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In re United States
Briefs from Turtle Talk Blog
590 F.3d 1305
No. 908
United States Court of Appeals, Federal Circuit, December 30, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: United States filed petition for writ of mandamus, seeking to direct the United States Court of Federal Claims, Francis M. Allegra, J., 88 Fed.Cl. 1, to vacate order requiring United States to produce documents in litigation involving Indian tribe.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that United States could not deny tribe's request to discover communications between United States and its attorneys based on attorney-client privilege.
Petition denied.

Jeffredo v. Macarro
590 F.3d 751
No. 08-55037
United States Court of Appeals, Ninth Circuit, December 22, 2009

Subjects: not yet available

*Synopsis: Disenrolled members of Indian tribe filed petition for habeas corpus under Indian Civil Rights Act, claiming that their disenrollment by tribal council was tantamount to an unlawful detention. The United States District Court for the Central District of California, John F. Walter, J., dismissed the petition. Members appealed.

*Holding: The Court of Appeals, N.R. Smith, Circuit Judge, held that:
(1) disenrolled members were not detained, as required to assert habeas relief, and
(2) on matter of first impression, tribal proceeding was of civil nature and thus not subject to habeas review.
Affirmed.

United States v. Washington
588 F.3d 1270
No. 08-35794
United States Court of Appeals, Ninth Circuit, December 11, 2009

Subjects: not yet available

*Synopsis: Indian tribe moved to reopen judgment, 476 F.Supp. 1101, that had denied tribal members treaty fishing rights on ground that tribe had not maintained organized tribal structure. The United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., denied relief, and tribe appealed. The Court of Appeals, 394 F.3d 1152, reversed. On remand, the District Court, Ricardo S. Martinez, J., again denied relief and the tribe again appealed.

*Holding: The Court of Appeals, en banc, Canby, Circuit Judge, held that federal recognition obtained by Indian tribe was not extraordinary circumstance that warranted reopening of previous denial of treaty rights. Affirmed.

Dickson v. San Juan County
355 Fed.Appx. 243
No.08-4148
United States Court of Appeals, Tenth Circuit, December 10, 2009

Subjects: not yet available

*Synopsis: Employees of special service district, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. The United States District Court for the District of Utah, Bruce S. Jenkins, J., 391 F.Supp.2d 895, refused to enforce three preliminary injunction orders issued by the Navajo court against county defendants, and special service district, and employees appealed. The United States Court of Appeals, Kelly, Circuit Judge, 497 F.3d 1057, affirmed in part, reversed in part, and vacated in part. On remand, employees moved for relief from judgment. The District Court, Bruce S. Jenkins, Senior District Judge, 566 F.Supp.2d 1239, denied motion. Employees appealed.

*Holding: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that:
(1) decision on prior appeal, that tribal court lacked subject-matter jurisdiction to exercise civil authority over the conduct of the nonmember defendants, was law of the case, and
(2) defendants were not entitled to damages on claim that employees' appeal was frivolous. Affirmed.

South Fork Band of Western Shoshone of Nevada v. United States Department of the Interior
588 F.3d 718
No. 09-15230
United States Court of Appeals, Ninth Circuit, December 3, 2009

Subjects: not yet available

*Synopsis: Indian tribes brought action challenging Bureau of Land Management's (BLM) approval of mining project on federal land. The United States District Court for the District of Nevada, Larry R. Hicks, J., 643 F.Supp.2d 1192, denied tribes a preliminary injunction. Tribes appealed.

*Holding: The Court of Appeals held that:
(1) tribes had no likelihood of success on merits of Federal Land Policy and Management Act (FLPMA) claim;
(2) BLM failed to take requisite hard look at environmental impacts of ore transport under National Environmental Policy Act (NEPA); and
(3) BLM failed to take hard look at impacts of mine dewatering. Affirmed in part, reversed in part, and remanded.

November

Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc
585 F.3d 917
No. 08-6145
United States Court of Appeals, Sixth Circuit, November 4, 2009

Subjects: not yet available

*Synopsis: Biodiesel refining company brought action against federally chartered tribal corporation that delivered diesel fuel and soybean oil to the company for refining, seeking a declaratory judgment that the corporation's waiver of sovereign immunity was effective, an order compelling arbitration, and a temporary restraining order (TRO) prohibiting the corporation from proceeding with a case against the company in tribal court. The United States District Court for the Western District of Tennessee, Samuel H. Mays, J., dismissed the suit for lack of subject matter jurisdiction. Company appealed.

*Holding: The Court of Appeals, Cole, Circuit Judge, held that:
(1) as a matter of first impression, incorporation under the Indian Reorganization Act (IRA) did not automatically waive tribal sovereign immunity;
(2) corporation's charter did not contain an express waiver of sovereign immunity; and
(3) contractual provision purporting to waive sovereign immunity was insufficient to waive immunity, absent board approval as required by charter.
Affirmed.

Robinson v. United States
586 F.3d 683
No. 07-17052
United States Court of Appeals, Ninth Circuit, November 2, 2009

Subjects: not yet available

*Synopsis: Easement holders brought action against the United States as trustee for Indian tribe, asserting claims for disruption of lateral and subjacent support, negligence, and nuisance, and alleging that an unshored slope caused subsidence and that a curb, concrete walkway, wrought iron fence, and fire hydrant encroached onto the easement. The United States District Court for the Eastern District of California, Ralph R. Beistline, J., 2007 WL 2580612, dismissed the suit for lack of subject matter jurisdiction due to the sovereignty of the United States under the Quiet Title Act (QTA). Easement holders appealed.

*Holding: As a matter of first impression, the Court of Appeals, D.W. Nelson, Senior Circuit Judge, held that the QTA was not applicable to the easement holders' suit. Vacated and remanded

October

Nkihtaqmikon v. Impson
585 F.3d 495
No. 08-2122
United States Court of Appeals, First Circuit, October 28, 2009

Subjects: Oil and gas leases; Nulankeyutmonen Nkihtaqmikon; Factions -- Passamaquoddy Tribe of Maine; United States. Bureau of Indian Affairs.

*Synopsis: Following dismissal, 462 F.Supp.2d 86, of action challenging Bureau of Indian Affairs' (BIA) approval of Indian tribe's decision to lease tribal land to be used for a liquefied natural gas (LNG) terminal, appeal was taken. The Court of Appeals, 503 F.3d 18, affirmed in part and remanded in part, and BIA filed a second motion to dismiss. On remand, the United States District Court for the District of Maine, John A. Woodcock, Jr., J., 573 F.Supp.2d 311, granted motion. Plaintiffs appealed.

*Holding: The Court of Appeals, Boudin, Circuit Judge, held that Court of Appeals' prior ruling that administrative exhaustion was mandatory was the law of the case. Affirmed.

United States v. Espinosa
585 F.3d 418
No. 08-3354
United States Court of Appeals, Eighth Circuit, October 26, 2009

Subjects: Child sexual abuse; Sex crimes -- South Dakota.

*Synopsis: Defendant was convicted of aggravated sexual abuse and abusive sexual contact, following jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, Senior District Judge. Defendant appealed.

