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Indian Law Bulletins | Federal Trial Courts | Archives 2003

December

Narragansett Indian Tribe of Rhode Island v. State of Rhode Island
296 F.Supp.2d 153, No. C.A. 03-296S
United States District Court, D. Rhode Island, Dec. 29, 2003

Subjects:Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Jurisdiction -- United States; District courts -- United States; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations.

*Synopsis: Narragansett Indian Tribe of Rhode Island brought action for declaratory judgment against State of Rhode Island, seeking declaratory judgment that State could not enforce its cigarette sales and excise tax scheme against Tribe with respect to smoke shop located on Tribe's Settlement Lands. State brought action in state court against Tribe, seeking declaratory judgment that Tribe's failure to comply with state excise, retail, and sales taxes was unlawful. Tribe removed State's action to federal court, and actions were consolidated

*Holding:District Court, Smith, J., held that:
(1) District Court lacked jurisdiction over State's action;
(2) legal incidence of cigarette tax scheme fell on consumers, and, thus, State could not be barred from enforcing tax by virtue of Tribe's sovereign status; and
(3) State did not violate federal law or Tribe's sovereign rights by executing search warrant on Settlement Lands.

Related News Stories: Judge Upholds R.I. Smoke-Shop Shutdown (AP) 12/29 *Password may be required.

The Western Mohegan Tribe and Nation v. The State of New York
2003 WL 24052010
Docket No. 03 Civ. 1165(CLB)
United States District Court, S.D. New York, December 23, 2003

Subjects: Western Mohegan Tribe and Nation (New York); New York (State); Land tenure -- New York (State); United States. Trade and Intercourse Act; Quiet title actions; United States. Constitution. 11th Amendment.

*Synopsis: (from the opinion) Plaintiff, the Western Mohegan Tribe and Nation, a/k/a Muhheakunnuk (“the Western Mohegan Tribe”), commenced this action on February 21, 2003, seeking a declaration of Plaintiff's ownership and right to possess certain lands, claimed to be their reserved lands, in this District and elsewhere in the State of New York, and seeks immediate repossession of such lands.

*Holding: not yet available

Burdett v. Harrah's Kansas Casino
294 F.Supp.2d 1215, No. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.
United States District Court, D. Kansas, Dec. 10, 2003

Subjects: United States. Fair Debt Collection Practices Act;United States. Fair Credit Reporting Act; Liability for emotional distress -- Kansas; Standing to sue; Indians of North America -- Suicide; Gamblers; Harrah's Kansas Casino Corp.

*Synopsis: Wife of man who committed suicide as alleged result of debt collection activity directed at recovering debts that he incurred gambling at local casino brought action and survivor's action to recover under the Fair Debt Collection Practices Act (FDCPA), under the Fair Credit Reporting Act (FCRA), and on negligent or intentional infliction of emotional distress theory.

*Holding: District Court, Vratil, J., held that:
(1) widow had no standing to pursue cause of action under the FDCPA based on collection efforts directed solely at late husband;
(2) widow could not recover on negligent infliction of emotional distress theory, given complete lack of evidence that she had sustained any physical injury;
(3) debt collector's conduct in continuing, even after debtor committed suicide, to direct 23 collection letters to home that he shared with his wife, did not support cause of action for intentional infliction of emotional distress;
(4) survivor action that widow brought some three years after her late husband's death, for debt collector's alleged violations of the FDCPA, would be dismissed as failing to state claim; and
(5) allegations in complaint were sufficient to state claim under Kansas law for negligent, but not for intentional, infliction of emotional distress.

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
295 F.Supp.2d 1141, No. CIV. 03-00316 ACK/LE
United States District Court, D.Hawai'i, Dec. 8, 2003

Subjects: Native Hawaiian students; Discrimination in education -- Hawaii; Kamehameha Schools -- Admission; Affirmative action programs; Private schools -- Hawaii; Equality before the law; Civil rights -- United States.

*Synopsis: Non-Native Hawaiian minor brought action alleging that admissions policy of private school dedicated to the education and upbringing of Native Hawaiians violated federal civil rights law. Minor moved for partial summary judgment, and school moved for summary judgment.

>*Holding: The District Court, Kay, J., held that:
(1) § 1981 claim would be reviewed pursuant to McDonnell Douglas burden shifting framework applicable in private employment setting, not standard governing claims under Equal Protection Clause, and
(2) as matter of first impression, admissions policy granting preference to children of Native Hawaiian ancestry constituted valid race-conscious remedial affirmative action program.

United States of America v. Herrera
No. 03-CR-439-MK.
Motion to Suppress
United States District Court, D. Colorado, December 1, 2003.

Subjects: Confidential communications -- Clergy; Medicine man; Police questioning; United States.

*Synopsis: (from the opinion) The Defendant seeks to suppress incriminating statements by Robert Cervantes, a Native American medicine man, as violative of the clergy-communicant privilege. The Defendant further seeks to suppress his own confession on two grounds:
(1) that the confession is fruit of the statements of Robert Cervantes, which should be suppressed; and
(2) that the confession was involuntary and obtained without proper advisement in accordance with Miranda v. Arizona, 384 U.S. 436 (1966)...

... Because of the spititual role, a medicine man or healer can qualify as clergy for purposes of the clergy-communicant privilege...The clergy-communicant privilege does not shield the Defendant's statements to Robert Cervantes from disclosure. The Defendant's incriminating statements made on August 7,2003 were voluntarily made without coercion by law enforcement officers. Because the Defendant was not in custody at the time he made such statements, no Miranda advisement was required. In accordance with these conclusions, neither the Defendant's statements to Robert Cervantes nor his statements to law enforcement are suppressed.

*Holding: not yet available

Related News Stories: Native American Medicine Man Can Hold Confessional Privilege [page 4] (Indian Law Times)

November

Cayuga Indian Nation of New York v. Village of Union Springs
293 F.Supp.2d 183, No. 5:03-CV-1270.
United States District Court, N.D. New York, Nov. 28, 2003

Subjects: Cayuga Nation of New York; Indian Country (New York) -- Defined; Zoning law -- New York; Land use -- Law and legislation -- New York; Federal question; Sovereign immunity -- Cayuga Nation of New York; Cayuga County (N.Y.); Village of Union Springs (N.Y.); Springport (N.Y. : Town); Injunctions.

*Synopsis: Indian tribe brought action against county and municipal governments for a declaratory judgment that land was Indian country and an injunction barring municipalities from enforcement of zoning and land use laws against tribe. Village counterclaimed for injunctive relief.

*Holding: District Court, Hurd, J., held that:
(1) federal question jurisdiction existed over suit;
(2) tribal sovereign immunity did not preclude local governments' counterclaims;
(3) tribe failed to establish that it would suffer irreparable harm in the absence of a preliminary injunction; and
(4) village did not establish irreparable harm absent a preliminary injunction.

Related News Stories: Cayugas, Union Springs Start Over (Post Standard) 12/3, Hearing Clarifies Nation's Bingo Hall Plans (Post Standard) * 04/08, Cayuga Land Claim Rulings Challenged (Post Standard) * 04/01, Aurelius Bingo Hall Ruling Still Awaited (Post Standard) * 03/22, Judge Affirms Cayuga Nation's Sovereign Rights (Indianz.com) 04/26

Shoshone Indian Tribe of the Wind River Reservation v. United States
58 Fed. Cl. 542, No. 458-79 L, 459-79 L
United States Court of Federal Claims, Nov. 24, 2003

Subjects: Oil and gas leases -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting.

*Synopsis: Indian tribes brought action against the United States for breach of fiduciary duty in the management and payment of royalties on oil and gas production on Indian lands.

