Indian Law Bulletins  |  Federal Courts of Appeals  |  Archives 2010

Butte County, California v. Hogen
2010 WL 2735666
No. 09-5179
United States Court of Appeals, District of Columbia, July 13, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The issue in this appeal from the judgment of the district court arises from efforts of the Mechoopda Indian Tribe of Chico Rancheria in Butte County, California, to obtain federal approval to conduct gaming operations. The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, permits federally-recognized Indian tribes to conduct gaming on “Indian lands.” The Act defines “Indian lands” to mean all lands within any Indian reservation and “any lands title to which is ... held in trust by the United States for the benefit of any Indian tribe....” Id. § 2703(4). Indian gaming is not permitted on “newly acquired lands”-that is, lands the Secretary of the Interior took into trust for a tribe after October 17, 1988, when the Act went into effect. An exception to this bar allows Indian gaming on lands the Secretary takes into trust after the 1988 date “as part of ... the restoration of lands for an Indian tribe that is restored to Federal recognition.”

*Holding: not yet available

Gillette v. North Dakota Disciplinary Board Counsel
2010 WL 2696741
No. 09-1598
United States Court of Appeals, Eighth Circuit, July 9, 2010

Subjects: not yet available

*Synopsis: Attorney who was the subject of pending North Dakota disciplinary proceedings brought cause of action against the assistant disciplinary counsel of the Disciplinary Board of the Supreme Court of North Dakota to enjoin the proceedings. The United States District Court for the District of North Dakota, Daniel L. Hovland, Chief Judge, 593 F.Supp.2d 1063, granted Board's motion to dismiss. Attorney appealed.

*Holding: The Court of Appeals, Loken, Chief Circuit Judge, held that:
(1) North Dakota had extremely important state interest in assuring the professional conduct of the attorneys it licensed;
(2) North Dakota attorney disciplinary proceeding was ongoing state judicial proceeding; and
(3) equal protection challenge could be raised in pending disciplinary action.
Affirmed.

A.A. v. Needville Independent School District
2010 WL 2696846
No. 09-20091
United States Court of Appeals, Fifth Circuit, July 9, 2010

Subjects: not yet available

*Synopsis: Native American student and his parents sued school district alleging that exemption to the district's grooming policy requiring student to wear his long hair in a bun on top of his head or in a braid tucked into his shirt violated his rights under the federal constitution and the Texas Religious Freedom Restoration Act (TRFRA). The United States District Court for the Southern District of Texas, Keith P. Ellison, J., --- F.Supp.2d ----, 2009 WL 6318214, issued permanent injunction preventing school district from applying its grooming policy to student. School district appealed.

*Holding: The Court of Appeals, Patrick E. Higginbotham, Circuit Judge, held that:
(1) student had a sincere religious belief in wearing his hair visibly long;
(2) requirement that student wear his long hair in a bun or tucked inside his shirt if braided was a substantial burden on the free exercise of this belief;
(3) school district's interests in teaching hygiene, preventing disruption, and avoiding safety hazards were not compelling interests that justified the burden; and
(4) school district's interests in instilling discipline, asserting authority, and in uniformity were also not compelling interests.
Affirmed.

Related News Stories: Boy's right to long hair upheld (TheEagle.com) 07/10/10

Muscogee Creek Nation v. Oklahoma Tax Commission
2010 WL 2700535
No. 09-5123
United States Court of Appeals, Tenth Circuit, July 9, 2010

*Synopsis: Indian tribe brought action under § 1983 against the Oklahoma Tax Commission (OTC) and its commissioners in their official capacities, alleging OTC and the commissioners deprived the tribe of due process of law and violated its Fourth Amendment rights in stopping tribe vehicles outside Indian country, searching them for cigarettes failing to bear a tax stamp, and seizing unstamped cigarettes. The United States District Court for the Northern District of Oklahoma dismissed the complaint for lack of subject matter jurisdiction and for failure to state a claim. Tribe appealed.

*Holdings: The Court of Appeals, Baldock, Circuit Judge, held that:
(1) Eleventh Amendment barred claims against the OTC;
(2) Eleventh Amendment did not bar claims against the commissioners to the extent they requested a declaratory judgment that OTC's stops and searches of tribe vehicles were unlawful and a prohibitory injunction directing commissioners to cease interfering with tribe's vehicles and their lading;
(3) Eleventh Amendment barred claims against commissioners to the extent they requested an injunction directing the return of the seized cigarettes or damages to compensate tribe for monetary value of the cigarettes;
(4) tribe did not constitute a “person” entitled to bring suit for prospective relief against commissioners under § 1983; and
(5) Indian Commerce Clause did not, by itself, automatically bar or preempt state of Oklahoma from enforcing its cigarette tax laws outside Indian country.
Affirmed.

Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa
Briefs from Turtle Talk Blog
2010 WL 2671283
No. 09-2605
United States Court of Appeals, Eighth Circuit, July 7, 2010

Subjects: not yet available

*Synopsis: (from the opinion) After Attorney's Process and Investigation Services, Inc. (API), a Wisconsin corporation which provides security and consulting services to casino operators, was sued in tribal court by the Sac and Fox Tribe of the Mississippi in Iowa (the Tribe), API brought this action seeking a declaratory judgment that the tribal court lacked jurisdiction and an order compelling arbitration. The Tribe's lawsuit in tribal court alleged that API committed torts while seizing control of tribal facilities on the Sac and Fox reservation under a contract signed by Alex Walker, Jr., the former Chairman of the Tribal Council.

*Holding: not yet available

United States v. Alpine Land & Reservoir CO.
2010 WL 2640384
No. 08-16767
United States Court of Appeals, Ninth Circuit, July 1, 2010

Subjects: not yet available

*Synopsis: (from the opinion) This appeal arises from Ruling 5823 of the Nevada State Engineer, allocating groundwater rights in the Dayton Valley Hydrographic Basin (“the Basin”). The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed many of the applications. As with the Truckee Basin applications, the Tribe contended that the groundwater in the Basin was over-appropriated, and that granting the applications would impair their federally decreed water rights under the Orr Ditch Decree “by depleting flows in the Carson River and thereby reducing inflows to the Lahontan Reservoir to the detriment of senior water right holders in the Newlands Project who are entitled to divert Truckee River water to make up for insufficient Carson River flows, which would impact Pyramid Lake and its fishery.”

*Holding: not yet available

June

Equal Employment Opportunity Commission v. Peabody Western Coal Company
2010 WL 2572001
No. 06-17261
United States Court of Appeals, Ninth Circuit, June 23, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The Equal Employment Opportunity Commission (“EEOC”) appeals various rulings of the district court in its suit against Peabody Western Coal Company (“Peabody”). Peabody leases mines from the Navajo Nation (“the Nation”), and maintains a preference for employing Navajo workers at these mines. EEOC alleges that in maintaining its employment preference Peabody discriminates against non-Navajo Indians, including two members of the Hopi Nation and one member of the Otoe tribe, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). The district court first dismissed EEOC's suit in 2002. EEOC v. Peabody Coal Co.(“ Peabody I ”), 214 F.R.D. 549 (D.Ariz.2002). We heard EEOC's appeal from that dismissal in EEOC v. Peabody Western Coal Co. (“ Peabody II ”), 400 F.3d 774 (9th Cir.2005). We reversed, holding that it was feasible to join the Nation under Federal Rule of Civil Procedure 19 and that the suit did not present a nonjusticiable political question. On remand, the district court granted summary judgment to Peabody. EEOC appeals.

*Holding: not yet available

Te-Moak Tribe of Western Shoshone of Nevada v. United States Department of the Interior
608 F.3d 592
No. 07-16336
United States Court of Appeals, Ninth Circuit, June 18, 2010

Subjects: not yet available

*Synopsis: Native American Tribe and environmental organizations brought action against Department of the Interior and Bureau of Land Management, alleging amendment to plan of operations for existing mineral exploration project violated National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and Federal Land Policy and Management Act (FLPMA). Mine operator intervened as defendant, and plaintiffs moved for summary judgment. The United States District Court for the District of Nevada, Larry R. Hicks, J., entered order denying motion, and plaintiffs appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that:
(1) Bureau took sufficient hard look direct impact of amendment under NEPA;
(2) Bureau failed to sufficiently analyze amendment's cumulative impacts in
violation of NEPA;
(3) Bureau provided Tribe sufficient opportunity to identify concerns in
compliance with NHPA; and
(4) Bureau obtained sufficient description of proposed operations in compliance
with FLPMA.
Affirmed in part, reversed in part, and remanded.

