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December

Midwater Trawlers v. Dep't of Commerce
393 F.3d 99
Docket No. 03-35398
United States Court of Appeals, Ninth Cir., December 28, 2004.

Subjects: Pacific hake fisheries; Pacific hake; Resource allocation -- Makah Indian Tribe of the Makah Indian Reservation, Washington; Fishing rights -- Makah Indian Tribe of the Makah Indian Reservation, Washington; United States. Magnuson-Stevens Fishery Conservation and Management Act; United States. Administrative Procedure Act; United States. Dept. of Commerce; Midwater Trawlers Cooperative; West Coast Seafood Processors (Or.); Fishermen's Marketing Association (Calif.).

*Synopsis: States of Oregon and Washington and fishing industry groups brought action against Department of Commerce, challenging decisions of National Marine Fisheries Service (NMFS) allocating catches of Pacific Whiting to Makah Indian Tribe. Following remand, 173 F.3d 1158, fishing industry groups and State of Oregon brought separate action challenging increase in allocation to Tribe, and such action was consolidated with remanded action. Following another remand, 282 F.3d 710, the United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., entered summary judgment for Department of Commerce. Fishing industry groups appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that:
(1) sliding scale methodology, not biomass methodology, was best scientific information available for allocating Pacific whiting between tribal and nontribal fishers;
(2) NMFS complied with notice requirements of Administrative Procedure Act (APA) and with remand order requiring it to promulgate new allocation; and
(3) District Court did not abuse its discretion when it permitted NMFS to supplement record.Affirmed.

The Western Mohegan Tribe and Nation v. Orange County
395 F.3d 18
Docket No. 04-0449-CV
United States Court of Appeals, Second Cir., December 23, 2004.

Subjects: Western Mohegan Tribe and Nation (New York); New York (State); Land tenure -- New York (State); United States. Trade and Intercourse Act; Quiet title actions; United States. Constitution. 11th Amendment.

*Synopsis: Western Mohegan Tribe and Nation sued State of New York and its Governor, alleging that they were wrongly in possession of land contained in ten New York counties, in violation of federal common law and Indian Trade and Intercourse Act. The United States District Court for the Southern District of New York, Brieant, J., dismissed action. Tribe appealed.

*Holding: The Court of Appeals held that claim against Governor was functional equivalent of action to quiet title, and thus was not subject to Ex parte Young exception to Eleventh Amendment. Affirmed.

Zuni Public School Dist. No. 89 v. U.S. Dept. of Education
393 F.3d 1158
Docket No. 01-9541
United States Court of Appeals, Tenth Cir., Dec. 30, 2004.

Subjects: Zuni (N.M.). School District; Gallup-McKinley County Schools; Zuni Tribe of the Zuni Reservation, New Mexico; New Mexico; Government aid to education -- United States; Zuni Public School District 89; Gallup-McKinley County Public School District No. 1; Educational equalization -- New Mexico; Schools -- Finance -- New Mexico; Impact aid -- New Mexico; United States. Dept. of Education -- Officials and employees -- Powers and duties.

*Synopsis: Two local educational agencies (LEAs) sought judicial review of decision in which the Secretary of the United States Department of Education (DOE) certified that State of New Mexico had program of state aid that equalized expenditures for free public education among state's LEAs, thereby permitting state to factor in receipt of federal Impact Aid funds when making its own distributions of educational aid to its LEAs.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) statute setting forth disparity standard to be used by DOE in certifying state's equalization was ambiguous;
(2) DOE's construction of statute setting forth disparity standard was permissible, warranting judicial deference; and
(3) LEA failed to preserve for appeal issue of whether state's offsets complied with regulation requiring proportionality determinations to be made on case-by-case basis. Petition for review denied. O'Brien, Circuit Judge, dissented and filed a separate opinion.

United States v. Orr Water Ditch Co.
391 F.3d 1077
Docket Nos. 03-16654, 03-16941
United States Court of Appeals, Ninth Cir., Dec. 14, 2004.

Subjects: Orr Water Ditch Co. (Nev.); Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Water rights -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Water rights -- Nevada; Water transfer -- Nevada; Law -- Nevada.

*Synopsis: After the Nevada State Engineer approved in part the applications of the United States and an Indian tribe to make temporary changes to two water rights, city and irrigation district appealed the ruling to a federal court. The United States District Court for the District of Nevada, Lloyd D. George, J., applied Nevada statute providing for an automatic stay of such a ruling. United States and tribe appealed.

*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that District Court was required to apply Nevada statute rather than federal rule governing the availability of injunctions. Affirmed.

United States v. Anderson
391 F.3d 1083
Docket Nos. 03-10516.
United States Court of Appeals, Ninth Cir., December 14, 2004.

Subjects: Exclusive jurisdiction -- California; Jurisdiction -- California; Criminal actions arising in Indian Country (U.S.); Jurisdiction -- United States; Robinson Rancheria of Pomo Indians of California -- Members.

*Synopsis: Defendant, a member of an Indian tribe, appealed his conviction, in the United States District Court for the Northern District of California, William H. Alsup, J., of theft and conspiracy to commit theft against an Indian tribal organization, mail fraud and wire fraud.

*Holding: The Court of Appeals, Rymer, Circuit Judge, held that California did not have exclusive jurisdiction over tribe member who committed federal offenses of theft and conspiracy to commit theft from a tribal organization.
Affirmed.

Cobell v. Norton
392 F.3d 461
Docket No. 03-5314
United States Court of Appeals, District of Columbia Cir., December 10, 2004.

Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior; Injunctions.

*Synopsis: Members of Indian tribes and present or past beneficiaries of individual Indian money (IIM) accounts filed a class action, alleging that Secretaries of the Interior and the Treasury, and the Assistant Secretary of the Interior for Indian Affairs had grossly mismanaged those accounts. The United States District Court for the District of Columbia, Lamberth, J., 283 F.Supp.2d 66, issued injunction ordering a complete historical accounting of trust fund assets, and to provide a comprehensive statement of the manner in which trust management would be conducted after Interior's proposed internal changes, and governmental defendants appealed.

*Holding: The Court of Appeals, Williams, Senior Circuit Judge, held that:
(1) statute prohibiting Department of Interior from being required, under any statute or common law principle, to engage in a historical accounting of Indian trust funds did not amount to a "legislative stay" of a final judicial injunction ordering a complete historical accounting of trust fund assets in violation of separation of powers principles;
(2) portion of injunction requiring Department of the Interior to submit a plan to fulfill its fiduciary obligations regarding management of IIM accounts, did not exceed court's jurisdiction under Administrative Procedure Act (APA) to extent that order continued or logically extended original order to file a comprehensive plan, however, injunction was invalid insofar as it directed Interior, rather than Indian plaintiffs, to identify defects in its proposal and required the agency to comply with the comprehensive plan;
(3) appointment of a monitor to report on Department of the Interior defendants' compliance with injunction requiring defendants to "fix the system" exceeded the scope of the district court's authority; and
(4) court's authority was limited to considering specific claims that Deprtment of Interior breached particular statutory trust duties, understood in light of the common law of trusts, and to ordering specific relief for those breaches.
Vacated in part and remanded.

Commanche Indian Tribe of Oklahoma v. 49, L.L.C.
391 F.3d 1129
Docket No. 02-8108
United States Court of Appeals, Tenth Cir., December 9, 2004.

Subjects: Arbitration (Administrative law)-- United States; Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe);49 LLC; Indian gaming -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Gambling on Indian reservations -- Oklahoma; Casinos -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Machinery.

*Synopsis: Indian tribe brought breach of contract action against lessor of gaming machines that tribe offered for play at its casinos, which were located on tribal land. Lessor submitted demand for arbitration, and tribe moved to dismiss demand for arbitration. The United States District Court for the Western District of Oklahoma, David L. Russell, J., stayed proceedings and compelled arbitration, and tribe appealed.

*Holding: The Court of Appeals, Tymkovich, Circuit Judge, held that:
(1) parties' contracts related to and affected interstate commerce, and thus came within ambit of the Federal Arbitration Act, and
(2) District Court's order staying proceedings pending arbitration, rather than dismissing case, was not an appealable final decision.
Appeal dismissed.

Grynberg v. Koch Gateway Pipeline Co.
390 F.3d 1276
Docket No. 02-8108
United States Court of Appeals, Tenth Cir., December 7, 2004.

Subjects: Oil and gas leases -- Indian Country (U.S.); Fraud; Natural gas -- Measurement; Trusts and trustees -- Accounting; United States. False Claims Act; United States.

*Synopsis: Relator brought qui tam action under False Claims Act against gas producer that had allegedly defrauded United States by fraudulently measuring natural gas it produced on federal and Indian land and underpaying royalties to United States as a result. The United States District Court for the District of Wyoming dismissed action, and relator appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that action was barred by Act's first-to-file bar. Affirmed.

Cobell v. Norton
391 F. 3d 251
Docket Nos. 03-5262 and 04-5084
United States Court of Appeals, DC Cir., December 3, 2004.

Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior; Computer security; Database security.

*Synopsis: Beneficiaries of individual Indian money (IIM) trust accounts brought action against Secretary of Interior, Secretary of Treasury and other trustees seeking declaratory and injunctive relief from alleged mismanagement of trust accounts under Indian Trust Fund Management Reform Act. The United States District Court for the District of Columbia, Royce C. Lamberth, 310 F.Supp.2d 98, entered preliminary injunction requiring Department of Interior to disconnect computers from Internet until it could certify security of trust account data. Department appealed.

*Holding: The Court of Appeals, Rogers, Circuit Judge, held that injunction was abuse of discretion to extent that it placed burden of persuasion on Department, disregarded Department's certifications on state of its computer security, and failed to hold evidentiary hearing on issue. Vacated and remanded.

Related News Stories and Other Information: Judge's Plan Faulted in Indian Trust Case (The Washington Post) 10/13/04, Slap on the wrist for Lamberth is a grand slam for trust plaintiffs (Indian County Today) 12/10/04. Appraiser warned DOI of undervaluation of Indian lands (Indianz.com) 12/6/04, also www.indiantrust.com

November

Northern Arapaho Tribe v. State of Wyoming
389 F.3d 1308
Docket Nos. 02-8026, 02-8031
United States Court of Appeals, Tenth Cir., Nov. 23, 2004.

