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December

Osage Nation v. State of Oklahoma Ex Rel. Oklahoma Tax Commission
260 Fed.Appx. 13
No. 03-5162
United States Court of Appeals, Tenth Circuit, December 26, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Taxation -- Law and legislation -- Oklahoma -- Application -- Osage Tribe, Oklahoma -- Members; Income tax -- Osage Tribe, Oklahoma -- Members -- Oklahoma -- Osage County; Indian Country (Okla.) -- Defined; Osage Tribe, Oklahoma -- Officials and employees -- Taxation -- Oklahoma.

*Synopsis: Indian tribe sued the State of Oklahoma, the Oklahoma Tax Commission, and individual members of the Tax Commission in their official capacities, seeking to enjoin the assessment of income tax on tribal members employed by the tribe and residing in a county. The United States District Court for the Northern District of Oklahoma denied a defense motion to dismiss, and defendants appealed.

*Holding: The Court of Appeals, Terrence L. O'Brien, Circuit Judge, held that:
(1) district court improperly conflated the distinct concepts of subject matter jurisdiction and sovereign immunity, but
(2) under the Ex parte Young exception to Eleventh Amendment immunity, the tribe could proceed against individual members of the Commission.
Affirmed in part and reversed in part.

United States v. Allen Flying By
511 F.3d 773
No. 07-1076
United States Court of Appeals, Eighth Circuit, December 26, 2007

Subjects: Evidence (Law); Testimony; Sentences (Criminal procedure); Embezzlement -- Standing Rock Sioux Tribe of North & South Dakota -- Officials and employees.

*Synopsis: Tribal council representative was convicted of embezzlement and theft from an Indian tribal organization, following jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, J. Representative appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) convictions were supported by sufficient evidence;
(2) District Court did not abuse its discretion in overruling representative's objection to judge's question of witness as to whether witness's testimony at plea hearing was true;
(3) District Court did not commit plain error in questioning witnesses, or in asking witness whether she wanted to consult with her attorney; and
(4) sentence of 33 months was not excessive.
Affirmed.

United States v. Alpine Land & Reservoir Company
510 F.3d 1035
No. 06-17375
United States Court of Appeals, Ninth Circuit, December 7, 2007

Subjects: Newlands Project (U.S.); Nevada. State Engineer; Water rights -- Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; Water rights -- Nevada; Water transfer -- Nevada; Water rights -- Abandonment -- Nevada.

*Synopsis: United States and Indian tribe sought judicial review of 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, J., affirmed State Engineer's decision, and its opinion was affirmed in part, reversed in part, and remanded at 291 F.3d 1062, and again at 340 F.3d 903. On remand, the United States District Court for the District of Nevada, Robert C. Jones, J., affirmed State Engineer's decision, and tribe appealed.

*Holding: The Court of Appeals, Fernandez, Circuit Judge: held that:
(1) substantial evidence supported State Engineer's determination that landowners did not abandon their water rights as to certain parcels; but
(2) landowners forfeited their water rights in other parcels; and
(3) remand was warranted for State Engineer to determine whether a successive five-year period passed without a thwarted attempt to transfer water rights during that period as to certain parcels.
Affirmed in part, reversed in part, and remanded.

Burlington Northern & Santa Fe Railway Company v. Vaughn
509 F.3d 1085
No. 05-16755
United States Court of Appeals, Ninth Circuit, December 7, 2007

Subjects: Taxation -- Burlington Northern Santa Fe Railroad -- Hualapai Indian Tribe of the Hualapai Indian Reservation; Railroads -- Right of way -- Burlington Northern Santa Fe Railroad; Railroad accidents -- Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona.

*Synopsis: Railroad brought suit against two officials in Hualapai Indian Tribe, seeking declaratory and injunctive relief against their efforts to enforce or collect the Tribe's possessory interest tax against railroad for use of its right-of-way through the reservation. The United States District Court for the District of Arizona, Earl H. Carroll, J., denied Tribe's motion to dismiss. Tribe sought interlocutory appeal.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) on a matter of first impression, denial of Tribe's sovereign immunity claim was appealable on an interlocutory basis as a collateral order;
(2) Tribal official allegedly responsible for administration and collection of challenged tax was not immune from suit;
(3)Tribal Chairman was immune from suit; and
(4) it would not exercise pendent appellate jurisdiction over Tribe's remaining claims.
Affirmed in part, reversed in part, and dismissed in part.

Arizona Health Care Cost Containment System v. McClellan
508 F.3d 1243
No. 05-16386
United States Court of Appeals, Ninth Circuit, December 3, 2007

Subjects: United States. Indian Health Care Improvement Act; Medicare; Public contracts – United States; Indians of North America -- Medical care; United States. Indian Health Service.

*Synopsis: State brought action against administrator of federal Medicaid program, seeking reimbursement for all health care services provided to Medicaid-eligible Native Americans under the referral agreements between health care service providers and the Indian Health Service (IHS). The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., granted summary judgment in favor of state. Federal administrator appealed.

*Holding: The Court of Appeals, Ikuta, Circuit Judge, held that:
(1) Indian Health Care Improvement Act's 100 percent reimbursement provision was ambiguous;
(2) ambiguity was not clarified by legislative history of Act; and
(3) Act's 100 percent reimbursement provision was limited to those services received through an IHS facility which offered, was responsible for, and billed Medicaid for the services provided. Reversed and remanded.

Related News Stories: State loses case over Indian Health Care Improvement Act (Indianz.com) 12/4/07

November

Alvarado v. Table Mountain Rancheria
509 F.3d 1008
No. 06-15351
United States Court of Appeals, Ninth Circuit, November 29, 2007

Subjects: Table Mountain Rancheria of California -- Membership; Jurisdiction -- United States; Sovereign immunity -- Table Mountain Rancheria of California; United States. California Rancheria Termination Act of 1958; Table Mountain Rancheria of California -- Members -- Legal status, laws, etc.; Indian land transfers -- Table Mountain Rancheria of California.

*Synopsis: Unsuccessful petitioners for admission to Table Mountain Rancheria (TMR) Indian tribe filed suit against TMR, several tribal members, former class representatives for prior settled class action that regained TMR Indian status under federal law, Secretary of Interior, and United States, claiming breach of covenant of good faith and fair dealing and breach of fiduciary duty, and seeking declaratory and injunctive relief compelling admission as tribal members. The United States District Court for the Northern District of California, Marilyn H. Patel, J., 2005 WL 1806368, dismissed for lack of subject matter jurisdiction.

*Holding: The Court of Appeals, Alarcón, Circuit Judge, held that:
(1) complaint was not collateral attack on prior settlement;
(2) ancillary jurisdiction did lie over claims;
(3) original jurisdiction did not lie over claims naming United States as defendant;
(4) petitioners failed to exhaust claims pursuant to Federal Tort Claims Act (FTCA); and
(5) original jurisdiction did not lie under Administrative Procedure Act (APA) nor supplemental jurisdiction.
Affirmed.

Longoria v. Dretke
507 F.3d 898
No. 06-10676
United States Court of Appeals, Fifth Circuit, November 9, 2007

Subjects: Freedom of religion; Indian prisoners -- Texas; Long hair; Texas. Dept. of Criminal Justice; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indians of North America -- Rites and ceremonies; Policies and institutions.

*Synopsis: Prisoner brought pro se action against prison officials, claiming his right to exercise his religion was denied when they denied him permission to grow his hair. The United States District Court for the Northern District of Texas, Sam R. Cummings, J., dismissed action. Prisoner appealed.

