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December

Vann v. U.S. Department of the Interior
701 F.3d 927
No. 11–5322.
United States Court of Appeals, District of Columbia Circuit, December 14, 2012.

*Synopsis: Freedmen, as descendants of former slaves of Cherokee Nation, sued Secretary of Department of Interior (DOI), tribe, and principal chief in his official capacity for allegedly violating treaty freeing Cherokee slaves and their descendants and guaranteeing them all rights of native Cherokees including right to tribal membership and right to vote in tribal elections. The United States District Court for the District of Columbia, Henry H. Kennedy, Jr., J., 2011 WL 4953030, granted defendants' motion to dismiss on grounds that tribe had sovereign immunity and was required party whose interests could not be adequately represented by principal chief. Freedmen appealed.

*Holdings: The Court of Appeals, Kavanaugh, Circuit Judge, held that suit could proceed against chief in his official capacity without tribe as party.
Reversed and remanded.

Related News Stories: Court denies Cherokee appeal on Freedmen ruling (Native American Times) 3/13/13

November

New York v. Shinnecock Indian Nation
701 F.3d 101
No. 08–1194–cv.
United States Court of Appeals, Second Circuit, November 28, 2012.

*Synopsis: (from the opinion) Following disposition of this appeal on June 25, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

*Holdings: (not available)

United States v. Wahchumwah
Briefs from Turtle Talk
704 F.3d 606
No. 11-30101.
United States Court of Appeals, Ninth Circuit, November 27, 2012.

*Synopsis: The opinion of the United States Court of Appeals, Ninth Circuit, in U.S. v. Wahchumwah, published in the advance sheet at this citation, 704 F.3d 606, was withdrawn from the bound volume because it was amended and superseded on denial of rehearing March 4, 2013. For superseding opinion, see 2013 WL 811610.

Desautel v. Dupris
Briefs from Turtle Talk
490 Fed.Appx. 914
No. 11-35926.
United States Court of Appeals, Ninth Circuit, November 26, 2012.

*Synopsis: (from the opinion) "Shawn Lawrence DesAutel, Tamara Desautel Davis and Tonia Rene Desautel, adopted members of the Colville Confederated Tribes, appeal pro se from the district court's judgment dismissing their action alleging that defendants violated their First, Fifth, Thirteenth, and Fourteenth Amendment rights during proceedings in which plaintiffs challenged their enrollment status before the Colville Tribal Courts."

*Holdings: (not yet available)

Valenzuela v. Silversmith
Briefs from Turtle Talk
699 F.3d 1199
No. 11–2212.
United States Court of Appeals, Tenth Circuit, November 14, 2012.

*Synopsis: Member of Indian tribe petitioned for writ of habeas corpus, seeking relief from tribal court convictions and his sentence. The United States District Court for the District of New Mexico dismissed petition. Petitioner appealed.

*Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) taking less burdensome course of disposing of appeal without addressing mootness issue was warranted;
(2) member was required to exhaust his tribal court remedies before filing his petition for writ of habeas corpus in federal court;
(3) member had tribal court remedies that he had to exhaust; and
(4) failure of member to file habeas petition in tribal court could not be excused from requirement to exhaust.
Affirmed.

Miller v. Wright
705 F.3d 919
No. 11-35850.
United States Court of Appeals, Ninth Circuit, November 13, 2012.
Amended January 14, 2013.

*Synopsis: Native American cigarette retailer and his customers brought action against Indian tribe, tribal chairman, and head of tribe's tax department alleging that imposition of cigarette sales taxes by tribe on non-Native-Americans in Indian country pursuant to agreement between State of Washington and tribe was illegal. The United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2011 WL 4712245, dismissed action for lack of subject matter jurisdiction in light of tribe's sovereign immunity. Plaintiffs appealed.

*Holdings: The Court of Appeals, Rawlinson, Circuit Judge, held that:
(1) tribe did not implicitly waive its sovereign immunity by entering into cigarette tax contract with State of Washington;
(2) tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures;
(3) tribal immunity was not preempted by federal antitrust laws;
(4) tribe's sovereign immunity extended to its officials;
(5)Ex Parte Young barred complaint to extent that plaintiffs sought monetary relief; and (6) res judicata barred action.
Affirmed.

Arctic Slope Native Ass'n, Ltd. v. Sebelius
699 F.3d 1289
No. 2011–1485.
United States Court of Appeals, Federal Circuit, November 9, 2012.

*Synopsis: Indian Self–Determination and Education Assistance Act (ISDA) contractor appealed from a decision of the Civilian Board of Contract Appeals, 2011 WL 2570533, dismissing its breach-of-contract claim under the Contract Disputes Act (CDA) as time-barred.

*Holdings: The Court of Appeals, Reyna, Circuit Judge, held that equitable tolling of statutory time limit for contractor's breach-of-contract claim under the Contract Disputes Act (CDA) was warranted.
Reversed and remanded.

October

United States v. Lebeau
Briefs from Turtle Talk
490 Fed. Appx. 831
No. 11-3428.
United States Court of Appeals, Eighth Circuit, October 31, 2012.

*Synopsis: Following imposition of revocation sentence, the United States District Court for the District of South Dakota, Karen E. Schreier, Chief Judge, reimposed special condition of supervised release. Defendant appealed.

*Holdings: The Court of Appeals held that reimposition of special condition of supervised release did not constitute plain error.
Affirmed.

Muscogee (Creek) Nation Division of Housing v. HUD
Briefs from Turtle Talk
698 F.3d 1276
No. 11-7040.
United States Court of Appeals, Tenth Circuit, October 30, 2012.

*Synopsis: Indian tribe brought action against Department of Housing and Urban Development (HUD) under Administrative Procedure Act (APA), challenging limitation of investment of grant money awarded under the Native American Housing Assistance and Self–Determination Act (NAHASDA) to a period of no longer than two years. The United States District Court for the Eastern District of Oklahoma, James H. Payne, J., 819 F.Supp.2d 1225, granted HUD's motion to dismiss. Tribe appealed.

*Holdings: The Court of Appeals, McKay, Circuit Judge, held that:
(1) HUD did not exceed its statutory authority by promulgating requirement that investments of block grant funds not exceed two years in length;
(2) court had subject matter jurisdiction to consider whether HUD was authorized to demand remittance of interest earned in violation of that requirement; and
(3) HUD's demand for remittance was consistent with federal law.
Affirmed.

