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December

Arakaki v. Hawaii
314 F.3d 1091, Docket No.00-17213
9th Circuit, December 31, 2002

Subjects: Hawaii; Hawaii. Office of Hawaiian Affairs -- Contested elections; Heredity; Citizenship; Native Hawaiians; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment; Political candidates; United States. Voting Rights Act of 1965 (42 USC 1973).Trusts and trustees; Voting; Elections.

*Synopsis: Taxpayers brought action against State of Hawaii, alleging that constitutional and statutory requirements that trustees of Office of Hawaiian Affairs (OHA) be citizens of Hawaiian ancestry violated Fourteenth and Fifteenth Amendments and Voting Rights Act. Parties cross-moved for summary judgment. The United States District Court for the District of Hawaii, Helen Gillmor, J., awarded summary judgment to taxpayers. State appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that: (1) candidate restriction violated Fifteenth Amendment; (2) trustee qualification violated § 2 of Voting Rights Act; and (3) taxpayers lacked standing to challenge OHA restriction on appointment of trustees.

Related news stories: Court Affirms Native Hawaiian Ruling (Indianz.com) 1/6.

United States v. Seminole Nation Of Oklahoma
2002 WL 31895070, Docket No. 01-7108
10th Cir., December 31, 2002

Subjects: Gaming -- National Indian Gaming Commission (U.S.); Gaming -- Regulation.

*Synopsis: Government brought action to enforce order of Chairman of National Indian Gaming Commission (NIGC) which directed Indian tribe to temporarily cease all gaming activities. The United States District Court for the Eastern District of Oklahoma dismissed. Government appealed, and tribe moved to dismiss appeal.

Holding: The Court of Appeals, Murphy, Circuit Judge, held that (1) exception to mootness doctrine applied to government's appeal, and (2) NIGC was authorized to issue a temporary closure order for entire gaming facility.

Vacated, and motion to dismiss denied.

Turn Key Gaming, Inc. v. Oglala Sioux Tribe
313 F.3d 1087, Docket No. 01-2957
8th Cir., December 27, 2002

Subjects: Gaming -- Contracts -- Breach; Sovereign immunity -- Tribal.

*Synopsis: On appeal of breach of contract action brought against Indian tribe by casino developer, district court's grant of summary judgment to tribe was affirmed, but case was remanded, 164 F.3d 1092, for consideration of developer's claims regarding reimbursement of certain costs, and of tribe's counterclaim. On remand, the United States District Court for the District of South Dakota, Richard H. Battey, J., made award of damages to tribe. Developer appealed.

Holding: The Court of Appeals, Richard S. Arnold, Circuit Judge, held that: (1) cost of completion of permanent casino was correct measure of damages; (2) findings as to expenses were not erroneous; (3) tribe's sovereign immunity prevented developer from bringing claims arising under separate agreement in federal court; and (4) award of prejudgment interest was proper. Affirmed.

Anderson v. Evans and Makah Indian Tribe
314 F. 3d 1006, Docket No. 02-35761
9th Cir., December 20, 2002

Subjects: Subsistence rights -- Whaling; Environmental regulation -- National Environmental Policy Act (42 USC 4321 (http://www4.law.cornell.edu/uscode/42/4321.html); Environmental impact statements; Environmental regulation -- Marine Mammal Protection Act.

*Synopsis: Animal advocacy groups brought action against United States government, challenging government's approval of quota for whale hunting by Makah Indian Tribe. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment in favor of government. Advocacy groups appealed.

Holding: The Court of Appeals, Berzon, Circuit Judge, and Gould, Circuit Judge, held that: (1) government violated National Environmental Policy Act (NEPA) by failing to prepare environmental impact statement (EIS) prior to approving whaling quota, and (2) Marine Mammal Protection Act (MMPA) applied to tribe's proposed whale hunt. Reversed.

Related News Stories: Makah, Federal Government Seek Full Court Review of Whaling Ban (Peninsula Daily News) 3/14.

Solomon v. Interior Regional Housing Authority
313 F.3d 1194, Docket No. 01-35766
9th Cir., December 20, 2002

Subjects: Employment -- Indian preference.

*Synopsis: Native Alaskan brought action against regional Native Alaskan housing authority, alleging that refusal to hire him was a violation of his rights under Indian preference statute. Parties cross-moved for summary judgment. The United States District Court for the District of Alaska, John W. Sedwick, J., granted judgment for housing authority. Plaintiff appealed.

Holding:The Court of Appeals, Graber, Circuit Judge, held that statute did not create private right of action.

Affirmed.

Related News Stories: Indian preference claim dismissed (Indianz.com) 12/23

Leisnoi, Inc.v. United States and Stratman
313 F.3d 1181, Docket No. 02-35190
9th Cir., December 19, 2002

Subjects: Lands -- Quiet title; Alaska Native villages; Claims against the United States -- Claims to land.

*Synopsis: Alaska Native village corporation brought action against United States under Quiet Title Act to remove cloud that lay over village's title as result of rancher's filing of lis pendens claiming that United States was entitled to village's land. The United States District Court for the District of Alaska, H. Russel Holland, C.J., denied rancher's motion to intervene. Rancher appealed.

Holding:The Court of Appeals, Canby, Circuit Judge, held that: (1) Court of Appeals had jurisdiction over district court's denial of rancher's motion to intervene as of right, and (2) rancher's intervention motion was moot once United States filed its disclaimer of land claimed by village corporation.

Affirmed.

United States v. Goings
313 F.3d 423, Docket Nos. 02-2299, 02-2301
8th Cir., December 16, 2002

Subjects: Theft; Indian owned businesses and organizations.

*Synopsis: Defendants were convicted of theft from an Indian tribal organization and conspiracy to commit theft from an Indian tribal organization, following jury trial in the United States District Court for the District of South Dakota, Richard H. Battey, J. Defendants appealed.

Holding: The Court of Appeals held that: (1) District Court did not abuse its discretion in denying defendants' fourth motion for continuance; (2) District Court did not abuse its discretion in refusing to sever trial; (3) defendants could not introduce evidence that office manager failed to repay entire advance from her next paycheck; (4) willful blindness instruction was warranted; and (5) District Court could impose enhancement for abusing position of public or private trust.

Thomas v. Choctaw Management / Services Enterprise
313 F.3d 910, Docket No. 02-20793
5th Cir., December 16, 2002

Subjects: Employment -- Discrimination by employers; Religion.

*Synopsis: Husband and wife employed by unincorporated business venture wholly owned by Indian tribe brought Title VII action against venture and against supervisory employee, alleging discrimination based on religion and pregnancy. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., granted defendants' motion to dismiss, and employees appealed.

Holding: The Court of Appeals held that: (1) as a matter of first impression, tribe-owned enterprise was exempt from liability under Title VII, and (2) supervisor was not "employer" and thus was not potentially liable under Title VII.

