FEDERAL INDIAN L AW

Newsletter of the Federal Bar Association

Indian Law Section
Fall 2006 Issue

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A Word From
THE CHAIR
By D. Michael McBride III
First, my thanks to Elizabeth Kronk, chair of the Indian
Law Section’s Newsletter Committee, and the newsletter edi-
tor of Federal Indian Law.
Elizabeth also serves as chair
of the Washington, D.C.
Indian Law Conference. The
theme this year is: “New
Challenges in Indian
Country: Obstacles or
Opportunities?” set for Friday,
October 20, 2006. Elizabeth,
formally a Washington, D.C.,
lawyer, recently took the posi-
tion of assistant professor at
the University of Montana
Law School.
We thank Elizabeth for
her tremendous efforts not
only with this newsletter, but
the outstanding conference in
Washington this month. We
have lots of plans and thoughts regarding the newsletter, and
hope if you have any ideas for stories, if you would like to
write an article, contact Elizabeth or myself. We hope to con-
tinue the newsletter efforts on a quarterly basis.
We are also planning for the 32nd Annual Indian Law
Conference in Albuquerque, set for April 18–20, 2007. Mark
your calendars!
Professor Matthew L.M. Fletcher will serve as the lead
conference chair for this conference. Matthew is assistant
professor at Michigan State University College of Law and
director of the MSU Indigenous Law Center. Matthew is
joined by Del Laverdure, a tribal attorney for the Crow Tribe,
Jennifer Weddle, an associate with Holland & Hart in
Denver and John Wernet lawyer for the governor of
Michigan. The FBA Annual Federal Indian Law Conference
is the premiere Indian Law Conference in the country.
My thanks to Donna Goldsmith for her leadership as
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chair of the section this past year, and as long time deputy
chair to the section. Through her dedication and leadership,
she has helped grow the conference to over 750 attendees.
We also thank Allie Greenleaf Maldonado, lawyer for Little
Traverse Bay Band of Odawa Indians who has served as lead
conference chair in 2006 and co-chair in prior years. Keep
your eyes peeled for a flyer in November or December
announcing more details about the annual program.
Now more about the Washington, D.C. Indian Law
Conference. The D.C. conference is co-sponsored with the
National Native American Bar Association and the Native
American Bar Association of Washington, D.C. This year’s
conference will feature panels on Federal Indian Law 101,
Hot Issues inside the Beltway: Class II Gaming, 1813 Rights
of Way, and a Federal Court Update. Other panels include
Tribal Responses to Meth, Future of Tribal Land Claims,
Administrative Issues Involving Trust Reform, and Tribal
Campaign Contributions. We are honored to have confirmed
Carl Artman, the nominee for assistant secretary of Interior,
Indian Affairs, to give us the keynote lunch speech.
My second goal for this bar year is to increase participa-
tion of our members in the section. As a national restructur-
ing of FBA sections and divisions, we have new bylaws
recently approved by the FBA Executive Committee. Some
of the committees include: Committee on the Development
of Federal Indian Law; Committee on Public Education;
continued on page 2
INSIDE THIS ISSUE
Supreme Court Review ..........................................page 3
Naftaly v. Keweenaw Bay Indian Community
Narragansett Indian Tribe v. Rhode Island
Delaware Nation v. Pennsylvania
Walton v. Tesuque Pueblo
San Carlos Apache Tribe v. Arizona
Means v. Navajo Nation
Bruner v. Oklahoma ex rel. Oklahoma Tax Commission
Dark-Eyes v. Connecticut Commissioner of Revenue Services
South Dakota v. Department of Interior
Morris v. Tanner
Utah v. Shivwits Band of Paiute Indians
Legislative Update ................................................page 4
◆ ◆
INDIAN LAW SECTION continued from page 1
Federal Bar Association
2215 M Street NW
Committee on Legislation; Committee
Washington, DC 20037
(202) 785-1614
on Tribal Justice; Newsletter
Fax (202) 785-1568 Committee; Committee on
www.fedbar.org Programming and Continuing Legal
Education; and Committee on
D. Michael McBride III Membership.
CHAIR There are numerous excellent lead-
Sneed Lang PC ership opportunities within the larger
1700 Williams Center Tower I FBA as well. If you have interest in par-
One West Third Street
ticipating and would like an appoint-
Tulsa, OK 74103-3522
(918) 583-3145
ment to a section committee or other
mmcbride@sneedlang.com leadership, please send me an e-mail.
We will make appointments soon.
Elizabeth Ann Kronk Thanks also to O. Joseph Williams,
EDITOR a lawyer in Norman, Okla. for serving
Assistant Professor, University of Montana as our section’s liaison to a joint edito-
Law School rial board effort to draft model tribal
elizabeth.kronk@umontana.edu laws. Early efforts include a model
Uniform Commercial Code and a
Michelle Carr
CONTRIBUTING EDITOR
model tort claims act. The models pro-
General Counsel, Aqua Caliente Tribe vide good starting points to assist tribal
mcarr2@gonzaga.edu governments in addressing their indi-
vidual circumstances and regulatory
Kimberlee Dunlop needs. We also owe deep gratitude to
CONTRIBUTING EDITOR Professor Emeritus Fred Miller from the
Associate, Holland & Knight LLP University of Oklahoma, College of
kimberlee.dunlop@hklaw.com Law for his decade and a half of
research and work in this area.
Casey Ross-Petherick
CONTRIBUTING EDITOR
I hope that each of you will consid-
Assistant Director, Native American Legal er becoming more active in the section
Resources Center
Oklahoma City University School of Law
CRossPetherick@okcu.edu
and I encourage you to call me at (918)
583-3145 or e-mail me at
mmcbride@sneedlang.com. Let me
know your thoughts on what the sec-
tion is doing and, of course, what it
could or should be doing.
We are studying the possibility of a
change of location for the Annual con-
ference for 2008. Our primary criteria
are cost (including hotel, airport service
and ground transportation), accommo-
dation of our large size, central location
within Indian country and growing our
law students, young lawyers and tribal
leaders’ involvement. All things being
equal we would love to hold the confer-
ence at a tribally-owned resort. Please
share your ideas with me.
Finally, and most importantly, we
thank Lawrence Baca, U.S.
Department of Justice, deputy director,
Office of Tribal Justice, and section
chair emeritus for his continuing wis-
dom, guidance and unfaltering commit-
ment to federal Indian Law.
Mvdo!
D. Michael McBride III, section chair,
directs the Indian Law and Gaming
Practice Group at Sneed Lang PC, and
also serves as a justice for the Pawnee
Nation Supreme Court.

