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Indian Law Bulletins | Federal Courts of Appeals | Archives 2005

December

Zuni Public School District No. 89 v. United States Department of Education
393 F.3d 1158
No. 01-9541
United States Court of Appeals, Tenth Cir., December 30, 2005

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.

Fletcher v. United States
160 Fed.Appx. 792
No. 04-5112
United States Court of Appeals, Tenth Cir., December 29, 2005

Subjects: Osage Indians -- Political activity; Elections -- Osage Tribe, Oklahoma; Minneral rights -- Osage Tribe, Oklahoma; Trusts and trustees -- United States.

*Synopsis: Descendants of Indian tribe brought action against United States and others alleging violation of right to political association and participation in tribal government, breach of trust, and a Fifth Amendment takings claim related to Act which directed preparation of final membership roll of tribe. The United States District Court for the Northern District of Oklahoma dismissed the complaint for failure to join tribal council as necessary and indispensable party. Plaintiffs' appealed.

*Holding: The Court of Appeals, Henry, Circuit Judge, held that: (1) breach of trust and takings claim did not seek money damages under the Administrative Procedure Act, and (2) Court of Appeals would not determine whether tribal council was necessary and indispensable party to breach of trust and takings claim without benefit of district court's analysis of issue.
Vacated and remanded.

Morris v. Tanner
160 Fed.Appx. 600
No. 03-35922
United States Court of Appeals, Ninth Cir., December 22, 2005

Subjects: Criminal jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana -- Application -- Non-members of a tribe; Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members; United States. Indian Civil Rights Act.

*Synopsis: (from the opinion) Thomas Lee Morris appeals the district court's grant of summary judgment in favor of defendant, Judge Winona Tanner, and defendant-intervenor, United States. For the past six years, Morris has had criminal speeding charges pending against him in the tribal court of the Confederated Salish and Kootenai Tribes ("CSKT") in Montana. Morris is an enrolled member of the Minnesota Chippewa Tribe, Leech Lake Reservation, but is not a member of the CSKT. He challenges the jurisdiction of the tribal court. The district court granted summary judgement against Morris. Morris v. Tanner, 288 F.Supp.2d 1133, 1144 (D.Mont.2003). Morris appealed.
Morris challenges the jurisdiction of the CSKT tribal court, which was confirmed by the 1990 amendments to the Indian Civil Rights Act ("ICRA") to extend to "all Indians" in criminal cases.

*Holding: not yet available

Means v. Navajo Nation
432 F.3d 924
No. 01-17489
United States Court of Appeals, Ninth Cir., December 13, 2005

Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Equality before the law -- United States; Due proecess of law -- United States; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe.

*Synopsis: . After being charged in the tribal court of an Indian reservation with various offenses, petitioner, an enrolled member of a different Indian tribe, sought a writ of habeas corpus enjoining the tribal court from proceeding with the case. The United States District Court for the District of Arizona, Earl H. Carroll, J., denied the petition, and petitioner appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that petitioner was not deprived of equal protection or due process by statute which made him subject to the criminal jurisdiction of another tribe's courts for misdemeanors committed on that tribe's reservation. Affirmed.

November

United States v. Truckee-Carson Irrigation District
429 F.3d 902
Nos. 04-16032, 04-16033
United States Court of Appeals, Ninth Cir., November 21, 2005

Subjects: United States; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Truckee-Carson Irrigation Disrict (Nev.); Nevada; Fernley (Nev.); Reserved water rights -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Water use -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada.

*Synopsis: Indian tribe and irrigation district cross-appealed from state engineer's partial grant of tribe's application to temporarily change place and manner of use of federally reserved water rights. The United States District Court for the District of Nevada, Lloyd D. George, J., 309 F.Supp.2d 1245, generally affirmed engineer's ruling, and tribe appealed.

*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that tribe's right to temporarily change place and manner of use was limited to maximum amount of water allocated for prior use.
Affirmed.

Cobell v. Norton
428 F.3d 1070
Docket No. 05-5068
United States Court of Appeals, District of Columbia Cir., November 15, 2005

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 -- United States.

*Synopsis: Present and past beneficiaries of individual Indian money (IIM) accounts filed class action, alleging gross mismanagement by Interior and Treasury Departments. The United States District Court for the District of Columbia, Lamberth, J., 357 F.Supp.2d 298, ordered historical accounting of trust fund assets, and defendants appealed.

*Holding: The Court of Appeals, Williams, Senior Circuit Judge, held that injunction was abuse of discretion.
Vacated and remanded.

*Related News Stories: • • Appeals court: Indian money accounting would be impossible (Grand Forks Herald) 11/15/05

Shivwits Band of Paiute Indians v. State of Utah
428 F.3d 966
Docket No. 03-4274
Petition for Certiorari Filed (October 9, 2006)
United States Court of Appeals, Tenth Cir., November 9, 2005

Subjects: Jurisdiction -- United States; United States. Bureau of Indian Affairs; Leases -- Shivwits Band of Paiutes; Police power -- Utah; Trust lands -- Shivwits Band of Paiutes; Land use -- Shivwits Band of Paiutes.

*Synopsis: After Indian tribe purchased land and placed it in trust with federal government, it leased the land to advertiser for construction of outdoor billboards. State of Utah threatened to bring a lawsuit, and the city issued stop work order. Tribe and advertiser sought declarative and injunctive relief, and State and city counterclaimed and brought third-party claim against United States. Parties cross-moved for summary judgment. The United States District Court for the District of Utah granted judgment for tribe and advertiser, and State and city appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) district court lacked subject matter jurisdiction to consider counterclaim and third-party claim, to extent those claims challenged Bureau of Indian Affairs' (BIA) decision to take the property at issue into trust;
(2) city and State waived argument that BIA was required to enforce Highway Beautification Act (HBA) when approving tribe's lease of land to advertiser; and
(3) State was not entitled to exercise its police power to regulate use of tribe's land.
Affirmed.

Related News Story: Third court decision favors land-into-trust process (Indianz.com) 11/11/05.

October - no cases found for this month.

September

Grand River Enterprises Six Nations, LTD. v. Pryor
425 F.3d 158
Docket No. 03-9179
United States Court of Appeals, Second Cir., September 28, 2005

Subjects: 3B Holdings (Wash.); Grand River Enterprises Six Nations (Canada); Nationwide Tobacco (Wash.); Tobacco -- Law and legislation -- United States -- States; Products liability -- Tobacco -- United States -- States; Structured settlements -- United States -- States; Tobacco industry -- Law and legislation -- United States -- States

*Synopsis: Cigarette manufacturers, importers, and wholesalers brought action against state attorneys-general regarding escrow statutes and certification statutes that were enacted as part of master settlement agreement (MSA) between states and certain other cigarette companies. The United States District Court for the Southern District of New York, John F. Keenan, J., dismissed action in part, 2003 WL 22232974 and 2004 WL 2480433, and granted certification for interlocutory appeal.

*Holding: The Court of Appeals, John M. Walker, Chief Circuit Judge, held that:
(1) district court did not abuse its discretion in certifying appeal;
(2) transacts-any-business requirement of New York long arm statute was satisfied;
(3) substantial nexus existed between instant lawsuit and prior negotiations between attorneys-general over statutes and MSA;
(4) dormant Commerce Clause was not violated by MSA;
(5) tobacco escrow statutes advanced significant public interests;
(6) tobacco escrow statutes and MSA controlled prices outside of enacting states;
(7) Indian Commerce Clause was not implicated; and
(8) due process clause was not implicated.
Affirmed in part, reversed in part, and remanded.