Related News Stories: Court orders more study of US mine exploration. (AP Worldstream) 6/23/10. Tribe and others fail to stop gold mine on sacred site. (Environmental News Service) 6/23/10

Hydro Resources, Inc. v. United State Environmental Protection Agency
Briefs from Turtle Talk Blog
2010 WL 2376163
No. 07-9506
United States Court of Appeals, Tenth Circuit, June 15, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Everyone agrees that Hydro Resources, Inc. (“HRI”) must obtain a Safe Drinking Water Act (“SDWA” or “the Act”) permit to mine its property. The only question is: from whom? The Environmental Protection Agency (“EPA” or the “Agency”), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department (“NMED”), but with one exception: EPA has not delegated its authority to issue permits for mining activities on “Indian lands.” Thinking its land hardly qualified as “Indian land”-HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use-the company proceeded to apply for, and obtain, a permit from NMED. Initially, EPA professed no quarrel with this, and it has never questioned NMED's administration of the Act. But eventually a dispute broke out over the status of HRI's land and, after years of regulatory wrangling, EPA issued a “final land status determination” expressing its judgment that HRI's land qualifies as “Indian land.” As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED.

*Holding: not yet available

Related News Stories: Tenth Circuit rules in favor of Uranium Resources, Inc., in Indian country case. (Forbes.com) 6/15/10. Appeals court rules proposed uranium mine near Navajo town isn New Mexico is not on Indian land. (Los Angeles Times) 6/15/10.

Iowa Tribe of Kansas and Nebraska v. Salazar
2010 WL 2253537
No. 08-3277
United States Court of Appeals, Tenth Circuit, June 7, 2010

Subjects: not yet available

*Synopsis: Native American tribes and governor of Kansas brought action against Department of Interior, challenging federal government's title to real property held in trust for specific tribe. The United States District Court for the District of Kansas, Richard D. Rogers, District Judge, 2008 WL 4186890, dismissed action for lack of subject matter jurisdiction. Plaintiffs appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) tract was held in trust, and thus plaintiffs were required to proceed under Quiet Title Act (QTA), and
(2) court lacked subject matter jurisdiction, as Congress had not waived sovereign immunity as to QTA claims.
Appeal dismissed.

Yankton Sioux Tribe v. United States Army Corps of Engineers
2010 WL 2178929
No. 08-2255
United States Court of Appeals, Eighth Circuit, June 2, 2010

Subjects: not yet available

*Synopsis: Indian tribe sued Army Corps of Engineers (COE) for allegedly violating Water Resources Development Act (WRDA) by transferring and leasing to South Dakota several recreational areas purportedly located within external boundaries of Indian reservation. The United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 2008 WL 895830, granted COE summary judgment, and 2009 WL 1097538, denied tribe's motion for relief from judgment. Tribe appealed.

*Holding:The Court of Appeals, Loken, Chief Judge, held that:
(1) recreational areas were outside external boundaries of reservation;
(2) tracts formerly held in trust were outside external boundaries of reservation; and
(3)Attorney General was not disqualified from representing COE.
Affirmed on other grounds.

United States v. Gallaher
2010 WL 2179162
No.09-30193
United States Court of Appeals, Ninth Circuit, June 2, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe's governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.

*Holding: not yet available

May

Miccosukee Tribe of Indians of Florida v. Kraus- Anderson Construction Company
2010 WL 2138957
No. 07-13039 D.C., 04-22774-CV-UU
United States Court of Appeals, Eleventh Circuit, May 28, 2010

Subjects: not yet available

*Synopsis: Miccosukee Tribe brought suit to enforce tribal court judgment against contractor. The United States District Court for the Southern District of Florida, Ursula Ungaro, J., 04-22774-CV-UU, granted contractor summary judgment on ground that disallowance of contractor's appeal of tribal court judgment violated due process. Tribe appealed.

*Holding: The Court of Appeals, Tjoflat, Circuit Judge, held that federal question jurisdiction was lacking.
Reversed and remanded with instruction.

United States v. Confederated Tribes of the Colville Indian Reservation
606 F.3d 698
No. 08-35961, 08-35963
United States Court of Appeals, Ninth Circuit, May 27, 2010

Subjects: not yet available

*Synopsis: United States brought action against states on behalf of Native American tribes to define treaty fishing rights. Confederation of tribes intervened as defendant, 43 F.3d 1284. The United States District Court for the District of Oregon, Malcolm F. Marsh, J., dismissed confederation's claim on behalf of constituent tribe and confederation appealed. The Court of Appeals, Hug, Circuit Judge, 470 F.3d 809, reversed and remanded. On remand, the District Court, Garr M. King, Senior District Judge, 2008 WL 1711525, denied constituent tribe's motion for partial summary judgment, except to extent of confirming district court's prior decisions. United States appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) 1894 agreement provided constituent tribe with non-exclusive fishing rights at fishery;
(2) confederation did not relinquish all fishing rights held in fishery when it signed 1894 agreement; and
(3) constituent tribe did not have primary rights at fishery.
Affirmed.

