Are Tribal Nations the Last Frontier for Same-Sex Marriage?

By: Kevin M. Davis | Attorney | and
Theodore J. Griswold | Partner |

On June 26, 2015, the U.S. Supreme Court held that same-sex couples have the constitutional right to marry, now protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (See Obergefell v. Hodges, 135 S.Ct. 2584 (2015).) Despite this landmark and far-reaching decision, the freedom for same-sex couples to marry does not extend everywhere. Sovereignty means that each of the 567 federally-recognized Tribal governments may decide for themselves how to treat same-sex couples. In fact, the two largest Tribes in North America—the Cherokee Nation and the Navajo Nation—have laws specifically prohibiting same-sex marriage. (There is a movement to repeal the Diné Marriage Act of 2005, the law prohibiting same-sex marriage in the Navajo Nation.) Nevertheless, many same-sex couples living on Tribal Lands must leave their community to get married, only to return home with uncertainty about how their marriage will be recognized.

I remember as a teenager learning from a public radio program about the Native American concept of the “two-spirit” people. These individuals are viewed by some Tribes as having two identities—one male and one female—that occupy one body. Today, we would refer to two-spirit individuals as intersex or androgynous, or simply feminine males or masculine females. Many Native American people hold two-spirit people in high regard, having both the spirit of a man and the spirit of a woman. These individuals are therefore seen as more spiritually gifted than others, which is an honor to their families and a source of esteem, although sometimes fear, from their communities. In many Tribes, a relationship between a two-spirit person and a non-two-spirit person is considered neither heterosexual nor homosexual.

Caught in the recent whirlwind of public opinion and legal battles, which some would better describe as a tornado or a complete sea-change, many Tribes have grappled with same-sex marriage. Could Tribal laws prohibiting same-sex marriage have been influenced by discriminatory state laws adopted throughout the United States? In 2009, the Coquille Tribe of Oregon became the first Tribal government to affirmatively extend the freedom to marry to same-sex couples. Since then, several other Tribes have either adopted laws allowing same-sex marriage or realized their Tribal code does not reference gender, thereby already recognizing marriage between same-sex couples.

The number of Tribal Nations that legally recognize same-sex marriages is currently around two dozen. That equates to just over 4% of the 567 federally-recognized Tribal Nations. However, recall that only two years ago, the number of American states that recognized these unions was even fewer. In addition, due to ambiguity or gender-neutral Tribal codes, another 77 Tribal Nations may recognize same-sex marriage by not expressly prohibiting them. Just as American civil rights organizations tracked the evolution of state laws on a color-coded map of the United States, it should be interesting to track the adoption of, or even the reversion to, the freedom to marry for same-sex couples in Tribal Nations.


Kevin M. Davis is a member of Procopio’s Clean Technology, Energy, Environment and Resources practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters. Kevin is also a member of the Board of Directors, and the current Chief Financial Officer, for the Tom Homann LGBT Law Association, which is the diversity bar association in San Diego County dedicated to the advancement of gay, lesbian, bisexual and transgender law students and attorneys.


Ted Griswold is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.


Tribal Concerns Help Enhance Review Required For An Extension of Bald and Golden Eagle Take Permits

The U.S. Fish and Wildlife Service (“USFWS”) was recently delayed in proposing a new rule increasing the maximum duration of permits for take of bald and golden eagles from five years to thirty years due to concerns raised by Tribal communities and environmental groups. The groups challenged the new rule for failing to consider the environmental consequences of this rule, as required by the National Environmental Policy Act (“NEPA”) and the Northern District Court of California agreed.

Bald and Golden Eagles are highly revered by Native American communities, including their status as a sacred bird and using eagle feathers on ceremonial headdresses, prayer sticks, doctor’s rattles, and medicine pipes. The Bald and Golden Eagle Protection Act (“BGEPA”) makes it unlawful for anyone to “take” (wound, kill, capture, trap, collect, or disturb the species) without a permit. Such permits are provided for a maximum duration of five years (“5-Year Rule”), after which the permit applicant must afford the USFWS the opportunity to re-evaluate permit conditions and determine if an extension is appropriate or if more “take” is occurring than was anticipated. The applicant must establish that an extended permit would be compatible with the preservation of the bald eagle or golden eagle.

Because the permit renewal decisions are discretionary agency actions, NEPA review occurred with each renewal. As a result, the 5-Year Rule allowed for public access to, and involvement in, agency decision-making at least every five years. Shortly after the 5-Year Rule was implemented, there was an increase in the development of wind power for renewable energy purposes. The wind industry complained that the 5-Year Rule created uncertainty regarding renewal of the eagle take permits (needed because wind turbines can kill eagles), and the Rule complicated financing for wind energy projects that last up to thirty years.

To address these concerns, in 2013, the USFWS issued a new rule extending the maximum tenure of programmatic take permits to 30 years. However, it found that the extended duration of the permits was categorically exempt from NEPA requirements. Environmental groups and Indian Tribes challenged the USFWS’s decision to not conduct any further NEPA analysis before extending the eagle take permits and the District Court agreed. The District Court noted that the 30-Year Rule was a substantive decision that changed the review process, as it reduced public participation in the permitting decision.

The Court also reasoned that the USFWS failed to explain why the environmental and cultural effects of the 30-Year Rule do not lend themselves to meaningful analysis to support a categorical exemption from NEPA. Finally, the Court concluded, that because the 30-Year Rule may have highly controversial environmental and cultural impacts on the bald and golden eagles, extraordinary circumstances prevented application of the categorical exemption to NEPA. Tribes will now have the opportunity to provide input on the cultural and environmental impact that may arise from this proposed permit extension.

