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December

Baker v. Exxon Mobil Corp.
490 F.3d 1066
No. 04-35183
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
United States Court of Appeals, Ninth Circuit, December 22, 2006

Subjects: Stocks -- Exxon Shipping Company; Exemplary damages; Environmental disasters -- Alaska; Oil pollution of rivers, harbors, etc. -- Alaska; Oil spills -- Alaska -- Claims; Liability for oil pollution damages; Exxon Valdez Oil Spill, Alaska, 1989; Prince William Sound (Alaska); Cook Inlet (Alaska).

*Synopsis: After third remand for reconsideration of punitive damages in a suit arising from the 1989 grounding of an oil supertanker, the United States District Court for the District of Alaska, H. Russel Holland, Chief Judge, 296 F.Supp.2d 1071, entered a $4.5 billion award of punitive damages against oil company, and parties filed cross-appeals.

*Holding: The Court of Appeals held that a 5:1 ratio of punitive damages to harm resulting from the spill of 11 million gallons of crude oil into Prince William Sound and Lower Cook Inlet comported with due process principles for the reckless but unintentional misconduct of oil company, and the reprehensibility factor in the punitive damages calculation would be discounted for the oil company's pre-litigation mitigation efforts.
Vacated and remanded.

Jones v. Salt River Pima-Maricopa Indian Community
2006 WL 3623704
No. 04-15044
United States Court of Appeals, Ninth Circuit, December 12, 2006

Subjects: Standing to sue; United States. Constitution. 11th Amendment; Sovereignty -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona.

*Synopsis: (from the opinion) Paul R. Jones appeals pro se from the district court's judgment dismissing his action alleging that the State of Arizona and its Governor, various United States Senators and Representatives, and his former tribal employer violated his constitutional rights.

*Holding: not available

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
470 F.3d 827
No. 04-15044
United States Court of Appeals, Ninth Circuit, December 5, 2006

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

*Synopsis: Non-Native Hawai'ian applicant brought suit against private high schools under § 1981, challenging schools' policy of giving preference to students of Native Hawai'ian ancestry. The United States District Court for the District of Hawai'i, Alan C. Kay, J., 295 F.Supp.2d 1141, entered summary judgment for schools, and applicant appealed. The Court of Appeals, Bybee, Circuit Judge, 416 F.3d 1025, affirmed in part and reversed in part. Rehearing en banc was granted.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that schools' policy of giving preference to students of Native Hawai'ian ancestry did not violate § 1981.
Affirmed.

United States v. State of Oregon
470 F.3d 809
No. 03-35773
United States Court of Appeals, Ninth Circuit, December 4, 2006

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).

*Synopsis: United States brought action against states on behalf of Indian tribes to define treaty fishing rights. Confederation of tribes intervened as defendant, 43 F.3d 1284. The United States District Court for the District of Oregon, Malcolm F. Marsh, J., dismissed confederation's claim on behalf of constituent tribe. Confederation appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that constituent tribe's claim was not barred by res judicata.
Reversed and remanded.

November

Gros Ventre Tribe v. United States
469 F.3d 801
No. 04-36167
Briefs & Pleadings
United States Court of Appeals, Ninth Circuit, November 13, 2006

Subjects: Coal mines and mining -- Montana; Groundwater -- Pollution; Arsenic -- Environmental aspects; Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; United States. Bureau of Land Management; Trusts and trustees -- United States; Responsibility -- United States; United States. Federal Land Policy and Management Act of 1976; United States. Administrative Procedure Act.

*Synopsis: Indian tribes brought action for equitable relief, alleging that the Government violated specific and general trust obligations by approving mining operations on non-tribal lands that caused pollution of tribal lands. The United States District Court for the District of Montana, Donald W. Molloy, Chief Judge, granted summary judgment to government and denied Tribes' motion to alter or amend judgment, 344 F.Supp.2d 1221. Tribes appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) government did not owe general trust obligation to Tribes to take Indian interests into account regarding mining operations that would support common law breach of trust claim;
(2) government did not have specific trust obligation based on its treaties and agreements with tribes;
(3) government did not owe trust responsibilities regarding third-party use of non-Indian resources;
(4) government had no statutory duty to take discrete nondiscretionary actions under Federal Land Policy and Management Act (FLPMA) that could support failure to act claim under Administrative Procedure Act (APA); and
(5) Tribes did not suffer injury for purposes of standing as result of record of decision regarding mining operations that was subsequently vacated.
Affirmed.

Prairie Band Potawatomi Nation v. Wagnon
467 F.3d 1279
No. 03-3218
United States Court of Appeals, Tenth Circuit, November 7, 2006

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

*Synopsis: (from the opinion) In view of the Supreme Court's decision in Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005), and after supplemental hearing, the prior decision of this court is vacated, as is the portion of the district court's opinion that applies the interest-balancing test. The order of the district court granting summary judgment in favor of Defendant is affirmed.

*Holding: not yet available

Pit River Tribe v. United States Forest Service
469 F.3d 768
No. 04-15746
United States Court of Appeals, Ninth Circuit, November 6, 2006

Subjects: Pit River Tribe, California (includes Big Bend, Lookout, Montgomery Creek & Roaring Creek Rancherias & XL Ranch); United States. Bureau of Land Management; United States. Forest Service; Geothermal leases -- California; Geothermal power plants -- California -- Environmental impact statements -- Environmental aspects; United States. National Environmental Policy Act of 1969; United States. National Historic Preservation Act of 1966; United States. Geothermal Steam Act of 1970; United States. National Forest Management Act of 1976; United States. Administrative Procedure Act; Breach of trust -- United States; Trusts and trustees -- United States; Standing to sue -- Pit River Tribe, California (includes Big Bend, Lookout, Montgomery Creek & Roaring Creek Rancherias & XL Ranch).

*Synopsis: Native American tribe and environmental groups filed claims against Bureau of Land Management, Forest Service, and Department of the Interior, alleging that leasing procedures and approval of geothermal plant on federal land that had religious and cultural significance to tribe violated National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), National Forest Management Act (NFMA), and Administrative Procedure Act (APA), and that agencies violated fiduciary obligations to Native American tribes. The United States District Court for the Eastern District of California, David F. Levi, J., 306 F.Supp.2d 929, granted summary judgment in favor of agencies. Tribe and environmental groups appealed.

*Holding: The Court of Appeals, Wallace, Circuit Judge, held that:
(1) tribe had standing to pursue claims;
(2) Energy Policy Act's amendments to Geothermal Steam Act would not be applied retroactively so as to render claims moot;
(3) agencies violated NEPA by failing to complete environmental impact statement (EIS) before extending leases that granted absolute rights to develop plant;
(4) subsequent preparation of EIS for plant did not cure prior violation of NEPA; and
(5) agencies violated NHPA by failing to conduct consultation or consideration of historical sites before extending leases.
Reversed.

