2003 Federal Courts Cases

December

Artichoke Joe's California Grand Casino V. Norton
2003 WL 22998116
Docket No. 02-16508
United States Court of Appeals, Ninth Cir., Dec. 22, 2003

Subjects: Equality before the law; United States. Constitution. 5th Amendment. United States. Constitution. 14th Amendment; Charities; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Indian Country (California); California; Tribes -- Indian Country (California).

*Synopsis: California card clubs and charities which were prohibited under state law from offering class III gaming brought action challenging validity of tribal-state compacts allowing Indian tribes to conduct such gaming on Indian land. The United States District Court for the Eastern District of California, 216 F.Supp.2d 1084, David F. Levi, J., granted summary judgment for defendants, and plaintiffs appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that: (1) state law authorizing class III gaming only by Indian tribes on Indian reservations or trust lands complied with Indian Gaming Regulatory Act (IGRA), and (2) law did not violate equal protection. Affirmed.

Related News Stories: Indian Tribes' Monopoly on Gaming Upheld (Sacramento Bee) 12/23
http://www.sacbee.com/content/politics/story/7998153p-8934698c.html

United States V. Juvenile Male
2003 WL 21698005, Docket No. 01-10693
United States Court of Appeals, Ninth Circuit, Dec. 4, 2002

Subjects: Assault and battery; Indian reservation police -- Violence against -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Juvenile deliquents; Juvenile justice, Administration of -- United States.

*Synopsis: Juvenile arrested for assaulting tribal police officers appealed from order of the United States District Court for the District of Arizona, Mary H. Murguia, J., which granted government's motion to transfer juvenile to adult status.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that: (1) court did not receive prior juvenile court records prior to transfer, as required by statute; (2) juvenile did not waive challenge based on court's failure to receive prior records; and (3) court's error was not harmless. Reversed and remanded.

Narragansett Indian Tribe of Rhode Island v. State of Rhode Island
296 F.Supp.2d 153, No. C.A. 03-296S
United States District Court, D. Rhode Island, Dec. 29, 2003

Subjects:Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Jurisdiction -- United States; District courts -- United States; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations.

*Synopsis: Narragansett Indian Tribe of Rhode Island brought action for declaratory judgment against State of Rhode Island, seeking declaratory judgment that State could not enforce its cigarette sales and excise tax scheme against Tribe with respect to smoke shop located on Tribe's Settlement Lands. State brought action in state court against Tribe, seeking declaratory judgment that Tribe's failure to comply with state excise, retail, and sales taxes was unlawful. Tribe removed State's action to federal court, and actions were consolidated

*Holding: District Court, Smith, J., held that:
(1) District Court lacked jurisdiction over State's action;
(2) legal incidence of cigarette tax scheme fell on consumers, and, thus, State could not be barred from enforcing tax by virtue of Tribe's sovereign status; and
(3) State did not violate federal law or Tribe's sovereign rights by executing search warrant on Settlement Lands.

Related News Stories: Judge Upholds R.I. Smoke-Shop Shutdown (AP) 12/29 *Password may be required.

The Western Mohegan Tribe and Nation v. The State of New York
2003 WL 24052010
Docket No. 03 Civ. 1165(CLB)
United States District Court, S.D. New York, December 23, 2003

Subjects: Western Mohegan Tribe and Nation (New York); New York (State); Land tenure -- New York (State); United States. Trade and Intercourse Act; Quiet title actions; United States. Constitution. 11th Amendment.

*Synopsis: (from the opinion) Plaintiff, the Western Mohegan Tribe and Nation, a/k/a Muhheakunnuk (“the Western Mohegan Tribe”), commenced this action on February 21, 2003, seeking a declaration of Plaintiff's ownership and right to possess certain lands, claimed to be their reserved lands, in this District and elsewhere in the State of New York, and seeks immediate repossession of such lands.

*Holding: not yet available

Burdett v. Harrah's Kansas Casino
294 F.Supp.2d 1215, No. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.
United States District Court, D. Kansas, Dec. 10, 2003

Subjects: United States. Fair Debt Collection Practices Act;United States. Fair Credit Reporting Act; Liability for emotional distress -- Kansas; Standing to sue; Indians of North America -- Suicide; Gamblers; Harrah's Kansas Casino Corp.

*Synopsis: Wife of man who committed suicide as alleged result of debt collection activity directed at recovering debts that he incurred gambling at local casino brought action and survivor's action to recover under the Fair Debt Collection Practices Act (FDCPA), under the Fair Credit Reporting Act (FCRA), and on negligent or intentional infliction of emotional distress theory.

*Holding: District Court, Vratil, J., held that:
(1) widow had no standing to pursue cause of action under the FDCPA based on collection efforts directed solely at late husband;
(2) widow could not recover on negligent infliction of emotional distress theory, given complete lack of evidence that she had sustained any physical injury;
(3) debt collector's conduct in continuing, even after debtor committed suicide, to direct 23 collection letters to home that he shared with his wife, did not support cause of action for intentional infliction of emotional distress;
(4) survivor action that widow brought some three years after her late husband's death, for debt collector's alleged violations of the FDCPA, would be dismissed as failing to state claim; and
(5) allegations in complaint were sufficient to state claim under Kansas law for negligent, but not for intentional, infliction of emotional distress.

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
295 F.Supp.2d 1141, No. CIV. 03-00316 ACK/LE
United States District Court, D.Hawai'i, Dec. 8, 2003

Subjects: Native Hawaiian students; Discrimination in education -- Hawaii; Kamehameha Schools -- Admission; Affirmative action programs; Private schools -- Hawaii; Equality before the law; Civil rights -- United States.

*Synopsis: Non-Native Hawaiian minor brought action alleging that admissions policy of private school dedicated to the education and upbringing of Native Hawaiians violated federal civil rights law. Minor moved for partial summary judgment, and school moved for summary judgment.

>*Holding: The District Court, Kay, J., held that:
(1) § 1981 claim would be reviewed pursuant to McDonnell Douglas burden shifting framework applicable in private employment setting, not standard governing claims under Equal Protection Clause, and
(2) as matter of first impression, admissions policy granting preference to children of Native Hawaiian ancestry constituted valid race-conscious remedial affirmative action program.

United States of America v. Herrera
No. 03-CR-439-MK.
Motion to Suppress
United States District Court, D. Colorado, December 1, 2003.

Subjects: Confidential communications -- Clergy; Medicine man; Police questioning; United States.

*Synopsis: (from the opinion) The Defendant seeks to suppress incriminating statements by Robert Cervantes, a Native American medicine man, as violative of the clergy-communicant privilege. The Defendant further seeks to suppress his own confession on two grounds:
(1) that the confession is fruit of the statements of Robert Cervantes, which should be suppressed; and
(2) that the confession was involuntary and obtained without proper advisement in accordance with Miranda v. Arizona, 384 U.S. 436 (1966)...

... Because of the spititual role, a medicine man or healer can qualify as clergy for purposes of the clergy-communicant privilege...The clergy-communicant privilege does not shield the Defendant's statements to Robert Cervantes from disclosure. The Defendant's incriminating statements made on August 7,2003 were voluntarily made without coercion by law enforcement officers. Because the Defendant was not in custody at the time he made such statements, no Miranda advisement was required. In accordance with these conclusions, neither the Defendant's statements to Robert Cervantes nor his statements to law enforcement are suppressed.

*Holding: not yet available

Related News Stories: Native American Medicine Man Can Hold Confessional Privilege [page 4] (Indian Law Times)

November

Gallegos V. Jicarilla Apache Nation
2003 WL 22854632, No. 02-2347 (D. Ct. No. CIV 02-1095 WPJ/DJS)
United States Court of Appeals, Tenth Circuit, November 28, 2003

Subjects: Indian reservation police -- Dismissal of -- Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation, New Mexico; United States. Indian Civil Rights Act.

*Synopsis: Former tribal police officer brought claims arising out of his termination against Indian tribe, tribal officials, and tribal employees under Indian Civil Rights Act (ICRA) and civil rights statutes. The United States District Court for the District of New Mexico dismissed action. Former police officer appealed.

*Holding: The Court of Appeals, Tacha, Chief Circuit Judge, held that:
(1) Dry Creek exception to tribal immunity did not apply to former employee's claims;
(2) tribe did not waive its sovereign immunity by including ICRA anti- discrimination language in its constitution;
(3) tribal police officer was not federal officer for purposes of claim under section of § 1985 prohibiting two or more persons from preventing federal officers from discharging their duties;
(4) allegation that police officer was fired to prevent him from testifying about his whistleblowing did not state claim under section of § 1985 involving efforts to deter party or witness from attending federal court;
(5) no viable predicate claims existed for claim under § 1985 conspiracy section;
(6) absent claim under § 1985, no claim existed under § 1986; and
(7) sanctions would be awarded against counsel for bringing frivolous appeal. Affirmed; motion for sanctions granted.

Anderson V. Evans
350 F.3d 815
Docket No. 02-35761
United States Court of Appeals, Ninth Cir., Nov. 26, 2003.

Subjects: Whaling rights -- Makah Indian Tribe of the Makah Indian Reservation, Washington; Animal rights activists; Animal welfare; Whaling -- Law and legislation; United States. National Environmental Policy Act of 1969; United States. Marine Mammal Protection Act of 1972; Whaling -- Environmental aspects -- Environmental impact statements.

*Synopsis: Animal advocacy groups challenged federal government's approval of quota for whale hunting by Makah Indian Tribe. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for government. Advocacy groups appealed.

*Holding: The Court of Appeals, Berzon and Gould, Circuit Judges, 314 F.3d 1006, held that: (1) government violated National Environmental Policy Act (NEPA) by failing to prepare environmental impact statement (EIS) prior to approving whaling quota, and (2) Marine Mammal Protection Act (MMPA) applied to tribe's proposed whale hunt.

City of Roseville V. Norton
348 F.3d 1020
Docket No. 02-5277
United States Court of Appeals, District of Columbia Circuit, Nov. 14, 2003

Subjects: Roseville (Calif.); United States. Dept. of the Interior; Trust or restricted lands; Casinos; Gambling on Indian reservations -- California; Indian gaming -- California; United Auburn Indian Community of the Auburn Rancheria of California; United States. Indian Gaming Regulatory Act; Auburn Indian Restoration Act.

*Synopsis: Municipalities and nonprofit organization brought action challenging the Secretary of Interior's decision to take a parcel of land into trust for Indian tribe for the purpose of operating a casino. The United States District Court for the District of Columbia, Emmett G. Sullivan, J., 219 F.Supp.2d 130, dismissed, and plaintiffs appealed.

*Holding: The Court of Appeals, Rogers, Circuit Judge, held that Government's taking into trust of land for terminated Indian tribe that had been restored to federally recognized status was "restoration of lands" within meaning of Indian Gaming Regulatory Act (IGRA). Affirmed.

United States v. Lulu Mae Hess
2003 WL 22664678
Docket No. 02-1212
United States Court of Appeals, Tenth Cir., Nov 12, 2003.

Subjects: Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; United States; Mines and mineral resources -- Defined; Gravel -- Defined; Trusts and trustees -- United States; Property -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.

*Synopsis: United States brought action on behalf of Southern Ute Tribe to determine ownership of gravel located on land acquired by landowners through exchange patent which reserved "all minerals" in trust for Tribe. On remand, 194 F.3d 1164, the United States District Court for the District of Colorado, Zita L. Weinshienk, J., held for United States. Landowners appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that exchange patent's reservation of "all minerals" for benefit of Indian tribe did not include gravel. Reversed and remanded.

Peltier V. Booker
2003 WL 22490095
Docket No. 02-3384
United States Court of Appeals, Tenth Circuit, Nov. 4, 2003

Subjects: Parole; Peltier, Leonard -- Imprisonment.

*Synopsis: Petitioner convicted of the murder of two Federal Bureau of Investigation (FBI) agents, affirmed at 585 F.2d 314, filed for habeas relief, seeking immediate release on parole. The United States District Court for the District of Kansas denied petition. Petitioner appealed.

*Holding: The Court of Appeals held that Parole Commission's decision, denying parole and delaying its reconsideration for 15 years, was not arbitrary and capricious, and was supported by rational basis.

Cayuga Indian Nation of New York v. Village of Union Springs
293 F.Supp.2d 183, No. 5:03-CV-1270.
United States District Court, N.D. New York, Nov. 28, 2003

Subjects: Cayuga Nation of New York; Indian Country (New York) -- Defined; Zoning law -- New York; Land use -- Law and legislation -- New York; Federal question; Sovereign immunity -- Cayuga Nation of New York; Cayuga County (N.Y.); Village of Union Springs (N.Y.); Springport (N.Y. : Town); Injunctions.

*Synopsis: Indian tribe brought action against county and municipal governments for a declaratory judgment that land was Indian country and an injunction barring municipalities from enforcement of zoning and land use laws against tribe. Village counterclaimed for injunctive relief.

*Holding: District Court, Hurd, J., held that:
(1) federal question jurisdiction existed over suit;
(2) tribal sovereign immunity did not preclude local governments' counterclaims;
(3) tribe failed to establish that it would suffer irreparable harm in the absence of a preliminary injunction; and
(4) village did not establish irreparable harm absent a preliminary injunction.

Related News Stories: Cayugas, Union Springs Start Over (Post Standard) 12/3, Hearing Clarifies Nation's Bingo Hall Plans (Post Standard) * 04/08, Cayuga Land Claim Rulings Challenged (Post Standard) * 04/01, Aurelius Bingo Hall Ruling Still Awaited (Post Standard) * 03/22, Judge Affirms Cayuga Nation's Sovereign Rights (Indianz.com) 04/26

Shoshone Indian Tribe of the Wind River Reservation v. United States
58 Fed. Cl. 542, No. 458-79 L, 459-79 L
United States Court of Federal Claims, Nov. 24, 2003

Subjects: Oil and gas leases -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting.

*Synopsis: Indian tribes brought action against the United States for breach of fiduciary duty in the management and payment of royalties on oil and gas production on Indian lands.

*Holding: On defendant's motion in limine to exclude testimony and evidence regarding certain claims for breach of trust after 1988, the Court of Federal Claims, Hewitt, J., held that:
(1) letter to the government in which Indian tribes expressed their intention not to seek damages for breach of fiduciary duty in the management and payment of royalties on oil production on Indian lands, with respect to certain periods and leases, was not a effective release of claims by trust beneficiaries;
(2) letter did give rise to promissory estoppel; and
(3) letter did not create basis for equitable estoppel.

Narragansett Indian Tribe of Rhode Island v. Banfield
294 F.Supp.2d 169, C.A. No. 02-524S.
United States District Court, D. Rhode Island, Nov. 19, 2003

Subjects: Narragansett Indian Tribe of Rhode Island; Narragansett Indian Wetuomuck Housing Authority (R.I.) -- Members; Libel and slander; District courts; Jurisdiction.

*Synopsis: Indian tribe brought action against members of Indian housing authority, seeking to enjoin enforcement of discovery order by Rhode Island Superior Court which, in action by Chief Sachem for libel and slander, granted motion by housing authority members to compel answers against Sachem Chief regarding tribal documents. Members moved to dismiss.

*Holding: The District Court, Smith, J., held that:
(1) Rooker-Feldman doctrine foreclosed district court jurisdiction, and
(2) motion to amend complaint to include Rhode Island Superior Court justices as defendants was futile.

Greybuffalo v. Frank
2003 WL 23211615, No. 03-C-559-C
United States District Court, W.D. Wisconsin, Nov. 4, 2003

Subjects: Actions and defenses; 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) This is a civil action for declaratory, monetary and injunctive relief, brought pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1 - 2000cc-5. Plaintiff Johnson Greybuffalo is an inmate at the Green Bay Correctional Institution in Green Bay, Wisconsin. He contends that all defendants except defendant Bruns violated his statutory and constitutional rights to exercise his religion when they denied his various requests for religious accommodation. In addition, he contends that defendant Bruns violated his constitutional rights when she failed to adequately investigate his inmate complaint.

*Holding: not yet available

United States v. John
291 F.Supp.2d 230, No. 01-CV-335A
United States District Court, W.D. New York, Nov. 4, 2003

Subjects: Income tax -- United States; Tax exemption -- United States; Indians of North America.

*Synopsis: United States brought action to reduce to judgment federal income tax assessments made against married couple individually. United States moved for summary judgment.

*Holding: The District Court, Arcara, J., adopted the opinion of Leslie G. Foschio, United States Magistrate Judge, which held that:
(1) Native American would not be exempt from income tax, and
(2) IRS's assessment of tax liability was proper. Motion granted.

October

Pounders V. Kempker
2003 WL 22462034
Docket No. 03-2054
United States Court of Appeals, Eighth Cir., October 31, 2003.

Subjects: Freedom of religion; Indians of North America -- Rites and ceremonies; Sweat lodges; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000; Missouri. Dept. of Corrections; Northeast Correctional Center (Mo.).

*Synopsis: State inmate filed action under § 1983 and Religious Land Use and Institutionalized Persons Act (RLUIPA) alleging that prison officials had substantially burdened his Native American religious practice by not permitting him to use sweat or purification lodge.

*Holding: The United States District Court for the Eastern District of Missouri dismissed complaint, and inmate appealed. The Court of Appeals held that fact issues remained as to whether prison officials' basis for denying inmate's requests for sweat lodge served compelling interest and was least restrictive means of advancing that interest. Reversed and remanded.

Related News Stories: Appeals court reinstates inmate's suit for sweat lodge (Missourian) 11/4/03

Navajo Nation V. United States
2003 WL 22417227
Docket No. 00-5086
United States Court of Appeals, Federal Cir., October 24, 2003.

Subjects: Navajo Nation, Arizona, New Mexico & Utah -- Claims against the United States; United States. Dept. of the Interior; Coal leases. United States. Indian Mineral Leasing Act of 1938; Trusts and trustees; Breach of trust -- United States.

*Synopsis: Navajo Nation brought suit alleging that Secretary of Interior breached fiduciary duties owed to Nation by approving coal lease amendments negotiated by Nation and lessee. The United States Court of Federal Claims, Lawrence M. Baskir, J., 46 Fed.Cl. 217, dismissed complaint. Nation appealed. The United States Court of Appeals for the Federal Circuit, 263 F.3d 1325, reversed. Certiorari was granted. The Supreme Court, 123 S.Ct. 1079, reversed and remanded.

