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Indian Law Bulletins  |  Federal Courts of Appeals  |  2013

Last updated: May 31, 2013

Next update should be ready by: June 7, 2013

Please alert us to any cases we may have missed from the U.S. Courts of Appeals.

New Cases:

Gila River Indian Community v. U.S.
2013 WL 2171652
Nos. 11–15631, 11–15633, 11–15639, 11–15641, 11–15642.
United States Court of Appeals, Ninth Circuit, May 20, 2013

*Synopsis: (from the opinion) "This case illustrates the nuances of our federalist system of government, pitting Indian tribe against Indian tribe, and State and local governments against the federal government and an Indian tribe. The City of Glendale and various other parties ("Glendale") seek to set aside the Department of the Interior's decision to accept in trust, for the benefit of the Tohono O'odham Nation ("the Nation"), a 54–acre parcel of land known as Parcel 2. The Nation hopes to build a destination resort and casino on Parcel 2, which is unincorporated county land, entirely surrounded by the City of Glendale. To say this plan has been controversial is an understatement. But the strong feelings and emotional drama of the casino fight do not dictate the outcome here. This appeal relates only to the status of the land as trust land and does not involve the particulars of Indian gaming, which are the subject of separate proceedings and pending legislation. The district court granted summary judgment for the government after concluding that the Secretary of the Interior reasonably applied the Gila Bend Indian Reservation Lands Replacement Act ("Gila Bend Act"), and that the Act did not violate the Indian Commerce Clause or the Tenth Amendment. We affirm in part, reverse in part, and remand."

* Holding: (not yet available)

Sandy Lake Band of Mississippi Chippewa v. U.S.
2013 WL 2149908
No. 12–2600.
United States Court of Appeals, Eighth Circuit, May 20, 2013

*Synopsis: Indian tribe, which was not included on Secretary of the Interior's list of recognized Indian tribes, sought order under Indian Reorganization Act (IRA) directing Secretary to hold an election so tribe members could vote on proposed constitution. The United States District Court for the District of Minnesota, Donovan W. Frank, J., 2011 WL 2601840, dismissed without prejudice for lack of subject matter jurisdiction, based on failure to exhaust administrative remedies, and refused to accept a proposed amended complaint challenging Secretary's authority to promulgate a regulation defining the term "Indian." Tribe did not appeal, but filed second action raising the claims in first complaint and in proposed amended complaint. The District Court, Donovan W. Frank, J., 2012 WL 1581078, granted summary judgment to Secretary. Tribe appealed.

* Holding: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) jurisdictional issue was the same in the two actions, as element for issue preclusion, and
(2) jurisdictional determination in earlier action was a final judgment on jurisdiction, as element for issue preclusion.
Affirmed as modified.

Case Archive 2013:

May

Miccosukee Tribe of Indians of Florida v. U.S.
2013 WL 1984423
No. 10–14271.
United States Court of Appeals, Eleventh Circuit, May 15, 2013.

*Synopsis: Indian tribe brought action alleging that a federal flood control project in the Everglades diverted excessive flood waters over tribal lands. The United States District Court for the Southern District of Florida, No. 1:08-cv-23001-KMM, K. Michael Moore, J., 656 F.Supp.2d 1375, dismissed, and tribe appealed.

*Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that:
(1) complaint alleging that defendants were required to regulate water levels within water conservation area in which tribe's leasehold was located failed to state a claim for relief;
(2) complaint failed to state a claim for a deprivation of property without due process;
(3) complaint failed to state a claim for mandamus relief; and
(4) complaint failed to state a claim for an equal protection violation.
Affirmed.

Cahto Tribe of Laytonville Rancheria v. Dutschke
2013 WL 1983870
No. 11–17847.
United States Court of Appeals, Ninth Circuit, May 15, 2013.

*Synopsis: Indian tribe filed suit, under Administrative Procedure Act (APA), seeking to set aside decision of federal Bureau of Indian Affairs (BIA), directing tribe to place names of disenrolled individuals back on tribe's membership roll. The United States District Court for the Eastern District of California, Garland E. Burrell, Jr., Senior District Judge, 2011 WL 4404149, granted Department of Interior (DOI) summary judgment, affirming BIA's decision. Tribe appealed.

*Holdings: The Court of Appeals, Hawkins, Senior Circuit Judge, held that tribe's disenrollment action was not reviewable by BIA.
Reversed.

