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December

Gilmore v. Salazar
2010 WL 5462476
No. 10-CV-0257-CVE-PJC.
United States District Court, Northern District of Oklahoma, December 29, 2010

*Synopsis: (from the opinion) Plaintiffs James E. Gilmore, Tammy S. Gilmore Springer, and Joanna K. Stand allege that they possess an undivided percentage interest in the Sooner and/or Ottowa chat piles (Chat Piles) located in northeastern Oklahoma. They are members of the Quapaw Tribe of Oklahoma (the Tribe) and state that the Chat Piles contain trust property managed by the Bureau of Indian Affairs (BIA). On April 23, 2010, plaintiffs filed this lawsuit alleging that federal officials failed to protect plaintiffs' rights in property held in trust for the benefit of plaintiffs and other members of the Tribe. They claim that the Estate and Bingham have been removing chat from the Chat Piles without authorization from the BIA, and that the BIA ignored plaintiffs' requests to halt the removal of chat or provide an accounting. Plaintiffs have also sued the Estate and Bingham seeking an accounting of all chat removed from the Chat Piles, and allege that the Estate and Bingham have converted plaintiffs' property by removing chat from the Chat Piles. Plaintiffs' conversion claim is based on the theory that they hold an undivided interest in the chat, and that the removal of even a single piece of chat constitutes the removal of trust property from the Chat Piles. Plaintiffs also seek declaratory and injunctive relief against the Estate and Bingham. The complaint does not specify whether the claims alleged against the Estate and Bingham are based on state or federal law.

*Holding: not yet available

The Osage Tribe of Indians of Oklahoma v. United States
96 Fed.Cl. 390
Nos. 990550 L, 00-169 L.
United States Court of Federal Claims, December 29, 2010

*Synopsis: Indian tribe sued United States, seeking damages for breach of government's fiduciary duties as trustee of tribe's mineral estate by failure of Bureau of Indian Affairs (BIA) to collect, invest, and deposit revenues generated from tribe's oil and gas leases.

*Holding: The Court of Federal Claims, Hewitt, Chief Judge, held that tribe could rely on lists provided by major oil producer in area which showed top 50 highest priced leases for each day, as proxy for historical offered prices, to calculate damages owed.
Ordered accordingly.

*Related News Stories: Court rules in favor of Osage Nation (The Ponca City News) 1/07/11

Lopez v. Ponkilla
829 F.Supp.2d 1093
No. CIV–08–1234–L.
United States District Court, Western Dist. Oklahoma, December 28, 2010

*Synopsis: Motorist brought action against Indian tribe, tribal member and employee, and the United States, seeking to recover damages for injuries motorist sustained when she was struck by a car driven by employee while she was allegedly acting within the scope of her employment. Following dismissal of the United States as a defendant, and entry of default against tribe, tribe moved to set aside entry of default against it.

*Holding:The District Court, Tim Leonard, J., held that:
(1) tribe had sovereign immunity, and
(2) District Court lacked subject matter jurisdiction over the action.

Motion granted..

Knox v. United States Department of the Interior
2010 WL 5420385
No. 4:CV 09-162-BLW.
United States District Court, District of Idaho, December 27, 2010

*Synopsis: Gamblers brought action against the Secretary of the Interior and governor seeking declaratory and injunctive relief setting aside the Secretary's approvals of all tribal compacts in Idaho and declaring them in violation of law, rescinding the compacts, and declaring that all Class III gaming in Idaho is prohibited. Secretary and governor filed motions to dismiss and plaintiffs filed motion to amend..

*Holding: The District Court, B. Lynn Winmill, Chief Judge, held that:
(1) case did not present the extraordinary need required to trigger application of the All Writs Act;
(2) gamblers had standing to bring action against the Secretary of the Interior;
(3) tribes were not necessary parties to suit;
(4) state was not a necessary and indispensable party to suit;
(5) action accrued when tribes started video gaming and gamblers became addicted;
(6) gamblers alleged final agency action; and
(7) lawsuit against governor did not implicate the Supremacy Clause. Governor's motion granted; Secretary's motion denied.

Anderson v. Grand Traverse Band of Ottawa and Chippewa Indians Tribal Court
2010 WL 5625054
No. 1:10-CV-676.
United States District Court, Western District of Michigan, December 21, 2010

*Synopsis: (from the opinion) Anderson initiated the present petition for writ of habeas corpus on July 15, 19 2010. In his petition, Anderson alleges that he was convicted of Domestic Violence in The Grand Traverse Band of Ottawa and Chippewa Indians Tribal Court, for which he was sentenced to serve 365 days in jail. Petitioner asserts that his sentence is unlawful because he was not given sufficient credit for time served prior to the imposition of his sentence. Petitioner also asserts numerous other challenges to his conviction, including that his rights to a speedy trial and to a jury trial were violated. On September 24, 2010, Respondent moved to dismiss Anderson's petition on the ground that Anderson has failed to first exhaust his remedies in tribal court. Petitioner has not responded to Respondent's motion. For the reasons discussed below, the undersigned recommends that Respondent's motion be granted and Anderson's petition be dismissed without prejudice.

*Holding: (not yet available)

Wolfchild v. US
96 Fed.Cl. 302
Nos. 03-2684L, 01-568L.
United States Court of Federal Claims, December 21, 2010

*Synopsis: Lineal descendants of Mdewakanton Sioux 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 for the Federal Circuit, 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.

*Holding: The Court of Federal Claims, Lettow, J., held that:
(1) amendment of complaint to add claims based upon Appropriation Acts' use
restrictions was not precluded on grounds of futility;
(2) Indian Trust Accounting Statute (ITAS) applied to toll six-year statute of
limitations for proposed claims based upon Appropriations Acts' use restrictions;
(3) Appropriations Acts created money-mandating duty providing basis for
plaintiffs' claims under Indian Tucker Act;
(4) plaintiffs could base their claims on use restrictions contained in
Appropriations Acts, even though Acts did not specify how broadly term "family"
was to be interpreted;
(5) Act authorizing transfer of certain lands to wildlife refuge permitted
disbursement of funds paid to three Indian communities in Minnesota;
(6) funds derived, prior to passage of 1980 Act, from lands purchased with monies
appropriated under Appropriations Acts had to be distributed to lineal descendants
of loyal Mdewakanton; and
(7) Indian communities, rather than lineal descendants of loyal Mdewakanton, were
entitled to any income derived from lands purchased with appropriated funds
following passage of 1980 Act.
Ordered accordingly.

*Related News Stories: Indian tribe may collect on 150-year-old trust. (Courthouse News Service) 1/10/11.

Oenga v. United States
96 Fed.Cl. 479
No. 06-491L.
United States Court of Federal Claims December 21, 2010

*Synopsis: Owners of Alaska Native allotment sued United States, alleging that government breached its trust obligations in connection with lease allowing oil company possession and use of allotment for oil production-related activities. Company and its working interest owners intervened as defendants. The Court of Federal Claims, 83 Fed.Cl. 594, granted partial summary judgment for allotment owners, ruling that government was liable for breach of trust with regard to company's use of allotment for oil and gas production activities outside scope of lease, and thereafter, 91 Fed.Cl. 629, determined that allotment owners were entitled to receive present fair annual rental (PFAR) for unauthorized use of allotment for oil development outside scope of lease.

*Holdings: Following trial, the Court of Federal Claims, Firestone, J., held that:
(1) scope of lease was limited by term "Niakuk Project," which did not include right to use allotment to develop oil and gas from accumulations other than "Niakuk" accumulation;
(2) use of allotment for oil development and production from another participating area was outside scope of lease and unauthorized until other participating area and covered participating area were combined;
(3) appraisals conducted by Bureau of Indian Affairs (BIA) were fundamentally flawed and could not be relied upon as proper measure of fair market rent for either authorized or unauthorized uses of allotment; and
(4) allotment owners were entitled to damages based on fair annual market rent reflected in cost savings provided by allotment as compared to alternative consisting of company's construction and use of bypass road with drill pad adjacent to allotment.
Ordered accordingly.

United States v. Questar Gas Management Co.
2010 WL 5279832
No. 2:08CV167DAK.
United States District Court, District of Utah, December 14, 2010

*Synopsis: (from the opinion) Questar Gas Management Co. ("Questar") owns and operates five natural gas compressor stations in the Uinta Basin: Coyote Wash, Chapita, Island, Wonsits Valley, and River Bend (the "Stations"). On February 29, 2008, the United States brought this action alleging that at each of the Stations Questar failed to comply with requirements of the Clean Air Act's (the "CAA") National Emission Standards for Hazardous Air Pollutants ("NESHAP") and Prevention of Significant Deterioration ("PSD") programs intended to minimize emissions of harmful pollutants. In January 2010, this court allowed the Ute Indian Tribe to intervene in certain respects. The Ute Indian Tribe was not allowed to intervene under the citizen-suit provisions of the CAA, but it was allowed to intervene to protect its interests with respect to jurisdictional issues raised by Questar and to bring a nuisance claim to the extent that it shared common questions of law and fact with the existing CAA claims.

*Holding: not yet available

Quechan tribe of the Fort Yuma Indian Reservation v. United States Dept. of the Interior
755 F.Supp.2d 1104
No. 10cv2241-LAB (CAB).
United States District Court, Southern District of California, December 15, 2010

*Synopsis: Indian tribe filed action against Department of Interior, alleging that decision to approve solar energy project violated various provisions of federal law, and seeking preliminary injunction enjoining project. Developer intervened as defendant.

*Holding: The District Court, Larry Alan Burns, J., held that:
(1) tribe was likely to prevail on claim that it was not adequately consulted under NHPA before solar energy project was approved;
(2) tribe was likely to suffer irreparable harm absent preliminary injunction;
(3) balance of equities weighed in favor of granting preliminary injunction; and
(4) preliminary injunction was in public interest.
Motion granted.

United States v. Vanderwalker
2010 WL 5140476
No. CIV 10-3008-RAL
United States District Court, District of South Dakota, December 10, 2010

*Synopsis: (from the opinion) In April of 1998, Defendant Frank Vanderwalker and his former wife Wanita entered into a residential lease agreement with the Rosebud Sioux Tribe for a parcel of trust land described as:. SE1/4SE1/4SE1/4 of Section 3, Township 41 North, Range 29 West, 6th PM, containing 2.50 acres, M/L, and (subject to prior valid existing right of way). The residential lease agreement gave the Rosebud Sioux Tribe the right of first refusal in the event that Frank or Wanita defaulted on any mortgage for which the lease was pledged as security. In October of 2000, Frank and Wanita entered into a leasehold mortgage agreement, putting their interest in the parcel of trust land up as security for a loan they received from Wells Fargo Home Mortgage, Inc. ("Wells Fargo"). Unfortunately, Frank and Wanita defaulted on the loan, and in April of 2002, Wells Fargo notified the Rosebud Sioux Tribe that the loan was in default and that the Tribe had the right of first refusal to acquire Frank's interest in the property. As of March 2001, however, the original lease agreement had been modified, and the ownership of the parcel of trust land had been transferred from the Rosebud Sioux Tribe to the Tribal Land Enterprise... Following Frank and Wanita's default, Wells Fargo transferred its interest in the mortgage to the Secretary of Housing and Urban Development ("HUD"). In April of 2004, the Government, on behalf of HUD, brought a federal foreclosure action against Frank, Wanita, and the Rosebud Sioux Tribe.

*Holding: not yet available

Osage Tribe of Indians of Oklahoma v. US
95 Fed.Cl. 469
Nos. 99-550 L, 00-169 L.
United States Court of Federal Claims, December 9, 2010

*Synopsis: Indian tribe sued United States, seeking damages for breach of government's fiduciary duties as trustee of tribe's mineral estate by failure of Bureau of Indian Affairs (BIA) to collect, invest, and deposit revenues generated from tribe's oil and gas leases.

*Holding: The Court of Federal Claims, Emily C. Hewitt, Chief Judge, held that: (1) court would take judicial notice of exchange between expert witness and defendant's counsel at earlier proceeding; (2) court would take judicial notice of definitions in standard dictionaries of statistics; and (3) considerations of fairness and due process did not preclude court from taking judicial notice. Ordered accordingly.

United States v. Wilson
754 F.Supp.2d 450
No. 8:10-CR-68.
United States District Court, Northern District of New York, December 8, 2010

*Synopsis: Defendant was charged with possessing with intent to distribute marijuana. Defendant moved to suppress evidence obtained during search of automobile.

*Holding: The District Court, Hurd, J., held that:
(1) tribal officers were not acting as “customs officers” at time of vehicle stop;
(2) officers lacked authority to arrest defendant on reservation;
(3) officers lacked authority to perform Terry stop outside boundary of reservation; and
(4) inevitable discovery doctrine was not applicable.
Motion granted.

The Save the Peaks Coalition v. United States Forest Service
2010 WL 4961417
No. CV 09-8163-PCT-MHM.
United States District Court, District of Arizona, December 1, 2010

*Synopsis: (from the opinion) This lawsuit concerns challenges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. s 4321-4370(d) to the United States Forest Service's 2005 decision to allow Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership ("the Snowbowl") to upgrade its operations by allowing the production of man-made snow using non-potable Class Ak reclaimed wastewater. See Ariz. Admin.Code s R18-11-303. Plaintiffs are specifically challenging whether the 2005 Environmental Impact Statement prepared and issued by the Forest Service in connection with this upgrade violated the National Environmental Policy Act, 42 U.S.C. ss 4321-4370d ("NEPA") by failing to properly and sufficiently consider and address the possibility or likelihood that people would ingest snow made from Class Ak reclaimed wastewater and the health impact of such potential ingestion.

*Holding: not yet available

November

Native American Arts, Inc. v. Contract Specialties, Inc.
754 F.Supp.2d 386
CA. No. 10-106 S.
United States District Court, District of Rhode Island, November 29, 2010

*Synopsis: Indian arts and crafts organization brought action alleging that retailer falsely suggested that its non-Indian-made products were in fact Indian-made, in violation of Indian Arts and Crafts Act (IACA) and Indian Arts and Crafts Enforcement Act. Retailer moved to dismiss.

