McGuire v. United States
550 F.3d 903
No. No. 06-15812
United States Court of Appeals, Ninth Circuit, December 24, 2008
Subjects: United States. Bureau of Indian Affairs; Jurisdiction -- United States; United States. Tucker Act; Farmers -- On Indian reservations; Debtor and creditor; Bankruptcy; Land tenure.
*Synopsis: Farmer who leased tribal land and who was a Chapter 11 debtor brought inverse condemnation action against government, alleging that decision of Bureau of Indian Affairs (BIA) to remove bridge over canal on leased land was unconstitutional taking. The Bankruptcy Court issued findings and recommendations. The United States District Court for the District of Arizona adopted the findings and recommendations, denied government's motion to dismiss, and remanded matter back to Bankruptcy Court for trial. On remand, the Bankruptcy Court determined that government had committed regulatory taking. The District Court, James A. Teilborg, J., rejected Bankruptcy Court's findings and recommendations, and dismissed action. Farmer appealed.
*Holding: The Court of Appeals, Thomas, Circuit Judge, held that:
(1) claim was ripe for adjudication;
(2) District Court lacked jurisdiction under Tucker Act over farmer's claim; and
(3) claim would be transferred to Court of Federal Claims.
Reversed and remanded with instructions.
United States v. Stowbunenko-Saitschenk
2008 WL 5341989
No. 07-10379
United States Court of Appeals, Ninth Circuit, December 22, 2008
Subjects: Little Shell Pembina Band of North America -- Members; Tribal membership; Mexicans; Illegal aliens -- United States; Citizenship -- United States; Border crossing (International travel).
*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, David G. Campbell, J., of bringing in illegal aliens to United States and encouraging illegal aliens to enter United States, and he appealed.
*Holding: The Court of Appeals held that defendant failed to establish that tribe he allegedly belonged to had aboriginal and sovereign right to cross United States-Mexico border.
Affirmed in part and remanded in part.
Related News Stories: Appeals court affirms ISP authority on tribal land (NBC News) 1/1/09
Cottier v. City of Martin
2008 WL 5215007
No. 07-1628
United States Court of Appeals, Eighth Circuit, December 16, 2008
Subjects: United States. Voting Rights Act of 1965; Election districts -- Martin (S.D.); Apportionment (Election law); United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment; American Civil Liberties Union.
*Synopsis: Action was brought on behalf of Native American voters challenging configuration of city wards as violative of ? 2 of Voting Rights Act (VRA) and Fourteenth and Fifteenth Amendments. Following remand, 445 F.3d 1113, the United States District Court for the District of South Dakota, Karen E. Schreier, C.J., 475 F.Supp.2d 932, found that ordinance violated VRA. City appealed.
*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) District Court's overall weighing of totality of circumstances was not clearly erroneous, and
(2) District Court did not abuse its discretion in adopting at-large, cumulative voting remedial plan.
Affirmed.
Related News Stories: Court sides with ACLU, Native Americans in Martin voting case (Rapid City Journal) 12/17/08
Hendrix v. Coffey
2008 WL 5206293
No. 08-6161
United States Court of Appeals, Tenth Circuit, December 15, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: not yet available
*Synopsis: In action brought by Native Americans alleging violations of the Indian Civil Rights Act (ICRA) after three of them were disenrolled as members of a tribe, the United States District Court for the Western District of Oklahoma, 2008 WL 2740901, dismissed the action. Native Americans appealed.
*Holding: The Court of Appeals, John C. Porfilio, Circuit Judge, held that federal court did not have subject matter jurisdiction over the dispute.
Affirmed.United States v. Antelope
548 F.3d 1155
No. 08-2206
United States Court of Appeals, Eighth Circuit, December 8, 2008
Subjects: Double jeopardy - United States; Criminal jurisdiction - Tribes; Criminal jurisdiction - United States; Assault and battery; Standing Rock Sioux Tribe of North & South Dakota.
*Synopsis: Following plea of guilty to assault with a dangerous weapon with intent to do bodily harm, defendant moved to withdraw his guilty plea. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., denied the motion. Defendant appealed.
*Holding: The Court of Appeals, Wollman, Circuit Judge, held that Double Jeopardy Clause did not bar federal prosecution.
Dismissed.
Lewis v. Phropher
2008 WL 5381854
No. 08-2403-JWL
United States District Court, Kansas, December 22, 2008
Subjects: United States. Constitution. 4th Amendment; United States. Constitution. 5th Amendment; United States. Constitution. 14th Amendment; Indian reservation police -- Iowa Tribe of Kansas and Nebraska; United States. Indian Civil Rights Act.
*Synopsis: (from the opinion) Plaintiff Anthony Lewis, acting pro se, asserts a claim for damages under 42 U.S.C. ? 1983 against defendants Allen Phropher and Luke Keller, Jr., tribal police officers for the Iowa Tribe of Kansas and Nebraska. Specifically, plaintiff alleges that defendants violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution in connection with their arrest of plaintiff on August 31, 2008.
*Holding: not yet available
Osage Tribe of Indians of Oklahoma v. United States
85 Fed.Cl. 162
No. 99-550 L
United States Court of Federal Claims, December 19, 2008
Subjects:
*Synopsis: Headright owners, who had an interest in their pro rata share of the proceeds of Indian tribe's mineral estate, filed motion for leave to intervene in tribe's suit alleging that the United States violated its duty as trustee of the tribe's mineral estate by failing to collect all moneys due from tribal oil leases and to deposit and invest those moneys as required by statute and according to the fiduciary duty owed to the tribe.
*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) group which proposed intervenors sought to represent was not an
"identifiable group" under court's jurisdictional statute pertaining to Indian
cases;
(2) headright owners did not have a legally protectable interest, and therefore
were not entitled to intervene as of right; and
(3) permissive intervention was inappropriate.
Motion denied.
Graham v. Applied Geo Technologies, Inc.
2008 WL 5381940
No. 4:08CV26TSL-LRA
United States District Court, S.D Mississippi, December 19, 2008
Subjects: Exhaustion of tribal remedies; Jurisdiction -- Tribes; Mississippi Band of Choctaw Indians, Mississippi; Applied Geo Technologies, Inc.; Indian business enterprises; Race discrimination; Discrimination in employment; African Americans.
*Synopsis: (from the opinion) This cause is before the court on the motion of defendants Applied Geo Technologies, Inc. (AGT), Allen Hines, Tim Nelson, Michael Miller and Sandra Booker to dismiss plaintiff's complaint for failure to exhaust tribal remedies in the courts of the Mississippi Band of Choctaw Indians.
*Holding: not yet available
Dolgen v. The Mississippi Band of Choctaw Indians
2008 WL 5381906
No. 4:08CV22TSL-JCS
United States District Court, S.D Mississippi, December 19, 2008
Subjects: Dollar General -- On trust lands; Criminal actions arising in Indian Country (U.S.); Child sexual abuse; Liability (Law); Jurisdiction -- Tribes; Mississippi Band of Choctaw Indians, Mississippi.
*Synopsis: (from the opinion) This cause is before the court on the separate motions of plaintiffs Dollar General Corporation and Dolgen Corp., Inc. (Dolgen) and of Dale Townsend, for temporary restraining order and preliminary injunction to enjoin all defendants from taking any further steps in the prosecution of the Doe defendants' pending lawsuit against them in the Tribal Court of the Mississippi Band of Choctaw Indians. Defendants, the Mississippi Band of Choctaw Indians, the Tribal Court of the Mississippi Band of Choctaw Indians and the Honorable Christopher A. Collins (in his official capacity as judge of the Tribal Court) (collectively the Tribal defendants), have filed their response in opposition to plaintiffs' motions, and the Doe defendants have separately responded.
*Holding: not yet available
Martinez v. Martinez
2008 WL 5262793
No. C08-5503 FDB
United States District Court, W.D. Washington, December 16, 2008
Subjects: Exhaustion of tribal remedies; Jurisdiction -- United States; Jurisdiction -- Tribes; Suquamish Indian Tribe of the Port Madison Reservation, Washington; Non-members of a tribe; Alaska Natives; Criminal actions arising in Indian Country (U.S.).; Divorce suits.
*Synopsis: (from the opinion) The Defendants assert that because Plaintiff has failed to exhaust tribal court remedies this Court lacks jurisdiction to determine whether the Suquamish Tribe has jurisdiction to enter an order of protection against Plaintiff and to act upon a dissolution petition filed by Defendant Helen Martinez. For the reasons stated below, this Court denies the motion to dismiss and finds that the Suquamish Tribe lacks jurisdiction to enter protective orders and act upon the dissolution petition regarding these non-members of the Suquamish Tribe.
*Holding: not yet available
Saginaw Chippewa Indian Tribe of Michigan v. Granholm
2008 WL 5220561
No. 05-10296-BC
United States District Court, E.D. Michigan, December 12, 2008
Subjects: Saginaw Chippewa Indian Tribe of Michigan, Isabella Reservation; Indian Country (U.S.) -- Defined; Law -- Michigan -- Application -- Indian Country (U.S.); Treaties -- Saginaw Chippewa Indian Tribe of Michigan.
*Synopsis: (from the opinion) On November 21, 2005, Plaintiff Saginaw Chippewa Indian Tribe of Michigan's (the ?Saginaw Chippewa?) filed a complaint seeking, inter alia, declaratory and injunctive relief requiring Defendants Jennifer Granholm, Mike Cox, and Jay Rising (?Michigan Defendants? or the ?State of Michigan?) ?to recognize the historic Isabella Reservation as Indian country under federal law, and prohibiting such officials from enforcing Michigan state law against the [Saginaw Chippewa] and its members within the historic Isabella Reservation in a manner inconsistent with the reservation's status as Indian country and therefore in violation of the Constitution and laws of the United States.?
*Holding: not yet available
Lewandowski v. S.W.S.T. Fuel, INC.
2008 WL 5209987
No. CIV. 07-4159
United States District Court, D. South Dakota, December 10, 2008
Subjects: Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota; Wrongful death; Foster home care -- Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota; Child welfare; S.W.S.T. Fuel, Inc.; Home accidents -- Investigation.
*Synopsis: (from the opinion) The Personal Representative of the estate of the Lewandowski children brought a wrongful death and survival action in Sisseton-Wahpeton Sioux Tribal Court in November of 2006. This action was consolidated for purposes of considering motions with an action brought by the Personal Representative of the other two children who died in the same fire. The named Defendants in this action as well as the Sisseton Wahpeton Oyate Tribe were named Defendants in the tribal court action. The Plaintiffs in that action alleged that the foster care provider was licensed to care for fewer children than the number of children placed with her by the Sisseton-Wahpeton Oyate Child Protection Program at the time of the fire. The Plaintiffs also alleged that the propane heater in issue had recently been worked on by S.W.S.T. Fuel, Inc., and had been left without a protective covering. The Plaintiffs contended that the alleged negligence of the Sisseton-Wahpeton Oyate Child Protection Program and that of the S.W.S.T. Fuel, Inc., either individually or in combination, caused the deaths of the children.
*Holding: not yet available
Cummings v. The Lumbee Tribe of North Carolina
2008 WL 5203645
No. 7:07-CV-189-BO
United States District Court, E.D. North Carolina, December 8, 2008
Subjects: Lumbee Indian Tribe of North Carolina -- Officials and employees; Sex discrimination against women; United States. Civil Rights Act of 1964. Title 7.
*Synopsis: (from the opinion) On October 1, 2003, Defendant Lumbee Tribe of North Carolina hired Plaintiff Donna Cummings as the office manager of the Tribal Enrollment Office. Defendant Leon Jacobs is the Tribal Administrator of Defendant Lumbee Tribe of North Carolina. On October 21, 2006, Plaintiff filed a grievance with Defendant Jacobs alleging unfair and unequal treatment of women by Defendant Lumbee Tribe of North Carolina. On November 9, 2006, Plaintiff assisted a former female co-worker draft a grievance making similar allegations against Defendant Lumbee Tribe of North Carolina. On November 13, 2006, Defendant Jacobs sent Plaintiff a memorandum acknowledging the receipt of the grievance. On November 15, 2006, Defendant Jacobs sent Plaintiff a memorandum informing Plaintiff that Defendants were suspending her without pay in order to investigate who had authored a defamatory letter that had circulated through the workplace. Defendant Jacobs also verbally informed co-workers and the Tribal Council that Plaintiff authored the letter. Subsequently, an investigation concluded that no reasonable evidence existed to implicate Plaintiff as the author of the letter
*Holding: not yet available
Crosby Lodge v. National Indian Gaming Commission
2008 WL 5111036
No. 3:06-cv-00657-LRH-RAM
United States District Court, District of Nevada, December 3, 2008
Subjects: Business enterprises -- On Indian reservations -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Slot machines -- On Indian reservations -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada;; Crosby Lodge, Inc.; Revenue sharing -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Profit sharing -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada. National Indian Gaming Commission (U.S.); Gambling on Indian reservations -- Federal supervision; Indian gaming -- Class III.
*Synopsis: (from the opinion) In support of the motion for summary judgment, the NIGC makes two primary arguments. First, the NIGC maintains that the applicable statute of limitations bars the suit with respect to both a facial and an as applied challenge to 25 C.F.R. ? 522.10(c). Second, the NIGC argues the Tribe is a necessary and indispensable party within the meaning of Federal Rule of Civil Procedure 19. The court addresses each of these arguments below.
*Holding: not yet available
Indian Educators Federation Local 4524 of the American Federation of Teachers v. Kempthorne
2008 WL 5086985
No. 04-01215
United States District Court, District of Columbia, December 3, 2008
Subjects: Indian preference in hiring -- United States; Employee selection -- United States; United States. Dept. of the Interior; United States. Indian Reorganization Act; American Federation of Teachers.
*Synopsis: Indian Educators Federation (IEF) filed complaint challenging Secretary of Interior's interpretation of Indian Reorganization Act (IRA) as excluding employment preferences for Indians outside of positions in Bureau of Indian Affairs (BIA) and seeking injunctive and declaratory relief. IEF moved for permanent injunction, and Secretary moved for entry of final judgment.
*Holding: The District Court, Thomas F. Hogan, J., held that:
(1) IEF's irreparable injury regarding Indian preference would not be remedied by permanent injunction;
(2) permanent injunction would not be adequate to compensate for IEF's injury;
(3) balance of hardships did not warrant permanent injunction; and
(4) public interest did not require permanent injunction.
Defendant's motion granted.
Pacificorp v. Real Bird
2008 WL 5100945
No. CV-07-14-BLG-RFC
United States District Court, District of Montana, December 3, 2008
Subjects: Pacificorp.; Crow Tribe of Montana; Jurisdiction -- Tribes; Electric lines -- On Indian reservations; Public utilities ? Right of way -- On Indian reservations.
*Synopsis: (from the opinion) PacifiCorp moves for summary judgment on the basis that the Crow Tribal Court lacks jurisdiction over it. PacifiCorp's MSJ Re: Jurisdiction (Court's Doc. No. 45) at 2. PacifiCorp argues that the Real Birds lack authority to exclude PacifiCorp from the power line right-of-way and Indian Reservation Road No. 52, and that no federal statute provides tribal court jurisdiction over PacifiCorp. Br. Supporting MSJ (Court's Doc. No. 46) at 4-5. Thus, they conclude that the Tribal Court lacks jurisdiction over the Real Bird's Complaint.
*Holding: not yet available
Native American Distributing v. Seneca-Cayuga Tobacco Company
546 F.3d 1288
No. 07-5104
United States Court of Appeals, Tenth Circuit, November 17, 2008
Subjects: Seneca-Cayuga Tobacco Company; Tribal business enterprises -- Seneca-Cayuga Tribe of Oklahoma; Native American Distributing (Mo.); Contracts; Jurisdiction -- United States; Sovereign immunity -- Seneca-Cayuga Tribe of Oklahoma; Breach of contract.
*Synopsis: Tobacco distributor brought action against tobacco manufacturer, a tribal enterprise, and individuals, alleging breach of contract and civil conspiracy. The United States District Court for the Northern District of Oklahoma, Kern, J., 491 F.Supp.2d 1056, granted defendants' motions to dismiss, and distributor appealed.
*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) manufacturer had sovereign immunity as enterprise of the tribe;
(2) manufacturer was not equitably estopped from asserting its immunity;
(3) distributor failed to state a civil conspiracy claim under the Sherman Act against individual defendants; and
(4) distributor failed to state a price discrimination claim under the Robinson-Patman Act against individual defendants.
Affirmed.
Cook v. AVI Casino Enterprises, Inc.
548 F.3d 718
No. 07-15088
United States Court of Appeals, Ninth Circuit, November 14, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Jurisdiction -- United States; Sovereign immunity -- Indian business enterprises; Indian business enterprises -- Fort Mojave Indian Tribe of Arizona, California & Nevada; Avi Casino Enterprises, Inc.; Casinos; Liability (Law); Drinking and traffic accidents; Law -- Arizona.
*Synopsis: Motorcyclist involved in traffic accident with employee of casino, a tribal corporation, sued tribal corporation and several of its employees, asserting claims for negligence, dram shop liability under Arizona's liquor liability statute, and violations of tribal law. The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., 2006 WL 3694859, granted defendants' motion to dismiss, and motorcyclist appealed.
*Holding: The Court of Appeals, Gould, Circuit Judge, held that:
(1) for diversity jurisdiction purposes in negligence and dram shop claims brought by injured motorcyclist, casino, a tribal corporation, was not a California citizen;
(2) tribal corporation functioned as an arm of Indian Tribe, and was therefore protected by sovereign immunity from suit brought by motorcyclist; and
(3) tribal sovereign immunity of tribal corporation extended to two of its employees.
Affirmed
United States v. Benally
546 F.3d 1230
No. 08-4009
United States Court of Appeals,Tenth Circuit, November 12, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Jury selection; United States. Bureau of Indian Affairs -- Police; Assault and battery; Evidence (Law); Impartiality.
*Synopsis: After defendant was convicted of forcibly assaulting Bureau of Indian Affairs officer with dangerous weapon, the United States District Court for the District of Utah, 2007 WL 4166135, granted defendant's motion for new trial.
United States appealed
*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) evidence that jurors expressed racial bias during deliberations fell within scope of evidence rule prohibiting admission of evidence of statements made during jury deliberations;
(2) jurors' alleged statements did not fall within scope of exception for extraneous prejudicial information; and
(3) defendant's Sixth Amendment right to impartial jury did not bar application of evidence rule.
Reversed.
Alabama v. United States
2008 WL 5071904
No. 08-0182-WS-C
United States District Court, District of S.D. Alabama, November 24, 2008
Subjects: Indian gaming -- Class III; Gambling on Indian reservations -- Alabama; United States. Indian Gaming Regulatory Act; Poarch Band of Creek Indians of Alabama; Negotiation; Good faith (Law); Alabama.
*Synopsis: (from the opinion) This action involves a challenge by the plaintiff State of Alabama to certain regulations promulgated by the defendant Secretary of the Department of the Interior addressing Indian gaming under the Indian Gaming Regulatory Act (?IGRA?). The other defendants include the United States of America and the United States Department of the Interior, as well as intervenor-defendant Poarch Band of Creek Indians.
*Holding: not yet available
Marvel v. Elkhart County Court
2008 WL 5062801
No. 3:08-CV-529 RM
United States District Court, N.D. Indiana, November 21, 2008
Subjects: United States. Constitution. 14th Amendment; Tribal membership -- Fond du Lac Band of Chippewa Indians; Paternity testing - Law and legislation - Indiana; Jurisdiction -- Elkhart County (Ind.); Fond du Lac Band of Chippewa Indians (Minn.) -- Members.
*Synopsis: (from the opinion) In light of Chief Judge Cebull's prior ruling in the closely related condemnation action, PacifiCorp v. Real Bird, et al., CV-06-122-BLG-RFC, the Crow tribal court lacks jurisdiction over matters already at issue in the condemnation action. Additionally, the Court concludes that the Crow tribal court is not an indispensable party under Fed.R.Civ.P. 19(a).
*Holding: not yet available
United States v Genschow
2008 WL 4937870
No. 2:08-CR-18
United States District Court, W.D. Michigan, November 14, 2008
Subjects: Logging; Trust land -- Tribes; Keweenaw Bay Indian Community, Michigan; Tribes -- Defined; Federal recognition of Indian tribes; Ontonagon Reservation in Ontonagon, Michigan; Indian allotments.
*Synopsis: (from the opinion) Defendant Robert Charles Genschow, Sr. has been charged in a two-count indictment with unlawful cutting and injury to trees in violation of 18 U.S.C. ? 1853, and theft of tribal property in violation of 18 U.S.C. ? 1163. Specifically, the indictment charges that between August 1, 2007, and October 2, 2007, Defendant unlawfully arranged for the logging of certain property known as the Ontonagon Reservation in Ontonagon, Michigan (the W1/2, NW 1/4 of Sec. 26, T53N, R38W) (the ?Property?), that is held in trust for the use and occupancy of the Keweenaw Bay Indian Community (?KBIC?). Defendant contends that because the Property is held in trust for the Ontonagon Band, the KBIC has no authority over the Property, and that accordingly the indictment is defective, the Court lacks jurisdiction, and the indictment should be dismissed.
*Holding: not yet available
Amerind Risk Management Corp. v. Malaterre
2008 WL 4899632
No. 4:07-CV-059
United States District Court, D. North Dakota, November 14, 2008
Subjects: Amerind Risk Management; Dwellings -- Turtle Mountain Band of Chippewa Indians of North Dakota; Fires -- Turtle Mountain Band of Chippewa Indians of North Dakota; Liability (law); Exhaustion of tribal remedies -- Turtle Mountain Band of Chippewa Indians of North Dakota; Jurisdiction -- Tribes; Housing authorities -- Tribes.
*Synopsis: Administrator of self-insurance risk pool that insured federally subsidized Indian housing owned and operated by Indian tribes brought action against tribe members, seeking a declaratory judgment that administrator was not subject to a direct action, and seeking to enjoin the tribe members from proceeding with underlying wrongful death and personal injury action in tribal court against administrator. Parties cross-moved for summary judgment.
*Holding: The District Court, Daniel L. Hovland, Chief Judge, held that administrator entered into a consensual relationship with Indian tribe, as required for tribal court to exercise jurisdiction over administrator in the underlying action.
Summary judgment for defendants.
Standing Rock housing authority v. United States Equal employment opportunity commission
585 F.Supp.2d 1112
No. 1:08-CV-052
United States District Court, North Dakota, November 10, 2008
Subjects:
*Synopsis: Tribal housing authority filed declaratory judgment action to determine whether authority was required to comply with subpoena issued by Equal Employment Opportunity Commission (EEOC) to produce documents relating to sexual harassment charges filed by authority's employees, under Title VII, and whether EEOC had jurisdiction over housing authority. EEOC moved to dismiss for lack of ripeness.
*Holding: The District Court, Daniel L. Hovland, Chief Judge, held that:
(1) declaratory judgment action was not ripe, and
(2) any hardship from withholding judicial review was minimal.
Motion granted.
Osage Tribe of Indians of Oklahoma v. United States
81 Fed.Cl. 495
No. 99-550 L, 00-169 L
United States Court of Federal Claims, November 10, 2008
Subjects: not yet available
*Synopsis: Indian tribe brought suit against the United States alleging that government violated its duty as trustee of tribe's mineral estate by failing to collect all moneys due from tribal oil leases and to deposit and invest those moneys as required by statute and according to fiduciary duty owed to tribe. Government was found liable for breach of fiduciary duties, 72 Fed.Cl. 629. Subsequently, individuals who identified themselves as personal owners of allotted tribal shares moved to intervene. Plaintiffs filed motion to disqualify proposed intervenors' counsel.