Johnson v. Choctaw Management/Services Enterprise
149 Fed.Appx. 800
Docket No. 04-7123
United States Court of Appeals, Tenth Cir., September 20, 2005

Subjects: Discrimination in employment; Choctaw Management/Services Enterprise (Okla.); Termation of employees -- Choctaw Management/Services Enterprise (Okla.); United States. Civil Rights Act of 1964 – Title 7; Jurisdiction -- United States.

*Synopsis: Former employee brought Title VII action against Indian-owned business enterprise, alleging race and gender discrimination. The United States District Court for the Eastern District of Oklahoma dismissed action for lack of subject matter jurisdiction. Employee appealed.

*Holding: The Court of Appeals, Tymkovich, Circuit Judge, held that enterprise was exempted by statute from action.
Affirmed.

Shawnee Tribe v. United States
423 F.3d 1204
Docket No. 04-3256
United States Court of Appeals, Tenth Cir., September 15, 2005

Subjects: United States. General Services Administration; Shawnee Tribe, Oklahoma; Indian land transfers; Sunflower Army Ammunition Plant (Kan.); United States. National Defense Authorization Act for Fiscal Year 2005; United States. Federal Property and Administrative Services Act of 1940; Jurisdiction -- United States; Indian termination policy; Tribes -- Termination; Treaties -- Shawnee Tribe, Oklahoma; Treaties -- United States.

*Synopsis: Shawnee Tribe sought judicial review of General Service Administration (GSA) finding that former military installation available for disposal under the federal Property Act, was not within boundaries of reservation. The United States District Court for the District of Kansas, Thomas G. Van Bebber, Senior District Judge, 311 F.Supp.2d 1181, granted summary judgment for government, and Tribe appealed. The Court of Appeals, 405 F.3d 1121, dismissed the appeal as moot, and petition for rehearing was granted in part.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) enactment of 2005 National Defense Authorization Act provision giving Secretary of the Army discretion to convey former military installation in historic boundaries of Shawnee Indian reservation to entity selected by county board for economic development mooted Tribe's claims to the property under the Property Act, and
(2) 1854 Treaty between the Shawnee Tribe and the United States did not reserve or create a reservation for the Shawnee.
Affirmed in part, vacated in part, and remanded.

Lewis v. Norton
424 F.3d 959
Docket No. 03-17207
United States Court of Appeals, Ninth Cir., September 13, 2005

Subjects: Table Mountain Rancheria of California -- Members -- Defined; Profit-sharing -- Table Mountain Rancheria of California -- Members; United States; Casinos -- Table Mountain Rancheria of California; Indian gaming -- Table Mountain Rancheria of California.

*Synopsis: Rejected applicants for membership in Indian tribe sued federal agencies, seeking declarative and injunctive relief. The United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, dismissed for lack of subject matter jurisdiction, and appeal was taken.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that:
(1) tribe was immune from suit, and
(2) applicants could not avoid immunity issue by suing federal government.
Affirmed.

Related News Stories: • • Two Cobell v. Norton court hearings this week (Indianz.com) 9/13/05

Carcieri v. Norton
2005 WL 2216322
Docket No. 03-2647
United States Court of Appeals, First Cir., September 13, 2005

Subjects: Narragansett Indian Tribe of Rhode Island; United States. Dept. of the Interior; Trust lands -- Narragansett Indian Tribe of Rhode Island; Charlestown (R.I. : Town); Rhode Island; United States. Indian Reorganization Act; Rhode Island Indian Claims Settlement Act; United States. Administrative Procedure Act; United States. Constitution.

*Synopsis: State and town challenged Secretary of the Interior's decision to accept 31-acre parcel of land into trust for benefit of Indian tribe. The United States District Court for the District of Rhode Island, Mary M. Lisi, 290 F.Supp.2d 167, granted Secretary's motion for summary judgment, and appeal was taken.

*Holding: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) federally recognized tribe was entitled to benefits of Indian Reorganization Act (IRA), even if it was not recognized and under federal jurisdiction on date of Act's enactment;
(2) Rhode Island Indian Claims Settlement Act did not impair tribe's ability to seek trust acquisition of lands that it acquired by purchase with non-settlement funds;
(3) Settlement Act did not prohibit Secretary from removing lands taken into trust from State's civil and criminal jurisdiction; and
(4) Bureau of Indian Affairs (BIA) finding that parcel of land acquired by tribe qualified for trust acquisition was not arbitrary or capricious. Affirmed.

Related News Stories: • • Two Cobell v. Norton court hearings this week (Indianz.com) 9/13/05
• • Appeals court upholds legality of land-into-trust process (Indianz.com) 9/14/05

Alaska Department of Health and Social Services v. Centers for Medicare and Medicaid Services
424 F.3d 931
Docket No. 04-74204
United States Court of Appeals, Ninth Cir., September 12, 2005

Subjects: Alaska. Dept. of Health and Social Services; Centers for Medicare & Medicaid Services (U.S.) ; Medical care, Cost of -- Alaska; Medical care -- Cost control -- United States; Medicare; Medicaid; United States. Medicaid Act; United States. Indian Health Service; Health facilities -- Indian Country (Alaska).

*Synopsis: State of Alaska petitioned for judicial review of final determination by administrator of the Centers for Medicare and Medicaid Services (CMS) disapproving proposed amendment to Medicaid state plan that would alter rate at which federal government reimbursed state expenditures on behalf of patients at Indian tribal health facilities.

*Holding: The Court of Appeals, Brunetti, Circuit Judge, held that:
(1) Chevron framework for determining level of deference to be accorded to agency's interpretation of statute governed review of CMS's interpretation of statute under which plan amendment was disapproved;
(2) administrator could rely on statute requiring state plan to provide methods and procedures necessary to ensure that Medicaid payments were consistent with efficiency, economy, and quality of care as independent basis for disapproving amendment;
(3) administrator's determination that amendment did not comply with statutory requirement that state plan provide methods and procedures necessary to ensure that Medicaid payments were consistent with efficiency and economy was based on permissible construction of statute, warranting Chevron deference;
(4) disapproval of amendment was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law;
(5) state's methodology for calculating prevailing charges for tribal facilities in rural locality was inconsistent with governing regulation; and
(6) regulation supported administrator's construction of regulation's "comparable circumstances" language.
Petition for review denied.

Wilbur v. Locke
423 F.3d 1101
Docket No. 03-35911
Petition for Certiorari Filed (October 6, 2005)
United States Court of Appeals, Ninth Cir., September 9, 2005

Subjects: Salish Trust; Trading Post at March Point; Cigarettes -- Taxation -- Washington (State); United States. Tax Injunction Act; Cigarette vendors -- Swinomish Indians of the Swinomish Reservation; Contracts; Standing to sue; Parties to actions -- Swinomish Indians of the Swinomish Reservation.

*Synopsis: Indian retailers challenged state's authority to negotiate cigarette tax contract with tribe. The United States District Court for the Western District of Washington, Robert S. Lasnik, J., dismissed suit as barred by Tax Injunction Act, and retailers appealed.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) retailers had standing to sue;
(2) suit was not barred by Tax Injunction Act; but
(3) tribe was indispensable party to suit.

Hoevenaar v. Lazaroff
422 F.3d 366
Docket No. 03-4119
United States Court of Appeals, Sixth Cir., September 8, 2005

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: In Native American prison inmate's 1983 action alleging violations of his right to practice his religion, inmate moved for preliminary injunction to prevent corrections officials from cutting his hair. The United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., 276 F.Supp.2d 811, granted limited relief under Religious Land Use and Institutionalized Persons Act (RLUIPA), allowing inmate to maintain a kouplock. The Court of Appeals, 108 Fed.Appx. 250, reversed, and the Supreme Court, 125 S.Ct. 2536, vacated and remanded.