*Holding: On remand, the Court of Appeals, Schall, Circuit Judge, held that question whether Nation preserved, in the Court of Federal Claims, issue whether a network of statutes and regulations, outside of the Indian Mineral Leasing Act of 1938 (IMLA), imposed judicially enforceable duties upon the United States in connection with the lease at issue should be determined in the first instance by the Court of Federal Claims. Remanded.

Related News Stories: Peabody Continues Top-level Access at Interior (Indianz.com) 03/17

Warbelow's Air Ventures, Inc. v.Commissioner of Internal Revenue
2003 WL 22417080 (9th Cir.) Docket No. 02-73328 Tax Ct. No. 10351-00
United States Court of Appeals, Ninth Cir., Decided Oct. 22, 2003.

Subjects: Indian employment credit -- United States; Employment tax credit -- United States; Indian reservations -- Defined.

*Synopsis: Taxpayer petitioned for redetermination of deficiencies arising from denial of Indian employment credit (IEC).

*Holding: The Court of Appeals held that in statute permitting tax credit for wages paid to Indian tribal members, phrase "within an Indian reservation" referred to land on the village or regional corporation lands.

Garza V. Traditional Kickapoo Tribe of Texas
2003 WL 22391241
Docket No. 03-50209
United States Court of Appeals, Fifth Cir., October 21, 2003.

Subjects: Sovereign immunity -- Kickapoo Traditional Tribe of Texas; Kickapoo Lucky Eagle Casino (Tex.); Police brutality; United States. Constitution. 4th Amendment; False arrest; False imprisonment; Texas; Casinos.

*Synopsis: In § 1983 action, plaintiff appealed grant, by the United States District Court for the Western District of Texas, of summary judgment for Indian casino.

*Holding: The Court of Appeals held that: (1) Indian tribe was entitled to sovereign immunity; (2) plaintiff did not suffer any deprivation of a property or liberty interest; (3) defendants were not liable in claim for excessive force under Fourth Amendment; (4) defendants were not liable in claim for illegal arrest under Fourth Amendment, and for false imprisonment under Texas law; and (5) defendant who removed plaintiff from casino used reasonable force in doing so, and thus was not liable for assault under Texas law. Affirmed.

Mid States Coalition For Progress v. Surface Transportation Board
345 F.3d. 520
Docket Nos. 02-1359, 02-1481, 02-1482, 02-1767, 02-1785,
02-1792, 02-1794, 02-1804, 02-1863
United States Court of Appeals, Eighth Circuit., Oct. 2, 2003.

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: Petitioners challenged the decision of the Surface Transportation Board giving final approval to railroad's proposal to construct approximately 280 miles of new rail line and to upgrade nearly 600 miles of existing rail line.

*Holding: The Court of Appeals, Arnold, Circuit Judge, held that: (1) Board did not violate National Environmental Policy Act (NEPA) by refusing to limit the use of train horns; (2) Board's rejection of a proposed bypass around city was not arbitrary and capricious; (3) Board could not approve project without first examining the effects that may occur as a result of the reasonably foreseeable increase in coal consumption; and (4) Board could not approve project without either securing a programmatic agreement or completing the alternate National Historic Preservation Act (NHPA) process. Remanded. Heaney, Circuit Judge, filed concurring opinion.

Greene v. State of Rhode Island
289 F.Supp.2d 5, C.A. no 03-69S
United States District Court, D. Rhode Island, Oct. 31, 2003

Subjects: Seaconke Wampanoag Tribe, Wampanoag Nation -- Land tenure; Rhode Island Indian Claims Settlement Act.

*Synopsis: Indian tribe sought declaration that it owned land tract.

*Holding: On state's motion to dismiss, the District Court, Smith, J., held that Rhode Island Indian Claims Settlement Act barred tribe's claim.

Morris v. Tanner
288 F.Supp.2d 1133, Docket No. 99-82-M-DWM
United States District Court, District of Montana, October 28, 2003
Briefs

Subjects: Indians of North America -- Enrolled members of a tribe; Jurisdiction -- Criminal actions arising in Indian Country (U.S.); United States. Indian Civil Rights Act; Indian children -- Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake); Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band; Jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; United States. Constitution. 5th Amendment; Equality before the law -- United States; Due process of law -- United States; Separation of powers.

*Synopsis: Indian who was not member of confederated tribes brought action for declaratory judgment and injunctive relief against confederated tribes, challenging tribes' exercise of criminal jurisdiction over him despite his membership in different tribe. The United States District Court for the District of Montana, Donald W. Malloy, J., dismissed the complaint, and Indian appealed. The Court of Appeals, 16 Fed.Appx. 652, 2001 WL 832722, reversed and remanded for a determination of the Indian's constitutional challenges to amendments to the Indian Civil Rights Act (ICRA). Federal government entered action as intervenor following remand.

*Holding: On remand, upon consideration of federal government's motion for dismissal and parties' cross- motions for summary judgment, the District Court, Molloy, Chief Judge, held that:
(1) amendments to ICRA did not violate Indian's Fifth Amendment equal protection rights under rational basis standard that applied to classification of Indians as political rather than racial group;
(2) even if amendments were subject to strict scrutiny based on Indians' classification as a racial group under the Equal Protection Clause, amendments were narrowly tailored to serve compelling interests of tribal self-governance and to public health, safety, and welfare of Indian reservations;
(3) ICRA amendments, which provided sufficient floor of rights, did not violate Indian's Fifth Amendment due process rights;
(4) amendments did not violate separation of powers; and
(7) amendments, which reaffirmed tribal courts' inherent power to exercise criminal jurisdiction over all Indians, authorized confederated tribes' prosecution of non-member Indian for speeding on reservation.

State of North Dakota v. Centers for Medicare and Medicaid Services
286 F.Supp.2d 1080, No. A1-03-28
United States District Court, D. North Dakota, Southwestern Division, Oct 1, 2003

Subjects: North Dakota; Centers for Medicare & Medicaid Services (U.S.); United States. Dept. of Health and Human Services; Medicare; Medicaid; Medical care; Federal aid.

*Synopsis: (from the opinion) State sued Department of Health and Human Services (HHS), challenging agency interpretation of statute governing federal payments for health care of Native Americans. State moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that 100% reimbursement rate applied when care was provided by non Indian Health Service (IHS) facility which had services contract with Center for Medicare and Medicaid Services (CMS), when referred by IHS.
Judgment for state.

Payer v. Turtle Mountain Tribal Council
2003 WL 22339181, Docket No. A4-03-105
United States District Court, District of N.D., October 1, 2003

Subjects: Turtle Mountain Band of Chippewa Indians of North Dakota -- Members; Turtle Mountain Band of Chippewa Indians of North Dakota; Ojibwa Indian School Board (N.D.) -- Members; Public contracts; United States. Dept. of the Interior; Equality before the law -- United States; Due process of law -- United States; United States. Indian Civil Rights Act; Fair trial -- United States.

*Synopsis: (from the opinion)The Petitioners are members of the Turtle Mountain Band of Chippewa who were elected to the OIS Board of Directors, where they served as both school board members and as grant administrators. While sitting on the board, the Petitioners contracted with the United States Department of the Interior for the receipt of approximately $29,000,000 in federal funds for the OIS with the understanding that this money was to be disbursed through OIS corporate bank accounts. On March 31, 2003, without giving notice to the Petitioners, tribal councilmen for the Turtle Mountain Band of Chippewa, Respondents Richard Monette, Leon Morin, Stuart Medrud, Les LaFountain, and Terry Baker (the "Respondents"), passed a resolution stating that the Petitioners had committed unspecified criminal activity in their capacity as OIS school board members. The Respondents then proceeded to remove the Petitioners from the school board and appoint themselves as replacements.

*Holding: The Petitioners' Application for Application for Writ of Habeas Corpus is DENIED.

September

City of Saint Paul v. Evans
2003 WL 22208787
Docket Nos. 02-35958
United States Court of Appeals, Ninth Circuit, September 15, 2003.

Subjects: Saint Paul Island (Alaska); United States. Dept. of Commerce; United States. National Oceanic and Atmospheric Administration; Tanadgusix Corporation; Alaska native corporations; Land tenure -- Disputes -- Alaska.

*Synopsis: City brought suit to invalidate settlement of land rights dispute with Native American corporation, and the Native American corporation responded by counterclaiming for enforcement of settlement agreement. The United States District Court for the District of Alaska, H. Russel Holland, Chief Judge, entered order dismissing city's claims on limitations grounds, but allowed it to assert identical claims in alleged defense to Native American corporation's counterclaim and rejected those defenses on merits. Appeal was taken.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that city which had brought time - barred claims to invalidate settlement of land rights dispute with Native American corporation was barred on timeliness grounds not only from pursuing its claims to invalidate settlement but, when Native American corporation responded to its suit by counterclaiming for enforcement of settlement agreement, from raising identic

Confederated Salish and Kootenai Tribes v. Secretary of the Department of Interior
343 F.3d 1193
Docket Nos. 02-35491
United States Court of Appeals, Ninth Cir., September 15, 2003.

Subjects: Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Trust lands; United States. Dept. of the Interior; United States. Flathead Act.

*Synopsis: The Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation (the "Tribes") appeal from the order granting summary judgment in favor of Secretary of the Interior, Gale Norton (the "Secretary"). The Tribes sought a declaration that, upon the Tribes' request, the Secretary is required to take certain land in trust for the Tribes or the tribal member to whom the land is sold pursuant to the Act of July 18, 1968, Pub.L. 90-402, 82 Stat. 356 (the "Flathead Act"). We affirm because we conclude that the Flathead Act authorizes the Secretary of the Interior to exercise his or her discretion in acting upon tribal requests for land acquisitions within the reservation boundaries.

*Holding: We affirm because we conclude that the Flathead Act authorizes the Secretary of the Interior to exercise his or her discretion in acting upon tribal requests for land acquisitions within the reservation boundaries.

Oti Kaga, Inc. v. South Dakota Housing Development Authority
2003 WL 22118954
Docket Nos. 02-1673
United States Court of Appeals, Eighth Cir., September 15, 2003.

Subjects: South Dakota Housing Development Authority; Oti Kaga (S.D.); Indian business enterprises; Race discrimination; Housing development -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Tax credits.

*Synopsis: Non-profit housing corporation established and operated by Native Americans brought action against state housing authority and members of its board, alleging racial discrimination, in connection with rejection of its applications for tax credits and state funding. The United States District Court for the District of South Dakota, 188 F.Supp.2d 1148, Charles B. Kornmann, J., granted summary judgment in favor of defendants. Non-profit corporation appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that: (1) corporation had Article III standing to assert discrimination action in connection with denial of application for tax credits; (2) corporation had prudential standing to assert racial discrimination claim, under the Fair Housing Act (FHA); (3) corporation failed to establish prima facie claim of disparate treatment based upon race, in connection with denial of funding; and (4) corporation's disparate impact claim was barred, under FHA. Affirmed.

Davis v. United States
343 F.3d 1282
Docket Nos. 02-6198.
United States Court of Appeals, Ninth Cir., September 10, 2003.

Subjects: Seminole Nation of Oklahoma; United States; Certificate of degree of Indian blood; Tribes -- Membership; Heredity; Africa; United States. Bureau of Indian Affairs.

*Synopsis: Two bands of Seminole Nation, consisting of Estelusti Seminoles descended from escaped African slaves who had resided among Seminoles, brought action against United States and various federal agencies and officials, challenging the Estelusti bands' exclusion from benefits and programs established with funds obtained from land claims judgment, and challenging government's refusal to issue Certificates of Degree of Indian Blood (CDIB) cards to Estelusti Seminoles. The District Court granted defendants' motion to dismiss for failure to join the tribe as an indispensable party, and the Court of Appeals, 192 F.3d 951, affirmed in part, reversed in part, and remanded. On remand, the United States District Court for the Western District of Oklahoma, 199 F.Supp.2d 1164, granted defendants' motion to dismiss for failure to exhaust administrative remedies. Estelusti bands appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that: (1) the district court did not abuse its discretion in dismissing suit on ground that Indian tribe was an indispensable party, and (2) Estelusti bands failed to exhaust administrative remedies as to the CDIB claim, and thus, district court lacked subject matter jurisdiction to hear that claim. Affirmed.

APORPMA v. Members of the Suquamish Tribal Council
2003 WL 22098043
Docket No. 02-35522
United States Court of Appeals, Ninth Cir., September 9, 2003.

Subjects: Suquamish Indian Tribe of the Port Madison Reservation, Washington; Association of Property Owners and Residents in Port Madison Area (APORPMA) (Wash.); Illegality; Jurisdiction -- Suquamish Indian Tribe of the Port Madison Reservation; Illegal juristic acts.

*Synopsis: Property owners association brought action against Indian tribe. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., dismissed action for lack of subject matter jurisdiction, and association appealed.

*Holding: The Court of Appeals held that events did not establish imminent threat of injury creating case or controversy necessary for Article III standing.
Affirmed.

United States v. Bird
342 F.3d 1045
Docket Nos. 02-30246, 02-30282.
United States Court of Appeals, Ninth Cir., September 8, 2003.

Subjects: Trials (Burglary) -- Indian Country (U.S.); Race; Victims; Jurisdiction -- Criminal actions arising in Indian Country (U.S.); Jurisdiction -- United States.

*Synopsis: Native American defendants, indicted for burglaries occurring in Indian country, moved to dismiss the indictments. The United States District Court for the District of Montana; Sam E. Haddon, J., denied the motions, and defendants appealed.

*Holding: In consolidation of appeals the Court of Appeals, Alarcon, Circuit Judge, held that (1) Court of Appeals had jurisdiction to consider the merits of defendants' interlocutory appeal, and (2) indictments were not required to specify the race of the burglary victims. Affirmed.

United States County of Churchill v. Alpine Land & Reservoir Company
341 F.3d 1172
Docket Nos. 01-16694, 01-16789.
United States Court of Appeals, Ninth Cir., September 4, 2003.

Subjects: Fallon (Nev.); Churchill County (Nev.); Nevada. State Engineer; U.S. Fish and Wildlife Service; Water rights -- Nevada; Water transfer -- Nevada; Public interest; Citizen suits (Civil procedure); Stillwater National Wildlife Refuge (Nev.); Wetlands -- Nevada.

*Synopsis: City and county brought action alleging that state engineer's approval of applications of United States Fish and Wildlife Service (FWS) to transfer place of use of certain water rights to supply needed water to wetlands in national wildlife refuge conflicted with existing water rights and threatened public interest. The United States District Court for the District of Nevada, Lloyd D. George, J., entered judgment in favor of state engineer, and city and county appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) substantial evidence supported state engineer's finding that transfers would not conflict with existing water rights or be detrimental to public interest; (2) state engineer was not required to conduct cumulative study; and (3) state engineer's decision not to stay consideration of applications pending resolution of county's suit against FWS was not abuse of discretion.
Affirmed.

Carroll v. Nakatani
2003 WL 22038774
Docket Nos. 02-15483, 02-15565
United States Court of Appeals, Ninth Cir., September 2, 2003

Subjects: Hawaiians; Hawaii. Constitution (1950); Equality before the law -- Hawai'i; Native Hawaiians; Standing to sue; Rice v. Cayetano; Hawaiians -- Defined; Resource allocation.

*Synopsis: Non-native Hawai'ians brought separate actions challenging provision of Hawai'i Constitution that created agencies providing special benefits to natives as a violation of the equal protection clause.

*Holding: The United States District Court for the District of Hawai'i, 188 F.Supp.2d 1219 and 188 F.Supp.2d 1233, granted summary judgments for the state and state defendants, and plaintiffs appealed. The Court of Appeals, Hug, Circuit Judge, held that plaintiffs lacked standing to bring suit. Affirmed.

Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Administration
342 F.3d 924, Docket Nos. 01-71736, 01-71740
United States Court of Appeals, Ninth Cir., September 2, 2003

Subjects: Confederated Tribes of the Umatilla Reservation, Oregon; Nez Perce Tribe of Idaho; United States. Bonneville Power Administration; Equity; Abuse of administrative power; Fishes; Animals.

*Synopsis:Indian tribes and others petitioned for review of decisions of Bonneville Power Administration (BPA), a marketing authority for federally generated electric power, alleging that BPA both exceeded its legal authority and violated its statutory duty to treat fish and wildlife equitably with power.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that: (1) BPA's alleged unreasonable delay in implementing mandate to provide equitable treatment for fish and wildlife was not reviewable under the Northwest Power Act; (2) alleged unreasonable delay was not reviewable under All Writs Act; (3) BPA followed adequate procedures before issuing decision announcing its intent to implement biological opinions issued by federal agencies; and (4) decision was not arbitrary and capricious.
Petitions denied.

Related news stories: Court Rejects Tribal, Environmental Lawsuit Claiming Bonneville Mismanaged Fish (Oregonian) 9/02

Samish Indian Nation v. United States
58 Fed.Cl. 114, Docket No. 02-1383 L
United States Court of Federal Claims, September 30, 2003

Subjects: Samish Indian Tribe, Washington; Federal recognition of Indian tribes -- Samish Indian Tribe, Washington; Treaty of Point Elliott (1855); Treaty rights -- Samish Indian Tribe, Washington; Jurisdiction; United States. Indian Self-Determination and Education Assistance Act; Limitation of actions.

*Synopsis: Indian tribe brought suit against the United States, alleging that it should have been treated as a federally recognized tribe during the period from 1969 to 1996, that the government violated treaty promises, and that it violated various laws after the tribe was federally recognized in 1996.

*Holding: On defendant's motion to dismiss, the Court of Federal Claims, Damich, Chief Judge, held that:
(1) tribe's claim that the government violated the Indian Self- Determination Act (ISDA) by failing to recognize it as a federally recognized tribe until 1996 was barred by statute of limitations;
(2) tribe had no rights under the 1855 Treaty of Point Elliot; and
(3) jurisdiction was lacking over tribe's claim that the government violated its rights by denying it federal benefits and services under 38 different statutes since it became a federally recognized tribe in 1936.
Motion granted.

Navajo Nation v. Arizona Redistricting Commission
Briefs and Pleadings
286 F.Supp.2d 1087, Docket No. CV 02-0799-PHX-ROS, CV 02-0807-PHX-ROS
United States District Court, District of Arizona, Sept. 30, 2003

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; Navajo Nation Arizona New Mexico Utah; Arizona Redistricting Commission; United States. Voting Rights Act of 1965; Election districts -- Arizona; Apportionment (Election law).

