Brian Pierson: Recent federal court rulings affecting Indian law

In Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014), the state of Nebraska, village of Pender and owners of businesses and clubs that sold alcoholic beverages brought action against Omaha Tribal Council members in their official capacities for prospective injunctive and declaratory relief from the tribe’s attempt to enforce its liquor license and tax laws on the owners, contending that the village and the business owners were not within the tribe’s reservation or subject to its jurisdiction. The trial court held that Pender and the plaintiff businesses were within the tribe’s reservation and the Eighth Circuit affirmed, holding that an 1882 act of Congress providing that the disputed area be “surveyed, if necessary, and sold” did not reflect the requisite congressional intent to diminish the reservation.

In U.S. v. Washington, 2015 WL 687339 (W.D. Wash. 2015), The Makah Indian Tribe (Makah), alleging encroachment on their own fishing rights, brought a subproceeding in the Washington treaty rights case initiated in 1970 (the “Boldt Litigation”) seeking a federal court order defining the “usual and accustomed” (U & A) fishing grounds of the Quileute and Quinault Tribes for purposes of their treaty reserved, off-reservation fishing rights. The Quileute and Quinault tribes argued that the proceeding was barred by laches, judicial estoppel, and acquiescence. The court disagreed: “Far from sleeping on their rights, the Makah actively worked with the Quinault and Quileute since the 1980’s to obtain amicably negotiated solutions to conflicts over their respective ocean fisheries, all the while preserving their right to seek adjudication in this Court should informal methods of dispute resolution reach an impasse. ... There was nothing unreasonable in the Makah’s decision to decline to investigate the western boundary of the Quileute and Quinault U & A and to wait to bring the issue to the court for resolution until negotiated pathways broke down with the whiting dispute. The court is unwilling to punish a tribe for attempting to solve intertribal issues intertribally and without judicial intervention, a pathway oft encouraged by the court. …” The court also rejected the argument that the Makah had the burden of proving the Quileute and Quinault U & A fishing, observing that “it is the settled law of this case that each tribe bears the burden to produce evidence to support its U & A claims.”

In U.S. v. Parry, 2015 WL 631979 (W.D. Mo. 2015), the United States had indicted Parry and 17 others for wire fraud, contraband cigarette trafficking in violation of the Contraband Cigarette Trafficking Act (CCTA) and other offenses related to the transportation of untaxed cigarettes purchased in Missouri into New York and their sale to non-Indians within the state. Parry, a citizen of the Seneca Nation of Indians residing and conducting business on the nation’s Cattaraugus Territory, moved to dismiss on the ground that his business was not conducted within the State of New York and the CCTA did not apply to his business. The district court denied the motion: “While case law is clear that federal law prohibits New York from taxing cigarette sales to enrolled tribal members on their own reservations for personal use, case law is equally clear that New York may tax on-reservation cigarette sales to persons other than reservation Indians.”