*Holding: The District Court, William E. Smith, J., held that:
(1) organization established standing;
(2) organization's claim was not subject to heightened pleading requirements for fraud claims;
(3) IACA was not vague and overbroad; and
(4) IACA did not violate equal protection.
Motion denied.

Big Lagoon Rancheria v. State of California
2010 WL 4916416
No. 09-01471 CW.
United States District Court, Northern District of California, November 22, 2010

*Synopsis: After State and Indian tribe failed to reach agreement on tribal-state compact that would permit tribe to conduct class III gaming pursuant to the Indian Gaming Regulatory Act (IGRA), tribe brought action alleging that State violated IGRA by failing to negotiate in good faith. Parties cross-moved for summary judgment.

*Holding: The District Court, Claudia Wilken, J., held that:
(1) State's non-negotiable demands that 15% of Indian tribe's net win be paid into State's general fund constituted evidence of a failure to negotiate in good faith, and
(2) absent any offer of concessions, State's request for environmental mitigation measures constituted evidence of a failure to negotiate in good faith.
Tribe's motion granted and State's cross-motion denied.

Questar Exploration and Production Company v. Lambeth
2010 WL 4782986
No. 2:08-CV-455 TS.
United States District Court, District of Utah, November 16, 2010

*Synopsis: (from the opinion) The case concerns the ownership of a 1/6th interest in Lot 3 of Section 36, Township 14 South, Range 19 East, SLM (the "Subject Property"). Questar Exploration and Production Company ("Questar") brought this interpleader action against Cecelia Lambeth, Alpine Springs, LLC ("Alpine Springs"), John Chasel, and Evan Gentile...In its Complaint, Questar alleged that it is the owner of an oil and gas lease for a producing gas well located on the Subject Property. Lambeth claims that she is the owner of the Subject Property, while Alpine Springs, John Chasel, and Evan Gentile argue that Lambeth lost any interest that she had in the property through a state court foreclosure action and that they have since acquired the property through various conveyances. Lambeth is a citizen of the State of Utah, residing in Iron County, Utah. Lambeth is listed as a "mixed blood" on the Ute Indian Tribe membership rolls. Pursuant to a patent dated June 13, 1960, a Fee Simple Patent (the "1960 Patent") was issued to Lambeth conveying an undivided 1/6th interest in the Subject Property.

*Holding: not yet available

Saginaw Chippewa Indian Tribe of Michigan v. Granholm
Brief from Turtle Talk Blog

2010 WL 2231907
No. 05-10296-BC.
United States District Court, Eastern District of Michigan, November 10, 2010

*Synopsis: (from the opinion) On the March 5, 2010 deadline for filing dispositive motions, Plaintiff-Intervenor United States filed a motion for summary judgment, contending that there is no genuine issue of material fact as to whether the 1855 and 1864 treaties created a reservation of six townships in Isabella County and that Plaintiff-Intervenor United States is entitled to judgment as a matter of law on that question. Defendants Jay B. Rising, Mike Cox, and Jennifer Granholm (collectively “State Defendants”) and Defendant-Intervenors City of Mt. Pleasant and County of Isabella filed a joint motion for summary judgment, contending the lands sold from within the six townships before the townships were withdrawn from the public domain are not part of the reservation and that the Saginaw Chippewa Indian tribe is not a “person” within the meaning of 42 U.S.C. § 1983. Plaintiff Saginaw Chippewa Indian Tribe of Michigan did not file a motion for summary judgment or join in the United States' motion. On April 6, 2010, the Saginaw Chippewa filed a response to the United States' motion for summary judgment, seeking to elaborate on the factual record surrounding the motion...Plaintiff Saginaw Chippewa Indian Tribe ("Tribe"), the United States of America, and Defendants Governor Granholm and the State Treasurer ("State"), the City of Mount Pleasant ("City"), and the County of Isabella ("County") have proposed a consent decree that would settle the instant lawsuit. The Attorney General opposes the terms of the proposed settlement on three specific grounds.

*Holding: not yet available

*Related News Stories: Update-2: City, tribe agree to settlement in 'Indian country' suit (Morning Sun) 11/8/10

Unkechauge Indian Nation v. Paterson
752 F.Supp.2d 320
Nos. 10-CV-711A, 10-CV-811A.
United States District Court, Western District of New York, November 9, 2010

*Synopsis: Indian tribes brought action against Governor of the State of New York and other state officials, seeking to enjoin the implementation of amendments to New York tax law relating to the taxation of cigarettes sold by reservation retailers. Tribes moved for preliminary injunction, and to compel the defendants to participate in court-ordered mediation.

*Holding: The District Court, Richard J. Arcara, J., held that:
(1) tribes failed to demonstrate success of merits on claim that amendments imposed impermissible burden on tribal sovereignty;
(2) tribe failed to demonstrate success of merits on claim that amendments violated equal protection; and
(3) stay of enforcement of amendments pending appeal was prudent.
Motions denied; enforcement of tax law amendments stayed pending appeal.

Menominee Indian Tribe of Wisconsin v. United States Dept. of the Interior
2010 WL 4628916
No. 09-C-496.
United States District Court, Eastern District of Wisconsin, November 4, 2010

*Synopsis: (from the opinion) In this action the Menominee Indian Tribe of Wisconsin (hereinafter "Tribe" or "Plaintiff") seeks judicial review of the January 7, 2009 decision of the Secretary of the Department of the Interior (hereinafter "Secretary" or "Defendant") denying the Tribe's application to have the Department take land in Kenosha, Wisconsin into trust for the Tribe's benefit. The Secretary's authority to take land into trust is governed by the Indian Reorganization Act ("IRA"), 25 U.S.C. s 465, and its implementing regulations. 25 C.F.R. s 151. Because the Tribe intends to use the land to operate a casino, the Secretary's review of the Tribe's application is also governed by the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. s 2719. The Tribe alleges that denial was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the Administrative Procedure Act ("APA"), 5 U.S.C. s 706(2).

*Holding: not yet available

Carattini v. Salazar
2010 WL 4568876
No. CIV-09-489-D.
United States District Court, Western District of Oklahoma, November 3, 2010

*Synopsis: (from the opinion) This action pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. s 706, seeks judicial review of a final determination of the United States Department of Interior ("DOI") that two of the plaintiffs, Marquita Carattini and Richard Banderas, vacated their positions on the business committee of the Apache Tribe of Oklahoma and were validly replaced through a special election. The matter comes before the Court for decision on the administrative record submitted by DOI and the parties' briefs. Upon consideration of the record, the parties' arguments, and the governing law, the Court issues its decision.

*Holding: not yet available

October

Muhammad v. Comanche Nation Casino
2010 WL 4365568
No. CIV-09-968-D.
United States District Court, Western District of Oklahoma, October 27, 2010

*Synopsis: (from the opinion) Plaintiff commenced this action in the District Court of Comanche County, Oklahoma, to recover damages for personal injuries suffered in a slip-and-fall accident on Defendant's business premises. Her state court pleading alleged the casino was "owned and maintained by the Comanche Nation," which "is a tribal entity registered in the State of Oklahoma under the Compact so that this [state] court has jurisdiction over the persons and subject matter." The referenced compact is the Tribal Gaming Compact Between the Comanche Nation and the State of Oklahoma. Plaintiff based her jurisdictional allegations on recent decisions of the Oklahoma Supreme Court holding that state district courts have jurisdiction over such tort actions. See Cossey v. Cherokee Nation Enter., LLC, 212 P.3d 447 (Okla.2009)... Defendant removed the case to federal court pursuant to 28 U.S.C. s 1441 based on the existence of federal-question jurisdiction under 28 U.S.C. s 1331.

*Holding: not yet available

In re Alen Ray Howley
439 B.R. 535
No. 10-20713.
United States Bankruptcy Court, District of Kansas, October 26, 2010

*Synopsis: Chapter 7 trustee objected to exemption claimed by debtor in her right, as enrolled member of Indian tribe, to receive per capita payments from tribal gaming revenues.

*Holding: The Bankruptcy Court, Dale L. Somers, J., held that:
(1) even assuming that words “local law,” as used in bankruptcy statute authorizing debtor to claim the exemptions available to her under state or local law applicable on petition date at place in which debtor's domicile was located for requisite 730-day period, could be read expansively as including tribal exemption laws, domiciliary requirement prevented debtor, as enrolled member of Indian tribe who did not reside on reservation, from utilizing exemption in Tribal Code to exempt her interest in receiving per capita payments, and
(2) exemption was very limited exemption from “garnishment, execution, sale and other process for the payment of principal and interest, costs, and attorney fees upon any judgment of the Tribal Court,” and could not be used by debtor to protect her interest in receiving these per capita payments from administration by Chapter 7 trustee.
Objection sustained.

Wasson v. Pyramid Lake Paiute Tribe
2010 WL 4293349
No. 3: 10-cv-00123-RCJ-RAM.
United States District Court, District of Nevada, October 20, 2010

*Synopsis: (from the opinion) Plaintiffs have sued the Pyramid Lake Paiute Tribe, several tribal officials, several employees of the Bureau of Indian Affairs ("BIA"), and a tribal consultant residing in Colorado for declaratory and injunctive relief. Pending before the Court are Plaintiff's Motion for Temporary Restraining Order and Motion for Preliminary Injunction...In the Complaint, Plaintiffs characterize the nature of the case as follows: The Pyramid Lake Tribal Council under past and current three Tribal Administrators violate [sic] the requirements of due process rights and equal protection under the law which are guaranteed under The Indian Civil Rights Act of 1968; The Constitution and Bylaws of the Pyramid Lake Paiute Tribe, approved in 1936; pyramid Lake Tribal Code, Title 9, Election Code; Code of Federal Regulations 25 Indians. The Council continually violates Petition(s) and Election Referendum votes, by doing so the subject matter of the petitions are ignored or never addressed. For this reason we must bring forward the subject matter contained in the three petitions and due process violations.

*Holding: not yet available

Friends of Amador County v. Salazar
2010 WL 4069473
No. CIV. 2:10-348 WBS KJM
United States District Court, Eastern District of California, October 18, 2010

*Synopsis: (from the opinion) Plaintiffs Friends of Amador County, Bea Crabtree, and June Geary brought this action against defendants Kenneth Salazar in his capacity as the Secretary of the United States Department of Interior ("Secretary"), the National Indian Gaming Commission ("NIGC"), and George Skibine (collectively the "Federal Defendants"), as well as the State of California ("State") and Governor Arnold Schwarzenegger ("Governor," collectively the "State Defendants") arising out of plaintiffs' objections to a tribal-state compact allowing the construction of a casino by the Buena Vista Rancheria of Me-Wuk Indians ("Tribe") in Amador County. Presently before the court is the State Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 19 for failure to join a required party.

*Holding: not yet available

Alturas Indian Rancheria v. Salazar
2010 WL 4069455
No. CIV. S-10-1997 LKK/EFB
United States District Court, Eastern District of California, October 18, 2010

*Synopsis: (from the opinion) Plaintiff, the Alturas Indian Rancheria ("Tribe"), filed suit against the Department of the Interior and its officials (collectively "defendants," the "Secretary," or the "Department") for failing to renew its self-determination contract in violation of the Indian Self Determination and Education Assistance Act ("ISDA") and the Administrative Procedure Act ("APA"), 5 U.S.C. s 704 and 706. Plaintiff seeks an order, inter alia, declaring that it is entitled to renewal of its self-determination contract under the ISDA, 25 U.S.C. s 450 et seq. In response to plaintiff's allegations, defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), alleging that this court lacks subject matter jurisdiction because plaintiff has failed to exhaust administrative remedies and there is no final agency action.

*Holding: not yet available

Shingle Springs Band of Miwok Indians v. Sharp Image Gaming, Inc.
2010 WL 4054232
No. 2:10-cv-01396 FCD GGH
United States District Court, Eastern District of California, October 15, 2010

*Synopsis: (from the opinion) This case arises out of claims made by defendant Sharp Image with respect to contracts the Tribe and Sharp Image entered into in the mid-1990s. Specifically, Sharp Image alleges that (1) on or about May 24, 1996, the Tribe and Sharp Image entered into a contract known as the Gaming Machine Agreement (the "GMA"); (2) on or about November 15, 1997, the parties entered into an agreement known as the Equipment Lease Agreement (the "ELA"); and (3) on or about November 15, 1997, the parties entered into a third agreement known as the Promissory Note (collectively, the "Agreements"). Sharp Image contends that the Tribe breached the Agreements by, inter alia, entering into an agreement with a third-party for purposes of leasing or purchasing gaming equipment for the Tribe's casino in contravention of exclusivity provisions in the Agreements. The Tribe contends that the Agreements are void and unenforceable.

*Holding: not yet available

Oneida Nation of New York v. Paterson
2010 WL 4053080
No. 6:10-CV-1071
United States District Court, Northern District of New York, October 14, 2010

*Synopsis: (from the opinion) Oral argument was heard on October 1, 2010, in Utica, New York...On June 21, 2010, the State enacted amendments to its Tax Law ("the new law") to provide for taxation of cigarettes sold on a reservation to non-members, and the Governor signed it into law. Under the new law, which was to become effective September 1, 2010, wholesalers and tax stamp agents (collectively "wholesalers") are required to tax stamp all cigarettes whether or not they are bound for on-reservation sales.

*Holding: not yet available

Seneca Nation of Indians v. Paterson
2010 WL 4027796
No. 10-CV-687A
United States District Court, Western District of New York, October 14, 2010

*Synopsis: (from the opinion) The Seneca Nation of Indians ("SNI" or "Seneca Nation") commenced this action on August 17, 2010, seeking to enjoin implementation of certain amendments to the New York State tax law relating to the taxation of cigarettes sold by reservation retailers. Along with the complaint, SNI filed a motion for a temporary restraining order and a preliminary injunction. On August 31, 2010, this Court issued a temporary restraining order and enjoined implementation of the tax law amendments pending a hearing on the preliminary injunction motion. In the meantime, the Cayuga Indian Nation ("CIN" or "Cayuga Nation") moved for, and was granted, permission to intervene and joined in the preliminary injunction motion.

