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December

McGuire v. United States
550 F.3d 903
No. No. 06-15812
United States Court of Appeals, Ninth Circuit, December 24, 2008

Subjects: United States. Bureau of Indian Affairs; Jurisdiction -- United States; United States. Tucker Act; Farmers -- On Indian reservations; Debtor and creditor; Bankruptcy; Land tenure.

*Synopsis: Farmer who leased tribal land and who was a Chapter 11 debtor brought inverse condemnation action against government, alleging that decision of Bureau of Indian Affairs (BIA) to remove bridge over canal on leased land was unconstitutional taking. The Bankruptcy Court issued findings and recommendations. The United States District Court for the District of Arizona adopted the findings and recommendations, denied government's motion to dismiss, and remanded matter back to Bankruptcy Court for trial. On remand, the Bankruptcy Court determined that government had committed regulatory taking. The District Court, James A. Teilborg, J., rejected Bankruptcy Court's findings and recommendations, and dismissed action. Farmer appealed.

*Holding: The Court of Appeals, Thomas, Circuit Judge, held that:
(1) claim was ripe for adjudication;
(2) District Court lacked jurisdiction under Tucker Act over farmer's claim; and
(3) claim would be transferred to Court of Federal Claims.
Reversed and remanded with instructions.

United States v. Stowbunenko-Saitschenk
2008 WL 5341989
No. 07-10379
United States Court of Appeals, Ninth Circuit, December 22, 2008

Subjects: Little Shell Pembina Band of North America -- Members; Tribal membership; Mexicans; Illegal aliens -- United States; Citizenship -- United States; Border crossing (International travel).

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, David G. Campbell, J., of bringing in illegal aliens to United States and encouraging illegal aliens to enter United States, and he appealed.

*Holding: The Court of Appeals held that defendant failed to establish that tribe he allegedly belonged to had aboriginal and sovereign right to cross United States-Mexico border.
Affirmed in part and remanded in part.

Related News Stories: Appeals court affirms ISP authority on tribal land (NBC News) 1/1/09

Cottier v. City of Martin
2008 WL 5215007
No. 07-1628
United States Court of Appeals, Eighth Circuit, December 16, 2008

Subjects: United States. Voting Rights Act of 1965; Election districts -- Martin (S.D.); Apportionment (Election law); United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment; American Civil Liberties Union.

*Synopsis: Action was brought on behalf of Native American voters challenging configuration of city wards as violative of § 2 of Voting Rights Act (VRA) and Fourteenth and Fifteenth Amendments. Following remand, 445 F.3d 1113, the United States District Court for the District of South Dakota, Karen E. Schreier, C.J., 475 F.Supp.2d 932, found that ordinance violated VRA. City appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) District Court's overall weighing of totality of circumstances was not clearly erroneous, and
(2) District Court did not abuse its discretion in adopting at-large, cumulative voting remedial plan.
Affirmed.

Related News Stories: Court sides with ACLU, Native Americans in Martin voting case (Rapid City Journal) 12/17/08

Hendrix v. Coffey
2008 WL 5206293
No. 08-6161
United States Court of Appeals, Tenth Circuit, December 15, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: In action brought by Native Americans alleging violations of the Indian Civil Rights Act (ICRA) after three of them were disenrolled as members of a tribe, the United States District Court for the Western District of Oklahoma, 2008 WL 2740901, dismissed the action. Native Americans appealed.

*Holding: The Court of Appeals, John C. Porfilio, Circuit Judge, held that federal court did not have subject matter jurisdiction over the dispute.

Affirmed.

United States v. Antelope
548 F.3d 1155
No. 08-2206
United States Court of Appeals, Eighth Circuit, December 8, 2008

Subjects: Double jeopardy - United States; Criminal jurisdiction - Tribes; Criminal jurisdiction - United States; Assault and battery; Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Following plea of guilty to assault with a dangerous weapon with intent to do bodily harm, defendant moved to withdraw his guilty plea. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., denied the motion. Defendant appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that Double Jeopardy Clause did not bar federal prosecution.
Dismissed.

November

Native American Distributing v. Seneca-Cayuga Tobacco Company
546 F.3d 1288
No. 07-5104
United States Court of Appeals, Tenth Circuit, November 17, 2008

Subjects: Seneca-Cayuga Tobacco Company; Tribal business enterprises -- Seneca-Cayuga Tribe of Oklahoma; Native American Distributing (Mo.); Contracts; Jurisdiction -- United States; Sovereign immunity -- Seneca-Cayuga Tribe of Oklahoma; Breach of contract.

*Synopsis: Tobacco distributor brought action against tobacco manufacturer, a tribal enterprise, and individuals, alleging breach of contract and civil conspiracy. The United States District Court for the Northern District of Oklahoma, Kern, J., 491 F.Supp.2d 1056, granted defendants' motions to dismiss, and distributor appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) manufacturer had sovereign immunity as enterprise of the tribe;
(2) manufacturer was not equitably estopped from asserting its immunity;
(3) distributor failed to state a civil conspiracy claim under the Sherman Act against individual defendants; and
(4) distributor failed to state a price discrimination claim under the Robinson-Patman Act against individual defendants.
Affirmed.

Cook v. AVI Casino Enterprises, Inc.
548 F.3d 718
No. 07-15088
United States Court of Appeals, Ninth Circuit, November 14, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Jurisdiction -- United States; Sovereign immunity -- Indian business enterprises; Indian business enterprises -- Fort Mojave Indian Tribe of Arizona, California & Nevada; Avi Casino Enterprises, Inc.; Casinos; Liability (Law); Drinking and traffic accidents; Law -- Arizona.

*Synopsis: Motorcyclist involved in traffic accident with employee of casino, a tribal corporation, sued tribal corporation and several of its employees, asserting claims for negligence, dram shop liability under Arizona's liquor liability statute, and violations of tribal law. The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., 2006 WL 3694859, granted defendants' motion to dismiss, and motorcyclist appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that:
(1) for diversity jurisdiction purposes in negligence and dram shop claims brought by injured motorcyclist, casino, a tribal corporation, was not a California citizen;
(2) tribal corporation functioned as an arm of Indian Tribe, and was therefore protected by sovereign immunity from suit brought by motorcyclist; and
(3) tribal sovereign immunity of tribal corporation extended to two of its employees.
Affirmed

United States v. Benally
546 F.3d 1230
No. 08-4009
United States Court of Appeals,Tenth Circuit, November 12, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Jury selection; United States. Bureau of Indian Affairs -- Police; Assault and battery; Evidence (Law); Impartiality.

*Synopsis: After defendant was convicted of forcibly assaulting Bureau of Indian Affairs officer with dangerous weapon, the United States District Court for the District of Utah, 2007 WL 4166135, granted defendant's motion for new trial.
United States appealed

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) evidence that jurors expressed racial bias during deliberations fell within scope of evidence rule prohibiting admission of evidence of statements made during jury deliberations;
(2) jurors' alleged statements did not fall within scope of exception for extraneous prejudicial information; and
(3) defendant's Sixth Amendment right to impartial jury did not bar application of evidence rule.
Reversed.