Related News Stories: US Tenth Circuit Court of Appeals rules against Muscogee nation, HUD prevails in investment dispute (Indian Country Today) 11/3/12

United States v. Cook
698 F.3d 667
No. 12-1366.
United States Court of Appeals, Eighth Circuit, October 26, 2012.

*Synopsis: Defendant was convicted of conspiracy to possess with intent to distribute oxycodone and assault resulting in serious bodily injury, following entry of guilty plea separate proceedings in the United States District Court for the District of Minnesota, Joan N. Ericksen, J., and Donovan W. Frank, J., and was sentenced to 165 months' imprisonment for drug charge and 120 months' imprisonment for assault charge, to run concurrently. Defendant appealed sentence.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) trial court did not abuse its discretion in finding that defendant was not entitled to downward variance;
(2) trial court, during sentencing for drug charge, did not abuse its discretion in considering assault charge in denying defendant sentence reduction for substantial government assistance; and
(3) trial court did not abuse its discretion in imposing disparate sentences upon defendant and codefendant.
Affirmed.

Friends of the Everglades v. EPA
699 F.3d 1280
No. 08-13652
United States Court of Appeals, Eleventh Circuit, October 26, 2012.

*Synopsis: Environmental advocacy organizations, nine states, Canadian province, and Indian tribe petitioned for review of final rule issued by Environmental Protection Agency (EPA), 40 CFR PART 122, creating permanent exemption from Clean Water Act (CWA) permit requirements for pollutants discharged from transfers of waters of United States. Judicial Panel on Multidistrict Litigation (MDL) consolidated petitions, and state water management district and sugar company intervened to defend water-transfer rule.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) CWA jurisdictional provision governing effluent or other limitations did not apply;
(2) CWA jurisdictional provision governing issuance or denial of permits did not apply; and
(3) hypothetical jurisdiction could not be exercised.
Petitions dismissed.

United States v. Wilson
Briefs from Turtle Talk
699 F.3d 235
Docket No. 11-915.
United States Court of Appeals, Second Circuit, October 25, 2012.

*Synopsis: Defendant indicted for possession with intent to distribute 50 kilograms or more of marijuana moved to suppress evidence obtained in the search of his vehicle. The United States District Court for the Northern District of New York, David N. Hurd, J., 754 F.Supp.2d 450, granted the motion. The government appealed.

*Holdings: The Court of Appeals, Pooler, Circuit Judge, held that:
(1) officers had probable cause to stop defendant's vehicle;
(2) officer's failure to follow Immigration and Customs Enforcement (ICE) directive did not render stop unconstitutional; and
(3) warrantless search of defendant's vehicle was warranted under automobile exception.
Reversed and remanded.

Onondaga Nation v. New York
500 Fed.Appx. 87
No. 10-4273.
United States Court of Appeals, Second Circuit, October 19, 2012.

*Synopsis: Indian tribe brought action against State of New York to recover ancestral land. The United States District Court for the Northern District of New York, Kahn, J., 2010 WL 3806492, dismissed action. Tribe appealed.

*Holdings: The Court of Appeals held that equitable bar on recovery of ancestral land foreclosed tribe's claims.
Affirmed.

Northern Arapaho Tribe v. Harnsberger
Briefs from Turtle Talk
697 F.3d 1272
No. 09-8098.
United States Court of Appeals, Tenth Circuit, October 18, 2012.

*Synopsis: Northern Arapaho Tribe (NAT) brought action against state and county officials seeking injunction against state's imposition of certain vehicle and excise taxes on Indians living in purported Indian country. City intervened, and Eastern Shoshone Tribe (EST) and United States were joined as third-party defendants. The United States District Court for the District of Wyoming, 660 F.Supp.2d 1264, dismissed EST and United States as parties, and dismissed complaint. NAT appealed.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) EST was required party;
(2) EST's sovereign immunity prevented its joinder;
(3) district court did not abuse its discretion in dismissing action for failure to join EST as indispensable party; and
(4) dismissal was without prejudice.
Affirmed in part, vacated in part, and remanded.

Related News Story: US tenth circuit court upholds Wind River tax case dismissal (Indian Country Today) 10/27/12

Miccosukee Tribe of Indians of Florida v. United States
698 F.3d 1326
No. 11–14825.
United States Court of Appeals, Eleventh Circuit, October 15, 2012.

*Synopsis: Tribe petitioned to quash summons issued by Commissioner of Internal Revenue Service (IRS) to third-party financial institutions to determine whether tribe had complied with federal withholding requirements on grounds of sovereign immunity, improper purpose, relevance, bad faith, and overbreadth. The United States District Court for the Southern District of Florida, No. 1:10-cv-23507-ASG, Alan S. Gold, J., 730 F.Supp.2d 1344, and 2011 WL 3300164, denied petitions, and 2011 WL 5508802, denied tribe's motion to stay pending appeal. Tribe appealed.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) tribe could not rely on tribal sovereign immunity to quash summonses;
(2) summonses were issued for proper purpose; and
(3) tribe lacked standing to challenge third-party summons as overbroad.
Affirmed.

Related News Stories: IRS wins key legal battle as it seeks to collect millions in taxes from the Miccosukees (Miami Herald) 10/15/12

U.S. v. Jackson
697 F.3d 670
No. 11–3718.
United States Court of Appeals, Eighth Circuit, October 2, 2012.

*Synopsis: After his motion to dismiss the indictment was denied, Indian entered a conditional plea of guilty in the United States District Court for the District of Minnesota, Donovan W. Frank, J., 2011 WL 7395040, to assault with a dangerous weapon, and discharging a firearm during the commission of a crime of violence. Indian appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that record was insufficient to support ruling that reservation on which alleged assault occurred was not diminished by 1905 Act.
Vacated and remanded.

September

Native Village of Kivalina v. Exxonmobil Corporation
696 F.3d 849
No. 09–17490.
United States Court of Appeals, Ninth Circuit, September 21, 2012.

*Synopsis: Alaskan city located on tip of barrier reef and native Alaskan tribe, members of which resided in city, brought action for damages under federal common-law claim of public nuisance, and dependent civil conspiracy claim, against multiple oil, energy, and utility companies, alleging that companies' massive greenhouse gas emissions had resulted in global warming which in turn severely eroded land upon which city was situated. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 663 F.Supp.2d 863, granted companies' motions to dismiss for lack of subject matter jurisdiction. Plaintiffs appealed.

