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December

Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort
Briefs from Turtle Talk Blog
629 F.3d 1173
Nos. 08-1298, 08-1305, 08-1317.
United States Court of Appeals, Tenth Circuit, December 27, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Provider of business management training and consulting services brought action against tribe's Economic Development Authority and its Casino, alleging that defendants paid for single-person license for one of provider's online training programs and then recorded and used portions of program without permission to train more than one employee. The United States District Court for the District of Colorado, Marcia S. Krieger, J., 2007 WL 2701995,granted dismissal in part and, 2008 WL 3211286, denied reconsideration. Casino and its owner and operator appealed.

*Holdings:The Court of Appeals, Holmes, Circuit Judge, held that:
(1) District Court did not abuse its discretion in denying provider's request for limited jurisdictional discovery to resolve issue of tribal sovereign immunity;
(2) District Court did not abuse its discretion in preventing provider from calling what it deemed to be necessary witnesses to resolve issue of tribal sovereign immunity at evidentiary hearing:
(3) method of creation of Authority and Casino weighed in favor of conclusion that entities were subordinate economic entities which shared in tribe's sovereign immunity;
(4) purpose of Authority and Casino weighed in favor of granting entities tribal sovereign immunity; (5) structure, ownership, and management of Authority and Casino weighed both for and against conclusion that entities were subordinate economic entities which shared in tribe's sovereign immunity;
(6) tribe clearly intended for Authority and Casino to share in tribal sovereign immunity;
(7) financial relationship between tribe, Authority and Casino weighed in favor of entities' tribal sovereign immunity; and
(8) overall purposes of immunity would be served by conclusion that Authority and Casino shared in tribe's sovereign immunity.
Reversed and remanded.

Arctic Slope Native Association, Ltd. v. Sebelius
629 F.3d 1296
No. 2010-1013.
United States Court of Appeals, Federal Circuit, December 15, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Association of Native-American tribes, which provided health care services to its members under self-determination contracts entered pursuant to the Indian Self-Determination and Education Assistance Act (ISDA), brought action against the Secretary of the Department of Health and Human Services (HHS), alleging breach of contract related to government's failure to pay association's contract support costs shortfall for two fiscal years. The Civilian Board of Contract Appeals, Candida S. Steel and Jeri Kaylene Somers, Administrative Judges, granted summary judgment in favor of HHS. Association appealed.

*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that:
(1) “not to exceed” language in appropriations acts imposed statutory cap on HHS's obligations;
(2) availability of funds provision in contract, coupled with appropriations acts, limited HHS's obligations to appropriated amounts; and
(3) contract expressly warned association of risk that funding would be inadequate to fully fund HHS's obligations.
Affirmed.

November

Lyon v. Gila River Indian Community
626 F.3d 1059
Nos. 08-15570, 08-15712.
United States Court of Appeals, Ninth Circuit, November 24, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Chapter 11 trustee of the bankruptcy estate of debtors, who had acquired a 657-acre parcel of land completely surrounded by Indian reservation land, brought action against Indian tribe, seeking a declaratory judgment that the estate had legal title and access to the parcel. Following withdrawal of the reference and denial of tribe's motion to dismiss, the United States District Court for the District of Arizona, James A. Teilborg, J., granted trustee's summary judgment motion in part, ruling that tribe did not hold aboriginal title to the parcel, 2007 WL 1526741, and, after bench trial, concluded that trustee had an implied easement over a particular road, that trustee had a right of access over a different road, and that issue of tribe's zoning authority over the parcel was not ripe for decision, 384 B.R. 263. Cross-appeals were taken.