*Holding: not yet available

September

Muhammad v. Comanche Nation Casino
742 F.Supp.2d 1268
No. CIV-09-968-D
United States District Court, Western District of Oklahoma, September 28, 2010

*Synopsis: Patron brought state-court slip-and-fall action against Comanche Nation Casino. Casino removed action to federal court, and patron moved to remand action to state court.

*Holding: The District Court, Timothy D. DeGiusti, J., held that patron failed to plead federal question that was essential element of her state-law action, and thus district court's exercise of federal jurisdiction was warranted. Motion denied.

Reed v. Salazar
744 F.Supp.2d 98
No. 08-2117 (CKK), 09-640(CKK)
United States District Court, District of Columbia, September 28, 2010

*Synopsis: Former refuge manager, farmer, and former Fish and Wildlife Service (FWS) employees brought actions challenging annual funding agreement entered into between FWS and consolidated Indian tribe for the operation and management of the National Bison Range Complex (NBRC), a part of the National Wildlife Refuge System. Tribe intervened as a defendant. Plaintiffs, defendants, and tribe all moved for summary judgment.

*Holding: The District Court, Colleen Kollar-Kotelly, J., held that:
(1) plaintiffs had standing to bring claims under the National Environmental Policy Act (NEPA);
(2) FWS's failure to issue an environmental impact statement (EIS) without explaining its application of a categorical exclusion under the NEPA was arbitrary and capricious; and
(3) proper remedy for FWS's violation of NEPA was to set aside its agreement with tribe. Ordered accordingly.

Red Mesa Unified School District v. Yellowhair
2010 WL 3855183
No. CV-09-8071-PCT-PGR
United States District Court, District of Arizona, September 28, 2010

*Synopsis: (from the opinion) Plaintiffs Red Mesa Unified School District (“Red Mesa”) and the Cedar Unified School District (“Cedar”) are both Arizona political subdivisions. See A.R.S. § 15-101(21). Pursuant to their mandates under Arizona constitutional and statutory law, they operate public schools within the exterior boundaries of the Navajo and/or Hopi reservations on tribal trust land leased from the Navajo Nation. Defendants Sara Yellowhair, Helena Hasgood, Harvey Hasgood, and Letitia Pete are members of the Navajo Nation. Yellowhair, who had an employment contract with Red Mesa for the 2003-2004 school year as its business manager, was terminated by Red Mesa's governing board in May, 2004 after having been found through an administrative proceeding of spending more than two million dollars in school district funds without proper approval and authorization. The Hasgoods and Pete, who had employment contracts with Cedar for the 2002-2003 school year, were terminated by Cedar's governing board in November, 2002 after having been found through an administrative proceeding of accessing pornographic websites on a school computer in violation of school district policy.

*Holding: not yet available

Onondaga Nation v. State of New York
2010 WL 3806492
No. 5:05-cv-0314 (LEK/RFT)
United States District Court, Northern District of New York, September 22, 2010

*Synopsis: (from the opinion) Plaintiff, the Onondaga Nation, is recognized by the United States as an “Indian nation,” with a population primarily located on its reservation south of Nedrow, New York. The government of the Onondaga Nation, the Onondaga Council of Chiefs, is recognized by the United States through the Secretary of the Interior, and the relationship of the Nation with the United States has never been terminated. The instant action is brought by the Nation both on its own behalf and on the behalf of the Haudenosaunee. According to Plaintiff, the Haudenosaunee is known in English as the “Six Nations Iroquois Confederacy,” and it entered into the Treaty of Fort Stanwix of 1784 and the Treaty of Canandaigua of 1794. The Onondagas are the “firekeepers” of the Haudenosaunee, and Plaintiff brings this suit by authority of the Council of Chiefs of the Haudenosaunee in addition to that of its own Council of Chiefs. Id. The Nation alleges that various lands situated in present-day central New York were unlawfully acquired by the State of New York in violation of the federal Indian Trade and Intercourse Acts, the United States Constitution, the Treaty of Fort Stanwix of 1784, and the Treaty of Canandaigua of 1794. This action seeks, inter alia, an express declaration that such was the case. The Nation cites as the basis for it claims federal common law; the United States Constitution; the Indian Trade and Intercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1834, codified at 25 U.S.C. § 177; the Treaty of Fort Stanwix of 1784, 7 Stat. 15; and the Treaty of Canandaigua of 1794, 7 Stat. 44.

*Holding: not yet available

Gilmore v. Salazar
2010 WL 3749408
No. 10-CV-0257-CVE-PJC
United States District Court, Northern District of Oklahoma, September 21, 2010

*Synopsis: Tribal owners brought action against federal defendants, seeking relief from removal of chat from restricted Indian property. Defendants filed motion to dismiss for failure to exhaust all administrative remedies.

*Holding: The District Court, Claire V. Eagan, J., held that tribal members were required to exhaust their administrative remedies before pursuing Administrative Procedure Act (APA) claims against federal defendants seeking to require Bureau of Indian Affairs (BIA) to provide an accounting of chat removed from Indian property, issue a report concerning ownership of the chat, and halt the removal of chat by private company, and declare that no chat from the Indian property could be sold without consent of the BIA.
Motion granted.

Rincon Mushroom Corporation of America v. Mazzetti
2010 WL 3768347
No. 09cv2330-WQH-POR
United States District Court, Southern District of California, September 21, 2010

*Synopsis: (from the opinion) This action concerns tribal regulation of non-Indian fee simple land located within the boundaries of the reservation of the Rincon Band of Luiseno Mission Indians. Defendants are tribal officials sued in their individual and official capacities. On October 20, 2009, Plaintiff Rincon Mushroom Company of America ("RMCA") initiated this action by filing the Complaint.

*Holding: not yet available

Donius v. Mazzetti
2010 WL 3768363
No. 10cv591-WQH-POR
United States District Court, Southern District of California, September 21, 2010

*Synopsis: (from the opinion) This action concerns tribal regulation of non-Indian fee simple land located within the boundaries of the reservation of the Rincon Band of Luiseno Mission Indians. Defendants are tribal officials sued in their individual and official capacities.

*Holding: not yet available

Kirk v. Baldovinos
2010 WL 3768117
No. 10-CV-02507-LHK)
United States District Court, Northern District of California, September 21, 2010

*Synopsis: (from the opinion) Belinda Kirk (Petitioner) is the mother of J.H., a minor. J.H. is an Indian child as defined by the Indian Child Welfare Act (ICWA). On December 21, 2006, J.H. was removed from his mother's custody and a petition was filed in Alameda County Superior Court (“Superior Court”) seeking to declare J.H. a dependent child of the court under California Welfare and Institutions Code section 300. The petition alleged that J.H. was suffering serious emotional damage due to the conduct or neglect of Petitioner, and that he had been sexually abused by Petitioner's long-term boyfriend with Petitioner's knowledge. Petitioner disputes that J.H. was abused by her boyfriend. A detention hearing was held on December 22, 2006, and the Superior Court determined that J.H. should remain in custody of the Court because leaving J.H. in the custody of Petitioner would be “contrary to [his] welfare.”

*Holding: not yet available

Alabama-Ouassarte Tribal Town v. U.S.
2010 WL 3780979
No. CIV-06-558-RAW
United States District Court, Eastern District of Oklahoma, September 21, 2010

*Synopsis: (from the opinion) In its Complaint, Plaintiff requests: (1) a declaratory judgment that the Defendants have failed to fulfill the legal obligations and duties as trustee by, among other things, failing to provide the Plaintiff with a full accounting of the Plaintiff's trust funds and by failing to assign the Wetumka Project lands as originally intended and as Congress had envisioned through the Oklahoma Indian Welfare Act of June 26, 1936, 25 U.S.C. § 501, et seq. (hereinafter “OIWA”); and (2) an injunction compelling the Department of the Interior Defendants to make the assignment to the Plaintiff of trust lands owed under the OIWA and to provide the Plaintiff with a full and complete accounting of all of the Plaintiff's trust funds and assets.

*Holding: not yet available

Little River Band of Ottawa Indians v. National Labor Relations Board
747 F.Supp.2d 872
No. 1:09-cv-141
United States District Court, Western District of Michigan, September 20, 2010

*Synopsis: Federally recognized Indian tribe filed case for declaratory and injunctive relief to prevent National Labor Relations Board (NLRB) from proceeding on charge that tribe was engaging in prohibited unfair labor practice by prohibiting employees of “subordinate economic organizations,” including casino resort, from engaging in strikes. Tribe moved for summary judgment, and NLRB moved to dismiss for lack of subject matter jurisdiction.

*Holding: The District Court, Janet T. Neff, J., held that:
(1) federal question jurisdictional provision did not independently provide district court with subject matter jurisdiction;
( 2) statute giving district courts original jurisdiction of civil actions brought by any Indian tribe also did not alone provide right of entry into federal courts; and
(3) tribe did not create federal question jurisdiction by means of well-pleaded complaint establishing either that NLRA created its cause of action or that its right to relief depended on resolution of a substantial question of federal law.
Defendant's motion granted; plaintiff's motion denied as moot.

Liska v. Macarro
2010 WL 3718300
No. 08-CV-1872-IEG (POR)
United States District Court, Southern District of California, September 17, 2010

*Synopsis: (from the opinion) On October 14, 2008, Petitioner, proceeding pro se, filed the original petition, captioned “Complaint [for] Writ of Habeas Corpus .” Petitioner alleged he is a descendant of the Pechanga Band of Mission Indians (the “Tribe”), but not an enrolled member of the Tribe. The Tribe currently has in place a moratorium on enrolling new members. The petition named as respondents Tribe members Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy. Petitioner alleged Respondents illegally banished Petitioner from the Tribe without a hearing or due process, in violation of the American Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301, 1302, and 1303. According to Petitioner, he is entitled to be recognized as a member of the Tribe, share in the Tribe's trust proceeds, and enter the reservation to visit his father's grave.

*Holding: not yet available

Lac Vieux Desert Band of Lake Superior Chippewa Indians Tribal Council v. Lac Vieux Desert Band of Lake Superior Indians Tribal Court
2010 WL 3909957
No. 2:10-cv-223
United States District Court, Western District of Michigan, September 14, 2010

*Synopsis: (from the opinion) On September 9, 2010, a petition for writ of habeas corpus, with a request for expedited consideration, was filed pursuant to the Indian Civil Rights Act of 1968, 25 U.S.C. § 1303. The petition maintains that petitioners are nine members of the Lac Vieux Desert Band of Lake Superior Chippewa Indians Tribal Council. According to the petition, the nine petitioners were arrested and taken into custody by the Lac Vieux Desert Tribal Police on September 8, 2010, following an election dispute and a finding of contempt by Tribal Court Judge Bradley Dakota, sitting by special appointment of the Lac Vieux Desert Tribal Court.

*Holding: not yet available

Alexander v. Salazar
2010 WL 3607871
No. CIV-10-271-FHS
United States District Court, Eastern District of Oklahoma, September 13, 2010

*Synopsis: Father, who had lost custody of his children when they were placed with Indian tribe during his incarceration, and whose parental rights had been terminated by Court of Indian Offenses upon his release from prison, filed suit against Secretary of the Interior, Bureau of Indian Affairs (BIA), and Choctaw Nation of Oklahoma Court, seeking to invalidate tribal court's decision and enjoin tribal court from adjudicating the adoption of his children.

*Holding: The District Court, Frank H. Seay, J., held that:
(1) father's action did not arise under federal law, for purposes of establishing court's subject matter jurisdiction;
(2) subject matter jurisdiction was not indicated by Commerce Clause;
(3) there was no 1983 violation, as required to establish jurisdiction; and
(4) court did not have jurisdiction to hear action brought pursuant to Indian Civil Rights Act (ICRA), since tribe had sovereign immunity.
Motion denied.

Myrick v. Gillette
2010 WL 3504815
No. 4:10-cv-064
United States District Court, District of North Dakota, September 2, 2010

*Synopsis: (from the opinion) According to Myrick's petition, five judgments were entered against her in tribal court between May 29, 2010, and August 25, 2010, in case numbers CV2010-31, CV2010-314, and CR2010-0919. It appears she was sentenced on August 25, 2010, to sixty days in jail (in addition to the eighteen days she had already spent in tribal custody). That same day she filed with the tribal court a “Motion to Vacate orders for Treatment and Orders Custody in case # CV2010-301” along with a “Demand for Change of Judge on Judge Vance Gillette.” In addition, she filed an application for a writ of habeas corpus wherein she asserted that she had been detained by Respondents and ordered to submit drug and alcohol treatment in violation of Tribal law and the Indian Civil Rights Act, 25 U.S.C. § 1302(2) and (8).

*Holding: not yet avaialable

United States v. Livingston
2010 WL 3463887
No. CR-F-09-273 LJO
United States District Court, Eastern District of California, September 1, 2010

*Synopsis: (from the opinion) Defendant Jeff Livingston (“Mr.Livingston”) moves to dismiss the indictment against him on the grounds that, as a matter of law, the government cannot establish an essential element of the offense; to wit, that the gaming establishment, the Chuckchansi Gold Resort and Casino (“Casino”), was operated pursuant to an ordinance approved by the National Indian Gaming Commission (“NIGC”). Mr. Livingston argues the California Rancheria Act terminated the status of the land in 1958, and was never restored to “Indian land” status during the relevant time period. The government contends that stipulated judgments and the agency opinion letters establish that the Casino operated on “Indian land” during the relevant time period.