*Holding:The Court of Appeals, Smith, Circuit Judge, held that:
(1) conviction for aggravated sexual abuse was supported by sufficient evidence;
(2) evidence was insufficient to show that child's age was below twelve when
alleged sexual contact occurred, as required to support conviction for abusive
sexual contact;
(3) mistrial was not warranted due to psychiatrist's testimony that it was her
opinion that child had suffered sexual abuse;
(4) statements from witnesses attesting to child's alleged prior consistent
statements accusing defendant of abuse were not hearsay.
Affirmed in part, reversed in part, and remanded.

Schaghticoke Tribal Nation v. Kempthorne
587 F.3d 132
No. 08-4735-cv
United States Court of Appeals, Second Circuit, October 19, 2009

Subjects: Federal recognition of Indian tribes; State recognized Indian tribes; Schaghticoke Tribal Nation (Conn.); Connecticut; United States. Dept. of the Interior.

*Synopsis: Indian tribe appealed judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, J., 587 F.Supp.2d 389, upholding a decision of the Department of the Interior (DOI) which denied the tribe's petition for federal acknowledgement.

*Holding: The Court of Appeals held that:
(1) decision to deny tribe's request for acknowledgement was not the result of any improper political influence, and
(2) decision was not a violation of the Vacancies Reform Act.
Affirmed.

Related News Stories: For Schaghticokes, the fight's not over (New London Day) 10/20/09

Ute Distribution Corporation v. Secretary of the Interior of the United States
584 F.3d 1275
No. 08-4147
United States Court of Appeals, Tenth Circuit, October 19, 2009

Subjects: Water rights; Utah; Ute Distribution Corporation; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ex-members; Indians of North America Mixed descent; United States. Ute Partition and Termination Act; United States. Dept. of the Interior.

*Synopsis: Following dismissal, by the United States District Court for the District of Utah, Dee Benson, J., 624 F.Supp.2d 1322, of action challenging Department of the Interior's (DOI) determination that Indian tribe's water rights were previously divided and distributed pursuant to the Ute Partition and Termination Act (UPA), distribution corporation representing terminated mixed-blood former members of the tribe appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that action was untimely filed. Affirmed, and remanded with instructions.

United States v. Milner
583 F.3d 1174
No. 05-35802, 05-36126
United States Court of Appeals, Ninth Circuit, October 9, 2009

Subjects: Trespass; Submerged lands; Land use; United States. Rivers and Harbors Appropriation Act; United States. Federal Water Pollution Control Act; United States. Equal Access to Justice Act; Lummi Tribe of the Lummi Reservation, Washington.

*Synopsis: United States, on own behalf and as trustee on behalf of Indian tribe, sued waterfront homeowners, claiming violations of common law trespass, Rivers and Harbors Appropriation Act (RHA), and Clean Water Act (CWA), arising from ambulatory tideland property boundary coming to intersect with shore defense structures erected by homeowners. Following bench trial, the United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2005 WL 3072830, granted government summary judgment, ordered removal of structures and payment of civil penalty, and denied award of attorney fees, under Equal Access to Justice Act (EAJA). Homeowners appealed.

*Holding: The Court of Appeals, B. Fletcher, Circuit Judge, held that:
(1) United States, not State of Washington, owned tidelands;
(2) homeowners' construction of structures to prevent erosion was no defense to trespass claim; (3) common enemy doctrine did not apply as defense to trespass claim;
(4) homeowners intended and caused trespass;
(5) homeowners violated RHA by refusing to remove structures;
(6) fact issue precluded summary judgment as to CWA violation; and
(7) award of attorney fees was not warranted under EAJA.
Affirmed in part, reversed in part, and remanded.

Frazier v. Brophy
358 Fed.Appx. 212
No. 08-2919-CV
United States Court of Appeals, Second Circuit, October 8, 2009

Subjects: not available

*Synopsis: Action was brought against casino and other defendants. The United States District Court for the Northern District of New York, Skullin, J., entered summary judgment in defendants' favor, 2008 WL 4834929, and plaintiffs appealed.

*Holding:The Court of Appeals held that district court lacked subject matter jurisdiction over Indian tribe on basis of diversity.
Remanded with directions to dismiss.

Beaulieu v. Minnesota
583 F.3d 570
No. 08-3322
United States Court of Appeals, Eighth Circuit, October 8, 2009

Subjects: not yet available

*Synopsis: Petitioner sought habeas relief, arguing that Minnesota lacked jurisdiction to enforce its civil commitment statutes on Indian reservation. The United States District Court for the District of Minnesota, James M. Rosenbaum, J., 2008 WL 4104701, adopting Report and Recommendation of Janie S. Mayeron, United States Magistrate Judge, denied relief. Petitioner appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) finding that petitioner procedurally defaulted his claim was not precluded
by fact that his claim was challenge to subject matter jurisdiction, and
(2) petitioner failed to exhaust Minnesota remedies as to his claim that his
attorney's failure to timely file appeal of civil commitment order constituted
cause for his procedural default.
Affirmed.

September

Arctic Slope Native Association, LTD. v. Sebelius
583 F.3d 785
No. 2008-1532, 2008-1607, 2009-1004
United States Court of Appeals, Federal Circuit, September 29, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Indian tribes and tribal health care providers, as members of putative class action suits that were denied certification, challenged Indian Health Service (IHS) contracting officers' denial of Contract Disputes Act (CDA) claims that IHS had failed to pay full amount of contract support costs incurred in providing health services to tribal members, under IHS contracts pursuant to Indian Self-Determination and Education Assistance Act (ISDA). The Civilian Board of Contract Appeals, Candida S. Steel, A.J., 2008 WL 3052447, dismissed claims as time-barred. Appeal was taken.

*Holding: The Court of Appeals, Bryson, Circuit Judge, held that:
(1) limitations period for CDA claims was not tolled under class action tolling
doctrine, but
(2) in matter of first impression, limitations period for CDA claims was subject
to equitable tolling.
Affirmed in part, reversed in part, and remanded

United States v. Stymiest
581 F.3d 759
No. 08-3320
United States Court of Appeals, Eighth Circuit,September 22, 2009

Subjects: Assault and battery -- In Indian Country; Violent crimes -- In Indian Country.

*Synopsis: After having his motions to suppress and to dismiss denied by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., 2008 WL 2132998, adopting the report and recommendation of Mark A. Mareno, United States Magistrate Judge 2008 WL 2038863, defendant was convicted in a jury trial of assault resulting in serious bodily injury in Indian country. Defendant appealed.

*Holding: The Court of Appeals, Loken, Chief Judge, held that:
(1) jury instruction on determining defendant's Indian status was not abuse of discretion;
(2) sufficient evidence supported jury's finding that defendant was an Indian for purposes of statute governing crimes committed in Indian country;
(3) jury instruction did not constructively amend indictment;
(4) district court did not abuse its discretion by allowing witness to testify that defendant took a knife from kitchen and left in pursuit of victim; and
(5) defendant's third-degree burglary conviction was a crime of violence under the Armed Career Criminal Act (ACCA).
Affirmed.

United States v. Espinosa
581 F.3d 826
No. 08-3354
United States Court of Appeals, Eighth Circuit, September 18, 2009

Subjects: Child sexual abuse; Sex crimes -- South Dakota.

*Synopsis: Defendant was convicted of aggravated sexual abuse and abusive sexual contact, following jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, Senior District Judge. Defendant appealed.