*Holding: The United States Court of Federal Claims, Hewitt, J., held that:
(1) government was entitled to compel tribe to fully respond to its requests for production despite tribe's objection that prior trial rulings of the Court of Federal Claims rendered the requests not reasonably calculated to lead to the discovery of admissible evidence;
(2) government was entitled to compel tribe to fully respond to its requests for production despite tribe's objection that the requests were unduly cumulative and burdensome because they sought trust administration records that the government itself was required to possess; and
(3) government was entitled to compel tribe to fully respond to its requests for production over tribe's objection that the requests were unduly cumulative and burdensome because they were duplicative of previous discovery requests.
Motion granted.
BNSF Railway Company v. Ray
2008 WL 4710778
No. 07-15076
United States Court of Appeals, Ninth Circuit, October 27, 2008
Subjects: Burlington Northern Santa Fe Railroad; Railroad accidents -- Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Liability for railroad accidents; Jurisdiction -- Hualapai Indian Tribe of the Hualapai Indian Reservation; Jurisdiction -- United States.
*Synopsis: Railway company and its employees filed action seeking to permanently enjoin chief judge of tribal court and tribal court clerk from taking further action in wrongful death action filed in tribal court by decedents of automobile passengers against railway company and its employees. The United States District Court for the District of Arizona, David G. Campbell, J., granted injunction. Defendants appealed.
*Holding: The Court of Appeals held that:
(1) appeal of injunction was not moot;
(2) action was not barred by sovereign immunity; and
(3) railway company and its employees were not required to exhaust tribal court remedies prior to seeking permanent injunction.
Affirmed
Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
547 F.3d 962
No. 06-16145
United States Court of Appeals, Ninth Circuit, October 24, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming.
*Synopsis: This appeal concerns the joinder requirements of Rule 19 of the Federal Rules of Civil Procedure and their effect on litigation brought by an Indian tribe engaged in casino gaming. The Cachil Dehe Band of Wintun Indians of the Colusa Indian Community (?Colusa?), a federally recognized Indian tribe, entered into a gaming compact with the State of California in 1999. Colusa brought this action for declaratory and injunctive relief against the State, its Governor and the California Gambling Control Commission (collectively, ?the State?). Colusa challenges the Commission's interpretation of the compact and the Commission's assumption of authority to administer unilaterally the licensing of electronic gaming devices. The district court concluded that the many other Indian tribes that had entered into identical gaming compacts with the State in 1999, as well as California's non-gaming tribes, were required parties to this action. Because Indian tribes enjoy sovereign immunity and the action could not proceed in their absence, the district court granted the State's motion for judgment on the pleadings. Colusa appeals. Because we conclude that the absent tribes are not required parties to this action, we reverse the district court's judgment (with one minor exception) and remand for further proceedings.
*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) absent tribes were not required parties for breach of compact claim
regarding limit on number of licenses;
(2) absent tribes were not required parties for breach of compact claim
regarding fourth-tier placement in license draw, except as related to existing
licenses;
(3) absent tribes were not required parties for breach of compact claim
regarding refund of license fee; and
(4) absent tribes were not required parties for breach of compact claim
regarding Commission's unilateral administration of licensing.
Affirmed in part, reversed in part, and remanded.
United States v. Fiander
547 F.3d 1036
No. 07-30251
United States Court of Appeals, Ninth Circuit, October 23, 2008
Subjects: Confederated Tribes and Bands of the Yakama Nation, Washington -- Members; Taxation -- Cigarettes -- Transportation -- Washington (State); United States. Contraband Cigarette Trafficking Act; Yakama Indians -- Treaties; Notice (Law) -- Washington (State); United States. Racketeer Influenced and Corrupt Organizations Act.
*Synopsis: Defendant pleaded guilty in the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., to conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO). District court dismissed the indictment, 2007 WL 1725575. Government appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) cigarettes transported by defendant were contraband;
(2) defendant could be prosecuted for RICO conspiracy in which racketeering activity was contraband cigarette trafficking, although defendant could not be prosecuted for substantive violation of Contraband Cigarette Trafficking Act (CCTA) because of his status as member of Yakama Nation; and
(3) indictment sufficiently stated that defendant entered into conspiracy to commit substantive offense of contraband cigarette trafficking in violation of RICO.
Reversed and remanded.
Catskill Development v. Park Place Entertainment Corporation
547 F.3d 115
No. 06-5860-cv
United States Court of Appeals, Second Circuit, October 21, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Contracts -- St. Regis Band of Mohawk Indians of New York; Casinos -- Design and construction -- St. Regis Band of Mohawk Indians of New York; Gambling on Indian reservations -- New York (State); Indian gaming -- St. Regis Band of Mohawk Indians of New York; United States. Indian Gaming Regulatory Act.
*Synopsis: Casino development group and land developer brought action against competitor alleging tortious interference with contractual relations and tortious interference with prospective business relationships in connection with development and management of Native American casino. Following grant of summary judgment for competitor, 217 F.Supp.2d 423, the district court, 286 F.Supp.2d 309, vacated its decision for purpose of allowing limited discovery into issue of whether competitor engaged in wrongful means to induce tribe to enter into a casino development agreement, and entered summary judgment in favor of competitor on claims for tortious interference with prospective business relations, 345 F.Supp.2d 360. On appeal, the Court of Appeals, 169 Fed.Appx. 658, vacated and remanded. On remand, the United States District Court for the Southern District of New York, Colleen McMahon, J., 465 F.Supp.2d 250, granted summary judgment for defendants. Plaintiffs appealed.
*Holding: The Court of Appeals, Sotomayor, Circuit Judge, held that:
(1) Court of Appeals was obliged to ascertain its jurisdiction independently;
(2) litigation trust, created as condition to closing consolidation deal, was not created for improper purpose of manufacturing federal diversity jurisdiction;
(3) National Indian Gaming Commission (NIGC) had authority to review contract to build and operate Native American casino although land upon which casino was to be built was not yet Indian land;
(4) Court owed only limited deference to position set forth in agency opinion letter in unrelated case that had not been promulgated by agency regulation;
(5) opinion letter that was entitled to Skidmore deference did not have any persuasive power;
(6) federal voiding provisions applied to precursory obligation of Indian tribe to use reasonable best efforts in obtaining requisite government approvals;
(7) land purchase agreement and development and construction agreement had to be considered to be subject to federal voiding provision; and
(8) fraudulent acts and misrepresentations did not constitute wrongful conduct.
Affirmed.
California v. Native Wholesale Supply Company
632 F.Supp.2d 988
No. S-08-1827 LKK/KJM
United States District Court, E.D. of California, October 8, 2008
Subjects: not yet available
*Synopsis: State of California brought action against tribal cigarette importer and distributor in state court, alleging that distributor sold prohibited cigarettes to smoke shops on tribal land that were not licensed to distribute cigarettes and that the cigarettes were then sold to non-Indians, in violation of California Tobacco Directory Law, Fire Safety and Firefighter Protection Act, Unfair Competition Law (UCL), and several standing injunctions. Distributor removed case to federal district court. State filed motion to remand and distributor filed motion to dismiss.
*Holding: The District Court, Lawrence K. Karlton, Senior District Judge, held that the State's action did not present question of federal law as would warrant removal to federal district court.
San Pasqual Band of Mission Indians v. California
2008 WL 4472608
No. 07-55536
United States Court of Appeals, Ninth Circuit , October 6, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: San Pasqual Band of Diegueno Mission Indians of California; Intergovernmental agreements -- California; Indian gaming -- Licenses; Slot machines; Gambling on Indian reservations -- California; Jurisdiction -- United States.
*Synopsis: (from the opinion) The San Pasqual Band of Mission Indians (?San Pasqual?) brought this action against the State of California, the California Gambling Control Commission, and the Governor of California (collectively, ?the State?). The complaint sought a declaratory judgment regarding the aggregate maximum number of slot machine licenses available to Indian tribes in California who were parties to approximately sixty essentially identical Indian Gaming Compacts between those tribes and the State. The district court dismissed San Pasqual's action for failure to join all other tribes with similar compacts, who were subject to the same licensing pool, as required parties under Federal Rule of Civil Procedure 19. San Pasqual brings this appeal to challenge that dismissal. We have jurisdiction pursuant to 28 U.S.C. ? 1291, and we reverse.
*Holding: not available
Stratman v. Leisnoi
545 F.3d 1161
No. 07-35934
United States Court of Appeals, Ninth Circuit , October 6, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Grazing; Leases; United States. Alaska Native Claims Settlement Act; Alaska Native corporations -- Defined; Tribes -- Defined; Lesnoi Village (aka Woody Island); Alaska Native villages - Land tenure.
*Synopsis: Holder of grazing lessee sought enforcement of decision of Interior Board of Land Appeals which had found that village was not a deficiency village corporation entitled to lands under Alaska Native Claims Settlement Act (ANCSA). The United States District Court for the District of Alaska, James K. Singleton, J., dismissed the action and holder appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) Congress intended to treat village as an eligible village under ANCSA with right to public land, and
(2) Congressional actions rendered moot a challenge to village's certification.
Affirmed.
In re Decora
396 B.R. 222
No. 08-cv-315-bbc
United States District Court, W.D. Wisconsin, October 28, 2008
Subjects: Ho-Chunk Nation of Wisconsin -- Members; Bankruptcy; Debtor and creditor; Banking law; Debtor and creditor -- Ho-Chunk Nation of Wisconsin.
*Synopsis: Chapter 7 trustee brought adversary proceeding against debtor and bank, seeking to avoid bank's security interest in debtor's right to receive tribal per capita distributions from tribal gaming revenues and compel turnover of postpetition funds received by bank. The Bankruptcy Court, Thomas S. Utschig, J., 387 B.R. 230, avoided bank's security interest and ordered bank to turn over to trustee all postpetition payments from tribe. Bank appealed.
*Holding: The District Court, Barbara B. Crabb, J., held that at the time debtor filed his petition, a hypothetical judgment lien creditor would not have had rights in debtor's per capita payments superior to those of bank under applicable tribal law, and so trustee could not exercise his strong-arm rights to defeat bank's security interest in the payments.
Reversed.
Southwest Casino and Hotel Corp. v Flyingman
2008 WL 4816516
No. Civ-07-949-C
United States District Court, W.D. Oklahoma, Oct. 27, 2008
Subjects: United States. Racketeer Influenced and Corrupt Organizations Act; Electronic surveillance; Contracts; Conspiracy; Cheyenne-Arapaho Tribes of Oklahoma; Tribal courts.
*Synopsis: (from the opinion) Plaintiff filed a complaint on August 24, 2007, alleging conversion, copyright infringement, tortious interference with contract, defamation, conspiracy, and conspiracy in violation of the federal RICO act.
*Holding: not yet available
United States v. Wahtomy
2008 WL 4693408
No. 08-96-E-BLW
United States District Court, D. Idaho, October 23, 2008
Subjects: Sovereign immunity -- Tribes; Tribes -- Officials and employees; Searches and seizures.
*Synopsis: (from the opinion) As part of his challenge to a Tribal Court search warrant, defendant Wahtomy served four subpoenas on Tribal members, including the Tribal Judge who issued the warrant, Judge Rosephine Coby. Wahtomy originally sought both documents and testimony, but has now dropped his request for documents, and narrowed his request for testimony to apply only to Judge Coby. The Tribes have filed a motion to quash the subpoenas on the ground of sovereign immunity.
*Holding: not yet available
Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization
2008 WL 4681630
No. C08-5562BHS
United States District Court of W.D Washington , October 21, 2008
Subjects: Real property tax; Jurisdiction -- United States; Confederated Tribes of the Chehalis Reservation, Washington; Taxation -- Law and legislation -- States -- Application -- Tribes.
*Synopsis: (from the opinion) In their complaint, Plaintiffs claim that the Court ?has jurisdiction over this action pursuant to 28 U.S.C ?? 1331, 1362 and 1367.? The Confederated Tribes of the Chehalis Reservation is a federally recognized Indian Entity. 73 F.R. 18554. In its complaint, the Tribe and CTGW seek a permanent injunction that would ?enjoin Defendants from seeking to collect, collecting or enforcing the collection of the personalty tax against Plaintiffs .? Complaint at 10. Plaintiffs allege that Defendants attempt to impose a tax against them which violates the ?U.S. Constitution and laws of the United States, including the Supremacy Clause of Article VI, ? 2, and federal common law.? Under these facts and allegations, the Court has jurisdiction over the Tribes' causes of action under both 28 U.S.C. ? 1331 (federal question) and 28 U.S.C. ? 1362 (Indian Tribes). The Court assumes jurisdiction over CTGW's causes of action under 28 U.S.C. ? 1367 as they form part of the same case or controversy which involve the joinder of the additional party. See 28 U.S.C. ? 1367(a). Defendants argue that (1) the Court should abstain from asserting jurisdiction over this action because Plaintiffs have available state remedies in which to raise their federal claims; and/or (2) the Court is divested of jurisdiction pursuant to the Tax Injunction Act, 28 U.S.C. ? 1341.
*Holding: not yet available
Yankton Sioux Tribe v. United States
84 Fed.Cl. 225
No. 05-1291 L
United States District Court of Federal Claims, October 10, 2008
Subjects: Tribal trust funds -- Yankton Sioux Tribe of South Dakota; Breach of trust -- United States; Fiduciary accountability; Disclosure in accounting; Federal-Indian trust relationship; Jurisdiction -- United States.
*Synopsis: Indian tribe filed complaint against the United States alleging trust mismanagement and a failure to properly account for trust funds. Defendant filed motion to dismiss.
*Holding: The United States Court of Federal Claims, Block, J., held that statute precluding Court of Federal Claims from exercising jurisdiction over a claim against the United States when the same claim is pending in another court was applicable to divest the Court of jurisdiction over tribe's claim.
Motion granted.
Comenout v. City of Puyallup
2008 WL 4534363
No. C07-5182
United States District Court of W.D Washington , October 7, 2008
Subjects: Indian Country (U.S.) -- Defined; Law -- States -- Application -- Tribes; Quinault Tribe of the Quinault Reservation, Washington -- Members; Zoning law -- Washington (State) -- Puyallup -- Application -- Indian Country (U.S.).
*Synopsis: (from the opinion) On April 17, 2007, Plaintiff Edward Comenout, Jr. filed this action challenging the City of Puyallup's attempts at enforcing municipal rules and regulations regarding billboards on property located at 908 River Road East, Puyallup, Washington. Dkt. 1. Plaintiff alleged that although not located on a reservation, the subject property is Indian land.
*Holding: not yet available
Eaton v. Mail
2008 WL 4534367
No. C08-5538FDB
United States Distrcit Court of W.D Washington , October 7, 2008
Subjects: Jurisdiction -- Quinault Tribe of the Quinault Reservation, Washington; Law -- Tribes -- Application -- Non-Indians; Visitation rights (Domestic relations); Grandparents; United States. Indian Child Welfare Act of 1978; Notice (Law); Adoption.
*Synopsis: (from the opinion) Plaintiffs filed a Complaint for declaratory judgment on September 5, 2008 seeking a declaration that (1) the Quinault Indian Nation lacks either personal or subject matter jurisdiction over Plaintiffs, who are non-Indians residing off the reservation, to enter any form of grandparent visitation order; (2) Plaintiffs' constitutional rights of freedom of association, due process, and ex post facto protection are violated by applying changes in the law that occur during the pendency of the action, which are effectively applied retroactively; and (3) the various rulings of the Quinault Tribal Court are invalid and without effect, nunc pro tunc.
*Holding: not yet available
United States v. Graham
2008 WL 4472082
No. CR. 03-50020-02
United States District Court, W.D. South Dakota, October 3, 2008
Subjects:
*Synopsis: Defendant moved to dismiss superseding indictment charging murder, major crime of murder within Indian country, and aiding and abetting.
*Holding: The District Court, Lawrence L. Piersol, J., held that indictment lacking defendant's Indian status was invalid.
Motion granted.
Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission
545 F.3d 1207
No. 05-72739, 05-74060
United States Court of Appeals, Ninth Circuit , September 30, 2008
Subjects: Snoqualmie Tribe, Washington; Hydroelectric power plants; Freedom of religion; United States. Religious Freedom Restoration Act of 1993; United States. National Historic Preservation Act of 1966; United States. Federal Water Pollution Control Act; Water rights - Tribes; Puget Sound Energy, Inc.; Snoqualmie Falls Hydroelectric Project.
*Synopsis: Indian tribe filed petition for review of an order of the Federal Energy Regulatory Commission (FERC) granting operator of hydroelectric power plant a license to operate for another 40 years. Operator cross-petitioned for review of FERC's decision to impose minimum water flow requirements that exceeded those established in Washington State Department of Ecology's water quality certification (WQC).
*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) substantial evidence supported FERC's decision that granting operator a license to operate did not substantially burden tribal members' free exercise of their religion, in violation of the Religious Freedom Restoration Act (RFRA);
(2) FERC did not fail to engage in government-to-government consultation with a federally recognized Indian tribe, as required by the National Historic Preservation Act (NHPA) and FERC regulations;
(3) operator had standing under the Clean Water Act (CWA) to challenge revised water flow requirements imposed by FERC;
(4) FERC had authority to impose minimum water flow requirements that exceeded those established in the WQC; and
(5) substantial evidence supported FERC's decision to impose minimum water flow requirements that exceeded those established in the WQC.
Petitions denied.
Thomas v. Rhode Island
542 F.3d 944
No. 07-1985
United States Court of Appeals, First Circuit, September 24, 2008
Subjects: Arrest; Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations; Searches and seizures -- Rhode Island.
*Synopsis: Tribe members arrested on tribal grounds brought ? 1983 action against police officers for wrongful arrest. Officers moved to dismiss for failure to state a claim, and members requested leave to amend complaint. The United States District Court for the District of Rhode Island, William E. Smith, J., 449 F.3d 16, dismissed action.
*Holding: The Court of Appeals, Lipez, Circuit Judge, held that:
(1) members waived probable cause argument on appeal, and
(2) members were not entitled to leave to amend complaint.
Affirmed.
Alaska v. Federal Subsistence Board
544 F.3d 1089
No. 07-35723
United States Court of Appeals, Ninth Circuit , September 23, 2008
Subjects: United States. Alaska National Interest Lands Conservation Act; Cheesh-Na Tribe (formerly the Native Village of Chistochina); Moose hunting -- Alaska; United States. Administrative Procedure Act; Hunting rights -- Alaska; Subsistence rights -- Alaska; Subsistence economy -- Alaska.
*Synopsis: State of Alaska brought action challenging decision of Federal Subsistence Board (FSB) granting residents of a rural community in Southeast Alaska a customary and traditional use determination (C & T determination) for moose throughout the relevant game management unit (GMU). The United States District Court for the District of Alaska, H. Russel Holland, J., granted summary judgment in favor of federal defendants and defendant-intervenors. State of Alaska appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) substantial evidence supported FSB's finding that residents took moose for subsistence use in relevant portion of GMU;
(2) FSB properly considered specific moose populations as directed by federal regulations, in granting C & T determination; and
(3) FSB's decision to grant C & T determination was not arbitrary and capricious.
Affirmed.
Oglala Sioux Tribe v. C & W Enterprises, Inc
542 F.3d 224
No. 07-3269
United States Court of Appeals, Eighth Circuit, September 5, 2008
Subjects: Mining leases -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Roads -- Contracts -- -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Sand and gravel plants -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Arbitration (Administrative law).
*Synopsis: Indian tribe brought action to enjoin contractor's state court action against it arising from dispute over road construction project. The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, 516 F.Supp.2d 1044, vacated two executions of judgment for contractor entered by state court and enjoined state court from confirming arbitration award against tribe. Contractor appealed.
*Holding: The Court of Appeals, Eighth Circuit Rosenbaum, District Judge, held that:
(1) tribe was not entitled to permanent injunction;
(2) tribe waived sovereign immunity through explicit waiver and agreement to arbitrate;
(3) tribe waived sovereign immunity by actively participating in arbitration; and
(4) tribe's waiver of sovereign immunity extended to state court enforcement.
Vacated and remanded.
Pelt v. Utah
539 F.3d 1271
No. 06-4046, 06-4164
United States Court of Appeals, Tenth Circuit, September 3, 2008
Subjects: Navajo Indians -- San Juan County (Utah); Utah; Class actions (Civil procedure); Trusts and trustees -- Accounting -- Utah; Oil and gas leases -- Royalties.
*Synopsis: In class action, beneficiaries of oil and gas royalty fund administered by state for the benefit of members of the Navajo Nation sought a fiduciary accounting of trust fund activities. The United States District Court for the District of Utah, Tena Campbell, J., 2006 WL 1148818, ruled against state on its argument that all or a portion of the beneficiaries' claim was precluded by three prior cases to which the beneficiaries were not parties, and state appealed.
*Holding: The Court of Appeals, Robinson, Circuit Judge, held that:
(1) beneficiaries were not bound by the judgments in previous class actions to which the beneficiaries were not parties since their interests in prior cases, which were brought on behalf of other fund beneficiaries, were not adequately represented, and
(2) beneficiaries were not bound by the judgment in previous non-class action.
Affirmed and remanded.
San Juan CItizens Alliance v Norton
2008 WL 4949120
No. CIV 04-1038 JCH/RLP
United States District Court, D. New Mexico September 30, 2008
Subjects:
*Synopsis: Collection of conservation groups, individual ranchers, and Native American interest groups petitioned for review of agency action, concerning a dispute over whether the United States Bureau of Land Management (BLM) followed federal laws when approving a new plan for land management in northwest New Mexico's San Juan Basin, which included additional oil and gas development.
*Holding: The District Court, Judith C. Herrera, J., held that:
(1) alternatives considered by BLM were adequate under National Environmental Policy Act (NEPA);
(2) BLM took requisite hard look at prevention of significant deterioration (PSD) increment consumption;
(3) hard look was taken at effect of development on ozone levels;
(4) hard look was taken at mitigation measures;
(5) consultations with Native American tribes were sufficient; and
(6) challenge to plan under Federal Land Policy and Management Act (FLPMA) was not ripe for review.
Petition denied.
Akiachak Native Community v. Department of the Interior
2008 WL 4571977
No. 06-0969
United States District Court of District of Columbia, September 30, 2008
Subjects: Land into trust -- Akiachak Native Community (AK); United States. Administrative Procedure Act; United States. Indian Reorganization Act; Land into trust -- Tribes -- Alaska; United States. Indian Reorganization Act.
*Synopsis: In action challenging validity of regulations prohibiting the Secretary of the Interior (DOI) from acquiring land in Alaska for placement into trust status on behalf of most federally recognized Indian tribes, State of Alaska moved to intervene.
*Holding: The District Court, Richard W. Roberts, J., held that:
(1) State's motion to intervene as of right was timely;
(2) State had an interest sufficient to support its claim to intervention;
(3) State was not adequately represented by existing parties;
(4) State had Article III standing; and
(5) Attorney General of Alaska had authority to waive that State's Eleventh Amendment immunity.
Motion granted.
St. Croix Chippewa Indians of Wisconsin v. Kempthorne
2008 WL 4449620
No. 07-2210
United States District Court of District of Columbia, September 30, 2008
Subjects: Land into trust; United States. Bureau of Indian Affairs; Indian gaming -- St. Croix Chippewa Indians of Wisconsin; Casinos -- Off Indian reservations -- St. Croix Chippewa Indians of Wisconsin.
*Synopsis: (from the opinion) This lawsuit stems from St. Croix's application to Interior to have off-reservation land taken into federal trust for the purpose of establishing a gaming facility.
*Holding: not yet available
Shinnecock Indian Nation v. Kempthorne
2008 WL 4455599
No. 06-CV-5013
United States Distrcit Court of E.D. New York, September 30, 2008
Subjects: Shinnecock Indian Nation, New York -- Legal status, laws, etc.; United States. Administrative Procedure Act; Federally recognized Indian tribes -- Defined; Tribes -- Land tenure; United States. Trade and Intercourse Act; Indian gaming -- Shinnecock Indian Nation, New York; Casinos -- Design and construction -- New York; United States. Bureau of Indian Affairs.
