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Indian Law Bulletins  |  Federal Courts of Appeals  |  2001

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*The Federal Courts of Appeals Bulletin began in January 2001.

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December

United States v. Prentiss
273 F.3d 1277, Docket No. 98-2040
Tenth Circuit, December 6, 2001

Subjects: Criminal Jurisdiction - Indian/Non-Indian Status

*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, John E. Conway, J., of arson in Indian country, and he appealed. The Court of Appeals vacated and remanded, 206 F.3d 960. On rehearing en banc, the Court of Appeals vacated and remanded to the panel, 256 F.3d 971.

Holding: On remand to the panel, the Court of Appeals, Henry, Circuit Judge, held that indictment's failure to allege status of victims or defendant as being Indian or not was not harmless.
Conviction vacated.

Bay View, Inc. v. United States
278 F.3d 1259, Docket No. 00-5097
Federal Circuit, December 3, 2001

Subjects: Alaska Native Claims Settlement Act (ANCSA) (43 USC 1601 et seq.) - Native Corporations

*Synopsis: Alaska native village corporation established pursuant to Alaska Native Claims Settlement Act (ANCSA) brought suit alleging that amendment to ANCSA, which exempted revenues from sales of net operating losses (NOLs) from general requirement under ANCSA that corporations must share revenues received from natural resources allotted to them, constituted a compensable taking, a breach of trust, and a breach of contract. The Court of Federal Claims, Diane G. Weinstein, J., granted motion to dismiss, 46 Fed.Cl. 494. Corporation appealed.

Holding: The Court of Appeals held that:
(1) corporation did not have property right to share in proceeds from of other corporations' sales of NOLs, so that amendment did not result in a compensable taking;
(2) ANCSA did not create a trust relationship between United States and Alaska natives; and
(3) ANCSA did not create a contract with United States enforceable under Tucker Act.
Affirmed.

November

Bear Robe v. Parker
270 F. 3d. 1192, Docket No. 00-3998
Eighth Circuit, November 9, 2001

Subjects: Indian Child Protection and Family Violence Prevention Act (25 U.S.C. 3201); Employees - Dismissal of

*Synopsis: Former employee sued Bureau of Indian Affairs (BIA) administrator of nonprofit school corporation, alleging wrongful termination. The United States District Court for the District of South Dakota, Richard H. Battey, J., entered summary judgment for administrator. Former employee appealed.

Holding: The Court of Appeals, Wollman, Chief Judge, held that, under Indian Child Protection and Family Violence Prevention Act, employee's conviction for voluntary manslaughter was absolute bar to employment in position that involved regular contact with Indian children, notwithstanding that conviction had been set aside under Federal Youth Corrections Act (FYCA).
Affirmed.

Akootchook v. United States
271 F.3d 1160, Docket No. 00-35325
Ninth Circuit, November 9, 2001

Subjects: Lands - Allotments; Lands - Alaska Native Allotment Act of 1906

*Synopsis: Native Alaskans sought review after the Interior Board of Land Appeals (IBLA) denied their applications for land allotments under Alaska Native Allotment Act (ANAA). The United States District Court for the District of Alaska, H. Russel Holland, Chief Judge, dismissed action.

Holding: The Court of Appeals, T.G. Nelson, Circuit Judge, held that:
(1) unsuccessful class action previously brought on behalf of native Alaskans, in which plaintiffs alleged that ancestral use entitled them to allotments, did not operate under doctrine of res judicata to bar suit; but
(2) IBLA reasonably interpreted regulation promulgated under ANAA as requiring that use of land prior to its withdrawal from the public domain must involve personal use and occupancy independent of immediate family members in order to support grant of allotment; and
(3) substantial evidence supported determination that applicants, who had lived on lands in question while dependent minors, could not show such use.

United States v. Alpine Land and Reservoir Company
291 F.3d 1062, Docket No. 00-15692
Ninth Circuit, November 6, 2001

Subjects: Water Rights

*Synopsis: United States and Pyramid Lake Paiute Tribe of Indians appealed decision of Nevada State Engineer that largely granted applications of landowners in Newlands Reclamation Project to transfer water rights between different parcels of property. The United States District Court for the District of Nevada, Howard D. McKibben, Chief District Judge, affirmed State Engineer's decision. United States and Tribe appealed.

Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) equitable exemptions for intrafarm transfers of water rights could be made;
(2) landowners could not assert that they lacked requisite intent to abandon to prevent forfeiture;
(3) equitable relief was not appropriate where remedy at law was available; and
(4) any equitable consideration to be given to individual landowners had to be balanced against hardships to Indian tribe.

