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April
United States v. Vasquez-Ramos
2008 WL 962092
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, April 10, 2008
Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.
*Synopsis: Defendant Native Americans were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.
*Holding: The Court of Appeals held that prosecution of defendants did not violate Religious Freedom Restoration Act (RFRA).
Affirmed.
Nord v. Kelly
520 F.3d 848
No. 07-1564
United States Court of Appeals, Eighth Circuit, April 4, 2008
Subjects: Traffic accidents -- On Indian reservations -- Red Lake Band of Chippewa Indians, Minnesota; Red Lake Band of Chippewa Indians, Minnesota -- Members; Non-members of a tribe; Personal injuries -- Cases; Jurisdiction -- Red Lake Band of Chippewa Indians, Minnesota.
*Synopsis: Non-Native American driver of semi-truck, and his father, whose business owned semi-truck, brought action against member of Red Lake Band of Chippewa Indians and Red Lake Nation Tribal Court, seeking declaration that Tribal Court lacked personal jurisdiction over driver and father, who were sued by member in Tribal Court for personal injuries sustained by member in automobile accident that occurred on state highway within reservation. The United States District Court for the District of Minnesota, Schiltz, J., 474 F.Supp.2d 1088, granted summary judgment for plaintiffs. Defendants appealed.
*Holding: The Court of Appeals, Hansen, Circuit Judge, held that:
(1) Tribal Court lacked personal jurisdiction over plaintiffs;
(2) state's federally granted right-of-way to construct and maintain road over tribal lands as a public highway was valid;
(3) plaintiffs did not have consensual commercial relationships with the tribe or its members as required for first Montana exception to apply; and
(4) tribe's ability to regulate and to exercise adjudicatory authority over nonmembers on highway was not important to its tribal sovereignty, as required for second Montana exception to apply.
Affirmed.
March
Marceau v. Blackfeet Housing Authority
519 F.3d 838
No. 04-35210
United States Court of Appeals, Ninth Circuit, March 19, 2008
Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
*Synopsis: Blackfeet Tribe members who owned or leased homes built pursuant to Mutual Help and Homeownership Program (MHHP) brought class action against Department of Housing and Urban Development (HUD), Tribal Housing Authority, and its members, alleging violations of Housing Act and regulations, and seeking declaratory and injunctive relief, and damages. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) Housing Authority waived its tribal immunity;
(2) HUD did not undertake trust responsibility toward plaintiffs;
(3) complaint stated claims against HUD under Administrative Procedure Act (APA) for declaratory and injunctive relief; and
(4) District Court lacked jurisdiction over breach of contract action.
Affirmed in part, reversed in part, and remanded.
United States v. Refert
519 F.3d 752
No. 07-1158
United States Court of Appeals, Eighth Circuit, March 13, 2008
Subjects: Indians of North America
-- Defined; United States. Indian Health Service; Medical care
-- United States; Eligibility -- Determination standards --
United States.
*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of health care fraud and making false claim against the United States. Defendant appealed.
*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) failure to give jury instruction on regarded as an Indian by the community was not plain error;
(2) sufficient evidence established that defendant received free medical services based on her misrepresentations;
(3) district court did not plainly err in ordering restitution for costs incurred by government; and
(4) district court plainly erred in sentencing defendant to consecutive supervised release terms.
Affirmed in part and reversed in part.
February
California Valley Miwok Tribe v. United States
515 F.3d 1262
No. 06-5203
United States Court of Appeals, District of Columbia Circuit, February 15, 2008
Subjects: Federal
recognition of Indian tribes -- California Valley Miwok Tribe;
United States. Indian Reorganization Act; Constitutions -- Tribes
-- Government policy -- United States; United States. Bureau
of Indian Affairs.
*Synopsis: Members of Indian tribe brought action on behalf of tribe challenging Secretary of the Interior's refusal to approve tribal constitution, seeking declaration that tribe was organized pursuant to Indian Reorganization Act. The United States District Court for the District of Columbia, Robertson, J., 424 F.Supp.2d 197, granted government's motion to dismiss. Members appealed.
*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) Secretary had authority under the Act to refuse to approve constitution, and
(2) any error in district court's denial of members' motions for leave to file supplemental claims was harmless.
Affirmed.
Hinsley v. Standing Rock Child Protective Services
516 F.3d 668
No. 07-1435
United States Court of Appeals, Eighth Circuit, February 5, 2008
Subjects: Child abuse; Sex offenders;
Child welfare -- Standing Rock Sioux Tribe of North & South
Dakota; United States. Federal Tort Claims Act; Negligence --
Standing Rock Sioux Tribe of North & South Dakota.
