financing sources to help tribes and Tribally Designated Housing Entities (TDHEs) achieve energy independence consistent with tribes’ Seven Generations tradition. We will describe how tribes and TDHEs can partner with developers to take advantage of federal investment tax credits and other tax benefits. Business structures and related leasing issues, including the HEARTH act and Wind and Solar Resources leases, will also be addressed. We will explain how reduced energy costs and state and federal grants can cover additional portions of development costs. Finally, we will discuss development of generation facilities that can power both tribal enterprises and tribal housing and the permissible uses of the Indian Housing Block Grant and other financing sources in connection with such projects. We will illustrate recommended clean energy strategies with cases studies.

To register, click here to visit NAIHC’s website.

Godfrey & Kahn has extensive experience working with tribes to achieve energy independence and sustainability goals. For more information, contact Brian Pierson at 414.287.9456 or

Tribal Renewable Energy Conference to be Held in Milwaukee Feb. 20-21
Law Seminars International will present "Tribal Energy Development in the Great Lakes," a two-day conference to be held February 20-21, 2014 at the Hyatt Regency Hotel in Milwaukee. Godfrey & Kahn Indian Nations Law team leader Brian Pierson and Forest County Potawatomi Attorney General Jeffrey Crawford will serve as co-chairs.

Renewable energy development has become a top priority for many Midwest Tribes seeking to (1) strengthen sovereignty through energy independence, (2) promote environmental stewardship by transitioning from reliance on energy from coal-fired plants that contribute to climate change and contaminate reservation air and waterways and (3) reduce long term energy costs. Conference topics will include:

  • Environmental challenges that Great Lakes tribes face and the renewable energy resources available
  • Interaction between energy law, environmental law and Indian law in the development of tribal renewable energy resources
  • Long term competitive outlook for renewable energy
  • Federal, state and private grant, loan and other incentive programs, including investment tax credits, and practical tips for taking advantage of them
  • Case studies of renewable energy projects currently being pursued by Midwest tribes
  • Environmental issues for combustion-related generation and their impact on energy markets
  • New leasing rules for renewable energy development
  • Tribal utilities

For more information, including the draft agenda and registration information, click here to visit the LSI website.

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