October

BNSF Railway Company v. Ray
2008 WL 4710778
No. 07-15076
United States Court of Appeals, Ninth Circuit, October 27, 2008

Subjects: Burlington Northern Santa Fe Railroad; Railroad accidents -- Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Liability for railroad accidents; Jurisdiction -- Hualapai Indian Tribe of the Hualapai Indian Reservation; Jurisdiction -- United States.

*Synopsis: Railway company and its employees filed action seeking to permanently enjoin chief judge of tribal court and tribal court clerk from taking further action in wrongful death action filed in tribal court by decedents of automobile passengers against railway company and its employees. The United States District Court for the District of Arizona, David G. Campbell, J., granted injunction. Defendants appealed.

*Holding: The Court of Appeals held that:
(1) appeal of injunction was not moot;
(2) action was not barred by sovereign immunity; and
(3) railway company and its employees were not required to exhaust tribal court remedies prior to seeking permanent injunction.
Affirmed

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
547 F.3d 962
No. 06-16145
United States Court of Appeals, Ninth Circuit, October 24, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming.

*Synopsis: This appeal concerns the joinder requirements of Rule 19 of the Federal Rules of Civil Procedure and their effect on litigation brought by an Indian tribe engaged in casino gaming. The Cachil Dehe Band of Wintun Indians of the Colusa Indian Community (“Colusa”), a federally recognized Indian tribe, entered into a gaming compact with the State of California in 1999. Colusa brought this action for declaratory and injunctive relief against the State, its Governor and the California Gambling Control Commission (collectively, “the State”). Colusa challenges the Commission's interpretation of the compact and the Commission's assumption of authority to administer unilaterally the licensing of electronic gaming devices. The district court concluded that the many other Indian tribes that had entered into identical gaming compacts with the State in 1999, as well as California's non-gaming tribes, were required parties to this action. Because Indian tribes enjoy sovereign immunity and the action could not proceed in their absence, the district court granted the State's motion for judgment on the pleadings. Colusa appeals. Because we conclude that the absent tribes are not required parties to this action, we reverse the district court's judgment (with one minor exception) and remand for further proceedings.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) absent tribes were not required parties for breach of compact claim regarding limit on number of licenses;
(2) absent tribes were not required parties for breach of compact claim regarding fourth-tier placement in license draw, except as related to existing licenses;
(3) absent tribes were not required parties for breach of compact claim regarding refund of license fee; and
(4) absent tribes were not required parties for breach of compact claim regarding Commission's unilateral administration of licensing.
Affirmed in part, reversed in part, and remanded.

United States v. Fiander
547 F.3d 1036
No. 07-30251
United States Court of Appeals, Ninth Circuit, October 23, 2008

Subjects: Confederated Tribes and Bands of the Yakama Nation, Washington -- Members; Taxation -- Cigarettes -- Transportation -- Washington (State); United States. Contraband Cigarette Trafficking Act; Yakama Indians -- Treaties; Notice (Law) -- Washington (State); United States. Racketeer Influenced and Corrupt Organizations Act.

*Synopsis: Defendant pleaded guilty in the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., to conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO). District court dismissed the indictment, 2007 WL 1725575. Government appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) cigarettes transported by defendant were contraband;
(2) defendant could be prosecuted for RICO conspiracy in which racketeering activity was contraband cigarette trafficking, although defendant could not be prosecuted for substantive violation of Contraband Cigarette Trafficking Act (CCTA) because of his status as member of Yakama Nation; and
(3) indictment sufficiently stated that defendant entered into conspiracy to commit substantive offense of contraband cigarette trafficking in violation of RICO.
Reversed and remanded.

Catskill Development v. Park Place Entertainment Corporation
547 F.3d 115
No. 06-5860-cv
United States Court of Appeals, Second Circuit, October 21, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Contracts -- St. Regis Band of Mohawk Indians of New York; Casinos -- Design and construction -- St. Regis Band of Mohawk Indians of New York; Gambling on Indian reservations -- New York (State); Indian gaming -- St. Regis Band of Mohawk Indians of New York; United States. Indian Gaming Regulatory Act.

*Synopsis: Casino development group and land developer brought action against competitor alleging tortious interference with contractual relations and tortious interference with prospective business relationships in connection with development and management of Native American casino. Following grant of summary judgment for competitor, 217 F.Supp.2d 423, the district court, 286 F.Supp.2d 309, vacated its decision for purpose of allowing limited discovery into issue of whether competitor engaged in wrongful means to induce tribe to enter into a casino development agreement, and entered summary judgment in favor of competitor on claims for tortious interference with prospective business relations, 345 F.Supp.2d 360. On appeal, the Court of Appeals, 169 Fed.Appx. 658, vacated and remanded. On remand, the United States District Court for the Southern District of New York, Colleen McMahon, J., 465 F.Supp.2d 250, granted summary judgment for defendants. Plaintiffs appealed.

*Holding: The Court of Appeals, Sotomayor, Circuit Judge, held that:
(1) Court of Appeals was obliged to ascertain its jurisdiction independently;
(2) litigation trust, created as condition to closing consolidation deal, was not created for improper purpose of manufacturing federal diversity jurisdiction;
(3) National Indian Gaming Commission (NIGC) had authority to review contract to build and operate Native American casino although land upon which casino was to be built was not yet Indian land;
(4) Court owed only limited deference to position set forth in agency opinion letter in unrelated case that had not been promulgated by agency regulation;
(5) opinion letter that was entitled to Skidmore deference did not have any persuasive power;
(6) federal voiding provisions applied to precursory obligation of Indian tribe to use reasonable best efforts in obtaining requisite government approvals;
(7) land purchase agreement and development and construction agreement had to be considered to be subject to federal voiding provision; and
(8) fraudulent acts and misrepresentations did not constitute wrongful conduct.
Affirmed.

California v. Native Wholesale Supply Company
632 F.Supp.2d 988
No. S-08-1827 LKK/KJM
United States District Court, E.D. of California, October 8, 2008

Subjects: not yet available

*Synopsis: State of California brought action against tribal cigarette importer and distributor in state court, alleging that distributor sold prohibited cigarettes to smoke shops on tribal land that were not licensed to distribute cigarettes and that the cigarettes were then sold to non-Indians, in violation of California Tobacco Directory Law, Fire Safety and Firefighter Protection Act, Unfair Competition Law (UCL), and several standing injunctions. Distributor removed case to federal district court. State filed motion to remand and distributor filed motion to dismiss.

*Holding: The District Court, Lawrence K. Karlton, Senior District Judge, held that the State's action did not present question of federal law as would warrant removal to federal district court.

San Pasqual Band of Mission Indians v. California
2008 WL 4472608
No. 07-55536
United States Court of Appeals, Ninth Circuit , October 6, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: San Pasqual Band of Diegueno Mission Indians of California; Intergovernmental agreements -- California; Indian gaming -- Licenses; Slot machines; Gambling on Indian reservations -- California; Jurisdiction -- United States.