*Synopsis: Following orders, in Arizona redistricting case, which found 1994 legislative districts unconstitutional, and mandated use of independent redistricting commission's plan for 2002 elections, 230 F.Supp.2d 998, intervenors moved for attorney's fees and costs.

*Holding: The District Court, Silver, J., held that:
(1) one intervening voting rights group was not a prevailing party, but a second group was, and was thus entitled to a partial award of fees;
(2) any argument that prevailing was not entitled to fees inasmuch as its goal of competitive districts conflicted with its goal of increasing Hispanic voting rights, would be addressed, where relevant, in determining the reasonableness of fees; and
(3) award of $11,673.79 as compensation of Special Master was warranted.
Ordered accordingly.

Prescott, F. v. Little Six, Inc.
284 F.Supp.2d 1224, Docket No. CIV. 0204741DSDSRN
United States District Court, D. Minnesota, Sept. 30, 2003

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; United States. Employee Retirement Income Security Act of 1974; Retirement planning; Sovereign immunity; Jurisdiction -- United States. District Court (Minnesota); District courts; Jurisdiction -- Deference to tribal courts; Jurisdiction -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Synopsis: Former tribal casino employees brought action against casino pursuant to Employee Retirement Income Security Act (ERISA).

*Holding:On casino's motion to dismiss, the District Court, Doty, J., adopted in part the opinion and recommendation of Nelson, United States Magistrate Judge, and held that:
(1) ERISA applied to casino employer;
(2) tribal trial court's findings that tribal casino created plans governed by ERISA were not clearly erroneous, and were thus entitled to deference;
(3) casino did not have sovereign immunity from suit with respect to claims brought by former employee, where employee was a Community member; and
(4) language included in summary plan descriptions constituted a waiver of tribal sovereign immunity with respect to those plans.
Ordered accordingly.

Pro-Football, Inc. v. Suzan Shown Harjo, et al.
284 F.Supp.2d 96, Docket No. 99-1385
United States District Court, D. D.C., September 30, 2003

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.

*Synopsis: Action was brought to cancel professional football team's trademark registrations, on ground they disparaged Native Americans. The Trademark Trial and Appeal Board, 1999 WL 375907, cancelled registrations, and team sought judicial review.

*Holding: On cross-motions for summary judgment, the District Court, Kollar-Kotelly, J., held that:
(1) Board's finding of disparagement was not supported by substantial evidence, and
(2) suit was barred by laches.
Reversed.

Related news stories: NCAI Calls Decision a Defeat of Racial Healing (Native Times) 10/3

Weddell v. Weber
290 F.Supp.2d 1011 ,No. CIV. 00-4087.
United States District Court, D. South Dakota, S.D., Sept. 29, 2003

Subjects: Manslaughter; Indian jurors; Lawyers -- Malpractice; Expert testimony.

*Synopsis: Following affirmance of his first-degree manslaughter conviction, 410 N.W. 2d 553, petitioner sought federal habeas relief.

*Holding: The District, Piersol, Chief Judge, held that:
(1) petitioner's trial counsel rendered ineffective assistance by failing to retain an expert pathologist to rebut state's expert's testimony about causation of victim's death, and
(2) Batson violation was established since State failed to come forward with a race-nuetral reason for striking Native American juror from the jury.

Carcieri v. Norton
290 F.Supp.2d 167, C.A. no 00-375ML
United States District Court, D. Rhode Island, Sept. 29, 2003
Briefs

Subjects: Rhode Island; Charlestown (R.I. : Town); Narragansett Indian Tribe of Rhode Island; Trust lands; Federal recognition of Indian tribes -- Narragansett Indian Tribe of Rhode Island; Rhode Island Indian Claims Settlement Act; United States. Constitution; United States. Constitution. 10th Amendment.

*Synopsis: State and its Governor, and town brought action challenging a final determination of the Secretary of the Department of the Interior to accept a 31-acre parcel of land into trust for the benefit of Indian tribe.

*Holding: Upon cross- motions for summary judgment, the District Court, Lisi, J., held that:
(1) tribe, which received federal recognition after effective date of Indian Reorganization Act (IRA), qualified as an "Indian tribe" within the meaning of IRA;
(2) Rhode Island Indian Claims Settlement Act did not impair tribe's ability, as a federally recognized tribe, to seek trust acquisition of lands that it acquired by purchase with non-settlement funds; and
(3) acceptance of parcel into trust for the benefit of the Indian tribe did not amount to a violation of the Enclave Clause, Admissions Clause, or Tenth Amendment. Defendants' motion granted.

Doe. v. Mann
285 F.Supp.2d 1229, Docket No. C 02-3448 MHP
United States District Court, ND California, Sept. 29, 2003
Briefs

Subjects: Judges -- California; Lake County (Calif.); Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Children -- Legal status, laws, etc. -- California; Child welfare; United States. Indian Child Welfare Act of 1978 (25 USC 1901); Due process of law; Jurisdiction.

*Synopsis: Native American mother, whose parental rights had been terminated, sued state court judges, county social services department, and adoptive parents, alleging violations of Indian Child Welfare Act (ICWA), due process, and state child custody law.

*Holding: On defendants' motions to dismiss, the District Court, Patel, Chief Judge, held that:
(1) Rooker-Feldman doctrine did not bar federal district court's review of state court's termination decision;
(2) stat court had jurisdiction to terminate parental rights;
(3) fact issues existed as to whether state court had given full faith and credit to tribal resolution and whether mother had received effective assistance of counsel;
(4) mother § 1983 claim was not time-barred; and
(5) state court judge could not be held liable for attorney fees.
Motions granted in part and denied in part.

Shoshone Indian Tribe v. United States
(Not yet available on Westlaw), Docket Nos. 458-79, 459-79 L
United States Court of Federal Claims, September 26, 2003

Subjects: United States. Minerals Management Service; Shoshone Tribe of the Wind River Reservation Wyoming; Trusts and trustees -- Accounting; Revenue -- Accounting; Breach of trust -- United States; Oil and gas leases -- Shoshone Tribe of the Wind River Reservation Wyoming.

*Synopsis Indian tribes brought action against the United States for breach of fiduciary duty in the management and payment of royalties on oil and gas production on Indian lands.

*Holding: On defendant's motion for summary judgment on plaintiffs' take- or-pay claims, and its motion for summary judgment on as to various claimed breaches in royalty payment processing, the Court of Federal Claims, Hewitt, J., held that:
(1) cooperative agreement between the government and tribe entered into under section of the Federal Oil and Gas Royalty Management Act (FOGRMA) did not operate to reduce the government's fiduciary duty imposed by the Act to audit the collection of royalties;
(2) summary judgment was precluded on claim that the government breached its fiduciary duty by not collecting royalties on portion of settlement amount attributed to take-or-pay payments; and
(3) summary judgment was precluded on claims that the government breached its fiduciary duty by not performing a "major portion" analysis to determine value of production for royalty purposes, by not reviewing transportation allowance deducted from royalty amounts, and by not collecting interest on late payment of royalties.
First motion denied; second motion granted in part and denied in part.

Related news stories: Judge advances suit over royalty mismanagement (Indianz.com) 10/3/03

Cobell v. Norton
Opinion - historical accounting
Opinion - fixing the system
Order - structural injunction
283 F.Supp.2d 66, Docket No. CIV.A.96-1285(RCL)
United States District Court, D. D.C., September 25, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Injunctions; Trusts and trustees -- Administration.

*Synopsis: Beneficiaries of Individual Indian Money (IIM) trust accounts brought class action suit against Secretary of the Interior and other federal officials, alleging breach of fiduciary duty in management of accounts. Following affirmance of holding that officials breached their fiduciary duties, 240 F.3d 1081, the United District Court, 226 F.Supp.2d 1, found Secretary in contempt. The Court of Appeals, 334 F.3d 1128, vacated and remanded.

*Holding: On remand, the District Court, Lamberth, J., held that:
(1) court had remedial authority to enter structural injunction;
(2) Interior Department was obligated to account for all fund assets deposited or invested since commencement of allotment process in 1887;
(3) structural injunction in order to obtain such accounting was warranted; and, in separate opinion, that
(4) traditional common-law trustee duties governed Department's administration of IIM trust;
(5) Department had to administer IIM trust in compliance with applicable tribal law and ordinance; and
(6) Department's plan to correct deficiencies in its administration of IIM trust had, at minimum, to ensure that its title, leasing, and accounting systems were integrated and functional.
Ordered accordingly.

Related News Stories: Lamberth Lays out Future of Indian Trust Reform (Indianz.com) 9/26
Accounting Ordered at Indian Trust Fund (NYT) (requires password) 9/26,
Lamberth Issues Rulings in Cobell Trust Fund Case (Indianz.com) 9/25

Colorado Construction Corp. v. United States
57 Fed.Cl. 648, Docket No. 02-1294C
United States Court of Federal Claims, September 16, 2003

Subjects: Indian business enterprises -- Defined; Colorado Construction Corp.; Public contracts -- United States; United States. Bureau of Indian Affairs; Bridges -- Design and construction -- On Indian reservations; Te-Moak Tribes of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band).

*Synopsis: Bidder on bridge replacement project on Indian reservation filed bid protest against the United States challenging determination of the Bureau of Indian Affairs (BIA) that it was not an eligible Indian Economic Enterprise.

*Holding: On cross-motions for judgment on the administrative record, the Court of Federal Claims, Miller, J., held that the BIA reasonably determined that bidder was not an eligible Indian Economic Entity for lack of Indian control or involvement in business management.

Beller v. United States
221 F.R.D. 679, No. civ.02-1368
United States District Court, D. New Mexico, September 9, 2003

Subjects: Wrongful death; United States -- Officials and employees; Drunk driving; Drinking and traffic accidents; Privileged communications (Libel and slander); Common law marriage; Unmarried couples; Law -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Personal representatives brought wrongful death suit against the United States, alleging that their decedents were killed in a collision in a government truck driven by government employee who was drunk at the time of the collision. Liability was asserted under theories of respondeat superior, negligent entrustment, and negligent hiring, training and supervision. Nonparty witness moved for protective order.

*Holding: The District Court, Garcia, Chief United States Magistrate Judge, held that:
(1) nonparty witness who invoked martial privilege in response to deposition questions regarding conversations she had with her alleged husband established that a valid common law marriage existed between them under Navajo law at time of the conversations, and thus privilege was applicable, and
(2) witness did not waive marital privilege.
Motion granted.

August

Winnebago Tribe of Nebraska v. Stovall
341 F.3d 1202, Docket Nos. 02-3301
United States Court of Appeals, Tenth Cir., August 28, 2003

Subjects: HCI Distribution; Winnebago Tribe of Nebraska; Sac and Fox Tribe of Missouri in Kansas and Nebraska; Iowa Tribe of Kansas and Nebraska; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kansas; Motor fuels -- Taxation; Distributors (Commerce); Indian business enterprises; United States. Constitution. 11th Amendment.

*Synopsis: (from the opinion) The State of Kansas attempted to assess fuel taxes on a corporation wholly owned by an Indian tribe. The district court in two published orders granted plaintiffs' motions for a temporary restraining order, Winnebago Tribe of Neb. v. Stovall, 205 F.Supp.2d 1217 (D.Kan.2002), and then for a preliminary injunction, Winnebago Tribe of Neb. v. Stovall, 216 F.Supp.2d 1226 (D.Kan.2002). The district court denied the defendants' application for a stay pending appeal of the preliminary injunction. Defendants appeal on three grounds: alleged error in the disrict court's failure to abstain from hearing the case under the Younger doctrine; abuse of discretion in granting injunctive relief; and error in granting the preliminary injunction over defendants' claims of Eleventh Amendment immunity.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that: (1) action did not implicate important state interest, and Younger abstention thus was not appropriate; (2) District Court did not abuse its discretion in granting TRO and preliminary injunction; and (3) Eleventh Amendment did not bar action. Affirmed.

In re: Sac & Fox Tribe of the Mississippi in Iowa / Meskwaki Casino Litigation
340 F.3d 749, Docket Nos. 03-2329, 03-2355, 03-2357, 03-2390, 03-2392, 03-2393
United States Court of Appeals, Eighth Cir., August 27, 2003

Subjects: Casinos -- Sac & Fox Tribe of the Mississippi in Iowa; Meskwaki Casino Bingo Hotel; Indian gaming -- Class III; Sovereignty; National Indian Gaming Commission (U.S.); Exhaustion of administrative remedies; Tribal councils.

*Synopsis: In separate actions, Indian tribe's elected tribal council sought declaratory and injunctive relief following appointment of rival council which had taken control of tribal facilities, and appointed council challenged National Indian Gaming Commission (NIGC) order closing casino. The United States District Court for the Northern District of Iowa, 258 F.Supp.2d 938 and 264 F.Supp.2d 830, denied relief to either council.

*Holding: Consolidating appeals, the Court of Appeals, Melloy, Circuit Judge, held that: (1) council was required to exhaust administrative remedies before seeking judicial relief from temporary closing order; (2) grant of preliminary injunction enforcing closing order was not abuse of discretion; (3) elected council's gaming violation claims against appointed council were not moot; and (4) court lacked jurisdiction to resolve internal tribal leadership dispute.

Kaw Nation v. Springer
341 F.3d 1186, Docket No. 02-6169
United States Court of Appeals, Tenth Cir., August 25, 2003

Subjects: Kaw Indian Tribe of Oklahoma -- Officials and employees; Kaw Indian Tribe of Oklahoma -- Finance; Housing management -- Accounting; Housing management -- Corrupt practices.

*Synopsis: Indian tribe sought damages from former tribal officials and other individuals who had allegedly misused federal housing assistance funds. The United States District Court for the Western District of Oklahoma dismissed for lack of subject matter jurisdiction, and tribe appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that no private civil cause of action existed for violation of criminal statute proscribing such misuse.

United States and Pyramid Lake Paiute Tribe of Indians V. Alpine Land and Resevoir Company
340 F.3d 903
Docket Nos. 02-35491
United States Court of Appeals, Ninth Cir., August 15, 2003.

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: United States and Pyramid Lake Paiute Tribe of Indians sought judicial review of decision of Nevada State Engineer that largely granted applications of landowners in Newlands Reclamation Project to transfer water rights between different parcels of property.

*Holding: The United States District Court for the District of Nevada, Howard D. McKibben, J., affirmed State Engineer's decision. United States and Tribe appealed. The Court of Appeals, Paez, Circuit Judge, held that: (1) owners were not entitled to blanket exemption from operation of Nevada's forfeiture and abandonment laws; (2) evidence supported finding that some owners had neither abandoned nor forfeited their water rights; and (3) water rights attached to parcels through which irrigation ditches passed only to extent water was applied to parcel to produce crops. Affirmed in part, reversed in part, and remanded. See also 291 F.3d 1062.

United States v. Pyramid Lake Paiute Tribe of Indians
2003 WL 21976617, Docket No. 02-4062
United States Court of Appeals, Ninth Cir., August 8, 2003

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: United States and Pyramid Lake Paiute Tribe of Indians sought judicial review of decision of Nevada State Engineer that largely granted applications of landowners in Newlands Reclamation Project to transfer water rights between different parcels of property. The United States District Court for the District of Nevada, Howard D. McKibben, J., affirmed State Engineer's decision. United States and Tribe appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) owners were not entitled to blanket exemption from operation of Nevada's forfeiture and abandonment laws; (2) evidence supported finding that some owners had neither abandoned nor forfeited their water rights; and (3) water rights attached to parcels through which irrigation ditches passed only to extent water was applied to parcel to produce crops. Affirmed in part, reversed in part, and remanded. See also 291 F.3d 1062.

Holz v. Nenana City Public School District
347 F.3d 1176, Docket No. 03-35179
United States Court of Appeals, Ninth Cir., August 18, 2003

Subjects: United States. Constitution. 11th Amendment; Indians of North America -- Alaska; Nenana City Public School District (Alaska); Public schools; Discrimination in employment -- Nenana (Alaska); Employee selection -- Nenana (Alaska).

*Synopsis: Native-American applicant for job of classroom aide sued school district for violation of federal and state civil rights laws. The United States District Court for the District of Alaska, James K. Singleton, Chief Judge, granted summary judgment for school district, and appeal was taken.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that school district was not state agency, and thus not entitled to Eleventh Amendment immunity.

Nato Indian Nations v. State of Utah
2003 WL 21872551, Docket No. 02-4062
United States Court of Appeals, Tenth Cir., August 8, 2003

Subjects: Nato Indian Nation -- Claims; Minerals; Mineral rights; Public lands -- Utah. Trust lands -- Utah. School and Institutional Trust Lands Administration; Land use -- Utah -- Management.

*Synopsis: Purported Indian nation sued state for alleged mismanagement of school trust lands related to purported nation's claimed mineral interest on state land, and also asserted potential, unrelated claims on behalf of two Indian tribes. The United States District Court for the District of Utah granted state's motion to dismiss and denied purported nation's motion to alter or amend judgment. Purported nation appealed.

*Holding: The Court of Appeals, Terrence L. O'Brien, Circuit Judge, held that: (1) non-lawyer could not represent purported nation in federal court; (2) district court could inquire into purported nation's status after determining that federal question jurisdiction did not exist; and (3) allegations did not trigger federal question jurisdiction. Affirmed.

United States v. Morin
2003 WL 21995317, Docket No. 02-4071
United States Court of Appeals, Eighth Cir., August 1, 2003

Subjects: Murder; Due process of law; Fair trial; Jury; Indians of North America -- United States; Medicine.

*Synopsis: Defendant was convicted in the United States District Court for the District of North Dakota, Patrick A. Conmy, J., for murder and sentenced to life in prison. Defendant appealed.

*Holding: The Court of Appeals, Beam, Circuit Judge, held that: (1) defendant's due process rights were not violated by district court's failure to order a discontinuation of his anti-psychotic medication on date that he moved to request such discontinuation; (2) defendant failed to establish that Native Americans were systematically excluded from jury pools in the District of North Dakota; and (3) defendant's own testimony did not render evidence insufficient to support murder conviction. Affirmed.

Cobell v. Norton
334 F.3d 1128, Docket No. 02-5374
United States Court of Appeals, District of Columbia Circuit, July 18, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Contempt of court -- United States.