Subjects: Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Wyoming; United States. Indian Gaming Regulatory Act; Intergovernmental agreements; Indian gaming -- Class III -- Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Gambling on Indian reservations -- Wyoming; Casinos -- Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Negotiation.

*Synopsis: Indian tribe sued state, alleging failure to negotiate in good faith in violation of Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of Wyoming, Johnson, J., 2002 WL 31961497, partially granted summary judgment for tribe, and cross-appeals were taken.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) state was required to negotiate compact with Indian tribe concerning full gamut of calcutta and paramutual wagering, and
(2) state was required to negotiate compact with Indian tribe concerning full gamut of casino-style Class III gambling.
Affirmed in part and reversed in part.

Wodruff v. Covington
389 F.3d 1117
Docket Nos. 02-7040, 02-7051
United States Court of Appeals, Tenth Cir., Nov. 17, 2004.

Subjects: United States. Federal Tort Claims Act; Medical personnel -- Malpractice; Central Oklahoma American Indian Health Council; Carl Albert Indian Health Facility ("Carl Albert Hospital") (Okla.); United States; United States -- Officials and employees; United States. Indian Health Care Improvement Act.

*Synopsis: Former patient brought action under Federal Tort Claims Act (FTCA) against United States, two medical facilities, and physician, alleging defendants' negligence resulted in the surgical removal of his bladder. The United States District Court for the Eastern District of Oklahoma, 189 F.Supp.2d 1283, Frank H. Seay, J., denied physician's motion to dismiss, and appeal was taken.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) physician's notice of appeal of district court's denial of immunity was timely;
(2) district court orders denying motions to dismiss on immunity grounds were immediately appealable under the collateral order doctrine;
(3) physicians were not entitled to immunity as federal employees under the FTCA; and
(4) congress did not expressly extend FTCA immunity to independent contracting physicians practicing at Indian health care facility.
Affirmed.

Cherokee Nation of Oklahoma v. Norton
389 F.3d 1074
Docket No. 03-5055
United States Court of Appeals, Tenth Cir., Nov. 16, 2004.

Subjects: Federal recognition of Indian tribes -- Delaware Tribe of Indians, Oklahoma; Restorations, Political -- Delaware Tribe of Indians, Oklahoma; Cherokee Nation of Oklahoma; United States. Dept. of the Interior; United States. Federally Recognized Indian Tribe List Act.

*Synopsis: Cherokee Nation of Oklahoma brought action challenging decision of Department of the Interior (DOI) to recognize Delaware Tribe of Indians as tribal entity separate form Cherokee Nation. Following remand, 117 F.3d 1489, and transfer to the United States District Court for the Northern District of Oklahoma, the District Court, Holmes, J., 241 F.Supp.2d 1368, sustained DOI's decision. Cherokee Nation appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that: (1) DOI's decision violated Federally Recognized Indian Tribe List Act, and (2) DOI's decision was arbitrary and capricious. Reversed. Seymour, Circuit Judge, filed concurring opinion.

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft
389 F.3d 973
Docket No. 02-2323
Cert Granted (04/18/05) U.S. Supreme Court
United States Court of Appeals, Tenth Cir., November 12, 2004.

Subjects: União do Vegetal -- Rituals; United States; United States. Controlled Substances Act; Hoasca; Hallucinogenic plants.

*Synopsis: Members of religious organization brought action against United States seeking preliminary injunction to enjoin government from enforcement of Controlled Substances Act (CSA) as it pertained to importation, possession, and distribution of hoasca for religious ceremonies. The United States District Court for the District of New Mexico, James A. Parker, J., granted preliminary injunction, and government appealed. The United States Court of Appeals for the Tenth Circuit, 342 F.3d 1170, affirmed.

*Holding: On en banc review, the Court of Appeals held that a movant seeking a preliminary injunction that falls into one of the categories of historically disfavored preliminary injunctions must satisfy a heightened burden.
Affirmed.

Cabazon Band of Mission Indians v. Smith
388 F.3d 691
Docket No. 02-56943
United States Court of Appeals, Ninth Cir., Nov. 3, 2004.

Subjects: Indian reservation police -- Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California; Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California. Public Safety Department; Riverside County (Calif.); Roads -- Off Indian reservations; California. Vehicle Code; Police vehicles -- Lighting; Sovereignty -- Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California.

*Synopsis: Indian tribe sued county sheriff, seeking determination that tribal public safety department vehicles equipped with light bars could traverse state highways while passing from one segment of reservation to another. On remand, 271 F.3d 910, the United States District Court for the Central District of California, Christina A. Snyder, 2002 WL 32065673, held for county, and tribe appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that application of California statute, prohibiting unauthorized emergency vehicles from using emergency light bars, to tribal public safety department vehicles was discriminatory, and thus preempted by federal law. Reversed.

Related News Stories: Court sides with tribe in law enforcement dispute (Indianz.com) 11/12/04.

October

Kahawaiolaa v. Norton
386 F.3d 1271
Docket No. 02-17239
United States Court of Appeals, Ninth Cir., Oct 27, 2004.

Subjects: Native Hawaiians; United States. Dept. of the Interior; Federal recognition of Indian tribes -- Native Hawaiians; Issues and challenges; Equality before the law -- Native Hawaiians.

*Synopsis: Native Hawaiians or native Hawaiian groups as defined by the Hawaiian Homes Commission Act, brought suit against the Secretary of the Department of Interior (DOI), alleging that DOI regulations excluding native Hawaiians form tribal recognition process for Indian tribes violated equal protection. The United States District Court for the District of Hawaii, Alan C. Kay, 222 F.Supp.2d 1213, granted defendant's motion to dismiss, and plaintiffs appealed.

*Holding: The Court of Appeals, Thomas, Circuit Judge, held that: (1) political question doctrine did not preclude consideration of suit; (2) rational basis standard of review was applicable to plaintiffs' equal protection challenge; and (3) regulations did not violate equal protection. Affirmed.

Prescott v. Little Six, Inc.
387 F.3d 753
Appealed to the U.S. Supreme Court
Docket No. 03-3702
United States Court of Appeals, Eighth Cir., October 21, 2004.

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; United States. Employee Retirement Income Security Act of 1974; Retirement planning; Sovereign immunity; Jurisdiction -- United States. District Court (Minnesota); District courts; Jurisdiction; Deference to tribal courts; Jurisdiction -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Synopsis: Former executive employees of Indian tribal casino brought action under Employee Retirement Income Security Act (ERISA), seeking benefits under employee benefits plan. The United States District Court for the District of Minnesota, David S. Doty, J., 284 F.Supp.2d 1224, denied casino's motion to dismiss, and casino appealed.

*Holding: The Court of Appeals, Bowman, Circuit Judge, held that district court erred in not giving proper deference to tribal court finding that plans were not authorized under tribal law. Reversed and remanded.

United States v. Wood
386 F.3d 961
Docket No. 03-5188
United States Court of Appeals, Tenth Cir., October 18, 2004.

Subjects: Trials (Burglary); Indians of North America; Burglary -- Indian Country; Sentences (Criminal procedure).

*Synopsis: Defendant, a Native American, was convicted in the United States District Court for the Northern District of Oklahoma on his plea of guilty to second degree burglary in Indian Country. Defendant appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that Sentencing Guidelines required imposition of sentence between minimum and maximum sentences state law established for the particular crime. Affirmed.

United States v. Smith
387 F.3d 826
Docket No. 03-30482
United States Court of Appeals, Ninth Cir., October 15, 2004.

Subjects: Blackfeet Tribe of the Blackfeet Indian Reservation of Montana -- Members; Witnesses; Sentences (Criminal procedure).

*Synopsis: Following a jury trial, defendant was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., of retaliating against a federal witness, and defendant appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that:
(1) law prohibiting retaliation against a federal witness was a law of nationwide applicability that could be applied to crimes committed by and against Indians in Indian country;
(2) eight-level increase for threatening to cause physical injury in order to obstruct the administration of justice was warranted; and
(3) district court's finding that it could not depart downward on the basis of aberrant behavior was clearly erroneous. Affirmed in part, reversed in part, and remanded with instructions.

United States v. March
111 Fed.Appx. 888
Docket No. 03-30094
United States Court of Appeals, Ninth Cir., October 7, 2004.

Subjects: United States. Lacey Act Amendments of 1981; Sentences (Criminal procedure); Law -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Fish and game licenses -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: Defendant was convicted in the United States District Court for the District of Idaho, Mikel H. Williams, United States Magistrate Judge, for violations of the Lacey Act. He appealed.

*Holding: The Court of Appeals held that:
(1) district court had jurisdiction over charges, alleging defendant violated provisions of Indian tribal code prohibiting presentation of false information to obtain hunting permits or tags;
(2) tribal code did not specify the form in which the information had to be communicated; and
(3) issue of defendant's sentence would be remanded to the district court for its consideration.
Affirmed; remanded for further proceedings.

September

Wyoming Sawmills Inc. v. United States Forest Service
383 F.3d 1241
Appealed to the U.S. Supreme Court
Docket No. 02-8009
United States Court of Appeals, Tenth Cir., September 20, 2004.

Subjects: Medicine Wheel National Historic Landmark (Wyo.); Wyoming Sawmills; United States. Forest Service; United States. National Forest Management Act of 1976; Historic preservation -- Planning; Freedom of religion -- United States; Standing to sue.

*Synopsis: Timber company brought suit, alleging that historic preservation plan (HPP) issued by United States Forest Service for management of Medicine Wheel National Historic Landmark violated Establishment Clause and National Forest Management Act. The United States District Court for the District of Wyoming, Alan B. Johnson, Chief Judge, 179 F.Supp.2d 1279, dismissed Establishment Clause claim for lack of standing and ruled against timber company on statutory claim. Timber company appealed.

*Holding: The Court of Appeals, Holloway, Circuit Judge, held that: (1) timber company lacked standing to pursue Establishment Clause challenge, and (2) Service did not abuse its discretion in finding that forest plan amendment by which HPP was implemented was not significant change of overall forest plan. Affirmed.

In re Brooks
383 F.3d 1036
Docket Nos. 03-5047 to 03-5050, 03-5057
United States Court of Appeals, DC Cir., September 14, 2004.

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior; Fiduciary accountability -- United States. Dept. of the Treasury; Contempt of court; Conduct of court proceedings.

