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Last updated: December 20, 2013

Next update should be ready by: January 10, 2014

Please alert us to any cases we may have missed from the U.S. Courts of Appeals.

New Cases:

See the 2014 bulletin.

Case Archive 2013:

December

Alto v. Black
738 F.3d 1111
No. 12–56145.
United States Court of Appeals, Ninth Circuit, Dec. 26, 2013

*Synopsis: Descendants of Indian tribal members filed suit seeking declaratory and injunctive relief from Bureau of Indian Affairs' (BIA) order upholding tribe's decision to disenroll descendants from tribal membership. After granting intervention by tribe to file jurisdictional motions and after granting descendants' motion for preliminary injunction preventing enforcement of disenrollment order pending completion of litigation, the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief Judge, 2012 WL 2152054, denied tribe's motion to dissolve preliminary injunction and tribe's motions to dismiss for failure to join tribe as required party and for lack of subject matter jurisdiction. Tribe appealed.

* Holding: The Court of Appeals, Berzon, Circuit Judge, held that:
(1) descendants' challenges to disenrollment order were reviewable, and
(2) tribe was not required party.
Affirmed in part, dismissed in part, and remanded.

Michigan v. Sault Ste. Marie Tribe of Chippewa Indians
2013 WL 6645395
No. 13–1438.
United States Court of Appeals, Sixth Circuit, Dec. 18, 2013

*Synopsis: State brought action to enjoin Indian tribe from applying to have land taken into trust by Interior Secretary pursuant to Michigan Indian Land Claims Settlement Act (MILCSA). The United States District Court for the Western District of Michigan, Robert J. Jonker, J., granted state's motion for preliminary injunction, and tribe appealed.

* Holding: The Court of Appeals, Rogers, Circuit Judge, held that:
(1) state's claim that tribe's trust submission would violate tribal–state compact was barred by tribe's sovereign immunity, and
(2) state's claim that Indian tribe's conduct of class III gaming on trust property would violate tribal–state compact and Indian Gaming Regulatory Act (IGRA) was not ripe for adjudication.
Reversed.

Evans v. Shoshone-Bannock Land Use Policy Commission
2013 WL 6284359
Briefs from Turtle Talk
No. 13–35003.
United States Court of Appeals, Ninth Circuit, Dec. 5, 2013

*Synopsis: Property owner, contractor, and subcontractor commenced action against Indian tribe, seeking declaratory judgment that tribal court lacked jurisdiction over his construction of single family dwelling within reservation and preliminary injunction barring further tribal court proceedings against them. The United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, 2012 WL 6651194, dismissed action. Plaintiff appealed. "

* Holding: The Court of Appeals, Milan D. Smith, Jr., Circuit Judge, held that:
(1) construction of single-family house on land owned in fee simple by non-Indian in area that already had seen comparable development on reservation did not threaten or have any direct effect on political integrity, economic security, or health or welfare of tribe and
(2) construction did not pose catastrophic risks, and thus tribe did not have authority over nonmember's construction.
Affirmed in part, reversed in part, and remanded.

November

United States v. Rentz
735 F.3d 1245
No. 12–4169.
United States Court of Appeals, Tenth Circuit, Nov. 18, 2013

*Synopsis: Defendant charged with murder while within Indian country, use of a firearm in furtherance of a murder, assault causing serious bodily injury while within Indian country, use of a firearm in furtherance of assault, and possession of a firearm by a convicted felon moved to dismiss the charge of use of a firearm in furtherance of assault. The United States District Court for the District of Utah, Clark Waddoups, J., granted the motion. The government filed an interlocutory appeal.

* Holding: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) two separate violations for use of a firearm in connection with a crime of violence could properly be charged based on two underlying crimes of violence arising from a single use of a firearm, and
(2) charges against defendant for both murder while within Indian country and assault causing serious bodily injury while within Indian country did not violate double jeopardy.
Reversed.

October

Oneida Tribe of Indians of Wisconsin v. Village of Hobart, Wisconsin
732 F.3d 837
Briefs from Turtle Talk
No. 12–3419.
United States Court of Appeals, Seventh Circuit, Oct. 18, 2013.

*Synopsis: Indian tribe filed action seeking a declaratory judgment that village lacked authority to impose charges under its storm water management utility ordinance on parcels of land held in trust by the United States for the tribe located on reservation and within village. The tribe also sought injunctive relief enjoining the village from attempting to enforce its ordinance upon tribal lands. Tribe filed motion for summary judgment. United States filed motion for summary judgment on village's third-party complaint against the United States, alleging that the United States, as holder of the bare title to the tribal trust lands, had to pay the storm water fees if the tribe was not responsible for doing so. The United States District Court for the Eastern District of Wisconsin, William C. Griesbach, Chief Judge, 891 F.Supp.2d 1058, granted motions. Village appealed.

*Holdings: The Court of Appeals, Posner, Circuit Judge, held that:
(1) Clean Water Act (CWA) did not authorize village to impose storm water management charges upon property held in trust for the benefit of Indian tribe;
(2) village's storm water management charges constituted an impermissible tax upon tribal trust property; and
(3) United States was not obligated to pay storm water management taxes imposed by village upon tribal lands.
Affirmed.

Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians
732 F.3d 409
No. 12–60668.
United States Court of Appeals, Fifth Circuit, Oct. 3, 2013

*Synopsis: Corporation, which operated store on Indian reservation, brought an action seeking to enjoin John Doe, a member of the Indian tribe, and other tribal defendants from adjudicating tort claims against it in tribal court. The United States District Court for the Southern District of Mississippi, 846 F.Supp.2d 646, denied corporation's motion for summary judgment and granted summary judgment in favor of the tribal defendants, and corporation appealed.

* Holding: The Court of Appeals, James E. Graves, Jr., Circuit Judge, held that tribal jurisdiction would exist over tort claims brought against nonmember, which operated store on reservation, arising from alleged sexual molestation of Indian participant in job training program by store manager while participant was working at the store.
Affirmed.

United States v. First
2013 WL 5433755
Briefs from Turtle Talk
No. 11– 30346.
United States Court of Appeals, Ninth Circuit, Oct. 1, 2013

*Synopsis: Defendant was indicted for misdemeanor firearms possession, based on his tribal court conviction for misdemeanor domestic violence. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed the indictment. Government appealed.

* Holding: The Court of Appeals, Paez, Circuit Judge, held that:
(1) "right to counsel," in statute defining "misdemeanor crime of domestic violence" refers to right that existed in the underlying domestic violence misdemeanor proceeding;
(2) using defendant's tribal court conviction for misdemeanor domestic violence as a predicate offense would not violate Constitution; and
(3) misdemeanor conviction obtained in tribal court may qualify as a predicate offense for misdemeanor firearms possession.
Reversed and remanded.

September

Wolfchild v. United States
Briefs from Turtle Talk
731 F.3d 1280
Nos. 2012–5035, 2012–5036, 2012–5043.
United States Court of Appeals, Federal Circuit, Sept. 27, 2013
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Lineal descendants of Mdewakanton Sioux tribe who were loyal to United States during 1862 Sioux uprising in Minnesota sued United States for, inter alia, breach of fiduciary duty based upon government's management of property originally provided for benefit of loyal Mdewakanton. The United States Court of Federal Claims, Charles F. Lettow, J., 62 Fed.Cl. 521, ruled that government had breached its fiduciary duties, and subsequently, 68 Fed.Cl. 779, denied reconsideration and, 78 Fed.Cl. 472, certified questions for interlocutory appeal. Government filed interlocutory appeal. The Court of Appeals, 260 Fed.Appx. 261, granted leave to appeal, and, 559 F.3d 1228, reversed and remanded. After plaintiffs moved to amend their complaints, government moved to dismiss and plaintiffs cross-moved for partial summary judgment. The United States Court of Federal Claims, Charles F. Lettow, J., 96 Fed.Cl. 302, allowed an amendment adding one count to the complaint and ruled favorably in part on that claim for violation of federal statutes, and thereafter, 101 Fed.Cl. 54, denied plaintiff's motion to add additional counts and established a process for distribution of damages. Government and two plaintiff groups appealed.

* Holding: The Court of Appeals, Taranto, Circuit Judge, held that:
(1) plaintiffs did not show that federal appropriations acts were money-mandating as to plaintiffs, as required for claim under Indian Tucker Act;
(2) plaintiffs did not establish a trust duty, for limitations purposes;
(3) federal statute stating that Secretary of the Interior was "authorized" to "set apart" parcels of land was not money-mandating; and
(4) plaintiffs did not constitute a "tribe" within the meaning of the Indian Non–Intercourse Act (INIA).
Affirmed in part and reversed in part.

United States v. Zepeda
738 F.3d 201
No. 10–10131.
United States Court of Appeals, Ninth Circuit, Sept. 19, 2013

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Roslyn O. Silver, Chief Judge, of conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence, and he appealed.

* Holding: The Court of Appeals, Paez, Circuit Judge, held that tribal enrollment certificate was insufficient to establish that defendant was an Indian for the purposes of federal jurisdiction under Major Crimes Act where the government introduced no evidence that defendant's bloodline was derived from a federally recognized tribe. Reversed and remanded.

Fletcher v. United States
Class Certifation Material from Turtle Talk
730 F.3d 1206
No. 12–5078.
United States Court of Appeals, Tenth Circuit, Sept. 17, 2013

*Synopsis: Tribal members brought action against federal government, seeking an accounting to determine whether the federal government had fulfilled the fiduciary obligations it chose to assume as trustee to oversee the collection of royalty income from oil and gas reserves and its distribution to tribal members. The United States District Court for the Northern District of Oklahoma, 2012 WL 1109090, dismissed the tribal members' claims, and they appealed.

* Holding: The Court of Appeals, Gorsuch, Circuit Judge, held that American Indian Trust Fund Management Reform Act imposed on federal government a duty to provide an accounting of royalty income from oil and gas reserves held in trust and its distribution to tribal members.
Reversed and remanded.

