Home

Indian Law Bulletins  |  Federal Trial Courts  |  2004

A service of the National Indian Law Library of the Native American Rights Fund


Links to different months :

January  |  February  |  March  |  April  |  May  |  June  |  July  |  August  |  September |  October  |  November  |  December

A note about links used in this document

Text highlighted in blue are links to information available on the Internet free of charge. Text highlighted in green are links to information available on Westlaw, for the convenience of those who have a Westlaw account. Please contact the National Indian Law Library if you need help obtaining legal documents.

The National Indian Law Library and Native American Rights Fund are not affiliated with Westlaw. See www.westlaw.com for more information about the Westlaw legal databases.

* Synopsis and holding provided under an agreement with Westlaw.com www.westlaw.com

December

Stately v. Indian Community School of Milwaukee, Inc.
351 F.Supp.2d 858, No. 02-C-0817
United States District Court, E.D. Wisconsin, December 30, 2004

Subjects: Teachers; Indian School of Milwaukee; Discrimination in employment; Termination of employees -- Indian School of Milwaukee; United States. Civil Rights Act of 1964 – Title 7; Jurisdiction -- United States; United States. Constitution. 1st Amendment; Freedom of religion -- United States; Wisconsin. Fair Employment Act.

*Synopsis: Terminated teacher sued private elementary and middle school, which was based on traditional Indian spiritual and cultural principles, alleging discrimination based on race and religion in violation of Title VII, § 1981, and Wisconsin Fair Employment Act, and asserting state-law claims for breach of contract and wrongful termination. School moved to dismiss for lack of jurisdiction.

*Holding: The District Court, Randa, Chief Judge, held that:
(1) school fairly cast into doubt District Court's jurisdiction over teacher's Title VII claim, with respect to whether school was "religious";
(2) teacher acted in ministerial role for purposes of Title VII's ministerial exception; and
(3) allowing teacher to proceed would result in excessive entanglement in violation of Establishment Clause.
Motion granted.

Bonnichsen v. United States of America
2004 WL 2901204, No. Civ. 96-1481-JE
United States District Court, D. Oregon, Decmber 15, 2004

Subjects: Scientists; Lawyers -- Fees; Kennewick Man; United States. Equal Access to Justice Act; United States. National Historic Preservation Act of 1966; Confederated Tribes of the Colville Reservation, Washington; Nez Perce Tribe of Idaho; Confederated Tribes of the Umatilla Reservation, Oregon; Confederated Tribes and Bands of the Yakama Nation, Washington (formerly the Confederated Tribes and Bands of the Yakama Indian Nation of the Yakama Reservation).

*Synopsis: (from the opinion) The Confederated Tribes of the Colville Reservation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, and Confederated Tribes and Bands of the Yakama Nation (the Tribes) move to intervene in this action. I deny the motion.

*Holding: not yet available

Dubray v. Commissioner of Internal Revenue
T.C. Memo.2004-278, No. 7547-02
United States Tax Court, December 13, 2004.

Subjects: Income tax -- Law and legislation -- United States -- Application -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota -- Members; Indian business enterprises -- Cheyenne River Reservation, South Dakota -- Members; Fort Laramie, Treaty of, 1851.

*Synopsis: Taxpayer, an enrolled member of Cheyenne River Tribe of Sioux Indians, petitioned for redetermination of deficiencies.

*Holding: The Tax Court, Goeke, J., held that Fort Laramie Treaty did not exempt from taxation income that taxpayer received from his employment with corporation owned and operated by Tribe.

In re: Duane Garvis
402 F.Supp.2d 1219
No. CV-03-0291-JLQ
United States District Court, E. D. Washington, December 2, 2004.

Subjects: Criminal jurisdiction -- Spokane Tribe of the Spokane Reservation, Washington; Jurisdiction -- Spokane Tribe of the Spokane Reservation, Washington; Police -- United States; United States. Bureau of Indian Affairs -- Officials and employees; Indians of North America -- Defined.

*Synopsis: Federal police officer petitioned for writ of habeas corpus, challenging Indian tribal court's jurisdiction to try him on criminal charges.

*Holding: The District Court, Quackenbush, J., held that officer was not "Indian" over whom tribal court had jurisdiction.
Relief granted.

November

Delaware Nation v. Commonwealth of Pennsylvania
2004 WL 2755545, No. 04-cv-166
United States District Court, E. D. Pennsylvania, Nov. 30, 2004

Subjects: Delaware Indians; Extinguishment of Indian title -- Delaware Indians; Pennsylvania; Bucks County (Pa.); Delaware Nation, Oklahoma (formerly the Delaware Tribe of Western Oklahoma); Land tenure -- Delaware Indians.

*Synopsis: (from the opinion) In this action, Plaintiff, The Delaware Nation, a federally recognized Native American tribe seeks to recover possession of 315 acres of land purchased from the Proprietors of Pennsylvania in 1741. For the following reasons, the Defendants’ Motions to Dismiss are GRANTED.

*Holding: not available

Related News Stories: Delaware Nation suit over Forks Twp. land dismissed (The Morning Call) 12/2/04

Gillette v. Marcellais
2004 WL 2677268, No. A4-04-123
United States District Court, D. North Dakota, Nov. 22, 2004

Subjects: Turtle Mountain Band of Chippewa Indians of North Dakota; Habeas corpus; Exhaustion of tribal remedies; Criminal actions arising in Indian Country (U.S.) -- Turtle Mountain Band of Chippewa Indians of North Dakota.

*Synopsis: (from the opinion) The plaintiff, Vance Gillette, filed a petition for habeas corpus relief which arises out of a criminal complaint on the Turtle Mountain Reservation in Belcourt, North Dakota...Gillette later supplemented his petition with a Request for Stay and Order to Show Cause and requested that the Court of Appeals bar his prosecution. On July 16, 2004, Gillette's petition was denied for failure to exhaust all available remedies because he had not yet been tried in trial court... It is clear and undisputed that Gillette has not exhausted his tribal remedies. As noted by the Turtle Mountain Court of Appeals, if Gillette is convicted in tribal court he will have an opportunity to appeal the conviction to the Court of Appeals. Once tribal remedies have been exhausted, Gillette may seek redress from this Court. However, this Court must adhere to the well-established doctrine of tribal exhaustion until Gillette has exhausted the remedies available to him within the tribal court system.

*Holding: not available

Cobell v. Norton
225 F.R.D. 4, No. CIV.A.96-1285(RCL)
United States District Court, District of Columbia, November 17, 2004

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; IIM (Individual Indian monies) accounts -- Records; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior -- Records and correspondence; Indian land transfers.

*Synopsis: In action brought by beneficiaries of individual Indian money (IIM) trust accounts against Secretary of Interior (DOI), Secretary of Treasury and other trustees, seeking declaratory and injunctive relief from alleged mismanagement of accounts, DOI requested further clarification of prior order requiring it to cease all communications with class members related to the sale, exchange, transfer, or conversion of Indian trust land pending Court approval of an accompanying notice.

*Holding: The District Court, Lamberth, J., held that DOI could properly send class members communications related to the sale, exchange, transfer, or conversion of Indian trust land, so long as such communications were accompanied by a Court-approved notice. Ordered accordingly.

Sirmans v. Brownlee
346 F.Supp.2d 56, No. CIV.A.00-1135 RCL
United States District Court, District of Columbia, Nov. 15, 2004

Subjects: Military -- United States; Discrimination; Equality before the law; Indians of North America -- Promotions.

*Synopsis: Native American male officer brought action alleging that Army's officer promotion practices were discriminatory. Parties filed cross-motions for summary judgment.

*Holding: The District Court, Lamberth, J., held that:
(1) settlement agreement did not preclude challenges relating to prior selection board's decision;
(2) officer had standing to challenge Army's equal opportunity instructions on ground that they discriminated against males; and
(3) instructions violated officer's Fifth Amendment right to equal protection.
Motions granted in part, and denied in part.

Greybuffalo v. Bertrand
2004 WL 2473250, No. 03-C-559-C.
United States District Court, W.D. Wisconsin, Nov. 1, 2004

Subjects: United States. Religious Land Use and Institutionalized Persons Act of 2000; Indian prisoners -- Wisconsin; Freedom of religion; Herbs -- Therapeutic use; Indians of North America -- Rites and ceremonies.

*Synopsis: (from the opinion) Plaintiff Johnson W. Greybuffalo contends that defendant Daniel Bertrand denied his proposal for a religious group for Native American inmates in violation of the free exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act. Jurisdiction is present under 28 U.S.C. §§ 1331 and 1343(a)(3).

*Holding: not available

October

Jicarilla Apache Nation v. Rio Arriba County
2004 WL 3413347
Docket No. CIV. 02-1470JBRLP
United States District Court, D. New Mexico, October 30, 2004

Subjects: Tax assessment -- New Mexico -- Rio Arriba County; Real property tax -- Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation); Equality before the law -- Jicarilla Apache Nation, New Mexico (formerly the Jicarilla Apache Tribe of the Jicarilla Apache Indian Reservation).

*Synopsis: Indian tribe brought civil rights action against county and county officials, alleging county's reassessment of ranch for property tax purposes violate equal protection. After summary judgment was entered in favor of the officials in their individual capacities on ground of qualified immunity, county and officials in their official capacities moved for summary judgment.

*Holding: The District Court, Browning, J., held that:
(1) additional discovery on issues of county officials' improper subjective intent and the existence of a municipal policy, practice, or custom to discriminate against Indian tribe was not required, and
(2) county's reassessment of ranch's status for property tax purposes did not violate Indian tribe's equal protection rights under a "class of one" theory. Motion granted.

Native American Arts, Inc. v. Aquino
2004 WL 2434260, No. 04 C 2540.
United States District Court, N.D. Illinois, Oct. 29, 2004

Subjects: Native American Arts (Ill.); Emma's Sterling Silver Jewelry; United States. Indian Arts & Crafts Act; Indian craft; Deceptive advertising.

*Synopsis: Plaintiff Native American Arts, Inc. has brought this action against defendants Emma Aquino and Mohammad Rahman, d/b/a Emma's Sterling Silver Jewelry, alleging that they falsely represented that goods they sold were Indian-made in violation of the Indian Arts and Crafts Act of 1990, 25 U.S.C. § 305e.

*Holding: not available

Zephier v. United States
No. 03-768L.
United States Court of Federal Claims, Oct. 29, 2004

Subjects: United States. Tucker Act; Abused Indian children; Off-reservation boarding schools; United States. Bureau of Indian Affairs; Class actions (Civil procedure).

*Synopsis: (from the opinion) Plaintiffs, seven members of the Sioux Nation sue the United States under the Tucker Act, 28 U.S.C. 1491, for $25 billion in damages allegedly caused by sexual, physical, and mental abuse suffered during 1921 - 1924 and perhaps under other unspecified dates at Indian boarding schools managed by various church organizations, and overseen by the Bureau of Indian Affairs. Plaintiffs also seek to certify and represent a class of similarly situated plaintiffs.