*Synopsis: In action alleging that Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging Individual Indian Money (IIM) trust accounts, numerous present or former government employees who were the subject of contempt proceedings moved to disqualify presiding judge, special master, and special master-court monitor from participating in the contempt proceedings, or, in the alternative, for full discovery relating to alleged ex parte communications among the master, the monitor, other government employees, and the court. The United States District Court for the District of Columbia, Royce Lamberth, J., 237 F.Supp.2d 71, denied the motions. Eleven government employees then filed petitions for writs of mandamus, seeking recusal of judge and suppression of reports and recommendations that had been written, but not filed with the district court, by special master before he resigned.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that: (1) neither the proffered evidence of ex parte meetings between the court and its agents nor the district court's opinions denying the recusal motions showed that the judge had acquired "personal knowledge of disputed evidentiary facts" as would have entitled petitioners to their requested writs; (2) the judge's ex parte communications with his agents would not have caused a reasonable and informed observer to question the judge's impartiality; (3) petitioners failed to show a "clear and indisputable right" to discovery of the ex parte communications between the judge and his agents; (4) the ex parte communications that special master had with witnesses and third parties in the underlying trust reform litigation required his recusal from the contempt proceedings; and (5) because special master should have been recused from the contempt proceedings, any reports, recommendations, or other work product he prepared pursuant to the district court's referrals could not be submitted to the court or otherwise disseminated. Petitions denied; proposed reports and recommendations vacated.

United States ex rel. Bernard v. Casino Magic Corp
384 F.3d 510
Docket Nos. 03-3043, 03-3149
United States Court of Appeals, Eighth Circuit, Sep. 13, 2004.

Subjects: United States. Indian Gaming Regulatory Act; Indian gaming -- Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Reservation, South Dakota; Gambling on Indian reservations; Contracts; Casinos; United States; Casino Magic Corp. (Minn.); Casino Magic American Corp. (Minn.); Fees, Administrative; Costs (Law).

*Synopsis: United States and its relator brought qui tam action against casino manager under Indian Gaming Regulatory Act (IGRA), disputing the legality of contracts for a casino project. After the district court granted summary judgment for casino manager, United States and its relator appealed. The Court of Appeals, 293 F.3d 419, declared the contracts illegal and remanded for a determination of damages. Upon remand, the United States District Court for the District of South Dakota, Richard H. Battey, J., awarded damages in the amount of $350,000. Parties cross-appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that:
(1) borrowing fees arising out of management company's loans to tribe, made as part of a co-lender agreement through a bank, did not constitute management fees and thus were properly excluded from damages calculation;
(2) indirect costs, including licensing fees, legal fees, and a donation to a men's softball team, along with other unverifiable expenses did not constitute management fees;
(3) company was not entitled to offset its out-of-pocket expenses against the calculated damages; and
(4) district court's reasons for denying prejudgment interest, in damages calculation, did not rise to the level of exceptional circumstances justifying deviating from the general rule of awarding prejudgment interest.
Affirmed in part and reversed in part.

Seneca Nation of Indians v. State of N.Y.
382 F.3d 245
Docket Nos. 02-6185(L), 02-6195(XAP), 02-6197(C), 02-6213(C)
United States Court of Appeals, Second Circuit, Sep. 9, 2004.

Subjects: Seneca Nation of New York; Tonawanda Band of Seneca Indians of New York; New York (State); New York State Thruway Authority; Conveyancing; Grand Island (N.Y. : Island); Niagara River (N.Y. and Ont.); Treaties -- Ratification; United States. Trade and Intercourse Act; Land tenure; Interest (Ownership rights).

*Synopsis: Indian tribes brought suit under Trade and Intercourse Act (Nonintercourse Act), alleging the invalidity of an 1815 conveyance in which the State of New York purportedly purchased Grand Island and other islands in the Niagara River from predecessor tribe, on basis that no United States treaty commissioner was present at the negotiations and the agreement was never ratified by the United States Congress as required by the Act. The United States District Court for the Western District of New York, 206 F.Supp.2d 448, Richard Arcara, J., dismissed. Tribes appealed.

*Holding: The Court of Appeals, Parker, Circuit Judge, held that at the time of the conveyance, the islands were not tribal land protected by the Act inasmuch as they were already owned by the State. Affirmed.

Seneca Nation of Indians v. State of N.Y.
383 F.3d 45
Docket Nos. 02-6185(L), 02-6195(XAP), 02-6197(C), 02-6213(C)
United States Court of Appeals, Second Circuit, Sep. 9, 2004.

Subjects: Seneca Nation of New York; New York (State); Roads -- On Indian reservations -- Seneca Nation of New York; Servitudes -- New York (State); Parties to actions -- New York (State).

*Synopsis: Indian tribe sought to invalidate an easement which had been granted for construction of a state highway through a reservation. The United States District Court for the Western District of New York, Richard J., Arcara, J., dismissed. Tribe appealed.

*Holding: The Court of Appeals held that State of New York was a necessary and indispensable party to the action.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Kean-Argovitz Resorts
383 F.3d 512
Docket Nos. 03-1267
United States Court of Appeals, Sixth Cir., September 8, 2004.

Subjects: Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Arbitration agreements, Commercial; United States. Indian Gaming Regulatory Act; Indian gaming -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Gambling on Indian reservations -- Michigan; Contracts -- Federal supervision; National Indian Gaming Commission (U.S.); Casinos; Kean-Argovitz Resorts.

*Synopsis: Indian tribe sought declaratory and injunctive relief to restrain casino development and management company from attempting to enforce arbitration clause in development agreement after tribe had unilaterally terminated development and management agreements. Company filed counterclaim, seeking to compel tribe to submit to arbitration. The United States District Court for the Western District of Michigan, Gordon J. Quist, J., 249 F.Supp.2d 901, entered summary judgment for tribe. Company appealed.

*Holding: The Court of Appeals, Gilman, Circuit Judge, held that tribe's allegation, that development agreement was void under Indian Gaming Regulatory Act (IGRA) because agreement had not been approved by Chairman of National Indian Gaming Commission (NIGC), challenged substance of agreement, and such issue thus was subject to agreement's arbitration clause. Vacated and remanded.

Magiera v. Norton
108 Fed.Appx. 542
Docket Nos. 02-17364. D.C. No. CV-01-00467-LRH
United States Court of Appeals, Ninth Circuit, Sep. 2, 2004.

Subjects: Winnemucca Indian Colony of Nevada; Sovereign immunity -- United States; United States. Dept. of the Interior; Norton, Gale A.; Trusts and trustees -- United States; Breach of trust.

*Synopsis: Indians brought action against Secretary of the Interior in her official capacity, relating to governance of Indian colony. The United States District Court for the District of Nevada, Larry R. Hicks, J., dismissed the action, based on sovereign immunity. Indians appealed.

*Holding: The Court of Appeals held that:
(1) general jurisdictional statutes did not establish waiver of sovereign immunity;
(2) Indians had not satisfied requirements for limited waiver of sovereign immunity under Federal Tort Claims Act (FTCA); and
(3) Indians had not satisfied requirements for limited waiver of sovereign immunity under Administrative Procedure Act (APA).
Affirmed.

United States v. Medearis
380 F.3d 1049
Docket No. 03-2388
United States Court of Appeals, Eighth Circuit, Sep. 2, 2004.

Subjects: Rape -- Indian Country (U.S.); Evidence.

*Synopsis: Defendant was convicted of aggravated sexual abuse in Indian Country by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., and he appealed.

*Holding: The Court of Appeals, Hamilton, United States Circuit Judge for the Fourth Circuit Court of Appeals, sitting by designation, held that: (1) decision to exclude, based on defendant's failure to disclose it to government prior to trial in alleged violation of his reciprocal pre-trial disclosure obligations, a letter that defendant sought to introduce solely to impeach statements made by complaining witness constituted abuse of district court's discretion; (2) this error was harmless beyond reasonable doubt; and (3) finding that defendant had used force or threat of force to cause victim to engage in sexual acts was sufficiently supported by evidence, including testimony of victim, as corroborated by testimony of witness who heard victim's screams, by defendant's flight, and by results of physical examination of victim at hospital. Affirmed.

Snyder v. Navajo Nation
382 F.3d 892
Docket Nos. No. 02-16632, 03-15395
United States Court of Appeals, Ninth Cir., September 2, 2004.

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Fair Labor Standards Act of 1938; Law enforcement; Indian reservation police -- Navajo Nation, Arizona, New Mexico & Utah; Overtime; United States. Indian Self-Determination and Education Assistance Act.

*Synopsis: Indian tribe's law enforcement officers sued tribe and United States for violations of Fair Labor Standards Act (FLSA). The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims, and officers appealed.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that:
(1) FLSA's overtime pay provision did not apply to law enforcement officers employed by Indian tribe, and
(2) provision of Indian Self-Determination and Education Assistance Act (ISDEAA), deeming tribal members employed under self-determination contracts to be federal employees for purposes of tort liability, did not make them federal employees for purposes of FLSA.
Affirmed.

United States v. Madearis
380 F.3d 1049
Docket Nos. No. 03-2388
United States Court of Appeals, Eighth Cir., September 2, 2004.

Subjects: Sex crimes -- Indian Country; Family violence; Evidence; Testimony; Witnesses.

*Synopsis: Defendant was convicted of aggravated sexual abuse in Indian Country by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., and he appealed.

*Holding: The Court of Appeals, Hamilton, United States Circuit Judge for the Fourth Circuit Court of Appeals, sitting by designation, held that: (1) decision to exclude, based on defendant's failure to disclose it to government prior to trial in alleged violation of his reciprocal pre-trial disclosure obligations, a letter that defendant sought to introduce solely to impeach statements made by complaining witness constituted abuse of district court's discretion; (2) this error was harmless beyond reasonable doubt; and (3) finding that defendant had used force or threat of force to cause victim to engage in sexual acts was sufficiently supported by evidence, including testimony of victim, as corroborated by testimony of witness who heard victim's screams, by defendant's flight, and by results of physical examination of victim at hospital. Affirmed.

Cholla Ready Mix v. Mendez
382 F.3d 969
Docket No. 03-15423
United States Court of Appeals, Ninth Cir., Sep.1 , 2004.

