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September
Thomas v. Rhode Island
2008 WL 4335102
No. 07-1985
United States Court of Appeals, First Circuit, September 24, 2008
Subjects: Arrest; Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations; Searches and seizures -- Rhode Island.
*Synopsis: Tribe members arrested on tribal grounds brought § 1983 action against police officers for wrongful arrest. Officers moved to dismiss for failure to state a claim, and members requested leave to amend complaint. The United States District Court for the District of Rhode Island, William E. Smith, J., 449 F.3d 16, dismissed action.
*Holding: The Court of Appeals, Lipez, Circuit Judge, held that: (1) members waived probable cause argument on appeal, and (2) members were not entitled to leave to amend complaint. Affirmed.
Seneca v. United South and Eastern Tribes
2008 WL 4216874
No.08-11012
United States Court of Appeals, Eleventh Circuit, September 16, 2008
Subjects: United South and Eastern Tribes; Public contracts -- United States; United States. Dept. of Health and Human Services; Grievance arbitration -- United States; United States. Federal Tort Claims Act; United States. Federal Employees Liability Reform and Tort Compensation Act of 1988.
*Synopsis: (from the opinion) When an Indian tribe or tribal organization operates pursuant to a self-determination contract and its employees operate within the scope of their employment in carrying out such a contract or agreement, the organization is considered a part of the Federal government and its employees are considered Fis sued for a wrongful or negligent act, the Federal Employees Lederal employees for the purposes of the FTCA. See 25 U.S.C. § 450f. “When a federal employee iability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out of which the claim arose.’ “ Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-420 (1995) (quoting 28 U.S.C. § 2679(d)(1)). After certification, the named defendant employee is dismissed from the action and the United States is substituted as the defendant; the case is then governed by the FTCA.
*Holding: not yet available
Oglala Sioux Tribe v. C & W Enterprises, Inc
2008 WL 4093007
No. 07-3269
United States Court of Appeals, Eighth Circuit, September 5, 2008
Subjects: Mining leases -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Roads -- Contracts -- -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Sand and gravel plants -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Arbitration (Administrative law).
*Synopsis: (from the opinion) C & W Enterprises, Inc., appeals from a United States District Court for the District of South Dakota order permanently enjoining the Second Judicial Circuit Court of South Dakota (“state court”) from confirming an arbitration award against the Oglala Sioux Tribe for lack of subject matter jurisdiction. We vacate the permanent injunction, and remand for further proceedings.
*Holding: not yet available
Pelt v. Utah
2008 WL 4061052
No. 06-4046, 06-4164
United States Court of Appeals, Tenth Circuit, September 3, 2008
Subjects: Navajo Indians -- San Juan County (Utah); Utah; Class actions (Civil procedure); Trusts and trustees -- Accounting -- Utah; Oil and gas leases -- Royalties.
*Synopsis: (from the opinion) This appeal involves an oil and gas royalty fund that the State of Utah is required to administer for the benefit of members of the Navajo Nation living in San Juan County, Utah. In this class action, beneficiaries of the Navajo Trust Fund seek a fiduciary accounting of trust fund activities from Utah. In proceedings below, Utah unsuccessfully argued that all or a portion of the Beneficiaries' claim was precluded by three prior cases to which the Beneficiaries were not parties. On appeal, Utah argues that Beneficiaries should be precluded because they were either "adequately" or "virtually" represented by parties in the three prior cases.
*Holding: The Court of Appeals, Robinson, Circuit Judge, held that:(1) beneficiaries were not bound by the judgments in previous class actions to which the beneficiaries were not parties since their interests in prior cases, which were brought on behalf of other fund beneficiaries, were not adequately represented, and(2) beneficiaries were not bound by the judgment in previous non-class action.Affirmed and remanded.
August
Marceau v. Blackfeet Housing Authority
2008 WL 3876575
No. 04-35210
United States Court of Appeals, Ninth Circuit, August 22, 2008
Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Exhaustion of tribal remedies; Trusts and trustees -- United States; United States. Administrative Procedure Act.
*Synopsis: (from the opinion) Plaintiffs are members of the Blackfeet Indian Tribe who bought or leased houses built under the auspices of the United States Department of Housing and Urban Development (“HUD”). The houses had wooden foundations. The wood had been pressure-treated with toxic chemicals. Plaintiffs allege that the use of wooden foundations caused their houses to deteriorate and that the chemicals in the wood have caused, and continue to cause, health problems for those who live in the houses. On behalf of a class of persons similarly situated, Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet Tribal Housing Authority and its board members (“the Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b)(6). On rehearing, we hold: (1) Plaintiffs must exhaust their tribal court remedies before bringing their claim against the Housing Authority; (2) the government did not undertake a trust responsibility toward Plaintiffs to construct houses or maintain or repair houses; and (3) Plaintiffs alleged sufficient facts to state claims against HUD under the Administrative Procedure Act (“APA”). We readopt our earlier opinion with respect to Plaintiff's breach of contract claims. Accordingly, we affirm the district court's dismissal of the case except as to Plaintiffs' claims against the Housing Authority and its board members and Plaintiffs' claims under the APA. As to those claims, we reverse and remand for further proceedings.
*Holding: On denial of petition for rehearing, the Court of Appeals, Graber, Circuit Judge, held that: (1) plaintiffs were required to exhaust tribal court remedies before bringing claims against Housing Authority; (2) HUD did not, by funding projects of tribal housing authority, assume any trust responsibility toward plaintiffs; (3) remand was required for factual development on issue of whether HUD's wood foundation requirements violated Administrative Procedure Act (APA);(4) request for injunction ordering HUD to rebuild or repair homes was not a request for "money damages" precluding APA claim, even if money damages could substitute for injunction; and(5) readopting in part opinion at 455 F.3d 974, District Court lacked jurisdiction under the Little Tucker Act over breach of contract action. Affirmed in part, reversed in part, and remanded.