*Holding: On defendant's motion in limine to exclude testimony and evidence regarding certain claims for breach of trust after 1988, the Court of Federal Claims, Hewitt, J., held that:
(1) letter to the government in which Indian tribes expressed their intention not to seek damages for breach of fiduciary duty in the management and payment of royalties on oil production on Indian lands, with respect to certain periods and leases, was not a effective release of claims by trust beneficiaries;
(2) letter did give rise to promissory estoppel; and
(3) letter did not create basis for equitable estoppel.

Narragansett Indian Tribe of Rhode Island v. Banfield
294 F.Supp.2d 169, C.A. No. 02-524S.
United States District Court, D. Rhode Island, Nov. 19, 2003

Subjects: Narragansett Indian Tribe of Rhode Island; Narragansett Indian Wetuomuck Housing Authority (R.I.) -- Members; Libel and slander; District courts; Jurisdiction.

*Synopsis: Indian tribe brought action against members of Indian housing authority, seeking to enjoin enforcement of discovery order by Rhode Island Superior Court which, in action by Chief Sachem for libel and slander, granted motion by housing authority members to compel answers against Sachem Chief regarding tribal documents. Members moved to dismiss.

*Holding: The District Court, Smith, J., held that:
(1) Rooker-Feldman doctrine foreclosed district court jurisdiction, and
(2) motion to amend complaint to include Rhode Island Superior Court justices as defendants was futile.

Greybuffalo v. Frank
2003 WL 23211615, No. 03-C-559-C
United States District Court, W.D. Wisconsin, Nov. 4, 2003

Subjects: Actions and defenses; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indian prisoners -- Wisconsin; Freedom of religion; Herbs -- Therapeutic use; Indians of North America -- Rites and ceremonies.

*Synopsis: (from the opinion) This is a civil action for declaratory, monetary and injunctive relief, brought pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1 - 2000cc-5. Plaintiff Johnson Greybuffalo is an inmate at the Green Bay Correctional Institution in Green Bay, Wisconsin. He contends that all defendants except defendant Bruns violated his statutory and constitutional rights to exercise his religion when they denied his various requests for religious accommodation. In addition, he contends that defendant Bruns violated his constitutional rights when she failed to adequately investigate his inmate complaint.

*Holding: not yet available

United States v. John
291 F.Supp.2d 230, No. 01-CV-335A
United States District Court, W.D. New York, Nov. 4, 2003

Subjects: Income tax -- United States; Tax exemption -- United States; Indians of North America.

*Synopsis: United States brought action to reduce to judgment federal income tax assessments made against married couple individually. United States moved for summary judgment.

*Holding: The District Court, Arcara, J., adopted the opinion of Leslie G. Foschio, United States Magistrate Judge, which held that:
(1) Native American would not be exempt from income tax, and
(2) IRS's assessment of tax liability was proper. Motion granted.

October

Greene v. State of Rhode Island
289 F.Supp.2d 5, C.A. no 03-69S
United States District Court, D. Rhode Island, Oct. 31, 2003

Subjects: Seaconke Wampanoag Tribe, Wampanoag Nation -- Land tenure; Rhode Island Indian Claims Settlement Act.

*Synopsis: Indian tribe sought declaration that it owned land tract.

*Holding: On state's motion to dismiss, the District Court, Smith, J., held that Rhode Island Indian Claims Settlement Act barred tribe's claim.

Morris v. Tanner
288 F.Supp.2d 1133, Docket No. 99-82-M-DWM
United States District Court, District of Montana, October 28, 2003
Briefs

Subjects: Indians of North America -- Enrolled members of a tribe; Jurisdiction -- Criminal actions arising in Indian Country (U.S.); United States. Indian Civil Rights Act; Indian children -- Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake); Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band; Jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; United States. Constitution. 5th Amendment; Equality before the law -- United States; Due process of law -- United States; Separation of powers.

*Synopsis: Indian who was not member of confederated tribes brought action for declaratory judgment and injunctive relief against confederated tribes, challenging tribes' exercise of criminal jurisdiction over him despite his membership in different tribe. The United States District Court for the District of Montana, Donald W. Malloy, J., dismissed the complaint, and Indian appealed. The Court of Appeals, 16 Fed.Appx. 652, 2001 WL 832722, reversed and remanded for a determination of the Indian's constitutional challenges to amendments to the Indian Civil Rights Act (ICRA). Federal government entered action as intervenor following remand.

*Holding: On remand, upon consideration of federal government's motion for dismissal and parties' cross- motions for summary judgment, the District Court, Molloy, Chief Judge, held that:
(1) amendments to ICRA did not violate Indian's Fifth Amendment equal protection rights under rational basis standard that applied to classification of Indians as political rather than racial group;
(2) even if amendments were subject to strict scrutiny based on Indians' classification as a racial group under the Equal Protection Clause, amendments were narrowly tailored to serve compelling interests of tribal self-governance and to public health, safety, and welfare of Indian reservations;
(3) ICRA amendments, which provided sufficient floor of rights, did not violate Indian's Fifth Amendment due process rights;
(4) amendments did not violate separation of powers; and
(7) amendments, which reaffirmed tribal courts' inherent power to exercise criminal jurisdiction over all Indians, authorized confederated tribes' prosecution of non-member Indian for speeding on reservation.

State of North Dakota v. Centers for Medicare and Medicaid Services
286 F.Supp.2d 1080, No. A1-03-28
United States District Court, D. North Dakota, Southwestern Division, Oct 1, 2003

Subjects: North Dakota; Centers for Medicare & Medicaid Services (U.S.); United States. Dept. of Health and Human Services; Medicare; Medicaid; Medical care; Federal aid.

*Synopsis: (from the opinion) State sued Department of Health and Human Services (HHS), challenging agency interpretation of statute governing federal payments for health care of Native Americans. State moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that 100% reimbursement rate applied when care was provided by non Indian Health Service (IHS) facility which had services contract with Center for Medicare and Medicaid Services (CMS), when referred by IHS.
Judgment for state.

Payer v. Turtle Mountain Tribal Council
2003 WL 22339181, Docket No. A4-03-105
United States District Court, District of N.D., October 1, 2003

Subjects: Turtle Mountain Band of Chippewa Indians of North Dakota -- Members; Turtle Mountain Band of Chippewa Indians of North Dakota; Ojibwa Indian School Board (N.D.) -- Members; Public contracts; United States. Dept. of the Interior; Equality before the law -- United States; Due process of law -- United States; United States. Indian Civil Rights Act; Fair trial -- United States.

*Synopsis: (from the opinion)The Petitioners are members of the Turtle Mountain Band of Chippewa who were elected to the OIS Board of Directors, where they served as both school board members and as grant administrators. While sitting on the board, the Petitioners contracted with the United States Department of the Interior for the receipt of approximately $29,000,000 in federal funds for the OIS with the understanding that this money was to be disbursed through OIS corporate bank accounts. On March 31, 2003, without giving notice to the Petitioners, tribal councilmen for the Turtle Mountain Band of Chippewa, Respondents Richard Monette, Leon Morin, Stuart Medrud, Les LaFountain, and Terry Baker (the "Respondents"), passed a resolution stating that the Petitioners had committed unspecified criminal activity in their capacity as OIS school board members. The Respondents then proceeded to remove the Petitioners from the school board and appoint themselves as replacements.

*Holding: The Petitioners' Application for Application for Writ of Habeas Corpus is DENIED.

September

Samish Indian Nation v. United States
58 Fed.Cl. 114, Docket No. 02-1383 L
United States Court of Federal Claims, September 30, 2003

Subjects: Samish Indian Tribe, Washington; Federal recognition of Indian tribes -- Samish Indian Tribe, Washington; Treaty of Point Elliott (1855); Treaty rights -- Samish Indian Tribe, Washington; Jurisdiction; United States. Indian Self-Determination and Education Assistance Act; Limitation of actions.