*Holding: The Court of Appeals, held that:
(1) prisoner abandoned any claim on appeal that his rights under the free exercise clause of the First Amendment were violated;
(2) prison's grooming policy did not violate Religious Land Use and Institutionalized Persons Act (RLUIPA); and
(3) prison grooming policy did not violate equal protection.
Affirmed.

Fidelity Exploration and Production Company v. United States
506 F.3d 1182
No. 06-35307
United States Court of Appeals, Ninth Circuit, November 6, 2007

Subjects: Oil and gas leases -- Fidelity Exploration & Production Co.. Quiet title actions -- River channels -- Tongue River Watershed (Wyo. and Mont.); Oil and gas leases -- Montana; Trusts and trustees -- United States; Land tenure -- Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.

*Synopsis: Oil and gas lessee brought action against United States under Quiet Title Act (QTA), seeking to quiet title to portion of bed of Tongue River, which United States claimed as trustee for Northern Cheyenne Indian Tribe. The United States District Court for the District of Montana, Richard F. Cebull, J. dismissed action. Lessee appealed.

*Holding: The Court of Appeals, Rymer, Circuit Judge, held that statute of limitations on lessee's claim began to run no later than 1926, when Act of Congress recognized middle channel of River as eastern boundary of Northern Cheyenne Reservation.
Affirmed.

October

United States v. Washington
252 Fed.Appx. 183
Nos. 06-35185, 06-35241
United States Court of Appeals, Ninth Circuit, October 26, 2007

Subjects: Jurisdiction -- United States.

*Synopsis: (from the opinion) This case is remanded to the district court. A 12(b)(6) dismissal is not appropriate. The district court failed to make any determination on whether it has continuing jurisdiction and on what ground. The jurisdictional basis is not self-evident; it is necessarily linked to the nature of the claim being asserted. The issues and proceedings are complex and meaningful appellate review requires a more developed record.

*Holding: not yet available

Governor of Kansas v. Kempthorne
505 F.3d 1089
No. 06-3213
United States Court of Appeals, Tenth Circuit, October 24, 2007

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 Secretary of the Interior (DOI) taking into trust for Wyandotte Indian Tribe a tract of land on which tribe intended to operate casino. The United States District Court for the District of Kansas, 430 F.Supp.2d 1204, Robinson, J., affirmed trust status of the tract, and plaintiffs appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) Quiet Title Act barred action;
(2) Quiet Title Act's bar applied even though Governor's earlier challenge to DOI's similar earlier decision regarding same tract had been valid; and
(3) Court of Appeals' order in previous challenge, and DOI's appearances in court, could not effect waiver of sovereign immunity.
Appeal dismissed; remanded with instructions to vacate judgment and dismiss.

Lathan v. Thompson
251 Fed.Appx. 665
No. 06-15587
United States Court of Appeals, Eleventh Circuit, October 19, 2007 - Added 6/19/08

Subjects: Freedom of religion; Indian prisoners -- Alabama; Long hair; Sweat lodges; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indians of North America -- Rites and ceremonies; Policies and institutions.

*Synopsis: Inmates, who adhered to Native American religion, brought action challenging on various constitutional grounds and under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the state Department of Corrections' policies restricting hair length and prohibiting sweat lodge ceremonies. The United States District Court for the Middle District of Alabama granted summary judgment to government defendants on their hair length restriction claims and dismissed sweat lodge claims. Inmates appealed.

*Holding: The Court of Appeals held that:
(1) inmates' claims challenging policy prohibiting sweat lodge ceremonies were moot;
(2) inmates were not entitled to monetary relief on their sweat lodge claims; and
(3) genuine issue of material fact as to whether Department's total ban on long hair was least restrictive means of furthering compelling governmental interest precluded summary judgment.
Affirmed in part; reversed, vacated and remanded in part.

Navajo Nation v. United States Forest Service
506 F.3d 717
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit, October 17, 2007

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.

*Synopsis: (from the opinion) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

*Holding: not yet available

September

Catawba Indian Tribe of South Carolina v. City of Rock Hill, South Carolina
501 F.3d 368
No. 05-2050
United States Court of Appeals, Fourth Circuit, September 20, 2007

Subjects: Catawba Indian Tribe of South Carolina; Municipal ordinances -- South Carolina -- Rock Hill; Water-pipes -- Catawba Indian Tribe of South Carolina; Sewage -- Catawba Indian Tribe of South Carolina; Intergovernmental agreements -- South Carolina -- Rock Hill; Intergovernmental agreements -- Catawba Indian Tribe of South Carolina.

*Synopsis: Indian tribe sued city, alleging that city ordinance impaired contracts previously entered into by tribe and city for construction of water infrastructure to serve tribe's reservation. The United States District Court for the District of South Carolina, Cameron McGowan Currie, J., entered summary judgment for city. Tribe appealed.

*Holding: The Court of Appeals held that city ordinance imposing impact fee for requests for new water service did not impair prior contracts.
Affirmed.

Miner Electric, Inc. v. Muscogee (Creek) Nation
505 F.3d 1007
No. 06-5216
United States Court of Appeals, Tenth Circuit, September 19, 2007

Subjects: Criminal actions arising on Indian reservations -- Muscogee (Creek) Nation, Oklahoma; Non-Indians; Civil jurisdiction -- Muscogee (Creek) Nation, Oklahoma; Forfeiture -- On Indian reservations; United States. Constitution 5th Amendment; United States. Constitution. 8th Amendment; United States. Indian Civil Rights Act. Title 1; Federal question; Sovereign immunity -- Muscogee (Creek) Nation, Oklahoma.

*Synopsis: Non-Indians, as occupants of sports utility vehicle (SUV) and its corporate owners, sued Indian tribe, seeking injunctive relief and declaratory judgment that tribe lacked jurisdiction to enter civil forfeiture order for cash and SUV in which drugs were found while occupants were visiting Indian casino, and asserting that forfeiture was denial of their rights under Fifth and Eighth Amendments and Title I of Indian Civil Rights Act (ICRA). The United States District Court for the Northern District of Oklahoma, H. Dale Cook, Senior District Judge, 464 F.Supp.2d 1130, granted non-Indians summary judgment. Tribe appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that:
(1) federal-question jurisdiction did not negate tribal sovereign immunity, and
(2) suit was not within Dry Creek exception to tribal sovereign immunity.
Reversed and remanded, with instructions to vacate and dismiss.

Nulankeyutmonen Nkihtaqmikon v. Impson
503 F.3d 18
No. 06-2733
United States Court of Appeals, First Circuit, September 14, 2007

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.

*Synopsis: Group of Indian tribe members and individual tribe members brought action for declaratory and injunctive relief, alleging that approval by Bureau of Indian Affairs (BIA) of lease of tribal land on which developer sought to construct liquefied natural gas (LNG) terminal violated Indian Long-Term Leasing Act, National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), Administrative Procedure Act (APA), and Endangered Species Act (ESA) and breached federal government's fiduciary duty to Indian citizens. The United States District Court for the District of Maine, John A. Woodcock, Jr., J., 462 F.Supp.2d 86, dismissed for lack of jurisdiction. Plaintiffs appealed.