Home Depot U.S.A., Inc. v. County of Maricopa
52 Fed Appx 943, Docket No. 01-17313
9th Cir., December 10, 2002

Subjects: Lands -- Leasing; Taxation -- Tribal property; Taxation -- Tax Injunction Act (28 U.S.C. § 1341 )

*Synopsis: Home Depot USA ("Home Depot") challenges Maricopa County, Arizona's taxation of property that Home Depot leased on tribal land owned by the Gila River Indian Community. Home Depot, the operator of a distribution center on this land, was from 1990 to 1997 taxed by Maricopa County on improvements to the property. Home Depot sought both a declaratory judgment that the taxes were unconstitutional and a full refund for the tax years 1990 to 1996; for 1997, Home Depot successfully pursued a state remedy.

Holding: The district court granted Maricopa County's motion to dismiss for lack of subject matter jurisdiction, concluding that the Tax Injunction Act, 28 U.S.C. § 1341, deprived it of jurisdiction and that Home Depot did not qualify for an exception to the Act's jurisdictional bar. We affirm this holding.

United States v. Iron Cloud
312 F.3d 379, Docket No. 02-1640
8th Cir., December 10, 2002

Subjects: Cultural heritage -- Funeral customs and rites; Reparation -- Indian Country; Mandatory Victims Restitution Act (MVRA).

*Synopsis: Defendant pled guilty to voluntary manslaughter in Indian country and was sentenced by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., and he appealed sentence.

Holding: The Court of Appeals, Murphy, Circuit Judge, held that: (1) there was no abuse of discretion in departing upward on ground the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, and (2) the record supported the district court's determination that $3000 for a traditional Native American giveaway ceremony in commemoration of the victim was a "necessary funeral or related services" expense within meaning of the Mandatory Victims Restitution Act (MVRA).

Thompson v. County of Franklin
314 F.3d 79, Docket No. 01-7107
2nd Cir., December 9, 2002

Subjects: Indian Country -- Defined; Lands -- Taxation; Taxation -- Personal property.

*Synopsis: Member of Indian tribe challenged imposition of county ad valorem taxes on her property. The United States District Court for the Northern District of New York, McCurn, Senior Judge, 127 F.Supp.2d 145, held for county, and appeal was taken.

Holding: The Court of Appeals, Van Graafeiland, Circuit Judge, held that land was subject to county's ad valorem taxation. Affirmed. Winter, Circuit Judge, concurred in separate opinion. Sack, Circuit Judge, dissented, and filed opinion.

Old Person v. Brown
312 F.3d 1036, Docket No. 02-35171
9th Cir., December 4, 2002

Subjects: Voting -- Voting Rights Act, 42 USC 1973.

*Synopsis: Indians brought action under Voting Rights Act, challenging validity of Montana's state legislative redistricting plan. After remand, 230 F.3d 1113, the United States District Court for the District of Montana, Philip M. Pro, J., 182 F.Supp.2d 1002, held for state, and appeal was taken.

Holding: The Court of Appeals, Gould, Circuit Judge, held that finding of no vote dilution was not clearly erroneous. Affirmed.

November

Cherokee Nation v. Thompson
311 F.3d 1054, Docket No. 01-7106
10th Cir., November 26, 2002

Subjects: United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Contracts; Cost; Self-determination.

*Synopsis: Indian tribes brought action against United States under Indian Self- Determination and Education Assistance Act (ISDA), seeking to recover full contract support costs incurred in performing self-determination contracts. The United States District Court for the Eastern District of Oklahoma, Frank Howell Seay, Chief Judge, 190 F.Supp.2d 1248, granted summary judgment to United States. Tribes appealed.

Holding: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that tribes were not contractually or statutorily entitled to recover full contract support costs.
Affirmed.

Related News Stories: Supreme Court to Resolve Self-determination Dispute (Indianz.com) 03/23

Saucerman v. Norton
20222002 WL 31557880, Docket No. 01-17009
9th Cir., November 19, 2002

Subjects: United States. Administrative Procedure Act; United States -- Officials and employees; Tribal government -- Officials and employees; Civil rights; Trials (Eviction); Government liability -- United States; Sovereign immunity; United States. Quiet Title Act (28 USC 2409).

*Synopsis: Former permittees brought action against tribal and federal officials alleging violations of Administrative Procedure Act (APA) and their constitutional rights after tribal officials acted to enforce self-help eviction ordinance.

*Holding:The United States District Court for the District of Arizona, Susan R. Bolton, J., dismissed complaint, and permittees appealed. The Court of Appeals held that United States had sovereign immunity under Quiet Title Act.

Cobell v. Norton
2002 WL 31513592, Docket No. CIV.A.96-1285(RCL)
Nov. 12, 2002

MEMORANDUM OPINION

Subjects: Lawyers -- Fees; IIM (Individual Indian monies) accounts,Cobell v. Norton -- Accurate accounting and account reform; Trusts and trustees -- United States; Trusts and trustees -- Accounting; Breach of contract -- United States.

*Synopsis: Beneficiaries of Individual Indian Money (IIM) trust accounts, suing government for breach of fiduciary duty, moved for award of attorney fees incurred in successfully opposing government's motions for protective orders. The District Court, Lamberth, J., held that: (1) reasonable hourly rate for senior attorney in Washington, D.C. area was $340 per hour for work performed between June, 1999 and May 2000, and $350 per hour for work performed between June, 2000 and May 2001; (2) reasonable hourly rate for accounting services was $225 per hour; (3) plaintiffs were not entitled to recover fees for time spent on tangentially related issues; (4) plaintiffs were entitled to compensation for time reasonably spent preparing fee statement; and (5) expenses were not recoverable absent itemization.

*Holding: Fees awarded.

Cobell v.Norton
2002 WL 31513594, Docket No. CIV.A.96-1285(RCL)
Nov. 12, 2002
MEMORANDUM AND ORDER

Subjects: Contempt of court; IIM (Individual Indian monies) accounts,Cobell v. Norton -- Accurate accounting and account reform; Trusts and trustees -- United States; Trusts and trustees -- Accounting; Breach of contract -- United States.

*Synopsis: Beneficiaries of Individual Indian Money (IIM) trust accounts, suing government for breach of fiduciary duty, moved for finding of contempt, based on government's failure to comply with special master's orders.

*Holding: The District Court, Lamberth, J., held that finding of contempt was not warranted.
Motion denied.

Quinault Indian Nation v. Grays Harbor County
2002 WL 31488220, Docket No. 01-35219
9th Cir. (WA), November 8, 2002

Subjects: Lands -- Taxation.

*Synopsis: Quinault Indian Nation brought action against county, challenging county's imposition of compensating tax upon transfer of forest land in trust to United States. The United States District Court for the Western District of Washington, Thomas S. Zilly, J., granted summary judgment in favor of county. Indian nation appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that compensating tax was impermissible taxation of land.

October

In re: Veneman
309 F.3d 789, Docket No. 02-5021
D.C. Cir. October 29, 2002

Subjects: Agriculture; Federal benefits and entitlements; Civil rights -- Race discrimination.

*Synopsis: Native American farmers sued Department of Agriculture, alleging discrimination in administration of farm credit and benefit programs. The United States District Court for the District of Columbia, Emmett G. Sullivan, J., certified class of Native American farmers and ranchers who had filed discrimination complaints during certain period, but limited class to pursuing equitable relief. Secretary of Agriculture petitioned for interlocutory review.