Los Coyotes Band of Cahuilla & Cupeño Indians v. Jewell
729 F.3d 1025
No. 11–57222.
United States Court of Appeals, Ninth Circuit, Sept. 4, 2013

*Synopsis: Native-American tribe brought action against Secretary of Interior, Assistant Secretary of Bureau of Indian Affairs (BIA), Deputy Director of BIA's Office of Justice Legal Services, and BIA special agent, alleging violations of Indian Self-Determination and Education Assistance Act (ISDA), Administrative Procedure Act (APA), and Fifth Amendment's guarantee of equal protection when Secretary declined to enter into self-determination contract with tribe to fund law enforcement on reservation. The United States District Court for the Southern District of California, Anthony J. Battaglia, J., 2011 WL 5118733, granted in part and denied in part parties' cross-motions for summary judgment. Defendants appealed.

* Holding: The Court of Appeals, Murguia, Circuit Judge, held that:
(1) Secretary appropriately denied tribe's 638 contract proposal under ISDA;
(2) judicial review of Secretary's funding decisions was unwarranted under APA; and
(3) Secretary's funding decisions did not violate tribe's equal protection rights.
Reversed.

August

Chance v. Texas Dep't of Criminal Justice
730 F.3d 404
No. 12–41015.
United States Court of Appeals, Fifth Circuit, Aug. 27, 2013

*Synopsis: State prisoner brought action against prison officials, challenging restrictions on his Native American religious practices under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Eastern District of Texas, Michael H. Schneider, J., 2012 WL 3257836, adopted report and recommendation of John D. Love, United States Magistrate Judge, 2012 WL 3257813, and granted defendants' motion for summary judgment. Prisoner appealed.

* Holding: The Court of Appeals, W. Eugene Davis, Circuit Judge, held that:
(1) prison's complete ban on communal pipe-smoking did not violate RLUIPA;
(2) prison's schedule of Native American religious services did not violate RLUIPA;
(3) prison policy limiting Native American Smudging ritual to outdoor ceremonies did not violate RLUIPA, but
(4) genuine issue of material fact with regard to whether prison's refusal to allow prisoner to possess locks of relatives' hair in accordance with his Native American religious practice was least restrictive means of furthering prison's compelling interests precluded summary judgment.
Affirmed in part, vacated in part, and remanded.

In re Greektown Holdings
728 F.3d 567
No. 12–2434.
United States Court of Appeals, Sixth Circuit, Aug. 26, 2013.

*Synopsis: Unsecured creditors committee brought adversary proceeding against alleged transferees of avoidable fraudulent transfers, including Indian tribe and gaming authority. After replacing committee as plaintiff, trustee for both litigation trust and unsecured creditors distribution trust sought approval of settlement with tribe and authority. Nonsettling defendants objected. Parties stipulated to withdrawal of the reference from United States Bankruptcy Court for the Eastern District of Michigan as to motion to approve settlement. The United States District Court for the Eastern District of Michigan, Paul D. Borman, J., 475 B.R. 563, approved settlement and entered claims bar order, and denied reconsideration, 2012 WL 4484933. Nonsettling defendants appealed.

*Holdings: The Court of Appeals, McKeague, Circuit Judge, held that:
(1) nonsettling defendants forfeited argument regarding potential claims that were available against Indian tribe under guaranty agreement that had been executed 12 years earlier and
(2) remand was appropriate for district court to determine whether it had jurisdiction to enjoin potential claims encompassed by bar order, determine whether it had the power to enter order, and closely scrutinize bar order's scope.
Affirmed in part, vacated in part, and remanded.

Klamath Claims Committee v. United States
541 Fed.Appx. 974
No. 2012–5130.
United States Court of Appeals, Federal Circuit, Aug. 23, 2013

*Synopsis: Native American claims committee, which was created in anticipation of the termination of federal recognition of the tribal government but continued to exist after federally-recognized sovereignty of the tribal government was restored, brought action against the United States government alleging wrongdoings relating to funds payable to tribal government and its members, a taking of private property, and a breach of fiduciary duty arising from the removal of a dam that affected water and fishing rights. The United States moved to dismiss. The Court of Federal Claims, Francis M. Allegra, J., dismissed two claims on statute of limitations grounds, dismissed the remaining claims based on failure to join a required party, and denied the committee's motion for leave to amend its complaint. Committee appealed.

* Holding: The Court of Appeals, Prost, Circuit Judge, held that motion to amend was futile, since tribal government constituted an indispensable party for the claims the committee sought to add.
Affirmed.

Fort Belknap Housing Department v. Office of Public and Indian Housing
2013 WL 4017285
Briefs from Turtle Talk
No. 12–70221.
United States Court of Appeals, Ninth Circuit, August 8, 2013

*Synopsis: Tribally Designated Housing Entity (TDHE) petitioned for review of order of the Department of Housing and Urban Development (HUD) withholding the amount of overpayment the TDHE received under a federal rent-subsidy program from future program payments.

* Holding: The Court of Appeals, Bea, Circuit Judge, held that Court of Appeals lacked jurisdiction to review HUD's decision to withhold overpayments from future program payments.
Petition dismissed.

United States v. Livingston
2013 WL 4007541
No. 11–10520.
United States Court of Appeals, Ninth Circuit, August 7, 2013

*Synopsis: Defendant was charged with mail fraud and theft by an officer or employee of a gaming establishment on Indian lands. The United States District Court for the Eastern District of California, Lawrence J. O'Neill, J., 2011 WL 347136, denied defendant's motion to dismiss the indictment and he was convicted on both counts. Defendant appealed.