Yellowbear v. Attorney General of the State of Wyoming
2010 WL 2053516
No. 09-8069
United States Court of Appeals, Tenth Circuit, May 25, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Andrew John Yellowbear, Jr., a Wyoming state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254 from his state conviction for the murder of his daughter. Mr. Yellowbear argues that the Wyoming state courts that heard his case lacked jurisdiction because the crime occurred in a federal Indian reservation. The Wyoming Supreme Court rejected this argument on direct appeal, explaining that the land in question is not within an Indian reservation. Later, a federal district court denied Mr. Yellowbear's § 2254 habeas petition challenging this ruling. Today, we affirm the district court's disposition.

*Holding: not yet available

Unalachtigo Band of the Nanticoke Lenni Lenape Nation v. Corzine
Briefs from Turtle Talk Blog
2010 WL 2038844
No. 08-2775
United States Court of Appeals, Third Circuit, May 25, 2010

Subjects: not yet available

*Synopsis: The Unalachtigo Band of Nanticoke-Lenni Lenape Nation filed complaint, based on Nonintercourse Act, seeking possession of land in New Jersey that previously constituted the Brotherton Indian reservation. The Stockbridge-Munsee Community intervened, claiming non-frivolous interest in the property and moved to dismiss for failure to join it as indispensable party. The United States District Court for the District of New Jersey, Joseph H. Rodriguez, J., dismissed complaint sua sponte for lack of standing and denied Community's motion to dismiss. Community appealed.

*Holding: The Court of Appeals, Michel, Circuit Judge, sitting by designation, held that district court lacked jurisdiction to rule on Community's motion once it determined that Band's complaint should be dismissed for lack of standing.
Vacated in part.

This Opinion was withdrawn. See 6/2/10 opinion - United States v. Gallaher
Briefs from Turtle Talk Blog
2010 WL 1980932
No. 09-30193
United States Court of Appeals, Ninth Circuit, May 19, 2010

Subjects: not yet available

*Synopsis: Following denial of his motion to dismiss indictment which charged him with first-degree murder on an Indian reservation, defendant pleaded guilty, in the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief Judge, to involuntary manslaughter. He appealed.

*Holding: The Court of Appeals, Fisher, Circuit Judge, held that defendant was subject to the unlimited federal statute of limitations for capital crimes even though he was not eligible for the death penalty. Affirmed. Tashima, Circuit Judge, filed dissenting opinion.

Evans v. United States Department of Interior
2010 WL 1905022
No. 08-35938
United States Court of Appeals, NInth Circuit, May 13, 2010

Subjects: not yet available

*Synopsis: Tribes of the Tulalip Reservation sought to intervene in action brought by the Snohomish Tribe of Indians to achieve federal recognition. The United States District Court for the Western District of Washington, John C. Coughenour, J., denied intervention. Tulalip Tribes appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that Tulalip Tribes were not entitled to ntervene.
Affirmed.

Eagle v. Yerington Paiute Tribe
2010 WL 1816756
No. 08-16786
United States Court of Appeals, NInth Circuit, May 7, 2010

Subjects: not yet available

*Synopsis: Following her conviction, in an Indian tribal court, of criminal child abuse, petitioner sought writ of habeas corpus. The United States District Court for the District of Nevada, Larry R. Hicks, J., denied the petition, and petitioner appealed.

*Holding: The Court of Appeals, Thompson, Senior Circuit Judge, held that Indian Tribe was not required to plead and prove petitioner's Indian status beyond a reasonable doubt.
Affirmed.

Yankton Sioux Tribe v. Podhradsky
2010 WL 1791365
No. 08-1441/1448
United States Court of Appeals, Eighth Circuit, May 6, 2010

Subjects: not yet available

*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: On petition for rehearing, 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.

