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December

United States v. Pecore
2011 WL 6880632
Nos. 10 2676, 10 3599
United States Court of Appeals, Seventh Circuit, Dec. 30, 2011.

*Synopsis: United States filed civil action against tribal forest manager and fire management officer alleging violation of False Claims Act (FCA). Defendants prevailed after jury trial. Defendants moved for award of attorney's fees under Equal Access to Justice Act (EAJA), or alternatively, sanctions. The United States District Court for the Eastern District of Wisconsin, William C. Griesbach, J., 2010 WL 2465505, denied motion. Defendants appealed.

*Holdings: The Court of Appeals, Kanne, Circuit Judge, held that:
(1) alleged violation of internal agency policy guidelines served only as probative evidence that government did not file suit in good faith;
(2) case involving contract performance does not necessarily foreclose FCA liability;
(3) district court did not abuse its discretion in finding that government's motive theory was substantially justified;
(4) district court did not abuse its discretion in finding that government had reasonable grounds for believing that defendants had knowingly submitted false invoices;
(5) government did not abdicate its duty to diligently investigate FCA claims by giving greater deference to its own expert; and
(6) district court did not abuse its discretion in rejecting request for sanctions for government's refusal to admit genuineness of tribal invoices, completion maps, and accomplishment memoranda.
Affirmed.

United States v. Maxwell
664 F.3d 240
Nos. 11–1073, 11–1074
United States Court of Appeals, Eighth Circuit, December 22, 2011.

*Synopsis: Native American defendants pled guilty to second degree murder committed on Indian reservation against Native American victim and were sentenced, respectively, to 121–month prison term by downward departure for defendant who provided substantial assistance, and 222–month prison term by upward variance for her co-defendant boyfriend, imposed by the United States District Court for the District of Minnesota, Donovan W. Frank, J. Defendants appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) co-defendant's sentence based on upward variance was substantively reasonable;
(2) downward departure was not warranted based on co-defendant's mental illness;
(3) downward departure based on duress was not warranted;
(4) sentencing factors were adequately considered; and
(5) defendant's within-guidelines sentence was substantively reasonable.
Affirmed.

New Jersey v. Environmental Protection Agency
2011 WL 6352310
Nos. 05 1097, 05 1104, 05 1116, 05 1118, 05 1158, 05 1159, 05 1160, 05 1162, 05 1163, 05 1164, 05 1167, 05 1174, 05 1175, 05 1176, 05 1183, 05 1189, 05 1263, 05 1267, 05 1270, 05 1271, 05 1275, 05 1277, 06 1211, 06 1220, 06 1231, 06 1287, 06 1291, 06 1293, 06 1294.
United States Court of Appeals, District of Columbia Circuit, Dec. 20, 2011.

*Synopsis: States and others petitioned for review of Environmental Protection Agency (EPA) rules regulating mercury emissions from power plants. Native American tribes and tribal associations intervened on behalf of petitioners. The Court of Appeals, Rogers, Circuit Judge, 517 F.3d 574, granted petition and vacated rules. Tribal intervenors moved to recover their costs of litigation, including attorney's fees, from EPA.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that intervenors were entitled under to recover litigation costs, although their arguments were never reached by court in determining to vacate rules.
Ordered accordingly.
Brown, Circuit Judge, filed dissenting opinion.

 

October

Oneida Indian Nation of New York v. Madison County
665 F.3d 408
NARF Tribal Supreme Court Project Information
Docket Nos. 05–6408–cv (L), 06–5168–cv (CON), 06–5515–cv (CON)
United States Court of Appeals, Second Circuit, Oct. 20, 2011.

*Synopsis: Indian tribe brought actions against counties to enjoin them from assessing property tax on tribe-owned property, acquired on the open market, and from enforcing those taxes through tax sale or foreclosure. In first case, the United States District Court for the Northern District of New York, David N. Hurd, J., 145 F.Supp.2d 226,145 F.Supp.2d 268, determined that property not taxable, and county appealed. The Court of Appeals, B.D. Parker, Jr., Circuit Judge, 337 F.3d 139, vacated judgment, and certiorari was granted. The Supreme Court, Ginsberg, J., 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386, reversed and remanded. On remand parties cross-moved for summary judgment. The District Court entered summary judgment in favor of tribe, 401 F.Supp.2d 219, and denied county's motion for relief from judgment, 235 F.R.D. 559. County appealed. In second case, the District Court, 432 F.Supp.2d 285, entered summary judgment in favor of tribe. County appealed, and cases were consolidated on appeal. The Court of Appeals, Sack, Circuit Judge, 605 F.3d 149, affirmed, and certiorari was granted. Tribe declared that it waived its tribal sovereign immunity from suit. The Supreme Court, ––– U.S. ––––, 131 S.Ct. 704, 178 L.Ed.2d 587, vacated and remanded."

*Holdings: On remand, the Court of Appeals, Sack, Circuit Judge, held that:
(1) tribe irrevocably waived its claim to tribal sovereign immunity from enforcement of real property taxation through foreclosure by state, county, and local governments;
(2) tribe abandoned its claim on appeal that Nonintercourse Act's statutory restrictions on alienation of Indian land prohibited counties' tax foreclosures;
(3) vacatur of district court's grant of summary judgment to Indian tribe was proper, to the extent that judgment rested upon doctrine of tribal sovereign immunity and Nonintercourse Act;
(4) counties' notices of tax enforcement proceedings provided tribe with sufficient notice of its due-process-protected right to redeem its properties from foreclosure and enable it to take appropriate steps to protect property before redemption period expired;
(5) district court was required to decline supplemental jurisdiction over tribe's claim that property that tribe acquired on open market was "Indian reservation" property under New York law and thus was exempt from taxation; and
(6) counties forfeited their arguments on appeal in opposition to tribe's claim that it was entitled on grounds of equity to declaratory judgment that it did not owe interest or penalties on taxes that accrued prior to Supreme Court's holding that overturned prior decisional law under which property purchased on open market was not subject to taxation on ground that tribe possessed sovereign authority over property.
Affirmed in part, reversed in part, vacated in part, and remanded with instructions.

Engage Learning, Inc. v. Salazar
660 F.3d 1346
No. 2011-1007.
United States Court of Appeals, Federal Circuit, October 5, 2011.