*Holdings: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) the United States was not a necessary party to the dispute over the tribe's aboriginal title claim; (2) the United States was not an indispensable party to adjudication of claims regarding trustee's rights of access to the parcel;
(3) individual Indian allottees of land surrounding the parcel were not indispensable parties;
(4) trustee's claim of a pre-existing easement to access the parcel was not preempted by regulatory scheme for obtaining new easements over Indian lands;
(5) the district court properly implied an easement to the parcel in the federal government's grant of the parcel to Arizona as part of a school land grant, and that easement was not disturbed by the subsequent expansion of the reservation;
(6) the district court erred in refusing to take judicial notice of official action taken by the Bureau of Indian Affairs (BIA) in removing relevant section of road from the Indian Reservation Road (IRR) inventory;
(7) the district court erred in applying laches to conclude that a section of road was an IRR;
(8) trustee had standing to assert his claim that the roads in question were "public roads" under a now-repealed federal statute;
(9) trustee failed to show that Arizona established the roads in question as public highways crossing public lands, as required for them to fall within the subject statute;
(10) tribe's aboriginal title to the parcel was extinguished when the federal government conveyed the land to Arizona; and
(11) issue of whether tribe had zoning authority over parcel was not ripe for decision.
Affirmed in part; vacated and remanded in part.

Nahno-Lopez v. Houser
625 F.3d 1279
No. 09-6258.
United States Court of Appeals, Tenth Circuit, November 9, 2010

*Synopsis: Two groups of Native American plaintiffs, consisting of the alleged owners of an allotment of land and the alleged leaseholders for a portion of that allotment, brought action, under Federal and Oklahoma law, against the Tribal Council of a different tribe, that tribe's manager, and the tribe's casino, alleging that a portion of the allotment was trespassed upon by the casino. The United States District Court for the Western District of Oklahoma, Stephen P. Friot, J., 627 F.Supp.2d 1269, granted in part and denied in part defendants' motion to dismiss, and subsequently granted defendants' motion for summary judgment on remaining claims. Plaintiffs appealed.

*Holdings:The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that:
(1) plaintiffs' complaint could be fairly construed to articulate viable claim for federal common-law trespass for which allotment statute provided jurisdiction, but
(2) plaintiffs' consent to tribe's presence on allotment precluded recovery for trespass.
Affirmed.

Akiak Native Community v. United States Environmental Protection Agency
625 F.3d 1162
No. 08-74872.
United States Court of Appeals, Ninth Circuit, November 4, 2010

*Synopsis: Akiak Native Community and other petitioners and intervenors petitioned for review of decision of Environmental Protection Agency (EPA) approving Alaska's application to assume responsibility for administration of portions of National Pollutant Discharge Elimination System (NPDES).

*Holdings: The Court of Appeals, Clifton, Circuit Judge, held that:
(1) Alaska provided for adequate judicial review;
(2) Alaska had adequate enforcement remedies; and
(3) transfer of NPDES program to Alaska did not trigger subsistence evaluation under Alaskan National Interest Lands Conservation Act (ANILCA).
Petition denied.

October

Gonzalez v. Arizona
624 F.3d 1162
Nos. 08-17094, 08-17115
United States Court of Appeals, Ninth Circuit, October 26, 2010

*Synopsis: Arizona residents and Indian tribes filed actions challenging validity of proposition requiring prospective voters in Arizona to present documentary proof of citizenship in order to register to vote and requiring registered voters to present proof of identification in order to cast ballot at polls. Actions were consolidated. The United States District Court for the District of Arizona, Roslyn O. Silver, J., entered judgment in state's favor, and plaintiffs appealed.

*Holdings: The Court of Appeals, Ikuta, Circuit Judge, held that:
(1) Arizona's requirement that prospective voters provide documentary proof of citizenship was superseded by National Voter Registration Act (NVRA);
(2) law of the case doctrine did not bar panel from reconsidering issue following remand from earlier decision;
(3) requirement that voters provide proof of identification before voting at polls did not violate Voting Rights Act (VRA); and
(4) requirement that voters show identification at polls was not poll tax.
Affirmed in part and reversed in part.

Nebraska v. United States Dept. of Interior
625 F.3d 501
No. 09-1657.
United States Court of Appeals, Eight Circuit, October 19, 2010

*Synopsis: Iowa and Nebraska brought suit challenging decision of the National Indian Gaming Commission (NIGC) that the Ponca Tribe of Nebraska's five-acre parcel in Iowa was eligible for gaming under Indian Gaming Regulatory Act (IGRA) as land taken into trust as part of "the restoration of lands for an Indian tribe that is restored to Federal recognition." The United States District Court for the Southern District of Iowa, Charles R. Wolle, J., reversed. NIGC and the Department of the Interior (DOI) appealed.

