Litigation

July 2, 2018

BLACKFEET TRIBE, COUSHATTA TRIBE OF LOUISIANA, FORT BELKNAP INDIAN COMMUNITY, ROSEBUD SIOUX TRIBE, UTE MOUNTAIN UTE TRIBE, and UNITED SOUTH AND EASTERN TRIBES, INC.,
Petitioners
vs.
FEDERAL COMMUNICATIONS COMMISSION, and THE UNITED STATES OF AMERICA,
Respondents

DOCUMENT

Petitioners challenge the FCC’s legal authority to promulgate regulations implementing the National Historic Preservation Act (“NHPA”) and categorically excluding itself from its statutory obligation to comply with Section 106 of the NHPA.

May 25, 2018

Chad Everet BRACKEEN, et al., Plaintiffs, v. Ryan ZINKE, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants., No. 4:17-868-O (N.D.Tex.)
Brief for Amicus Curiae including United South and Eastern Tribes, Inc.

DOCUMENT

Amici are individual federally recognized Indian Tribal Nations from across Indian Country, along with leading national and regional Indian organizations.  The vital protections provided by the Indian Child Welfare Act to Indian children, Indian families, and Indian tribes is of significant important to amici and their members.  The challenge to ICWA presented by Plaintiffs seek to diminish ICWA’s protections and undermine the unique trust responsibilities the United States owes to Indian children and Tribal Nations.

March 26, 2018

Poarch Band of Creek Indians v. Wilkes, 2018 WL 1512319 (U.S.)
Brief for Amicus Curiae United South and Eastern Tribes, Inc., in Support of Petitioners

DOCUMENT

State courts around the country have recognized that tribal sovereign immunity, like the immunity of other sovereigns, extends to tort claims to the extent not waived or abrogated. Yet, even as Tribal Nations have waived immunity in tribal court or otherwise provided for redress of such claims in a manner similar to other governments, some state courts have ignored that fact and complained that the lack of a state court remedy against tribal governments renders the doctrine of sovereign immunity intolerable and unjust when invoked by Tribal Nations. The extent of this phenomenon suggests that, were this Court to abstain from correcting the Alabama Supreme Court’s erroneous ruling, other state courts would view that abstention as permission to draw their own narrow boundaries around tribal sovereign immunity in contravention of this Court’s precedents and Congress’ policy judgments.

January 29, 2018

Upper Skagit Indian Tribe v. Lundgren, 2018 WL 637359 (U.S.)
Brief of Amici Curiae National Congress of American Indians, Association on American Indian Affairs, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Pueblo of Laguna, Pueblo of San Felipe, et al., in Support of Petitioner

DOCUMENT

If the United States, instead of the Tribe, had purchased the fee land in question, this lawsuit presumably would have been dismissed by Washington courts. Over the past 60 years,3 this Court has repeatedly stated that federal sovereign immunity cannot be evaded by sleights of hand such as naming a governmental official, or bringing an in rem action against government property. E.g., Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-86 (1983) (dismissing North Dakota’s suit seeking to quiet title to federal lands that supposedly passed into state ownership pursuant to the equal footing doctrine); Malone, 369 U.S. at 643-45 (holding that sovereign immunity barred an action for ejectment against a U.S. Forest Service official, where private plaintiffs claimed they *5 were the rightful owners of land purchased by the United States). If the government is the real party in interest, the suit is barred regardless of the named defendant, unless a clear and unequivocal waiver has been granted.4 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949).