Related News Stories: Ninth Circuit Reverses Lower Court Ruling, Halts Development on 10,000-Year-Old Sacred Site at Medicine Lake (Ascribe) 11/9/06. Court pulls plug on power plant (Redding.com) 11/14/06.

Burgess v. Watters
467 F.3d 676
No. 05-1663
United States Court of Appeals, Seventh Circuit, November 2, 2006

Subjects: Sex offenders -- Members -- Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Criminal actions arising on Indian reservations -- Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; United States. Public Law 280; Habeas corpus; Jurisdiction -- Wisconsin.

*Synopsis: Following affirmance of his involuntary commitment to state mental health facility as sexually violent person, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Wisconsin, Barbara B. Crabb, J., 2005 WL 372259, denied petition, and petitioner appealed.

*Holding: The Court of Appeals, Wood, Circuit Judge, held that Wisconsin Supreme Court did not unreasonably apply clearly established federal law in determining that State had power to involuntarily commit enrolled member of Indian tribe as sexually violent person under civil jurisdiction conferred by Congress on States.
Affirmed.

October

Colorado River Indian Tribes v. National Indian Gaming Commission
466 F.3d 134
No. 05-5402
United States Court of Appeals, District of Columbia Circuit, October 20, 2006

Subjects: National Indian Gaming Commission (U.S.) -- Auditing; National Indian Gaming Commission (U.S.) -- Powers and duties; Indian gaming -- Class III -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Gambling on Indian reservations -- Colorado.

*Synopsis: Indian tribe sued National Indian Gaming Commission (NIGC), claiming that NIGC exceeded its authority by promulgating regulations establishing mandatory operating procedures for Class III gaming in tribal casinos. Tribe moved for summary judgment. The United States District Court for the District of Columbia, Bates, J., 383 F.Supp.2d 123, granted tribe's motion for summary judgment and NIGC appealed.

*Holding: The Court of Appeals, Randolph, Circuit Judge, held that Indian Gaming Regulatory Act did not give NIGC authority to promulgate regulations establishing mandatory operating procedures for class III gaming.
Affirmed.

State of Idaho v. Shoshone-Bannock Tribes
465 F.3d 1095
No. 04-35636
United States Court of Appeals, Ninth Circuit, October 11, 2006

Subjects: Intergovernmental agreements -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Intergovernmental agreements -- Idaho; Video lottery terminals -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; United States. Indian Gaming Regulatory Act.

*Synopsis: Federally recognized Indian tribe brought declaratory judgment action against state, seeking determination as to types of games tribe could offer pursuant to tribal-state gaming compact. After consolidating action with similar action brought by state, the United States District Court for the District of Idaho, B. Lynn Winmill, J., granted summary judgment for tribe. State appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) amendment of compact was required for tribe to be able to operate video gaming machines as a result of permitted operation of such games by other tribes in state;
(2) amendment of compact to permit tribe to operate video gaming machines was mandatory, and did not reopen compact to renegotiation; and
(3) state statute imposing limitations on numbers of tribal video gaming machines and requiring tribes amending their gaming compacts to permit use of such machines to contribute to local educational programs and schools did not apply to tribe.
Affirmed.

September

Allen v. Gold Country Casino
464 F.3d 1044
No. 05-15332
United States Court of Appeals, Ninth Circuit, September 29, 2006

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.

*Synopsis: Former employee of casino, which was owned and operated by Indian tribe, brought action against employer. The United States District Court for the Eastern District of California, Lawrence K. Karlton, J., dismissed the claims. Plaintiff appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) casino acted as arm of tribe, and thus was entitled to tribal sovereign immunity, and
(2) casino did not waive tribal sovereign immunity.
Affirmed in part, reversed in part, and remanded.

In re George G. Brown
2006 WL 6810938
BAP Nos. NC-06-1101-MaMeRy, 05-13909.
United States Bankruptcy Appellate Panel of the Ninth Circuit, September 28, 2006

*Synopsis: (from the opinion) Debtor Lisa Brown is a Native American who receives quarterly per capita distributions of a percentage of the net revenue from her tribe's casino gaming enterprise. She and her husband filed a chapter 7 bankruptcy petition and sought an order of abandonment for Mrs. Brown's interest in the Payments, asserting that it was not property of the estate. The bankruptcy trustee countered with a motion for turnover. The bankruptcy court, relying on case law from other circuits, determined that the Payments were property of the estate which could be transferred. It then denied abandonment and ordered turnover of the present and future Payments to Trustee... In this appeal, Debtors have again raised the issue of whether the Payments are property of the estate.

*Holdings: (from the opinion) We hold that the bankruptcy court correctly determined that Mrs. Brown's interest in the Payments is property of the estate, and AFFIRM that ruling. However, we conclude that the bankruptcy court erred in determining that the terms of the tribal ordinance allowed Mrs. Brown's entitlement to be transferred or assigned. More importantly, the bankruptcy court did not make the necessary findings for abandonment as to whether future, contingent Payments would be of any value or benefit to the estate. We therefore VACATE and REMAND, in part, for further proceedings consistent with this memorandum decision.

State of Wisconsin v. Ho-Chunk Nation
463 F.3d 655
No. 06-1053, 06-1837
United States Court of Appeals, Seventh Circuit, September 11, 2006

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.

*Synopsis: State of Wisconsin brought action to compel arbitration of dispute concerning gaming compact negotiated with Indian tribe under Indian Gaming Regulatory Act (IGRA) and for appointment of an arbitrator. The United States District Court for the Western District of Wisconsin, John C. Shabaz, J., exercised jurisdiction and appointed arbitrator, 402 F.Supp.2d 1008, denied State's motion for substitute arbitrator. Tribe appealed from former order, and State appealed from latter order. After State sought to voluntarily dismiss appeal, tribe moved for sanctions.

*Holding: The Court of Appeals, Manion, Circuit Judge, held that:
(1) Federal Arbitration Act (FAA) did not provide independent basis for jurisdiction;
(2) IGRA did not provide basis for jurisdiction; and
(3) sanctions for filing frivolous appeal were not appropriate in case in which State gave notice and filed motion for voluntary dismissal before tribe filed opening brief.
Vacated and remanded; appeal dismissed in part and motion for sanctions denied.

Kesser v. Cambra, Jr.
465 F.3d 351
No. 02-15475
United States Court of Appeals, Ninth Circuit, September 11, 2006

Subjects: Indian jurors; Fair trial; Jury selection; Habeas corpus; Equality before the law -- United States.

*Synopsis: Prisoner filed petition for writ of habeas corpus, challenging state court murder conviction. The United States District Court for the Northern District of California, Phyllis J. Hamilton, J., 2001 WL 1352607, denied petition. Prisoner appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that prosecutor improperly struck potential juror on basis of her race. Reversed and remanded.