*Synopsis: Indian tribe brought suit against the United States, alleging that it should have been treated as a federally recognized tribe during the period from 1969 to 1996, that the government violated treaty promises, and that it violated various laws after the tribe was federally recognized in 1996.

*Holding: On defendant's motion to dismiss, the Court of Federal Claims, Damich, Chief Judge, held that:
(1) tribe's claim that the government violated the Indian Self- Determination Act (ISDA) by failing to recognize it as a federally recognized tribe until 1996 was barred by statute of limitations;
(2) tribe had no rights under the 1855 Treaty of Point Elliot; and
(3) jurisdiction was lacking over tribe's claim that the government violated its rights by denying it federal benefits and services under 38 different statutes since it became a federally recognized tribe in 1936.
Motion granted.

Navajo Nation v. Arizona Redistricting Commission
Briefs and Pleadings
286 F.Supp.2d 1087, Docket No. CV 02-0799-PHX-ROS, CV 02-0807-PHX-ROS
United States District Court, District of Arizona, Sept. 30, 2003

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; Navajo Nation Arizona New Mexico Utah; Arizona Redistricting Commission; United States. Voting Rights Act of 1965; Election districts -- Arizona; Apportionment (Election law).

*Synopsis: Following orders, in Arizona redistricting case, which found 1994 legislative districts unconstitutional, and mandated use of independent redistricting commission's plan for 2002 elections, 230 F.Supp.2d 998, intervenors moved for attorney's fees and costs.

*Holding: The District Court, Silver, J., held that:
(1) one intervening voting rights group was not a prevailing party, but a second group was, and was thus entitled to a partial award of fees;
(2) any argument that prevailing was not entitled to fees inasmuch as its goal of competitive districts conflicted with its goal of increasing Hispanic voting rights, would be addressed, where relevant, in determining the reasonableness of fees; and
(3) award of $11,673.79 as compensation of Special Master was warranted.
Ordered accordingly.

Prescott, F. v. Little Six, Inc.
284 F.Supp.2d 1224, Docket No. CIV. 0204741DSDSRN
United States District Court, D. Minnesota, Sept. 30, 2003

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; United States. Employee Retirement Income Security Act of 1974; Retirement planning; Sovereign immunity; Jurisdiction -- United States. District Court (Minnesota); District courts; Jurisdiction -- Deference to tribal courts; Jurisdiction -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Synopsis: Former tribal casino employees brought action against casino pursuant to Employee Retirement Income Security Act (ERISA).

*Holding:On casino's motion to dismiss, the District Court, Doty, J., adopted in part the opinion and recommendation of Nelson, United States Magistrate Judge, and held that:
(1) ERISA applied to casino employer;
(2) tribal trial court's findings that tribal casino created plans governed by ERISA were not clearly erroneous, and were thus entitled to deference;
(3) casino did not have sovereign immunity from suit with respect to claims brought by former employee, where employee was a Community member; and
(4) language included in summary plan descriptions constituted a waiver of tribal sovereign immunity with respect to those plans.
Ordered accordingly.

Pro-Football, Inc. v. Suzan Shown Harjo, et al.
284 F.Supp.2d 96, Docket No. 99-1385
United States District Court, D. D.C., September 30, 2003

Subjects: United States. Trademark Trial and Appeal Board; United States; Trademarks -- United States; Washington Redskins (Football team); Indians as mascots; Indians of North America; Race discrimination.

*Synopsis: Action was brought to cancel professional football team's trademark registrations, on ground they disparaged Native Americans. The Trademark Trial and Appeal Board, 1999 WL 375907, cancelled registrations, and team sought judicial review.

*Holding: On cross-motions for summary judgment, the District Court, Kollar-Kotelly, J., held that:
(1) Board's finding of disparagement was not supported by substantial evidence, and
(2) suit was barred by laches.
Reversed.

Related news stories: NCAI Calls Decision a Defeat of Racial Healing (Native Times) 10/3

Weddell v. Weber
290 F.Supp.2d 1011 ,No. CIV. 00-4087.
United States District Court, D. South Dakota, S.D., Sept. 29, 2003

Subjects: Manslaughter; Indian jurors; Lawyers -- Malpractice; Expert testimony.

*Synopsis: Following affirmance of his first-degree manslaughter conviction, 410 N.W. 2d 553, petitioner sought federal habeas relief.

*Holding: The District, Piersol, Chief Judge, held that:
(1) petitioner's trial counsel rendered ineffective assistance by failing to retain an expert pathologist to rebut state's expert's testimony about causation of victim's death, and
(2) Batson violation was established since State failed to come forward with a race-nuetral reason for striking Native American juror from the jury.

Carcieri v. Norton
290 F.Supp.2d 167, C.A. no 00-375ML
United States District Court, D. Rhode Island, Sept. 29, 2003
Briefs

Subjects: Rhode Island; Charlestown (R.I. : Town); Narragansett Indian Tribe of Rhode Island; Trust lands; Federal recognition of Indian tribes -- Narragansett Indian Tribe of Rhode Island; Rhode Island Indian Claims Settlement Act; United States. Constitution; United States. Constitution. 10th Amendment.

*Synopsis: State and its Governor, and town brought action challenging a final determination of the Secretary of the Department of the Interior to accept a 31-acre parcel of land into trust for the benefit of Indian tribe.

*Holding: Upon cross- motions for summary judgment, the District Court, Lisi, J., held that:
(1) tribe, which received federal recognition after effective date of Indian Reorganization Act (IRA), qualified as an "Indian tribe" within the meaning of IRA;
(2) Rhode Island Indian Claims Settlement Act did not impair tribe's ability, as a federally recognized tribe, to seek trust acquisition of lands that it acquired by purchase with non-settlement funds; and
(3) acceptance of parcel into trust for the benefit of the Indian tribe did not amount to a violation of the Enclave Clause, Admissions Clause, or Tenth Amendment. Defendants' motion granted.

Doe. v. Mann
285 F.Supp.2d 1229, Docket No. C 02-3448 MHP
United States District Court, ND California, Sept. 29, 2003
Briefs

Subjects: Judges -- California; Lake County (Calif.); Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Children -- Legal status, laws, etc. -- California; Child welfare; United States. Indian Child Welfare Act of 1978 (25 USC 1901); Due process of law; Jurisdiction.

*Synopsis: Native American mother, whose parental rights had been terminated, sued state court judges, county social services department, and adoptive parents, alleging violations of Indian Child Welfare Act (ICWA), due process, and state child custody law.

*Holding: On defendants' motions to dismiss, the District Court, Patel, Chief Judge, held that:
(1) Rooker-Feldman doctrine did not bar federal district court's review of state court's termination decision;
(2) stat court had jurisdiction to terminate parental rights;
(3) fact issues existed as to whether state court had given full faith and credit to tribal resolution and whether mother had received effective assistance of counsel;
(4) mother § 1983 claim was not time-barred; and
(5) state court judge could not be held liable for attorney fees.
Motions granted in part and denied in part.

Shoshone Indian Tribe v. United States
(Not yet available on Westlaw), Docket Nos. 458-79, 459-79 L
United States Court of Federal Claims, September 26, 2003

Subjects: United States. Minerals Management Service; Shoshone Tribe of the Wind River Reservation Wyoming; Trusts and trustees -- Accounting; Revenue -- Accounting; Breach of trust -- United States; Oil and gas leases -- Shoshone Tribe of the Wind River Reservation Wyoming.

*Synopsis Indian tribes brought action against the United States for breach of fiduciary duty in the management and payment of royalties on oil and gas production on Indian lands.