*Holdings: The Court of Appeals, Thomas, Circuit Judge, held that Clean Air Act (CAA) and agency action authorized thereunder displaced federal common law, precluding claim for public nuisance.
Affirmed.

Maxwell v. County of San Diego
697 F.3d 941
Nos. 10–56671, 10–56706.
United States Court of Appeals, Ninth Circuit, September 13, 2012.

*Synopsis: Shooting victim's family members filed § 1983 action alleging that sheriff's officers and tribal fire department and its paramedics unreasonably delayed in obtaining appropriate medical treatment for victim, resulting in her death, and that officers unreasonably seized family members and employed excessive force. The United States District Court for the Southern District of California, John A. Houston, J., denied officers' motion for summary judgment and dismissed claims against tribal defendants. Parties filed cross-appeals.

*Holdings: The Court of Appeals, Farris, Circuit Judge, held that:
(1) officers who prevented victim's ambulance from leaving crime scene were not entitled to qualified immunity;
(2) officers were not entitled to qualified immunity with regard to unreasonable seizure claim;
(3) summary judgment on qualified immunity grounds was not warranted with regard to excessive force claim;
(4) summary judgment in supervisors' favor on qualified immunity grounds was not warranted; and (5) paramedics for tribal fire department did not enjoy tribal sovereign immunity.
Affirmed in part, reversed in part, and remanded.

Gila River Indian Community v. U.S.
Briefs from Turtle Talk
697 F.3d 886
No. 11-15631.
United States Court of Appeals, Tenth Circuit, September 11, 2012.

*Synopsis: City and Indian tribe brought actions challenging Department of Interior's (DOI) decision to accept property in trust for benefit of another tribe. State legislative and executive branch leaders intervened as parties plaintiff, and other tribe intervened as party defendant. The United States District Court for the District of Arizona, David G. Campbell, J., 776 F.Supp.2d 977, granted summary judgment for the government, and city and other parties appealed.

*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) Gila Bend Indian Reservation Lands Replacement Act created a cap only on land held in trust for the tribe, not on total land acquisition by the tribe under the Act;
(2) Department of Interior's interpretation of Act so as to exclude parcel located on a county island fully surrounded by city land from city's corporate limits was reasonable; and
(3) Act was valid exercise of Congress's power under the Indian Commerce Clause.
Affirmed.

Related News Stories: 9th Circuit backs Tohono O'odham Nation land-into-trust bid (Indianz.com) 9/11/12

Gilmore v. Weatherford
694 F.3d 1160
No. 11-5025.
United States Court of Appeals, Tenth Circuit, September 4, 2012.

*Synopsis: Indian tribal members with restricted, undivided interests in mine tailings, or "chat," that was being sold and removed by other parties who also had interest in chat brought cause of action against these other parties, as well as against the Secretary of the Interior and several Bureau of Indian Affairs (BIA) officials, seeking to compel accounting, to obtain other equitable relief, and to recover on theory that private party defendants were guilty of conversion in removing/selling this chat without approval of the Secretary of the Interior. The United States District Court for the Northern District of Oklahoma, Claire V. Eagan, J., 748 F.Supp.2d 1299, dismissed claims against federal defendants based on plaintiffs' failure to exhaust their administrative remedies, and later ruled, 2010 WL 5462476, that it did not have federal question jurisdiction over plaintiffs' accounting and conversion claims against private parties. Plaintiffs appealed.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) doctrine of exhaustion of administrative remedies applies as matter of judicial discretion to common law claims; abrogating Otoe–Missouria Tribe v. Kempthorne, 2008 U.S. Dist. LEXIS 99548 (W.D.Okla. Dec. 10, 2008); Tonkawa Tribe of Indians of Oklahoma v. Kempthorne, 2009 U.S. Dist. LEXIS 21484 (W.D.Okla. Mar. 17, 2009); and Seminole Nation v. Salazar, 2009 U.S. Dist. LEXIS 27836 (E.D.Okla. Mar. 31, 2009);
(2) district court did not abuse its discretion in requiring tribal members to first exhaust their administrative remedies, as prerequisite to pursuing claims against federal defendants in district court;
(3) state law accounting claim asserted by Indian tribal members against private parties who also had interest in chat was not claim over which district court could exercise federal question jurisdiction; but
(4) conversion claim necessarily presented a substantial question of federal law, regarding need for the Secretary to approve disposition of restricted Indian personalty, and was claim over which district court could exercise federal question jurisdiction.
Affirmed in part, reversed in part, and remanded.

August

Contour Spa at the Hard Rock Inc. v. Seminole Tribe of Florida
Briefs from Turtle Talk
692 F.3d 1200
No. 11–11997.
United States Court of Appeals, Eleventh Circuit, August 30, 2012.

*Synopsis: Commercial lessee brought state-court action against lessor, an Indian tribe, seeking emergency declaratory and injunctive relief after tribe purported to terminate their lease agreement and padlocked doors to lessee's business. Tribe removed action to federal court. The United States District Court for the Southern District of Florida, No. 0:10-cv-60483-WJZ, William J. Zloch, J., 2011 WL 1303163, entered an order dismissing action, and lessee appealed.

*Holdings: The Court of Appeals, Marcus, Circuit Judge, held that as a matter of first impression, tribe's removal of action did not waive its sovereign immunity.
Affirmed.

Arctic Slope Native Ass'n, Ltd. v. Sebelius
501 Fed.Appx. 957
No. 2010–1013.
United States Court of Appeals, Federal Circuit, August 22, 2012.

*Synopsis: Association of Native–American tribes, which provided health care services to its members under self–determination contracts entered pursuant to Indian Self–Determination and Education Assistance Act (ISDA), brought action against Secretary of the Department of Health and Human Services (HHS), alleging breach of contract related to government's failure to pay association's contract support costs shortfall for two fiscal years. The Civilian Board of Contract Appeals, Candida S. Steel and Jeri Kaylene Somers, Administrative Judges, granted summary judgment in favor of HHS and association appealed. The Court of Appeals, Dyk, Circuit Judge, 629 F.3d 1296, affirmed, and the association petitioned for writ of certiorari. The United States Supreme Court, ––– U.S. ––––, 133 S.Ct. 22, 183 L.Ed.2d 671, granted certiorari and vacated and remanded for further consideration in light of its opinion in Salazar v. Ramah Navajo Chapter, ––– U.S. ––––, 132 S.Ct. 2181, 183 L.Ed.2d 186.