*Synopsis: Beneficiaries of Individual Indian Money trust accounts, as class, sued Secretary of the Interior and other federal officials, in their official capacities, for breach of fiduciary duty in management of accounts. Following affirmance of holding that officials breached their fiduciary duties and remand, 240 F.3d 1081, and following bench trial, the United States District Court for the District of Columbia, Royce C. Lamberth, J., 226 F.Supp.2d 1, granted beneficiaries' motion to hold Secretary of Interior and Assistant Secretary of Interior for Indian Affairs in civil contempt. The District Court, 226 F.Supp.2d 163, denied officials' motion to revoke appointment of individual as Court Monitor. The District Court, 2002 WL 31059909, appointed same individual Special Master-Monitor. Secretary and Assistant Secretary appealed.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that: (1) Court of Appeals lacked jurisdiction over officials' claims of judicial overreaching; (2) writ of mandamus would be issued vacating orders appointing individual first as Court Monitor, and then as Special Master- Monitor; (3) Court of Appeals had jurisdiction over appeal from contempt order; (4) District Court clearly erred in reappointing Court Monitor; (5) District Court clearly erred in reappointing Court Monitor as Special Master- Monitor; (6) contempt proceeding was criminal in nature; (7) Secretary was not in criminal contempt of order requiring her to initiate historical accounting project; (8) Secretary did not commit fraud on court , so as to be in criminal contempt, with respect to quarterly status reports; and (9) Secretary did not commit fraud on court , so as to be in criminal contempt, with respect to her representations regarding computer security of trust data. Vacated and remanded.

Related Stories: Appeals Court to Hear Cobell Disqualification Dispute (Indianz.com) 03/01

The Mashpee Wampanoag Tribal Council, Inc v. Norton
336 F3d. 838, Docket No. 02-5139
United States Court of Appeals, District of Columbia Circuit, August, 1, 2003

Subjects: Mashpee Wampanoag Tribe of Massachusetts; United States. Dept. of the Interior; Federal recognition of Indian tribes -- Problems with Bureau of Indian Affairs acknowledgment process; Time frame; United States. Administrative Procedure Act.

*Synopsis: Tribal council brought action against Secretary of Department of Interior and others, alleging unreasonable delay by the Bureau of Indian Affairs (BIA) in issuing decision regarding its petition for federal recognition completed almost six years earlier. Tribal council moved for writ of mandamus under Administrative Procedure Act (APA). The District Court, Robertson, J., 180 F.S.2d 130, granted motion, and appeal was taken.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that district court should not have concluded that the Bureau of Indian Affairs (BIA) had delayed unreasonably, in violation of requirements of the Administrative Procedure Act, in processing putative tribe's petition for recognition, based upon number of years that petition had been before the BIA, without first considering the BIA's limited resources and effect of granting relief upon other equally-deserving petitioners for recognition. Reversed and remanded.

New York State v. Shinnecock Indian Nation
280 F.Supp.2d 1, Docket No. CV033243(TCP)(ARL)
United States District Court, E.D. New York, August 29, 2003

Subjects: Shinnecock Indian Nation, New York; New York; Indian gaming -- Shinnecock Indian Nation, New York; Casinos -- Design and construction -- New York; Environmental risk assessment; Gambling -- Law and legislation -- United States; Gambling -- Law and legislation -- New York; Federal recognition of Indian tribes -- Shinnecock Indian Nation, New York; Zoning law -- New York; Zoning law -- Southampton (N.Y. : Town); Indian property -- New York.

*Synopsis: State sued Indian tribe in state court, alleging that proposed casino violated federal and state gambling laws and state and local environmental regulations. Tribe removed case to federal court.

*Holding: On state's motion for preliminary injunction, the District Court, Platt, J., held that:
(1) environmental harm potentially caused by casino construction was irreparable, and
(2) questions as to whether tribe was federally recognized, whether land on which it wished to build was Indian land, and whether tribe was exempt from state and local environmental and zoning laws, were sufficiently serious to warrant preliminary injunction.
Motion granted.

Reservation Telephone Cooperative v. Henry
278 F.Supp.2d 1015, Docket No. A4-02-121, A4-02-126
United States District Court, D. North Dakota, August 26, 2003

Subjects: Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Reservation Telephone Cooperative (N.D.); West River Telecommunications Cooperative (N.D.); Telephone lines -- On Indian reservations -- Taxation; Right of way -- On Indian reservations -- Taxation.

*Synopsis: Telephone cooperatives challenged authority of Indian tribes to impose possessory interest tax on telephone lines and rights-of-way within reservation.

*Holding: On cross-motions for summary judgment, the District Court, Hovland, Chief Judge, held that tribes lacked authority to impose tax.

State v. Mineta
278 F.Supp.2d 1025, Docket No. CIV. 02-3034, 2003 D.S.D. 16
United States District Court, D. South Dakota, August 21, 2003

Subjects: South Dakota; United States. Dept. of Transportation;Roads -- On Indian reservations -- South Dakota; Roads -- Design and construction -- South Dakota; Government contractors -- South Dakota; Taxation; Tribes -- South Dakota.

*Synopsis: State brought action against Secretary of Transportation, seeking declaration that the Secretary, who assertedly had taken final action to require the state to require highway contractors to pay, and charge to the state, occupational taxes levied by Indian tribes in connection with construction projects on state highways which traverse Indian reservations, had no such authority, and that the Secretary could not withhold federal highway funds because of state action to not honor and reimburse highway contractors for such tribal occupational taxes.

*Holding: On the Secretary's motion to dismiss, the District Court, Kornmann, J., held that there was no final agency action and the state had suffered no injury, and thus, the action was not ripe for review.

Cobell v. Norton
2003 WL 21978286, Docket No. Civ.A.96-1285(RCL)
United States District Court, D.D.C., August 20, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Data protection; Preservation of materials; United States. Office of Special Trustee for American Indians -- New Mexico; United States. Bureau of Indian Affairs Realty Office (Ariz.); Indian allotments -- Navajo Nation, Arizona, New Mexico & Utah; Servitudes -- Navajo Nation, Arizona, New Mexico & Utah; Right of way -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: (from the opinion)On March 6, 2003, the Special Master, in the company of attorneys representing the Department of Justice and the Office of the Solicitor, visited the Office of Appraisal Services ("OAS") of the Navajo Regional Office ("NRO") of the Office of the Special Trustee for American Indians ("OST") located in Gallup, New Mexico and the Bureau of Indian Affairs ("BIA") Realty Office in Window Rock, Arizona. The purpose of the site visit was to determine whether individual Indian trust information concerning the appraisal of the value of rights-of-way ("ROWs") and easements running across Navajo allotments was being preserved, maintained, and safeguarded in accordance with Court orders.

*Holding: not yet available

Site Visit Report of the Special Master issued August 20, 2003 by Judge Royce C. Lamberth

Shenandoah v. Halbritter
275 F.Supp.2d 279, Docket No. 02-CIV-1430
United States District Court, N.D. New York, August 8, 2003

Subjects: Housing -- Law and legislation -- Oneida Nation of New York; Compliance; Indian Civil Rights Act (25 USC 70 et seq.); Indians of North America -– Non-members of a tribe; Oneida Nation of New York -- Members.

*Synopsis: Residents of Indian reservation brought action seeking habeas corpus relief under Indian Civil Rights Act (ICRA), alleging that tribe's housing ordinance was used to retaliate against the residents for their resistance against tribal leadership. Tribe moved to dismiss and residents cross-moved for preliminary injunctive relief.

*Holding: The District Court, Mordue, J., held that Court lacked subject matter jurisdiction.
Dismissed.

Hoevenaar v. Lazaroff
276 F.Supp.2d 811, Docket No. 03-CV-190
United States District Court, S.D. Ohio, August 7, 2003

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute.

*Synopsis: In Native American prison inmate's § 1983 action alleging violations of his right to practice his religion, inmate moved for preliminary injunction to prevent corrections officials from cutting his hair.

*Holding: The District Court, Marbley, J., held that:
(1) inmate would be allowed to file stipulations from another case;
(2) inmate would be allowed to amend his complaint; and
(3) preliminary injunction, to extent of allowing inmate to grow a kouplock, was warranted.

Artichoke Joe's California Grand Casino v. Norton
278 F.Supp.2d 1174, Docket No. CIV-S-01-1530 DFL/GG
United States District Court, E.D. California, August 6, 2003

Subjects: Trust lands -- Lytton Rancheria of California; Indian gaming -- Class II; Gambling on Indian reservations; Standing to sue; United States. Constitution. 10th Amendment.

*Synopsis: Card rooms and charities brought action to enjoin Secretary of Interior from taking land into trust for Indian rancheria.

*Holding: On government's motion to dismiss, the District Court, Levi, J., held that:
(1) plaintiffs lacked standing to assert Tenth Amendment or Enclaves Clause claims;
(2) challenge to government's tribal status decision was not time-barred;
(3) plaintiffs failed to show irreparable harm or likelihood of success on merits. Motion granted in part and denied in part; injunction denied.

Tainter v. Watters
2003 WL 23200348, No. 02-C-540-C
United States District Court, W.D. Wisconsin, Aug. 5, 2003

Subjects: Actions and defenses; Freedom of religion; United States. Constitution. 1st Amendment; Tribal members -- Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles Reservation of Wisconsin; Indian prisoners -- Wisconsin; Indians of North America -- Rites and ceremonies.

*Synopsis: (from the opinion) This is a civil action for injunctive, declaratory and monetary relief, brought pursuant to 42 U.S.C. § 1983. Plaintiff Bernard Tainter, a patient at the Sand Ridge Secure Treatment Center, contends that defendants violated his First Amendment right to freely exercise his religion, by denying him access to his religious property.

*Holding: not yet available

Prarie Band of Potawatami v. Wagnon
276 F.Supp.2d 1168, Docket No. 99-4136-JAR
United States District Court, D. Kansas, August 6, 2003

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Synopsis: Prairie Band of Potawatomi Indians sued Kansas officials, seeking order requiring State of Kansas to grant recognition to motor vehicle registrations and titles issued by Band. Following affirmance of preliminary injunction, 253 F.3d 1234, Band moved for summary judgment, and official moved for summary judgment, to dismiss, and to strike.

*Holding: The District Court, Robinson, J., held that:
(1) Band's motor vehicle registrar was competent to testify as to, inter alia, matters pertaining to facilities located on reservation;
(2) copies of tribal certificate of title form, sample tribal license plate, and reciprocity agreement were properly authenticated;
(3) officials had connection with enforcement of state laws at issue, as required for action to fall within Ex parte Young exception to Eleventh Amendment immunity;
(4) requiring officials to grant recognition to motor vehicle registrations and titles would not violate Tenth Amendment; and
(5) Kansas' motor vehicle registration and titling laws were preempted as they applied to vehicles properly registered and titled by Band.
Band's motion granted; officials' motions denied.

July

Nevada v. Te-Moak Tribe
339 F.3d 804
Docket Nos. 00-17146, 00-17172, 00-17173, 00-17175.
United States Court of Appeals, Ninth Cir., July 28, 2003.

Subjects: Te-Moak Tribes of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); Nevada; Water rights -- Nevada; Jurisdiction -- Nevada.

*Synopsis: After removal, by federal government, of State's action against Indian tribe to enforce state court water rights decree, the United States District Court for the District of Nevada, 114 F.Supp.2d 1046, Edward C. Reed, Jr., J., abstained and remanded. All parties appealed. The Court of Appeals, Kozinski, Circuit Judge, held that doctrine of prior exclusive jurisdiction applied, and thus district court lacked jurisdiction.

*Holding: The Court of Appeals, Kozinski, Circuit Judge, held that doctrine of prior exclusive jurisdiction applied, and thus district court lacked jurisdiction. Affirmed.

Oneida Indian Nation of New York v. City of Sherrill
337 F3d. 139, Docket No. 01-7795, 01-7797
United States Court of Appeals, Second Circuit, July 21, 2003

Subjects: Real property -- Oneida Nation of New York; Indian Country (U.S.); Tax exemption; Local taxation -- New York.

*Synopsis: Indian tribe brought actions against city and county, alleging that property owned by tribe was exempt from taxation. City brought actions for eviction against tribe and members of the tribal council. After cases were consolidated, the United States District Court for the Northern District of New York, David N. Hurd, J., 145 F.Supp.2d 226, 145 F.Supp.2d 268, determined that properties were not taxable, and city and county appealed.

*Holding: The Court of Appeals, Parker, Circuit Judge, held that: (1) property at issue was within Indian country; (2) treaty providing for potential removal of Indians from portion of state did not diminish or disestablish reservation land; (3) alleged lapse in tribal existence did not preclude tribe from asserting its rights pursuant to historic Indian title to land; (4) city was not entitled to additional discovery; (5) other bands originating from same tribe were not indispensable parties to action against county; and (6) judgment on the pleadings in action against county was improper.
Affirmed in part, vacated and remanded in part. Van Graafeiland, Senior Circuit Judge, filed dissenting opinion.

Related news stories: Word from Supreme Court Expected Monday (Oneida Dispatch) 02/21, Appeals Court Won't Stop Oneida Nation Evictions (Indianz.com) 04/05

United States v. Braren
2003 WL 21688618, Docket No. 02-35441, 02-35446
United States Court of Appeals, Ninth Circuit, July 21, 2003

Subjects: Water rights -- Klamath Basin (Or.); Administrative procedure -- Oregon; Water rights -- Standards; United States; Klamath Indian Tribe of Oregon; Oregon.

*Synopsis: Following State's announcement of a preliminary assessment, in its administrative adjudication of water rights, United States and Indian tribes brought action seeking declaration that tribes had a water right to support gathering of plants, as well as clarification of the nature and scope of tribal water rights announced in previous judicial decisions. The United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, provided clarification, and State and individual property owners appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that dispute was not ripe for federal judicial determination.

Turley v. Eddy
2003 WL 21675511, Docket No. 02-56782, D.C. No. CV-02-04783-JFW
United States Court of Appeals, Ninth Circuit, July 16, 2003

Subjects: Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California -- Officials and employees; Eviction; Joinder of parties.

*Synopsis: Occupants brought suit against tribal officers to challenge their eviction from Western Boundary lands that Colorado River Indian Tribes (CRIT) claimed as part of reservation. The United States District Court for the Central District of California, John F. Walter, J., dismissed suit for failure to join indispensable party, and occupants appealed.

*Holding: The Court of Appeals held that: (1) both CRIT and United States were necessary indispensable parties, and (2) dismissal was appropriate due to inability to join CRIT because of its tribal sovereign immunity.
Affirmed.

Reno-Sparks Indian Colony v. United States Environmental Protection Agency
2003 WL 21659158, Docket No. 02-71503
Ninth Circuit, July 16, 2003

Subjects: Reno-Sparks Indian Colony, Nevada; United States. Environmental Protection Agency; Nevada. Clean Air Act; United States. Administrative Procedure Act; Air -- Pollution -- Control; Hydrographic areas -- Nevada -- Boundaries.

*Synopsis: Petition was filed for review of Environmental Protection Agency (EPA) rule purporting to clarify that, in table listing Nevada's Clean Air Act (CAA) designations for various airborne pollutants, terms "rest of state" and "entire state" referred not to single baseline area for CAA purposes but to more than 250 distinct hydrographic areas, each of them constituting its own separate area.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that: (1) rule was not arbitrary, capricious or otherwise not in accordance with law, as would violate Administrative Procedure Act (APA), on basis that it mischaracterized agency's original 1978 boundary designations for Nevada or directly contradicted agency's 1991 regulation, direction to all listed states, stating that term "rest of state" should be assumed to constitute single baseline area, and (2) rule was interpretive rather than legislative and EPA thus did not violate APA by issuing it without allowing for notice and comment. Petition denied.

Frank v. Forest County
336 F.3d 570, Docket No. 02-2433
United States Court of Appeals, Seventh Circuit, July 15, 2003

Subjects: Apportionment (Election law); Equality before the law -- United States; United States. Voting Rights Act of 1965; Forest County (Wis.); Forest County Potawatomi Community of Wisconsin Potawatomi Indians, Wisconsin.

*Synopsis: Indian tribe brought action alleging that county's plan for redistricting its twenty-one supervisory districts deprived Native Americans of equal protection and violated Voting Rights Act. The United States District Court for the Eastern District of Wisconsin, 194 F.Supp.2d 867, Thomas J. Curran, J., granted summary judgment for county, and tribe appealed.

*Holding: The Court of Appeals, Posner, Circuit Judge, held that (1) deviations in sizes of districts did not violate equal protection, and (2) plan did not violate Voting Rights Act by depriving Native Americans and African-Americans of chance to elect some officials of their choice. Affirmed.

Penn v. United States
2003 WL 21543782, Docket No. 02-1731, 02-2267
8th Cir., July 10, 2003

Subjects: Indians of North America -- Non-members of a tribe; United States. Federal Tort Claims Act; Civil rights; Tort liability of Indian tribal governments; Indians of North America -- Tribal membership -- Exclusion and expulsion; Executions (Law); Sovereign immunity -- United States; Sovereign immunity -- North Dakota; United States -- Officials and employees; North Dakota -- Officials and employees.

*Synopsis: Plaintiff, who was not an enrolled member of any Indian tribe, brought action for damages against law enforcement officers involved in service and enforcement of tribal court order excluding her from Indian reservation. Defendants' motion for summary judgment was denied by the United States District Court for the District of North Dakota, Patrick Conmy, J., and defendants appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that officers were entitled to absolute quasi-judicial immunity. Reversed and remanded.

Malabed v. North Slope Borough
2003 WL 21524776, Docket No. 99-35684, 99-35750, 99-35773
9th Cir., July 8, 2003

Subjects: Employee selection -- Alaska Native preference in hiring; North Slope Borough (Alaska); Equality before the law -- Alaska; United States. Civil Rights Act of 1964.

*Synopsis: Former borough employees brought action challenging legality of borough's Native American employment preference ordinance. The United States District Court for the District of Alaska, 42 F.Supp.2d 927, John W. Sedwick, J., declared the ordinance invalid, and borough appealed. On appeal the Court of Appeals certified question to the Supreme Court of Alaska. The Alaska Supreme Court, 70 P.3d 416, answered, holding that ordinance violated state constitution's equal protection clause.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that (1) ordinance violated state constitution's equal protection clause, and (2) Civil Rights Act of 1964 did not preempt Alaska constitutional or other law prohibiting discrimination in employment preferences affirmatively favoring Native Americans over others. Affirmed.

