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Indian Law Bulletins | Federal Trial Courts | Archives 2006

December

Miami Tribe of Oklahoma v. United States
2006 WL 3848949
Civil Action No. 03-2220-DJW
United States District Court, D. Kansas, December 29, 2006

Subjects: Miami Tribe of Oklahoma -- Members; Indian allotments -- Miami Tribe of Oklahoma -- Members; Conveyancing -- Federal supervision; United States. Bureau of Indian Affairs; United States. Administrative Procedure Act; Breach of trust -- United States; Trusts and trustees -- United States.

*Synopsis: (from the opinion) James E. Smith (“Smith”), a member of the Miami Tribe of Oklahoma (“Miami Tribe”), holds a 3/38 restricted undivided interest in the Maria Christiana allotment, Miami No. 35 (“Miami Reserve”), located in Miami County, Kansas. In 2001, Smith submitted his application to the Bureau of Indian Affairs (“BIA”) for approval to gift transfer one-third of his 3/38 undivided interest to Miami Tribe. The BIA denied Smith's application for gift conveyance. Miami Tribe commenced the present action in this Court. Miami Tribe's Complaint asserts three Counts: Count I of the Complaint seeks judicial review of the BIA's decision under the Administrative Procedures Act (“APA”).FN1 Count II alleges that Defendants breached their fiduciary and trust duties to Miami Tribe. Count III alleges that Defendants have violated substantive and procedural due process and property rights of Miami Tribe.

*Holding: not yet available

Vann v. Kempthorne
467 F.Supp.2d 56
Civil Action No. 03-01711 (HHK)
United States District Court, District of Columbia, December 19, 2006

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

*Synopsis: Descendants of so-called Freedmen, former slaves of Cherokees or free blacks who intermarried with Cherokees, brought suit against Department of Interior and its secretary, seeking declaratory judgment that Cherokee Nation elections were invalid due to their exclusion and injunction barring secretary from recognizing election results. Cherokee Nation was granted limited intervention for purpose of challenging jurisdiction. Cherokee Nation moved to dismiss, and Freedmen moved for leave to file amended complaint adding Nation and certain officials.

*Holding: The District Court, Kennedy, J., held that:
(1) Cherokee Nation was necessary party to be joined if feasible;
(2) Cherokee Nation's sovereign immunity from suit in federal court had been abrogated by Congress with respect to rights of Freedmen;
(3) Secretary of Interior's recognition of the Cherokee leaders elected in tribal elections was a final agency action, for purposes of judicial review pursuant to Administrative Procedure Act (APA);
(4) Secretary's failure to act on obligation to review election procedures amounted to final agency action reviewable under APA;
(5) exhaustion of tribal remedies was not required;
(6) tribal officials were not protected by sovereign immunity from suit for violation of Thirteenth Amendment; and
(7) immunity was not abrogated as to claims under Indian Civil Rights Act and Cherokee Constitution.
Motions granted in part and denied in part.

Related News Stories: Court rulings question sovereign immunity. (MSNBC) 1/2/07.

County of Madera v. Picayune Rancheria of the Chukchansi Indians
467 F.Supp.2d 993
No. CIV F 06-1698 AWI DLB
United States District Court, E.D. California, December 18, 2006

Subjects: Construction -- Licenses -- California -- Madera County; Hotels -- Design and construction -- Picayune Rancheria of Chukchansi Indians of California; Indian gaming -- Picayune Rancheria of Chukchansi Indians of California.

*Synopsis: County brought nuisance abatement action in California state court against Indian tribe's construction of hotel and spa at its casino. Tribe removed case to federal court, county moved to remand and for a temporary restraining order, and tribe moved to transfer.

*Holding: The District Court, Ishii, J., held that county's nuisance abatement action did not contain federal question.
Motions granted in part and denied in part.

Yankton Sioux Tribe v. Gaffey
2006 WL 3703274
No. CIV 98-4042
United States District Court, D. South Dakota, Southern Division, December 13, 2006

Subjects: Indian allotments -- Yankton Sioux Tribe of South Dakota; United States. General Allotment Act (1887); Indian Country (U.S.) -- Defined; Diminished Indian reservations -- Yankton Sioux Tribe of South Dakota; Conveyancing; Disestablished Indian reservations -- Yankton Sioux Tribe of South Dakota; Boundaries -- Yankton Sioux Tribe of South Dakota -- Defined; Criminal jurisdiction -- United States.

*Synopsis: (from the opinion) The Court finds that it must be decided on remand what remains of the Yankton Sioux Reservation following the diminishment of the reservation pursuant to the Supreme Court's decision in South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998) ( “Yankton Sioux Tribe” ) and the Eighth Circuit's decision in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1030 (8th Cir.1999). The Supreme Court held that the Yankton Sioux Reservation was diminished by the land ceded to the United States by the Yankton Sioux Tribe at the end of the nineteenth century. See Yankton Sioux Tribe, 522 U.S. at 358. The issue of whether the Yankton Sioux Reservation was disestablished, however, was not addressed by the Supreme Court, and the case was remanded for further proceedings. Id. On remand, this Court held that the Yankton Sioux Reservation was not disestablished, that all nonceded lands continued to be part of the reservation, and that all nonceded lands were subject to federal criminal jurisdiction. See Yankton Sioux Tribe v. Gaffey, 14 F.Supp.2d 1135 (D.S.D.1998) ( “Gaffey” ). On appeal, the Eighth Circuit affirmed this Court's decision that the Yankton Sioux Reservation was not disestablished, but found that the reservation was “further diminished by the loss of those lands originally allotted to tribal members which have passed out of Indian hands.” Gaffey II, 188 F.3d at 1030. Those lands are no longer “part of the Yankton Sioux Reservation and are no longer Indian country within the meaning of 18 U.S.C. § 1151.”

*Holding: not yet available

Gasplus, L.L.C. v. United States Department of Interior
466 F.Supp.2d 43
Civil Action No. 03-1902 (RMC)
United States District Court, District of Columbia, December 8, 2006

Subjects: Jurisdiction -- United States; Due process of law -- United States; United States. Bureau of Indian Affairs; Gas distribution -- Pueblo of Nambe, New Mexico; Contracts -- Pueblo of Nambe, New Mexico -- Federal supervision; Sovereignty -- Pueblo of Nambe, New Mexico; GasPlus.

*Synopsis: Gasoline distribution company brought Bivens action against Department of the Interior (DOI) and two Bureau of Indian Affairs (BIA) officials, alleging that its due process rights were violated when officials invalidated company's agreement to manage a gasoline distribution business for Indian tribe. DOI moved to dismiss as to the individual officials.

*Holding: The District Court, Rosemary M. Collyer, J., held that
(1) Court lacked personal jurisdiction over BIA Regional Director, and
(2) allegation that Acting Assistant Secretary for Indian Affairs deprived company of due process when she upheld, on appeal, decision invalidating company's agreement to manage a gasoline distribution business for Indian tribe, failed to state a claim.
Motion granted.

Hardwick v. United States
2006 WL 3533029
No. C 79-1710 JF (PVT)
United States District Court, N.D. California, San Jose Division, December 7, 2006

*Synopsis: (from the opinion) It is not clear whether the Tribe is a third party beneficiary to the 1987 Stipulated Judgment. However, even assuming without deciding that the Tribe is an third party beneficiary of that judgment, the judgment does not address the issue raised by the Tribe's motion, namely whether Madera County may enforce state environmental laws with respect to the Tribe's expansion of its Resort. The Tribe's arguments on this point are grounded in part upon its contention that the 1987 Stipulated Judgment conclusively establishes the lands at issue as “Indian Country,” but also are grounded in federal law, the Compact, the Memorandum of Understanding between the Tribe and Madera County, and the County's alleged waiver of jurisdiction over the Resort. These matters go far beyond the scope of the 1987 Stipulated Judgment, and thus more properly should be addressed in a new action for declaratory relief.