Navajo Nation v. U.S. Forest Service
535 F.3d 1058
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit, August 8, 2008
Subjects: United States. Forest Service;
Arizona Snow Bowl (Ariz.) -- Remodeling; Rites and ceremonies
-- Navajo Nation, Arizona, New Mexico & Utah; Coconino National
Forest (Ariz.); Sacred sites -- Navajo Nation, Arizona, New Mexico & Utah;
Sewage.
*Synopsis: Numerous Indian tribes, their members, and environmental organization brought action challenging the Forest Service's decision to authorize proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by tribes. Following bench trial, the United States District Court for the District of Arizona, Paul G. Rosenblatt, J., 408 F.Supp.2d 866, held that the proposed use did not violate the Religious Freedom Restoration Act (RFRA) and granted Forest Service's motion for summary judgment on claims brought under National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Appeal was taken. The Court of Appeals, W. Fletcher, Circuit Judge, 479 F.3d 1024, affirmed in part, reversed in part and remanded, and application for rehearing en banc was granted.
*Holding: The Court of Appeals, Bea, Circuit Judge, held that:
(1) proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by some Indian tribes would not “substantially burden” free exercise of religion by tribal members, within meaning of the RFRA;
(2) Final Environmental Impact Statement (FEIS) prepared by Forest Service satisfied requirements of NEPA; and
(3) in preparing FEIS, Forest Service's consultation process concerning effects on historic properties to which Indian tribes attached religious and cultural significance was substantively and procedurally adequate under the NHPA.
Affirmed.
Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
536 F.3d 1034
No. 06-16145
United States Court of Appeals, Ninth Circuit, August 8, 2008
Subjects: Cachil DeHe Band of Wintun
Indians of the Colusa Indian Community of the Colusa Rancheria,
California; Indian gaming -- Cachil DeHe Band of Wintun Indians
of the Colusa Indian Community of the Colusa Rancheria, California;
Gambling on Indian reservations -- California; Intergovernmental
agreements - Indian gaming.
*Synopsis: Indian tribe brought suit against California, Governor, and Gambling Control Commission, asserting claim for breach of tribal-state gaming compact, entered under Indian Gaming Regulatory Act (IGRA), and seeking declaratory and injunctive relief regarding Commission's interpretation of compact and unilateral administration of licensing for electronic gaming devices. The United States District Court for the Eastern District of California, Frank C. Damrell, J., 2006 WL 1328267, granted California's motion for judgment on pleadings, after determining that other Indian tribes were required parties but had sovereign immunity. Tribe appealed.
*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) absent tribes were not required parties for breach of compact claim regarding limit on number of licenses;
(2) absent tribes were not required parties for breach of compact claim regarding fourth-tier placement in license draw, except as related to existing licenses;
(3) absent tribes were not required parties for breach of compact claim regarding refund of license fee; and
(4) absent tribes were not required parties for breach of compact claim regarding Commission's unilateral administration of licensing.
Affirmed in part, reversed in part, and remanded.
July
Vann v. Kempthorne
534 F.3d 741
No. 07-5024
United States Court of Appeals, District of Columbia Circuit, July 29, 2008
Subjects: Contested elections -- Cherokee Nation, Oklahoma; Suffrage -- Cherokee Nation, Oklahoma; Sovereign immunity -- Cherokee Nation, Oklahoma; Freedmen; United States. Administrative Procedure Act; United States. Indian Civil Rights Act.
*Synopsis: Descendants of freed slaves of Cherokee Nation sued Secretary of Department of Interior (DOI), tribe, tribal chief, and other tribal officers, under Administrative Procedure Act (APA), seeking injunctive and declaratory relief regarding disenfranchisement from tribal elections allegedly in violation of Thirteenth and Fifteenth Amendments, Cherokee constitution, treaty, Principal Chiefs Act, and Indian Civil Rights Act (ICRA). The United States District Court for the District of Columbia denied tribe's motion to dismiss. Defendants appealed.
*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) tribe was protected by sovereign immunity;
(2) suit was not foreclosed against tribal officers under Ex parte Young doctrine;
(3) suit was not foreclosed against tribal officers under Seminole Tribe exception to Ex parte Young doctrine; and
(4) suit was not foreclosed against tribal officers by tribe's special sovereignty interests.
Reversed in part and remanded.
Fowler v. Crawford
534 F.3d 931
No. 07-2946
United States Court of Appeals, Eighth Circuit, July 25, 2008
Subjects: Freedom
of religion; Indians of North America -- Rites and ceremonies;
Sweat lodges; United States. Religious Land Use and Institutionalized
Persons Act of 2000; Missouri. Dept. of Corrections; Jefferson
City Correctional Center (Mo.).
*Synopsis: State prisoner brought action against prison officials, alleging that officials' refusal to grant him access to a sweat lodge in which to practice his Native American faith violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., 2007 WL 2137803, granted summary judgment to prison officials. Prisoner appealed.
*Holding: The Court of Appeals, Baldock, Circuit Judge, held that:
(1) prohibition on sweat lodge was in furtherance of compelling governmental interest, and
(2) ban was the least restrictive means by which to further compelling interest.
Affirmed.