*Holding: not yet available

 

August

Confederated Tribes and Bands of the Yakama Nation v. United States Department of Agriculture
2010 WL 3434091
No. CV-10-3050-EFS
United States District Court, Eastern District of Washington, August 30, 2010

*Synopsis: (from the opinion) Prior to 2006, federal regulations barred the shipment of Hawaiian garbage for dumping in the continental United States (hereinafter “the mainland”). Then, in 2006, APHIS proposed amending the regulations to allow for shipment of certain garbage to the mainland, 71 Fed.Reg. 20,030 (April 19, 2006), and ultimately determined such was appropriate in accordance with 7 C.F.R. §§ 330.402-403. APHIS began assessing the environmental and pest risks associated with hauling garbage, which would be baled and then wrapped in plastic, from Hawaii to the Roosevelt Regional Landfill (hereinafter “Roosevelt Landfill”) located near the Columbia River and the Yakama Nation reservation in Washington. In pertinent part, APHIS prepared an environmental assessment (EA), which concluded that Hawaiian Waste Systems' (HWS) proposed shipment of Hawaiian garbage to the Roosevelt Landfill would have no significant environment impacts. Thereafter, APHIS issued a Finding of No Significant Impact (FONSI). Each of the Plaintiffs submitted comments in response to the FONSI; however, it is unclear whether APHIS considered the Yakama Nation's comments...After obtaining a temporary restraining order, Plaintiffs seek a preliminary injunction barring the United States Department of Agriculture (“USDA”) from authorizing shipments of Hawaiian municipal waste into the mainland.

*Holding: not yet available

Related News Stories: Honolulu's Trash Woes Growing Worse (Indian Country Today) 09/1/10

Shirk v. United States
2010 WL 3419757
No. CV-09-01786-PHX-NVW
United States District Court, District of Arizona, August 27, 2010

*Synopsis: (from the opinion) Plaintiffs Loren Shirk and Jennifer Rose seek damages from Defendant United States of America under the Federal Tort Claims Act (“FTCA”) for the allegedly negligent actions of two Gila River Indian Community (“GRIC”) police officers. Now before the Court is the United States' Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

*Holding: not yet available

Cryer v. Clarke
2010 WL 5313729
No. 09-10238-PBS.
United States District Court, District of Massachusetts, August 26, 2010

*Synopsis: (from the opinion) Pending before the Court are the parties' cross-motions for summary judgment on the plaintiff's claim that the Massachusetts Department of Corrections' policy banning tobacco smoking and possession ("DOC policy") abridges his rights under, inter alia, the federal constitution, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. s 2000cc et seq. ("RLUIPA"), and Massachusetts constitutional, statutory and regulatory law. His complaint seeks declaratory and injunctive relief, and money damages related to these claims. For the reasons explained below, the Court will recommend denying the Plaintiff's Motion for Partial Summary Judgment, and granting in part and denying in part the Defendants' Cross-Motion for Summary Judgment.

*Holding: not yet available

Jachetta v. United States
94 Fed.Cl. 277
No. 10-105L
United States Court of Federal Claims, August 26, 2010

*Synopsis: Allottee of land, under Alaska Native Allotment Act (ANAA), sued United States, claiming Fifth Amendment taking without just compensation and breach of trust, based on issuance of permits by Department of Interior's Bureau of Land Management (BLM) for extraction of gravel and other resources from allottee's land. Government moved to dismiss for lack of subject matter jurisdiction.

*Holding: The Court of Federal Claims, Wiese, J., held that:
(1) claims were barred by pendency of earlier-filed claims in district court, and alternatively,
(2) claims were time-barred.
Motion granted.

South Fork Band v. United States Department of Interior
2010 WL 3419181
No. 3:08-CV-00616-LRH-RAM
United States District Court, District of Nevada, August 25, 2010

*Synopsis: (from the opinion) Before the court is Plaintiffs South Fork Band Council of Western Shoshone of Nevada, Timbisha Shoshone Tribe, Te-Moak Tribe, Western Shoshone Defense Project, and Great Basin Resource Watch's Motion for Summary Judgment... The facts of this case are largely undisputed. Barrick, a subsidiary of Barrick Gold U.S., Inc. and Barrick Gold Corporation, Inc., seeks to construct and operate the Cortez Hills Expansion Project, a gold mining and processing operation, on and around Mt. Tenabo in Lander County, Nevada. The Project will include the development of new facilities, as well as an expansion of an existing open-pit gold mining and processing operation at the Cortez Gold Mines Operations Area...On October 3, 2008, after nearly three years of public comment and review, the BLM published a Final Environmental Impact Statement (“EIS”) Notice of Availability for the Project in the Federal Register. Shortly after the BLM issued the Project's Record of Decision, on November 20, 2008, Plaintiffs initiated this action pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706, for judicial review of the BLM's approval of the Project. Plaintiffs contend that the BLM's approval violated the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370.

*Holding: not yet available

BGA, LLC and the Western Mohegan Tribe & Nation of the State of New York v. Ulster County, New York
2010 WL 3338958
No. 1:08-cv-149
United States District Court, Northern District of New York, August 24, 2010

*Synopsis: (from the opinion) Plaintiff Tribe is a group of American Indians that calls itself the “Western Mohegan Tribe and Nation of the State of New York.” On January 5, 2001, the Tribe entered into an agreement with defendant Ulster County to purchase a parcel of land known as the “Tamarack property.” The County conveyed the property in consideration for, inter alia, the settlement of the Tribe's pending land claims against the County, as well as the payment of $900,000 in satisfaction of past real estate tax liens on the property, which plaintiff BGA advanced on the Tribe's behalf. The agreement was authorized by the Ulster County Legislature in Resolution Number 376 (the Resolution)... Plaintiffs BGA, LLC and The Western Mohegan Tribe and Nation of the State of New York brought this action against Ulster County, New York. They allege breach of contract and a violation of the Nonintercourse Act, and seek damages, specific performance, and declaratory and injunctive relief. Pending are the County's motion to dismiss plainttiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1) and for summary judgment pursuant to Fed. R. Civ P. 56(c).

*Holding: not yet available

Switzer v. Crow Tribal Court
2010 WL 3326857
No. CV 10-80-BLG-RFC
United States District Court, District of Montana, August 23, 2010

*Synopsis: (from the opinion) Switzer claims he is a “United States American,” and that “the Crow Tribe does not think [he] can have custody of [his] 1/2 Indian child.” Switzer contends that he has legal custody of his two-year-old son and that he has had custody since his son's birth. He further alleges that, on June 21, 2010, Defendants Della Dust, William Dust, Linda Dust, and Jordan Carr physically took his son from him. When Switzer went to the tribal court, he was told he could not have his son back...Mr. Switzer asks that this federal Court take this case or oversee the case on July 9, 2010, on the Crow Indian Reservation because he does not think he will get a fair trial.

*Holding: not yet available

The Quapaw Tribe of Oklahoma v. Blue Tree Corp.
2010 WL 3368701
No. 03-CV-0846-CVE-PJC
United States District Court, Northern District of Oklahoma, August 20, 2010

*Synopsis: (from the opinion) The Tribe and individual Tribal members filed this lawsuit on December 10, 2003, alleging claims of public nuisance, private nuisance, trespass, unjust enrichment, strict liability, and deceit against the successor entities of mining companies that operated in the former Tri-State Mining District...The Tribe requested damages for “1) the cost to restore, replace, or acquire the equivalent of such natural resources, 2) the compensable value of lost services resulting from the injury to natural resources, and 3) the reasonable cost of assessing injury to the natural resources and the resulting damages. The case was stayed for almost two years while plaintiffs pursued an interlocutory appeal to the Tenth Circuit Court of Appeals regarding tribal sovereign immunity from counterclaims of recoupment. The Tenth Circuit affirmed the former assigned judge's decision to allow defendants to proceed with counterclaims for recoupment...Now before the Court is defendants' Motion to Dismiss for Failure to Join Required Parties and Brief in Support Thereof. Defendants Blue Tree Corp. (Blue Tree) and Gold Fields Mining, LLC (Gold Fields) argue that the State of Oklahoma (the State) is a necessary and indispensable party to The Quapaw Tribe of Oklahoma's (the Tribe) claims for natural resources damages (NRD), that joinder of this party is not feasible, and that the Tribe's NRD claims should be dismissed.

*Holding: not yet available

Ysleta del Sur Pueblo v. National Indian Gaming Commission
731 F.Supp.2d 36
No. 10--CV-00760
United States District Court, District of Columbia, August 17, 2010

*Synopsis: Indian tribe brought action challenging determination of National Indian Gaming Commission (NIGC) that tribe was not under NIGC jurisdiction for funding and other purposes. NIGC moved to transfer venue.

*Holding: The District Court, Ellen Segal Huvelle, J., held that:
(1) Western District of Texas was a proper venue, and
(2) convenience factors and interests of justice warranted transfer to that district.
Motion granted.

Adkins v Cabell
2010 WL 3521594
No. 3:06-0579
United States District Court, Southern District of West Virginia, August 12, 2010

*Synopsis: (from the opinion) Plaintiff alleges that he is a registered Native American religious follower who was victimized by a correctional officer while he was practicing his religion on desecrated Native American burial grounds:

*Holding: not yet available

Miccosukee Tribe of Indians of Florida v. United States of America
730 F.Supp.2d 1344
No. 10-CV-21332-CIV-GOLD/MCALILEY
United States District Court, Southern District of Florida, August 11, 2010

*Synopsis: Native American tribe brought action against United States, challenging Internal Revenue Service (IRS) summons to third-party auditor regarding former chairman's alleged embezzlement. Government moved to deny tribe's petition to quash summons.

*Holding: The District Court, Alan S. Gold, J., held that: (1) IRS made prima facie showing as to enforceability of summons; (2) summoned material was potentially relevant to IRS investigation; and (3) summons was not overbroad. Motion granted in part and denied in part.

Ninilchik Native Association, Inc. v. Cook Inlet Region, Inc.
270 F.R.D. 468
No. 3:10-cv-00075 JWS
United States District Court, District of Alaska, August 6, 2010

*Synopsis: Native village corporation, formed pursuant to Alaska Native Claims Settlement Act (ANCSA), brought action against native regional corporation, also formed under ANCSA, seeking order to require regional corporation to satisfy village corporation's ANCSA entitlements to land reconveyances. Regional corporation moved to require joinder of other village corporations or to dismiss for failure to join necessary parties.

*Holding: The District Court, John W. Sedwick, J., held that joinder of other village corporations was not warranted. Motion dismissed.

QEP Field Services Company v. Ute Indian Tribe of the Uintah and Ouray Reservation
Briefs from Turtle Talk Blog
2010 WL 3069832

No. 2:10-cv-00700-TC
United States District Court, District of Utah, August 4, 2010

*Synopsis: Oil and gas company brought action against Indian tribe, seeking to enjoin the tribe from limiting access to its natural gas processing plant, expansion project, and related construction activities on tribal land. Company moved for a preliminary injunction.

*Holding: The District Court, Tena Campbell, Chief Judge, held that:
(1) exhaustion of jurisdictional issue in the tribal court was not required prior to District Court's assertion of jurisdiction;
(2) company had substantial likelihood of success on merits of its claims;
(3) company would likely suffer irreparable harm in absence of the injunction;
(4) balance of hardships favored the injunction; and
(5) public interest supported grant of the injunction.
Motion granted.

July

Red Earth LLC v. United States
Briefs from Turtle Talk Blog
728 F.Supp.2d 238

No. 10-CV-530A
United States District Court, Western District of New York, July 30, 2010

*Synopsis: Native Americans, who were in the business of selling cigarettes and tobacco products via the Internet, mail and telephone, sought to enjoin enforcement of the Prevent All Cigarette Trafficking Act of 2009 (PACT Act) on ground that various provisions of the Act violated their constitutional rights.

*Holding:The District Court, Richard J. Arcara, J., held that:
(1) plaintiffs failed to show a likelihood of success on the merits of their claim that Act's requirement that they collect and pay all state and local excise taxes to the destination jurisdiction before shipping any products violated Commerce Clause, and
(2) plaintiffs showed a likelihood of success on the merits of their claim that Act violated due process.
Motion granted.

Geronimo v. Obama
725 F.Supp.2d 182
No. 09-303 (RWR)
United States District Court, District of Columbia, July 27, 2010

*Synopsis: Alleged descendants of legendary Apache warrior filed suit against the United States, seeking determination that plaintiffs were lineal descendents of chief and entitled to recover chief's remains, pursuant to Native American Graves Protection and Repatriation Act (NAGPRA). Government moved to dismiss.

*Holding:The District Court, Richard W. Roberts, J., held that:
(1) complaint failed to allege agency action as required to invoke Administrative Procedure Act (APA) waiver of sovereign immunity, and
(2) complaint failed to allege excavation or discovery of remains during time period protected by NAGPRA.
Motion granted.

Related News Stories: Judge dismisesses Geronimo remains lawsuit (The New Haven Register) 08/11/10

Skull Valley Band of Goshute v. Davis
728 F.Supp.2d 1287
No. 07-cv-0526-DME-DON
United States District Court, District of Utah, July 26, 2010

*Synopsis: Indian tribe and company formed to seek temporary storage options for spent nuclear fuel (SNF) brought action challenging Department of Interior's (DOI) denial of company's right-of-way application and disapproval of lease between tribe and company.

*Holding: The District Court, David M. Ebel, J., held that:
(1) DOI's denial of application for right-of-way was arbitrary and capricious;
(2) DOI's determination that lease was not in tribe's best interest was not in accordance with law; and
(3) DOI's disapproval of lease was arbitrary and capricious.
Vacated and remanded.

Related Law Review Article: "What does it mean to comply with NEPA?: an investigation into whether NEPA should have procedural or substantive force."

Jones v. Norton
2010 WL 2990829
No. 2:09-cv-00730-TC-SA.
United States District Court, District of Utah, July 26, 2010

*Synopsis: (from the opinion) The Plaintiffs have filed this lawsuit against various Defendants in connection with the shooting death of Todd R. Mr. Murray which occurred while he was being pursued by police on the Uintah-Ouray Indian Reservation. Defendants Vance Norton and Vernal City move to dismiss the claims against them.
The court holds that Detective Norton did not have jurisdiction to seize Mr.
Murray. Because there are disputed issues of fact concerning whether Mr. Murray was seized and whether exigent circumstances justified the seizure if it occurred, the court DENIES Defendants' motion to dismiss the s 1983 claims.