*Synopsis: Mother brought Federal Tort Claims Act (FTCA) action against Bureau of Indian Affairs (BIA) and child protection agency operated by Indian tribe pursuant to self-determination contract, alleging that agency negligently placed her brother in her home without notifying her that brother was child molester, resulting in his molestation of her daughter. The United States District Judge for the District of North Dakota, Daniel L. Hovland, J., 470 F.Supp.2d 1037, entered summary judgment for agency. Mother appealed.
*Holding: The Court of Appeals, Tashima, Circuit Judge, held that alleged failure of agency to warn mother was subject to FTCA's discretionary function exception.
Affirmed.
January
Governor of Kansas v. Kempthorne
516 F.3d 833
No. 06-3213
United States Court of Appeals, Tenth Circuit, January 30, 2008
Subjects: Trust lands -- Wyandotte
Tribe of Oklahoma; Land into trust -- Wyandotte
Tribe of Oklahoma; Indian gaming -- Wyandotte
Tribe of Oklahoma; United States. Dept. of the
Interior; Wyandotte Tribe
of Oklahoma -- Land tenure -- Kansas -- Kansas City; Quiet title
actions.
*Synopsis: Governor of Kansas and several Indian tribes challenged decision of Department of Interior (DOI) to take tract of land into trust for Wyandotte Indian Tribe upon which Tribe intended to operate casino. The United States District Court for the District of Kansas, 430 F.Supp.2d 1204, Julie A. Robinson, J., affirmed trust status of tract, and plaintiffs appealed.
*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) Quiet Title Act prevented application of Administrative Procedure Act (APA) waiver;
(2) action qualified as quiet title action so as to render Quiet Title Act analysis applicable;
(3) prior lawsuit did not affect application of Quiet Title Act in current action; and
(4) neither order of court in prior litigation between parties, nor Secretary's continued participation in current litigation, provided means on judicial review to avoid application of United States' sovereign immunity in current action in absence of valid waiver by Congress.
Appeal dismissed and remanded to district court with instructions to vacate its judgment and dismiss case.
In re Harper
516 F.3d 1180
No. 07-5016
United States Court of Appeals, Tenth Circuit, January 24, 2008
Subjects: Debtor
and creditor -- Oklahoma;
Vehicles -- Registration
and transfer -- Muscogee
(Creek) Nation, Oklahoma;
Bankruptcy.
*Synopsis: Chapter 7 trustee brought adversary proceeding to avoid credit union's lien against debtors' vehicle. The United States Bankruptcy Court for the Northern District of Oklahoma entered judgment in trustee's favor and denied credit union's motion for new trial. Credit union appealed. The Bankruptcy Appellate Panel, 2007 WL 45918, affirmed. Credit union appealed.
*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) state statute deeming security interest in vehicle registered by Indian tribe valid if perfected under tribal law did not apply to credit union's lien;
(2) tribal title issued for vehicle was not “certificate of title” under Uniform Commercial Code (UCC);
(3) credit union did not have purchase money security interest under Oklahoma law and could not rely on automatic perfection;
(4) credit union was not entitled to statutory subrogation; and
(5) credit union was not entitled to equitable subrogation.
Affirmed.
Atwood v. Fort Peck Tribal Court Assiniboine
513 F.3d 943
No. 06-35299
United States Court of Appeals, Ninth Circuit, January 18, 2008
Subjects: Jurisdiction
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana;
Exhaustion of tribal remedies
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana;
Trials (Custody of children)
-- Assiniboine and Sioux
Tribes of the Fort Peck
Indian Reservation, Montana.
*Synopsis: Non-Indian father sued his Indian daughter's maternal aunt, who was seeking custody of his daughter after death of her Indian mother, and the Tribal Court that had granted temporary custody to child's maternal grandmother, challenging jurisdiction of Tribal Court, alleging substantive due process violation, and seeking injunctive relief. The United States District Court for the District of Montana, Richard F. Cebull, J., granted defendants' motion to dismiss. Father appealed.
*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) domestic relations exception did not bar suit;
(2) father failed to exhaust tribal remedies;
(3) exhaustion was not excused by bad faith;
(4) exhaustion was not excused on ground of delay; and
(5) exhaustion was not excused for lack of tribal jurisdiction.
Affirmed.
United States v. Lowry
512 F.3d 1194
No. 06-10469
United States Court of Appeals, Ninth Circuit, January 16, 2008
Subjects: Occupancy (Law) -- United
States; Forest reserves -- United States; Indian allotments --
Klamath National Forest (Calif. and Or.); Karuk Indians.