*Synopsis: Service provider submitted claim under Contract Disputes Act (CDA) for unpaid educational training and support services provided to schools run by Bureau of Indian Affairs. Bureau denied claim. Provider appealed to the Civilian Board of Contract Appeals, 2010 WL 2484235, Catherine B. Hyatt, Administrative Judge, which granted government's motion to dismiss for lack of subject matter jurisdiction. Provider appealed.

*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
(1) in a matter of first impression, service provider's allegations were sufficient to establish that denial of claim was "relative to" express contract with an executive agency, and thus Civilian Board of Contract Appeals had subject matter jurisdiction over provider's appeal of denial of claim;
(2) Civilian Board of Contract Appeals was not permitted to resolve genuine issues of fact as to whether service provider had contract with Bureau on motion to dismiss for lack of subject matter jurisdiction; but
(3) service provider failed to state claim for unpaid services on ground that services were rendered pursuant to contract authorized under No Child Left Behind Act.
Affirmed in part, vacated in part, and remanded.

New Mexico ex rel. Reynolds v. Gutierrez
Briefs from Turtletalk
2011 WL 4537776
No. 10–2258
United States Court of Appeals. Tench Circuit, October 3, 2011.

*Synopsis: (from the opinion) "This appeal arises out of the adjudication of water rights in the Nambe–Pojoaque–Tesuque river system (NPT), a tributary of the Rio Grande river in the State of New Mexico. Pro se Defendants–Appellants Joe and Bertha Gutierrez challenge the district court's order denying their motion to vacate a special master's determination that their priority objection was untimely. Because we lack jurisdiction, we DISMISS this appeal."

*Holdings: (not available)

September

Confederated Tribes and Bands of the Yakama Indian Nation v. Gregoire
Briefs from Turtletalk
2011 WL 4430858
No. 10–35776
United States Court of Appeals. Ninth Circuit, September 23, 2011.

*Synopsis: Yakama Indian tribes brought action against various Washington state officials, challenging state's cigarette excise tax as violating Indian tax immunity based on its purportedly making retailers on Indian lands liable for payment of tax for sales to non–Indians. The United States District Court for the Eastern District of Washington, Robert H. Whaley, Senior District Judge, 680 F.Supp.2d 1258, granted in part and denied in part defendants' summary judgment motion. Tribes appealed.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that legal incidence of tax did not fall upon Indian retailers, but instead fell on non–Indian purchasers.
Affirmed.

Red Earth LLC v. United States
Briefs from Turtletalk
2011 WL 4359919
Docket Nos. 10–3165–cv(L), 10–3191–cv(XAP), 10–3213–cv(XAP).
United States Court of Appeals. Second Circuit, September 20, 2011.

*Synopsis: (from the opinion) "Appeal from an order of the Western District of New York (Richard J. Arcara, Judge) granting a preliminary injunction to stay enforcement of provisions of the Prevent All Cigarette Trafficking Act (“PACT Act”) that require mail-order cigarette sellers to pay state excise taxes. The government argues that the district court erred in concluding that plaintiffs were likely to succeed on their claim that the PACT Act's provision requiring out-of-state tobacco sellers to pay state excise taxes regardless of their contact with that state violates due process. We affirm the district court's order granting the preliminary injunction. AFFIRMED."

*Holdings: not yet available

Related News Stories: Appeals court sides with Senecas (The Post-Journal ) 09/21/11

Samish Indian Nation v. United States
Briefs from Turtletalk
2011 WL 4359941
No. 2010-5067
United States Court of Appeals. Federal Circuit, September 20, 2011.

*Synopsis: (from the opinion) "The issues on appeal before this court are ones of statutory construction. We must decide whether certain claims are premised on money-mandating statutes and are therefore within the jurisdiction of the United States Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. s 1491(a), and the Indian Tucker Act, 28 U.S.C. s 1505. The Court of Federal Claims dismissed for lack of jurisdiction over the claims brought by the Samish Indian Nation ("Samish") because some of their allegations were not premised upon any statute that was money-mandating, and the allegations reliant on money-mandating statutes were limited by other statutes. We affirm the Court of Federal Claims' decision that it lacked jurisdiction over some of the Samish's allegations because the Tribal Priority Allocation ("TPA") system is not money-mandating. We conclude, however, that the trial court's ability to provide a monetary remedy under the State and Local Fiscal Assistance Act of 1972 ("Revenue Sharing Act") is not limited by operation of the Anti-Deficiency Act, 31 U.S.C. s 1341. We therefore reverse the trial court's dismissal of the Samish's Revenue Sharing Act allegations and remand for further proceedings consistent with this opinion."

*Holdings: not yet available

Related News Stories: Federal Circuit revives part of Samish Nation federal funds suit (Indianz.com) 09/21/11

Southern Ute Indian Tribe v. Sebelius
Briefs from Turtletalk
2011 WL 4348299
Nos. 09-2281, 09-2291.
United States Court of Appeals. Tenth Circuit, September 19, 2011.

*Synopsis: Indian tribe brought suit, under Indian Self-Determination and Education Assistance Act (ISDA), challenging declination of Department of Health and Human Services (HHS) to enter into self-determination contract with tribe for reservation health services, asserting claim under Administrative Procedure Act (APA), and seeking damages and injunctive relief. The United States District Court for the District of New Mexico, William P. Johnson, J., 497 F.Supp.2d 1245, granted tribe partial summary judgment as to self-determination contract and directed parties to draft form of injunctive relief, and subsequently issued second order in favor of HHS's approach as to contract start date and as to payment of contract support costs. Tribe appealed second order. The Court of Appeals, Henry, Chief Judge, 564 F.3d 1198, dismissed for lack of jurisdiction. On remand, the District Court issued a final order, directing the parties to enter a self-determination contract including HHS's proposed language regarding the contract start date and contract support costs, and denying Tribe's request for damages. Cross-appeals were taken.

*Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) HHS was not permitted to decline self-determination contract with tribe on basis that available appropriations were insufficient; and
(2) start date for self-determination contract was date that tribe assumed operation of clinic.
Affirmed in part and reversed in part.

Wells Fargo Bank, National Association v. Lake of the Torches Economic Development Corporation
Briefs from Turtletalk
658 F.3d 684
No. 10-2069
United States Court of Appeals. Seventh Circuit, Argued Oct. 20, 2010.
Decided Sept. 6, 2011.
Rehearing En Banc Denied Oct. 28, 2011.