*Holding: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) BIA's change in position on appeal did not warrant remand;
(2) plaintiffs had Article III standing to pursue their procedural claims under NEPA, NHPA, and ESA;
(3) plaintiffs' interests arguably fell within zone of interests protected by Indian Long-Term Leasing Act, as required for prudential standing;
(4) plaintiffs failed to state claim in alleging breach of federal government's fiduciary duty to Indian citizens;
(5) plaintiffs' claims were ripe for review; and
(6) administrative exhaustion was not jurisdictional requirement.
Affirmed in part; reversed and remanded in part.

Navajo Nation v. United States
501 F.3d 1327
No. 2006-5059
United States Court of Appeals, Federal Circuit, September 13, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Tucker Act; Breach of trust -- United States; Coal mines and mining -- On Indian reservations; Mining leases; United States. Indian Mineral Leasing Act of 1938; United States. Indian Mineral Leasing Act; United States. Surface Mining Control and Reclamation Act.

*Synopsis: Indian tribe brought action against United States under Indian Tucker Act for a breach of trust in leasing the tribe's lands for coal mining. On remand, the Court of Federal Claims, Lawrence M. Baskir, J., 68 Fed.Cl. 805, found that the tribes's asserted network of other statutes and regulations failed to establish a money-mandating trust in the area of royalty rates, and tribe appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that:
(1) tribe had a cognizable money-mandating claim under Indian Tucker Act against the United States for a breach of trust in a Indian Mineral Leasing Act (IMLA) lease of the tribe's lands for coal mining, and
(2) government violated its common law trust duties of care, candor, and loyalty, its duty under the Navajo-Hopi Rehabilitation Act to keep the tribe informed regarding the development of its coal resources, its duty under the regulations promulgated pursuant to the Surface Mining Control and Reclamation Act to provide the tribe representation in a matter related to coal mining operations, and its duty under the Indian lands section of the Surface Mining Control and Reclamation Act to include and enforce terms and conditions requested by the tribe.
Reversed and remanded.

United Keetoowah Band of Cherokee Indians in Oklahoma v. U.S. ex rel. Norton
247 Fed.Appx. 150
No. 06-7033
United States Court of Appeals, Tenth Circuit, September 6, 2007

Subjects: Indian gaming -- United Keetoowah Band of Cherokee Indians of Oklahoma; Gambling on Indian reservations -- Oklahoma; Land tenure -- United Keetoowah Band of Cherokee Indians of Oklahoma -- Oklahoma -- Tahlequah; United States. Indian Gaming Regulatory Act.

*Synopsis: Indian tribe filed a state court declaratory judgment action against State of Oklahoma to determine whether it could legally operate a gaming facility on certain land. After state court enjoined State from enforcing its laws against tribe's purported gaming violations, State removed case to federal court and filed a declaratory judgment counterclaim. Tribe later amended its complaint to add the United States as a defendant. The United States District Court for the Eastern District of Oklahoma remanded matter to National Indian Gaming Commission and denied as moot State's summary judgment motion. State appealed.

*Holding: The Court of Appeals, John C. Porfilio, Circuit Judge, held that:
(1) district court's remand order was not a final, appealable order;
(2) Court of Appeals lacked jurisdiction to review any of State's claims of error by district court with respect to preliminary injunction; and
(3) denial of State's summary judgment motion as moot was not an appealable order.
Appeal dismissed.

United States v. Mitchell
502 F.3d 931
No. 03-99010
United States Court of Appeals, Ninth Circuit, September 5, 2007

Subjects: Law -- United States -- Application -- Indians of North America; United States. Federal Death Penalty Act; United States. Major Crimes Act; Capital punishment; Jurors.

*Synopsis: Following a jury trial, defendant was convicted in the United States District Court for the District of Arizona, Mary H. Murguia, J., of first degree murder, felony murder, carjacking resulting in death, and related federal crimes involving other Navajos on the Navajo Indian reservation in Arizona. Defendant was sentenced to death. Appeal was taken.

*Holding: The Court of Appeals, Rymer, Circuit Judge, held that:
(1) Federal Death Penalty Act (FDPA) extended to carjacking committed by defendant, a Native American against other Native Americans in Indian country;
(2) Major Crimes Act did not preclude federal court's exercise of jurisdiction over Native American charged with federal carjacking resulting in death;
(3) imposition of death sentence for Native American convicted of carjacking resulting in death did not violate the right of free exercise of religion;
(4) excusal for cause of jury member based on juror's perceived inability to set aside religious opposition to the death penalty was warranted;
(5) exclusion of jurors based on jurors' views that, based on their Navajo traditional religion and culture, they would be unable to set those views aside and apply the law impartially, did not violate the Religious Freedom Restoration Act (RFRA) or the American Indian Religious Freedom Act;
(6) joinder of robbery and car-jacking counts was permissible and declining to sever them was not manifestly prejudicial;
(7) probative value of evidence of post-mortem decapitation and dismemberment, thus of photographs depicting it, was not outweighed by the potential for undue prejudice;
(8) district judge's ex parte meetings with United States marshal were not stages of the trial implicating defendant's right to be present at critical stages of the proceeding;
(9) jury instruction on pecuniary gain was warranted; and
(10) defendant could waive the right of presence at penalty phase of capital murder trial.
Affirmed.

August

Access Fund v. United States Department of Agriculture
499 F.3d 1036
No. 05-15585
United States Court of Appeals, Ninth Circuit, August 27, 2007

Subjects: Cave Rock (Nev.); Sacred sites -- On Public Lands -- Tahoe, Lake (Calif. and Nev.); Recreation areas -- On Public lands -- Tahoe, Lake (Calif. and Nev.); Historic preservation -- Tahoe, Lake (Calif. and Nev.); United States. Administrative Procedure Act; Freedom of religion -- United States; United States. Constitution. Establishment clause; United States. Forest Service.

*Synopsis: Advocacy group sued United States Forest Service (USFS), asserting that decision to ban rock climbing at Cave Rock, a site within a national forest on the shore of Lake Tahoe with religious and cultural significance to the Washoe Tribe, violated Establishment Clause and was arbitrary and capricious under Administrative Procedure Act (APA). The United States District Court for the District of Nevada, Howard D. McKibben, J., granted USFS summary judgment. Advocacy group appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) climbing ban had secular purpose of cultural preservation;
(2) climbing ban did not endorse Washoe religion; and
(3) climbing ban was reasonably based on non-arbitrary considerations.
Affirmed.

State of Texas v. United States
497 F.3d 491
No. 05-50754
United States Court of Appeals, Fifth Circuit, August 17, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Texas; United States; Indian gaming -- Class III -- Kickapoo Traditional Tribe of Texas; Intergovernmental agreements -- Texas; Intergovernmental agreements -- Kickapoo Traditional Tribe of Texas; Negotiation -- Texas; United States. Indian Gaming Regulatory Act; Good faith (Law).

*Synopsis: State challenged validity of Interior Department rules for Class III gaming procedures. The United States District Court for the Western District of Texas, 362 F.Supp.2d 765, Lee Yeakel, J., granted partial summary judgment for Department, ruling that, while state had standing to assert its claims, those claims were unripe, and that Secretary of Interior had implied authority under Indian Gaming Regulatory Act (IGRA) to promulgate challenged rules. State appealed.

*Holding: The Court of Appeals, Edith H. Jones, Chief Judge, held that:
(1) state had standing to bring challenge;
(2) state's claims were ripe; and
(3) challenged rules, which bypassed certain prerequisites of IGRA, did not reasonably effectuate Act and were not entitled to Chevron deference.
Reversed and remanded.