*Holding: The Court of Appeals, Tatel, Circuit Judge, held that: (1) time limit for appealing denial of class certification was subject to time-computation rule of Federal Rules of Civil Procedure; (2) decision that putative class met prerequisites to class action was not appropriate for interlocutory appeal; and (3) question whether District Court could certify class based upon party opposing class having acted on grounds generally applicable to class, solely for purposes of equitable relief without first determining if plaintiffs' claims for monetary relief predominated over their equitable claims, was not appropriate for interlocutory appeal.

Red Nation Partnership v. Kiga
2002 WL 31379825, No. 01-35894
9th Cir. October 21, 2002

Subjects: Taxation -- Cigarettes.

*Synopsis: Indians and a private Indian-owned entity brought action challenging the State of Washington's taxes on cigarettes sold on Indian reservations to non-tribe customers and to the record keeping requirements for such sales. The United States District Court for the Western District of Washington Franklin D. Burgess, J., dismissed for lack of jurisdiction, and plaintiffs appealed.

*Holding: The Court of Appeals held that Tax Injunction Act barred individual Indians and a private Indian-owned entity from suing in federal district court under section 1983 to challenge the enforcement of state taxes since adequate state remedies were available.
Affirmed.

Native Village of Quinhagak v. United States
307 F.3d 1075, Docket Nos. 01-35430, 01-35466
9th Cir. October 8, 2002

Subjects: Subsistence rights -- Fishing; Attorneys -- Fees and expenses; Alaska Native Claims Settlement Act (43 USC 1601 et seq.) -- Alaska National Interest Lands Conservation Act (ANILCA)(16 USC 3111-3126).

*Synopsis: Alaskan native villages brought action against federal and state governments to enforce subsistence fishing rights under Alaska National Interest Lands Conservation Act (ANILCA). After villages prevailed on merits, the United States District Court for the District of Alaska, H. Russel Holland, J., awarded attorneys' fees to villages for litigation phase of action only. Villages and state government cross-appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that: (1) villages were "prevailing parties" entitled to fees, and (2) district court had discretion to award fees for pre- litigation administrative activities.

MacArthur v. San Juan County
309 F. 3d. 1216, Docket No. 01-4001
10th Cir. October 7, 2002

Subjects: Indian preference in hiring; Health facilities -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Health facilities -- Utah -- San Juan County; Employees, Dismissal of -- San Juan Health Services District; Utah Navajo Health Systems; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Civil jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: After a Navajo Nation district court granted preliminary injunctive relief to plaintiffs who alleged violations by county of a Navajo employment preference statute, plaintiffs brought action in federal court, alleging various causes of action and seeking enforcement of injunction. The United States District Court for the District of Utah granted county's motion to dismiss. Plaintiffs appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that (1) Navajo court lacked subject-matter jurisdiction over insurance company and attorney, and (2) district court failed to consider whether Navajo Nation court had adjudicative jurisdiction.

September

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler
304 F.3d 616,Docket No. 01-1624
6th Cir. September 20, 2002

Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Tribal-state compacts; Lands.

*Synopsis: This is an Indian gambling case in which the Plaintiff, Match-E-Be-Nash- She-Wish Band of Pottawatomi Indians (the "Tribe"), seeks to force the State of Michigan into negotiations for a casino pursuant to the Indian Gaming Regulatory Act (the "Act"), 25 U.S.C. § 2710(d).

*Holding: Because the Tribe has failed to satisfy the statutory prerequisite of owning Indian lands, see 25 U.S.C. § 2710(d)(3)(A), we hold that it is not entitled to relief under the Act. Accordingly, we AFFIRM the district court's grant of the State's motion to dismiss.

American Greyhound Racing, Inc. v. Hull
305 F.3d 1015, Docket Nos. 01-16672, 01-17319, 01-17321
9th Cir. September 19, 2002

Subjects: Gaming -- Tribal-state compacts.

*Synopsis:Racetrack owners and operators brought state court action to enjoin Governor of Arizona from entering new, renewed, or modified gaming compacts that would allow Indian tribes to conduct slot machine, keno, or blackjack gaming. After removal of action to federal court, the United States District Court for the District of Arizona, Robert C. Broomfield, Chief District Judge, 146 F.Supp.2d 1012, granted injunctive relief, and cross appeals were taken.

*Holding:The Court of Appeals, Canby, Circuit Judge, held that: (1) the "interest" required under rule providing for joinder of a person as a necessary party if the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may impair or impede the person's ability to protect that interest, must be a legally protected interest but need not be a property right; (2) Indian tribes with existing compacts with state for operation of gaming casinos were necessary and indispensable parties to the action; and (3) the public rights exception to the requirement of joinder of otherwise indispensable parties did not apply.
Vacated and remanded with instructions.

Gobin v. Snohomish County
304 F.3d 909, Docket No. 00-36031
9th Cir. September 18, 2002

Subjects: Tribal property -- personal property; Lands; Right of property; Reservations; Jurisdiction -- Snohomish County.

*Synopsis: Tribe member sought declaration that county had no land use jurisdiction over on-reservation land which she owned in fee simple and sought to rezone and subdivide. The United States District Court for the Western District of Washington, Robert S. Lasnik, J., entered summary judgment for member. County appealed.

*Holding: The Court of Appeals, Trott, Circuit Judge, held that: (1) the right of Indians to alienate their lands freely does not provide a county with a concomitant right to exert in rem land use regulation over those lands, and (2) no special circumstances existed under which county could exercise jurisdiction over land.
Affirmed.

Ramsey v. U.S.
302 F.3d 1074, Docket No. 01-35014
9th Cir. (D.C.), September 11, 2002

Subjects: Taxation -- Fuel; Taxation -- Immunity, exemption; Treaties -- Federal.

*Synopsis: Taxpayer, who was enrolled member of Yakama Indian Tribe, brought suit against United States seeking refund of federal excise taxes for heavy vehicle use, and diesel fuel use, which had been imposed in connection with his operation of logging trucks on public highways outside Yakama Reservation. The United States District Court for the District of Washington, William Fremming Nielsen, J., 134 F.Supp.2d 1203, entered summary judgment in favor of taxpayer. United States appealed.

*Holding: The Court of Appeals, Trott, Circuit Judge, held that Yakama Treaty of 1855 did not contain "express exemptive language," and thus did not exempt member from paying federal taxes on heavy vehicle use and diesel fuel.

Torres v. Wickliff
47 Fed.Appx. 537, Docket No. 01-7138
10th Cir. (OK), September 11, 2002

Subjects: Tribal membership; Tribal government -- Tribal officials; Recognition.

*Synopsis: Former officials of Indian tribe sued officials of Bureau of Indian Affairs (BIA), challenging decision to withdraw recognition from officials based on determination that they were not tribe members. The United States District Court for the Eastern District of Oklahoma dismissed action. Former officials appealed.

*Holding:The Court of Appeals, Hartz, Circuit Judge, held that affirmance was appropriate since, inter alia, former officials failed to point with any specificity to legal standards allegedly breached.
Affirmed.