*Holdings: The Supreme Court, Justice Sotomayor, held that self-determination contracts between the Secretary of the Interior and Indian tribes, pursuant to which tribes undertook to provide education, law enforcement and other services normally provided by government, in exchange for commitment by the Secretary to pay costs incurred by tribes in performing their contracts "[s]ubject to the availability of appropriations," obligated government to pay full amount of contract support costs incurred by tribes once Congress made lump-sum appropriation sufficient to pay any individual contractor's contract support costs; abrogating Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F.3d 1296.
Affirmed.

Cook Inlet Region, Inc. v. Rude
Briefs from Turtle Talk
690 F.3d 1127
No. 11–35252.
United States Court of Appeals, Ninth Circuit, August 20, 2012.

*Synopsis: Alaska Native regional corporation, formed under the Alaska Native Claims Settlement Act (ANCSA), brought action against shareholders and former directors, alleging defendants violated ANCSA and Alaska law by soliciting shareholder signatures for petitions for a vote to lift alienability restrictions on corporation's stock and for a special shareholder meeting to consider certain advisory resolutions. Corporation moved for summary judgment. The United States District Court for the District of Alaska, Ralph R. Beistline, Chief Judge, 2010 WL 5146520, granted motion. District court subsequently denied defendants' motion for relief from judgment insofar as it sought relief on ground that district court lacked federal-question subject matter jurisdiction. Defendants appealed.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that district court had federal-question jurisdiction over ANCSA claims. Affirmed.

Michigan v. Bay Mills Indian Community
Briefs from Turtle Talk
695 F.3d 406
No. 11–1413.
United States Court of Appeals, Sixth Circuit, August 15, 2012.

*Synopsis: State of Michigan and Indian tribe filed action to prevent other Indian tribe from operating small casino on its property. The United States District Court for the Western District of Michigan, Paul Lewis Maloney, Chief District Judge, entered preliminary injunction to stop defendant from gaming. Defendant appealed.

*Holdings:The Court of Appeals, Kethledge, Circuit Judge, held that:
(1) proximity of two properties, along with likelihood that at least some gaming revenue from defendant's casino otherwise would have gone to plaintiff tribe through its casino, was enough to show injury in fact;
(2) federal courts lacked jurisdiction to adjudicate claim under Regulatory Act, alleging that defendant Indian tribe's casino violated Tribal–State compact, to extent that claim had been based on allegation that defendant's casino was not on Indian lands;
(3) federal courts lacked jurisdiction to adjudicate claim under Regulatory Act, alleging that defendant Indian tribe's casino violated Tribal–State compact, to extent that claim was based on allegation that defendant's property had not been acquired by Secretary of Interior in trust for benefit of defendant;
(4) common law claims brought by State of Michigan against Indian tribe to prevent it from operating small casino, which depended on whether casino was located on Indian lands, arose under federal law, as required for federal question subject matter jurisdiction;
(5) defendant was immune from suit on common law claims brought by State of Michigan to prevent tribe from operating small casino, which depended on whether casino was located on Indian lands, unless Congress had authorized suit or tribe waived its immunity;
(6) provision of Regulatory Act that supplied federal jurisdiction and abrogated tribal immunity did not abrogate Indian tribe's sovereign immunity over claims that did not satisfy all textual prerequisites of Act;
(7) inferential logic that federal statute governing gambling in Indian country abrogated sovereign immunity of Indian tribes with regard to gaming not conducted under approved Tribal–State gaming compact was not sufficient to abrogate tribe's sovereign immunity with regard to such gaming; and
(8) tribal gaming ordinance waiving immunity only for tribal commission did not result waiver of Indian tribe's immunity.
Vacated and remanded.

Native Village of Kivalina Ira Council v. U.S. E.P.A.
Briefs from Turtle Talk
687 F.3d 1216
No. 11–70776.
United States Court of Appeals, Ninth Circuit, August 9, 2012.

*Synopsis: Alaska Native villages petitioned for review of an order of the United States Environmental Protection Agency Environmental Appeals Board, which denied their challenges to the re-issuance of a permit authorizing a mine operator to discharge wastewater caused by mine operation.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that villages were not entitled to Board review of villages' challenge to EPA's re-issuance of permit.
Petition denied.

KG Urban Enterprises v. Patrick
Briefs from Turtle Talk
693 F.3d 1
No. 12–1233.
United States Court of Appeals, First Circuit, August 1, 2012.

*Synopsis: Casino development company, as potential applicant for Massachusetts gaming license, brought action to challenge provisions of Massachusetts Act Establishing Expanded Gaming in the Commonwealth, alleging certain provisions violated the Equal Protection Clause and the Massachusetts Declaration of Rights, and were pre–empted by the Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of Massachusetts, Nathaniel M. Gorton, J., denied company's motion for preliminary injunction and dismissed complaint. Company appealed.

*Holdings:The Court of Appeals, Lynch, Chief Judge, held that:
(1) company failed to establish its standing to challenge composition of gaming policy advisory committee under Act;
(2) company waived its argument that different standard applied to its federal and state constitutional challenges;
(3) company's equal protection challenge was ripe for judicial review; and
(4) factors weighed strongly against preliminary injunctive relief.

Affirmed in part and vacated and remanded in part.

 

July

Native Village of Eyak v. Blank
Briefs from Turtle Talk
688 F.3d 619
No. 09–35881.
United States Court of Appeals, Ninth Circuit, July 31, 2012.

*Synopsis: Several Alaskan Native villages brought action against Secretary of Commerce, seeking to enforce claimed non–exclusive aboriginal hunting and fishing rights in certain parts of outer continental shelf (OCS) of Gulf of Alaska. Following remand, 375 F.3d 1218, with instructions to determine what aboriginal rights, if any, were held by villages, the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, conducted bench trial and found that villages had no non–exclusive right to hunt and fish in OCS. Villages appealed.

*Holdings: The Court of Appeals held that:
(1) villages satisfied continuous use and occupancy requirement for establishing aboriginal rights, and
(2) villages did not have exclusive use of claimed portions of OCS.
Affirmed.

 

Somerlott v. Cheeroke Nation Distributors
Briefs from Turtle Talk
686 F.3d 1144
No. 10–6157.
United States Court of Appeals, Tenth Circuit, July 27, 2012.