Roberts v. Hagener
2008 WL 2787558
No. 07-35197
United States Court of Appeals, Ninth Circuit, July 18, 2008
Subjects: Equality before the law
-- United States; United States. Constitution. 14th Amendment;
Jurisdiction -- United States; Game laws -- Montana; Hunting
-- On Indian reservations -- State supervision.
*Synopsis: (from the opinion) Randy Roberts appeals the district court's grant of summary judgment in favor of the State of Montana and numerous Montana government officials (collectively “Defendants” or “Montana”) in his suit alleging that a Montana big game hunting regulation violates the Equal Protection Clause of the Fourteenth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
*Holding: not yet available
Klamath Irrigation District v. United States
532 F.3d 1376
No. 2007-5115
United States Court of Appeals, Federal Circuit, July 16, 2008
Subjects: Water rights; Irrigation; Breach of contract -- United States; Water -- Compensation for taking; Right of property; Law -- Oregon; Klamath River (Or. and Calif.).
*Synopsis: Irrigation districts and agricultural landowners brought consolidated suits against United States, claiming that Bureau of Reclamation's temporary reductions of irrigation water breached contracts for supply of irrigation water from Klamath River Basin reclamation project, breached interstate compact, and violated Fifth Amendment by uncompensated taking of property. The United States Court of Federal Claims, Francis M. Allegra, J., 75 Fed.Cl. 677, granted government summary judgment. Appeal was taken.
*Holding: The Court of Appeals, Schall, Circuit Judge, held that questions regarding Oregon property law would be certified to Oregon Supreme Court.
Certified questions.
Barber v. Simpson
2008 WL 2705638
No. 06-16880
United States Court of Appeals, Ninth Circuit, July 11, 2008
Subjects: Indian allotments -- Washoe
Tribe of Nevada & California (Carson Colony, Dresslerville Colony,
Woodfords Community, Stewart Community, & Washoe Ranches); Indian
title -- Washoe Tribe of Nevada & California (Carson Colony,
Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe
Ranches); Land tenure -- Members -- Washoe Tribe of Nevada & California
(Carson Colony, Dresslerville Colony, Woodfords Community, Stewart
Community, & Washoe Ranches); Jurisdiction -- Washoe Tribe of
Nevada & California (Carson Colony, Dresslerville Colony, Woodfords
Community, Stewart Community, & Washoe Ranches); Eviction.
*Synopsis: (from the opinion) Wesley Barber appeals a judgment of the district court denying declaratory and injunctive relief from an eviction order entered in the Washoe Tribal Court, evicting him from a plot of land within Washoe Indian Country. Both Barber and appellees Simpson and Turner, the plaintiffs in the tribal court eviction action, are members of the Washoe Tribe. Barber argues that the tribal court lacked jurisdiction to order his eviction because 1) the United States was an indispensable but unjoined party in the action against him, and 2) 28 U.S.C. § 1346(f) gives the federal district courts exclusive original jurisdiction over quiet title actions involving property in which the United States has an interest.
*Holding: not yet available
Yankton Sioux Tribe v. U.S. Department of Health and Human Services
533 F.3d 634
No. 07-3096
United States Court of Appeals, Eighth Circuit, July 7, 2008
Subjects: Yankton Sioux Tribe of South Dakota; United States. Indian Health Service; Hospitals--Emergency services -- United States; Due process of law.
*Synopsis: Indian tribe brought action challenging decision of the United States Indian Health Service (IHS) to close an emergency room at a health care facility and convert it to an urgent care facility. The United States District Court for the District of South Dakota, 496 F.Supp.2d 1044, Lawrence L. Piersol, J., granted government's motion to dismiss, and tribe appealed.
*Holding: The Court of Appeals, Murphy, Circuit Judge, held that doctrine of res judicata barred tribe's action.
Affirmed.
June
United States v. Vasquez-Ramos
531 F.3d 987
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, June 27, 2008
Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.
*Synopsis: Defendants, two Native Americans who were not members of federally recognized Indian tribes, were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit, in violation of the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA). Defendants moved to dismiss, claiming that they used feathers during Native American religious ceremonies, and that prosecution impermissibly burdened their religious practice under the Religious Freedom Restoration Act (RFRA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.
*Holding: The Court of Appeals held that prosecution of defendants did not violate RFRA.
Affirmed.
Related News Stories: 9th Circuit won't rehear eagle feather cases (Indianz.com) 7/1/08
United States v. FMC Corporation
531 F.3d 813
No. 06-35429
United States Court of Appeals, Ninth Circuit, June 27, 2008
Subjects: Shoshone-Bannock Tribes
of the Fort Hall Reservation of Idaho; FMC Corporation; Mines
and mineral resources -- Idaho; Pollution; Environmental law
-- United States; Environmental law -- Shoshone-Bannock Tribes
of the Fort Hall Reservation of Idaho.
*Synopsis: Native American tribe sought enforcement of consent degree between mining company and United States. The United States District Court for the District of Idaho, B. Lynn Winmill, J., 2006 WL 544505, held that tribe could enforce the decree. After granting company's motion for a stay, 2006 WL 1382192, the District Court, denied company's subsequent motions for stay and for clarification, and lifted the stay previously issued. Mining company appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that tribes were not intended third-party beneficiaries to consent decree.
Vacated and remanded.
Guidiville Band of Pomo Indians v. NVG Gaming
531 F.3d 767
Nos. 05-17066, 05-17067
United States Court of Appeals, Ninth Circuit, June 26, 2008
Subjects: NGV Gaming, Ltd. (Fla.);
Upstream Point Molate, LLC. (Calif.); Harrah's Operating Company,
Inc.; Contracts - Federal supervision; Indian gaming -- Guidiville
Rancheria of California; Gambling on Indian reservations -- California;
Guidiville Rancheria of California.