U.S. v. Chewey
45 Fed.Appx. 859, Docket Nos. 01-7161 & 02-7025
10th Cir. (OK), September 04, 2002

Subjects: Criminal jurisdiction, Federal -- Indian Country.

*Synopsis: Petitioner convicted of second degree murder in Indian country and discharge of firearm during crime of violence sought habeas relief. The United States District Court for the Eastern District of Oklahoma dismissed petition and denied certificate of appealability (COA). Petitioner appealed.

*Holding: The Court of Appeals, Brorby, Senior Circuit Judge, held that Cherokee Nation's lack of consent to prosecution did not preclude federal court jurisdiction.
COA denied; appeal dismissed.

Miccosukee Tribe of Indians of Florida v. Southern Everglades Restoration Alliance
2002 WL 2013529, Docket No. 01-16226
11th Cir. (FL), September 04, 2002

Subjects: Federal Advisory Committee Act (FACA) (5 U.S.C. App.2 §§ 1 et. seq.); Lands -- Indian Country; Everglades (Fla.).

*Synopsis: Indian Tribe brought action under Federal Advisory Committee Act (FACA) against Southern Everglades Restoration Alliance (SERA), its former director, and various federal agencies and officials who had allegedly participated in SERA or relied on its advice, alleging that its advice caused continuing damage to tribal lands in Everglades. The United States District Court for the Southern District of Florida, Joan A. Lenard, J., No. 99-01315-CV-JAL, dismissed action for failure to state claim. Tribe appealed.

*Holding: The Court of Appeals, Carnes, Circuit Judge, held that: (1) complaint was sufficient to establish tribe's standing at pleading stage; (2) claims against SERA and its former director were moot; and (3) Southern Everglades Restoration Alliance (SERA) was "advisory committee" subject to FACA, even if it included no non-governmental entities representing private interests.
Affirmed in part; reversed and remanded in part.

August

Walker v. Chugachmiut
46 Fed.Appx. 421,
9th Cir. (AK), August 29, 2002

Subjects: Employment; Employee-employer relations.

*Synopsis: Former employee brought state court action against tribal consortium, and its board member, claiming defamation, interference with contract, and punitive damages. Consortium removed action to United States District Court for the District of Alaska, James K. Singleton, J., and complaint was dismissed. Employee appealed.

*Holding:The Court of Appeals held that: (1) removal of employee's action against tribal consortium and its employee was mandatory; (2) substitution of United States as defendant on removal was warranted; (3) board member of tribal consortium was acting within scope of his employment under Alaska law; (4) dismissal with prejudice of employee's defamation, interference with contract, and punitive damages claims, was warranted; (5) dismissal without prejudice of employee's negligent investigation and emotional distress claims was warranted; and (6) employee abandoned certain arguments on appeal.

Affirmed.

United States v. Belgarde
300 F.3d 1177, Docket Nos. 01-30243, 01-30244
9th Cir. August 27, 2002

Subjects: Federal court jurisdiction -- Major Crimes Act (18 USC 1153); Criminal jurisdiction, Federal -- Major Crimes Act (18 USC 1153).

*Synopsis: Tribal member was indicted for burglary. The United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, dismissed indictment. Government appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that: (1) government sufficiently specified order from which it was appealing; (2) notice of appeal was timely; and (3) state agency was not a "person" within meaning of Major Crimes Act.

McDonald v. Means
300 F.3d 1037, Docket Nos. 99-36166, 00-35002
9th Cir. August 14, 2002

Subjects: Civil jurisdiction, Tribal; Reservations -- Roads; Tribal law -- Applicability to nonmembers.

*Synopsis: Operator of horse ranch within boundaries of Indian reservation brought action challenging Indian tribal court's jurisdiction over separate action brought against operator by guardian for minor tribe member who was injured when his car struck horse that had wandered onto Bureau of Indian Affairs (BIA) road within the reservation. The United States District Court for the District of Montana, Jack D. Shanstrom, J., denied tribe's motion to intervene and granted summary judgment for operator on ground that tribal court lacked jurisdiction. Guardian and tribe appealed.

*Holding: The Court of Appeals, James R. Browning, Circuit Judge, held that: (1) BIA road was a "tribal road"; (2) BIA road was not non- Indian fee land, and thus was not exempt from tribal jurisdiction; and (3) tribe was not entitled to intervene as of right.

Coando v. Coastal Oil & Gas Corporation
44 Fed.Appx. 389, Docket Nos. 01-4080, 01-8069, 01-8072
10th Cir. August 14, 2002

Subjects: Employment -- Indian preference; Energy and natural resources; Business and economic development -- Contracts

*Synopsis: Member of Indian tribe who operated oilfield casing and tubing distribution company that qualified for "Indian Preference Business Status" on reservation brought actions against oil and gas producer after producer rejected his bid to supply casing and tubing products, and refused to enter into exclusive supply contracts. The United States District Courts for the Districts of Utah and Wyoming dismissed complaints, plaintiff appealed, and appeals were consolidated.

*Holding: The Court of Appeals held that: (1) plaintiff's pro se complaint was sufficient to give district court subject matter jurisdiction, but (2) plaintiff failed to state claim.

Affirmed.

Taylor v. Begay
299 F.3d 1090, Docket No. 00-17279.
9th Cir. August 12, 2002

Subjects: Lands -- Navajo-Hopi Settlement Act (Chapter 29, 25 USC 2701 et seq.); Land valuation.

*Synopsis: In action by Hopi tribe, pursuant to Navajo-Hopi Settlement Act of 1974, to recover damages relating to use and partition of lands jointly held by Navajo tribe and Hopi tribe, the Court of Appeals, 118 F.3d 1371, remanded for determination of a portion of owelty obligation of Navajo tribe to Hopi tribe. On remand, the United States District Court for the District of Arizona, Earl H. Carroll, J., held that value of land was not enhanced as result of improvements. Hopi tribe appealed.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that (1) district court did not err in finding that schools, chapter houses, medical facility, and airstrip added no value to land itself, but (2) finding that entire value of trading posts was incorporated into value of underlying land was erroneous.

United States v. Hardman
297 F.3d 1116, Docket Nos. 99-CR-166-B, 99-21-M & 2:99-CR-00047W.
10th Cir. August 5, 2002

Subjects: Environmental regulation -- Bald and Golden Eagle Protection Act (16 USC 668); Environmental regulation -- Migratory Bird Treaty Act (16 USC 703); Bureau of Indian Affairs; Religion -- Religious Freedom Restoration Act (RFRA).

*Synopsis: In three separate cases in the United States, District Courts for the Districts of New Mexico and Utah, Edwin L. Mechem, J. and Dee Benson, Chief District Judge, 2001 WL 685709, 2001 WL 685671, and 2001 WL 685704, two of the claimants were convicted for unrelated counts of illegally possessing eagle feathers, and the other claimant had his eagle feather returned following seizure by the Bureau of Indian Affairs.

*Holding: After vacating the panel opinions, and then sua sponte ordering that the cases be reheard en banc, the Court of Appeals, Tacha, Chief Judge, held that excluding sincere practitioners of Native American religions who were not members of federally recognized tribes from applying for permit for possession of eagle feathers would violate Religious Freedom Restoration Act (RFRA) unless government was able to show that limiting permits for eagle feathers only to members of federally recognized tribes was the least restrictive means of advancing the government's interests in preserving eagle populations and protecting Native American culture.