*Holding: not yet available

Cottier v. City of Martin
466 F.Supp.2d 1175
Civ. No. 02-5021-KES
United States District Court, D. South Dakota, Western Division, December 5, 2006

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

*Synopsis: Action was brought on behalf of Native American voters challenging the configuration of city wards as violative of section two of Voting Rights Act (VRA) and the Fourteenth and Fifteenth Amendments. The United States District Court for the District of South Dakota, Karen Schreier, J., denied relief, and voters appealed. The Court of Appeals, 445 F.3d 1113, reversed and remanded with directions.

*Holding: On remand, the District Court, Karen E. Schreier, Chief District Judge, held that ordinance fragmenting Indian voters into three wards impermissibly diluted the Indian vote, in violation of section two of the Voting Rights Act (VRA).
Ordered accordingly.

Related News Stories: Judge orders Martin to redraw district lines (Rapid City Journal) 12/8/2006

November

Golden Hill Paugussett Tribe of Indians v. Rell
463 F.Supp.2d 192
No. 2:92cv738 (JBA)
United States District Court, D. Connecticut, November 29, 2006

Subjects: Reclamation of land -- Connecticut -- Golden Hill Paugussett Tribe of Indians; Land tenure -- Golden Hill Paugussett Tribe of Indians -- Connecticut; Tribes -- Defined.

*Synopsis: Indian group brought actions under the Non-Intercourse Act against various individuals and corporations and the State of Connecticut, seeking restoration of lands and damages. Following dismissal of consolidated actions, 839 F.Supp. 130, the Court of Appeals, 39 F.3d 51, reversed, ordering a stay pending resolution, by the Bureau of Indian Affairs (BIA), of group's petition for federal tribal recognition, rather than dismissal. After the BIA denied the petition, group moved to reopen its original complaint. Defendants moved for judgment on the pleadings or for dismissal.

*Holding: The District Court, Janet Bond Arterton, J., held that group was precluded from demonstrating that it was an Indian tribe.
Motions granted.

Related News Stories: Paugussetts appeal land claims ruling (New Haven Register) 1/5/07

Shinnecock Indian Nation v. New York
2006 WL 3501099
No. 05-CV-2887 (TCP)
United States District Court, E.D. New York, November 28, 2006

Subjects: Reclamation of land -- New York (State) -- Shinnecock Indian Nation, New York; Land tenure -- Shinnecock Indian Nation, New York -- New York (State) -- Suffolk County; Leases -- New York (State); Conveyancing -- New York (State).

*Synopsis: (from the opinion) Plaintiffs the Shinnecock Indian Nation (“Shinnecocks” or “Nation”) bring this action to redress wrongs committed against them more than 140 years ago. The Nation seeks to vindicate its rights to certain lands located in the Town of Southampton in Suffolk County, New York. The lands at issue are a portion of those lands conveyed to the Nation by a lease for a term of 1,000 years executed in 1703 by the Trustees of the Commonality of the Town of Southampton, as lessor (the “1703 Lease”). (Compl. at ¶ 1.) FN2 The Nation claims that its rights to a substantial portion of the lands under the 1703 Lease were wrongfully conveyed and released in 1859 to the Trustees of the Proprietors of the Common and Undivided Lands and Marshes (or Meadows), in the Town of Southampton, in violation of the federal Indian Non-Intercourse Act (“NIA”). (Compl. at ¶¶ 1; 2). The Nation seeks broad relief that includes damages for each portion of the Subject Lands acquired or transferred from the Nation for the period from 1859 to present, a declaration that the Nation has possessory rights to the Subject Lands, immediate ejectment of all defendants from the lands, and other declaratory and injunctive relief as necessary to restore the Nation to possession of the lands.

*Holding: not yet available

United States v. Rettinger
2006 WL 3463424
No. 4:06-cr-043
United States District Court, D. North Dakota, November 27, 2006

Subjects: Stalking -- On Indian reservations -- Turtle Mountain Band of Chippewa Indians of North Dakota; Law -- Application -- Non-Indians -- On Indian reservations; Criminal jurisdiction -- North Dakota; Exclusive jurisdiction -- North Dakota; United States. Constitution. First Amendment.

*Synopsis: (from the opinion) Rettinger contends that 18 U.S.C. § 2261A is overbroad because its terms apply to actions performed by a non-Indian against a non-Indian in Indian country, over which the State of North Dakota has exclusive jurisdiction. The overbreadth doctrine has developed in response to challenges that a criminal statute unconstitutionally infringes on an individual's First Amendment free speech rights. The United States Supreme Court “ha[s] not recognized an “overbreadth” doctrine outside the limited context of the First Amendment.

*Holding: not yet available

Debary v. Harrah's Operating Co., Inc.
2006 WL 3513114
No. 06 CIV. 6365 (CM)
United States District Court, S.D. New York, November 20, 2006

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

*Synopsis: (from the opinion) Catskill Development, L.L.C. (“Catskill”), Mohawk Management, L .L.C. (“Mohawk”) and Monticello Raceway Development Co., L.L.C. (“Monticello”) (collectively, “Original Plaintiffs”), originally brought this action in diversity against Park Place Entertainment Corp. (“Park Place”), alleging that defendant, one of the world's largest casino companies, wrongfully induced officials of the St. Regis Mohawk Indian Nation (“Tribe”) to terminate the Tribe's contractual agreements and business relationships with plaintiffs relating to the development and management of a proposed $500 million Native American casino at the Monticello Raceway in Sullivan County, New York (the “Casino Project”). Plaintiffs sought damages based on defendant's alleged tortious interference with contractual relations, tortious interference with prospective business advantage, unfair competition, and Donnelly Act violations.

*Holding: not yet available

Bess v. Spitzer
459 F.Supp.2d 191
No. 06 CV 2772(ADS)(ETB)
United States District Court, E.D. New York, November 18, 2006

Subjects: Cigarette vendors -- New York (State); Cigarettes -- Transportation -- Taxation -- New York (State); Law -- New York (State); Shinnecock Indian Nation (N.Y.) -- Members; United States. Indian commerce clause.

*Synopsis: Indictee, member of Indian tribe arrested on-reservation for allegedly violating New York state and municipal cigarette tax laws, sued state officials and individual police officers, alleging that his prosecution violated, inter alia, Contract and Indian Commerce clauses of United States Constitution, and seeking injunctive and declaratory relief. Indictee moved for injunction against further prosecution, and defendants filed motions to dismiss or for judgment on the pleadings.

*Holding: The District Court, Spatt, J., held that:
(1) res judicata and collateral estoppel barred action;
(2) Anti-Injunction Act precluded relief; and
(3) Younger abstention was appropriate.
Judgment for defendants.

Crow Creek Sioux Tribe v. Bureau of Indian Affairs
463 F. Supp.2d 964
No. CIV. 06-3004
United States District Court, D. South Dakota, Central Division, November 17, 2006

Subjects: Correctional institutions -- United States; Crow Creek Detention Center (S.D.); United States. Administrative Procedure Act; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; United States. Bureau of Indian Affairs. Office of Law Enforcement Services; Jurisdiction -- United States.

*Synopsis: Indian tribe brought suit pursuant to the Administrative Procedure Act (APA) seeking judicial review of decision of Bureau of Indian Affairs-Office of Law Enforcement Services (BIA-OLES) to close detention facility. BIA moved to dismiss for lack of jurisdiction.

*Holding: The District Court, Kornmann, J., held that failure to exhaust administrative remedies by seeking agency review of closure decision resulted in lack of a final agency action that was reviewable under APA.
Motion granted; complaint dismissed.