*Synopsis: (from the opinion) Plaintiff the Shinnecock Indian Nation brings this action against defendants Dirk Kempthorne, Secretary of the Department of the Interior, James E. Cason, Associate Deputy Secretary of the Department of the Interior, and the United States Department of the Interior, pursuant to the Administrative Procedure Act, 5 U.S.C. ? 551, arising from Interior's alleged continuing refusal to acknowledge the federal Indian tribal status of the Nation, as well as Interior's alleged refusal to fulfill its trust obligations regarding the Nation's land claim pursuant to the Indian Non-Intercourse Act of 1834, 25 U.S.C. ? 177.
*Holding: not yet available
Adams v. Mosley
Civil Action No. 2:05cv352-MHT
United States District Court, M.D. Alabama , September 25, 2008
*Holding: not available
Fort Independence Indian Community v. California
2008 WL 6137129
No. CIV. S-08-432 LKK/KJM
United States District Court, E.D. California , September 10, 2008
Subjects: not yet available
*Synopsis: (from the opinion) This case arises from a dispute involving class III gaming compact negotiations between the State of California and plaintiff Fort Independence Indian Community, a federally recognized Indian tribe located in Inyo County, California. Plaintiff alleges that as a condition of entering into a Tribal-State compact, the State demanded that the Tribe pay a certain percentage of its gaming revenue to the State and that the Tribe cease participation in the Revenue Sharing Trust Fund (RSTF). Plaintiff argues that these demands constitute an unlawful tax, fee, or other assessment on gaming operations and are therefore impermissible subjects for negotiation under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. ?? 2701 et seq. In addition, plaintiff alleges that the state violated the Equal Protection Clauses of the United States and California Constitutions by treating the Tribe differently than the Yurok Tribe located in Humboldt County, California.
*Holding: not yet available
City of Vancouver v. Hogen
2008 WL 4443806
No. C08-5192BHS
United States Distrcit Court of W.D. Washington, September 24, 2008
Subjects: Cowlitz Indian Tribe, Washington; Indian gaming -- Cowlitz Indian Tribe, Washington; Gambling on Indian reservations -- Washington (State); Indian Country (U.S.) -- Defined; United States. Administrative Procedure Act; United States. Indian Gaming Regulatory Act; United States. Declaratory Judgment Act; Gambling -- Law and legislation -- Cowlitz Indian Tribe, Washington; Clark County (Wash.).
*Synopsis: (from the opinion) This dispute arises out of the Cowlitz Indian Tribe's attempt to construct and operate a gaming facility in Clark County Washington.
*Holding: not yet available
Chao v. Spokane Tribe of Indians
2008 WL 4443821
No. CV-07-0354-CI
United States Distrcit Court of E.D. Washington, September 24, 2008
Subjects: Spokane Tribe of the Spokane Reservation, Washington; Casinos -- Officials and employees; United States. Fair Labor Standards Act of 1938 -- Application -- Tribes -- Members; Indian business enterprises -- On Indian reservations.
*Synopsis: (from the opinion) The Department of Labor (DOL) filed its Petition for Enforcement of an Administrative Subpoena after the Tribe refused to provide requested wage and hour records for employees working at the Casino. The subpoena is part of an investigation into alleged Fair Labor Standards Act (FLSA) violations launched as a result of a complaint forwarded to the Washington State Department of Labor and Industries in August 2007. The Tribe responded to the subpoena with the instant motion to quash, contending it is a sovereign nation that is not subject to the provisions of the FLSA. DOL argues that the Tribe, even as a sovereign nation, is subject to the FLSA-a statute of general applicability.
*Holding: not yet available
Boye v. United States
2008 WL 4416733
No. 07-195 C
United States Court of Federal Claims, September 24, 2008
Subjects: Public safety -- Tribes -- Finance; Breach of contract; Public contracts -- United States; Navajo Nation, Arizona, New Mexico & Utah -- Officials and employees; United States. Bureau of Indian Affairs; Discovery (Law).
*Synopsis: Current and former employees of the Navajo Nation Division of Public Safety (DPS) brought suit against the United States for breach of contract based on their purported status as third-party beneficiaries of various contracts between the Navajo DPS and the Bureau of Indian Affairs (BIA). Plaintiffs alleged that they did not receive wages and benefits equal to the wages and benefits paid to their BIA counterparts, as required by the relevant contract. Plaintiffs filed motion to supplement response to motion to dismiss, motion to expand scope of discovery, and motion to compel discovery.
*Holding: The United States Court of Federal Claims, Sweeney, J., held that:
(1) plaintiffs were not entitled to expand scope of discovery to include documents pertaining to memorandum of understanding between federal agencies regarding compensation for BIA criminal investigators;
(2) plaintiffs were not entitled to compel further response to interrogatories propounded to awarding officials seeking evidence of intent to confer third-party beneficiary status on plaintiffs; and
(3) plaintiffs were not entitled to compel production of documents and correspondence related to contracting parties' compliance with and enforcement of pay provisions of contracts.
Motion to supplement granted; motions to expand and compel discovery denied.
Comanche
Nation v. United States
2008 WL 4426621
No. CIV-08-849-D
United States Distrcit Court of W.D. Oklahoma, September 23, 2008
Subjects: National Register of Historic Places; Buildings -- Design and construction -- Oklahoma -- Fort Sill; United States. Religious Freedom Restoration Act of 1993; Sacred sites -- Protection; Medicine Bluffs (Okla.); United States. National Historic Preservation Act of 1966; Comanche Nation, Oklahoma; Indians of North America -- Rites and Ceremonies -- Protection.
*Synopsis: (from the opinion) Plaintiffs' claims in this action are based on the site selected for the construction of a 43,000 square foot building, known as the Training Support Center, at Fort Sill, Oklahoma. The building site is directly south of Medicine Bluffs, a natural landform which has been listed on the National Register of Historic Sites since 1974 because of its historical importance, its role in the founding of Fort Sill, and its religious and cultural significance to Native Americans. Plaintiffs assert two claims for relief: 1) a violation of the Religious Freedom and Restoration Act (?RFRA?), 42 U.S.C. ? 2000bb et seq. , based on the allegation that construction of the TSC at its current site substantially interferes with the exercise of Plaintiffs' religious beliefs; and 2) a violation of the National Historic Preservation Act of 1966 (?NHPA?), 16 U.S.C. ? 470 et seq. , based on the contention that Defendants failed to make a reasonable and good faith effort to consult with the Comanche Nation to identify and resolve any adverse effects on Medicine Bluffs resulting from construction of the TSC. Plaintiffs seek a permanent injunction prohibiting the construction of the TSC at its current site and an order directing the Defendants to initiate and engage in a good faith consultation with Plaintiffs and other interested parties to select a new location at a site having no adverse impact on their culture or religious practices.
*Holding: not yet available
Tunica- Biloxi Tribe of Louisiana v. United States
577 F.Supp.2d 382
No. 02-2413
United States District Court, District of Columbia, September 22, 2008
Subjects: Public contracts -- United States; Medical care -- Tribes -- Finance; United States. Contract Disputes Act of 1978; United States. Dept. of the Interior; United States. Dept. of Health and Human Services; United States. Indian Health Service; Medical care, Cost of; United States. Indian Self-Determination and Education Assistance Act.
*Synopsis: Indian tribe and tribal organization brought action under Contract Disputes Act (CDA) challenging manner in which Secretary of Department of Health and Human Services and Secretary of Department of Interior (DOI) calculated appropriate indirect cost rate to be used in self-determination contracts with Indian Health Service (IHS) entered into pursuant to Indian Self-Determination and Education Assistance Act. Government moved to dismiss complaint or for summary judgment, and plaintiffs moved for partial summary judgment.
*Holding: The District Court, Reggie B. Walton, J., held that:
(1) plaintiffs did not have standing to challenge DOI's approval of indirect cost rates;
(2) plaintiffs were not required to exhaust DOI's internal appeals process before filing action; and
(3) IHS could not pay more than its pro rata share of indirect costs incurred by plaintiffs.
Motions granted in part and denied in part.
Mashantucket v. Town of Ledyard
2008 WL 4298377
No. 06CV1212
United States District Court, Conneticut, September 18, 2008
Subjects: Industrial equipment leases -- Mashantucket Pequot Tribe of Connecticut -- Taxation -- Ledyard (Conn. : Town); Indian gaming -- Mashantucket Pequot Tribe of Connecticut; Slot machines -- Taxation -- Ledyard (Conn. : Town).
*Synopsis: (from the opinion) In this action, the Mashantucket Pequot Tribe seeks declaratory and injunctive relief regarding a personal property tax imposed by the Town of Ledyard on gaming machines leased by the Tribe from AC Coin. Personal property belonging to non-residents that is located in the Town of Ledyard is subject to personal property taxation under Conn. Gen.Stat. ? 12-43. The statute requires each non-resident owner of tangible personal property located in any town for three months or more to file a declaration of such personal property with the assessors of the town in which the property is located.
*Holding: not yet available
United States v. Newell
578 F.Supp.2d 207
No. 1:08-CR-56-P-S
United States DIstrict Court of Maine, September 18, 2008
Subjects: Maine. Indian Claims Settlement Act; Trials (Conspiracy); Jurisdiction -- United States; United States. Indian Self-Determination and Education Assistance Act; Sovereign immunity -- Passamaquoddy Tribe of Maine -- Officials and employees.
*Synopsis: Native American defendant was charged with conspiracy to defraud United States. Defendant moved to dismiss.
*Holding: The District Court, George Z. Singal, Chief Judge, held that:
(1) Maine Indian Claims Settlement Act did not remove federal criminal jurisdiction over prosecution, and
(2) Indian Self-Determination and Education Assistance Act did not apply to defendant's prosecution.
Motion denied.
Weather Barrier Construction Ltd v. Tonkawa Tribe of Oklahoma
2008 WL 4372367
No. CIV.08-663-M
United States Distrcit Court of W.D. Oklahoma, September 18, 2008
Subjects: Tonkawa Tribe of Indians of Oklahoma; Indian gaming; Gambling on Indian reservations -- Oklahoma; United States. Indian Gaming Regulatory Act; Casinos -- Design and construction -- Oklahoma -- Kay County; Jurisdiction -- United States; Contracts.
*Synopsis: (from the opinion) In the Complaint, plaintiffs invoke the jurisdiction of the Court pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. ? 2701, et seq. , and seek injunctive relief due to a breach of an alleged construction contract between the parties. Defendant now moves to dismiss the instant action for lack of subject matter jurisdiction.
*Holding: not yet available
Oenga v. United States
83 Fed.Cl. 594
No.06-491L
United States Court of Federal Claims, September 18, 2008
Subjects: Indian allotments -- Alaska; Breach of trust -- United States; Oil and gas production -- On Indian reservations; Breach of trust -- United States; Trusts and trustees -- Accounting; Payment -- United States; United States. Indian Mineral Leasing Act of 1938; Fiduciary accountability.
*Synopsis: Owners of Alaska Native allotment brought suit against the United States alleging that the government breached its trust obligations in connection with a lease giving as oil company the right to operate oil production facilities on the allotment. Lessee and working interest owners of oil and gas leases intervened as defendants. Plaintiffs filed motion for partial summary judgment, and government filed motion to dismiss, or in the alternative, for summary judgment. Intervenors filed motion for partial summary judgment.
*Holding: The United States Court of Federal Claims, Firestone, J., held that:
(1) Indian Trust Accounting Statute (ITAS) was not applicable to claim that government breached its trust obligations by failing to require or collect oil and gas royalties from oil company which held lease;
(2) ITAS was not applicable to claim that government breached its trust obligations by failing to require or collect a fair annual rental from oil company; and
(3) government had money-mandating duty to take action against violations of lease, and it breached that duty with respect to use of allotment for development and production of oil in participating area not encompassed by the lease.
Plaintiffs' motion granted in part and denied in part; defendants' motions granted in part and denied in part.
Ramah Navajo School Board, INC. v. United States
83 Fed.Cl. 786
No. 08-19C
United States Court of Federal Claims, September 18, 2008
Subjects: Ramah Navajo School Board; Contracts - United States; United States. Indian Self-Determination and Education Assistance Act; Overhead costs; Tribal self-determination; Public health -- Indian Country (U.S.); Medical care -- On Indian reservations; Contractors; United States. Contract Disputes Act of 1978; Concurrent jurisdiction.
*Synopsis: Contractor which operated public health programs and facilities on Indian reservation brought suit against the United States to recover certain indirect contract support costs allegedly mandated by the Indian Self-Determination and Education Assistance Act (ISDA). Defendant filed motion to dismiss.
*Holding: The United States Court of Federal Claims, Bush, J., held that:
(1) statute precluding concurrent jurisdiction was applicable to divest the Court of jurisdiction over claim of contractor that the government failed to pay indirect contract support costs with respect to fiscal years 1995-2003, and
(2) contractor's appeal of decision of contracting officer denying its claims for indirect contract support costs for fiscal years 1993-1996 was barred as untimely under the Contract Disputes Act (CDA).
Motion granted
Louis v. Stockbridge-Munsee
2008 WL 4282589
No. 08-C-558
United States District Court, E.D. Wisconsin, September 16, 2008
Subjects: Stockbridge Munsee Community, Wisconsin -- Officials and employees; Employees, Dismissal of; Labor laws and legislation -- Stockbridge Munsee Community, Wisconsin; Jurisdiction -- United States.
*Synopsis: (from the opinion) Plaintiff Elton Louis filed this action on June 30, 2008, pursuant to 42 U.S.C. ? 1983 and the Wisconsin Fair Employment Act (?WFEA?), Wis. Stats. ? 111.01 et seq. , claiming that Defendant Stockbridge-Munsee Mohican Community (the ?Tribe?), a federally recognized Indian tribe, deprived him of property without due process of law and his right to employment in violation of the United States and Wisconsin Constitutions, and the WFEA. The Tribe has now filed a motion to dismiss on the ground that its tribal sovereign immunity prevents Louis from maintaining such a lawsuit. In addition, the Tribe claims that the Court lacks subject matter jurisdiction over the dispute, and that in any event, Louis has failed to state a cognizable claim under either 42 U.S.C. ? 1983 or the WFEA. For the reasons stated herein, the Tribe's motion to dismiss will be granted.
*Holding: not yet available
Sac and Fox Nation of Missouri v. Kempthorne
2008 WL 4186890
No. 96-4129-RDR
United States District Court, District of Kansas, September 10, 2008
Subjects: Land into trust -- Kansas; Wyandotte Nation, Oklahoma -- Land tenure; United States. Quiet Title Act; Sac & Fox Nation of Missouri in Kansas and Nebraska; Prairie Band of Potawatomi Indians, Kansas.
*Synopsis: (from the opinion) In summary, the court believes the time of filing rule should not be applied in this case to find a waiver of sovereign immunity for the following reasons. First, at the time of filing, the facts alleged by plaintiffs did not support jurisdiction over a quiet title action. This point distinguishes this case from the quiet title cases cited by plaintiffs. Second, it is a critical fact that the relief desired by plaintiffs in this case has changed since the time of filing because sovereign immunity must be considered in the context of the relief being requested. Third, under ? 2409a, sovereign immunity has not been waived in a situation in which plaintiffs are asking for land to be removed from trust status and, therefore, this case is moot. As noted, the time of filing rule does not apply to issues of mootness. Fourth, plaintiffs may argue that there are cases in which government action after the commencement of litigation failed to oust the court's jurisdiction. But, in those cases, the facts at the time of filing supported the jurisdiction of the court for the relief that was being requested at that time of the case. Here, the facts at the time of filing do not support a quiet title action, and the facts at the present time do not support jurisdiction over a quiet title action. Finally, the equitable factors in favor of finding a waiver of sovereign immunity are ordinarily given little force.
*Holding: not yet available
Andrade ex. rel. Goodman v. United States
2008 WL 4183011
No. 05-3240-PHX-MHM
United States District Court, District of Arizona, September 8, 2008
Subjects: United States. Federal Tort Claims Act; Foster children; Child sexual abuse; Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; United States.
*Synopsis: (from the opinion) Plaintiff requests that the Court find that the United States is liable under the FTCA for the alleged negligent acts of Child Protection Services (CPS) because ?[w]ithout a question CPS worked at the order and direction of Social Services? and ?Social Services would tell CPS where they could place the children. Defendant contends that the United States may not be held liable under the FTCA for the alleged negligent acts of CPS because CPS and its employees are not deemed employees of the Federal Government for purposes of the FTCA. Defendant also contends that Plaintiff should be judicially estopped from arguing that the United States is liable for the acts of CPS and its employees.
*Holding: not yet available
Swinomish indian tribal community v.
Skagit County Dike district No. 22
2008 WL 4172244
No. C07-1348RAJ
United States District Court, W.D. of Washington, September 5, 2008
Subjects:
*Synopsis: Indian tribe filed citizen suit alleging that county dike district and its commissioners violated Clean Water Act (CWA) and Endangered Species Act (ESA) due to construction of tidegates in river delta. Parties filed cross-motions for summary judgment.
*Holding: The District Court, Richard A. Jones, J., held that:
(1) CWA applied to district's discharge of dredged and fill materials in course
of tidegate replacements;
(2) district's replacement of tidegates did not fall within scope of CWA
exemption for emergency reconstructions; and
(3) tidegate caused take of threatened chinook salmon.
Tribe's motion granted.
Miami Tribe v. United States
2008 WL 4172244
Civil Action No. 03-2220-DJW
United States District Court, District of Kansas, September 5, 2008
Subjects: Miami Tribe of Oklahoma; Breach of trust -- United States; Miami Tribe of Oklahoma -- Land tenure; Right of property -- Miami Tribe of Oklahoma; Indian land transfers; United States. Indian Land Consolidation Act; Jurisdiction -- Miami Tribe of Oklahoma.
*Synopsis: (from the opinion) This matter comes before the Court on Miami Tribe of Oklahoma's Motion for Summary Judgment on Count II. Plaintiff Miami Tribe of Oklahoma requests that the Court enter summary judgment in its favor on its breach of trust claim contained in Count II of its Complaint. It contends that, with respect to its breach of trust claim, there are unequivocal breaches of Defendants' duties to ?deal fairly? with Miami Tribe by following statutes and Congressional policy, to maintain the trust status of Indian land, to recognize and maintain Miami Tribe's jurisdiction over Miami Reserve, and to reasonably and timely process Indian land transfer applications and comply with the Indian Land Consolidation Act. It seeks equitable relief in the form of a permanent injunction to prevent continuing and future breaches of trust. As set forth below, the motion is denied without prejudice.
*Holding: not yet available
Kendall v. Chief Leschi School , Inc.
2008 WL 4104021
No. C07-5220 RBL
United States District Court, Western District of Washington, September 3, 2008
Subjects: United States. False Claims Act; Sovereign immunity - Tribes; Puyallup Tribe of the Puyallup Reservation, Washington; Jurisdiction - United States; Tribal schools. Chief Leschi School (Wash.).
*Synopsis: (from the opinion) First, the False Claims Act does not waive sovereign immunity. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 779, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (holding a sovereign is not a ?person? subject to a False Claims Act suit). As a sovereign, the Puyallup, like the State of Vermont, are free from suit under this act. Second, there is nothing in the pleadings to indicate that the Puyallup have waived their sovereign immunity. The Court lacks subject matter jurisdiction over the Puyallup
*Holding: not yet available
Miccosukee Tribe of Indians of Florida v. United States
574 F.Supp.2d 1360
No.08-21703-CIV
United States District Court, S.D. Florida, September 2, 2008
Subjects: Roads -- Design and construction; Everglades National Park (Fla.); Tamiami Trail (Fla.); United States. Everglades National Park Protection and Expansion Act of 1989; Water diversion; Miccosukee Tribe of Indians of Florida; Environmental regulation -- United States; Standing to sue.
*Synopsis: Native-American tribe brought action against United States, alleging violation of Department of Transportation Act arising from highway modification project impacting national park in which tribe's reserved land was located. United States moved to dismiss.
*Holding: The District Court, Ursula Ungaro, J., held that:
(1) tribe did not have Article III standing, and
(2) tribe did not have special Congressional standing.
Motion granted.
United States v. Mahoney
2008 WL 4613959
No. 07-30429
United States Court of Appeals. Ninth Circuit, August 29, 2008
Subjects:.United States. Contraband Cigarette Trafficking Act; Distributors (Commerce) -- Cigarettes; Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho -- Members.
*Synopsis: Defendant was convicted in the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., of conspiracy to violate Contraband Cigarette Trafficking Act (CCTA) and conspiracy to launder money. Defendant appealed.
*Holding: The Court of Appeals held that:
(1) defendant was not entitled to jury instruction that government must prove defendant knew his actions violated law, and
(2) sentence of 33 months was reasonable.
Affirmed.
Marceau v. Blackfeet Housing Authority
540 F.3d 916
No. 04-35210
United States Court of Appeals, Ninth Circuit, August 22, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Exhaustion of tribal remedies; Trusts and trustees -- United States; United States. Administrative Procedure Act.
*Synopsis: Native American homeowners and lessees who resided in homes built pursuant to the Mutual Help and Homeownership Opportunity Program (MHHOP) brought class action against Department of Housing and Urban Development (HUD), tribal housing authority, and its members, alleging breach of contract and other claims. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.
*Holding: On denial of petition for rehearing, the Court of Appeals, Graber, Circuit Judge, held that:
(1) plaintiffs were required to exhaust tribal court remedies before bringing claims against Housing Authority;
(2) HUD did not, by funding projects of tribal housing authority, assume any trust responsibility toward plaintiffs;
(3) remand was required for factual development on issue of whether HUD's wood foundation requirements violated Administrative Procedure Act (APA);
(4) request for injunction ordering HUD to rebuild or repair homes was not a request for "money damages" precluding APA claim, even if money damages could substitute for injunction; and
(5) readopting in part opinion at 455 F.3d 974, District Court lacked jurisdiction under the Little Tucker Act over breach of contract action.
Affirmed in part, reversed in part, and remanded.
Rincon Band of Luiseno Mission Indians v. Schwarzenegger
2008 WL 3822538
No. 06-55259
United States Court of Appeals, Ninth Circuit, August 8, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Gambling -- Law and legislation -- United States; Gambling on Indian reservations -- California; Indian gaming - Intergovernmental agreements; Rincon Band of Luiseno Mission Indians of the Rincon Reservation, California; Indian gaming; Slot machines.
*Synopsis: Indian tribe brought suit against State of California. The United States District Court for the Southern District of California, Thomas J. Whelan, J., dismissed claims for declaratory judgment regarding number of slot machine licenses available to Indian tribes who were parties to essentially similar compacts and claim for reliance damages. Tribe appealed.
*Holding: The Court of Appeals held that:
(1) other tribes were not necessary parties to claim for declaratory relief, and
(2) Eleventh Amendment barred claim against State of California for reliance damages.
Affirmed in part, reversed in part, and remanded.
Navajo Nation v. U.S. Forest Service
535 F.3d 1058
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit, August 8, 2008
Briefs & Pleadings
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: United States. Forest Service; Arizona Snow Bowl (Ariz.) -- Remodeling; Rites and ceremonies -- Navajo Nation, Arizona, New Mexico & Utah; Coconino National Forest (Ariz.); Sacred sites -- Navajo Nation, Arizona, New Mexico & Utah; Sewage.
*Synopsis: Numerous Indian tribes, their members, and environmental organization brought action challenging the Forest Service's decision to authorize proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by tribes. Following bench trial, the United States District Court for the District of Arizona, Paul G. Rosenblatt, J., 408 F.Supp.2d 866, held that the proposed use did not violate the Religious Freedom Restoration Act (RFRA) and granted Forest Service's motion for summary judgment on claims brought under National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Appeal was taken. The Court of Appeals, W. Fletcher, Circuit Judge, 479 F.3d 1024, affirmed in part, reversed in part and remanded, and application for rehearing en banc was granted.