August

City of Tacoma, Washington v. Federal Energy Regulatory Commission
460 F.3d 53
Nos. 05-1054, 05-1093, 05-1180, 05-1181
United States Court of Appeals, District of Columbia Circuit, August 22, 2006

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; United States. Federal Power Act; Law -- Washington (State); Tacoma (Wash.); Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Treaties; Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams; Fisheries -- Protection -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Fishes -- Migration.

*Synopsis: Petitions for review were filed as to a series of orders of the Federal Energy Regulatory Commission (FERC), granting a conditional license to city to operate a hydroelectric project. Petitions were consolidated.

*Holding: The Court of Appeals, Brown, Circuit Judge, held that:
(1) FERC's issuance of a minor part license to city to operate a hydroelectric project in 1924 was not an ultra vires act;
(2) FERC's interpreting relicensing provision of Federal Power Act (FPA) to permit relicensing upon expiration of a minor part license to operate a hydroelectric project was entitled to Chevron deference;
(3) FERC had no authority to impose 60-day limitation unilaterally on Secretary of the Interior for submitting conditions on license deemed necessary for adequate protection and utilization of Indian reservation;
(4) Secretary of the Interior was not limited to mitigating impact project's access road and transmission line would have on Indian reservation;
(5) FERC complied with its obligations under National Historic Preservation Act;
(6) FERC reasonably concluded that a supplemental certification under Coastal Zone Management Act (CZMA) was unnecessary;
(7) Congress implicitly extended to FERC the power to shut down hydroelectric projects; and
(8) FERC was justified in relying on biological opinions (BiOps) prepared by National Marine Fisheries Service and the Fish and Wildlife Service.
Petitions denied in part, granted in part, and remanded.

Bone Shirt v. Hazeltine
461 F.3d 1011
No. 05-4010
United States Court of Appeals, Eighth Circuit, August 22, 2006

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: Indian voters sued State of South Dakota, alleging that legislative redistricting plan violated Voting Rights Act. Following determination that plan violated § 5 of the Voting Rights Act, 200 F.Supp.2d 1150, determination that plan violated § 2 of the Voting Rights Act, 336 F.Supp.2d 976, and answer to certified question by South Dakota Supreme Court, 700 N.W.2d 746, legislature declined to submit new plan. The United States District Court for the District of South Dakota, Karen Schreier, J., 387 F.Supp.2d 1035, entered order imposing remedial redistricting plan proposed by Indian voters. State appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that:
(1) proposed remedial plan did not violation Equal Protection Clause;
(2) District Court did not abuse its discretion in admitting expert testimony;
(3) District Court did not clearly err in determining that Native-Americans were politically cohesive and that white majority voting bloc usually defeated Indian-preferred candidate;
(4) totality of circumstances indicated violation of § 2; and
(5) District Court did not abuse its discretion in adopting remedial plan.
Affirmed.

Related News Stories: Indian voters in South Dakota win another case (Indianz.com) 8/24/06

Miami Tribe of Oklahoma v. United States
2006 WL 2392194
No. 05-3085
United States Court of Appeals, Tenth Circuit, August 21, 2006

Subjects: Jurisdiction -- United States; Miami Tribe of Oklahoma; United States; Kansas; Indian gaming -- Miami -- Kansas; National Indian Gaming Commission U.S.).

*Synopsis: Indian tribe brought action against United States Department of Interior (DOI) under Indian Gaming Regulatory Act (IGRA) seeking approval to conduct gaming on tract of Indian land. The United States District Court for the District of Kansas, 2004 WL 2278584, dismissed action. Tribe appealed.

*Holding: The Court of Appeals, Monroe G. Mckay, Circuit Judge, held that:
(1) Tribe bore burden of demonstrating that challenged agency action was final;
(2) DOI opinion letter was not final agency action;
(3) waiver of sovereign immunity for injunctive relief under Administrative Procedure Act (APA) did not apply to Tribe's request for court to compel specific performance of joint stipulation;
(4) United States did not waive its sovereign immunity through its fiducial relationship with Indian Tribe.
Appeal dismissed.

July

California Valley Miwok Tribe v. United States
2006 WL 2373434
No. 04-16676
United States Court of Appeals, Ninth Circuit, July 24, 2006

Subjects: Indian land transfers -- California Valley Miwok Tribe; Breach of trust -- United States. California Rancheria Act of 1958; Conveyancing -- United States.

*Synopsis: (from the opinion) The California Valley Miwok Tribe appeals the dismissal of its claims against the United States for breach of trust and violation of the Rancheria Act of 1958, as amended, arising out of the improper conveyance of tribal trust land to an individual Tribe member. We affirm.

*Holding: not yet available

Burrell v. Armijo
456 F.3d 1159
No. 03-2223
United States Court of Appeals, Tenth Circuit, July 24, 2006

Subjects: Farms -- On Indian reservations -- Pueblo of Santa Ana, New Mexico; Sovereign immunity -- Pueblo of Santa Ana, New Mexico -- Officials and employees; Leases -- Pueblo of Santa Ana, New Mexico; Race discrimination -- Pueblo of Santa Ana, New Mexico.

*Synopsis: Farm lessees sued federally recognized Indian tribe and tribal officials, alleging violations of their federal civil rights and breach of farm lease. The United States District Court for the District of New Mexico dismissed, giving preclusive effect to tribal court ruling. Lessees appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) tribe did not waive tribal court jurisdiction over lease dispute;
(2) tribal court ruling dismissing lessees' claims was not entitled to preclusive effect due to failure to give lessees full and fair opportunity to litigate their claims in tribal court;
(3) tribe did not waive its sovereign immunity on breach of lease claim either under terms of lease or federal regulations;
(4) tribe's sovereign immunity did not extend to officials for actions allegedly taken outside scope of their official authority;
(5) tribal officials had no liability under § 1983 for actions allegedly taken under color of tribal law, as opposed to state law; and
(6) breach of lease claim was barred by failure to seek review of federal administrative determination that lessees breached lease.
Reversed in part, dismissed in part, and remanded.

Marceau v. Blackfeet Housing Authority
455 F.3d 974
No. 04-35210
United States Court of Appeals, Ninth Circuit, July 21, 2006

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: Native American homeowners and lessees who resided in homes built pursuant to the Mutual Help and Homeownership Program (MHHP) brought action against the Department of Housing and Urban Development (HUD), the tribal housing authority, and its members, alleging violations of the Housing Act and regulations. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that:
(1) “sue and be sued” clause of the enabling ordinance which created a tribal housing authority was a clear and unambiguous waiver of tribal immunity;
(2) HUD funds were not a tribal resource, as required to establish that HUD owed fiduciary duty to tribes;
(3) action against HUD could not be maintained under the Administrative Procedure Act (APA); and
(4) District Court lacked jurisdiction under the Little Tucker Act over breach of contract action.
Affirmed in part, reversed in part, and remanded. Pregerson, Circuit Judge, filed specially concurring opinion.