United States v. Lambert
498 F.3d 963
No. 07-30060
United States Court of Appeals, Ninth Circuit, August 16, 2007

Subjects: Federal aid to education; Tribal education departments -- Finance; Contracts -- United States; Contracts -- Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Fraud.

*Synopsis: Defendant was convicted, upon a guilty plea, in the United States District Court for the District of Montana, Sam E. Haddon, J., for conspiracy to defraud the United States, and was sentenced to 12 months in prison. Defendant appealed.

*Holding: The Court of Appeals, Hawkins, Circuit Judge, held that:
(1) Sentencing Guidelines' enhancement for defendant's misrepresentations that he was acting on behalf of educational organization was not limited to misrepresentations that exploited the victim's charitable impulses, and
(2) enhancement applied to defendant.
Affirmed.

Maine v. Johnson
498 F.3d 37
Nos. 04-1363, 04-1375
United States Court of Appeals, First Circuit, August 8, 2007

Subjects: Penobscot Tribe of Maine; Passamaquoddy Tribe of Maine; Waste disposal -- On Indian reservations -- State supervision -- Maine; United States. Environmental Protection Agency; United States. Federal Water Pollution Control Act; Land tenure -- Law and legislation -- Maine; Jurisdiction -- United States.

*Synopsis: Petitions were brought for review of decision of the Environmental Protection Agency (EPA) which gave State of Maine permitting authority, under the Clean Water Act (CWA) and the Maine "Settlement Acts," with regard to discharge of pollutants into territorial waters of certain Indian tribes, but exempted two tribal-owned facilities from the State's permitting program.

*Holding: On consolidation of petitions, the Court of Appeals, Boudin, Chief Judge, held that:
(1) EPA did not err in giving State permitting authority with regard to 19 facilities which discharged pollutants into territorial waters of two Indian tribes; but
(2) EPA erred in exempting from that authority two Indian tribe-owned facilities; and
(3) Court lacked jurisdiction to review issue of whether EPA, after granting State permitting authority, retained authority to review State-issued permits in light of a general trust relationship between the federal government and two Indian tribes.
Affirmed in part and vacated and remanded in part.

Related News Stories: Maine tribes lose sovereignty in EPA water case (Indianz.com) 8/9/07

Auto-Owners Insurance Company v. Tribal Court of the Spirit Lake Indian Reservation
495 F.3d 1017
No. 06-3562
United States Court of Appeals, Eighth Circuit, August 1, 2007

Subjects: Sovereign immunity -- Government agencies -- Spirit Lake Tribe, North Dakota; School children; Rape; Negligence -- Tate Topa Tribal Education Board; Negligence -- Tate Topa Tribal School; Auto-Owners Insurance Company; Jurisdiction -- United States.

*Synopsis: Insurer filed declaratory judgment action against insured Indian elementary school and education board, seeking determination of whether commercial general liability policy and commercial umbrella policy covered alleged sexual assault of student. The United States District Court for the District of North Dakota, Ralph R. Erickson, J., denied insured's motion to dismiss and granted insurer summary judgment. Insured appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) court lacked diversity jurisdiction;
(2) court lacked federal question jurisdiction; and
(3) court lacked supplemental jurisdiction.
Reversed and remanded for entry of dismissal.

July

Carcieri v. Kempthorne
497 F.3d 15
No. 03-2647
United States Court of Appeals, First Circuit, July 20, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Narragansett Indian Tribe of Rhode Island; United States. Dept. of the Interior; Land into trust -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Trust lands -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Narragansett Indian Tribe of Rhode Island -- Housing; Rhode Island; United States. Indian Reorganization Act; Rhode Island Indian Claims Settlement Act; United States. Administrative Procedure Act; United States. Constitution.

*Synopsis: State and town petitioned for review of decision of the Department of the Interior (DOI) which accepted a 31-acre parcel of land into trust for benefit of Indian tribe. The United States District Court for the District of Rhode Island, Mary M. Lisi, J., 290 F.Supp.2d 167, granted summary judgment for DOI, and appeal was taken.

*Holding: On rehearing en banc, the Court of Appeals, Lynch, Circuit Judge, held that:
(1) DOI's construction of Indian Reorganization Act (IRA), as allowing trust acquisitions for tribes that were recognized and under federal jurisdiction at time of the trust application, was entitled to Chevron deference;
(2) Bureau of Indian Affairs (BIA) did not act arbitrarily and capriciously, in violation of the Administrative Procedure Act (APA), when deciding to take land into trust for Indian tribe; and
(3) BIA satisfied its responsibilities under the National Environmental Policy Act (NEPA) by issuing a finding of no significant impact (FONSI).
Affirmed.

Related News Stories: Appeals court backs tribe in land-into-trust dispute (Indianz.com) 7/23/07

MacArthur v. San Juan County
497 F.3d 1057
Nos. 05-4295, 05-4310
United States Court of Appeals, Tenth Circuit, July 18, 2007

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 special service district, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. The United States District Court for the District of Utah, Bruce S. Jenkins, J., 391 F.Supp.2d 895, refused to enforce three preliminary injunction orders issued by the Navajo court against county defendants, and special service district, and employees appealed.

*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) with the exception of activities of special service district's board member, Indian tribe did not possess regulatory authority over county's and special service district's employment-related activities and therefore tribal court lacked jurisdiction over employees' claims against defendants other than CEO, and
(2) although tribal court arguably possessed regulatory authority over board member as a member of the tribe, court would exercise its discretion to decline to enforce the tribal court orders in regard to board member.
Affirmed in part, reversed in part, and vacated in part.

Related News Stories: Appeals court backs state in clinic dispute (The Salt Lake Tribune) 7/20/07

Citizens Exposing Truth About Casinos v. Kempthorne
492 F.3d 460
No. 06-5354
United States Court of Appeals, District of Columbia Circuit, July 3, 2007

Subjects: Land into trust -- Huron Potawatomi, Inc., Michigan; Indian gaming -- Class III -- Huron Potawatomi, Inc., Michigan; Gambling on Indian reservations -- Huron Potawatomi, Inc., Michigan; Citizens Exposing Truth About Casinos (Mich.); United States. Dept. of the Interior; United States. Indian Gaming Regulatory Act; United States. Indian Reorganization Act; Indian gaming -- On trust lands -- Huron Potawatomi, Inc., Michigan.

*Synopsis: Non-profit Michigan membership corporation brought action against Secretary of the Interior (DOI) and others, challenging DOI's decision to take certain farmland into trust for use by Indian tribe, to construct and operate a class III gambling casino under the Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of Columbia, 2004 WL 5238116, granted partial summary judgment for DOI, and non-profit corporation appealed.

*Holding: The Court of Appeals, Rogers, Circuit Judge, held that DOI's decision to take certain land into trust for use by Indian tribe and to designate that land as the tribe's initial reservation, for purposes of IGRA, was based on a permissible interpretation of the statute.
Affirmed.

June

Devia v. Nuclear Regulatory Commission
492 F.3d 421
Nos. 05-1419, 05-1420, 06-1087
United States Court of Appeals, District of Columbia Circuit, June 26, 2007

Subjects: Skull Valley Band of Goshute Indians of Utah; Private Fuel Storage (LLC) (Utah); Contested elections -- Skull Valley Band of Goshute Indians of Utah; Leadership disputes -- Skull Valley Band of Goshute Indians of Utah; Nuclear fuels -- Storage -- Skull Valley Band of Goshute Indians of Utah; Radioactive wastes -- Storage -- Skull Valley Band of Goshute Indians of Utah; United States. Dept. of the Interior. Board of Indian Appeals; United States. Bureau of Indian Affairs.