Subjects: Cholla Ready Mix, Inc. (Ariz.); Landowners -- Arizona; United States. Dept. of Transportation; Roads -- Design and construction -- Arizona; Limitation of actions -- Arizona; Freedom of religion -- United States; United States. Constitution. 1st Amendment; Mining rights; Civil rights -- United States; Arizona. Constitution; Race discrimination; Right of property; Sacred sites -- Defined; Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Zuni Tribe of the Zuni Reservation, New Mexico.

*Synopsis: Miner of aggregate materials used primarily for road construction brought action against various state government officials, alleging that policy of state department of transportation against using materials from butte in state construction projects violated its rights under the Establishment Clause, federal civil rights laws, and the Arizona Constitution. The United States District Court for the District of Arizona, Frederick J. Martone, J., dismissed complaint, and plaintiff appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that:
(1) Arizona's statute of limitations for personal injury claims, rather than four-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990, applied to plaintiff's civil rights claims;
(2) policy against using materials from butte in state construction projects did not violate the Establishment Clause; and
(3) plaintiff failed to state a claim for racial discrimination under § 1981 and § 2000d. Affirmed.

August

Boozer v. Wilder
381 F.3d 931
Docket Nos. 03-35722
United States Court of Appeals, Ninth Cir., August 27, 2004.

Subjects: Jurisdiction -- Colville Reservation, Confederated Tribes of the, Washington; Tribal members -- Colville Reservation, Confederated Tribes of the, Washington; Parent and child (Law); Trials (Custody of children) -- Washington; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: In child custody dispute, father filed complaint requesting that an Indian tribal court or his daughter's grandparents be ordered to return the child to his custody. The United States District Court for the Eastern District of Washington, Alan A. McDonald, J., dismissed. Father appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that father was required to exhaust his tribal court remedies.

Blackhawk v. Pennsylvania
381 F.3d 202
No. 02-3947, 02-4158
United States Court of Appeals, Third Cir., August 20, 2004.

Subjects: Animal owners; Indians of North America; Black bear; Pennsylvania Game Commission; United States. Constitution. 1st Amendment; Freedom of religion; Licenses.

*Synopsis: Native American owner of black bears brought § 1983 action against Pennsylvania Game Commission and individual Commission officials, alleging that they violated his First Amendment right to free exercise of religion by refusing to grant him exemption to permit fee requirement for keeping wildlife in captivity. The United States District Court for the Middle District of Pennsylvania, Thomas I. Vanaskie, J., 225 F.Supp.2d 465, enjoined officials from charging owner a permit fee, but declined to hold individual defendants liable. Owner and officials appealed.

*Holding: The Court of Appeals, Alito, Circuit Judge, held that:
(1) statute allowing waiver of fee for permit to keep wildlife in captivity was not generally applicable, and thus was subject to strict scrutiny;
(2) statute did not withstand strict scrutiny; and
(3) officials were qualifiedly immune from liability. Affirmed.

Coeur D'Alene Tribe of Idaho v. Hammond
384 F.3d 674
Docket Nos. Nos. 02-35965, 02-35998, 02-36020
United States Court of Appeals, Ninth Cir., August 19, 2004.

Subjects: Motor fuels -- Taxation -- Idaho; Nez Perce Tribe of Idaho; Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Idaho. State Tax Commission; Gasoline; Service stations -- On Indian reservations -- Idaho; Distributors (Commerce) -- Idaho; Non-members of a tribe; Sovereign immunity -- Indian Country (Idaho); United States -- Hayden-Cartwright Act.

*Synopsis: Indian tribes brought actions to enjoin State of Idaho from collecting motor fuel tax on gasoline delivered by non-tribal distributors to tribally-owned gas stations for sale on Indian reservations. Actions were consolidated. The United States District Court for the District of Idaho, David O. Carter, J., entered summary judgment for tribes. State appealed, and tribes cross-appealed, asserting that State was barred from re-litigating applicability of Hayden-Cartwright Act.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that:
(1) Court of Appeals would not automatically defer to Idaho legislature's statement that legal incidence of tax lay on non-tribal distributors;
(2) legal incidence of tax fell on Indian tribes;
(3) Idaho was not collaterally estopped from re-litigating whether Hayden-Cartwright Act abrogated tribal immunity; and
(4) Hayden-Cartwright Act did not indicate clear congressional intent to abrogate tribes' sovereign immunity from motor fuel taxes. Affirmed. Kleinfeld, Circuit Judge, filed dissenting opinion

Kaw Nation ex rel.McCauleyv. Lujan
378 F.3d 1139
Docket Nos. 03-6213
United States Court of Appeals, Tenth Cir., August 16, 2004.

Subjects: Kaw Nation, Oklahoma; Judges -- Selection and appointment -- Kaw Nation, Oklahoma; Kaw Nation, Oklahoma -- Officials and employees -- Selection and appointment; United States. Indian Civil Rights Act; Jurisdiction -- United States.

*Synopsis: Members or former members of Indian tribe's Executive Council brought action for declaratory and injunctive relief from the allegedly improper appointment of three tribal judges. One judge and tribe's chairman moved to dismiss. Following dismissal, plaintiffs moved to amend judgment and for relief from judgment. The United States District Court for the Western District of Oklahoma dismissed. Plaintiffs appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that:
(1) declaratory and injunctive relief, and monetary damages, were not available under Indian Civil Rights Act (ICRA);
(2) district court lacked subject matter jurisdiction pursuant to supplemental jurisdiction statute; and
(3) district court lacked original jurisdiction over claims. Affirmed.

Henderson v. Terhune
379 F.3d 709
Docket Nos. 02-17224
United States Court of Appeals, Ninth Cir., August 12, 2004.

Subjects: Indian prisoners -- California; California. Dept. of Corrections; Freedom of religion; Long hair; United States. American Indian Religious Freedom Act; United States. Constitution. 1st Amendment.

*Synopsis: Native American state prison inmate brought §1983 action against corrections officials, alleging that regulation governing inmates' hair length infringed inmate's rights under First Amendment's Free Exercise Clause. The United States District Court for the Eastern District of California, Burrell, J., granted summary judgment for corrections officials, and inmate appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) District Court did not clearly err by finding that several proffered justifications for enforcing regulation constituted legitimate penological interests, and
(2) hair-length regulation was reasonably related to several of those interests, including identification of inmates and ease of control of contraband, and thus did not unduly infringe inmate's free exercise rights. Affirmed.

Prairie Band of Potawatomi Nation v. Richards
379 F.3d 979
Docket No. 03-3218
United States Court of Appeals, Tenth Cir., August 11, 2004.

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; Exclusive and concurrent legislative powers -- United States; Sovereignty -- Prairie Band of Potawatomi Indians, Kansas; Kansas. Dept. of Revenue.

*Synopsis: Indian tribe brought suit for declaratory and injunctive relief, challenging state's imposition of tax on motor fuel supplied to gas station operated by tribe on reservation property by non-Indian distributor. The United States District Court for the District of Kansas, Julie A. Robinson, J., 241 F.Supp.2d 1295, granted summary judgment dismissing action. Tribe appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that tax was incompatible with, and outweighed by, strong federal and tribal interests against tax, and thus was preempted by federal law. Reversed.

Smith v. Salish Kootenai College
378 F.3d 1048
Docket No. 03-35306
United States Court of Appeals, Ninth Cir., August 6, 2004.
Briefs

Subjects: Traffic fatalities -- On Indian reservations -- Umatilla Reservation, Confederated Tribes of the, Oregon; Non-members of a tribe; Tribal members -- Umatilla Reservation, Confederated Tribes of the, Oregon; Jurisdiction -- Umatilla Reservation, Confederated Tribes of the, Oregon; Salish Kootenai College; Evidence (Law).

*Synopsis: In a dispute, arising out of a traffic accident on a public highway on an Indian reservation, in which plaintiff, a non-member of the tribe who was a student at a college on the reservation, brought action alleging negligence and spoliation of evidence, a jury in the tribal court found for the college. Student brought action in federal court, alleging that the tribal court lacked jurisdiction over his claim. The United States District Court for the District of Montana, Leif B. Erickson, United States Magistrate Judge, dismissed. Student appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that tribal court lacked jurisdiction. Reversed and remanded.

Neighbors for Rational Development, Inc. v. Norton
379 F.3d 956
Docket No. 02-2085
United States Court of Appeals, Tenth Cir., August 4, 2004.

Subjects: Pueblos -- New Mexico; Trust lands -- Albuquerque (N.M.); Neighbors for Rational Development (N.M.); United States. Quiet Title Act; United States. Dept. of the Interior; United States. National Environmental Policy Act of 1969; Real estate development; Land use -- Albuquerque (N.M.); Injunctions.

*Synopsis: Owners of property adjoining tract of Indian land, which Secretary of the Interior had agreed to hold in trust for 19 Indian Pueblos, brought suit challenging acquisition, seeking declaratory judgment that acquisition was null and void due to Secretary's failure to comply with applicable laws, and to permanently enjoin Secretary from proceeding with or authorizing development of property until Secretary complied with all applicable federal laws. The United States District Court for the District of New Mexico, upheld acquisition. Property owners appealed.

*Holding: The Court of Appeals, Brorby, Circuit Judge, held that:
(1) action was barred by Quiet Title Act, which excludes Indian lands from Act's waiver of sovereign immunity, to extent it sought to nullify trust acquisition, and
(2) request for permanent injunction was moot.
Dismissed and remanded.

Skull Valley Band Of Goshute Indians v. Nielson
376 F.3d 1223
Docket No. 02-4149
United States Court of Appeals, Tenth Cir., August 4, 2004.

Subjects: Skull Valley Band of Goshute Indians of Utah; Nuclear fuels -- Storage -- Skull Valley Band of Goshute Indians of Utah; Law -- Utah; Administrative law -- Utah; United States. Nuclear Waste Policy Act of 1982; Private Fuel Storage.

*Synopsis: Indian tribe and private company planning to operate storage facility for spent nuclear fuel (SNF) on reservation lands brought action against state officials for declaratory and injunctive relief from operation of state laws restricting storage activities. The United States District Court for the District of Utah, Tena Campbell, J., 215 F.Supp.2d 1232, granted summary judgment in favor of plaintiffs. Defendants appealed.

*Holding:The Court of Appeals, Henry, Circuit Judge, held that:
(1) plaintiffs had standing to bring action;
(2) action was ripe for judicial review;
(3) statutes requiring counties to facilitate regulation of SNF facilities were preempted by federal law;
(4) statutes requiring compensation for unfunded potential liabilities of facilities were preempted;
(5) statute abolishing limited liability for stockholders in companies operating facilities was preempted; and
(6) statutes affecting roads in area of proposed facility were preempted. Affirmed.

