News & Updates
Conference of Western Attorneys General
December 6, 2023
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The Endangered Species Act’s Complicated Legacy in Indian Country
In 2016, not long after the catastrophic North Star Fire ripped through north-central Washington, a Confederated Colville Tribes wildlife biologist was walking through a burned forest on Colville lands when he found an unusual paw print in the snow: A lynx was on the move. Long threatened by hunting and habitat destruction, only a few hundred lynx are believed to remain in the continental United States, but with the help of federal funding through the Endangered Species Act, the Colville Tribes have released 25 animals on their 1.4 million acres and plan to release another 24.
Tribal nations have a complicated relationship with the 1973 Endangered Species Act. Tribal governments have used the ESA on behalf of imperiled, culturally important species, litigating over dams that block salmon migration and securing funding to reintroduce protected species on their lands. But beyond Alaskan Native subsistence hunting rights, the law does not acknowledge tribal sovereignty. How, or even if, it affects treaty hunting rights and other aspects of sovereignty remains a disputed question.
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Wolverines Are Now Considered Threatened Species Under the Endangered Species Act
The North American wolverine has been listed as a threatened species under the Endangered Species Act, the U.S. Fish and Wildlife Service said Wednesday. Officials said climate change has threatened the species. Less than 300 wolverines are estimated to live in the contiguous U.S., according to the National Wildlife Federation.
The designation will give the species protection, requiring federal agencies to ensure their actions are unlikely to jeopardize wolverines, according to the agency. The Endangered Species Act, enacted in 1973, establishes protections for fish, wildlife and plants that are listed as threatened or endangered.
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The Clean Water Act and Wetlands
After the U.S. Supreme Court’s ruling in May that the Clean Water Act does not cover wetlands, followed by a revised U.S. Environmental Protection Agency rule in August, states and tribes are struggling to enact safeguards for previously protected waters. The loss of federal rules means more than half of the nation’s 118 million acres of wetlands are now unregulated. Lack of funding for existing programs and additional staff for implementation and enforcement, yearslong processes to get new regulations and programs in place, and lack of clarity around exactly which waters have lost federal oversight are three major hurdles for officials and lawmakers in states that are seeking to ensure those waters are not polluted, drained or filled in by developers. Washington, California, and New Mexico are just a few states grappling with this challenge. A few states are not impacted by the ruling, having already passed protections above and beyond the Clean Water Act, such as Minnesota’s 1991 Wetland Conservation Act. Meanwhile, conservative states see the ruling as an opportunity for developers and industry, including North Carolina, which passed a law eliminating all state protections that exceeded the federal standard.
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Tribal Leaders Press Competing Agendas at White House Summit
The chair of the Northern California-based Karuk Tribe is one of about 300 Native American representatives who will attend the White House Tribal Nations Summit. It's a gathering that will bristle with competing agendas and opportunities to advocate. The summit involves lots of presentations held in the main auditorium in Interior headquarters, as well as preliminary events with philanthropists and nonprofit organization leaders and a gathering at an Agriculture Department patio to discuss buffalo restoration. Also, on the agenda are concerns about a proposal by the Oregon-based Coquille Indian Tribe to build a casino in Medford, Oregon, about 54 miles from the Karuk Tribe's existing Rain Rock Casino in California's sparsely populated Siskiyou County.
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An Alaska Native Tribal Council Greenlit a Gold Mine
Some tribal members aren’t happy and think that the Native Village of Tetlin leaders broke tribal laws when agreeing to the Manh Choh mine. People in Alaska’s rugged Interior have long known the hills surrounding the Native Village of Tetlin hid gold. As tribal members, they grew up, with elders telling them such riches should be left alone. Nothing good would come of digging them up, they warned. Now, they fear what might happen as an open pit mine comes to his tribe’s land.
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Judge did not have an affirmative duty to conduct an additional inquiry into whether child in proceeding to terminate parental rights was an “Indian child” when both parents denied any tribal affiliation and the department had earlier, after hearing of possible Cherokee tribal affiliation, contacted the Tribe and received a response that neither the parents nor the child were eligible for tribal membership.
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The federal court lacked subject matter jurisdiction to hear complaint that tribal court, in adjudicating claims, violated the Indian Civil Rights Act, because the person whose rights were allegedly violated was not in detention by order of the Tribe.
Because tribal laws
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exempted tribal taxes from statutes of limitation, tribal claimants in bankruptcy proceedings could pursue priority claims for unpaid lodging taxes and accrued interest dating back more than 25 years against campground operators leasing land from the Tribe. |
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CWAG ANNUAL INDIAN LAW SEMINAR |
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VERY LAST CHANCE!
CWAG’s annual 90-minute webinar on Indian law issues of concern will be held on Thursday, December 7th. This year’s webinar focuses on techniques for resolving jurisdictional impediments when negotiating agreements with Tribes, and includes presentations by former CWAG Director Tom Gede, currently Counsel at Morgan, Lewis & Bockius LLP., and Adam Crepelle, Assistant Professor, Loyola University Chicago School of Law. CLE credits are available for most states. You can register for the webinar at the West LegalEdCenter, using the following link below!
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All summaries are posted in CWAG's Google Docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at [email protected] with questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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