*Holding: On Remand, the Court of Appeals, Reeves, District Judge, held that district court failed to give proper deference to expertise and experience of prison officials on issue of whether prison regulation was least restrictive means of furthering compelling governmental security interest.
Reversed and remitted.

State of South Dakota v. United States Department of the Interior
423 F.3d 790
Docket No. 04-2309
United States Court of Appeals, Eighth Cir., September 6, 2005

Subjects: Oacoma (S.D.); Lyman County (S.D.); South Dakota; Trust lands -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; United States. Dept. of the Interior; United States. Indian Reorganization Act.

*Synopsis: State, city, and county brought action for declaratory and injunctive relief against the Department of Interior (DOI) and others, seeking to prevent the placement of a certain parcel of land into trust on behalf of Indian tribe. The United States District Court for the District of South Dakota, 314 F.Supp.2d 935, Richard H. Battey, J., upheld DOI's decision to take the land into trust. State appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge held that:
(1) Indian Reorganization Act (IRA) section granting DOI authority to place land in trust for benefit of Indians was not an unconstitutional delegation of legislative power;
(2) DOI reasonably and appropriately evaluated the relevant factors when determining to place certain lands in trust for tribe; and
(3) there was thus no need to supplement the record.
Affirmed.

Related News Stories: • • Appeals court upholds legality of land-into-trust process (Indianz.com) 9/14/05

Beams v. Norton
141 Fed Appx. 769
Nos. 04-3393
Petition for Certiorari Filed (November 29, 2005)
United States Court of Appeals, Tenth Cir., November 29, 2005

Subjects: Trusts and trustees -- United States; Indian preference in hiring -- United States; United States. Bureau of Indian Affairs; United States. Wheeler-Howard Act; Marijuana -- Law and legislation -- United States; Trust lands -- Indian Country (U.S.).; Indian reservations -- United States; United States. Civil Rights Act of 1964 – Title 7; United States. Age Discrimination in Employment Act of 1967; Jurisdiction -- United States.

*Synopsis: (from the opinion) Richard Lee Beams appeals from district court orders that dismissed his Indian Preference Act (IPA) claim for lack of subject matter jurisdiction and failure to state a claim, see 25 U.S.C. § 472, and entered summary judgment on his discrimination and retaliation claims, 29 U.S.C. § 633a; 42 U.S.C. § 2000e-16.

*Holding: not available

Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton
422 F.3d 490
Docket No. 04-3571
United States Court of Appeals, Seventh Cir., September 1, 2005

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Wisconsin; Intergovernmental agreements -- Tribes -- Wisconsin; Intergovernmental agreements -- Wisconsin; United States. Dept. of the Interior; Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Wisconsin; Standing to sue; United States. Administrative Procedure Act.

*Synopsis: Two Indian tribes sought declaratory judgment voiding a paragraph in an amendment to a gaming compact between a third tribe and a State, which had been allowed to go into effect without final action by the Department of the Interior (DOI). Third tribe intervened, and DOI and intervenor moved to dismiss. The United States District Court for the Western District of Wisconsin, Barbara B. Crabb, J., 327 F.Supp.2d 995, granted motions.

*Holding: On appeal. the Court of Appeals, Flaum, Chief Circuit Judge, held that:
(1) plaintiff tribes had standing, but
(2) plaintiff tribes' failure to respond to defendant's argument that judicial review was precluded by the Administrative Procedure Act (APA) amounted to forfeiture of point.
Affirmed.

August

Arakaki v. Lingle
423 F.3d 954
Docket No. 04-15306
United States Court of Appeals, Ninth Cir., August 31, 2005

Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States.

*Synopsis: Citizens of Hawaii sued United States, state officers, Department of Hawaiian Home Lands (DHHL), Hawaiian Homes Commission (HHC), and Office of Hawaiian Affairs (OHA), alleging that various state programs gave preferential treatment to persons of Hawaiian ancestry in violation of equal protection principles and terms of public lands trust. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., 198 F.Supp.2d 1165, denied temporary restraining order, then granted in part and denied in part motions to dismiss and denied motions for reconsideration, 299 F.Supp.2d 1090, 299 F.Supp.2d 1107, 299 F.Supp.2d 1114, 299 F.Supp.2d 1129, and, finally, dismissed entire action, 305 F.Supp.2d 1161. Citizens appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) citizens lacked standing to sue United States as beneficiaries of public lands trust;
(2) citizens lacked standing to sue state as trust beneficiaries;
(3) citizens lacked standing to challenge lease eligibility requirements of public lands trust in state taxpayer capacity;
(4) citizens' standing, as state taxpayers, to challenge OHA-administered programs was limited to those programs relying upon state tax appropriations;
(5) citizens' lack of standing to sue United States precluded challenge to OHA's expenditures of revenues derived from public lands trust; and
(6) claims that expenditure of state tax revenue on OHA programs violated equal protection did not present nonjusticiable political question.
Affirmed in part, reversed in part, and remanded.

Hoevenaar v. Lazaroff
2005 WL 2154948
Docket No. 03-35922, D.C. No. CV-99-0082-DWM
United States Court of Appeals, Sixth Cir., September 8, 2005

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute; United States. Religious Land Use and Institutionalized Persons Act of 2000.

Lee v. Tanner
141 Fed.Appx. 696
Docket No. 03-35922, D.C. No. CV-99-0082-DWM
United States Court of Appeals, Ninth Cir., August 25, 2005

Subjects: Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members.

*Synopsis: (from the opinion) Morris challenges the jurisdiction of the CSKT tribal court, which was confirmed by the 1990 amendments to the Indian Civil Rights Act (“ICRA”) to extend to “all Indians” in criminal cases. See Pub.L. No. 101-511, Title VIII, § 8077(b) -(c), 104 Stat. 1856, 1892 (1990) (amending 25 U.S.C. § 1301). He contends that the 1990 amendments violate principles of equal protection and due process. In our recent opinion in Means v. Navajo Nation, No. 01-17489, slip op. 11191 (Aug. 23, 2005), however, we squarely addressed and rejected both of these challenges to the 1990 amendments to the ICRA.

*Holding: not yet available

United States v. State of Michigan
2005 WL 2033321
Docket No. 04-1864
United States Court of Appeals, Sixth Cir., August 24, 2005

Subjects: Treaty of Washington (1836); Treaties -- United States; Treaties -- Ottawa Indians; Treaties -- Ojibwa Indians; Hunting rights; Fishing rights; Michigan; Michigan Fisheries Resource Conservation Coalition; Walloon Lake Trust and Conservancy.

*Synopsis: United States brought action against State of Michigan regarding interpretation and enforcement of 1836 Treaty of Washington. The United States District Court for the Western District of Michigan, Richard A. Enslen, J., denied motion of private property owners to intervene in phase of case directed toward determination of usufructuary rights of five Indian tribes under that Treaty. Owners appealed.

*Holding: The Court of Appeals, Ryan, Circuit Judge, held that:
(1) owners were not entitled to intervene as matter of right;
(2) owners' concerns about future management and regulatory issues did not provide basis for mandatory intervention; and
(3) district court did not abuse its discretion in denying motion of owners for permissive intervention.
Affirmed.

Means v. Navajo Nation
420 F.3d 1037
Docket No. 01-17489
United States Court of Appeals, Ninth Cir., August 23, 2005

Subjects: Criminal actions arising on Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Non-members of a tribe; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members.