September 25, 2017

PENOBSCOT NATION; United States, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, v. Janet T. MILLS, Attorney General for the State of Maine; Chandler Woodcock, Commissioner for the Maine Department of Inland Fisheries and Wildlife; Joel T. Wilkinson, Colonel for the Maine Warden Service; State of Maine; Town of Howland; True Textiles, Inc.; Guilford-Sangerville Sanitary District; City of Brewer; Town of, 2017 WL 4390111 (C.A.1)
Brief of Amici Curiae National Congress of American Indians and the United South & Eastern Tribes, Inc., Supporting Petitions for Rehearing/Rehearing En Banc

DOCUMENT

Amici agree with Petitioners, the Penobscot Nation (“Nation”) and the United States, that the Panel’s decision conflicts with Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918), and Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007).  In addition, and of great concern to Amici, the Panel applied the incorrect legal standard to interpret the Maine Indian Claims Settlement Act (“MICSA”),1 including provisions incorporating the Maine Implementing Act2 (together, “Settlement Acts”). The Panel ignored general rules of statutory construction, and the particular rules for construing statutes enacted for the benefit of Indians. The Panel also ignored the longstanding Supreme Court and First Circuit rule that Congress must act clearly when it divests a Tribe of its existing rights, and that all rights not clearly abrogated remain with the Tribe.

September 7, 2017

THE MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Appellant, v. Lewis TEIN, P.L., Guy Lewis, and Michael Tein, Appellees., 2017 WL 4891289 (Fla.App. 3 Dist.)
United South and Eastern Tribes, Inc. And National Congress of American Indians Amici Curiae Brief in Support of Appellant’s Opposition to Appellees’ Motion for Certification

DOCUMENT

The Court’s decision upholding tribal sovereign immunity was correctly reached and in line with well-established law. A decision by the Court to now certify appellees’ question as an issue of great public importance warranting Florida Supreme Court review would breathe life into appellees’ wrongful attempt to narrow tribal sovereign immunity. It would imply that case law regarding tribal sovereign immunity in this context is anything less than steadfast and clear. Amici therefore have a strong interest in urging this Court not to certify the question to the Florida Supreme Court.

February 21, 2017

Standing Rock Sioux et al. v USACE and DAPL, No. 16-cv-1534 (D.D.C.)
Memo in Support of Tribe’s Motion for Partial Summary Judgment

DOCUMENT

DAPL Amicus Workgroup – NCAI, Tribes, Organizations Filed February 21, 2017

The Amici Tribes have suffered the vast loss of lands and other fundamental resources and rights reserved to them under law, often by solemn treaty obligation, when the federal government determined it was advantageous to disavow its prior commitments to them. Some of the most grievous losses are not remnants of a distant past, but as in the case of the Standing Rock Sioux Tribe and other Sioux nations, took place within living memory. The loss of tribal lands, communities, and indeed entire ways of life due to the infrastructure projects, development, and rampant pollution of the twentieth century is an all-too-familiar tale for Indian peoples, and examples of such dispossession span the breadth of the country.

January 23, 2017

THE MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Appellant, v. Lewis TEIN, P.L., Guy Lewis and Michael Tein, Appellees., 2017 WL 3835485 (Fla.App. 3 Dist.)
USET Amicus Brief in Support of Appellant

DOCUMENT

USET Sovereign Immunity Amicus (Miccosukee Tribe of Indians of Florida) January 23, 2017

In the modern era, tribal sovereign immunity has taken on new significance for Indian tribes across the United States. As Indian tribal economies have had an increasingly significant impact on the surrounding communities and economies, tribes have developed advanced court systems, adopted government tort claims acts similar to federal and state governments, and entered into countless contracts and agreements where they have carefully negotiated limited waivers of sovereign immunity for a myriad of purposes and as part of a bargained-for exchange. All of these developments are based on established doctrines regarding the nature of tribal sovereign immunity found in federal law and set forth in this memorandum. The decision below tears at the fabric of these doctrines in a manner that destabilizes this area of law and would undermine well-recognized tribal authority to define the terms of sovereign immunity waivers.