* Holding: The Court of Appeals, Christen, Circuit Judge, held that:
(1) federal jurisdiction does not depend on proof that the gaming establishment at issue is located on Indian lands;
(2) indictment sufficiently alleged theft by an officer or employee of a gaming establishment on Indian lands;
(3) indictment sufficiently alleged mail fraud; and
(4) evidence that defendant purchased golf bag and football helmet with funds from establishment was relevant.
Affirmed.

Dish Network Service LLC v. Laducer
2013 WL 3970245
No. 12–2871.
United States Court of Appeals, Eighth Circuit, August 5, 2013

*Synopsis: Satellite-television-service provider brought action to enjoin tribal court from conducting trial on abuse-of-process claim brought by enrolled member of Turtle Mountain Band of the Chippewa Indians. Provider moved for preliminary injunction. The United States District Court for the District of North Dakota, Daniel L. Hovland, J., 2012 WL 2782585, denied motion. Provider appealed.

* Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) provider would not suffer irreparable harm in absence of preliminary injunction, and
(2) provider failed to demonstrate likelihood of success on merits of its claim that tribal court lacked jurisdiction.
Affirmed.

July

Greene v. Impson
530 Fed.Appx. 777
No. 12–7068.
United States Court of Appeals, Tenth Circuit, July 30, 2013

*Synopsis: Great grandson of Choctaw Indian Freedman, who was African American former slave, filed suit against regional director of Bureau of Indian Affairs and Bureau's superintendent, under Bivens, asserting denial of due process from denial of application for Certificate of Degree of Indian Blood (CIDB), in order for grandson to be federally recognized as Native American, for purposes of government assistance. The United States District Court for the Eastern District of Oklahoma dismissed complaint, and grandson appealed.

* Holding: The Court of Appeals, Terrence L. O'Brien, Circuit Judge, held that grandson's allegations did not state claim for violation of due process.
Affirmed.

Pyramid Lake Paiute Tribe of Indians v. Nevada, Department of Wildlife
2013 WL 3889091
Nos. 11–16470, 11–16475, 11–16482.
United States Court of Appeals, Ninth Circuit, July 30, 2013

*Synopsis: Federal government and Indian tribe petitioned for review of Nevada State Engineer's approval of applications to change place, but not the manner, of use of applicants' decreed water rights. The United States District Court for the District of Nevada, Lloyd D. George, Senior District Judge, 788 F.Supp.2d 1209, reversed decision and vacated approval of the transfer applications. State engineer appealed.

* Holding: The Court of Appeals, Thomas, Circuit Judge, held that:
(1) tribe had standing to bring challenge, and
(2) applications sought change in manner of use to a non-irrigation purpose in violation of decree.
Affirmed.

Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization
2013 WL 3888429
Briefs from Turtle Talk
No. 10–35642.
United States Court of Appeals, Ninth Circuit, July 30, 2013

*Synopsis: Tribe and lessee brought action against county, challenging assessment of property taxes on leased property. Cross-motions for summary judgment were filed. The United States District Court for the Western District of Washington, Benjamin H. Settle, J., 2010 WL 1406524, awarded summary judgment to county, finding that state and local governments were not prohibited from taxing permanent improvements, like resort on leased property, that were owned by non-Indians, and 2010 WL 2595232, denied in part tribe's motion to amend. Tribe and lessee appealed.

* Holding: The Court of Appeals, Ikuta, Circuit Judge, held that land and permanent improvements on land were exempt from state and local taxation.
Reversed.

Mishewal Wappo Tribe of Alexander Valley v. Salazar
534 Fed.Appx. 665
No. 12-17360.
United States Court of Appeals, Ninth Circuit, July 29, 2013

*Synopsis: Intervenor counties moved to dismiss Indian tribe's complaint against the federal government for alleged illegal termination of tribal status and improper distribution of land previously held in trust. The United States District Court for the Northern District of California, Edward J. Davila, J., denied counties' motion to dismiss and revoked their status as intervenors, 2012 WL 4717814. Counties appealed.

* Holding: The Court of Appeals held that:
(1) counties failed to satisfy "relationship" requirement for entitlement to intervention as of right, and
(2) counties failed to show the presence of common questions of law and fact between their claims and tribe's action required for entitlement to permissive intervention.
Affirmed.

Knight v. Thompson
2013 WL 3843803
No. 12–11926.
United States Court of Appeals, Eleventh Circuit, July 26, 2013

*Synopsis: Native American inmates brought action against Alabama Department of Corrections, challenging its short-hair policy under Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Middle District of Alabama, No. 2:93-CV-01404-WHA-CSC,W. Harold Albritton, III, Senior District Judge, 2012 WL 777274, entered judgment for Department, and inmates appealed.

* Holding: The Court of Appeals, Schlesinger, District Judge, held that:
(1) policy furthered compelling governmental interests in security and discipline, and
(2) policy was least-restrictive means of furthering those interests.
Affirmed.