July

American Vantage Companies v. Table Mountain Rancheria
292 F.3d 1091, Docket No. 00-17355
9th Cir. July 29, 2002

Subjects: Sovereign immunity; Federal court jurisdiction -- Diversity of citizenship.

*Synopsis: Gaming management company brought action against Indian tribe on promissory note and for breach of contract. The United States District Court for the Eastern District of California, Anthony W. Ishii, J., dismissed the action for want of subject matter jurisdiction, and company appealed.

*Holding: The Court of Appeals, Fisher, Circuit Judge, held that: (1) neither tribe nor its casino was a "citizen" of any state, and thus, neither was subject to diversity jurisdiction; (2) tribe's waiver of immunity to suit in contract did not create de facto incorporation of the tribe, and thus, did not create de facto corporate state citizenship for diversity jurisdiction purposes; (3) casino which was unincorporated arm of unincorporated Indian tribe did not shed its noncitizenship for purposes of diversity jurisdiction by acting in commercial capacity; (4) tribe was not an "unincorporated association" for diversity jurisdiction purposes; and (5) company waived issue of federal question jurisdiction, raised for first time on appeal.

Ute Distribution Corp. v. Norton
43 Fed.Appx. 272, Docket No. 01-4020
10th Cir. July 25, 2002

Subjects: Water rights; Ute Partition and Termination Act (UPA) (25 U.S.C. 677-677aa); Federal civil procedure; Federal authority over Indian affairs; Aboriginal title -- Water rights; Tribal membership.

*Synopsis: In action over disputed tribal water rights between "mixed-blood" members and "full-blood" members of Ute tribe, the United States District Court for the District of Utah, Winder, Chief Judge, 934 F.Supp. 1302, denied "full-blood" Ute's motion to dismiss, and the Court of Appeals, Murphy, Circuit Judge, 149 F.3d 1260, reversed and remanded. On remand, after Secretary of the Interior determined that the Ute Partition Act (UPA) authorized division and distribution of tribe's water rights, Timpanogos tribe filed motion to intervene as of right on ground that it had paramount title to water rights at issue. The United States District Court for the District of Utah denied motion to intervene, and Timpanogos tribe appealed.

*Holding: The Court of Appeals, Miller, District Judge, sitting by designation, held that: (1) District Court did not abuse its discretion in finding motion to intervene untimely; (2) Timpanogos tribe did not have direct, substantial, and legally protectable interest in underlying case justifying its intervention; and (3) resolution of action would not impair or impede protection or assertion of Timpanogos tribe's claim.

United States v. Sutton
43 Fed.Appx. 238, Docket No. 01-6130
10th Cir. July 23, 2002

Subjects: Indian Major Crimes Act (18 USC 1153); United States -- Constitution -- 5th Amendment; Constitution, United States -- Due process clause; Criminal jurisdiction -- Federal; Criminal law.

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma of second degree murder. Defendant appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that: (1) defendant's Fifth Amendment due process rights were not violated in preparation of presentence report; (2) defendant's ineffective assistance of counsel claims could not be reviewed on present appeal; (3) Court of Appeals did not have jurisdiction to review district court's decision to not provide downward departure to defendant's sentence; and (4) Major Crimes Act did not deny defendant equal protection of the law.

AT&T Corporation v. Coeur d'Alene Tribe
295 F.3d 899, Docket No. 99-35088
9th Cir. July 17, 2002

Subjects: Tribal courts -- Jurisdiction; Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.).

*Synopsis: Telephone company brought declaratory judgment action against Indian tribe, seeking relief from tribal court judgment requiring company to provide interstate toll-free service for tribe's interstate lottery, despite notices from states that service would violate state law. The United States District Court for the District of Idaho, Edward J. Lodge, Chief Judge, 45 F.Supp.2d 995, granted declaratory relief, stating that company was not required to furnish toll-free service from any state that notified company that lottery would violate state law. Tribe appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that: (1) Federal Communications Act (FCA) deprived tribal court of jurisdiction over tribe's suit, and (2) approval by National Indian Gaming Commission (NIGC) of management contract and tribal resolution authorizing lottery constituted final agency decision that lottery complied with Indian Gaming Regulatory Act (IGRA), and, thus, states acted without jurisdiction in issuing letters, and tribe and company could continue their activities.

CID Enterprises v. Wallowa Forest Products, LLC
40 Fed.Appx. 601, Docket Nos. 00-35927, 00-35941
9th Cir. July 1, 2002

Subjects: Business and economic development -- Native corporations; Employment -- Indian preference; Civil rights.

*Synopsis: Plaintiffs, Cynthia Barnedt and CID Enterprises, challenge, under 42 U.S.C. § 1981, a decision by Wallowa Forest Products, a lumber company, to award a logging contract for work on the Yakama reservation to a Yakama-owned business, pursuant to tribal law. The district court held that plaintiffs' claims failed under § 1981 because that section does not cover discrimination based on national origin. On reconsideration, the district court rejected plaintiffs' arguments that they were discriminated against based on race, ethnicity, or ancestry, concluding that the arguments were untimely and failed on the merits.

*Holding: 42 U.S.C. § 1981 does not prohibit national origin discrimination.

June

United States v. Lara
294 F.3d 1004, Docket No. 01-3695
8th Cir. June 24, 2002

Subjects: Double jeopardy; Indian Civil Rights Act (25 U.S.C. 1301); Tribal sovereignty and powers.

*Synopsis: Bureau of Indian Affairs officers arrested Billy Jo Lara on the Spirit Lake Nation Reservation for public intoxication. Lara is an Indian, but not a member of the Spirit Lake Nation. When BIA officers reminded Lara of the order excluding him from the Spirit Lake Nation Reservation, Lara struck an officer with his fist. Lara pleaded guilty in tribal court to three violations of the Spirit Lake tribal code, including violence to a police officer. Later, Lara was charged in federal court with misdemeanor assault of a federal officer. Lara moved to dismiss the indictment, claiming the federal charges violated the prohibition against Double Jeopardy and impermissible selective prosecution. The district court [FN*] denied Lara's motion to dismiss. Lara then entered a conditional guilty plea, reserving the right to appeal the denial of his pretrial motions. Having carefully reviewed de novo the district court's denial of Lara's motion to dismiss the indictment, we affirm. United States v. Kriens, 270 F.3d 597, 602 (8th Cir.2001), cert. denied, No. 01-8961, 2002 WL 424553 (US Apr. 15, 2002).

*Holding: Because tribal authority and federal authority arise from the separate sources of the tribe's inherent power and the federal Constitution, the Double Jeopardy clause is not offended by two separate sovereigns convicting Lara for crimes arising from the same conduct. See Enas, 255 F.3d at 675; United States v. Archambault, 174 F.Supp.2d 1009, 1022 (D.S.D.2001); Weaselhead, 36 F.Supp.2d at 915.