Narragansett Indian Tribe v. Warwick Sewer Authority
2003 WL 21512228, Docket No. 02-2672
1st Circuit, July 3, 2003

Subjects: Sewerage -- Design and construction; Burial sites -- Desecration; United States. National Historic Preservation Act of 1966;

*Synopsis: Indian tribe sought preliminary injunction against sewer construction project, on basis of alleged desecration of ancestral burial sites in violation of National Historic Preservation Act (NHPA). The United States District Court for the District of Rhode Island, Ronald R. Lagueux, Senior District Judge, denied relief, and tribe appealed.

*Holding: The Court of Appeals, Lynch, Circuit Judge, held that: (1) tribe could not demand reversal of prior finding that sewer route would not affect significant Native American archaeological material; (2) NHPA provided no grounds for injunction requiring sewer construction project to use a bucket with a flat blade, rather than teeth, for digging; and (3) Sewer Authority had fulfilled its responsibilities to consult with tribe.

Thompson v. Cherokee Nation of Oklahoma
2003 WL 21511710, Docket No. 02-1286
United States Court of Appeals, Federal Circuit, July 3, 2003

Subjects: Cherokee Nation of Oklahoma; United States. Dept. of Health and Human Services; Breach of contract -- United States; United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Overhead costs; Self-determination.

*Synopsis: Tribal contractor under self-governance contracts entered pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA) appealed contracting officer's denial of its claim under Contract Disputes Act for full indirect contract support costs for past fiscal years, alleging that failure of Secretary of Health and Human Services (HHS) to pay full indirect costs was breach of contract and violated ISDEAA. The Department of Interior Board of Contract Appeals granted summary judgment on issue of entitlement in contractor's favor, and, after denying rehearing, ordered damages in tribal contractor's favor. Secretary appealed.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that: (1) Secretary lacked discretion to refuse to reprogram funds available from lump-sum appropriation to meet contractual obligation to pay tribal contractor full indirect contract support costs in accordance with ISDEAA; (2) appropriations acts did not contain statutory cap; (3) appropriations act did not apply retroactively to limit amount of funds available in earlier years for payment of tribal contractor's indirect contract support costs; (4) appropriations act could not be applied to clarify prior appropriations acts to establish congressional intent to set statutory cap on federal payments of indirect contract support costs; (5) tribal contractor's claim was not rendered moot because filed after close of relevant fiscal years; (6) Secretary was not excused from meeting contractual obligation to tribal contractor for full contract support costs under ISDEAA; and (7) award of damages to tribal contractor did not violate Appropriations Clause. Affirmed.

Related News Stories: Supreme Court to Resolve Self-determination Dispute (Indianz.com) 03/23, Supreme Court Weighs Self-determination Dispute (Indianz.com) 03/09

Cobell v. Norton
337 F.3d 139, Docket No. CIV.A.96-1285 RCL
United States District Court, District of Columbia, July 28, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Injunctions; Data protection.

*Synopsis: Beneficiaries, suing Interior Department for mismanagement of Individual Indian Money (IIM) trust accounts, sought preliminary injunction requiring Department to disconnect computers providing access to trust data from Internet pending security determination.

*Holding: The District Court, Lamberth, J., held that preliminary injunctive relief was warranted.

United States v. Fredericks
273 F.Supp.2d 1032, Docket No. C4-03-23
United States District Court, District of ND, July 28, 2003

Subjects: Methamphetamine; Drug traffic -- North Dakota. United States. Constitution. 4th Amendment; Police questioning -- United States; Right to counsel -- United States. Confession (Law) -- United States; Search and seizure -- United States; Law -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.

*Synopsis: Defendant was charged with possession with intent to distribute methamphetamine in violation of the Three Affiliated Tribes' Tribal Code.

*Holding: On defendant's motion to suppress evidence and statements, the District Court, Hovland, Chief Judge, held that:
(1) Bureau of Indian Affairs (BIA) officer was acting as tribal officer when applying for search warrant, and, thus, rule governing searches and seizures did not apply;
(2) officer's affidavit satisfied Fourth Amendment's oath or affirmation requirement;
(3) officer complied with Code provision requiring written inventory of property seized;
(4) defendant failed to make preliminary showing that officer lied or exhibited reckless disregard for truth in affidavit;
(5) probable cause existed to support warrant;
(6) tribal judge's failure to question officer did not indicate that judge was not acting as neutral and detached judicial officer; and
(7) warning given by officer pursuant to tribal rule met requirements of Miranda.

Osage Nation v. United States
57 Fed. Cl. 392, Docket No. 00-169 L
United States Court of Federal Claims, July 28, 2003

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

*Synopsis: Indian tribe brought suit against the United States seeking damages for breach of fiduciary duty in the mismanagement of tribal trust funds and for failure to account.

*Holding: On defendant's motion to dismiss, the Court of Federal Claims, Hewitt, J., held that:
(1) tribe had standing under the terms of 1906 Act relating to tribal trust fund to bring suit against the United States for mismanagement of tribal trust funds derived from mineral royalties and for failure to account;
(2) tribe's claims accrued on December 31, 1999 for purposes of six-year statute of limitations on suits against the United States in the Court of Federal Claims; and
(3) Indian Claims Commission (ICC) Act did not bar Indian tribe's claims concerning "losses to or mismanagement of trust funds" which occurred before August 13, 1946.
Motion granted in part and denied in part.

Kirkpatrick v. Kirkpatrick
282 F.Supp.2d 613, Docket No. 5:03CV1130
United States District Court, N.D. Ohio, July 18, 2003

Subjects: Armed forces -- Members; Seneca Nation of New York; Trials (Custody of children) -- Seneca Nation of New York; United States. Soldiers' and Sailors' Civil Relief Act of 1940; United States. Constitution. 5th Amendment; United States. Constitution. 14th Amendment; Jurisdiction -- United States. District Court (Ohio : Northern District); District courts.

*Synopsis: Former husband who was member of armed forces brought action against his former wife, Seneca Nation of Indians, its judicial system, and several Seneca Nation judges, alleging he was deprived of his rights under the Fifth and Fourteenth Amendment and the Soldiers and Sailors Civil Relief Act as a result of constitutional and federal statutory deficiencies in the Seneca Nation judicial proceedings regarding the custody of his daughter, a member of the Seneca Nation.

*Holding: Upon the Court's sua sponte consideration of its jurisdiction, the District Court, Dowd, J., held that court did not have jurisdiction to hear matter pending in tribal court.
Case dismissed.

San Carlos Apache Tribe v. United States
272 F.Supp.2d 860, Docket No. CV 99-255 TUC DCB
United States District Court, D. Arizona, July 9, 2003

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; United States; San Carlos Reservoir (Ariz.); Reservoir drawdown; United States. Endangered Species Act of 1973; Bald eagle; Nuisances; United States. National Historic Preservation Act of 1966; United States. Archeological Resources Protection Act; United States. Native American Graves Protection and Repatriation Act; United States. National Environmental Policy Act of 1969; United States. Fish and Wildlife Coordination Act; Trusts and trustees -- United States; Breach of trust -- United States; Jurisdiction -- United States. District Court (Arizona); District courts.

*Synopsis: San Carlos Apache Tribe sued United States, seeking to enjoin release of water from San Carlos Reservoir, asserting claims under Endangered Species Act (ESA), federal common law of public nuisance, National Historic Preservation Act (NHPA), Archeological Resources Protection Act (ARPA), Native American Graves Protection and Repatriation Act (NAGPRA), National Environmental Policy Act (NEPA), and Fish and Wildlife Coordination Act (FWCA), and alleging that United States breached its trust responsibilities.

*Holding: On United States' motion for summary judgment, the District Court, Bury, J., held that:
(1) letter from Tribe complied with notice provision of ESA;
(2) drawdown of Reservoir would not cause "harm" to bald eagles, so as to be "taking" under ESA;
(3) nuisance claim was not reviewable under Administrative Procedure Act (APA);
(4) no private right of action existed under NEPA, FWCA, or NHPA;
(5) drawdown did not require permit under ARPA;
(6) drawdown did not trigger NAGPRA obligations and procedures;
(7) United States did not create public nuisance so as to breach its general trust responsibilities;
(8) District Court lacked jurisdiction over claim that United States breached its trust responsibilities in operating irrigation project; and
(9) claim that United States breached its fiduciary duty by draining Reservoir accrued by time of 1935 consent decree.

Prairie Band Potawatami Nation v. Richards
2003 WL 21536881, No. 99-4071-JAR
United States District Court, D. Kansas, July 2, 2003

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; United States -- Jurisdiction; Standing to sue -- Prairie Band of Potawatomi Indians, Kansas; United States. Hayden-Cartwright Act; Kansas. Act for Admission.

Synopsis: Indian tribe moved for reconsideration of decision, 241 F.Supp.2d 1295, which denied its action for relief from state's collection of motor fuel tax from distributors delivering fuel to reservation.

*Holding:The District Court, Robinson, J., held that
(1) district court did not rely on allegedly objectionable evidence in making its ruling, and
(2) request that court rule that tribe had a constitutional and self-government right to impose tribal taxes with respect to motor fuel sold on reservation, did not warrant reconsideration.
Motion denied.

Oregon v. Norton
271 F. Supp 2d 1270, No. CIV. 02-6104-TC
United States District Court, D. Oregon, July 1, 2003

Subjects: Trust lands -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Restored lands -- Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Indian gaming; United States. Indian Gaming Regulatory Act (IGRA); Oregon; United States. Dept. of the Interior; United States. Administrative Procedure Act.

Synopsis: State brought action for review of decision of the Secretary of the Interior which determined that a parcel of land was acquired as part of the restoration of lands to an Indian tribe, and thus was eligible for gaming under Indian Gaming Regulatory Act (IGRA). Tribe intervened, and all parties cross-moved for summary judgment.

*Holding: The District Court, Coffin, United States Magistrate Judge, held that Secretary did not abuse her discretion in determining that land was acquired as part of a restoration of lands to the tribe.
State's motion denied and motions of Secretary and tribe granted.

June

Curtis v. Sandia Casino
2003 WL 21349313, Docket No. 02-2274
10th Cir., June 17, 2003

Subjects: Casinos -- Pueblo of Sandia, New Mexico; Sandia Casino; Race discrimination; Age discrimination; People with disabilities; Discrimination in employment; United States. Civil Rights Act of 1964. Title 7; United States. Americans with Disabilities Act of 1990; United States. Age Discrimination in Employment Act of 1967; Jurisdiction -- United States; Jurisdiction -- Indian Country (U.S.); Sovereign immunity -- Pueblo of Sandia, New Mexico.

*Synopsis: (from the opinion) Ms. Curtis, a Hispanic woman with a history of physical disability was employed by the Sandia Casino ("Casino"). The Casino was owned and operated by the Pueblo of Sandia, a federally recognized Indian tribe located in New Mexico. On June 26, 2002, Ms. Curtis filed suit in federal court alleging the Casino, Casino officials, the Governor of the Pueblo of Sandia, and unnamed John Does forced her to resign her management position at the Casino in November 2001 because of her race, disability and age. (She was sixty-eight years old in November 2001.) She asserted federal and state law claims of employment discrimination [FN3] and sought damages and injunctive relief.

*Holding: (from the opinion) Ms. Curtis' Title VII claim fails because Title VII precludes jurisdiction over employment discrimination claims against Indian tribes. 42 U.S.C. § 2000e(b)(1); Morton v. Mancari, 417 U.S. 535, 545-46 (1974); Duke v. Absentee Shawnee Tribe of Okla. Hous. Auth., 199 F.3d 1123, 1126 (10th Cir.1999), cert. denied, 529 U.S. 1134 (2000). Her § 1981 claim mirrors her Title VII claim. It fails because the more specific statutory enactment of Title VII controls the subject matter. Mancari, 417 U.S. at 550-51; Wardle v. Ute Indian Tribe, 623 F.2d 670, 673 (10th Cir.1980). Her ADA claim fails because the ADA excludes Indian tribes as employers subject to suit. 42 U.S.C. § 12111(5)(B)(i). Finally, her ADEA claim fails because the ADEA does not apply to Indian tribes. EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir.1989).

Crow Creek Sioux Tribe v. Brownlee
2003 WL 21382907, Docket No. 02-5049
D.C. Cir., June 17, 2003

Subjects: Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Land titles -- Registration and transfer -- United States; South Dakota; United States. Water Resources Development Act of 2000. Title VI; United States. Dept. of the Army; United States. Army. Corps of Engineers; Land tenure; Culture; Landscape protection; Cultural property -- Protection.

*Synopsis: Tribe brought suit to enjoin implementation of Water Resources Development Act (WRDA), which called for transfer of federal Pick-Sloan lands from Army Corps of Engineers to State of South Dakota. The United States District of Columbia, Paul L. Friedman, J., denied preliminary injunction, and tribe appealed.

*Holding: The Court of Appeals, Sentelle, Circuit Judge, held that tribe did not show actual and imminent injury for Article III standing to challenge transfer under WRDA, which specifically preserved federal enforcement of cultural protection statutes.

Mayes V. Cherokee Nation
294 B.R. 145, BAP No. EO-02-067, Bankruptcy No. 02-70643.
United States Bankruptcy Appellate Panel, Tenth Circuit, June 11, 2003.

Subjects: Sovereign immunity -- Cherokee Nation of Oklahoma; State courts; Courts -- United States; Bankruptcy; Liens; Debtor and creditor.

*Synopsis: Chapter 7 debtor moved to avoid judgment lien possessed by Indian tribe, as allegedly impairing exemption to which he would otherwise be entitled, and tribe moved to dismiss on sovereign immunity grounds. The United States Bankruptcy Court for the Eastern District of Oklahoma granted motion, and appeal was taken.

*Holding: The Bankruptcy Appellate Panel, Nugent, J., held that: (1) contested matter brought by debtor to avoid state court judgment lien on exemption impairment grounds qualified as "suit" against tribe, of kind barred by tribe's sovereign immunity; and (2) tribe's waiver of its immunity from suit in state court, by commencing and obtaining judgment against Chapter 7 debtor in that forum, was not waiver of its immunity from suit in federal court.

Coyote Valley Band v. State of California
331 F.3d 1094, Docket No. 01-16283
Ninth Circuit, June 11, 2003

Subjects: Intergovernmental agreements -- Coyote Valley Band of Pomo Indians of California; Intergovernmental agreements -- California; Indian gaming; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Special funds; Fund accounting; Revenue sharing.

*Synopsis: Indian tribe brought action alleging that State had refused to negotiate in good faith with the tribe to conclude a Tribal-State compact, as required by the Indian Gaming Regulatory Act (IGRA), and moved in the district court for an order that would require it to do so. The United States District Court for the Northern District of California, Claudia Wilken, J., 147 F.Supp2d. 1011, denied the motion and entered judgment for the State, and tribe appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that: (1) revenue sharing trust fund, which required that gaming tribes share gaming revenues with non-gaming tribes, was not impermissible under IGRA, and (2) state did not act in bad faith in violation of IGRA by insisting that tribe adopt special distribution fund provision as a precondition to entering a Tribal-State compact. Affirmed.

Related news stories: Supreme Court Won't Take on Calif. Compact Dispute (Indianz.com) 02/24

City of Tacoma, Washington, v. Federal Energy Regulatory Commission
331 F.3d 106, Docket No. 01-1375
District of Columbia Circuit, June 10, 2003

Subjects: Tacoma (Wash.); United States. Federal Energy Regulatory Commission; United States. Federal Power Act; Public utilities; Water-power -- Costs; Rebates; User charges.

*Synopsis: Group of hydroelectric utilities licensed under Federal Power Act (FPA) petitioned for judicial review of three orders, 2000 WL 1687183, 2001 WL 433484, and 2001 WL 726744, in which Federal Energy Regulatory Commission (FERC) denied utilities refunds of annual charges imposed pursuant to FPA.

*Holding: The Court of Appeals, Karen LeCraft Henderson, Circuit Judge, held that: (1) orders were final agency actions subject to judicial review, and (2) FERC, by failing to conduct required review of cost reports of other federal agencies on which annual charges were based, acted contrary to unambiguously expressed intent of Congress and contrary to law. Vacated and remanded.

Navajo Nation v. Norris
2003 WL 21308905. Docket Nos. 01-35039
9th Cir., June 9, 2003

Subjects: Adoption; Indian children; Domicile; United States. Indian Child Welfare Act of 1978 (25 USC 1901); Navajo Nation, Arizona, New Mexico & Utah; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington; Jurisdiction; State courts.

*Synopsis: Indian nations challenged off-reservation adoption of Indian child. The United States District Court for the Eastern District of Washington, 47 F.Supp.2d 1233, Edward F. Shea, J., granted summary judgment for adoptive parents. Nations appealed.

*Holding: The Court of Appeals, Rawlinson, Circuit Judge, held that Washington state court had jurisdiction over adoption proceedings. Affirmed.

American Federation of Government Employees, AFL-CIO, v. United States of America
330 F.3d 513. Docket Nos. 02-5142
District of Columbia Cir., June 6, 2003

Subjects: Equality before the law -- United States; Contracting out; Employee selection; United States -- Officials and employees; American Federation of Government Employees. United States. Defense Appropriations Act.

*Synopsis: Federal employees and their unions brought action challenging constitutionality of Defense Appropriations Act provision granting outsourcing preference for firms "under 51 percent Native American ownership." The United States District Court for the District of Columbia, Urbina, J., granted government's motion for summary judgment, 195 F.Supp.2d 4, and plaintiffs appealed.

*Holding: The Court of Appeals, Randolph, Circuit Judge, held that: (1) rational basis review, rather than strict scrutiny, applied in determining whether provision violated equal protection; (2) provision granting outsourcing preference for firms "under 51 percent Native American ownership" was rationally related to legitimate legislative purpose of promotion economic development of federally recognized Indian tribes and their members, as required by equal protection; (3) federal employees did not have a fundamental interest in public employment for purposes of substantive due process. Affirmed.

Related news stories: Court Rejects Union Claim Against Native Contract (Indianz.com) 6/09.

United States v. City of Tacoma
2003 WL 21276504. Docket Nos. 00-35070
9th Cir., June 4, 2003

Subjects: Indian land transfers -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Judgments, Declaratory; Eminent domain; Tacoma (Wash.).