*Synopsis: Association of tribe members petitioned for review of order of Nuclear Regulatory Commission (NRC), granting license for construction and operation of independent spent fuel storage installation (ISFSI), an away from point-of-generation nuclear repository, on Indian land. Contractor and tribe intervened.

*Holding: The Court of Appeals, Garland, Circuit Judge, held that petition was not ripe.
Case held in abeyance.

Plains Commerce Bank v. Long Family Land and Cattle Company, Inc.
491 F.3d 878
No. 06-3093
Briefs & Pleadings
United States Court of Appeals, Eighth Circuit, June 26, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Debtor and creditor; Jurisdiction -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Law -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana -- Application.

*Synopsis: Non-Indian bank commenced action, seeking declaratory judgment that tribal court judgment, upholding jury verdict against bank for discriminatory lending practices to Indian owners and their family farming and ranching corporation, was null and void. The United States District Court for the District of South Dakota, 440 F.Supp.2d 1070, Charles B. Kornmann, J., granted owners summary judgment. Bank appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) bank's transactions with owners and corporation were consensual relationships;
(2) tribal tort claim arose under inherent tribal authority to regulate nonmembers' activities and had nexus to parties' consensual relationship;
(3) tribal tort law applied; and
(4) bank was not denied due process.
Affirmed.

Williams v. Gover
490 F.3d 785
No. 04-17482
United States Court of Appeals, Ninth Circuit, June 20, 2007

Subjects: Mooretown Rancheria of Maidu Indians of California -- Membership; Sovereignty -- Mooretown Rancheria of Maidu Indians of California; Tribal membership disputes -- Mooretown Rancheria of Maidu Indians of California; United States. California Rancheria Termination Act of 1958.

*Synopsis: Potential members of restored Indian tribe, who had been squeezed out of tribe as result of decision to limit tribal membership solely to lineal descendants of those who had received distributions in connection with earlier termination of tribe, brought suit against federal government for allegedly promulgating rule in violation of requirements of the Administrative Procedure Act and for allegedly violating their due process rights. The United States District Court for the Eastern District of California, William B. Shubb, Chief Judge, entered order dismissing case on defendants' motion to dismiss and for entry of summary judgment, and plaintiffs appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that:
(1) Bureau of Indian Affairs (BIA) did not promulgate rule regarding membership in tribe, of kind subject to notice and comment procedure of the Administrative Procedure Act; and
(2) potential members of restored tribe were not denied due process of law when tribal membership was narrowly defined by Indian tribe itself.
Affirmed.

Oglala Sioux Tribe v. C & W Enterprises, Inc.
487 F.3d 1129
No. 06-3480
United States Court of Appeals, Eighth Circuit, June 11, 2007

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: Following an arbitrator's denial of Indian tribe's motions to dismiss road contractor's claims relating to a road contract and a lease to mine gravel on tribal land, tribe brought action in federal court, asking that contractor be enjoined from pursuing arbitration. The United States District Court for the District of South Dakota, Karen E. Schreier, Chief Judge, dismissed, and tribe appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that contractor's claims against tribe were not based on federal law.
Affirmed.

Ford Motor Company v. Todecheene
488 F.3d 1215
Nos. 02-17048, 02-17165
United States Court of Appeals, Ninth Circuit, June 4, 2007

Subjects: Ford Motor Company; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Exhaustion of tribal remedies; Sovereign immunity -- Navajo Nation, Arizona, New Mexico & Utah; Torts; Products liability; Vehicles.

*Synopsis: After parents of tribe member killed in one-vehicle accident on Indian reservation filed product liability action against non-member vehicle manufacturer in tribal court, manufacturer brought action in federal court for declaratory judgment and preliminary injunction. The United States District Court for the District of Arizona, 221 F.Supp.2d 1070, granted preliminary injunction, and parents appealed. Following affirmance, parents moved for rehearing and rehearing en banc. On rehearing, the Court of Appeals, 474 F.3d 1196, remanded to the District Court, and manufacturer moved for rehearing and rehearing en banc.

*Holding: Thereafter the Court of Appeals, amending and superseding its previous opinion, held that tribal court did not "plainly" lack jurisdiction.
Petitions granted in part, denied as moot in part, and denied in part.

South Dakota v. United States Department of Interior
487 F.3d 548
No. 06-1150
United States Court of Appeals, Eighth Circuit, June 1, 2007

Subjects: South Dakota; United States. Dept. of the Interior; Trust lands -- Flandreau Santee Sioux Tribe of South Dakota; Moody County (S.D.); United States. Indian Reorganization Act; Land into trust -- United States.

*Synopsis: State of South Dakota and county brought action for declaratory and injunctive relief against decision of the Department of the Interior (DOI) to take land purchased by Indian tribe into trust for tribe. The United States District Court for the District of South Dakota, Karen E. Schreier, Chief Judge, 401 F.Supp.2d 1000, granted summary judgment for DOI. State and county appealed.

*Holding: On grant of rehearing, the Court of Appeals, Smith, Circuit Judge, held that:
(1) DOI authority to place land in trust was not an unconstitutional delegation of legislative power;
(2) Secretary of the Interior acted within his statutory authority in acquiring land in trust for Indian tribe; and
(3) Secretary adequately considered potential jurisdictional and land use problems in deciding to take land into trust.
Affirmed.

May

United States v. Smiskin
487 F.3d 1260
Nos. 05-30590, 05-30591
United States Court of Appeals, Ninth Circuit, May 18, 2007

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).

*Synopsis: Defendants, tribal members of the Yakama Nation, were indicted on charges of violating the Contraband Cigarette Trafficking Act (CCTA). The United States District Court for the Eastern District of Washington, Edward F. Shea, J., 2005 WL 2736562, 2005 WL 1288001, granted defendants' motion to dismiss indictment and denied government's motion for reconsideration. Government appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that:
(1) application of the State of Washington's pre-notification requirement to Yakama tribal members violated the Yakama Treaty and therefore could not serve as the basis for prosecution under the CCTA;
(2) Washington's pre-notification requirement did not fall within the regulatory exception to the inviolability of treaty rights for pure restrictions imposed for a public purpose unrelated to revenue generation; and
(3) the minimal burden test, used in balancing state laws against inherent tribal sovereignty rights, was not applicable.
Affirmed.

Aleman v. Chugach Support Services, Incorporated
485 F.3d 206
No. 06-1461
United States Court of Appeals, Fourth Circuit, May 3, 2007

Subjects: United States. Civil Rights Act of 1964. Title 7; Discrimination in employment; Chugach Alaska Corporation; Public contracts -- United States; Alaska Native corporations; Non-Indians.

*Synopsis: Employees brought claims against their employer and its parent company under § 1981 and Title VII claiming unlawful discrimination, as well as claims under Maryland law. The United States District Court for the District of Maryland, William D. Quarles, Jr., J., granted summary judgment for defendants, and appeal was taken.