*Holding: The Court of Appeals, Bea, Circuit Judge, held that:
(1) proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by some Indian tribes would not ?substantially burden? free exercise of religion by tribal members, within meaning of the RFRA;
(2) Final Environmental Impact Statement (FEIS) prepared by Forest Service satisfied requirements of NEPA; and
(3) in preparing FEIS, Forest Service's consultation process concerning effects on historic properties to which Indian tribes attached religious and cultural significance was substantively and procedurally adequate under the NHPA.
Affirmed.
Related News Stories: Snowbowl case might reach Supreme Court (JackCentral) 10/23/08.
Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
536 F.3d 1034
No. 06-16145
United States Court of Appeals, Ninth Circuit, August 8, 2008
See above for more information on the October 24 order amending opinion and denying the petition for panel rehearing and petition for rehearing en banc and amended opinion.
Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming.
*Synopsis: Indian tribe brought suit against California, Governor, and Gambling Control Commission, asserting claim for breach of tribal-state gaming compact, entered under Indian Gaming Regulatory Act (IGRA), and seeking declaratory and injunctive relief regarding Commission's interpretation of compact and unilateral administration of licensing for electronic gaming devices. The United States District Court for the Eastern District of California, Frank C. Damrell, J., 2006 WL 1328267, granted California's motion for judgment on pleadings, after determining that other Indian tribes were required parties but had sovereign immunity. Tribe appealed.
*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) absent tribes were not required parties for breach of compact claim regarding limit on number of licenses;
(2) absent tribes were not required parties for breach of compact claim regarding fourth-tier placement in license draw, except as related to existing licenses;
(3) absent tribes were not required parties for breach of compact claim regarding refund of license fee; and
(4) absent tribes were not required parties for breach of compact claim regarding Commission's unilateral administration of licensing.
Affirmed in part, reversed in part, and remanded.
Turner v. Oklahoma
2008 WL 4130661
No. CIV-08-0543-F
United States District Court, Western District of Oklahoma, August 29, 2008
Subjects: Law - States - Application - Indian Country (U.S.); Commerce - Law and legislation -- Oklahoma; Kiowa Indian Tribe of Oklahoma -- Members; Cockfighting; Jurisdiction - Oklahoma; Jurisdiction - Tribes.
*Synopsis: (from the opinion) This action is brought by plaintiff, Michael Turner, on his own behalf and on behalf of the Kiowa Tribe of which he alleges he is a member. The complaint is entitled "Petition for Injunctive Relief" and primarily seeks injunctive relief preventing defendants from entering Kiowa tribal land for the purpose of enforcing, against plaintiff or any other members of the Kiowa Tribe, Oklahoma's anti-cock-fighting laws. The complaint also seeks "judicial affirmation of the Kiowa Tribe's right to exercise jurisdiction on its own lands" and "judicial affirmation that the State of Oklahoma lacks jurisdiction to regulate Indian commerce on Kiowa lands." The court construes these requests as seeking declaratory relief.
*Holding: not yet available
Sault Ste. Marie Tribe of Chippewa Indians v. United States
576 F.Supp.2d 838
No. 2:06-cv-00276
United States District Court, Western District of Michigan, August 29, 2008
Subjects: Gambling -- Law and legislation -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Tribal law drafting -- Sault Ste. Marie Tribe of Chippewa Indians of Michigan -- Federal supervision; National Indian Gaming Commission (U.S.); United States. Administrative Procedure Act; Gambling -- On Indian reservations -- Michigan -- St. Ignace; United States. Indian Gaming Regulatory Act.
*Synopsis: Sault Ste. Marie Tribe of Chippewa Indians filed action against United States of America, National Indian Gaming Commission (NIGC), and Department of Interior (DOI) seeking review of agency action pursuant to Administrative Procedure Act (APA) relating to Secretary of Interior's right to proclaim new Indian reservations. Tribe filed motion for summary judgment.
*Holding: The District Court, R. Allan Edgar, J., held that:
(1) Indian canon of construction applied to interpret provisions of IGRA where it conflicted with Chevron deference;
(2) agency definition of term, ?reservation,? was not entitled to Chevron deference; and
(3) trust parcel fit ?contiguous to the boundaries of a reservation? exception.
Motion granted.
Related News Stories: Michigan tribe wins gaming rights case (Indianz.com) 9/2/08
Schaghticoke Tribal Nation v Kempthorne
2008 WL 4000179
No. 3:06-cv-00081
United States District Court, D. Connecticut, August 26, 2008
Subjects:
*Synopsis: Group asserting that it was an Indian Tribe petitioned for review of Reconsidered Final Determination (RFD) of Department of the Interior (DOI) concluding that the group did not meet the federal acknowledgment requirements to constitute an Indian Tribe. State of
*Holding: The District Court, Peter C. Dorsey, J., held that:
(1) court would consider evidence outside the administrative record;
(2) RFD was not product of undue political influence by federal or state legislators;
(3) RFD was not arbitrary and capricious;
(4) Associate Deputy Secretary's issuance of RFD did not violate the Appointments Clause; and
(5) Associate Deputy Secretary's issuance of RFD did not violate the Vacancies Reform Act (VRA).
Ordered accordingly.
National Parks Conservation Association, Inc. v. United States Army Corps of Engineers
574 F.Supp.2d 1314
No. 06-22557-CIV
United States District Court,S.D. Florida, August 22, 2008
Subjects: United States. Federal Water Pollution Control Act; Wetlands -- Miami-Dade County (Fla.); Water diversions; United States. National Environmental Policy Act of 1969; United States. Administrative Procedure Act; United States. Endangered Species Act of 1973.
*Synopsis: Environmental organizations brought action against the United States Army Corps of Engineers, alleging that Corps' extension and modification of Clean Water Act (CWA) permit to fill wetlands, as well as opinion of the Fish and Wildlife Service (FWS) issued in conjunction with the extension, violated the CWA, the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA).
*Holding: The District Court, Adalberto Jordan, J., held that:
(1) expiration of the permit rendered moot organizations' claims for declaratory and injunctive relief under the CWA, ESA, and APA;
(2) expiration of the permit rendered moot organizations' claim under NEPA for injunctive relief;
(3) expiration of the permit rendered moot organizations' claim under NEPA for declaratory relief; and
(4) exception to mootness doctrine for issues capable of repetition yet evading review did not apply.
Complaint dismissed.
Nez Perce Tribe v. United States
83 Fed.Cl. 186
No. 06-910L
United States Court of Federal Claims, August 22, 2008
Subjects: Trusts and trustees - Accounting; Fiduciary accountability - United States; Tribal trust funds - Accounting; Breach of trust; Breach of contract - United States; Federal-Indian trust relationship; Class actions (Civil procedure) - United States; Tribes - Claims vs. - United States; Nez Perce Tribe of Idaho; Jurisdiction - United States.
*Synopsis: Indian tribe brought suit against the United States claiming that the government breached its trust responsibilities to the tribe and that such breaches caused the tribe to sustain financial losses.
*Holding: The United States Court of Federal Claims, Lettow, J., held that:
(1) when a complaint is filed in the Court of Federal Claims prior to the filing of an overlapping complaint in another court on the same day, the statute precluding jurisdiction by the Court over a claim against the United States which is pending in another court does not divest the Court of jurisdiction over that first-filed complaint, and
(2) plaintiff proved by a preponderance of the evidence that its Court of Federal Claims complaint was filed earlier than its complaint filed the same day in district court asserting the same claim.
So ordered.
Schaghticoke Tribal Nation v. Kempthorne
2008 WL 4000179
No. 06-910L
United States Court of Federal Claims, August 22, 2008
Subjects: Schaghticoke Tribal Nation (Conn.) -- Recognition; Federal recognition of Indian tribes -- United States; Indian land transfers -- Schaghticoke Tribal Nation (Conn.); United States. Administrative Procedure Act.
*Synopsis: (from the opinion) This case concerns the politically loaded question of whether the Schaghticoke Tribal Nation constitutes an Indian tribe within the meaning of federal law as provided in the federal acknowledgment regulations, 25 C.F.R. Part 83 (1994). On October 11, 2005, Associate Deputy Secretary of the Interior James E. Cason issued a Reconsidered Final Determination concluding that the STN did not meet the federal acknowledgment requirements. On January 12, 2006, STN filed a petition for review in this Court claiming that the Department of the Interior's RFD was arbitrary and capricious under the Administrative Procedure Act (APA), the result of improper political influence in violation of STN's due process rights
*Holding: not yet available
Related News Stories: Rejected: Schaghticoke tribe loses in court (News-Times) 9/2/08
Prudential Insurance Company v. Goodiron
2008 WL 3911245
No. 4:08-cv-033
United States District Court, D. North Dakota, August 20, 2008
Subjects: Form of contract; Indians of North America - Social life and customs; Wills; Probate law and practice -- North Dakota.
*Synopsis: (from the opinion) Nathan P. Goodiron also contends that the decedent verbally instructed him as to how the decedent wanted the life insurance proceeds distributed in the event of his untimely death. Nathan P. Goodiron contends that Native American tradition and custom recognizes verbal agreements and that verbal agreements or instructions are ?wills? which are binding in a court of law.
It is well-established under North Dakota law that a will must be in writing. See N.D.C.C. ? 30.1-08-02. North Dakota has not recognized an exception to this general rule. However, the Court is not required to determine the validity of the ?will? because it is clear from the record that the decedent provided instructions to Nathan P. Goodiron in the context of Goodiron acting in the capacity of a trustee-to fund a trust for the benefit of the decedent's children under the will. As previously noted, the trust is legally ineffective and invalid as a matter of law. When the decedent died with no biological or adopted children, the purpose of establishing a trust could never be achieved and the validity of any verbal instructions or the existence of a legal ?will? is of no relevance or legal significance.
*Holding: not yet available
Nulankeyutmonen Nkihtaqmikon v. Impson
573 F.Supp.2d 311
No. CV-05-168-B-W
United States District Court, D. Maine, August 14, 2008
Subjects: Nulankeyutmonen Nkihtaqmikon; Passamaquoddy Tribe of Maine; Energy development -- On Indian reservations; Oil and gas leases; United States. National Environmental Policy Act of 1969; United States. Administrative Procedure Act; United States. Endangered Species Act of 1973; United States. Indian Long-Term Leasing Act; Exhaustion of administrative remedies; United States. Bureau of Indian Affairs; Exhaustion of administrative remedies.
*Synopsis: Following dismissal, 462 F.Supp.2d 86, of action challenging Bureau of Indian Affairs' (BIA) approval of Indian tribe's decision to lease tribal land to be used for a liquefied natural gas (LNG) terminal, appeal was taken. The Court of Appeals, 503 F.3d 18, affirmed in part and remanded in part, and BIA filed a second motion to dismiss.
*Holding: On remand the District Court, John A. Woodcock, Jr., J., held that:
(1) Court of Appeals' ruling that compliance with the exhaustion requirement in BIA regulations was mandatory was the law of the case;
(2) BIA's failure to give plaintiffs notice of their right to administrative appeal did not warrant application of the futility exception to the exhaustion requirement;
(3) BIA did not waive issue of whether plaintiffs exhausted their administrative remedies; and
(4) balance of the equities favored dismissal without prejudice.
Motion granted.
MiccosukeeTribe of Indians of Florida v. United States
571 F.Supp.2d 1280
No. 08-21703-CIV
United States District Court, S.D. Florida, August 8, 2008
Subjects: Roads -- Design and construction; Everglades National Park (Fla.); Tamiami Trail (Fla.); United States. Everglades National Park Protection and Expansion Act of 1989; Water diversion; Miccosukee Tribe of Indians of Florida; United States. Dept. of Transportation.
*Synopsis: Indian tribe sought preliminary injunction against proposed relocation of a portion of a highway into a national park.
*Holding: The District Court, Ursula Ungaro, J., held that Department of
Transportation (DOT) did not act arbitrarily and capriciously in determining that
proposed relocation of portion of highway was not a transportation project.
Motion denied.
Runyan v. River Rock Entertainment Authority
2008 WL 3382783
No. C 08-1924 VRW
United States District Court, N.D. California, August 8, 2008
Subjects: Jurisdiction ; United States. Indian Gaming Regulatory Act; Indian gaming -- Dry Creek Rancheria of Pomo Indians of California; Gambling on Indian reservations -- California; River Rock Entertainment Authority; River Rock Casino; Employees -- Dismissal of; Federal question.
*Synopsis: (from the opinion) Defendants' contend that the IGRA, 25 USC ? 2701 et seq, and regulations issued thereunder completely preempt Runyan's state-law claims. As discussed above, complete preemption arises only in ?extraordinary circumstances,? DHL Worldwide Express, 294 F.3d at 1184, in which Congress has ?clearly manifested an intent to convert state law claims into federal-question claims.?
*Holding: not yet available
Cobell v. Kempthorne
569 F.Supp.2d 223
No. 96-1285
United States District Court, District of Columbia, August 7, 2008
Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior.
*Synopsis: Beneficiaries of individual Indian money (IIM) trust accounts brought class action against United States government, alleging that Secretaries of Interior and Treasury breached their fiduciary duties by mismanaging accounts. After court found that government had not succeeded in providing accounting mandated by Indian Trust Fund Management Reform Act, and that record demonstrated impossibility of rendering such accounting, 532 F.Supp.2d 37, beneficiaries moved for equitable relief in nature of restitution.
*Holding: The District Court, James Robertson, J., held that:
(1) government's use of multiple imputation model as methodology to calculate amount of funds owned to beneficiaries was reasonable;
(2) imposition of compound interest was not warranted; and
(3) beneficiaries' requests for restitution and disgorgement did not fall within waiver of sovereign immunity for claims against federal agencies seeking relief "other than money damages."
Ordered accordingly.
Related News Stories: Government seeks appeal of Indian trust case (Associated Press) 9/19/08. Cobell headed to resolution in appeals court (Indianz.com) 8/29/08. Judge rules Indians owed $455 million (Washington Post) 8/8/08
Vann v. Kempthorne
534 F.3d 741
No. 07-5024
United States Court of Appeals, District of Columbia Circuit, July 29, 2008
Subjects: Contested elections -- Cherokee Nation, Oklahoma; Suffrage -- Cherokee Nation, Oklahoma; Sovereign immunity -- Cherokee Nation, Oklahoma; Freedmen; United States. Administrative Procedure Act; United States. Indian Civil Rights Act.
*Synopsis: Descendants of freed slaves of Cherokee Nation sued Secretary of Department of Interior (DOI), tribe, tribal chief, and other tribal officers, under Administrative Procedure Act (APA), seeking injunctive and declaratory relief regarding disenfranchisement from tribal elections allegedly in violation of Thirteenth and Fifteenth Amendments, Cherokee constitution, treaty, Principal Chiefs Act, and Indian Civil Rights Act (ICRA). The United States District Court for the District of Columbia denied tribe's motion to dismiss. Defendants appealed.
*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) tribe was protected by sovereign immunity;
(2) suit was not foreclosed against tribal officers under Ex parte Young doctrine;
(3) suit was not foreclosed against tribal officers under Seminole Tribe exception to Ex parte Young doctrine; and
(4) suit was not foreclosed against tribal officers by tribe's special sovereignty interests.
Reversed in part and remanded.
Fowler v. Crawford
534 F.3d 931
No. 07-2946
United States Court of Appeals, Eighth Circuit, July 25, 2008
Subjects: Freedom of religion; Indians of North America -- Rites and ceremonies; Sweat lodges; United States. Religious Land Use and Institutionalized Persons Act of 2000; Missouri. Dept. of Corrections; Jefferson City Correctional Center (Mo.).
*Synopsis: State prisoner brought action against prison officials, alleging that officials' refusal to grant him access to a sweat lodge in which to practice his Native American faith violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., 2007 WL 2137803, granted summary judgment to prison officials. Prisoner appealed.
*Holding: The Court of Appeals, Baldock, Circuit Judge, held that:
(1) prohibition on sweat lodge was in furtherance of compelling governmental interest, and
(2) ban was the least restrictive means by which to further compelling interest.
Affirmed.
Roberts v. Hagener
287 Fed.Appx. 586
No. 07-35197
United States Court of Appeals, Ninth Circuit, July 18, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Equality before the law -- United States; United States. Constitution. 14th Amendment; Jurisdiction -- United States; Game laws -- Montana; Hunting -- On Indian reservations -- State supervision.
*Synopsis: Plaintiff brought action against State of Montana and numerous Montana government officials alleging that Montana big game hunting regulation violated Equal Protection Clause. The United States District Court for the District of Montana, Richard F. Cebull, J., granted summary judgment for defendants. Plaintiff appealed.
*Holding: The Court of Appeals held that regulation did not violate equal protection.
Affirmed.
Klamath Irrigation District v. United States
532 F.3d 1376
No. 2007-5115
United States Court of Appeals, Federal Circuit, July 16, 2008
Subjects: Water rights; Irrigation; Breach of contract -- United States; Water -- Compensation for taking; Right of property; Law -- Oregon; Klamath River (Or. and Calif.).
*Synopsis: Irrigation districts and agricultural landowners brought consolidated suits against United States, claiming that Bureau of Reclamation's temporary reductions of irrigation water breached contracts for supply of irrigation water from Klamath River Basin reclamation project, breached interstate compact, and violated Fifth Amendment by uncompensated taking of property. The United States Court of Federal Claims, Francis M. Allegra, J., 75 Fed.Cl. 677, granted government summary judgment. Appeal was taken.
*Holding: The Court of Appeals, Schall, Circuit Judge, held that questions regarding Oregon property law would be certified to Oregon Supreme Court.
Certified questions.
Barber v. Simpson
286 Fed.Appx. 969
No. 06-16880
United States Court of Appeals, Ninth Circuit, July 11, 2008
Subjects: Indian allotments -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Indian title -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Land tenure -- Members -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Jurisdiction -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Eviction.
*Synopsis: Member of Indian tribe appealed order of the United States District Court for the Eastern District of California, 2006 WL 1867643, Garland E. Burrell, Jr., J., which denied his request for declaratory and injunctive relief from tribal court's eviction order.
*Holding: The Court of Appeals held that United States was not indispensable but unjoined party in tribal court eviction action.
Affirmed.
Yankton Sioux Tribe v. U.S. Department of Health and Human Services
533 F.3d 634
No. 07-3096
United States Court of Appeals, Eighth Circuit, July 7, 2008
Subjects: Yankton Sioux Tribe of South Dakota; United States. Indian Health Service; Hospitals--Emergency services -- United States; Due process of law.
*Synopsis: Indian tribe brought action challenging decision of the United States Indian Health Service (IHS) to close an emergency room at a health care facility and convert it to an urgent care facility. The United States District Court for the District of South Dakota, 496 F.Supp.2d 1044, Lawrence L. Piersol, J., granted government's motion to dismiss, and tribe appealed.
*Holding: The Court of Appeals, Murphy, Circuit Judge, held that doctrine of res judicata barred tribe's action.
Affirmed.
City of Vancouver v. Hogen
2008 WL 2940640
No. C08-5192BHS
United States District Court, W.D. Washington, at Tacoma, July 23, 2008
Subjects: Cowlitz Indian Tribe, Washington; Indian gaming -- Cowlitz Indian Tribe, Washington; Gambling on Indian reservations -- Washington (State); Indian Country (U.S.) -- Defined; United States. Administrative Procedure Act; United States. Indian Gaming Regulatory Act; United States. Declaratory Judgment Act; Gambling -- Law and legislation -- Cowlitz Indian Tribe, Washington.
*Synopsis: (from the opinion) The City of Vancouver brings this action for declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. ?? 701-706, the Declaratory Judgment Act, 28 U.S.C. ?? 2201-2202, and the Indian Gaming Regulatory Act, 25 U.S.C. ? 2701, et seq. The City challenges Defendants' approval of the Cowlitz Indian Tribe's amended gaming ordinances on the grounds that the land on which the Cowlitz Tribe sought to conduct gaming did not constitute ?Indian Lands? as defined by the IGRA and applicable regulations.
*Holding: not yet available
Miami Tribe v. United States
2008 WL 2906095
Civil Action No. 03-2220-DJW
United States District Court, D. Kansas, July 24, 2008
Subjects: Miami Tribe of Oklahoma -- Members; Indian allotments -- Miami Tribe of Oklahoma -- Members; Conveyancing -- Federal supervision; Indian land transfers; United States. Bureau of Indian Affairs; United States. Administrative Procedure Act; Breach of trust -- United States; Trusts and trustees -- United States.
*Synopsis: (from the opinion) Defendants assert two main arguments in their response to Miami Tribe's motion and in their Motion for Order Establishing Case Resolution Procedure. First, they argue that the Court should require Miami Tribe to exhaust its administrative remedies on remand before seeking judicial review of the BIA's October 23, 2007 decision. This would allow the BIA, through the administrative appeal process, to address Miami Tribe's objections to the Regional Director's October 23, 2007 decision and develop a full administrative record. They ask that the Court stay all further action with regard to Count I until the available administrative appeal procedures have been exhausted. Second, they argue that, contrary to Miami Tribe's claim that Mr. Smith's interest in the land is held in trust, Mr. Smith's property interest in Miami Reserve to be transferred to Miami Tribe is held only in restricted fee status and is not trust property. They ask the Court to reject Miami Tribe's request that the Court enter any instruction that would require them to take Miami Reserve in trust.
*Holding: not yet available
State of Wisconsin v. Ho-Chunk Nation
564 F.Supp.2d 856
No. 05-cv-632-bbc
United States DIstrict Court of W.D Wisconsin, July 10, 2008
Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act; Revenue sharing -- Wisconsin; Sovereign immunity -- Tribes.
*Synopsis: State of Wisconsin brought action against Indian nation, seeking to compel arbitration of disputes arising under gaming compact. The United States District Court, Shabaz, J., compelled arbitration and Nation appealed. The Court of Appeals, 463 F.3d 655, vacated and remanded. The District Court, 2006 WL 3813654, granted State's motion to amend complaint. Nation moved to dismiss or for summary judgment. The District Court denied motion, and Nation filed interlocutory appeal. The Court of Appeals, 512 F.3d 921, held that district court had jurisdiction over pending claims and that Nation had waived its immunity from suit and remanded for determination of arbitrability of State's causes of action.
*Holding: On remand, the District Court, Barbara B. Crabb, J., held that:
(1) provision governing resolution of disputes involving key provisions of compact preserved broad arbitration;
(2) claims to enjoin class III games being operated by Nation were not arbitrable;
(3) claims relating to alleged breach of gaming compact for failure to make required payments were subject to arbitration; and
(4) claims invoking statutory obligation to negotiate in good faith were arbitrable.
Motion for summary judgment denied, and motion to compel arbitration granted.
PPI, Inc. v. Kempthorne
2008 WL 2705431
No. 4:08cv248-SPM
United States District Court, N.D. Florida, Tallahassee Division, July 8, 2008
Subjects: Indian gaming -- Seminole Tribe of Florida; Gambling on Indian reservations -- Florida; Intergovernmental agreements -- Seminole Tribe of Florida; Intergovernmental agreements -- Florida; United States. Indian Gaming Regulatory Act; PPI, Inc.
*Synopsis: (from the opinion) Under 5 U.S.C. ? 704 of the Administrative Procedure Act, PPI seeks judicial review of the approval of the tribal-state compact that ostensibly allows the Seminole Tribe of Florida to conduct Class III gaming, specifically banked card games such as blackjack and baccarat. Named as defendants are Dirk Kempthorne, in his official capacity as Secretary of the Interior, and George Skibine, in his official capacity as Acting Assistant Secretary-Indian Affairs (collectively ?federal defendants?). PPI is also suing the Governor of the State of Florida, Governor Crist, under 42 U.S.C. ? 1983 for executing the compact in violation of PPI's rights under the Indian Gaming Regulatory Act, 25 U.S.C. ? 2710(d)(1).