Cottier v. City of Martin
2010 WL 1780054
No. 07-1628
United States Court of Appeals, Eighth Circuit, May 5, 2010

Subjects: not yet available

*Synopsis:Action was brought on behalf of Native American voters challenging configuration of city wards as violative of the Voting Rights Act (VRA) and the Fourteenth and Fifteenth Amendments. The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, denied relief, and voters appealed. The Court of Appeals, 445 F.3d 1113, reversed and remanded. On remand, the District Court, Schreier, Chief Judge, found that ordinance violated the VRA, 466 F.Supp.2d 1175, and imposed remedy, 475 F.Supp.2d 932. City appealed. The Court of Appeals affirmed, 551 F.3d 733, and rehearing en banc was granted.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) law of the case doctrine did not preclude Court of Appeals, sitting en banc
following entry of final judgment, from considering issues raised in prior panel
decision in same case;
(2) an en banc court may overrule an erroneous panel opinion filed at an earlier
stage of the same case, overruling Robertson Oil Co. v. Phillips Petroleum Co., 14
F.3d 373; and
(3) plaintiffs failed to show that white majority in city voted sufficiently as
a bloc to enable it usually to defeat the minority's preferred candidate in city
council elections, as precondition to vote dilution claim. Vacated and remanded. Smith, Circuit Judge, filed dissenting opinion in which Murphy, Bye, and Melloy, Circuit Judges, joined.

April

Oneida Indian Nation of New York v. Madison County
2010 WL 1659452
Briefs & Pleadings from Turtle Talk Blog
No. 05-6408-cv (L), 06-5168-cv (CON), 06-5515-cv (CON)
United States Court of Appeals, Second Circuit, April 27, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: In first case, Indian tribe brought action against county, alleging that parcels of land that tribe had purchased within boundaries of former reservation were exempt from taxation. The United States District Court for the Northern District of New York, Hurd, J., 145 F.Supp.2d 226, 145 F.Supp.2d 268, determined that parcels were not taxable, and county appealed. The Court of Appeals, 337 F.3d 139, vacated judgment, and certiorari was granted. The Supreme Court, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386, reversed and remanded. On remand parties cross-moved for summary judgment. The District Court, Hurd, J., entered summary judgment in favor of tribe, 401 F.Supp.2d 219, and denied county's motion for relief from judgment, 235 F.R.D. 559. County appealed. In second case, tribe brought action against another county seeking declaratory and injunctive relief preventing county from foreclosing on property owned by tribe in that county for non-payment of taxes, and separate Indian band sought to intervene. The United States District ourt for the Northern District of New York, Hurd, J., entered summary judgment in favor of tribe and denied motion to intervene, 432 F.Supp.2d 285. County appealed, and cases were consolidated on appeal.

*Holding: The Court of Appeals, Sack, Circuit Judge, held that:
(1) tribe's sovereign immunity from suit barred counties' actions to foreclose, and
(2) proposed intervenor was not a necessary party.
Affirmed.

Related News Stories: Tribes stave off land foreclosure in tax case (Courthouse News Service) 4/30/10. 2nd Circuit blocks foreclosure suits against Oneida Nation (Indianz.com) 04/27/10.

Burrell v. Armijo
2010 WL 1662482
No. 09-2034, 09-2039, 09-2154
United States Court of Appeals, Tenth Circuit, April 27, 2010

Subjects: not yet available

*Synopsis: Farm lessees sued federally-recognized Indian tribe and tribal governor and lieutenant governor, inter alia, alleging violations of their federal civil rights and breach of farm lease. After a jury found governor and lieutenant governor liable for discriminating and conspiring to discriminate against lessees, those officials moved for judgment as a matter of law based in part on sovereign immunity. The United States District Court for the District of New Mexico granted motion as to lieutenant governor, denied motion as to governor, and awarded attorney's fees to lessees as prevailing parties. Lessees and governor appealed.

*Holding: The Court of Appeals, Tacha, Circuit Judge, held that:
(1) governor was entitled to judgment as a matter of law based on sovereign immunity, and
(2) any error in district court's grant of motion to strike portions of complaint was harmless.
Affirmed in part and reversed in part.

United States v. Bell
602 F.3d 1074
No. 05-1615
United States Court of Appeals, Ninth Circuit, April 20, 2010

Subjects: not yet available

*Synopsis: United States brought action against Truckee-Carson Irrigation District (TCID), which managed project controlling diversions from the Truckee and Carson Rivers, TCID's board members, and all water users in the project as a class, seeking to recoup over one million acre-feet (af) of water diverted in excess of applicable operating criteria and procedures (OCAPs). Pyramid Lake Paiute Tribe intervened. The United States District Court for the District of Nevada, Howard D. McKibben, J., awarded the government just under 200,000 af, and postjudgment water interest, and denied TCID attorney fees under the Equal Access to Justice Act (EAJA). Appeals were brought.