Wopsock v. Natchees
454 F.3d 1327
No. 05-1494
United States Court of Appeals, Federal Circuit, July 11, 2006

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: Members of Indian tribe brought action against tribal officials, officials of the Department of the Interior (DOI), and others, alleging abridgements of their rights to due process, equal protection, and freedom of speech, in violation of the Indian Civil Rights Act (ICRA) and the Indian Reorganization Act (IRA). The United States District Court for the District of Utah, 2005 WL 1503425, Ted Stewart, J., granted tribal officials' motion to dismiss and DOI officials' motion for summary judgment. Members appealed.

*Holding: The Court of Appeals, Bryson, Circuit Judge, held that Court of Appeals for the Federal Circuit lacked jurisdiction.
Transfer ordered.

Cobell v. Kempthorne
455 F.3d 317
No. 05-5269
United States Court of Appeals, District of Columbia Circuit, July 11, 2006

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior; Fiduciary accountability -- United States; Notice (Law) -- United States; Judges -- Disqualification -- United States.

*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. The United States District Court for the District of Columbia, Royce C. Lamberth, J., 229 F.R.D. 5, granted beneficiaries' motion to order government to provide notice of its continuing inability or refusal to discharge fiduciary duties. Government appealed.

*Holding: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) district court's order was appealable injunction;
(2) district court lacked authority to issue order; and
(3) action would be properly assigned to different district judge.
Vacated and remanded.

Related News Stories: A judgment call: A law professor says removal of judge Lamberth from the trust case was "nothing short of a tragedy" (Legal Times) 8/7/06. A quest for cooler heads in Indian suit against U.S. (Christian Science Monitor) 7/14/06. At U.S. urging, court throws Lamberth off Indian case (Washington Post) 7/12/06

Cobell v. Kempthorne
455 F.3d 301
No. 05-5388
United States Court of Appeals, District of Columbia Circuit, July 11, 2006

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior; Fiduciary accountability -- United States; Judicial discretion -- United States; Abuse of administrative power -- United States; Data protection.

*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. The United States District Court for the District of Columbia, Royce C. Lamberth, J., 394 F.Supp.2d 164, granted beneficiaries' motion for injunction requiring government to disconnect computer systems containing beneficiary data from Internet access. Government appealed.

*Holding: The Court of Appeals, Brown, Circuit Judge, held that injunction constituted abuse of discretion. Vacated.

Related News Stories: A quest for cooler heads in Indian suit against U.S. (Christian Science Monitor) 7/14/06. At U.S. urging, court throws Lamberth off Indian case (Washington Post) 7/12/06

June

Tsosie v. United States
452 F.3d 1161
No. 04-2342
United States Court of Appeals, Tenth Circuit, June 27, 2006

Subjects: Negligence -- United States. Indian Health Service; Hantavirus infections -- Diagnosis; Independent contractors -- United States. Indian Health Service.

*Synopsis: Family of deceased member of Navajo Nation brought action against United States, alleging negligent failure of Indian Health Service (IHS) to diagnose hantavirus. The United States District Court for the District of New Mexico, M. Christina Armijo, J., dismissed action. Family appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) treating physician was independent contractor at time of service, and
(2) United States was not estopped from asserting independent contractor defense.
Affirmed.

Keweenaw Bay Indian Community v. Naftaly
452 F.3d 514
No. 05-1952
United States Court of Appeals, Sixth Circuit, June 26, 2006

Subjects: : Keweenaw Bay Indian Community, Michigan; Real property -- Taxation -- Michigan; Michigan. General Property Tax Act.

*Synopsis: Indian tribe sought declaratory and injunctive relief against attempts to assess and collect taxes on real property located on reservation. State Tax Commission and townships moved to dismiss and for summary judgment, and tribe cross-moved as to two counts of its complaint. The United States District Court for the Western District of Michigan, David W. McKeague, J., 370 F.Supp.2d 620, denied defendants' motions, granted judgment for tribe, and enjoined enforcement of the tax act. Commission appealed.

*Holding: The Court of Appeals, Clay, Circuit Judge, held that State could not tax real property held in fee simple by Indian tribe or its members within the exterior boundaries of reservation.
Affirmed.

Bear v. Patton
451 F.3d 639
No. 05-3183
United States Court of Appeals, Federal Circuit, June 20, 2006

Subjects: Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas -- Boundaries; Real property -- Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Real property -- Kansas; Jurisdiction -- Kansas; Business enterprises -- Law and legislation -- Kansas.

*Synopsis: Defendant in state court action for dissolution of partnership sought declaration that partnership property lay within boundaries of Indian reservation, and thus outside of state court's jurisdiction. State court judge moved to dismiss. The United States District Court for the District of Kansas, Julie A. Robinson, J., 364 F.Supp.2d 1242, dismissed on basis of Rooker-Feldman doctrine. State court defendant, proceeding pro se, appealed.

*Holding: The Court of Appeals, Brorby, Circuit Judge, held that remand was warranted to determine whether the state court judgment was final and appealable under Kansas law at time the federal action was filed.
Vacated and remanded.

Amoco Production Co. v. Watson
410 F.3d 722
No. 04-5006, 04-5007
United States Court of Appeals, District of Columbia Circuit, June 10, 2006

Subjects: Oil and gas leases -- Payment; Oil and gas leases -- Law and legislation -- United States; United States. Dept. of the Interior; Amoco Production Company; Coalbed methane; United States. Administrative Procedure Act; Limitation of actions.

*Synopsis: Lessees under federal oil and gas mineral leases brought actions to enjoin Department of Interior (DOI) decisions relating to determination of royalties due on their production of coalbed methane gas from federal land. The United States District Court for the District of Columbia, William B. Bryant, J., 300 F.Supp.2d 1, granted summary judgment for DOI, and lessees appealed.

*Holding: The Court of Appeals, Roberts, Circuit Judge, held that: (1) finding that coalbed methane gas was not in marketable condition at wellhead was reasonable; (2) policy letter was not rule subject to Administrative Procedure Act (APA) notice-and-comment procedures; and (3) order to pay additional royalties was not subject to statute of limitations on government actions to recover money damages. Affirmed.

In re Kempthorne
449 F.3d 1265
No. 03-5288
United States Court of Appeals, District of Columbia Circuit, June 9, 2006

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior; Fiduciary accountability -- United States; Evidence, Expert.

*Synopsis: Secretary of Interior, in his official capacity, petitioned for writ of mandamus disqualifying special master and suppressing reports he filed with district court in on-going litigation involving Interior's management of trust accounts for benefit of American Indians.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that:
(1) petition was not rendered moot by special master's resignation;
(2) special master should have recused himself; and
(3) suppression of reports prepared by special master was warranted.
Petition granted.