July

Westlands Water District v U.S. Dept of Interior
376 F.3d 853
Docket Nos. 03-15194, 03-15289, 03-15291, 03-15737
United States Court of Appeals, Ninth Cir., July 13, 2004.

Subjects: Wetlands Water District (Calif.); United States. Dept. of the Interior; Water; Wetland restoration; Fisheries -- Environmental aspects; United States. National Environmental Policy Act of 1969; Environmental impact statements; U.S. Fish and Wildlife Service; United States. National Marine Fisheries Service; Hoopa Valley Tribe, California; Yurok Tribe of the Hoopa Valley Reservation, California; Sacramento Municipal Utility District (Calif.); Northern California Power Agency; United States. Dept. of Commerce; United States. Bureau of Reclamation.

*Synopsis: Water and utility districts brought action against Department of Interior, challenging administration of federal water project and implementation of fisheries restoration legislation. Native American tribes intervened as defendants. Parties cross-moved for summary judgment. The United States District Court for the Eastern District of California, Oliver W. Wanger, J., 275 F.Supp.2d 1157, granted motions in part and denied them in part. Appeal was taken.

*Holding: The Court of Appeals, Goodwin, Circuit Judge, held that: (1) under National Environmental Policy Act (NEPA) and implementing regulations, statement of purpose and need was not unreasonably narrow in geographically limiting scope of environmental impact statement (EIS) or in excluding consideration of nonflow measures; (2) range of alternatives considered in EIS was reasonable;
(3) supplemental environmental impact statement (SEIS) was not required to discuss National Marine Fisheries Service's (NMFS's) BioOp (Biological Opinion) requiring mitigation of impacts to Sacramento River temperatures; (4) California energy crisis did not pose "significant new circumstance" that compelled issuance of SEIS; (5) Fish and Wildlife Service (FWS) BioOp RPM (reasonable and prudent measures) involving mitigation of X2 movement was major change and therefore invalid under Endangered Species Act (ESA) regulations; and
(6) NMFS RPM directing that recommended flow regime by implemented as soon as possible was properly set aside.Affirmed in part, reversed in part, and remanded.

June

Eyak Native Village v. Daley
375 F.3d 1218
Docket No. 02-36155
United States Court of Appeals, Ninth Cir., June 22, 2004.

Subjects: Alaska Native villages; Aboriginal rights -- Alaska Native villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion)The district court decided the federal paramountcy question and thereby avoided determining the existence or extent of the plaintiff villages' claimed aboriginal rights. As an appellate body, we would be greatly assisted by an initial determination by the district court of what aboriginal rights, if any, the villages have. We therefore VACATE the district court's order granting summary judgment for defendants. We REMAND with instructions that the district court decide what aboriginal rights to fish beyond the three-mile limit, if any, the plaintiffs have. For purposes of this limited remand, the district court should assume that the villages' aboriginal rights, if any, have not been abrogated by the federal paramountcy doctrine or other federal law.
The en banc panel retains jurisdiction over all future proceedings in this matter.

*Holding: not available

Quarles v. U.S ex rel. Bureau of Indian Affairs
372 F.3d 1169
Docket No. 03-5035
United States Court of Appeals, Tenth Cir., June 16, 2004.

Subjects: Water leakage; Factory and trade waste; Oil and gas production; Landowners -- Osage Tribe of Oklahoma; Exhaustion of administrative remedies; United States; United States. Osage Act (Indians); Environmental Conservation Foundation; Quarles, Don; United States. Bureau of Indian Affairs; Indian allotments.

*Synopsis: Owner of land on Osage Indian reservation sued oil companies and federal government to recover for damage caused by waste water leaks from oil production. The United States District Court for the Northern District of Oklahoma dismissed for failure to exhaust administrative remedies, and owner appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that arbitration requirement in Osage Allotment Act applied only to claims "arising under" Act. Reversed and remanded.

Peabody Coal Company v. Navajo Nation
373 F.3d 945
Docket No. 03-15272
United States Court of Appeals, Ninth Cir., June 16, 2004.

Subjects: Coal leases; Navajo Nation, Arizona, New Mexico & Utah; United States. Indian Mineral Leasing Act of 1938; United States. Racketeer Influenced and Corrupt Organizations Act; Trusts and trustees –- Accounting; Jurisdiction -- United States; Federal question; Peabody Coal Company; Coal mines and mining; Coal rights; Arbitration (Administrative law).

*Synopsis: Lessee of coal mining rights brought action against Indian tribe, seeking enforcement of arbitration settlement agreement setting royalty rates. The United States District Court for the District of Arizona, Robert C. Broomfield, J., dismissed for lack of subject matter jurisdiction, and company appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that court lack federal question jurisdiction. Affirmed.

Snyder v. Navajo Nation
371 F.3d 658
Docket Nos. 02-16632, 03-15395
United States Court of Appeals, Ninth Cir., June 9, 2004.

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Fair Labor Standards Act of 1938; Law enforcement; Indian reservation police -- Navajo Nation, Arizona, New Mexico & Utah; Overtime; United States. Indian Self-Determination and Education Assistance Act.

*Synopsis: Indian tribe's law enforcement officers sued tribe and United States for violations of Fair Labor Standards Act (FLSA). The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims, and officers appealed.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that: (1) FLSA's overtime pay provision did not apply to law enforcement officers employed by Indian tribe, and (2) provision of Indian Self-Determination and Education Assistance Act (ISDEAA), deeming tribal members employed under self-determination contracts to be federal employees for purposes of tort liability, did not make them federal employees for purposes of FLSA. Affirmed.

Related News Stories: Court ruling adds to debate over tribal-labor disputes (Indianz.com) 6/14.

Confederated Tribes of Warm Springs Reservation of Oregon v. United States
101 Fed.Appx. 818
Docket Nos. 02-5167
United States Court of Appeals, Federal Cir., June 8, 2004.

Subjects: Timber; Sales; Vendors and purchasers; United States; Warm Springs Reservation, Confederated Tribes of the, Oregon.

*Synopsis: Indian tribes sued United States, alleging that its mismanagement of tribes' timber resources constituted breach of fiduciary duty. Following trial, the United States Court of Federal Claims, Robert H. Hodges, Jr., J., found that fiduciary breach had occurred but that tribes were not entitled to damages. Tribes appealed. The Court of Appeals, Bryson, Circuit Judge, 248 F.3d 1365, vacated and remanded. On remand, the Court of Federal Claims assessed damages owed by government to be $13,805,607, and government appealed.

*Holding: On appeal after remand, the Court of Appeals, Prost, J., held that:
(1) factual determination regarding amount of timber that government improperly sold would be upheld; (2) Court of Federal Claims did not clearly err by relying on tribes' estimates for missing timber; and (3) Court of Federal Claims properly applied log value of logs taken in trespass as measure of timber trespass damages, and, pursuant to Oregon law, awarded double damages to all trees taken in trespass. Affirmed.

Anderson V. Evans
371 F.3d 475
Docket No. 02-35761.
United States Court of Appeals, Ninth Cir., June 7, 2004.

Subjects: Whaling rights -- Makah Indian Tribe of the Makah Indian Reservation, Washington; Animal rights activists; Animal welfare; Whaling -- Law and legislation; United States. National Environmental Policy Act of 1969; United States. Marine Mammal Protection Act of 1972; Environmental impact analysis; Whaling -- Environmental aspects -- Environmental impact statements.

*Synopsis: Animal advocacy groups challenged federal 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 for government. Advocacy groups appealed.

*Holding: The Court of Appeals, Berzon and Gould, Circuit Judges, 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.

Crue V. Aiken
370 F.3d 668
Docket No. 02-3627, 03-2281, 03-2951
United States Court of Appeals, Seventh Circuit, June 1, 2004.

Subjects: Freedom of speech; United States. Constitution. 1st Amendment; Indians as mascots -- Illinois; College athletes -- Illinois; University of Illinois at Urbana-Champaign; Universities and colleges -- Faculty -- Illinois; College students -- Illinois.

*Synopsis: University students and faculty members, who wished to contact prospective student athletes to make them aware that university and its athletic program utilized mascot that they believed was degrading to Native Americans, brought civil rights action against chancellor of university, seeking declaratory judgment that chancellor's preclearance directive banning all speech directed toward prospective student athletes without prior permission violated their First Amendment rights. The United States District Court for the Central District of Illinois, Michael M. Mihm, J., granted partial summary judgment for plaintiffs, 204 F.Supp.2d 1130. Defendants appealed.

*Holding: The Court of Appeals, Evans, Circuit Judge, held that: (1) action was not mooted by chancellor's resignation and retraction of preclearance directive; (2) free speech rights of university students and faculty were infringed by preclearance directive; (3) chancellor was not entitled to qualified immunity from liability for issuing preclearance directive; and (4) district court did not abuse its discretion by allowing petition for award of attorney fees to be filed one day late due to excusable neglect. Affirmed. Manion, Circuit Judge, filed a dissenting opinion.

United States V. Black
369 F.3d 1171
Docket No. 03-4174
United States Court of Appeals, Tenth Circuit, June 1, 2004.

Subjects: Trials (Murder); Murder -- On Indian reservations; Assault and battery -- On Indian reservations; Examination of witnesses; Navajo language; Jurors.

*Synopsis: Following jury trial before the United States District Court for the District of Utah, defendant was convicted of two counts of first-degree murder on Indian land, assault with a dangerous weapon on Indian land, and one count of assault resulting in serious bodily injury on Indian land. Defendant appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that: (1) refusal to appoint interpreter to allow witness to testify in Navajo was not abuse of discretion; (2) refusal to dismiss juror who fainted was not abuse of discretion; and (3) not declaring mistrial after juror fainted did not deprive defendant of fair trial under Sixth Amendment. Affirmed.

May

Wade V. Blue
369 F.3d 407
Docket No. 03-2245
United States Court of Appeals, Fourth Circuit, May 26, 2004.

Subjects: Jurisdiction -- South Carolina; Civil actions arising in Indian Country -- Catawba Indian Tribe of South Carolina; Tribal courts; Catawba Indian Tribe of South Carolina.