*Holding: The Court of Appeals, Schroeder, Circuit Judge, held that:
(1) Settlement Act authorized government to seek recoupment of excess diversions for prior violations;
(2) determination that water rights holders had no liability did not require dismissal of water rights holders from lawsuit; and
(3) district court did not abuse its discretion in determining that water rights holders were not “prevailing parties” entitled to costs.
Affirmed in part, vacated in part, and remanded.

Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger
602 F.3d 1019
Briefs & Pleadings from Turtle Talk Blog
No. 08-55809, 08-55914
United States Court of Appeals, Ninth Circuit, April 20, 2010

Subjects: not yet available

*Synopsis: Rincon Band of Luiseno Mission Indians filed action against State of California alleging violation of Indian Gaming Regulatory Act (IGRA). The United States District Court for the Southern District of California, William McCurine, United States Magistrate Judge, 2008 WL 6136699, granted judgment for plaintiff. State appealed.

*Holding: The Court of Appeals, Milan D. Smith, Jr., Circuit Judge, held that:
(1) state's non-negotiable demand for mandatory payment of 10-15% of Indian tribe's net profits, to be paid into state treasury for unrestricted use, was impermissible demand for payment of tax by tribe;
(2) general fund revenue sharing is not “directly related to the operation of gaming activities,” and thus is not an authorized subject of negotiation under the IGRA;
(3) state could not use exclusivity to Indian tribe as new consideration for new types of revenue sharing;
(4) state's offer to Indian tribe to acquiesce to permanent injunction to enforce non-tribal gaming exclusivity, and monetary remedies contingent upon that event, could not form basis for good faith negotiations for gaming rights;
(5) state did not make meaningful concessions, as required by IGRA to negotiate for gaming rights in good faith, by offering bundle of rights more valuable than status quo; and
(6) state could not have reasonably relied on approval of certain other compacts by Department of Interior (DOI) as proof of lawfulness of its non-negotiable demands.
Affirmed.

Related News Stories: Rincon decision a dangerous victory for U.S. tribes (GamblingCompliance) 4/30/10

United States v. Begay
602 F.3d 1150
No. 09-2163
United States Court of Appeals, Ninth Circuit, April 12, 2010

Subjects: not yet available

*Synopsis: In prosecution for aggravated sexual abuse of a child in Indian Country, government filed interlocutory appeal of order of the United States District Court for the District of New Mexico, M. Christina Armijo, J., which dismissed superseding indictment.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that government's
delay in seeking superseding indictment did not warrant dismissal.
Reversed and remanded.

United States v. Orr Water Ditch Co.
2010 WL 1338127
No. 07-17001
United States Court of Appeals, Ninth Circuit, April 7, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action for review of decision of the Nevada State Engineer which allocated certain groundwater rights. The United States District Court for the District of Nevada, Lloyd D. George, J., dismissed, and tribe appealed.

*Holding:The Court of Appeals, William A. Fletcher, Circuit Judge, held that:
(1) district court decree which allocated to Indian tribe senior rights to water in river did not adjudicate only rights to surface water in the river, but forbade groundwater allocations that adversely affected tribe's decreed water rights, and
(2) under Nevada law, district court had subject matter jurisdiction over Indian tribe's petition for review.
Reversed and remanded.

March

Dobbs v. Anthem Blue Cross and Blue Shield
2010 WL 1225342
Briefs & Pleadings from Turtle Talk Blog
No. 07-1398, 07-1402
United States Court of Appeals, Tenth Circuit, March 31, 2010

Subjects: not yet available

*Synopsis: Beneficiaries of group health insurance policy purchased under employee benefit plan established by Indian tribe brought suit against health insurer in state court, asserting state law causes of action. Insurer removed action and moved to dismiss all claims on basis of Employee Retirement Income Security Act (ERISA) preemption. The United States District Court for the District of Colorado, Lewis T. Babcock, J., dismissed claims, and beneficiaries appealed. The Court of Appeals, Tacha, Chief Judge, 475 F.3d 1176, vacated and remanded. On remand, insurer renewed motion to dismiss. The District Court, Babcock, J., 2007 WL 2439310, granted motion. Beneficiaries appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Pension Protection Act (PPA) section which amended ERISA's exception for governmental plans to include plans established and maintained by Indian tribal government applied retrospectively;
(2) remand was warranted for factual determination as to whether subject plan was a “governmental plan” within meaning of amended ERISA definition; and
(3) the Woodworker's rule did not apply to beneficiaries' claims so as to save them from preemption.
Reversed and remanded.