Nulankeyutmonen Nkihtaqmikon v. Impson
462 F.Supp.2d 86
No. CV-05-168-B-W
United States District Court, D. Maine, November 16, 2006

Subjects: United States. Freedom of Information Act; Nulankeyutmonen Nkihtaqmikon; Factions -- Passamaquoddy Tribe of Maine; Liquefied natural gas -- Passamaquoddy Tribe of Maine; Building leases -- Passamaquoddy Tribe of Maine; Quoddy Bay (Me.); United States. Bureau of Indian Affairs; United States. Dept. of the Interior; Standing to sue.

*Synopsis: Members of Indian tribe sought declaratory and injunctive relief against decision of the Bureau of Indian Affairs (BIA) which allegedly approved tribe's lease of land for a liquified natural gas terminal. BIA moved to dismiss.

*Holding: The District Court, John A. Woodcock, Jr., J., held that:
(1) claims that BIA's approval of lease violated National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) were not ripe for adjudication;
(2) claims that BIA's approval of lease violated Government's trust obligations to tribe were not ripe for adjudication;
(3) members of tribe lacked standing to bring action alleging that BIA's approval of lease violated NEPA, NHPA, Endangered Species Act (ESA), Indian Long-Term Leasing Act, and Government's trust obligations to tribe; and
(4) members were not entitled to bring action alleging that BIA's approval of lease violated Administrative Procedure Act (APA).
Dismissed.

Ramirez v. Potawatomi Bingo Casino
2006 WL 3327142
No. 06-C-322
United States District Court, E.D. Wisconsin, November 15, 2006

Subjects: Retirement planning; United States. Employee Retirement Income Security Act of 1974; Forest County Potawatomi Community, Wisconsin; Potwatomi Bingo Casino (Wis.); Beneficiaries; Breach of contract -- UNUM Life Insurance Company of America; Breach of contract -- Standard Insurance Company.

*Synopsis: (from the opinion) Plaintiff Justine Ramirez, the daughter of Kathleen Ramirez, a deceased former employee of defendant Forest County Potawatomi Community, doing business as Potawatomi Bingo Casino (“Potawatomi”), alleges that her mother participated in several employee benefit plans established by Potawatomi and designated her as the beneficiary. Plaintiff further alleges that defendant UNUM Life Insurance Company of America (“UNUM”) underwrote two of the plans, and defendant Standard Insurance Company (“Standard”)underwrote one. Plaintiff brought this action in state court on her own behalf and as the special administratrix of her mother’s estate, alleging that defendants violated the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., and asserting state law claims of negligence and breach of contract.

*Holding: not yet available

Pueblo of Zuni v. United States
467 F.Supp.2d 1114
No. 01-1046 LHLFG
United States District Court, D. New Mexico, November 14, 2006

Subjects: Overhead costs; United States. Indian Self-Determination and Education Assistance Act; Contracts -- Zuni Tribe of the Zuni Reservation, New Mexico; Medical care -- Costs -- Zuni Tribe of the Zuni Reservation, New Mexico; Breach of contract -- United States; Self-determination -- Zuni Tribe of the Zuni Reservation, New Mexico; United States. Indian Health Service.

*Synopsis: Indian tribe brought putative class action seeking damages for the government's alleged failure to pay the full contract amounts under contracts between Indian tribes and the Indian Health Service (IHS) that were awarded under the Indian Self-Determination and Education Assistance Act (ISHA). After claims that had not been exhausted under Contract Disputes Act (CDA) were dismissed, Indian tribe moved for reconsideration.

*Holding: The District Court, Johnson, J., held that exhaustion requirement could not be avoided by framing claim as statutory as opposed to contractual.
Motion denied.

Schaghticoke Tribal Nation v. Norton
2006 WL 3231419
No. 3:06cv81(PCD)
United States District Court, D. Connecticut, November 3, 2006

Subjects: Schaghticoke Tribal Nation (Conn.) -- Recognition; Federal recognition of Indian tribes -- United States; Indian land transfers -- Schaghticoke Tribal Nation (Conn.).

*Synopsis: (from the opinion) In their Petition for Review, STN argues that the actions leading up to the Reconsidered Final Determination “violate the APA because they are arbitrary and capricious, constitute an abuse of discretion, are contrary to the laws and regulations governing the Department of the Interior and the OFA with respect to the federal acknowledgment process, violated STN's rights to procedural due process, breached the United States' federal trust obligation to STN as an Indian tribe, and are the produce of unlawful political influence and congressional interference.”

*Holding: not yet available

October

Hayes v. United States
73 Fed.Cl. 724
No. 06-254 L
United States Court of Federal Claims, October 30, 2006

Subjects: Claims against decedents' estates; Inheritance and succession; Indian allotments; Oil and gas leases; Payment -- United States; United States. Bureau of Indian Affairs.

*Synopsis: Son of deceased Indian allottee brought suit against the United States alleging that the Bureau of Indian Affairs (BIA) improperly stopped oil and gas royalty payments to allottee in order to pay overdue state and federal taxes on the property of allottee Defendant moved to dismiss.

*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) for purposes of statute of limitations, claim accrued on date BIA official issued authorization of payment letters that revoked direct payment of royalties to allottee and ordered oil and gas lessees to submit the payments to the BIA Royalty Management Program;
(2) current suit did not relate back to prior case which was dismissed without prejudice, for purpose of tolling statute of limitations; and
(3) continuing claim doctrine was not applicable to running of statute of limitations.
So ordered.

Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States
2006 WL 2949527
No. CV-02-009-E-BLW
United States District Court, D. Idaho, October 16, 2006

Subjects: Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho -- Members; Leases -- Accounting -- United States. Dept. of the Interior; Computer systems -- United States. Dept. of the Interior; Data protection.

*Synopsis: (from the opinion) Plaintiffs are members of the Shoshone-Bannock Tribes of the Fort Hall reservation who receive farm lease income annually. Plaintiffs' claims stem from the court-ordered shutdown of the Department of Interior's computer system in 2001, which resulted in late payments to Plaintiffs for their farm lease income for calendar year 2002.
After several failed attempts to settle the case, the Court certified the case as a class action on September 27, 2005. Defendants now seek summary judgment based on lack of jurisdiction.

*Holding: not yet available

United States of America v. Friday
2006 WL 3592952
No. 05-CR-260-D
United States District Court, D. Wyoming, October 13, 2006

Subjects: United States. Bald and Golden Eagle Protection Act; Eagles -- Protection -- Law and legislation -- United States; Religious articles; Northern Arapaho Tribe of the Wind River, Reservation, Wyoming -- Members; Native American Church of North America -- Members; Freedom of religion.

*Synopsis: (from the opinion) On November 15, 2005, Winslow W. Friday, Defendant, was charged by Information with the unlawful taking of one bald eagle without having previously procured permission to do so from the Secretary of the Interior, a misdemeanor in violation of the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668.

*Holding: not yet available

Washakie v. United States
2006 WL 2938854
No. CV-05-462-E-BLW
United States District Court, D. Idaho, October 13, 2006

Subjects: United States. Federal Tort Claims Act; Assault and battery -- Fort Hall Police Department; Police -- United States. Bureau of Indian Affairs -- Defined; Police -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: (from the opinion) Oren Washakie filed this action under the Federal Tort Claims Act (“FTCA”), alleging that he was assaulted while in the Fort Hall Jail by officers of the Fort Hall Police Department and that, after the assault, the police placed him in an isolation cell and ignored his requests for medical attention for over eight hours. Washakie claims that the Shoshone-Bannock Tribe, the Fort Hall Police Department and the Police Department are, for the purposes of the FTCA, part of the Bureau of Indian Affairs (“BIA”).

*Holding: not yet available

Pueblo of Zuni v. United States
467 F.Supp.2d 1099
No. CV 01-1046 WJWPL
United States District Court, D. New Mexico, October 11, 2006

*Synopsis: Indian tribe brought putative class action seeking damages for the government's alleged failure to pay the full contract amounts under contracts between Indian tribes and the Indian Health Service (IHS) that were awarded under the Indian Self-Determination and Education Assistance Act (ISHA). Government moved to dismiss certain claims for lack of subject matter jurisdiction.