*Holding: The Court of Appeals, Wilkinson, Circuit Judge, held that:
(1) the exemption for Alaska Native Corporations from suit under Title VII did not immunize employer from suit under the separate and independent cause of action for discrimination established by § 1981;
(2) Caucasian employee had right to protest alleged discrimination visited upon Hispanic employees and to proceed with retaliation claim under § 1981 when he lost his job as a result; and
(3) employees were bound by collective bargaining agreement requiring mandatory arbitration of discrimination claims.
Affirmed in part, reversed in part, and remanded.

April

Gonzales v. Arizona
485 F.3d 1041
Nos. 06-16521, 06-16702, 06-16706
United States Court of Appeals, Ninth Circuit, April 20, 2007

Subjects: People -- Suffrage -- Arizona; Minorities -- Suffrage -- Arizona; Indians of North America -- Suffrage -- Arizona; Indians of North America -- Political activity -- Arizona; People -- Political activity -- Arizona; Minorities -- Political activity -- Arizona; Voting -- Arizona; Identification cards; United States. Constitution. 24th Amendment; Equality before the law -- United States; United States. National Voter Registration Act of 1993.

*Synopsis: Arizona residents, Indian tribes, and community organizations filed action challenging validity of proposition requiring all persons wishing to register to vote for first time in Arizona to present proof of citizenship. The United States District Court for the District of Arizona, Roslyn O. Silver, J., denied citizen group's motion to intervene, 2006 WL 2246365, and denied preliminary injunctive relief, 2006 WL 3627297. Appeals were taken.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that:
(1) proposition did not amount to an unconstitutional poll tax in violation of the Twenty-fourth Amendment;
(2) plaintiffs failed to demonstrate proposition imposed severe burden on Fourteenth Amendment's guarantee of the fundamental right to vote;
(3) plaintiffs failed to demonstrate proposition imposed a disproportionate burden on naturalized citizens;
(4) National Voter Registration Act (NVRA) did not prohibit documentation requirements;
(5) balance of hardships favored denying motion for preliminary injunction; and
(6) citizen group failed to demonstrate that State and its officials would not adequately represent group's interests.
Affirmed.

Aroostook Band of Micmacs v. Ryan
484 F.3d 41
Nos. 06-1127, 06-1358
United States Court of Appeals, First Circuit, April 17, 2007

Subjects: Sovereignty -- Aroostook Band of Micmac Indians of Maine; Sovereign immunity -- Aroostook Band of Micmac Indians of Maine; Maine Human Rights Commission; Maine. Maine Human Rights Act; Maine. Maine Whistle Blower Protection Act; Maine. Maine Micmac Settlement Act; Jurisdiction -- Maine; Jurisdiction -- United States; Employees -- Dismissal of.

*Synopsis: Indian tribe challenged state's authority to enforce state employment discrimination laws against it. Parties consented to final disposition by magistrate judge. The district court, 307 F.Supp.2d 95, dismissed for lack of subject matter jurisdiction. Tribe appealed. The Court of Appeals, 404 F.3d 48, reversed in part, vacated in part, and remanded. On remand, the United States District Court for the District of Maine, Margaret J. Kravchuk, United States Magistrate Judge, 403 F.Supp.2d 114, granted judgment for tribe. State appealed.

*Holding: The Court of Appeals, Lynch, Circuit Judge, held that:
(1) federal Aroostook Band of Micmacs Settlement Act (ABMSA) did not alter federal Maine Indian Claims Settlement Act (MICSA) which subjected Aroostook Band to claims of employment discrimination under state law;
(2) ABMSA and MICSA displaced any federal common law that otherwise might have borne on dispute; and
(3) any aspects of tribal immunity which might have prevented application of Maine's employment laws to individuals employed by Aroostook Band's government were abrogated by provision of MICSA which made Aroostook Band “subject to the laws of the State to the same extent as any other person.”
Reversed and remanded.

Related News Stories: Maine tribe [Aroostook Band of Micmac Indians] loses sovereignty dispute with state (Indianz.com) 4/18/07

Houlton Band of Maliseet Indians v. Ryan
484 F.3d 73
No. 06-1774
United States Court of Appeals, First Circuit, April 17, 2007

Subjects: Houlton Band of Maliseet Indians of Maine; Maine Human Rights Commission; Discrimination in employment -- Houlton Band of Maliseet Indians of Maine; Sovereignty -- Houlton Band of Maliseet Indians of Maine; Sovereign immunity -- Houlton Band of Maliseet Indians of Maine; Maine. Indian Claims Settlement Act.

*Synopsis: Native American Indian tribe brought action against executive director of Maine Human Rights Commission, former tribe employee, and others, seeking injunctive and declaratory relief to stop the Commission from proceeding with former employee's employment discrimination claim against tribe and to bar future discrimination claims. The United States District Court for the District of Maine, 2006 WL 897660, John A. Woodcock, Jr., J., dismissed action.

*Holding: The Court of Appeals, Lynch, Circuit Judge, held that the Maine Indian Claims Settlement Act allowed Maine to enforce its employment discrimination laws against Indian tribes located in the state.
Affirmed.

March

United Keetoowah Band of Cherokee Indians of Oklahoma v. United States
480 F.3d 1318
Nos. 06-5003, 06-5021
United States Court of Appeals, Federal Circuit, March 19, 2007

Subjects: United States. Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act; United Keetowah Band of Cherokee Indians of Oklahoma -- Compensation for taking; Extinguishment of Indian title -- United Keetowah Band of Cherokee Indians of Oklahoma; Arkansas River; Trusts and trustees -- United States; Breach of trust -- United States; Treaties -- Cherokee Indians; Parties to actions -- Cherokee Nation, Oklahoma; Sovereign immunity -- Cherokee Nation, Oklahoma; Jurisdiction -- United States.

*Synopsis: Keetoowah Band of Cherokee Indians brought suit against the United States seeking compensation for the extinguishment of all right, title, and interest to Arkansas Riverbed Lands, and damages for breaches of government's fiduciary duties with respect to Arkansas Riverbed Lands and minerals therein. The Cherokee Nation intervened to file motion to dismiss for failure to join indispensable party and for lack of jurisdiction. The United States Court of Federal Claims, Nancy B. Firestone, J., 67 Fed.Cl. 695, granted motion. Band appealed and the United States cross-appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that Cherokee Nation did not have a sufficient interest to permit it to intervene as party that was necessary to adjudicate Band's action.
Reversed and remanded.

Navajo Nation v. United States Forest Service
479 F.3d 1024
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit, March 12, 2007

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.

*Synopsis: Numerous Indian tribes, their members, and environmental organization brought action challenging the Forest Service's decision to authorize upgrades to facilities at an existing ski area in the Coconino National Forest. Following a 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 expansion did not violate 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.

*Holding: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) the proposed use of treated sewage effluent on the San Francisco Peaks to create snow for commercial ski area would impose a substantial burden on the exercise of religion of multiple Indian tribes, as required to establish prima facie claim under the RFRA
(2) the proposed use of treated sewage effluent to create snow for commercial ski area was not a compelling governmental interest by the least restrictive means, as required to outweigh the substantial burden it would put on the exercise of religion by multiple Indian tribes under RFRA;
(3) declining to allow a commercial ski resort in a national forest to put treated sewage effluent on a sacred mountain to create artificial snow was an accommodation that fell far short of an Establishment Clause violation; and
(4) Final Environmental Impact Statement (FEIS) did not satisfy NEPA with respect to the risks of ingesting artificial snow made from treated sewage effluent for commercial ski resort.
Affirmed in part, reversed in part, and remanded.