*Holding:The Court of Appeals, Smith, Circuit Judge, held that:
(1) conviction for aggravated sexual abuse was supported by sufficient evidence;
(2) evidence was insufficient to show that child's age was below twelve when
alleged sexual contact occurred, as required to support conviction for abusive
sexual contact;
(3) mistrial was not warranted due to psychiatrist's testimony that it was her
opinion that child had suffered sexual abuse;
(4) statements from witnesses attesting to child's alleged prior consistent
statements accusing defendant of abuse were not hearsay.
Affirmed in part, reversed in part, and remanded.

Eastern Shawnee Tribe of Oklahoma v. United States
582 F.3d 1306
No. 2008-5102
United States Court of Appeals, Federal Circuit,September 17, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Fiduciary accountability; Federal-Indian trust relationship; Trusts and trustees; Breach of trust -- United States; Jurisdiction; Eastern Shawnee Tribe of Oklahoma.

*Synopsis: Indian tribe sued United States, seeking damages for alleged breach of fiduciary duties as trustee of tribe's assets and property. The United States Court of Federal Claims, Charles F. Lettow, J., 82 Fed.Cl. 322, dismissed without prejudice on jurisdictional grounds. Tribe appealed.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that tribe's claim in district court did not bar tribe's claim in Court of Federal Claims.
Reversed and remanded.

State of Michigan v. United States Environmental Protection Agency
581 F.3d 524
No. 08-2582
United States Court of Appeals, Seventh Circuit,September 9, 2009

Subjects: Air quality management -- On Indian reservations; Forest County Potawatomi Community, Wisconsin; Wisconsin; Michigan; United States. Environmental Protection Agency; United States. Clean Air Act.

*Synopsis: Michigan filed petition for review of Environmental Protection Agency's (EPA) final ruling redesignating Indian tribe's lands to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act, which had the effect of imposing stricter air quality controls on emitting sources in and around tribe's redesignated lands.

*Holding: The Court of Appeals, Wood, Circuit Judge, held that:
(1) Michigan did not sustain cognizable injury from EPA's final ruling;
(2) even assuming injury resulted from EPA's final ruling, Michigan was not the injured party; and
(3) Michigan's alleged injuries resulting from EPA's final ruling were not redressable.
Petition dismissed.

United States v. Bullcoming
579 F.3d 1200
No. 09-6010
United States Court of Appeals, Tenth Circuit, September 3, 2009

Subjects: Embezzlement -- Tribes -- Oklahoma.

*Synopsis: Defendant pled guilty in the United States District Court for the Western District of Oklahoma to embezzlement from Indian tribal organizations, and he was sentenced to 36 months' imprisonment. Defendant appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that:
(1) government did not breach plea agreement by presenting testimony of witness
who argued that the defendant failed to accept responsibility;
(2) government did not breach plea agreement by commenting at sentencing hearing
that it would probably never be able to prove the full amount of restitution that
defendant ultimately should be entitled to pay; and
(3) applying upward variance to impose a sentence which was double that of the
top of the applicable Sentencing Guidelines range was warranted.
Affirmed.

Hobbs v. Zenderman
579 F.3d 1171
No. 08-2099
United States Court of Appeals, Tenth Circuit, September 1, 2009

Subjects: Medicaid; Supplemental-needs trusts; Civil rights; Off-reservation Indians; New Mexico. Dept. of Human Services.

*Synopsis: Medicaid claimant brought § 1983 action against several employees of New Mexico Human Services Department following its denial of his application for benefits. The United States District Court for the District of New Mexico, Bruce D. Black, J., granted summary judgment to defendants. Claimant appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Medicaid statute exempting special needs trusts from the counting of resources available did not create private right of action under § 1983;
(2) methodology provisions of Medicaid statute did not support claimant's § 1983 action; and
(3) counting of special needs trust resources did not violate due process.
Affirmed.

 

August

Kaltag Tribal Council v. Jackson
344 Fed.Appx. 324
No. 08-35343
United States Court of Appeals, Ninth Circuit, August 28, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Tribal council of native village and others brought action against employees of State of Alaska's Department of Health and Human Services, alleging that adoption judgment issued by tribal court was entitled to full faith and credit under the Indian Child Welfare Act (ICWA) and that the Alaska employees were required to grant request for new birth certificate. The United States District Court for the District of Alaska, Timothy M. Burgess, J., granted plaintiffs' motion for summary judgment and denied defendants' motion.
Defendants appealed.

*Holding:The Court of Appeals held that:
(1) neither the ICWA nor Public Law 280 prevented the tribal court from exercising jurisdiction, and (2) the Eleventh Amendment did not bar the relief sought by plaintiffs.

United States v. George
579 F.3d 1171
No. 08-30339
United States Court of Appeals, Ninth Circuit, August 25, 2009

Subjects: Sex offenders -- Washington (State) -- Registers; United States. Sex Offender Registration and Notification Act.

*Synopsis: Defendant was convicted, by conditional guilty plea, of failure to register as sex offender, in violation of Sex Offender Registration and Notification Act (SORNA), by the United States District Court for the Eastern District of Washington, Wm. Fremming Nielson, J. Defendant appealed.

*Holding: The Court of Appeals, Thompson, Senior Circuit Judge, held that:
(1) in matter of first impression, conviction was not invalidated by
Washington's failure to implement SORNA;
(2) SORNA's registration requirement was not outside Congress' Commerce Clause
powers; and
(3) SORNA's registration requirement did not violate Ex Post Facto Clause.
Affirmed.

Yankton Sioux Tribe v. Podhradsky
577 F.3d 951
No. 08-1441, 08-1488
United States Court of Appeals, Eighth Circuit, August 25, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Diminished Indian reservations; Trust lands; Boundaries; Yankton Sioux Tribe of South Dakota; Charles Mix County (S.D.); South Dakota.

*Synopsis: Following remand, 522 U.S. 329, 118 S.Ct. 789, 139 L.Ed.2d 773, of Indian tribe's action challenging State of South Dakota's jurisdiction over lands that once fell within reservation boundaries, action was consolidated with tribe's separate action seeking declaratory judgment that all land not ceded to the United States remained part of tribe's reservation. The District Court, 14 F.Supp.2d 1135, entered judgment for tribe, and appeal was taken. The Court of Appeals, 188 F.3d 1010, ruled that reservation had been diminished rather than disestablished and that it included at least certain reserved agency trust lands, but reversed and remanded in other respects. The United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 529 F.Supp.2d 1040, ruled that certain trust land remained part of the reservation and that land continuously owned in fee by individual Indians also qualified as reservation. State and county appealed, and tribe cross-appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) two parcels of agency trust land were "reservation land" under the
controlling law of the case;
(2) decision of the Secretary of the Interior, to take former reservation land
into trust for Indian tribe pursuant to the Indian Reorganization Act (IRA), was
sufficient to restore that land to its previous status as "reservation" land;
(3) miscellaneous lands that were acquired in trust for Indian tribe other than
under the IRA constituted "dependent Indian communities" within meaning of statute
establishing federal jurisdiction over Indian country; and
(4) statute prohibiting alterations to boundaries of Indian reservations except
by act of Congress did not serve to establish that any lands alienated in fee to
whites during effective period of such freeze should be considered part of the
reservation.
Affirmed in part and vacated in part.

Related News Stories: Appeals court upholds existence of SD reservation (The Daily Republic) 8/27/09

United States v. Washington
579 F.3d 969
No. 08-35794
United States Court of Appeals, Ninth Circuit, August 19, 2009

Subjects: not yet available

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

*Holding: not yet available

Ottawa Tribe of Oklahoma v. Logan
577 F.3d 634
No. 08-3621
United States Court of Appeals, Sixth Circuit, August 18, 2009

Subjects: Fishing rights; Treaty rights; Ottawa Tribe of Oklahoma; Ohio. Dept. of Natural Resources.