*Holding: On defendant's motion for summary judgment on plaintiffs' take- or-pay claims, and its motion for summary judgment on as to various claimed breaches in royalty payment processing, the Court of Federal Claims, Hewitt, J., held that:
(1) cooperative agreement between the government and tribe entered into under section of the Federal Oil and Gas Royalty Management Act (FOGRMA) did not operate to reduce the government's fiduciary duty imposed by the Act to audit the collection of royalties;
(2) summary judgment was precluded on claim that the government breached its fiduciary duty by not collecting royalties on portion of settlement amount attributed to take-or-pay payments; and
(3) summary judgment was precluded on claims that the government breached its fiduciary duty by not performing a "major portion" analysis to determine value of production for royalty purposes, by not reviewing transportation allowance deducted from royalty amounts, and by not collecting interest on late payment of royalties.
First motion denied; second motion granted in part and denied in part.

Related news stories: Judge advances suit over royalty mismanagement (Indianz.com) 10/3/03

Cobell v. Norton
Opinion - historical accounting
Opinion - fixing the system
Order - structural injunction
283 F.Supp.2d 66, Docket No. CIV.A.96-1285(RCL)
United States District Court, D. D.C., September 25, 2003

*Synopsis: Beneficiaries of Individual Indian Money (IIM) trust accounts brought class action suit against Secretary of the Interior and other federal officials, alleging breach of fiduciary duty in management of accounts. Following affirmance of holding that officials breached their fiduciary duties, 240 F.3d 1081, the United District Court, 226 F.Supp.2d 1, found Secretary in contempt. The Court of Appeals, 334 F.3d 1128, vacated and remanded.

*Holding: On remand, the District Court, Lamberth, J., held that:
(1) court had remedial authority to enter structural injunction;
(2) Interior Department was obligated to account for all fund assets deposited or invested since commencement of allotment process in 1887;
(3) structural injunction in order to obtain such accounting was warranted; and, in separate opinion, that
(4) traditional common-law trustee duties governed Department's administration of IIM trust;
(5) Department had to administer IIM trust in compliance with applicable tribal law and ordinance; and
(6) Department's plan to correct deficiencies in its administration of IIM trust had, at minimum, to ensure that its title, leasing, and accounting systems were integrated and functional.
Ordered accordingly.

Related News Stories: Lamberth Lays out Future of Indian Trust Reform (Indianz.com) 9/26
Accounting Ordered at Indian Trust Fund (NYT) (requires password) 9/26,
Lamberth Issues Rulings in Cobell Trust Fund Case (Indianz.com) 9/25

Colorado Construction Corp. v. United States
57 Fed.Cl. 648, Docket No. 02-1294C
United States Court of Federal Claims, September 16, 2003

Subjects: Indian business enterprises -- Defined; Colorado Construction Corp.; Public contracts -- United States; United States. Bureau of Indian Affairs; Bridges -- Design and construction -- On Indian reservations; Te-Moak Tribes of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band).

*Synopsis: Bidder on bridge replacement project on Indian reservation filed bid protest against the United States challenging determination of the Bureau of Indian Affairs (BIA) that it was not an eligible Indian Economic Enterprise.

*Holding: On cross-motions for judgment on the administrative record, the Court of Federal Claims, Miller, J., held that the BIA reasonably determined that bidder was not an eligible Indian Economic Entity for lack of Indian control or involvement in business management.

Beller v. United States
221 F.R.D. 679, No. civ.02-1368
United States District Court, D. New Mexico, September 9, 2003

Subjects: Wrongful death; United States -- Officials and employees; Drunk driving; Drinking and traffic accidents; Privileged communications (Libel and slander); Common law marriage; Unmarried couples; Law -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Personal representatives brought wrongful death suit against the United States, alleging that their decedents were killed in a collision in a government truck driven by government employee who was drunk at the time of the collision. Liability was asserted under theories of respondeat superior, negligent entrustment, and negligent hiring, training and supervision. Nonparty witness moved for protective order.

*Holding: The District Court, Garcia, Chief United States Magistrate Judge, held that:
(1) nonparty witness who invoked martial privilege in response to deposition questions regarding conversations she had with her alleged husband established that a valid common law marriage existed between them under Navajo law at time of the conversations, and thus privilege was applicable, and
(2) witness did not waive marital privilege.
Motion granted.

August

New York State v. Shinnecock Indian Nation
280 F.Supp.2d 1, Docket No. CV033243(TCP)(ARL)
United States District Court, E.D. New York, August 29, 2003

Subjects: Shinnecock Indian Nation, New York; New York; Indian gaming -- Shinnecock Indian Nation, New York; Casinos -- Design and construction -- New York; Environmental risk assessment; Gambling -- Law and legislation -- United States; Gambling -- Law and legislation -- New York; Federal recognition of Indian tribes -- Shinnecock Indian Nation, New York; Zoning law -- New York; Zoning law -- Southampton (N.Y. : Town); Indian property -- New York.

*Synopsis: State sued Indian tribe in state court, alleging that proposed casino violated federal and state gambling laws and state and local environmental regulations. Tribe removed case to federal court.

*Holding: On state's motion for preliminary injunction, the District Court, Platt, J., held that:
(1) environmental harm potentially caused by casino construction was irreparable, and
(2) questions as to whether tribe was federally recognized, whether land on which it wished to build was Indian land, and whether tribe was exempt from state and local environmental and zoning laws, were sufficiently serious to warrant preliminary injunction.
Motion granted.

Reservation Telephone Cooperative v. Henry
278 F.Supp.2d 1015, Docket No. A4-02-121, A4-02-126
United States District Court, D. North Dakota, August 26, 2003

Subjects: Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Reservation Telephone Cooperative (N.D.); West River Telecommunications Cooperative (N.D.); Telephone lines -- On Indian reservations -- Taxation; Right of way -- On Indian reservations -- Taxation.

*Synopsis: Telephone cooperatives challenged authority of Indian tribes to impose possessory interest tax on telephone lines and rights-of-way within reservation.

*Holding: On cross-motions for summary judgment, the District Court, Hovland, Chief Judge, held that tribes lacked authority to impose tax.

State v. Mineta
278 F.Supp.2d 1025, Docket No. CIV. 02-3034, 2003 D.S.D. 16
United States District Court, D. South Dakota, August 21, 2003

Subjects: South Dakota; United States. Dept. of Transportation;Roads -- On Indian reservations -- South Dakota; Roads -- Design and construction -- South Dakota; Government contractors -- South Dakota; Taxation; Tribes -- South Dakota.

*Synopsis: State brought action against Secretary of Transportation, seeking declaration that the Secretary, who assertedly had taken final action to require the state to require highway contractors to pay, and charge to the state, occupational taxes levied by Indian tribes in connection with construction projects on state highways which traverse Indian reservations, had no such authority, and that the Secretary could not withhold federal highway funds because of state action to not honor and reimburse highway contractors for such tribal occupational taxes.

*Holding: On the Secretary's motion to dismiss, the District Court, Kornmann, J., held that there was no final agency action and the state had suffered no injury, and thus, the action was not ripe for review.

Cobell v. Norton
2003 WL 21978286, Docket No. Civ.A.96-1285(RCL)
United States District Court, D.D.C., August 20, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Data protection; Preservation of materials; United States. Office of Special Trustee for American Indians -- New Mexico; United States. Bureau of Indian Affairs Realty Office (Ariz.); Indian allotments -- Navajo Nation, Arizona, New Mexico & Utah; Servitudes -- Navajo Nation, Arizona, New Mexico & Utah; Right of way -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: (from the opinion)On March 6, 2003, the Special Master, in the company of attorneys representing the Department of Justice and the Office of the Solicitor, visited the Office of Appraisal Services ("OAS") of the Navajo Regional Office ("NRO") of the Office of the Special Trustee for American Indians ("OST") located in Gallup, New Mexico and the Bureau of Indian Affairs ("BIA") Realty Office in Window Rock, Arizona. The purpose of the site visit was to determine whether individual Indian trust information concerning the appraisal of the value of rights-of-way ("ROWs") and easements running across Navajo allotments was being preserved, maintained, and safeguarded in accordance with Court orders.