Related News Stories: 9th Circuit blocks snowmaking at sacred peaks (Indianz.com) 3/12/07

February

Keweenaw Bay Indian Community v. Rising
477 F.3d 881
No. 05-2398
United States Court of Appeals, Sixth Circuit, February 28, 2007

Subjects: Keweenaw Bay Indian Community, Michigan; Cigarette vendors -- Keweenaw Bay Indian Community, Michigan -- Taxation -- Michigan; Casinos -- Keweenaw Bay Indian Community, Michigan; Cigarettes -- Taxation -- On Indian reservations -- Michigan; Searches and seizures -- Michigan; Non-members of the tribe -- On Indian reservations -- Taxation -- Michigan; United States. Constitution. Supremacy Clause; Sovereign immunity -- Keweenaw Bay Indian Community, Michigan.

*Synopsis: Indian tribe sued Michigan state treasurer and state police officers, challenging state's efforts to tax tobacco products sold by tribe, and challenging searches and seizures of tobacco products shipped to tribe. The United States District Court for the Western District of Michigan, 2005 WL 2207224, Bell, C.J., granted defendants' motions for summary judgment, and tribe appealed.

*Holding: The Court of Appeals, Martin, Circuit Judge, held that:
(1) incidence of state's cigarette excise tax fell on non-tribal consumers rather than on tribal retailers who made sales to non-members, and thus was valid;
(2) excise tax did not impose more than minimal burden on tribe by virtue of its prepayment requirement;
(3) tax comported with treaty between tribe's predecessors and federal government;
(4) state's search of packages sent to tribe through mail, and seizure of contraband cigarettes, did not infringe Supremacy Clause or exclusive federal authority over mails;
(5) tribe's sovereign immunity did not preclude search of mail packages; and
(6) search warrants for mail packages met particularity requirement of Fourth Amendment.
Affirmed.

Cermak v. United States, ex rel. Department of Interior
478 F.3d 953
No. 06-1686
United States Court of Appeals, Eighth Circuit, February 28, 2007

Subjects: Trust lands -- Scott County (Minn.); United States. Dept. of the Interior; Norton, Gale A.; Inheritance and succession -- Mdewakanton Indians; Trusts and trustees.

*Synopsis: Descendants of member of Mdewakanton band of Sioux Indians brought action claiming that Department of Interior had wrongfully deprived them of their rights in parcels of land that had been assigned to member in 1944 through issuance of Indian Land Certificates. The United States District Court for the District of Minnesota, David S. Doty, J., granted summary judgment for Department. Plaintiffs appealed.

*Holding: The Court of Appeals, Loken, Chief Circuit Judge, held that Interior Board of Indian Appeals (IBIA) did not abuse its discretion in denying request made by heirs to assignee of Indian Land Certificates to reopen its decision.
Affirmed.

United States v. Falcon
477 F.3d 573
No. 06-1438
United States Court of Appeals, Eighth Circuit, February 14, 2007

Subjects: Trials (Embezzlement) -- Turtle Mountain Band of Chippewa Indians of North Dakota-- Officials and employees; Trials (Conspiracy) -- Turtle Mountain Band of Chippewa Indians of North Dakota -- Officials and employees.

*Synopsis: Defendant was convicted, in the United States District Court for the District of North Dakota, Ralph R. Erickson, J., of conspiracy to commit an offense against the United States, and two counts of embezzlement or misapplication of funds from Indian tribal organization.

*Holding: The Court of Appeals, Melloy, Circuit Judge, held that:
(1) jury instruction for embezzlement charge required jury to find that defendant had specific intent to misapply the funds;
(2) deliberate indifference jury instruction was warranted;
(3) any error in submission of instructions was not plain; and
(4) evidence was sufficient to support embezzlement conviction.
Affirmed.

San Manuel Indian Bingo & Casino v. National Labor Board Relations
475 F.3d 1306
No. 05-1392
United States Court of Appeals, District of Columbia Circuit, February 9, 2007

Subjects: United States. National Labor Relations Board; Jurisdiction; Indian business enterprises; United States. National Labor Relations Act; San Manuel Indian Bingo and Casino (Calif.); San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Gambling on Indian reservations -- San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Indian gaming -- San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Hotel Employees & Restaurant Employees International Union; AFL-CIO; Communications Workers of America.

*Synopsis: In this case, we consider whether the National Labor Relations Board (the “Board”) may apply the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the “NLRA”), to employment at a casino the San Manuel Band of Serrano Mission Indians (“San Manuel” or the “Tribe”) operates on its reservation. The casino employs many non-Indians and caters primarily to non-Indians. We hold the Board may apply the NLRA to employment at this casino, and therefore we deny the petition for review.

*Holding: The Court of Appeals, Brown, Circuit Judge, held that NLRA applied to an Indian-owned casino, which was operated on tribe's reservation, employed many non-Indians and catered primarily to non-Indians.
Cross-application for enforcement granted.

Related News Stories: California tribe loses major sovereignty court case (Indianz.com) 2/12/07, Tribes not exempt from U.S. labor laws (AP) 2/9/07

Arakaki v. Lingle
477 F.3d 1048
No. 04-15306
United States Court of Appeals, Ninth Circuit, February 9, 2007

Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States; Trust lands -- United States; Public lands -- United States; Leases -- United States.

*Synopsis: Citizens of Hawaii sued United States, state officers, Department of Hawaiian Home Lands (DHHL), Hawaiian Homes Commission (HHC), and Office of Hawaiian Affairs (OHA), alleging that various state programs gave preferential treatment to persons of Hawaiian ancestry in violation of equal protection principles and terms of public lands trust. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., 198 F.Supp.2d 1165, denied temporary restraining order, then granted in part and denied in part motions to dismiss and denied motions for reconsideration, 299 F.Supp.2d 1090, 299 F.Supp.2d 1107, 299 F.Supp.2d 1114, 299 F.Supp.2d 1129, and, finally, dismissed entire action, 305 F.Supp.2d 423 F.3d 954 1161. Citizens appealed. The Court of Appeals, , affirmed in part, reversed in part, and remanded, and petition for certiorari was made by state, and granted, and the Supreme Court, 126 S.Ct. 2859, vacated and remanded.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) state citizens did not have standing, as purported trust beneficiaries, to sue United States for its alleged enforcement of trust;
(2) United States was indispensable party to claims in which Hawaii citizens sought to challenge constitutionality, under equal protection principles, of lease eligibility requirements for land held in public lands trust;
(3) citizens lacked standing, as state taxpayers, to challenge programs administered by Office of Hawaiian Affairs (OHA) in alleged violation of equal protection principles;
(4) taxpayers' lack of standing to sue United States did not bar taxpayers' claims against OHA;
(5) United States was indispensable party with respect to state citizens' equal protection challenge to expenditures by OHA;
(6) nonjusticiable political question had not been presented; and
(7) district court did not abuse its discretion in striking counter-motion for summary judgment.
Affirmed in part, reversed in part, and remanded.

Prairie Band of Potawatomi Nation v. Wagnon
476 F.3d 818
No. 03-3322
United States Court of Appeals, Tenth Circuit, February 6, 2007

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: Native American tribe sought order requiring Kansas state officials to grant recognition to motor vehicle registrations and titles issued by tribe. The United States District Court for the District of Kansas, 276 F.Supp.2d 1168, Julie A. Robinson, J., granted summary judgment for tribe. State officials appealed. The Court of Appeals for the Tenth Circuit, 402 F.3d 1015, affirmed. On grant of certiorari, the United States Supreme Court vacated and remanded.