October

Michigan v. EPA
268 F. 3d 1075, Docket Nos. 99-1151 through 99-1155
District of Columbia Circuit, October 30, 2001

Subjects: Environmental Regulation - Clean Air Act (42 USC 7401); Environmental Regulation - Environmental Protection Agency; Indian Country - Defined

*Synopsis: State petitioned for review of EPA rules governing application to Indian lands of Clean Air Act operating permits program, contending that EPA had exceeded its authority by proposing to administer program on land as to which "Indian country" status was in question, and by proposing to make state/tribe jurisdictional determinations on a case-by-case basis rather than through notice-and-comment rulemaking.

Holding: The Court of Appeals, Sentelle, Circuit Judge, held that:
(1) EPA lacked authority to administer federal operating permit program on land as to which "Indian country" status was in question, and
(2) Act's notice and hearing requirement applied to EPA's determinations of tribal jurisdiction.

Shoshone-Bannock Tribes of the Fort Hall Reservation v. Secretary, Dept. Health and Human Services
269 F. 3d 948, Docket Nos. 98-36022, 99-35951
Ninth Circuit, October 16, 2001

Subjects: Indian Self-determination and Educational Assistance Act (25 USCA 1451); Health and Welfare/Social Services - Indian Health Service; Health and Welfare/Social Services - Department of Health and Human Services; Health and Welfare/Social Services - Health Services

*Synopsis: Tribe brought action against the Secretary of Health and Human Services (HHS), the Director of the Indian Health Service (IHS), and others for violations of various provisions of the Indian Self-determination and Education Assistance Act (ISDEA) in connection with funding of the tribe's operation of health care services pursuant to self-determination contracts. After granting government's motion for reconsideration of judgment for tribe, 999 F.Supp. 1395, the United States District Court for the District of Oregon, 58 F.Supp.2d 1191, Janice M. Stewart, United States Magistrate Judge, denied the government's motion for relief from judgment.

Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that:
(1) tribe's contract with IHS expressly precluded the tribe's claim of a contractual right to funding for contract support costs;
(2) tribe had no entitlement to funding for contract support costs that existed independently of whether Congress appropriated money to cover such costs; and
(3) only $7.5 million, rather than entire $1.7 billion appropriated the IHS in 1996, was available for contract support costs.

Garcia v. Akwesasne Housing Authority
268 F. 3d 76, Docket No. 00-9029
Second Circuit, October 3, 2001

Subjects: Sovereignty - Sovereign Immunity - Tribal; Employment - Discrimination by Employers; Employees - Dismissal of

*Synopsis: Following her termination, former executive director of tribal housing agency brought suit against agency and its chairman alleging age discrimination, retaliation, breach of implied contract and intentional interference with employment contract. The United States District Court for the Northern District of New York, Thomas J. McAvoy, J., 105 F.Supp.2d 12, dismissed claims against agency and chairman under tribal exhaustion rule, and dismissed claims against agency on alternative ground of tribal sovereign immunity.

Holding: The Court of Appeals, Jacobs, Circuit Judge, held that:
(1) tribal exhaustion rule did not require abstention, but
(2) agency was protected by tribal immunity.

March

United States v. Gardner
244 F.3d 784, Docket No. 00-4113
Tenth Circuit, March 22, 2001

Subjects: not yet available

*Synopsis: Following jury trial before the United States District Court for the District of Utah, Dale A. Kimball, J., defendant was convicted of transporting, receiving and acquiring elk in violation of tribal regulations. Defendant appealed.

Holding: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that:
(1) defendant's status as non-Indian was not essential element of jurisdiction for crime;
(2) interstate transportation was not element of crime as charged;
(3) Trombetta/Youngblood error did not occur when state lost tape of recorded interview with witnesses; and
(4) failure to give cautionary instruction about uncorroborated testimony of accomplices was reversible error.
Reversed and remanded.

Sanderlin v. Seminole Tribe of Florida
243 F.3d 1282, Docket No. 00-10312
Eleventh Circuit, March 8, 2001

Subjects: not yet available

*Synopsis: Former employee of Seminole Tribe of Florida brought disability discrimination action against Tribe under Rehabilitation Act. The United States District Court for the Southern District of Florida, No. 99-06641- CV-WPD, William P. Dimitrouleas, J., dismissed for lack of jurisdiction. Former employee appealed.

Holding: The Court of Appeals, Marcus, Circuit Judge, held that:
(1) Tribal Chief did not waive Tribe's right to sovereign immunity when he accepted federal funds contingent on compliance with Act;
(2) Congress did not waive sovereign immunity by enacting Act, abrogating Frost v. Seminole Tribe of Florida;
(3) District Court did not abuse its discretion in denying motion for reconsideration; and
(4) District Court did not commit reversible error in denying as moot former employee's motion to compel production of tribal budget.
Affirmed.