Hazel is an Associate in the Native American and Environmental Practice Groups at Procopio. Her practice focuses on environmental law, including clean technology and sustainability. Hazel regularly represents businesses and individuals on project permitting, compliance and litigation matters under the Clean Air Act, the Clean Water Act, Superfund and the Endangered Species Act.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.

The US Department of Justice Sides With Tulalip Tribes in Tax Dispute with State and County

By:      Eric D. Swenson | Senior Counsel |
Theodore J. Griswold | Partner |

Over a year ago, in January 2014, we reported on the possible tax benefits that could arise to both Indian Tribes and private parties that lease Tribal land for business purposes as a result of the issuance in 2013 of the final federal regulations by the US Government under 25 CFR 162.017 (the “Lease Regulations”). See the article, including more detail on the Lease Regulations.

By way of background, although many state and local governments believe that they still have the right to tax the leasehold interests that non-Indians may hold in Tribal lands, federal regulations that went into effect in 2013 (the Lease Regulations) clarify that such taxation, as well as many other charges by state and local governments, is prohibited under federal law. More specifically, the Lease Regulations provide that state and local governments may not impose their taxes on property (e.g., no property taxes), activities (e.g., no sales and use tax), or interests associated with leased Indian trust or restricted land, without regard to whether the party leasing the Tribal land is Native or non-Native.

One tribal government using the Lease Regulations to challenge such taxes imposed on the tribe’s land is the Tulalip Tribes’ government in Washington State.

On June 12, 2015, the Tulalip Tribes filed a Complaint for Declaratory and Injunctive Relief (the “Complaint”) against, among others, the Washington Department of Revenue (who collects sales and use taxes and Business & Occupation taxes) and the Snohomish County Assessor (who collects property taxes) (the “Taxing Authorities”). In the Complaint, the Tulalip Tribes allege that the Taxing Authorities are unlawfully imposing taxes against the Quil Ceda Village which is a partially private commercial enterprise located on the Tulalip Tribes’ land, in violation, of among other things, the Lease Regulations.

Although a few other unrelated tribal governments are currently using the Lease Regulations to challenge municipalities that have historically sought to tax lease activities on their tribal lands, the Tulalip Tribes received a seemingly very favorable boost when on August 4, 2015, the US Department of Justice (“DOJ”) filed a 14 – page Motion to Intervene (the “DOJ Motion”) and 26 – page Complaint in Intervention intervening on behalf of the Tulalip Tribes in the lawsuit against the Taxing Authorities.

In the DOJ Motion, the DOJ alleges that the Taxing Authorities “taxation of economic activities occurring in Quil Ceda Village conflicts with the principles of tribal sovereignty and the exclusive role of the United States, as well as the federal goals of tribal self-determination and self-sufficiency.” The DOJ Motion goes on to say that the disposition of this case involving the Tulalip Tribes involves a wide range of federal statues, treaties, and regulations, including the Lease Regulations.

If the DOJ is successful and the United States District Court, Western District of Washington at Seattle grants the DOJ Motion, the Tulalip Tribes and their attorneys will effectively be fighting this tax battle against the Taxing Authorities with the added firepower of the DOJ attorneys and the full backing of the US Government. This support exponentially strengthens the Tulalip Tribes’ position against the Taxing Authorities, and will benefit other tribal governments currently dealing with state and county taxing authorities who discounted the intent of federal statutes, treaties, and the Lease Regulations. In short, if the DOJ Motion is granted, allowing the DOJ attorneys involvement, it will be a gigantic boost for the Indian Country.

This message is being sent clearly to states and counties. Just this week, the Department of Interior followed this action with the approval of HEARTH Act regulations for the Seminole Tribe of Florida which will preempt state and local taxation, explaining that:

“The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department’s leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress’s overarching intent was to ‘‘allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.’’ 158 Cong. Rec. H. 2682 (May 15, 2012).’’ See entire Notice here.

Eric is a Senior Counsel in the tax team at Procopio as well as an active member of Procopio’s Native American Practice Group. His practice encompasses both tax controversy and tax planning. Eric has represented corporations, individual, and nonprofits before the various tax authorities, including the Internal Revenue Service, Franchise Tax Board and California Board of Equalization

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.

Senate Streamlines Self-Governance with S.286; Time for the House to Step Up

By: Stephanie A. Conduff | Attorney |
Theodore J. Griswold | Partner |

Last month, the US Senate passed the Department of the Interior Tribal Self-Governance Act of 2015, S. 286 by unanimous consent. The bill amends how contracts and compacts are negotiated between tribal governments and the Department of the Interior. These are amendments that Self-Governance Tribes have been prioritizing for years in the hopes of improving the approval process. It establishes new guidelines for administering the program.

The Congressional Budget Office (CBO) reports that, based on the information provided by the Department of the Interior (DOI), there is no significant financial effect on the federal government over the 2015-2020 period. However, the improved program mainstreams the process to empower tribal governments and tribal consortiums to create consistency and administrative efficiencies for Self-Governance Tribes.

“Self-determination and self-governance helps promote local tribal decision-making for important programs that affect their communities,” Sen. John Barrasso (R-Wyoming), the Senate Indian Affairs Committee, said when he introduced the bill in February. “For years, tribes have faced bureaucratic roadblocks when trying to implement these programs. By making key improvements to the way self-governance works in the Department of the Interior, this bill gives tribes the tools they need to tailor Federal programs to the needs of their local communities.”  This goes to the real intent of the Self-Governance Act.

The bipartisan bill has the support of the Obama administration. It is non-controversial — consideration took less than 30 seconds when passed by the Committee. The Senate-passed version now moves to the House of Representatives. The probability of its passage in the House during this session of the 114th Congress is good, as the widely supported amendments are not likely to be used as political fodder in the election year.

Stephanie is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.