Mashantucket Pequot Tribe v. Town of Ledyard
2013 WL 3491285
Nos. 12–1727–cv(L), 12–1735–cv(CON).
United States Court of Appeals, Second Circuit, July 15, 2013

*Synopsis: Indian tribe brought action challenging town's imposition state's personal property tax on lessors of slot machines used by tribe at casino. State intervened. The United States District Court for the District of Connecticut, Warren W. Eginton, J., 2012 WL 1069342, entered summary judgment in tribe's favor, and state and town appealed.

* Holding: The Court of Appeals, Wesley, Circuit Judge, held that:
(1) tribe had standing to bring action;
(2) Tax Injunction Act (TIA) did not bar action;
(3) district court did not abuse its discretion in declining to dismiss action under principles of comity; and
(4) Indian Trader Statutes and Indian Gaming Regulatory Act (IGRA) did not preempt town's imposition of tax.
Reversed and remanded.

John v. U.S.
720 F.3d 1214
No. 09–36122, 09–36125, 09–36127.
United States Court of Appeals, Ninth Circuit, July 5, 2013
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: State of Alaska and various environmental organizations brought action challenging rules promulgated by the Secretary of the Interior and the Secretary of Agriculture identifying which navigable waters within Alaska constituted "public lands" under Alaska National Interest Lands Conservation Act (ANILCA), and thus entitled to a priority given to rural Alaska residents for subsistence hunting and fishing on such lands. The United States District Court for the District of Alaska, H. Russel Holland, Senior Judge, upheld the rules, and plaintiffs appealed.

* Holding: The Court of Appeals, Kleinfeld, Senior Circuit Judge, held that:
(1) Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify those waters that were "public lands" for the purpose of determining the scope of ANILCA's rural subsistence priority;
(2) Secretaries reasonably concluded that adjacent waters were appurtenant to, and could be necessary to fulfill the primary purposes of, the federal reservations identified in the 1999 rule;
(3) Secretaries did not act arbitrarily or contrary to law in refusing to extend the federal rural subsistence priority to waters upstream and downstream from federal reservations.
Affirmed.

M.J. ex rel. Beebe v. U.S.
2013 WL 3285288
No. 11–35625.
United States Court of Appeals, Ninth Circuit, July 1, 2013

*Synopsis: Minor, represented by her mother and next friend, filed action against police officer and municipality, seeking over $100,000 in damages from officer and municipality for injuries minor sustained as result of officer's negligent driving of four-wheeler. United States Attorney for the District of Alaska "certified" that officer was deemed to be federal employee for purposes of lawsuit. The United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, granted summary judgment for municipality. Minor appealed.

* Holding: The Court of Appeals, N.R. Smith, Circuit Judge, held that:
(1) police officer was immune from tort liability by application of municipality's sovereign immunity as Indian tribe and
(2) municipality could not be held vicariously liable on "non-delegable duty" theory for negligent conduct of immune independent contractor.
Affirmed.

June

Yowell v. Abbey
532 Fed.Appx. 708
Nos. 12–16552, 12–17158.
United States Court of Appeals, Ninth Circuit, June 28, 2013
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Indian cattle rancher filed civil rights complaint alleging violations of his historic grazing rights. The United States District Court for the District of Nevada, Robert Clive Jones, C.J., 2012 WL 2151520, denied defendants' motions to dismiss and for summary judgment, enjoined Bureau of Land Management (BLM) from enforcing grazing debt, and denied reconsideration, 2012 WL 3205864, and defendants appealed.

* Holding: The Court of Appeals held that the district court abused its discretion in requiring BLM to withdraw its certification of rancher's debt to the Department of the Treasury-Financial Services. Orders Denying Motions Reversed, Injunction Vacated and Remanded.

Magnan v. Trammell
Briefs and Pleadings from Turtle Talk
719 F.3d 11599
No. 11–7072.
United States Court of Appeals, Tenth Circuit, June 14, 2013

*Synopsis: Petitioner, who pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill and was sentenced to death, sought writ of habeas corpus. The United States District Court for the Eastern District of Oklahoma denied the petition, and petitioner appealed.

* Holding: The Court of Appeals, Briscoe, Chief Judge, held that Secretary of Interior's approval of conveyance of surface interests in Indian land, as required by 1945 Act to extinguish the restrictions placed on the tract, were not met, and therefore, tract of land where crimes occurred constituted "Indian country," and thus was not subject to jurisdiction of State of Oklahoma.
Reversed and remanded.

May

Spirit Lake Tribe of Indians ex rel. Committee of Understanding and Respect v. National Collegiate Athletic Ass'n
715 F.3d 1089
No. 12–2292.
United States Court of Appeals, Eighth Circuit, May 29, 2013

*Synopsis: Indian tribe sued national association governing collegiate sports, alleging race discrimination under § 1981, and seeking to enjoin association from interfering with state university's use of "Fighting Sioux" name, logo, and imagery. The United States District Court for the District of North Dakota, Ralph E. Erickson, J., granted summary judgment in favor of association. Tribe appealed.

* Holding: The Court of Appeals, Benton, Circuit Judge, held that:
(1) tribe failed to show that association acted with discriminatory intent, and
(2) under North Dakota law, contract to use name was not created by ceremony.
Affirmed.