*Holdings: The Court of Appeals, Smith, Circuit Judge, held that:
(1) Corrected Notice was not a "restored lands" determination by DOI, and
(2) whether Ponca Restoration Act (PRA) limited Tribe's "restored lands" to two counties in Nebraska was for DOI. Remanded with instructions. Kornmann, District Judge, sitting by designation, filed dissenting opinion.

Nisqually Indian Tribe v. Gregoire
623 F.3d 923
No. 09-35725
United States Court of Appeals, Ninth Circuit, October 4, 2010

*Synopsis: Indian tribe located in federally-created Indian community brought action against Indian community, community tenant and others, alleging that second tribe's sale of cigarettes in community violated state and federal law. Parties moved for summary judgment. The United States District Court for the Western District of Washington, Ronald B. Leighton, J., 649 F.Supp.2d 1203, granted defendants' motion, and Indian tribe appealed.

*Holdings: The Court of Appeals, Smith, Circuit Judge, held that:
(1) tribe did not have implied right of action under federal law to challenge second tribe's cigarette tax agreement with state;
(2) tribe did not have implied right of action under state law to challenge second tribe's cigarette tax agreement with state; and
(3) addendum to second tribe's contract with state regarding cigarette sales did not violate tribe's tobacco tax contract with state.
Affirmed.

Bank of America v. Swanson
400 Fed.Appx. 159
No. 08-16146
United States Court of Appeals, Ninth Circuit, October 4, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: In interpleader action brought to resolve a dispute between tribal factions as to who had authority to use a bank account, the United States District Court for the District of Nevada, Robert C. Jones, J., 2008 WL 682399, granted summary judgment to one group, and the other appealed.

*Holdings: The Court of Appeals held that tribal court decisions were enforceable under principles of comity.
Affirmed.

 

September

Oklahoma v. Tyson Foods, Inc.
619 F.3d 1223
No. 09-5134
United States Court of Appeals, Tenth Circuit, September 21, 2010

*Synopsis: State sued poultry producer under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Oklahoma statutes because of its disposal of poultry waste in the Illinois River Watershed (IRW), which was within the boundaries of Indian tribe. The United States District Court for the Northern District of Oklahoma denied Indian tribe's motion to intervene, and tribe appealed.

*Holdings: The Court of Appeals, Hartz, Circuit Judge, held that district court did not abuse its discretion in denying, as untimely, Indian tribe's motion to intervene as of right.

United States v. Begay
622 F.3d 1187
Nos. 09-10249, 09-10258
United States Court of Appeals, Ninth Circuit, September 20, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Convicted sex offenders were indicted for failing to update sex offender registration, pursuant to Sex Offender Registration and Notification Act (SORNA), upon relocating to Navajo Nation. The United States District Court for the District of Arizona, David G. Campbell, J., 2009 WL 465026, 2009 WL 464995, denied offenders' motions to dismiss. Offenders appealed.

*Holdings: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) SORNA required convicted sex offenders to update their sex offender registration with Arizona, and
(2) application of SORNA to offenders violated neither the Due Process Clause nor the Ex Post Facto Clause.
Affirmed.

Miccosukee Tribe of Indians of Florida v. United States
619 F.3d 1286
No. 09-11891
United States Court of Appeals, Eleventh Circuit, September 15, 2010

*Synopsis: Indian Tribe brought action against United States, alleging violation of Department of Transportation Act arising from highway modification project impacting national park in which Tribe's reserved land was located. The United States District Court for the Southern District of Florida, No. 08- 21703-CV-UU, Ursula Ungaro, J., dismissed the action, and the tribe appealed.

*Holdings: The Court of Appeals, Wilson, Circuit Judge, held that the District Court lacked subject matter jurisdiction to hear the Tribe's claims.
Affirmed in part, vacated in part, and remanded.