*Synopsis: (from the opinion) The San Pasqual Band of Mission Indians (“San Pasqual”) brought this action against the State of California, the California Gambling Control Commission, and the Governor of California (collectively, “the State”). The complaint sought a declaratory judgment regarding the aggregate maximum number of slot machine licenses available to Indian tribes in California who were parties to approximately sixty essentially identical Indian Gaming Compacts between those tribes and the State. The district court dismissed San Pasqual's action for failure to join all other tribes with similar compacts, who were subject to the same licensing pool, as required parties under Federal Rule of Civil Procedure 19. San Pasqual brings this appeal to challenge that dismissal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

*Holding: not available

Stratman v. Leisnoi
545 F.3d 1161
No. 07-35934
United States Court of Appeals, Ninth Circuit , October 6, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Grazing; Leases; United States. Alaska Native Claims Settlement Act; Alaska Native corporations -- Defined; Tribes -- Defined; Lesnoi Village (aka Woody Island); Alaska Native villages - Land tenure.

*Synopsis: Holder of grazing lessee sought enforcement of decision of Interior Board of Land Appeals which had found that village was not a deficiency village corporation entitled to lands under Alaska Native Claims Settlement Act (ANCSA). The United States District Court for the District of Alaska, James K. Singleton, J., dismissed the action and holder appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) Congress intended to treat village as an eligible village under ANCSA with right to public land, and
(2) Congressional actions rendered moot a challenge to village's certification.
Affirmed.

September

Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission
545 F.3d 1207
No. 05-72739, 05-74060
United States Court of Appeals, Ninth Circuit , September 30, 2008

Subjects: Snoqualmie Tribe, Washington; Hydroelectric power plants; Freedom of religion; United States. Religious Freedom Restoration Act of 1993; United States. National Historic Preservation Act of 1966; United States. Federal Water Pollution Control Act; Water rights - Tribes; Puget Sound Energy, Inc.; Snoqualmie Falls Hydroelectric Project.

*Synopsis: Indian tribe filed petition for review of an order of the Federal Energy Regulatory Commission (FERC) granting operator of hydroelectric power plant a license to operate for another 40 years. Operator cross-petitioned for review of FERC's decision to impose minimum water flow requirements that exceeded those established in Washington State Department of Ecology's water quality certification (WQC).

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) substantial evidence supported FERC's decision that granting operator a license to operate did not substantially burden tribal members' free exercise of their religion, in violation of the Religious Freedom Restoration Act (RFRA);
(2) FERC did not fail to engage in government-to-government consultation with a federally recognized Indian tribe, as required by the National Historic Preservation Act (NHPA) and FERC regulations;
(3) operator had standing under the Clean Water Act (CWA) to challenge revised water flow requirements imposed by FERC;
(4) FERC had authority to impose minimum water flow requirements that exceeded those established in the WQC; and
(5) substantial evidence supported FERC's decision to impose minimum water flow requirements that exceeded those established in the WQC.
Petitions denied.

Thomas v. Rhode Island
542 F.3d 944
No. 07-1985
United States Court of Appeals, First Circuit, September 24, 2008

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

*Synopsis: Tribe members arrested on tribal grounds brought § 1983 action against police officers for wrongful arrest. Officers moved to dismiss for failure to state a claim, and members requested leave to amend complaint. The United States District Court for the District of Rhode Island, William E. Smith, J., 449 F.3d 16, dismissed action.

*Holding: The Court of Appeals, Lipez, Circuit Judge, held that:
(1) members waived probable cause argument on appeal, and
(2) members were not entitled to leave to amend complaint.
Affirmed.

Alaska v. Federal Subsistence Board
544 F.3d 1089
No. 07-35723
United States Court of Appeals, Ninth Circuit , September 23, 2008

Subjects: United States. Alaska National Interest Lands Conservation Act; Cheesh-Na Tribe (formerly the Native Village of Chistochina); Moose hunting -- Alaska; United States. Administrative Procedure Act; Hunting rights -- Alaska; Subsistence rights -- Alaska; Subsistence economy -- Alaska.

*Synopsis: State of Alaska brought action challenging decision of Federal Subsistence Board (FSB) granting residents of a rural community in Southeast Alaska a customary and traditional use determination (C & T determination) for moose throughout the relevant game management unit (GMU). The United States District Court for the District of Alaska, H. Russel Holland, J., granted summary judgment in favor of federal defendants and defendant-intervenors. State of Alaska appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) substantial evidence supported FSB's finding that residents took moose for subsistence use in relevant portion of GMU;
(2) FSB properly considered specific moose populations as directed by federal regulations, in granting C & T determination; and
(3) FSB's decision to grant C & T determination was not arbitrary and capricious.
Affirmed.

Seneca v. United South and Eastern Tribes
2008 WL 4216874
No.08-11012
United States Court of Appeals, Eleventh Circuit, September 16, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United South and Eastern Tribes; Public contracts -- United States; United States. Dept. of Health and Human Services; Grievance arbitration -- United States; United States. Federal Tort Claims Act; United States. Federal Employees Liability Reform and Tort Compensation Act of 1988.

*Synopsis: (from the opinion) When an Indian tribe or tribal organization operates pursuant to a self-determination contract and its employees operate within the scope of their employment in carrying out such a contract or agreement, the organization is considered a part of the Federal government and its employees are considered Fis sued for a wrongful or negligent act, the Federal Employees Lederal employees for the purposes of the FTCA. See 25 U.S.C. § 450f. “When a federal employee iability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out of which the claim arose.’ “ Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-420 (1995) (quoting 28 U.S.C. § 2679(d)(1)). After certification, the named defendant employee is dismissed from the action and the United States is substituted as the defendant; the case is then governed by the FTCA.

*Holding: not yet available

Oglala Sioux Tribe v. C & W Enterprises, Inc
542 F.3d 224
No. 07-3269
United States Court of Appeals, Eighth Circuit, September 5, 2008

Subjects: Mining leases -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Roads -- Contracts -- -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Sand and gravel plants -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Arbitration (Administrative law).

*Synopsis: Indian tribe brought action to enjoin contractor's state court action against it arising from dispute over road construction project. The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, 516 F.Supp.2d 1044, vacated two executions of judgment for contractor entered by state court and enjoined state court from confirming arbitration award against tribe. Contractor appealed.

*Holding: The Court of Appeals, Eighth Circuit Rosenbaum, District Judge, held that:
(1) tribe was not entitled to permanent injunction;
(2) tribe waived sovereign immunity through explicit waiver and agreement to arbitrate;
(3) tribe waived sovereign immunity by actively participating in arbitration; and
(4) tribe's waiver of sovereign immunity extended to state court enforcement.
Vacated and remanded.

Pelt v. Utah
539 F.3d 1271
No. 06-4046, 06-4164
United States Court of Appeals, Tenth Circuit, September 3, 2008

Subjects: Navajo Indians -- San Juan County (Utah); Utah; Class actions (Civil procedure); Trusts and trustees -- Accounting -- Utah; Oil and gas leases -- Royalties.