*Synopsis: Government, acting on its own behalf and as trustee for Indian tribe, sought declaratory judgment to invalidate city's 1921 condemnation proceedings and void land transfers by tribe. Parties cross-moved for summary judgment. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for government. City appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that: (1) United States had standing; (2) condemnation proceedings were without effect and conveyed no interest to city; and (3) U.S. was not estopped, on basis of actions of federal officials, from bringing action. Affirmed.

Skokomish Tribe v. United States
2003 WL 21264168. Docket Nos. 01-35028, 01-35845
9th Cir., June 3, 2003

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; Tacoma (Wash.); Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams.

*Synopsis: Indian tribe brought action alleging that city's 1924 development of federally-licensed hydroelectric power project violated tribe's rights under Treaty, Federal Power Act (FPA), and state law. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for city, and tribe appealed.

*Holding: The Court of Appeals, Trott, Circuit Judge, held that: (1) judge's status as a customer of the electric utility did not require recusal; (2) U.S. was properly dismissed as a defendant; (3) district court lacked jurisdiction to grant summary judgment for city as to tribe's Treaty-based claims; and (4) statute of limitations barred claims under Washington law. Affirmed in part and vacated and remanded with instructions in part. Tashima, Circuit Judge, filed opinion concurring part and dissenting in part.

Related news stories: Court Rejects Tribe's $6 Billion Claim (Post-Intelligencer) 6/05.

Oltra, Inc. v. Pataki
273 F.Supp.2d 265, Docket No. 03-CV-319S
United States District Court, W.D. New York, June 23, 2003

Subjects: Tobacco -- Transportation; Cigarettes; Delivery of goods; Electronic -- Commerce; Tribes -- Commerce; Internet; Constitutional law -- New York; Public health -- New York; Interstate commerce.

*Synopsis: Tobacco retailers association brought action against State of New York challenging constitutionality of state statute that essentially prohibited shipment and transportation of cigarettes directly to New York consumers.

*Holding: On motion for temporary restraining order, the District Court, Skretny, J., held that:
(1) public health statute did not discriminate against interstate commerce in its effect;
(2) statute did not violate dormant commerce clause under Pike balancing test; and
(3) statute did not violate dormant commerce clause because it regulated public interest pursuant to state's police power and it did not directly tax interstate commerce.

In re Mayes
294 B.R. 145, No. 02-70643
Eastern Shoshone Tribe of the Wind River Reservation, June 11, 2003.

Subjects: not yet available

*Synopsis: Chapter 7 debtor moved to avoid judgment lien possessed by Indian tribe, as allegedly impairing exemption to which he would otherwise be entitled, and tribe moved to dismiss on sovereign immunity grounds. Affirmed.

*Holding: The United States Bankruptcy Court for the Eastern District of Oklahoma granted motion, and appeal was taken. The Bankruptcy Appellate Panel, Nugent, J., held that: (1) contested matter brought by debtor to avoid state court judgment lien on exemption impairment grounds qualified as “suit” against tribe, of kind barred by tribe's sovereign immunity; and (2) tribe's waiver of its immunity from suit in state court, by commencing and obtaining judgment against Chapter 7 debtor in that forum, was not waiver of its immunity from suit in federal court.

May

Sharber v. Spirit Mountain Gaming
2003 WL 21147447. Docket No. 01-35500
9th Cir., May 15, 2003

Subjects: Jurisdiction -- Indian Country (U.S.); United States. Family and Medical Leave Act of 1993.

*Synopsis: Employee brought action against casino pursuant to Family and Medical Leave Act (FMLA). The United States District Court for the District of Oregon, Robert E. Jones, J., 2001 WL 34042621, granted casino's motion to dismiss. Employee appealed.

*Holding: The Court of Appeals held that: (1) tribal courts should have first opportunity to determine whether they have jurisdiction to hear actions based on FMLA; (2) tribal exhaustion requirement applies to issues of tribal sovereign immunity; and (3) stay, rather than dismissal, was warranted. Affirmed in part, reversed in part, and remanded.

Roe v. Keady
329 F.3d 1188, Docket No. 02-3167
10th Cir., May 15, 2003

Subjects: Equality before the law -- United States; Indian children -- Abuse of; United States. Bureau of Indian Affairs; Race discrimination; Kansas. Dept. of Social and Rehabilitation Services.

*Synopsis: Minor Native-American child, by and through his adoptive parents, sued state social workers pursuant to §§ 1981 and 1983, alleging discriminatory behavior in failure to protect child from abuse by his natural parents. On cross-motions for summary judgment, the United States District Court for the District of Kansas, Carlos Murguia, J., 2001 WL 238142, granted summary judgment for defendants, and plaintiffs appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that: (1) any allegation that social workers misjudged danger to child, or erred in concluding that they had to defer to Bureau of Indian Affairs (BIA), did not violate child's equal protection rights or discriminate against him; (2) social workers' conduct did not evince impermissible discriminatory intent; and (3) district court did not abuse its discretion in rejecting evidence of one defendant's attitude toward minorities. Affirmed.

Arakaki v. Cayetano
324 F.3d 1078. Docket No. 02-16269
9th Cir., May 13, 2003

Subjects: Intervention (Civil procedure); Native Hawaiians; Office of Hawaiian Affairs; Department of Hawaiian Home Lands; Hawaiian Homes Commission; Land use; Homestead law; Leases.

*Synopsis: Hawaiians, and native Hawaiians who either leased Hawaiian homestead lands or applied for such leases moved to intervene as of right. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., denied motion, and proposed intervenors appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that: (1) intervention as of right with regard to claim that was dismissed by district court and not subsequently appealed was not appropriate; (2) proposed intervenors had significant protectable interest in continued receipt of benefits given to Native Hawaiians, as required to intervene as of right; but (3) proposed intervenors did not overcome presumption that existing parties would adequately represent their interests. Affirmed.

Sac and Fox Tribe of the Mississippi in Iowa v. Walker and Bear
264 F.Supp.2d 830, No. C03-50-LRR
United States District Court, N.D. Iowa, May 22, 2003

Subjects: Indian councils -- Sac and Fox Tribe of Missouri in Kansas and Nebraska; Recall -- Corrupt practices; Elections.

*Synopsis: In intra-tribal dispute between elected Indian tribal council and appointed council, in which appointed council took control of tribal facilities, including casino, Bureau of Indian Affairs (BIA) stated continued recognition of elected council as tribal leadership and National Indian Gaming Commission (NIGC) ordered closure of casino, appointed council petitioned for review of NIGC's action and moved for temporary restraining order (TRO) or stay of administrative action. Government moved to dismiss and sought enforcement of closure order. Elected council intervenors moved for TRO to enjoin appointed council from operating casino and enjoin NIGC from implementing closure order.

*Holding: The District Court, Reade, J., held that
(1) court lacked jurisdiction over appointed council's request for TRO, and
(2) government was entitled to preliminary injunction.
Ordered accordingly.

Vencel v. Bug-O-Nay-Ge-Shig and Bureau of Indian Affairs
262 F.Supp.2d 1001, No. CIV.02-3607 MJD/RLE
United States District Court, Minnesota, May 16, 2003

Subjects: United States. Civil Rights Act of 1964. Title 7; Minnesota. Minnesota Human Rights Act; Jurisdiction -- United States; Jurisdiction -- Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band; Bug O Nay Ge Shig School; United States. Bureau of Indian Affairs.

*Synopsis: (from the opinion) This matter is before the Court on Defendant Bug O Nay Ge Shig School's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)
(1) and 12(b)
(6). In the underlying Complaint, Plaintiff sued the Bug O Nay Ge Shig school and the Bureau of Indian Affairs, under Title VII of the 1964 Civil Rights Act and under the Minnesota Human Rights Act. Defendant Bug O Nay Ge Shig asserts that this Court lacks subject matter jurisdiction, and that instead it properly belongs in the Tribal Court of the Leech Lake Band of Ojibwe.

*Holding: District Court, Davis, J., held that proper jurisdiction for action resided with tribal court. Motion granted.

Dumarce v. Norton
277 F.Supp.2d 1046, Docket No. CIV 02-1026
United States District Court, D. South Dakota, May 15, 2003

Subjects: Indian allotments; Inheritance and succession; Escheat; Jurisdiction; United States. District Court (South Dakota); United States. Sisseton-Wahpeton Sioux Act of 1984; United States. Constitution. 5th Amendment; Limitation of actions.

*Synopsis: Heirs to allotted Indian lands sought declaratory and injunctive relief, alleging that provision of the Sisseton-Wahpeton Sioux Act of 1984, which mandated that certain interests in Indian allotments escheat to the United States to be held in trust for tribe, constituted a taking in violation of the Fifth Amendment. Government moved to dismiss or for summary judgment, and heirs cross-moved for summary judgment.

*Holding: The District Court, Kornmann, J., held that:
(1) district court had jurisdiction;
(2) statutory provision violated Fifth Amendment;
(3) heir's claims were not barred by any statute of limitations; and
(4) Court would refrain for sixty days from ordering any relief.

Russell v. Fort McDowell Yavapai Nation
293 B.R. 34, Bankruptcy No. 02-06628-PHX-RJH
United States Bankruptcy Court, D. Arizona, May 15, 2003

Subjects: Revenue sharing -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation, Arizona; Gambling on Indian reservations; Indian gaming -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation; Creditors' bills; Bankruptcy; Business failures -- Law and legislation; Sovereign immunity -- Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation, Arizona.

*Synopsis: Chapter 7 debtor, a member of an Indian tribe who had obtained a business loan from the tribe, filed adversary complaint against tribe, seeking to preclude it from collecting his debt by withholding his monthly "per capita distributions" from gaming revenues. Tribe moved to dismiss on the basis of tribal sovereign immunity.

*Holding: The Bankruptcy Court, Randolph J. Haines, J., held that Indian tribes are "domestic governments" as to which sovereign immunity is abrogated under the Bankruptcy Code.

National Wildlife Federation v. National Marine Fisheries
254 F.Supp.2d 1196, No. CV 01-640-RE
United States District Court, D. Oregon, May 7, 2003

Subjects: Salmon; Steelhead (Fish); Wildlife conservation; United States. National Marine Fisheries Service; United States. Endangered Species Act of 1973; Nez Perce Tribe of Idaho ; Umatilla Reservation, Confederated Tribes of the, Oregon; Yakama Indian Nation of the Yakima Reservation, Washington; Confederated Tribes of the Warm Springs Reservation, Oregon; Columbia River.

*Synopsis: Environmental and conservation organizations brought action against National Marine Fisheries Service (NMFS), seeking declaration that no-jeopardy opinion regarding salmon and steelhead in Columbia River basin violated Endangered Species Act and seeking to enjoin NMFS to reinitiate consultation. Idaho, utilities, and farm bureaus intervened as defendants.

*Holding: On cross motions for summary judgment, the District Court, Redden, J., held that:
(1) NMFS definition of "action area" was arbitrary and capricious;
(2) biological opinion (BO) improperly relied on certain mitigation actions; and
(3) remand to NMFS was proper.

County of Mille Lacs v. Benjamin
262 F.Supp.2d 990, No. 02-CV-407 JMRRLE
United States District Court, D. Minnesota, May 6, 2003.

Subjects: Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band -- Claims; Land tenure; Mille Lacs County (Minn.).

*Synopsis: County and intervenor bank sought declaratory judgment that Indian tribe had no claim to any land beyond that which it currently occupied. Tribe moved for summary judgment.

*Holding: The District Court, Rosenbaum, Chief District Judge, held that
(1) county and bank lacked standing, and
(2) case was not ripe for adjudication.
Dismissed.

Sheila Burdett v. Harrah's Kansas Casino Corp., et al
260 F.Supp.2d 1109, No. CIV.A. 02-2166-KHV
United States District Court, D. Kansas, May 5, 2003

Subjects: Collecting of accounts; Debt; Racketeering; Jurisdiction -- United States; Jurisdiction -- Civil actions arising in Indian Country (U.S.); Jurisdiction -- Criminal actions arising in Indian Country (U.S.); United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Jurisdiction -- United States -- States; Casinos -- Prairie Band of Potawatomi Indians, Kansas; Harrah's Kansas Casino Corporation; Harrah's Operating Company, Incorporated; Harrah's Entertainment, Incorporated; Racketeer Influenced and Corrupt Organizations Act (18 USC 1961 et seq.).

*Synopsis: Wife of customer of Indian gambling casino sued tribe, agent operating casino, and companies performing debt collection services, claiming violations of debt collecting and racketeering statutes. Defendants moved to dismiss.

*Holding: The District Court, Vratil, J., held that:
(1) there was no basis for federal court jurisdiction under Indian Gaming Regulatory Act (IGRA);
(2) there was no jurisdiction under statute conferring jurisdiction on state for crimes committed on Indian territory; and
(3) Racketeer Influenced and Corrupt Organizations Act (RICO) was not violated.
Motion granted in part, denied in part.

Wilson v. Moore
270 F. Supp. 2d 1328, Docket No. 4:98CV328-WS
United States District Court, N.D. Florida, May 1, 2003

Subjects: Indian prisoners; Ex-convicts; Prisons; Policies and institutions; Freedom of religion; Ceremonial objects; United States. Constitution. 1st Amendment; Equality before the law -- United States; Florida. Religious Freedom Restoration Act.

*Synopsis: Native American prisoner brought civil rights action against prison defendants, alleging violations of his constitutional rights and state law. After remand, 31 Fed.Appx. 930, the defendants' moved for summary judgment.

*Holding: The District Court, Stafford, Senior District Judge, adopted the report and recommendation of United States Magistrate Judge Sherrill, J., holding that:
(1) plaintiff's release from prison and his residence in North Carolina rendered his equitable claims arising from his incarceration moot;
(2) prisoner's request for monetary damages for violation of his constitutional rights was limited to nominal damages;
(3) prison policies denying prisoners of Native American faith Holy Ground and imposing restrictions on smudging ceremonies did not violate Native American prisoner's rights under Free Exercise Clause of First Amendment;
(4) refusal of prison officials to permit personal possession of a prayer pipe did not violate prisoner's First Amendment rights;
(5) genuine issues of material fact existed underlying issues as to whether prison officials' refusal to permit practitioners of Native American faith the right to wear headbands routinely violated those prisoners' rights under Equal Protection and Free Exercise Clauses;
(6) prison officials were entitled to qualified immunity; and
(7) court would not exercise jurisdiction over the state law claim asserting a violation of Florida's Religious Freedom Restoration Act (RFRA).
Motion granted in part and denied in part.

April

Seneca Cayuga Tribe of Oklahoma v. National Indian Gaming Commission
327 F.3d 1019. Docket No. 01-5066
10th Cir., April 17, 2003

Subjects: Indian gaming -- Class II; Gaming -- Equipment and supplies; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Northern Arapaho Tribe of Wyoming; Diamond Gaming Corporation; National Indian Gaming seq.); United States. Johnson Act (15 USC 1171-1178); Seneca-Cayuga Commission (U.S.).

*Synopsis: Three Indian tribes, authorized to conduct gaming operations on their reservations, and gaming device manufacturer sought declaratory and injunctive relief, alleging that particular variety of gaming machine qualified as a Class II game of pull-tabs under Indian Gaming Regulatory Act (IGRA). The United States District Court for the Northern District of Oklahoma, Michael Burrage, J., held that machine was a permissible Class II aid and not an illegal gambling device under Johnson Act. Government appealed. Plaintiffs moved to dismiss as moot.

*Holding: The Court of Appeals, Henry, Circuit Judge, held that: (1) appeal was not moot; (2) collateral estoppel argument was waived; (3) Johnson Act proscription of gambling devices did not apply to IGRA Class II technologic aids; and (4) machine was a Class II technologic aid to game of pull-tabs. Affirmed.

Related news stories: Appeals Court Says Game Is Legal Class II (Indianz.com) 4/21.

Navajo Nation v. Department of Health and Human Services
2003 WL 1806130. Docket No. 99-16129
9th Cir., April 8, 2003

Subjects: Temporary Assistance for Needy Families (Program) (TANF) -- Administration; United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Contracts; Tribes -- Self-determination; Alaska native corporations -- Self-determination.

*Synopsis: Navajo Nation sued Department of Health and Human Services (HHS), seeking order requiring HHS Secretary to enter into self-determination contract with Nation, pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA), for Temporary Assistance to Needy Families (TANF) funds.

*Holding: The United States District Court for the District of Arizona, Roger G. Strand, J., dismissed action for failure to state claim. Nation appealed. On rehearing en banc, the Court of Appeals, McKeown, Circuit Judge, held that ISDEAA was not available as route for Nation's administration of TANF funds. Affirmed.

Greene v. Assistant Secretary Indian Affairs (BIA) Neal McCaleb
61 Fed. Appx. 445 Docket No. 02-17054., D.C. No. CV-02-06157-REC
9th Cir., April 7, 2003

Subjects: Choctaw Nation of Oklahoma -- Tribal membership; United States. Bureau of Indian Affairs; Intervention (Civil procedure) -- United States.

*Synopsis: (from the opinion) Charles Anthony Greene appeals pro se the district court's judgment dismissing his action alleging that the Bureau of Indian Affairs ("BIA") wrongfully failed to intervene when the Choctaw Nation of Oklahoma denied Greene tribal membership.

*Holding: The district court properly dismissed Greene's action because only the Choctaw Nation may grant him tribal membership, not the BIA.

Penn v. United States
2003 WL 1740500. Docket No. 02-1731, 02-2267
8th Cir., April 3, 2003

Subjects: Indians of North America -- Non-members of a tribe; United States. Federal Tort Claims Act; Civil rights; Tort liability of Indian tribal governments; Indians of North America -- Tribal membership -- Exclusion and expulsion; Executions (Law); Sovereign immunity -- United States; Sovereign immunity -- North Dakota; United States -- Officials and employees; North Dakota -- Officials and employees.

*Synopsis: Nonmember of Indian tribe sued United States, county sheriff, and others under Federal Tort Claims Act (FTCA), alleging constitutional violations in connection with service and execution of tribal court order excluding her from reservation. The United States District Court for the District of North Dakota, denied certain defendants' motion for summary judgment based upon claim of absolute and qualified immunity, and they appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that order was not issued in clear absence of all jurisdiction, and federal and state officials thus were entitled to absolute quasi-judicial immunity for their roles in serving and executing order. Reversed and remanded with directions.