*Synopsis: Ottawa Tribe of Oklahoma sought declaratory judgment that it had right to fish in Lake Erie without restrictions from Ohio Department of Natural Resources (DNR). The United States District Court for the Northern District of Ohio, Jack Zouhary, J., 541 F.Supp.2d 971, granted DNR summary judgment. Tribe appealed.

*Holding: The Court of Appeals, Alan E. Norris, Circuit Judge, held that whatever fishing rights Tribe had were extinguished when Tribe abandoned the land.

Related News Stories: Indian tribe loses claim to Lake Erie fishing rights (toledoBlade.com) 8/19/09.

ENSCO International, Incorporated v. Certain underwriters at Lloyd's
579 F.3d 442
No. 08-10451
United States Court of Appeals, FIfth Circuit, August 12, 2009

Subjects: Offshore oil well drilling.

*Synopsis: Owner of offshore drilling rig damaged in hurricane brought action in state court against its insurer to recover costs of removal of debris from the rig that fell to the sea floor. Following removal, owner moved to remand. The United States District Court for the Northern District of Texas, Reed O'Connor, J., 2008 WL 958205, granted motion, and insurer appealed.

*Holding: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that insurer waived right to remove.
Affirmed.

Upper Skagit Tribe v. Washington
576 F.3d 920
No. 07-35061
United States Court of Appeals, Ninth Circuit, August 6, 2009

Subjects: Fishing -- Northwest, Pacific; Fishing rights -- Tribes; Upper Skagit Indian Tribe of Washington; Suquamish Indian Tribe of the Port Madison Reservation, Washington.

*Synopsis: Upper Skagit Tribe filed request for determination that members of Suquamish Indian Tribe, upon changing fishing patterns to include Saratoga Passage and Skagit Bay, were fishing outside of their usual and accustomed fishing grounds and stations in Puget Sound, as established by federal government's treaties with tribes of Pacific Northwest and as adjudicated over three decades ago in government's underlying suit against State of Washington. The United States District Court for the Western District of Washington, Ricardo S. Martinez, J., 2007 WL 30869, granted Upper Skagit summary judgment. Suquamish appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that geographical scope of Suquamish's fishing grounds included waters at center of Puget Sound.
Reversed and remanded.

Related News Stories: Appeals court rules in favor of Suquamish fishing (Seattle Post Intelligencer) 8/6/09

Bressi v. Ford
575 F.3d 891
No. 07-15931
United States Court of Appeals, Ninth Circuit, August 4, 2009

Subjects: Civil rights; Roadblocks (Police methods); Law enforcement -- On Indian reservations; Law enforcement -- Tribes -- United States.

*Synopsis: Arrestee brought civil rights action against tribal police officers and United States after he was stopped and cited at a roadblock on a state highway crossing into tribal reservation. The United States District Court for the District of Arizona, John M. Roll, J., granted summary judgment to the officers and the United States separately. Arrestee appealed.

*Holding: Holdings: The Court of Appeals, Canby, Circuit Judge, held that:
(1) tribal officers were acting under color of state law;
(2) fact issues precluded summary judgment on 1983 claim against officers;
(3) officers were not acting under color of federal authority; and
(4) officers were entitled to qualified immunity concerning the arrest.
Affirmed in part, reversed in part, and remanded.

Related News Stories: Federal appeals court limits tribal roadblocks (thenewspaper.com) 8/10/09. Ruling limits tribal official's authority (East Valley Tribune) 8/4/09

 

July

United States v. Fox
573 F.3d 1050
No. 08-2190
United States Court of Appeals, Tenth Circuit, July 29, 2009

Subjects: Firearms -- Law and legislation -- United States; Hunting rights; Treaties -- United States; Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Following denial of motion to dismiss indictment in the United States District Court for the District of New Mexico, James O. Browning, J., 557 F.Supp.2d 1251, defendant pled guilty to being a felon in possession of a firearm. Defendant appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) Treaty Between the United States of America and the Navajo Tribe of Indians of [1868] guaranteed hunting rights that could be asserted by individual members of tribe, and
(2) Treaty did not insulate individual tribal member from prosecution for possession of firearm by felon.
Affirmed.

United States v. Graham
572 F.3d 954
No. 08-3580, 09-2009
United States Court of Appeals, Eighth Circuit , July 28, 2009

Subjects: Indictments; Murder -- In Indian Country.

*Synopsis: Following grand jury indictment on one count of first degree murder in Indian Country, the United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 585 F.Supp.2d 1144, dismissed the indictment, and, 2009 WL 1173039, dismissed an identical count in later indictment. Government appealed.

*Holding: The Court of Appeals, Benton, Circuit Judge, held that:
(1) first degree murder indictment was deficient, and
(2) aiding and abetting murder indictment was deficient.
Affirmed.

Cobell v. Salazar
573 F.3d 808
No. 08-5500, 08-5506
United States Court of Appeals, District of Columbia, July 24, 2009

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

*Synopsis: Beneficiaries of individual Indian money (IIM) trust accounts brought class action against United States government, alleging that Secretaries of Interior and Treasury breached their fiduciary duties by mismanaging accounts. After court found that government had not succeeded in providing accounting mandated by Indian Trust Fund Management Reform Act, and that record demonstrated impossibility of rendering such accounting, 532 F.Supp.2d 37, beneficiaries moved for equitable relief in nature of restitution. The United States District Court for the District of Columbia, James Robertson, J., 569 F.Supp.2d 223, granted the motion. Parties cross-appealed.

*Holding: The Court of Appeals, Sentelle, Chief Judge, held that beneficiaries were statutorily entitled to an accounting, and District Court had obligation to exercise its equitable powers to ensure an equitable accounting.
Vacated and remanded.

Related News Stories: Court throws out money judgment to Indians, orders accounting (NewsOK) 7/24/09

United States v. Doe
572 F.3d 1162
No. 08-1137, 08-1184
United States Court of Appeals, Tenth Circuit, July 20, 2009

Subjects: Juvenile delinquency -- Cases; Arson -- In Indian Country; Church buildings -- In Indian Country.

*Synopsis: Defendants were convicted, in separate bench trials in the United States District Court for the District of Colorado, Edward W. Nottingham, J., of an act of juvenile delinquency arising out of the arson of a church building in Indian country. They appealed.

*Holding: On consolidation of appeals the Court of Appeals, Briscoe, Circuit
Judge, held that:
(1) word "person," as used in statute prohibiting, inter alia, arson of the
property of an "Indian or other person," applied to living individuals and
corporations, but not to unincorporated associations;
(2) evidence was sufficient to show that building was owned by a nonprofit
corporation;
(3) district court did not abuse its discretion by allowing prosecution to
reopen its cases to present evidence related to the corporate status of the arson
victim; and
(4) information provided sufficient identification of the arson victim and its
status.
Affirmed.

United States v. Papakee
573 F.3d 569
No. 08-2032, 08-2037
United States Court of Appeals, Eighth Circuit, July 17, 2009

Subjects: Sex crimes -- In Indian Country; Trials (Sex crimes).