Colette Routel
CONTRIBUTING EDITOR
Associate, Faegre & Benson LLP
croutel@faegre.com
Save the Date
Federal Indian Law is published by the Federal
Bar Association Indian Law Section. © 2006 The
32nd Annual Federal Bar Association
Federal Bar Association. All rights reserved. The
opinions expressed herein are solely those of
the authors unless otherwise specified.
Karla Smith, Managing Editor. Indian Law Conference
April 19-20, 2007, Albuquerque, N.M.

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2 Federal Indian Law
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SUPREME C OURT
REVIEW
At the time of publication, the
Supreme Court had denied four peti-
tions for certiorari in Indian law-related
cases this year, including: Bruner v.
Oklahoma ex rel. Oklahoma Tax
Commission, Dark-Eyes v. Connecticut
Commissioner of Revenue Services, South
Dakota v. Department of Interior, and
Utah v. Shivwits Band of Paiute Indians.
Petitions for certiorari have been filed
and are pending in 7 Indian law-related
cases.
On September 21, two petitions for
certiorari were filed in Naftaly v.
Keweenaw Bay Indian Community and
Narragansett Indian Tribe v. Rhode Island.
In Naftaly, the petitioner appeals from
the Sixth Circuit Court of Appeals
decision that the State of Michigan
could not tax property held in fee sim-
ple by the Keweenaw Bay Indian
Community or its members within the
exterior boundaries of the reservation.
In Narragansett Indian Tribe, the
petitioner appeals from the First Circuit
Court of Appeals decision that Rhode
Island did not violate tribal sovereignty
by executing a search warrant, seizing
contraband, and making arrests on the
tribe’s lands when enforcing the crimi-
nal provisions of a state cigarette tax
scheme. The Circuit Court’s decision
overrules Aroostook Band of Micmacs v.
Ryan.
On Sept. 12, 2006, petition for cer-
tiorari was filed in Delaware Nation v.
Pennsylvania. Petitioners appeal from
the decision of the Third Circuit Court
of Appeals, holding that the Delaware
Nation waived an issue of whether the
purchaser of land extinguished aborigi-
nal title through the purchaser’s sover-
eign authority. Ultimately, the court
below held that the tribe lacked aborig-
inal title and failed to state a claim upon
which relief could be granted.
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Fall 2006
On Sept. 11, 2006, petition for cer-
tiorari was filed in Walton v. Tesuque
Pueblo. Walton is an appeal from a deci-
sion of the Tenth Circuit Court of
Appeals finding that the Indian Civil
Rights Act does not give federal district
courts jurisdictions in claims outside of
habeas claims. Additionally, the court
found that the tribe’s waiver of sover-
eign immunity under the Indian Self-
Determination and Education
Assistance Act also did not give the fed-
eral district court jurisdiction.
On Aug. 1, 2006, petition for cer-
tiorari was filed in San Carlos Apache
Tribe v. Arizona. San Carlos Apache Tribe
raises two primary issues. First, the
Supreme Court is asked to decide
whether the Arizona Supreme Court
erred when it
affirmed the
trial court’s
decision on
res judicata
grounds.
Second, the
Court was
asked to
consider
whether the
due process
and equal
protection
clauses of the Fifth and Fourteenth
Amendments were violated by applying
an affirmative defense of res judicata to
preclude the United States, as trustee of
the tribe, and the tribe from adjudicat-
ing reserved aboriginal and other water
rights in state court under the
McCarran Amendment. In the lower
court, claims advanced by San Carlos
Apache Tribe in interlocutory appeal
from order issued in Gila River general
stream adjudication were precluded.
On June 16, 2006, petition for cer-
tiorari was filed in Means v. Navajo
Nation. Means v. Navajo Nation raises
many issues related to Indian law. First,
the matter raises the question of
whether tribal criminal jurisdiction over
nonmember Indians violates the equal
protection and due process clauses of
the Fifth Amendment and Indian Civil