*Synopsis: Individual members of Indian tribe brought action alleging that tribal leadership was acting improperly in its control over the tribe's assets and affairs. The United States District Court for the District of South Carolina, Julian Abele Cook, Jr., Senior District Judge sitting by designation, denied defendants' motion to dismiss. Defendants appealed.

*Holding: The Court of Appeals, Wilkinson, Circuit Judge, held that absent establishment of a tribal court, all civil actions involving internal matters of Indian tribe were required to be brought in South Carolina courts. Reversed and remanded with instructions.

State of Connecticut V. United States Department of the Interior
99 Fed.Appx. 313
Docket No. 03-6142
United States Court of Appeals, Second Circuit, May 24, 2004

Subjects: Connecticut; United States. Dept. of the Interior; North Stonington (Conn. : Town); Ledyard (Conn. : Town); Preston (Conn. : Town); Civil procedure; Federal recognition of Indian tribes -- Paucatuck Eastern Pequot Indians of Connecticut; Petitions.

*Synopsis: State and towns filed complaint challenging petitions by Indian tribes for federal acknowledgment by Bureau of Indian Affairs (BIA). The United States District Court for the District of Connecticut, Alfred V. Covello, J., dismissed complaint, and plaintiffs appealed.

(from the order) Plaintiffs-appellants the State of Connecticut and the towns of North Stonington, Ledyard, and Preston appeal from an April 23, 2003, order of the district court granting the defendants' motion to dismiss the plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The plaintiffs' complaint related to petitions by the Paucautuck Eastern Pequot Tribe and the Eastern Pequot Indians of Connecticut for federal acknowledgment pursuant to Bureau of Indian Affairs ("BIA") regulations contained in 25 C.F.R. Part 83.

*Holding: The Court of Appeals held that plaintiffs' claims were not ripe for judicial review.
Affirmed.

Grand Traverse Band of Ottawa and Chippewa Indians V. State of Michigan
369 F.3d 960
Docket No. 02-1679
United States Court of Appeals, Sixth Circuit, May 24, 2004

Subjects: Indian gaming; Trust lands -- Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan; United States. Indian Gaming Regulatory Act; Restored Indian reservations -- Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan; Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan.

*Synopsis: Indian band sought declaratory judgment as to legality of gambling operation. The United States District Court for the Western District of Michigan, Douglas W. Hillman, Senior District Judge, 198 F.Supp.2d 920, entered judgment for plaintiff. State appealed.

*Holding: The Court of Appeals, Clay, Circuit Judge, held that indian band was a restored tribe, for purposes of Indian Gaming Regulatory Act. Affirmed.

United States V. Harlan
368 F.3d 870
Docket No. 03-3817
United States Court of Appeals, Eighth Circuit, May 14, 2004

Subjects: Assault and battery -- On Indian reservations -- Omaha Tribe of Nebraska; Weapons; Recidivism; Sentences (Criminal procedure); Evidence.

*Synopsis: Defendant was convicted, by a jury in the United States District Court for the District of Nebraska, Joseph F. Bataillon, J., of assault with a dangerous weapon and assault resulting in serious bodily injury on an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that: (1) evidence was sufficient to support verdict; (2) sentencing court acted within its sound discretion by imposing upward departure on basis of defendant's prior convictions; and (3) sentencing court permissibly relied on defendant's prior manslaughter conviction as basis for an upward departure. Affirmed.

United States of America V. Archambault
97 Fed.Appx. 59
Docket No. 02-2411
United States Court of Appeals, Eighth Circuit, May 12, 2004.

Subjects: Non-members of a tribe; Indians of North America; Double jeopardy -- United States; Tribal Courts; Courts -- United States; Subpoena; U.S. v. Lara.

*Synopsis: James Archambault appeals the district court's denial of his motion to dismiss the indictment against him, contending nonmember Indians cannot be tried in both tribal and federal court for the same offense conduct without violating the Double Jeopardy Clause. Archambault also appeals the district court's order quashing his subpoena of a tribal treasurer, who Archambault posits would present evidence of the financial relationship between the tribe and the federal government, in support of his claim the tribe's authority to prosecute nonmember Indians was delegated rather than inherent.

*Holding: The court concludes both of Archambault's contentions are controlled and precluded by the Supreme Court's recent decision in United States v. Lara, 124 S.Ct. 1628, 1639 (2004) (holding tribes have inherent, rather than delegated, power to prosecute nonmember Indians and thus prosecutions brought by a tribe and the federal government for same offense conduct are brought by different sovereigns and do not violate the Double Jeopardy Clause), the court affirms the district court.

United States V. Doe
366 F.3d 1069
Docket No. 02-10170.
United States Court of Appeals, Ninth Cir., May 11, 2004.

Subjects: Indian children; Juvenile delinquents; Rape -- On Indian reservations; Teachers -- On Indian reservations; United States. Juvenile Delinquency Act; Records.

*Synopsis: Juvenile Indian pleaded guilty in the United States District Court for the District of Arizona, Raner C. Collins, J., to charges of juvenile delinquency and several offenses related to his alleged sexual assault on a teacher on an Indian reservation. Juvenile appealed. A panel of the Court of Appeals, 324 F.3d 1057, reversed and remanded.

*Holding: On rehearing en banc, the Court of Appeals, Canby, Senior Circuit Judge, held that: (1) speedy trial clock of the Juvenile Delinquency Act began to run from the date upon which federal detention was begun on the charges of delinquency for which the alleged delinquent was in custody pending trial; overruling United States v. Andy , 549 F.2d 1281; (2) juvenile record certification requirements were not jurisdictional, but rather went to the conduct of the proceeding; overruling United States v. Juvenile Male, 336 F.3d 1107, and United States v. Doe, 13 F.3d 302; and (3) district court's error, if any, in failing to obtain formal certification from tribal juvenile court record did not amount to plain error requiring reversal. Affirmed.

April

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin V. United States
367 F.3d 650
Docket No. 03-2323
United States Court of Appeals, Seventh Circuit, April 29, 2004.

Subjects: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles, Reservation of Wisconsin; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Sokaogon Chippewa Community of the Mole Lake Band of Chippewa Indians, Wisconsin; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Law and legislation; Delegation of powers -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Breach of trust -- United States; Equality before the law -- United States; United States. Constitution. 5th Amendment; United States. Constitution. 10th Amendment.

*Synopsis: Three Indian tribes brought action challenging constitutionality of Indian Gaming Regulatory Act's (IGRA's) gubernatorial concurrence requirement for gaming on newly-acquired lands. The United States District Court for the Western District of Wisconsin, 259 F.Supp.2d 783, Barbara B. Crabb, Chief Judge, granted judgment on pleadings for government, and tribes appealed.

*Holding: The Court of Appeals, Flaum, Chief Judge, held that:
(1) requirement did not violate separation of powers or non-delegation doctrines;
(2) requirement did not violate Appointments Clause;
(3) requirement did not violate Tenth Amendment; and
(4) requirement did not violate federal government's trust responsibility to Indians. Affirmed.

Related News Stories: Court Upholds Off-reservation Gaming Provision in IGRA (Indianz.com) 04/30

United States V. J.D. Bell
367 F.3d 452
Docket Nos. 03-60253, 03-60254.
United States Court of Appeals, Fifth Circuit, April 20, 2004.

Subjects: Rape -- On Indian reservations; Tribal members -- Mississippi Band of Choctaw Indians, Mississippi; Criminal actions arising in Indian Country (Mississippi).

*Synopsis: Two defendants were convicted in separate trials, in the United States District Court for the Northern District of Mississippi, Glen H. Davidson, Chief Judge, of aggravated sexual abuse on Indian reservation. Their appeals were consolidated.

*Holding: The Court of Appeals, DeMoss, Circuit Judge, held that:(1) first defendant's confession was voluntary; (2) trial court did not abuse its discretion in allowing sister of deaf mute victim to interpret his trial testimony;(3) erroneous admission of unavailable accomplice's inculpatory statements in second defendant's trial was harmless; (4) sentencing enhancement for inflicting serious bodily injury was warranted; and (5) sentencing enhancement for abuse of vulnerable victim was warranted. Affirmed.

Chippewa Trading Co. V. Cox
365 F.3d 538
Docket No. 03-1445
United States Court of Appeals, Sixth Circuit, April 19, 2004.

Subjects: Remedies (Law); Indian business enterprises; Indian business enterprises -- Keweenaw Bay Indian Community of L'Anse and Ontonagon Bands of Chippewa Indians of the L'Anse Reservation, Michigan; Chippewa Trading Co. (Mich.); Michigan. Tobacco Products Tax Act.

*Synopsis: Indian corporation brought § 1983 action, challenging constitutionality of Michigan's Tobacco Products Tax Act (TPTA). The United States District Court for the Western District of Michigan, David W. McKeague, J., dismissed, and corporation appealed.

*Holding: The Court of Appeals, Boggs, Chief Judge, held that corporation had adequate state court remedy by which to pursue its federal constitutional challenges, and thus federal abstention was warranted. Affirmed.

United States V. Leon
365 F.3d 750
Docket No. 03-30129
United States Court of Appeals, Ninth Circuit, April 16, 2004

Subjects: Sentences (Criminal procedure); Indian children; Juvenile delinquents; Crime and age.

*Synopsis: Juvenile Indian was adjudicated delinquent by the United States District Court for the District of Montana, Sam E. Haddon, J., and he appealed sentence.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that juvenile was properly sentenced based on his age at time of sentencing. Affirmed.

Shoshone Tribe of the Wind River Reservation v. United States
364 F.3d 1339
Docket Nos. 03-5036, 03-5037
United States Court of Appeals, Federal Cir., April 7, 2004.

Subjects: Tribal trust funds -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior; Gravel; Sand; Sovereign immunity -- United States; Damages.

*Synopsis: Indian tribes brought action against the United States, alleging breach of trust in mismanaging the tribes' sand and gravel resources up to the point of collection and with respect to its handling of tribal funds post-collection. The Court of Federal Claims, Emily C. Hewitt, J., 51 Fed.Cl. 60, denied Government's motion to dismiss. Government appealed and tribes cross-appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that:(1) statute relating to tribes' remedies for mismanagement of trust funds expressly waived Government's sovereign immunity and deferred accrual of tribes' action; (2) allegation that Government mismanaged tribes' sand and gravel assets by failing to obtain the best possible market rates for the contracts failed to state a claim; but (3) allegation that Government mismanaged tribes' sand and gravel assets by failing to manage and timely collect proceeds from approved mining contracts sufficiently stated a claim; and (4) tribes were entitled to interest as part of their damages. Affirmed in part, reversed in part, and remanded.
Rader, Circuit Judge, filed opinion dissenting in part.