December 21, 2016

Lewis v. Clarke, 2016 WL 7644925 (U.S.)
Brief for Amici Curiae Seminole Tribe of Florida, et al., in Support of Respondent

DOCUMENT

Amici Tribes and USET member Tribal Nations (collectively “Amici Tribes”) have a strong interest in this case because of its potential impact on the scope of immunity for tribal officials and employees and the range of core sovereign interests that immunity protects.4 But Amici Tribes’ interest in this case also extends to its potential impact on a wide array of negotiated intergovernmental agreements and tribal laws that govern Amici Tribes’ working relationships with their sister governments and commitments to individual state and tribal citizens, and which specify tort remedies and immunity waivers as negotiated *3 between the sovereigns and as appropriate to the specific parties and their situations. These agreements include Tribal-State gaming compacts entered into under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA), through which Congress has preempted the field of Indian gaming. Under the IGRA, Tribes and States that wish to negotiate remedies for tort claims related to Class III gaming must use the Tribal-State compact process.

May 11, 2016

Redding Rancheria v Burwell,
Brief of ANHB et al in Support of Reddings Cross-Motion for Summary Judgment

DOCUMENT

Amicus Brief in support of Redding Rancheria Civ. No. 14-2035 May 11, 2016
HSDW Memo March 27, 2017: Report on the Oral Argument Held Friday, March 24, 2017 in Redding Rancheria v. Price

Amici and their member tribes have a strong interest in this litigation because the IHS has taken the position in its briefs that Section 2901(b) of the Affordable Care Act (ACA), 25 U.S.C. § 1623(b), overrides the IHS’s longstanding policy exempting tribal self-insurance plans from its “payer of last resort” rule for purposes of CHS and CHEF. This is the first time the IHS has taken such a position in the six years since that provision was enacted by Congress.

April 28, 2016

Shinnecock Indian Nation v. State of New York, 2016 WL 1715308 (U.S.)
Brief for Amici Curiae Federal Indian Law Professors, National Congress of American Indians, and United South & Eastern Tribes, Inc. in Support of Petitioner

DOCUMENT

Amicus Brief in support of Shinnecock Indian Nation No. 15-1215 April 28, 2016

We submit this brief to highlight the extent to which the remarkably troubling ruling below – conferring a large and amorphous “equitable” immunity, based on the “disruption” associated with the passage of time, for violations of federal statutes, treaties, and common law – (1) undermines responsible reservation governance initiative and interrupts a long history of good faith resolution of Indian claims in accordance with the United States’ duty of protection to Indian nations and Indian people, and (2) contravenes the considered judgments of the executive and legislative branches and of this Court.

March 17, 2016

Little River Band of Ottawa Indians Tribal Government v. N.L.R.B., 2016 WL 1069393 (U.S.)
Brief for Amici Curiae United South and Eastern Tribes, Inc., Et Al.,* in Support of Petitioner

DOCUMENT

USET Participates in Little River Band of Ottawa Amicus Brief – March 17, 2016

Amici share a strong interest in this case because of the impact the Sixth Circuit’s ruling will have on their ability as governmental entities to regulate the presence and conduct of labor organizations on their tribal lands, and to effectively manage the impacts of organized labor activity on their delivery of essential governmental services to tribal citizens. As illustrated in this brief, many Tribes including amici and USET member Tribes have in place tribal laws to govern public sector employment and protect governmental programs, services, and interests.3 The ruling below threatens the ability of Tribes to adopt and enforce those laws. As such, this case implicates the self-government rights and sovereign interests of amici Tribes and USET member Tribes.

March 17, 2016

Soaring Eagle Casino and Resort v. N.L.R.B., 2016 WL 1069013 (U.S.)
Brief for Amici Curiae United South and Eastern Tribes, Inc., et al.* in Support of Petitioner

DOCUMENT

Amici share a strong interest in this case because of the impact the Sixth Circuit’s ruling will have on their ability as governmental entities to regulate the presence and conduct of labor organizations on their tribal lands, and to effectively manage the impacts of organized labor activity on their delivery of essential governmental services to tribal citizens. As illustrated in this brief, many Tribes including amici and USET member Tribes have in place tribal laws to govern public sector employment and protect governmental programs, services, and interests.3 The ruling below threatens the ability of Tribes to adopt and enforce those laws. As such, this case implicates the self-government rights and sovereign interests of amici Tribes and USET member Tribes.