August

Henzler v. Salazar
393 Fed.Appx. 457
No. 09-35597.
United States Court of Appeals, Ninth Circuit, August 26, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) Grace Henzler and other heirs of Dick George (“Henzler”) appeal the district court's summary judgment in favor of the Secretary of the Interior. Based on its detailed review of the record, the district court found that “the Plaintiffs have failed to present credible evidence raising a factual issue related to due process and the 1930 rejection of George's allotment application. The record establishes that the minimum requirements outlined in Pence v. Kleppe were met at the time the GLO closed George's file.” We agree. Accordingly, we affirm.

*Holdings:(from the opinion) By failing to present credible evidence raising a factual issue related to due process, Henzler failed to establish a colorable claim that Dick George was denied procedural due process.
Affirmed.

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
618 F.3d 1066
No. 09-16942
United States Court of Appeals, Ninth Circuit, August 20, 2010

*Synopsis: Indian tribe brought action under the Indian Gaming Regulatory Act (IGRA), challenging State of California's interpretation of language in Gaming Compact which limited the number of gaming devices the tribe was permitted to license. Following reversal, 547 F.3d 962, of the dismissal of that claim, second tribe intervened, and thereafter the United States District Court for the Eastern District of California, Frank C. Damrell, Jr., J., 629 F.Supp.2d 1091, rejecting the interpretations provided by the parties, adopted a third formulation and ordered a remedy, 2009 WL 2579051, that required a license draw open to all eligible tribes. State appealed.

*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) Court was permitted to consider extrinsic evidence when interpreting Gaming Compact as a matter of law;
(2) extrinsic evidence proffered by State in support of its interpretations of license pool provisions was not relevant;
(3) extrinsic evidence proffered by tribe to support its interpretation was not relevant;
(4) Court would conclude that 40,201 licenses were authorized for distribution statewide through the license draw process; and
(5) District Court's choice of remedy was not an abuse of discretion.
Affirmed in part and reversed in part.

Oneida Indian Nation of New York v. County of Oneida
617 F.3d 114
Nos. 07-2430-cv(L), 07-2548-cv(XAP), 07-2550-cv(XAP).
United States Court of Appeals, Second Circuit, August 9, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Three groups of the Oneida Indian Nation brought action against the State of New York and two counties, seeking redress for allegedly unlawful transfers of approximately 250,000 acres of ancestral land in central New York. The United States intervened as plaintiff. The United States District Court for the Northern District of New York, Lawrence E. Kahn, J., 500 F.Supp.2d 128, granted in part the motion for summary judgment filed by the state and the counties, thereby dismissing most of plaintiffs' claims as barred by laches, and cross-appeals were taken.

*Holdings: The Court of Appeals, Debra Ann Livingston, Circuit Judge, held that:
(1) laches barred possessory claims of Indian tribe and United States, and
(2) tribe's Nonintercourse Act claim and contracts-based claim were barred equitable defenses recognized in Sherrill and Cayuga.
Affirmed in part, reversed in part, and remanded. Gershon, District Judge, sitting by designation, filed opinion concurring in part and dissenting in part.

Related News Stories: Federal court rejects Oneidas' land claim in NY (Lacrosse Tribune) 08/10/10

United States v. I.L.
614 F.3d 817
Nos. 09-3403.
United States Court of Appeals, Eighth Circuit, August 5, 2010

*Synopsis: Government filed a juvenile delinquency information in the district court against juvenile, accusing her of committing acts of delinquency on the Omaha Indian Reservation. The United States District Court for the District of Nebraska, Laurie Smith Camp, J., granted government's motion to transfer juvenile for adult criminal prosecution on assault and murder charges. Juvenile appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that district court possessed authority to transfer juvenile for adult prosecution without the tribe's consent.
Affirmed.

Pit River Tribe v. US Forest Service
615 F.3d 1069
No. 09-15385
United States Court of Appeals, Ninth Circuit, August 2, 2010

*Synopsis: Native American tribe and environmental groups sued Bureau of Land Management (BLM), United States Forest Service (USFS), Advisory Council on Historic Preservation, Department of Interior (DOI), and geothermal lessee, alleging that leasing procedures and approval of geothermal power plant, pursuant to Geothermal Steam Act, on federal land that had religious and cultural significance to tribe, violated National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA). The United States District Court for the Eastern District of California, David F. Levi, Chief Judge, 306 F.Supp.2d 929, granted defendants summary judgment. Appeal was taken. The Court of Appeals, Wallace, Circuit Judge, 469 F.3d 768, reversed and remanded. On remand, the District Court for the Eastern District of California, John A. Mendez, J., 2008 WL 5381779, granted tribe summary judgment and remanded to agencies. Tribe appealed.