*Synopsis: Following denial of defendants' motion to suppress, 2007 WL 891717, defendants were convicted in the United States District Court for the Northern District of Iowa, Linda R. Reade, Chief Judge, of sexual abuse in Indian country, and sentence was imposed, 550 F.Supp.2d 991. Defendants appealed.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) exclusion of testimony by deputy sheriff about victim's sexual proposition
was warranted;
(2) evidence was sufficient to support convictions;
(3) four-level sentencing increase for use of force was warranted; and
(4) imposition of 360-month prison term was reasonable.
Affirmed.

Thomas v. Mundell
572 F.3d 756
No. 07-15388
United States Court of Appeals, Ninth Ciruit, July 15, 2009

Subjects: Indians of North America -- Civil rights; Arizona. Superior Courts; Drunk driving.

*Synopsis: County Attorney and victims of driving under the influence (DUI) offenses sued judges and commissioners of the Arizona Superior Court for injunctive and declaratory relief, alleging that special Spanish-speaking and Native American DUI courts instituted by that Court violated their federal constitutional and statutory rights. The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims for lack of standing. Plaintiffs appealed.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) county attorney lack standing, and
(2) victims lacked standing.
Affirmed.

North Country Community Alliance, Inc. v. Salazar
573 F.3d 738
No. 07-36048
United States Court of Appeals, Ninth Ciruit, July 15, 2009

Subjects: Indian gaming; Casinos; Environmental impact statements; Nooksack Indian Tribe of Washington; United States. National Environmental Policy Act of 1969; United States. Indian Gaming Regulatory Act; North Country Community Alliance, Inc.; National Indian Gaming Commission (U.S.); United States. Dept. of the Interior.

*Synopsis: Nonprofit organization, comprised of residents and property owners near Indian casino site, sued National Indian Gaming Commission (NIGC) and Department of Interior (DOI), claiming violation of Indian Gaming Regulatory Act (IGRA) by agencies' failure to make Indian lands determination, either before approving Nooksack Indian Tribe's proposed gaming ordinance or before Nooksacks licensed and began constructing casino, and violation of National Environmental Policy Act (NEPA) by failure to prepare environmental impact statement (EIS). The United States District Court for the Western District of Washington, John C. Coughenour, J., dismissed for lack of subject matter jurisdiction and for failure to state claim. Nonprofit organization appealed.

*Holding: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) claim regarding NIGC's approval of ordinance for casino licensing and
construction was not time-barred;
(2) Indian lands determination was not required by IGRA prior to approving
ordinance;
(3) Indian lands determination was not required by IGRA prior to licensing and
constructing casino; and
(4) EIS was not required, under NEPA.
Affirmed.

United States v. Washington
573 F.3d 701
Nos. 07-35062, 07-35124, 07-35219.
United States Court of Appeals, Ninth Ciruit, July 13, 2009

Subjects: Fishing rights -- Tribes -- Washington (State) -- Cases; Treaty rights -- Tribes -- Washington (State) -- Cases; Fishing -- Northwest, Pacific; Tribes -- Washington (State).

*Synopsis: United States instituted action against state to enforce Indian fishing rights under treaties with Indian tribes of Pacific Northwest. One tribe commenced subproceeding against other tribes for equitable apportionment of shared fishery. The United States District Court for the Western District of Washington, Ricardo S. Martinez, J., 2006 WL 3386868, dismissed subproceeding, and tribe appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that tribe was not entitled to equitable apportionment of fishery.
Affirmed

In re Shinnecock Smoke Shop
571 F.3d 1171
No. 2009-1100
United States Court of Appeals, Federal Circuit, July 1, 2009

Subjects: Shinnecock Indian Nation (N.Y.); Shinnecock Smoke Shop (N.Y.); Trademarks -- Law and legislation; United States. Trademark Act of 1946.

*Synopsis: Trademark applicant, who was a United States citizen and member of the Shinnecock Indian Nation, appealed decision of Trademark Trial and Appeal Board, 2008 WL 4354159, affirming examining attorney's decision refusing to register the proposed marks.

*Holding: The Court of Appeals, Clevenger, Circuit Judge, held that:
(1) Shinnecock Indian Nation qualified as an 'institution' under Trademark Act;
(2) Board did not err in affirming examining attorney's rejection of applicant's trademarks;
(3) Patent and Trademark Office (PTO) refusal to register applicant's trademarks did not violate applicant's due process rights; and
(4) PTO's refusal to register applicant's trademarks did not violate applicant's equal protection rights.
Affirmed.

Reber v. Steele
570 F.3d 1206
No. 08-4057
United States Court of Appeals, Tenth Ciruit, July 1, 2009

Subjects: Habeas corpus; Juvenile delinquency; Hunting rights -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Members; Game laws -- Utah; Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah; Indians of North America -- Defined; Indian Country (Utah) -- Defined.

*Synopsis: State petitioner sought federal habeas corpus review, after affirmance of his state juvenile court conviction and finding of delinquency, 128 P.3d 1211, but prior to sentencing. The United States District Court for the District of Utah, Bruce S. Jenkins, Senior District Judge, 2008 WL 444545, denied petition. Petitioner appealed.

*Holding: The Court of Appeals, Henry, Chief Judge, held that petition was premature, since it was filed before imposition of sentence.
Vacated and remanded.

 

June

Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States Army Corp of Engineers
570 F.3d 327
No. 08-5133
United States Court of Appeals, District of Columbia, June 26, 2009

Subjects: Indian reservations -- Boundaries -- Cases; Diminished Indian reservations -- Cases; National Register of Historic Places; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; United States. Army. Corps of Engineers.

*Synopsis: Indian tribe brought action against U.S. Army Corps of Engineers (Corps) and others, seeking, inter alia, a declaration that Act of Congress which dissolved prior reservation never took effect, and a writ of mandamus to compel the Corps to evaluate federally-owned properties within the former reservation for inclusion in the National Register of Historic Places. The United States District Court for the District of Columbia, Paul L. Friedman, J., dismissed, and tribe appealed.

*Holding: The Court of Appeals, Randolph, Senior Circuit Judge, held that:
(1) tribe's claims were barred by limitations period established in the Indian Claims Commission Act, and
(2) Corps had no duty under National Historical Preservation Act (NHPA) to evaluate federally-owned properties for inclusion in the National Register of Historic Places.
Affirmed.

Related News Stories: Court upholds dismissal of SD tribe’s land lawsuit (Indian Country Today) 7/7/09

Keweenaw Bay Indian Community v. Rising
569 F.3d 589
No. 08-1585
United States Court of Appeals, Sixth Ciruit, June 26, 2009

Subjects: Taxation -- Law and legislation -- Michigan; Tax exemption; Keweenaw Bay Indian Community, Michigan.

*Synopsis: Tribe brought action against state, state treasury officials, and secretary of state, seeking declaratory and injunctive relief from the State's collection of sales and use taxes on transactions involving tribe or its members, and asserting 1983 claim that State's offset of federal funds violated various constitutional and statutory rights. The United States District Court for the Western District of Michigan at Marquette, Gordon J. Quist, J., 546 F.Supp.2d 509, granted summary judgment for the State. Tribe appealed.

*Holding: The Court of Appeals, Merritt, Circuit Judge, held that:
(1) tribe's request for declaration concerning its tax immunities did not present justiciable question;
(2) tribe's claim for declaration that Michigan tax policy was invalid was unripe;
(3) issue of whether treaty affected Michigan's collection of sales and use taxes was not properly before the Court;
(4) but remand was warranted to determine if tribe was person under 1983.
Affirmed in part, vacated in part, and remanded.