December 24, 2015

CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON, Plaintiff-Appellant. Clark County, Washington, et al., Plaintiff-Appellants, v. Sally Jewell, in her official capacity as Secretary of the Interior, et al., Defendants-Appellees. Cowlitz Indian Tribe, Intervenor-Appellee., 2015 WL 9433460 (C.A.D.C.)
Brief Of United South And Eastern Tribes, Inc. And Jamestown S’Klallam Tribe As Amici Curiae In Support Of Intervenor-Appellee, Supporting Affirmance

DOCUMENT

USET-member Tribal Nations retain only small remnants of their original homelands today. Since the Indian Reorganization Act of 1934 (“IRA”) was enacted, USET-member Tribal Nations have been able to purchase land and petition the Secretary of the Interior (“Secretary”) to place that land into trust status for a wide variety of purposes. The interpretation of the IRA is therefore of special *2 importance to USET and is an area of federal Indian law in which USET has developed particular expertise

October 22, 2015

Dollar General Corporation v. Mississippi Band of Choctaw Indians, 2015 WL 6406720 (U.S.)
Brief of Amici Curiae National Congress of American Indians, et al.,* in Support of Respondents

DOCUMENT

National Tribal Amicus Brief Dollar General Corporation v MBCI October 22, 2015

Amici share a strong interest in this case because of the sweeping impact its resolution could have on their ability (or the *2 ability of their member Tribes) to exercise civil adjudicative jurisdiction over nonmembers on tribal lands. Amici’s interest in maintaining such jurisdiction stems from their interests in tribal self-government and the protection of their members and territories; in the maintenance and enforcement of civil law and order on tribal lands; and in ensuring that justice and the protection of the law are extended to all persons on reservation lands.

September 17, 2014

STATE OF ALABAMA, Plaintiff-Appellant, v. PCI GAMING AUTHORITY, et al., Defendants-Appellees., 2014 WL 4784160 (C.A.11)
Brief of United South and Eastern Tribes, Inc. as Amicus Curiae in Support of Defendants-Appellees and Supporting Affirmance

DOCUMENT

USET Amicus Brief (State of AL vs PCI Gaming Authority) – Filed Sept 17, 2014

The State of Alabama (the “State”) seeks to collaterally attack the trust status of lands that have been held in trust by the United States for the Poarch Band of Creek Indians (the “Tribe”) pursuant to the Indian Reorganization Act (the “IRA”) for over nine and up to 20 years. USET agrees with the Tribe that the claims made by the State cannot be raised in this case and in this forum, and were properly dismissed by the District Court.

May 13, 2014

Harrison v PCI Gaming d/b/a Creek Entertainment, No. 1130168 (Supreme Ct. of Ala.)
Brief of USET and NCAI as Amici

DOCUMENT

Amicus Brief FILED: Harrison Family v PCI Gaming May 13, 2014

While USET and NCAI take no position on the underlying merits of the dispute at issue in this case, their member tribes have a strong common interest in opposing Appellant Harrison’s attempt to collaterally attack the very existence of the Poarch Band of Creek Indians in an effort to overcome the doctrine of tribal sovereign immunity from suit.

November 6, 2013

THE CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON, and Clark County, Washington, et al., Plaintiffs, v. S.M.R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants, and COWLITZ INDIAN TRIBE, Intervenor-Defendant.
Brief of USET and Jamestown S’Kallam Tribe as Amici in Opposition to Plaintiffs’ Motion for Summary Judgment

DOCUMENT

USET Jamestown Amicus Brief Submitted November 6, 2013

For the amici, the reacquisition and rebuilding of their homelands is of critical importance to achieving their goal of economic self-sufficiency as self-governing entities. The revenues generated from economic development enterprises on trust and reservation lands provide each tribe with the ability to strengthen its tribal government, improve the quality of life of its members and provide capital for other economic development and investment opportunities.

