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Legal Developments in Indian Country in 2014

2014 was a year that featured many positive legal developments for tribes. From the favorable Supreme Court decision in the Bay Mills case written by Justice Sotomayor (who continues to be a leader on the Court for tribal interests) through the issuance by the U.S. Attorney General of principles for working with tribes, the year started and ended with key legal advancements for tribal interests. 

May: Bay Mills Decision

SCOTUS issued its opinion in Michigan v. Bay Mills Indian Community, which held that Michigan's suit against the Bay Mills Indian Community to enjoin the tribe from operating a gaming facility on non-Indian lands is barred by tribal sovereign immunity. Justice Sonia Sotomayor wrote the opinion and continued to raise a strong voice for Indian country. She has sided with tribal interests in five out of six Indian law cases since 2009 when she was sworn in, and shortly thereafter began immersing herself in "the Supreme Court's jurisprudence in that area, from its foundation."

May: Hon. Diane Humetawa

Another strong female voice advocating for tribal needs is newly appointed judge Diane Humetawa. In the spring of 2014, the Senate voted her unanimously into the position of U.S. District Court Judge for Arizona. Humetawa is a citizen of the Hopi tribe and had previously worked as a U.S. Attorney for Arizona under the George W. Bush administration, as well as an appellate court judge for the Hopi tribe and as special counsel and professor at Arizona State University. She is the first female Native American federal judge in U.S. history and the third Native American to hold such a position.

September: World Conference on Indigenous Peoples

2014 also saw increased action in support of the United Nations Declaration on the Rights of Indigenous Peoples. The United States issued its formal support for this declaration in 2010, and this past year took steps towards aligning actions with policies. In September, the first World Conference on Indigenous Peoples resolved to make substantial accomplishments over the next year and a half, including creating a permanent body in the UN that will oversee implementation of the Declaration, strengthening efforts to end violence against indigenous women, and protecting indigenous peoples' sacred lands.

September: Tribal General Welfare Exclusion Act

A key legislative victory from 2014 was passage of the Tribal General Welfare Exclusion Act. "The bill is designed to stop IRS efforts to tax tribal citizens who receive essential tribal government programs and services, such as housing, education, elder and child care, and cultural awards, among other things,” wrote Oglala Sioux Tribe President Bryan Brewer. With the passage of this bill, Indian Tribes are optimistic that federal tax policy may finally be coming into alignment with federal Indian law in a way that fully maintains the sovereignty of tribal governments.

September: Protection for Gun Lake Tribe's Land

In September, President Obama signed a new law that reaffirms the trust status of Gun Lake Tribe's 147-acre parcel of land in Bradley, Michigan, and bars current and future legal challenges. The land falls within Rep. Fred Upton's congressional district, and he proved instrumental in securing swift legislative action. After the announcement of passage of the bill, he commented "This is a victory for jobs and the economy here in Southwest Michigan. Having passed the House by a bipartisan two-to-one margin, this legislation reaffirms once and for all the Department of Interior’s action of taking this land into trust. . . The Gun Lake Tribe has created more than 1,000 jobs here in Allegan County and has shared revenues with the local municipality and schools."

December: Repeal of Section 910 of VAWA

In December, the Violence Against Women Reauthorization Act of 2013 was amended to repeal Section 910, which had excluded Alaska natives from several key protections. Senator Lisa Murkowski, who had originally championed Section 910, had argued at the time of passage in 2013 that Section 910 did not change the impact of the bill because even without it, the bill pertained only to “Indian country,” where tribes live on reservations and have their own court systems. As defined by federal law, there is almost no Indian country in Alaska.

But Murkowski’s “Alaska exception” in Section 910 had reopened a contentious debate surrounding criminal jurisdiction over Alaska Native villages and created confusion among law enforcement officials. The United States Senate unanimously passed the repeal of Section 910 in December, with Murkowski's full support.

December: Final Rule for Land

Another notable development in Alaska was the implementation of the Final Rule for Land, which now allows the Department of the Interior to accept land into trust for federally recognized Alaskan tribes.

December: AG Issues Order for Working with Tribes

Last month, the Office of the Attorney General issued an order entitled "Guidelines Stating Principles for Working With Federally Recognized Indian Tribes." The order is part of the Federal Register from December 12, 2014, and includes sections such as Culture and Mutual Respect, Law Enforcement and Litigation, Nation-Building and Tribal Justice Systems, and Sustainability. Click here for a broader discussion of the Order, here for the full Order and here for the Notice in the Federal Register.

2014 was a good year for tribes. We can only hope that the developments of 2015 build on these positive steps.

© 2022 Varnum LLPNational Law Review, Volume V, Number 35

About this Author

Fred L. Schubkegel, corporate attorney, Varnum

Fred provides general legal counsel to private business interests and nonprofit organizations. He has over 30 years of experience assisting for-profit and nonprofit companies with advice, strategies and services related to startup, growth, development and exit, including entity formation and governance, financing, contracts, mergers and acquisitions, executive compensation, asset protection and business succession planning.

Fred has extensive knowledge in real estate and economic development with a particular knack for packaging incentives and credits to make the...