Significant Decisions in Indian Law by Bruce R Greene

Bruce R Greene Attorney at Law Significant Decisions Manchester Band of Pomo Indians v. United States, 363 F. Supp. 1283 (N.D. Cal. 1973). Set standards for proper investment practices required of Secretary of the Interior when managing Indian trust monies. Mattz v. Arnett, 412 U.S. 481 (1973), on remand, 48 Cal. App. 3d 454, 121 Cal. Rptr. 906 (1975), cert. denied, 425 U.S. 907 (1976). Jurisdictional case resulting in establishment of reservation boundary line, which doubled the size of the reservation. Captain Grande Band of Mission Indians v. Helix Irrigation Dist., 514 F.2d 465 (9th Cir. 1975), cert. denied, U.S. 874 (1975). Interpreted narrowly a federal statute conferring jurisdiction in state over certain matters relating to Indians and Indian reservations. People v. LeBlanc 399 Mich. 31,248 N.W.2d 199 (1976). Successful defense in Michigan Supreme Court to prosecution for violation of State’s fishing laws prohibiting the use of gillnets. Established treaty right to fish commercially with gillnets in Lake Superior. United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), on remand, 623 F.2d 488 (6th Cir. 1981), aff’d, 653 F.2d 277 (6th Cir.) cert. denied, 454 U.S. 1124 (1981). Treaty fishing case concerning Chippewas' off-reservation treaty fishing rights in approximately half of Lakes Superior and Michigan and one-fifth of Lake Huron. District Court ruled in favor of the tribes; the United States Court of Appeals affirmed and the Supreme Court declined to grant the State’s request to hear the case, thereby leaving the treaty rights in tact. Related cases: a.) United States v. Michigan, 505 F. Supp.467 (W.D. Mich.1980). Request for stay of decision denied. Court held that treaty fishermen fish as a matter of right. Non-Indian fishers fish as a matter of privilege. b.) United States v. Michigan, 89 F.R.D. 307 (W.D. Mich.1980). District Court denied intervention petition by a conservation club and sport fishing association. c.) United States v. Michigan, 508 F. Supp.480 (W.D. Mich. 1980). District Court issued a preliminary injunction to halt state court from implementing its order finding treaty fishermen in contempt of court for willfully violating an ex parte restraining order based on Indian’s presence in boat with box of gill nets, but without any fish. d.) United States v. Michigan, 623 F.2d 488, ( 6^th Cir.1980). Court of Appeals remanded to district court for consideration of preemptive effect of new, comprehensive federal regulations governing Indian treaty fishing in Great Lakes. e.) United States v. Michigan, 653 F. 2d 277 ( 6^th Cir. 1981). Court of Appeals affirmed the district court’s opinion upholding treaty rights to fish in much of Michigan’s Great Lakes’ waters. f.) United States v. Michigan, 520 F. Supp. 207 (W.D. Mich. 1981). District Court held that unless state showed necessity, irreparable harm and absence of effective Indian tribal self-regulation, state could not regulate gill net fishing by Indians in Great Lakes and, if state met those criteria, any regulations must be a necessary conservation measure, must be the least restrictive alternative method available for preserving fisheries in Great Lakes from irreparable harm and must not discriminatorily harm Indian fishing or favor other classes of fisherman. g.) United States v. Michigan, 712 F.2d 242 ( 6^th Cir.1983). Court of Appeals held that state court contempt orders violated supremacy clause as interfering with pending federal court resolution of fishing rights dispute. h.) United States v. Michigan, 12 ILR 3079 (W.D. Mich. 1985). District Court adopted the allocation plan contained in March 28, 1985 agreement that established management zones for treaty and non-treaty fishers. United States v. Montana 686 F.2d 766 (9th Cir. 1982). Appeal of district court judgment entered upon remand by United States Supreme Court in the Big Horn Riverbed decision. On behalf of the Crow Tribe, successfully argued that district judge after remand exceeded the scope of the decisions of the Court of Appeals and the Supreme Court. Keweenaw Bay Indian Community v. Michigan, 784 F. Supp.418 (W.D. Mich.1989). Successful litigation initiated to define reservation boundary, which turned on the meaning of the language in the 1854 treaty establishing the reservation. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wisc.1990), appeal dism’d, 957 F.2d. 515 (7th Cir.), cert. denied, 506 U.S. 829 (1992). Bad faith lawsuit under the Indian Gaming Regulatory Act, which successfully forced the state to negotiate about a wide range of games for inclusion in a tribal/state compact. Suit resulted in gaming compacts for 11 tribes in Wisconsin. Oregon v. Norton, 271 F. Supp. 2d 1270 (D. Or. 2003). Successfully defeated a challenge by the State of Oregon to the U.S. Department of the Interior’s decision that certain trust lands of an Oregon tribe were eligible for gaming under the Indian Gaming Regulatory Act as restored lands to a restored tribe. The tribe subsequently constructed and operates a $70 million gaming facility on those lands. Dewberry v. Kulongoski, 406 F. Supp. 2d 1136 (D. Or. 2005). Successfully defended against a challenge raised by a local citizens group regarding the Governor’s authority to enter into a compact amendment with the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians. Sault Ste. Marie Tribe of Chippewa Indians v. United States, 576 F. Supp. 2d 838 (W.D. Mich. 2008). Successfully overturned a decision by the U.S. Department of the Interior that a certain parcel of trust land was not eligible for gaming under the Indian Gaming Regulatory Act. District Court held the lands were contiguous to the tribe’s reservation and, therefore, were eligible for gaming. The tribe had already constructed a $41 million gaming facility on the