Menominee Tribal Enterprises v. Solis
2010 WL 1050273
Briefs & Pleadings from Turtle Talk Blog
No. 09-2806
United States Court of Appeals, Seventh Circuit, March 24, 2010

Subjects: not yet available

*Synopsis: Tribal entity that operated sawmill owned by Indian tribe petitioned to review Department of Labor's rejection of entity's contention that it was exempt from the Occupational Safety and Health Act (OSHA).

*Holding: The Court of Appeals, Posner, Circuit Judge, held that:
(1) treaty did not exempt Indian tribe's sawmill operation from OSHA, and
(2) management plan associated with tribe's Restoration Act did not exempt sawmill from operation of OSHA. Petition denied.

Related News Stories: Indian Tribe's sawmill must comply with OSHA: 7th Circ. (Law360) 03/26/10

Jeffredo v. Macarro
2010 WL 1006977
Briefs & Pleadings from Turtle Talk Blog
No. 08-55037
United States Court of Appeals, Ninth Circuit, March 22, 2010

Subjects: not yet available

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

*Holding: The Court of Appeals, N.R. Smith, Circuit Judge, held that:
(1) plaintiffs were not detained, and
(2) plaintiffs had not exhausted their tribal remedies.
Affirmed.
Wilken, District Judge, sitting by designation, filed dissenting opinion.
Opinion, 590 F.3d 751, superseded.

Eastern Shawnee Tribe of Oklahoma v. United States
598 F.3d 1326
No. 2008-5102
United States Court of Appeals, Federal Circuit, March 17, 2010

Subjects: not yet available

*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. The Court of Appeals, Dyk, Circuit Judge, 582 F.3d 1306, reversed and remanded. Government petitioned for panel rehearing.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that pendency of claims statute required dual test to bar Indian tribe's claims in Court of Federal Claims. Petition denied.

United States v. Maggi
2010 WL 917199
Briefs & Pleadings from Turtle Talk Blog
No. 08-30223, 09-30052
United States Court of Appeals, Ninth Circuit, March 16, 2010

Subjects: not yet available

*Synopsis: Defendants with Indian blood were convicted under the Major Crimes Act in unrelated trials in the United States District Court for the District of Montana, Sam E. Haddon, J., for aggravated sexual abuse of a minor in Indian country and for assault with a dangerous weapon and firearms offenses during a crime of violence on Indian reservation. Defendants appealed.

*Holding: On consolidation of appeals, the Court of Appeals, McKeown, Circuit
Judge, held that:
(1) defendant whose Indian tribe was not federally recognized and whose other
Indian blood was 11/64ths was not shown to be an "Indian" within the meaning of
the Act, and
(2) defendant who was descendant member of federally recognized tribe was not an
Indian under the Act.
Reversed, and convictions vacated.

Hoopa Valley Tribe v. United States
2010 WL 774325
No. 2009-5084
United States Court of Appeals, Federal Circuit, March 9, 2010

Subjects: not yet available

*Synopsis: Indian tribe sued United States, claiming breach of fiduciary duty arising from distribution of remaining revenue in settlement fund established by Hoopa-Yurok Settlement Act. The United States Court of Federal Claims, Thomas C. Wheeler, J., 86 Fed.Cl. 430, dismissed for lack of standing. Tribe appealed.

*Holding: The Court of Appeals, Moore, Circuit Judge, held that tribe lacked injury in fact for standing to challenge settlement fund distribution. Vacated and remanded. Friedman, Circuit Judge, filed dissenting opinion.

Morris v. Nuclear Regulatory Commission
598 F.3d 677
No. 07-9505
United States Court of Appeals, Tenth Circuit, March 8, 2010

Subjects: not yet available

*Synopsis: Non-profit environmental education organization, community organization, and two local ranchers petitioned for review of determinations of the Nuclear Regulatory Commission (NRC), 1999 WL 680115, 2004 WL 3247603, and 2006 WL 1333543, in issuing a license to conduct in situ leach (ISL) mining for uranium at multiple sites.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:

Related News Stories: 10th Circuit split on uranium activity on Navajo Nation (Indianz.com) 3/9/10.

