Brian Pierson: Recent federal court rulings affecting Indian law

In U.S. v. Nowlin, 555 Fed.Appx. 820 (10th Cir. 2014), Nowlin was convicted pursuant to the Major Crimes Act, 18 U.S.C. § 1153 (MCA) of one count of assault resulting in serious bodily injury in Indian Country and four counts of assault with a dangerous weapon with intent to do bodily harm in Indian Country. On appeal, he argued that there was insufficient evidence of his Indian status, an essential element of a MCA offense. The 10th Circuit disagreed. Citing the two-part standard that the defendant have “some Indian blood” and be “recognized as an Indian by a tribe or by the federal government,” the court noted that Nowlin was a Shoshone tribal descendent with 31/128 Indian blood and that Nowlin “enjoyed access to free health care from the Indian Health Service, … obtained three fishing permits that were available only to Indians and … was socially recognized as an Indian through participation in powwows, bearing children with an enrolled tribe member and holding himself out as an Indian.”

In Stockbridge-Munsee Community v. New York, 2014 WL 2782191 (2d Cir. 2014), the Stockbridge Munsee Community (Tribe), sued the State of New York, state officials, state agencies and several municipalities in 1986, contending that a series of land conveyances during the period 1818-1842 resulting in the loss of its 36-square mile New York reservation violated the Indian Non-Intercourse Act, 25 U.S.C. § 177 and were, therefore, invalid. Citing the U.S. Supreme Court’s 2005 decision in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the district court dismissed, holding that the Tribe’s land claims were barred by equitable considerations. The Second Circuit affirmed: “It is well-settled that claims by an Indian tribe alleging that it was unlawfully dispossessed of land early in America’s history are barred by the equitable principles of laches, acquiescence, and impossibility.”

In Akiachak Native Community v. Jewell, 2014 WL 2885910 (D.D.C. 2014), Alaska tribes challenged a provision of the federal regulations governing fee to trust (FTT) acquisitions of land in trust by the Secretary of the Interior, 25 CFR Part 151, that barred the Secretary for acquiring land in trust for Alaska natives under Section 5 of the Indian Reorganization Act. The court held that the exception for Alaska tribes was arbitrary and capricious and could not be enforced. While the case was on appeal, the Department of Interior (DOI) proposed an amendment to the FTT regulations that would formally permit acquisitions for Alaska tribes. The State of Alaska moved the court for an order enjoining the Secretary for proceeding with consideration of the new FTT rule pending disposition of the State’s appeal of the court’s judgment. The court declined to enjoin the DOI’s processing of the new FTT rule, but enjoined the Secretary from taking land into trust for Alaska Natives contrary to the existing rule pending disposition of the appeal.