land before the Interior Department had issued its adverse ruling. The United States declined to appeal the District Court’s decision. State ex rel. Dewberry v. Kitzhaber, 259 Or. App. 389, 313 P.3d 1135 (2013), review denied 354 Or. 838, 325 P.3d 739 (2014). The same group of local citizens who challenged in federal court the Governor’s authority to sign a gaming compact with the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, and lost, raised a similar challenge in State Court. This time, they also lost in the Circuit Court of Lane County, Oregon, and in the Oregon Court of Appeals. The Oregon Supreme Court, in 2014, denied a petition by the local citizens group to hear the case, leaving the Court of Appeals affirmance in place, and assuring the Tribe that its casino could continue to operate. Michigan v. Bay Mills Indian Community, ___ U.S. ___, 134 S. Ct. 2024 (2014). Successfully represented the Bay Mills Indian Community in a dispute with the State of Michigan over whether the Tribe could use special federal funds to purchase lands which would be eligible Indian lands for gaming under the Indian Gaming Regulatory Act (“IGRA”). The Supreme Court upheld the Tribe’s sovereign immunity, and rejected the State’s contention that it could sue the Tribe under a provision of IGRA. This was the first case before the Roberts Court where an Indian tribe prevailed on a matter raising an important principle of federal Indian law. Significant Matters: Class III Gaming Compacts in Michigan Successfully negotiated class III gaming compacts for seven Indian tribes in Michigan in 1993, pursuant to the Indian Gaming Regulatory Act. The compacts authorize the play of a full range of all games played in Nevada, and are the most liberal compacts in any state in the country. Class III Gaming Compacts in Wisconsin As the result of the Lac du Flambeau litigation referred to above, which authorized casino style gaming, including electronic gaming machines for the first time in Wisconsin, negotiated compacts for two tribes in 1991 and 1992 with the State of Wisconsin. Gaming Dispute in Wisconsin Successfully negotiated acrimonious dispute among Indian tribe, an Indian community school and a casino manager regarding the management and sharing of revenues from a large, urban casino in the city of Milwaukee. The resolution of the dispute consumed approximately 15 months (1995-1996) and required recruitment and selection of a mediator to assist in the negotiations. Class III Gaming Compact in Washington In lengthy dispute between the State of Washington and the Confederated Tribes of the Colville Indian Reservation, successfully represented the Colville Tribes in a civil forfeiture suit brought by the United States against all of the class III electronic gaming machines used by the Tribes at three casino venues. Thereafter, successfully negotiated on behalf of the Tribes a class III gaming compact with the State. Tax Agreement Lead counsel in two years of negotiations with the State of Michigan over state taxation issues. The negotiations led to an omnibus tax agreement between the State and most of the federally recognized tribes in Michigan regarding what taxes would be collected by the tribes, what portion of the tax collections would remain with the tribes and what portion belonged to the State. In addition, the tribes received generous allotments of tax-free cigarettes, and motor fuels, as well as exemptions for the tribes and tribal members from many state taxes. Consent Decree In 2007, completed successful negotiations with the State of Michigan over the rights of five tribes, party to the Treaty of 1836, to exercise their hunting, fishing, trapping and gathering rights under that Treaty in inland areas of the State. The negotiations concluded with the five tribes, the State and the United States entering into a Consent Decree in the U.S. District Court for the Western District of Michigan, which confirmed the tribes’ inland, usufructuary treaty rights. Carcieri Determination In 2009 the Supreme Court issued an opinion in Carcieri v. Salazar, ___ U.S. ___, 129 S. Ct. 1058 (2009), holding that the Secretary of the Interior lacked authority under the Indian Reorganization Act of 1934 (“IRA”), to take land into trust for a tribe unless that tribe was under federal jurisdiction at the time the IRA was enacted by Congress. Obtained a favorable determination from the Interior Department that the Sault Ste. Marie Tribe of Chippewa Indians was under federal jurisdiction in 1934, notwithstanding that the Tribe was not federally recognized by the United States until 1972. Presentations and Publications: Faith in Paper The Ethnohistory and Litigation of Upper Great Lakes Indian Treaties By: Charles E. Cleland with contributing authors Bruce R. Greene, Marc Slonim, Nancy N. Cleland, Kathryn L. Tierney, Skip Durocher, and Brian Pierson The University of Michigan Press, 2011 A comprehensive reference on the litigation of Indian treaty rights in the upper Great Lakes region. Chapter 7. United States v. Michigan, by Bruce R. Greene Chapter 13. Menominee Indian Tribe of Wisconsin v. Thompson, by Bruce R. Greene Chapter 15. Keweenaw Bay Indian Community v. Michigan, by Bruce R. Greene http://press.umich.edu/titleDetailDesc.do?id=226101 Minwaajimo Treaty Symposium 2011 “Telling a Good Story” By Great Lakes Indian Fish and Wildlife Commission, Odanah, Wisconsin http://www.youtube.com/watch?v=-DezmaYrivM Presentation by Bruce R. Greene, as part of the Legal Issues and History Panel, Fulfilling Ojibwe Treaty. Mr. Greene spoke about the origins and impact of the historic treaty fishing litigation in Michigan’s Great Lakes waters, known as United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), on remand, 623 F.2d 488 (6th Cir. 1981), aff’d, 653 F.2d 277 (6th Cir.) cert. denied, 454 U.S. 1124 (1981).