*Holdings: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) summary judgment and remand order did not constitute appealable final decision;
(2) remand order was not appealable interlocutory order refusing injunction;
(3) appeal was reviewable under All Writs Act;
(4) agencies had discretion to extend leases on remand; and
(5) district court's remand guidance to agencies was appropriate.
Affirmed in part, reversed in part, and remanded with instructions.

 

July

Menominee Indian Tribe of Wisconsin v. United States
614 F.3d 519
No. 09-5005
United States Court of Appeals, District of Columbia Circuit, July 30, 2010

*Synopsis: Indian tribe that operated health care system for tribal members pursuant to self-determination contract with Secretary of Health and Human Services (HHS) brought action against HHS, alleging breach of that contract. HHS moved to dismiss. The United States District Court for the District of Columbia, 539 F.Supp.2d 152,dismissed claims in part, and 2008 WL 3919158, denied tribe's motion to reconsider. Tribe appealed.

*Holding:The Court of Appeals, Griffith, Circuit Judge, held that:
(1) six year limitations period in Contract Disputes Act (CDA) was not jurisdictional in nature;
(2) commencement of class action did not toll limitations period under CDA; and
(3) limitations period in CDA was subject to equitable tolling.
Reversed and remanded.

Amelia Peters Bingham v. Commonwealth of Massachusetts
616 F.3d 1
No. 09-2049
United States Court of Appeals, First Circuit, July 30, 2010

*Synopsis: Plaintiffs, two members of South Sea Indians tribe, brought putative class action against Commonwealth of Massachusetts and town, seeking just compensation and return of lands plaintiffs claimed were granted in perpetuity to their ancestors. The United States District Court for the District of Massachusetts, George A. O'Toole, Jr., District Judge, 2009 WL 1259963, dismissed claims for lack of standing and, 2009 WL 1886128, affirmed dismissal on plaintiffs' motion for reconsideration. Plaintiffs appealed.

*Holding: The Court of Appeals, Lynch, Chief Judge, held that plaintiffs failed to show any individual interest in property rights granted in seventeenth-century deeds.
Affirmed.

Day v. Apoliona
616 F.3d 918
No. 08-16704
United States Court of Appeals, Ninth Circuit, July 26, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Native Hawaiians, as defined under Hawaiian Homes Commission Act (HHCA), filed § 1983 suit against trustees of Office of Hawaiian Affairs (OHA), seeking to enforce asserted right to ensure that public trust funds were devoted to betterment of conditions of Native Hawaiians, as required by Hawaii Admission Act. The United States District Court for the District of Hawaii, 451 F.Supp.2d 1133, Susan Oki Mollway, J., dismissed. Native Hawaiians appealed. The Court of Appeals, Berzon, Circuit Judge, 496 F.3d 1027, affirmed in part, reversed in part, and remanded. Motion to intervene by State of Hawaii was granted. On remand, the United States District Court for the District of Hawaii, Susan Oki Mollway, Chief Judge, 2008 WL 2511198, granted summary judgment in favor of trustees. Plaintiffs appealed.

*Holding: The Court of Appeals, Fisher, Circuit Judge, held that:
(1) the Hawaii Admission Act did not require OHA trustees to use its portion of proceeds only for betterment of the condition of native Hawaiians;
(2) use of public trust funds to lobby for bill for federal recognition of governing entity for any descendants of Hawaii's native indigenous people did not constitute a breach of the trust under the Act;
(3) use of trust funds to provide legal representation to Hawaiians in Hawaiian land and Hawaiian rights disputes did not constitute a breach of the trust under the Act;
(4) use of trust funds to support Hawaiian culture-based educational center at the University of Hawaii did not constitute a breach of the trust under the Act;
(5) use of funds to provide social services did not amount to breach of trust under the Act; and
(6) fact that the State spent more money on the five enumerated purposes of the public trust than it received from the trust did not deprive plaintiffs of standing.
Affirmed.