*Synopsis: After being charged in the tribal court of an Indian reservation with various offenses, defendant, an enrolled member of a different Indian tribe, petitioned for a writ of habeas corpus enjoining the tribal court from proceeding with the case. The United States District Court for the District of Arizona, Earl H. Carroll, J., denied the petition. Defendant appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that non-member Indian was not deprived of equal protection or due process by statute which made him subject to the criminal jurisdiction of another tribe's courts for misdemeanors committed on that tribe's reservation.
Affirmed.

Related News Stories:
• • Appeals court opens Means to tribal prosecution (Indianz.com) 8/24/05
• • Federal courts try to decide who is legally Indian (Indianz.com) 8/24/05

Perez v. Ellington
421 F.3d 1128
Docket No. 04-2181
United States Court of Appeals, Tenth Cir., August 22, 2005

Subjects: Motor fuels -- Taxation -- New Mexico; Faction; Pueblo of Nambe, New Mexico -- Members; United States. Constitution. 1st Amendment; Freedom of association; Sovereign immunity -- Pueblo of Nambe, New Mexico

*Synopsis: Members of Indian tribe who had been subjected to New Mexico tax liens after contracting with a gasoline distribution corporation brought action against State officials, alleging various claims including a § 1983 claim for a First Amendment violation. The United States District Court for the District of New Mexico granted summary judgment for officials as to all claims except the Freedom of Association claim. Officials appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that
(1) issues of fact existed as to whether tax officials' imposition of tax liens on property of Indian tribal members was in retaliation for those members' business association with a non-tribal gasoline distributor, and
(2) officials were not entitled to absolute immunity.
Affirmed.

United States v. Looking Cloud
2005 WL 1993934
Docket No. 04-2173
United States Court of Appeals, Eighth Cir., August 19, 2005

Subjects: Trials (Murder) -- United States; Evidence (Law) -- United States; American Indian Movement -- Members; Testimony; Instructions to juries.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Lawrence L. Pierson, Chief Judge, of first degree murder. Defendant appealed.

*Holding: The Court of Appeals, Gibson, Circuit Judge, held that:
(1) probative value of evidence of defendant's membership in an American Indian group and history of group's violent activities was not outweighed by danger of unfair prejudice;
(2) any error in admission of evidence of violent activities of American Indian group was harmless;
(3) testimony, that people within the American Indian group of which defendant was a member had accused murder victim of being an informant and that the victim spoke of fearing for her life because of the accusations, was not hearsay;
(4) Court of Appeals would review for plain error defendant's claim on appeal that district court erred by giving improper limiting jury instruction;
(5) limiting jury instruction was not plainly erroneous;
(6) Court of Appeals would not consider on direct appeal defendant's ineffective assistance of counsel claim; and
(7) evidence was sufficient to support murder conviction.
Affirmed.

Samish Indian Nation v. United States
419 F.3d 1355
Docket No. 04-5042
United States Court of Appeals, Federal Cir., August 19, 2005

Subjects: Samish Indian Tribe, Washington; Federal recognition of Indian tribes -- Samish Indian Tribe, Washington; Treaty of Point Elliott (1855); Treaty rights -- Samish Indian Tribe, Washington; Jurisdiction; United States. Indian Self-Determination and Education Assistance Act; Limitation of actions; United States. Tucker Act; United States. Snyder Act; United States. Administrative Procedure Act.

*Synopsis: Samish Indian Nation brought suit against United States under Tucker Act and Indian Tucker Act alleging that it should have been treated as federally recognized tribe during period from 1969 to 1996, government violated treaty promises, and it violated various laws after tribe was federally recognized in 1996. The United States Court of Federal Claims, Edward J. Damich, Chief Judge, dismissed action, 58 Fed.Cl. 114. Tribe appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that:
(1) Indian Self-Determination and Education Assistance Act (ISDA) was not money-mandating, and thus Tucker Act and Indian Tucker Act jurisdiction did not exist;
(2) Nation did not have right to ISDA monies under fiduciary duty theory;
(3) Snyder Act did not provide private damage remedy;
(4) recognization of Nation was non-justiciable political act that tolled limitations period;
(5) limitations period was tolled until Nation, through its administrative challenges, obtained final ruling by district court under Administrative Procedures Act (APA);
(6) executive branch of government had to make recognition determination regarding Nation for purposes of statutory benefits; and
(7) claims for past benefits did not accrue when government accorded Nation federal recognition.
Affirmed in part, reversed in part, and remanded.

San Carlos Apache Tribe v. United States
417 F.3d 1091
Docket No. 03-16874
United States Court of Appeals, Ninth Cir., August 9, 2005

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; United States; San Carlos Reservoir (Ariz.); Water levels; Reservoir drawdown; United States. Endangered Species Act of 1973; Bald eagle; Nuisances; United States. National Historic Preservation Act of 1966; United States. Archeological Resources Protection Act; United States. Native American Graves Protection and Repatriation Act; United States. National Environmental Policy Act of 1969; United States. Fish and Wildlife Coordination Act; Trusts and trustees -- United States; Breach of trust -- United States; Jurisdiction -- United States. District Court (Arizona); District courts.

*Synopsis: San Carlos Apache Tribe sued United States, seeking to enjoin release of water from San Carlos Reservoir, and asserting claims under, inter alia, National Historic Preservation Act (NHPA). The United States District Court for the District of Arizona, 272 F.Supp.2d 860, Bury, J., granted government's summary judgment motion, and Tribe appealed.

*Holding: As a matter of first impression, the Court of Appeals, McKeown, Circuit Judge, held that no private right of action exists under NHPA's provision requiring federal agency to "take into account the effect of [any] undertaking on" historic sites.
Affirmed.

Related News Stories: Court limits lawsuits under historic preservation act (Indianz.com) 8/10/05

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
416 F.3d 1025
Docket No. 04-15044
United States Court of Appeals, Ninth Cir., August 2, 2005

Subjects: Native Hawaiian students; Discrimination in education -- Hawaii; Kamehameha Schools -- Admission; Affirmative action programs; Private schools -- Hawaii; Equality before the law; Civil rights -- United States.

*Synopsis: Non-Native Hawaiian student brought suit against private school, charitable trust, and trustees under 1981, challenging race-conscious admissions policy of accepting only students of native Hawaiian ancestry. The United States District Court for the District of Hawai'i, Alan C. Kay, J., 295 F.Supp.2d 1141, entered summary judgment for school defendants, and student applicant appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) on issue of first impression in Ninth Circuit, suit under 1981 was subject to substantive standards applicable to race-based challenges under Title VII;
(2) race-based admissions policy did not constitute valid affirmative action plan that might supply legitimate nondiscriminatory reason for school's actions; and
(3) policy was unlawful under 1981.
Affirmed in part, reversed in part.

Related News Stories: Appeals court blocks Native Hawaiian school policy (Indianz.com) 8/3/05

Filesteel v. McConnel
143 Fed.Appx. 54
Docket No. 04-36111, D.C. No. CV-01-00115-SEH
United States Court of Appeals, Ninth Cir., August 1, 2005

Subjects: Contested elections -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Constitutional amendments -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Charters -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Members -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana.

*Synopsis: (from the opinion) Levi Enemy Boy appeals pro se the district court's order dismissing the action filed by Enemy Boy and Edward Filesteel, members of the Assiniboine and Gros Ventre Tribes of the Fort Belknap Indian Reservation, challenging the validity of a secretarial election, which amended the constitution and charter of the Fort Belknap Indian Community. We have jurisdiction under 28 U.S .C. § 1291.

*Holding: not yet available

July

Warsoldier v. Woodford
418 F.3d 989
Docket No. 04-55879
United States Court of Appeals, Ninth Cir., July 29, 2005

Subjects: California. Dept. of Corrections; Long hair; Indian prisoners; United States. Religious Land Use and Institutionalized Persons Act of 2000; Freedom of religion.