United States v. Preident R.C. St. Regis Management Company
451 F.3d 44
No. 05-3823-CV
United States Court of Appeals, Second Circuit, June 1, 2006

Subjects: Contracts -- St. Regis Band of Mohawk Indians of New York; Contracts -- St. Regis Management Company; Contracts -- Anderson-Blake Construction Corp.; 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. Constitution; Exhaustion of administrative remedies; Standing to sue -- St. Regis Band of Mohawk Indians of New York; United States. Indian Gaming Regulatory Act.

*Synopsis: Indian tribe filed qui tam action seeking declaration that construction contract entered into by casino management company was void and unenforceable under Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of New York, Hurd, J., 2005 WL 1397133, entered summary judgment in favor of company, and tribe appealed.

*Holding: The Court of Appeals, Preska, District Judge, sitting by designation, held that:
(1) tribe had to exhaust its administrative remedies under IGRA before filing suit;
(2) IGRA superseded statutory provision permitting Indian tribes to bring qui tam actions; and
(3) qui tam statute did not give tribe standing to seek declaratory judgment.
Affirmed.

May

In re Estate of Covington
450 F.3d 917
No. 04-35449
United States Court of Appeals, Ninth Circuit, May 25, 2006

Subjects: Evidence (Law) -- United States -- Application; Evidence (Law) -- Washington (State) -- Application; Distribution of decedents estates; Inheritance and succession; Colville Indians; Indian allotments.

*Synopsis: In a Department of the Interior probate proceeding, grandchildren of Native American testatrix contested will disposing testatrix's Indian trust allotments. Testatrix's attorney filed a motion to quash a subpoena duces tecum compelling him to produce copies of all documents relating to the preparation of the will. The United States District Court for the Eastern District of Washington, Fred L. Van Sickle, Chief Judge, granted the motion to quash on the grounds that attorney-client privilege protected the materials, and Department of the Interior appealed.

*Holding: The Court of Appeals, O'Scannlain, Circuit Judge, held that:
(1) state evidentiary law applied to questions of privilege in interpretation of a will disposing of Indian trust allotments, and
(2) resort to testatrix's attorney's notes was not appropriate under the generally accepted rules of evidence of Washington.
Affirmed.

Narragansett Indian Tribe v. State of Rhode Island and Providence Plantations et al.
449 F.3d 16
No. 04-1155
United States Court of Appeals, First Circuit, May 24, 2006

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

*Synopsis: Narragansett Indian Tribe of Rhode Island brought action for declaratory judgment against State of Rhode Island, seeking declaratory judgment that State could not enforce its cigarette sales and excise tax scheme against Tribe with respect to smoke shop located on Tribe's Settlement Lands. State brought action in state court against Tribe, seeking declaratory judgment that Tribe's failure to comply with state excise, retail, and sales taxes was unlawful. Tribe removed State's action to federal court, and actions were consolidated. On cross-motions for summary judgment, the United States District Court for the District of Rhode Island, William E. Smith, J., 296 F.Supp.2d 153, granted state's motion for summary judgment and denied Tribe's motion, and appeal was taken. A panel of Court of Appeals, 407 F.3d 450, disagreed in part, holding that the Tribe's sovereign immunity insulated it from the State's criminal process.

*Holding: On rehearing en banc, the Court of Appeals, Selya, Circuit Judge, held that, as a matter of first impression: (1) joint memorandum of understanding and Settlement Act permitted State of Rhode Island to issue and enforce a search warrant relative to the sale of unstamped, untaxed cigarettes on Native American settlement lands, and (2) State of Rhode Island did not violate federal law or sovereign rights of Narragansett Indian Tribe in enforcing criminal provisions of State's cigarette tax scheme by executing search warrant, seizing contraband, and making arrests on Tribe's Settlement Lands, overruling Aroostook Band of Micmacs v. Ryan, 404 F.3d 48.
Affirmed.

United States v. White Plume
447 F.3d 1067
Nos. 05-1654, 05-1656
United States Court of Appeals, Eighth Circuit, May 17, 2006

Subjects: Hemp farmers; United States. Drug Enforcement Administration; United States. Controlled Substances Act; Agricultural laws and legislation; Farm law.

*Synopsis: United States brought action for declaratory and injunctive relief against grower who, pursuant to tribal ordinance, had produced industrial hemp on tribal land without Drug Enforcement Agency (DEA) registration. Hemp companies intervened as defendants. The United States District Court for the District of South Dakota, Richard H. Battey, J., entered summary judgment in favor of United States. Grower and companies appealed.

*Holding:The Court of Appeals, Beam, Circuit Judge, held that:
(1) industrial hemp is subject to regulation by Controlled Substances Act (CSA);
(2) Treaty of Fort Laramie of 1868 did not give grower right to grow industrial hemp; and
(3) regulation of industrial hemp by CSA did not violate companies' substantive due process rights.
Affirmed.

Cottier v. City of Martin
445 F.3d 1113
No. 05-1895
United States Court of Appeals, Eighth Circuit, May 5, 2006

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 Section 2 of Voting Rights Act and Fourteenth and Fifteenth Amendments. The United States District Court for the District of South Dakota, Karen Schreier, J., denied relief, and voters appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that exit polls and results of last eight aldermanic elections in which Indian-preferred candidates lost established third Gingles precondition for vote dilution claim, to wit, that white majority tended to vote as block to defeat Indian-preferred candidates. Reversed and remanded with directions.Colloton, Circuit Judge, filed dissenting opinion.

Dumarce v. Scarlett
446 F.3d 1294
No. 05-1104
United States Court of Appeals, Federal Circuit, May 4, 2006

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

*Synopsis: Heirs to allotted Indian lands sought declaratory and injunctive relief, alleging that provision of the Sisseton-Wahpeton Sioux Act of 1984 mandating that certain interests in Indian allotments escheat to the United States to be held in trust for tribe constituted taking in violation of Fifth Amendment. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., 277 F.Supp.2d 1046, granted in part heirs' motion for summary judgment, finding that one heir's claim was not barred by statute of limitations and that Act effected taking without just compensation. Government appealed.

*Holding: The Court of Appeals, Michel, Chief Judge, held that:
(1) government satisfied its fiduciary duty to heir, and
(2) equitable tolling did not apply against government to make timely heir's takings claim.
Reversed.

The Delaware Nation v. Commonwealth of Pennsylvania
446 F.3d 410
No. 04-4593
United States Court of Appeals, Third Circuit, May 4, 2006

Subjects: Delaware Indians; Extinguishment of Indian title -- Delaware Indians; Pennsylvania; Bucks County (Pa.); Delaware Nation, Oklahoma (formerly the Delaware Tribe of Western Oklahoma); Land tenure -- Delaware Indians.

*Synopsis: Indian tribe brought action, pursuant to Indian Nonintercourse Act, claiming aboriginal and fee title to land. the United States District Court for the Eastern District of Pennsylvania, 2004 WL 2755545, James McGirr Kelly, J., dismissed. Tribe appealed.