*Holding: The District Court, Johnson, J., held that:
(1) requirement of Contract Disputes Act (CDA) that claims be presented to contracting officer required dismissal of unexhausted claims for unpaid contract sums under ISDA;
(2) Indian tribe did not have authority under ISHA to bypass CDA exhaustion requirement;
(3) unexhausted claims were insufficiently similar to facts of exhausted claims to excuse requirement;
(4) failure to exhaust could not be excused on grounds of futility;
(5) exhaustion could not be excused on basis of reliance on order in separate class action suit against different agency.
Motion granted in part.

Miner Electric, Inc. v. Muscogee (Creek) Nation
464 F.Supp.2d 1130
No. 05-CV-359-HDC-PJC
United States District Court, N.D. Oklahoma, October 10, 2006

Subjects: Criminal actions arising on Indian reservations -- Muscogee (Creek) Nation, Oklahoma; Non-Indians; Civil jurisdiction -- Muscogee (Creek) Nation, Oklahoma; Forfeiture.

*Synopsis: Non-Indians, the occupants of a sports utility vehicle (SUV) and its corporate owners, brought suit against Indian Tribe seeking injunctive relief and declaratory judgment that tribe lacked jurisdiction to enter a civil forfeiture judgment against SUV in which drugs were found while occupants were visiting Indian casino. Non-Indians moved for summary judgment.

*Holding: The District Court, H. Dale Cook, Senior District Judge, held that:
(1) tribal court's inherent authority to regulate persons doing business on reservation did not give it authority to forfeit property of non-Indian patrons of Indian casino;
(2) tribe's inherent authority to regulate internal affairs which directly impact the tribal health or welfare did not extend to permit forfeiture of non-Indian vehicle in which controlled substance was found;
(3) court could not assume civil forfeiture jurisdiction over non-Indian property for purposes of punishing owner for criminal act; and
(4) tribal court forfeiture order violated Excessive Fines Clause.
Motion for summary judgment granted.

Parry v. Haendiges
458 F.Supp.2d 90
No. 06-CV-614S
United States District Court, W.D. New York, October 6, 2006

Subjects: Divorce -- Members -- Seneca Nation of New York; Concurrent jurisdiction -- New York (State); Concurrent jurisdiction -- Seneca Nation of New York.

*Synopsis: Member of the Seneca Nation of Indians brought a § 1983 suit seeking to enjoin a state court judge from exercising jurisdiction over a divorce action brought in the state court by his wife. The member moved for preliminary injunctive relief.

*Holding: The District Court, William M. Skretny, J., held that: (1)the divorce action was subject to the concurrent jurisdiction of courts of the state and courts of the Seneca Nation, and (2) balance of equities weighed in favor of state court retaining jurisdiction.
Motion denied.

In re Hutchinson
354 B.R. 523
No. 05 43445 13
United States Bankruptcy Court, D. Kansas, October 5, 2006

Subjects: Dividends -- Members -- Prairie Band of Potawatomi Nation, Kansas; Casinos -- Prairie Band of Potawatomi Nation, Kansas; Debtor and creditor -- Members -- Prairie Band of Potawatomi Nation, Kansas; Bankruptcy -- Members -- Prairie Band of Potawatomi Nation, Kansas.

*Synopsis: In case converted from Chapter 7 to Chapter 13, Chapter 7 trustee moved for turnover of per capita distributions from casino gaming revenues received by debtor-husband, as enrolled member of Indian Tribe. Chapter 13 trustee subsequently objected to confirmation of amended plan, moved to dismiss, and, after debtors claimed the per capita distributions as exempt, objected to the exemptions. United States Trustee (UST) objected to the motion to dismiss, asserting that case should be converted. Chapter 13 trustee then filed motion to re-convert.

*Holding: The Bankruptcy Court, Janice Miller Karlin, J., held that:
(1) the per capita distributions, as well as the right to receive them in the future, were property of the estate;
(2) the per capita distributions were not exempt as “money accruing from any lease or sale of lands held in trust by the United States for any Indian”;
(3) term “public assistance benefit,” as used in the Bankruptcy Code exemption, refers to government aid to needy, blind, aged, or disabled persons and to dependent children;
(4) the per capita distributions, which were made in equal amounts to all enrolled tribal members regardless of need, were not exempt as a right to receive “a local public assistance benefit”;
(5) the amended plan did not meet the “best interest of creditors” test; and
(6) Chapter 13 trustee could not compel the turnover of estate property.
Objections to confirmation and exemption sustained; motion for turnover denied in part.

In re McDonald
353 B.R. 287
No. 02-42850
United States Bankruptcy Court, D. Kansas, October 5, 2006

*Synopsis: In case converted from Chapter 13 to Chapter 7, Chapter 7 trustee moved for an order requiring debtors to turn over any and all per capita distributions from casino gaming revenues, and the payment advices relative to those distributions, which debtor-wife, as enrolled member of Indian Tribe, received subsequent to the order of conversion. Debtors claimed the property as exempt.

*Holding: Addressing issues of apparent first impression in the district, the Bankruptcy Court, Janice Miller Karlin, J., held that:
(1) the per capita distributions were property of the estate;
(2) debtors were not entitled to rely upon exemptions contained in tribal code; and
(3) the per capita revenues were not excludable from the bankruptcy estate as trust funds protected by a spendthrift provision.
Motion granted.

Nkihtaqmikon v. Bureau of Indian Affairs
450 F.Supp.2d 113
No. CV-05-188-B-W
United States District Court, D. Maine, October 3, 2006

*Synopsis: In action under Freedom of Information Act (FOIA), alleging that Bureau of Indian Affairs (BIA) improperly withheld documents relating to its approval of a lease to operate a liquified natural gas terminal on tribal lands, the District Court, 2006 WL 2724037, granted summary judgment, for mootness, in favor of BIA as to claim that it improperly withheld specific document, but stayed decision to allow requestors to decide whether issues raised by their receipt, after the motion was filed, of a response to their FOIA request, warranted amendment of complaint.

*Holding: Following filing of amended complaint, the District Court, Woodcock, J., held that claim that BIA improperly withheld specific document was moot.
Motion granted.

September

Equal Employment Opportunity Commission v. Peabody Western Coal Company
2006 WL 2816603
No. CV 01-01050-PHX-MHM
United States District Court, D. Arizona, September 30, 2006

Subjects: United States. Equal Employment Opportunity Commission; United States. Civil Rights Act of 1964; Discrimination in employment; Indian preference in hiring; Navajo Nation, Arizona, New Mexico & Utah -- Members; Peabody Western Coal Company.

*Synopsis: (from the opinion) This Court finds that the dismissal of the EEOC's lawsuit is warranted for several reasons. First, the EEOC is currently seeking affirmative relief against the Navajo Nation in the form of injunctive relief enjoining the Navajo Nation from requiring and enforcing its Navajo employment preference provisions. This affirmative relief is contrary to Title VII's exemption of Indian tribes from suit. Because the Navajo Nation is immune from such suit it cannot be a party to this litigation thus making it a necessary and indispensable party pursuant to Rule 19 Fed.R.Civ.P. Second, because the EEOC is seeking such affirmative relief against the Navajo Nation, the EEOC's suit is contrary to the Rules Enabling Act and runs afoul of proper procedural requirements when asserting a suit against a government respondent. Third, the Rehabilitation Act expressly authorizes the employment preference provisions at issue in this litigation, thus invalidating the EEOC's claims as a matter of law. Fourth and finally, this Court finds that even if the EEOC has properly brought suit against Peabody Coal and the Navajo Nation regarding the current Navajo employment preference given, its suit fails as the SOI is a necessary party that cannot be joined to this litigation and is indispensable pursuant to Rule 19 Fed.R.Civ.P.