Rights Act. Also, does the tribal exer-
cise of criminal jurisdiction over non-
member Indians violate due process of
law. The Court is also asked to consider
whether Congress has the power to
grant criminal jurisdiction to tribes over
nonmember Indians under the Indian
commerce clause. Finally, the Court is
asked to decide whether the Navajo
Treaty of 1868 was abrogated when
Congress amended the Indian Civil
Rights Act to provide tribes with crimi-
nal jurisdiction over nonmember
Indians. Below, the Ninth Circuit Court
of Appeals upheld the tribe’s criminal
jurisdiction over nonmember Indians
against all challenges
raised by the petition-
er.
On April 4, 2006,
petition for certiorari
was filed in Morris v. Tanner.
This case raises issues similar to those
in Means v. Navajo Nation.
Specifically, petitioners ask the
Court to consider whether the
equal protection clause of the
Fifth Amendment is violated by
subjecting nonmember Indians
to tribal criminal jurisdiction, given
that over similarly situated nonmembers
of a different race are not subjected to
tribal criminal jurisdiction.
Additionally, the Court is asked to con-
sider whether due process protections of
the Fifth Amendment are violated by
granting tribes criminal jurisdiction
over nonmember Indians, given that
tribes are extraconstitutional sover-
eigns. Below, the Ninth Circuit Court
of Appeals held that 25 U.S.C. §
1301(2), which is the provision at the
center of the controversy, does not vio-
late either equal protection or due
process rights guaranteed by the Fifth
Amendment.
3
◆ ◆
Legislative Update
The 109th Congress is quickly
coming to an end, as both chambers are
set to recess for the month of October to
concentrate on the November elections
and may return only for a few weeks in
November. In 2006, Congress has large-
ly focused on Indian gaming, trust
reform, and settlement of the Cobell
case. In the Senate, Sen. John McCain
introduced S. 2078, the Indian Gaming
Regulatory Act (IGRA) Amendments
of 2006, which made its way through
the Senate Committee on Indian
Affairs (SCIA) after extensive debate
and numerous hearings only to be held
up from passing the full Senate by holds
under unanimous consent.
Many Indian tribes are strongly
opposed to the bill because it seeks to
expressly authorize the National Indian
Gaming Commission to regulate Class
III gaming and establish additional
approval procedures, minimum internal
control standards, and limits lands eligi-
ble for gaming, among other provisions.
In the House, Rep. Richard Pombo
◆ ◆
4 Federal Indian Law
introduced H.R. 4893, Restricting
Indian Gaming to Homelands of Tribes
(RIGHT) Act, a bill to amend § 20 of
IGRA to restrict off-reservation gam-
ing. Some tribes remain concerned with
a provision that would require tribes to
negotiate agreements with counties,
creating dangerous precedent and con-
sidered as antitribal. The bill was intro-
duced after nearly two years of hearings
and drafts circulated to Indian Country,
and quickly made its way through the
committee and onto the House floor on
September 13 under Suspension of the
Rules. However, Democrats were suc-
cessful in defeating the bill, which
required a 2/3 majority (290 yeas) vote
to pass the House, with a final tally of
247 yeas, 171 nays and 15 not voting.
Chairman Pombo may still try to bring
the bill back to the House floor, either
under the Suspension Calendar again or
on the floor for debate.
Both chambers have been eager to
address and finally put an end to the
Cobell litigation, which has been ongo-
ing for more than 10 years. Tribal lead-
ers and representatives met with SCIA
staff for months before the Indian Trust
Reform Act of 2006 (S. 1439) was
introduced, offering $8 billion to settle
the case and trust mismanagement.
After canceling two scheduled mark-ups
of the bill, it is unclear whether the
committee will try to take up the issue
again before the end of the year, but
the likelihood of passage this year
remains slim.
Congress may also finally
reauthorize the Indian Health