*Synopsis: Native American inmate sued officials of California Department of Corrections (CDC), challenging CDC's hair grooming policy as violating his rights under Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Central District of California, Ronald S.W. Lew, J., denied inmate's request for preliminary injunction. Inmate appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that:
(1) policy imposed substantial burden on inmate's religious practice;
(2) policy was not least restrictive alternative to achieve CDC's interest in prison security, and thus violated RLUIPA;
(3) inmate faced possibility of irreparable injury absent issuance of injunction; and
(4) balance of hardships favored inmate.
Reversed and remanded.

United States v. Green
2005 WL 1799823
Docket No. 04-5166
United States Court of Appeals, Tenth Cir., July 29, 2005

Subjects: Firearms; Searches and seizures; Evidence (Law); Creek Nation Casino Tulsa (Okla.); Indian reservation police -- Muscogee (Creek) Nation, Oklahoma; United States. Bureau of Indian Affairs; Police -- United States; Jurisdiction -- Muscogee (Creek) Nation, Oklahoma; Jurisdiction -- United States..

*Synopsis: Defendant pleaded guilty in the United States District Court for the Northern District of Oklahoma to possession of a firearm and ammunition after former conviction of a felony. Defendant appealed.

*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) tribal law enforcement personnel had reasonable suspicion to investigate vehicle which was parked in casino parking lot as possible stolen vehicle, and
(2) cross-deputized tribal officer had probable cause to conclude that gun which was seen in plain view inside defendant's vehicle was evidence of a crime, justifying warrantless seizure of gun.
Affirmed.

Doe v. Mann
415 F.3d 1038
Docket No. 04-15477
Petition for Certiorari Filed (December 19, 2005)
United States Court of Appeals, Ninth Cir., July 19, 2005

Subjects: California -- Jurisdiction; United States. Public Law 280; Exclusive jurisdiction; Jurisdiction -- Tribes -- California; United States. Indian Child Welfare Act of 1978.

*Synopsis: Native American mother challenged state's authority to terminate her parental rights. The United States District Court for the Northern District of California, Marilyn H. Patel, Chief Judge, 285 F.Supp.2d 1229, held for state, and mother appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) Rooker-Feldman doctrine did not bar federal review of state decision, and
(2) tribe's jurisdiction over child dependency proceeding was not exclusive.
Affirmed.

Pro-Football, Inc. v. Harjo
2005 WL 1653048
Docket No. 03-7162
United States Court of Appeals, DC Cir., July 15, 2005

Subjects: United States. Trademark Trial and Appeal Board; United States; Trademarks -- United States; Washington Redskins (Football team); Indians as mascots; Indians of North America; Race discrimination; Laches.

*Synopsis: Petition was brought seeking cancellation of professional football team's registered "Redskins" trademarks, on ground they disparaged Native Americans. The Trademark Trial and Appeal Board (TTAB) cancelled registrations, and team sought judicial review. The United States District Court for the District of Columbia, Kollar-Kotelly, J., 284 F.Supp.2d 96, granted summary judgment for team, and petitioners appealed.

*Holding: The Court of Appeals held that defense of laches had to be assessed as to one individual petitioner, and could not be assessed from time that first mark was registered, where that petitioner had not yet reached age of majority at time of first registration.
Remanded.

*Related News Stories: Appeals court keeps 'Redskins' lawsuit alive (Indianz.com) 7/18/05

United States v. Drapeau
414 F.3d 869
Docket No. 04-1202
United States Court of Appeals, Eighth Cir., July 12, 2005

Subjects: Suppression of evidence; Drugs; Testimony; Evidence (Law); Jurisdiction -- United States; Mandatory sentences.

*Synopsis: Following denial of his motion to suppress his statements to arresting agents, defendant was convicted after jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of distributing a controlled substance and possessing a controlled substance with intent to distribute. Defendant appealed his conviction and sentence.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) defendant did not effectively assert his right to remain silent;
(2) the district court did not abuse its discretion in permitting confidential informant's testimony regarding defendant's prior distribution of drugs;
(3) the district court did not abuse its discretion in disallowing defendant's cross-examination of confidential informant concerning her family connections to law enforcement;
(4) even if the district court's decision to exclude evidence of confidential informant's family connections to law enforcement was an abuse of discretion, any error was harmless;
(5) the evidence was sufficient to support the convictions;
(6) the 1868 Fort Laramie Treaty did not deprive the federal courts of jurisdiction over this criminal case; and
(7) the district court's application of the mandatory sentencing guidelines based on judicial findings concerning drug quantity and possession of a dangerous weapon violated the Sixth Amendment as applied in U.S. v. Booker.
Conviction affirmed; sentence vacated and remanded.

BNSF Railway Company v. Ray
2005 WL 1635310
Docket No. 05-15688, D.C. No. CV-05-00386-DGC
United States Court of Appeals, Ninth Cir., July 11, 2005

Subjects: Burlington Northern Santa Fe Railroad; Railroad accidents -- Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Liability for railroad accidents; Jurisdiction -- Hualapai Indian Tribe of the Hualapai Indian Reservation; Jurisdiction -- United States.

*Synopsis: Survivors of four Native American Indians killed in accident at railroad crossing on Indian reservation brought action against railroad in tribal court. The United States District Court for the District of Arizona, David G. Campbell, J., granted preliminary injunction to railroad ordering survivors to halt their prosecution of action in tribal court. Survivors appealed.

*Holding: The Court of Appeals held that railroad demonstrated probable success on merits of its claim that tribal jurisdiction was lacking.
Affirmed.

Hoopa Valley Indian Tribe v. Ryan
415 F.3d 986
Docket No. 03-16940
United States Court of Appeals, Ninth Cir., July 8, 2005

Subjects: Trinity River (Calif.); Hoopa Valley Tribe, California; Salmon; Steelhead (Fish); Fishes -- Conservation; United States. Indian Self-Determination and Education Assistance Act; Hoopa Valley Tribe, California -- Finance.

*Synopsis: Indian tribe brought action to compel Bureau of Reclamation to provide funding, under mandatory contracting provisions of the Indian Self-Determination and Education Assistance Act (ISDEAA), to implement projects aimed at restoration of salmon and steelhead populations in Trinity River basin. Parties cross-moved for summary judgment. The United States District Court for the Northern District of California, Samuel Conti, J., entered judgment for Bureau. Tribe appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that restoration programs were not eligible for mandatory contracting under ISDEAA.
Affirmed.

Northern Arapaho Tribe v. State of Wyoming
429 F.3d 934
Docket Nos. 02-8026, 02-8031
United States Court of Appeals, Tenth Cir., July 8, 2005

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: (from the opinion) Having received the parties' briefs and heard their oral arguments, we determine that our order granting en banc consideration of this case was improvidently issued for the reasons set out below. We, therefore, vacate our order granting rehearing en banc. The Northern Arapaho Tribe brought an action seeking a declaration that the State of Wyoming failed to negotiate in good faith with the Tribe in violation of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq. Partially granting the Tribe's motion for judgment on the pleadings, the district court held that Wyoming failed to negotiate in good faith with regard to calcutta and parimutuel wagering and ordered the parties to complete a compact within sixty days. The court further held that casino-style gaming and slot machine wagering were against Wyoming public policy and thus not subject to negotiation. Both parties appealed. A panel of this court held that the State was required to negotiate a compact with the Tribe concerning calcutta and parimutuel wagering as well as the full gamut of casino-style Class III gambling because Wyoming permits and regulates "such gaming" for social and non-profit purposes pursuant to WYO. STAT. § 6-7-101(a)(iii)(E).