*Holding: not yet available

Site Visit Report of the Special Master issued August 20, 2003 by Judge Royce C. Lamberth

Shenandoah v. Halbritter
275 F.Supp.2d 279, Docket No. 02-CIV-1430
United States District Court, N.D. New York, August 8, 2003

Subjects: Housing -- Law and legislation -- Oneida Nation of New York; Compliance; Indian Civil Rights Act (25 USC 70 et seq.); Indians of North America -– Non-members of a tribe; Oneida Nation of New York -- Members.

*Synopsis: Residents of Indian reservation brought action seeking habeas corpus relief under Indian Civil Rights Act (ICRA), alleging that tribe's housing ordinance was used to retaliate against the residents for their resistance against tribal leadership. Tribe moved to dismiss and residents cross-moved for preliminary injunctive relief.

*Holding: The District Court, Mordue, J., held that Court lacked subject matter jurisdiction.
Dismissed.

Hoevenaar v. Lazaroff
276 F.Supp.2d 811, Docket No. 03-CV-190
United States District Court, S.D. Ohio, August 7, 2003

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute.

*Synopsis: In Native American prison inmate's § 1983 action alleging violations of his right to practice his religion, inmate moved for preliminary injunction to prevent corrections officials from cutting his hair.

*Holding: The District Court, Marbley, J., held that:
(1) inmate would be allowed to file stipulations from another case;
(2) inmate would be allowed to amend his complaint; and
(3) preliminary injunction, to extent of allowing inmate to grow a kouplock, was warranted.

Artichoke Joe's California Grand Casino v. Norton
278 F.Supp.2d 1174, Docket No. CIV-S-01-1530 DFL/GG
United States District Court, E.D. California, August 6, 2003

Subjects: Trust lands -- Lytton Rancheria of California; Indian gaming -- Class II; Gambling on Indian reservations; Standing to sue; United States. Constitution. 10th Amendment.

*Synopsis: Card rooms and charities brought action to enjoin Secretary of Interior from taking land into trust for Indian rancheria.

*Holding: On government's motion to dismiss, the District Court, Levi, J., held that:
(1) plaintiffs lacked standing to assert Tenth Amendment or Enclaves Clause claims;
(2) challenge to government's tribal status decision was not time-barred;
(3) plaintiffs failed to show irreparable harm or likelihood of success on merits. Motion granted in part and denied in part; injunction denied.

Tainter v. Watters
2003 WL 23200348, No. 02-C-540-C
United States District Court, W.D. Wisconsin, Aug. 5, 2003

Subjects: Actions and defenses; Freedom of religion; United States. Constitution. 1st Amendment; Tribal members -- Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles Reservation of Wisconsin; Indian prisoners -- Wisconsin; Indians of North America -- Rites and ceremonies.

*Synopsis: (from the opinion) This is a civil action for injunctive, declaratory and monetary relief, brought pursuant to 42 U.S.C. § 1983. Plaintiff Bernard Tainter, a patient at the Sand Ridge Secure Treatment Center, contends that defendants violated his First Amendment right to freely exercise his religion, by denying him access to his religious property.

*Holding: not yet available

Prarie Band of Potawatami v. Wagnon
276 F.Supp.2d 1168, Docket No. 99-4136-JAR
United States District Court, D. Kansas, August 6, 2003

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Synopsis: Prairie Band of Potawatomi Indians sued Kansas officials, seeking order requiring State of Kansas to grant recognition to motor vehicle registrations and titles issued by Band. Following affirmance of preliminary injunction, 253 F.3d 1234, Band moved for summary judgment, and official moved for summary judgment, to dismiss, and to strike.

*Holding: The District Court, Robinson, J., held that:
(1) Band's motor vehicle registrar was competent to testify as to, inter alia, matters pertaining to facilities located on reservation;
(2) copies of tribal certificate of title form, sample tribal license plate, and reciprocity agreement were properly authenticated;
(3) officials had connection with enforcement of state laws at issue, as required for action to fall within Ex parte Young exception to Eleventh Amendment immunity;
(4) requiring officials to grant recognition to motor vehicle registrations and titles would not violate Tenth Amendment; and
(5) Kansas' motor vehicle registration and titling laws were preempted as they applied to vehicles properly registered and titled by Band.
Band's motion granted; officials' motions denied.

July

Cobell v. Norton
337 F.3d 139, Docket No. CIV.A.96-1285 RCL
United States District Court, District of Columbia, July 28, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Injunctions; Data protection.

*Synopsis: Beneficiaries, suing Interior Department for mismanagement of Individual Indian Money (IIM) trust accounts, sought preliminary injunction requiring Department to disconnect computers providing access to trust data from Internet pending security determination.

*Holding: The District Court, Lamberth, J., held that preliminary injunctive relief was warranted.

United States v. Fredericks
273 F.Supp.2d 1032, Docket No. C4-03-23
United States District Court, District of ND, July 28, 2003

Subjects: Methamphetamine; Drug traffic -- North Dakota. United States. Constitution. 4th Amendment; Police questioning -- United States; Right to counsel -- United States. Confession (Law) -- United States; Search and seizure -- United States; Law -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.

*Synopsis: Defendant was charged with possession with intent to distribute methamphetamine in violation of the Three Affiliated Tribes' Tribal Code.

*Holding: On defendant's motion to suppress evidence and statements, the District Court, Hovland, Chief Judge, held that:
(1) Bureau of Indian Affairs (BIA) officer was acting as tribal officer when applying for search warrant, and, thus, rule governing searches and seizures did not apply;
(2) officer's affidavit satisfied Fourth Amendment's oath or affirmation requirement;
(3) officer complied with Code provision requiring written inventory of property seized;
(4) defendant failed to make preliminary showing that officer lied or exhibited reckless disregard for truth in affidavit;
(5) probable cause existed to support warrant;
(6) tribal judge's failure to question officer did not indicate that judge was not acting as neutral and detached judicial officer; and
(7) warning given by officer pursuant to tribal rule met requirements of Miranda.

Osage Nation v. United States
57 Fed. Cl. 392, Docket No. 00-169 L
United States Court of Federal Claims, July 28, 2003

Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting.

*Synopsis: Indian tribe brought suit against the United States seeking damages for breach of fiduciary duty in the mismanagement of tribal trust funds and for failure to account.

*Holding: On defendant's motion to dismiss, the Court of Federal Claims, Hewitt, J., held that:
(1) tribe had standing under the terms of 1906 Act relating to tribal trust fund to bring suit against the United States for mismanagement of tribal trust funds derived from mineral royalties and for failure to account;
(2) tribe's claims accrued on December 31, 1999 for purposes of six-year statute of limitations on suits against the United States in the Court of Federal Claims; and
(3) Indian Claims Commission (ICC) Act did not bar Indian tribe's claims concerning "losses to or mismanagement of trust funds" which occurred before August 13, 1946.
Motion granted in part and denied in part.

Kirkpatrick v. Kirkpatrick
282 F.Supp.2d 613, Docket No. 5:03CV1130
United States District Court, N.D. Ohio, July 18, 2003

Subjects: Armed forces -- Members; Seneca Nation of New York; Trials (Custody of children) -- Seneca Nation of New York; United States. Soldiers' and Sailors' Civil Relief Act of 1940; United States. Constitution. 5th Amendment; United States. Constitution. 14th Amendment; Jurisdiction -- United States. District Court (Ohio : Northern District); District courts.