*Holding: not yet available

Winnemem Wintu Tribe v. United States Department of the Interior
725 F.Supp.2d 1119
No. 2:09-cv-01072-FCD EFB
United States District Court, E.D. California, July 16, 2010


*Synopsis:
Indian tribe and tribal leader filed action against Department of Interior (DOI), Bureau of Reclamation (BOR), Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), United States Forest Service (USFS), United States Department of Agriculture (USDA), and district ranger and forest supervisor for Shasta-Trinity National Recreation Area alleging numerous violations of federal law. Defendants moved to dismiss.

*Holding: The District Court, Frank C. Damrell, Jr., J., held that:
(1) determination of whether Winnemem were entitled to federal acknowledgment as Indian tribe was non-justiciable political question;
(2) claims brought pursuant to Administrative Procedure Act (APA) and various statutes alleging injuries to tribal interests could not be brought by tribe that had not been recognized by federal government;
(3) plaintiffs sufficiently stated injury-in-fact on their National Environmental Policy Act (NEPA) claims;
(4) plaintiffs sufficiently stated injury-in-fact on their NHPA claims;
(5) plaintiffs sufficiently stated claim under APA for failure to take discrete action required by ARPA; (6) six year limitation period for ARPA claim, that USFS destroyed three grandfather vines at Nosoni Creek, as archaeological resources, without permit in violation of ARPA, began to run when vines were destroyed;
(7) plaintiffs did not sufficiently state injury-in-fact on NHPA claim with regard to bridge replacement project; and
(8) plaintiffs did not specifically identify any archaeological resources or manner in which ARPA was allegedly violated by referencing “ancient fire pit with rocks that have been used by the Winnemem for hundreds of years.” Motion granted in part and denied in part.

Tarrant Regional Water District v. Herrmann
2010 WL 2817220
No. CIV-07-0045-HE
United States District Court, W.D. Oklahoma, July 16, 2010


*Synopsis:
(from the opinion) Plaintiff's claims based on the MOU with the Apache Tribe raise somewhat different issues. As alleged in the amended complaint, the tribal water rights which plaintiff seeks to acquire involve both surface water and ground water. It alleges surface waters owned by tribal entities like the Apache Tribe are, for various reasons, not governed by the Red River Compact and are hence outside the scope of the court's November 18, 2009 order. For present purposes, it is unnecessary address the legal merits of those allegations, as the court concludes plaintiff's claims based on its understanding with the Apache Tribe are not ripe for judicial resolution.

*Holding: not yet available

United States v. Comstock Resources, Inc.
2010 WL 2813529
No. 9:98-CV-266-TH BENCH
United States District Court, E.D. Texas, July 16, 2010

Synopsis: (from the opinion) The case centers around oil and gas leases issued by the State of Texas while it was a trustee for the Alabama and Coushatta Indian Tribes of Texas (the “Tribe”) to Comstock's predecessors in title, and later federal Mineral Agreements approved by the federal government after it became trustee for the Tribe. Comstock pays royalties under the leases to the Minerals Management Services, an agency of the United States Department of the Interior, which remits such royalties to the Tribe. Relators allege that Comstock knowingly submitted false MMS-2014s reports with the Minerals Management Service of the Department of the Interior.

*Holding: not yet available

Costello v. Seminole Tribe of Florida
2010 WL 5758611
No. 8:10-cv-778-T-23AEP.
United States District Court, District of Florida, July 12, 2010

*Synopsis: (from the opinion) "[O]n behalf of all 'hourly-paid dealers' employed by the defendant in Florida and who worked for the defendant within the applicable statute of limitations," the plaintiff sues the Seminole Tribe of Florida (the "Tribe") to recover minimum wages due under the Fair Labor Standards Act ("FLSA") and Article X, Section 24 of the Florida Constitution. The plaintiff alleges that the proposed class--comprised of "mostly non-tribal member employees"--received a direct wage less than the minimum wage required by federal and state law. Asserting sovereign immunity, the Tribe moves to dismiss for lack of subject matter jurisdiction and for failure to state a claim. In opposition, the plaintiff argues (1) that the judiciary should abandon the "antiquated doctrine" of tribal sovereign immunity and (2) that, even if the Tribe enjoys sovereign immunity from an FLSA claim, the Tribe waived immunity by executing a gaming compact with Florida.

*Holding: (not yet available)

Amador County, California v. Salazar
723 F.Supp.2d 67
No. 05-658(RWR)
United States District Court, District of Columbia, July 12, 2010

*Synopsis: County brought action against the Department of the Interior (DOI), the Secretary of the DOI, and the Assistant Secretary for Indian Affairs, alleging that the approval of an amendment to the gaming compact between an Indian tribe and the state of California was an arbitrary and capricious decision, in violation of the Administrative Procedure Act (APA), because the amendment authorized gaming in violation of the Indian Gaming Regulatory Act (IGRA). The District Court, Richard W. Roberts, J., 592 F.Supp.2d 101, dismissed action for failure to state a claim. County moved for reconsideration.

*Holding: The District Court, Richard W. Roberts, J., held that:
(1) Secretary's decision was committed to agency discretion and was unreviewable under APA, and (2) approval by Secretary of gaming compact could never violate IGRA.
Motion denied.

Miccosukee Tribe of Indians of Florida v. United States
2010 WL 2730095
No. 08-23001-CIV
United States District Court, S.D. Florida, July 12, 2010

*Synopsis: Federally-recognized Indian tribe brought action against federal defendants, claiming that certain water management actions by defendants had caused high water levels on lands to which the Indian tribe held perpetual leasehold, in violation of the tribe's constitutional and statutory rights. Defendants filed motion for summary judgment.

*Holding:The District Court, K. Michael Moore, J., held that rational basis existed for Army Corps of Engineers' (Corps) water management decisions in postponing opening of gate controlling release of water from out of water conservation area, or in denying tribe's request to leave gate open as of certain date.
Motion granted.

Big Lagoon Rancheria v. California
Briefs from Turtle Talk Blog
2010 WL 2735567
No. 09-01471 CW
United States District Court, N.D. California, July 12, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The Tribe alleges a pattern of “surface bargaining” over the course of the past fifteen years-negotiating without any real intent to reach an agreement, despite the written record of negotiations-and argues that the documents it seeks are likely to lead to admissible evidence needed to prove its claims.

*Holding: not yet available

Citizens Savings Bank & Trust Company v. Wellman
2010 WL 2710414
No. 09-72-GF-SEH
United States District Court, D. Montana, July 6, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The Ninth Circuit has concluded, as a general principle, federal courts should recognize and enforce tribal judgments by synthesizing traditional elements of comity with special requirements of Indian law. Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.1997). This case now qualifies for such recognition and enforcement.

*Holding: not yet available

 

United States v. Questar Gas Management Company
2010 WL 2671332
No. 2:08CV167DAK
United States District Court, D. Utah, July 1, 2010

Subjects: not yet available

*Synopsis: (from the opinion) This matter is before the court on Defendant Questar Gas Management Company's (“Questar”) Motion for Temporary Restraining Order and Preliminary Injunction seeking to enforce provisions of a Surface Use and Access Concession Agreement (“the Agreement”) entered into between Questar and The Ute Indian Tribe of the Uintah and Ouray Reservation (“the Tribe”).

*Holding: not yet available

Soto v. Quechan Tribally Designated Housing Entity
Briefs from Turtle Talk Blog

2010 WL 2650127
No. CV-10-533-PHX-DGC
United States District Court, D. Arizona, July 1, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiffs Barbara Soto and Victoria Craun claim that they were discriminated against in the workplace on the basis of perceived sexual orientation. They brought suit against Quechan Tribally Designated Housing Entity (“Quechan Housing”), that entity's executive director, Robert Letendre, and supervisor, Tad Zvodsky, and the United States Department of Housing and Urban Development (“HUD”). Dkt. # 1.

*Holding: not yet available

June

New Jersey Sand Hill Band of Lenape & Cherokee Indians v. Corzine
2010 WL 2674565
No. 09-683
United States District Court, D. New Jersey, June 30, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Stripped to its essence, the plaintiffs' complaint alleges that the defendants and their predecessors have converted and misappropriated their land and other property rights for more than 200 years, in violation of federal constitutional and statutory law. They also claim that the defendants have wrongfully precluded representation on the New Jersey Commission on American Indian Affairs, which is also named as a defendant.

*Holding: not yet available

Choctaw Nation of Oklahoma v. State of Oklahoma
2010 WL 5798663
No. CIV-10-50-W.
United States District Court, Western District of Oklahoma June 29, 2010

*Synopsis: (from the opinion) This matter came before the Court on the Motion for Summary Judgment, as amended, filed pursuant to Rule 56, F.R.Civ.P., by plaintiffs Choctaw Nation of Oklahoma ("Choctaw Nation") and Chickasaw Nation ("Chickasaw Nation") (collectively "Nations") and the response thereto filed by the defendant, State of Oklahoma. On June 22, 2010, the Court granted the Nations' Motion for Summary Judgment, as amended, in all respects and found that the Nations are entitled to judgment as a matter of law certifying and enforcing the Arbitration Award dated August 25, 2009, In the Matter of the Joint Referral to Binding Arbitration by the Choctaw Nation of Oklahoma, the Chickasaw Nation, and the State of Oklahoma of Disputes Under and/or Arising From the Choctaw Nation of Oklahoma and State of Oklahoma Gaming Compact and the Chickasaw Nation and State of Oklahoma Gaming Compact, against the State of Oklahoma.

*Holdings: not yet available

Fox v. Portico Reality Services Office
Briefs from Turtle Talk Blog
739 F.Supp.2d 912

No. 1:10cv399
United States District Court, E.D. Virginia, June 28, 2010

Subjects: not yet available

*Synopsis: African-American employee who was hired to serve as foreman filed Title VII race discrimination complaint against employer, which moved for summary judgment.

*Holding: The District Court, T.S. Ellis III, J., held that:
(1) as matter of first impression, indirect subsidiary of Alaska Native Corporation was not excepted from scope of Title VII's prohibition on unlawful employment practices on ground that subsidiary was not Title VII “employer” under Alaska Native Claims Settlement Act (ANCSA), and, on employer's motion for reconsideration,
(2) indirect subsidiary was not excepted from scope of Title VII's prohibition on unlawful employment practices on ground that subsidiary was “affiliate” of Native Corporation.
Motions denied.

Copeland v. Mississippi Band of Choctaw Indians
2010 WL 2667359
No. 4:10CV20TSL-LRA
United States District Court, S.D. Mississippi, Eastern Division , June 25, 2010

Subjects: not yet available

*Synopsis: (from the opinion) This cause is before the court on the motion of defendant Mississippi Band of Choctaw Indians d/b/a Silverstar Resort, to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative, to dismiss on the basis that of Tribal sovereign immunity, or in the further alternative, to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

*Holding: not yet available

Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization
2010 WL 2595232
No. C08-5562BHS
United States District Court,W. D. Washington, June 23, 2010

Subjects: not yet available

*Synopsis: (from the opinion) On September 18, 2008, Plaintiffs Confederated Tribes of the Chehalis Reservation (“Tribe”) and CTGW, LLC (“CTGW”) filed a complaint against Defendants Thurston County Board of Equalization; equalization board members John Morrison, Bruce Reeves and Joe Simmonds; Thurston County Assessor Patricia Costell; and Thurston County. Dkt. 1. Plaintiffs alleged that Defendants are violating the U.S. Constitution as well as federal common law by imposing a personalty tax on CTGW's facility, the Great Wolf Lodge (“Lodge”).

*Holding: not yet available

Choctaw Nation of Oklahoma v. State of Oklahoma
724 F.Supp.2d 1182
No. Civ-10-50-W
United States District Court, Western District of Oklahoma, June 22, 2010

*Synopsis: Choctaw Nation of Oklahoma and Chickasaw Nation brought action against State of Oklahoma, seeking certification and enforcement of arbitration award providing that tribal courts provided proper forum for resolution of Indian country tort lawsuits against Nations arising from gaming compacts, and further seeking injunctive relief. Nations moved for summary judgment.

*Holding: The District Court, West, J., held that:
(1) dispute resolution clauses in gaming compacts were valid, and
(2) Nations were entitled to permanent injunctive relief.
Motion granted.

Sturdevant v. Menominee Indian Tribe of Wisconsin
2010 WL 2571966
No. 09-C-0884
United States District Court, E. D. Wisconsin , June 22, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The plaintiff is a federal prisoner who asserts that his civil rights were violated during his arrest by the tribal police force on the Menominee Indian Reservation on April 2, 2008. The plaintiff alleges that he was run down by a tribal police car, tased two times and transported to the Shawano County Emergency Center. Custody of the plaintiff was then turned over to the City of Shawano Police Department for an arrest and commit order. The plaintiff's claims do not relate to the matter of his arrest, though. Rather, the plaintiff contends that he should have been taken before the Menominee Tribal Courts for charges and that he should have been given an extradition hearing because the arrest took place on the Menominee Indian Reservation and he was under the jurisdiction of the Menominee Indian Tribe.

*Holding: not yet available

Oklevuha Native American Church of Hawaii, Inc. v. Holder
719 F.Supp.2d 1217
No. 09-00336 SOM/BMK
United States District Court, D. Hawai'i, June 22, 2010

Subjects: not yet available

*Synopsis: Native American Oklevueha church and its spiritual leader brought action against government officials, alleging that their right to use cannabis in their religion was being infringed on by federal drug laws, and asserting claims under state law for theft and conversion. Officials moved to dismiss first amended complaint.

*Holding: The District Court, Susan Oki Mollway, Chief Judge, held that: (1) plaintiffs' general allegations concerning cannabis use, possession, and distribution did not describe concrete plan to violate federal drug law; (2) allegation that package containing cannabis was seized while on its way to leader did not demonstrate specific threat of enforcement directed at church or leader; (3) allegation that package containing cannabis was seized was insufficient to demonstrate history of past prosecution or enforcement of federal drug laws; (4) it would decline to exercise jurisdiction under prudential component of ripeness doctrine; (5) officials were entitled to immunity from theft and conversion claims; but (6) plaintiffs had standing to bring claim seeking return of seized cannabis. So ordered.