*Synopsis: National bank brought action against tribal casino development corporation, alleging breach of a trust indenture. The United States District Court for the Western District of Wisconsin, Rudolph T. Randa, J., 677 F.Supp.2d 1056, entered an order dismissing action, and bank appeale

*Holdings: The Court of Appeals, Ripple, Circuit Judge, held that:
(1) as a matter of first impression, tribal casino development corporation was a citizen of a state for purposes of diversity statute, and
(2) trust indenture was void ab initio under Indian Gaming Regulatory Act (IGRA).
Affirmed in part, reversed in part, and remanded.

August

Miami Tribe of Oklahoma v. United States
Briefs from Turtletalk
2011 WL 3805923
No. 10-3060.
United States Court of Appeals. Tenth Circuit, August 30, 2011.

*Synopsis: (from the opinion) "This appeal requires us to consider whether the Bureau of Indian Affairs (BIA) properly exercised its discretion to reject a gift of property by a member of the Miami Tribe of Oklahoma to the tribe."

*Holdings: not yet available

Miranda v. Anchando
Briefs from Turtletalk
2011 WL 3607130
No. 10-15308.
United States Court of Appeals. Ninth Circuit, August 17, 2011.

To see the Ninth Circuit, February 6th amendment denying an en banc rehearing in Mirando v. Anchando please see our 2012 Court of Appeals

*Synopsis: Member of Indian tribe filed a petition for a writ of habeas corpus, challenging her tribal court conviction of eight criminal violations arising from a single criminal transaction. The United States District Court for the District of Arizona, Paul G. Rosenblatt, Senior District Judge, granted the petition. Respondents appealed.

*Holdings: The Court of Appeals, Sammartino, J., held that:
(1) respondents did not waive their right to appeal by filing untimely objections to magistrate judge's report and recommendation, and
(2) tribe member's sentence did not violate the Indian Civil Rights Act (ICRA).
Reversed.

Fond Du Lac Band of Lake Superior Chippewa v. Frans
2011 WL 3518182
No. 10-1236.
United States Court of Appeals. Eighth Circuit, August 12, 2011.

*Synopsis: Indian band sued the Commissioner of the Minnesota Department of Revenue to prevent taxation of the out-of-state pension income of band members. The United States District Court for the District of Minnesota, Paul A. Magnuson, J., entered judgment for the Commissioner, and band appealed.

*Holdings: The Court of Appeals, Benton, Circuit Judge, held that:
(1) taxation of the out-of-state pension income did not violate due process, and
(2) federal law did not preempt such taxation.
Affirmed.

Blue Lake Rancheria v. United States
2011 WL 3506092
No. 10-15519
United States Court of Appeals. Ninth Circuit, August 11, 2011.

*Synopsis: Indian tribe sought refund of Federal Unemployment Tax Act (FUTA) taxes paid by employee leasing company wholly owned by Tribe. The United States District Court for the Northern District of California, Samuel Conti, Senior Judge, 2010 WL 144989, granted summary judgment for government. Tribe appealed.

*Holdings: The Court of Appeals, Silverman, Circuit Judge, held that:
(1) services performed "in the employ of an Indian tribe" were excepted from definition of "employment" in FUTA only where tribe or its instrumentality was common-law employer of worker performing services and
(2) employee leasing company wholly owned by Indian tribe was common-law employer of its leased employees, and thus was not required to pay FUTA taxes with respect to those employees.
Reversed and remanded.

United States v. Poitra
Briefs from Turtle Talk Blog
Not yet available on Westlaw
No. 10-3480.
United States Court of Appeals. Eighth Circuit, August 10, 2011.

*Synopsis: (from the opinion) "A jury convicted Deven Poitra of one count of aggravated sexual abuse under 18 U.S.C. §§ 1153, 2241(c) and one count of failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), under 18 U.S.C. § 2250. Poitra appeals, challenging his conviction as well as the district court’s imposition of certain special conditions of supervised release. We affirm."

*Holdings: not yet available

K2 America Corporation v. Roland Oil and Gas, LLC
Briefs from Turtle Talk Blog
2011 WL 3374228
No. 10-35455.
United States Court of Appeals. Ninth Circuit, August 5, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Montana corporation brought action against defendant Montana limited liability company (LLC), asserting tort, contract, and state statutory claims, and seeking a constructive trust and declaratory judgment over an oil and gas lease located on allotted land that was held by the United States in trust for various Indian allottees. The United States District Court for the District of Montana, Keith Strong, United States Magistrate Judge, granted defendant's motion to dismiss for lack of subject matter jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals, Thomas, Circuit Judge, held that:
(1) statutory provision that limited certain states' jurisdiction over civil causes of action arising in Indian country did not confer subject matter jurisdiction on district court;
(2) complete preemption doctrine did not provide district court with jurisdiction; and
(3) action did not arise under federal law, although lease was subject to specific federal statutory and regulatory scheme.
Affirmed.

Jachetta v. United States
Briefs from Turtle Talk Blog
2011 WL 3250450
No. 10-35175.
United States Court of Appeals. Ninth Circuit, August 1, 2011.

*Synopsis: Native American granted allotment by Bureau of Land Management (BLM) brought action against BLM, State of Alaska, and pipeline service company, alleging inverse condemnation, injunctive relief, nuisance, breach of fiduciary duties, and civil rights violations. BLM and Alaska moved to dismiss on basis of sovereign immunity. The United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, granted motions. Native American appealed.

*Holdings: The Court of Appeals, Bybee, Circuit Judge, held that: (1) Federal Tort Claims Act (FTCA) did not provide waiver of immunity for causes of action for inverse condemnation, injunctive relief to prevent future unconstitutional takings, and violations of federal civil rights statutes; (2) FTCA could provide a waiver of sovereign immunity for nuisance and breach of fiduciary duty claims; (3) Eleventh Amendment barred Fifth Amendment inverse condemnation claim in federal court; and (4) Eleventh Amendment immunity exception for suits in which a plaintiff asserted a claim for return of his property did not apply.
Affirmed in part, reversed in part, and remanded.