Eyak Native Village V. Daley
364 F.3d 1057
Docket Nos. CV-98-00365-HRH
United States Court of Appeals, Ninth Cir., April 7, 2004.

Subjects: Alaska Native Villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3.

*Holding: not available

Bonnichsen V. United States
367 F.3d 864
Docket Nos. 02-35994, 02-35996
United States Court of Appeals, Ninth Cir., April 19, 2004.

Subjects: Kennewick Man; Human remains (Archaeology); United States. Native American Graves Protection and Repatriation Act; Native Americans -- Defined; Petitions.

*Synopsis: Scientists sought judicial review of a final decision of the Department of the Interior (DOT) that awarded approximately 9,000 years old human remains, designated as Kennewick Man, to a coalition of Indian tribes, pursuant to Native American Graves Protection and Repatriation Act (NAGPRA), and denied scientific study of those remains. The United States District Court for the District of Oregon, 217 F.Supp.2d 1116, John Jelderks, United States Magistrate Judge, held for scientists. DOT and tribes appealed. The Court of Appeals affirmed, and DOT and tribes moved for rehearing and for rehearing en banc.

*Holding: Amending and superseding prior opinion, 357 F.3d 962, the Court of Appeals, Gould, Circuit Judge, held that:(1) scientists had standing to bring action; (2) human remains must bear some relationship to presently existing tribe, people, or culture to be "Native American" within meaning of NAGPRA; and (3) substantial evidence did not support DOT's decision that remains were Native American within meaning of NAGPRA. Petitions denied.


Steffler V. Cow Creek Band of Umpqua Tribe of Indians
94 Fed.Appx. 659
Docket Nos. 03-35138
United States Court of Appeals, Ninth Cir., April 16, 2004.

Subjects: Cow Creek Band of Umpqua Indians of Oregon; Jurisdiction -- Cow Creek Band of Umpqua Indians of Oregon; Detention of persons -- Oregon; Courts -- Oregon; Criminal law -- Oregon.

*Synopsis: (from the opinion) Steffler contends that the district court erred by dismissing his petition for lack of jurisdiction because the Cow Creek Band Board of Directors unlawfully caused him to be subjected to Oregon state criminal proceedings. We are not persuaded.

*Holding: not available

Eyak Native Village V. Daley
364 F.3d 1057
Docket Nos. CV-98-00365-HRH
United States Court of Appeals, Ninth Cir., April 7, 2004.

Subjects: Alaska Native Villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3.

*Holding: not available

Shoshone Indian Tribe of The Wind River Reservation V. United States
364 F.3d 1339
Docket Nos. 03-5036, 03-5037.
United States Court of Appeals, Federal Circuit, April 7, 2004.

Subjects: United States; Shoshone Tribe of the Wind River Reservation, Wyoming; Arapahoe Tribe of the Wind River Reservation, Wyoming; Sand and gravel plants -- Wind River Indian Reservation (Wyo.); Tribal trust funds; Fiduciary accountability -- United States; Trusts and trustees -- Accounting -- United States.

*Synopsis: Indian tribes brought action against the United States, alleging breach of trust in mismanaging the tribes' sand and gravel resources up to the point of collection and with respect to its handling of tribal funds post- collection. The Court of Federal Claims, Emily C. Hewitt, J., 51 Fed.Cl. 60, denied Government's motion to dismiss. Government appealed and tribes cross- appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that: (1) statute relating to tribes' remedies for mismanagement of trust funds expressly waived Government's sovereign immunity and deferred accrual of tribes' action;(2) allegation that Government mismanaged tribes' sand and gravel assets by failing to obtain the best possible market rates for the contracts failed to state a claim; but (3) allegation that Government mismanaged tribes' sand and gravel assets by failing to manage and timely collect proceeds from approved mining contracts sufficiently stated a claim; and (4) tribes were entitled to interest as part of their damages. Affirmed in part, reversed in part, and remanded.

United States V. Blaine County, Montana
363 F.3d 897
Docket No. 02-35691.
United States Court of Appeals, Ninth Circuit, April 7, 2004.

Subjects: Voting -- Blaine County (Mont.); Blaine County (Mont.); United States; Indians of North America -- Suffrage -- Montana; United States. Voting Rights Act of 1965; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment.

*Synopsis: United States challenged county's at-large voting system for electing members to county commission as violative of Native American residents' rights under Voting Rights Act. The United States District Court for the District of Montana, Philip M. Pro, J., upheld constitutionality of statute, 157 F.Supp.2d 1145, and found that it was violated. County appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) vote dilution provision was constitutional exercise of Congress' powers under Fourteenth and Fifteenth Amendments, and (2) evidence supported finding that county's at-large voting system violated statute.

Krystal Energy Company V. Navajo Nation
357 F3d. 1055
Docket No. 02-17047
United States Court of Appeals, Ninth Cir., April 6, 2004.

Subjects: Krystal Energy Co.; Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Abrogation; Bankruptcy.

*Synopsis: In bankruptcy proceeding, company brought adversary action against Indian tribe. The United States District Court for the District of Arizona, Mary H. Murguia, J., dismissed, and company appealed.

*Holding: The Court of Appeals, Berzon, Circuit Judge, held that Congress had abrogated tribe's sovereign immunity by statute.
Reversed and remanded.

Kennard V. Comstock Resources, Inc.
363 F.3d 1039
Docket No. 03-8012
United States Court of Appeals, Tenth Circuit, April 5, 2004.

Subjects: United States. False Claims Amendments Act of 1986; Jurisdiction -- United States. District Court (Wyoming); Oil and gas leases; Comstock Resources, Inc.; Sales -- United States -- Cases; Leases -- United States -- Cases; Wind River Indian Reservation (Wyo.).

*Synopsis: Relators brought qui tam False Claims Act (FCA) suit against oil and gas well operator, alleging fraudulent underpayment of royalties to Indian tribe. The United States District Court for the District of Wyoming dismissed for lacked of subject matter jurisdiction, and relators appealed.

*Holding: The Court of Appeals held that: (1) there had been prior public disclosure, but (2) relators were original source. Reversed and remanded.

Related News Stories: Court Revives Royalties Claim (Billings Gazette) 04/07

Shenandoah V. Halbritter
366 F.3d 89
Docket No. 03-7862.
United States Court of Appeals, Second Circuit, April 2, 2004

Subjects: Habeas corpus; United States. Indian Civil Rights Act; Housing -- Law and legislation -- Oneida Nation of New York. Jurisdiction -- United States. District Court (New York : Northern District).

*Synopsis: Residents of Indian reservation brought action seeking habeas corpus relief under Indian Civil Rights Act (ICRA), alleging that tribe's housing ordinance was used to retaliate against the residents for their resistance against tribal leadership. The United States District Court for the Northern District of New York, 275 F.Supp.2d 279, Mordue, J., dismissed. Residents appealed.

*Holding: The Court of Appeals, Van Graafeiland, Senior Circuit Judge, held that (1) tribe's enforcement of housing ordinance did not constitute a sufficiently severe restraint on the residents' liberty to invoke federal court's habeas corpus jurisdiction, and (2) housing ordinance was not a bill of attainder. Affirmed.

March

Cobell V. Norton
2004 WL 603456
Docket No. 03-5262
United States Court of Appeals, District of Columbia Circuit, March 24, 2004

Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior.

*Synopsis: (from the opinion) Upon consideration of the emergency motion to consolidate appeals and the emergency motion for a stay pending appeal and for a temporary stay pending consideration of the motion for a stay pending appeal, it is ORDERED that the motion for a temporary stay pending consideration of the motion for a stay pending appeal be granted, and that the district court's preliminary injunction filed March 15, 2004 be stayed pending further order of the court.

*Holding: not available

Related News Stories: Appeals Court Hearing Cobell Disqualification Dispute (Indianz.com) 03/15

Natural Arch and Bridge Society V. Alston
98 Fed.Appx. 711
Docket No. 02-4099
United States Court of Appeals, Tenth Cir., March 23, 2004

Subjects: United States. National Park Service; Policies and institutions; Rainbow Bridge National Monument (Utah); Sacred sites -- Utah; Freedom of religion; Indians of North America.

*Synopsis: Various plaintiffs, including visitors to national park, brought suit against Superintendent of Rainbow Bridge National Monument, Director of National Park Service, and National Park Service, seeking declaratory and injunctive relief from National Park policy of asking visitors to voluntarily refrain from approaching or walking under Rainbow Bridge, which was Native American religious site, and alleging that policy violated Establishment Clause of First Amendment. The United States District Court for the District of Utah denied plaintiffs' motion for summary judgment and granted defendants' motion to dismiss, and plaintiffs appealed.

*Holding: The Court of Appeals, McWilliams, Senior Circuit Judge, held that visitors lacked standing to challenge the policy.
Affirmed.

Related News Stories: Group's Challenge to Sacred Site Policy Rejected (Indianz.com) 03/31

County of Mille Lacs V. Benjamin
361 F.3d 460
Docket Nos.03-2527, 03-2537.
United States Court of Appeals, Eighth Circuit, March 9, 2004

Subjects: Mille Lacs County (Minn.); First National Bank of Milaca, Minn.; Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band; Minnesota; South Dakota; Boundary disputes; Indian reservations.

*Synopsis: County and bank sought declaratory judgment as to boundaries of Indian reservation. The United States District Court for the District of Minnesota, 262 F.Supp.2d 990, James M. Rosenbaum, Chief District Judge, dismissed with prejudice. County and bank appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that (1) bank and county both lacked standing to bring action, and (2) dismissal with prejudice was erroneous. Affirmed in part and reversed in part.

Related News Stories: Minn. Tribe Wins Another Round in Reservation Dispute (Indianz.com) 03/11

Blackbear V. Norton
93 Fed.Appx. 192
Docket No. 02-4230.
United States Court of Appeals, Tenth Circuit, March 5, 2004

Subjects: Skull Valley Band of Goshute Indians of Utah; Private Fuel Storage (Utah); United States. Bureau of Indian Affairs; Leases -- Federal approval; Exhaustion of administrative remedies; Nuclear fuels -- Storage -- Skull Valley Band of Goshute Indians of Utah.