Gila River Indian Community v. U.S.
Amended July 9, 2013
2013 WL 2171652
Nos. 11–15631, 11–15633, 11–15639, 11–15641, 11–15642.
United States Court of Appeals, Ninth Circuit, May 20, 2013, Amemded July 9

*Synopsis: City and Indian tribe brought actions challenging Department of Interior's (DOI) decision to accept property in trust for benefit of another tribe. State legislative and executive branch leaders intervened as parties plaintiff, and other tribe intervened as party defendant. The United States District Court for the District of Arizona, David G. Campbell, J., 776 F.Supp.2d 977, granted summary judgment for the government, and city and other parties appealed.

* Holding: On denial of rehearing en banc, the Court of Appeals, McKeown, Circuit Judge, held that:
(1) Gila Bend Indian Reservation Lands Replacement Act created a cap only on land held in trust for the tribe, not on total land acquisition by the tribe under the Act;
(2) Department of Interior's interpretation of Act to render parcel located on a county island fully surrounded by city land eligible for trust treatment was not entitled to Chevron deference; and
(3) Act was valid exercise of Congress's power under the Indian Commerce Clause.
Affirmed in part, reversed in part, and remanded.

Sandy Lake Band of Mississippi Chippewa v. U.S.
2013 WL 2149908
No. 12–2600.
United States Court of Appeals, Eighth Circuit, May 20, 2013

*Synopsis: Indian tribe, which was not included on Secretary of the Interior's list of recognized Indian tribes, sought order under Indian Reorganization Act (IRA) directing Secretary to hold an election so tribe members could vote on proposed constitution. The United States District Court for the District of Minnesota, Donovan W. Frank, J., 2011 WL 2601840, dismissed without prejudice for lack of subject matter jurisdiction, based on failure to exhaust administrative remedies, and refused to accept a proposed amended complaint challenging Secretary's authority to promulgate a regulation defining the term "Indian." Tribe did not appeal, but filed second action raising the claims in first complaint and in proposed amended complaint. The District Court, Donovan W. Frank, J., 2012 WL 1581078, granted summary judgment to Secretary. Tribe appealed.

* Holding: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) jurisdictional issue was the same in the two actions, as element for issue preclusion, and
(2) jurisdictional determination in earlier action was a final judgment on jurisdiction, as element for issue preclusion.
Affirmed as modified.

Miccosukee Tribe of Indians of Florida v. U.S.
716 F.3d 535
No. 10–14271.
United States Court of Appeals, Eleventh Circuit, May 15, 2013.

*Synopsis: Indian tribe brought action alleging that a federal flood control project in the Everglades diverted excessive flood waters over tribal lands. The United States District Court for the Southern District of Florida, No. 1:08-cv-23001-KMM, K. Michael Moore, J., 656 F.Supp.2d 1375, dismissed, and tribe appealed.

*Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that:
(1) complaint alleging that defendants were required to regulate water levels within water conservation area in which tribe's leasehold was located failed to state a claim for relief;
(2) complaint failed to state a claim for a deprivation of property without due process;
(3) complaint failed to state a claim for mandamus relief; and
(4) complaint failed to state a claim for an equal protection violation.
Affirmed.

Cahto Tribe of Laytonville Rancheria v. Dutschke
715 F.3d 1225
No. 11–17847.
United States Court of Appeals, Ninth Circuit, May 15, 2013.

*Synopsis: Indian tribe filed suit, under Administrative Procedure Act (APA), seeking to set aside decision of federal Bureau of Indian Affairs (BIA), directing tribe to place names of disenrolled individuals back on tribe's membership roll. The United States District Court for the Eastern District of California, Garland E. Burrell, Jr., Senior District Judge, 2011 WL 4404149, granted Department of Interior (DOI) summary judgment, affirming BIA's decision. Tribe appealed.

*Holdings: The Court of Appeals, Hawkins, Senior Circuit Judge, held that tribe's disenrollment action was not reviewable by BIA.
Reversed.

Related News Stories: Ninth Circuit sides with Cahto Tribe in enrollment dispute (Pechanga.net) 5/20/13

April

Quantum Entertainment Ltd. v. U.S. Dept. of the Interior
714 F.3d 1338
No. 12–5133.
United States Court of Appeals, District of Columbia Circuit, April 30, 2013

*Synopsis: Company that entered into agreement to manage Indian tribe's gas distribution business brought action against Bureau of Indian Affairs (BIA) challenging decision of Interior Board of Indian Appeals that agreement was null and void. The United States District Court for the District of Columbia, 848 F.Supp.2d 30, entered summary judgment in government's favor, and company appealed.

* Holding: The Court of Appeals, Rogers, Circuit Judge, held that:
(1) contract that was void ab initio due to failure to procure Secretary of Interior's approval did not become enforceable upon enactment of new statute;
(2) company's agreement was with tribe; and
(3) agreement was "relative to" Native American lands.
Affirmed.

Grand Canyon Skywalk Development, LLC. v. 'Sa' Nyu Wa inc.
715 F.3d 1196
No. 12–15634.
United States Court of Appeals, Ninth Circuit, April 26, 2013.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Nevada corporation brought action against tribally chartered corporation of the Hualapai Indian Tribe, seeking a declaratory judgment that the Hualapai Tribe lacked the authority to condemn the Nevada corporation's intangible property rights in a revenue-sharing contract with the tribally chartered corporation and injunctive relief. The United States District Court for the District of Arizona, David G. Campbell, P.J., 2012 WL 1207149, denied Nevada corporation's request for a temporary restraining order (TRO), and required the Nevada corporation to exhaust all possible tribal court remedies before proceeding in federal court.