*Synopsis: Casino developer sued competitors for tortious interference with contract between Indian tribe and developer, as assignee of rights and duties under contract, for development and construction of gaming facility on to-be-acquired parcel of land. After suit was consolidated with tribe's suit against developer, seeking declaratory and injunctive relief regarding allegedly invalid contract, the United States District Court for the Northern District of California, Samuel Conti, J., 2005 WL 5503031, granted tribe's motion for declaratory judgment and granted tribe and competitors summary judgment. Developer appealed.
*Holding: The Court of Appeals, Milton I. Shadur, Senior District Judge, sitting by designation, held that:
(1) tribe lacked standing for declaratory claims against developer;
(2) contract was valid without governmental approval, as required for tortious interference with contract claim; and
(3) contract did not violate Indian Gaming Regulatory Act (IGRA), as required for tortious interference with contract claim.
Vacated in part; reversed and remanded in part.
Barona Band of Mission Indians v. Yee
528 F.3d 1184
No. 06-55918
United States Court of Appeals, Ninth Circuit, June 18, 2008
Subjects: Sales tax -- California
-- Application; Casinos -- Design and construction -- Barona
Group of Capitan Grande Band of Mission Indians of the Barona
Reservation, California; Subcontractors -- Taxation.
*Synopsis: Indian tribe brought action against California State Board of Equalization (SBE), seeking declaratory relief from imposition of state sales tax on construction materials purchased by non-Indian electrical subcontractor from non-Indian vendor and delivered to Indian land pursuant to contract for $75 million casino expansion. The United States District Court for the Southern District of California, Dana M. Sabraw, J., granted tribe's motion for summary judgment, and the SBE appealed.
*Holding: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) legal incidence of sales tax fell upon subcontractor and thus tax was not per se invalid as a tax on tribe or its members;
(2) sales tax was valid under Becker preemption analysis; and
(3) Indian Gaming Regulation Act (IGRA) did not preempt sales tax.
Reversed and remanded.
May
Lobo v. Miccosukee Tribe of Indians of Florida
279 Fed.Appx. 926
No. 07-15073
United States Court of Appeals, Eleventh Circuit, May 30, 2008
Subjects: United States. Fair Labor
Standards Act of 1938 -- Application -- Tribes; Sovereign immunity
-- Miccosukee Tribe of Indians of Florida -- Officials and employees.
*Synopsis: (from the opinion) Appellants Felix Lobo and Liza Suarez appeal the dismissal of their Fair Labor Standards Act, 29 U.S.C. § 201 (“FLSA”), complaint. The district court dismissed the complaint because the Appellees, the Miccosukee Tribe and its chairman Billy Cypress, enjoy sovereign immunity. On appeal, the Appellants argue that the district court erred because the FLSA is a statute of general application that applies to Indian tribes.
*Holding: not yet available
Wopsock v. Natchees
279 Fed.Appx. 679
No. 06-4215
United States Court of Appeals, Tenth Circuit, May 23, 2008
Subjects: Due process of law -- United States; Equality before the law -- United States; Freedom of speech -- United States; United States. Indian Civil Rights Act; United States. Indian Reorganization Act; Law -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah. Business Committee -- Membership; Jurisdiction -- United States; Jurisdiction -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Tribal sovereignty -- Ute Indian Tribe of the Uintah & Ouray Reservation; Exhaustion of tribal remedies -- Ute Indian Tribe of the Uintah & Ouray Reservation.
*Synopsis: Three enrolled members of Indian tribe brought action alleging various claims arising out of a dispute over tribal leadership, including violations of the Indian Reorganization Act (IRA) and conspiracy to violate their civil rights. The United States District Court for the District of Utah dismissed all claims and denied members' motion to amend their complaint. Members appealed.
*Holding: The Court of Appeals, Michael R. Murphy, Circuit Judge, held that:
(1) members of tribe's governing body were entitled to sovereign immunity;
(2) Court lacked jurisdiction to consider claims against federal government officials; and
(3) denial of second motion to amend was not an abuse of discretion.
Western Shoshone National Council v. United States
279 Fed.Appx. 980
No. 2007-5020
United States Court of Appeals, Federal Circuit, May 22, 2008
Subjects: Quiet title actions -- Te-Moak
Tribe of Western Shoshone Indians of Nevada (Four constituent
bands: Battle Mountain Band; Elko Band; South Fork Band and Wells
Band); United States; Trusts and trustees -- Accounting -- United
States; United States. Indian Claims Commission; Tribes -- Compensation
for taking; Tribes - Treaties; Tribes - Land tenure; Jurisdiction
- United States.
*Synopsis: Governing body of the Western Shoshone Nation and Western Shoshone bands brought suit against the United States seeking declaratory judgment that judgment of the Indian Claims Commission (ICC) was not enforceable against them, or that the ICC judgment was void because of alleged due process violations. Defendant moved to dismiss. The Court of Federal Claims, Loren A. Smith, Senior Judge, 73 Fed.Cl. 59, granted the motion for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs appealed.