*Synopsis: Tribe members filed lawsuit challenging a variety of governmental and tribal actions surrounding the Bureau of Indian Affairs' (BIA) conditional approval of a lease between tribe and private company for placement of a spent nuclear fuel storage facility on tribal land. The United States District Court for the District of Utah dismissed action. Tribe members appealed.

*Holding: The Court of Appeals held that:
(1) dismissal of lawsuit for failure to exhaust administrative remedies was required, and
(2) claim did not fall within recognized exception to sovereign immunity.
Affirmed.

United States V. Bird
359 F.3d 1185
Docket Nos. 02-30246, 02-30282.
United States Court of Appeals, Ninth Cir., March 3, 2004.

Subjects: Mandamus; United States; United States. Major Crimes Act; Jurisdiction -- United States; Indian criminals; Indians of North America -- Victims of crime; Burglary -- Indian Country (Montana).

*Synopsis: Indian defendants, indicted for burglaries occurring in Indian country, moved to dismiss indictments. The United States District Court for the District of Montana, Sam E. Haddon, J., denied the motions, and defendants appealed.

*Holding: Appeals were consolidated. The Court of Appeals, Alarcon, Circuit Judge, held that: (1) district court's rejection of defendants' challenge to sufficiency of indictment did not come within collateral order exception to final judgment rule, providing that Court of Appeals only had jurisdiction over appeals from final judgments of district courts, and (2) defendants' appeals would not be treated as application for writ of mandamus. Dismissed, and alternative application to treat appeals as application for writ of mandamus denied.

February

Chickaloon-Moose Creek Native Ass'n., Inc. v. Norton
360 F.3d 972
Docket No. 01-35921.
United States Court of Appeals, Ninth Circuit, Feb. 26, 2004.

Subjects: United States. Alaska Native Claims Settlement Act; Land titles -- Registration and transfer; Cook Inlet (Alaska); Cook Inlet Region, Inc.; United States. Dept. of the Interior; Alaska Native villages.

*Synopsis: Village corporations and regional corporation in Alaska brought actions contesting Department of Interior decision regarding which lands would be conveyed from federal government to regional corporation, for reconveyance to villages. Actions were consolidated. Following bench trial, the United States District Court for the District of Alaska, James K. Singleton, Jr., Chief Judge, entered judgment for government, and plaintiffs appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) Department's interpretation of its agreement with regional corporation, which governed land conveyance, was not entitled to deference;
(2) agreement between Department and regional corporation precluded conveyance of lands designated in second appendix to agreement if conveyance of lands designated in first appendix was sufficient in quantity to satisfy villages' acreage entitlements under the Alaska Native Claims Settlement Act (ANCSA);
(3) village that had no more selections among lands listed in first appendix had to substitute other lands from that appendix and was not entitled to lands it selected from second appendix; and
(4) statute enacted to enable performance of agreement did not authorize Department to convey lands in manner inconsistent with agreement.
Affirmed.

Proschold V. United States of America
90 Fed.Appx. 516
Docket No. 02-16655. D.C. No. CV-01-02390-SBA.
United States Court of Appeals, Ninth Circuit, Feb. 20, 2004.

Subjects: Quiet title actions; Jurisdiction; Sovereign immunity; Land use -- Dry Creek Rancheria of Pomo Indians of California; United States.

*Synopsis: Owners of servient estate under easement granted to government to provide access to Indian reservation brought action under Quiet Title Act (QTA) seeking determination of permissible scope of easement after construction of casino on reservation. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., dismissed complaint, and owners appealed.

*Holding: The Court of Appeals held that jurisdictional exception under QTA barred suit. Affirmed.

Victor V. Grand Casino-Coushatta
359 F.3d 782
Docket No. 03-30703
United States Court of Appeals, Fifth Cir., February 19, 2004.

Subjects: Casinos -- Coushatta Tribe of Louisiana; Grand Casinos of Louisiana, Inc. - Coushatta; Gambling on Indian reservations; Indian gaming; Slot machines; Jurisdiction -- United States; Jurisdiction -- Louisiana.

*Synopsis: Slot machine player who claimed to have won large jackpot sued casino, Indian tribe, and casino corporation in state court for breach of contract after casino refused to pay, asserting that malfunction in slot machine had generated jackpot. Action was removed to federal court on basis of diversity jurisdiction. The United States District Court for the Western District of Louisiana, James T. Trimble, Jr., J., remanded to state court based on determination that parties were nondiverse and federal subject matter jurisdiction was lacking. Defendants appealed.

*Holding: The Court of Appeals held that court lacked jurisdiction to review order of remand, which directly implicated subject matter jurisdiction of district court. Appeal dismissed.

Krystal Energy Company V. Navajo Nation
357 F.3d 1055
Docket No. 02-17047
United States Court of Appeals, Ninth Cir., Feb. 10, 2004.

Subjects: Bankruptcy; Sovereign immunity -- Abrogation -- Navajo Nation, Arizona, New Mexico & Utah; Krystal Energy Co. (Ariz.).

*Synopsis: In bankruptcy proceeding, company brought adversary action against Indian tribe. The United States District Court for the District of Arizona, Mary H. Murguia, J., dismissed, and company appealed.

*Holding: The Court of Appeals, Berzon, Circuit Judge, held that Congress had abrogated tribe's sovereign immunity by statute. Reversed and remanded.

Skokomish Indian Tribe V. United States
358 F.3d 1180
Docket Nos. 01-35028, 01-35845.
United States Court of Appeals, Ninth Cir., Feb. 23, 2004.

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; Tacoma (Wash.). Dept. of Public Utilities; Tacoma (Wash.); United States. Internal Revenue Service.

*Synopsis: (from the order) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

*Holding: not available

Related News Stories: Federal Court to Hear Appeal in Cushman Dam Case (News Tribune) 03/17

Bonnichsen V. United States ("Kennewick Man")
357 F.3d 962
Docket Nos. 02-35994, 02-35996
United States Court of Appeals, Ninth Cir., February 4, 2004.

Subjects: Kennewick Man; Jurisdiction -- United States; Human remains (Archaeology).

*Synopsis: Scientists sought judicial review of final decision of Secretary of the Interior that human remains, which were known as "Kennewick Man" and were approximately 9,000 years old, were "Native American" within meaning of Native American Graves Protection and Repatriation Act (NAGPRA), and awarding remains to coalition of Indian tribes. The United States District Court for the District of Oregon, John Jelderks, United States Magistrate Judge, Bonnichsen v. U.S., 217 F.Supp.2d 1116, vacated Secretary's decision, and determined that scientists should have opportunity to study remains under Archaeological Resources Protection Act (ARPA). Government and tribes appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that: (1) scientists had standing to bring action; (2) human remains must bear some relationship to presently existing tribe, people, or culture to be "Native American" within meaning of NAGPRA; and (3) Secretary's decision was not arbitrary or capricious, since remains bore no such relationship. Affirmed.

Related News Stories: Judges Back Study of Ancient Human Remains (NYT) * 02/05; Kennewick Man Can Be Studied, Court Rules (Washington Post) 2/05

January

United States V. Clifford Matley Family Trust
354 F.3d 1154
Docket Nos. 01-15778, 01-15813
United States Court of Appeals, Ninth Cir., Jan. 20, 2004

Subjects: Land use; Newlands Project (U.S.); Procedure (Law); Due process of law; Resource allocation; Water; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States.

*Synopsis:After court-appointed Water Master reclassified private farm land from "bottom land" to "bench land" for purposes of water allocation within Newlands Reclamation Project, federal government and Indian tribe sought evidentiary hearing. Following District Court remand, Water Master restated his original findings, and the United States District Court for the District of Nevada, Howard D. McKibben, J., adopted Master's report and approved reclassification. Government and tribe appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) Master was not required to follow federal rules of evidence or civil procedure; (2) Master's failure to hold evidentiary hearing did not deprive tribe of due process, despite its property interest in water now allocated to farm; and (3) water master could not make reclassification determination without considering principle of beneficial use. Reversed and remanded.

Chayoon V. Chao
355 F.3d 141
Docket No. 03-6143
United States Court of Appeals, Second Circuit, Jan. 16, 2004.

Subjects: Mashantucket Pequot Gaming Enterprise -- Employees; Casinos -- Mashantucket Pequot Tribe of Connecticut; Gambling on Indian reservations; Indian gaming; United States. Family and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut.

*Synopsis: Employee at casino operated by Indian tribe sued tribal officials for violation of Family and Medical Leave Act (FMLA). The United States District Court for the District of Connecticut, Janet C. Hall, J., dismissed, and employee appealed.

*Holding: The Court of Appeals held that tribe was immune from suit for damages.
Affirmed.

Delorme V. United States
354 F.3d 810
Docket No. 02-3460
United States Court of Appeals, Eighth Cir., January 13, 2004.

Subjects: Standing to sue -- Little Shell Band of Indians of North Dakota; Ojibwa Indians -- Claims vs.; Land use; Trusts and trustees -- Accounting -- United States.

*Synopsis: Representative of federally unrecognized Indian tribe sought accounting of funds distributed pursuant to federal appropriations statutes. The United States District Court for the District of North Dakota, Patrick A. Conmy, dismissed, and appeal was taken.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that representative failed to establish standing to sue. Affirmed.

Thompson V. Scott
86 Fed.Appx. 17
Docket No. 03-40408
United States Court of Appeals, Fifth Circuit, Jan. 9, 2004

Subjects: Indian prisoners -- Texas; Civil rights; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000; Freedom of religion; Long hair; Confiscations.

*Synopsis: Native American inmate filed civil rights suit in state court alleging that state prison officials violated First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA) by failing to adequately accommodate his religious beliefs. After removal, the United States District Court for the Southern District of Texas entered summary judgment in favor of officials, and inmate appealed.

*Holding: The Court of Appeals held that: (1) inmate did not have standing to challenge requirement that inmates pass written test on Native American practices in order to participate in Native American services; (2) confiscation of inmate's medicine bag and dream catcher did not violate his rights; and (3) fact issues remained as to whether compelling government interest required inmates' hair to be no more than one-eighth inch long. Affirmed in part, vacated in part, and remanded.

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