*Synopsis: Former husband who was member of armed forces brought action against his former wife, Seneca Nation of Indians, its judicial system, and several Seneca Nation judges, alleging he was deprived of his rights under the Fifth and Fourteenth Amendment and the Soldiers and Sailors Civil Relief Act as a result of constitutional and federal statutory deficiencies in the Seneca Nation judicial proceedings regarding the custody of his daughter, a member of the Seneca Nation.

*Holding: Upon the Court's sua sponte consideration of its jurisdiction, the District Court, Dowd, J., held that court did not have jurisdiction to hear matter pending in tribal court.
Case dismissed.

San Carlos Apache Tribe v. United States
272 F.Supp.2d 860, Docket No. CV 99-255 TUC DCB
United States District Court, D. Arizona, July 9, 2003

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; United States; San Carlos Reservoir (Ariz.); Reservoir drawdown; United States. Endangered Species Act of 1973; Bald eagle; Nuisances; United States. National Historic Preservation Act of 1966; United States. Archeological Resources Protection Act; United States. Native American Graves Protection and Repatriation Act; United States. National Environmental Policy Act of 1969; United States. Fish and Wildlife Coordination Act; Trusts and trustees -- United States; Breach of trust -- United States; Jurisdiction -- United States. District Court (Arizona); District courts.

*Synopsis: San Carlos Apache Tribe sued United States, seeking to enjoin release of water from San Carlos Reservoir, asserting claims under Endangered Species Act (ESA), federal common law of public nuisance, National Historic Preservation Act (NHPA), Archeological Resources Protection Act (ARPA), Native American Graves Protection and Repatriation Act (NAGPRA), National Environmental Policy Act (NEPA), and Fish and Wildlife Coordination Act (FWCA), and alleging that United States breached its trust responsibilities.

*Holding: On United States' motion for summary judgment, the District Court, Bury, J., held that:
(1) letter from Tribe complied with notice provision of ESA;
(2) drawdown of Reservoir would not cause "harm" to bald eagles, so as to be "taking" under ESA;
(3) nuisance claim was not reviewable under Administrative Procedure Act (APA);
(4) no private right of action existed under NEPA, FWCA, or NHPA;
(5) drawdown did not require permit under ARPA;
(6) drawdown did not trigger NAGPRA obligations and procedures;
(7) United States did not create public nuisance so as to breach its general trust responsibilities;
(8) District Court lacked jurisdiction over claim that United States breached its trust responsibilities in operating irrigation project; and
(9) claim that United States breached its fiduciary duty by draining Reservoir accrued by time of 1935 consent decree.

Prairie Band Potawatami Nation v. Richards
2003 WL 21536881, No. 99-4071-JAR
United States District Court, D. Kansas, July 2, 2003

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; United States -- Jurisdiction; Standing to sue -- Prairie Band of Potawatomi Indians, Kansas; United States. Hayden-Cartwright Act; Kansas. Act for Admission.

Synopsis: Indian tribe moved for reconsideration of decision, 241 F.Supp.2d 1295, which denied its action for relief from state's collection of motor fuel tax from distributors delivering fuel to reservation.

*Holding:The District Court, Robinson, J., held that
(1) district court did not rely on allegedly objectionable evidence in making its ruling, and
(2) request that court rule that tribe had a constitutional and self-government right to impose tribal taxes with respect to motor fuel sold on reservation, did not warrant reconsideration.
Motion denied.

Oregon v. Norton
271 F. Supp 2d 1270, No. CIV. 02-6104-TC
United States District Court, D. Oregon, July 1, 2003

Subjects: Trust lands -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Restored lands -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Indian gaming; United States. Indian Gaming Regulatory Act (IGRA); Oregon; United States. Dept. of the Interior; United States. Administrative Procedure Act.

Synopsis: State brought action for review of decision of the Secretary of the Interior which determined that a parcel of land was acquired as part of the restoration of lands to an Indian tribe, and thus was eligible for gaming under Indian Gaming Regulatory Act (IGRA). Tribe intervened, and all parties cross-moved for summary judgment.

*Holding: The District Court, Coffin, United States Magistrate Judge, held that Secretary did not abuse her discretion in determining that land was acquired as part of a restoration of lands to the tribe.
State's motion denied and motions of Secretary and tribe granted.

June

Oltra, Inc. v. Pataki
273 F.Supp.2d 265, Docket No. 03-CV-319S
United States District Court, W.D. New York, June 23, 2003

Subjects: Tobacco -- Transportation; Cigarettes; Delivery of goods; Electronic -- Commerce; Tribes -- Commerce; Internet; Constitutional law -- New York; Public health -- New York; Interstate commerce.

*Synopsis: Tobacco retailers association brought action against State of New York challenging constitutionality of state statute that essentially prohibited shipment and transportation of cigarettes directly to New York consumers.

*Holding: On motion for temporary restraining order, the District Court, Skretny, J., held that:
(1) public health statute did not discriminate against interstate commerce in its effect;
(2) statute did not violate dormant commerce clause under Pike balancing test; and
(3) statute did not violate dormant commerce clause because it regulated public interest pursuant to state's police power and it did not directly tax interstate commerce.

In re Mayes
294 B.R. 145, No. 02-70643
Eastern Shoshone Tribe of the Wind River Reservation, June 11, 2003.

Subjects: not yet available

*Synopsis: Chapter 7 debtor moved to avoid judgment lien possessed by Indian tribe, as allegedly impairing exemption to which he would otherwise be entitled, and tribe moved to dismiss on sovereign immunity grounds. Affirmed.

*Holding: The United States Bankruptcy Court for the Eastern District of Oklahoma granted motion, and appeal was taken. The Bankruptcy Appellate Panel, Nugent, J., held that: (1) contested matter brought by debtor to avoid state court judgment lien on exemption impairment grounds qualified as “suit” against tribe, of kind barred by tribe's sovereign immunity; and (2) tribe's waiver of its immunity from suit in state court, by commencing and obtaining judgment against Chapter 7 debtor in that forum, was not waiver of its immunity from suit in federal court.

May

Sac and Fox Tribe of the Mississippi in Iowa v. Walker and Bear
264 F.Supp.2d 830, No. C03-50-LRR
United States District Court, N.D. Iowa, May 22, 2003

Subjects: Indian councils -- Sac and Fox Tribe of Missouri in Kansas and Nebraska; Recall -- Corrupt practices; Elections.

*Synopsis: In intra-tribal dispute between elected Indian tribal council and appointed council, in which appointed council took control of tribal facilities, including casino, Bureau of Indian Affairs (BIA) stated continued recognition of elected council as tribal leadership and National Indian Gaming Commission (NIGC) ordered closure of casino, appointed council petitioned for review of NIGC's action and moved for temporary restraining order (TRO) or stay of administrative action. Government moved to dismiss and sought enforcement of closure order. Elected council intervenors moved for TRO to enjoin appointed council from operating casino and enjoin NIGC from implementing closure order.

*Holding: The District Court, Reade, J., held that
(1) court lacked jurisdiction over appointed council's request for TRO, and
(2) government was entitled to preliminary injunction.
Ordered accordingly.

Vencel v. Bug-O-Nay-Ge-Shig and Bureau of Indian Affairs
262 F.Supp.2d 1001, No. CIV.02-3607 MJD/RLE
United States District Court, Minnesota, May 16, 2003

Subjects: United States. Civil Rights Act of 1964. Title 7; Minnesota. Minnesota Human Rights Act; Jurisdiction -- United States; Jurisdiction -- Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band; Bug O Nay Ge Shig School; United States. Bureau of Indian Affairs.