*Synopsis: Defendant was convicted by a United States Magistrate Judge of occupation of United States Forest Service land without authorization. The United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, affirmed the conviction, and defendant appealed.
*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) addressing an issue of first impression, the existence of authorization in the form of individual aboriginal title was an affirmative defense;
(2) defendant failed to establish affirmative defense of authorization in form of individual aboriginal title; and
(3) district court lacked jurisdiction to consider defendant's collateral attack on administrative proceedings in which her application for Indian allotment was denied.
Affirmed.
Wisconsin v. Ho-Chunk Nation
512 F.3d 921
No. 07-1584
United States Court of Appeals, Seventh Circuit, January 14, 2008
Subjects: Gambling on Indian reservations
-- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin (formerly
known as the Wisconsin Winnebago Tribe; Intergovernmental agreements
-- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin
Winnebago Tribe); Intergovernmental agreements -- Wisconsin;
Jurisdiction -- United States; United States. United States Arbitration
Act; United States. Indian Gaming Regulatory Act; Revenue sharing
-- Wisconsin.
*Synopsis: State of Wisconsin brought action to compel arbitration in dispute over failure of Indian tribe to make certain payments to State. The district court, 402 F.Supp.2d 1008, compelled arbitration. Tribe appealed. The Court of Appeals, 463 F.3d 655, vacated and remanded. On remand, the United States District Court for the Western District of Wisconsin, John C. Shabaz, J., 2006 WL 3813654, granted State's motion to amend complaint to seek declaratory and injunctive relief, to allege breach of contract, and to compel performance under compact terms. Tribe counterclaimed alleging breach of contract and violations of Indian Gaming Regulatory Act (IGRA). The district court, 478 F.Supp.2d 1093, granted in part and denied in part motions of tribe to dismiss or for summary judgment. Tribe took interlocutory appeal.
*Holding: The Court of Appeals, Flaum, Circuit Judge, held that:
(1) federal jurisdiction under IGRA was limited to alleged compact violations relating to seven items listed in catch-all provision;
(2) Congress abrogated sovereign immunity of tribe with respect to State's claim to enjoin tribe's class III gaming due to its alleged refusal to submit to binding arbitration;
(3) federal court had jurisdiction over cause of action brought by State seeking declaratory judgment that it had negotiated in good faith with tribe as required by IGRA;
(4) supplemental jurisdiction existed over contractual claim;
(5) independent basis for federal jurisdiction existed to address causes of action brought by State to enforce dispute resolution provision in gambling compact with Indian tribe pursuant to Federal Arbitration Act (FAA) as it related to arbitrable claims;
(6) state court decision which purportedly served to invalidate prior waiver of sovereign immunity by State of Wisconsin in gambling compact with Indian tribe did not affect issue of whether waiver of sovereign immunity by Indian tribe remained intact; and
(7) determination had to be made as to which claims were arbitrable.
Affirmed in part, vacated in part, and remanded.
United States v. Gachot
512 F.3d 1252
No. 07-6061
United States Court of Appeals, Tenth Circuit, January 10, 2008
Subjects: Oklahoma -- Law and legislation -- Application -- Kiowa Indian Tribe of Oklahoma -- Members; Cockfighting; Crimes without victims -- Indian Country (U.S); Criminal jurisdiction -- United States.
*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma of operating an illegal gambling business, and he appealed.
*Holding: The Court of Appeals, Lucero, Circuit Judge, held that defendant's arguments that district court lacked jurisdiction over original indictment that was dismissed were moot.
Affirmed.
Osage Tribe of Indians of Oklahoma v. United States
2008 WL 268707
No. 2007-5120
United States Court of Appeals, Federal Circuit, January 9, 2008
Subjects: Tribal trust funds -- Osage
Tribe of Oklahoma; Fiduciary accountability -- United States;
Beneficiaries; Breach of trust -- United States; Trusts and trustees
-- Accounting -- United States; Mines and mineral resources --
Osage Tribe of Oklahoma; Oil and gas leases -- Osage Tribe of
Oklahoma; Revenue -- Osage Tribe of Oklahoma.
*Synopsis: Indian tribe sued United States, alleging that United States breached its trust responsibilities to tribe in managing thousands of leases for oil, gas, and other minerals. Following trial of first phase of case, the United States Court of Federal Claims, Emily C. Hewitt, J., awarded tribe approximately $1,800,000 in damages and entered judgment. Government appealed, and then moved to dismiss appeal.
*Holding: The Court of Appeals, Lourie, Circuit Judge, held that judgment could not be certified as final judgment on individual claim in multiple-claim action for purposes of immediate appeal.
Motion to dismiss granted.
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