July

Owen v. Weber
Briefs from Turtle Talk Blog
2011 WL 3112004
No. 10-3330.
United States Court of Appeals. Eighth Circuit, July 27, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Petitioner, a Native American who was convicted in state court of first degree murder and aggravated assault, 729 N.W.2d 356, sought federal habeas relief. The United States District Court for the District of South Dakota, Karen E. Schreier, J., denied petition, and petitioner appealed.

*Holdings: The Court of Appeals held that tribal housing complex at which petitioner stabbed two victims was not a "dependent Indian community," in determining whether resulting murder and assault charges were within federal courts' exclusive jurisdiction.
Affirmed.

Ute Mountain Ute Tribe v. Rodriguez
Briefs from Turtle Talk Blog
660 F.3d 1177
No. 09-2276
United States Court of Appeals. Tenth Circuit, July 27, 2011.

*Synopsis: Indian tribe filed complaint against New Mexico's Secretary of Taxation and Revenue Department alleging that imposition of state taxes on their land and on oil and gas production equipment violated tribal members' constitutional rights. The United States District Court for the District of New Mexico, James A. Parker, Senior District Judge, 2009 WL 7809263, enjoined State of New Mexico from further imposing taxes on non-Indian lessees operating on Ute Reservation. Defendant appealed.

*Holdings:The Court of Appeals, Holmes, Circuit Judge, held that federal law did not preempt New Mexico's assertion of jurisdiction to tax non-Indians' severance of oil and gas on Ute Mountain Reservation in New Mexico.

Reversed and remanded.

United States v. Shavanaux
Briefs from Turtle Talk Blog
2011 WL 3087015
No. 10-4178.
United States Court of Appeals. Tenth Circuit, July 26, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Defendant moved to dismiss indictment against him for domestic assault by a habitual offender. The United States District Court for the District of Utah, Tena Campbell, Chief Judge, 2010 WL 4038839, granted motion. Government appealed.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) use of defendant's uncounselled tribal court convictions did not violate Sixth Amendment right to counsel;
(2) defendant's tribal convictions and their subsequent use for indictment did not violate Due Process Clause of the Fifth Amendment; and
(3) statute governing domestic assault by a habitual offender did not violate equal protection.
Reversed and remanded.

United States v. Newell
2011 WL 2675362
Nos. 09-1590, 09-1614.
United States Court of Appeals. First Circuit, July 11, 2011.

*Synopsis: Native American defendants were convicted in the United States District Court for the District of Maine, 578 F.Supp.2d 207, George Z. Singal, J., of conspiracy to defraud United States, among other offenses, and they appealed.

*Holdings: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) district court had jurisdiction over conspiracy charges;
(2) evidence was sufficient to sustain convictions for conspiracy to defraud; and
(3) evidence was insufficient to sustain conviction for making materially false statements.
Affirmed in part, vacated in part, and remanded.

Related News Stories: Federal appeals court upholds all but one conviction against Passamaquoddy embezzlers (Bangor Daily News) 07/12/11.

United States v. Drapeau
644 F.3d 64
No. 10-15519
United States Court of Appeals. Eighth Circuit, July 8, 2011.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Roberto A. Lange, J., of assaulting, resisting, or impeding a federal officer resulting in bodily injury. Defendant appealed.

*Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) defendant waived claim that the officer-victim was unauthorized to enforce tribal law;
(2) evidence was sufficient to support jury's finding that officer was engaged in the performance of his duties at time of assault;
(3) evidence was sufficient to support finding that defendant did not act in self-defense;
(4) evidence of officer's reputation for aggression and unlawfulness was inadmissible;
(5) written sentencing judgment was consistent with the court's oral statement at sentencing; and
(6) there was no plain error in district court court's statement requiring that defendant comply with the "standard conditions" of supervised release.
Affirmed.

United States v. Smith
2011 WL 2670096
No. 09-35127.
United States Court of Appeals. Ninth Circuit, July 8, 2011.

*Synopsis: (from the opinion) "Ronnie Lynn Smith appeals the district court's denial of his motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. We affirm. Indian status. Smith was convicted of assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153 for the stabbing of Lee Harrison Tuttle, an Indian person. To convict Smith under § 1153, the jury was required to find beyond a reasonable doubt that Smith was an Indian. See 18 U.S.C. § 1153(a) (subjecting “[a]ny Indian” who commits one of 14 major crimes to the criminal laws and penalties applicable in areas of exclusive federal jurisdiction). Smith argues under United States v. Bruce, 394 F.3d 1215 (9th Cir.2005), United States v. Cruz, 554 F.3d 840 (9th Cir.2009), and United States v. Maggi, 598 F.3d 1073 (9th Cir.2010), that the government presented insufficient evidence of his Indian status. We disagree."

*Holdings: (not yet available)

United States v. Cavanaugh
2011 WL 2623314
No. 10-1154.
United States Court of Appeals. Eighth Circuit, July 6, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Defendant was charged with domestic assault by habitual offender, base don prior convictions in Native–american tribal courts. The United States District Court for the District of North Dakota, Ralph R. Erickson, Chief Judge, 680 F.Supp.2d 1062, dismissed indictment. Government appealed.

*Holdings: The Court of Appeals, Melloy, Circuit Judge, held that, as matter of first impression defendant's uncounselled prior convictions in tribal court could be used to enhance federal charge.
Reversed and remanded.
Bye, Circuit Judge, dissented and filed opinion.

June

Texas v. Ysleta Del Sur Pueblo
2011 WL 2583615
No. 10-50804.
United States Court of Appeals. Fifth Circuit, June 30, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) "Defendant-Appellant Ysleta del Sur Pueblo has been locked in litigation with the State of Texas for many years over gaming activities conducted at the Tribe’s casino. In this appeal — the third in a series of related appeals spanning almost twenty years — the Tribe contests a contempt order issued by the district court. The Tribe asserts that the contempt order is improper because (1) it is criminal in nature, but the district court treated it as a civil contempt order, and (2) the district court exceeded its authority when it granted state agents monthly access to the Tribe’s gaming records. Disagreeing with the Tribe and concluding that the contempt order was properly issued and is valid, we affirm that order and dismiss the Tribe’s appeal."