*Holding: not yet available
Citizens Against Casino Gambling in Erie County v. Hogen
2008 WL 2746566
No. 07-CV-0451S
United States District Court, W.D. New York, July 8, 2008
Subjects: Indian gaming -- Seneca Nation of New York; Gambling on Indian Reservations -- New York (State); United States. Indian Gaming Regulatory Act; Erie County (N.Y.); Intergovernmental agreements -- Seneca Nation of New York; Intergovernmental agreements -- New York (State); Quiet title actions; Parties to actions.
*Synopsis: (from the opinion) Plaintiffs Citizens Against Casino Gambling in Erie County, et al. (collectively, ?Plaintiffs? or ?CACGEC?), commenced this action on July 12, 2007, and filed a First Amended Complaint on November 28, 2007. (Docket No. 49, hereafter ?Am. Compl.?) Plaintiffs challenge the National Indian Gaming Commission's (?NIGC?) decision to approve a Class III Gaming Ordinance that was enacted by the Seneca Nation of Indians (?SNI?) on June 9, 2007. The NIGC's approval permits the SNI to operate a gambling casino in the City of Buffalo on land the tribe purchased in 2005. Plaintiffs allege that certain determinations on which the NIGC based its approval are arbitrary, capricious, an abuse of discretion and not in accordance with law.
*Holding: not yet available
Quapaw Tribe of Oklahoma v. Blue Tee Corporation
2008 WL 2704482
No. 03-CV-0846-CVE-PJC
United States District Court, N.D. Oklahoma, July 7, 2008
Subjects: Blue Tee Corp.; Asarco Inc.; Mining leases -- Quapaw Tribe of Indians, Oklahoma; Pollution -- Quapaw Tribe of Indians, Oklahoma; Tar Creek (Okla. and Kan.); Superfund sites -- Quapaw Tribe of Indians, Oklahoma; United States. Comprehensive Environmental Response, Compensation, and Liability Act of 1980; Sovereign immunity -- Quapaw Tribe of Indians, Oklahoma.
*Synopsis: (from the opinion) Plaintiffs filed this lawsuit on December 10, 2003 against seven mining companies that operated in the former Tri-State Mining District. In the original complaint (Dkt.# 1), the Tribe and individual tribal members alleged claims of public nuisance, private nuisance, trespass, unjust enrichment, strict liability, and fraud against the mining companies. The individual plaintiffs sought to certify a class of all former and current landowners of real property located within the historic boundaries of the former Quapaw reservation. The original complaint did not seek relief under CERCLA or allege any claim against the federal government or federal employee in his or her official capacity. However, paragraph two of the complaint stated that the Tribe intended to file a CERCLA claim against the United States and other defendants once the 60 day notice requirement of CERCLA had been satisfied.
*Holding: not yet available
Mowa Band of Choctaw Indians v. United States
2008 WL 2633967
Civil Action No. 07-0508-CG-B
United States District Court, S.D. Alabama, Southern Division, July 2, 2008
Subjects: Federal recognition of Indian tribes -- MOWA Band of Choctaw Indians of Alabama; MOWA Band of Choctaw Indians of Alabama -- Legal status, laws, etc.; Treaty rights -- MOWA Band of Choctaw Indians of Alabama; Limitation of actions.
*Synopsis: (from the opinion) The MOWA initiated this suit on July 17, 2007, seeking: 1) a declaration that it is an Indian Tribe to be recognized by the Bureau of Indian Affairs pursuant to the Treaty of Dancing Rabbit Creek, 2) review of the decisions of the Bureau of Indian Affairs denying the MOWA Federal Acknowledgment, and 3) a declaration that the MOWA is entitled to back payments of all federal monies that would have been paid to it if it had received Federal Acknowledgment.
*Holding: not yet available
MacArthur v. San Juan County
566 F.Supp.2d 1239
Civil No. 2:00-CV-584BSJ
United States District Court, D. Utah, Central Division, July 2, 2008
Subjects: Health facilities -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Health facilities -- Utah -- San Juan County; Employees, Dismissal of -- San Juan Health Services District; Utah Navajo Health Systems; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Civil jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.
*Synopsis: Employees of health services district, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. County, health services district, and various individual county defendants moved for permanent injunction prohibiting employees from seeking to enforce Navajo Nation district court's orders.
*Holding: The District Court, Bruce S. Jenkins, Senior District Judge, held that:
(1) scope of the jurisdiction of the Navajo tribal courts did not present a non-justiciable political question;
(2) Navajo Nation was not a necessary party in the action;
(3) District Court had federal question jurisdiction over the action; and
(4) Navajo Nation district court was not an executive agreement claims settlement court whose orders were entitled to full force and effect.
Motion denied.
United States v. Vasquez-Ramos
531 F.3d 987
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, June 27, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.
*Synopsis: Defendants, two Native Americans who were not members of federally recognized Indian tribes, were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit, in violation of the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA). Defendants moved to dismiss, claiming that they used feathers during Native American religious ceremonies, and that prosecution impermissibly burdened their religious practice under the Religious Freedom Restoration Act (RFRA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.
*Holding: The Court of Appeals held that prosecution of defendants did not violate RFRA.
Affirmed.
Related News Stories: 9th Circuit won't rehear eagle feather cases (Indianz.com) 7/1/08
United States v. FMC Corporation
531 F.3d 813
No. 06-35429
United States Court of Appeals, Ninth Circuit, June 27, 2008
Subjects: Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; FMC Corporation; Mines and mineral resources -- Idaho; Pollution; Environmental law -- United States; Environmental law -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.
*Synopsis: Native American tribe sought enforcement of consent degree between mining company and United States. The United States District Court for the District of Idaho, B. Lynn Winmill, J., 2006 WL 544505, held that tribe could enforce the decree. After granting company's motion for a stay, 2006 WL 1382192, the District Court, denied company's subsequent motions for stay and for clarification, and lifted the stay previously issued. Mining company appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that tribes were not intended third-party beneficiaries to consent decree.
Vacated and remanded.
Guidiville Band of Pomo Indians v. NVG Gaming
531 F.3d 767
Nos. 05-17066, 05-17067
United States Court of Appeals, Ninth Circuit, June 26, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: NGV Gaming, Ltd. (Fla.); Upstream Point Molate, LLC. (Calif.); Harrah's Operating Company, Inc.; Contracts - Federal supervision; Indian gaming -- Guidiville Rancheria of California; Gambling on Indian reservations -- California; Guidiville Rancheria of California.
*Synopsis: Casino developer sued competitors for tortious interference with contract between Indian tribe and developer, as assignee of rights and duties under contract, for development and construction of gaming facility on to-be-acquired parcel of land. After suit was consolidated with tribe's suit against developer, seeking declaratory and injunctive relief regarding allegedly invalid contract, the United States District Court for the Northern District of California, Samuel Conti, J., 2005 WL 5503031, granted tribe's motion for declaratory judgment and granted tribe and competitors summary judgment. Developer appealed.
*Holding: The Court of Appeals, Milton I. Shadur, Senior District Judge, sitting by designation, held that:
(1) tribe lacked standing for declaratory claims against developer;
(2) contract was valid without governmental approval, as required for tortious interference with contract claim; and
(3) contract did not violate Indian Gaming Regulatory Act (IGRA), as required for tortious interference with contract claim.
Vacated in part; reversed and remanded in part.
Barona Band of Mission Indians v. Yee
528 F.3d 1184
No. 06-55918
United States Court of Appeals, Ninth Circuit, June 18, 2008
Subjects: Sales tax -- California -- Application; Casinos -- Design and construction -- Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Subcontractors -- Taxation.
*Synopsis: Indian tribe brought action against California State Board of Equalization (SBE), seeking declaratory relief from imposition of state sales tax on construction materials purchased by non-Indian electrical subcontractor from non-Indian vendor and delivered to Indian land pursuant to contract for $75 million casino expansion. The United States District Court for the Southern District of California, Dana M. Sabraw, J., granted tribe's motion for summary judgment, and the SBE appealed.
*Holding: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) legal incidence of sales tax fell upon subcontractor and thus tax was not per se invalid as a tax on tribe or its members;
(2) sales tax was valid under Becker preemption analysis; and
(3) Indian Gaming Regulation Act (IGRA) did not preempt sales tax.
Reversed and remanded.
Pro Football, Inc. v. Harjo
567 F.Supp.2d 46
Civil Action No. 99-1385 (CKK)
United States District Court, District of Columbia, June 25, 2008
Subjects: United States. Trademark Trial and Appeal Board; United States; Trademarks -- United States; Washington Redskins (Football team); Indians as mascots; Indians of North America; Race discrimination; Laches; Limitation of actions.
*Synopsis: Action was brought to cancel professional football team's trademark registrations, on ground they disparaged Native Americans. The Trademark Trial and Appeal Board, 1999 WL 375907, cancelled registrations, and team sought judicial review. The United States District Court for the District of Columbia, Kollar-Kotelly, J., granted summary judgment in favor of team. Defendants appealed. The Court of Appeals, 415 F.3d 44, remanded. Parties renewed motions for summary judgment.
*Holding: On remand, the District Court, Colleen Kollar-Kotelly, J., held that:
(1) delay in filing action was undue;
(2) delay in filing petition resulted in trial prejudice for franchise; and
(3) delay in filing petition resulted in economic prejudice for franchise.
Plaintiffs' motion granted; defendants' motion denied.
Eastern Shawnee Tribe of Oklahoma v. United States
82 Fed.Cl. 322
No. 06-917
United States Court of Federal Claims, June 23, 2008
Subjects: Trusts and trustees -- United States; Eastern Shawnee Tribe of Oklahoma; Breach of trust -- United States; Tribal trust funds -- Eastern Shawnee Tribe of Oklahoma -- Accounting; Disclosure in accounting; Federal-Indian trust relationship.
*Synopsis: Indian tribe brought suit against the United States seeking damages for government's alleged breach of its fiduciary duties as trustee of its assets and property.
*Holding: The United States Court of Federal Claims, Charles F. Lettow, J., held that statute barring the Court of Federal Claims from exercising jurisdiction over a claim if the same claim is pending in another court was applicable to preclude jurisdiction.
Case dismissed.
Passamaquoddy Tribe v. United States
82 Fed.Cl. 256
No. 06-942 L
United States Court of Federal Claims, June 19, 2008
Subjects: Trusts and trustees; Breach of trust -- United States; Passamaquoddy Tribe of Maine; Jurisdiction -- United States.
*Synopsis: Indian tribe filed suit against the United States seeking damages for breaches of trust. Defendant moved to dismiss for lack of jurisdiction.
*Holding: The United States Court of Federal Claims, Bush, J., held that:
(1) district court complaint which was filed by plaintiff on the same day as complaint filed in the Court of Federal Claims was per se "pending" within meaning of statute divesting the Court of Federal Claims of jurisdiction to hear claims against the United States that are already pending in another court;
(2) suits were based on the same operative facts, triggering application of statute precluding concurrent jurisdiction in the Court of Federal Claims; and
(3) suits sought overlapping relief which was not distinctly different, thus satisfying "same relief" prong of analysis.
Motion granted.
Butte County, CA v. Hogen
2008 WL 2410407
Civil Action No. 08-519(HHK)(AK)
United States District Court, District of Columbia, June 16, 2008
Subjects: Indian gaming -- Mechoopda Indian Tribe of Chico Rancheria, California; Land into trust.
*Synopsis: (from the opinion) The Mechoopda Indian Tribe of Chico Rancheria, California is a federally-recognized Indian tribe that currently has no reservation or federally-protected lands. In 2001, the Tribe's casino developers purchased a 630-acre plot of land in Butte County, California (?Butte County?) on which the Tribe intends to pursue economic development through Indian gaming. The Indian Gaming Regulatory Act (?IGRA?) provides that an Indian tribe may operate a casino offering Class II and Class III gaming so long as the gaming is conducted on Indian lands that qualify for gaming under IGRA and provided that the Class III gaming is in compliance with a Tribal Gaming Ordinance that has been approved by the National Indian Gaming Commission (?NIGC?).
*Holding: not yet available
United States v. Washington
20 F.Supp.3d 899
Case No. CV 9213.
United States District Court, W.D. Washington, at Seattle, Filed June 13, 2008. Compilation of major post-trial substantive orders (January 1, 2008 through December 31, 2012).
*Synopsis: United States, on its own behalf and as trustee for various Indian tribes, brought action for declaratory and injunctive relief against State of Washington and others concerning off-reservation treaty right fishing. Various tribes intervened.
*Holding: The District Court, Ricardo S. Martinez, J., and Karen L. Strombom, United States Magistrate Judge, held that:
(1) shellfish growers failed to establish intervenor status under settlement agreement;
(2) district court would not reopen proceedings to determine status of tribe as "treaty tribe";
(3) certification of issue of district court's jurisdiction over request for determination of boundaries of tribe's usual and accustomed fishing areas for interlocutory appeal was warranted;
(4) tribes were precluded from arguing that tribal sovereign immunity barred request for determination of extent of usual and accustomed fishing areas;
(5) tribe was entitled to fully participate in each subproceeding without formally intervening as responding party; and
(6) findings by the Ninth Circuit on appeal in subproceeding were law of the case.
Ordered accordingly.
United States v. Washington
2008 WL 2474594
No. CV 9213, Subproceeding No. 89-305
United States District Court, W.D. Washington, at Seattle, June 13, 2008
Subjects: Fishing rights -- Upper Skagit Indian Tribe of Washington; Fisheries -- Suquamish Indian Tribe of the Port Madison Reservation, Washington -- Defined.
*Synopsis: (from the opinion) The Suquamish Tribe asks that the Court adopt and enforce a plan proposed by the Suquamish for the harvest of clams on tidelands leased by A & K Trust (?Trust?) at Chico Bay in Kitsap County, Washington. The Trust has opposed the motion. The Court heard oral argument on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the motion of the Suquamish Tribe shall be GRANTED.
*Holding: not yet available
Ute Distribution Corporation v. Secretary of the Interior of the United States
2008 WL 2323231
No. 2:95-CV-376
United States District Court, D. Utah, Central Division, June 2, 2008
Subjects: Water rights -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Utah. Ute Partition and Termination Act; Water rights -- Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; United States. Administrative Procedure Act; Ute Distribution Corporation; Resource allocation -- Ute Indians.
*Synopsis: (from the opinion) This case arises out of the Secretary of the Interior's determination that tribal water rights of the Ute Indian Tribe were divided and distributed in 1961 pursuant to the Ute Partition and Termination Act (?UPA?). 25 U.S.C. ?? 677 et seq. Plaintiff Ute Distribution Corporation (?UDC?) has appealed the Secretary's decision, and the issue is now before the Court pursuant to the judicial review procedures of the Administrative Procedures Act (?APA?). 5 U.S.C. ? 701, et seq.
*Holding: not yet available
United States v. Menominee Tribal Enterprises
2008 WL 2273285
No. 07-C-316
United States District Court, E.D. Wisconsin, June 2, 2008
Subjects: United States. Bureau of Indian Affairs -- Contracts; Breach of contract -- Menominee Tribal Enterprises; Sovereign immunity -- Menominee Indian Tribe of Wisconsin -- Officials and employees; United States. False Claims Act; Fire extinction -- Contracts -- United States; Discovery (Law).
*Synopsis: (from the opinion)The Tribe, which is not a party to the lawsuit, argues that MTE's subpoena of Waukau is barred under the doctrine of tribal immunity because any information she may have on the matter is information she obtained in her official capacity as a member or Chairperson of the Menominee Tribal Legislature.
*Holding: not yet available
Lobo v. Miccosukee Tribe of Indians of Florida
279 Fed.Appx. 926
No. 07-15073
United States Court of Appeals, Eleventh Circuit, May 30, 2008
Subjects: United States. Fair Labor Standards Act of 1938 -- Application -- Tribes; Sovereign immunity -- Miccosukee Tribe of Indians of Florida -- Officials and employees.
*Synopsis: (from the opinion) Appellants Felix Lobo and Liza Suarez appeal the dismissal of their Fair Labor Standards Act, 29 U.S.C. ? 201 (?FLSA?), complaint. The district court dismissed the complaint because the Appellees, the Miccosukee Tribe and its chairman Billy Cypress, enjoy sovereign immunity. On appeal, the Appellants argue that the district court erred because the FLSA is a statute of general application that applies to Indian tribes.
*Holding: not yet available
Wopsock v. Natchees
279 Fed.Appx. 679
No. 06-4215
United States Court of Appeals, Tenth Circuit, May 23, 2008
Subjects: Due process of law -- United States; Equality before the law -- United States; Freedom of speech -- United States; United States. Indian Civil Rights Act; United States. Indian Reorganization Act; Law -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah. Business Committee -- Membership; Jurisdiction -- United States; Jurisdiction -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Tribal sovereignty -- Ute Indian Tribe of the Uintah & Ouray Reservation; Exhaustion of tribal remedies -- Ute Indian Tribe of the Uintah & Ouray Reservation.
*Synopsis: Three enrolled members of Indian tribe brought action alleging various claims arising out of a dispute over tribal leadership, including violations of the Indian Reorganization Act (IRA) and conspiracy to violate their civil rights. The United States District Court for the District of Utah dismissed all claims and denied members' motion to amend their complaint. Members appealed.
*Holding: The Court of Appeals, Michael R. Murphy, Circuit Judge, held that:
(1) members of tribe's governing body were entitled to sovereign immunity;
(2) Court lacked jurisdiction to consider claims against federal government officials; and
(3) denial of second motion to amend was not an abuse of discretion.
Affirmed.
Western Shoshone National Council v. United States
279 Fed.Appx. 980
No. 2007-5020
United States Court of Appeals, Federal Circuit, May 22, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Quiet title actions -- Te-Moak Tribe of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); United States; Trusts and trustees -- Accounting -- United States; United States. Indian Claims Commission; Tribes -- Compensation for taking; Tribes - Treaties; Tribes - Land tenure; Jurisdiction - United States.
*Synopsis: Governing body of the Western Shoshone Nation and Western Shoshone bands brought suit against the United States seeking declaratory judgment that judgment of the Indian Claims Commission (ICC) was not enforceable against them, or that the ICC judgment was void because of alleged due process violations. Defendant moved to dismiss. The Court of Federal Claims, Loren A. Smith, Senior Judge, 73 Fed.Cl. 59, granted the motion for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs appealed.
*Holding: The Court of Appeals, Rader, Circuit Judge, held that:
(1) motion for relief from ICC judgment on ground that judgment was void was untimely;
(2) independent action seeking relief from ICC judgment was barred by six-year statute of limitations;
(3) Treaty of Ruby Valley did not convey treaty title to any land, so as to allow prejudgment from time of taking until date of award;
(4) claims for royalties on minerals mined and extracted under the Treaty of Ruby Valley were barred by finality provision of Indian Claims Commission Act (ICCA); and
(5) claims for an accounting of proceeds from government's use of land described in Treaty of Ruby Valley and damages for alleged breach of fiduciary duty arising from alleged mismanagement of that land were barred under finality provision of ICCA.
Affirmed.
Lawrence v. Department of Interior
525 F.3d 916
No. 06-35448
United States Court of Appeals, Ninth Circuit, May 13, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Members -- Standing Rock Sioux Tribe of North & South Dakota; United States. Bureau of Indian Affairs -- Officials and employees; Employee fringe benefits -- Fire fighters; Retirement planning.
*Synopsis: Indian employee of Bureau of Indian Affairs (BIA) sought review of Merit Systems Protection Board's decision, denying petition for review of Department of Interior's denial of his claim for increased retirement benefits for firefighting duties, alleging that BIA's failure to notify him of application deadline for retroactive reclassifications of firefighting service credit violated federal trust responsibility toward Indians, Indian Preference Act (IPA), and Title VII's prohibition against employment discrimination based on race. The United States District Court for the Eastern District of Washington, Edward F. Shea, J., 2006 WL 850878, granted BIA summary judgment. Employee appealed.
*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) application deadline for service credit was not waived by lack of actual notice;
(2) deadline was not waived by circumstances beyond employee's control;
(3) lack of actual notice did not violate federal trust responsibility;
(4) retroactive reclassification of firefighting service was not required by IPA; and
(5) lack of actual notice did not disparately impact Indians, under Title VII.
Affirmed.
United States v. Friday
525 F.3d 938
Briefs & Pleadings
No. 06-8093
United States Court of Appeals, Tenth Circuit, May 8, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: United States. Bald and Golden Eagle Protection Act; Members -- Arapahoe Tribe of the Wind River Reservation, Wyoming; Bald eagles -- Protection -- United States; United States. Religious Freedom Restoration Act; Fish and games licenses.
*Synopsis: Defendant, a member of the Northern Arapaho Tribe of Wyoming, was charged with violating Bald and Golden Eagle Protection Act after he shot bald eagle, without permit, for use in Sun Dance. Defendant responded that prosecution was precluded by Religious Freedom Restoration Act (RFRA). The United States District Court for the District of Wyoming, Downes, J., 2006 WL 3592952, dismissed information. Government appealed.
*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) both prongs of RFRA's strict scrutiny test were legal questions;
(2) Court of Appeals was required to engage in independent review of ?constitutional facts?;
(3) permit process for taking eagles was not futile, such that prohibition on taking eagles would be effectively without exception, thus resulting in substantial burden on tribal religious practices in violation of RFRA;
(4) permitting process did not facially violate RFRA;
(5) Fish and Wildlife Service (FWS) was not required to engage in affirmative outreach for permitting process to be least restrictive means of preserving eagles; and
(6) any difference in government's treatment of Native Americans taking eagles for religious purposes and power companies whose power lines killed eagles did not indicate that government failed to protect eagles in least restrictive manner.
Reversed and remanded.
Related News: Stories: Man asks for appeals court review in eagle case (Casper Star-Tribune) 6/26/08
Bone Shirt v. Hazeltine
524 F.3d 863
No. 07-2145
United States Court of Appeals, Eighth Circuit, May 5, 2008
Subjects: United States. Voting Rights Act of 1965; Voting -- United States; Indians of North America; South Dakota; Apportionment (Election law); South Dakota. Legislature -- Election districts; Suffrage; Dilution.
*Synopsis: Native American voters, as prevailing parties in their suit claiming that South Dakota legislative redistricting plan violated Voting Rights Act, moved for expert witness fees, under Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (VRARA). The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, denied motion. Voters appealed.
*Holding: The Court of Appeals held that expert fees award under VRARA would have impermissible retroactive effect.
Affirmed.
Sauk County v. United States Department of the Interior
2008 WL 2225680
No. 07-cv-543-bbc
United States District Court, W.D. Wisconsin, May 29, 2008
Subjects: Land into trust -- Ho-Chunk Nation of Wisconsin -- Wisconsin -- Sauk County; United States. Indian Reorganization Act; United States. National Environmental Policy Act of 1969; Finding of No Significant Impact (FONSI).
*Synopsis: (from the opinion) Raising questions about the legality of the Indian Reform Act of 1934, 25 U.S.C. ? 465, and other matters, plaintiff Sauk County seeks review of a final action taken by the United States Department of the Interior under the Act. The department took into trust for defendant Ho-Chunk Nation approximately five acres of land located in Sauk County, Wisconsin. Plaintiff contends that the department's action was arbitrary and capricious, that the Indian Reorganization Act is unconstitutional and that the department wrongly denied plaintiff standing to challenge the finding that the action would have no significant impact under the National Environmental Policy Act.
*Holding: not yet available
Samish Indian Nation v. United States
82 Fed.Cl. 54
No. 02-1383 L
United States Court of Federal Claims, May 27, 2008
Subjects: Samish Indian Tribe, Washington -- Services for; Federally recognized Indian tribes -- Lists; Samish Indian Tribe, Washington -- Government relations -- United States.