*Holding: On remand, the Court of Appeals, McKay, Circuit Judge, held that:
(1) officials' refusal to grant recognition to motor vehicle registrations and titles issued by tribe located within the state impermissibly discriminated against tribe;
(2) officials were not entitled to sovereign immunity; and
(3) permanent injunction did not violate the Tenth Amendment.
Affirmed decisions of the District Court and Court of Appeals.

January

Sault Ste. Marie Tribe of Chippewa Indians v. Granholm
475 F.3d 805
Nos. 05-2146, 05-2603
United States Court of Appeals, Sixth Circuit, January 30, 2007

Subjects: Gambling on Indian reservations -- Michigan; Indian gaming -- Class III -- Tribes -- Michigan; United States. Indian Gaming Regulatory Act.

*Synopsis: State moved to compel compliance with consent judgment which set forth guidelines for operation of Indian casinos and method of calculating payments to local communities. The United States District Court for the Western District of Michigan, Gordon J. Quist, J., held that promotional tokens had value and were monetary “wagers” under consent judgment calculations for determining payments and granted state's motion. Indian tribe appealed.

*Holding: The Court of Appeals, Clay, Circuit Judge, held that:
(1) case was not mooted when Indian casino ceased using promotional tokens;
(2) court committed reversible error in failing to consider Indian casino's extrinsic evidence to determine whether latent ambiguity existed with respect to meaning of “wager” in consent judgment; and
(3) extrinsic evidence presenting gaming industry standards for promotional play and industry accounting practices was relevant to appropriate value to assign promotional tokens.
Reversed and remanded. Katz, District Judge, filed concurring opinion.

Dobbs v. Anthem Blue Cross & Blue Shield
475 F.3d 1176
No. 05-1319
United States Court of Appeals, Tenth Circuit, January 30, 2007

Subjects: Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado -- Employees; United States. Employee Retirement Income Security Act of 1974; Preemption of state law -- Colorado; Insurance, Health.

*Synopsis: Beneficiaries of group health insurance policy purchased under employee benefit plan established by Indian tribe brought suit against health insurer in state court, asserting state-law causes of action. Insurer removed action and moved to dismiss all claims on basis of preemption under Employee Retirement Income Security Act (ERISA). The United States District Court for the District of Colorado dismissed claims, and beneficiaries appealed.

*Holding: The Court of Appeals, Tacha, Chief Judge, held that remand was necessitated by intervening change in ERISA definition of “governmental plan [s]” to determine in first instance if plan fell within revised definition such that ERISA preemption did not apply.
Vacated and remanded.

State of South Dakota v. United States Department of Interior
475 F.3d 993
No. 06-1150
United States Court of Appeals, Eighth Circuit, January 29, 2007

Subjects: South Dakota; United States. Dept. of the Interior; Trust lands -- Flandreau Santee Sioux Tribe of South Dakota; Moody County (S.D.); United States. Indian Reorganization Act.

*Synopsis: State of South Dakota and county brought action for declaratory and injunctive relief against decision of the Department of the Interior (DOI) to take purchased land into trust for Indian tribe. The United States District Court for the District of South Dakota, Karen E. Schrier, C.J., 401 F.Supp.2d 1000, granted summary judgment for DOI. State and county appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) DOI authority to place land in trust was not an unconstitutional delegation of legislative power;
(2) Secretary of the Interior (DOI) acted within his statutory authority in acquiring land in trust for indian tribe; and
(3) land taken into trust constituted "Indian country."
Affirmed.

Walters v. United States
474 F.3d 1137
No. 06-2705
United States Court of Appeals, Eighth Circuit, January 29, 2007

Subjects: Traffic accidents -- On Indian reservations -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; United States. Federal Tort Claims Act; Roads, Gravel -- Maintenance and repair -- United States; United States. Bureau of Indian Affairs.

*Synopsis: Several persons injured in car accidents on stretch of road within Indian reservation brought claims against the Bureau of Indian Affairs (BIA), alleging failure to maintain road. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., granted summary judgment to government. Accident victims appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that discretionary function exception barred suit.
Affirmed.

Lebeau v. United States
474 F.3d 1334
No. 06-1072
United States Court of Appeals, Federal Circuit, January 24, 2007

Subjects: United States. Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998; Judgments; United States. "Little" Tucker Act; Breach of trust -- United States.

*Synopsis: Lineal descendents of Indian tribe members brought action against United States under Little Tucker Act, seeking an award of money damages for the government's alleged breach of trust in unreasonably delaying the distribution of a judgment fund. The United States District Court for the District of South Dakota, Lawrence L. Piersol, Chief Judge, 334 F.Supp.2d 1200, entered summary judgment in favor of plaintiffs. United States appealed.

*Holding: The Court of Appeals, Schall, Circuit Judge, held that:
(1) descendents' rights to timely distribution of share of Mississippi Sioux Tribes Judgment Fund under 1972 Distribution Act were not vested and, therefore, were subject to modification by Congress prior to distribution, and
(2) Congress's 1998 reallocation of the descendants' share of the Fund extinguished the government's liability for a breach of trust by the Secretary of Interior.
Reversed and remanded.

Felter v. Kempthorne
473 F.3d 1255
No. 06-5092
United States Court of Appeals, District of Columbia Circuit, January 19, 2007

Subjects: Uinta Indians; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah. Ute Partition and Termination Act; United States. Dept. of the Interior; Uinta Band of Ute Indians -- Members; Uinta Band of Ute Indians -- Termination; Uinta Band of Ute Indians -- Legal status, laws, etc.; Limitation of actions.

*Synopsis: Plaintiffs, claiming to be “mixed-blood” members of the Ute Indian Tribe, brought action against the Department of the Interior (DOI), alleging that the Ute Partition & Termination Act (UPA) wrongfully terminated their status as federally recognized Indians and deprived them of reservation assets. The United States District Court for the District of Columbia, Roberts, J., 412 F.Supp.2d 118, granted DOI's motion to dismiss. Plaintiffs appealed.

*Holding: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) action accrued when plaintiffs' status as recognized Indians was terminated and the reservation's assets were distributed;
(2) lasting effects of termination were not continuing violations;
(3) equitable tolling did not apply; but
(4) remand was required to determine whether six-year limitations period for civil actions brought against the United States was modified by the Department of the Interior and Related Agencies Appropriations Act.
Remanded.

Crawford v. Marion County Election Board
472 F.3d 949
Nos. 06-2218, 06-2317
United States Court of Appeals, Seventh Circuit, January 4, 2007
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Voting -- Indiana; Suffrage -- Indiana; Residency requirements; Voters (People) -- Identification; United States. Voting Rights Act of 1965; Marion County (Ind.).

*Synopsis: Political party, party committee, state representative, elected public official, and nonprofit organizations brought action against county election board, Secretary of State, and Election Division directors, challenging state law requiring photo identification to vote, as violative of the constitution and the Voting Rights Act (VRA). Attorney General intervened on behalf of state. The United States District Court for the Southern District of Indiana, Sarah Evans Barker, J., 458 F.Supp.2d 775, 2006 WL 1005037, granted summary judgment in favor of defendants. Plaintiffs appealed.

*Holding: The Court of Appeals, Posner, Circuit Judge, held that:
(1) political party had standing to challenge constitutionality of state law, and
(2) state law was not an undue burden on the right to vote.
Affirmed.

 

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