*Holdings: (not yet available)

Water Wheel Camp Recreational Area, Inc. v. Larance
2011 WL 2279188
Nos. 09-17349, 09-17357.
United States Court of Appeals, Ninth Circuit, June 10, 2011

*Synopsis: (From the Opinion) Non-Indian closely held corporation and its non-Indian owner filed a complaint seeking declaratory and injunctive relief against a tribal court's exercise of jurisdiction over them in an unlawful detainer action for breach of a lease of tribal lands and trespass. The United States District Court for the District of Arizona, David G. Campbell, J., 2009 WL 3089216, entered jurisdictional rulings from which both sides appealed.

*Holdings: (From the Opinion) The Court of Appeals held that tribe had adjudicative jurisdiction over both non-Indian closely held corporation and its non-Indian owner.
Judgment affirmed in part and reversed in part; order vacated and remanded.

Related News Story: Ninth Circuit roundly affirms tribal court jurisdiction in Water Wheel case (Turtle Talk) 06/10/11

United States v. LaBuff
Briefs from Turtletalk
2011 WL 4840449
No. 10-30274
United States Court of Appeals. Ninth Circuit, June 8, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) "The Major Crimes Act, 18 U.S.C. s 1153, provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country. We previously have noted that determining who is an Indian under s 1153 is not easy, as the statute does not define the term "Indian." United States v. Maggi, 598 F.3d 1073, 1075 (9th Cir.2010) (citing Felix S. Cohen's Handbook of Federal Indian Law at 24 (Rennard Strickland et al. ed., 1982)). Our circuit, however, has developed a specific framework for determining whether a person can be prosecuted by the federal government under s 1153. To meet its burden, the government must prove both that the defendant has a sufficient "degree of Indian blood" and has "tribal or government recognition as an Indian." United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005) (internal quotations omitted).
Gentry Carl LaBuff was charged with robbery and aiding and abetting robbery in Indian country in violation of 18 U.S.C. ss 1153(a) and 2111. A jury convicted LaBuff of these charges following a two-day trial. On appeal, LaBuff contends that the government did not present sufficient evidence to establish that he is an "Indian" for purposes of prosecution under s 1153. We disagree and conclude that, in light of all the evidence presented at trial, a reasonable trier of fact could have found that LaBuff is an Indian. We therefore affirm his conviction. "

*Holdings: (not yet available)

 

May

Crowe & Dunlevy, P.C. v. Stidham
640 F.3d 1140
No. 09-5071
United States Court of Appeals, Tenth Circuit, May 27, 2011

*Synopsis: (From the Opinion) "The present case stems from Crowe’s representation of the Thlopthlocco in the Muscogee (Creek) Nation District Court (“Muscogee District Court”) in 2007, in a case alleging that Nathan Anderson, then a member of the Tholoptholocco 1 According to the Muscogee District Court in Thlopthlocco Tribal Town v. Tomah, 8 Okla. Trib. 451, 2004 WL 5744828, at *1 (Muscogee (Cr.) D. Ct. 2004), “prior to the filing of [that] lawsuit, the Thlopthlocco [had] never authorized the Muscogee (Creek) Nation to exercise jurisdiction over Thlopthlocco matters.” Business Committee, had attempted a coup d’ etat, declared himself the only valid leader, and purported to appoint a new government. The Thlopthlocco asserted that Anderson and his allies (collectively, the “Anderson defendants”) had interfered with the Thlopthlocco’s business interests by, among other things, accessing the Thlopthlocco’s bank accounts, issuing regulations on tribal letterhead, and meddling with the Thlopthlocco’s contractual relationships with various third-party service providers. The Thlopthlocco sought both declaratory and injunctive relief."

*Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) Court of Appeals lacked jurisdiction to review district court's determination that tribal judiciary was not required party;
(2) law firm's consensual relationship with tribe based on membership in tribe's bar association and practice before tribal court did not provide tribal court with jurisdiction to order law firm to return fees;
(3) in a matter of first impression, Ex parte Young doctrine applied to tribal sovereign immunity;
(4) Ex parte Young permitted firm's action against tribal court judge; and
(5) firm demonstrated irreparable harm as a result of lost attorney's fees in the absence of preliminary injunction.
Affirmed

Hollywood Mobile Estates Limited v. Seminole Tribe of Florida
2011 WL 1938427
No. 09-15336 D.C. Docket No. 08-61048-CV-WPD.
United States Court of Appeals, Eleventh Circuit, May 23, 2011

*Synopsis: Lessee of real property owned by Native American tribe brought action against the tribe and the Secretary of the Interior, seeking a preliminary injunction to enjoin tribe from repossessing the property. After the tribe actually repossessed the property, the United States District Court for the Southern District of Florida, No. 08-61048-CV-WPD, William P. Dimitrouleas, J., dismissed the tribe, granted lessee's lender's motion to intervene, denied the lessee's motion for leave to amend complaint, and dismissed the action for failure to state a claim. Lessee and lender appealed.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) lessee lacked constitutional standing to bring action against the Secretary of the Interior;
(2) amended complaint against Secretary was required to be construed as a request for a mandatory injunction under the Administrative Procedure Act (APA); and
(3) lessee lacked prudential standing to bring action against Secretary.
Affirmed in part, vacated in part, and remanded.

Blatchford v. Alaska Native Tribal Health Consortium
645 F.3d 1089
No. 10-35785
United States Court of Appeals. Ninth Circuit, May 19, 2011.

*Synopsis: Former patient brought state court action against Alaska Native health consortium, challenging lien imposed by consortium against any funds received by patient from third parties related to injuries for which she was treated. Action was removed. The United States District Court for the District of Alaska, Timothy Mark Burgess, J., granted summary judgment in favor of consortium. Patient appealed.

*Holdings: The Court of Appeals, Graber, Circuit Judge, held that Federal Health Services Lien statute was inapplicable to patient.
Reversed and remanded.

United States v. Genschow
2011 WL 1885849
No. 09-1946
United States Court of Appeals, Sixth Circuit, May 19, 2011

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Michigan, Robert Holmes Bell, J., of destroying trees on a reservation and stealing tribal property for his own use. Defendant appealed.

*Holdings:
(1) defendant's refusal to join other members of his Native-American band in forming Native-American community did not continue existence of band to be a federally recognized tribe;
(2) challenge as not moot to district court's refusal to grant him an acceptance of responsibility reduction;
(3) district court did not clearly err in denying defendant an acceptance of responsibility reduction; and
(4) order of restitution was not an abuse of discretion.
 Affirmed.