United v. Errol D., Jr.
292 F.3d 1159, Docket No. 00-30337
9th Cir. June 21, 2002

Subjects: Indian Major Crimes Act (18 USC 1153).

*Synopsis: Juvenile was adjudicated delinquent in the United States District Court for the District of Montana, Jack D. Shanstrom, J., for burglarizing Bureau of Indian Affairs (BIA) building on Indian reservation, and he appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that the district court lacked jurisdiction to try the juvenile for burglary of a government building as charged under the Indian Major Crimes Act (IMCA).
Vacated and remanded with instructions.

United States v. Casino Magic Corp.
293 F.3d. 419, Docket No.01-2024
8th Cir. June 7, 2002

Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Casinos; Gaming -- Contracts.

*Synopsis: United States and its relator brought qui tam action against casino manager under Indian Gaming Regulatory Act (IGRA) over series of agreements between Indian tribe and casino manager. The United States District Court for the District of South Dakota, Richard H. Battey, J., granted judgment for casino manager. United States and its relator appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that (1) agreements, when considered together, constituted management agreement; (2) denial of leave to amend to add additional defendant was not abuse of discretion; (3) further discovery was required to determine what fees were paid by tribe to casino manager.

May

United States v. Byrne
291 F.3d 1056, Docket No. 00-16008
9th Cir. May 29, 2002

Subjects: Lands -- Quiet title; Lands -- Trespass.

*Synopsis: United States brought action against private landowners on behalf of Indian tribe for quiet title, ejectment, and trespass damages, on ground that the lands at issue along the Colorado River attached by the natural process of accretion to land that the United States held in trust for the tribe.

*Holding: The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., held that it lacked jurisdiction but nonetheless found that the private landowners held title to the land. United States appealed. The Court of Appeals, Thomas, Circuit Judge, held that: (1) the district court had jurisdiction over the dispute, and (2) movements of the Colorado River before 1905, when the United States patented the land to the State of California, were not relevant to fixing title to the land.

Sault Ste. Marie Tribe of Chippewa Indians v. United States
288 F.3d 910, Docket No. 99-2444
6th Cir. May 3, 2002

Subjects: Business and economic development -- Gaming.

*Synopsis: Sault Ste. Marie Tribe of Chippewa Indians brought action against United States, seeking review of determination by Department of the Interior allowing Little Traverse Bay Bands of Odawa Indians to operate casino. Bands intervened as party defendant. The United States District Court for the Western District of Michigan, Robert Holmes Bell, Chief Judge, entered summary judgment for United States and Bands. Tribe appealed.

*Holding: The Court of Appeals, Nelson, Circuit Judge, held that, to prevail on issue of constitutional standing at summary judgment stage, Tribe was required to show, not merely to allege, that operation of Bands' casino was having adverse effect on Tribe's casino.

April

United States v. Bird
287 F.3d 709, Docket No. 01-2796
8th Cir. April 23, 2002

Subjects: United States -- Constitution -- 6th Amendment; Tribal courts.

*Synopsis: Member of Indian tribe, charged with aggravated sexual abuse, moved to suppress evidence. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., 146 F.Supp.2d 993, granted motion in part and denied in part. Government appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that: (1) member was entitled to Sixth Amendment protection of right to counsel; (2) Sixth Amendment protection attached when tribal member was charged with rape in tribal court; and (3) arraignment in tribal court constituted an adversarial judicial proceeding.

Timpanogos Tribe v. Conway
286 F.3d 1195, Docket No. 01-4056
10th Cir. April 15, 2002

Subjects: Hunting, fishing, trapping, and gathering rights; Reservations -- Energy and natural resources; Federal court jurisdiction.

*Synopsis: Indian tribe brought suit against state governor, and assistant director of state department of natural resources (DNR), seeking declaration regarding tribe's fishing, hunting, and gathering rights on reservation land. State officials moved to dismiss, and the United District Court for the District of Utah denied motion. Officials brought interlocutory appeal.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that: (1) Court had jurisdiction under collateral order doctrine over officials' claim that they were protected by Eleventh Amendment immunity; (2) Court would exercise pendent appellate jurisdiction over issue of subject matter jurisdiction, which had also been raised in motion to dismiss, but not over other bases for dismissal that had been asserted; (3) district court had subject matter jurisdiction even though tribe was not federally registered; and (4) action was one seeking only prospective, equitable relief for violations of federal law, so that doctrine of Ex parte Young was applicable, and action was not barred by Eleventh Amendment.

Navajo Nation v. Dept. Health and Human Services
285 F.3d 864, Docket No. 99-16129
9th Cir. April 12, 200

Subjects: Federal Indian policy -- Self-determination; Health and welfare/social services.

*Synopsis: Navajo Nation sued Department of Health and Human Services (HHS), seeking order requiring HHS Secretary to enter into self-determination contract with Nation for Temporary Assistance to Needy Families (TANF) funds. The United States District Court for the District of Arizona, Roger G. Strand, J., dismissed action for failure to state claim. Nation appealed.

*Holding: The Court of Appeals, O'Scannlain, Circuit Judge, held that: (1) Chevron deference would be accorded to Secretary's determination that TANF program did not operate "for the benefit of Indians because of their status as Indians," and that Nation thus was not entitled to operate TANF program under self-determination contract; (2) fact that ISDEAA was enacted for benefit of Indian tribes did not preclude granting Chevron deference; (3) fact that Secretary's construction came in form of letter did not preclude granting Chevron deference; and (4) fact that ISDEAA was administered by two different agencies did not preclude granting Chevron deference.

Rosebud Sioux Tribe v. McDivitt
286 F.3d 1031, Docket No. 00-2468, 002471
8th Cir. April 5, 2002

Subjects: Lands -- Leasing; Environmental regulation -- National Environmental Policy Act (42 USC 4321-); Leasing -- Federal authority over Indian affairs.

*Synopsis: Indian tribe and lessee challenged decision by Bureau of Indian Affairs (BIA) to void lease of tribal trust land for construction and operation of pork production facility. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., 104 F.Supp.2d 1194, entered permanent injunction in lessee's favor. Government and intervenors appealed, and tribe was granted permission to realign itself as appellant.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that: (1) lessee lacked standing under statutes imposing limitations on contracts and leases involving Indian lands to challenge BIA's decision to void lease; (2) lessee lacked standing under National Environmental Policy Act (NEPA); (3) lessee lacked standing under National Historical Preservation Act (NHPA); and (4) allegation of procedural injury did not provide necessary basis for lessee to establish prudential standing.
Vacated; case remanded with instructions.

March

Grey Poplars, Inc. v. 1,371,100 Assorted Brands of Cigarettes
282 F. 3d 1175, Docket No. 00-35841
9th Cir. March 8, 2002

Subjects: Taxation -- Cigarettes; Contraband Cigarette Trafficking Act (18 USC 2341-2346).

*Synopsis: United States brought forfeiture action under Contraband Cigarette Trafficking Act (CCTA) against cigarettes seized from tribally-licensed corporation on Yakima Indian Reservation. The United States District Court for the Eastern District of Washington, William Fremming Nielsen, J., entered summary judgment for United States. Corporation appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that: (1) fact that State of Washington could not directly enforce its cigarette tax laws by seizures within Indian country did not prevent seizure of cigarettes pursuant to CCTA, and (2) even if cigarettes were destined for Alaska, such fact did not relieve tribal seller of Washington's requirement of tax stamps, so as to prevent seizure under CCTA.