*Synopsis: Employee brought federal employment discrimination claims against tribal corporation, alleging violations of Title VII and the Age Discrimination in Employment Act (ADEA). The United States District Court for the Western District of Oklahoma, DeGiusti, J., 2010 WL 1541574, dismissed complaint for lack of subject matter jurisdiction. Employee appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) tribal corporation was not immune from employee's federal employment discrimination claims under tribal sovereign immunity, and
(2) employee failed to preserve argument regarding sovereign immunity.
Affirmed.

Rincon Mushroom Corporation of America v. Mazzetti
Briefs from Turtle Talk
490 Fed.Appx. 11
No. 10–56521.
United States Court of Appeals, Ninth Circuit, July 19, 2012.

*Synopsis: Non-Indian property owner brought action to enjoin tribal officials from enforcing tribal environmental and land-use regulations on its property. The United States District Court for the Southern District of California, William Q. Hayes, District Judge, 2010 WL 3768347, dismissed the action. Non-Indian property owner appealed.

*Holdings: The Court of Appeals, held that:
(1) non-Indian property owner was required to exhaust tribal court remedies before bringing suit in federal court, but
(2) district court abused its discretion in dismissing, rather than staying the case.
Reversed and remanded.

US v. Morrison
Briefs from Turtle Talk
686 F.3d 94
Nos. 10–1926(L), 10–1951.
United States Court of Appeals, Second Circuit, July 16, 2012.

*Synopsis: Defendant was charged by indictment with a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy and multiple other crimes. Following denial of defendant's motion to dismiss the indictment, 521 F.Supp.2d 246, and a jury verdict finding defendant guilty of a RICO conspiracy and being a felon in possession of a firearm, defendant moved to dismiss the RICO charge or for a new trial. The United States District Court for the Eastern District of New York, Denis R. Hurley, J., 596 F.Supp.2d 661, denied the motion, and defendant moved for reconsideration. The District Court, Hurley, J., 706 F.Supp.2d 304, granted reconsideration in part, vacating the RICO conviction. The parties cross-appealed.

*Holdings:The Court of Appeals, Calabresi, Circuit Judge, held that:
(1) prior certification to the New York Court of Appeals of questions regarding the New York Tax Law section delineating the parameters of a Contraband Cigarette Trafficking Act (CCTA) violation did not support a determination that the section was unconstitutionally vague, and
(2) defendant could be validly convicted under the CCTA, even though, at the time, the state was refraining from enforcing taxes on on-reservation sales.
Reversed and remanded.

 

 

June

Furry v. Miccosukee Tribe of Indians of Florida
Briefs from Turtle Talk
685 F.3d 1224
No. 11–13673
United States Court of Appeals, Eleventh Circuit, June 29, 2012.

*Synopsis: Father, as personal representative of the estate of his daughter, brought wrongful death action against Indian tribe that owned and operated gambling and resort facility, asserting that tribe violated federal law and Florida's dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who later was involved in a fatal motor vehicle collision. Tribe moved to dismiss on the ground that it was immune from suit under the doctrine of tribal sovereign immunity. The United States District Court for the Southern District of Florida, No. 1:10–cv–24524–PAS, Patricia A. Seitz, J., 2011 WL 2747666, granted the motion, and plaintiff appealed.

*Holdings: The Court of Appeals, Marcus, Circuit Judge, held that:
(1) in enacting the federal statute governing application of Indian liquor laws, which authorizes state regulation and licensing of tribal liquor transactions, Congress did not abrogate tribal immunity from private tort suits based on state dram shop acts or other tort law, and
(2) tribe did not waive its immunity from private tort actions by applying for a state liquor license.

Affirmed.

N.Y. v. Shinnecock Indian Nation
Briefs from Turtle Talk
686 F.3d 133
Docket Nos. 08–1194–cv (L), 08–1195–cv (CON)
United States Court of Appeals, Second Circuit, June 25, 2012.

*Synopsis: New York State, state agencies, and municipality brought action against Indian nation and its tribal officials in state court seeking to enjoin them from constructing casino and conducting certain gaming on parcel of non-reservation property. Tribe removed case to federal court on basis that State's complaint had pleaded issues of federal law. The United States District Court for the Eastern District of New York, Thomas Collier Platt Jr., J., 274 F.Supp.2d 268, denied State's motion to remand, entered preliminary injunction barring construction, 280 F.Supp.2d 1, and denied parties' cross-motions for summary judgment, 400 F.Supp.2d 486. After reassignment, Joseph F. Bianco, J., 523 F.Supp.2d 185, entered judgment for plaintiffs and issued injunction following bench trial, and then limited injunction to construction and operation of casino or gaming on property, 560 F.Supp.2d 186. Tribe appealed.

*Holdings: The Court of Appeals, John M. Walker, Jr., Circuit Judge, held that:
(1) complaint did not raise issue of federal law by referencing federal law in anticipation of tribe's defenses and
(2) substantial federal question exception to well-pleaded complaint rule did not apply.
Vacated and remanded.

Turner v. McGee
Briefs from Turtle Talk
681 F.3d 1215
No. 10–6031.
United States Court of Appeals, Tenth Circuit, June 19, 2012.

*Synopsis: Native American offender who was convicted in state court for instituting or encouraging cockfighting brought action against judges of the Court of Indian Offenses, challenging the judges' refusal to enjoin the state criminal prosecution. The United States District Court for the Western District of Oklahoma, Vicki Miles–LaGrange, Chief Judge, 2010 WL 415296, dismissed the action. Plaintiff appealed..

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Court of Appeals had jurisdiction, and
(2) offender lacked constitutional standing to bring action.
Affirmed.

Marceau v. Blackfoot
473 Fed.Appx. 764
No. 11–35444.
United States Court of Appeals, Ninth Circuit, June 5, 2012.

*Synopsis: (from the opinion) "In this putative class action, plaintiffs—American Indian individuals whose homes were built in the late 1970s with the financial assistance of the United States Department of Housing and Urban Development ("HUD")—appeal the district court's grant of summary judgment in favor of HUD. Because the district court certified its judgment under Fed.R.Civ.P. 54(b), we have jurisdiction under 28 U.S.C. § 1291. We affirm."

*Holdings: Not yet available.

Karuk Tribe of California v. U.S. Forest Service
Briefs from Turtle Talk
681 F.3d 1006
No. 05–16801
United States Court of Appeals, Ninth Circuit, June 1, 2012.