Jicarilla Apache Nation v. United States Department of the Interior
613 F.3d 1112
No. 09-5157
United States Court of Appeals, District of Columbia Circuit, July 16, 2010

*Synopsis: Indian tribe brought action against the Department of the Interior under the Administrative Procedure Act (APA), alleging that the Department's rejection of a major portion analysis methodology developed by the Minerals Management Service (MMS) to calculate royalties owed to the tribe pursuant to natural gas leases was an arbitrary and capricious departure from the Department's precedent and violated the Department's regulations and fiduciary duties. The United States District Court for the District of Columbia, Richard J. Leon, J., 604 F.Supp.2d 139, denied the tribe's motion for summary judgment and, on its own motion, granted summary judgment to the Department. Tribe appealed.

*Holdings: The Court of Appeals, Brown, Circuit Judge, held that:
(1) revised MMS regulations for calculating royalties applied prospectively only;
(2) Department's failure to provide a reasoned explanation for departing from precedent rendered its decision arbitrary and capricious; and
(3) Department's error in retrospectively applying regulations was not harmless.
Reversed in part and remanded.

Butte County, California v. Hogen
613 F.3d 190
No. 09-5179
United States Court of Appeals, District of Columbia, July 13, 2010

Subjects: not yet available

*Synopsis: County brought action against members of National Indian Gaming Commission (NIGC) and Department of Interior, challenging agency decisions concerning intervening tribe, in which NIGC approved gaming ordinance enacted by tribe and department took parcel of land in county into trust on behalf of tribe. The United States District Court for the District of Columbia, Henry H. Kennedy, Jr., J. dismissed action. County appealed.

*Holding: The Court of Appeals, Randolph, Senior Circuit Judge, held that NIGC failed to provide county with adequate statement of grounds for its decision.
Remanded.

Gillette v. North Dakota Disciplinary Board Counsel
610 F.3d 1045
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
611 F.3d 248
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 ----, 701 F.Supp.2d 863, 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
611 F.3d 1222
No. 09-5123
United States Court of Appeals, Tenth Circuit, July 9, 2010

Subjects: not yet available

*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
609 F.3d 927
No. 09-2605
United States Court of Appeals, Eighth Circuit, July 7, 2010
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Non-Indian contractor brought action against Indian tribe, seeking a declaratory judgment that tribal court lacked jurisdiction in tribe's tort action against company and an order compelling arbitration. Contractor moved for a preliminary injunction against further proceedings in tribal court. The United States District Court for the Northern District of Iowa, Linda R. Reade, J., denied contractor's motion for summary judgment and granted tribe's motion to dismiss. Contractor appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) trespass claim fell within jurisdiction of tribal court;
(2) conversion claim did not fall within jurisdiction of tribal court;
(3) notice of violation and order closing casino did not authorize removed chairman to take self help remedies; and
(4) whether removed tribal chairman had authority to contract was matter of tribal law.
Affirmed in part and reversed in part.

St. Croix Chippewa Indians of Wisconsin v. Salazar
384 Fed.Appx. 7
No. 08-5430
United States Court of Appeals, District of Columbia Circuit, July 6, 2010

*Synopsis: (from the opinion) The St. Croix Chippewa Indians of Wisconsin brought suit in the district court challenging two actions of the Department of the Interior related to St. Croix's then-pending application to open a casino. First, St. Croix alleged that Interior had unlawfully reversed the sequence of the two steps of the process to review its application. Second, St. Croix alleged that Interior had promulgated a substantive rule-styled as a guidance memo-without the required period of notice and comment under the Administrative Procedure Act (APA). The district court dismissed St. Croix's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Of note for this appeal, the district court concluded that St. Croix had not alleged an injury in fact sufficient to confer Article III standing.

*Holdings: not yet available

United States v. Alpine Land & Reservoir CO.
385 Fed.Appx. 770
No. 08-16767
United States Court of Appeals, Ninth Circuit, July 1, 2010

Subjects: not yet available

*Synopsis: Native-American tribe sought review of a determination of the Nevada State Engineer, which allocated groundwater rights in valley basin over tribe's objections. The United States District Court for the District of Nevada, Lloyd D. George, District Judge, dismissed for lack of subject matter jurisdiction. Tribe appealed.