Midwater Trawlers Co-operative v. Department of Commerce
282 F.3d 710, Docket No. 00-35717
9th Cir. March 4, 2002

Subjects: Environmental regulation; Hunting, fishing, trapping and gathering rights -- Treaties.

*Synopsis: States and fishing industry groups brought action challenging regulation of the National Marine Fisheries Service (NMFS) allocating fish catches to Indian tribe. The District Court dismissed the suit. The Court of Appeals, 173 F.3d 1158, reversed and remanded. Separate action brought by fishing industry groups and state of Oregon challenging regulation increasing fish allocation to Indian tribe was consolidated with the remanded action. The United States District Court for the District of Washington, 139 F.Supp.2d 1136, granted the federal government's motion for summary judgment. Fishing industry groups and the state of Oregon appealed.

*Holding: The Court of Appeals, Thomas, Circuit Judge, held that: (1) fishing industry groups did not have standing to challenge the portion of the regulation merely identifying the usual and accustomed areas of fishing with respect to certain tribes but not making any allocation of fishing rights; (2) fact that no express judicial adjudication of tribal treaty rights to the Pacific whiting species of fish had been made when federal regulation allocating Pacific whiting catch to tribe was promulgated did not preclude federal recognition of tribal treaty rights to Pacific whiting; (3) Pacific whiting were not subject to separate treaty proviso for shellfish; (4) federal recognition of the Makah tribe's usual and accustomed fishing areas beyond the three-mile territorial limit, extending into waters under United States jurisdiction, in promulgating federal regulation allocating Pacific whiting catch to the tribe, was appropriate; and (5) regulation making allocation of Pacific whiting fish to Makah tribe pursuant to political compromise, without any stated scientific rationale, did not meet requirement of the Magnuson- Stevens Act that the NMFS describe the nature and extent of the tribal fishing right based on the best scientific information available.

February

Little Six, Inc. and Shakopee Mdewakaton Sioux Community v. United States
280 F.3d 1371, Docket No. 99-5083
Federal Cir. February 19, 2002

Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Taxation -- Federal.

*Synopsis: Indian tribe sought refund of federal excise taxes and related occupational taxes that it had paid on income from "pull-tab" games conducted on its reservation. On cross-motions for summary judgment, the Court of Federal Claims, Edward S. Smith, Chief Judge, granted summary judgment to government. Tribe appealed, and the Court of Appeals reversed, 210 F.3d 1361, and denied rehearing, 229 F.3d 1383.

*Holding: The Court of Appeals, Lourie, Circuit Judge, held that: (1) wagers were "state authorized wagers" within meaning of Internal Revenue Code, and thus were subject to excise tax, and (2) Indian Gaming Regulation Act (IGRA) did not provide tribe with exemption from excise tax.

Bank One, N.A. v. Shumake
281 F.3d 507, Docket No.01-60228, 01-60238.
5th Cir. February 15, 2002

Subjects: Civil jurisdiction, Federal -- Exhaustion of tribal remedies.

*Synopsis: After members of Mississippi Band of Choctaw Indians brought tribal court action against creditor arising from financing of home satellite systems, creditor brought federal court actions seeking to compel arbitration of members' claims pursuant to Federal Arbitration Act (FAA).

*Holding: The United States District Court for the Southern District of Mississippi, Tom S. Lee, Chief Judge, dismissed actions for failure to exhaust tribal remedies. Creditor appealed, and actions were consolidated. The Court of Appeals, W. Eugene Davis, Circuit Judge, held that tribal exhaustion doctrine applied to suits to compel arbitration under FAA.

United States v. Male Juvenile
280 F. 3d. 1008, Docket No. 00-30411
9th Cir. February 7, 2002

Subjects: Criminal jurisdiction, Federal -- Major Crimes Act (18 USCA 1153); Juveniles -- Federal Juvenile Delinquency Act.

*Synopsis: Native American juvenile was adjudged a juvenile delinquent in the United States District Court for the District of Montana, Jack D. Shanstrom, J., for two burglaries committed on an Indian reservation, and he appealed.

*Holding: The Court of Appeals, Brunetti, Circuit Judge, held that: (1) certification under the Federal Juvenile Delinquency Act (FJDA) did not require that the Attorney General certify that the tribe did not have, or would not assume, jurisdiction to adjudicate the juvenile as a delinquent; (2) the FJDA does not violate equal protection because it allows a "youth oversight function" in United States possessions and territories, but denies that right to Indian tribes; (3) residential burglary constituted a violation of a "law of the United States," as required for jurisdiction under the FJDA, though the juvenile's act of delinquency was determined by reference to substantive state law; (4) prosecution by the federal government after tribal adjudication and punishment did not violate double jeopardy; (5) Montana's statutory right to a jury trial was not imported into the federal delinquency proceeding; (6) tribal law did not govern the admissibility in federal court of statements made by juvenile to tribal investigators; (7) the federal Sentencing Guidelines apply to sentencing under the Indian Major Crimes Act for an offense defined by state law, but the Guideline range must fall within the minimum, if any, and the maximum sentence established by state law; and (8) application of the Guidelines did not violate due process.

Miccosukee Tribe of Indians of Florida v. South Florida Water Management
280 F.3d 1364, Docket No. 00-15703
11th Cir. February 1, 2002

Subjects: Environmental regulation -- Clean Water Act.

*Synopsis: Indian tribe and environmental organization brought action against regional water management district, alleging violation of Clean Water Act (CWA). The United States District Court for the Southern District of Florida, No. 98- 06056-CV-WDF, Wilkie D. Ferguson, Jr., J., granted summary judgment for plaintiffs, and water district appealed.

*Holding: The Court of Appeals, Edmondson, Circuit Judge, held that: (1) pumping station was point source which added pollutants, within meaning of CWA, and thus national pollution discharge elimination system (NPDES) permit was required, but (2) injunctive relief was not appropriate.

January

United States v. Kornwolf
276 F. 3d. 1014, Docket No. 01-2394
8th Cir. January 16, 2002

Subjects: Environmental regulation -- Bald and Golden Eagle Protection Act (16 USC 668); Environmental regulation -- Migratory Bird Treaty Act (16 USC 703); Cultural resources -- Artifacts -- Sale of.

*Synopsis: Defendant was convicted in the United States District Court for the District of Minnesota, David S. Doty, J., of violating the Bald and Golden Eagle Protection Act, and Migratory Bird Treaty Act, by attempting to sell two Native American artifacts containing eagle feathers. Defendant appealed, challenging constitutionality of the Acts.

*Holding: The Court of Appeals, Lay, Circuit Judge, held that: (1) prior Court of Appeals decision holding that the Acts did not effect a taking in violation of the Fifth Amendment, extended to bird feathers acquired prior to effective date of the Acts, and (2) defendant's Fifth Amendment property right to just compensation was not violated.