Seneca Nation of Indians v. Cuomo
2011 WL 1745008
Nos. 10-4265(L), 10-4272(con), 10-4598(con), 10-4758(con), 10-4477(XAP), 10-4976(XAP), 10-4981(XAP).
United States Court of Appeals, Second Circuit, May 9, 2011

*Synopsis: Indian tribes brought actions to enjoin amendments to New York's tax law designed to tax on-reservation cigarette sales to non-member purchasers. The United States District Court for the Western District of New York, Arcara, J., 752 F.Supp.2d 320, 2010 WL 4027796, denied two tribes' motions for preliminary injunction, and tribes appealed. The United States District Court for the Northern District of New York, Hurd, J., 2010 WL 4053080, granted another tribe's motion for preliminary injunction, and state appealed. Appeals were consolidated.

*Holdings: The Court of Appeals, Wesley, Circuit Judge, held that:
(1) to prevail on merits of their claim that law requiring wholesalers to prepay cigarette tax and affix tax stamps on all cigarette packs imposed categorically impermissible direct tax on tribal retailers, and
(2) tribes were not likely to prevail on merits of their claim that law providing means for tribes to obtain limited quantity of tax-exempt cigarettes failed to adequately ensure members' access to tax-free cigarettes and threatened tribal self-government.
Affirmed in part, vacated in part, and remanded.

Ramah Navajo Chapter; Oglala Sioux Tribe; Pueblo of Zuni v. Salazar
Briefs from Turtle Talk Blog
2011 WL 1746138
No. 08-2262
United States Court of Appeals, Tenth Circuit, May 9, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) We are faced with an apparent contradiction. Pursuant to the Indian Self- Determination and Education Assistance Act (“ISDA”), the United States enters into selfdetermination contracts with Indian tribes and tribal organizations “for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law.” 25 U.S.C. § 450b(j). These agreements include contract support costs which are the “reasonable costs for activities that must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management,” but would not be paid by the Secretary of the Interior if the federal government operated the contracted program directly. § 450j-1(a)(2). Congress has mandated that all self-determination contracts provide full funding of CSCs, see § 450j-1(g), but has nevertheless failed to appropriate funds sufficient to pay all CSCs every year since 1994, instead capping appropriations at a level well below the sum total of CSCs... These funding shortfalls have threatened tribal programs designed to fulfill the congressionally mandated goal of the ISDA to “enhance the progress of Indian people and their communities.” 25 U.S.C. § 450(a)(1). Contracts for programs absolutely essential to self-government, such as law enforcement, economic development, and natural resource management, have become “unworkable” in the words of a tribal representative. As a result, several tribes and tribal organizations brought suit seeking to collect the promised, but unappropriated, CSCs.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that although amount of lump sum appropriation was insufficient to fund all ISDA contracts, “subject to the availability of appropriations” clause of ISDA was satisfied with respect to certain ISDA contracts because Congress appropriated enough funds to pay CSCs on any individual contract. Reversed and remanded.

Amador County v. Salazar
640 F.3d 373
No. 10-5240.
United States Court of Appeals, District of Columbia Circuit, May 6, 2011

*Synopsis: County brought action against Secretary of the Interior, challenging Secretary's "no-action" approval of a compact between Indian tribe and state of California allowing gaming on tribal land. The United States District Court for the District of Columbia, 592 F.Supp.2d 101, and 723 F.Supp.2d 67, determined that county lacked standing, and dismissed the suit, and county appealed.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) county had standing to challenge "no-action" approval, and
(2) Administrative Procedure Act (APA) did not preclude judicial review of "no-action" approval. Reversed and remanded.

United States v. Jacobs
638 F.3d 567
No. 10-2705.
United States Court of Appeals, Eighth Circuit, May 2, 2011

*Synopsis: Defendant pleaded guilty, pursuant to a written plea agreement in the United States District Court for the District of South Dakota, Jeffrey L. Viken, J., to assault with a dangerous weapon in Indian Country. He appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that federal courts had subject matter jurisdiction regardless of any jurisdictional requirements imposed by Fort Laramie Treaty of 1868. Affirmed.

April

San Carlos Apache Tribe v. United States
639 F.3d 1346
No. 2010-5102.
United States Court of Appeals, Federal Circuit, April 25, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: San Carlos Apache Tribe filed action against United States alleging breach of fiduciary duty relating to water rights in Gila River. The United States Court of Federal Claims, Robert H. Hodges, Jr., Senior Judge, dismissed tribe's monetary damages claim. Tribe appealed.

*Holdings: The Court of Appeals, Lourie, Circuit Judge, held that Tribe should have known that terms of consent decree precluded it from seeking additional Gila River water rights upon entry of decree.
Affirmed.

United States v. Langford
2011 WL 1368548
No. 10-6070.
United States Court of Appeals, Tenth Circuit, April 11, 2011

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma, 2009 WL 523184, for being a spectator at a cockfight, and he appealed.

*Holdings: In resolving a question of first impression, the Court of Appeals, Lucero, Circuit Judge, held that government's failure to allege or present evidence with respect to defendant's Indian/non–Indian status constituted plain error, and since defendant was a non-Indian and there was no evidence that he victimized any Indian, his conviction for being a spectator at a cockfight held on Indian land affected the fairness, integrity, or public reputation of judicial proceedings. Vacated and remanded.

Karuk Tribe of California v. United States Forest Service
640 F.3d 979
No. 05-16801.
United States Court of Appeals, Ninth Circuit, April 7, 2011

*Synopsis: Indian tribe brought action under National Forest Management Act (NFMA), National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) alleging improper management of suction dredge and other mining operations in waterways and riparian areas within Klamath National Forest. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 379 F.Supp.2d 1071, granted summary judgment for defendants. Plaintiff appealed.

*Holdings: The Court of Appeals, Milan D. Smith, Jr., Circuit Judge, held that:
(1) internal decision of United States Forest Service (USFS) to not require plan of operations after receiving Notice of Intent (NOI) from miners did not constitute “agency action” under ESA and
(2) ESA consultation obligation was not triggered by park ranger's discretionary authority to provide advice to proposed miner about what additional information was needed for him to evaluate NOI and how miner could alter his operations to avoid filing plan of operations.
Affirmed.