Smith v. Shulman
333 Fed.Appx. 607
No. 08-1896-cv
United States Court of Appeals, Second Ciruit, June 17, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Income tax; Jurisdiction; Injunctions.

*Synopsis: Taxpayer filed complaint against Commissioner of Internal Revenue seeking refund, injunctive relief, and declaration that Internal Revenue Service (IRS) illegally assessed taxes, penalties, and interest on income that he earned on Indian reservation. The District Court denied taxpayer's motion for preliminary injunction, and taxpayer appealed. The Court of Appeals, 266 Fed.Appx. 58, reversed and remanded. On remand, the United States District Court for the Eastern District of New York, Feuerstein, J., 2008 WL 818512, dismissed complaint, and taxpayer appealed.

*Holding: The Court of Appeals held that:
(1) Tax Court had exclusive jurisdiction over appeal of adverse decision of due process hearing officer, and
(2) taxpayer's attempt to obtain injunction was barred by Tax Anti-Injunction Act.
Affirmed.

Philip Morris USA, Inc. v. King Mountain Tobacco Company, Inc.
569 F.3d 932
No. 06-36066
United States Court of Appeals, Ninth Circuit, June 11, 2009

Subjects: Cigarettes -- Marketing; Trademark infringement; Phillip Morris USA; King Mountain Tobacco Company, Inc.

*Synopsis: Cigarette maker brought action against tribal corporation selling cigarettes alleging various federal and state law claims, including trademark infringement, and seeking injunctive relief against tribal corporation's continued sale of its products. After the tribal corporation brought an action for declaratory relief against cigarette maker in tribal court, the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., granted tribal corporation's request to stay the proceedings pending the tribal court's determination of its jurisdiction. Cigarette maker appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.


United States v. Oldbear
568 F.3d 814
No. 08-6095
United States Court of Appeals, Tenth Ciruit, June 10, 2009

Subjects: Tribal trust funds; Trials (Embezzlement); False testimony.

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma, Stephen P. Friot, J., of embezzling Indian tribal funds, and making a false statement to government agent. Defendant appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.

United Keetowah Band of Cherokee Indians of Oklahoma v. United States Department of Housing and Urban Developement
567 F.3d 1235
No. 08-7025
United States Court of Appeals, Tenth Circuit, June 5, 2009

Subjects: United Keetoowah Band of Cherokee Indians of Oklahoma; United States. Dept. of Housing and Urban Development; United States. Native American Housing Assistance and Self-Determination Act of 1996; Federal aid to housing.

*Synopsis: Indian tribe brought action challenging a final agency action by the United States Department of Housing and Urban Development (HUD) which drastically reduced the federal funding that the tribe received for housing under the Native American Housing Assistance and Self-Determination Act (NAHASDA). The United States District Court for the Eastern District of Oklahoma, Ronald A. White, J., rejected the tribe's challenge, and tribe appealed.

*Holding: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that HUD regulation imposing a non-need-based factor in its allocation formula was inconsistent with unambiguous statutory language, and therefore not entitled to Chevron deference.
Reversed and remanded.

Related News Stories: Cherokee tribes claim victory after housing ruling (Cherokee Phoenix) 6/15/09

May

Pyke v. Cuomo
567 F.3d 74
No. 07-0334-cv(L), 07-3524(CON)
United States Court of Appeals, Second Circuit, May 27, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Race discrimination -- New York (State); Discrimination in law enforcement -- New York (State); Equality before the law -- United States.

*Synopsis: Class of Native American anti-gambling demonstrators brought s 1983 action alleging that New York officials denied them equal protection by failing to provide police protection on reservation. The United States District Court for the Northern District of New York, McCurn, J., 2006 WL 3780808, granted summary judgment to defendants. Plaintiffs appealed.

*Holding: The Court of Appeals held that:
(1) New York officials' alleged roadblock policy did not amount to an express
racial classification, and
(2) decision to notify heavily armed Native American organization before
entering reservation was not an express racial discrimination.
Affirmed.

Pro Football, Inc. v. Harjo
565 F.3d 880
No. 03-7162
United States Court of Appeals, District of Columbia Circuit, May 15, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

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.

*Synopsis: Native Americans petitioned to cancel professional football team's trademark registrations on ground that registrations disparaged Native Americans. The Trademark Trial and Appeal Board (TTAB), 1999 WL 375907, cancelled registrations, and team sought judicial review. The district court granted summary judgment in favor of team. Defendants appealed. The Court of Appeals, 415 F.3d 44, remanded. The United States District Court for the District of Columbia, Colleen Kollar-Kotelly, J., 567 F.Supp.2d 46, granted judgment for team. Defendants appealed.

*Holding: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) district court did not abuse its discretion in finding trial prejudice;
(2) district court did not abuse its discretion in finding economic prejudice; and
(3) district court did not abuse its discretion in finding that 29 month delay evinced lack of reasonable diligence.
Affirmed.

Elliot v. White Mountain Apache Tribal Court
566 F.3d 842
No. 07-15041
United States Court of Appeals, Ninth Circuit, May 14, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Non-Indians; Law -- Tribes -- Application -- Non-members of a tribe; Civil actions arising on Indian reservations; Forest fires; Tribal courts; Jurisdiction -- Tribes; Exhaustion of tribal remedies; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.

*Synopsis: Non-Indian brought action against Native American Tribal Court, Tribal Judge, and Tribe, seeking injunctive and declaratory relief against defendants and from conducting any further proceedings in tribal court. The United States District Court for the District of Arizona, Mary H. Murguia, J., 2006 WL 3533147, dismissed the action and non-Indian appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) district court's decision was final;
(2) request for interlocutory appeal before tribal appellate court did not fully exhaust tribal remedies; and
(3) tribal jurisdiction was not plainly lacking.
Affirmed.

Wilkinson v. United States
564 F.3d 927
No. 07-2274
United States Court of Appeals, Eighth Circuit, May 6, 2009

Subjects: Trespass; United States. Federal Tort Claims Act; Wrongful death; Leases -- United States; United States. Bureau of Indian affairs -- Officials and employees; Payments -- United States; Rent charges -- Indian Country (U.S.); Trust lands -- Indian Country (U.S.); Standing to sue -- United States; Trusts and trustees -- United States.

*Synopsis: Owners, and their heirs, of descendable interests on allotted Indian land held in trust by the Bureau of Indian Affairs (BIA) brought action against United States alleging trespass of several family allotments, conversion of farm equipment, intentional infliction of emotional distress (IIED), and wrongful death under the Federal Tort Claims Act. The United States District Court for the District of North Dakota, Daniel L. Hovland, J., 314 F.Supp.2d 902, granted summary judgment for United States and plaintiffs appealed. The Court of Appeals, 440 F.3d 970, reversed and remanded. Following bench trial on remand, the District Court, Rodney S. Webb, Senior District Judge, 2007 WL 3544062, found in favor of plaintiffs on the trespass, conversion, and IIED claims and assessed damages. United States appealed.

*Holding: The Court of Appeals, Melloy, Circuit Judge, held that:
(1) BIA's leasing of allotments of Indian land did not amount to conversion of the owner's farming equipment, and
(2) noneconomic damages award of $232,407 was properly based on ongoing anguish BIA caused landowners.
Affirmed in part, reversed in part, and remanded.