*Holding: not available

Related News Stories:Lawyer: Indian school students have recourse (AP) 11/16/04. Judge dismisses $25B BIA boarding school suit. (Indianz.com) 11/8/04.

Tunica-Biloxi Tribe v. Bridges no free link currently available
2004 WL 137183, No. 03-881
United States District Court, M.D. Louisiana, October 29, 2004

Subjects: Mobile homes -- Taxation -- Louisiana; Constitutional law; Tunica-Biloxi Indian Tribe of Louisiana -- Members; Taxation -- Louisiana; Tax collection -- Tunica-Biloxi Indian Tribe of Louisiana.

*Synopsis: (from the opinion) The plaintiffs originally filed suit against Cynthia Bridges in this court, "seeking to enjoin the unconstitutional levy and collection of state sales tax on enrolled individual tribe members," and "for equitable restitution of al monies illegally collected by their tribe, and "all similarly situated individuals," constitute a class that was illegally taxed by the State on the purchase of mobile homes.

*Holding: not yet available

Wolfchild v. United States
62 Fed.Cl. 521, No. 03-2684L
United States District Court, M.D. Louisiana, October 27, 2004.

Subjects: Fiduciary accountability -- United States; Trusts and trustees; Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims.

*Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862 brought suit against the United States for breach of fiduciary duty and contract in the management of property originally provided for the benefit of loyal Mdewakanton. Government filed motion to dismiss, and plaintiffs filed cross-motion for partial summary judgment.

*Holding: The Court of Federal Claims, Lettow, J., held that:
(1) United States created a trust for Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota, as reflected in Appropriations Acts of 1888, 1889, 1890 and 1901;
(2) trust was not terminated by 1980 Act which transferred whatever title the United States had in certain trust land to the United States in trust for three Mdewakanton Sioux communities in Minnesota;
(3) Indian Trust Accounting Statute applied to breach of fiduciary duty claims; and
(4) breach of contract claim accrued in 1981, and thus was untimely.
Defendant's motion granted in part and denied in part; plaintiffs' cross-motion granted in part and denied in part.

American Civil Liberties Union of Minnesota v. Kiffmeyer
2004 WL 2428690, No. 04-CV-4653 MJR/FLN.
United States District Court, D. Minnesota, Oct. 28, 2004

Subjects: Identification cards; Indians of North America -- Minnesota; American Civil Liberties Union; Voting; Elections.

*Synopsis: (from the opinion) For purposes of Minn.Stat. Sec. 201.061, subd. 3, tribal identification cards that contain the name, address, signature and picture of the tribal member will have the same status as a Minnesota driver license. Therefore, such tribal identification cards are sufficient proof of identity and residency, and may be used without any other documentation to register to vote on election day in the precinct in which the address on the tribal identification card is located, without regard to whether the tribal members live on or off their tribal reservations.

(2) For purposes of Minn. Rule Part 8100.5100, photographic tribal identification cards that do not contain any address or a current address can be used to meet the standards of subpart 2(A). Therefore, a tribal member can use such tribal identification card together with a current utility bill to register to vote on election day in the precinct in which the address on the utility bill is located.

*Holding: not available

Wolfchild v. United States
62 Fed.Cl. 521, No. 03-2684L
United States Court of Federal Claims, Oct. 27, 2004

Subjects: Fiduciary accountability -- United States; Trusts and trustees – Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims.

*Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862 brought suit against the United States for breach of fiduciary duty and contract in the management of property originally provided for the benefit of loyal Mdewakanton. Government filed motion to dismiss, and plaintiffs filed cross-motion for partial summary judgment.

*Holding: The Court of Federal Claims, Lettow, J., held that:
(1) United States created a trust for Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota, as reflected in Appropriations Acts of 1888, 1889, 1890 and 1901;
(2) trust was not terminated by 1980 Act which transferred whatever title the United States had in certain trust land to the United States in trust for three Mdewakanton Sioux communities in Minnesota;
(3) Indian Trust Accounting Statute applied to breach of fiduciary duty claims; and
(4) breach of contract claim accrued in 1981, and thus was untimely.
Defendant's motion granted in part and denied in part; plaintiffs' cross-motion granted in part and denied in part.

Tsosie v. United States
441 F.Supp.2d 1100
No. CIV.02-1411 MCA/RHS
United States District Court, D. New Mexico, October 22, 2004

Subjects: not yet available

*Synopsis: Family of deceased member of Navajo Nation brought action against United States, alleging negligent failure of Indian Health Service (IHS) to diagnose hantavirus. Government moved to dismiss for lack of jurisdiction and failure to state claim or, in alternative, for summary judgment. After motion was granted in part and denied in part, additional briefing was directed.

*Holding: The District Court, Armijo, J., held that:
(1) special trust relationship between United States and Native Americans, in and of itself, did not give rise to fiduciary duty providing breach-of-trust action for money damages based on failure of Indian Health Service (IHS) to diagnose hantavirus, and
(2) statute did not extend protections of Federal Tort Claims Act (FTCA) to non-IHS physician who worked in emergency room but did not have admitting privileges at IHS facility.
Motion granted.

Cobell v. Norton
224 F.R.D. 266, No. CIV.A. 96-1285(RCL)
United States District Court, District of Columbia, Oct. 22, 2004

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; IIM (Individual Indian monies) accounts -- Records; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior -- Records and correspondence.

*Synopsis: Interior and Treasury Departments, whose statements of account to beneficiaries of Individual Indian Money (IIM) trust accounts had been found to be deficient, 212 F.R.D. 14, sought approval of amended statements and related communications. Account beneficiaries who were members of class asserting Departments' breach of fiduciary duty objected.

*Holding: The District Court, Lamberth, J., held that:
(1) statements and communications could be sent if accompanied by requisite notice, and
(2) allegations made in beneficiaries' pleadings would not be stricken as scandalous.
Statements conditionally approved.

Related News Stories: Cobell v. Norton synopsis (www.indiantrust.com)

Gros Ventre Tribe v. U.S., Bureau of Land Management
344 F.Supp.2d 1221, No. CV 00-69-M-DWM.
United States District Court, D. Montana, Oct. 22, 2004

Subjects: Coal mines and mining -- Montana; Groundwater -- Pollution; Arsenic -- Environmental aspects; Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; United States. Bureau of Land Management.

*Synopsis: Indian tribes brought action for declaratory and injunctive relief, alleging that the Government violated its trust responsibility to the tribes by approving mining operations on non-tribal lands that caused pollution of tribal lands. Following a grant of summary judgment for the Bureau of Land Management (BLM), tribes moved to alter or amend.

*Holding: The District Court, Molloy, Chief Judge, held that:
(1) Administrative Procedure Act did not waive Government's sovereign immunity;
(2) action was time-barred; and
(3) action alleging that the Government breached its common law trust obligation to the tribes by approving the mining operations, resulting in pollution of tribal lands, was time-barred.
Motion denied.

United States v. Peltier
344 F.Supp.2d 539, No. CIV.A.00-1135 RCL
United States District Court, E.D. Michigan, Northern Division, Oct. 26, 2004

Subjects: Searches and seizures -- On Indian reservations -- Saginaw Chippewa Indian Tribe of Michigan, Isabella Reservation; Jurisdiction -- Michigan; Due process of law.

*Synopsis: Defendant was charged with various controlled substance and firearms offenses. Defendant brought motion to suppress evidence and to suppress statements.

*Holding: The District Court, Lawson, J., held that:
(1) Court had subject matter jurisdiction over defendant;
(2) undercover police officer did not violate Fourth Amendment by entering home with owner of trailer park without warrant, on purported basis of testing water within home even though his true purpose was concealed;
(3) defendant's live-in girlfriend had authority under Fourth Amendment to consent to entry of home;
(4) state judicial officer did not have authority to issue warrant to state concept unit to search premises within Indian country, and, consequently, evidence seized pursuant thereto had to be suppressed; and
(5) defendant's statements to police while he was suffering from drug withdrawal were not in violation of his rights under due process clause, and did not have to be suppressed.
Motion granted in part and denied in part.

Corliss v. Levesque Auto Services, Inc.
2004 WL 2337019, No. Civ.A. 04-10834-DPW
United States District Court, D. Massachusetts, Oct. 13, 2004

Subjects: Jurisdiction -- United States; Damages; Automobiles -- Maintenance and repair; Towing -- On Indian reservations -- Watuppa Reservtion (Mass.).

*Synopsis: (from the opinion) The following facts are drawn from the plaintiff's complaint. The plaintiff is a member and council chairman of an Indian tribe--the Nemasket Troy Wampanoag tribe--formed in the year 2000, which holds meetings and other activities on the Watuppa Indian Reservation (the "Reservation"). On April 20, 2001, he arranged for his car, which had broken down while he was traveling nearby, to be towed to the grounds of the Reservation. On or about May 5, 2001, the plaintiff's car was towed from the Reservation, allegedly because it had been abandoned there, by a tow-truck owned and operated by Levesque. Levesque was authorized to perform towing services on the Reservation by the FRPD.

Nearly three years later, on April 27, 2004, the plaintiff commenced the present action against Levesque, the FRPD, and "Does 1-10" for the tort of conversion. In his complaint, the plaintiff maintains that this court "has jurisdiction over all local Indian matters" and that the FRPD had no jurisdiction over the Reservation lands. On June 22, 2004, the FRPD moved pursuant to Fed.R.Civ.P. 12(b)
(1) that the complaint be dismissed for lack of subject matter jurisdiction due to the absence of federal question, diversity of citizenship, or any other grounds for federal court jurisdiction.

*Holding: not available

Wyandotte Nation v. Sebelius
337 F.Supp.2d 1253, No. 04-2140-JAR
United States District Court, D. Kansas, Oct. 6, 2004

Subjects: Status (Law); Wyandotte Tribe of Oklahoma; Land use -- Wyandotte Tribe of Oklahoma; Indian gaming -- Wyandotte Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; Casinos -- Wyandotte Tribe of Oklahoma; Law -- Oklahoma.

*Synopsis: Indian tribe, involved in dispute with federal government over status of land on which it was operating casino, moved for preliminary injunction to prevent state from enforcing its gambling laws on land in question.

*Holding: The District Court, Robinson, J., held that tribe was likely to prevail on merits of claim that land on which casino was operating was Indian land.

September

State of Wisconsin v. The Stockbridge-Munsee Community
366 F.Supp.2d 698
Docket No. 98-C-0871
United States District Court, E.D. Wisconsin, September 30, 2004

Subjects: Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Wisconsin; Gambling on Indian reservations -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Pine Hills Golf Course and Supper Club (Wis.); Indian gaming -- Class III -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Intergovernmental agreements -- Wisconsin.

*Synopsis:State of Wisconsin filed action alleging that Indian tribe was operating Class III electronic games of chance on land located outside the boundaries of the tribe's reservation in violation of Indian Gaming Regulatory Act (IGRA). Defendants filed motion for summary judgment.