Nielson v. Ketchum
640 F.3d 1117
Nos. 09-4113, 09-4129.
United States Court of Appeals, Tenth Circuit, April 5, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Biological mother brought action under Indian Child Welfare Act (ICWA) against the adoptive parents of child, seeking the invalidation of her termination of her parental rights over child on the ground that ICWA procedural requirements were not met because biological mother consented to termination of her parental rights less than ten days after child's birth. Indian tribe intervened. Biological mother and adoptive parents moved for summary judgment. The United States District Court for the District of Utah granted biological mother's motion in part and denied adoptive parents' motion. Adoptive parents appealed.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that adopted child was not a “member of an Indian tribe” at time of adoption and thus was not an “Indian child” under ICWA, and termination of parental rights was not therefore invalid.
Reversed.

March

United States v. Wilgus
638 F.3d 1274
No. 09-4046.
United States Court of Appeals, Tenth Circuit, March 29, 2011

*Synopsis: (from the opinion) This case requires us to navigate the treacherous terrain at the intersection of the federal government's obligations, on the one hand, to refrain from imposing burdens on the individual's practice of religion, and, on the other, to protect key aspects of our natural heritage and preserve the culture of Native American tribes. Defendant-Appellee Samuel Ray Wilgus was arrested in June of 1998 for possessing 141 feathers of bald and golden eagles. The Bald and Golden Eagle Protection Act ("Eagle Act"), 16 U.S.C. s 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. s 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. s 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) federal government had compelling interest in protecting eagles;
(2) federal government had compelling interest not in preserving Native American religion generally, but in protecting the religion of federally recognized Indian tribes; and
(3) government's compelling interests were balanced and advanced in the least restrictive manner by criminalization of possession of eagle feathers without a permit that was available only to members of recognized tribes.
Reversed.

*Related News Stories:• Only Indians can use eagle feathers for religious purposes, court rules (NY Times) 03/30/11. Court overturns case that allowed non-Indians to possess eagle feathers (The Denver Post) 03/29/2011

Wapato Heritage, L.L.C. v. United States
637 F.3d 1033
No. 09-36150.
United States Court of Appeals, Ninth Circuit, March 22, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) Plaintiff-Appellant Wapato Heritage, L.L.C., appeals the district court's order denying its motion for summary judgment and motion for reconsideration, and granting Defendants-Appellees' motion for summary judgment and motion to dismiss. We address whether Wapato's predecessor-in-interest, William Wapato Evans, Jr., effectively exercised his option to renew a lease agreement (Lease) between Evans and certain Native American landowners covering real property known as Moses Allotment No. 8. The district court ruled that Evans did not comply with the Lease's requirements that he notify all the Landowners that he intended to renew the Lease. Wapato, the current holder of all the Lessee's rights under the Lease, timely appealed. We 28 U.S.C. s 1291.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that:
(1) BIA was not the lessor, and (2) lessee's notice to BIA alone was thus ineffective to exercise option to renew lease.
Affirmed.

United States v. Tony
637 F.3d 1153
No. 09-2264.
United States Court of Appeals, Ninth Circuit, March 17, 2011

*Synopsis: Defendant convicted of two counts of assault resulting in serious bodily injury and one count of aggravated burglary in Indian Country, affirmed at 195 Fed.Appx. 789, moved pro se to vacate sentence. The United States District Court for the District of New Mexico denied relief, and defendant requested a certificate of appealability (COA).

*Holdings: The Court of Appeals, O'Brien, Circuit Judge held that:
(1) defendant's claim that his crime did not occur in Indian Country did not touch on subject-matter jurisdiction and was thus waived when he failed to raise it on direct appeal, and
(2) defendant's Double Jeopardy claim would not be considered given his failure to raise the issue during his trial proceedings or on direct appeal.
COA denied and matter dismissed.

Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony v. City of Los Angeles Briefs from Turtle Talk Blog
637 F.3d 993
No. 07-16727.
United States Court of Appeals, Ninth Circuit, March 14, 2011

*Synopsis: Federally recognized Indian tribe brought action against city, seeking order restoring tribe to possession of land previously acquired by city in deal with United States. The United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, 2007 WL 521403, dismissed on grounds that United States was required party that could not be joined, and, 2007 WL 2202242, certified order for immediate appeal. Tribe requested interlocutory appeal, which was granted.

*Holdings: The Court of Appeals, Graber, Circuit Judge, held that:
(1) United States was required party in action;
(2) tribe's failure to assert its claim before statute of limitations under Indian Claims Commission Act (ICCA) expired deprived district court of jurisdiction over tribe's claim against United States; and (3) action could not, in equity and good conscience, proceed without United States, warranting dismissal.
Affirmed.

February

Hollywood Mobile Estates Limited v. Cypress
2011 WL 661370
No. 10-10304.
United States Court of Appeals, Eleventh Circuit, February 24, 2011

*Synopsis:Limited partnership brought action against various officials of a Native American tribe, seeking an injunction compelling them to restore possession of certain leased premises and for relief compelling tribal officials to return rents collected from subleases. The United States District Court for the Southern District of Florida dismissed the lawsuit for lack of jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals held that:
(1) request for restitutionary relief compelling tribal officials to return collected rents was not prospective in nature, so as to come within sovereign immunity doctrine, and
(2) request for injunction was a request for prospective relief, but did not implicate special sovereignty interests, so as to warrant application of sovereign immunity.
Affirmed in part, reversed in part, and remanded.

United States v. Shillingstad
632 F.3d 1031
No. 10-1283.
United States Court of Appeals, Eighth Circuit, February 22, 2011

*Synopsis: Defendant was convicted, by a jury in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of assault with a dangerous weapon and assault resulting in serious bodily injury in Indian country. He appealed.

*Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) district court did not abuse its discretion in admitting evidence of defendant's prior tribal convictions for assaulting his victim;
(2) any error in permitting government to question defendant's mother about his prior offenses against her was harmless; and
(3) sentencing court did not err in departing upward on basis that defendant's criminal history category underrepresented the likelihood he would commit further crimes of violence and substantially underrepresented his actual criminal history.
Affirmed.

