March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Several Indian Country Bills Enacted into Law: Indian Nations Law Update December 2016

The Dam Repairs and Improvements for Tribes Act (S. 2717) (DRIFT Act) and the Irrigation Rehabilitation and Renovation for Indian Tribal Governments and Their Economies Act (S. 438) (IRRIGATE Act) were both enacted as part of the Water Infrastructure Improvements for the Nation Act (S. 612) (WINN Act) at the end of the 114th Congress. The DRIFT Act authorizes up to $229.25 million over six years to fix aging dams on or near reservations. The IRRIGATE Act authorizes up to $175 million over five years to fix and maintain irrigation systems in Indian country. A number of other bills included in the Winn Act address concerns of individual tribes, including fee to trust acquisitions, lands swaps and water settlements. 

Indian Country legislative agenda uncertain under Trump Administration

As the 114th Congress draws to a close, major tribal priorities remain unaccomplished. Authorization for the Native American Housing Assistance and Self-Determination Act (NAHASDA) expired in 2013. Funding has been flat for years despite increasing need. Prospects for increases in funding are poor as long as the law remains unauthorized. The primary obstacle to reauthorization appears to be certain lawmakers’ concern that funding for Native Hawaiians, currently Title VIII of NAHASDA, would lead to executive branch recognition of a Native Hawaiian government.

Since 2009, tribes have sought to amend the Indian Reorganization Act to address the consequences of the Supreme Court’s decision in Carcieri v. Salazar, holding that only tribes “under federal jurisdiction” in June 1934 could apply to have land taken into trust. The “Carcieri Fix” has failed due to controversies surrounding off-reservation gaming.

The Tribal Labor Sovereignty Act would give tribes the same exemption from federal labor laws enjoyed by state and municipal governments. The Obama administration had opposed the act in the absence of provisions requiring that tribes adopt labor laws with labor protection provisions similar to those available under federal law. 

Supreme Court to Hear Oral Arguments in Sovereign Immunity Case Jan. 9

The Supreme Court has scheduled oral argument in Lewis v. Clarke Jan. 9, 2017. The plaintiffs in the case sued a limousine driver employed by a tribal gaming enterprise for causing their injuries from a motor vehicle accident on an interstate highway in Connecticut. The case will determine whether an official employee of a tribe, acting within the scope of his or her duties, is protected by tribal sovereign immunity from a lawsuit in which the plaintiffs seek no relief from the tribe, but instead seek only money damages from the defendant. The U.S. Solicitor’s Office has filed a brief that sovereign immunity does not apply under these circumstances but that the federal common law “official immunity” doctrine should be applied to tribes. That doctrine, which extends immunity to officials sued individually under certain defined circumstances, typically would not apply to common motor vehicle negligence.

Copyright © 2023 Godfrey & Kahn S.C.National Law Review, Volume VI, Number 354

About this Author

Brian Pierson Tribal Lawyer Godfrey Kahn Law Firm

Brian Pierson leads Godfrey & Kahn's Indian Nations Law Team. Brian clerked for federal district judge Myron L. Gordon before entering private practice. Brian has more than 20 years experience representing Indian tribes, beginning with his successful representation of Chippewa Indians in federal court litigation to prevent racially-motivated interference with treaty-reserved, off-reservation fishing rights.

As leader of the firm's Indian Nations team, Brian's primary objective is to draw on the knowledge and experience of G&K's attorneys to assist tribes in formulating and...