*Holding: not yet available

Narragansett Indian Tribe v. State of Rhode Island
415 F.3d 134
Docket No. 04-1155
United States Court of Appeals, First Cir., July 8, 2005

Subjects: Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Jurisdiction -- United States; District courts -- United States; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations.

*Synopsis: (from the opinion) A majority of the judges of this court in active service have voted to rehear en banc the questions of whether, to what extent, and in what manner Rhode Island may enforce its civil and criminal laws with respect to the operation of the Smoke Shop by the Narragansett Indian Tribe. Consequently, Parts II(D)(3) and (4) of the opinion of the panel in this case, Narragansett Indian Tribe v.. State of R.I., 407 F.3d 450, 463-66 (1st Cir.2005), are withdrawn, as are any other portions of the panel opinion that involve the enforcement questions. The judgment of this court dated May 12, 2005, is vacated.

*Holding: not yet available

June

Cayuga Indian Nation of New York v. Pataki
413 F.3d 266
Docket Nos. 02-6111(L), 02-6130(CON), 02-6140(CON), 02-6200(CON), 02-6211(CON), 02- 6219(CON), 02-6301(CON), 02-6131(XAP), 02-6151(XAP)
United States Court of Appeals, Second Cir., June 28, 2005

Subjects: Pataki, George E., 1945-; Cayuga Nation of New York; Eviction -- Cayuga Nation of New York; Trespass; New York (State).

*Synopsis: State, county, and private defendants appealed from a judgment of the United States District Court for the Northern District of New York, 165 F.Supp.2d 266, Neil P. McCurn, Senior District Judge, awarding tribal plaintiffs approximately $248 million in damages and prejudgment interest against the State for the late-eighteenth-century dispossession of their land, in violation of the Nonintercourse Act. Tribal plaintiffs cross-appealed from the award of prejudgment interest and the denial of the remedy of ejectment.

*Holding: The Court of Appeals, Cabranes, Circuit Judge, held that:
(1) tribe's possessory land claim sounding in ejectment was barred by laches;
(2) no basis existed for finding constructive possession or immediate right of possession as could support claim for trespass damages; and
(3) United States, as plaintiff-intervenor in Indian tribe's suit, was subject to defense of laches.
Reversed.

United States v. Nakai
413 F.3d 1019
Docket No. 03-10485
United States Court of Appeals, Ninth Cir., June 27, 2005

Subjects: Indian jurors; Fair trial; United States. Federal Bureau of Investigation; Trials (Murder); Testimony; Evidence (Hearsay).

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Frederick J. Martone, J., for premeditated first degree murder, robbery, felony murder-kidnapping, carjacking resulting in death, felony murder-robbery, and use of a firearm during the commission of crimes of violence, committed in an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Noonan, Circuit Judge, held that:
(1) fact that only 6.1 percent of jurors who reported for jury trial were Native American did not deprive defendant of a fair representation of the community;
(2) FBI agent's purported testimony about statements by defendant to law enforcement investigators would be hearsay;
(3) submission of conspiracy jury instruction was harmless error; and
(4) evidence was sufficient to prove that shooting victim was alive before defendant shot him.
Affirmed.

United States v. Bedonie
413 F.3d 1126
Docket No. 04-4103
United States Court of Appeals, Tenth Cir., June 27, 2005

Subjects: Trials (Manslaughter); Manslaughter -- Navajo Nation, Arizona, New Mexico & Utah; Criminal actions arising in Indian Country (U.S.) -- Navajo Nation, Arizona, New Mexico & Utah; Drunk driving -- Navajo Nation, Arizona, New Mexico & Utah; Resitution.

*Synopsis: Following imposition of sentence, including order of restitution, in conviction for involuntary manslaughter within Indian Country, the District Court sua sponte revoked and amended its judgment, and made a new restitution order, which was held in abeyance pending consideration of additional evidence. Following an evidentiary hearing, the United States District Court for the District of Utah, Paul G. Cassell, J., 303 F.Supp.2d 1259, ordered defendant to pay restitution for the victim's lost income. Defendant appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that:
(1) District Court was not authorized, under the Mandatory Victims Restitution Act (MVRA), to sua sponte re-open restitution order, and
(2) District Court lacked jurisdiction to re-open restitution order, where court did not commit the requisite clear error in failing to award lost-income restitution at sentencing.
Reversed and remanded with instructions.

First American Kickapoo Operations, LLC v. Multimedia Games, Inc.
412 F.3d 1166
Docket No. 03-6283
United States Court of Appeals, Tenth Cir., June 22, 2005

Subjects: United States. Indian Gaming Regulatory Act; Kickapoo Tribe of Oklahoma; Indian gaming -- Class II -- Kickapoo Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; Contracts -- Kickapoo Tribe of Oklahoma; Contracts -- First American Kickapoo Operations (Nev.); Casinos -- Design and construction; National Indian Gaming Commission (U.S.); Contracts -- Multimedia Games (Tex.).

*Synopsis: Former casino operator sued replacement operator for, inter alia, tortious interference with contract. The United States District Court for the Western District of Oklahoma, Stephen P. Friot, J., granted summary judgment for replacement operator, and former operator appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) operating lease was void, as unapproved management contract;
(2) tortious interference claim required existence of valid underlying contract; and
(3) contract was not severable into valid and invalid provisions.
Affirmed.

Shobar v. State of California
134 Fed.Appx. 184
Docket No. 03-56995, D.C. No. CV-03-04530-R
Petition for Certiorari Filed (November 30, 2005)
United States Court of Appeals, Ninth Cir., June 14, 2005

Subjects: Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Indian gaming -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Gambling on Indian reservations -- California; Intergovernmental agreements -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Intergovernmental agreements -- California; Concerned Citizens of Santa Ynez Valley (Calif.); Parties to actions; United States. Indian Gaming Regulatory Act; California; Federal question; Jurisdiction -- United States.

*Synopsis: (from the opinion) James Shobar, Cathy Hodges, Kelly Gore, and Concerned Citizens of Santa Ynez Valley appeal from the district court's order dismissing their case for failure to state a claim and failure to join an indispensable party. Because appellants' claims raise questions of federal law under the Indian Gaming Regulatory Act (IGRA), we reject appellants' argument that the district court lacked federal question jurisdiction.

*Holding: not yet available

United States v. Plumman
409 F.3d 919
Docket No. 04-2206
United States Court of Appeals, Eighth Cir., June 3, 2005

Subjects: Sex crimes; United States. Federal Bureau of Investigation; United States. Constitution. 6th Amendment; Right to counsel; Indian jurors.

*Synopsis: Native American defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., for the sexual abuse of two minor females, and he appealed.

*Holding: The Court of Appeals, Riley, Circuit Judge, held that:
(1) defendant was not in custody at time that he gave incriminating statements to FBI agents;
(2) noncustodial incriminating statements which defendant made to FBI agents were voluntary;
(3) defendant's Sixth Amendment right to counsel was not violated when FBI agents interviewed him the same day that tribal criminal charges were filed against him;
(4) prosecutor articulated multiple, non-discriminatory reasons for exercising peremptory challenges against Native American prospective jurors; and
(5) Booker error in applying the Sentencing Guidelines as mandatory warranted vacatur of defendant's mandatory life sentences.
Convictions affirmed; sentences vacated and remanded.

Skokomish Indian Tribe v. United States
410 F.3d 506
Docket Nos. 01-35028, 01-35845
Petition for Certiorari Filed (October 3, 2005)
United States Court of Appeals, Ninth Cir., June 3, 2005

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; United States. Federal Power Act; Law -- Washington (State); Tacoma (Wash.); Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Treaties; Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams.