*Synopsis: Indian tribe brought suit against the United States seeking compensation for benefits it would have received between 1969 and 1996, if it had been properly recognized by the federal government during that time period. Defendant moved to dismiss.
*Holding: The United States Court of Federal Claims, Sweeney, J., held that networks of statutes, regulations, and agency practices the underlie the Tribal Priority Allocation (TPA) system and the Indian Health Service (IHS) funding process do not provide money-mandating bases for jurisdiction under the Tucker Act and Indian Tucker Act.
Motion granted in part.
Unite Here International Union v. Pala Band of Mission Indians
2008 WL 2434244
No. 07-CV-2312 W(AJB)
United States District Court, S.D. California, May 22, 2008
Subjects: Pala Band of Luiseno Mission Indians of the Pala Reservation, California; Jurisdiction -- United States; Labor unions; Labor laws and legislation -- Pala Band of Luiseno Mission Indians of the Pala Reservation, California; Intergovernmental agreements -- Indian gaming; Gambling on Indian reservations -- California; Intergovernmental agreements -- Pala Band of Luiseno Mission Indians of the Pala Reservation, California; Intergovernmental agreements -- California.
*Synopsis: Union representing casino employees petitioned to confirm arbitration award determining that Indian tribe committed unfair labor practice by violating model tribal labor relations ordinance (TLRO) clause protecting right to unionize, pursuant to Tribal-State Gaming Compact entered into under Indian Gaming Regulatory Act (IGRA). Tribe moved to dismiss petition for lack of subject matter jurisdiction.
*Holding: The District Court, Thomas J. Whelan, J., held that union's petition did not arise under federal law, as required for subject matter jurisdiction.
Motion granted.
Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. New Jersey
2008 WL 2165191
Civil Action No. 05-5710
United States District Court, D. New Jersey, May 20, 2008
Subjects: Unalachtigo Band of the Nanticoke Lenni-Lenape Nation; New Jersey; Indian reservations -- Shamong (N.J. : Township); Indian reservations -- Burlington County (N.J.); Nanticoke Indians -- Land tenure -- New Jersey; Indian land transfers -- New Jersey; Brotherton Indian Reservation (N.J.); Treaties ? Interpretation and construction; Jurisdiction -- Burlington County (N.J.); United States. Trade and Intercourse Act.
*Synopsis: (from the opinion) Plaintiff is an Indian tribe, albeit one that is unrecognized by either the State of New Jersey or the United States government. Instead, it is organized as a New Jersey non-profit corporation. It claims to be the successor in interest to an Indian group for which the Colony of New Jersey set aside a tract of land in Burlington County in 1758. This land came to be known as the Brotherton Reservation. Plaintiff alleges the State of New Jersey unlawfully sold the reservation in 1801 by failing to seek and receive congressional approval of the sale pursuant to the requirements of the Indian Nonintercourse Act, which is now codified at 25 U.S.C. ? 177.
*Holding: not yet available
Nisqually Indian Tribe v. Gregoire
2008 WL 1999830
No. 08-5069RBL
United States District Court, W.D. Washington, at Tacoma, May 8, 2008
Subjects: Indian business enterprises -- Squaxin Island Tribe of the Squaxin Island Reservation, Washington; Cigarettes ?- Sales -- Taxation; Nisqually Indian Tribe of the Nisqually Reservation, Washington; Cigarettes -- Sales -- Intergovernmental agreements.
*Synopsis: (from the opinion) Nisqually seeks a preliminary injunction to enjoin the taxation of sales of cigarettes at the Frank's Landing smoke shop, which is operated by the Skookum Creek Tobacco Company, an enterprise owned by the Squaxin Island Indian Tribe [?Squaxin?]. Nisqually claims that the cigarettes are improperly taxed and that sales are being made pursuant to an invalid Addendum to a cigarette tax compact between the State of Washington and Squaxin in violation of federal and state law. Nisqually also claims that the Addendum conflicts with an existing cigarette tax compact between the State and Nisqually.
*Holding: not yet available
Hansen v. Dohmen
2008 WL 2020343
No. 4:07CV3159
United States District Court, D. Nebraska, May 7, 2008
Subjects: United States. Indian Child Welfare Act of 1978; Iowa Tribe of Kansas and Nebraska -- Members; Parent and child (Law); Trials (Custody of children) -- Nebraska; Child welfare; Interracial adoption.
*Synopsis: (from the opinion) Defendant Linda Dohmen and other employees of the Nebraska Health and Human Services System violated the plaintiff's rights secured under the federal Indian Child Welfare Act of 1978. The plaintiff alleges she is the biological mother of Kenten Hansen, and that both she and Kenton Hansen are enrolled members of the Iowa Tribe of Kansas and Nebraska. The plaintiff alleges the defendants knew the plaintiff and Kenton Hansen were tribe members, yet they ignored this fact while initiating and overseeing a process that culminated in Kenton Hansen's adoption by a non-Indian family.
*Holding: not yet available
Michigan Gambling Opposition v. Kempthorne
525 F.3d 23
No. 07-5092
United States Court of Appeals, District of Columbia Circuit, April 29, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Gambling on Indian reservations -- Michigan; Indian gaming -- Class III -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; United States. Indian Gaming Regulatory Act; Building sites; United States. National Environmental Policy Act of 1969; Environmental impact statements; Finding of No Significant Impact (FONSI); Intergovernmental agreements -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Intergovernmental agreements -- Michigan; Land into trust.
*Synopsis: Michigan non-profit corporation brought action challenging federal defendants' decision to place two parcels of land into trust for Indian band for proposed casino. The band intervened. The United States District Court for the District of Columbia, John Garrett Penn, J., 477 F.Supp.2d 1, granted summary judgment for defendants. Plaintiff appealed.
*Holding: The Court of Appeals held that:
(1) Checklist for Gaming Acquisitions Gaming-Related Acquisitions and Indian Gaming Regulatory Act (IGRA) Determinations was not binding on Department of Interior (DOI) with regard to whether environmental impact statement (EIS) was necessary in assessing impact of proposed Indian casino site on traffic;
(2) DOI was justified in finding that mitigation of traffic impact was sufficient, and that EIS was not necessary; and
(3) provision of Indian Reorganization Act (IRA) that authorized Secretary of Interior to acquire land for Indians contained intelligible principle to guide Secretary's discretion, and thus did not violate non-delegation doctrine.
Affirmed on other grounds in part.
Related News Story: Appeals court judge strikes blows against Indian rights (Indianz.com) 5/5/08
United States v. Vasquez-Ramos
522 F.3d 914
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, April 10, 2008
Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.
*Synopsis: Defendant Native Americans were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.
*Holding: The Court of Appeals held that prosecution of defendants did not violate Religious Freedom Restoration Act (RFRA).
Affirmed.
Nord v. Kelly
520 F.3d 848
No. 07-1564
United States Court of Appeals, Eighth Circuit, April 4, 2008
Subjects: Traffic accidents -- On Indian reservations -- Red Lake Band of Chippewa Indians, Minnesota; Red Lake Band of Chippewa Indians, Minnesota -- Members; Non-members of a tribe; Personal injuries -- Cases; Jurisdiction -- Red Lake Band of Chippewa Indians, Minnesota.
*Synopsis: Non-Native American driver of semi-truck, and his father, whose business owned semi-truck, brought action against member of Red Lake Band of Chippewa Indians and Red Lake Nation Tribal Court, seeking declaration that Tribal Court lacked personal jurisdiction over driver and father, who were sued by member in Tribal Court for personal injuries sustained by member in automobile accident that occurred on state highway within reservation. The United States District Court for the District of Minnesota, Schiltz, J., 474 F.Supp.2d 1088, granted summary judgment for plaintiffs. Defendants appealed.
*Holding: The Court of Appeals, Hansen, Circuit Judge, held that:
(1) Tribal Court lacked personal jurisdiction over plaintiffs;
(2) state's federally granted right-of-way to construct and maintain road over tribal lands as a public highway was valid;
(3) plaintiffs did not have consensual commercial relationships with the tribe or its members as required for first Montana exception to apply; and
(4) tribe's ability to regulate and to exercise adjudicatory authority over nonmembers on highway was not important to its tribal sovereignty, as required for second Montana exception to apply.
Affirmed.
United States v. Lamy
521 F.3d 1257
No. 07-2048
United States Court of Appeals, Tenth Circuit, April 1, 2008
Subjects: Indian Country (U.S.) -- Defined; Zuni Tribe of the Zuni Reservation, New Mexico -- Members; Zuni (N.M.).
*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, James O. Browning, J., of aggravated sexual abuse in Indian country, and defendant appealed.
*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) defendant's statements to police officers regarding alleged rape were not improperly induced;
(2) defendant was not "in custody" for Miranda purposes when he was questioned by police officers regarding alleged rape;
(3) co-defendant's testimony that suggested that defendant had a prior history of contact with the FBI did not affect defendant's substantial rights; and
(4) evidence was sufficient to support finding that defendant's crimes occurred in Indian country.
Affirmed.
City of New York v. Milhelm Attea & Bros., Inc.
550 F.Supp.2d 332
No. 06-CV-3620 (CBA)
United States District Court, E.D. New York, April 30, 2008
Subjects: Cigarettes -- Labeling -- New York (State); United States. Contraband Cigarette Trafficking Act; Distributors (Commerce) -- Cigarettes -- Taxation; Indian business enterprises; Cigarettes -- Sales -- Taxation.
*Synopsis: City brought amended complaint against a group of cigarette wholesalers, alleging that they violated the Contraband Cigarette Trafficking Act (CCTA) by shipping in excess of 10,000 unstamped cigarettes to reservation retailers who re-sold the cigarettes to the public. Defendants moved to dismiss.
*Holding: The District Court, Amon, J., held that:
(1) abstention was not appropriate;
(2) city did not lack capacity to bring suit against wholesalers as alleged state agents;
(3) city stated claim for violation of CCTA;
(4) city stated public nuisance claim; and
(5) tribes and state were not necessary parties.
Motions denied.
Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger
2008 WL 6136699
No. 04cv1151 WMc
United States District Court, S.D. California, April 29, 2008
Subjects: not yet available
*Synopsis: (from the opinion) Rincon contends that, although it contacted the State to express an interest in negotiations in accordance with the procedure set forth in its Compact, the State was dilatory and cavalier in responding to Rincon even though the State initially acknowledged receipt of Rincon's request and indicated that a representative of the State would ?contact you shortly to schedule a meeting.? [Rincon Motion, 38-41; Rincon Opposition, 24:4-10; Admin. Record, Exh. 2.] During the period of delay, which lasted approximately three to four months, Rincon contends the landscape of gaming in California changed based on expansive compact amendments negotiated early on between the State and tribes with locations and markets unlike that of Rincon.
*Holding: not yet available
United States v. Papakee
550 F.Supp.2d 991
No. 06-CR-162-LRR
United States District Court, N.D. Iowa, Cedar Rapids Division, April 24, 2008
Subjects: Sentences (Criminal procedure); Criminal actions arising in Indian Country (U.S.); Rape.
*Synopsis: Defendant was convicted, in a jury trial, of sexual abuse in Indian country.
*Holding: At sentencing the District Court, Linda R. Reade, Chief Judge, held that:
(1) four-level adjustment for use of force was warranted even though defendant was acquitted of aggravated sexual abuse in Indian country;
(2) conviction was a conviction for a felony and a crime of violence, warranting application of a career offender adjustment; and
(3) even if defendant was not a career offender, upward variance from the advisory Sentencing Guidelines range was warranted.
Sentenced accordingly.
Salt River Pima-Maricopa Indian Community v. United States
2008 WL 1883170
No. 06-943L
United States Court of Federal Claims, April 24, 2008
Subjects: Tribal trust funds -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States.
*Synopsis: (from the opinion) This is a tribal trust accounting case. It comes before the Court on the Government's motion to dismiss pursuant to 28 U.S.C. ? 1500, contending that the same claims were already pending in District Court when the instant Complaint was filed. Having reviewed the parties' initial and supplemental briefs and weighed the documentary evidence and testimony presented by the parties, we find that the claims set forth in the Plaintiff's District Court Complaint were not pending for purposes of ? 1500 when the instant Complaint was filed.
*Holding: not yet available
Gensaw III v. Del Norte County Unified School District
2008 WL 1777668
No. C 07-3009 TEH
United States District Court, N.D. California, April 18, 2008
Subjects: Indian children -- Education -- California -- Del Norte County; Indian children -- Yurok Tribe of the Yurok Reservation, California; Discrimination in education; School closings -- California -- Del Norte County.
*Synopsis: (from the opinion) This matter came before the Court on April 14, 2008 on Defendants' Motion to Dismiss. Plaintiffs allege that the Del Norte County Unified School District, its Superintendent, and five members of its Board discriminated against Native American students on the basis of race and/or national origin by deciding to close middle school grades of Margaret Keating Elementary School, located on the Yurok Reservation in Klamath, California. Plaintiffs assert claims under 42 U.S.C. ? 1983 for violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution, Title VI of the Civil Rights Act of 1964, and Cal. Gov. Code ? 11135. They seek an injunction requiring Defendants to reopen and maintain the middle school grades at Margaret Keating.
*Holding: not yet available
Birdnecklace v. Steele
2008 WL 1766720
No. CIV. 07-5008-AWB
United States District Court, D. South Dakota, Western Division, April 11, 2008
Subjects: Disputed elections -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota ; Leadership disputes -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota.
*Synopsis: (from the opinion) Plaintiff, William Birdnecklace, filed a pro se complaint alleging that defendants acted improperly in relation to the 2006 Oglala Sioux Tribe election of the tribe's council.
*Holding: not yet available
United States v. Oregon
2008 WL 1711525
Civil No. 68-513-KI
United States District Court, D. Oregon, April 8, 2008
Subjects: Fishing rights -- Wenatchi Indians -- Icicle Creek (Wash.); Fishing rights -- Confederated Tribes of the Colville Reservation, Washington; Fishing rights -- Confederated Tribes and Bands of the Yakama Nation, Washington; Fishing -- Off Indian reservations -- Washington (State); Fishing -- Columbia River.
*Synopsis: (from the opinion) The United States filed this suit in 1968 on behalf of certain Indian tribes, seeking to define the tribes' treaty rights to take fish at all usual and accustomed places along the Columbia River and its tributaries (?US v. Oregon?).
*Holding: not yet available
Nez Perce Tribe v. NOAA Fisheries
2008 WL 938430
No. CV-07-247-N-BLW
United States District Court, D. Idaho, April 7, 2008
Subjects: Steelhead (Fish) -- Protection; Fishing rights -- Nez Perce Tribe of Idaho.
*Synopsis: (from the opinion) The Lewiston Orchard Project (LOP) is a series of reservoirs, dams, and canals that provides irrigation water to the Lewiston area. It is owned by the Bureau of Reclamation (BOR) and operated by the Lewiston Orchards Irrigation District (LOID). The LOP withdraws water from creeks that are designated as critical habitat for the Snake River Basin steelhead, a threatened species under the Endangered Species Act (ESA). These withdrawals degrade critical habitat by reducing flows during spawning season and drying up creek beds during summer months. The loss of this habitat has caused steelhead mortality to exceed reproduction in the drainages affected by the LOP. This was of grave concern to the Nez Perce Tribe, as the steelhead play an important role in their culture. All of the drainages affected by the LOP lie within the Tribe's treaty fishing areas. The BOR proposed a plan to improve the operation of the LOP by maintaining certain minimum flows in these critical streams. The ESA required that the plan be reviewed by the National Oceanic and Atmospheric Administration (NOAA) to determine whether it complied with the ESA. NOAA issued a Biological Opinion (BO) finding that the plan did comply with the ESA. The Tribe appealed that decision to this Court. In this decision, the Court finds that NOAA's findings are not supported by a reasoned analysis. There is no assurance that the minimum stream flows proposed by the BOR will improve habitat to promote both the survival and recovery of the steelhead, as required by the ESA. The Court therefore sets aside the Biological Opinion.
*Holding: not yet available
Yellowbear v. Wyoming Attorney General
525 F.3d 921
No. 06-8064
United States Court of Appeals, Tenth Circuit, March 21, 2008
Subjects: Trials (Murder) -- Wyoming; Indian Country (U.S.) -- Defined; Jurisdiction -- Wyoming; Jurisdiction -- United States; Riverton (Wyo.); Wind River Indian Reservation (Wyo.).
*Synopsis: During his state murder trial, petitioner filed pro se habeas corpus petition under ? 2241 on basis that state court lacked jurisdiction over crime. Petitioner was convicted of murder in state court. The United States District Court for the District of Wyoming, Clarence A. Brimmer, J., dismissed petition under Younger abstention doctrine, directing petitioner to exhaust state remedies, and petitioner appealed. In interim, defendant's conviction was affirmed on direct appeal, 174 P.3d 1270.
*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) no basis remained for Younger abstention;
(2) proper avenue for pursuing habeas relief after conviction was ? 2254;
(3) court would not automatically recharacterize petition as one under ? 2254, given risk that subsequent petition challenging conviction on other bases would be second or successive.
Reversed and remanded.
Marceau v. Blackfeet Housing Authority
519 F.3d 838
No. 04-35210
United States Court of Appeals, Ninth Circuit, March 19, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
*Synopsis: Blackfeet Tribe members who owned or leased homes built pursuant to Mutual Help and Homeownership Program (MHHP) brought class action against Department of Housing and Urban Development (HUD), Tribal Housing Authority, and its members, alleging violations of Housing Act and regulations, and seeking declaratory and injunctive relief, and damages. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) Housing Authority waived its tribal immunity;
(2) HUD did not undertake trust responsibility toward plaintiffs;
(3) complaint stated claims against HUD under Administrative Procedure Act (APA) for declaratory and injunctive relief; and
(4) District Court lacked jurisdiction over breach of contract action.
Affirmed in part, reversed in part, and remanded.
United States v. Refert
519 F.3d 752
No. 07-1158
United States Court of Appeals, Eighth Circuit, March 13, 2008
Subjects: Indians of North America -- Defined; United States. Indian Health Service; Medical care -- United States; Eligibility -- Determination standards -- United States.
*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of health care fraud and making false claim against the United States. Defendant appealed.
*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) failure to give jury instruction on regarded as an Indian by the community was not plain error;
(2) sufficient evidence established that defendant received free medical services based on her misrepresentations;
(3) district court did not plainly err in ordering restitution for costs incurred by government; and
(4) district court plainly erred in sentencing defendant to consecutive supervised release terms.
Affirmed in part and reversed in part.
Garreaux v. United States
544 F.Supp.2d 885
No. CIV 07-3021
United States District Court, D. South Dakota, Central Division, March 31, 2008
Subjects: Cheyenne River Housing Authority; Federal aid to housing; Building leases; Fort Laramie, Treaty of, 1851; Mutual Help and Occupancy Agreement; United States. Federal Tort Claims Act; United States. Administrative Procedure Act.
*Synopsis: After Court of Federal Claims dismissed her complaint against government, Native American tenant who allegedly entered into agreement with housing authority to purchase dwelling brought suit against United States, Secretary of Department of Housing and Urban Development and Secretary of Department of Interior under Federal Tort Claims Act (FTCA) and Administrative Procedure Act (APA), seeking damages and declaratory and injunctive relief. Defendants moved to dismiss.
*Holding: The District Court, Kornmann, J., held that:
(1) federal district court lacked subject matter jurisdiction to hear FTCA claims, and
(2) tenant could not sustain claims under APA.
Motion granted.
Yankton Sioux Tribe v. U.S. Army Corps of Engineers
2008 WL 895830
No. CIV 02-4126
United States District Court, D. South Dakota, Southern Division, March 31, 2008
Subjects: United States. Native American Graves Protection and Repatriation Act; Human remains (Archaeology) -- South Dakota; Sacred space -- South Dakota; United States. Water Resources Development Act of 2000; Indian land transfers -- Yankton Sioux Tribe of South Dakota; Yankton Sioux Tribe of South Dakota; United States. Army. Corps of Engineers; Excavation -- South Dakota; North Point Recreation Area (S.D.); Recreation areas -- Design and construction; Real property -- Transfer; Land tenure -- Yankton Sioux Tribe of South Dakota; United States. Administrative Procedure Act.
*Synopsis: (from the opinion) The Tribe alleges the Federal Defendants acted in excess of the statutory authority granted by Congress, and as an administrative agency and officers of such agency, their actions are reviewable under the Administrative Procedures Act (?the APA?), 5 U.S.C. ? 707(2)(A) and (C). In the Prayer for Relief, the Tribe seeks a declaration, pursuant to 28 U.S .C. ? 2201, that the transfer and leasing of the lands set forth above violated WRDA, and are, therefore, null and void. Another declaration the Tribe seeks is that the transfer and leasing did not remove these lands from the exterior boundaries of the Yankton Sioux Reservation. Mandamus relief is also requested, to require the Federal Defendants to cancel all deeds transferring the lands at issue and the lease of the Spillway Recreation Area. Injunctive relief, prohibiting the Federal Defendants from transferring any further Corps of Engineers' land to the State on the properties at issue in this action, is also sought by the Tribe. An award of reasonable attorney's fees, expert witness fees and costs, is sought under the Equal Access to Justice Act, 28 U.S.C. ? 2412.
*Holding: not yet available
Ottawa Tribe of Oklahoma v. Ohio Department of Natural Resources
541 F.Supp.2d 971
No. 3:05 CV 7272
United States District Court, N.D. Ohio, Western Division, March 31, 2008
Subjects: Fishing rights -- Ottawa Tribe of Oklahoma; Hunting rights -- Ottawa Tribe of Oklahoma; Hunting -- Ohio; Fishing -- Ohio; Hunting -- Erie (Lake); Fishing -- Erie (Lake); Treaty rights -- Ottawa Tribe of Oklahoma; Laches.
*Synopsis: Ottawa Tribe filed complaint seeking right to fish and hunt in Ohio and on Lake Erie without restrictions from state department of natural resources (DNR). State filed motion for summary judgment.
*Holding: The District Court, Zouhary, J., held that:
(1) laches barred tribe's action to enforce treaties granting it exclusive hunting and fishing rights in northern Ohio;
(2) laches did not bar tribe's action to enforce treaties granting it fishing rights in Lake Erie; but
(3) any rights to fish on Lake Erie previously granted to tribe under Treaty of Detroit terminated upon ratification of Treaty of 1831.
Motion granted.
Related News Story: Tribe loses lawsuit for right to fish Lake Erie (The Toledo Blade) 4/3/08
Osage Tribe of Indians of Oklahoma v. United States
81 Fed.Cl. 340
No. 99-550 L
United States Court of Federal Claims, March 31, 2008
Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Mines and mineral resources -- Osage Tribe of Oklahoma; Revenue -- Osage Tribe of Oklahoma.
*Synopsis: Indian tribe brought suit against the United States alleging that government violated its duty as trustee of tribe's mineral estate by failing to collect all moneys due from tribal oil leases and to deposit and invest those moneys as required by statute and according to fiduciary duty owed to tribe. Government was found liable for breach of fiduciary duties, 72 Fed.Cl. 629. Subsequently, individuals who identified themselves as personal owners of allotted tribal shares moved to intervene. Plaintiffs filed motion to disqualify proposed intervenors' counsel.
*Holding: The United States Court of Federal Claims, Emily C. Hewitt, J., held that tribe's former counsel was disqualified from representing tribal headright owners who sought to intervene in suit.
Motion granted.
Indian Educators Federation v. Kempthorne
541 F.Supp.2d 257
Civil No. 04-01215(TFH)
United States District Court, District of Columbia, March 31, 2008
Subjects: Indian preference in hiring -- United States; Employee selection -- United States; United States. Dept. of the Interior.
*Synopsis: Organization representing employees of the Office of Special Trustee and the Bureau of Indian Affairs (BIA) sued the Secretary of the Department of the Interior, claiming that the Indian Reorganization Act mandated certain employment practices. Organization moved for summary judgment, and the Secretary moved motion to dismiss or, in the alternative, for summary judgment.