Related News Stories: Ninth Circuit sides with Cahto Tribe in enrollment dispute (Pechanga.net) 5/20/13

April

Grand Canyon Skywalk Development, LLC. v. 'Sa' Nyu Wa inc.
2013 WL 177706
No. 12–15634.
United States Court of Appeals, Ninth Circuit, April 26, 2013.

*Synopsis: Nevada corporation brought action against tribally chartered corporation of the Hualapai Indian Tribe, seeking a declaratory judgment that the Hualapai Tribe lacked the authority to condemn the Nevada corporation's intangible property rights in a revenue-sharing contract with the tribally chartered corporation and injunctive relief. The United States District Court for the District of Arizona, David G. Campbell, P.J., 2012 WL 1207149, denied Nevada corporation's request for a temporary restraining order (TRO), and required the Nevada corporation to exhaust all possible tribal court remedies before proceeding in federal court.

*Holdings: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) bad faith exception to the requirement to exhaust tribal court remedies did not apply;
(2) futility exception to the requirement to exhaust tribal court remedies did not apply; and
(3) tribal court did not plainly lack jurisdiction over Nevada corporation so as to excuse the exhaustion requirement.
Affirmed.

Related News Stories: Skywalk feud sent to tribal court (AZ Central) 4/26/13

March

United States v. Alvirez
709 F.3d 1305
No. 11–10244.
United States Court of Appeals, Ninth Circuit, March 14, 2013.

*Synopsis: The opinion of the United States Court of Appeals, Ninth Circuit, in U.S. v. Alvirez, published in the advance sheet at this citation, 709 F.3d 1305, was withdrawn from the bound volume. For withdrawing order, see 2013 WL 1503702.

United States v. Robertson
709 F.3d 741
No. 12–1020.
United States Court of Appeals, Eighth Circuit, March 11, 2013.

*Synopsis: Defendant was convicted by jury in the United States District Court for the District of North Dakota, Patrick A. Conmy, J., of embezzlement and willful misapplication of tribal property, and sentenced to three years probation subject to conditions including that she not consume alcohol. Defendant appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that:
(1) it was within district court's discretion to refuse to give good faith defense instruction, and
(2) it was within district court's discretion to impose as special condition of probation that defendant totally abstain from use of alcohol.
Affirmed.

Muwekma Ohlone Tribe v. Salazar
708 F.3d 209
No. 11–5328.
United States Court of Appeals, District of Columbia Circuit, March 1, 2013.

*Synopsis: Tribe brought action challenging United States Department of the Interior's refusal to recognize it as an Indian tribe. The United States District Court for the District of Columbia, 813 F.Supp.2d 170, granted Interior's cross-motion for summary judgment and denied tribe's summary judgment motion, and tribe appealed.

*Holdings: The Court of Appeals, Karen Lecraft Henderson, Circuit Judge, held that:
(1) Department of the Interior did not violate petitioning tribe's equal protection rights or act arbitrarily and capriciously in summarily recognizing other tribes outside the Part 83 process but not doing the same for petitioning tribe;
(2) whatever due process interest Indian tribe might have had as a previously-recognized tribe disappeared because that previously-recognized tribe no longer existed; and
(3) Interior's final determination denying tribal recognition was not arbitrary and capricious.
Affirmed.

February

McGuire v. United States
707 F.3d 1351
No. 2012–5073.
United States Court of Appeals, Federal Circuit, Feb. 20, 2013.

*Synopsis: Farmer who leased tribal land brought inverse condemnation action against government in Bankruptcy Court, alleging that decision of Bureau of Indian Affairs (BIA) to remove bridge over canal on leased land was unconstitutional taking. The Bankruptcy Court determined that government had committed regulatory taking. The United States District Court for the District of Arizona, James A. Teilborg, J., rejected Bankruptcy Court's findings and recommendations, and dismissed action. Farmer appealed. The Court of Appeals, Thomas, J., 550 F.3d 903, reversed and remanded for transfer to Court of Federal Claims. The United States Court of Federal Claims, Bohdan A. Futey, Senior District Judge, 2012 WL 569359, granted judgment for government after bench trial. Farmer appealed.