Hernandez v. United States
93 Fed.Cl. 193
No. 10-135C
United States Court of Federal Claims, June 22, 2010

*Synopsis: (from Westlaw) State prisoner appearing pro se sued United States, claiming that various members of Nebraska justice system conspired to discriminate in convicting him based on his membership in Rosebud Sioux Indian tribe and to obstruct justice in violation of Civil Rights Act, Constitution, and “Bad Men” clause of Fort Laramie Treaty.

*Holding: The Court of Federal Claims, Miller, J., held that:
(1) claims were precluded against all defendants except district court;
(2) jurisdiction was lacking for claims sounding in tort;
(3) jurisdiction was lacking for claims under Civil Rights Act;
(4) jurisdiction was lacking for constitutional claims; and
(5) jurisdiction was lacking for breach of treaty claims.
Motion granted.

Rosebud Sioux Tribe v. Duwyenie
2010 WL 2534193
No. CV 09-1660-PHX-MHM
United States District Court, D. Arizona, June 18, 2010

Subjects: not yet available

*Synopsis: (from the opinion) In this dispute, the Rosebud Sioux Tribe (“the Tribe”) seeks a declaration that the Gila County Superior Court infringed upon the sovereignty of the Tribe when it ruled in a child custody action between William Moran (“Moran”) and Antanelle Duwyenie (“Duwyenie”).

*Holding: not yet available

Cole v. Federal Bureau of Investigations
719 F.Supp.2d 1229
No. CV-09-21-BLG-RFC-CSO
United States District Court, D. Montana, June 17, 2010

Subjects: not yet available

*Synopsis: Members of two separate Native American families brought action against Federal Bureau of Investigations (FBI), its field office, the United States Attorney's Office for South Dakota and related defendants, alleging discrimination against Native Americans in criminal investigations and prosecutions on or near Crow Indian Reservation. Defendants moved to dismiss for failure to state claims upon which relief could be granted.

*Holding: The District Court, Richard F. Cebull, J., adopted findings and recommendations of Carolyn S. Ostby, United States Magistrate Judge, which held that:
(1) members of two separate families did not have standing to bring individual claims against defendants; but
(2) personal representatives of estates of deceased Native Americans had standing to bring individual claims;
(3) plaintiffs failed to state Bivens equal protection claim against FBI and its Supervisory Agent; but (4) plaintiffs stated Bivens equal protection claim against FBI Special Agent; and
(5) plaintiffs failed to state claims alleging violations of Native American treaty and trust obligations. Motion granted in part and denied in part.

Big Lagoon Rancheria v. State of California
2010 WL 2350483
No. 09-01471 CW
United States District Court, N.D. California, June 8, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Under the Indian Gaming Regulatory Act (IGRA), an Indian tribe may conduct class III gaming only if it has entered into a compact with its home state. Rincon, 602 F.3d at 1027. IGRA requires states to participate in negotiations for such compacts in good faith. Id. In Rincon, the State argued that it had negotiated in good faith because “it genuinely believed its revenue sharing demands were authorized by [ In re Indian Gaming Related Cases, 331 F.3d 1094 (9th Cir.2003) ], approved by the Department of the Interior, and fair because other tribes had accepted them.”

*Holding: The Court of Federal Claims, Hewitt, Chief Judge, held that:
(1) tribes' claim that United States improperly converted leases was untimely;
(2) Appropriations Act did not extend statutory period; and
(3) accrual of tribes' claim was not extended by continuing claim doctrine.
United States' motion granted.

May

The Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States
93 Fed.Cl. 449
No. 79-4582 L, 79-4592 L
United States Court of Federal Claims , May 27, 2010

Subjects: not yet available

*Synopsis: Indian tribes brought actions against United States for breach of fiduciary duty in management and payment of royalties on oil and gas production on Indian lands. After actions were consolidated, tribe moved for summary judgment, and United States moved for judgment on pleadings.

*Holding: The Court of Federal Claims, Hewitt, Chief Judge, held that:
(1) tribes' claim that United States improperly converted leases was untimely;
(2) Appropriations Act did not extend statutory period; and
 (3) accrual of tribes' claim was not extended by continuing claim doctrine.
 United States' motion granted.

Elem Indian Colony of Pomo Indians v. Pacific Development Partners
Briefs from Turtle Talk Blog
2010 WL 2035331
No. C 09-1044 CRB
United States District Court, N.D. California, May 19, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Claimants bring this action to vacate or modify an arbitral award made in favor of Respondent Indian Tribe. The arbitrator found that a purported contract for casino development was void for two independent reasons: (1) lack of regulatory approval, and (2) lack of approval under the Tribe's constitution. The arbitrator's holding is affirmed based on the lack of regulatory authority, and so the issue regarding the Tribe's Constitution need not be reached.

*Holding: not yet available

Bear v. Fleming
714 F.Supp.2d 972
No. 10-5030-JLV
United States District Court, D. South Dakota , May 18, 2010

Subjects: not yet available

*Synopsis: Student, a member of an Indian tribe, sued members of a school board and the superintendent of the school district, claiming that they violated his right to free speech under the First Amendment by requiring him to wear a cap and gown over traditional tribe clothing at graduation proceedings. Student moved for preliminary and permanent injunction.

*Holding:The District Court, Jeffrey L. Viken, J., held that:
(1) student's wearing of his traditional clothing was expressive conduct protected by the First Amendment; but
(2) the cap-and-gown requirement did not violate his First Amendment rights.
Motion denied and complaint dismissed.

Stopp v. Mutual of Omaha Life Insurance Company
2010 WL 1994899
No. CIV-09-221-FHS
United States District Court, E.D. Oklahoma, May 18, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The issue before the court is whether the tribal plan in question is subject to the terms of ERISA or whether it is exempt under the governmental plan exception. If the court finds the Plan in question is exempt pursuant to the governmental plan exception, plaintiff's state law claims would not be preempted. Prior to the year 2006 employee welfare benefit plans offered by Indian tribal governments were not specifically mentioned in the ERISA statute. Although ERISA was silent as to whether such plans were exempt as governmental plans, it was generally held that ERISA as a statute of general applicability did apply to such plans.

*Holding: not yet available

Alltel Communications, LLC v.Oglala Sioux Tribe
2010 WL 1999315
No. CIV.10-5011-JLV
United States District Court, D. South Dakota, May 18, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Defendant asserts the following grounds for its motion to dismiss pursuant to Rule 12(b)(1) and (6): 1. The Court lacks jurisdiction to hear Plaintiff's complaint because the Tribe enjoys federal common law sovereign immunity from suit and has not waived its sovereign immunity or otherwise consented to the adjudication of any of Plaintiff's claims in this civil action; and 2. The complaint fails to state a claim upon which relief can be granted because Plaintiff did not receive a valid assignment of Western Wireless' rights under the service agreement upon which it relies in this action and therefore cannot claim any rights under the agreement until it obtains the requisite tribal consent to make the agreement valid and binding between the parties.

*Holding: not yet available

Chipps v. Oglala Sioux Tribal Court
2010 WL 1999458
No. CIV. 10-5028-JLV
United States District Court, D. South Dakota, May 18, 2010

Subjects: not yet available

*Synopsis: (from the opinion) On April 29, 2010, petitioner Charles Chipps filed an application for writ of habeas corpus pursuant to 25 U.S.C. § 1303. Mr. Chipps alleged respondents violated his statutory rights under the Indian Civil Rights Act, 25 U.S.C. §§ 1301- 1303. Id. Mr. Chipps seeks release from the custody of the Oglala Sioux Tribe. After careful consideration, the court holds in abeyance Mr. Chipps' application pending exhaustion of tribal remedies.

*Holding: not yet available

Native American Council of Tribes v. Weber
2010 WL 1999352
No. Civ. 09-4182-KES
United States District Court, D. South Dakota, May 18, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings Plenty, Shawn Garrnett, Nephi Antelope, Brian Dubray, Clayton Creek, and David Deloria, brought this action to challenge the decision of defendants to remove tobacco from American Indian ceremonies in the South Dakota State Penitentiary.

*Holding: not yet available

O'Bryan v. United States
93 Fed.Cl. 57
No. 08-664C
United States Court of Federal Claims, May 14, 2010

Subjects: not yet available

*Synopsis: Indian tribal member sued United States to recover damages for injuries allegedly caused by Department of Interior's (DOI) Bureau of Indian Affairs (BIA) in administration of tribal member's grazing permits on Indian reservation. Government moved to dismiss for lack of jurisdiction and for failure to state claim.

*Holding: The Court of Federal Claims, Wiese, J., held that:
(1) contract-based claims were precluded as permits were contracts with landowners;
(2) tort claims were precluded for lack of jurisdiction;
(3) BIA's demand for payment of grazing fees was unlawful exaction; and
(4) transfer was not authorized. Motion granted in part and denied in part.

April

Osage Tribe of Indians of Oklahoma v. United States
93 Fed.Cl. 1
No. 99-550 L, 00-169 L
United States Court of Federal Claims, April 30, 2010

Subjects: Indian tribe sued United States, seeking damages for breach of government's fiduciary duties as trustee of tribe's mineral estate by failure of Bureau of Indian Affairs (BIA) to collect, invest, and deposit revenues generated from tribe's oil and gas leases. Tribe moved for summary judgment.

*Holding: The Court of Federal Claims, Hewitt, Chief Judge, held that:
(1) damages calculation was appropriate based on law of the case;
(2) interest damages methodology was law of the case; and
(3) tribe had standing to seek interest damages. Motion granted in part and denied in part.

Large v. Fremont County, Wyoming
709 F.Supp.2d 1176
No. 05-CV-0270
United States District Court, Wyoming, April 29, 2010

Subjects: not yet available

*Synopsis: Enrolled members of Eastern Shoshone and Northern Arapaho Tribes brought action against county, members of county commission, and county clerk, in their official capacities, alleging, among other things, that county's at-large method for county commission elections violated Voting Rights Act.

*Holding: Following bench trial, the District Court, Alan B. Johnson, J., held that:
(1) Native American population in county was sufficiently compact and numerous to allow for drawing of single-member Native American majority voting district;
(2) Native Americans in county were politically cohesive;
(3) fact that tribes were comprised of different language groups, had their own tribal council in addition to joint council, and tended to support different candidates in primary elections did not undermine finding of political cohesion;
(4) white majority voted sufficiently as bloc to enable it to usually defat minority-preferred candidate; (5) voting in county was highly polarized along racial lines;
(6) political campaigns in county were characterized by overt or subtile racial appeals;
(7) fact that only one Native American had ever been elected to county commission was significant; and
(8) at-large system of electing county commissioners diluted Native American voting strength in violation of Voting Rights Act. So ordered.

Timbisha Shoshone Tribe v. Kennedy
714 F.Supp.2d 1064
No. CV F 09-1248 LJO SMS
United States District Court, E.D. California, April 27, 2010

Subjects: not yet available

*Synopsis: Indian tribal council faction filed state court action against members of competing faction, seeking declaratory and injunctive relief on basis of various tribal and state law causes of action. Following removal, plaintiff faction moved to remand.

*Holding: The District Court, Lawrence J. O'Neill, J., held that:
(1) references in complaint to unspecified federal laws were insufficient to establish federal subject matter jurisdiction, and
(2) references in complaint to decisions of the Bureau of Indian Affairs (BIA) were insufficient to establish that plaintiff faction's claims arose under federal law.
Dismissed and remanded.

Begay v. Public Service Company of New Mexico
710 F.Supp.2d 1161
No. CIV 09-0137 JB/RLP.
United States District Court, D. New Mexico, April 15, 2010

Subjects: not yet available

*Synopsis: Members of Indian tribe who, as allottees, had ownership interest in land within tribe's boundaries, along with association of region's allottees and landowners, brought putative class action against owners of rights-of-way on allotment lands in which one or more allottees held interest and Secretary of the Interior, seeking declaratory and injunctive relief against United States for alleged breaches of trust and asserting claims against right-of-way owners for imposition of constructive trusts, trespass, wrongful invasion and occupation of allotments, and cancellation of rights-of-way and removal of right-of-way owners' pipelines and transmission lines from allottees' lands. Defendants filed motions to dismiss and to strike.

*Holding: The District Court, James O. Browning, J., held that:
(1) allottees' claims against United States for alleged breach of trust accrued
when allottees knew that government was granting rights-of-way for compensation;
(2) allottees' claims were not ripe for review;
(3) allottees did not establish futility excusing their failure to exhaust their
claims through administrative appeals process;
(4) allottees failed to state claim for imposition of constructive trust;
(5) equitable remedy of constructive trust could not be imposed upon
rights-of-way; and
(6) allottees did not have claim for trespass or ejectment against rights-of-way
owners.
Complaint dismissed without prejudice.

Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization
2010 WL 1406524
No. C08-5562BHS
United States District Court, W.D. Washington, April 2, 2010

Subjects: not yet available

*Synopsis: (from the opinion) On September 18, 2008, Plaintiffs Confederated Tribes of the Chehalis Reservation and CTGW, LLC filed a complaint against Defendants Thurston County Board of Equalization; equalization board members John Morrison, Bruce Reeves and Joe Simmonds;Thurston County Assessor Patricia Costell; and Thurston County. Plaintiffs alleged that Defendants are violating the U.S. Constitution as well as federal common law by imposing a personalty tax on CTGW's facility, the Great Wolf Lodge.

*Holding: not yet available

New York v. Salazar
701 F.Supp.2d 224
No. 6:08-CV-0644(LEK/DEP)
United States District Court, N.D. New York, April 1, 2010

Subjects: not yet available

*Synopsis: State of New York and counties brought action challenging determination by the United States Secretary of the Interior to take in excess of 13,000 acres of land into trust for benefit of the Oneida Indian Nation of New York, thereby removing disputed land from taxing and regulatory jurisdiction of both State and counties. Indian Nation intervened. Plaintiffs moved to compel production of additional documents being withheld under Freedom of Information Act (FOIA), and to compel discovery.