*Holding: The Court of Appeals, Rader, Circuit Judge, held that:
(1) motion for relief from ICC judgment on ground that judgment was void was untimely;
(2) independent action seeking relief from ICC judgment was barred by six-year statute of limitations;
(3) Treaty of Ruby Valley did not convey treaty title to any land, so as to allow prejudgment from time of taking until date of award;
(4) claims for royalties on minerals mined and extracted under the Treaty of Ruby Valley were barred by finality provision of Indian Claims Commission Act (ICCA); and
(5) claims for an accounting of proceeds from government's use of land described in Treaty of Ruby Valley and damages for alleged breach of fiduciary duty arising from alleged mismanagement of that land were barred under finality provision of ICCA.
Affirmed.
Lawrence v. Department of Interior
525 F.3d 916
No. 06-35448
United States Court of Appeals, Ninth Circuit, May 13, 2008
Subjects: Members -- Standing Rock
Sioux Tribe of North & South Dakota; United States. Bureau of
Indian Affairs -- Officials and employees; Employee fringe benefits
-- Fire fighters; Retirement planning.
*Synopsis: Indian employee of Bureau of Indian Affairs (BIA) sought review of Merit Systems Protection Board's decision, denying petition for review of Department of Interior's denial of his claim for increased retirement benefits for firefighting duties, alleging that BIA's failure to notify him of application deadline for retroactive reclassifications of firefighting service credit violated federal trust responsibility toward Indians, Indian Preference Act (IPA), and Title VII's prohibition against employment discrimination based on race. The United States District Court for the Eastern District of Washington, Edward F. Shea, J., 2006 WL 850878, granted BIA summary judgment. Employee appealed.
*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) application deadline for service credit was not waived by lack of actual notice;
(2) deadline was not waived by circumstances beyond employee's control;
(3) lack of actual notice did not violate federal trust responsibility;
(4) retroactive reclassification of firefighting service was not required by IPA; and
(5) lack of actual notice did not disparately impact Indians, under Title VII.
Affirmed.
United States v. Friday
525 F.3d 938
Briefs & Pleadings
No. 06-8093
United States Court of Appeals, Tenth Circuit, May 8, 2008
Subjects: United States. Bald and
Golden Eagle Protection Act; Members -- Arapahoe Tribe of the
Wind River Reservation, Wyoming; Bald eagles -- Protection --
United States; United States. Religious Freedom Restoration Act; Fish
and games licenses.
*Synopsis: Defendant, a member of the Northern Arapaho Tribe of Wyoming, was charged with violating Bald and Golden Eagle Protection Act after he shot bald eagle, without permit, for use in Sun Dance. Defendant responded that prosecution was precluded by Religious Freedom Restoration Act (RFRA). The United States District Court for the District of Wyoming, Downes, J., 2006 WL 3592952, dismissed information. Government appealed.
*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) both prongs of RFRA's strict scrutiny test were legal questions;
(2) Court of Appeals was required to engage in independent review of “constitutional facts”;
(3) permit process for taking eagles was not futile, such that prohibition on taking eagles would be effectively without exception, thus resulting in substantial burden on tribal religious practices in violation of RFRA;
(4) permitting process did not facially violate RFRA;
(5) Fish and Wildlife Service (FWS) was not required to engage in affirmative outreach for permitting process to be least restrictive means of preserving eagles; and
(6) any difference in government's treatment of Native Americans taking eagles for religious purposes and power companies whose power lines killed eagles did not indicate that government failed to protect eagles in least restrictive manner.
Reversed and remanded.
Related News: Stories: Man asks for appeals court review in eagle case (Casper Star-Tribune) 6/26/08
Bone Shirt v. Hazeltine
524 F.3d 863
No. 07-2145
United States Court of Appeals, Eighth Circuit, May 5, 2008
Subjects: United States. Voting Rights Act of 1965; Voting -- United States; Indians of North America; South Dakota; Apportionment (Election law); South Dakota. Legislature -- Election districts; Suffrage; Dilution.
*Synopsis: Native American voters, as prevailing parties in their suit claiming that South Dakota legislative redistricting plan violated Voting Rights Act, moved for expert witness fees, under Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (VRARA). The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, denied motion. Voters appealed.
*Holding: The Court of Appeals held that expert fees award under VRARA would have impermissible retroactive effect.
Affirmed.
April
Michigan Gambling Opposition v. Kempthorne
525 F.3d 23
No. 07-5092
United States Court of Appeals, District of Columbia Circuit, April 29, 2008
Subjects: Gambling on Indian reservations -- Michigan; Indian gaming -- Class III -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; United States. Indian Gaming Regulatory Act; Building sites; United States. National Environmental Policy Act of 1969; Environmental impact statements; Finding of No Significant Impact (FONSI); Intergovernmental agreements -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Intergovernmental agreements -- Michigan; Land into trust.
*Synopsis: Michigan non-profit corporation brought action challenging federal defendants' decision to place two parcels of land into trust for Indian band for proposed casino. The band intervened. The United States District Court for the District of Columbia, John Garrett Penn, J., 477 F.Supp.2d 1, granted summary judgment for defendants. Plaintiff appealed.
*Holding: The Court of Appeals held that:
(1) Checklist for Gaming Acquisitions Gaming-Related Acquisitions and Indian Gaming Regulatory Act (IGRA) Determinations was not binding on Department of Interior (DOI) with regard to whether environmental impact statement (EIS) was necessary in assessing impact of proposed Indian casino site on traffic;
(2) DOI was justified in finding that mitigation of traffic impact was sufficient, and that EIS was not necessary; and
(3) provision of Indian Reorganization Act (IRA) that authorized Secretary of Interior to acquire land for Indians contained intelligible principle to guide Secretary's discretion, and thus did not violate non-delegation doctrine.
Affirmed on other grounds in part.