*Holding: not yet available

Blue v. Marcellias
2006 WL 2850600
No. 4:06-cv-67
United States District Court, D. North Dakota, September 29, 2006

Subjects: Indian prisoners -- Members -- Turtle Mountain Band of Chippewa Indians of North Dakota; United States. Indian Civil Rights Act; Habeas corpus; Custody of children.

*Synopsis: (from the opinion) Levi Blue is an enrolled member of the Turtle Mountain Band of Chippewa Indians. Blue is presently incarcerated in a tribal jail facility pursuant to an order issued by Tribal Judge Madonna Marcellais, Chief Judge of the Turtle Mountain Tribal Court. On August 21, 2006, Blue filed this petition for habeas corpus relief pursuant to Indian Civil Rights Act.

*Holding: not yet available

Santee Sioux Nation v. Norton
2006 WL 2792734
No. 8:05CV147
United States District Court, D. Nebraska, September 29, 2006

Subjects: Indian gaming -- Class III -- Santee Sioux Nation, Nebraska (formerly the Santee Sioux Tribe of the Santee Reservation of Nebraska); United States. Department of the Interior; United States. Indian Gaming Regulatory Act; United States. Administrative Procedure Act.

*Synopsis: (from the opinion) Plaintiff Santee Sioux (Tribe) filed a complaint in this action, Filing No. 1, requesting declaratory and injunctive relief against the Department of Interior's (DOI) February 2, 2005, decision disapproving the Tribe's application for a Class III gaming application under 25 C.F.R. Part 291. 28 U.S.C. §§ 2201 and 2202. The Tribe contends that DOI violated the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq., and acted in an arbitrary and capricious manner that violated the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 et seq., when on February 2, 2005, the Secretary of the Department of Interior (Secretary) determined that the Tribe's application for Class III gaming should be denied.

*Holding: not yet available

BNSF Railway Company v. Ray
2006 WL 2792174
No. CV-05-0386-PHX-DGC
United States District Court, D. Arizona, September 28, 2006

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

*Synopsis: (from the opinion) The Sullivan Defendants filed a wrongful death action against BNSF Railway Company in Hualapai Tribal Court for damages stemming from a 2003 accident at a railroad crossing on tribal lands..

*Holding: not yet available

Chippewa Cree Tribe of the Rocky Boy's Reservation v. United States
73 Fed.Cl. 154
No. 92-675 L
United States Court of Federal Claims, September 27, 2006

Subjects: Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana -- Claims; Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana -- Finance; United States. Indian Claims Commission; Trusts and trustees -- United States; Breach of trust -- United States.

*Synopsis: Indian tribes brought suit against the United States seeking damages for mismanagement of judgment funds awarded by the Indian Claims Commission. The Court of Federal Claims, 69 Fed.Cl. 639, granted plaintiffs' motion for summary judgment in part. Defendant moved for reconsideration.

*Holding: The Court of Federal Claims, Hewitt, J., held that per capita distribution of judgment fund awarded by the Indian Claims Commission to the Pembina Band of Chippewa Indians did not transform communal interest descendants of the Pembina Band held in tribal land ceded to the United States by treaty into individual, vested property rights, so as to preclude recognizing the per capita beneficiaries as an "identifiable group" under the Indian Tucker Act for purposes of litigating claims that the United States mismanaged the fund monies, and designating tribal plaintiffs as representatives of that group.
Motion denied.

Myers v. Seneca Niagra Casino
488 F.Supp.2d 166
No. 1:05-CV-0064 (LEK/DRH)
United States District Court, N.D. New York, September 26, 2006

Subjects: Sovereign immunity -- Seneca Niagra Falls Gaming, Inc.; United States. Family and Medical Leave Act of 1993; Government agencies -- Tribes -- Defined.

*Synopsis: Terminated employee of casino owned and operated by Seneca Nation gaming corporation sued her former employer, alleging violations of Family and Medical Leave Act (FMLA). Casino moved to dismiss for lack of subject matter jurisdiction.

Holding: The District Court, Lawrence E. Kahn, J., held that:
(1) Seneca Nation enjoyed tribal sovereign immunity from FMLA suit, and
(2) equitable relief was not available.
Motion granted.

Nkihtaqmikon v. Bureau of Indian Affairs
453 F.Supp.2d 193
No. CV-05-188-B-W
United States District Court, D. Maine, September 25, 2006

*Synopsis: Members of Indian tribe brought action under Freedom of Information Act (FOIA), alleging that Bureau of Indian Affairs (BIA) improperly withheld documents relating to its approval of a lease to operate a liquified natural gas terminal on tribal lands. BIA moved for summary judgment.

*Holding: Construing the motion as a motion to dismiss, the District Court, John A. Woodcock, Jr., J., held that
(1) claim that BIA improperly withheld specific document relating to its approval of lease, was moot; but
(2) Court would stay its decision as to BIA's motion for summary judgment, to allow requestors to decide whether issues raised by their receipt, after motion was filed, of a response to their FOIA request, generated the basis for a supplemental pleading; and
(3) Department of the Interior's (DOI) failure to rule within statutory deadline on requestors' appeal of BIA's decision did not warrant relief.
Ordered accordingly.

Fallon Paiute-Shoshone Tribe v. United States Bureau of Land Management
455 F.Supp.2d 1207
No. 03:04-CV-0466-LRH-RAM
United States District Court, D. Nevada, September 21, 2006

Subjects: Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; United States. Bureau of Land Management; Burial sites -- Nevada; Human remains (Archaeology); Possession (Law) -- United States.

*Synopsis: Native American tribe brought action against Bureau of Land Management (BLM), challenging agency's decision not to repatriate ancient human remains found in cave adjacent to tribal land. Parties cross-moved for summary judgment.

*Holding: The District Court, Hicks, J., held that:
(1) BLM's decision was ripe for review;
(2) BLM did not fail duty to consult with tribe;
(3) BLM did not fail duty to observe importance of review committee; and
(4) BLM's determination that remains were not affiliated with any tribe was arbitrary and capricious.
Motions granted in part and denied in part.

Muwekma Ohlone Tribe v. Kempthorne
452 F.Supp.2d 105
No. 03-1231(RBW)
United States District Court, District of Columbia, September 21, 2006

Subjects: Federal recognition of Indian tribes -- Muwekma Ohlone Tribe (Calif.); United States. Administrative Procedure Act; United States. Constitution; Pleasanton or Verona Band of Alameda County (Calif) -- Termination.

*Synopsis: Indian tribe, alleging it had previously been recognized by the United States Government before its status as a recognized tribe was dropped without any formal withdrawal process, brought action alleging that it was deprived of its rights under the Equal Protection Clause and the Administrative Procedure Act (APA), in its subsequent application for reaffirmation of its federal recognition status, when the Department of the Interior (DOI) required it to go through the full recognition procedure even though two similarly situated tribes had not been subjected to that requirement. Parties cross-moved for summary judgment.

*Holding: The District Court, Reggie B. Walton, J., held that remand for supplementation of the administrative record was required.
Ordered accordingly.

Osage Tribe of Indians of Oklahoma v. United States
72 Fed.Cl. 629
Nos. 99-550 L, 00-169 L
United States Court of Federal Claims, September 21, 2006

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

*Synopsis: Indian tribe brought suit against the United States alleging that the government violated its duty as trustee of the tribe's mineral estate by failing to collect all moneys due from tribal oil leases and to deposit and invest those moneys as required by statute and according to the fiduciary duty owed to the tribe.

*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) government breached its fiduciary duty to tribe by not collecting oil royalties based on highest “offered prices”;
(2) government breach its fiduciary duty by failing to apply the highest posted price or offered price paid to producers of unregulated stripper oil to the calculation of royalty payments during months when federal price controls on the sale of crude oil were in effect;
(3) government breached its fiduciary duty by its failure to promptly deposit royalty funds depositing funds;
(4) government breached its fiduciary duty failing to prudently invest cash balances of income in excess of $25,000; and
(5) government breached its fiduciary duty by failing to obtain highest available investment yields on funds derived from royalties during the months of January 1976, May 1979, November 1980, February 1986, and July 1989.
Judgment for plaintiff.

