Justia Native American Law Opinion Summaries

Articles Posted in US Court of Appeals for the Seventh Circuit
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The Menominee River runs between Wisconsin and Michigan’s Upper Peninsula. According to its origin story, the Menominee Indian Tribe came into existence along the River's banks thousands of years ago. This birthplace contains artifacts and sacred sites of historic and cultural importance to the Tribe. The Tribe learned that Aquila planned a mining project alongside the River, close to Wisconsin’s northeast border. Aquila obtained Michigan permits. The Tribe contacted the Environmental Protection Agency and Army Corps of Engineers asking for reconsideration of a 1984 decision to allow Michigan, instead of the federal government, to issue permits under the Clean Water Act, 33 U.S.C. 1344. The agencies responded that Michigan would decide whether to issue a “dredge-and-fill” permit to authorize Aquila’s project. The Tribe commenced an administrative proceeding in Michigan and filed suit. The district court dismissed the complaint on the ground that it did not challenge any final action taken by the EPA or Army Corps. The Seventh Circuit affirmed while expressing “reservations about how the federal agencies responded to the Tribe’s concerns.” The court noted that the agency letters did not reflect any final agency decisions and that the Tribe can receive a full and fair review in a Michigan court. The Preservation Act does not require the agencies to consult with the Tribe about the project but applies only to undertakings that are “[f]ederal or federally assisted.” View "Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency" on Justia Law

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The Indian Gaming Regulatory Act, 25 U.S.C. 2701–21, allows some gambling on land held in trust for tribes, in every state, without prior approval. Class III gambling, which includes slot machines and table games such as blackjack, may be offered only in certain states if the tribe and state enter into a contract. Since 199,2 Stockbridge-Munsee Community, a federally-recognized tribe, has conducted gaming in Shawano County, Wisconsin. In 2008 Ho-Chunk, another federally-recognized tribe, opened a casino in Shawano County. Both feature class III gaming, authorized by contracts. In 2016 Ho-Chunk announced plans to add more slot machines and gaming tables, plus a restaurant, a bar, and a hotel. The Community sought an injunction, arguing that the Ho-Chunk land was not held in trust for the tribe on October 17, 1988. The parcel was conveyed to the tribe in 1969, but with a condition that was not lifted until 1989; in 1986, the Department of the Interior declared the parcel to be Ho-Chunk’s trust land. The Community argued that Ho-Chunk’s state contract treats its casino as an “ancillary” gaming facility and that the state has not enforced that limitation. The court dismissed the suit as untimely, reasoning that the Community knew or could have learned of both issues by 2008. The Act does not contain a statute of limitations, so the court looked to the Wisconsin limitations period for breach of contract or the Administrative Procedure Act's limitations period—each set a six-year limit. The Seventh Circuit affirmed, applying Wisconsin law. View "Stockbridge-Munsee Community v. Wisconsin" on Justia Law