*Synopsis: In class action, beneficiaries of oil and gas royalty fund administered by state for the benefit of members of the Navajo Nation sought a fiduciary accounting of trust fund activities. The United States District Court for the District of Utah, Tena Campbell, J., 2006 WL 1148818, ruled against state on its argument that all or a portion of the beneficiaries' claim was precluded by three prior cases to which the beneficiaries were not parties, and state appealed.

*Holding: The Court of Appeals, Robinson, Circuit Judge, held that:
(1) beneficiaries were not bound by the judgments in previous class actions to which the beneficiaries were not parties since their interests in prior cases, which were brought on behalf of other fund beneficiaries, were not adequately represented, and
(2) beneficiaries were not bound by the judgment in previous non-class action.
Affirmed and remanded.

August

United States v. Mahoney
2008 WL 4613959
No. 07-30429
United States Court of Appeals. Ninth Circuit, August 29, 2008

Subjects:.United States. Contraband Cigarette Trafficking Act; Distributors (Commerce) -- Cigarettes; Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho -- Members.

*Synopsis: Defendant was convicted in the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., of conspiracy to violate Contraband Cigarette Trafficking Act (CCTA) and conspiracy to launder money. Defendant appealed.

*Holding: The Court of Appeals held that:
(1) defendant was not entitled to jury instruction that government must prove defendant knew his actions violated law, and
(2) sentence of 33 months was reasonable.
Affirmed.

Marceau v. Blackfeet Housing Authority
540 F.3d 916
No. 04-35210
United States Court of Appeals, Ninth Circuit, August 22, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Exhaustion of tribal remedies; Trusts and trustees -- United States; United States. Administrative Procedure Act.

*Synopsis: Native American homeowners and lessees who resided in homes built pursuant to the Mutual Help and Homeownership Opportunity Program (MHHOP) brought class action against Department of Housing and Urban Development (HUD), tribal housing authority, and its members, alleging breach of contract and other claims. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.

*Holding: On denial of petition for rehearing, the Court of Appeals, Graber, Circuit Judge, held that:
(1) plaintiffs were required to exhaust tribal court remedies before bringing claims against Housing Authority;
(2) HUD did not, by funding projects of tribal housing authority, assume any trust responsibility toward plaintiffs;
(3) remand was required for factual development on issue of whether HUD's wood foundation requirements violated Administrative Procedure Act (APA);
(4) request for injunction ordering HUD to rebuild or repair homes was not a request for "money damages" precluding APA claim, even if money damages could substitute for injunction; and
(5) readopting in part opinion at 455 F.3d 974, District Court lacked jurisdiction under the Little Tucker Act over breach of contract action.
Affirmed in part, reversed in part, and remanded.

Rincon Band of Luiseno Mission Indians v. Schwarzenegger
2008 WL 3822538
No. 06-55259
United States Court of Appeals, Ninth Circuit, August 8, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Gambling -- Law and legislation -- United States; Gambling on Indian reservations -- California; Indian gaming - Intergovernmental agreements; Rincon Band of Luiseno Mission Indians of the Rincon Reservation, California; Indian gaming; Slot machines.

*Synopsis: Indian tribe brought suit against State of California. The United States District Court for the Southern District of California, Thomas J. Whelan, J., dismissed claims for declaratory judgment regarding number of slot machine licenses available to Indian tribes who were parties to essentially similar compacts and claim for reliance damages. Tribe appealed.

*Holding: The Court of Appeals held that:
(1) other tribes were not necessary parties to claim for declaratory relief, and
(2) Eleventh Amendment barred claim against State of California for reliance damages.
Affirmed in part, reversed in part, and remanded.

Navajo Nation v. U.S. Forest Service
535 F.3d 1058
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit, August 8, 2008
Briefs & Pleadings
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United States. Forest Service; Arizona Snow Bowl (Ariz.) -- Remodeling; Rites and ceremonies -- Navajo Nation, Arizona, New Mexico & Utah; Coconino National Forest (Ariz.); Sacred sites -- Navajo Nation, Arizona, New Mexico & Utah; Sewage.

*Synopsis: Numerous Indian tribes, their members, and environmental organization brought action challenging the Forest Service's decision to authorize proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by tribes. Following bench trial, the United States District Court for the District of Arizona, Paul G. Rosenblatt, J., 408 F.Supp.2d 866, held that the proposed use did not violate the Religious Freedom Restoration Act (RFRA) and granted Forest Service's motion for summary judgment on claims brought under National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Appeal was taken. The Court of Appeals, W. Fletcher, Circuit Judge, 479 F.3d 1024, affirmed in part, reversed in part and remanded, and application for rehearing en banc was granted.

*Holding: The Court of Appeals, Bea, Circuit Judge, held that:
(1) proposed use of recycled wastewater to make artificial snow for commercial ski resort located in national park on mountain considered sacred by some Indian tribes would not “substantially burden” free exercise of religion by tribal members, within meaning of the RFRA;
(2) Final Environmental Impact Statement (FEIS) prepared by Forest Service satisfied requirements of NEPA; and
(3) in preparing FEIS, Forest Service's consultation process concerning effects on historic properties to which Indian tribes attached religious and cultural significance was substantively and procedurally adequate under the NHPA.
Affirmed.

Related News Stories: Snowbowl case might reach Supreme Court (JackCentral) 10/23/08.

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
536 F.3d 1034
No. 06-16145
United States Court of Appeals, Ninth Circuit, August 8, 2008
See above for more information on the October 24 order amending opinion and denying the petition for panel rehearing and petition for rehearing en banc and amended opinion.

Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming.

*Synopsis: Indian tribe brought suit against California, Governor, and Gambling Control Commission, asserting claim for breach of tribal-state gaming compact, entered under Indian Gaming Regulatory Act (IGRA), and seeking declaratory and injunctive relief regarding Commission's interpretation of compact and unilateral administration of licensing for electronic gaming devices. The United States District Court for the Eastern District of California, Frank C. Damrell, J., 2006 WL 1328267, granted California's motion for judgment on pleadings, after determining that other Indian tribes were required parties but had sovereign immunity. Tribe appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) absent tribes were not required parties for breach of compact claim regarding limit on number of licenses;
(2) absent tribes were not required parties for breach of compact claim regarding fourth-tier placement in license draw, except as related to existing licenses;
(3) absent tribes were not required parties for breach of compact claim regarding refund of license fee; and
(4) absent tribes were not required parties for breach of compact claim regarding Commission's unilateral administration of licensing.
Affirmed in part, reversed in part, and remanded.

July

Vann v. Kempthorne
534 F.3d 741
No. 07-5024
United States Court of Appeals, District of Columbia Circuit, July 29, 2008

Subjects: Contested elections -- Cherokee Nation, Oklahoma; Suffrage -- Cherokee Nation, Oklahoma; Sovereign immunity -- Cherokee Nation, Oklahoma; Freedmen; United States. Administrative Procedure Act; United States. Indian Civil Rights Act.

*Synopsis: Descendants of freed slaves of Cherokee Nation sued Secretary of Department of Interior (DOI), tribe, tribal chief, and other tribal officers, under Administrative Procedure Act (APA), seeking injunctive and declaratory relief regarding disenfranchisement from tribal elections allegedly in violation of Thirteenth and Fifteenth Amendments, Cherokee constitution, treaty, Principal Chiefs Act, and Indian Civil Rights Act (ICRA). The United States District Court for the District of Columbia denied tribe's motion to dismiss. Defendants appealed.