*Holding: The Court of Appeals held that subject matter jurisdiction existed over action as to issue of whether allocation affected tribe's decreed water rights.
Vacated and remanded.

June

Glacier Electric Cooperative, Inc. v. The Estate of Sherburne
385 Fed.Appx. 686
No. 09-35216
United States Court of Appeals, Ninth Circuit, June 25, 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: Cooperative sued estate, individually and on behalf of construction company. The United States District Court for the District of Montana, Sam E. Haddon, J., granted estate and construction company summary judgment. Cooperative appealed.

*Holding: The Court of Appeals held that doctrine of issue preclusion barred cooperative from relitigating issue of tribal court's subject matter jurisdiction.
Affirmed.

Equal Employment Opportunity Commission v. Peabody Western Coal Company
610 F.3d 1070
No. 06-17261
United States Court of Appeals, Ninth Circuit, June 23, 2010

Subjects: not yet available

*Synopsis: Equal Employment Opportunity Commission (EEOC) sued lessor of coal mines on Navajo Nation, claiming violation of Title VII by alleged discrimination on basis of national origin against non-Navajo Indians due to lessor's preference for employing Navajo workers pursuant to terms of lease approved by Department of Interior (DOI) under Indian Mineral Leasing Act (IMLA), and seeking injunctive relief, damages, and order requiring lessor to make and preserve records. The United States District Court for the District of Arizona, Mary H. Murguia, J., 214 F.R.D. 549, granted lessor summary judgment and ruled that Nation was necessary and indispensable party who could not be joined, and that lawsuit presented nonjusticiable political question. EEOC appealed. The Court of Appeals, William A. Fletcher, Circuit Judge, 400 F.3d 774, reversed and remanded. Following joinder of Nation on remand, the District Court, Murguia, J., 2006 WL 2816603, again granted lessor summary judgment. EEOC appealed.

*Holding: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) joinder of Nation was not rendered infeasible by EEOC's amended complaint;
(2) Secretary of Interior was required party;
(3) joinder of Secretary of Interior was not feasible;
(4) equity and good conscience required dismissal of damages claim; but
(5) equity and good conscience permitted EEOC to proceed with injunctive claim.
Reversed in part and vacated in part.

Related News Stories: EEOC confirms difference between tribal and Indian preference (Indianz.com) 3/6/13

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
608 F.3d 1131
No. 07-9506
United States Court of Appeals, Tenth Circuit, June 15, 2010

Subjects: not yet available

*Synopsis: Mining company that sought to operate uranium mine and New Mexico Environmental Department petitioned for review of Environmental Protection Agency's (EPA) decision to implement, pursuant to Safe Drinking Water Act (SDWA), federal underground injection control program on company's lands. The Court of Appeals, 198 F.3d 1224, dismissed the petitions and remanded. On remand, the EPA determined that land fell within a dependent Indian community, and company petitioned for review. The Court of Appeals, 562 F.3d 1249, denied the petition, and company petitioned for rehearing en banc.

*Holding: The Court of Appeals, Gorsuch, Circuit Judge, held that:
(1) petitioner suffered injury in fact such that it had standing to contest EPA's determination;
(2) "dependent Indian communities" under statute providing primary federal criminal jurisdiction over certain territories consist only of lands explicitly set aside for Indian use by Congress or its designee and federally superintended; and
(3) petitioner's land did not fall within a "dependent Indian community," so as to subject proposed mine to EPA regulation. Panel opinion vacated; petition for review granted; EPA's determination vacated. Ebel, Circuit Judge, filed dissenting opinion in which Briscoe, Chief Judge, Henry, Lucero, and Murphy, Circuit Judges, joined. Henry, Circuit Judge, filed dissenting opinion in which Briscoe, Chief Judge, and Lucero, Circuit Judge, joined.