*Holding: The District Court, Gorence, United States Magistrate Judge, held that:
(1) Congress intended to diminish the size of Indian reservation to 18 contiguous sections when it passed Act of 1871, and
(2) Act of 1906 disestablished Indian reservation.
Defendants' Motion denied. Summary judgment granted in favor of plaintiff.

Ellenbecker v. Centers for Medicare and Medicaid Services
335 F.Supp.2d 999, No. CIV. 02-3042.
United States District Court, D. South Dakota, Central Division, Sep.30, 2004

Subjects: South Dakota. Dept. of Social Services; United States. Dept. of Health and Human Services. Departmental Appeals Board; Medicaid; Medical care -- Cost.

*Synopsis: South Dakota Department of Social Services (DSS) appealed from final decision by the Departmental Appeals Board (DAB) of the United States Department of Health and Human Services (DHHS) disallowing claims for reimbursement at 100% enhanced reimbursement rate for Medicaid costs incurred and paid by State for eligible Indians who received services non-Indian Health Service (IHS) facilities. DSS and DHHS cross moved for summary judgment.

*Holding: The District Court, Kornmann, J., held that services at non-IHS were "received through" IHS, within meaning of statute requiring 100% reimbursement for such services, since referral to non-IHS facility had been made pursuant to contractual agreement by IHS. Plaintiffs' motion for summary judgment granted.

Wopsock v. Nordwall
2004 WL 4951450
No. 2:03CV826 TC
United States District Court, D. Utah, Central Division, September 29, 2004

Subjects: not yet available

*Synopsis: (from the opinion) The Plaintiffs, who are individual members of the Ute Indian Tribe, have filed suit against various federal government officials and agencies (for example, the Bureau of Indian Affairs) for alleged breach of trust duties concerning assets of the Ute Indian Tribe. The Ute Indian Tribe is an intervening defendant.

*Holding: not yet available

Cobell v Norton
225 F.R.D. 41, No. CIV. A. 96-1285 RCL
United States District Court, District of Columbia, Sep 29, 2004

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; IIM (Individual Indian monies) accounts -- Records; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior -- Records and correspondence.

*Synopsis: Beneficiaries of Individual Indian Money (IIM) trust accounts brought action alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of Interior and Treasury. Plaintiffs moved for preliminary injunction.

*Holding: The District Court, Lamberth, J., held that:
(1) court had jurisdiction to address whether communications from Interior regarding sale of Indian land violated prior court order;
(2) class members had standing to challenge communications; and
(3) Interior had to provide notice of pendency of litigation to class members before undertaking any such sales.
Motion denied.

The Samish Indian Nation v. United States Department of Interior
2004 WL 3753252
No. C02-1955P
United States District Court, W.D. Washington, September 22, 2004

Subjects: not yet available

*Synopsis: (from the opinion) Upon their recognition in 1996, the Tribe received "New Tribes" funding, money intended (among other things) to assist them in developing their own tribal government. BIA acknowledges that the funding amount is arrived at pursuant to a formula based on factors such as the number of members enrolled in the tribe, whether they have a land base and how remote they are geographically. Plaintiff alleges that this money is allocated without a formal determination of need. After three years of "new tribes" funding, the BIA "rolled over" the Tribe's budgetary allotment into another program called Other Aid to Tribal Government. Plaintiff's complaint appears to be grounded in the allegation that the agency is not adhering to the mandates of the Federal Acknowledgement Act and as a result they are being treated differently for budget and funding purposes than "historic" tribes which are already included in the budget process.

*Holding: not yet available

Bone Shirt v. Hazeltine
336 F.Supp.2d 976, No. Civ. 01-3032-KES
United States District Court, D. South Dakota, Central Division, Sept. 15, 2004

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

*Synopsis: Native American voters brought suit alleging that South Dakota legislative redistricting plan violated Voting Rights Act.

*Holding: The District Court, Schreier, J., held that redistricting plan which established a 90% supermajority of Indian voters in one district resulted in dilution of Indian voting rights, in violation of § 2 of the Voting Rights Act (VRA). Judgment for plaintiffs.

Native American Arts, Inc. v. Hartford Casualty Insurance Co.
2004 WL 2065065, Nos. 03 C 7233, 03 C 7234
United States District Court, N. District of Illinois, September 10, 2004

Subjects: Native American Arts (Ill.); Hartford Casualty Insurance Co.; United States. Indian Arts & Crafts Act.

*Synopsis: (from the opinion) Plaintiff Native American Arts, Inc. ("NAA") is an Illinois based and incorporated company that is engaged in the business of selling Indian-made arts, crafts, and jewelry. NAA is wholly owned by Indians. In 2001, NAA filed two lawsuits in this district that ultimately named as defendants various subsidiaries of Stravina Operating Company, LLC ("Stravina"). NAA alleged in both the AI and BB Litigation that Stravina-owned companies were liable under the Indian Arts and Crafts Act of 1990, 25 U.S.C. § 305 et seq. ("IACA"). The IACA authorizes certain Indian groups to bring civil actions against any person who "directly or indirectly offers or displays for sale or sells a good ... in a manner that falsely suggests it is Indian produced.

*Holding: not available

Seneca-Cayuga Tribe of Oklahoma v. Town of Aurelius New York
2004 WL 1945359, No. 5:03-CV-00690 (NPM)
United States District Court, N.D. New York, September 1, 2004

Subjects:Seneca-Cayuga Tribe of Oklahoma; Aurelius (N.Y. : Town); Montezuma (N.Y. : Town); Cayuga County (N.Y.); Real property tax -- Seneca-Cayuga Tribe of Oklahoma; Land use.

*Synopsis: (from the opinion) Plaintiff, the Seneca-Cayuga Tribe of Oklahoma, a federally recognized Indian Tribe, ("the Tribe") filed this suit against defendants, Town of Aurelius, New York, Town of Montezuma, New York and County of Cayuga, New York ("the Municipal Defendants") seeking declaratory and injunctive relief regarding the nature of use and taxation of property plaintiff owns within defendants' municipal boundaries ("the Property").

*Holding: not available

August

State of Texas v. United States
2004 WL 3254718, No. A-04-CA-143-LY
United States District Court, W.D. Texas, Austin Division, August 18, 2004

Subjects: Texas; United States; Indian gaming -- Class III -- Kickapoo Traditional Tribe of Texas; Intergovernmental agreements -- Texas; Intergovernmental agreements -- Kickapoo Traditional Tribe of Texas; Negotiation -- Texas; United States. Indian Gaming Regulatory Act; Good faith (Law).

*Synopsis: (from the opinion) The Kickapoo Traditional Tribe of Texas ("Kickapoo Tribe") is an Indian tribe recognized in IGRA "by the Secretary for the special programs and services" and as "possessing powers of self-government." Id. § 2703(5) . In 1995 representatives of the Kickapoo Tribe met with the Governor of Texas's staff to discuss the possibility of negotiating a compact to conduct Class III gaming in Texas. When the State of Texas rejected the Kickapoo Tribe's offer to negotiate a compact, the Kickapoo Tribe filed suit on October 13, 1995, alleging that Texas failed to negotiate in good faith under IGRA.

*Holding: not yet available

Lebeau v. United States
334 F.Supp.2d 1200, No. 02-4168
United States District Court, S. South Dakota, August 18, 2004

Subjects: United States. Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998; Judgments; United States. "Little" Tucker Act.

*Synopsis: Native Americans sued United States, challenging constitutionality of statute diminishing their share of judgment fund created due to United States' breach of two treaties and asserting related Little Tucker Act claims for breach of trust for delay in fund distribution. After judgment in their favor became final, plaintiffs moved for awards of attorney fees and expenses pursuant to Equal Access to Justice Act (EAJA).

*Holding: The District Court, Piersol, Chief Judge, held that:
(1) plaintiffs were entitled to award of attorney fees pursuant to EAJA;
(2) plaintiffs could recover fees for legal services rendered by their original counsel until he withdrew from case;
(3) plaintiffs could not recover attorney fees for legal services performed by their original attorney after he filed his formal notice of withdrawal of counsel; and
(4) plaintiffs could recover attorney fees for time spent by their attorney in responding to issues raised by tribes that intervened in action.
Ordered accordingly.

Greybuffalo v. Bertrand
2004 WL 1852987, No. 03-C-559-C
United States District Court, W.D. Wisconsin, Aug. 16, 2004

Subjects: United States. Religious Land Use and Institutionalized Persons Act of 2000; Indian prisoners -- Wisconsin; Freedom of religion; Herbs -- Therapeutic use; Indians of North America -- Rites and ceremonies.

*Synopsis: (from the opinion)Plaintiff Johnson Greybuffalo is proceeding on the following four claims:
(1) defendant Robert Novitski denied his request to purchase medicinal herbs for smudging,
(2) defendant denied his request to allow the Native American drum singers to have practice time,
(3) defendant Michael Baenen denied his request to allot more time for the Native American pipe and drum ceremony and Native American study group
(4) defendant Bertrand denied his proposal for a religious group for Native American inmates; all in violation of the free exercise clause of the First Amendment.

IT IS ORDERED that:
(1) The motion to dismiss filed by defendants Daniel Bertand, Robert Novitski and Michael Baenen is GRANTED. The following claims are DISMISSED without prejudice for plaintiff Johnson Greybuffalo's failure to exhaust his administrative remedies:
(2) Because plaintiff has no remaining claims against defendants Baenen and Novitski, these defendants are DISMISSED from this case.

*Holding: not available

Bruner v. United States
340 F.Supp.2d 1204 No. 02-CV-504-H(C)
United States District Court, N.D. Oklahoma, Aug. 17, 2004

Subjects: Mines and mineral resources -- Taxation -- Oklahoma; Mines and mineral resources -- Indian Country (Oklahoma); Indian allotments; Restricted lands; Five Civilized Tribes; Due process of law; United States. Constitution; Law -- United States.

*Synopsis: Internal Revenue Service (IRS) disallowed all claims for federal income tax refunds of Indian, as taxpayer, with regard to federal law that authorized State of Oklahoma to tax oil and gas production on restricted Indian land. Taxpayer brought action against United States to recover taxes paid.

*Holding: The District Court, Holmes, Chief Judge, held that:
(1) Indian did not have vested right to exemption from taxation, and, accordingly, no vested right had been abrogated by lapse of tax exemption;
(2) Indian was not entitled to hold real property exempt from federal income taxes simply because he was restricted from alienating that property;
(3) allotment of real property taken by Indian under Curtis Act, and corresponding tax exemption, did not give right to heir to hold that property exempt from taxation;
(4) Indian was not entitled to compensation under Fifth Amendment for lapse of tax exemption on real property;
(5) state tax on oil and gas production from restricted Indian land, authorized by federal law, was income tax; and
(6) enactment of legislation which provided for state to tax oil and gas production on restricted Indian land was not taking, and did not offend Constitutional principles of due process.
Ordered accordingly.