Southern Ute Indian Tribe v. Leavitt
564 F.3d 1198
No. 07-2274
United States Court of Appeals, Tenth Circuit, May 4, 2009

Subjects: United States. Dept. of Health and Human Services; United States. Indian Self-Determination and Education Assistance Act; Contracts -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Medical care --Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.

*Synopsis: Indian tribe brought suit, under Indian Self-Determination and Education Assistance Act (ISDEAA), challenging declination of Department of Health and Human Services (HHS) to enter into self-determination contract with tribe for reservation health services, asserting claim under Administrative Procedure Act (APA), and seeking damages and injunctive relief. The United States District Court for the District of New Mexico, William P. Johnson, J., 497 F.Supp.2d 1245, granted tribe partial summary judgment as to self-determination contract and directed parties to draft form of injunctive relief, and subsequently issued second order in favor of HHS's approach as to contract start date and as to payment of contract support costs. Tribe appealed second order.

*Holding: The Court of Appeals, Henry, Chief Judge, held that:
(1) second order did not expressly grant injunctive relief, as would allow review;
(2) second order did not have practical effect of granting injunctive relief, as would allow review; and
(3) second order clarified, rather than modified, first order, thus precluding review.
Dismissed.

April

Solis v. Matheson
563 F.3d 425
No. 07-35633
United States Court of Appeals, Ninth Circuit, April 20, 2009

Subjects: Indian business enterprises -- On trust lands; United States. Fair Labor Standards Act of 1938; Overtime; Treaty rights; Jurisdiction -- United States; United States. Dept. of Labor. Office of the Secretary; Puyallup Tribe of the Puyallup Reservation, Washington -- Members.

*Synopsis: Secretary of labor brought action against owners of retail store located on trust land within Indian Reservation alleging failure to pay overtime wages to its employees as required by Fair Labor Standards Act (FLSA). The United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2007 WL 1830738, entered judgment in favor of Secretary. Owners appealed.

*Holding: The Court of Appeals, Ezra, District Judge, sitting by designation, held that:
(1) intramural exception to federal regulation did not apply to exempt retail store from FLSA;
(2) Treaty Rights Exception to federal regulation did not apply to exempt retail store from FLSA;
(3) Secretary of Labor had authority to enter reservation in order to locate records and investigate FLSA violations; and
(4) appointment of receiver was premature.
Affirmed in part and vacated in part.

Related News Stories: Lumbee recognition bill heads to full U.S. House (Fayetteville Observer) 4/23/09

Center for Biological Diversity v. United States Department of Interior
563 F.3d 466
No. 07-1247, 07-1344
United States Court of Appeals, District of Columbia, April 17, 2009

Subjects: Center for Biological Diversity; Alaska. Outer Continental Shelf; United States. Dept. of the Interior; Energy development; Offshore oil well drilling; United States. Outer Continental Shelf Lands Act; United States. National Environmental Policy Act of 1969; United States. Endangered Species Act of 1973; Standing to sue.

*Synopsis: Non-profit activist organizations petitioned for review of an order of the Department of Interior approving a five-year program to expand leasing areas within outer continental shelf (OCS) off coast of Alaska for offshore oil and gas development alleging violations of the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).

*Holding: The Court of Appeals, Sentelle, Chief Judge, held that:
(1) organizations failed to establish standing to challenge Department's
decision under a substantive standing theory;
(2) organizations established standing to challenge decision, under NEPA and
OCSLA, under procedural standing theory;
(3) organizations' NEPA and ESA claims were not ripe;
(4) Department relied on substantial baseline evidence in approving five-year
program, as required by OCSLA; and
(5) Department's sole reliance on shoreline study to measure environmental
sensitivity of OCS areas was inadequate.
Vacated and remanded.

Hydro Resources, Inc. v. United States Environmental Protection Agency
562 F.3d 1249
No. 07-9506
United States Court of Appeals, Tenth Circuit, April 17, 2009

Subjects: United States. Safe Drinking Water Act; Mining corporations; New Mexico; United States. Environmental Protection Agency; Hydro Resources, Inc.; Standing to sue; Navajo Nation, Arizona, New Mexico & Utah; Indian reservations -- Boundaries; Uranium mines and mining; Checkerboard Indian reservations; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Mining company and New Mexico Environmental Department (NMED) petitioned for judicial review of Environmental Protection Agency's (EPA) decision to implement, pursuant to Safe Drinking Water Act (SDWA), federal underground injection control (UIC) program on certain New Mexico lands. The Court of Appeals, 198 F.3d 1224, dismissed the petitions for review and remanded. On remand, the EPA determined that land on which company intended to operate uranium mine fell within a dependent Indian community. Company petitioned for review.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) company had standing;
(2) appropriate community of reference for assessing whether the land was within a dependent Indian community was local government organization of the Navajo Nation;
(3) land within geographic boundaries of organization was set aside by federal government for use of Indians as Indian land; and
(4) organization was under the superintendence of the federal government.
Petition denied.

Arizona Public Service Company v. United States Environmental Protection Agency
562 F.3d 1116
No. 07-9546, 07-9547
United States Court of Appeals, Tenth Circuit, April 14, 2009

Subjects: Coal-fired power plants -- On Indian reservations; United States. Clean Air Act; Arizona Public Service Company; United States. Environmental Protection Agency.

*Synopsis: Owner of coal-fired power plant on Indian reservation and environmental groups filed petitions under Clean Air Act (CAA) for review of Environmental Protection Agency (EPA) regulation authorizing source-specific federal plan for plant.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) plan's fugitive dust limit was severable from remainder of plan;
(2) tribal authority rule (TAR) did not require that plan improve air quality in
area surrounding plant; and
(3) EPA's decision to enact 20% opacity limit was not arbitrary and capricious.
Petitions granted in part and denied in part.

Barrett v. United States
561 F.3d 1140
No. 08-6017
United States Court of Appeals, Tenth Circuit, April 6, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Income tax -- Citizen Potawatomi Nation, Oklahoma -- Members; United States. Internal Revenue Service; Tribal trust funds -- Citizen Potawatomi Nation, Oklahoma; Citizen Potawatomi Nation, Oklahoma -- Officials and employees -- Salaries.

*Synopsis: Native American Tribe member brought action against United States, seeking refund of federal income taxes, penalties, and interest paid on compensation for services rendered as Tribal chairman. The United States District Court for the Western District of Oklahoma, Joe Heaton, J., entered summary judgment for U.S., and member appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that compensation paid to member was not exempt from federal income taxation.
Affirmed.

March

Freemanville Water System Inc. v. Poarch Band of Creek Indians
563 F.3d 1205
No. 08-10602 D.C., 07-00688-CV-WS
United States Court of Appeals, Eleventh Circuit, March 30, 2009

Subjects: Water treatment plants -- Design and construction -- Poarch Band of Creek Indians of Alabama; Sovereign immunity -- Poarch Band of Creek Indians of Alabama; United States. Consolidated Farm and Rural Development Act; Jurisdiction -- United States.

*Synopsis: Water authority brought action, under anti-curtailment provision of the Consolidated Farm and Rural Development Act of 1961, to preclude Indian tribe from developing its own water facilities and distribution system. The United States District Court for the Southern District of Alabama, No. 07-00688-CV-WS, William H. Steele, J., 2008 WL 80644, granted tribe's motion to dismiss, and water authority appealed.