Care Improvement Act
(IHCIA) this year,
which has not been
reauthorized since
1992. In the Senate,
S. 1057, the IHCIA
Amendments to
revise and extend the
act, has already been approved by the
appropriate committees with jurisdic-
tion and is ready to be brought to the
floor for debate in the Senate. In the
House, H.R. 5312 would similarly reau-
thorize IHCIA and was recently passed
by the House Resources Committee but
must still be addressed by the Energy
and Commerce Committee.
Meanwhile, the Department of
Interior and Department of Energy have
been conducting a study on energy
rights of way on Indian lands pursuant
to the Energy Policy Act of 2005, Pub.L.
109-58, Title XVIII. The act initially
called for a study and a report to
Congress by Aug. 7, 2006, but the
departments were delayed in issuing the
draft report after several months of
scoping the study and are now expected
to submit a final report in mid-
December. Industry leaders have been
urging Congress to enact legislation to
remove tribal consent for energy rights
of way on Indian lands. The study and
report are specifically focused on his-
toric rates of compensation paid for
energy ROW on tribal lands, appropri-
ate standards and procedures for deter-
mining fair and appropriate compensa-
tion, tribal self-determination and sov-
ereignty interests, and relevant national
energy transportation policies. The
draft report was largely supportive of
tribal sovereignty and self-determina-
tion and found that energy ROW nego-
tiations do not result in significant rate
increases to the consumer or negatively
affect national security.
◆ ◆
Eighth Annual Washington, D.C.
INDIAN LAW CONFERENCE
New Challenges in
Indian Country:
Obstacles or
Opportunities?
Schedule
Friday, October 20
9-10:30 a.m. (A) Federal Indian Law 101
LORETTA TUELL, Partner, Monteau &
Peebles LLP
(B) Hot Issues Inside the Beltway:
Class II gaming, 1813 Rights of Way,
and a Federal Court Update
10:45 a.m.- (A) Federal and Tribal law answers to
12:15 p.m. the Meth Epidemic
(B) The Future of Tribal Land Claims
12:30-1:30 p.m. Lunch and Keynote Address: Keynote
Speaker - CARL ARTMAN, NOMINEE FOR
ASSISTANT SECRETARY FOR INDIAN AFFAIRS
1:45-3:15 p.m. (A) Challenging the Status Quo: Legal
Changes to Address the Meth
Epidemic
(B) Administrative Issues Involving
Trust Reform
3:30-5 p.m. Tribal Campaign Contributions: Are
Reforms Necessary? (Ethics)
October 20, 2006
Westin Grand
2350 M Street N.W.
Washington, D.C.
T his year’s conference will address a myriad of topics,
all of which present issues that would provide oppor-
tunities for the expansion or buttressing of tribal sover-
eignty. However, these issues could also present substan-
tial obstacles to the development of tribal sovereignty.
Conference panelists will address the areas of potential
growth, while suggesting the manner in which tribal gov-
ernments approach potential conflicts.
n addition to benefiting the private practitioner, this
I conference is also designed to assist tribal judges and
governmental employees who work on tribal issues. Track
A is specifically designed to equip practitioners and tribal
judges with the tools necessary to develop legal answers
addressing the emerging meth epidemic in Indian
Country. Track B is designed to update practitioners on
the most recent happenings affecting the practice of feder-
al Indian law. Attendees are free to attend the panels that
would be most beneficial.
Sponsored By
Federal Bar Association Indian Law Section
National Native American Bar Association
Native American Bar Association of Washington, D.C.

Washington, D.C. Indian Law Conference • Registration Form

Return to: D.C. Indian Law Conference, FBA, 2215 M Street, NW, Washington, DC 20037 or fax (202) 785-1568.
Register online at www.fedbar.org.
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Fall 2006 5
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Federal Indian Law

Indian Law Section
Federal Bar Association
2215 M Street, NW
Washington, DC 20037

◆ ◆