*Synopsis: Indian tribe brought action alleging that federally-licensed hydroelectric power project violated tribe's rights under treaty, Federal Power Act (FPA), and state law. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., 161 F.Supp.2d 1178, dismissed United States and granted summary judgment for city. Tribe appealed. The Court of Appeals, 332 F.3d 551, affirmed in part and vacated and remanded in part. Petition for rehearing en banc was granted.

*Holding: The Court of Appeals, Kozinski, Circuit Judge, held that:
(1) complaint failed to state tort claim against United States;
(2) United States was exempt from any liability, under Federal Power Act (FPA);
(3) tribe could not recover monetary damages for city's alleged violations of U.S.-tribal treaty;
(4) tribe was not "person" entitled to bring 1983 action;
(5) tribe's state-law claims against city were time-barred;
(6) FPA did not create federal private right of action; and
(7) denial of recusal motion was not abuse of discretion.
Affirmed in part and transferred to Court of Federal Claims in part.

Ashley v. United States Department of Interior
408 F.3d 997
Docket No. 04-2066
United States Court of Appeals, Eighth Cir., June 1, 2005

Subjects: Tribal trust funds -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Standing to sue -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota.

*Synopsis: Members of Indian tribe sued government and private parties, alleging misuse of tribal trust fund money. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., dismissed claims, and appeal was taken.

*Holding: The Court of Appeals, Morris Shepard Arnold, Circuit Judge, held that plaintiffs lacked standing to sue, as judgment in their favor was not likely to remedy complained-of harms.
Affirmed.

May

United States v. Jarvison
409 F.3d 1221
Docket No. 04-2093
United States Court of Appeals, Tenth Cir., May 23, 2005.

Subjects: Testimony; Law -- Navajo Nation, Arizona, New Mexico & Utah; Sex crimes; Child abuse; Marriage.

*Synopsis: During pretrial stages of child sex abuse prosecution, the United States District Court for the District of New Mexico, C. LeRoy Hansen, J., denied government's motion to compel testimony of witness based on determination that she was validly married to defendant and thus entitled to assert spousal testimonial privilege. Government took interlocutory appeal.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Navajo law governed validity of marriage between two tribal members who lived on reservation;
(2) 1953 marriage in unlicensed traditional ceremony was valid;
(3) husband's subsequent relationship did not invalidate marriage; and
(4) court would not recognize exception to spousal testimonial privilege in child abuse cases.
Affirmed.

United States v. Roy
408 F.3d 484
Docket No. 04-2310
United States Court of Appeals, Eighth Cir., May 20, 2005.

Subjects: Flandreau Santee Sioux Tribal Police Department; Indian reservation police -- Assault and battery -- Flandreau Santee Sioux Tribe of South Dakota; Police -- Defined -- Flandreau Santee Sioux Tribe of South Dakota; Evidence (Law).

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota of assault with a dangerous weapon, assault resulting in serious bodily injury, and assaulting a federal officer. Defendant appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) officer with city police department was also acting as member of tribal police department when he was assaulted;
(2) indictment charging defendant with assaulting a federal officer causing serious bodily injury and assaulting federal officer with deadly and dangerous weapon was multiplicitous;
(3) probative value of videotape of defendant's booking to show defendant's state of mind at time of incident outweighed potential prejudice to defendant; and
(4) application of five-level enhancement for serious injury was not unreasonable.
Affirmed in part and reversed in part.

Narragansett Indian Tribe of Rhode Island v. State of Rhode Island
407 F.3d 450
Docket No. 04-1155
United States Court of Appeals, First Cir., May 12, 2005.

*Synopsis: Federally recognized Indian tribe brought action for declaratory judgment against State of Rhode Island, seeking declaratory judgment that State could not enforce its cigarette sales and excise tax scheme against Tribe with respect to smoke shop located on tribal settlement lands. State brought action in state court against Tribe, seeking declaratory judgment that Tribe's failure to comply with state excise, retail, and sales taxes was unlawful. Tribe removed State's action to federal court. The United States District Court for the District of Rhode Island, William E. Smith, J., 296 F.Supp.2d 153, remanded state case and granted summary judgment to state in federal case brought by Tribe. Tribe appealed.

*Holding:The Court of Appeals, Torruella, Circuit Judge, held that:
(1) federal court lacked subject matter jurisdiction over state's complaint;
(2) legal incidence of the cigarette tax fell on the consumer of cigarettes, not the tribal distributor of the cigarettes;
(3) Settlement Act did not completely abrogate Indian tribe's sovereign immunity on the settlement lands; and
(4) state violated Indian Tribe's sovereign rights when it enforced the criminal provisions of its cigarette tax laws on settlement lands.
Affirmed in part, reversed in part, and remanded.

Brunskill v. Boyd
2005 WL 1208632
Docket No. 04-15152, D.C. Docket No. 02-00403-CV-4-RH-WCS
United States Court of Appeals, Eleventh Cir., May 10, 2005

Subjects: United States. Religious Freedom Restoration Act of 1993; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indian prisoners; Long hair; United States. Constitution. 1st Amendment; Freedom of religion.

*Synopsis: State prisoner, a Native American who practiced the Tobacco Indian religion, brought civil rights action under § 1983 against the Secretary of the Florida Department of Corrections (FDOC) and head chaplain of the FDOC, alleging violations of the First Amendment Free Exercise and Establishment Clauses, the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Equal Protection Clause of the Fourteenth Amendment. The United States District Court for the Northern District of Florida, No. 02-00403-CV-4-RH-WCS, granted summary judgment in favor of defendants, and plaintiff appealed.

*Holding: The Court of Appeals held that:
(1) policies of the FDOC which required inmate to cut his hair and denied him ability to possess certain materials used for practice of his religion did not violate First Amendment or the RFRA;
(2) FDOC's policies did not violate the Establishment Clause;
(3) FDOC's policies did not violate RLUIPA;
(4) inmate failed to show that other similarly situated prisoners were treated more favorably, as would support his Equal Protection claims;
(5) prisoner failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA) to bring suit under federal law; and
(6) District Court was within its discretion in declining to exercise supplemental jurisdiction over state prisoner's state law claims.
Affirmed.

Shawnee Tribe v. United Sates
405 F.3d 1121
Docket No. 04-3256
United States Court of Appeals, Tenth Cir., May 3, 2005.

Subjects: United States. General Services Administration; Sunflower Army Ammunition Plant (Kan.); Indian land transfers -- Shawnee Tribe, Oklahoma; Real property -- Kansas; United States. Federal Property and Administrative Services Act of 1940; Jurisdiction -- United States; Indian termination policy; Tribes -- Termination.

*Synopsis: Indian tribe sought judicial review of General Service Administration (GSA) finding that "excess property," available for disposal under Federal Property and Administrative Services Act, was not within boundaries of reservation. The United States District Court for the District of Kansas, Thomas G. Van Bebber, Senior District Judge, 311 F.Supp.2d 1181, granted summary judgment for government, and tribe appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that government's sale of property under new statutory authority rendered appeal moot.
Dismissed.

Kaw Nation v. Norton
405 F.3d 1317
Docket No. 04-1029
United States Court of Appeals, Federal Cir., May 2, 2005.

Subjects: Retrocession of jurisdiction -- Kaw Nation, Oklahoma; Tribal courts -- Kaw Nation, Oklahoma; United States. Dept. of the Interior. Board of Contract Appeals.