*Holding:The District Court, David E. Peebles, United States Magistrate Judge, held that:
(1) magistrate judge lacked jurisdiction to determine motion by state and counties challenging documents withheld from FOIA request;
(2) deliberative process privilege imposed no restriction on state's and counties' access to Department of Interior's pre-decisional materials;
(3) evidence submitted by state and counties represented sufficient preliminary showing of bad faith to justify very limited discovery in form of deposition of Associate Deputy Secretary of Interior; and
(4) district court judge, rather than magistrate judge, was required to determine whether record before Department of Interior included sufficient information for it to make rational determination as to tribe's tribal status at time of enactment of Indian Rights Act.
Motions granted in part and denied in part.

March

Citizens Against Casino Gambling in Erie County v. Hogen
704 F.Supp.2d 269
No. 09-CV-0291S
United States District Court, W.D. New York, March 30, 2010

Subjects: not yet available

*Synopsis: Citizens' groups brought action against Department of Interior and federal officials, challenging legality of gambling casino operated by Seneca Nation of Indians. Tribe moved to intervene, and defendants moved for partial dismissal.

*Holding: The District Court, William M. Skretny, J., held that:
(1) claim challenging constitutionality of Seneca Nation Settlement Act (SNSA) was time-barred;
(2) claim challenging validity of Tribal-State Compact was not reviewable under Administrative Procedure Act (APA);
(3) claim alleging that land parcel at issue was neither “Indian country” nor “Indian land” was not precluded by collateral estoppel; and
(4) balance of factors did not warrant permissive intervention of tribe.
Motions granted in part and denied in part.

Swanda Brothers, Inc. v. Chasco Contructors, Ltd., L.L.P.
2010 WL 1372523
No. CIV-08-199-D
United States District Court, W.D. Oklahoma, March 30, 2010

Subjects: not yet available

*Synopsis: (from the opinion) KCOA contends that the Court lacks subject matter jurisdiction over the claims asserted against it because it is an instrumentality of the Kiowa Indian Tribe of Oklahoma, a federally recognized Indian tribe; it argues that, as a result of its status, the Court lacks jurisdiction under the doctrine of tribal immunity.

*Holding: not yet available

Ouart v. Fleming
2010 WL 1257827
No. CIV-08-1040-D
United States District Court, W.D. Oklahoma, March 26, 2010

Subjects: not yet available

*Synopsis: (from the opinion) In their motion, Irwin and Fleming argue that the undisputed evidence establishes that, at the time of the January 6, 2007 incident, they were acting solely in their capacities as police officers of the Tribe. They argue that, as a result, tribal immunity precludes Plaintiff's claims against them and deprives this Court of subject matter jurisdiction. Upon receipt of the motion, Plaintiff sought and was granted Court authorization to conduct discovery on the merits of the motion. The parties took depositions and engaged in other discovery; Defendants and Plaintiff have submitted evidence in support of their respective arguments.

*Holding: not yet available

Muscogee Nation v. Henry
867 F.Supp.2d 1197
No. 10-019-JHP
United States District Court, E.D. Oklahoma, March 18, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action against Oklahoma Tax Commission and Oklahoma's Attorney General, challenging Oklahoma tax statutes which imposed an excise tax on all non-tribal member consumers who purchased cigarettes and tobacco products from retailers located on the tribe's Indian country, and which provided for tax-free sales to members of the tribe.

*Holding: State defendants moved to dismiss. The District Court, James H. Payne, J., held that Oklahoma's cigarette tax collection and remittance obligation was validly imposed upon Indian tribe.
Motion granted.

Geroux v. Assurant, Inc.
2010 WL 1032648
No. 2:08-cv-00184
United States District Court, W.D. Michigan, March 17, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff Richard Geroux initially brought a complaint for unpaid benefits pursuant to long-term disability coverage provided by his employer, the Keweenaw Bay Indian Community (“KBIC”), in the Tribal Court of the Keweenaw Bay Indian Community, L'Anse Reservation, Michigan. [Court Doc. No. 1, Complaint]. Plaintiff sought compensation for alleged underpayment of benefits under the policy of “approximately $230.39 per month since December 21, 1982.” Plaintiff's complaint does not mention any claims pursuant to the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001, et seq. (“ERISA”). Defendants Assurant, Inc. (“Assurant”) and Union Security Insurance Company (“Union Security”) (collectively “Defendants”) removed Plaintiff's case to this court on the basis of federal question jurisdiction, claiming that Plaintiff's claims were covered by ERISA.

*Holding: not yet available

Related Law Review Article: Life, health and disability: which courts have jurisdiction? ERISA claims and tribal plans. (For the Defense, July, 2011.)

Crow Creek Sioux Tribe v. Donovan
2010 WL 1005170
No. 09-3021 RAL
United States District Court, D. South Dakota, March 16, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The Tribe and Tribal Housing Authority brought this Complaint alleging two counts of “arbitrary agency action,” and “failure to observe procedure required by law.” Id. at ¶ 41-56. Reading the Complaint liberally to favor the Plaintiffs in the context of a motion to dismiss, the Complaint pleads claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702-704, and for a declaratory judgment under 28 U.S.C. § 2201-02. The gravamen of Plaintiffs' Complaint is that HUD acted improperly in failing to consult with the Tribe under the tribal policy. Id. The Defendants' Second Motion to Dismiss asserts that the Court lacks jurisdiction because neither the Declaratory Judgment Act nor the APA, under these circumstances, waives sovereign immunity, and, secondarily, Plaintiffs' Complaint fails to state a claim upon which relief may be granted.

*Holding: not yet available

Timbisha Shoshone Tribe v. Salazar
697 F.Supp.2d 1181
No. CV F 09-2230 LJO SMS
United States District Court, E.D. California, March 16, 2010

Subjects: not yet available

*Synopsis: Members of tribal government faction brought action against Department of the Interior, Secretary of the Interior, Assistant Secretary of the Bureau of Indian Affairs (BIA), and regional director of the BIA for declaratory and injunctive relief, seeking an order requiring the BIA to recognize a tribal election, compelling the BIA to recognize the validity of the member's actions, enjoining the BIA from reviewing or making decisions regarding the alleged disenrollment of members from the tribe, declaring all pending appeals and proceedings between the tribe and the BIA moot, and declaring that the BIA's failure to decide administrative appeals in a timely manner constituted agency action unreasonably delayed or unlawfully withheld. Members moved for a preliminary injunction.

*Holding: The District Court, Lawrence J. O'Neill, J., held that: 1 members were not likely to succeed on merits of their claims; 2 members would not likely suffer irreparable harm in the absence of injunction; 3 BIA would be harmed by issuance of injunction; and 4 public interest would be promoted by denying motion.

Motion denied.

Council of Athabascan Tribal Governments v. United States
693 F.Supp.2d 116
Briefs & Pleadings from Tutle Talk Blog
No. 07-1270 (RWR)
United States District Court, District of Columbia, March 16, 2010

Subjects: not yet available

*Synopsis: Tribal government council brought action against Department of Health and Human Services (DHHS) and Indian Health Service (IHS), alleging breach of contract for reimbursement of support costs for public health facilities. Defendants moved for dismissal or for summary judgment.

*Holding: The District Court, Roberts, J., held that:
(1) council alleged that agencies violated contractual requirement to fund indirect contract support costs;
(2) council alleged that agencies miscalculated indirect reimbursement rate; and
(3) agencies lacked laches defense to claim.Motion denied.

Ute Indian Tribe of the Uintah and Ouray Reservation v. Ute Distribution Corporation
2010 WL 956905
No. 2:06-cv-557 CW
United States District Court, D. Utah, March 12, 2010

Subjects: not yet available

*Synopsis: (from the opinion) This matter is now before the court on cross motions for summary judgment. The plaintiff, the Ute Indian Tribe of the Uintah and Ouray Reservation (the “Ute Tribe”), seeks to have the court declare invalid amendments that were made to the Articles of Incorporation of the Ute Distribution Corporation (the “UDC”). The UDC is a non-profit, Utah corporation that was organized to manage and distribute assets that are held by the Ute Tribe and the former members of the Ute Tribe now referred to as “mixed-bloods.” The original shareholders of the UDC were all mixed-bloods, although some of the shares have since been transferred to others, including the Ute Tribe. Approximately 70% of the UDC shareholders voted in favor of the amendments. The Ute Tribe, which now holds approximately 20% of the UDC shares, opposed the amendments. *1 The main amendment in dispute precludes Ute tribal members and Ute tribe employees and agents from being on the UDC Board of Directors. The Ute Tribe contends the amendment disenfranchised them. It also asserts that the amendment created two classes of stockholders, and that it should have been permitted to vote its stock as a separate class.

*Holding: not yet available

Upstate Citizens for Equality, Inc. v. Salazar
2010 WL 827090
No. 5:08-CV-0633 (LEK/DEP)
United States District Court, N.D. New York, March 4, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The instant action, composed of a variety of challenges to government conduct as well as the operation of gambling facilities in Verona, New York, arises primarily from a May 20, 2008 decision by the Department of Interior (“DOI”) to accept into trust approximately 13,000 acres of land for the Oneida Indian Nation of New York (“OIN”). Following that final decision, Plaintiffs brought a number of legal challenges on June 16, 2008. Defendants moved for partial dismissal on October 24, 2008. Subsequently, on January 29, 2009, Plaintiffs filed a Supplemental Claim raising a separate challenge to the DOI's acceptance of custody of 18 acres of excess federal land in trust for the OIN pursuant to a mandatory transfer from the General Services Administration (“GSA”). Defendants moved to dismiss this claim on April 13, 2009.

*Holding: not yet available

Berry Creek Rancheria of Maidu Indians of California v. Buckmeier
2010 WL 761218
No. 07-CV-4023-DEO
United States District Court, D. Iowa, March 3, 2010

Subjects: not yet available

*Synopsis: (from the opinion) In her Motion to Dismiss, Buckmeier argues the Tribe has failed to state a claim upon which relief can be granted because: (1) the Tribe is not a “person” entitled to sue under 42 U.S.C. § 1983 since it is seeking to vindicate a sovereign right; (2) the Tribe's Amended Complaint (Docket No. 40) fails to plead sufficient facts to state a § 1983 claim; and (3) Buckmeier is not an actor under color of state law for § 1983 purposes. The Tribe, on the other hand, maintains that it is seeking to vindicate a “quasi-sovereign right,” and as such should be considered a “person” entitled to sue under § 1983. The Tribe contends its Amended Complaint, which alleges Buckmeier deprived the Tribe of federally-protected rights in her capacity as a “custodian” and “agency” under Iowa law, is adequately pled. Finally, the Tribe argues that, given her status under state law as a “custodian” and “agency,” Buckmeier may fairly be said to be a state actor.

*Holding: not yet available

Alltel Communications, LLC v. Oglala Sioux Tribe
2010 WL 758785
No. 10-5011-JLV
United States District Court, D. South Dakota, March 1, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff filed a complaint (Docket 1) alleging that defendant, Oglala Sioux Tribe, is in breach of an arbitration provision contained in the Tate Woglaka Service Agreement (the “Agreement”) between the Oglala Sioux Tribe and Western Wireless Corporation (Docket 1-2). The complaint seeks injunctive relief to prohibit the defendant from conducting further proceedings in an action filed in Oglala Sioux Tribal Court (“tribal court”) captioned “ Oglala Sioux Tribal Court, Petitioners, v. Alltel Communications, LLC, and Verizon Wireless, LLC, Respondents ” Civ. # 09-0673.

*Holding: not yet available

February

Senator v. United States
Briefs & Pleadings
No Westlaw Citation Available
No. 2:05-cv-03105-RHW
United States District Court, E. D.Washington, February 26, 2010

Subjects: not yet available

*Synopsis: Union representing employees of Indian gaming casino, resort, and hotel filed unfair labor practice charge alleging that casino refused to reinstate employee in retaliation for his participation in previous case before National Labor Relations Board (NLRB), and for engaging in union activities. As part of its investigation, NLRB filed application for order requiring casino's obedience to subpoena duces tecum.

*Holding: The District Court, John R. Tunheim, J., adopted report and recommendation of Jeanne J. Graham, United States Magistrate Judge, which held that:
(1) subpoena duces tecum was reasonable in scope and was brought for a legitimate purpose;
(2) NLRB issued subpoena pursuant to lawful authority; and
(3) sovereign immunity did not bar NLRB's issuance of subpoena. Application granted.

N.L.R.B. v. Fortune Bay Resort Casino
688 F.Supp.2d 858
No. 08-0065 (JRT/JJG)
United States District Court, D. Minnesota, February 25, 2010

Subjects: not yet available

*Synopsis: Union representing employees of Indian gaming casino, resort, and hotel filed unfair labor practice charge alleging that casino refused to reinstate employee in retaliation for his participation in previous case before National Labor Relations Board (NLRB), and for engaging in union activities. As part of its investigation, NLRB filed application for order requiring casino's obedience to subpoena duces tecum.

*Holding: The District Court, John R. Tunheim, J., adopted report and recommendation of Jeanne J. Graham, United States Magistrate Judge, which held that:
(1) subpoena duces tecum was reasonable in scope and was brought for a legitimate purpose;
(2) NLRB issued subpoena pursuant to lawful authority; and
(3) sovereign immunity did not bar NLRB's issuance of subpoena.
Application granted.

Garvais v. United States
2010 WL 610282
No.CV-03-0290-JLQ
United States District Court, E.D. Michigan, February 17, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The ultimate Finding of Fact in this matter is that the BIA maliciously caused the institution and continuation of unfounded criminal proceedings against Duane Garvais in Spokane Tribal Court in retaliation for the proper performance of his duties in investigating thefts by BIA patrol officers with close connections to the Tribe. As stated, those charges were ultimately dismissed pursuant to the finding of this court that the Spokane Tribal Court did not have jurisdiction over Mr. Garvais.