Osage Nation v. Irby.
2010 WL 745718
No. 09-5050
United States Court of Appeals, Tenth Circuit, March 5, 2010

Subjects: not yet available

*Synopsis:Indian tribe brought action against State of Oklahoma, Oklahoma Tax Commission, and Commission's members seeking declaration that tribe's reservation had not been disestablished and remained Indian country, and that tribe members who were employed and resided within reservation's geographical boundaries were exempt from paying state income tax, and seeking injunction prohibiting defendants from collecting income tax from such members. Following reversal of its decision to allow the suit to proceed against the State and the Tax Commission, 260 Fed.Appx. 13, the United States District Court for the Northern District of Oklahoma, James H. Payne, J., 597 F.Supp.2d 1250, granted summary judgment to remaining defendants. Tribe appealed.

*Holding: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that Osage reservation was disestablished by Congress. Affirmed.

City of New York v. Golden Feather Smoke shop, Inc.
2010 WL 724707
No. 09-3942-cv (L), 09-3997-cv (CON)
United States Court of Appeals, Second Circuit, March 4, 2010

Subjects: not yet available

*Synopsis: City brought action against businesses and proprietors that sold cigarettes on Native American reservation land, seeking injunctive relief, penalties, and damages under the Contraband Cigarette Trafficking Act (CCTA) and New York's Cigarette Marketing Standards Act (CMSA). After denying defendants' motion to dismiss for lack of subject-matter jurisdiction on grounds of tribal sovereign immunity, 2009 WL 705815, the United States District Court for the Eastern District of New York, Amon, J., 2009 WL 2612345, granted the city a preliminary injunction that enjoined the sale of untaxed cigarettes other than to members of the reservation's nation for their personal use. Defendants appealed.

*Holding: The Court of Appeals, Hall, Circuit Judge, held that:
(1) city was not required to make a showing of irreparable harm to obtain a preliminary injunction under either the CCTA or the CMSA, and
(2) certification of questions to the New York Court of Appeals was warranted to resolve the issue of whether the provisions of New York's tax code imposing a tax on cigarettes and setting up a tax-exempt coupon program for cigarette sales on Native American reservations either individually or in combination imposed a tax on cigarettes sold on reservations when some or all of those cigarettes might be sold to persons other than members of the reservation's nation or tribe.
Questions certified.

February

United States v. Other Medicine
596 F.3d 677
No. 09-30020
United States Court of Appeals, Ninth Circuit, February 26, 2010

Subjects: not yet available

*Synopsis: After defendant entered a conditional guilty plea, in the United States District Court for the District of Montana, Richard F. Cebull, Chief Judge, to felony child abuse under the Major Crimes Act (MCA), he appealed.

*Holding: The Court of Appeals, Fisher, Circuit Judge, held that:
(1) Government had jurisdiction, and
(2) provision of MCA prohibiting felony child abuse in Indian country was not
unconstitutionally vague as applied to defendant.
Affirmed.

United States v. LittleWind
595 F.3d 876
No. 08-4000
United States Court of Appeals, Eighth Circuit, February 26, 2010

Subjects: not yet available

*Synopsis: Following denial of defendant's motion in limine to exclude evidence of prior bad acts, 2008 WL 3906090, defendant was convicted in the United States District Court for the District of North Dakota, Ralph R. Erickson, J., of assault with a dangerous weapon, assault resulting in serious bodily injury, and discharge of a firearm during a crime of violence. Defendant appealed.

*Holding: The Court of Appeals, Hansen, Circuit Judge, held that:
(1) admission of defendant's prior tribal court convictions was warranted as
other acts evidence, and
(2) evidence was sufficient to support convictions.
Affirmed.

January

United States v. Washington
2010 WL 293112
No. 08-35794
United States Court of Appeals, Ninth Circuit, January 27, 2010

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. Tribe appealed. The Court of Appeals, 394 F.3d 1152, reversed. On remand, the District Court, Ricardo S. Martinez, J., 2008 WL 6742751, again denied relief. Tribe 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

Upper Skagit Indian Tribe v. Washington
590 F.3d 1020
No. 07-35061
United States Court of Appeals, Ninth Circuit, January 5, 2010

Subjects: not yet available

*Synopsis: Upper Skagit Tribe filed request for determination that Saratoga Passage and Skagit Bay were not within Suquamish Tribe's 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 previously 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 Tribe summary judgment. Suquamish Tribe appealed.

*Holding: On rehearing, the Court of Appeals, Kleinfeld, Circuit Judge, held that Suquamish Tribe's treaty right, as adjudicated by district court, was not intended to include Saratoga Passage and Skagit Bay. Affirmed.

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