Marlys Bear Medicine v. United States
241 F.3d 1208, Docket No. 99-35665
Ninth Circuit, March 7, 2001

Subjects: not yet available

*Synopsis: Descendants of member of Blackfeet Tribe who had been fatally injured in accident while working, pursuant to contract authorized by Bureau of Indian Affairs (BIA), for private logging operation on Blackfeet Reservation sued United States for monetary damages under Federal Tort Claims Act (FTCA). The United States District Court for the District of Montana, Paul G. Hatfield, J., 47 F.Supp.2d 1172, entered summary judgment in favor of United States. Descendants appealed.

Holding: The Court of Appeals, Ferguson, Circuit Judge, held that:
(1) discretionary function exception to FTCA barred claim that BIA negligently entrusted timber cutting to timber operation;
(2) discretionary function exception did not bar claim that BIA was negligent in supervising and managing safety aspects of logging operation;
(3) Federal Acquisition Regulations (FAR) did not apply to contract between logging operation and Tribe;
(4) logging operation's use of untrained employees in high wind area was inherently dangerous activity under Montana law, imposing non-delegable duty on BIA to ensure that operation took adequate safety measures; and
(5) BIA had fiduciary duty to ensure that basic safety practices were communicated and used at logging site.
Reversed and remanded.

February

Sac and Fox Nation of Missouri v. Norton
240 F.3d 1250, Docket No. 00-3063
Tenth Circuit, February 27, 2001

Subjects: not yet available

*Synopsis: Various Indian tribes, and Governor of Kansas, brought suit to prevent Secretary of the Interior from taking a tract of land into trust on behalf of Wyandotte Indian Tribe, and approving gaming activities on tract. The United States District Court for the District of Kansas, Richard D. Rogers, J., 92 F.Supp.2d 1124, dismissed action based on failure to join Wyandotte Tribe as a necessary and indispensable party. Plaintiffs appealed.

Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) Wyandotte Tribe was not a necessary or indispensable party to action;
(2) federal legislation appropriating funds to Tribe in settlement of claims, and giving directives as to specified uses of funds, gave Secretary nondiscretionary duty to acquire tract;
(3) Secretary thus was not required to comply with NHPA or NEPA in acquiring tract; but
(4) evidence did not support finding that appropriated funds were used to purchase tract; and
(5) cemetery adjacent to tract, which was reserved to tribe in 1855 treaty but had not since been occupied, was not a “reservation” under provision of Indian Gaming Regulatory Act (IGRA) allowing gaming on tracts adjacent to reservations.
Reversed and remanded.

January

Banner v. United States
238 F.3d 1348, Docket No. 00-5006
Federal Circuit, January 29, 2001

Subjects: not yet available

*Synopsis: Former lessees of portions of Allegany Reservation brought Fifth Amendment takings and due process action against United States, contending that Seneca Nation Land Claims Settlement Act extinguished their right to renew leases and their right to own improvements on leased land.

Holding: The Court of Federal Claims, Moody R. Tidwell, Senior Judge, 44 Fed.Cl. 568, entered summary judgment in favor of United States. Former lessees appealed. The Court of Appeals, Gajarsa, Circuit Judge, held that:
(1) lessees' claims that Act extinguished their right to renew leases were barred under doctrine of collateral estoppel, and
(2) lessees' ownership interest in improvements reverted to Nation upon expiration of 99-year leases.
Affirmed.

San Xavier Development Authority v. Charles
237 F.3d 1149, Docket No. 99-16158
Ninth Circuit, January 29, 2001

Subjects: not yet available

*Synopsis: As lessee of allotted Indian land, nonprofit development corporation chartered by Tohono D'odham Indian Nation sued trailer home sales company to terminate sublease. The United States District Court for the District of Arizona, John M. Roll, J., dismissed action. Lessee appealed.

Holding: The Court of Appeals, O'Scannlain, Circuit Judge, held that:
(1) subleased land was not subject to Nonintercourse Act's requirement that purchase of lands from Indian tribe be made by treaty or convention;
(2) corporation lacked standing under Nonintercourse Act;
(3) corporation lacked standing under General Allotment Act; and
(4) corporation lacked standing to sue under statute authorizing leases of land located within San Xavier Indian Reservation.
Affirmed.

United States v. White
237 F.3d 170, Docket Nos. 00-1039(L), 00-1040
Second Circuit, January 10, 2001

Subjects: not yet available

*Synopsis: Defendants were convicted, pursuant to conditional guilty pleas, in the United States District Court for the Northern District of New York, of violation currency transaction reporting requirements, and they appealed.

Holding: The Court of Appeals, Sotomayor, Circuit Judge, held that:
(1) reporting requirements for currency transactions exceeding $10,000 applied to transaction occurring exclusively within American Indian reservation, and
(2) defendants' conditional guilty pleas waived issue of whether their violations were willful.
Affirmed.

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