Related News Story: Appeals court judge strikes blows against Indian rights (Indianz.com) 5/5/08
United States v. Vasquez-Ramos
522 F.3d 914
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, April 10, 2008
Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.
*Synopsis: Defendant Native Americans were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.
*Holding: The Court of Appeals held that prosecution of defendants did not violate Religious Freedom Restoration Act (RFRA).
Affirmed.
Nord v. Kelly
520 F.3d 848
No. 07-1564
United States Court of Appeals, Eighth Circuit, April 4, 2008
Subjects: Traffic accidents -- On Indian reservations -- Red Lake Band of Chippewa Indians, Minnesota; Red Lake Band of Chippewa Indians, Minnesota -- Members; Non-members of a tribe; Personal injuries -- Cases; Jurisdiction -- Red Lake Band of Chippewa Indians, Minnesota.
*Synopsis: Non-Native American driver of semi-truck, and his father, whose business owned semi-truck, brought action against member of Red Lake Band of Chippewa Indians and Red Lake Nation Tribal Court, seeking declaration that Tribal Court lacked personal jurisdiction over driver and father, who were sued by member in Tribal Court for personal injuries sustained by member in automobile accident that occurred on state highway within reservation. The United States District Court for the District of Minnesota, Schiltz, J., 474 F.Supp.2d 1088, granted summary judgment for plaintiffs. Defendants appealed.
*Holding: The Court of Appeals, Hansen, Circuit Judge, held that:
(1) Tribal Court lacked personal jurisdiction over plaintiffs;
(2) state's federally granted right-of-way to construct and maintain road over tribal lands as a public highway was valid;
(3) plaintiffs did not have consensual commercial relationships with the tribe or its members as required for first Montana exception to apply; and
(4) tribe's ability to regulate and to exercise adjudicatory authority over nonmembers on highway was not important to its tribal sovereignty, as required for second Montana exception to apply.
Affirmed.
United States v. Lamy
521 F.3d 1257
No. 07-2048
United States Court of Appeals, Tenth Circuit, April 1, 2008
Subjects: Indian Country (U.S.)
-- Defined; Zuni Tribe of the Zuni Reservation, New Mexico
-- Members; Zuni (N.M.).
*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, James O. Browning, J., of aggravated sexual abuse in Indian country, and defendant appealed.
*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) defendant's statements to police officers regarding alleged rape were not improperly induced;
(2) defendant was not "in custody" for Miranda purposes when he was questioned by police officers regarding alleged rape;
(3) co-defendant's testimony that suggested that defendant had a prior history of contact with the FBI did not affect defendant's substantial rights; and
(4) evidence was sufficient to support finding that defendant's crimes occurred in Indian country.
Affirmed.
March
Yellowbear v. Wyoming Attorney General
525 F.3d 921
No. 06-8064
United States Court of Appeals, Tenth Circuit, March 21, 2008
Subjects: Trials (Murder) -- Wyoming; Indian Country (U.S.) -- Defined; Jurisdiction -- Wyoming; Jurisdiction -- United States; Riverton (Wyo.); Wind River Indian Reservation (Wyo.).
*Synopsis: During his state murder trial, petitioner filed pro se habeas corpus petition under § 2241 on basis that state court lacked jurisdiction over crime. Petitioner was convicted of murder in state court. The United States District Court for the District of Wyoming, Clarence A. Brimmer, J., dismissed petition under Younger abstention doctrine, directing petitioner to exhaust state remedies, and petitioner appealed. In interim, defendant's conviction was affirmed on direct appeal, 174 P.3d 1270.
*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) no basis remained for Younger abstention;
(2) proper avenue for pursuing habeas relief after conviction was § 2254;
(3) court would not automatically recharacterize petition as one under § 2254, given risk that subsequent petition challenging conviction on other bases would be second or successive.
Reversed and remanded.
Marceau v. Blackfeet Housing Authority
519 F.3d 838
No. 04-35210
United States Court of Appeals, Ninth Circuit, March 19, 2008
Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
*Synopsis: Blackfeet Tribe members who owned or leased homes built pursuant to Mutual Help and Homeownership Program (MHHP) brought class action against Department of Housing and Urban Development (HUD), Tribal Housing Authority, and its members, alleging violations of Housing Act and regulations, and seeking declaratory and injunctive relief, and damages. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) Housing Authority waived its tribal immunity;
(2) HUD did not undertake trust responsibility toward plaintiffs;
(3) complaint stated claims against HUD under Administrative Procedure Act (APA) for declaratory and injunctive relief; and
(4) District Court lacked jurisdiction over breach of contract action.
Affirmed in part, reversed in part, and remanded.
United States v. Refert
519 F.3d 752
No. 07-1158
United States Court of Appeals, Eighth Circuit, March 13, 2008
Subjects: Indians of North America
-- Defined; United States. Indian Health Service; Medical care
-- United States; Eligibility -- Determination standards --
United States.
*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of health care fraud and making false claim against the United States. Defendant appealed.
*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) failure to give jury instruction on regarded as an Indian by the community was not plain error;
(2) sufficient evidence established that defendant received free medical services based on her misrepresentations;
(3) district court did not plainly err in ordering restitution for costs incurred by government; and
(4) district court plainly erred in sentencing defendant to consecutive supervised release terms.
Affirmed in part and reversed in part.
February
Klamath Tribes of Oregon v. Pacific Corp
268 Fed.Appx. 575
No. 05-36010
United States Court of Appeals, District of Columbia Circuit, February 28, 2008
Subjects: Treaty rights -- Klamath
Tribes, Oregon; Fishing rights -- Klamath Tribes, Oregon; PacificCorp.