Gordon v. Holder
632 F.3d 722
No. 10-5227.
United States Court of Appeals, District of Columbia Circuit, February 18, 2011

*Synopsis: Native American delivery seller of tobacco products brought action against United States Attorney General, challenging constitutionality of Prevent All Cigarette Trafficking Act (PACT Act) under both the Due Process and Equal Protection Clauses. The United States District Court for the District of Columbia denied seller's motion for temporary restraining order (TRO) and preliminary injunction (PI), and seller appealed.

*Holdings: The Court of Appeals, Brown, Circuit Judge, held that:
(1) late hour of seller's filing of motion for TRO and PI, on its own, was impermissible basis for denying motion, and
(2) remand to district court was required for determination of preliminary injunction factors. Remanded.

Klamath Irrigation Dist. v. United States
635 F.3d 505
No. 2007-5115.
United States Court of Appeals, Federal Circuit, February 17, 2011

*Synopsis: Irrigation districts and agricultural landowners brought consolidated suits against United States government, alleging that Bureau of Reclamation‘s temporary reductions of irrigation water breached contracts for supply of water from Klamath River Basin reclamation project, breached interstate compact, and violated Fifth Amendment as uncompensated taking of property. The United States Court of Federal Claims, Francis M. Allegra, J., 75 Fed.Cl. 677, granted partial summary judgment in favor of government. Plaintiffs appealed. Questions relating to plaintiffs' claims were certified to Oregon Supreme Court, 532 F.3d 1376.

*Holdings: The Court of Appeals, Schall, Circuit Judge, held that:
(1) plaintiffs' takings and compact claims would be remanded for determination of outstanding property interest questions, and
(2) impossibility of performance was proper factor to be taken into account in considering applicability of sovereign acts doctrine.
Vacated and remanded.

*Related News Stories: Federal Circuit reinstates and remands Klamath Irrigation Dist. v. United States (Turtle Talk Blog) 02/17/11

Amerind Risk Management Corp. v. Myrna Malaterre
Briefs from Turtle Talk Blog
Commentaries from Turtle Talk Blog
633 F.3d 680
No. 08-3949.
United States Court of Appeals, Eighth Circuit, February 15, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Administrator of self-insurance risk pool that insured federally subsidized Native-American housing owned and operated by tribes brought action against tribe members, seeking declaratory judgment that administrator was not subject to direct action, and seeking to enjoin tribe members from proceeding with underlying wrongful death and personal injury action in tribal court against administrator. The United States District Court for the District of North Dakota, Daniel L. Hovland, Chief Judge, granted summary judgment in favor of tribe members. Administrator appealed.

*Holdings: The Court of Appeals, Beam, Circuit Judge, held that:
(1) administrator was entitled to tribal sovereign immunity, and
(2) administrator did not waive that immunity.
Reversed and remanded.

January

Nanomantube v. Kickapoo Tribe
631 F.3d 1150
No. 09-3347.
United States Court of Appeals, Tenth Circuit, January 31, 2011

*Synopsis: Former tribal employee brought Title VII employment discrimination action against Indian tribe, as well as against tribe's governing body and unincorporated tribal casino at which employee worked. The United States District Court for the District of Kansas dismissed action based on tribal sovereign immunity, and employee appealed.

*Holdings: The Court of Appeals, McKay, Circuit Judge, held that:
(1) Congress did not abrogate tribal immunity with regard to Title VII, and
(2) tribe's agreement to comply with Title VII, contained in single sentence in casino employee handbook, did not unequivocally waive tribal sovereign immunity.
Affirmed.

El Paso Natural Gas Co. v. United States
632 F.3d 1272
Nos. 10-5080, 10-5090.
United States Court of Appeals, District of Columbia Circuit, January 28, 2011

*Synopsis: Energy company brought action against United States Department of Energy (DOE), among other federal defendants, alleging violations of Administrative Procedure Act (APA) and Resource Conservation and Recovery Act (RCRA), in connection with certain properties alleged to be contaminated with residual radioactive waste. The United States District Court for the District of Columbia, Richard J. Leon, J., 605 F.Supp.2d 224, dismissed action for want of subject matter jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) claim was not subject to judicial review and
(2) canon of statutory interpretation directing courts to liberally construe statutes in favor of Native Americans did not apply to Uranium Mill Tailings Radiation Control Act (UMTRCA).
Affirmed.

Patchak v. Salazar
Briefs from Turtle Talk Blog
632 F.3d 702
No. 09-5324
United States Court of Appeals, D.C. Circuit, January 21, 2011

*Synopsis: Resident of rural community brought action challenging Secretary of the Interior's decision to take a parcel of land into trust on behalf of Indian tribe for casino use. The United States District Court for the District of Columbia, Richard J. Leon, J., 646 F.Supp.2d 72, dismissed the complaint. Resident appealed.

*Holdings: The Court of Appeals, Randolph, Senior Circuit Judge, held that:
(1) resident had Article III standing to sue;
(2) resident had prudential standing to sue; and
(3) Indian lands exception to the Quiet Title Act's waiver of sovereign immunity did not apply so as to negate the Administrative Procedure Act's waiver of sovereign immunity.
Reversed and remanded.

United States v. DeCoteau
630 F.3d 1091
No. 10-2122.
United States Court of Appeals, Eighth Circuit, January 12, 2011

*Synopsis: Defendant was convicted of aggravated sexual abuse of a minor in Indian Country and abusive sexual contact in Indian country after the United States District Court for the District of North Dakota, Daniel L. Hovland, J., 648 F.Supp.2d 1145, ruled that he was competent to stand trial, and defendant appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) district court did not abuse its discretion in determining that defendant was competent to stand trial;
(2) evidence was sufficient to support conviction for aggravated sexual abuse of a minor; and
(3) court was not authorized to impose a sentence below the 30-year statutory mandatory minimum.
Affirmed.

Navajo Nation v. United States
631 F.3d 1268
No. 2010-5036.
United States Court of Appeals, Federal Claims, January 10, 2011

*Synopsis: Indian tribe brought action against United States, alleging a Fifth Amendment takings claim arising out of requirement that it obtain written approval from second tribe before developing land within a portion of the reservation. The United States Court of Federal Claims, Eric G. Bruggink, Senior District Judge, dismissed, and tribe appealed.

*Holdings: The Court of Appeals, Mayer, Circuit Judge, held that six-year statute of limitations accrued when Congress precluded tribe from undertaking any development unless second tribe gave written consent.
Vacated and remanded with instructions.

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