*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) tribe was protected by sovereign immunity;
(2) suit was not foreclosed against tribal officers under Ex parte Young doctrine;
(3) suit was not foreclosed against tribal officers under Seminole Tribe exception to Ex parte Young doctrine; and
(4) suit was not foreclosed against tribal officers by tribe's special sovereignty interests.
Reversed in part and remanded.

Fowler v. Crawford
534 F.3d 931
No. 07-2946
United States Court of Appeals, Eighth Circuit, July 25, 2008

Subjects: Freedom of religion; Indians of North America -- Rites and ceremonies; Sweat lodges; United States. Religious Land Use and Institutionalized Persons Act of 2000; Missouri. Dept. of Corrections; Jefferson City Correctional Center (Mo.).

*Synopsis: State prisoner brought action against prison officials, alleging that officials' refusal to grant him access to a sweat lodge in which to practice his Native American faith violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., 2007 WL 2137803, granted summary judgment to prison officials. Prisoner appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that:
(1) prohibition on sweat lodge was in furtherance of compelling governmental interest, and
(2) ban was the least restrictive means by which to further compelling interest.
Affirmed.

Roberts v. Hagener
287 Fed.Appx. 586
No. 07-35197
United States Court of Appeals, Ninth Circuit, July 18, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Equality before the law -- United States; United States. Constitution. 14th Amendment; Jurisdiction -- United States; Game laws -- Montana; Hunting -- On Indian reservations -- State supervision.

*Synopsis: Plaintiff brought action against State of Montana and numerous Montana government officials alleging that Montana big game hunting regulation violated Equal Protection Clause. The United States District Court for the District of Montana, Richard F. Cebull, J., granted summary judgment for defendants. Plaintiff appealed.

*Holding: The Court of Appeals held that regulation did not violate equal protection.
Affirmed.

Klamath Irrigation District v. United States
532 F.3d 1376
No. 2007-5115
United States Court of Appeals, Federal Circuit, July 16, 2008

Subjects: Water rights; Irrigation; Breach of contract -- United States; Water -- Compensation for taking; Right of property; Law -- Oregon; Klamath River (Or. and Calif.).

*Synopsis: Irrigation districts and agricultural landowners brought consolidated suits against United States, claiming that Bureau of Reclamation's temporary reductions of irrigation water breached contracts for supply of irrigation water from Klamath River Basin reclamation project, breached interstate compact, and violated Fifth Amendment by uncompensated taking of property. The United States Court of Federal Claims, Francis M. Allegra, J., 75 Fed.Cl. 677, granted government summary judgment. Appeal was taken.

*Holding: The Court of Appeals, Schall, Circuit Judge, held that questions regarding Oregon property law would be certified to Oregon Supreme Court.
Certified questions.

Barber v. Simpson
286 Fed.Appx. 969
No. 06-16880
United States Court of Appeals, Ninth Circuit, July 11, 2008

Subjects: Indian allotments -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Indian title -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Land tenure -- Members -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Jurisdiction -- Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Eviction.

*Synopsis: Member of Indian tribe appealed order of the United States District Court for the Eastern District of California, 2006 WL 1867643, Garland E. Burrell, Jr., J., which denied his request for declaratory and injunctive relief from tribal court's eviction order.

*Holding: The Court of Appeals held that United States was not indispensable but unjoined party in tribal court eviction action.
Affirmed.

Yankton Sioux Tribe v. U.S. Department of Health and Human Services
533 F.3d 634
No. 07-3096
United States Court of Appeals, Eighth Circuit, July 7, 2008

Subjects: Yankton Sioux Tribe of South Dakota; United States. Indian Health Service; Hospitals--Emergency services -- United States; Due process of law.

*Synopsis: Indian tribe brought action challenging decision of the United States Indian Health Service (IHS) to close an emergency room at a health care facility and convert it to an urgent care facility. The United States District Court for the District of South Dakota, 496 F.Supp.2d 1044, Lawrence L. Piersol, J., granted government's motion to dismiss, and tribe appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that doctrine of res judicata barred tribe's action.
Affirmed.

June

United States v. Vasquez-Ramos
531 F.3d 987
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, June 27, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.

*Synopsis: Defendants, two Native Americans who were not members of federally recognized Indian tribes, were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit, in violation of the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA). Defendants moved to dismiss, claiming that they used feathers during Native American religious ceremonies, and that prosecution impermissibly burdened their religious practice under the Religious Freedom Restoration Act (RFRA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.

*Holding: The Court of Appeals held that prosecution of defendants did not violate RFRA.
Affirmed.

Related News Stories: 9th Circuit won't rehear eagle feather cases (Indianz.com) 7/1/08

United States v. FMC Corporation
531 F.3d 813
No. 06-35429
United States Court of Appeals, Ninth Circuit, June 27, 2008

Subjects: Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; FMC Corporation; Mines and mineral resources -- Idaho; Pollution; Environmental law -- United States; Environmental law -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: Native American tribe sought enforcement of consent degree between mining company and United States. The United States District Court for the District of Idaho, B. Lynn Winmill, J., 2006 WL 544505, held that tribe could enforce the decree. After granting company's motion for a stay, 2006 WL 1382192, the District Court, denied company's subsequent motions for stay and for clarification, and lifted the stay previously issued. Mining company appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that tribes were not intended third-party beneficiaries to consent decree.
Vacated and remanded.

Guidiville Band of Pomo Indians v. NVG Gaming
531 F.3d 767
Nos. 05-17066, 05-17067
United States Court of Appeals, Ninth Circuit, June 26, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: NGV Gaming, Ltd. (Fla.); Upstream Point Molate, LLC. (Calif.); Harrah's Operating Company, Inc.; Contracts - Federal supervision; Indian gaming -- Guidiville Rancheria of California; Gambling on Indian reservations -- California; Guidiville Rancheria of California.

*Synopsis: Casino developer sued competitors for tortious interference with contract between Indian tribe and developer, as assignee of rights and duties under contract, for development and construction of gaming facility on to-be-acquired parcel of land. After suit was consolidated with tribe's suit against developer, seeking declaratory and injunctive relief regarding allegedly invalid contract, the United States District Court for the Northern District of California, Samuel Conti, J., 2005 WL 5503031, granted tribe's motion for declaratory judgment and granted tribe and competitors summary judgment. Developer appealed.

*Holding: The Court of Appeals, Milton I. Shadur, Senior District Judge, sitting by designation, held that:
(1) tribe lacked standing for declaratory claims against developer;
(2) contract was valid without governmental approval, as required for tortious interference with contract claim; and
(3) contract did not violate Indian Gaming Regulatory Act (IGRA), as required for tortious interference with contract claim.
Vacated in part; reversed and remanded in part.

Barona Band of Mission Indians v. Yee
528 F.3d 1184
No. 06-55918
United States Court of Appeals, Ninth Circuit, June 18, 2008

Subjects: Sales tax -- California -- Application; Casinos -- Design and construction -- Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Subcontractors -- Taxation.