*Holding: not yet available

United States v. Iowa Tribe of Oklahoma
2010 WL 597125
No. CIV-09-730-M
United States District Court, W.D. Oklahoma, February 16, 2010

Subjects: not yet available

*Synopsis: (from the opinion) ITO is a federally recognized Indian tribe. Morgan has filed suit for alleged breach of contract against ITO d/b/a BKJ Solutions. ITO has now moved to dismiss all claims asserted against it on the basis that the Court lacks both subject matter and in personam jurisdiction over ITO and, that on the face of the pleadings, ITO is not the party to the contract upon which Morgan is suing and, therefore, Morgan has failed to state a claim upon which relief can be granted. Specifically, ITO asserts, in part, that ITO and BKJ Solutions, Inc. are separate entities and that Morgan's claims against ITO are barred by the doctrine of tribal sovereign immunity and must be dismissed.

*Holding: not yet available

Oenga v. United States
91 Fed.Cl. 629
No. 06-491L
United States Court of Federal Claims, February 12, 2010

Subjects: not yet available

*Synopsis: Owners of Alaska Native allotment sued United States, alleging that government breached its trust obligations in connection with lease allowing oil company possession and use of allotment for oil-production-related activities. Company and its working interest owners intervened as defendants. The District Court, Firestone, J., 83 Fed.Cl. 594, granted partial summary judgment for allotment owners, ruling that government was liable for breach of trust with regard to company's use of allotment to facilitate oil and gas production from participating area outside scope of lease. Parties cross-moved for partial summary judgment with respect to measure and period of damages for such breach.

*Holding:The District Court held that:
(1) lease did not create affirmative duty on part of government to monitor and
ensure compliance with lease;
(2) regulations in effect at the time lease violations began did not impose on
government duty to monitor or manage lease;
(3) new regulations imposed duty on government to monitor and ensure compliance
with lease;
(4) regulations imposed duty on government to enforce lease and to pursue
appropriate remedies against company on behalf of owners;
(5) government breached its trust duties to ensure that company was in
compliance with lease and take appropriate action to remedy lease violations;
(6) government breached its duty to enforce lease by not taking action once it
was given notice by owners that company was in breach; and
(7) present fair annual rental (PFAR) for company's use of allotment beyond
scope of lease was proper measure of damages for government's breach of its trust
obligations.
Motions granted in part and denied in part.

 

Saginaw Chippewa Indian Tribe of Michigan v. Granholm
690 F.Supp.2d 622
No. 05-10296-BC
United States District Court, E.D. Michigan, February 4, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action under Administrative Procedures Act (APA) seeking judicial review of decision of Department of Interior, Bureau of Indian Affairs (BIA), denying tribe member's application to gift portion of his interest in restricted land to tribe. Tribe filed claim alleging breach of trust. Parties consented to exercise of jurisdiction by magistrate judge. Tribe moved for equitable relief to remedy wrongful administrative actions. BIA moved to dismiss breach of trust claim.

*Holding: The District Court, Thomas L. Ludington, J., held that:
(1) witness was qualified to provide expert opinions concerning historical interpretation of treaties;
(2) experts' opinions concerning historical interpretation of treaties were sufficiently reliable;
(3) expert's testimony could not be excluded on ground that it was predetermined;(4) methodology used by tribe's expert was sufficiently reliable.
Motions denied.

Lil Brown Smoke Shack v. Wasden
2010 WL 427388
No. CV 09-044-CWD
United States District Court, D. Idaho, February 1, 2010

Subjects: not yet available

*Synopsis: (from the opinion) On February 5, 2009, Plaintiff Lil' Brown Smoke Shack filed a Complaint for Declaratory, Preliminary and Permanent Injunctive Relief Against Defendants From Their Threatened Enforcement of I.C. § 39-5701, et seq. The Complaint requests the Court to declare that enforcement of the Minors' Access Act, I.C. § 39-5701, et seq. (“MAA”), would violate federal law because Plaintiff is a tribally owned and licensed business located on tribal land outside of the State of Idaho. Specifically, Plaintiff argues the MAA violates the Commerce Clause, the Indian Commerce Clause, the Supremacy Clause, tribal sovereignty, and Plaintiff's treaty rights under the 1855 treaty between the Yakama Nation and the United States.

*Holding: not yet available

Jicarilla Apache Nation v. United States
Briefs from Turtle Talk Blog
91 Fed.Cl. 489

No. 02-25L
United States District Court, United States Court of Federal Claims, February 1, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action against United States seeking accounting and recovery of monetary loss and damages resulting from government's alleged mismanagement of trust funds. The United States moved to stay the production of certain documents to allow it potentially to pursue further appellate review of its claim that those documents were protected by privilege.

*Holding: The Court of Federal Claims, Allegra, J., held that:
(1) United States was unlikely to prevail on appeal;
(2) United States failed to show irreparable harm would occur if it complied
with production order;
(3) harm other might experience if motion were granted weighed against granting
stay; and
(4) public interested weighed against granting stay.
Motion denied.

January

Slockish v. United States Federal Highway Administration
682 F.Supp.2d 1178
No. 08-CV-1169-ST
United States District Court, Oregon, January 27, 2010

Subjects: not yet available

*Synopsis: Individuals and organizations which sought to preserve, protect, and rehabilitate Native American sacred and cultural sites brought action against Federal Highway Administration, Bureau of Land Management (BLM), and others, alleging violations of the National Historic Preservation Act (NHPA), National Environmental Policy Act (NEPA), and the Department of Transportation Act, arising out of a highway widening project. Defendants moved to dismiss for lack of subject matter jurisdiction of for failure to state a claim.

*Holding: The District Court, Brown, J., adopting report and recommendation of Stewart, United States Magistrate Judge, held that:
(1) challenge to project was not rendered moot by completion of project, and
(2) allegations of individual member of historical preservation society who was of Native American ancestry were sufficient to establish individual standing to bring claims.
Motion granted in part.

Sault Ste. Marie Tribe of Chippewa Indians V. Hamilton
2010 WL 299483
No. 2:09-CV-95
United States District Court, W.D. Michigan, January 20, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff, the Sault Ste. Marie Tribe of Chippewa Indians, has sued Defendants, James Hamilton, Carolyn Hamilton, Bay Mountain Traders, LLC, and BMT Enterprises d/b/a Black Mountain Traders, Inc.; Barbara Dencklau and Roger Dencklau; and Tina Gardner, alleging that Defendants violated the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq. , and committed fraud. More particularly, the Tribe alleges that Defendants engaged in a scheme whereby Gardner, the Tribe's Gift Shop Director, purchased merchandise from Defendants far in excess of what the Tribe's casino gift shops had the ability to sell and in violation of the Tribe's policies and procedures. The Tribe further alleges that the Dencklaus and the Hamilton Defendants paid Gardner kickbacks on all merchandise purchased by the Tribe and provided Gardner all expense paid vacations to Minnesota and elsewhere as part of the fraudulent scheme.

*Holding: not yet available

Felter v. Salazar
679 F.Supp.2d 1
No. 02-2156 (RWR)
United States Dictrict Court, D. District of Columbia, January 15, 2010

Subjects: not yet available

*Synopsis:Purported mixed-blood members of Ute Indian Tribe brought action against Department of the Interior (DOI), alleging that Ute Partition and Termination Act (UPA) wrongfully terminated their federally-recognized status and deprived them of reservation assets. Following remand, 473 F.3d 1255, government moved for dismissal.

*Holding: The District Court, Richard W. Roberts, J., held that:
(1) federal trust fund provision applied retroactively to stop statute of
limitations from running, and
(2) action was barred by collateral estoppel.
Motion granted.

Related News Stories:

United States v. Questar Gas Management Company
2010 WL 187227
No. 2:08CV167DAK
United States Dictrict Court, D. Utah, January 13, 2010

Subjects: not yet available

*Synopsis: (from the opinion) For the foregoing reasons, the Utah Indian Tribe of the Uintah and Ouray Reservation's Motion to Intervene [Docket No. 88] is GRANTED IN PART AND DENIED IN PART and Defendant Questar Gas Management Company's Motion to Strike Movant Plaintiff-Intervenor's Proposed Complaint [Docket No. 95] is GRANTED IN PART AND DENIED IN PART as discussed above. The Tribe is allowed intervention as of right with respect to it sovereign jurisdictional issues raised by the claims and defenses in this action. The Tribe is allowed permissive intervention with respect to its public nuisance claim to the extent that the claim's allegations share common legal and factual questions with the CAA enforcement claims.

*Holding: not yet available

Miranda v. Nielsen
2010 WL 148218
No. CV-09-8065-PCT-PGR (ECV)
United States Dictrict Court, D. Arizona, January 12, 2010

Subjects: not yet available

*Synopsis: (from the opinion) The parties agree that there are no genuine issues of material fact in dispute here and that this case is properly resolved on a motion for summary judgment. The legal issues before the court are whether Petitioner exhausted her tribal court remedies before filing a federal habeas petition, and whether the sentence imposed against Petitioner in the tribal court is lawful under the Indian Civil Rights Act (“ICRA”) at 25 U.S.C. § 1302(7).

*Holding: not yet available

Wells Fargo Bank, N.A. v. Lake of the Torches Economic Development Corporation
677 F.Supp.2d 1056
No. 09-CV-768
United States Dictrict Court, E.D. Wisconsin, January 11, 2010

Subjects: not yet available

*Synopsis: National bank brought action against Indian casino development corporation, alleging breach of trust indenture.

*Holding: The District Court, Rudolph T. Randa, J., held that:
(1) trust indenture was void as unapproved management contract, and
(2) District Court lacked jurisdiction.
Dismissed.

Related News Stories: Judge nullifies agreement in Wisconsin tribal casino default. (TheDay.com) 1/13/10. Federal Court dismisses effort by Wells Fargo to take over LDF’s Lake of the Torches EDC (Turtle Talk) 1/7/09.

Blue Lake Rancheria v. United States
2010 WL 144989
No. 08-4206 (SC)
United States Dictrict Court, N.D. California, January 8, 2010

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiffs Blue Lake Rancheria and Blue Lake Rancheria Economic Development Corporation filed this suit for a refund of federal unemployment taxes paid on behalf of Mainstay Business Solutions, which is an unincorporated enterprise of the Blue Lake Rancheria Indian Tribe.

*Holding: not yet available

Miccosukee Tribe of Indians of Florida v. United States
680 F.Supp.2d 1308
No. 08-23001-CIV
United States District Court, S.D. Florida, January 7, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action alleging that federal government's water management actions infringed on tribe's constitutional and statutory rights by causing high water levels on lands to which tribe held perpetual leasehold. After the government's motion to dismiss was granted in part and denied in part, 656 F.Supp.2d 1375, the government moved for reconsideration and judgment on the pleadings.

*Holding: The District Court, K. Michael Moore, J., held that:
(1) tribe was not collaterally estopped from bringing equal protection claim;
(2) tribe had parens patriae standing to bring equal protection claim;
(3) government waived sovereign immunity as to equal protection claim; and
(4) tribe was not required to bring equal protection claim under the Administrative Procedure Act (APA).

Related News Stories: Update on Miccosukee Tribe’s ongoing Everglades Case (Turtle Talk) 1/13/09.

Crow Creek Sioux Tribal Farms, Inc v. U.S. I.R.S.
684 F.Supp.2d 1152
No. 09-3031-RAL
United States Dictrict Court, D. South Dakota, January 6, 2010

Subjects: not yet available

*Synopsis: Native-American tribe and related corporate entity brought action against Internal Revenue Service (IRS) and several IRS employees, seeking injunctive relief to stop public auction of land IRS had seized pursuant to tax lien arising from tribe's failure to pay certain employment taxes. Tribe moved for temporary restraining order (TRO) or preliminary injunction.

*Holding:The District Court, Roberto A. Lange, J., held that factors weighed against issuance of TRO. Motion denied.

Miami Tribe of Oklahoma v. United States
679 F.Supp.2d 1269
No. 03-2220-DJW
United States Dictrict Court, D. Kansas, January 4, 2010

Subjects: not yet available

*Synopsis: Indian tribe brought action under Administrative Procedures Act (APA) seeking judicial review of decision of Department of Interior, Bureau of Indian Affairs (BIA), denying tribe member's application to gift portion of his interest in restricted land to tribe. Tribe filed claim alleging breach of trust. Parties consented to exercise of jurisdiction by magistrate judge. Tribe moved for equitable relief to remedy wrongful administrative actions. BIA moved to dismiss breach of trust claim.

*Holding:The District Court, David J. Waxse, United States Magistrate Judge, held that:

(1) prior partition order transferring restricted undivided interest in particular allotment to United States in trust for benefit of Indian owners did not permanently change individual Indian owners' interest in that allotment from restricted fee allotment to trust allotment; (2) Court could not order BIA to recognize Indian tribe as having jurisdiction over particular restricted fee allotment on any future applications to transfer interest in that allotment; BIA could not be required by court to process applications for transfers of interests in restricted Indian land within 180 days or any other time period without statute or regulation requiring it to do so;(4) tribe invoked federal jurisdiction over its breach of trust claim; (5) Administrative Procedure Act (APA) provided general waiver of sovereign immunity that applied to breach of trust claim;(6) BIA did not have any fiduciary duties with respect to management of allotment that may arisen from trust relationship, including any fiduciary duty to maintain status of allotment for Indian tribe as trust allotment; and(7) actions or inactions of administrative agency in carrying out its agency duties, including duty to consider and decide applications for approval to transfer interests in restricted Indian land, did not constitute valid basis for Indian tribe's breach of trust claim.
Ordered accordingly.

Confederated Tribes and Bands of the Yakama Nation v. Gregoire
680 F.Supp.2d 1258
No. CV-08-3056-RHW
United States Dictrict Court, E.D. Washington, January 4, 2010

Subjects: not yet available

*Synopsis: Native-American tribal organization brought action against Washington state governor and others, challenging defendants' imposition and anticipated enforcement of cigarette tax on Native-American retailers' sales to non-Native-Americans. Parties moved and cross-moved for summary judgment.

*Holding: The District Court, Robert H. Whaley, J., held that:
(1) legal incidence of tax did not fall on Native-American retailers;
(2) organization's claim that state lacked authority to enforce tax was not ripe for adjudication;
(3) res judicata barred organization's argument that enforcement of tax was preempted by treaty; and
(4) striking organization's request for court to revisit prior decision was warranted. Organization's motion denied and defendants' motion granted in part and denied in part.

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