*Holding: The Court of Appeals, Roth, Circuit Judge, held that:
(1) tribe waived issue of whether purchaser of land lacked sovereign authority to extinguish its aboriginal title;
(2) tribe's aboriginal title was extinguished by the purchase regardless of any fraud in the transaction;
(3) allegation that tribe obtained fee title to land which it had previously sold, and which was then granted back to a Chief of the tribe, failed to state a claim upon which relief could be granted.
Affirmed.

April

United States v. Peltier
446 F.3d 911
No. 05-3194
United States Court of Appeals, Eighth Circuit, April 28, 2006

Subjects: Peltier, Leonard; Sentences (Criminal procedure); Jurisdiction -- United States; Constitutional law; Criminal actions arising in Indian Country (U.S.).

*Synopsis: Defendant convicted of two counts of first-degree murder moved to correct illegal sentence. The United States District Court for the District of North Dakota, Ralph R. Erickson, J., denied motion. Defendant appealed.

*Holding: The Court of Appeals, Arnold, Circuit Judge, held that:
(1) rule allowing correction of illegal sentence was not appropriate vehicle for claim that District Court was lacked jurisdiction over prosecution;
(2) District Court was not deprived of subject matter jurisdiction by fact that murders occurred in Indian country;
(3) rule allowing correction of illegal sentence was not appropriate vehicle for claim that statute criminalizing killing of federal officers was unconstitutional exercise of Congress's power under Commerce Clause; and
(4) Congress had power to enact such statute.
Affirmed.

Yashenko v. Harrah's NC Casino Company, LLC
446 F.3d 541
No. 05-1256
United States Court of Appeals, Fourth Cir., April 27, 2006

Subjects: Race discrimination -- Eastern Band of Cherokee Indians of North Carolina; Indian preference in hiring -- Eastern Band of Cherokee Indians of North Carolina; Harrah's Cherokee Casino (N.C.); United States. Family and Medical Leave Act of 1993; Casinos -- Eastern Band of Cherokee Indians of North Carolina.

*Synopsis: Terminated casino employee filed state court action against casino management company that had contracted with Indian tribe to operate tribal gaming enterprise for violation of Family and Medical Leave Act (FMLA). Action was removed to federal court. Employee added claims of race discrimination under 1981 and wrongful discharge in violation of North Carolina public policy. The United States District Court for the Western District of North Carolina, Lacy H. Thornburg, J., 352 F.Supp.2d 653, granted summary judgment for employer on FMLA and 1981 claims and dismissed wrongful discharge claim without prejudice. Employee appealed.

*Holding: The Court of Appeals, Dianna Gribbon Motz, Circuit Judge, held that: (1) as a matter of first impression, Family and Medical Leave Act (FMLA) did not provide covered employee with absolute right to be restored to his previous job after taking approved leave; (2) employee's position was eliminated for legitimate reasons unrelated to request for FMLA leave, defeating his FMLA interference claim; (3) employee established prima facie case of retaliation under FMLA; (4) employer's proffered reason for eliminating his job was legitimate and nonretaliatory and was not shown to be pretextual; and (5) tribe was both necessary and indispensable party to employee's 1981 cause of action, but its sovereign status prohibited its joinder.
Affirmed.

United States v. Brave Thunder
445 F.3d 1062
Nos. 05-3446, 05-3447
United States Court of Appeals, Eighth Circuit, April 24, 2006

Subjects: Evidence (Law) -- United States; Theft -- Officials and employees -- Standing Rock Sioux Tribe of North & South Dakota. Long Soldier District; Corporate treasurers -- Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Defendants were convicted of theft from an Indian tribal organization, conspiracy to commit an offense against the United States, and making false statements to the Federal Bureau of Investigation (FBI), following jury trial in the United States District Court for the District of North Dakota, Daniel L. Hovland, Chief Judge. Defendants appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) finding that defendants committed theft was supported by sufficient evidence;
(2) government was required to prove conspiracy involving United States;
(3) convictions for making false statements were supported by sufficient evidence; and
(4) District Court did not err in determining that defendants held positions of trust.
Affirmed.

In re Emerald Outdoor Advertising, LLC
444 F.3d 1077
No. 04-35647
United States Court of Appeals, Ninth Cir., April 13, 2006

Subjects: Trust lands -- Puyallup Tribe of the Puyallup Reservation, Washington; Mortgages -- Federal supervision; Foreclosure; Billboards.

*Synopsis: Chapter 11 debtor moved to assume certain executory leases to operate billboards on deed of trust property, and party that had purchased deed of trust property at foreclosure sale objected and moved for relief from stay in order to continue litigating her dispute with bankrupt advertising company in tribal court. The United States Bankruptcy Court for the Eastern District of Washington , Patricia C. Williams, Chief Judge, 300 B.R. 775, entered order denying motion to assume, and appeal was taken. The District Court, Robert H. Whaley, J., reversed.

*Holding: On further appeal, the Court of Appeals, Silverman, Circuit Judge, held that:
(1) recording of deed of trust on Indian trust lands in office of auditor of county in which these trust lands were located, as required to perfect deed of trust under Washington law, gave deed of trust priority over subsequent lease that was thereafter recorded in appropriate Bureau of Indian Affairs (BIA) title plant; and
(2) while Indian owner of trust land had to obtain approval of the Bureau of Indian Affairs (BIA) in order to mortgage land, BIA's approval was effective immediately on issuance of certificate of approval.
Order of district court reversed.

Walton v. Pueblo
443 F.3d 1274
Nos. 04-2305, 04-2310.
United States Court of Appeals, Tenth Cir., April 10, 2006

Subjects: Dealers (Retail trade) -- Licenses; Non-Indians; Sovereign immunity -- Pueblo of Tesuque, New Mexico; Jurisdiction -- United States; United States. Indian Civil Rights Act; Tesuque Pueblo Flea Market.

*Synopsis: Non-Indian vendor brought action against Indian tribe and various tribal officials, alleging that tribe's revocation of his flea market vendor's permit violated federal and state law. Defendants moved to dismiss on basis of sovereign immunity. The United States District Court for the District of New Mexico denied the motion in part and granted it in part, and parties cross-appealed.

*Holding: The Court of Appeals, Tacha, Chief Circuit Judge, held that:
(1) district court lacked jurisdiction to hear non-habeas claims;
(2) habeas provision of Indian Civil Rights Act (ICRA) did not confer jurisdiction on district court; and
(3) tribe's waiver, pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA), of its sovereign immunity with respect to suits arising out of its performance of its contractual duties, did not confer jurisdiction on district court.
Affirmed in part and reversed in part.