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
607 F.3d 1225
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
606 F.3d 895
No. 08-2255
United States Court of Appeals, Eighth Circuit, June 2, 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: 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
624 F.3d 934
No.09-30193
United States Court of Appeals, Ninth Circuit, June 2, 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.
Opinion, 604 F.3d 1171, superseded and withdrawn.

May

Miccosukee Tribe of Indians of Florida v. Kraus- Anderson Construction Company
607 F.3d 1268
No. 07-13039 D.C., 04-22774-CV-UU
United States Court of Appeals, Eleventh Circuit, May 28, 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: 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
380 Fed.Appx. 740
No. 09-8069
United States Court of Appeals, Tenth Circuit, May 25, 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: Following conviction for first-degree murder, 174 P.3d 1270, petition for writ of habeas corpus was filed. The United States District Court for the District of Wyoming, 636 F.Supp.2d 1254, denied the petition. Petitioner appealed.

*Holding: The Court of Appeals, Goruch, Circuit Judge, held that state-court's determination that crime did not occur on Indian reservation was not an unreasonable application of federal law.
Affirmed.

Unalachtigo Band of the Nanticoke Lenni Lenape Nation v. Corzine
Briefs from Turtle Talk Blog
606 F.3d 126
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
604 F.3d 1171
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
604 F.3d 1120
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
603 F.3d 1161
No. 08-16786
United States Court of Appeals, Ninth Circuit, May 7, 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: 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
606 F.3d 994
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
604 F.3d 553
No. 07-1628
United States Court of Appeals, Eighth Circuit, May 5, 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: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
605 F.3d 149
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
603 F.3d 825
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. 05-16154
United States Court of Appeals, Ninth Circuit, April 20, 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: 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
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

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. Orr Water Ditch Co.
600 F.3d 1152
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
600 F.3d 1275
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., 586 F.3d 683, 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
601 F.3d 669
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
599 F.3d 913
Briefs & Pleadings from Turtle Talk Blog
No. 08-55037
United States Court of Appeals, Ninth Circuit, March 22, 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: 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
598 F.3d 1073
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
597 F.3d 1278
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
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

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:

(1) NRC was entitled to consider only the airborne radiation expected to result from the proposed ISL mining operation, rather than aggregating that amount with already existing radioactive emissions from a previously abandoned conventional mine site located in the area of the proposed operations, to determine whether licensee's activities would comply with the regulation setting forth radiation dose limits for individual members of the public;
(2) NRC's consideration of the cumulative impact of airborne radiation amounted to the hard look required by the National Environmental Policy Act (NEPA);
(3) NRC did not act arbitrarily or capriciously in determining that conditioning the license on a nine-pore-volume groundwater restoration effort was not inimical to the public's health and safety in violation of the Atomic Energy Act (AEA);
(4) NRC complied with its responsibility under the AEA implementing regulations to set a surety in an amount adequate to insure that licensee would have the economic wherewithal to decommission the mine sites and restore the groundwater;
(5) NRC did not deprive plaintiffs of their right under the AEA to an administrative hearing regarding the ability of licensee to restore the water quality; and
(6) NRC took a hard look, as required by NEPA, at the cumulative environmental impacts that might result if licensee was unable to restore the groundwater quality. Petition denied.

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

Osage Nation v. Irby
597 F.3d 1117
No. 09-5050
United States Court of Appeals, Tenth Circuit, March 5, 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: 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.
597 F.3d 115
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.

Fort Peck Housing Authority v. Department of Housing and Urban Development
367 Fed.Appx. 884
Nos. 06-1425, 06-1447
United States Court of Appeals, Tenth Circuit, February 19, 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: Tribal housing entity sued Department of Housing and Urban Development (HUD), claiming that regulation allocating low income housing block grant funds under Native American Housing and Self-Determination Act (NAHASDA) was invalid. The United States District Court for the District of Colorado, 435 F.Supp.2d 1125, invalidated the regulation, and HUD appealed.

*Holding: The Court of Appeals, Terrence L. O'Brien, Circuit Judge, held that HUD regulation, which disqualified funding for housing units which were no longer owned or operated by a tribal housing entity, was consistent with statutory mandate, and was not arbitrary or capricious.
Reversed and remanded.

January

United States v. Washington
593 F.3d 790
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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