October 31, 2013

State of Michigan v. Bay Mills Indian Community, 2013 WL 5915052 (U.S.) (U.S.,2013)
Brief of Amici Curiae Seminole Tribe of Florida, et al., in Support of Respondent Lytton Rancheria Coeur d’Alene Tribe Kickapoo Traditional Tribe of Texas Pueblo of Acoma Absentee Shawnee Tribe Navajo Nation Wichita and Affiliated Tribes Cherokee Nation Seminole Nation of Oklahoma Sault Ste. Marie Tribe of Chippewa Indians Jamestown S’Klallam Tribe

DOCUMENT

Amicus Brief MI v. Bay Mills Indian Community – October 31, 2013

  1. Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (“IGRA”) but takes place outside of Indian lands.

 

2. Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

March 27, 2013

Adoptive Couple v. Baby Girl, 2013 WL 1279467 (U.S. 2013)
Brief of Amicus Curiae Seminole Tribe of Florida, et al., in Support of Respondents

DOCUMENT

Amicus Brief Filed in Supreme Court in ICWA Case – USET March 27, 2013

As federally recognized Tribes and Indian or tribal organizations, amici have extensive knowledge and experience with regard to the operation of the Indian Child Welfare Act (ICWA). In particular, amici have first-hand knowledge of ICWA’s importance in protecting Indian children’s citizenship ties to their Tribes. The realization and protection of these citizenship ties is critical both to tribal self-governance and to the full exercise of the rights and responsibilities available to Indian children eligible for tribal citizenship. Accordingly, amici have a strong interest in ensuring the proper and constitutional interpretation of ICWA as legislation protecting tribal citizenship.

October 5, 2012

Confederated Tribes of Grand Ronde Cmty. of Oregon v. Salazar, CIV.A. 11-284 RWR, 2012 WL 3757655 (D.D.C.),
BRIEF OF UNITED SOUTH AND EASTERN TRIBES, INC. AND JAMESTOWN S’KLALLAM TRIBE AS AMICI CURIAE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

DOCUMENT

USET Cowlitz Amicus Brief accepted by court for review

For the amici, the reacquisition and rebuilding of their homelands is of critical

importance for achieving their goal of economic self-sufficiency as self-governing entities. The revenues generated from economic development enterprises on trust and reservation lands provide each tribe with the ability to strengthen its tribal government, improve the quality of life of its members and provide capital for other economic development and investment opportunities.

January 27, 2012

National Federation of Independent Business v. Sebelius, 2012 WL 293713 (U.S.)

DOCUMENT

The 449 tribes across the nation who are amici or members of amici tribal organizations represented on this brief are direct beneficiaries of several Indian-specific provisions included in the Patient Protection and Affordable Care Act (“Act” or “ACA”)2 that have a purpose and genesis separate and distinct from the minimum coverage provision that the Eleventh Circuit Court of Appeals declared unconstitutional but severable from remaining provisions of the Act.3 The Indian-specific provisions of the ACA are legally separable from the remainder of the Act, because they solely relate to the Federal responsibility to provide health care to Indian tribes and their members, and are of critical importance to the delivery of health care services to Indian tribes and their members throughout the country.

April 7, 2011

STATE OF FLORIDA, By and Through Attorney General Pam Bondi, et al, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al, Defendants-Appellants., 2011 WL 1461594 (C.A.11)
Brief of Amici of the NIHB et al in Support of Appellants and for Reversal of the decision Below

DOCUMENT

The close to 350 tribes across the nation who are amici or members of amici tribal organizations represented on this brief are directly affected by the district court’s decision to invalidate the Patient Protection and Affordable Care Act (“Acf or “ACA”) in its entirety, including several Indian-specific provisions that have a separate purpose and genesis from the individual mandate declared unconstitutional by the court. These Indian-specific provisions are legally separable from the remainder of the Act, are related solely to the Federal responsibility to provide health care to Indian tribes and their members, and are of critical importance to the delivery of health care services to Indian tribes and their members throughout the country. If this Court reaches the question of severability, the amici have a strong interest in ensuring that the analysis includes a thoughtful consideration of the severability rules as applied to these separate and separable Indian-specific provisions of the Act.