Related News Stories: Osage claim upheld: Federal ruling favors tribe (Tulsa World) 9/23/06, Osage Nation wins major trust fund ruling (Indianz.com) 9/26/06

Stevens v. McCellen
2006 WL 2709687
No. 2:06CV215
United States District Court, D. Utah, September 20, 2006

Subjects: Sovereign immunity -- Wampanoag Nation, Tribe of Grayhead, Wolf Band (Utah); Federal recognition of Indian tribes -- Wampanoag Nation, Tribe of Grayhead, Wolf Band (Utah).

*Synopsis: (from the opinion) The court has considered Judge Warner's recommendation and has reviewed the record de novo. Judge Warner concluded that Mr. Stevens and the Wampanoag Nation are not entitled to sovereign immunity.

*Holding: not yet available

United States v. Arch
2006 WL 2708589
No. 2:03CR78
United States District Court, W.D. North Carolina, September 19, 2006

Subjects: Restitution -- Members -- Eastern Band of Cherokee Indians of North Carolina; Profit-sharing -- Members -- Eastern Band of Cherokee Indians of North Carolina; Attachment and garnishment -- North Carolina -- Members -- Eastern Band of Cherokee Indians of North Carolina; Casinos -- Eastern Band of Cherokee Indians of North Carolina; Child support -- Eastern Band of Cherokee Indians of North Carolina.

*Synopsis: (from the opinion) The Government now seeks to garnish the Defendant's per capita distribution of gaming revenues received twice a year from the Tribe. The Tribe has answered that such funds are immune from garnishment due to the sovereign nature of the Tribe and also because there is an Order from the Cherokee Tribal Court for child support which must be paid from the distribution.

*Holding: not yet available

Eastern Shawnee Tribe of Oklahoma v. State of Ohio
2006 WL 2711563
No. 3:05CV7267
United States District Court, N.D. Ohio, September 19, 2006

Subjects: Aboriginal rights -- Ohio -- Eastern Shawnee Tribe of Oklahoma; Ohio; Occupancy (Law).

*Synopsis: (from the opinion) This is a land possession case, in which the Eastern Shawnee Tribe of Oklahoma (Tribe) is suing the State of Ohio and its officials, entities and municipalities, as well as individual land owners, claiming aboriginal possessory land rights. The Tribe claims title and the right of occupancy to particular lands of Ohio currently owned, occupied, and used by the State of Ohio and landowners.

*Holding: not yet available

Related News Stories: Judge lets Ohio re-enter land dispute with tribe (Toledo Blade) 9/20/06

Western Shoshone National Council v. United States
73 Fed.Cl. 59
No. 05-558L
United States Court of Federal Claims, September 19, 2006

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: Governing body of the Western Shoshone Nation and Western Shoshone bands brought suit against the United States seeking declaratory judgment that judgment of the Indian Claims Commission (ICC) was not enforceable against them, or that the ICC judgment was void because of alleged due process violations. Defendant moved to dismiss.

*Holding: The Court of Federal Claims, Smith, Senior Judge, held that:
(1) finality provision of the Indian Claims Commission Act (ICCA) did not bar action challenging process of the Indian Claims Commission (ICC) under the relief from judgment rule;
(2) motion for relief from ICC judgment on ground that judgment was void was untimely; and
(3) independent action instituted in Court of Federal Claims seeking relief from ICC judgment on ground of newly discovered evidence was barred by limitations and by laches.
Motion granted.

Butler v. Lincoln County, Oregon
2006 WL 2711487
No. Civ. 05-6204-TC
United States District Court, D. Oregon, September 18, 2006

Subjects: Indian prisoners -- Oregon; Lincoln County (Or.); Confederated Tribes of the Siletz Reservation, Oregon -- Members; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indians of North America -- Rites and ceremonies; Freedom of religion -- United States; Religious articles; Eagle feathers.

*Synopsis: (from the opinion) Plaintiff has filed an amended complaint alleging that defendants violated his civil rights as guaranteed by 42 U.S.C. § 1983 and the Protection of Religious Exercise in Land Use and by Institutionalized Persons Act, 42 U.S.C. § 2000cc, when they refused to allow him to possess an eagle feather in his cell for use in personal exercise of his religious beliefs.

*Holding: not yet available

Casanova v. Norton
2006 WL 2683514
No. CV 05-1273-PHX-ROS
United States District Court, D. Arizona, September 18, 2006

Subjects: United States. Administrative Procedure Act; Breach of trust -- United States; Deeds -- Chemehuevi Indian Tribe of the Chemehuevi Reservation, California -- Federal supervision; Encumbrances (Law).

*Synopsis: (from the opinion) On April 28, 2005, the Plaintiffs filed their complaint. That complaint includes three counts: (1) failure to approve the Tribal Plaintiffs' Assignment Deeds as encumbrances; (2) failure to comply with the Administrative Procedures Act; and (3) breach of trust.

*Holding: not yet available

Limbaugh v. Thompson
2006 WL 2642388
Nos. 2:93cv1404-WHA, 2:96cv554-WHA
United States District Court, M.D. Alabama, September 14, 2006

Subjects: Indian prisoners -- Alabama; Alabama. Dept. of Corrections; Freedom of religion -- United States; Sweat lodges.

*Synopsis: (from the opinion) Plaintiffs' challenge to the Alabama Department of Corrections' (ADOC) policy prohibiting Native American inmates from participating in sweat lodge ceremonies, and recommended that all aspects of the claim be dismissed.

*Holding: not yet available

Russ v. Dry Creek Rancheria Band of Pomo Indians
2006 WL 2619356
No. C 06-03714 CRB
United States District Court, N.D. California, September 12, 2006

Subjects: Dry Creek Rancheria of Pomo Indians of California; Indian land transfers -- Dry Creek Rancheria of Pomo Indians of California; Casinos -- Dry Creek Rancheria of Pomo Indians of California; Exhaustion of tribal remedies; Sovereign immunity -- Dry Creek Rancheria of Pomo Indians of California.

*Synopsis: (from the opinion) The dispute in this case involves a Tribal Redevelopment and Relocation Agreement (“Agreement”) executed between Plaintiffs and Defendant.

*Holding: not yet available

United States v. Tawahongva
456 F.Supp.2d 1120
No. 06 MJ 4013 PCT MEA
United States District Court, D. Arizona, September 11, 2006

Subjects: Eagle feathers; Eagles -- Law and legislation -- United States; Freedom of religion -- United States. United States. Migratory Bird Treaty Act; Fish and game licenses; United States. Constitution. 1st Amendment; United States. Religious Freedom Restoration Act of 1993.

*Synopsis: Native American defendant filed motion to dismiss charges of violating Migratory Bird Treaty Act (MBTA).

*Holding: The District Court, Aspey, United States Magistrate Judge, held that:
(1) defendant did not have standing to assert the defense that the MBTA permitting system violated his constitutional right to the free exercise of his religion, and
(2) Religious Freedom Restoration Act (RFRA) did not prohibit defendant from being prosecuted under MBTA for failing to obtain a permit prior to taking golden eagles.
Motion denied.

Carruthers v. Flaum
450 F.Supp.2d 288
No. 03 CIV. 7768
United States District Court, S.D. New York, September 6, 2006

Subjects: Indian gaming -- Sullivan County (N.Y.); State recognized Indian tribes -- Unkechaug Indian Nation (N.Y.); Indian gaming -- Unkechaug Indian Nation (N.Y.); Breach of contract.