Wyandotte Nation v. Sebelius
443 F.3d 1247
Nos. 04-3431, 04-3432.
United States Court of Appeals, Tenth Cir., April 7, 2006

Subjects: Status (Law); Wyandotte Tribe of Oklahoma; Land use -- Wyandotte Tribe of Oklahoma; Indian gaming -- Wyandotte Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; Casinos -- Wyandotte Tribe of Oklahoma; Law -- Oklahoma; Jurisdiction -- Kansas; Injunctions; Searches and seizures -- Kansas.

*Synopsis: Following a raid by Kansas law enforcement authorities on a casino owned by an Indian tribe, tribe sought preliminary injunction requiring return of seized monies and gaming machines and barring Kansas from exercising jurisdiction over gaming or related activities on the site. The United States District Court for the District of Kansas, 337 F.Supp.2d 1253, granted the request, and also sua sponte enjoined tribe from conducting gaming or related activities on the site pending clarification of various issues. Parties cross-appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that
(1) district court abused its discretion in sua sponte enjoining tribe from conducting gambling, and
(2) tribe was entitled to preliminary injunction.
Affirmed in part, vacated in part, and remanded.

March

Wilkinson v. United States
440 F.3d 970
No. 04-2185
United States Court of Appeals, Eighth Cir., March 13, 2006

Subjects: United States. Bureau of Indian affairs -- Officials and employees; Payments -- United States; Rent charges -- Indian Country (U.S.); Trust lands -- Indian Country (U.S.); Standing to sue -- United States; Trusts and trustees -- United States.

*Synopsis: Heirs of enrolled members of Indian tribe sued Bureau of Indian Affairs (BIA) officials, alleging deprivation of rental income derived from trust land mortgaged by their parents. The United States District Court for the District of North Dakota, Daniel L. Hovland, J., 314 F.Supp.2d 902, granted summary judgment for officials, and heirs appealed.

*Holding: The Court of Appeals, Melloy, Circuit Judge, held that heirs had standing to sue.
Reversed and remanded.

Sac & Fox Tribe of the Mississippi In Iowa, Election Board v. Bureau of Indian Affairs
439 F.3d 832
No. 05-2106
United States Court of Appeals, Eighth Cir., March 3, 2006

Subjects: Sac & Fox Tribe of the Mississippi in Iowa; United States. Bureau of Indian Affairs; Tribal councils -- Sac & Fox Tribe of the Mississippi in Iowa -- Recognition; Contested elections -- Sac & Fox Tribe of the Mississippi in Iowa; Federal question; Standing to sue; Jurisdiction -- United States; United States -- Officials and employees.

*Synopsis: Following recognition, by the Bureau of Indian Affairs (BIA), of tribal council elected in disputed election, election board that had been appointed by previous council brought action against BIA, objecting to its recognition of new tribal council. Recognized council appointed new election board, which moved to dismiss. The United States District Court for the Northern District of Iowa, Linda R. Reade, J., dismissed. Old board appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that district court lacked subject matter jurisdiction.
Affirmed.

Lafromboise v. Leavitt
439 F.3d 792
No. 04-3245.
United States Court of Appeals, Eighth Cir., March 2, 2006

Subjects: United States. Federal Tort Claims Act; Malpractice -- United States; Law -- North Dakota -- Application; United States. Indian Health Service; Medical care -- On Indian reservations -- Turtle Mountain Band of Chippewa Indians of North Dakota.

*Synopsis: Mother brought action under Federal Tort Claims Act (FTCA), alleging medical malpractice occurring during her son's treatment at government-operated medical facility on Indian reservation. The United States District Court for North Dakota, Daniel Hovland, Chief Judge, 329 F.Supp.2d 1054, dismissed, and mother appealed.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that state law applied.
Affirmed.

Jicarilla Apache Nation v. Rio Arriba County
440 F.3d 1202
No. 04-2320
United States Court of Appeals, Tenth Cir., March 1, 2006

Subjects: Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation); New Mexico -- Rio Arriba County -- Officials and employees; Tax assessment -- Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation); Real property -- Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation); Equality before the law -- Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation).

*Synopsis: Indian tribe brought civil rights action against county and county officials, alleging that county's reassessment of ranch for property tax purposes violated equal protection. The United States District Court for the District of New Mexico, James O. Browning, J., granted summary judgment for defendants, 376 F.Supp.2d 1096. Tribe appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) Rooker-Feldman doctrine did not insulate reclassification decision of county property tax assessment board from review by federal court;
(2) tribe's request for prospective injunctive relief was mooted by passage of statute by New Mexico legislature;
(3) legislation did not moot claims brought by tribe for retrospective relief;
(4) reclassification decision was objectively reasonable; and
(5) property was not similarly situated to other elk hunting ranches.
Affirmed.

February

Thortenson v. Norton
440 F.3d 1059
No. 04-4029.
United States Court of Appeals, Eighth Cir., February 28, 2006

Subjects: United States. Bureau of Indian Affairs; Jurisdiction -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Jurisdiction -- South Dakota; Contracts -- United States; Breach of contract; Trust lands -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota.

*Synopsis: Purchaser, who paid monies under contract for deed with vendor for Indian trust lands that were never delivered, appealed determination of Bureau of Indian Affairs (BIA), denying his monetary claim against estate of vendor. The United States District Court for the District of South Dakota, Richard H. Battey, J., granted government's motion to dismiss, and purchaser appealed.

*Holding: The Court of Appeals, Beam, Circuit Judge, held that:
(1) both tribal and state courts had jurisdiction over monetary claims;
(2) contract was not void under statute rendering land conveyances void without prior approval of BIA;
(3) tribal court judgment dismissing breach of contract claim barred subsequent recovery of monetary damages under contract; and
(4) judgment against vendor's widow was not enforceable against vendor's estate.
Affirmed.

Berry v. Asarco Incorporated
439 F.3d 636
No. 04-5131
United States Court of Appeals, Tenth Cir., February 22, 2006

Subjects: 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: Quapaw Indian Tribe brought action alleging that mining company and its predecessors in interest caused environmental contamination on Quapaw lands as result of their mining activities in 1900s. Defendants counterclaimed for common law contribution and indemnity, and contribution under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States District Court for the Northern District of Oklahoma denied Tribe's motion to dismiss defendants' counterclaims. Tribe took interlocutory appeal.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) Tribe's timely motion to certify was functional equivalent of notice of appeal;
(2) Tribe waived its tribal sovereign immunity as to any counterclaims of mining company and its predecessors that sounded in recoupment;
(3) counterclaims arose from same transaction or occurrence as claims asserted by Tribe;
(4) counterclaims sought same kind of relief as claims asserted by Tribe;
(5) counterclaims did not seek amount in excess of that sought in claims asserted by Tribe;
(6) collateral order doctrine did not apply to additional claim asserted by Tribe; and
(7) assertion of pendent appellate jurisdiction over other issues was not warranted.
Affirmed.