LaFramboise v. Thompson
329 F.Supp.2d 1054, No. A-4-04-011
United States District Court, D. North Dakota, NW, August 16, 2004

Subjects: Medical personnel -- Malpractice -- On Indian reservations -- Turtle Mountain Band of Chippewa Indians of North Dakota; Physicians -- Malpractice -- On Indian reservations -- Turtle Mountain Band of Chippewa Indians of North Dakota; United States. Indian Health Service; United States. Dept. of Health and Human Services; Head -- Injuries; Law -- United States; Law -- North Dakota; Law -- Turtle Mountain Band of Chippewa Indians of North Dakota; Jurisdiction -- United States; Jurisdiction -- North Dakota; Jurisdiction -- Turtle Mountain Band of Chippewa Indians of North Dakota.

*Synopsis: Mother brought action under Federal Tort Claims Act (FTCA), alleging medical malpractice occurring during her son's treatment at a government-operated medical facility on an Indian reservation. Government moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that
(1) North Dakota law would be applied, and
(2) under North Dakota law, failure to file expert opinion affidavit required dismissal.
Motion granted.

July

Western Shoshone National Council v. United States
357 F.Supp.2d 172, No. 03-CV-2009 (RJL)
United States District Court, District of Columbia, July 30, 2004.

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

*Synopsis: Indian tribe brought action against United States to quiet title in land and for accounting. Government moved to transfer or dismiss.

*Holding: The District Court, Leon, J., held that:
(1) claims to avoid prior Indian Claims Commission judgments and for monetary relief would be transferred to Court of Federal Claims, and
(2) quiet title claims would be transferred to district court where land was located.
Motion granted.

The Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton
327 F.Supp.2d 995, No. 03-C-0588-C
United States District Court, W.D. Wisconsin, July 30, 2004

Subjects: Gambling on Indian reservations; Indian gaming; Intergovernmental agreements; United States. Dept. of the Interior; Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Wisconsin.

*Synopsis: Two Indian tribes sought declaratory judgment voiding a paragraph in an amendment to a gaming compact between a third tribe and a State, which had been allowed to go into effect without final action by the Department of the Interior (DOI). Third tribe intervened, and DOI and intervenor moved to dismiss.

*Holding: The District Court, Crabb, J., held that:
(1) DOI's failure to make an affirmative or negative ruling on the proposed amendment did not constitute reviewable final agency action;
(2) dismissal was required by failure to join State and third tribe as necessary parties;
(3) State and third tribe were indispensable parties who could not be joined as parties; and
(4) plaintiff tribes lacked standing.
Motions granted.

Beams v. Norton
327 F.Supp.2d 1323, No. 03-4072-JAR
United States District Court, D. Kansas, July 30, 2004

Subjects: United States. Civil Rights Act of 1964; United States. Indian Reorganization Act; Sovereign immunity -- United States; Jurisdiction -- United States; Discrimination in employment -- United States; Indian preference in hiring -- United States; United States. Dept. of the Interior; Soil conservationists.

*Synopsis: Former employee, proceeding pro se, sued Bureau of Indian Affairs (BIA), alleging employment discrimination and retaliation in violation of Indian Preference Act (IPA). BIA moved to dismiss or for summary judgment.

*Holding: The District Court, Robinson, J., held that:
(1) IPA did not create a private right of action, nor a remedy, for an individual Indian;
(2) court lacked subject matter jurisdiction inasmuch as United States had not waived its sovereign immunity to suit under IPA; and
(3) complaint failed to state a claim upon which relief could be granted.
Motion granted.

Kaul v. Battese
2004 WL 1732309, No. 03-4203-SAC
United States District Court, D. Kansas, July 27, 2004

Subjects: United States. Constitution. 4th Amendment; Jurisdiction -- United States; Indian reservation police -- Prairie Band of Potawatomi Indians, Kansas; Arrest; Fireworks; Sovereign immunity -- Prairie Band of Potawatomi Indians, Kansas; Prairie Band of Potawatomi Indians, Kansas -- Officials and employees; United States. Indian Civil Rights Act.

*Synopsis: (from the opinion) The plaintiff claims the defendants acting under color of law granted to them by the Potawatomi Indian Reservation violated his Fourth Amendment rights by unlawfully arresting him without probable cause...The plaintiff argues that tribal sovereign immunity does not protect the defendants from individual capacity claims under § 1983. The plaintiff asks the court to deny the defendants' motion and grant him leave to amend the complaint as clarified in his response...[N]o action under 42 U.S.C. § 1983 can be maintained in federal court for persons alleging deprivation of constitutional rights under color of tribal law.... As the purpose of 42 U.S.C. § 1983 is to enforce the provisions of the fourteenth amendment, it follows that actions taken under color of tribal law are beyond the reach of § 1983, and may only be examined in federal court under the provisions of the Indian Civil rights Act. ..Thus, the plaintiff has not alleged any claims against these defendants over which this court would have subject matter jurisdiction. IT IS THEREFORE ORDERED that the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dk.11) is granted.

*Holding: not available

Quair v. Sisco
359 F.Supp.2d 948, No. CVF025891RECDLB
United States District Court, E.D. California, July 26, 2004

Subjects: United States. Indian Civil Rights Act; Exile (Punishment) -- Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Santa Rosa Indian Community of the Santa Rosa Rancheria, California -- Members; Santa Rosa Indian Community of the Santa Rosa Rancheria, California -- Membership.

*Synopsis: Disenrolled members of Indian Tribe petitioned for writ of habeas corpus pursuant to the Indian Civil Rights Act (ICRA), alleging that they were denied procedural and substantive rights under ICRA in the disenrollment proceedings.

*Holding: On cross-motions for summary judgment, the District Court,
Coyle, Senior District Judge, held that:
(1) petitioners met requirements for seeking habeas review under ICRA;
(2) district court had subject matter jurisdiction over the petitions;
(3) fact issues barred summary judgment as to petitioners' claims of violations of ICRA's due process and fair trial clauses;
(4) petitioners' rights under ICRA's excessive fines and penalties clause were not violated;
(5) doctrine of sovereign immunity barred district court's review of petitioners' claim that their disenrollment and banishment violated the tribe's constitution;
(6) tribal General Council's resolution excluding petitioners from the reservation required approval of Bureau of Indian Affairs (BIA); and
(7) federal concurrence was not required in decision of tribal General Council to disenroll petitioners.
Motions granted in part and denied in part.

Tunica-Biloxi Indians of Louisiana v. Pecot
351 F.Supp.2d 519, No. CIV.A.02-1512
United States District Court, W.D. Louisiana, July 26, 2004

Subjects: Paragon Casino Resort; Indian business enterprises -- Tunica-Biloxi Indian Tribe of Louisiana; Sovereign immunity -- Tunica-Biloxi Indian Tribe of Louisiana; Molds (Fungi); Tunica-Biloxi Construction Company; Hotels -- Design and construction.

*Synopsis: After Indian tribe brought tribal court action for damages and state court action for declaratory judgment, arising out of the discovery of mold contamination in hotel addition to casino, subcontractors and their insurers removed state court action and moved for partial summary judgment.

*Holding: The District Court, Little, Jr., J., held that tribal court lacked subject matter jurisdiction.
Motion granted.

Native American Arts, Inc. v. The Waldron Corporation
2004 WL 1687184, No. 01 C 2370
United States District Court, N.D. Illinois, Eastern Division, July 23, 2004

Subjects: New trials -- United States; Native American Arts (U.S.); Waldron Corporation; United States. Indian Arts and Crafts Enforcement Act of 2000; Standing to sue; Indians of North America -- Associations, institutions, etc.

*Synopsis: (from the opinion) At the conclusion of a jury trial, a jury found in favor of Defendant in this case. Plaintiffs now seek to vacate the judgment entered against them and seek a new trial. Plaintiffs argue that this court erred in refusing to utilize Plaintiffs' jury instruction regarding 25 C.F.R. 309.24 on the basis that the regulation is unconstitutional. Plaintiffs also argue that the court erred in refusing to instruct the jury in regards to 25 C.F.R. 309.24 because Plaintiffs contend that the ruling is contrary to rulings of prior judges in the case. Plaintiffs also claim that the court failed to instruct the jury properly on the issue of intent and that the court erred in admitting Defendant's point of purchase card. In addition, Plaintiffs contend that the court erred in admitting the opinion testimony of Sherry Baskin and Linda Olson and that the court erred in improperly instructing the jury regarding the calculation of damages. Finally, Plaintiffs argue that the court erred in denying Plaintiffs' motion for a mis-trial based on alleged personal attacks in opening arguments, closing arguments, and that the court erred in refusing to admit the statements of Bear Tracks employees. Plaintiffs also make various other cursory objections, but fail to provide any basis for their position.

*Holding: not available

Wyandotte Nation v. The Unified Gov., et al
222 F.R.D. 490, No. CIV.A.01-2303-CM.
United States District Court, D. Kansas, July 14, 2004.

Subjects: Treaties -- Wyandotte Tribe of Oklahoma; Quiet title actions -- Wyandotte Tribe of Oklahoma; Kansas City (Kan.); Wyandotte County (Kan.); Extinguishment of Indian title -- Wyandotte Tribe of Oklahoma; Trespass.

*Synopsis: Indian tribe brought suit seeking a declaratory judgment quieting title to land located in Kansas City, Kansas. Defendants included the Unified Government of Kansas City and Wyandotte County, Kansas, and numerous private landowners. Defendants filed motions to dismiss.

*Holding: The District Court, Murguia, J., held that:
(1) sections of land alleged to have been given to the Wyandotte Nation by the Delaware tribe in an 1843 transaction were included in the term "Wyandott country" found in 1855 treaty between the Wyandotte Nation and the United States;
(2) Kansas statutes of limitation were applicable to counts of complaint by claiming trespass, and seeking declaratory judgment quieting title, and thus those counts were time-barred; and
(3) United States was "indispensable party" who could not be joined in action, so that action could not in equity and good conscience proceed solely against landowners who had no role in original issuance of patents.
Motions granted.

Taylor v. Bureau of Indian Affairs
325 F.Supp.2d 1117, No. 03 CV 1819-LAB BLM
United States District Court, S.D. California, July 9, 2004

Subjects: Cattle; United States. Bureau of Indian Affairs; United States. Indian Civil Rights Act; United States. Administrative Procedure Act; Grazing -- On Indian reservations -- Los Coyotes Band of Cahuilla & Cupeno Indians of the Los Coyotes Reservation, California (formerly the Los Coyotes Band of Cahuilla Mission Indians of the Los Coyotes Reservation); Grazing rights -- United States.

*Synopsis: Cattle owners brought action challenging Bureau of Indian Affairs' (BIA's) proposed impoundment of cattle for grazing on Indian land. BIA moved to dismiss.