Court of Appeals Pleadings and Briefs: Retrieve briefs from the 8th. Cir. web site

Miccosuke Tribe of Indians of Florida v. United States
259 F.Supp.2d 1237, No. No. 00-0033-CIV-MOORE
United States District Court, S.D. Florida, April 28, 2003

Subjects: Water; Natural resources managment; United States. Army. Corps of Engineers -- Decision making; Miccosukee Tribe of Indians of Florida.

*Synopsis: Indian tribe challenged water management decisions made by United States Army Corps of Engineers.

*Holding: Adopting the report and recommendation of John J., O'Sullivan, United States Magistrate Judge, the District Court, Moore, J., held that tribe's claims were moot.
Case dismissed.

Related News Stories: Miccosukee Tribe Asks Collier Judge to Dismiss DEP Lawsuit (Naples Daily News) 03/22

Cobell v. Norton
260 F.Supp.2d 110, No. CIV.A. 96-1285(RCL)
United States District Court, District of D.C., April 28, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. General Accounting Office; Summary judgments.

*Synopsis: In action brought by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of the Interior and Treasury, plaintiffs moved for partial summary judgment as to non-settlement of accounts and government's failure to perform previously-ordered accounting.

*Holding: The District Court, Lamberth, J., held that:
(1) General Accounting Office (GAO) never conducted an accounting of any individual Indian trust assets or trust accounts;
(2) issues of fact existed as to whether there had been any examinations of individual trust accounts to ensure their propriety and accuracy;
(3) issues of fact existed as to whether any statements of account had been rendered for individual accounts;
(4) issues of fact existed as to whether amount of funds held in individual trust accounts could not be ascertained because of the loss, destruction, and corruption of trust records; and
(5) issues of fact existed as to whether it was possible to certify that disbursements from individual trust accounts were made to the correct beneficiaries in the correct amounts.
Motion granted in part and denied in part.

Cobell v. Norton
260 F.Supp.2d 93, No. CIV.A. 96-1285(RCL)
United States District Court, District of D.C., April 28, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior. Office of Historical Trust Accounting.

*Synopsis: In action by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of the Interior and Treasury, government moved for partial summary judgment that Interior Department's historical accounting plan and trust management plan comported with obligation to perform a historical accounting.

*Holding: The District Court, Lamberth, J., held that evidence was insufficient to demonstrate that plans comported with court's requirements.
Motion denied.

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States
259 F.Supp.2d 783, No. 01 C 2370
United States District Court, N.D. Illinois, April 28, 2003

Subjects: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles, Reservation of Wisconsin; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Sokaogon Chippewa Community of the Mole Lake Band of Chippewa Indians, Wisconsin; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Law and legislation; Delegation of powers -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Breach of trust -- United States; Equality before the law -- United States; United States. Constitution. 5th Amendment; United States. Constitution. 10th Amendment.

*Synopsis: Three Indian tribes brought action to challenge constitutionality of gubernatorial concurrence requirement of Indian Gaming Regulatory Act (IGRA). Parties cross-moved for judgment on the pleadings, and plaintiffs conditionally moved to amend their complaint.

*Holding: The District Court, Crabb, J., held that:
(1) gubernatorial concurrence requirement was not a congressional breach of trust;
(2) gubernatorial concurrence requirement did not violate non-delegation doctrine;
(3) gubernatorial concurrence requirement did not violate appointments clause; and
(4) gubernatorial concurrence requirement did not violate Tenth Amendment.
Plaintiffs' motions denied and defendants' and intervenors' motion granted.

Wyandotte Nation v. City of Kansas City Kansas
214 F.R.D. 656, No. 01-2303-CM
United States District Court, D. Kansas, April 25, 2003.

Subjects: Wyandotte Tribe of Oklahoma -- Claims against Kansas City (Kan.) -- Compensation for taking; Possession (Law); Real property; Land use; Class actions (Civil procedure).

*Synopsis: Indian tribe brought suit against record owners of lands allegedly belonging to the tribe, seeking a declaratory judgment, recovery of possession of real property, and monetary damages arising out of defendants' alleged taking of, and trespass upon, the lands. On joint motion for certification of a defendants' class, the District Court, Murguia, J., held that certification of defendants' class as to liability issues was appropriate under provision of class action rule authorizing certification when prosecution of separate actions would create a risk of adjudications which would be dispositive of the interests of the other class members or substantially impair or impede their ability to protect their interests. Motion granted in part and denied in part.

*Holding: On joint motion for certification of a defendants' class, the District Court, Murguia, J., held that certification of defendants' class as to liability issues was appropriate under provision of class action rule authorizing certification when prosecution of separate actions would create a risk of adjudications which would be dispositive of the interests of the other class members or substantially impair or impede their ability to protect their interests.
Motion granted in part and denied in part.

Related Newes Stories: NIGC Rules against Okla. Tribe's Casino in Kansas (Indianz.com) 03/26

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

Subjects: Wide Ruins Community School (Ariz.); Navajo Nation. Navajo Preference in Employment Act; School principals -- Selection and employment; Schools; United States. Bureau of Indian Affairs; Tribal schools; Tribal courts; United States. District Courts; Jurisdiction -- Civil actions arising in Indian Country (U.S.); Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: 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.

*Holding: The District Court, Martone, J., held that former principal's action was subject to tribal jurisdiction.

Yankton Sioux Tribe v. U. S. Army Corps of Engineers
258 F.Supp.2d 1027, No. CIV. 02-4126
United States District Court, D. South Dakota, April 18, 2003

Subjects: Human remains (Archaeology) -- South Dakota; Sacred space -- South Dakota; Yankton Sioux Tribe of South Dakota; United States. Army. Corps of Engineers; Excavation -- South Dakota; North Point Recreation Area (S.D.); Recreation areas -- Design and construction.

*Synopsis: Following grant, on basis of Native American Grave Protection and Repatriation Act (NAGPRA), of a preliminary injunction to prohibit excavation or other construction activities in a state recreation area in which Indian burial remains had been inadvertently unearthed, state moved to allow adoption of archeologist's recommendations.

*Holding: The District Court, Piersol, Chief District Judge, held that:
(1) preliminary injunction would be dissolved as to area in which state sought to build waste dump site;
(2) preliminary injunction would be dissolved as to area in which state sought to build park administration building, if state at its own expense chose to return borrow dirt containing human remains to its original location; and
(3) preliminary injunction would be maintained as to area that was original site of fill.
Ordered accordingly.

Kansas Wastewater, Inc. v. Alliant Techsystems, Inc.
257 F.Supp.2d 1344, No. 02-2605-JWL.
United States District Court, District of Kansas, April 18, 2003

Subjects: Sewage disposal plants -- Kansas; Fraud.

*Synopsis: Users of government-owned wastewater treatment facility brought action against operator of facility, alleging fraud and negligent misrepresentation. Operator moved for summary judgment.

*Holding: The District Court, Lungstrum, J., held that genuine issues of material fact precluded summary judgment.
Motion denied.

Cobell v. Norton
257 F.Supp.2d 203, No. 96-1285
United States District Court, District of Columbia, April 11, 2003

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Breach of trust -- United States; Trusts and trustees -- Accounting; Injunctions; Civil procedure; Legal documents.

*Synopsis: After Court Monitor recommended that sealed document should be unsealed, in action, brought by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging mismanagement of accounts by Secretaries of the Interior and Treasury, plaintiffs moved to unseal and defendants requested that document remain sealed and that references to the content of the document be stricken.

*Holding: The District Court, Lamberth, J., held that plaintiffs' interest in disclosure did not outweigh defendants' interest in preventing disclosure.
Ordered accordingly.

March

Arakaki v. Cayetano
2003 WL 1635184. Docket No. 02-16269
9th Cir., March 31, 2003

Subjects: Hawaii; Administrative agencies -- Hawaii; Native Hawaiians; Leases; Homestead law; Land tenure; Intervention.

*Synopsis: Action was brought against State of Hawaii and state agencies, challenging constitutionality of provision of exclusive benefits to native Hawaiians and Hawaiians, and native Hawaiians who either leased Hawaiian homestead lands or applied for such leases moved to intervene as of right. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., denied motion, and proposed intervenors appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that: (1) intervention as of right with regard to claim that was dismissed by district court and not subsequently appealed was not appropriate; (2) proposed intervenors had significant protectable interest in continued receipt of benefits given to Native Hawaiians, as required to intervene as of right; but (3) proposed intervenors did not overcome presumption that existing parties would adequately represent their interests. Affirmed.

United States v. Lara
2003 WL 1452003, Docket No. 01-3695
8th. Cir., March 24, 2003

Subjects: Assault and battery -- Indian Country; United States -- Officials and employees; Jurisdiction -- Criminal actions arising in Indian Country; Jurisdiction -- Indian Country -- Over non-members of a tribe; Jurisdiction -- United States; Indians of North America -- Non-members of a tribe; Double jeopardy.

*Synopsis: Following denial of his motion to dismiss on basis of prior tribal court conviction, defendant, an Indian nonmember of the tribe, pleaded guilty in the United States District Court for the District of North Dakota, Alice R. Senechal, United States Magistrate Judge, to assault on a federal officer occurring in Indian country. Defendant appealed. A panel of the Court of Appeals affirmed, 294 F.3d 1004.

*Holding: On rehearing en banc, the Court of Appeals, Wollman, Circuit Judge, held that tribal court prosecution occurring pursuant to delegation of Congressional power, rather than tribe's inherent sovereign powers, barred federal prosecution on Double Jeopardy grounds. Reversed and remanded with instructions. Morris Sheppard Arnold, Circuit Judge, filed dissenting opinion, in which Bowman, Murphy, and Smith, Circuit Judges, joined.

Court of Appeals Pleadings and Briefs: Retrieve briefs from the 8th Cir. web site

Milios v. Mashantucket Pequot Tribal Nation
2003 WL 1412414 (Unpublished), Docket No. 02-2162
1st Cir., March 21, 2003

Subjects: Civil rights; United States. Indian Civil Rights Act (25 USC 70 et seq.); Mashantucket Pequot Gaming Enterprise; Indian gaming -- Law and legislation; Common law; Wagers; Poker.

*Synopsis: Gambler brought action alleging that tribe's failure to pay jackpot at tribal casino violated his civil rights under Indian Civil Rights Act (ICRA) and § 1985.

*Holding: The United States District Court for the District of Massachusetts, Nancy Gertner, J., dismissed complaint, and gambler appealed. The Court of Appeals held that gambler did not have private cause of action under ICRA. Affirmed.

Kennedy v. Hughes
2003 WL 1384027, Docket No. 02-2112
10th Cir., March 20, 2003.

Subjects: Pueblo of Santa Clara, New Mexico -- Officials and employees; Civil rights; United States. Indian Civil Rights Act (25 USC 70 et seq.); Searches and seizures -- Pueblo of Santa Clara, New Mexico; Property; Imprisonment -- Pueblo of Santa Clara, New Mexico.

*Synopsis: Members of Indian tribes filed suit against tribal officials claiming violations of their civil and constitutional rights as protected by Indian Civil Rights Act (ICRA). The United States District Court for the District of New Mexico dismissed complaint, and members appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that members did not have private right of action under ICRA. Affirmed.

United States v. Santee Sioux Tribe of Nebraska
324 F 3d. 607, Docket No. 02-1503.
8th Cir., March 20, 2003

Subjects: Indian gaming -- Class II; Indian gaming -- Class III; Gambling on Indian reservations; Casinos -- Santee Sioux Tribe of the Santee Reservation of Nebraska; United States. Indian Gaming Regulatory Act; United States. Johnson Act (15 USC 1171-1178); Machinery --9 Defined.

*Synopsis: Indian-owned casino, which had replaced class III gaming devices, illegal under Indian Gaming Regulatory Act (IGRA), with Lucky Tab II machines, sought relief from prior order of contempt which had been imposed on basis of its use of the class III devices. The United States District Court for the District of Nebraska, Joseph F. Bataillon, J., 174 F.Supp.2d 1001, granted relief, and government appealed. Affirmed.

*Holding: The Court of Appeals, Beam, Circuit Judge, held that (1) operation of Lucky Tab II machines did not violate Johnson Act, and (2) Lucky Tab II was not a class III gaming device.

United States v. Long
2003 WL 1400831, Docket No. 02-1473.
7th Cir., March 20, 2003

Subjects: Double jeopardy; Jurisdiction -- Menominee Indian Tribe of Wisconsin; Jurisdiction -- United States; Theft; Malicious mischief.

*Synopsis: Following his conviction in an Indian tribal court of theft and malicious mischief, defendant was indicted by a federal grand jury on charges arising out of the same theft, and moved to dismiss on double jeopardy grounds, or for abstention.

*Holding: The United States District Court for the Eastern District of Wisconsin, Lynn Adelman, J., 183 F.Supp.2d 1106, dismissed the indictment. Government appealed. The Court of Appeals, Diane P. Wood, Circuit Judge, held that as a matter of first impression, successive prosecutions by an Indian tribal court and the federal government, in which tribal prosecution was undertaken by a tribe that was the subject of an Act of Congress terminating federal supervision over the property and members of the tribe, and whose powers were later legislatively restored, fell within the dual sovereignty exception to the Double Jeopardy Clause. Reversed and remanded.

Daugherty v. Thompson
322 F.3d 1249, Docket No. 02-7015
9th Cir., March 18, 2003

Subjects: United States. Indian Child Protection and Family Violence Prevention Act (25 U.S.C. 3201); Constitutionality; Employees -- Dismissal of; Discrimination in employment; Nurses. United States. Indian Health Service.

*Synopsis: Former clinical nurse sought review of final decision of the Merit Systems Protection Board, 86 M.S.P.R. 501, sustaining his removal from Indian Health Service (IHS) of Department of Health and Human Services (HHS). Former nurse also alleged that he was the victim of unlawful employment discrimination because of his history of alcoholism and that he was retaliated against for having filed an employment discrimination claim.

*Holding: The United States District Court for the Eastern District of Oklahoma, H. Payne, J., granted summary judgment to defendants, and nurse appealed. The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that: (1) Indian Child Protection and Family Violence Prevention Act did not violate employee's due process rights, and (2) substantial evidence supported decision of the MSPB that nurse was lawfully removed from his employment.
Affirmed.

Burlington Northern Santa Fe Railroad Company v. the Assiniboine and Sioux Tribes of the Fort Peck Reservation
2003 WL 1193201, Docket No. 01-35681
9th Cir., March 17, 2003

Subjects: Ad valorem tax; Railroads -- Right of way; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Burlington Northern Santa Fe Railroad; Burlington Northern Railroad Company.

*Synopsis: Railroad sought injunctive relief from ad valorem tax imposed by Indian tribes on trains crossing reservation. The United States District Court for the District of Montana, Jack D. Shanstrom, J., granted railroad's motion for summary judgment. Tribes appealed.

*Holding:The Court of Appeals, Berzon, Circuit Judge, held that: (1) claim preclusion (res judicata) did not bar railroad's challenge to tax; (2) additional discovery was not warranted with respect to Montana exception which allowed tribes to tax activities of nonmembers who entered consensual relationships with the tribes or its members; but (3) failure to grant tribes' motion for additional discovery with respect to issue of threat to tribes' political integrity, economic security, health, or welfare, was abuse of discretion. Vacated and remanded. Gould, Circuit Judge, filed concurring opinion.

Chippewa Trading Company v. Granholm
2003 WL 23997327, No. 2:02-CV-68
United States District Court, W.D. Michigan, Northern Division, March 28, 2003

Subjects: Due process of law; Tobacco -- Taxation; Law -- Michigan; Chippewa Trading Co. (Mich.); Michigan. Tobacco Products Tax Act; Constitutional law; Rule of law.

*Synopsis: (from the opinion) This case involves a facial due process challenge to the Michigan Tobacco Products Tax Act ("TPTA"), M.C.L. 205.421 et seq., brought by plaintiff Chippewa Trading Company ("Chippewa Trading") against defendants Jennifer M. Granholm and June Summers Haas....and raised further constitutional challenges to the TPTA under the Supremacy Clause and the Indian Commerce Clause, to which defendant responded.

*Holding: not yet available

In re Frank-Hill
300 B.R. 25, No. 01-1636-PCT-SSC
United States Bankruptcy Court,D. Arizona, March 24, 2003.

Subjects: not yet available

*Synopsis: Chapter 7 trustee moved to compel turnover of assets.

*Holding: The Bankruptcy Court, Sarah Sharer Curley, Chief Judge, held that debtor's beneficial interest, as sole heir of Native American grandfather who died intestate, in funds of grandfather that had been placed in restricted Individual Indian Money (IIM) account held in trust by the Department of the Interior was not included in property of the estate, as being subject to restrictions on transfer “enforceable under applicable nonbankruptcy law.”
Motion denied.

Flodine v. State Farm Insurance Co.
2003 WL 1394977, No. 99 C 7466.
United States District Court, N.D. Illinois, Eastern Division, March 19, 2003.

Subjects: Business enterprises; Arts and crafts; Natural Wonders; State Farm Insurance Companies; Insurance, Business; Indemnity against liability; Advertising.

*Synopsis: (from the opinion) Plaintiff Nancy Flodine, who manufactures and sells "Southwestern-style" arts and crafts under the business name Natural Wonders, was insured by State Farm Fire and Casualty Company ("State Farm") pursuant to a business liability insurance policy. Flodine was named as a third-party defendant by J.C. Penney Co., Inc. ("Penney") in a lawsuit brought by Native American Arts, Inc. ("NAA") entitled Ho-Chunk Nation, et al. v. J.C. Penney Co., No. 98 C 3924 (N.D.Ill.) ("Penney litigation"). Flodine tendered to State Farm Penney's second amended third-party complaint ("SATPC") and State Farm denied coverage, asserting that the SATPC did not allege an "advertising injury" under the policy. After State Farm refused coverage, Flodine filed this declaratory judgment action seeking a determination that her insurance policy covered Penney's claims against her and that State Farm owed her duties of defense and indemnity with respect to the Penney litigation. On cross motions for judgment on the pleadings, this court held that State Farm had a duty to defend Flodine in the Penney litigation. Both parties now move for summary judgment on the issue of indemnity. For the reasons explained below, plaintiff's motion for summary judgment is granted in part and denied in part.
Defendant State Farm's motion for summary judgment is denied.