*Holding: The District Court, Thomas F. Hogan, Chief District Judge, held that:
(1) term ?Indian Office? meant positions in the Department of the Interior, whether within or without the Bureau of Indian Affairs (BIA), that directly and primarily related to providing services to Indians, and
(2) declaratory relief to that effect was warranted.
Plaintiff's motion granted in part; defendant's motion denied.
Smith-Barrett v. Potter
541 F.Supp.2d 535
No. 05-CV-6354L
United States District Court, W.D. New York, March 31, 2008
Subjects: Indians of North America -- New York (State) -- Employment; United States. Civil Rights Act of 1964. Title 7; United States Postal Service -- Officials and employees -- Promotions; Discrimination in employment -- United States Postal Service.
*Synopsis: United States Postal Service (USPS) employee brought Title VII action against USPS alleging discrimination due to her gender and/or American Indian race. USPS moved for summary judgment.
*Holding: The District Court, David G. Larimer, J., held that:
(1) American Indians and their descendants are protected from discrimination by Title VII;
(2) employee's non-membership in Indian tribe did not preclude her from bringing Title VII action alleging discrimination due to her American Indian race;
(3) USPS's proffered reasons for selecting Caucasian candidates for certain positions rather than employee were not pretext for racial discrimination; and
(4) USPS did not retaliate against employee in violation of Title VII.
Motion granted.
In re DeCora
387 B.R. 230
Bankrutpcy No. 06-11697-7
United States Bankruptcy Court, W.D. Wisconsin, March 28, 2008
Subjects: Casinos -- Ho-Chunk Nation of Wisconsin; Dividends -- Ho-Chunk Nation of Wisconsin -- Members; Bankruptcy; Debtor and creditor.
*Synopsis: Trustee brought adversary proceeding against debtor and bank, seeking to avoid bank's security interest in debtor's right to receive tribal per capita distributions from tribal gaming revenues and compel turnover of postpetition funds received by bank.
*Holding: The Bankruptcy Court, Thomas S. Utschig, J., held that:
(1) tribe's payments to bank, under debtor's assignment, were made using funds belonging to debtor;
(2) bank's security interest was not perfected under tribal ordinances governing payment of per capita distributions; and
(3) bank's security interest was unperfected and could be avoided by trustee.
Security interest avoided.
Oneida Tribe of Indians of Wisconsin v. Village of Hobart, Wisconsin
542 F.Supp.2d 908
No. 06-C-1302
United States District Court, E.D. Wisconsin, March 28, 2008
Subjects: Land tenure -- Oneida Tribe of Indians of Wisconsin; Land tenure -- Hobart (Wis.); Real property -- Sales -- Wisconsin -- Hobart.
*Synopsis: Indian tribe brought action for declaratory and injunctive relief against village's condemnation of a portion of tribe's newly-acquired property and levy of a special assessment on such property. After village counter-claimed for declaratory relief, the parties cross-moved for summary judgment.
*Holding: The District Court, William C. Griesbach, J., held that:
(1) land within original boundaries of Indian reservation, which, after being conveyed by the United States to individual tribal members in fee simple, was transferred to third parties before being reacquired by the tribe, was subject to village's authority under Wisconsin law to condemn private land for public roadways and to charge against such land the costs of improvements, and
(2) tribe's claim that it was entitled to return of previously-paid assessment would be dismissed.
Judgment for village.
Keweenaw Bay Indian Community v. Kleine
546 F.Supp.2d 509
No. 2:05-CV-224
United States District Court, W.D. Michigan, Northern Division, March 27, 2008
Subjects: Taxation ? Law and legislation -- Michigan; Sales tax -- Law and legislation -- Michigan -- Application -- Tribes; Keweenaw Bay Indian Community of L'Anse and Ontonagon Bands of Chippewa Indians of the L'Anse Reservation, Michigan; Intergovernmental agreements -- Taxation -- Michigan; Intergovernmental agreements -- Taxation -- Tribes -- Michigan.
*Synopsis: Native American tribe brought action against state, state treasury officials, and secretary of state, alleging illegal enforcement of Michigan Sales Tax Act and Michigan Use Tax Act against tribe members. Cross-motions for summary judgment were filed.
*Holding: The District Court, Gordon J. Quist, J., held that:
(1) tribe's claims challenging state's enforcement of sales and use tax acts as violation of federal law and alleging that tribe had right to perform its own offset were not barred by Eleventh Amendment;
(2) tribe did not have standing to seek declaratory judgment that any future offsets from federal funds owed to tribe, or any other attempts to collect previous tax assessments, would be unlawful;
(3) tribe's claims did not warrant issuance of declaratory judgment that tribe's own off-set of funds was lawful exercise of tribe's set-off rights under tribal law;
(4) tribe had standing to assert claims that tax offsets violated federal law against state treasury officials and secretary of state in their individual capacities; and
(5) tribe was not ?person? under ? 1983 for purposes of claims against individual officials of state treasury that tribe was not subject to state sales and use taxes.
Defendants' motion granted.
Smith v. Everson
2008 WL 818512
No. CV-06-0791 (SJF)(AKT)
United States District Court, E.D. New York, March 21, 2008
Subjects: Shinnecock Indian Nation (N.Y.) -- Members -- Employment -- Off Indian reservations; Income tax -- Shinnecock Indian Nation (N.Y.) -- Members.
*Synopsis: (from the opinion) On February 23, 2006, plaintiff Jonathan K. Smith (plaintiff) filed a complaint against Mark W. Everson, in his official capacity as Commissioner of Internal Revenue (defendant), seeking, inter alia, judgment declaring invalid defendant's assessment of taxes, penalties and interest on income earned purportedly on the Shinnecock Indian reservation for the year 2000.
*Holding: not yet available
Salmon Spawning and Recovery Alliance v. Lohn
2008 WL 782851
No. C06-1462RSL
United States District Court, W.D. Washington, at Seattle, March 20, 2008
Subjects: Fishing rights -- Tribes -- Northwest, Pacific; Salmon fishing -- Puget Sound (Wash.); Puget Sound Salmon Management Plan; Salmon fisheries -- Management; Chinook salmon -- Protection; United States. Endangered Species Act of 1973; United States. Administrative Procedure Act; Salmon Spawning & Recovery Alliance.
*Synopsis: (from the opinion) This case concerns a challenge to two decisions by National Marine Fisheries Service (?NMFS?) involving Puget Sound Chinook salmon: the approval of a resource management plan prepared by the Puget Sound Indian Tribes and the Washington Department of Fish and Wildlife (?WDFW?), and the biological opinion issued by NMFS regarding the effects of its decision to approve the plan.
*Holding: not yet available
Parks v. Tulalip Resort Casino
2008 WL 786673
No. C07-1406RSM
United States District Court, W.D. Washington, at Seattle, March 20, 2008
Subjects: Casinos -- Tulalip Tribes of the Tulalip Reservation, Washington -- Officials and employees -- Promotions; Discrimination in employment -- Tulalip Tribes of the Tulalip Reservation, Washington; Indians of North America ? Mixed descent; Sovereign immunity -- Tulalip Tribes of the Tulalip Reservation, Washington; United States. Civil Rights Act of 1964. Title 7; Exhaustion of administrative remedies; Exhaustion of tribal remedies; Jurisdiction -- United States.
*Synopsis: (from the opinion) Defendant argues that Plaintiff's complaint should be dismissed because it possesses sovereign immunity from suit as a federally recognized tribe. Alternatively, Defendant argues that: (1) Tulalip Tribes is exempt from the requirements of Title VII of the Civil Rights Act; (2) Plaintiff has not exhausted federal or tribal administrative remedies; and (3) Plaintiff has not exhausted his tribal court remedies.
*Holding: not yet available
Coalition to Defend Affirmative Action v. Regents of the University of Michigan
539 F.Supp.2d 924
Nos. 06-15024, 06-15637
United States District Court, E.D. Michigan, Southern Division, March 18, 2008
Subjects: Constitutional law -- Michigan; Constitutional law -- United States; Michigan. Constitution; Affirmative action programs -- Michigan; University of Michigan. Law School -- Admission; Minorities -- Education (Higher) -- United States; Equality before the law -- United States; United States. Constitution. 14th Amendment; United States. Civil Rights Act of 1964. Race. Ethnicity.
*Synopsis: Pro-affirmative action organizations and others brought action against state universities, Michigan's Attorney General, and others, challenging amendment to Michigan State Constitution prohibiting State from discriminating against or granting preferential treatment to any individual or group on basis of race, sex, color, ethnicity, or national origin. University of Michigan students and others brought separate action against Michigan's Attorney General contending that amendment was unconstitutional as applied to public colleges and universities. Cases were consolidated, and various motions were filed.
*Holding: The District Court, Lawson, J., held that:
(1) state universities were properly joined as defendants in organizations' action;
(2) organizations lacked standing to assert claim that amendment violated First Amendment;
(3) amendment to did not have discriminatory purpose, and thus did not violate equal protection rights under conventional analysis;
(4) amendment did not violate equal protection rights of minority applicants under Hunter theory that amendment made it more difficult to use political process to their advantage; and
(5) amendment was not preempted by Title VI or Title IX.
Order accordingly.
Oglala Sioux Tribe v. United States Army Corps of Engineers
537 F.Supp.2d 161
Civil Action No. 01-2679 (GK)
United States District Court, District of Columbia, March 15, 2008
Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Missouri River Watershed; Indian land transfers; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Treaties -- Dakota Indians; Land tenure -- Tribes.
*Synopsis: Indian tribe brought action against, inter alia, the United States Army Corps of Engineers (Corps), seeking declaratory, injunctive, and mandamus relief from decision, pursuant to the Water Resources Development Act of 1999 (WRDA), to transfer or lease certain lands and recreational areas to the South Dakota Department of Game, Fish and Parks, the Cheyenne River Sioux Tribe, and the Lower Brule Sioux Tribe. Order to show cause why case should not be dismissed was entered.
*Holding: The District Court, Gladys Kessler, J., held that:
(1) tribe lacked standing to challenge transfer of the lands, and
(2) mandamus relief was not appropriate.
Dismissed.
Water Wheel Camp Recreational Area, Inc. v. LaRance
2008 WL 719215
No. CV08-0474-PHX-DGC
United States District Court, D. Arizona, March 14, 2008
Subjects: Leases -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Leases -- Tribes -- Federal supervision; United States. Bureau of Indian Affairs; Rent; Eviction; Jurisdiction -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Water Wheel Camp Recreation Area.
*Synopsis: (from the opinion) On March 12, 2008, Plaintiffs Water Wheel Camp Recreation Area, Inc. and Robert Johnson filed an Emergency Application and Motion for Temporary Restraining Order and Preliminary Injunction (?TRO Application?). Dkt. # 8. Plaintiffs have been sued for eviction in an action pending in the Tribal Court of the Colorado River Indian Tribes (?CRIT?). Plaintiffs ask this Court to enjoin Defendants-a judge and clerk of the Tribal Court-from adjudicating the eviction action. Plaintiffs argue that the Tribal Court lacks subject matter jurisdiction under Montana v. United States, 450 U.S. 544 (1981). In particular, Plaintiffs ask the Court to enjoin Defendants from proceeding with a hearing today-March 14, 2008-in the eviction action.
*Holding: not yet available
Menominee Indian Tribe of Wisconsin v. United States
539 F.Supp.2d 152
Civil Action No. 07-812 (RMC)
United States District Court, District of Columbia, March 14, 2008
Subjects: Health services -- Menominee Indian Tribe of Wisconsin; United States. Indian Self-Determination and Education Assistance Act; Contracts -- United States; Breach of contract; Medical care, Cost of.
*Synopsis: Indian tribe that operated health care system for tribal members pursuant to self-determination contract with Secretary of Health and Human Services (HHS) brought action against HHS, alleging breach of that contract. HHS moved to dismiss.
*Holding: The District Court, Rosemary M. Collyer, J., held that:
(1) tribe's claims fore certain years were barred by statute of limitations;
(2) tribes claim for certain year was barred by laches; but
(3) Secretary was not entitled to dismissal of claims for remaining years.
Motion granted in part and denied in part.
United States v. Smith
2008 WL 700320
Criminal No. 2:05CR201
United States District Court, W.D. North Carolina, Bryson City Division, March 13, 2008
Subjects: Restitution -- Members -- Eastern Band of Cherokee Indians of North Carolina; Profit-sharing -- Members -- Eastern Band of Cherokee Indians of North Carolina; Attachment and garnishment -- North Carolina -- Members -- Eastern Band of Cherokee Indians of North Carolina; Casinos -- Eastern Band of Cherokee Indians of North Carolina.
*Synopsis: (from the opinion) Defendant's two timely motions objecting to the garnishment of his gaming proceeds appear to be based on his belief that the garnished funds ought to be paid directly to Mignon Parker, the restitution payee named in Defendant's judgment, instead of to the Government...... The Court also addresses the Tribe's motion to quash, which is based on the Tribe's contention that it should be immune from garnishment because of its sovereign nature. Answer of the Garnishee. Indian tribes have traditionally been considered sovereign nations, possessing common law immunity from suit.
*Holding: not yet available
Kalispel Tribe of Indians v. Moe
2008 WL 687527
No. CV-03-423-EFS
United States District Court, E.D. Washington, March 12, 2008
Subjects: Real estate development; Joint ventures; Racetracks (Automobile racing); Sovereign immunity -- Kalispel Indian Community of the Kalispel Reservation, Washington.
*Synopsis: (from the opinion) Plaintiff asserts that Defendants' permissive counterclaims are barred by the doctrine of tribal sovereign immunity. (Ct. Rec. 165 at 7.) Defendants respond that Plaintiff waived its sovereign immunity in several ways, including by entering into the Joint Venture Agreement.
*Holding: not yet available
Center for Biological Diversity and Maricopa Audubon Society v. Kempthorne
2008 WL 659822
No. CV 07-0038-PHX-MHM
United States District Court, D. Arizona, March 6, 2008
Subjects: United States. Fish and Wildlife Service; Tribes -- Southwestern States; Eagles -- Protection -- Sonoran Desert; Endangered species -- Protection.
*Synopsis: (from the opinion) Plaintiffs challenge the United States Fish & Wildlife Service?s (?FWS?) August 30, 2006 finding denying Plaintiffs? petition to define the bald eagle population of the Sonoran Desert region of the American southwest (?Desert bald eagle?) as a distinct population segment (?DPS?) and to list the Desert bald eagle as ?endangered? pursuant to the Endangered Species Act
*Holding: not yet available
Related News Story: Arizona tribes win ruling in eagle listing case (Indianz.com) 3/11/08
Rumsey Indian Rancheria of Wintun Indians of California v. Dickstein
2008 WL 648451
No. 2:07-cv-02412-GEB-EFB
United States District Court, E.D. California, March 5, 2008
Subjects: Investments -- Rumsey Indian Rancheria of Wintun Indians of California; Breach of contract; Casinos -- Management; Lawyers -- Rumsey Indian Rancheria of Wintun Indians of California; National Indian Gaming Commission (U.S.).
*Synopsis: (from the opinion) Plaintiffs allege that Opper and Dickstein ?repeatedly involved the Tribe in complicated investments or transactions in which the business terms were more favorable to others than they were to the Tribe. Many such deals were fraught with self-dealing and conflicts of interest they failed to disclose.? Plaintiffs further allege that Opper collected fees for purportedly managing Tribal assets, without actually managing them[, and] Opper's entire method and structure of compensation was an artifice created [by Opper and Dickstein] to avoid regulatory oversight of Opper's management of an Indian-owned gaming facility, which was illegal without the prior approval of the National Indian Gaming Commission.
*Holding: not yet available
Klamath Tribes of Oregon v. Pacific Corp
268 Fed.Appx. 575
No. 05-36010
United States Court of Appeals, District of Columbia Circuit, February 28, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Treaty rights -- Klamath Tribes, Oregon; Fishing rights -- Klamath Tribes, Oregon; PacificCorp.
*Synopsis: (from the opnion) Here, Appellants seek to maintain an action for damages against PacificCorp for violating a provision in the Treaty with the Klamath, etc., 1864, 16 Stat. 707 (Klamath Treaty), that secured to the Klamath Tribe ?the exclusive right of taking fish in the streams and lakes, included in said reservation....? Id., art 1. Although this Treaty provision secures to the Klamath exclusive on-reservation fishing rights, it is not so qualitatively different from the off-reservation fishing rights secured to the Skokomish Tribe that we are free to depart from the majority's holding in Skokomish. Further, as in Skokomish, there is no language in the Klamath Treaty that would support a claim for damages against a non-contracting private party. I therefore conclude that Appellants' claim for damages is foreclosed by Skokomish.
*Holding: not yet available
California Valley Miwok Tribe v. United States
515 F.3d 1262
No. 06-5203
United States Court of Appeals, Ninth Circuit, February 15, 2008
Subjects: Federal recognition of Indian tribes -- California Valley Miwok Tribe; United States. Indian Reorganization Act; Constitutions -- Tribes -- Government policy -- United States; United States. Bureau of Indian Affairs.
*Synopsis: Members of Indian tribe brought action on behalf of tribe challenging Secretary of the Interior's refusal to approve tribal constitution, seeking declaration that tribe was organized pursuant to Indian Reorganization Act. The United States District Court for the District of Columbia, Robertson, J., 424 F.Supp.2d 197, granted government's motion to dismiss. Members appealed.
*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) Secretary had authority under the Act to refuse to approve constitution, and
(2) any error in district court's denial of members' motions for leave to file supplemental claims was harmless.
Affirmed.
Hinsley v. Standing Rock Child Protective Services
516 F.3d 668
No. 07-1435
United States Court of Appeals, Eighth Circuit, February 5, 2008
Subjects: Child abuse; Sex offenders; Child welfare -- Standing Rock Sioux Tribe of North & South Dakota; United States. Federal Tort Claims Act; Negligence -- Standing Rock Sioux Tribe of North & South Dakota.
*Synopsis: Mother brought Federal Tort Claims Act (FTCA) action against Bureau of Indian Affairs (BIA) and child protection agency operated by Indian tribe pursuant to self-determination contract, alleging that agency negligently placed her brother in her home without notifying her that brother was child molester, resulting in his molestation of her daughter. The United States District Judge for the District of North Dakota, Daniel L. Hovland, J., 470 F.Supp.2d 1037, entered summary judgment for agency. Mother appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that alleged failure of agency to warn mother was subject to FTCA's discretionary function exception.
Affirmed.
Wagoner County Rural Water District No. 2 v. United States
2008 WL 559437
No. 07-CV-0642-CVE-PJC
United States District Court, N.D. Oklahoma, February 26, 2008
Subjects: Sovereign immunity -- Cherokee Nation, Oklahoma; United States. McCarran Amendment; Water rights; Fort Gibson Lake (Okla.); Water districts; Jurisdiction -- United States.
*Synopsis: (from the opinion) Plaintiffs claim instead that the ?tribal sovereign immunity of the Cherokee Nation of Oklahoma has been abrogated by Congress' enactment of the McCarran Amendment.?.....According to plaintiffs, ?[b]ecause the Cherokee Nation's sovereign immunity is co-extensive with that of the United States and the McCarran Amendment waived the sovereign immunity of the United States regarding the adjudication of water rights, the sovereign immunity of the Cherokee Nation has also been waived.?
*Holding: not yet available
Kaltag Tribal Council and
Hudson and Salina Sam v. Jackson
Westlaw citation not currently available
No. 3:06-cv-00211-TMB
United States District Court, D. Alaska, February 22, 2008
Subjects: Parent and child (Law); Trials (Custody of children) -- Alaska; Indian children -- Legal status, laws, etc.; Concurrent jurisdiction -- Adoption -- Tribes -- Alaska; Child welfare -- Alaska; United States. Indian Child Welfare Act of 1978; Judgments, Foreign -- Kaltag, Village of (AK); Jurisdiction -- Kaltag, Village of (AK); Adoption -- Kaltag, Village of (AK).
*Synopsis: (from the opinion) Plaintiffs? motion for summary judgment requests a declaration that federally recognized tribes in Alaska possess concurrent jurisdiction with the State to adjudicate adoptions of their own tribal members, and that the State must therefore give full faith and credit to tribal adoption orders pursuant to ? 1911(d) of the ICWA. In addition, the motion seeks a declaration that, since the tribal adoption decree of N.S. is entitled to full faith and credit under ? 1911(d) of the ICWA, the Sams, as the adoptive parents, are entitled to have N.S.?s adoption order recognized and an amended birth certificate issued pursuant to 42 U.S.C. ? 1983.
*Holding: not yet available
Related News Stories: Federal judge says tribal courts can supervise child adoptions (Anchorage Daily News) 3/11/08.
St. Croix Chippewa Indians of Wisconsin v. Kempthorne
535 F.Supp.2d 33
Civil No. 07-2210 (RJL)
United States District Court, District of Columbia, February 22, 2008
Subjects: Land into trust; United States. Bureau of Indian Affairs; Indian gaming -- St. Croix Chippewa Indians of Wisconsin; Casinos -- Off Indian reservations -- St. Croix Chippewa Indians of Wisconsin.
*Synopsis: Indian tribe brought action challenging Bureau of Indian Affairs' (BIA) indication that it would decide whether to take land into trust before considering tribe's application for approval of off-reservation casino. Tribe moved for preliminary injunction.
*Holding: The District Court, Leon, J., held that:
(1) tribe was not entitled to preliminary injunction, and
(2) letter from BIA indicating that it would rule on whether tribe could take land into trust before considering application was not "final agency action."
Motion denied.
Presley v. Edwards
2008 WL 495875
No. 2:04-CV-729-WKW
United States District Court, M.D. Alabama, Northern Division, February 20, 2008
Subjects: Freedom of religion -- Indian prisoners; Indian prisoners -- Rites and ceremonies; Indian prisoners -- Religion; Prisons -- Alabama; Alabama. Dept. of Corrections; Religious articles.
*Synopsis: (from the opinion) Presley claims that Edwards violated ADOC policy by denying him access to his religious items. Presley points to Program Services Administrative Memorandum Number 5-98 (?Memorandum 5-98?), which governs what spiritual items inmates who practice Native American spirituality can possess.
*Holding: not yet available
Quechan Indian Tribe of the Fort Yuma Indian Reservation v. U.S. Department of Interior
547 F.Supp.2d 1033
No. CV 07-0677-PHX-JAT
United States District Court, D. Arizona, February 15, 2008
Subjects: Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; United States. National Environmental Policy Act of 1969; United States. National Historic Preservation Act of 1966; Public land sales; Welton-Mohawk Irrigation and Drainage District; United States. Welton-Mohawk Transfer Act of 2000; United States. Administrative Procedure Act; Energy development; Petroleum refineries.
*Synopsis: Quechan Tribe brought action against Bureau of Reclamation (BOR), irrigation and drainage district, and officers, challenging transfer of federal land to district. Parties cross-moved for summary judgment.
*Holding: The District Court, James A. Teilborg, J., held that:
(1) tribe waived right to challenge BOR's choice of action alternatives;
(2) BOR properly analyzed impacts of proposed oil refinery;
(3) BOR was not required to supplement draft environmental impact statement (EIS);
(4) BOR conducted proper analysis of cumulative impacts;
(5) BOR made reasonable and good faith effort to identify historic properties;
(6) BOR did not impermissibly segment Section 106 process;
(7) BOR properly consulted with affected tribes; and
(8) BOR properly analyzed area of potential effects upon historic properties.
Defendants' motion granted.
Reber v. Steele
2008 WL 444545
Civil No. 2:08-CV-051BSJ
United States District Court, D. Utah, Central Division, February 14, 2008
Subjects: Hunting rights -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Members; Game laws -- Utah; Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah; Indians of North America -- Defined; Indian Country (Utah) -- Defined.