*Holdings: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) bad faith exception to the requirement to exhaust tribal court remedies did not apply;
(2) futility exception to the requirement to exhaust tribal court remedies did not apply; and
(3) tribal court did not plainly lack jurisdiction over Nevada corporation so as to excuse the exhaustion requirement.
Affirmed.

Related News Stories: Skywalk feud sent to tribal court (AZ Central) 4/26/13

March

United States v. Alvirez
709 F.3d 1305
No. 11–10244.
United States Court of Appeals, Ninth Circuit, March 14, 2013.

*Synopsis: The opinion of the United States Court of Appeals, Ninth Circuit, in U.S. v. Alvirez, published in the advance sheet at this citation, 709 F.3d 1305, was withdrawn from the bound volume. For withdrawing order, see 2013 WL 1503702.

United States v. Robertson
709 F.3d 741
No. 12–1020.
United States Court of Appeals, Eighth Circuit, March 11, 2013.

*Synopsis: Defendant was convicted by jury in the United States District Court for the District of North Dakota, Patrick A. Conmy, J., of embezzlement and willful misapplication of tribal property, and sentenced to three years probation subject to conditions including that she not consume alcohol. Defendant appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that:
(1) it was within district court's discretion to refuse to give good faith defense instruction, and
(2) it was within district court's discretion to impose as special condition of probation that defendant totally abstain from use of alcohol.
Affirmed.

Tonasket v. Sargent
2013 WL 792768
No. 11–36001.
United States Court of Appeals, Ninth Circuit, March 5, 2013.

*Synopsis: (from the opinion) Appellants Terry Tonasket (Tonasket) and Daniel T. Miller (Miller) appeal the district court's order dismissing, for lack of subject matter jurisdiction, this action against Appellees Tom Sargent (Sargent), the Colville Business Council (the Council), and The Colville Confederated Tribes of the Colville Indian Reservation (the Colville Tribes), concerning the impositi on by the Colville Tribes of cigarette taxes on non-Indians. In light of our decision in Miller v. Wright, No 11–35850, 705 F.3d 919, 2013 WL 174493 (9th Cir. Jan.14, 2013), as amended, a case in which Miller brought the same claims against the Puyallup Tribe of Indians, We affirm.

*Holdings: (not yet available)

Muwekma Ohlone Tribe v. Salazar
708 F.3d 209
No. 11–5328.
United States Court of Appeals, District of Columbia Circuit, March 1, 2013.

*Synopsis: Tribe brought action challenging United States Department of the Interior's refusal to recognize it as an Indian tribe. The United States District Court for the District of Columbia, 813 F.Supp.2d 170, granted Interior's cross-motion for summary judgment and denied tribe's summary judgment motion, and tribe appealed.

*Holdings: The Court of Appeals, Karen Lecraft Henderson, Circuit Judge, held that:
(1) Department of the Interior did not violate petitioning tribe's equal protection rights or act arbitrarily and capriciously in summarily recognizing other tribes outside the Part 83 process but not doing the same for petitioning tribe;
(2) whatever due process interest Indian tribe might have had as a previously-recognized tribe disappeared because that previously-recognized tribe no longer existed; and
(3) Interior's final determination denying tribal recognition was not arbitrary and capricious.
Affirmed.

February

McGuire v. United States
707 F.3d 1351
No. 2012–5073.
United States Court of Appeals, Federal Circuit, Feb. 20, 2013.

*Synopsis: Farmer who leased tribal land brought inverse condemnation action against government in Bankruptcy Court, alleging that decision of Bureau of Indian Affairs (BIA) to remove bridge over canal on leased land was unconstitutional taking. The Bankruptcy Court determined that government had committed regulatory taking. The United States District Court for the District of Arizona, James A. Teilborg, J., rejected Bankruptcy Court's findings and recommendations, and dismissed action. Farmer appealed. The Court of Appeals, Thomas, J., 550 F.3d 903, reversed and remanded for transfer to Court of Federal Claims. The United States Court of Federal Claims, Bohdan A. Futey, Senior District Judge, 2012 WL 569359, granted judgment for government after bench trial. Farmer appealed.

*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that:
(1) Court was not bound by prior appellate decision as the "law of the case";
(2) farmer was required to exhaust his administrative remedies although applicable procedures were informal in nature;
(3) farmer's informal meetings and verbal communications with government's supervisory general engineer, and written sketch, were not sufficient to exhaust his administrative remedies;
(4) farmer did not prove futility with respect to his efforts to exhaust his administrative remedies;
(5) lease with Indian tribes that merely indicated that ownership of improvements attached to property defaulted to lessor did not give rise to cognizable property interest in replacing bridge;
(6) BIA regulation stating that "[i]mprovements placed on the leased land shall become the property of the lessor [ Indian tribes] unless specifically excepted therefrom under the terms of the lease" did not give rise to cognizable property interest in applying for permit to replace bridge;
(7) regulation only concerning right to apply for "revocable permit" or regulations that allowed revocation of any rights granted by government did not give rise to cognizable property interest in applying for permit to replace bridge; and
(8) farmer's finding that production without that bridge was not economically viable did not give rise to cognizable property interest in replacing bridge.
Affirmed.
Reyna, Circuit Judge, filed concurring opinion.