*Holding: The District Court, Burns, J., held that:
(1)Indian band was indispensable party, to extent claim was based on owners' disputed assertion that they were or should be members of band;
(2)owners could not assert claim based on band's violation of their civil rights.
Motion granted.

Hopland Band of Pomo Indians v. Norton
324 F.Supp.2d 1067, No. C 04-00102-WHA.
United States District Court, N.D. California, July 1, 2004.

Subjects: United States. Indian Self-Determination and Education Assistance Act; United States. Indian Law Enforcement Reform Act; Contracts; United States. Dept. of the Interior; Hopland Band of Pomo Indians of the Hopland Rancheria, California.

*Synopsis: Indian tribe brought action alleging that government violated Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA) by declining to enter into proposed contract for law enforcement services. Government moved to dismiss.

*Holding: The District Court, Alsup, J., held that, as a matter of first impression, contractible programs authorized by ISDEAA included tribe's request, under Indian Law Enforcement Reform Act of 1990 (ILERA), that some of its police officers be deputized to enforce federal law on the reservation.
Motion dismissed.

Related News Stories: Judge Strikes Down Wyandotte Nation Lawsuit Seeking Industrial Land (The Wichita Eagle) 07/15

June

Cermak v. Norton
322 F.Supp.2d 1009, No. CIV.98-1248DSDSRN
United States District Court, D. MN., June 22, 2004

Subjects: Trust lands -- Scott County (Minn.); United States. Dept. of the Interior; Norton, Gale A.; Inheritance and succession; Trusts and trustees.

*Synopsis: Descendants of member of Mdewakanton band of Sioux Indians sued Department of the Interior, claiming that Department had wrongfully deprived them of their rights in parcels of land that had been assigned to member through issuance of Indian land certificates.

*Holding: Upon defendants' motion to dismiss, or in the alternative, for summary judgment, and descendants' cross-motion for summary judgment, The District Court, Doty, J., held that:
(1) descendants' Administrative Procedure Act (APA) action was barred as to Bureau of Indian Affairs' (BIA) 1989 transfer of the beneficial interest of plaintiffs' ancestor's land to tribe and subsequent cancellation of Indian land certificates where descendants failed to exhaust their available administrative remedies;
(2) Indian Board of Interior Appeals' (IBIA) refusal to reissue Indian land certificates in favor of former certificate holder's descendants was not arbitrary or capricious; and
(3) res judicata doctrine precluded descendants of former holder of Indian land certificates from claiming an interest in the land.
Defendants' motion for summary judgment granted.

Sac and Fox Tribe of the Mississippi in Iowa v. Bureau of Indian Affairs
321 F.Supp.2d 1055, No. C04-1;RR
United States District Court, N.D. Iowa, June 10, 2004

Subjects: Sac & Fox Tribe of the Mississippi in Iowa; United States. Bureau of Indian Affairs; United States -- Officials and employees; Contested elections -- Sac & Fox Tribe of the Mississippi in Iowa; Federal question; Standing to sue; Jurisdiction.

*Synopsis: Indian tribe's election board brought action against Bureau of Indian Affairs (BIA) and BIA officials, objecting to BIA recognition of separate election held by dissident group of tribe members on day of tribal council election, seeking declaratory judgment that the BIA unlawfully interfered with tribal elections, and seeking mandamus requiring the BIA to recognize the tribal council as elected in election supervised by the election board. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction.

*Holding: The District Court, Reade, J., held that:
(1) defendants' motion to dismiss was a factual attack to jurisdiction, in which the court could consider competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute;
(2) election board had standing to bring the action;
(3) district court had federal question jurisdiction to review, pursuant to the Administrative Procedure Act (APA), BIA's recognition of separate election held by dissident group; and
(4) district court lacked subject matter jurisdiction over election board's requests for declaratory judgment and mandamus.
Ordered accordingly.

Miami Tribe of Ok v. United States of America
2004 WL 2278584, No. Civ.A.02-2591-CM
United States District Court, D. Kansas, June 8, 2004

Subjects: Miami Tribe of Oklahoma; United States; Indian gaming -- Miami Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; National Indian Gaming Commission (U.S.); Contracts.

*Synopsis: (from the opinion) The court finds that, until the NIGC makes some final decision with regard to the gaming management contract, there is not a final agency action that would be ripe for review pursuant to the APA as was the case in Miami III. For this court to engage in review of the determination in the DOI's opinion letter at this point in the process would be premature and could very possibly impede the NIGC's final determination. Accordingly, even if the court considered plaintiff's APA claim independently of its breach of contract claims, plaintiff's claim for equitable relief under the APA is not based on a final agency action that is ripe for review at this time.

IT IS THEREFORE ORDERED that plaintiff's Motion to Reconsider (Doc. 41) is denied.

*Holding: not available

Tidwell v. Harrah's Kansas Casino Corp.
322 F.Supp.2d 1200, No. 03-4016-JAR
United States District Court, D. Kansas, June 4, 2004

Subjects: Harrah's Kansas Casino Corp; Prairie Band of Potawatomi Indians, Kansas; Sexual harassment; Jurisdiction; Kansas. Act Against Discrimination.

*Synopsis: Non-tribal employee of casino operated by non-Indian corporation pursuant to operating agreement with Potawatomi Indian Nation filed complaint against employer, alleging violations of Title VII and Kansas Act Against Discrimination (KAAD). Employer moved to dismiss for lack of subject matter jurisdiction.

*Holding: The District Court, Robinson, J., held that:
(1) tribal exhaustion was required as matter of comity, not as jurisdictional prerequisite;
(2) no tribal sovereignty concerns were implicated, even though case arose on reservation;
(3) assertion of tribal court jurisdiction was not motivated by bad faith, nor would tribal court action violate express or implied jurisdictional prohibitions; and
(4) even if tribal exhaustion applied, comity did not require dismissal of suit.
Motion denied.

Connor v. Conklin
2004 WL 1242513, No. A4-04-50
United States District Court, D. North Dakota, June 2, 2004

Subjects: Tribal members -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Criminal actions arising in Indian Country (North Dakota) -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Habeas corpus; United States. Indian Civil Rights Act; Tribal courts -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.

*Synopsis: (from the opinion) An enrolled tribal member was tried by a tribal court, found guilty of violating the tribal code, sentenced to sixty days in the tribal jail. The tribal member subsequently filed a petition for habeas corpus relief under the Indian Civil Rights Act, alleging that the tribal court failed to adequately informed him of his rights and had dismissed his charges prior to trial.

*Holding: (from the opinion) The Court reviewed the record and concluded that the tribal member's allegation were devoid of merit. Consequently, the Court dismissed the tribal member's petition for habeas corpus relief.

May

San Manuel Indian Bingo and Casino ET AL
2004 WL 1283584, Cases 31-CA-23673 and 31-CA-23803
National Labor Relations Board, May 28, 2004

Subjects: United States. National Labor Relations Board; Jurisdiction; Indian business enterprises; United States. National Labor Relations Act; San Manuel Indian Bingo and Casino (Calif.); San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Gambling on Indian reservations -- San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Indian gaming -- San Manuel Band of Serrano Mission Indians of the San Manual Reservation, California; Hotel Employees & Restaurant Employees International Union; AFL-CIO; Communications Workers of America.

*Synopsis: (from the opinion)In this case, we have been asked to reconsider whether the Board should assert jurisdiction over a commercial enterprise that is wholly owned and operated by an Indian tribe on the tribe's reservation...For the following reasons, we have decided to overrule Fort Apache and Southern Indian and to modify Sac & Fox. We establish a new standard for determining the circumstances under which the Board will assert jurisdiction over Indian owned and operated enterprises.

Conclusion: There may well be sound policy reasons for Congress to subject Indian-owned and operated business enterprises, including those located within tribal sovereign boundaries, to the full range of Federal labor and employment laws, including Title VII and the National Labor Relations Act (the Act). As the majority correctly notes, such statutes may not be inherently incompatible with Federal policies favoring Indian sovereignty, self-determination and economic development. Moreover, even if they were, Congress possesses plenary authority to abrogate Indian sovereign rights and immunities. All that is required is a clear and express indication that Congress has weighed the competing policy interests and resolved them in favor of Federal authority. Because the Act evinces no such express Congressional intent, and because the majority's analysis cannot be squared with controlling Board and Supreme Court precedent, I respectfully dissent.

*Holding: not available

Yukon Kuskokwim Health Corporation
341 NLRB No. 139, Case 19-CA-26663
National Labor Relations Board, May 28, 2004

Subjects: United States. Indian Self-Determination and Education Assistance Act; Federal Indian law; Jurisdiction; Yukon Kuskokwim Health Corporation (Alaska); International Brotherhood of Teamsters. Local 959 (Alaska); United States. National Labor Relations Board; Hospital operations -- Alaska; United States. National Labor Relations Act.

*Synopsis: The facts are articulated in greater detail in our initial decision in this case. See 328 NLRB at 761-762. Most pertinent for present purposes is that the Respondent is a regional nonprofit corporation formed in 1969 to provide a comprehensive health services program for Southwestern Alaska. It is governed by a 20-member board of directors whose members are elected by the membership of the tribal governments of 58 Alaskan Native tribes located in the Yukon-Kuskokwim Delta area. In 1991, the Respondent took over the operation of the hospital at issue here, under the ISDA. Only 1 or 2 members of the approximately 40 employees in the petitioned-for bargaining unit are Native Alaskans. Ninety-five percent of the patients of the Respondent's hospital are Native Alaskans. The Respondent does not charge Native Alaskans for the services they receive at the hospital. Those services are covered by the annual Federal funding the Respondent receives from the Federal Government to operate the hospital, pursuant to Federal Government's trust responsibility to provide health care for Indians.

Our decision to decline to assert jurisdiction here is the product of a careful balancing of the Board’s interests in advancing the Act’s statutory goals and in respecting Federal Indian law and policy. As such, we believe we have met the D.C. Circuit’s mandate on remand to consider how best to accommodate Federal Indian law. Therefore, under these circumstances, we find that jurisdiction is not appropriate. Accordingly, we overrule our previous decision and dismiss the complaint. ORDER The complaint is dismissed.

*Holding: not available

Cayuga Indian Nation of New York v. Village of Union Springs
317 F.Supp.2d 152, No. 5:03-CV-1270
United States District Court, N.D. New York, May 20, 2004

Subjects: Cayuga Nation of New York; Zoning law; Land use -- Law and legislation; Union Springs (N.Y.); Springport (N.Y.); Cayuga (N.Y.); Indian gaming -- Class II -- Cayuga Nation of New York; Gambling on Indian reservations -- Cayuga Nation of New York.

*Synopsis: Local governmental defendants filed motion for a stay pending appeal of injunction, restraining them from enforcement of their local zoning and land use laws so as to prohibit federally recognized Indian tribe from implementing plans to operate a class II gaming facility on property which had already been declared as Indian Country.