*Synopsis: Indian tribe sued United States Forest Service, seeking declaratory and injunctive relief from alleged violation of Endangered Species Act (ESA) by approval of four notices of intent (NOIs) to conduct mining activities in threatened coho salmon critical habitat within national forest without consultation. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 379 F.Supp.2d 1071, entered judgment for government. Tribe appealed. The Court of Appeals, M. Smith, Circuit Judge, 640 F.3d 979, affirmed. Subsequently, en banc rehearing was granted.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that Forest Service's approval of NOIs required prior consultation with federal wildlife agencies.
Reversed and remanded.

 

May

Cobell v. Salazar
Briefs from Turtle Talk
679 F.3d 909
No. 11–5205
United States Court of Appeals, D.C. Circuit, May 22, 2012.

*Synopsis: Native Americans filed class action against Secretary of Interior alleging breach of fiduciary duties in managing class members' "Individual Indian Money" (IIM) trust account. The United States District Court for the District of Columbia, approved settlement agreement. Class member appealed.

*Holdings: The Court of Appeals, Rogers, Circuit Judge, held that:
(1) prior holding that restitution award would be arbitrary, inaccurate, and unfair to some class members in absence of historical accounting was not law of the case;
(2) per capita settlement payment of $1,000 properly was viewed as non-individualized;
(3) district court reasonably concluded that class settlement agreement offered fair resolution of plaintiff classes' claims free of impermissible intra-class conflict;
(4) appellant had non-speculative basis for asserting injury in fact;
(5) trust administration class satisfied commonality requirement;
(6) district court's award of incentive payments to class representatives did not create impermissible conflict;
(7) district court's reference to small number of objectors was not inconsistent with caution that should be exercised in inferring support from small number of objectors to sophisticated class action settlement; and
(8) any prejudice was harmless that resulted from district court's striking of supplemental brief as untimely.

Affirmed.

*Related News Story: DC Circuit affirms fairness of $3.4B Cobell trust fund settlement (Indianz.com) 5/22/12

Timbisha Shoshone Tribe v. Salazar
Briefs from Turtle Talk
678 F.3d 935
No. 11–5049.
United States Court of Appeals, D.C. Circuit, May 15, 2012.

*Synopsis: Faction of Indian tribe, purporting to be its tribal council, brought action against Departments of the Interior (DOI) and the Treasury (DOT), seeking declaratory and injunctive relief from provision of the Western Shoshone Claims Distribution Act which directed that funds appropriated for the tribe pursuant to a determination of the Indian Claims Commission (ICC) be distributed directly to individual tribe members rather than to any tribal entity, which the plaintiffs alleged constituted an unconstitutional taking of tribal property and a denial of equal protection. Government moved to dismiss. The United States District Court for the District of Columbia, Gladys Kessler, J., 766 F.Supp.2d 175, dismissed for failure to state a claim. Plaintiffs appealed.

*Holdings: The Court of Appeals, Griffith, Circuit Judge, held that plaintiffs lacked standing.
Vacated and remanded with instructions to dismiss for lack of jurisdiction.

*Related News Story: DC court: Tribal faction can't block land payments (SFGate) 5/17/12

U.S. v. Diaz
Briefs from Turtle Talk
679 F.3d 1183
No. 10–2252
United States Court of Appeals, Tenth Circuit, May 8, 2012.

*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, C. Leroy Hansen, Senior District Judge, of committing a crime in Indian Country after she knowingly left scene of a fatal automobile accident, and she appealed.

*Holdings: The Court of Appeals, Tymkovich, Circuit Judge, held that:
(1) district court had jurisdiction;
(2) evidence that defendant had been drinking prior to accident was admissible; and
(3) undisclosed evidence regarding government's accident reconstruction expert was not material under Brady.

Affirmed.

Related News Stories: Ex-Pojoaque Pueblo leader's hit-and-run conviction affirmed (Santa Fe New Mexican) 5/08/12

 

April

Rincon Mushroom Corporation of America v. Mazzetti
Briefs from Turtle Talk
2012 WL 1377032
No. 10–56521
United States Court of Appeals, Ninth Circuit, April 20, 2012.

*Synopsis: Memorandum disposition withdrawn on grant of rehearing July 19, 2012. For substituted memorandum disposition, see 2012 WL 2928605 [490 Fed.Appx. 11].

Gonzalez v. Arizona
677 F.3d 383
Nos. 08–17094, 08–17115
United States Court of Appeals, Ninth Circuit, April 17, 2012.

*Synopsis: Arizona residents and Indian tribes filed actions challenging validity of proposition requiring prospective voters in Arizona to present documentary proof of citizenship in order to register to vote and requiring registered voters to present proof of identification in order to cast ballot at polls. Actions were consolidated. The United States District Court for the District of Arizona, Roslyn O. Silver, Chief Judge, entered judgment in state's favor, and plaintiffs appealed. The Court of Appeals, Ikuta, Circuit Judge, 624 F.3d 1162, affirmed in part and reversed in part.

*Holdings: Upon rehearing en banc, the Court of Appeals, Ikuta, Circuit Judge, held that:
(1) Arizona's requirement that prospective voters provide documentary proof of citizenship was superseded by National Voter Registration Act (NVRA);
(2) law of the case doctrine did not bar panel from reconsidering issue following remand from earlier decision;
(3) requirement that voters provide proof of identification before voting at polls did not violate Voting Rights Act (VRA); and
(4) requirement that voters show identification at polls was not poll tax. Affirmed in part, reversed in part.

Richard v. U.S.
Briefs from Turtle Talk
677 F.3d 1141
No. 2011–5083
United States Court of Appeals, Federal Circuit, April 13, 2012.

*Synopsis: Representatives of the estates of two members of a Sioux tribe who were killed by an intoxicated driver brought suit claiming that the United States was obligated to reimburse the injured parties for losses sustained. The United States Court of Federal Claims, Margaret M. Sweeney, J., 98 Fed.Cl. 278, dismissed for lack of jurisdiction, and the representatives appealed.

*Holdings: The Court of Appeals, Wallach, Circuit Judge, held that "bad men" provision of the Laramie Treaty of 1868 is not limited to governmental actors.
Vacated and remanded.

Oklevueha Native American Church of Hawaii, Inc. v. Holder
Briefs from Turtle Talk
676 F.3d 829
No. 10–17687
United States Court of Appeals, Ninth Circuit, April 9, 2012.