*Synopsis: (from the opnion) Here, Appellants seek to maintain an action for damages against PacificCorp for violating a provision in the Treaty with the Klamath, etc., 1864, 16 Stat. 707 (Klamath Treaty), that secured to the Klamath Tribe “the exclusive right of taking fish in the streams and lakes, included in said reservation....” Id., art 1. Although this Treaty provision secures to the Klamath exclusive on-reservation fishing rights, it is not so qualitatively different from the off-reservation fishing rights secured to the Skokomish Tribe that we are free to depart from the majority's holding in Skokomish. Further, as in Skokomish, there is no language in the Klamath Treaty that would support a claim for damages against a non-contracting private party. I therefore conclude that Appellants' claim for damages is foreclosed by Skokomish.
*Holding: not yet available
California Valley Miwok Tribe v. United States
515 F.3d 1262
No. 06-5203
United States Court of Appeals, Ninth Circuit, February 15, 2008
Subjects: Federal
recognition of Indian tribes -- California Valley Miwok Tribe;
United States. Indian Reorganization Act; Constitutions -- Tribes
-- Government policy -- United States; United States. Bureau
of Indian Affairs.
*Synopsis: Members of Indian tribe brought action on behalf of tribe challenging Secretary of the Interior's refusal to approve tribal constitution, seeking declaration that tribe was organized pursuant to Indian Reorganization Act. The United States District Court for the District of Columbia, Robertson, J., 424 F.Supp.2d 197, granted government's motion to dismiss. Members appealed.
*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) Secretary had authority under the Act to refuse to approve constitution, and
(2) any error in district court's denial of members' motions for leave to file supplemental claims was harmless.
Affirmed.
Hinsley v. Standing Rock Child Protective Services
516 F.3d 668
No. 07-1435
United States Court of Appeals, Eighth Circuit, February 5, 2008
Subjects: Child abuse; Sex offenders;
Child welfare -- Standing Rock Sioux Tribe of North & South
Dakota; United States. Federal Tort Claims Act; Negligence --
Standing Rock Sioux Tribe of North & South Dakota.
*Synopsis: Mother brought Federal Tort Claims Act (FTCA) action against Bureau of Indian Affairs (BIA) and child protection agency operated by Indian tribe pursuant to self-determination contract, alleging that agency negligently placed her brother in her home without notifying her that brother was child molester, resulting in his molestation of her daughter. The United States District Judge for the District of North Dakota, Daniel L. Hovland, J., 470 F.Supp.2d 1037, entered summary judgment for agency. Mother appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that alleged failure of agency to warn mother was subject to FTCA's discretionary function exception.
Affirmed.
January
Governor of Kansas v. Kempthorne
516 F.3d 833
No. 06-3213
United States Court of Appeals, Tenth Circuit, January 30, 2008
Subjects: Trust lands -- Wyandotte
Tribe of Oklahoma; Land into trust -- Wyandotte
Tribe of Oklahoma; Indian gaming -- Wyandotte
Tribe of Oklahoma; United States. Dept. of the
Interior; Wyandotte Tribe
of Oklahoma -- Land tenure -- Kansas -- Kansas City; Quiet title
actions.
*Synopsis: Governor of Kansas and several Indian tribes challenged decision of Department of Interior (DOI) to take tract of land into trust for Wyandotte Indian Tribe upon which Tribe intended to operate casino. The United States District Court for the District of Kansas, 430 F.Supp.2d 1204, Julie A. Robinson, J., affirmed trust status of tract, and plaintiffs appealed.
*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) Quiet Title Act prevented application of Administrative Procedure Act (APA) waiver;
(2) action qualified as quiet title action so as to render Quiet Title Act analysis applicable;
(3) prior lawsuit did not affect application of Quiet Title Act in current action; and
(4) neither order of court in prior litigation between parties, nor Secretary's continued participation in current litigation, provided means on judicial review to avoid application of United States' sovereign immunity in current action in absence of valid waiver by Congress.
Appeal dismissed and remanded to district court with instructions to vacate its judgment and dismiss case.
In re Harper
516 F.3d 1180
No. 07-5016
United States Court of Appeals, Tenth Circuit, January 24, 2008
Subjects: Debtor
and creditor -- Oklahoma;
Vehicles -- Registration
and transfer -- Muscogee
(Creek) Nation, Oklahoma;
Bankruptcy.
*Synopsis: Chapter 7 trustee brought adversary proceeding to avoid credit union's lien against debtors' vehicle. The United States Bankruptcy Court for the Northern District of Oklahoma entered judgment in trustee's favor and denied credit union's motion for new trial. Credit union appealed. The Bankruptcy Appellate Panel, 2007 WL 45918, affirmed. Credit union appealed.
*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) state statute deeming security interest in vehicle registered by Indian tribe valid if perfected under tribal law did not apply to credit union's lien;
(2) tribal title issued for vehicle was not “certificate of title” under Uniform Commercial Code (UCC);
(3) credit union did not have purchase money security interest under Oklahoma law and could not rely on automatic perfection;
(4) credit union was not entitled to statutory subrogation; and
(5) credit union was not entitled to equitable subrogation.
Affirmed.
Atwood v. Fort Peck Tribal Court Assiniboine
513 F.3d 943
No. 06-35299
United States Court of Appeals, Ninth Circuit, January 18, 2008
Subjects: Jurisdiction
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana;
Exhaustion of tribal remedies
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana;
Trials (Custody of children)
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana.