*Synopsis: Indian tribe brought action against California State Board of Equalization (SBE), seeking declaratory relief from imposition of state sales tax on construction materials purchased by non-Indian electrical subcontractor from non-Indian vendor and delivered to Indian land pursuant to contract for $75 million casino expansion. The United States District Court for the Southern District of California, Dana M. Sabraw, J., granted tribe's motion for summary judgment, and the SBE appealed.

*Holding: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) legal incidence of sales tax fell upon subcontractor and thus tax was not per se invalid as a tax on tribe or its members;
(2) sales tax was valid under Becker preemption analysis; and
(3) Indian Gaming Regulation Act (IGRA) did not preempt sales tax.
Reversed and remanded.

May

Lobo v. Miccosukee Tribe of Indians of Florida
279 Fed.Appx. 926
No. 07-15073
United States Court of Appeals, Eleventh Circuit, May 30, 2008

Subjects: United States. Fair Labor Standards Act of 1938 -- Application -- Tribes; Sovereign immunity -- Miccosukee Tribe of Indians of Florida -- Officials and employees.

*Synopsis: (from the opinion) Appellants Felix Lobo and Liza Suarez appeal the dismissal of their Fair Labor Standards Act, 29 U.S.C. § 201 (“FLSA”), complaint. The district court dismissed the complaint because the Appellees, the Miccosukee Tribe and its chairman Billy Cypress, enjoy sovereign immunity. On appeal, the Appellants argue that the district court erred because the FLSA is a statute of general application that applies to Indian tribes.

*Holding: not yet available

Wopsock v. Natchees
279 Fed.Appx. 679
No. 06-4215
United States Court of Appeals, Tenth Circuit, May 23, 2008

Subjects: Due process of law -- United States; Equality before the law -- United States; Freedom of speech -- United States; United States. Indian Civil Rights Act; United States. Indian Reorganization Act; Law -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah. Business Committee -- Membership; Jurisdiction -- United States; Jurisdiction -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Tribal sovereignty -- Ute Indian Tribe of the Uintah & Ouray Reservation; Exhaustion of tribal remedies -- Ute Indian Tribe of the Uintah & Ouray Reservation.

*Synopsis: Three enrolled members of Indian tribe brought action alleging various claims arising out of a dispute over tribal leadership, including violations of the Indian Reorganization Act (IRA) and conspiracy to violate their civil rights. The United States District Court for the District of Utah dismissed all claims and denied members' motion to amend their complaint. Members appealed.

*Holding: The Court of Appeals, Michael R. Murphy, Circuit Judge, held that:
(1) members of tribe's governing body were entitled to sovereign immunity;
(2) Court lacked jurisdiction to consider claims against federal government officials; and
(3) denial of second motion to amend was not an abuse of discretion.
Affirmed.

Western Shoshone National Council v. United States
279 Fed.Appx. 980
No. 2007-5020
United States Court of Appeals, Federal Circuit, May 22, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Quiet title actions -- Te-Moak Tribe of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); United States; Trusts and trustees -- Accounting -- United States; United States. Indian Claims Commission; Tribes -- Compensation for taking; Tribes - Treaties; Tribes - Land tenure; Jurisdiction - United States.

*Synopsis: Governing body of the Western Shoshone Nation and Western Shoshone bands brought suit against the United States seeking declaratory judgment that judgment of the Indian Claims Commission (ICC) was not enforceable against them, or that the ICC judgment was void because of alleged due process violations. Defendant moved to dismiss. The Court of Federal Claims, Loren A. Smith, Senior Judge, 73 Fed.Cl. 59, granted the motion for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs appealed.

*Holding: The Court of Appeals, Rader, Circuit Judge, held that:
(1) motion for relief from ICC judgment on ground that judgment was void was untimely;
(2) independent action seeking relief from ICC judgment was barred by six-year statute of limitations;
(3) Treaty of Ruby Valley did not convey treaty title to any land, so as to allow prejudgment from time of taking until date of award;
(4) claims for royalties on minerals mined and extracted under the Treaty of Ruby Valley were barred by finality provision of Indian Claims Commission Act (ICCA); and
(5) claims for an accounting of proceeds from government's use of land described in Treaty of Ruby Valley and damages for alleged breach of fiduciary duty arising from alleged mismanagement of that land were barred under finality provision of ICCA.
Affirmed.

Lawrence v. Department of Interior
525 F.3d 916
No. 06-35448
United States Court of Appeals, Ninth Circuit, May 13, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Members -- Standing Rock Sioux Tribe of North & South Dakota; United States. Bureau of Indian Affairs -- Officials and employees; Employee fringe benefits -- Fire fighters; Retirement planning.

*Synopsis: Indian employee of Bureau of Indian Affairs (BIA) sought review of Merit Systems Protection Board's decision, denying petition for review of Department of Interior's denial of his claim for increased retirement benefits for firefighting duties, alleging that BIA's failure to notify him of application deadline for retroactive reclassifications of firefighting service credit violated federal trust responsibility toward Indians, Indian Preference Act (IPA), and Title VII's prohibition against employment discrimination based on race. The United States District Court for the Eastern District of Washington, Edward F. Shea, J., 2006 WL 850878, granted BIA summary judgment. Employee appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) application deadline for service credit was not waived by lack of actual notice;
(2) deadline was not waived by circumstances beyond employee's control;
(3) lack of actual notice did not violate federal trust responsibility;
(4) retroactive reclassification of firefighting service was not required by IPA; and
(5) lack of actual notice did not disparately impact Indians, under Title VII.
Affirmed.

United States v. Friday
525 F.3d 938
Briefs & Pleadings
No. 06-8093
United States Court of Appeals, Tenth Circuit, May 8, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United States. Bald and Golden Eagle Protection Act; Members -- Arapahoe Tribe of the Wind River Reservation, Wyoming; Bald eagles -- Protection -- United States; United States. Religious Freedom Restoration Act; Fish and games licenses.

*Synopsis: Defendant, a member of the Northern Arapaho Tribe of Wyoming, was charged with violating Bald and Golden Eagle Protection Act after he shot bald eagle, without permit, for use in Sun Dance. Defendant responded that prosecution was precluded by Religious Freedom Restoration Act (RFRA). The United States District Court for the District of Wyoming, Downes, J., 2006 WL 3592952, dismissed information. Government appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) both prongs of RFRA's strict scrutiny test were legal questions;
(2) Court of Appeals was required to engage in independent review of “constitutional facts”;
(3) permit process for taking eagles was not futile, such that prohibition on taking eagles would be effectively without exception, thus resulting in substantial burden on tribal religious practices in violation of RFRA;
(4) permitting process did not facially violate RFRA;
(5) Fish and Wildlife Service (FWS) was not required to engage in affirmative outreach for permitting process to be least restrictive means of preserving eagles; and
(6) any difference in government's treatment of Native Americans taking eagles for religious purposes and power companies whose power lines killed eagles did not indicate that government failed to protect eagles in least restrictive manner.
Reversed and remanded.