*Synopsis: Native American Oklevueha church and its spiritual leader brought action against government officials, alleging that their right to use marijuana in their religion was being infringed on by federal drug laws, and asserting claims under state law for theft and conversion. The United States District Court for the District of Hawai'i, Susan Oki Mollway, Chief Judge, 719 F.Supp.2d 1217 and 2010 WL 4386737, dismissed action. Plaintiffs appealed.

*Holdings: The Court of Appeals, Murguia, Circuit Judge, held that:
(1) plaintiffs sufficiently alleged concrete plan;
(2) definite and concrete dispute regarding lawfulness of marijuana seizure came into existence;
(3) members did not have to demonstrate threat of future prosecution;
(4) preenforcement claim was ripe for review;
(5) allegations about use, possession, cultivation, and distribution of marijuana were not required;
(6) Religious Freedom Restoration Act (RFRA) did not contain exhaustion requirement;
(7) Oklevueha church had associational standing; and
(8) RFRA did not waive sovereign immunity for monetary damages.
Affirmed in part, reversed in part, and remanded.

County of Charles Mix v. United States Department of the Interior
674 F.3d 898
No. 11–2217
United States Court of Appeals, Eighth Circuit, April 6, 2012.

*Synopsis: County filed suit, under Administrative Procedure Act (APA), against Department of the Interior (DOI) to obtain declaratory and injunctive relief from decision of Bureau of Indian Affairs (BIA), affirmed by Interior Board of Indian Appeals, to grant Indian tribe's request to acquire 39 acres of on-reservation land in trust for tribe, pursuant to Indian Reorganization Act. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 799 F.Supp.2d 1027, granted DOI summary judgment. County appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) DOI's acquisition of land in trust did not violate Republican Guarantee Clause;
(2) county's challenge to DOI's jurisdiction to consider tribe's request was not reviewable; and
(3) DOI's acquisition of land in trust was supported by rational basis.
Affirmed.

Bernard v. United States Department of the Interior
Briefs from Turtle Talk
674 F.3d 904
No. 11–2502
United States Court of Appeals, Eighth Circuit, April 6, 2012.

*Synopsis: Owner of Indian trust land and his wife sued Department of Interior (DOI), seeking money damages for breach of trust and seeking review of decision of Interior Board of Indian Appeals (IBIA), affirming Bureau of Indian Affairs' (BIA) denial of landowner's request to set aside gift deed conveying property to himself and his cousin as joint tenants with right of survivorship. After landowners amended complaint to eliminate money damages claim and to add cousin as defendant, who later settled and agreed to deed back portion of land, the United States District Court for the District of South Dakota, Charles B. Kornmann, J. affirmed administrative decision, dismissed action, and subsequently denied landowners' motion to alter judgment by transferring damages claim to Court of Federal Claims. Landowners appealed denial of their motion to alter judgment.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that interest of justice did not require transfer of money damages claim. Affirmed.

United States v. Wilbur
Briefs from Turtle Talk
674 F.3d 1160
Nos. 10–30185, 10–30186, 10–30187, 10–30188
United States Court of Appeals, Ninth Circuit, April 6, 2012.

*Synopsis: Pursuant to their guilty pleas, defendants were convicted in the United States District Court for the Western District of Washington, Marsha J. Pechman, J., 2010 WL 519735, of a conspiracy to violate the Contraband Cigarette Trafficking Act (CCTA), and they appealed.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) defendants' actions in selling unstamped cigarettes violated CCTA during periods that Indian tribe's cigarette tax contract (CTC) with state was not in effect;
(2) rules applicable to constructive amendment of indictments or variances which prejudices a defendant's substantial rights did not apply where indictment charged a single continuous conspiracy to violate the CCTA, while the facts showed two separate conspiracies with a gap between them; and
(3) neither Treaty at Point Elliott nor Washington law deprived Washington of the power to enforce its cigarette tax laws against reservation Indians' trade of tobacco.
Affirmed in part, reversed in part, and remanded. Rawlinson, Circuit Judge, filed opinion concurring in part and dissenting in part.

Alltel Communications, LLC v. DeJordy
675 F.3d 1100
No. 11–1520
United States Court of Appeals, Eighth Circuit, April 4, 2012.

*Synopsis: Tribe and tribal administrator filed motions to quash third-party subpoenas duces tecum served by telecommunications company that filed suit in another district against former senior vice president for allegedly breaching separation agreement by assisting tribe in tribal court lawsuit to enjoin company from proposed sale of assets that provided telecommunications services on Indian Reservation. The United States District Court for the District of South Dakota, Jeffrey L. Viken, J., denied motions. Tribe and tribal administrator appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that tribal immunity barred enforcement of subpoenas.
Reversed.

 

March

Salt River Project Agr. Imp. and Power Dist. v. Lee
Briefs from Turtle Talk
672 F.3d 1176
No. 10–17895
United States Court of Appeals, Ninth Circuit, March 15, 2012.

Amended May 29th, 2012
Amended Opinion

*Synopsis: Non-Indian employers brought action seeking declaratory judgment that tribal officials lacked authority to regulate employment relations at their plant and injunction staying former employees' claims under tribal law. The District Court, 2009 WL 89570, dismissed complaint, and employers appealed. The Court of Appeals, 371 Fed.Appx. 779, reversed and remanded. On remand, the United States District Court for the District of Arizona, James A. Teilborg, J., 2010 WL 4977621, dismissed complaint, and employers appealed.

*Holdings: The Court of Appeals, Silverman, Circuit Judge, held that tribe was not necessary party.
Reversed and remanded. 

 

February

Muscogee (Creek) Nation v. Pruitt
Briefs from Turtle Talk
669 F.3d 1159
No. 11–7005
United States Court of Appeals, Tenth Circuit, February 28, 2012.

*Synopsis: Indian tribe brought action alleging that Oklahoma's tobacco tax-stamp scheme violated federal law and tribal sovereignty. The United States District Court for the Eastern District of Oklahoma dismissed complaint, and tribe appealed.

*Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) district court had subject matter jurisdiction over matter;
(2) requirement that retailers on Indian reservations obtain state tax exemption certificates was not preempted by federal statute;
(3) requirement that tribally-licensed retailers purchase tobacco products from state-licensed wholesalers did not impermissibly infringe on tribal self-governance;
(4) use of probable-demand formula to limit number of tax-free stamps did not impose impermissible burden on tribal self-governance;
(5) state's practice seizing cigarettes outside Indian country that did not have tax or tax-free stamp did not impermissibly infringe on tribe's sovereignty;
(6) statutes did not unduly interfere with tribal members' ability to buy cigarette brands of their choosing; and
(7) Indian trader statute did not preempt statutes requiring tobacco manufacturers that did not join master settlement agreement (MSA) to pay into escrow fund.
Affirmed.