*Synopsis: United States appealed decision of Department of Interior Board of Contract Appeals, Parrette, Administrative Judge, 2003 WL 21779057, which nullified government's acceptance of Indian tribe's attempted retrocession of its tribal court system.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that:
(1) appeal was moot, and
(2) vacatur of decision was warranted.
Vacated.

April

The Rincon San Luiseño Band of Misison Indians v. Norton
2005 WL 957517
Docket No. 03-56893
D.C. No. CV-02-00253-BTM
United States Court of Appeals, Ninth Cir., April 27, 2005

Subjects: Rincon Band of Luiseno Mission Indians of the Rincon Reservation, California -- Membership; United States. Dept. of the Interior; United States. Bureau of Indian Affairs.

*Synopsis: Action was brought against Secretary of the Interior and officials of the Bureau of Indian Affairs (BIA), alleging that individuals who were not eligible for membership in Indian band were enrolled members because of improper actions and omissions of BIA officials. The United States District Court for the Southern District of California, Barry T. Moskowitz, J., vacated judgment entered on basis of parties' settlement and dismissed suit, finding that Band was a necessary and indispensable party. Plaintiffs appealed.

*Holding: The Court of Appeals held that district court had no authority to order any relief that would impermissibly impair Indian band's sovereign right to determine its membership and, thus, plaintiffs did not have standing to maintain action.
Affirmed.

United States v. Pemberton
405 F.3d 656
Docket No. 03-1302
United States Court of Appeals, Eighth Cir., April 22, 2005.

Subjects: Assault and battery -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota; Firearms; Indians of North America -- Legal status, laws, etc.; Status (Law) -- United States.

*Synopsis: Defendant was convicted, on his guilty plea, of being Indian who, in Indian country, had committed assault with dangerous weapon by discharging firearm at other parties by the United States District Court for the District of Minnesota, and he appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that:
(1) dispute regarding defendant's status as Indian, while relevant to matter of proof at trial, did not deprive district court of jurisdiction;
(2) facts admitted by defendant, that he identified himself as an Indian, that he was born of Indian parents, that he lived for long periods of time on reservation and attended grade and high school on reservation, and that he had child and lived together with mother and child on reservation, were sufficient to establish his status as Indian; and
(3) defendant who admitted that victims had sustained permanent, life-threatening or serious bodily injuries was bound by his admission and could not successfully challenge four-level enhancement imposed based on nature of victims' injuries.
Affirmed.

Cherokee Nation of Oklahoma v. Leavitt
404 F.3d 1263
Docket No. 01-7106
United States Court of Appeals, Tenth Cir., April 20, 2005.

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

*Synopsis: (from the opinion) This matter is before us upon remand from the United States Supreme Court. The Court reversed our decision, Cherokee Nation v. Thompson, 311 F.3d 1054 (10th Cir. 2002), rev'd, 125 S. Ct. 1172 (2005), which affirmed the lower court's decision, Cherokee Nation v. United States, 190 F. Supp. 2d 1248 (E.D. Okla. 2001), aff'd, 311 F.3d 1054 (2002), rev'd, 125 S. Ct. 1172 (2005), and remanded the case to us for further proceedings consistent with its opinion.

*Holding: not yet available

United States v. Schmidt
403 F.3d 1009
Docket No. 04-2724
United States Court of Appeals, Eighth Cir., April 13, 2005.

Subjects: Rosebud Sioux Tribal Police; Indian reservation police -- Assault and battery -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Suppression of evidence; Warrants (Law); Searches and seizures -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Police pursuit driving -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.

*Synopsis: Following his indictment on various charges relating to assault of a federal officer, defendant filed motion to suppress all evidence obtained after tribal police officer entered his home without a warrant. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., granted the motion, and the government appealed.

*Holding: The Court of Appeals, Morris Sheppard Arnold, Circuit Judge, held that:
(1) officer's warrantless entry into defendant's home was justified by exigent circumstances, namely, the hot pursuit of a fleeing suspect, and
(2) defendant's resistance inside the house provided an independent ground for his arrest that thereafter furnished an independent justification for officer's presence in the house.
Reversed and remanded.

Aroostook Band of Micmacs v. Ryan
404 F.3d 48
Docket No. 04-1517
United States Court of Appeals, First Cir., April 13, 2005.

Subjects: Sovereignty -- Aroostook Band of Micmac Indians of Maine; Sovereign immunity -- Aroostook Band of Micmac Indians of Maine; Maine Human Rights Commission; Maine. Maine Human Rights Act; Maine. Maine Whistle Blower Protection Act; Maine. Maine Micmac Settlement Act; Jurisdiction -- Maine; Jurisdiction -- United States; Employees -- Dismissal of.

*Synopsis: Indian tribe challenged state's authority to enforce state employment discrimination laws against it. The United States District Court for the District of Maine, Margaret J. Kravchuk, United States Magistrate Judge, 307 F.Supp.2d 95, dismissed for lack of subject matter jurisdiction, and tribe appealed.

*Holding: The Court of Appeals, Lipez, Circuit Judge, held that:
(1) court had federal question jurisdiction over tribe's claim that state's conduct violated tribe's federal rights;
(2) tribe's challenge to state's attempted application of Title VII to tribe was not rendered moot by state's concession that tribe was exempt; and
(3) Pullman abstention was not warranted.
Reversed in part, vacated in part, and remanded.

Related News Stories: Micmacs' case sent to federal court (Bangor Daily News) 4/15/05

State of North Dakota v. Centers for Medicare and Medicaid Services
403 F.3d 537
Docket No. 03-3954
United States Court of Appeals, Eighth Circuit, April 6, 2005.

Subjects: North Dakota; South Dakota; Centers for Medicare & Medicaid Services (U.S.); Indians of North America -- Medical care; Medical care, Cost of.

*Synopsis: In separate actions, North and South Dakota challenged United States Department of Health and Human Services (HHS) denial of full reimbursement for Medicaid services provided to Native Americans by non-Indian Health Service facilities. The United States District Court for the District of North Dakota, Daniel Hovland, Chief Judge, 286 F.Supp.2d 1080, and the United States District Court for the District of South Dakota, Kornmann, J., 335 F.Supp.2d 999, granted summary judgments for states. Appeals were consolidated.

*Holding: The Court of Appeals, Morris Sheppard Arnold, Circuit Judge, held that full reimbursement was not available where services were provided by non-Indian Health Service facilities.
Reversed and remanded.

March

Prairie Band Potawatomi Nation v. Wagnon
2005 WL 681785
Docket No. 03-3322
United States Court of Appeals, Tenth Cir., March 25, 2005.

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Synopsis: Indian tribe sought order requiring State officials to grant recognition to motor vehicle registrations and titles issued by tribe. The United States District Court for the District of Kansas, 276 F.Supp.2d.1168, Robinson, J., granted summary judgment for tribe. State appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that Kansas officials were properly enjoined from refusing to recognize tribe's motor vehicle registrations and titles and enforcing State's own requirements on vehicles registered by tribe.
Affirmed.

Related News Stories: Tribal license plates are valid, court rules (Topeka-Capital Journal) 3/26/05.

Equal Employment Opportunity Commission v. Peabody Western Coal Company
400 F.3d 774
Docket No. 02-17305
Petition for Certiorari Filed (September 15, 2005)
United States Court of Appeals, Ninth Cir., March 10, 2005.

Subjects: United States. Equal Employment Opportunity Commission; United States. Civil Rights Act of 1964; Discrimination in employment; Indian preference in hiring; Navajo Nation, Arizona, New Mexico & Utah -- Members; Peabody Western Coal Company.

*Synopsis: Equal Employment Opportunity Commission (EEOC) filed Title VII complaint against coal company, claiming it engaged in prohibited national