*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that:
(1) Court was not bound by prior appellate decision as the "law of the case";
(2) farmer was required to exhaust his administrative remedies although applicable procedures were informal in nature;
(3) farmer's informal meetings and verbal communications with government's supervisory general engineer, and written sketch, were not sufficient to exhaust his administrative remedies;
(4) farmer did not prove futility with respect to his efforts to exhaust his administrative remedies;
(5) lease with Indian tribes that merely indicated that ownership of improvements attached to property defaulted to lessor did not give rise to cognizable property interest in replacing bridge;
(6) BIA regulation stating that "[i]mprovements placed on the leased land shall become the property of the lessor [ Indian tribes] unless specifically excepted therefrom under the terms of the lease" did not give rise to cognizable property interest in applying for permit to replace bridge;
(7) regulation only concerning right to apply for "revocable permit" or regulations that allowed revocation of any rights granted by government did not give rise to cognizable property interest in applying for permit to replace bridge; and
(8) farmer's finding that production without that bridge was not economically viable did not give rise to cognizable property interest in replacing bridge.
Affirmed.
Reyna, Circuit Judge, filed concurring opinion.

Maxwell v. County of San Diego
708 F.3d 1075
Nos. 10–56671, 10–56706.
United States Court of Appeals, Ninth Circuit, Feb. 14, 2013.

*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.
Ikuta, Circuit Judge, dissented and filed opinion.
Petitions for panel rehearing and petitions for rehearing en banc denied.

United States v. Tarnow
705 F.3d 809
No. 12–1839.
United States Court of Appeals, Eighth Circuit, Feb. 8, 2013.

*Synopsis: Defendant was convicted, in the United States District Court for the District of Minnesota, Michael J. Davis, Chief Judge, of aggravated sexual abuse by an Indian in Indian Country. Defendant appealed.

*Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) evidence established defendant's use of force or threat of force to cause victim to engage in sexual acts;
(2) testimony of a woman defendant met at party was relevant as prior bad act evidence showing intent to use force or threat of force;
(3) any error was harmless as to admission of prior bad act testimony from defendant's former wife; and
(4) evidence did not warrant instruction on lesser included offense of simple assault.
Affirmed.

January

Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino
2013 WL 323223
No. 12–5046.
United States Court of Appeals, Tenth Circuit, Jan. 29, 2013.

*Synopsis: Gambling addict filed state court action pursuant to state's tribal gaming compact with Indian tribe alleging that tribe improperly induced him to gamble at its casino. After removal, the United District Court for the Northern District of Oklahoma, 2012 WL 896243, dismissed complaint, and plaintiff appealed.

*Holdings: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that compact did not waive tribal immunity.
Affirmed.

United States v. Zepeda
705 F.3d 1052
No. 10–10131.
United States Court of Appeals, Ninth Circuit, Jan. 18, 2013.

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Roslyn O. Silver, Chief Judge, of conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence, and he appealed.

*Holdings: The Court of Appeals, Paez, Circuit Judge, held that tribal enrollment certificate was insufficient to establish that defendant was an Indian for the purposes of federal jurisdiction under Major Crimes Act where the government introduced no evidence that defendant's bloodline was derived from a federally recognized tribe.
Reversed and remanded.
Watford, Circuit Judge, filed dissenting opinion.

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
702 F.3d 1147
Nos. 11–3883, 11–3884.
United States Court of Appeals, Eighth Circuit, Jan. 14, 2013.

*Synopsis: City sued band of Native American tribe, alleging breach of contractual obligations created when city and band agreed to establish casino in city's downtown, and also seeking declaratory and injunctive relief. After it was compelled to arbitrate amount of withheld taxes owed to city, tribe moved for relief from final order. The United States District Court for the District of Minnesota, Susan Richard Nelson, J., 830 F.Supp.2d 712, granted in part and denied in part band's motion for relief, and band appealed.

*Holdings: The Court of Appeals, Murphy, J., held that:
(1) city's only avenue for challenging National Indian Gaming Commission's (NIGC) determination, that agreement between band and city violated "sole proprietary interest" provision of Indian Gaming Regulatory Act (IGRA), was under the Administrative Procedure Act (APA);
(2) NIGC's determination that agreement violated IGRA permitted court to grant prospective relief from future enforcement of the agreement; and
(3) rule providing relief from a final judgment for any reason justifying relief permitted retroactive relief from decision requiring that band pay withheld taxes.
Affirmed in part, and reversed and remanded in part.

United States v. Duane Dale Big Eagle
702 F.3d 1125
No. 11–3754.
United States Court of Appeals, Eighth Circuit, Jan. 10, 2013.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Roberto A. Lange, J., 2011 WL 7462077, of conspiracy to commit bribery of an Indian tribal official, and aiding and abetting a bribery involving an agent of an Indian tribal government, and he appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) admission of uncharged crimes evidence was reviewable only for plain error;
(2) admission of uncharged crimes evidence was not plain error; and
(3) defendant waived right to challenge admission of evidence to extent prejudice would have been alleviated by curative instruction.
Affirmed.