Related News: Stories: Man asks for appeals court review in eagle case (Casper Star-Tribune) 6/26/08

Bone Shirt v. Hazeltine
524 F.3d 863
No. 07-2145
United States Court of Appeals, Eighth Circuit, May 5, 2008

Subjects: United States. Voting Rights Act of 1965; Voting -- United States; Indians of North America; South Dakota; Apportionment (Election law); South Dakota. Legislature -- Election districts; Suffrage; Dilution.

*Synopsis: Native American voters, as prevailing parties in their suit claiming that South Dakota legislative redistricting plan violated Voting Rights Act, moved for expert witness fees, under Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (VRARA). The United States District Court for the District of South Dakota, Karen Schreier, Chief Judge, denied motion. Voters appealed.

*Holding: The Court of Appeals held that expert fees award under VRARA would have impermissible retroactive effect.
Affirmed.

April

Michigan Gambling Opposition v. Kempthorne
525 F.3d 23
No. 07-5092
United States Court of Appeals, District of Columbia Circuit, April 29, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Gambling on Indian reservations -- Michigan; Indian gaming -- Class III -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; United States. Indian Gaming Regulatory Act; Building sites; United States. National Environmental Policy Act of 1969; Environmental impact statements; Finding of No Significant Impact (FONSI); Intergovernmental agreements -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Intergovernmental agreements -- Michigan; Land into trust.

*Synopsis: Michigan non-profit corporation brought action challenging federal defendants' decision to place two parcels of land into trust for Indian band for proposed casino. The band intervened. The United States District Court for the District of Columbia, John Garrett Penn, J., 477 F.Supp.2d 1, granted summary judgment for defendants. Plaintiff appealed.

*Holding: The Court of Appeals held that:
(1) Checklist for Gaming Acquisitions Gaming-Related Acquisitions and Indian Gaming Regulatory Act (IGRA) Determinations was not binding on Department of Interior (DOI) with regard to whether environmental impact statement (EIS) was necessary in assessing impact of proposed Indian casino site on traffic;
(2) DOI was justified in finding that mitigation of traffic impact was sufficient, and that EIS was not necessary; and
(3) provision of Indian Reorganization Act (IRA) that authorized Secretary of Interior to acquire land for Indians contained intelligible principle to guide Secretary's discretion, and thus did not violate non-delegation doctrine.
Affirmed on other grounds in part.

Related News Story: Appeals court judge strikes blows against Indian rights (Indianz.com) 5/5/08

United States v. Vasquez-Ramos
522 F.3d 914
Nos. 06-50553, 06-50694
United States Court of Appeals, Ninth Circuit, April 10, 2008

Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.

*Synopsis: Defendant Native Americans were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA). The United States District Court for the Central District of California, S. James Otero, J., denied defendants' motion to dismiss. Defendants entered conditional guilty pleas and appealed.

*Holding: The Court of Appeals held that prosecution of defendants did not violate Religious Freedom Restoration Act (RFRA).
Affirmed.

Nord v. Kelly
520 F.3d 848
No. 07-1564
United States Court of Appeals, Eighth Circuit, April 4, 2008

Subjects: Traffic accidents -- On Indian reservations -- Red Lake Band of Chippewa Indians, Minnesota; Red Lake Band of Chippewa Indians, Minnesota -- Members; Non-members of a tribe; Personal injuries -- Cases; Jurisdiction -- Red Lake Band of Chippewa Indians, Minnesota.

*Synopsis: Non-Native American driver of semi-truck, and his father, whose business owned semi-truck, brought action against member of Red Lake Band of Chippewa Indians and Red Lake Nation Tribal Court, seeking declaration that Tribal Court lacked personal jurisdiction over driver and father, who were sued by member in Tribal Court for personal injuries sustained by member in automobile accident that occurred on state highway within reservation. The United States District Court for the District of Minnesota, Schiltz, J., 474 F.Supp.2d 1088, granted summary judgment for plaintiffs. Defendants appealed.

*Holding: The Court of Appeals, Hansen, Circuit Judge, held that:
(1) Tribal Court lacked personal jurisdiction over plaintiffs;
(2) state's federally granted right-of-way to construct and maintain road over tribal lands as a public highway was valid;
(3) plaintiffs did not have consensual commercial relationships with the tribe or its members as required for first Montana exception to apply; and
(4) tribe's ability to regulate and to exercise adjudicatory authority over nonmembers on highway was not important to its tribal sovereignty, as required for second Montana exception to apply.
Affirmed.

United States v. Lamy
521 F.3d 1257
No. 07-2048
United States Court of Appeals, Tenth Circuit, April 1, 2008

Subjects: Indian Country (U.S.) -- Defined; Zuni Tribe of the Zuni Reservation, New Mexico -- Members; Zuni (N.M.).

*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, James O. Browning, J., of aggravated sexual abuse in Indian country, and defendant appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) defendant's statements to police officers regarding alleged rape were not improperly induced;
(2) defendant was not "in custody" for Miranda purposes when he was questioned by police officers regarding alleged rape;
(3) co-defendant's testimony that suggested that defendant had a prior history of contact with the FBI did not affect defendant's substantial rights; and
(4) evidence was sufficient to support finding that defendant's crimes occurred in Indian country.
Affirmed.

March

Yellowbear v. Wyoming Attorney General
525 F.3d 921
No. 06-8064
United States Court of Appeals, Tenth Circuit, March 21, 2008

Subjects: Trials (Murder) -- Wyoming; Indian Country (U.S.) -- Defined; Jurisdiction -- Wyoming; Jurisdiction -- United States; Riverton (Wyo.); Wind River Indian Reservation (Wyo.).

*Synopsis: During his state murder trial, petitioner filed pro se habeas corpus petition under § 2241 on basis that state court lacked jurisdiction over crime. Petitioner was convicted of murder in state court. The United States District Court for the District of Wyoming, Clarence A. Brimmer, J., dismissed petition under Younger abstention doctrine, directing petitioner to exhaust state remedies, and petitioner appealed. In interim, defendant's conviction was affirmed on direct appeal, 174 P.3d 1270.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) no basis remained for Younger abstention;
(2) proper avenue for pursuing habeas relief after conviction was § 2254;
(3) court would not automatically recharacterize petition as one under § 2254, given risk that subsequent petition challenging conviction on other bases would be second or successive.
Reversed and remanded.

Marceau v. Blackfeet Housing Authority
519 F.3d 838
No. 04-35210
United States Court of Appeals, Ninth Circuit, March 19, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.

*Synopsis: Blackfeet Tribe members who owned or leased homes built pursuant to Mutual Help and Homeownership Program (MHHP) brought class action against Department of Housing and Urban Development (HUD), Tribal Housing Authority, and its members, alleging violations of Housing Act and regulations, and seeking declaratory and injunctive relief, and damages. The United States District Court for the District of Montana, Sam E. Haddon, J., dismissed. Plaintiffs appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) Housing Authority waived its tribal immunity;
(2) HUD did not undertake trust responsibility toward plaintiffs;
(3) complaint stated claims against HUD under Administrative Procedure Act (APA) for declaratory and injunctive relief; and
(4) District Court lacked jurisdiction over breach of contract action.
Affirmed in part, reversed in part, and remanded.