*Synopsis: (from the opinion) This matter is before the Court on Defendant Bug O Nay Ge Shig School's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)
(1) and 12(b)
(6). In the underlying Complaint, Plaintiff sued the Bug O Nay Ge Shig school and the Bureau of Indian Affairs, under Title VII of the 1964 Civil Rights Act and under the Minnesota Human Rights Act. Defendant Bug O Nay Ge Shig asserts that this Court lacks subject matter jurisdiction, and that instead it properly belongs in the Tribal Court of the Leech Lake Band of Ojibwe.

*Holding: District Court, Davis, J., held that proper jurisdiction for action resided with tribal court. Motion granted.

Dumarce v. Norton
277 F.Supp.2d 1046, Docket No. CIV 02-1026
United States District Court, D. South Dakota, May 15, 2003

Subjects: Indian allotments; Inheritance and succession; Escheat; Jurisdiction; United States. District Court (South Dakota); United States. Sisseton-Wahpeton Sioux Act of 1984; United States. Constitution. 5th Amendment; Limitation of actions.

*Synopsis: Heirs to allotted Indian lands sought declaratory and injunctive relief, alleging that provision of the Sisseton-Wahpeton Sioux Act of 1984, which mandated that certain interests in Indian allotments escheat to the United States to be held in trust for tribe, constituted a taking in violation of the Fifth Amendment. Government moved to dismiss or for summary judgment, and heirs cross-moved for summary judgment.

*Holding: The District Court, Kornmann, J., held that:
(1) district court had jurisdiction;
(2) statutory provision violated Fifth Amendment;
(3) heir's claims were not barred by any statute of limitations; and
(4) Court would refrain for sixty days from ordering any relief.

Russell v. Fort McDowell Yavapai Nation
293 B.R. 34, Bankruptcy No. 02-06628-PHX-RJH
United States Bankruptcy Court, D. Arizona, May 15, 2003

Subjects: Revenue sharing -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation, Arizona; Gambling on Indian reservations; Indian gaming -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation; Creditors' bills; Bankruptcy; Business failures -- Law and legislation; Sovereign immunity -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation, Arizona.

*Synopsis: Chapter 7 debtor, a member of an Indian tribe who had obtained a business loan from the tribe, filed adversary complaint against tribe, seeking to preclude it from collecting his debt by withholding his monthly "per capita distributions" from gaming revenues. Tribe moved to dismiss on the basis of tribal sovereign immunity.

*Holding: The Bankruptcy Court, Randolph J. Haines, J., held that Indian tribes are "domestic governments" as to which sovereign immunity is abrogated under the Bankruptcy Code.

National Wildlife Federation v. National Marine Fisheries
254 F.Supp.2d 1196, No. CV 01-640-RE
United States District Court, D. Oregon, May 7, 2003

Subjects: Salmon; Steelhead (Fish); Wildlife conservation; United States. National Marine Fisheries Service; United States. Endangered Species Act of 1973; Nez Perce Tribe of Idaho ; Umatilla Reservation, Confederated Tribes of the, Oregon; Yakama Indian Nation of the Yakima Reservation, Washington; Confederated Tribes of the Warm Springs Reservation, Oregon; Columbia River.

*Synopsis: Environmental and conservation organizations brought action against National Marine Fisheries Service (NMFS), seeking declaration that no-jeopardy opinion regarding salmon and steelhead in Columbia River basin violated Endangered Species Act and seeking to enjoin NMFS to reinitiate consultation. Idaho, utilities, and farm bureaus intervened as defendants.

*Holding: On cross motions for summary judgment, the District Court, Redden, J., held that:
(1) NMFS definition of "action area" was arbitrary and capricious;
(2) biological opinion (BO) improperly relied on certain mitigation actions; and
(3) remand to NMFS was proper.

County of Mille Lacs v. Benjamin
262 F.Supp.2d 990, No. 02-CV-407 JMRRLE
United States District Court, D. Minnesota, May 6, 2003.

Subjects: Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band -- Claims; Land tenure; Mille Lacs County (Minn.).

*Synopsis: County and intervenor bank sought declaratory judgment that Indian tribe had no claim to any land beyond that which it currently occupied. Tribe moved for summary judgment.

*Holding: The District Court, Rosenbaum, Chief District Judge, held that
(1) county and bank lacked standing, and
(2) case was not ripe for adjudication.
Dismissed.

Sheila Burdett v. Harrah's Kansas Casino Corp., et al
260 F.Supp.2d 1109, No. CIV.A. 02-2166-KHV
United States District Court, D. Kansas, May 5, 2003

Subjects: Collecting of accounts; Debt; Racketeering; Jurisdiction -- United States; Jurisdiction -- Civil actions arising in Indian Country (U.S.); Jurisdiction -- Criminal actions arising in Indian Country (U.S.); United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Jurisdiction -- United States -- States; Casinos -- Prairie Band of Potawatomi Indians, Kansas; Harrah's Kansas Casino Corporation; Harrah's Operating Company, Incorporated; Harrah's Entertainment, Incorporated; Racketeer Influenced and Corrupt Organizations Act (18 USC 1961 et seq.).

*Synopsis: Wife of customer of Indian gambling casino sued tribe, agent operating casino, and companies performing debt collection services, claiming violations of debt collecting and racketeering statutes. Defendants moved to dismiss.

*Holding: The District Court, Vratil, J., held that:
(1) there was no basis for federal court jurisdiction under Indian Gaming Regulatory Act (IGRA);
(2) there was no jurisdiction under statute conferring jurisdiction on state for crimes committed on Indian territory; and
(3) Racketeer Influenced and Corrupt Organizations Act (RICO) was not violated.
Motion granted in part, denied in part.

Wilson v. Moore
270 F. Supp. 2d 1328, Docket No. 4:98CV328-WS
United States District Court, N.D. Florida, May 1, 2003

Subjects: Indian prisoners; Ex-convicts; Prisons; Policies and institutions; Freedom of religion; Ceremonial objects; United States. Constitution. 1st Amendment; Equality before the law -- United States; Florida. Religious Freedom Restoration Act.

*Synopsis: Native American prisoner brought civil rights action against prison defendants, alleging violations of his constitutional rights and state law. After remand, 31 Fed.Appx. 930, the defendants' moved for summary judgment.

*Holding: The District Court, Stafford, Senior District Judge, adopted the report and recommendation of United States Magistrate Judge Sherrill, J., holding that:
(1) plaintiff's release from prison and his residence in North Carolina rendered his equitable claims arising from his incarceration moot;
(2) prisoner's request for monetary damages for violation of his constitutional rights was limited to nominal damages;
(3) prison policies denying prisoners of Native American faith Holy Ground and imposing restrictions on smudging ceremonies did not violate Native American prisoner's rights under Free Exercise Clause of First Amendment;
(4) refusal of prison officials to permit personal possession of a prayer pipe did not violate prisoner's First Amendment rights;
(5) genuine issues of material fact existed underlying issues as to whether prison officials' refusal to permit practitioners of Native American faith the right to wear headbands routinely violated those prisoners' rights under Equal Protection and Free Exercise Clauses;
(6) prison officials were entitled to qualified immunity; and
(7) court would not exercise jurisdiction over the state law claim asserting a violation of Florida's Religious Freedom Restoration Act (RFRA).
Motion granted in part and denied in part.

April

Miccosuke Tribe of Indians of Florida v. United States
259 F.Supp.2d 1237, No. No. 00-0033-CIV-MOORE
United States District Court, S.D. Florida, April 28, 2003

Subjects: Water; Natural resources managment; United States. Army. Corps of Engineers -- Decision making; Miccosukee Tribe of Indians of Florida.