*Holding: not yet available

Bitsilly ex rel. Denet-Yazzie v. Bureau Of Indian Affairs
253 F.Supp.2d 1257, No. CIV 99-1390 LH/RLP.
United States District Court, D. New Mexico, March 17, 2003.

Subjects: Indian children; United States. Bureau of Indian Affairs; Right to education; Schools; United States. Tribally Controlled Schools Act of 1988 (25 USC 2501); Standing to sue.

*Synopsis: Indian children brought action against Bureau of Indian Affairs (BIA) and Department of the Interior for compensatory and injunctive relief based on allegations that they were deprived of a free appropriate public education (FAPE) at schools operated by either BIA or local communities or tribal entities under the Tribally Controlled Schools Act (TCSA).

*Holding: Upon defendants' motion to dismiss, the District Court, Hansen, J., held that:
(1) children had standing to bring claims for compensatory damages but not for injunctive relief, and
(2) neither tribally controlled schools nor tribal entities that administered them was a necessary party.
Motion granted in part and denied in part.

Cobell v. Norton
214 F.R.D. 13, No. CIV.A.96-1285 (RCL).
United States District Court, District of Columbia, March 11, 2003.

Subjects: IIM (Individual Indian Monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting.

*Synopsis: This matter comes before the Court on plaintiffs' motion for sanctions and a contempt finding pursuant to Rule 56(g) [1129-1], which was filed on February 15, 2002. Also before the Court is plaintiffs' consolidated motion for leave to amend the motion for sanctions [1326-1] and motion to amend [1326-2], which were filed on June 4, 2002.

*Holding: Upon consideration of plaintiffs' motions, defendants' opposition briefs thereto, plaintiffs' reply briefs, and the applicable law in this case, the Court finds that plaintiffs' motion for sanctions should be granted in part and denied in part, and that plaintiffs' motions for leave to amend and to amend should be denied.

February

Brown & Williamson Tobacco Corporation V. Pataki
2003 WL 303038, Docket Nos. 01-7806, 01-7813.
United States Court of Appeals, Second Circuit, Feb. 13, 2003.

Subjects: Cigarette vendors; Tobacco -- Transportation; Constitutional law -- New York; Public health -- Law and legislation -- New York; Interstate commerce; Santa Fe Natural Tobacco; Brown & Williamson; BWTDirect.

*Synopsis: Governor and other State officials appealed from a judgment entered in the United States District Court for the Southern District of New York, Loretta A. Preska, J., 2001 WL 636441, which struck down as unconstitutional section of New York's Public Health Law prohibiting cigarette sellers and common and contract carriers from shipping and transporting cigarettes directly to New York consumers.

*Holding: The Court of Appeals, Miner, Circuit Judge, held that statute did not violate dormant Commerce Clause.

Hartman v. Kickapoo Tribe Gaming Commission
319 F.3d 1230, Docket No. 01-3400
10th Cir., February 11, 2003

Subjects: Card dealers -- Licenses; Card dealers -- Suspension; Due process of law; Kickapoo Traditional Tribe of Texas; National Indian Gaming Commission (U.S.); Kansas; Gaming

*Synopsis: Card dealer sued Kickapoo Tribe , State of Kansas, National Indian Gaming Commission (NGIC), and others, asserting various claims arising from suspension of her gaming license without hearing. The United States District Court for the District of Kansas, Saffels, J., 176 F.Supp.2d 1168, dismissed complaint. Card dealer appealed.

*Holding: The Court of Appeals, Kelly, Circuit Judge, held that: (1) Indian Gaming Regulatory Act (IGRA) implied no private right of action in favor of card dealer; (2) card dealer was required to exhaust tribal remedies before suing Tribe ; (3) card dealer failed to state cause of action under § 1983; and (4) Eleventh Amendment barred claims against State.

Norton Sound Health Corp. v. Thompson
55 Fed.Appx. 835 (Unpublished), Docket No. 01-35804
9th Cir., February 6, 2003

Subjects: Alaska Native villages -- Medical care; Health facilities -- Prospective payment; Contracts; Medical care, Cost of; United States. Dept. of Health and Human Services; United States. Indian Health Service

*Synopsis: Consortium of Alaska Native Villages brought suit against Secretary of Health and Human Services (HHS) and Director of Indian Health Service (IHS) seeking determination of its right to reimbursement for certain contract support costs associated with providing health care services. The United States District Court for the District of Alaska, H. Russel Holland, J., entered summary judgment for government. Consortium appealed.

*Holding: The Court of Appeals held that genuine issues of fact as to whether consortium's right to reimbursement was conditioned upon congressional appropriations to specific fund and as to whether IHS actually allocated monies from lump-sum appropriation to fund, precluded summary judgment. Reversed and remanded.

State of South Dakota ex rel Barnett v. US Dept. of Interior
317 F.3d 783, Docket No. 01-3611
8th Cir., February 3, 2003

Subjects: Lands -- Restricted and trust lands; United States. Dept. of the Interior; Intervention (International law); Sovereignty; South Dakota

*Synopsis: State, city, and county brought action for declaratory and injunctive relief against the United States Department of Interior and others, seeking to prevent United States from placing certain parcel of land into trust on behalf of Indian tribe. The United States District Court for the District of South Dakota, Richard H. Battey, J., denied tribe's motions to intervene as matter of right and for permissive intervention. Tribe appealed.

*Holding: The Court of Appeals, Hansen, Circuit Judge, held that: (1) tribe thus would not be allowed to intervene as of right, since United States could adequately protect tribe's interests, and (2) District Court did not abuse its discretion in denying permissive intervention to tribe. Affirmed.

Related News Stories: Court says U.S. can protect tribe's interests (Indianz.com) 2/4/03

Match-E-Be-Nash-She-Wish Band Of Pottawatomi Indians v. Kean-Argovitz Resorts, Kean Argovitz Resorts-Michigan, LLC
249 F.Supp.2d 901, No. 1:02-CV-194.
United States District Court, W.D. Michigan, Southern Division, Feb. 19, 2003.

Subjects: Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Casinos -- Design and construction; Kean-Argovitz Resorts; National Indian Gaming Commission (U.S.); Gaming; Contracts -- Federal approval of.

*Synopsis: Indian tribe which had unilaterally terminated its contract with a casino development and management company sought declaratory and injunctive relief to restrain company from attempting to enforce arbitration clause in development agreement. Company filed counterclaim and parties cross-moved for summary judgment.

*Holding: The District Court, Quist, J., held that:
(1) management agreement was void ab initio under Indian Gaming Regulatory Act (IGRA);
(2) development agreement was collateral to management agreement and thus void ab initio; and
(3) arbitration clause was void.
Plaintiff's motion granted.

Seneca Nation Of Indians, United States v. State Of New York
213 F.R.D. 131, No. 85-CV-411C.
United States District Court, W.D. N.Y., Feb. 7, 2003.

Subjects: Intervention (Civil procedure)-- Seneca Nation of New York; Joinder of parties -- Seneca Nation of New York.

*Synopsis: Indian tribe moved to intervene or for joinder as a necessary party, following grant of summary judgment as to liability, 26 F.Supp.2d 555, for second tribe in that tribe's action, in which United States had intervened as plaintiff, for damages, ejectment, and declaratory relief with respect to former reservation lands allegedly illegally appropriated by State of New York.

*Holding: The District Court, Curtin, J., held that
(1) motion to intervene was untimely, and
(2) movant tribe was not a necessary and indispensable party.
Motion denied.

January

United States v. Antoine
318 F.3d 919, Docket No. 02-30008
9th Cir., January 31, 2003

Subjects: Indians of Canada; Eagles; Feathers; Birds, Protection of -- Law and legislation -- United States; Bald eagle -- Law and legislation -- United States; Golden eagle -- Law and legislation -- United States; United States. Bald and Golden Eagle Protection Act (16 USC 669); United States. Religious Freedom Restoration Act of 1993.

*Synopsis: Member of Cowichan Band of the Salish Indian Tribe in British Columbia was convicted in the United States District Court for the Western District of Washington, Thomas S. Zilly, J., of violating the Bald and Golden Eagle Protection Act (BGEPA). Defendant appealed.

*Holding: The Court of Appeals, Kozinski, Circuit Judge, held that conviction did not violate Religious Freedom Restoration Act (RFRA), even though defendant was not eligible for permit because he was not member of recognized tribe.

*Related New Stories: Conviction of Indian man for eagle feathers upheld (Indianz.com) 2/3

Gaming World International v. White Earth Band of Chippewa Indians
317 F.3d 840, Docket No.01-3040
8th Circuit, January 24, 2003

Subjects: White Earth Band, Minnesota Chippewa Tribe, Minnesota; Gaming Word International, Ltd.; Civil jurisdiction -- Exhaustion of tribal remedies; Gaming; Casinos; Tribal courts.

*Synopsis: Casino operating company sought declaratory relief and arbitration in dispute with Indian tribe over agreement to construct and operate casino. The United States District Court for the District of Minnesota, James Rosenbaum, J., granted motion to compel arbitration.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that (1) federal court had jurisdiction, and (2) exhaustion of tribal court remedies was required.
Reversed and remanded with instructions.

Michigan Dept. Environmental Quality v. United States E.P.A.
2003 WL 151531 , Docket No.01-3040
6th Circuit, January 23, 2003

Subjects: Michigan. Dept. of Environmental Quality; United States. Environmental Protection Agency; United States. Environmental Appeals Board; Sewage; Water -- Waste; Environmental permits.

*Synopsis: Michigan Department of Environmental Quality petitioned for review of order of the United States Environmental Protection Agency (EPA), Environmental Appeals Board.

*Holding: The Court of Appeals, Merritt, Circuit Judge, held that Michigan Department of Environmental Quality procedurally defaulted at the administrative appeals level its objections to the actions of the EPA Administrator by failing to identify with sufficient clarity and specificity its objections to issuance of wastewater permit.
Petition for review denied.

NLRB v. Chapa De Indian Health Program
2003 WL 124703, Docket No. 01-3611
9th Cir., January 16, 2003

Subjects: Medical care; Health facilities; Chapa De Indian Health Program; National Labor Relations Board (US); Labor laws and legislation; US National Labor Relations Act (NLRA) (29 USC 151); Sovereignty -- Tribal; Civil jurisdiction; Federal authority over Indian affairs.

*Synopsis: Tribal health care organization appealed from order of the United States District Court for the Eastern District of California, Lawrence K. Karlton, J., enforcing National Labor Relations Board (NLRB) subpoenas.

*Holding: The Court of Appeals, Rymer, Circuit Judge, held that: (1) National Labor Relations Act (NLRA) was statute of general applicability that could be applied to Indian tribes and tribal organizations; (2) applying NLRA to organization did not impermissibly touch on intramural matters that affected right to tribal self- governance; (3) NLRB did not plainly lack jurisdiction over the organization, precluding judicial intervention regarding enforcement of NLRB subpoenas prior to the NLRB's own determination of its jurisdiction.
Affirmed.

Tunica-Biloxi Indians Of LA v. Pecot
248 F.Supp.2d 576, No. CIV.A.02-1512.
United States District Court, W.D. Louisiana, Alexandria Division, Jan. 30, 2003

Subjects: Molds (Fungi); Microbial contamination; Casinos -- Tunica-Biloxi Indian Tribe of Louisiana; Hotels -- Tunica-Biloxi Indian Tribe of Louisiana; Jurisdiction -- Exhaustion of tribal remedies; Jurisdiction -- Tunica-Biloxi Indian Tribe of Louisiana.

*Synopsis: Following discovery of mold contamination in hotel addition to casino, Indian tribe brought state court and tribal court actions against subcontractors and their insurers. Defendants filed notice of removal and tribe moved to remand or for abstention.

*Holding: The District Court, Little, J., held that:
(1) case was properly before federal court;
(2) challenge to procedural defects in removal process were waived; and
(3) abstention pending exhaustion of tribal remedies was appropriate.
Motions granted in part and denied in part.

Davis v. Strata Corp.
242 F.Supp.2d 643, No. A4-01-83.
United States District Court, D. North Dakota, Jan. 24, 2003.

Subjects: Discrimination in consumer credit; Indian business enterprises; Race discrimination; United States. Fair Housing Act.

*Synopsis: Native American business owner brought action against concrete company, alleging that company's credit policy constituted form of racial discrimination.

*Holding: Oncompany's motion for summary judgment, the District Court, Hovland, Chief Judge, held that:
(1) business owner could not maintain claims under Fair Housing Act (FHA) and statutes prohibiting racial discrimination in receiving assistance from federal programs and engaging in property transactions, but
(2) fact issues regarding whether company discriminated against business owner in forming contracts and establishing credit policy precluded summary judgment.

Native American Arts, Inc. v. The Waldron Corporation
253 F.Supp.2d 1041, No. 01 C-2370.
United States District Court, N.D. Illinois, Eastern Division, Jan. 22, 2003.

Subjects: Jewelry stores; United States. Indian Arts & Crafts Act (25 USC 305); Standing to sue; Retroactive laws; Native American Arts (U.S.). Indian arts; Indian craft; Indian handicraft industries.

*Synopsis: Native American arts and crafts organization brought action against jewelry seller, alleging violation of Indian Arts and Crafts Act (IACA).

*Holding: On defendant's objections to plaintiff's proposed jury instructions, the District Court, St. Eve, J., held that:
(1) amendment to IACA, included in instruction, was not substantive, but
(2) Act amendment, giving Native American arts and crafts organization standing to sue for violations, was not retroactively applicable.
Objections overruled in part and sustained in part.

Tomac v. Norton
240 F.Supp.2d 45, No. CIV.A. 01-0398(JR).
United States District Court, District of Columbia, Jan. 21, 2003.

Subjects: Casinos -- Design and construction; Cities and towns -- Growth; Pokagon Band of Potawatomi Indians of Michigan; United States. Bureau of Indian Affairs; Trust or restricted lands; Environmental impact analysis. Wetlands -- Michigan; Endangered species -- Michigan.

*Synopsis: Organization of taxpayers against casinos brought action challenging decision by Bureau of Indian Affairs (BIA) to take land into trust so that Pokagon Band of Potawatomi Indians could build casino.

*Holding: On government's motion for summary judgment, the District Court, Robertson, J., held that:
(1) BIA took requisite "hard look" at environmental impacts of proposed casino upon wetlands, threatened species and endangered species, but
(2) BIA failed adequately to analyze potential impacts of casino upon local growth and development.

Cobell v. Norton
237 F.Supp.2d 71, No. CIV.A. 96-1285(RCL).
United States District Court, District of Columbia, Jan. 17, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Disqualification of judges.

*Synopsis: In action alleging that Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging Individual Indian Money (IIM) trust accounts, 13 motions were brought to disqualify presiding judge, special master, and special master-monitor from participating in proceedings against 39 present or former government employees, or, in the alternative, for full discovery relating to alleged ex parte communications among the master, the monitor, other government employees, and the Court.

*Holding: The District Court, Lamberth, J., held that:
(1) disqualification of special master was not warranted;
(2) disqualification of district judge was not warranted;
(3) disqualification of monitor was not warranted; and
(4) discovery of special masters as to off-the-record consultations with the Court was not warranted.
Motions denied.

Prairie Band Potawatomi Nation v. Richards
241 F.Supp.2d 1295, No. 99-4071-JAR.
United States District Court, D. Kansas, Jan. 15, 2003

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; United States -- Jurisdiction; Standing to sue -- Prairie Band of Potawatomi Indians, Kansas; United States. Hayden-Cartwright Act; Kansas. Act for Admission.

*Synopsis: Indian tribe brought action for declaratory and injunctive relief from state's collection of motor fuel tax from distributors delivering fuel to reservation. State moved for summary judgment.

*Holding: The District Court, Robinson, J., held that:
(1) Court had jurisdiction to hear tribe's claim;
(2) tribe had standing to bring action;
(3) Hayden-Cartwright Act did not amount to Congressional authorization for states to impose fuel tax on fuel delivered to Indian reservations;
(4) state was not barred by federal preemption from imposing tax;
(5) tribe's interest in raising revenues did not outweigh state's interests; and
(6) Kansas Act for Admission did not bar imposition of tax.

Center For Biological Diversity v. Norton
240 F.Supp.2d 1090, No. CV 01-409 TUCDCB.
United States District Court, D. Arizona, Jan. 13, 2003.

Subjects: Mexican spotted owl; Wildlife habitat improvement -- Arizona; Wildlife conservation -- Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; United States. Endangered Species Act of 1973; Center for Biological Diversity; U.S. Fish and Wildlife Service.

*Synopsis: Environmental group brought action under Endangered Species Act (ESA), challenging adequacy of Fish and Wildlife Service's (FWS's) designation of critical habitat for Mexican spotted owl.

*Holding: On cross-motions for summary judgment, the District Court, Bury, J., held that:
(1) land may not be excluded from critical habitat designation on ground adequate management or protection for endangered species is already in place there;
(2) FWS, wishing to exclude Indian tribe's land from habitat designation on ground that benefit of allowing tribe to pursue its own management plan outweighed any benefit from designation, was required to produce tribe's plan for public comment; and
(3) land currently unoccupied by owl, but essential for its conservation, had to be included in designated habitat.

Hartman v. Golden Eagle Casino
243 F.Supp.2d 1200, Nos. 01-4128-RDR, 01-4129-RDR.
United States District Court, D. Kansas, Jan. 8, 2003

Subjects: Discrimination in employment; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas. Golden Eagle Casino; United States. Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.); Sovereign immunity -- Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas.

*Synopsis: In consolidation of Title VII actions brought by former employees, alleging discrimination by Indian-owned and -operated casino, defendants moved to dismiss.

*Holding: The District Court, Rogers, J., held that tribe enjoyed sovereign immunity from claims.

Tenney v. Iowa Tribe Of Kansas
243 F.Supp.2d 1196, No. 02-4040-RDR.
United States District Court, D. Kansas, Jan. 7, 2003

Subjects: Discrimination in employment; Casinos -- Iowa Tribe of Kansas and Nebraska; Jurisdiction -- United States; Jurisdiction -- Civil actions arising in Indian Country (U.S.).

*Synopsis: Former employee brought employment discrimination action against casino owned and operated by Indian tribe. Defendants moved to dismiss.

*Holding: The District Court, Rogers, J., held that court lacked jurisdiction.

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