*Synopsis: Limited liability companies (LLCs), which had contract with Indian tribe for casino development of property tribe was to purchase as ancestral land, and one member of companies, sued prospective vendors for breach of contracts for purchase and fraudulent misrepresentations during negotiations, vendors' attorney for breach of fiduciary duty as an escrow agent, real estate developer, who allegedly was the secret backer of vendors' activities, and their own attorney for malpractice in failing to secure parcels. Defendants filed summary judgment motions, and real estate developer and plaintiffs' attorney filed motions for sanctions.

*Holding: The District Court, McMahon, J., held that:
(1) letter of intent did not satisfy New York's Statute of Frauds;
(2) doctrine of partial performance would not be invoked to bind prospective vendors to the terms of an oral agreement for sale of real estate;
(3) letter of intent regarding purchase of real estate was not a binding preliminary agreement under New York law;
(4) indemnification provision in letter of intent was not a promise to insure that clear title passed to tribe;
(5) vendors' alleged promise to ensure that Indian tribe would take clear title to property was not a misrepresentation that could support a fraud claim;
(6) vendors' attorney did not breach fiduciary duty to LLCs;
(7) LLC member failed to establish that he sustained any damages as result of alleged malpractice of LLC's attorney, under New York law; and
(8) Rule 11 sanctions could not be imposed after dismissal of offending claims.
Motions for summary judgment granted; motions for sanctions denied.

Barber v. Simpson
2006 WL 2548189
No. 2:05-cv-2326-GEB-DAD
United States District Court, E.D. California, September 1, 2006

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

*Synopsis: not yet available

*Holding: not yet available

August

Native American Arts, Inc. v. Specialty Merchandise Corp
451 F.Supp.2d 1080
No. CV05-07889 SGL(JTLX)
United States District Court, C.D. California, August 28, 2006

Subjects: Native American Arts (U.S.); Specialty Merchandise Corp.; United States. Indian Arts and Crafts Enforcement Act of 2000; Indian craft -- Defined; Indian art -- Defined.

*Synopsis: Wholly Indian owned arts and crafts organization involved in distribution of authentic Indian arts and crafts sued company, under The Indian Arts and Crafts Act and The Indian Arts and Crafts Enforcement Act, for allegedly selling counterfeit Indian products. Company filed motion to dismiss, and organization filed request for leave to amend its complaint.

*Holding: The District Court, Larson, J., held that:
(1) organization failed to allege an injury in fact, arising from company's conduct, as was required to have Article 3 standing to bring action, and
(2) attempt by organization to amend complaint to establish standing would be futile.
Motion granted; request for leave to amend denied.

Cherokee Nation of Oklahoma v. United States
73 Fed.Cl. 467
Nos. 89-218 L, 89-630 L
United States Court of Federal Claims, August 24, 2006

Subjects: Tribal trust funds -- Cherokee Nation, Oklahoma; Natural resources -- Arkansas River; Breach of trust -- United States; Lawyers -- Fees.

*Synopsis: Indian tribes filed suit against the United States seeking damages for the government's use and mismanagement of tribal trust resources along the Arkansas River. Settlement negotiations resulted in the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act of 2002. Law firm which represented one of nations filed motion to intervene as plaintiff and motion for attorney fees. After intervention was granted, defendant filed motion for summary judgment. Nation filed to dismiss complaint-in-intervention, and law firm filed cross-motion for summary judgment.

*Holding: The Court of Federal Claims, Damich, Chief Judge, held that:
(1) law of the case doctrine precluded Court from revisiting ruling that it had jurisdiction over law firm's claim against the government for attorney fees under attorney fee provision of the Settlement Act, and
(2) Secretary of Interior correctly construed attorney fee provision paying only those attorney fees approved by the respective Indian Nations.
Defendant's motion granted; plaintiff's motion granted; intervenor-plaintiff's cross-motion denied.

Wolfchild v. United States
72 Fed.Cl. 511
Nos. 03-2684L, 01-568L
United States Court of Federal Claims, August 22, 2006

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 trust originally provided for the benefit of loyal Mdewakanton. Plaintiffs filed motion for leave to amend to add additional plaintiffs.

*Holding: The Court of Federal Claims, Lettow, J., held that:
(1) permissive joinder of additional lineal descendants of loyal Mdewakanton Sioux was proper under the Indian Tucker Act;
(2) As current custodian of trust property, Lower Sioux Community of Minnesota was entitled to intervene as of right; and
(3) Under statute authorizing Court of Federal Claims to summon third party to appear in suit to defend its interests, Court would issue summons to the Prairie Island, and Shakopee Indian Communities of Minnesota to appear in suit and defend their interests.

United States v. State of Washington
2006 WL 2375600
Nos. CV 9213, 01-02
United States District Court, W.D. Washington, August 15, 2006

Subjects: Discovery (Law); Swinomish Indians of the Swinomish Reservation, Washington; Samish Indian Tribe, Washington; Lummi Tribe of the Lummi Reservation, Washington; Washington (State).

*Synopsis: (from the opinion) The Samish seek to compel the Swinomish Indian Tribal Community (“Swinomish”) and Lummi Nation (“Lummi”) to produce certain documents generated during settlement proceedings. The Swinomish and Lummi have opposed the motion.

*Holding: not yet available

Dontigney v. Connecticut BIAC
2006 WL 2331079
No. 3:04cv994 (PCD)
United States District Court, D. Connecticut, August 10, 2006

Subjects: Membership -- Tribes -- Connecticut; Indians of North America -- Non-members of a tribe; Indians of North America -- Connecticut -- Tribal membership -- Exclusion and expulsion; Connecticut Indian Affairs Council.

*Synopsis: (from the opinion) Plaintiff argues that he should be a member of the CTIAC and the USBIA, but that he was “illegally thrown out and dismembered.” FN5 Plaintiff insists on his right to be a member of these organizations. It is not clear if by “member” Plaintiff seeks to be an actual member of the seven-member CTIAC FN6 or rather a “member of the Indian groups which benefit from the CTIAC.” It appears from the remainder of the Complaint that Plaintiff wants to receive the benefits of being recognized by the CTIAC, and the Court construes Plaintiff's Complaint as seeking such relief.

*Holding: not yet available

July

Ottowa Tribe of Oklahoma v. Speck
447 F.Supp.2d 835
No. 3:05 CV 7272
United States District Court, N.D. Ohio, July 31, 2006

Subjects: Hunting rights -- Ottawa Tribe of Oklahoma; Treaty rights -- Ottawa Tribe of Oklahoma; Fishing rights -- Ottawa Tribe of Oklahoma; Hunting -- Ohio; Fishing -- Ohio.

*Synopsis: Indian tribe brought declaratory judgment action against state official seeking declaration of its hunting and fishing rights. State official moved to dismiss.

*Holding: The District Court, Zouhary, J., held that:
(1) tribe suffered injury-in-fact, as required for standing;
(2) narrow exception to Ex parte Young doctrine for certain suits in nature of quiet title actions did not apply to present Eleventh Amendment bar to suit;
(3) United States was not an indispensable party to action;
(4) statute of limitations in Indian Claims Commission Act for claims against United States did not apply;
(5) neither issue nor claims preclusion applied to bar action; and
(6) resolution of issues of laches and abandonment was premature at pleading stage.
Motion denied.

Pro-Football, Inc. v. Harjo
2006 WL 2092637
Civil Action No. 99-1385 (CKK)
United States District Court, District of Columbia, July 26, 2006

Subjects: United States. Trademark Trial and Appeal Board; United States; Trademarks -- United States; Washington Redskins (Football team); Indians as mascots; Indians of North America; Race discrimination; Laches.