United States v. Refert
519 F.3d 752
No. 07-1158
United States Court of Appeals, Eighth Circuit, March 13, 2008

Subjects: Indians of North America -- Defined; United States. Indian Health Service; Medical care -- United States; Eligibility -- Determination standards -- United States.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of health care fraud and making false claim against the United States. Defendant appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) failure to give jury instruction on regarded as an Indian by the community was not plain error;
(2) sufficient evidence established that defendant received free medical services based on her misrepresentations;
(3) district court did not plainly err in ordering restitution for costs incurred by government; and
(4) district court plainly erred in sentencing defendant to consecutive supervised release terms.
Affirmed in part and reversed in part.

February

Klamath Tribes of Oregon v. Pacific Corp
268 Fed.Appx. 575
No. 05-36010
United States Court of Appeals, District of Columbia Circuit, February 28, 2008
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Treaty rights -- Klamath Tribes, Oregon; Fishing rights -- Klamath Tribes, Oregon; PacificCorp.

*Synopsis: (from the opnion) Here, Appellants seek to maintain an action for damages against PacificCorp for violating a provision in the Treaty with the Klamath, etc., 1864, 16 Stat. 707 (Klamath Treaty), that secured to the Klamath Tribe “the exclusive right of taking fish in the streams and lakes, included in said reservation....” Id., art 1. Although this Treaty provision secures to the Klamath exclusive on-reservation fishing rights, it is not so qualitatively different from the off-reservation fishing rights secured to the Skokomish Tribe that we are free to depart from the majority's holding in Skokomish. Further, as in Skokomish, there is no language in the Klamath Treaty that would support a claim for damages against a non-contracting private party. I therefore conclude that Appellants' claim for damages is foreclosed by Skokomish.

*Holding: not yet available

California Valley Miwok Tribe v. United States
515 F.3d 1262
No. 06-5203
United States Court of Appeals, Ninth Circuit, February 15, 2008

Subjects: Federal recognition of Indian tribes -- California Valley Miwok Tribe; United States. Indian Reorganization Act; Constitutions -- Tribes -- Government policy -- United States; United States. Bureau of Indian Affairs.

*Synopsis: Members of Indian tribe brought action on behalf of tribe challenging Secretary of the Interior's refusal to approve tribal constitution, seeking declaration that tribe was organized pursuant to Indian Reorganization Act. The United States District Court for the District of Columbia, Robertson, J., 424 F.Supp.2d 197, granted government's motion to dismiss. Members appealed.

*Holding: The Court of Appeals, Griffith, Circuit Judge, held that:
(1) Secretary had authority under the Act to refuse to approve constitution, and
(2) any error in district court's denial of members' motions for leave to file supplemental claims was harmless.
Affirmed.

Hinsley v. Standing Rock Child Protective Services
516 F.3d 668
No. 07-1435
United States Court of Appeals, Eighth Circuit, February 5, 2008

Subjects: Child abuse; Sex offenders; Child welfare -- Standing Rock Sioux Tribe of North & South Dakota; United States. Federal Tort Claims Act; Negligence -- Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Mother brought Federal Tort Claims Act (FTCA) action against Bureau of Indian Affairs (BIA) and child protection agency operated by Indian tribe pursuant to self-determination contract, alleging that agency negligently placed her brother in her home without notifying her that brother was child molester, resulting in his molestation of her daughter. The United States District Judge for the District of North Dakota, Daniel L. Hovland, J., 470 F.Supp.2d 1037, entered summary judgment for agency. Mother appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that alleged failure of agency to warn mother was subject to FTCA's discretionary function exception.
Affirmed.

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
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act; Revenue sharing -- Wisconsin.

*Synopsis: State of Wisconsin brought action to compel arbitration in dispute over failure of Indian tribe to make certain payments to State. The district court, 402 F.Supp.2d 1008, compelled arbitration. Tribe appealed. The Court of Appeals, 463 F.3d 655, vacated and remanded. On remand, the United States District Court for the Western District of Wisconsin, John C. Shabaz, J., 2006 WL 3813654, granted State's motion to amend complaint to seek declaratory and injunctive relief, to allege breach of contract, and to compel performance under compact terms. Tribe counterclaimed alleging breach of contract and violations of Indian Gaming Regulatory Act (IGRA). The district court, 478 F.Supp.2d 1093, granted in part and denied in part motions of tribe to dismiss or for summary judgment. Tribe took interlocutory appeal.

*Holding: The Court of Appeals, Flaum, Circuit Judge, held that:
(1) federal jurisdiction under IGRA was limited to alleged compact violations relating to seven items listed in catch-all provision;
(2) Congress abrogated sovereign immunity of tribe with respect to State's claim to enjoin tribe's class III gaming due to its alleged refusal to submit to binding arbitration;
(3) federal court had jurisdiction over cause of action brought by State seeking declaratory judgment that it had negotiated in good faith with tribe as required by IGRA;
(4) supplemental jurisdiction existed over contractual claim;
(5) independent basis for federal jurisdiction existed to address causes of action brought by State to enforce dispute resolution provision in gambling compact with Indian tribe pursuant to Federal Arbitration Act (FAA) as it related to arbitrable claims;
(6) state court decision which purportedly served to invalidate prior waiver of sovereign immunity by State of Wisconsin in gambling compact with Indian tribe did not affect issue of whether waiver of sovereign immunity by Indian tribe remained intact; and
(7) determination had to be made as to which claims were arbitrable.
Affirmed in part, vacated in part, and remanded.

United States v. Gachot
512 F.3d 1252
No. 07-6061
United States Court of Appeals, Tenth Circuit, January 10, 2008

Subjects: Oklahoma -- Law and legislation -- Application -- Kiowa Indian Tribe of Oklahoma -- Members; Cockfighting; Crimes without victims -- Indian Country (U.S); Criminal jurisdiction -- United States.

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma of operating an illegal gambling business, and he appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that defendant's arguments that district court lacked jurisdiction over original indictment that was dismissed were moot.
Affirmed.

Osage Tribe of Indians of Oklahoma v. United States
263 Fed.Appx. 43
No. 2007-5120
United States Court of Appeals, Federal Circuit, January 9, 2008

Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Mines and mineral resources -- Osage Tribe of Oklahoma; Oil and gas leases -- Osage Tribe of Oklahoma; Revenue -- Osage Tribe of Oklahoma.

*Synopsis: Indian tribe sued United States, alleging that United States breached its trust responsibilities to tribe in managing thousands of leases for oil, gas, and other minerals. Following trial of first phase of case, the United States Court of Federal Claims, Emily C. Hewitt, J., awarded tribe approximately $1,800,000 in damages and entered judgment. Government appealed, and then moved to dismiss appeal.

*Holding: The Court of Appeals, Lourie, Circuit Judge, held that judgment could not be certified as final judgment on individual claim in multiple-claim action for purposes of immediate appeal.
Motion to dismiss granted.

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