*Synopsis: (from the opinion) On January 16, 2008, Colton Reber filed a petition pursuant to 28 U.S.C. ? 2254, challenging his March 18, 2004 adjudication as a delinquent by the Eighth District Juvenile Court, State of Utah, where he avers he is currently awaiting sentencing. According to Reber, the juvenile court found that he violated Utah Code Ann. ? 23-20-4(3)(a) (wanton destruction of protected wildlife) during the 2002 deer hunting season by shooting and killing a trophy buck mule deer within the exterior boundaries of the Uintah and Ouray Indian Reservation without a valid State hunting license. Reber alleges that he is a member of the Uintah Band of Indians, and that as such, he possesses hunting rights that are counted among the various rights of user reserved to the Band under the Executive Order of October 3, 1861, and the Act of May 5, 1864, ch. 57, 13 Stat. 64, which set apart the Uintah Indian Reservation for their use and occupancy. Reber asserts that the State of Utah does not have jurisdiction to regulate or punish the exercise of his hunting rights as a member of the Uintah Band within the reservation's boundaries.
*Holding: not yet available
Southwest Casino and Hotel Corp. v. Flyingman
2008 WL 425850
No. Civ-07-949-C
United States District Court, W.D. Oklahoma, February 13, 2008
Subjects: United States. Racketeer Influenced and Corrupt Organizations Act; Southwest Casino and Hotel Corp.; Indian business enterprises -- Cheyenne-Arapaho Tribes of Oklahoma; Exhaustion of tribal remedies.
*Synopsis: (from the opinion) Defendants argue that pursuant to the tribal exhaustion doctrine, the Court should either dismiss or stay some or all of Plaintiff's claims.
*Holding: not yet available
In re Schugg
384 B.R. 263
No. CV 05-2045-PHX-JAT
United States District Court, D. Arizona, February 12, 2008
Subjects: Roads -- Right of way -- On Indian reservations; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Bankruptcy; Land titles.
*Synopsis: Chapter 11 trustee of the bankruptcy estate of debtors, who had acquired land located within the boundary of Indian reservation, brought action against Indian tribe and allottees of Indian land, claiming right of access to debtors' land.
*Holding: The District Court, James A. Teilborg, J., held that:
(1) with respect to Indian tribe's counterclaim disputing legal access across its tribal land, United States was a required party, but not an indispensable party requiring dismissal of Chapter 11 trustee's action;
(2) laches prevented Indian tribe from denying debtors' estate access to Indian reservation road; and
(3) Indian reservation road was not a public road under 1866 statute establishing rights-of-way for highways constructed before its passage.
Judgment in accordance with opinion.
Aleutian Pribilof Islands Association, Inc. v. Kempthorne
537 F.Supp.2d 1
Civil Action No. 06-2173(CKK)
United States District Court, District of Columbia, February 11, 2008
Subjects: Aleutian/Pribilof Islands Association -- Finance; United States. Indian Self-Determination and Education Assistance Act; United States. Alaska Native Claims Settlement Act; The Aleut Corporation -- Finance; Alaska Native corporations.
*Synopsis: Nonprofit that represented 13 tribal governments in Alaska, and was authorized to enter self-governance pacts with Secretary of the Interior to carry out programs, functions, services, and activities (PFSAs) pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA), brought action challenging Secretary's decision to provide to regional corporation created pursuant to Alaska Native Claims Settlement Act (ANCSA) monies which previously had been provided on yearly basis to nonprofit. Parties cross-moved for summary judgment, and Secretary also filed partial motion to dismiss.
*Holding: The District Court, Colleen Kollar-Kotelly, J., held that:
(1) nonprofit did not fail to exhaust administrative remedies;
(2) Bureau of Indian Affairs (BIA), in deciding nonprofit's request for ANCSA funds, had to apply criteria of ISDEAA and related regulations restricting government's discretion to decline Indian tribe funding proposals; and
(3) remand for further proceedings was appropriate remedy for BIA's arbitrary and capricious decision not to apply ISDEAA criteria in deciding nonprofit's funding request.
Ordered accordingly.
New York v. Shinnecock Indian Nation
560 F.Supp.2d 186
Nos. 03-CV-3243 (JFB)(ARL), 03-CV-3466 (JFB)(ARL)
United States District Court, E.D. New York, February 7, 2008
Subjects: Reclamation of land -- New York (State) -- Shinnecock Indian Nation, New York; Land tenure -- Shinnecock Indian Nation, New York -- New York (State) -- Suffolk County; Casinos -- Design and construction -- Shinnecock Indian Nation, New York -- New York (State) -- Suffolk County.
*Synopsis: New York State, State agencies and a town sued an Indian nation and its tribal officials, seeking to enjoin them from constructing a casino and conducting certain gaming on a parcel of non-reservation property. Preliminary injunction barring construction was granted, 280 F.Supp.2d 1, the parties' cross-motions for summary judgment were denied, 400 F.Supp.2d 486, and following a bench trial, the judgment was entered for the plaintiffs, 523 F.Supp.2d 185.
*Holding: Subsequently, the District Court, Joseph F. Bianco, J., held that injunction to be issued would properly be limited to the construction and operation of a casino or gaming on the property, rather than enjoining any activity on the property that violated town zoning laws.
Governor of Kansas v. Kempthorne
516 F.3d 833
No. 06-3213
United States Court of Appeals, Tenth Circuit, January 30, 2008
Subjects: Trust lands -- Wyandotte Tribe of Oklahoma; Land into trust -- Wyandotte Tribe of Oklahoma; Indian gaming -- Wyandotte Tribe of Oklahoma; United States. Dept. of the Interior; Wyandotte Tribe of Oklahoma -- Land tenure -- Kansas -- Kansas City; Quiet title actions.
*Synopsis: Governor of Kansas and several Indian tribes challenged decision of Department of Interior (DOI) to take tract of land into trust for Wyandotte Indian Tribe upon which Tribe intended to operate casino. The United States District Court for the District of Kansas, 430 F.Supp.2d 1204, Julie A. Robinson, J., affirmed trust status of tract, and plaintiffs appealed.
*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) Quiet Title Act prevented application of Administrative Procedure Act (APA) waiver;
(2) action qualified as quiet title action so as to render Quiet Title Act analysis applicable;
(3) prior lawsuit did not affect application of Quiet Title Act in current action; and
(4) neither order of court in prior litigation between parties, nor Secretary's continued participation in current litigation, provided means on judicial review to avoid application of United States' sovereign immunity in current action in absence of valid waiver by Congress.
Appeal dismissed and remanded to district court with instructions to vacate its judgment and dismiss case.
In re Harper
516 F.3d 1180
No. 07-5016
United States Court of Appeals, Tenth Circuit, January 24, 2008
Subjects: Debtor and creditor -- Oklahoma; Vehicles -- Registration and transfer -- Muscogee (Creek) Nation, Oklahoma; Bankruptcy.
*Synopsis: Chapter 7 trustee brought adversary proceeding to avoid credit union's lien against debtors' vehicle. The United States Bankruptcy Court for the Northern District of Oklahoma entered judgment in trustee's favor and denied credit union's motion for new trial. Credit union appealed. The Bankruptcy Appellate Panel, 2007 WL 45918, affirmed. Credit union appealed.
*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) state statute deeming security interest in vehicle registered by Indian tribe valid if perfected under tribal law did not apply to credit union's lien;
(2) tribal title issued for vehicle was not ?certificate of title? under Uniform Commercial Code (UCC);
(3) credit union did not have purchase money security interest under Oklahoma law and could not rely on automatic perfection;
(4) credit union was not entitled to statutory subrogation; and
(5) credit union was not entitled to equitable subrogation.
Affirmed.
Atwood v. Fort Peck Tribal Court Assiniboine
513 F.3d 943
No. 06-35299
United States Court of Appeals, Ninth Circuit, January 18, 2008
Subjects: Jurisdiction -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Exhaustion of tribal remedies -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Trials (Custody of children) -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana.
*Synopsis: Non-Indian father sued his Indian daughter's maternal aunt, who was seeking custody of his daughter after death of her Indian mother, and the Tribal Court that had granted temporary custody to child's maternal grandmother, challenging jurisdiction of Tribal Court, alleging substantive due process violation, and seeking injunctive relief. The United States District Court for the District of Montana, Richard F. Cebull, J., granted defendants' motion to dismiss. Father appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) domestic relations exception did not bar suit;
(2) father failed to exhaust tribal remedies;
(3) exhaustion was not excused by bad faith;
(4) exhaustion was not excused on ground of delay; and
(5) exhaustion was not excused for lack of tribal jurisdiction.
Affirmed.
United States v. Lowry
512 F.3d 1194
No. 06-10469
United States Court of Appeals, Ninth Circuit, January 16, 2008
Subjects: Occupancy (Law) -- United States; Forest reserves -- United States; Indian allotments -- Klamath National Forest (Calif. and Or.); Karuk Indians.
*Synopsis: Defendant was convicted by a United States Magistrate Judge of occupation of United States Forest Service land without authorization. The United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, affirmed the conviction, and defendant appealed.
*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) addressing an issue of first impression, the existence of authorization in the form of individual aboriginal title was an affirmative defense;
(2) defendant failed to establish affirmative defense of authorization in form of individual aboriginal title; and
(3) district court lacked jurisdiction to consider defendant's collateral attack on administrative proceedings in which her application for Indian allotment was denied.
Affirmed.
Wisconsin v. Ho-Chunk Nation
512 F.3d 921
No. 07-1584
United States Court of Appeals, Seventh Circuit, January 14, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act; Revenue sharing -- Wisconsin.
*Synopsis: State of Wisconsin brought action to compel arbitration in dispute over failure of Indian tribe to make certain payments to State. The district court, 402 F.Supp.2d 1008, compelled arbitration. Tribe appealed. The Court of Appeals, 463 F.3d 655, vacated and remanded. On remand, the United States District Court for the Western District of Wisconsin, John C. Shabaz, J., 2006 WL 3813654, granted State's motion to amend complaint to seek declaratory and injunctive relief, to allege breach of contract, and to compel performance under compact terms. Tribe counterclaimed alleging breach of contract and violations of Indian Gaming Regulatory Act (IGRA). The district court, 478 F.Supp.2d 1093, granted in part and denied in part motions of tribe to dismiss or for summary judgment. Tribe took interlocutory appeal.
*Holding: The Court of Appeals, Flaum, Circuit Judge, held that:
(1) federal jurisdiction under IGRA was limited to alleged compact violations relating to seven items listed in catch-all provision;
(2) Congress abrogated sovereign immunity of tribe with respect to State's claim to enjoin tribe's class III gaming due to its alleged refusal to submit to binding arbitration;
(3) federal court had jurisdiction over cause of action brought by State seeking declaratory judgment that it had negotiated in good faith with tribe as required by IGRA;
(4) supplemental jurisdiction existed over contractual claim;
(5) independent basis for federal jurisdiction existed to address causes of action brought by State to enforce dispute resolution provision in gambling compact with Indian tribe pursuant to Federal Arbitration Act (FAA) as it related to arbitrable claims;
(6) state court decision which purportedly served to invalidate prior waiver of sovereign immunity by State of Wisconsin in gambling compact with Indian tribe did not affect issue of whether waiver of sovereign immunity by Indian tribe remained intact; and
(7) determination had to be made as to which claims were arbitrable.
Affirmed in part, vacated in part, and remanded.
United States v. Gachot
512 F.3d 1252
No. 07-6061
United States Court of Appeals, Tenth Circuit, January 10, 2008
Subjects: Oklahoma -- Law and legislation -- Application -- Kiowa Indian Tribe of Oklahoma -- Members; Cockfighting; Crimes without victims -- Indian Country (U.S); Criminal jurisdiction -- United States.
*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma of operating an illegal gambling business, and he appealed.
*Holding: The Court of Appeals, Lucero, Circuit Judge, held that defendant's arguments that district court lacked jurisdiction over original indictment that was dismissed were moot.
Affirmed.
Osage Tribe of Indians of Oklahoma v. United States
263 Fed.Appx. 43
No. 2007-5120
United States Court of Appeals, Federal Circuit, January 9, 2008
Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Mines and mineral resources -- Osage Tribe of Oklahoma; Oil and gas leases -- Osage Tribe of Oklahoma; Revenue -- Osage Tribe of Oklahoma.
*Synopsis: Indian tribe sued United States, alleging that United States breached its trust responsibilities to tribe in managing thousands of leases for oil, gas, and other minerals. Following trial of first phase of case, the United States Court of Federal Claims, Emily C. Hewitt, J., awarded tribe approximately $1,800,000 in damages and entered judgment. Government appealed, and then moved to dismiss appeal.
*Holding: The Court of Appeals, Lourie, Circuit Judge, held that judgment could not be certified as final judgment on individual claim in multiple-claim action for purposes of immediate appeal.
Motion to dismiss granted.
Cobell v. Kempthorne
532 F.Supp.2d 37
Civil Action No. 96-1285 (JR)
United States District Court, District of Columbia, January 30, 2008
Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior.
*Synopsis: Following finding that Department of Interior breached of its duty under the Indian Trust Fund Management Reform Act to produce an accounting for individual Indian money (IIM) account holders, 91 F.Supp.2d 1, affirmed by 240 F.3d 1081, bench trial was conducted for purpose of determining whether the Department of Interior had remedied or was remedying that breach.
*Holding: The District Court, James Robertson, J., held that Department of Interior's 2007 historical accounting plan did not satisfy Department's obligation under Indian Trust Fund Management Reform Act to produce an accounting of individual Indian money (IIM) trust accounts.
Findings of fact and conclusions of law entered.
Allen v. Mayhew
2008 WL 223662
No. CIV S-04-0322-LKK-CMK
United States District Court, E.D. California, January 28, 2008
Subjects: Employees, Dismissal of -- Gold Country Casino (Calif.); Sovereign immunity -- Berry Creek Rancheria of Maidu Indians of California; Sovereign immunity -- Gold Country Casino (Calif.); Government agencies -- Tribes -- Defined; Jurisdiction.
*Synopsis: (from the opinion) In this case, defendants claim they fall within the tribal sovereign immunity permitted to protect the Tribe and Casino from action because they are ?officials? or ?agents? of the Tribe and/or the Casino, and that plaintiff cannot circumvent the sovereign immunity by naming individual tribal officials or agents in place of the Tribe.
*Holding: not yet available
Ak-Chin Indian Community v. United States
80 Fed.Cl. 305
No. 06-932 L
United States Court of Federal Claims, January 25, 2008
Subjects: United States. Court of Federal Claims; United States. District Court (District of Columbia); Jurisdiction; Breach of trust -- United States; Trusts and trustees -- United States; Leases -- On trust lands -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona.
*Synopsis: Indian tribe brought suit against the United States seeking damages for breach of trust obligations. Government moved to dismiss.
*Holding: The United States Court of Federal Claims, Hewitt, J., held that preponderance of the credible evidence supported conclusion that plaintiff's complaint in federal district court was filed after it filed a complaint asserting the same claim in the Court of Federal Claims, and thus statute divesting the Court of Federal Claims of jurisdiction over a claim against the United States which is pending in another court was not applicable.
Motion denied.
Farmers Union Oil Company v. Guggolz
2008 WL 216321
No. CIV 07-1004
United States District Court, D. South Dakota, Northern Division, January 24, 2008
Subjects: Accidents -- On Indian reservations; Service stations -- Farmers Union Oil Company; Jurisdiction -- Standing Rock Sioux Tribe of North & South Dakota; Law -- Tribes -- Application -- Non-members of a tribe.
*Synopsis: (from the opinion) On Friday, December 29, 2006, the Ak-Chin Indian Community (the Community or plaintiff), a federally recognized Indian tribe, filed a complaint with this court (Court of Federal Claims complaint or CFC Compl.), seeking damages for breach by the United States of various trust obligations. CFC Compl. 1. On Friday, December 29, 2006, plaintiff filed with the United States District Court for the District of Columbia a complaint (District Court complaint or DC Compl.) seeking to enforce the performance by the United States of various trust obligations. The District Court complaint appears in the record as Exhibit 1 to defendant's motion to dismiss.
*Holding: not yet available
United States v. Hunter
2008 WL 191981
No. C 06-565 SI
United States District Court, N.D. California, January 22, 2008
Subjects: Coyote Valley Band of Pomo Indians of California -- Officials and employees; Credit cards.
*Synopsis: (from the opinion) With the 2001 settlement agreement as background, the indictment alleges that on a date unknown but no later than May 2001 continuing to in or around December 2004, defendants stole and misapplied tribal and casino funds, and conspired to do so, by, inter alia, (1) using credit and debit cards issued to them and paid or funded by the Tribe for personal items; (2) purchasing first-class airplane tickets rather than coach or economy tickets; and (3) making political donations. The indictment also charges certain defendants with conspiracy to obstruct justice by allegedly altering and destroying Tribal and Casino records in 2003 to obstruct an NIGC investigation regarding the Tribe's and Casino's compliance with the 2001 settlement agreement. Finally, the indictment charges defendants Priscilla Hunter and Michelle Campbell with numerous counts of tax evasion and failure to file income tax returns between 1999 and 2003.
*Holding: not yet available
Harvest Institute Freedman Federation v. United States
80 Fed.Cl. 197
No. 06-907 L
United States Court of Federal Claims, January 15, 2008
Subjects: Land tenure -- Freedmen; Treaties -- Chickasaw Indians; Treaties -- Choctaw Indians; Jurisdiction -- United States.
*Synopsis: Ancestors of slaves owned by Indian tribes brought suit against the United States alleging that post-Civil War treaties between the United States and the tribes which prohibited slavery and gave freedmen equal rights as members of the tribes were breached when the tribes did not allocate land properly to freedmen under the treaties, and seeking the value of the land the tribes did not turn over to their ancestors.
*Holding: The United States Court of Federal Claims, Hodges, J., held that:
(1) continuing claims doctrine did not apply to running of statute of limitations on plaintiffs' claim, and
(2) plaintiffs failed to state a claim.
Judgment for defendant.
Quechan Indian Tribe v. United States
535 F.Supp.2d 1072
No. CIV 02CV1096 JAH AJB
United States District Court, S.D. California, January 10, 2008
Subjects: Right of way -- On Indian reservations; Sacred sites -- Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Land tenure -- Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Right of property -- Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Electric lines -- On indian reservations; Irrigation projects.
*Synopsis: Indian tribe brought action under the Federal Tort Claims Act (FTCA) against U.S. Government agencies involved in electrical transmission line pole replacement and line maintenance project on reservation, seeking damages and injunctive and declaratory relief based on alleged negligence, negligence per se, gross negligence, trespass and public and private nuisance arising out of injuries to numerous cultural sites. Parties brought several cross-motions for summary judgment as well as various motions to strike.
*Holding: The District Court, John A. Houston, J., held that:
(1) FTCA administrative claim was not barred by the statute of limitations;
(2) doctrine of judicial estoppel precluded tribe from asserting that the U.S. did not own the right-of-way lands in fee simple;
(3) decision to undertake pole-replacement project was shielded by discretionary function exception to FTCA;
(4) agency's alleged failure to sufficiently disclose relevant information to tribe was not shielded by the discretionary function exception;
(5) agency's activities breached its duty to tribe, under California law, not to damage cultural sites;
(6) agency's activities inflicted severe and irreparable on one of tribe's cultural sites, as required in claim of negligence per se under California law; and
(7) agency's activities negligently impacted sites outside the right-of-way, as required in tribe's claim for trespass under California law.
Motions granted in part, denied in part, and denied as moot in part.
BGA, LLC v. Ulster County, New York
2008 WL 84591
No. 1:06-CV-0095 (GLS/RFT)
United States District Court, N.D. New York, January 7, 2008
Subjects: Federal recognition of Indian tribes -- Western Mohegan Tribe and Nation (New York); New York (State); Real property -- Taxation -- Western Mohegan Tribe and Nation (New York); New York (State); Public land sales -- New York -- Ulster County.
*Synopsis: (from the opinion) Plaintiffs, under the purported threat of imminent taxation and/or
foreclosure by the defendant, Ulster County, filed this action seeking a
judgment declaring, inter alia, that the Tribe is a sovereign Indian Nation, and that certain property in its possession constitutes ?Indian Country?
which is exempt from taxation and foreclosure.
*Holding: not yet available
Freemanville Water System, Inc. v. Poarch Band of Creek Indians
2008 WL 80644
Civil Action No. 07-0688-WS-M
United States District Court, S.D. Alabama, Southern Division, January 7, 2008
Subjects: Water treatment plants -- Design and construction -- Poarch Band of Creek Indians of Alabama; Sovereign immunity -- Poarch Band of Creek Indians of Alabama; United States. Consolidated Farm and Rural Development Act.
*Synopsis: (from the opinion) This matter is before the Court on the defendants? motion to dismiss on the grounds of tribal sovereign immunity.
*Holding: not yet available
Mickel v. Wolff
2008 WL 80548
No. 3:79-cv-00239-LRH-VPC
United States District Court, D. Nevada, January 4, 2008
Subjects: Indian prisoners -- Religion -- Protection; Prisons -- Nevada; Religious articles; Ceremonial objects; Indian prisoners -- Rites and ceremonies -- Protection; Freedom of religion -- Indian prisoners.
*Synopsis: (from the opinion) The named plaintiff in this action, Dennis T. Mickel,1 who was an inmate at Nevada State Prison at the time of filing this lawsuit, alleged that he was denied the right to practice his Native American religion in violation of the First Amendment.
*Holding: not yet available
Ute Indian Tribe of the Uintah and Ouray Reservation v. Ute Distribution Corporation
2008 WL 60503
No. 2:06 CV 00557 DAK
United States District Court, D. Utah, Central Division, January 3, 2008
Subjects: Stockholders -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Articles of incorporation -- Ute Distribution Corporation; Sovereign immunity -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Boards of directors. Stockholders -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Articles of incorporation -- Ute Distribution Corporation; Sovereign immunity -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Boards of directors.
*Synopsis: (from the opinion) The preliminary injunction order also recounts basic facts about the current dispute between the parties, arising out of proposed amendments of UDC's Articles of Incorporation. One of the proposed amendments ?would prohibit all members, employees, consultants, and advisors of the Tribe from being nominated for or serving on the UDC Board of Directors.? While a preliminary injunction temporarily blocked adoption of the amendments, they were approved by a special shareholders' meeting in October 2006.
*Holding: not yet available
Susanville Indian Rancheria v. Leavitt
2008 WL 58951
No. 2:07-cv-259-GEB-DAD
United States District Court, E.D. California, January 3, 2008
Subjects: Health facilities -- Susanville Indian Rancheria, California; United States. Indian Health Service; Intergovernmental agreements -- United States; Intergovernmental agreements -- Susanville Indian Rancheria, California; Medical care, Cost of; Drugs -- Costs; Drugstores -- Finance.
*Synopsis: (from the opinion) Whether Defendants Lawfully Rejected the Tribe's Final Offer Based on the Concern that the Tribe's Pharmacy Program Would Result in Significant Danger or Risk to the Public Health.
*Holding: not yet available
Mike v. Office of Navajo and Hopi Indian Relocation
2008 WL 54920
No. CV 06-0866-PCT-EHC
United States District Court, D. Arizona, January 2, 2008
Subjects: Office of Navajo and Hopi Indian Relocation; United States. Navajo-Hopi Land Settlement Act of 1974; Navajo Indians -- Relocation; Hopi Indians -- Relocation; Residency requirements.
*Synopsis: (from the opinion) Before the Court are two Cross Motions for Summary Judgment. (Dkts.15, 24). Plaintiff seeks relief from a denial of relocation assistance benefits by the Office of Navajo and Hopi Indian Relocation (?ONHIR?), an administrative agency of the United States. The Commissioner of the ONHIR seeks affirmation of its final decision.
*Holding: not yet available
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