*Holding: The Court of Appeals, Carnes, Circuit Judge, held that:
(1) pursuant to tribe's sovereign immunity, district court lacked jurisdiction to entertain water authority's action, and
(2) tribe's sovereign immunity extended to portions of planned water system that would have to run through non-tribal land.
Affirmed.

Related News Stories: Court upholds Ala. tribe's water system (Montgomery Advertiser) 3/30/09

In re Natural Gas Royalties
562 F.3d 1023
This opinion was withdrawn from the bound volume because the mandate was recalled and an amended opinion was reissued nunc pro tunc. For amended opinion, see 2009 WL 1336644.
No. 08-8004, 08-8008, 08-8010, 08-8011, 08-8012.
United States Court of Appeals,Tenth Circuit, March 17, 2009

Subjects: United States. False Claims Act; Royalties; Natural gas pipelines -- Indian Country (U.S.); Natural gas pipelines -- Public lands; Carbon dioxide.

*Synopsis: Relator appealed dismissal, by the United States District Court for the District of Wyoming, of five of his seven qui tam actions, under False Claims Act (FCA), alleging that natural gas companies underpaid royalties on carbon dioxide produced from federal and Indian lands.

*Holding: On consolidation of appeals the Court of Appeals, McConnell, Circuit Judge, held that first-to-file provision did not bar five of the seven qui tam actions.

Related News Stories: 10th Circuit dismisses oilman's claims of royalties fraud (Law.com) 3/20/09

Cheyenne Arapaho Tribes of Oklahoma v. United States
558 F.3d 592
No. 07-5399
United States Court of Appeals, District of Columbia, March 17, 2009

Subjects: Cheyenne-Arapaho Tribes of Oklahoma -- Compensation for taking; United States. Quiet Title Act; Fort Reno Military Reserve; Treaties -- Cheyenne-Arapaho Tribes of Oklahoma; Sovereign immunity -- United States; Discovery (Law).

*Synopsis: Indian tribes brought action against the United States, seeking to quiet title to land originally designated as part of a reservation and later set apart as a military installation. The United States District Court for the District of Columbia, Paul L. Friedman, J., 517 F.Supp.2d 365, dismissed the action for lack of subject matter jurisdiction and denied tribes' motion for a continuance to permit jurisdictional discovery. Tribes appealed.

*Holding: The Court of Appeals, Griffith, Circuit Judge, held that the District Court did not abuse its discretion in denying tribes' request for discovery.
Affirmed.

Tohono O'Odham Nation v. United States
559 F.3d 1284
No. 2008-5043
United States Court of Appeals, Federal Circuit, March 16, 2009

Subjects: Tribal trust funds -- Tohono O'odham Nation of Arizona; Breach of trust -- United States; Trusts and trustees -- United States; Jurisdiction; Natural resources -- Tohono O'odham Nation of Arizona -- Royalties.

*Synopsis: Indian tribe brought action against the United States, alleging the government breached its fiduciary duties as trustee of various funds and property owned by the tribe. The Court of Federal Claims, Eric G. Bruggink, J., 79 Fed.Cl. 645, entered order dismissing the tribe's action due to its separate action against the government in district court. The tribe appealed.

*Holding: The Court of Appeals, Linn, Circuit Judge, held that the tribe's district court action did not present the same claim as its Court of Federal Claims action.
Reversed and remanded.

Related News Stories: Federal Circuit ruling in Tohono O'odham trust case (Indianz.com) 3/16/09

Wolfchild v. United States
559 F.3d 1228
No. 2008-5018
United States Court of Appeals, Federal Circuit, March 10, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Fiduciary accountability -- United States; Trusts and trustees – Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims.

*Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to United States during 1862 Sioux Outbreak in Minnesota brought suit against United States for breach of fiduciary duty and contract in management of property originally provided for benefit of loyal Mdewakanton. The United States Court of Federal Claims, Charles F. Lettow, J., 62 Fed.Cl. 521, ruled that government had breached its fiduciary duties, and government filed interlocutory appeal.

*Holding: The Court of Appeals, Bryson, Circuit Judge, held that:
(1) Appropriations Acts did not create trust for benefit of loyal Mdewakanton and their lineal descendants;
(2) Act that transferred United States' interest in land purchased with funds from Appropriations Acts terminated any trust relationship created by Appropriations Acts; and
(3) Congress's change in identity of beneficiaries of Indian trust lands did not constitute compensable taking.
Reversed and remanded.

Related News Stories: Appeals court decision in Dakota trust case (Indianz.com) 3/10/09

February

United States v. Janis
556 F.3d 894
No. 08-1286
United States Court of Appeals, Eighth Circuit, February 26, 2009

Subjects: Evidence (Law); Embezzlement -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Officials and employees.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Karen E. Schreier, J., of theft or embezzlement from an Indian tribal organization. Defendant appealed.

*Holding: The Court of Appeals, Gruender, Circuit Judge, held that evidence was sufficient to support conviction.
Affirmed.

United States v. Cruz
554 F.3d 840
No. 07-30384
United States Court of Appeals, Ninth Circuit, February 10, 2009

Subjects: Jurisdiction -- United States; Indians of North America -- Defined; Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Assault and battery -- Browning (Mont.).

*Synopsis: Following denial of motion for acquittal, defendant was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., of assault resulting in serious bodily injury committed by an Indian on an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Reinhardt, Circuit Judge, held that insufficient evidence established that defendant was an Indian.
Reversed.

January

 

Wisconsin v. Stockbridge-Munsee Community
554 F.3d 657
No. 04-3834
United States Court of Appeals, Seventh Circuit, January 20, 2008

Subjects: Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Wisconsin; Gambling on Indian reservations -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Pine Hills Golf Course and Supper Club (Wis.); Indian gaming -- Class III -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Intergovernmental agreements -- Wisconsin; Indian Country (U.S.) -- Defined; Indian reservations -- Boundaries.

*Synopsis: State of Wisconsin filed action alleging that Indian tribe was operating Class III electronic games of chance on land located outside the boundaries of the tribe's reservation in violation of Indian Gaming Regulatory Act (IGRA). The United States District Court for the Eastern District of Wisconsin, Patricia J. Gorence, United States Magistrate Judge, 366 F.Supp.2d 698, denied defendants' motion for summary judgment and granted state's motion for summary judgment. Defendants appealed.

*Holding: The Court of Appeals, Evans, Circuit Judge, held that:
(1) 1981 Act intended to remove opened lands from the reservation, and
(2) 1906 Act effectively abolished the reservation.
Affirmed.

Philip Morris USA v. King Mountain Tobacco Company, Inc.
552 F.3d 1098
No. 06-36066
United States Court of Appeals, Ninth Circuit, January 20, 2008

Subjects: Phillip Morris USA; Jurisdiction -- United States; Jurisdiction -- Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes and Bands of the Yakama Nation, Washington -- Members; Indian business enterprises; Trademark infringement; Cigarettes.

*Synopsis: Cigarette maker brought action against tribal corporation selling cigarettes alleging various federal and state law claims, including trademark infringement, and seeking injunctive relief against tribal corporation's continued sale of its products. After the tribal corporation brought an action for declaratory relief against cigarette maker in tribal court, the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., granted tribal corporation's request to stay the proceedings pending the tribal court's determination of its jurisdiction. Cigarette maker appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.

 

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