*Synopsis: Non-Indian father sued his Indian daughter's maternal aunt, who was seeking custody of his daughter after death of her Indian mother, and the Tribal Court that had granted temporary custody to child's maternal grandmother, challenging jurisdiction of Tribal Court, alleging substantive due process violation, and seeking injunctive relief. The United States District Court for the District of Montana, Richard F. Cebull, J., granted defendants' motion to dismiss. Father appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) domestic relations exception did not bar suit;
(2) father failed to exhaust tribal remedies;
(3) exhaustion was not excused by bad faith;
(4) exhaustion was not excused on ground of delay; and
(5) exhaustion was not excused for lack of tribal jurisdiction.
Affirmed.
United States v. Lowry
512 F.3d 1194
No. 06-10469
United States Court of Appeals, Ninth Circuit, January 16, 2008
Subjects: Occupancy (Law) -- United
States; Forest reserves -- United States; Indian allotments --
Klamath National Forest (Calif. and Or.); Karuk Indians.
*Synopsis: Defendant was convicted by a United States Magistrate Judge of occupation of United States Forest Service land without authorization. The United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, affirmed the conviction, and defendant appealed.
*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) addressing an issue of first impression, the existence of authorization in the form of individual aboriginal title was an affirmative defense;
(2) defendant failed to establish affirmative defense of authorization in form of individual aboriginal title; and
(3) district court lacked jurisdiction to consider defendant's collateral attack on administrative proceedings in which her application for Indian allotment was denied.
Affirmed.
Wisconsin v. Ho-Chunk Nation
512 F.3d 921
No. 07-1584
United States Court of Appeals, Seventh Circuit, January 14, 2008
Subjects: Gambling on Indian reservations
-- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin (formerly
known as the Wisconsin Winnebago Tribe; Intergovernmental agreements
-- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin
Winnebago Tribe); Intergovernmental agreements -- Wisconsin;
Jurisdiction -- United States; United States. United States Arbitration
Act; United States. Indian Gaming Regulatory Act; Revenue sharing
-- Wisconsin.
*Synopsis: State of Wisconsin brought action to compel arbitration in dispute over failure of Indian tribe to make certain payments to State. The district court, 402 F.Supp.2d 1008, compelled arbitration. Tribe appealed. The Court of Appeals, 463 F.3d 655, vacated and remanded. On remand, the United States District Court for the Western District of Wisconsin, John C. Shabaz, J., 2006 WL 3813654, granted State's motion to amend complaint to seek declaratory and injunctive relief, to allege breach of contract, and to compel performance under compact terms. Tribe counterclaimed alleging breach of contract and violations of Indian Gaming Regulatory Act (IGRA). The district court, 478 F.Supp.2d 1093, granted in part and denied in part motions of tribe to dismiss or for summary judgment. Tribe took interlocutory appeal.
*Holding: The Court of Appeals, Flaum, Circuit Judge, held that:
(1) federal jurisdiction under IGRA was limited to alleged compact violations relating to seven items listed in catch-all provision;
(2) Congress abrogated sovereign immunity of tribe with respect to State's claim to enjoin tribe's class III gaming due to its alleged refusal to submit to binding arbitration;
(3) federal court had jurisdiction over cause of action brought by State seeking declaratory judgment that it had negotiated in good faith with tribe as required by IGRA;
(4) supplemental jurisdiction existed over contractual claim;
(5) independent basis for federal jurisdiction existed to address causes of action brought by State to enforce dispute resolution provision in gambling compact with Indian tribe pursuant to Federal Arbitration Act (FAA) as it related to arbitrable claims;
(6) state court decision which purportedly served to invalidate prior waiver of sovereign immunity by State of Wisconsin in gambling compact with Indian tribe did not affect issue of whether waiver of sovereign immunity by Indian tribe remained intact; and
(7) determination had to be made as to which claims were arbitrable.
Affirmed in part, vacated in part, and remanded.
United States v. Gachot
512 F.3d 1252
No. 07-6061
United States Court of Appeals, Tenth Circuit, January 10, 2008
Subjects: Oklahoma -- Law and legislation -- Application -- Kiowa Indian Tribe of Oklahoma -- Members; Cockfighting; Crimes without victims -- Indian Country (U.S); Criminal jurisdiction -- United States.
*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma of operating an illegal gambling business, and he appealed.
*Holding: The Court of Appeals, Lucero, Circuit Judge, held that defendant's arguments that district court lacked jurisdiction over original indictment that was dismissed were moot.
Affirmed.
Osage Tribe of Indians of Oklahoma v. United States
263 Fed.Appx. 43
No. 2007-5120
United States Court of Appeals, Federal Circuit, January 9, 2008
Subjects: Tribal trust funds -- Osage
Tribe of Oklahoma; Fiduciary accountability -- United States;
Beneficiaries; Breach of trust -- United States; Trusts and trustees
-- Accounting -- United States; Mines and mineral resources --
Osage Tribe of Oklahoma; Oil and gas leases -- Osage Tribe of
Oklahoma; Revenue -- Osage Tribe of Oklahoma.
*Synopsis: Indian tribe sued United States, alleging that United States breached its trust responsibilities to tribe in managing thousands of leases for oil, gas, and other minerals. Following trial of first phase of case, the United States Court of Federal Claims, Emily C. Hewitt, J., awarded tribe approximately $1,800,000 in damages and entered judgment. Government appealed, and then moved to dismiss appeal.
*Holding: The Court of Appeals, Lourie, Circuit Judge, held that judgment could not be certified as final judgment on individual claim in multiple-claim action for purposes of immediate appeal.
Motion to dismiss granted.
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