*Synopsis: Indian tribe challenged water management decisions made by United States Army Corps of Engineers.

*Holding: Adopting the report and recommendation of John J., O'Sullivan, United States Magistrate Judge, the District Court, Moore, J., held that tribe's claims were moot.
Case dismissed.

Related News Stories: Miccosukee Tribe Asks Collier Judge to Dismiss DEP Lawsuit (Naples Daily News) 03/22

Cobell v. Norton
260 F.Supp.2d 110, No. CIV.A. 96-1285(RCL)
United States District Court, District of D.C., April 28, 2003

*Synopsis: In action brought by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of the Interior and Treasury, plaintiffs moved for partial summary judgment as to non-settlement of accounts and government's failure to perform previously-ordered accounting.

*Holding: The District Court, Lamberth, J., held that:
(1) General Accounting Office (GAO) never conducted an accounting of any individual Indian trust assets or trust accounts;
(2) issues of fact existed as to whether there had been any examinations of individual trust accounts to ensure their propriety and accuracy;
(3) issues of fact existed as to whether any statements of account had been rendered for individual accounts;
(4) issues of fact existed as to whether amount of funds held in individual trust accounts could not be ascertained because of the loss, destruction, and corruption of trust records; and
(5) issues of fact existed as to whether it was possible to certify that disbursements from individual trust accounts were made to the correct beneficiaries in the correct amounts.
Motion granted in part and denied in part.

Cobell v. Norton
260 F.Supp.2d 93, No. CIV.A. 96-1285(RCL)
United States District Court, District of D.C., April 28, 2003

*Synopsis: In action by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of the Interior and Treasury, government moved for partial summary judgment that Interior Department's historical accounting plan and trust management plan comported with obligation to perform a historical accounting.

*Holding: The District Court, Lamberth, J., held that evidence was insufficient to demonstrate that plans comported with court's requirements.
Motion denied.

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States
259 F.Supp.2d 783, No. 01 C 2370
United States District Court, N.D. Illinois, April 28, 2003

Subjects: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles, Reservation of Wisconsin; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Sokaogon Chippewa Community of the Mole Lake Band of Chippewa Indians, Wisconsin; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Law and legislation; Delegation of powers -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Breach of trust -- United States; Equality before the law -- United States; United States. Constitution. 5th Amendment; United States. Constitution. 10th Amendment.

*Synopsis: Three Indian tribes brought action to challenge constitutionality of gubernatorial concurrence requirement of Indian Gaming Regulatory Act (IGRA). Parties cross-moved for judgment on the pleadings, and plaintiffs conditionally moved to amend their complaint.

*Holding: The District Court, Crabb, J., held that:
(1) gubernatorial concurrence requirement was not a congressional breach of trust;
(2) gubernatorial concurrence requirement did not violate non-delegation doctrine;
(3) gubernatorial concurrence requirement did not violate appointments clause; and
(4) gubernatorial concurrence requirement did not violate Tenth Amendment.
Plaintiffs' motions denied and defendants' and intervenors' motion granted.

Wyandotte Nation v. City of Kansas City Kansas
214 F.R.D. 656, No. 01-2303-CM
United States District Court, D. Kansas, April 25, 2003.

Subjects: Wyandotte Tribe of Oklahoma -- Claims against Kansas City (Kan.) -- Compensation for taking; Possession (Law); Real property; Land use; Class actions (Civil procedure).

*Synopsis: Indian tribe brought suit against record owners of lands allegedly belonging to the tribe, seeking a declaratory judgment, recovery of possession of real property, and monetary damages arising out of defendants' alleged taking of, and trespass upon, the lands. On joint motion for certification of a defendants' class, the District Court, Murguia, J., held that certification of defendants' class as to liability issues was appropriate under provision of class action rule authorizing certification when prosecution of separate actions would create a risk of adjudications which would be dispositive of the interests of the other class members or substantially impair or impede their ability to protect their interests. Motion granted in part and denied in part.

*Holding: On joint motion for certification of a defendants' class, the District Court, Murguia, J., held that certification of defendants' class as to liability issues was appropriate under provision of class action rule authorizing certification when prosecution of separate actions would create a risk of adjudications which would be dispositive of the interests of the other class members or substantially impair or impede their ability to protect their interests.
Motion granted in part and denied in part.

Related Newes Stories: NIGC Rules against Okla. Tribe's Casino in Kansas (Indianz.com) 03/26

Wide Ruins Community School, Inc. v. Stago
281 F.Supp.2d 1086 No. 02-CV-1958.
United States District Court, D. Arizona, April 22, 2003

Subjects: Wide Ruins Community School (Ariz.); Navajo Nation. Navajo Preference in Employment Act; School principals -- Selection and employment; Schools; United States. Bureau of Indian Affairs; Tribal schools; Tribal courts; United States. District Courts; Jurisdiction -- Civil actions arising in Indian Country (U.S.); Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: After being found liable, in tribal proceedings, for violating Navajo Preference in Employment Act in regards to former school principal who was not hired when school was converted to a tribal school, school filed action alleging that federal law divested tribe of jurisdiction. School moved for summary judgment, former principal and tribal defendants moved to dismiss, and former principal moved for summary judgment.

*Holding: The District Court, Martone, J., held that former principal's action was subject to tribal jurisdiction.

Yankton Sioux Tribe v. U. S. Army Corps of Engineers
258 F.Supp.2d 1027, No. CIV. 02-4126
United States District Court, D. South Dakota, April 18, 2003

Subjects: Human remains (Archaeology) -- South Dakota; Sacred space -- South Dakota; Yankton Sioux Tribe of South Dakota; United States. Army. Corps of Engineers; Excavation -- South Dakota; North Point Recreation Area (S.D.); Recreation areas -- Design and construction.

*Synopsis: Following grant, on basis of Native American Grave Protection and Repatriation Act (NAGPRA), of a preliminary injunction to prohibit excavation or other construction activities in a state recreation area in which Indian burial remains had been inadvertently unearthed, state moved to allow adoption of archeologist's recommendations.

*Holding: The District Court, Piersol, Chief District Judge, held that:
(1) preliminary injunction would be dissolved as to area in which state sought to build waste dump site;
(2) preliminary injunction would be dissolved as to area in which state sought to build park administration building, if state at its own expense chose to return borrow dirt containing human remains to its original location; and
(3) preliminary injunction would be maintained as to area that was original site of fill.
Ordered accordingly.

Kansas Wastewater, Inc. v. Alliant Techsystems, Inc.
257 F.Supp.2d 1344, No. 02-2605-JWL.
United States District Court, District of Kansas, April 18, 2003

Subjects: Sewage disposal plants -- Kansas; Fraud.

*Synopsis: Users of government-owned wastewater treatment facility brought action against operator of facility, alleging fraud and negligent misrepresentation. Operator moved for summary judgment.

*Holding: The District Court, Lungstrum, J., held that genuine issues of material fact precluded summary judgment.
Motion denied.

Cobell v. Norton
257 F.Supp.2d 203, No. 96-1285
United States District Court, District of Columbia, April 11, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Breach of trust -- United States; Trusts and trustees -- Accounting; Injunctions; Civil procedure; Legal documents.

*Synopsis: After Court Monitor recommended that sealed document should be unsealed, in action, brought by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging mismanagement of accounts by Secretaries of the Interior and Treasury, plaintiffs moved to unseal and defendants requested that document remain sealed and that references to the content of the document be stricken.

*Holding: The District Court, Lamberth, J., held that plaintiffs' interest in disclosure did not outweigh defendants' interest in preventing disclosure.
Ordered accordingly.

March

Chippewa Trading Company v. Granholm
2