*Holding: The District Court, Hurd, J., held that:
(1) defendants failed to make the requisite showing of irreparable harm if they were not granted a stay pending appeal;
(2) defendants failed to make the requisite showing that, in the event of a stay pending appeal, tribe would not be substantially injured; and
(3) public interest weighed in favor of denying defendants' motion.
Motion denied.

Azure-Lone Fight v. Cain
317 F.Supp.2d 1148, No. A4-04-054.
United States District Court, D. North Dakota, NW Division, May 12, 2004

Subjects: Turtle Mountain Band of Chippewa Indians of North Dakota; Parent and child (Law); Trials (Custody of children) -- Turtle Mountain Band of Chippewa Indians of North Dakota; Indian children -- Legal status, laws, etc.; Child welfare; Jurisdiction -- Turtle Mountain Band of Chippewa Indians of North Dakota; Habeas corpus; United States. Indian Civil Rights Act.

*Synopsis: Mother petitioned for writ of habeas corpus, challenging the validity of Indian tribal court order which granted temporary custody of her two children to their father.

*Holding: Construing petition as an application for habeas corpus relief under Indian Civil Rights Act (ICRA), the District Court, Hovland, Chief Judge, held that court would not entertain mother's petition for habeas relief.
Petition denied without prejudice.

Nakai v. Ho-Chunk Nation
2004 WL 1085214, No. 03-C-0331-C
United States District Court,W.D. Wisconsin, May 7, 2004

Subjects: United States. Indian Civil Rights Act; Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe; Employees -- Dismissal of; Working mothers; Sovereign immunity -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe.

*Synopsis: This is a civil suit brought under 25 U.S.C. § 1302 of the Indian Civil Rights Act in which plaintiff Julie A. Nakai contends that defendant Ho- Chunk Nation violated the provisions of the Act when it discharged her from employment after she had been away from work for the birth of her child. The case is before the court on defendant's motion to dismiss on the ground of sovereign immunity. Defendant alleges that, as a federally recognized Indian tribe, it enjoys sovereign immunity from suit and neither it nor Congress has waived that immunity

*Holding: The court concludes that plaintiff has not shown that her suit against defendant comes within any exception to defendant's sovereign immunity so as to allow it to go forward in this court. Therefore, defendant's motion will be granted and the case will be dismissed.

April

Wide Ruins Community School v. Chee
281 F.Supp.2d 1086, No. 02-CV-1958
United States District Court, D. Arizona, April 22, 2003

Subjects: Navajo Nation. Navajo Preference in Employment Act; Jurisdiction -- Tribes (United States); School principals; Indian preference in hiring; Teachers backgrounds; Employee selection; Wide Ruins Community School (Ariz.).

*Synopsis: (from the opinion) After being found liable, in tribal proceedings, for violating Navajo Preference in Employment Act in regards to former school principal who was not hired when school was converted to a tribal school, school filed action alleging that federal law divested tribe of jurisdiction. School moved for summary judgment, former principal and tribal defendants moved to dismiss, and former principal moved for summary judgment. The District Court, Martone, J., held that former principal's action was subject to tribal jurisdiction.
Ordered accordingly.

*Holding: not available

Coronel v. Paul
316 F.Supp.2d 868, No. CIV-01-2222-PHX-ROS.
United States District Court, D. Arizona, April 20, 2004.

Subjects: Corrections Corporation of America; United States. Religious Land Use and Institutionalized Persons Act of 2000; Freedom of religion; Non-Indians; Prisoners; Florence Correctional Center (Ariz.).

*Synopsis: Inmate brought action against private prison, alleging violations of Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment. Parties cross-moved for summary judgment, inmate moved for sanctions, and defendants moved to strike.

*Holding: The District Court, Silver, J., held that issues of fact existed as to whether prison's refusal to allow inmate, a Dianic pagan who was not a Pasqua Yaqui or native Hawaiian, to attend Pasqua Yaqui and native Hawaiian religious ceremonies, placed a substantial burden on inmate's religious exercise, precluding summary judgment for both inmate and prison.
Motions denied.

Jicarilla Apache Nation v. The United States
60 Fed.Cl. 413, No. 02-25L
United States Court of Federal Claims, April 19, 2004

Subjects: Disclosure in accounting -- United States; Tribal trust funds -- Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation, New Mexico; Trusts and trustees – Accounting; Fiduciary accountability -- United States; Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation, New Mexico.

*Synopsis: Indian tribe brought suit against the United States seeking an accounting and recovery of monetary loss and damages resulting from the government's alleged mismanagement of trust funds.

*Holding: On plaintiff's motion for entry of confidentiality agreement and protective order, the Court of Federal Claims, Allegra, J., held that good cause existed for approval and entry of confidentiality agreement and protective order.
Motion granted.

State of South Dakota v. United States Department of the Interior
314 F.Supp.2d 935, No. CIV. 00-3026-RHB
United States District Court, D. South Dakota,Central Division, April 19, 2004

Subjects: Oacoma (S.D.); Lyman County (S.D.); South Dakota; Trust lands -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; United States. Dept. of the Interior.

*Synopsis: The State, city, and country sought declaratory and injunctive relief from Department of the Interior's (DOI) plan to take a parcel of land into trust for an Indian tribe. Parties cross-moved for summary judgment.

*Holding: The District Court, Battey, J., held that
(1) DOI had rational bases for its decision to take the land into trust, and
(2) statute authorizing acquisition of land to be held in trust for Indian tribes was not an unconstitutional delegation of legislative power.
Plaintiffs' motion denied and government's motion granted.

Columbia Falls Elementary School District v. State of Montana
2004 WL 844055, No. CIV. BDV-2002-528.
United States District Court, D. Montana, April 15, 2004

Subjects: Public schools -- Finance -- Montana; Columbia Schools Elementary School District (Mont.); Montana School Boards Association; Montana Rural Education Association; School Administrators of Montana; Indian students; American Indian education; Constitutional law.

*Synopsis: This case involves a challenge to the constitutionality of Montana's current system for funding its public elementary and secondary schools.

*Holding: not available

Wilkinson v. United States
314 F.Supp.2d 902, No. A1-03-02
United States District Court, D.North Dakota, SW Division, April 14, 2004

Subjects: Adult children; Tribal members -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota ; Trust lands -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Rent.

*Synopsis: Children of enrolled members of Indian tribe brought action against government, alleging that they were deprived of rental income derived from trust land mortgaged by their parents. Government filed motion for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) children had neither an interest in trust land mortgaged by their parents nor an interest in the rent proceeds collected by the Bureau of Indian Affairs (BIA), and
(2) any interest possessed by children was inferior or subordinate to interests of United States by virtue of the mortgage and the assignment executed by their parents.
Motion granted.

Navajo Nation v. Peabody Holding Company, Inc.
314 F.Supp.2d 23, No. CIV.A. 99-0469EGS.
United States District Court, District of Columbia, April 13, 2004

Subjects: Coal leases; Navajo Nation, Arizona, New Mexico & Utah; United States. Indian Mineral Leasing Act of 1938; United States. Racketeer Influenced and Corrupt Organizations Act; Trusts and trustees – Accounting.

*Synopsis: Indian tribes brought action against coal lessees, alleging that they conspired to improperly influence federal government's decisions regarding royalty rates under leases. Lessees moved to dismiss, or, alternatively, for summary judgment.

*Holding: The District Court, Sullivan, J., held that collateral estoppel did not apply to bar action.
Motions denied.

Related News Stories: Judge Won't Dismiss Navajo Nation Suit against Peabody (Indianz.com) 04/27

March

Trump Hotels & Casino Resorts Development Company, LLC v. Roskow
2004 WL 717131, No. 3:03CV0033 (RNC).
United States District Court, D. Connecticut, March 31, 2004

Subjects: Paucatuck Eastern Pequot Indians of Connecticut; Casinos -- Design and construction -- Connecticut; Connecticut. Unfair Trade Practices Act; United States. Indian Gaming Regulatory Act; Indian gaming -- Connecticut; Gambling on Indian reservations -- Connecticut; Trump Hotels and Casino Resorts Development Co., LLC.

*Synopsis: (from the opinion) Trump Hotels & Casino Resorts Development Company, LLC, commenced this action in Superior Court against the Paucatuck Eastern Pequot Tribal Nation and others after the Paucatucks repudiated an agreement with Trump to develop a casino. The complaint alleged a violation of the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. § 42-110a, et seq ., intentional interference with contractual relations, civil conspiracy, fraud and breach of contract. Defendant William I. Koch removed the case pursuant to 28 U.S.C. §§ 1331 and 1441 on the ground that Trump's claims are preempted by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701, et seq. He was ordered to show cause why the case should not be remanded for lack of subject matter jurisdiction. Trump has moved for costs and fees pursuant to 28 U.S.C. § 1447(c) in the event that the case is remanded.

*Holding: not available

Shawnee Tribe v. United States
311 F.Supp.2d 1181, No. 03-2042-GTV.
United States District Court, D. Kansas, March 30, 2004

Subjects:United States. General Services Administration; Shawnee Tribe, Oklahoma; Indian land transfers; Sunflower Army Ammunition Plant (Kan.); United States. Federal Property and Administrative Services Act of 1940; Jurisdiction -- United States; Indian termination policy; Tribes -- Termination.

*Synopsis: Indian tribe sought judicial review of the General Service Administration's (GSA) denial of its request to transfer to trust for tribe's benefit a land parcel, allegedly within boundaries of Indian reservation, that had been declared to be excess property available for disposal under the Federal Property and Administrative Services Act. The federal government moved to dismiss or for summary judgment, contending that court lacked jurisdiction over majority of tribe's claims and that GSA's decision was within the scope of its authority.

*Holding: The District Court held that:
(1) treaty ratified by tribe and United States clearly reflected Congressional intent to terminate reservation and give state jurisdiction over unallotted land;
(2) legislative history and circumstances surrounding treaty ratification indicated Congressional intent to terminate Indian reservation; and
(3) GSA did not act arbitrarily, capriciously, or through an abuse of its discretion in denying tribe's request to transfer parcel to trust for tribe's benefit.
Motion granted.

Related News Stories: Shawnee Tribe Loses Claim to Land of Former Sunflower Plant (Journal-World) 04/01

Burdett v. Harrah's Kansas Casino Corp.
311 F.Supp.2d 1166, No. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.
United States District Court, D. Kansas, March 29, 2004.

Subjects: United States. Fair Debt Collection Practices Act; United States. Fair Credit Reporting Act; Liability for emotional distress; Indians of North America -- Suicide; Gamblers; Harrah's Kansas Casino Corp; Harrah's Operating Company, Inc.; Harrah's Entertainment, Inc.; Telecheck Services, Inc.; NCO Financial Systems, Inc.; Edward T. Burke & Associates, P.C.; Creditors Interchange, Inc.; Prairie Band of Potawatomi Indians, Kansas; United States. Racketeer Influenced Corrupt Organizations Act; United States. Indian Gaming Regulatory Act; Kansas. Consumer Protection-Unconscionable Practice Act.

