Indian Law Newsletter Published by the Indian Law Section of the Washington State Bar Association Volume 22 Spring 2014 Number 1 Message from the Chair Indian Lawyers in the News By Hunter Abell On March 1, 2014, Rion Ramirez was elected the Chairman of the DNC’s Native Greetings friends and colleagues. I am American Council. Rion also serves as an pleased to announce that the WSBA Indian at-large member on the Executive Com- Law Section will conduct the 26th annual mittee for the DNC and in July of 2013 was CLE on May 22, 2014. For over a quarter appointed by President Barack Obama to century, this event has allowed practitioners from across the President’s Commission for White House Fellowships. our state to interact with fellow attorneys, tribal judges, Galanda Broadman has added three and distinguished faculty on almost every subject under new attorneys: Scott Wheat and Joe Sex- the sun. This year’s CLE will take place at the WSBA Con- ton have joined the fjrm as of counsel and ference Center in downtown Seattle. Amber Penn-Roco is Galanda Broadman’s I am particularly excited about the unique subject mat- newest associate. Scott serves as general ter that the panels will be addressing. As the second decade counsel for the Spokane Tribe of Indians; of the 21st century continues, the question of the future Joe is recently of the Yakama Nation Offjce Amber of tribal courts, their caseloads, and their independence of Legal Counsel; Amber comes to the fjrm Penn-Roco becomes ever more pressing. Toward that end, a panel will from K&L Gates. address the future of tribal courts with an examination of After more than seven years in the Res- the independence of various tribal judiciaries. Additionally, ervation Attorney Offjce at the Colville Con- given the heated debate over the Affordable Care Act in federated Tribes, Tim Woolsey is providing recent years, the question of health care in Indian Country advice to clients on Indian gaming, tribal was seemingly overlooked. Consequently, another panel government, 638 contracting, claims arising will address this issue and how it pertains to practitioners in Indian Country, and federal court litiga- in Indian law. The CLE will also include the traditional and tion through Timothy Woolsey, PLLC; he can be reached highly popular litigation update that has been a staple of at timwoolseypllc@yahoo.com or 443.850.7937. Tim has also Indian Law Section CLEs for many years. Finally, a number taken a full-time position raising his newborn twin boys. of other panels are being fjnalized that will inform and Briana M. Coyle has joined the Seattle educate the attendees. offjce of Miller Nash as an associate. She As excited as I am for the educational component of the joins the Native American Tribes & Organi- CLE, I believe that the CLE also serves another important zations practice team, focusing on support- purpose. With the increased sophistication and popular- ing the business and regulatory compliance ity of our area of practice, the intimate, tight-knit circle of issues of tribal governments and organiza- Indian law practitioners of the 1970s and 1980s that could tions. Coyle received her law degree from the University of all fjt into a phone booth has multiplied into attorneys in Washington School of Law, where she served as president every corner of the state practicing in a bewildering array of the school’s Native American Law Student Association (continued on page 2) for two years. In This Issue Message from the Chair ......................................................................... 1 IRS Finally Agrees Trust Per Capita Distributions are Tax Exempt … with some limits . ........................................................................................ 3 Indian Lawyers in the News .................................................................... 1 Washington Tribal/State Relations Evolving, But Further Work Is Oklahoma Department of Environmental Quality v . Environmental Needed ..................................................................................................... 4 Protection Agency – D.C. Circuit, Jan. 17, 2014 .................................. 2 Legislative Wrap Up ................................................................................. 5 1