*Synopsis: (from the opinion) This case arises from the petitions of seven Native Americans (“the Native American Defendants” or “Defendants”) to cancel the registrations of six trademarks used by the Washington Redskins, a longtime professional football franchise, and owned by Plaintiff Pro-Football, Inc. (“Pro-Football”). Following a limited remand of this Court's September 30, 2006 Memorandum Opinion and Order, see Pro-Football, Inc. v. Harjo, 284 F.Supp.2d 96 (D.D.C.2003), this Court is to evaluate whether the doctrine of laches bars the claim of Mr. Mateo Romero, the youngest of the seven Native American Defendants in this case. See 415 F.3d 44, 50 (D.C.Cir.2005). Allegedly pursuant to the D.C. Circuit's limited remand in this case, the Native American Defendants have filed a Motion to Conduct Limited Discovery Related to Laches and Memorandum in Support Thereof, to which Pro-Football has filed an Opposition. Upon a searching examination of the parties' filings, the D.C. Circuit's explicit instructions, the relevant case law, and the entire record herein, the Court-pursuant to its considered discretion-shall deny the Native American Defendants' Motion to Conduct Limited Discovery.

*Holding: not yet available

State of Michigan v. Little River Band of Ottawa Indians
2006 WL 2092415
No. 5:05-CV-95
United States District Court, W.D. Michigan, July 26, 2006

Subjects: Breach of contract; Intergovernmental agreements -- Michigan; Intergovernmental agreements -- Tribes -- Michigan; Intergovernmental agreements -- Gaming; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Michigan Economic Development Corporation; Michigan; United States. Indian Gaming Regulatory Act.

*Synopsis: (from the opinion) This suit is brought under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. The Plaintiffs, State of Michigan and Michigan Economic Development Corporation (MEDC), claim that the defendants, Little River Band of Ottawa Indians (Little River Band) and Little Traverse Bay Bands of Odawa Indians (Little Traverse Bay Bands), breached Tribal-State Gaming Compacts that each Defendant had entered into with the Plaintiffs.

*Holding: not yet available

Plains Commerce Bank v. Long Family Land and Cattle Company, Inc.
440 F.Supp.2d 1070
No. CIV. 05-3002
United States District Court, D. South Dakota, July 17, 2006

Subjects: Debtor and creditor; Jurisdiction -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana.

*Synopsis: Bank filed action against Indian-controlled ranching company and its owners seeking declaratory judgment that tribal court had lacked subject matter jurisdiction and deprived bank of due process in tribal court's previous adjudication of dispute between bank and company over agreements concerning loans and company's lease of and option to purchase bank's land. Both parties moved for summary judgment.

*Holding: The District Court, Kornmann, J., held that:
(1) bank had consensual relationship with company;
(2) alleged tortious conduct of bank had direct nexus with its relationship with company;
(3) bank's choice to seek relief in tribal court supported tribal court's jurisdiction; and
(4) bank was not deprived of due process.
Bank's motion denied, company's motion granted.

Yankton Sioux Tribe v. Kempthorne
2006 WL 2021695
No. CIV. 06-4091
United States District Court, D. South Dakota, July 14, 2006

Subjects: Yankton Sioux Tribe of South Dakota; Schools -- Tribes -- United States -- Administration; School management and administration -- Indian County U.S.) -- Federal supervision; United States. Office of Indian Education Programs.

*Synopsis: (from the opinion) Plaintiffs, Indian Tribes and tribal grant schools, move for a preliminary injunction to prevent the closure of several Education Line Offices operated by the Office of Indian Education Programs (OIEP). Defendants oppose the motion. Plaintiffs' motion for a preliminary injunction is granted.

*Holding: not yet available

Yankton Sioux Tribe v. Kempthorne
2006 WL 2021695
No. CIV. 06-4091
United States District Court, D. South Dakota, July 14, 2006

*Holding: not yet available

Ponca Tribe of Indians of Oklahoma v. Continental Carbon Company
2006 WL 1997149
No. CIV-05-445-C
United States District Court, W.D. Oklahoma, July 13, 2006

Subjects: Ponca Tribe of Indians of Oklahoma; Class actions (Civil procedure) -- Ponca Tribe of Indians of Oklahoma; Air pollution -- Ponca Tribe of Indians of Oklahoma; Continental Carbon Co. (Tex.); China Synthetic Rubber Corp.; Jurisdiction -- United States.

*Synopsis: (from the opinion) According to Plaintiff Ponca Tribe, it was chartered as a federal corporation and because that charter permits it to complain and defend in any court, it may bring this case in federal court.

*Holding: not yet available

Wyandotte Nation v. National Indian Gaming Commission
437 F.Supp.2d 1193
No. 05-2210-JAR
United States District Court, D. Kansas, July 6, 2006

Subjects: Status (Law); Wyandotte Tribe of Oklahoma; Land use -- Wyandotte Tribe of Oklahoma; Trust lands -- Wyandotte Tribe of Oklahoma; Indian gaming -- Wyandotte Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; United States. Indian Gaming Regulatory Act.

*Synopsis: Indian tribe brought action challenging decision of the National Indian Gaming Commission (NIGC) which concluded that tribe could not lawfully conduct gaming on a tract of land being held in trust for the tribe by the United States. Tribe moved for summary judgment.

*Holding: The District Court, Julie A. Robinson, J., held that:
(1) tract did not qualify for application of the last reservation exception to Indian Gaming Regulatory Act's (IGRA) prohibition of gaming on trust lands acquired after October 17, 1988; but
(2) NIGC's decision, that tract did not qualify for application of the settlement of a land claim exception to IGRA, was arbitrary, capricious and unsupported by law; and
(3) NIGC acted in accordance with law in determining that tract did not qualify for application of the restored lands exception.
Reversed and remanded.

Pelt v. State of Utah
2006 WL 1881019
No. 2:92-CV-639 TC
United States District Court, D. Utah, July 6, 2006

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

*Synopsis: (from the opinion) Beneficiaries of the Navajo Trust Fund filed this class action suit against the Fund trustee, Defendant State of Utah, seeking relief for alleged mismanagement of Fund monies. Currently, the court is faced with a single discrete issue raised by the parties' most recent cross-motions for partial summary judgment.

*Holding: not yet available

Barber v. Simpson
2006 WL 1867643
No. 2:05-cv-2326-GEB-DAD
United States District Court, E.D. California, July 6, 2006

*Synopsis: (from the opinion) Plaintiff and Defendants are enrolled members of the Washoe Tribe of Nevada and California. Plaintiff alleges he “currently resides on, and exercises sole possession of a distinct portion of [an eighty acre parcel of land located in Alpine County, California,] consisting of approximately five acres known as 425 Barber Road, Marleeville, California.' “Plaintiff asserts “ownership of 425 Barber Road and a continuing right to possess the property pursuant to the doctrine of ‘individual aboriginal title.’ Defendants assert a “superior right to possess 425 Barber Road on the ground that the property is [part of an allotment] owned by the United States of America in trust for the benefit of Defendants and other individuals not including the Plaintiff.”

*Holding: not yet available

Marathon Oil Company v. Johnston
2004 WL 4960751
No. 03-CV-1031-J
United States District Court, D. Wyoming, July 1, 2004

Subjects: Jurisdiction -- Shoshone Tribe of the Wind River Reservation, Wyoming; Jurisdiction -- Arapahoe Tribe of the Wind River Reservation, Wyoming; Industrial accidents -- Wind River Indian Reservation (Wyo.); Marathon Oil Company (Tex.); Mining leases -- Shoshone Tribe of the Wind River Reservation, Wyoming; Mining leases -- Arapahoe Tribe of the Wind River Reservation, Wyoming; Non-members of a tribe.

*Synopsis: (from the opinion) Mr. Johnston filed a Motion to Dismiss Complaint for Declaratory Relief pursuant to Rule 12(b)(1), Rule 12(b)(6), and Rule 12(b)(7) contending that Marathon Oil failed to exhaust its remedies in Shoshone and Arapaho Tribal Court; that this Court lacks jurisdiction over the subject matter until or unless the Shoshone and Arapaho Tribal Court of Appeals issues a final order; that none of the exceptions to the exhaustion rule apply in this case; and that Marathon Oil failed to name an indispensable party.

*Holding: not yet available

June

Tunica Biloxi Tribe of Indians v. B