*Synopsis: In actions brought by wife of man who allegedly committed suicide as result of debt collection activity directed at recovering debts incurred at Indian casino, alleging, inter alia, violations of Fair Credit Reporting Act (FCRA) and negligent infliction of emotional distress, trial court ordered wife to show cause why her FCRA claims should not be dismissed and her claims against casino management company and Indian tribe should not be dismissed, remaining defendants moved to dismiss and for summary judgment, and wife moved for leave to respond to unopposed motions and for reconsideration.

*Holding: The District Court, Vratil, J., held that:
(1) claims that wife was entitled to recover her deceased husband's gambling losses and that husband's checks to casino were uncollectible because the proceeds were used to participate in gambling, failed to state a claim;
(2) reconsideration was not warranted;
(3) complaint would be dismissed where wife failed to serve defendants and defendants did not answer the complaint or file a motion to dismiss; but
(4) defendant waived any defense as to insufficiency of service by voluntarily entering its appearance; and
(5) complaint stated a claim for negligent infliction of emotional distress.
Motions overruled in part and sustained in part.

United States v. M.C.
311 F.Supp.2d 1281, No. CR-02-219MV.
United States District Court, D. New Mexico, March 24, 2004.

Subjects: Murder; Law enforcment -- New Mexico; Law enforcement -- McKinley County (N.M.); Law enforcment -- Navajo Nation, Arizona, New Mexico & Utah; Jurisdiction; School children; Indian students; Indian Country (U.S.) -- Defined; Criminal investigation; United States. Bureau of Indian Affairs; Fort Wingate Indian School (N.M.).

*Synopsis: Juvenile defendant filed motion to dismiss, for lack of federal jurisdiction, an indictment charging him with a murder committed at an Indian school located on land administered by Bureau of Indian Affairs (BIA).

*Holding: The District Court, Vazquez, Chief Judge, held that land on which school was located did not constitute land set aside by the federal government for the use of Indians as Indian land, and therefore was not a dependent Indian community.

Pueblo of Laguna v. United States
60 Fed.Cl. 133, No. CV 02-24 L
United States Court of Federal Claims, March 19, 2004.

Subjects: Pueblo of Laguna, New Mexico; Fiduciary accountability; Disclosure in accounting; Tribal trust funds; Trusts and trustees -- Accounting; Uranium ores -- Pueblo of Laguna, New Mexico.

*Synopsis: Indian tribe brought suit against the United States seeking an accounting and to recover for monetary loss and damages relating to the government's alleged mismanagement of the tribe's trust funds and other properties, including royalties from the exploitation of uranium ore reserves on the tribe's New Mexico reservation.

*Holding: On plaintiff's motion for document preservation order, the Court of Federal Claims, Allegra, J., held that:
(1) Court of Federal Claims has the power to preserve evidence and issue orders in furtherance thereof, and
(2) past handling of tribal records in another tribal breach of trust case indicating risk of loss or destruction of such records warranted issuance of document preservation order.
So ordered.

The Mashantucket Pequot Tribe v. Redican
309 F.Supp.2d 309, No. CIV.A.3:02-CV-1828(JCH).
United States District Court, D. Connecticut, March 18, 2004

Subjects: Mashantucket Pequot Tribe of Connecticut; Squatters; Internet domain names; Jurisdiction; Law -- Connecticut; Internet -- Law and legislation; Due process of law.

*Synopsis: Indian tribe brought cybersquatting action against owner of website domain names that incorporated name of tribe's casino. Owner moved to dismiss for lack of personal jurisdiction.

*Holding: The District Court, Hall, J., held that:
(1) defendant's conduct came within Connecticut long-arm statute, and
(2) exercise of general personal jurisdiction comported with due process.
Motion denied.

Cobell v. Norton
310 F.Supp.2d 102, No. CIV.A.96-1285(RCL).
United States District Court, District of Columbia, March 15, 2004

Subjects: IIM (Individual Indian monies) accounts; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior; Evidence, Expert.

*Synopsis: After special master, in action alleging that Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging Individual Indian Money (IIM) trust accounts, issued interim report, concluding that Secretary of Interior had filed false and misleading quarterly status report for accounts it managed with court and beneficiaries, in violation of court order, 91 F.Supp.2d 1, Secretary moved to disqualify special master from participation in case.

*Holding: The District Court, Lamberth, J., held that:
(1) disqualification of special master was not warranted, and
(2) Secretary waived its right to seek disqualification of special master, on grounds that special master's impartiality was questionable because he had retained services of former contractor for Department of Interior (DOI) to assist with his investigation.
Motion denied.

Relate News Stories: Lamberth Defends Special Master against Attack (Indianz.com) 03/16, See also www.indiantrust.com, Skeptical Appeals Court Lets Interior Computers Back Online (USAToday) 3/25. Internet Cutoff Ordered at Interior (Washington Post)

Mechoopda Indian Tribe of Chico Rancheria, California v. Schwarzenegger
2004 WL 1103021, No. Civ.S-03-2327WBS/GGH
United States District Court, E.D. California, March 12, 2004

Subjects: United States. Indian Gaming Regulatory Act; California; Schwarzenegger, Arnold; Mechoopda Indian Tribe of Chico Rancheria, California; Good faith (Law); Negotiation.

*Synopsis: (from the opinion) The Mechoopda Tribe of the Chico Rancheria, brought this action under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., alleging that defendants, Governor Arnold Schwarzenegger and the State of California, failed to fulfill their obligation under 25 U.S.C. § 2710(d)(3)(A) to negotiate in good faith with the Tribe. Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants now move to dismiss this action.

*Holding: not available

United States v. Orr Water Ditch DO
309 F.Supp.2d 1245, No. (EQUITY) A-3-LDG
United States District Court, D. Nevada, March 9, 2004.

Subjects: Water Rights -- Indian Country (Nevada); United States; Orr Water Ditch DO (Nevada); Nevada. State Engineer; Water transfer -- Nevada; Truckee River (Calif. and Nev.); Alluvial plains -- Indian Country (Nevada).

*Synopsis: Indian tribe and irrigation district cross-appealed from state engineer's partial grant of tribe's application to temporarily change place and manner of use of water rights.

*Holding: The District Court, George, J., held that:
(1) tribe's water rights were federal rights that could not be lost under theories of forfeiture, abandonment, or failure to perfect;
(2) change did not impair junior appropriators' rights;
(3) tribe was immune from paying state transfer fees; and
(4) amount of water transferred was properly limited to amount of tribe's water duty.
Affirmed in part and reversed in part.

February

Omaha Tribe of Nebraska v. Miller
311 F.Supp.2d 816, No. 4:03-CV-40400.
United States District Court, S.D. Iowa, Feb. 27, 2004

Subjects: Omaha Tribe of Nebraska; Cigarette vendors; Omaha Nation Enterprises, Inc. (Neb.); Tobacco -- Law and legislation -- South Dakota; Tobacco -- Law and legislation -- Iowa; Tobacco -- Law and legislation -- Missouri; South Dakota. Office of Attorney General; Iowa. Attorney-General's Office; Missouri. Office of Attorney General; Products liability -- Tobacco -- United States -- States; Structured settlements -- United States -- States; Tobacco industry -- Law and legislation -- United States -- States.

*Synopsis: Indian tribe that owned cigarette manufacturer brought action challenging constitutionality of Iowa statute requiring cigarette manufacturers that did not participate in master settlement agreement reached in multistate tobacco litigation to either participate in the agreement or make annual escrow payments based on tobacco product sales to Iowa consumers. Following transfer, Iowa's Attorney General moved to dismiss.

*Holding: The District Court, Gritzner, J., held that:
(1) statute was not preempted by federal statutes supporting tribal self- determination and economic self-sufficiency;
(2) federal statutes regulating tobacco did not preempt statute; and
(3) statute did not violate Indian Commerce Clause.
Motion Granted.

Loudner v. United States
330 F.Supp.2d 1074, No. CIV 94-4294
United States District Court, D. South Dakota, February 25, 2004

Subjects: United States. Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998; Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Reservation, South Dakota; Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Constitutional law -- United States.

*Synopsis: Individual lineal descendants of tribe brought action challenging constitutionality and legality of the Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998 Act, which reapportioned to tribes a portion of lineal descendants' share of judgment fund redressing United States' breach of treaties. United States and Secretary of Interior moved to dismiss, and tribes filed motions to intervene as defendant and to dismiss.

*Holding: The District Court, Piersol, Chief Judge, held that:
(1) claim that Act constituted taking in violation of Fifth Amendment was barred by doctrine of issue preclusion, and
(2) entry of final judgment on dismissed claims was warranted.
Motions granted.

Aroostook Band of Micmacs v. Executive Director Maine Human Rights Commission
307 F.Supp.2d 95, No. CIV. 03-24-B-K.
United States District Court, D. Maine, Feb. 24, 2004

Subjects: Sovereignty -- Aroostook Band of Micmac Indians of Maine; Maine Human Rights Commission; Maine. Maine Human Rights Act; Maine. Maine Whistle Blower Protection Act; Maine. Maine Micmac Settlement Act; Jurisdiction -- United States; Employees -- Dismissal of.

*Synopsis: Indian tribe challenged state's authority to pursue claims of tribal employment discrimination in state court. Parties cross-moved for summary judgment.

*Holding: The District Court, Kravchuk, United States Magistrate Judge, held that court lacked federal question jurisdiction.
Dismissed.

Miami Tribe of Oklahoma v. The United States
316 F.Supp.2d 1035, No. CIV.A. 02-2591-CM.
United States District Court, D. Kansas, Feb. 18, 2004

Subjects: National Indian Gaming Commission (U.S.); Indian gaming -- Class II; Gambling on Indian reservations; Land use; Land tenure; Jurisdiction -- Miami Tribe of Oklahoma.

*Synopsis: After reversal of National Indian Gaming Commission's (NIGC) approval of a gaming management contract relating to a tract of land in Kansas, Indian tribe brought action for specific performance by Government of settlement in tribe's prior action, 5 F.Supp.2d 1213, which had granted such approval. Government moved to dismiss.

*Holding: The District Court, Murguia, J., held that motion to dismiss would be denied pending clarification of whether district court had jurisdiction to hear claim that government's refusal to honor the settlement constituted a breach of contract.
Motion denied.

Buckles v. Indian Health Service
305 F.Supp.2d 1108, No. A4-02-133.
United States District Court, D. North Dakota, NW Division, Feb. 18, 2004

Subjects: United States. Indian Health Service -- Officials and employees; United States. Privacy Act of 1974; Medical records; Disclosure of information -- United States.

*Synopsis: Indian Health Service (IHS) employees whose health records were allegedly disclosed without authorization sued IHS for, inter alia, violation of Privacy Act. Parties cross-moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) IHS employees' intraagency disclosure of incomplete Patient Care Components to member of IHS's risk management team came within exception to Privacy Act for disclosures to officers who needed to know, and
(2) fact issue existed as to whether other unauthorized disclosures occurred.
Plaintiff's motion denied; defendant's motion granted in part.