Churchill County v. Norton
276 F. 3d. 1060, Docket No. 00-15967
9th Cir. January 11, 2002

Subjects: Water rights -- Truckee-Carson-Pyramid Lake Water Rights Settlement Act; Environmental regulation -- National Environmental Policy Act (NEPA) (42 USC 4321); Environmental impact statements; US Fish and Wildlife Service.

*Synopsis: City and county brought action against Secretary of Department of Interior and others, alleging that defendants violated National Environmental Policy Act (NEPA) in connection with implementation of Truckee-Carson Pyramid Lake Water Rights Settlement Act. After grant of summary judgment based on lack of standing was reversed, 150 F.3d 1072, amended by 158 F.3d 491, and matter was remanded, defendants moved for summary judgment. The United States District Court for the District of Nevada, Edward C. Reed, Jr., J., granted motions. City and county appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) Fish and Wildlife Service did not act in arbitrary and capricious manner when it determined that it was not required under NEPA to prepare a programmatic environmental impact statement (EIS) before it approved land and water rights purchases made pursuant to Act, and (2) EIS prepared with respect to water rights acquisitions was sufficient to satisfy requirements of NEPA.

Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board
276 F. 3d. 876, Docket No. 00-1879
6th Cir. January 11, 2002

Subjects: Gaming -- Regulation; Freedom of speech -- United States; United States -- Constitution -- 1st Amendment.

*Synopsis: Indian tribe brought action against Michigan Gaming Control Board and others, challenging constitutionality of Michigan statute and Detroit ordinance governing development and regulation of casino gambling in Detroit. Casino developers intervened. After grant of summary judgment in favor of defendants and intervenors was reversed, 172 F.3d 397, and matter was remanded, the United States District Court for the Western District of Michigan, Robert Holmes Bell, Chief Judge, again sustained Detroit ordinance. Tribe appealed.

*Holding: The Court of Appeals, Boyce F. Martin, Jr., Chief Judge, held that ordinance governing issuance of licenses for operation of new casinos, which gave two companies that had been active in movement to legalize gambling a preference, violated First Amendment's free speech clause.

National Labor Relations Board v. Pueblo of San Juan
276 F.3d. 1186 , Docket No., 99-2011, 99-2030
10th Cir. January 11, 2002

Subjects: Tribal sovereignty and powers; Employment -- Regulation -- National Labor Relations Act (NLRA) (29 USC 151).

*Synopsis: National Labor Relations Board (NLRB) brought action for declaratory and injunctive relief challenging Indian tribal government's ordinance prohibiting union security agreements for companies engaged in commercial activity on tribal lands. Union intervened as plaintiff. The United States District Court for the District of New Mexico, Martha Vazquez, J., 30 F.Supp.2d 1348, entered summary judgment in favor of tribal government. NLRB and union appealed. The Court of Appeals, 228 F.3d 1195, affirmed.

*Holding: On rehearing en banc, the Court of Appeals, Holloway, Senior Circuit Judge, held that National Labor Relations Act (NLRA) did not preempt tribal government from enacting right-to-work ordinance.

Linneen v. Gila River Indian Community
276 F. 3d. 489, Docket No. 00-15120
9th Cir. January 7, 2002

Subjects: Tribal sovereignty and powers; Tribal law enforcement.

*Synopsis: Husband and wife who were detained on Indian tribal community property by tribal community ranger brought action alleging six federal and state causes of action, seeking damages against the tribal community, the tribal community ranger, another tribal community official, the United States, the Department of Interior, the Bureau of Indian Affairs (BIA), and a BIA officer. The United States District Court for the District of Arizona, Roger G. Strand, J., dismissed the claims against the United States and entered judgment granting defendants' motion to dismiss the complaint as to the tribal community, and as to the tribal community ranger and the tribal community official in their official capacities. Husband and wife appealed.

*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that the suit was barred by the tribal community's sovereign immunity, which was neither abrogated nor waived.

Bishop Paiute Tribe v. County of Inyo
291 F.3d 549, Docket No. 01-15007
9th Cir. January 4, 2002

Subjects: Criminal jurisdiction, State; Sovereignty -- Tribal; United States -- Constitution -- 4th Amendment; Welfare fraud.

Synopsis: Tribe and tribally-chartered gaming corporation brought action against county, county district attorney, and county sheriff for declaratory and injunctive relief, and for damages under § 1983, arising from execution of a warrant to search tribal employee records as part of a welfare fraud investigation. The United States District Court for the Eastern District of California. Robert E. Coyle, Senior District Judge, granted defendants' motion to dismiss for failure to state a claim. Tribe and the gaming corporation appealed.

*Holding: The Court of Appeals, Pregerson, J., held that: (1) county did not have criminal jurisdiction, under statute which granted several states criminal jurisdiction over reservation Indians, to execute warrant to search tribal employee records on reservation as part of a welfare fraud investigation; (2) tribe was possessed of sovereign immunity which barred county's execution of warrant to search tribal employee records on reservation as part of a welfare fraud investigation; (3) Indian Gaming and Regulatory Act (IGRA) did not preempt county's investigation of tribal gaming employees for potential welfare fraud; (4) state was not required to affirmatively adopt, through enabling legislation, federal statute which granted several states criminal jurisdiction and limited civil jurisdiction over reservation Indians, before it could properly exercise jurisdiction under the statute; (5) statute which granted several states criminal jurisdiction and limited civil jurisdiction over reservation Indians did not violate the Tenth Amendment; (6) district attorney and sheriff were acting as county officers in obtaining and executing the warrant, and thus, county could be held liable under § 1983 for their acts; (7) neither district attorney nor sheriff were entitled to absolute immunity; (8) execution of search warrant violated the Fourth Amendment; and (9) neither district attorney nor sheriff were entitled to qualified immunity. Amended on Denial of Rehearing and Suggestion for Rehearing En Banc May 20, 2002.

Dawavendewa v. Salt River Project Agriculture Improvement and Power District
276 F. 3d. 1150, Docket No. 00-16787
9th Cir. January 2, 2002

Subjects: Salt River Project Agricultural Improvement and Power District; Indian preference in hiring -- Navajo Nation, Arizona, New Mexico & Utah -- Members; Hopi Indians; Independent contractors -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Tribes -- United States; Tribal self-determination -- United States; United States. Indian Self-Determination and Education Assistance Act; United States. Civil Rights Act of 1964. Title 7; Discrimination in employment; Sovereign immunity -- Tribes -- Officials and employees.

*Synopsis: Unsuccessful applicant for position at power generating facility operated by regional power district located on Indian reservation lands brought Title VII action, challenging employment preference to qualified members of Indian tribe that district was required to grant under terms of its lease with tribe. After initial dismissal of suit was reversed, and matter remanded, 154 F.3d 1117, the United States District Court for the District of Arizona, Stephen M. McNamee, Chief Judge, dismissed suit based on failure to join tribe as party. Applicant appealed.

*Holding: The Court of Appeals, Trott, Circuit Judge, held that: (1) tribe was a necessary party to suit; (2) tribe could not joined as party, since it enjoyed tribal sovereign immunity; and (3) tribe was an indispensable party, whose absence required dismissal of suit.

 

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