Maxwell v. County of San Diego
708 F.3d 1075
Nos. 10–56671, 10–56706.
United States Court of Appeals, Ninth Circuit, Feb. 14, 2013.

*Synopsis: Shooting victim's family members filed § 1983 action alleging that sheriff's officers and tribal fire department and its paramedics unreasonably delayed in obtaining appropriate medical treatment for victim, resulting in her death, and that officers unreasonably seized family members and employed excessive force. The United States District Court for the Southern District of California, John A. Houston, J., denied officers' motion for summary judgment and dismissed claims against tribal defendants. Parties filed cross-appeals.

*Holdings: The Court of Appeals, Farris, Circuit Judge, held that:
(1) officers who prevented victim's ambulance from leaving crime scene were not entitled to qualified immunity;
(2) officers were not entitled to qualified immunity with regard to unreasonable seizure claim;
(3) summary judgment on qualified immunity grounds was not warranted with regard to excessive force claim;
(4) summary judgment in supervisors' favor on qualified immunity grounds was not warranted; and (5) paramedics for tribal fire department did not enjoy tribal sovereign immunity.
Affirmed in part, reversed in part, and remanded.
Ikuta, Circuit Judge, dissented and filed opinion.
Petitions for panel rehearing and petitions for rehearing en banc denied.

United States v. Tarnow
705 F.3d 809
No. 12–1839.
United States Court of Appeals, Eighth Circuit, Feb. 8, 2013.

*Synopsis: Defendant was convicted, in the United States District Court for the District of Minnesota, Michael J. Davis, Chief Judge, of aggravated sexual abuse by an Indian in Indian Country. Defendant appealed.

*Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) evidence established defendant's use of force or threat of force to cause victim to engage in sexual acts;
(2) testimony of a woman defendant met at party was relevant as prior bad act evidence showing intent to use force or threat of force;
(3) any error was harmless as to admission of prior bad act testimony from defendant's former wife; and
(4) evidence did not warrant instruction on lesser included offense of simple assault.
Affirmed.

January

Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino
2013 WL 323223
No. 12–5046.
United States Court of Appeals, Tenth Circuit, Jan. 29, 2013.

*Synopsis: Gambling addict filed state court action pursuant to state's tribal gaming compact with Indian tribe alleging that tribe improperly induced him to gamble at its casino. After removal, the United District Court for the Northern District of Oklahoma, 2012 WL 896243, dismissed complaint, and plaintiff appealed.

*Holdings: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that compact did not waive tribal immunity.
Affirmed.

United States v. Zepeda
705 F.3d 1052
No. 10–10131.
United States Court of Appeals, Ninth Circuit, Jan. 18, 2013.

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Roslyn O. Silver, Chief Judge, of conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence, and he appealed.

*Holdings: The Court of Appeals, Paez, Circuit Judge, held that tribal enrollment certificate was insufficient to establish that defendant was an Indian for the purposes of federal jurisdiction under Major Crimes Act where the government introduced no evidence that defendant's bloodline was derived from a federally recognized tribe.
Reversed and remanded.
Watford, Circuit Judge, filed dissenting opinion.

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
702 F.3d 1147
Nos. 11–3883, 11–3884.
United States Court of Appeals, Eighth Circuit, Jan. 14, 2013.

*Synopsis: City sued band of Native American tribe, alleging breach of contractual obligations created when city and band agreed to establish casino in city's downtown, and also seeking declaratory and injunctive relief. After it was compelled to arbitrate amount of withheld taxes owed to city, tribe moved for relief from final order. The United States District Court for the District of Minnesota, Susan Richard Nelson, J., 830 F.Supp.2d 712, granted in part and denied in part band's motion for relief, and band appealed.

*Holdings: The Court of Appeals, Murphy, J., held that:
(1) city's only avenue for challenging National Indian Gaming Commission's (NIGC) determination, that agreement between band and city violated "sole proprietary interest" provision of Indian Gaming Regulatory Act (IGRA), was under the Administrative Procedure Act (APA);
(2) NIGC's determination that agreement violated IGRA permitted court to grant prospective relief from future enforcement of the agreement; and
(3) rule providing relief from a final judgment for any reason justifying relief permitted retroactive relief from decision requiring that band pay withheld taxes.
Affirmed in part, and reversed and remanded in part.

United States v. Duane Dale Big Eagle
702 F.3d 1125
No. 11–3754.
United States Court of Appeals, Eighth Circuit, Jan. 10, 2013.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Roberto A. Lange, J., 2011 WL 7462077, of conspiracy to commit bribery of an Indian tribal official, and aiding and abetting a bribery involving an agent of an Indian tribal government, and he appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) admission of uncharged crimes evidence was reviewable only for plain error;
(2) admission of uncharged crimes evidence was not plain error; and
(3) defendant waived right to challenge admission of evidence to extent prejudice would have been alleviated by curative instruction.
Affirmed.

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