Buckles v. Indian Health Service
305 F.Supp.2d 1108, No. A4-02-133.
United States District Court, D. North Dakota, NW Division, Feb. 18, 2004

Subjects: United States. Indian Health Service -- Officials and employees; United States. Privacy Act of 1974; Medical records; Disclosure of information -- United States.

*Synopsis: Indian Health Service (IHS) employees whose health records were allegedly disclosed without authorization sued IHS for, inter alia, violation of Privacy Act. Parties cross-moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) IHS employees' intraagency disclosure of incomplete Patient Care Components to member of IHS's risk management team came within exception to Privacy Act for disclosures to officers who needed to know, and
(2) fact issue existed as to whether other unauthorized disclosures occurred.
Plaintiff's motion denied; defendant's motion granted in part.

The Samish Indian Nation v. United States Department of Interior
2004 WL 3753251
No. C02-1955P
United States District Court, W.D. Washington, February 6, 2004

Subjects: not yet available

*Synopsis: (from the opinion) This litigation is the latest in a series of lawsuits stretching back more than twenty years concerning plaintiffs' struggle for official recognition as a tribe and what rights and obligations arise from that status. The instant case contains two claims for relief: (1) for a mandate compelling the defendant ("Department") "to immediately consult and cooperate with the Tribe in determining the Tribe's needs for federal services, benefits and funding, to develop a budget to fund the Tribe's ... need for federal services and benefits ... and to submit said budget to Congress for appropriation and funding ..." and (2) for money damages "for the amount of federal funding the Tribe would have received under the [Indian] Self-Determination Act from 1996 to the present if the Department had timely consulted with the Tribe and developed a determination of needs and a recommended budget."

*Holding: not yet available

Flathead Joint Board of Control v. U.S. Dept. of Interior
309 F.Supp.2d 1217, No. CV 02-38-M-DWM
United States District Court, D. Montana, February 3, 2004.

Subjects: Water rights -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; United States. Freedom of Information Act; United States. Bureau of Indian Affairs; United States. Bureau of Reclamation; Resource allocation -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Montana; Flathead Joint Board of Control (Mont.); Montana. Water Use Act; United States. Dept. of the Interior.

*Synopsis: Indian tribe and irrigation district cross-appealed from state engineer's partial grant of tribe's application to temporarily change place and manner of use of water rights.

*Holding: On plaintiff's motion for document preservation order, the Court of Federal Claims, Allegra, J., held that:
(1) Court of Federal Claims has the power to preserve evidence and issue orders in furtherance thereof, and
(2) past handling of tribal records in another tribal breach of trust case indicating risk of loss or destruction of such records warranted issuance of document preservation order.
So ordered.

Pit River Tribe v. Bureau of Land Management
306 F.Supp.2d 929, No. CIV-S-02-1314DFL/JFM.
United States District Court, E.D. California, Feb. 13, 2004

Subjects: Pit River Tribe, California (includes Big Bend, Lookout, Montgomery Creek & Roaring Creek Rancherias & XL Ranch); United States. Bureau of Land Management; United States. Forest Service; Geothermal leases -- California; Geothermal power plants -- California -- Environmental impact statements -- Environmental aspects; United States. National Environmental Policy Act of 1969; United States. National Historic Preservation Act of 1966; United States. Geothermal Steam Act of 1970; United States. National Forest Management Act of 1976; United States. Administrative Procedure Act; Breach of trust -- United States; Trusts and trustees -- United States.

*Synopsis: Native American tribe brought action against Bureau of Land Management (BLM) and United States Forest Service (USFS), stemming from government's proposal to build geothermal power plant on site within tribe's ancestral homeland.

*Holding: On the parties' cross-motions for summary judgment, the District Court, Levi, Chief Judge, held that:
(1) final environmental impact statement (FEIS) sufficiently discussed probable environmental consequences of plant;
(2) agencies properly identified historic properties on site;
(3) underlying lease of site was properly extended;
(4) lifting of moratorium on site development was not arbitrary and capricious;
(5) amendment of forest standard to accommodate plant development did not constitute significant change to Forest Plan;
(6) federal government did not breach fiduciary obligation to tribe; and
(7) purported failure of agencies timely to implement Record of Decision did not constitute "final agency action.
Defendants' motion granted.

Related News Stories: Judge Won't Block Drilling near Sacred Site in Calif. (Indianz.com) 03/12

Tarbell v. Department of the Interior
307 F.Supp.2d 409, No. CIV.A.7:02-CV-1072(D.
United States District Court, N.D. New York, Feb. 11, 2004

Subjects: United States. Dept. of the Interior; Judicial review; St. Regis Band of Mohawk Indians of New York; Leadership disputes; Faction.

*Synopsis: Members of Indian tribe commenced action seeking judicial review of four distinct Department of the Interior (DOI) administrative agency actions relating to a longstanding dispute over leadership of the tribe.

*Holding: Upon cross-motions for summary judgment, the District Court, Peebles, United States Magistrate Judge, held that administrative determinations regarding who federal government should recognize for purposes of its dealings with a tribe as duly authorized leaders and authority of tribal courts were arbitrary and capricious.
Plaintiffs motion granted.

Flathead Joint Board of Control v. United States Department of the Interior
309 F.Supp.2d 1217, No. CV 02-38-M-DWM
United States District Court, D. Montana, Missoula Division, Feb. 3, 2004.

Subjects: United States. Freedom of Information Act; Resource allocation -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Water rights -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; United States. Bureau of Reclamation; United States. Bureau of Indian Affairs.

*Synopsis: State irrigation district negotiating state water rights with Indian tribes sued United States, seeking disclosure under Freedom of Information Act(FOIA) of federal water rights information. Tribes intervened and all parties moved for summary judgment.>

*Holding: The District Court, Molloy, Chief Judge, held that:
(1) information regarding allocation of water rights on reservations was "commercial or financial information" for purposes of FOIA exception covering those materials;
(2) specified information could be withheld as privileged and confidential;
(3) tribes were not "agencies," for purposes of intra and inter-agency FOIA exception;
(4) documents prepared by federal agency employees and not given to tribes could be withheld under deliberative process, attorney-client or work product privileges.

January

Poor Bear v. Nesbit
300 F.Supp.2d 904, No. 8:03CV261
United States District Court, District of Nebraska, January 29, 2004

Subjects: Nebraska State Patrol; Sheridan County (Neb.); Nebraska. Liquor Control Commission; Freedom of religion; Civil rights; Processions, Religious; Indians of North America -- Compensation for taking; Land tenure; United States. Constitution. 1st Amendment; United States. Constitution. 4th Amendment; United States. Constitution. 5th Amendment; United States. Constitution. 9th Amendment; United States. Constitution. 14th Amendment; Limitation of actions; United States. Constitution. 11th Amendment.

*Synopsis: Arrestee brought § 1983 action against state patrol superintendent, sheriff, and three members of liquor control commission, alleging restrictions on his ability to participate in Native American prayer marches, laxity in law enforcement, and other violations of First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Defendants moved to dismiss.

*Holding: The District Court, Kopf, Chief Judge, held that:
(1) to extent that claims for monetary, declaratory, and injunctive or equitable relief would render invalid Nebraska criminal conviction for violating the lawful order of law enforcement officers, claims were barred;
(2) claims accruing more than four years before the filing of complaint were barred by Nebraska statute of limitations;
(3) to extent claims sought money damages and declaratory relief against State defendants in their official capacities, claims were barred by Eleventh Amendment;
(4) Eleventh Amendment barred claims for conversion and unjust enrichment;
(5) sheriff was not a policy maker for his county;
(6) allegation that Native Americans were prosecuted for their religious practices failed to state a claim; and
(7) dismissal was required, of allegations of a policy of minimal law enforcement when crime victims were Native Americans.
Motion granted.

Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan v. Ashcroft
360 F.Supp.2d 64, No. 01-CV-2672 (RJL)
United States District Court, District of Columbia, Jan. 27, 2004

Subjects: Indian gaming -- Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Internet gambling; United States. Indian Gaming Regulatory Act.

*Synopsis: Indian tribe sought declaration that its proposed Internet proxy bingo game was authorized under Indian Gaming Regulatory Act (IGRA). The defendant National Indian Gaming Commission (NIGC) moved to dismiss.

*Holding: The District Court, Leon, J., held that nonfinal agency action was not subject to judicial review.
Motion granted.

Winnebago Tribe of Nebraska v. Kline
297 F.Supp.2d 1291, No. 02-4070-JTM
United States District Court, D. Kansas, Jan. 15, 2004

Subjects: Nebraska; Motor fuels -- Taxation -- Nebraska; Indian business enterprises -- Winnebago Tribe of Nebraska -- Taxation; United States. Constitution. 11th Amendment; United States. Tax Injunction Act; Sovereign immunity; United States -- Hayden-Cartwright Act.

*Synopsis: Indian tribes challenged state's right to collect motor vehicle fuel taxes from tribally-operated businesses. State moved to dismiss.

*Holding: The District Court, Marten, J., held that:
(1) tribe was not "person" who could sue under § 1983;
(2) Eleventh Amendment did not bar suit;
(3) Tax Injunction Act did not bar tribes' suit, but did bar claims by individual tribal members;
(4) principles of comity did not warrant dismissal of suit;
(5) abstention was not warranted;
(6) complaint stated sovereign immunity claim; and
(7) suit was not barred by Hayden-Cartwright Act.
Motion granted in part and denied in part.

Arakaki v. Lingle
305 F.Supp.2d 1161, No. CIV.02-00139 SOM/KSC.
United States District Court, D. Hawai'i, Jan. 14, 2004

Subjects: Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States.

*Synopsis: State taxpayers brought action challenging constitutionality of programs administered by Office of Hawaiian Affairs (OHA), asserting, inter alia, alleged equal protection violation arising from OHA's provision of benefits. OHA moved to dismiss.

*Holding: The District Court, Mollway, J., held that:
(1) state taxpayer standing was insufficient to support challenge to OHA's use of state tax revenues to satisfy prerequisites to receiving matching federal funds;
(2) motion was not untimely motion for reconsideration of earlier decision denying OHA's motion to dismiss based on political question doctrine; and
(3) political question doctrine applied to bar court's review of equal protection claim.
Motion granted; final judgment for state entered.

Big Crow v. Rattling Leaf
296 F.Supp.2d 1067, No. A1-03-28
United States District Court, D. South Dakota, Central Division, Jan 2, 2004

Subjects: Indian reservation police; United States. Federal Tort Claims Act; Traffic accidents.

*Synopsis: Tribal law enforcement officer, as defendant in Federal Tort Claims Act suit arising out of automobile accident, petitioned for certification that he was acting within scope of his office or employment.

*Holding:The District Court, Kornmann, J., held that officer was acting within scope of his employment, even if he was being paid under different tribal self-determination contract than one being performed at time of accident.
Petition granted.

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map