Spring 2014 ● Indian Law I ndIan L aw n ews Y ou C an u se M essage froM the C hair from page 1 Indian Law Section Offjcers - 2013-2014 of areas relating to Indian law. As a result, it can be diffjcult to maintain that sense of camaraderie and kinship that I be- Chair Secretary/Treasurer Hunter Abell Emily M. Howlett lieve is a hallmark of our practice. For many practitioners, habell@williamskastner.com emily.m.howlett@gmail.com the CLE is not only an opportunity to earn required CLE Chair-elect Immediate Past Chair credit or be brought up to date on emerging legal issues, Aubrey Seffernick Andrea Smith aubrey.seffernick@millernash.com andreas@pgst.nsn.us it is also an increasingly rare opportunity to meet, interact, and network with friends and colleagues from across the Section Trustees state who share an interest in Indian law. If you have not Mike Rossotto (2014) Mary Rodriguez (2015) attended in the past, I encourage you join us on May 22nd. miker@nics.ws mrr27@u.washington.edu If you have attended in the past, come again and see friends Saza Osawa (2014) Daryl Rodrigues (2015) and familiar faces. Your practice will be improved and our sosawa@tulaliptribes-nsn.gov daryl.rodrigues@colvilletribes.com entire Section will be enriched by your presence. Millie Kennedy (2014) Connie Sue M. Martin (2016) milliek@nwjustice.org csmartin@schwabe.com Finally, I would like to thank the Section’s trustees and Hon. Darwin Long Fox (2015) Lauren E. Sancken (2016) offjcers for the hard work that has already been put into longfox@comcast.net lauren.sancken@klgates.com this year’s CLE. Aubrey Seffernick, Millie Kennedy, Connie Julie Repp (2015) jrepplew@aol.com Sue Martin, and Mike Rossotto, in particular, have been working diligently on this project for some time. You will see the fruits of their labors in late May. In the meantime, as Newsletter Editor BOG Liaison always, please do not hesitate to let me know if you have a Anthony Broadman Barbara Rhoads-Weaver question or concern regarding the CLE or any other aspect anthony@galandabroadman.com barb@sustainablelawpllc.com of our Section’s activities. YLD Liaison Drew Miller robertandrewmiller@gmail.com Oklahoma Department of Environmental Section logo designed by Scott Suffjcool Quality v. Environmental Protection program over such Indian Country lands, EPA took the Agency – D.C. Circuit, Jan. 17, 2014 position that it has residual authority to adopt a Federal By Rich McAllister, Of Counsel – Hobbs, Implementation Plan that applies to those lands. EPA relied Straus, Dean & Walker on specifjc language in the CAA providing EPA the author- ity to directly implement air quality programs where EPA On January 17, 2014, the U.S. Court of Ap- determines that “treatment of Indian tribes as identical to peals for the D.C. Circuit issued its decision States is inappropriate or administratively infeasible.” 2 in Oklahoma Department of Environmental In the 1998 Tribal Authority Rule, which established Quality v. Environmental Protection Agency, 740 3F.3d 185 procedures for a tribe to seek treatment in the same man- (.C. Cir. 2014). The decision partially vacated EPA’s 2011 ner as a state (TAS) under the CAA, EPA had interpreted new source review (NSR) rule for Indian Country under this statutory language as a delegation of federal author- the Clean Air Act (CAA), ruling that it does not apply to ity to tribes for lands within the exterior boundaries of “non-reservation” Indian Country lands. their reservations, which includes Pueblos and tribal trust The 2011 NSR rule established a federal implementa- lands. But for “other areas,” EPA requires a tribe to make tion plan (FIP) designed to help attain national air qual- such a showing of its inherent authority over such Indian ity standards for all Indian Country nationwide except Country lands. 3 where EPA had already approved a tribal NSR program Oklahoma asked the court to review EPA’s NSR rule, or expressly authorized a State Implementation Plan (SIP) arguing that its SIP should apply to non-reservation Indian to be enforced. 1 EPA considers Indian Country as defjned Country within the state that is not within a tribe’s jurisdic- by statute at 18 U.S.C § 1151 to include Indian reserva- tion. The non-reservation lands at issue in the case are two tions, dependent Indian communities, and all Indian al- kinds of land areas included in the statutory defjnition of lotments. EPA had taken the position that states generally “Indian Country”: “dependent Indian communities” and lack authority to enforce a SIP in Indian Country. Where a “Indian allotments” (both individual Indian trust lands tribe has not been approved by EPA to administer a CAA (continued on page 6) 2
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