Large v. Fremont County, Wyoming
Briefs from Turtle Talk
670 F.3d 1133
No. 10–8071
United States Court of Appeals, Tenth Circuit, February 22, 2012.

*Synopsis: Enrolled members of Eastern Shoshone and Northern Arapaho Tribes brought action against county, members of county commission, and county clerk, in their official capacities, alleging, among other things, that county's at-large method for county commission elections violated Voting Rights Act. The United States District Court for the District of Wyoming, Alan B. Johnson, J., declared that election system violated Voting Rights Act. The United States District Court rejected the County Board of Commissioners' proposed hybrid remedial plan and fashioned a remedial plan solely consisting of single-member districts. Defendants appealed.

*Holdings: The Court of Appeals, Holmes, Circuit Judge, held that:
(1) Board's proposed hybrid election scheme was not a legislative plan entitled to deference, and
(2) district court did not abuse its discretion in fashioning a remedial plan solely consisting of single-member districts.
Affirmed.

Save the Peaks Coalition v. U.S. Forest Service
Briefs from Turtle Talk
669 F.3d 1025
No. 10–17896
United States Court of Appeals, Ninth Circuit, Feb. 9, 2012.

*Synopsis: Environmental group and individuals brought action under National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA) challenging United States Forest Service's (USFS) decision to approve snowmaking project at existing ski area in national forest. Ski resort operator intervened. The United States District Court for the District of Arizona, Mary H. Murguia, J., 2010 WL 4961417, entered summary judgment in favor of USFS and intervenor, and plaintiffs appealed.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that:
(1) action was not barred by laches;
(2) final environmental impact statement (FEIS) adequately considered risks posed by human ingestion of snow made from reclaimed water; and
(3) USFS did not violate its duty to ensure scientific integrity of discussion and analysis in FEIS.

 

January

 

South Dakota v. United States Department of Interior
665 F.3d 986
No. 11–1745
United States Court of Appeals, Eighth Circuit, Jan. 11, 2012.

*Synopsis: State brought action challenging Secretary of Interior's decision to accept transfer of land into trust for benefit of Indian tribe. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 775 F.Supp.2d 1129, granted summary judgment in favor of the Secretary, and State appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) State had Article III standing, but
(2) State lacked standing to bring a constitutional due process claim.
Appeal dismissed.

Miranda v. Anchando
Briefs from Turtle Talk
684 F.3d 844
Nos. 10–15167, 10–15308
United States Court of Appeals, Ninth Circuit, Amended Feb. 6, 2012.

To see the Ninth Circuit, August 17th decision in Mirando v. Anchando please see our 2011 Archive

*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, 2010 WL 148218, granted the petition. Respondents appealed.

*Holdings: The Court of Appeals, Sammartino, District Judge, sitting by designation, 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.

United States v. Juvenile Male
670 F.3d 999
Nos. 09–30330, 09–30273, 09–30365
United States Court of Appeals, Ninth Circuit, January 25, 2012.

*Synopsis: Three juvenile defendants, each of whom was a member of an Indian tribe and who pleaded true to a charge of aggravated sexual abuse with children in the United States District Court for the District of Montana, Richard F. Cebull, Chief Judge, and Sam E. Haddon, J., appealed their conditions of probation or supervision requiring registration under the Sex Offender Registration and Notification Act (SORNA).

*Holdings: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) SORNA registration requirement as applied to certain juvenile delinquents in cases of aggravated sexual abuse superseded conflicting confidentiality provisions of Federal Juvenile Delinquency Act (FJDA), and
(2) SORNA registration requirement did not violate juveniles' constitutional rights.
Affirmed.

United States v. Juvenile Male
Briefs from Turtle Talk
666 F.3d 1212
No. 11–30065
United States Court of Appeals, Ninth Circuit, January 20, 2012.

*Synopsis: Juvenile was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., under Major Crimes Act. Juvenile appealed.

*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that juvenile was an "Indian" under Major Crimes Act.
Affirmed.

 

South Dakota v. United States Department of Interior
665 F.3d 986
No. 11–1745
United States Court of Appeals, Eighth Circuit, January 11, 2012.

*Synopsis: State brought action challenging Secretary of Interior's decision to accept transfer of land into trust for benefit of Indian tribe. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 775 F.Supp.2d 1129, granted summary judgment in favor of the Secretary, and State appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) State had Article III standing, but
(2) State lacked standing to bring a constitutional due process claim. Appeal dismissed.

 

The Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States
672 F.3d 1021
No. 2010–5150
United States Court of Appeals, Federal Circuit, January 9, 2012.

*Synopsis: Indian tribes brought actions against United States for breach of fiduciary duty in management and payment of royalties on oil and gas production on Indian lands. Actions were consolidated. The United States Court of Federal Claims, Emily C. Hewitt, Chief Judge, 93 Fed.Cl. 449, granted summary judgment for United States. Tribes appealed.

*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
(1) tribes had not been prevented from knowing all material facts that established government's liability;
(2) government's misstatements and omissions did not toll accrual of statute of limitations for their claim;
(3) tribes should have known that oil and gas leases had not been competitively bid;
(4) Interior Appropriations Act did not reach claims related to trust assets involving losses resulting from terms of contract being suboptimal;
(5) failure to strictly comply with requirements of Non-intercourse Act rendered any resulting conveyance void;
(6) government's unauthorized lease of Indian land to third parties for oil and gas production did not create implied right for lessees to extract oil and gas from that land; and
(7) remand was required.
Vacated and remanded.

United States v. Bryant
664 F.3d 831
No. 11–7029
United States Court of Appeals, Tenth Circuit, January 5, 2012.

*Synopsis: Defendant conditionally plead guilty in the United States District Court for the Eastern District of Oklahoma to theft by an officer or employee of a gaming establishment on Indian lands, reserving the right to appeal the denial of her motion to dismiss for lack of jurisdiction. Defendant appealed.

*Holdings: The Court of Appeals, Kelly, Circuit Judge, held that district court had subject matter jurisdiction over action.
Affirmed.

 

 

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