United States v. Arrieta
436 F.3d 1246
Nos. 04-2350, 05-2010
United States Court of Appeals, Tenth Cir., February 7, 2006

Subjects: Indian Country (U.S.) -- Defined; Criminal actions arising in Indian Country (U.S.) -- Pueblo of Pojoaque, New Mexico; Assault and battery -- Pueblo of Pojoaque, New Mexico; Indians of North America -- Violence against.

*Synopsis: Defendant entered conditional plea of guilty in the United States District Court for the District of New Mexico to committing assault against Indian that resulted in serious bodily injury in Indian country using firearm to facilitate crime of violence. Defendant appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) road maintained by county, lying between two parcels of land owned by non-Indians, but within exterior boundaries of Pojoaque Pueblo, was Indian country, and
(2) district court did not have authority to depart downward from agreed upon specific sentence.
Affirmed in part, reversed in part, and remanded.

January

United States v. Wolfe
435 F.3d 1289
No. 04-2114
United States Court of Appeals, Tenth Cir., January 31, 2006

Subjects: Criminal actions arising in Indian Country (U.S.) -- Pueblo of Sandia, New Mexico; Sentences (Criminal procedure); Trials (Manslaughter).

*Synopsis: Defendant pleaded guilty, in the United States District Court for the District of New Mexico, John E. Conway, J., to two counts of involuntary manslaughter occurring in Indian country. She appealed her sentence.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) insufficient factual basis existed for sentencing court's finding that defendant was driving over 100 miles per hour;
(2) imposition of upward departures for excessive recklessness and serious danger to the public welfare constituted impermissible double-counting under Sentencing Guidelines; and
(3) district court impermissibly double-counted when it departed upward on basis that defendant's conduct of driving a car recklessly while intoxicated resulted in multiple deaths.
Reversed and remanded.

Hebert v. Wirick
438 F.3d 483
No. 05-30223
United States Court of Appeals, Fifth Cir., January 26, 2006

Subjects: United States. Federal Tort Claims Act; Indian reservation police -- Chitimacha Tribe of Louisiana; Cross-commissioned police -- Defined.

*Synopsis: Following settlement of civil rights suit against them, tribal police officer and his police chief filed third-party complaint under Federal Tort Claims Act (FTCA), seeking reimbursement against United States. The United States District Court for the Western District of Louisiana, C. Michael Hill, United States Magistrate Judge, dismissed suit. Defendants appealed.

*Holding: The Court of Appeals, Carl E. Stewart, Circuit Judge, held that defendants were not enforcing federal law.
Affirmed.

Native American Arts, Inc. v. Hartford Casualty Insurance Company
435 F.3d 729
No. 04-3861, 04-3862
United States Court of Appeals, Seventh Cir., January 25, 2006

Subjects: Native American Arts (Ill.); Hartford Casualty Insurance Co.; United States. Indian Arts & Crafts Act.

*Synopsis: Native American art company brought action against insurer, alleging breach of duty to defend parent company in underlying lawsuit. The United States District Court for the Northern District of Illinois, Charles P. Kocoras, J., granted summary judgment in favor of insurer. Company appealed.

*Holding: The Court of Appeals, Wood, Circuit Judge, held that policy exclusion from advertising injury coverage was applicable.
Affirmed.

Northern Cheyenne Tribe v. Jackson
433 F.3d 1083
No. 04-4145, 04-3862
United States Court of Appeals, Eighth Cir., January 18, 2006

Subjects: Sacred sites -- Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana; Bear Butte (S.D. : Mountain); Shooting schools -- South Dakota; United States. Religious Freedom Restoration Act of 1993; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: Native American tribes commenced action against multiple defendants, including the United States, under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Religious Freedom Restoration Act (RFRA), seeking to enjoin construction of a shooting range near a mountain formation of great spiritual significance. When Department of Housing and Urban Development (HUD) determined that the shooting range would not generate necessary public benefits the project was abandoned. The tribes then dismissed their claims as moot. The United States District Court for the District of South Dakota, Karen Schreier, J., denied tribes' motion for an award of attorney fees, and tribes appealed.

*Holding: The Court of Appeals, Loken, Chief Judge, held that preliminary injunction granting temporary relief that merely maintained the status quo did not confer prevailing party status on the tribes.
Affirmed.

Smith v. Salish Kootenai College
434 F.3d 1127
No. 03-35306
United States Court of Appeals, Ninth Cir., January 10, 2006

Subjects: Traffic fatalities -- On Indian reservations -- Umatilla Reservation, Confederated Tribes of the, Oregon; Umatilla Reservation, Confederated Tribes of the, Oregon -- Members; Jurisdiction -- Umatilla Reservation, Confederated Tribes of the, Oregon -- Application -- Non-Indians; Salish Kootenai College; Evidence (Law).

*Synopsis: Following a jury verdict in tribal court for college located on Indian reservation, in action arising out of an accident involving a college-owned truck on a public highway within the reservation, plaintiff, a student at the college and a non-member of the tribe, brought action in federal court, alleging that the tribal court lacked jurisdiction over his claim. The United States District Court for the District of Montana, Leif B. Erickson, United States Magistrate Judge, dismissed. Student appealed, and the Court of Appeals reversed.

*Holding: On rehearing en banc, the Court of Appeals, Bybee, Circuit Judge, held that tribal courts had subject matter jurisdiction.
Affirmed.

TOMAC, Taxpayers of Michigan Against Casinos v. Norton
433 F.3d 852
No. 05-5206
United States Court of Appeals, District of Columbia Cir., January 6, 2006

Subjects: Casinos -- Design and construction; Cities and towns -- Growth; Pokagon Band of Potawatomi Indians of Michigan; United States. Bureau of Indian Affairs; Trust or restricted lands -- Michigan; Environmental impact analysis -- Michigan; Wetlands -- Michigan; Endangered species -- Michigan; United States. Indian Gaming Regulatory Act; United States; Indian gaming -- Michigan; Taxpayers of Michigan Against Casinos.

*Synopsis: Taxpayers' group challenged decision by Bureau of Indian Affairs (BIA) to take land into trust so that Pokagon Band of Potawatomi Indians could build casino. In a series of decisions, the United States District Court for the District of Columbia, Robertson, J., 193 F.Supp.2d 182, 240 F.Supp.2d 45, and 2005 WL 2375171, granted summary judgment for government, and group appealed.

*Holding: The Court of Appeals, Edwards, Senior Circuit Judge, held that:
(1) BIA's finding of no significant environmental impact, and thus that no environmental impact statement (EIS) was needed, was not arbitrary or capricious;
(2) tribe was "restored to Federal recognition," within meaning of exception to Indian Gaming Regulatory Act (IGRA) prohibition of regulated Indian gaming on off-reservation lands; and
(3) statute restoring tribe did not violate nondelegation doctrine.
Affirmed.

Related News Stories:
• • Group mulls appeal of casino ruling (Northwest Times) 1/17/06
http://www.thetimesonline.com/articles/2006/01/17/business/
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