2004 Federal Courts Cases

December

Midwater Trawlers v. Dep't of Commerce
393 F.3d 99
Docket No. 03-35398
United States Court of Appeals, Ninth Cir., December 28, 2004.

Subjects: Pacific hake fisheries; Pacific hake; Resource allocation -- Makah Indian Tribe of the Makah Indian Reservation, Washington; Fishing rights -- Makah Indian Tribe of the Makah Indian Reservation, Washington; United States. Magnuson-Stevens Fishery Conservation and Management Act; United States. Administrative Procedure Act; United States. Dept. of Commerce; Midwater Trawlers Cooperative; West Coast Seafood Processors (Or.); Fishermen's Marketing Association (Calif.).

*Synopsis: States of Oregon and Washington and fishing industry groups brought action against Department of Commerce, challenging decisions of National Marine Fisheries Service (NMFS) allocating catches of Pacific Whiting to Makah Indian Tribe. Following remand, 173 F.3d 1158, fishing industry groups and State of Oregon brought separate action challenging increase in allocation to Tribe, and such action was consolidated with remanded action. Following another remand, 282 F.3d 710, the United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., entered summary judgment for Department of Commerce. Fishing industry groups appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that:
(1) sliding scale methodology, not biomass methodology, was best scientific information available for allocating Pacific whiting between tribal and nontribal fishers;
(2) NMFS complied with notice requirements of Administrative Procedure Act (APA) and with remand order requiring it to promulgate new allocation; and
(3) District Court did not abuse its discretion when it permitted NMFS to supplement record.Affirmed.

The Western Mohegan Tribe and Nation v. Orange County
395 F.3d 18
Docket No. 04-0449-CV
United States Court of Appeals, Second Cir., December 23, 2004.

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: Western Mohegan Tribe and Nation sued State of New York and its Governor, alleging that they were wrongly in possession of land contained in ten New York counties, in violation of federal common law and Indian Trade and Intercourse Act. The United States District Court for the Southern District of New York, Brieant, J., dismissed action. Tribe appealed.

*Holding: The Court of Appeals held that claim against Governor was functional equivalent of action to quiet title, and thus was not subject to Ex parte Young exception to Eleventh Amendment. Affirmed.

Zuni Public School Dist. No. 89 v. U.S. Dept. of Education
393 F.3d 1158
Docket No. 01-9541
United States Court of Appeals, Tenth Cir., Dec. 30, 2004.

Subjects: Zuni (N.M.). School District; Gallup-McKinley County Schools; Zuni Tribe of the Zuni Reservation, New Mexico; New Mexico; Government aid to education -- United States; Zuni Public School District 89; Gallup-McKinley County Public School District No. 1; Educational equalization -- New Mexico; Schools -- Finance -- New Mexico; Impact aid -- New Mexico; United States. Dept. of Education -- Officials and employees -- Powers and duties.

*Synopsis: Two local educational agencies (LEAs) sought judicial review of decision in which the Secretary of the United States Department of Education (DOE) certified that State of New Mexico had program of state aid that equalized expenditures for free public education among state's LEAs, thereby permitting state to factor in receipt of federal Impact Aid funds when making its own distributions of educational aid to its LEAs.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) statute setting forth disparity standard to be used by DOE in certifying state's equalization was ambiguous;
(2) DOE's construction of statute setting forth disparity standard was permissible, warranting judicial deference; and
(3) LEA failed to preserve for appeal issue of whether state's offsets complied with regulation requiring proportionality determinations to be made on case-by-case basis. Petition for review denied. O'Brien, Circuit Judge, dissented and filed a separate opinion.

United States v. Orr Water Ditch Co.
391 F.3d 1077
Docket Nos. 03-16654, 03-16941
United States Court of Appeals, Ninth Cir., Dec. 14, 2004.

Subjects: Orr Water Ditch Co. (Nev.); Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Water rights -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Water rights -- Nevada; Water transfer -- Nevada; Law -- Nevada.

*Synopsis: After the Nevada State Engineer approved in part the applications of the United States and an Indian tribe to make temporary changes to two water rights, city and irrigation district appealed the ruling to a federal court. The United States District Court for the District of Nevada, Lloyd D. George, J., applied Nevada statute providing for an automatic stay of such a ruling. United States and tribe appealed.

*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that District Court was required to apply Nevada statute rather than federal rule governing the availability of injunctions. Affirmed.

United States v. Anderson
391 F.3d 1083
Docket Nos. 03-10516.
United States Court of Appeals, Ninth Cir., December 14, 2004.

Subjects: Exclusive jurisdiction -- California; Jurisdiction -- California; Criminal actions arising in Indian Country (U.S.); Jurisdiction -- United States; Robinson Rancheria of Pomo Indians of California -- Members.

*Synopsis: Defendant, a member of an Indian tribe, appealed his conviction, in the United States District Court for the Northern District of California, William H. Alsup, J., of theft and conspiracy to commit theft against an Indian tribal organization, mail fraud and wire fraud.

*Holding: The Court of Appeals, Rymer, Circuit Judge, held that California did not have exclusive jurisdiction over tribe member who committed federal offenses of theft and conspiracy to commit theft from a tribal organization.
Affirmed.

Cobell v. Norton
392 F.3d 461
Docket No. 03-5314
United States Court of Appeals, District of Columbia Cir., December 10, 2004.

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

*Synopsis: Members of Indian tribes and present or past beneficiaries of individual Indian money (IIM) accounts filed a class action, alleging that Secretaries of the Interior and the Treasury, and the Assistant Secretary of the Interior for Indian Affairs had grossly mismanaged those accounts. The United States District Court for the District of Columbia, Lamberth, J., 283 F.Supp.2d 66, issued injunction ordering a complete historical accounting of trust fund assets, and to provide a comprehensive statement of the manner in which trust management would be conducted after Interior's proposed internal changes, and governmental defendants appealed.

*Holding: The Court of Appeals, Williams, Senior Circuit Judge, held that:
(1) statute prohibiting Department of Interior from being required, under any statute or common law principle, to engage in a historical accounting of Indian trust funds did not amount to a "legislative stay" of a final judicial injunction ordering a complete historical accounting of trust fund assets in violation of separation of powers principles;
(2) portion of injunction requiring Department of the Interior to submit a plan to fulfill its fiduciary obligations regarding management of IIM accounts, did not exceed court's jurisdiction under Administrative Procedure Act (APA) to extent that order continued or logically extended original order to file a comprehensive plan, however, injunction was invalid insofar as it directed Interior, rather than Indian plaintiffs, to identify defects in its proposal and required the agency to comply with the comprehensive plan;
(3) appointment of a monitor to report on Department of the Interior defendants' compliance with injunction requiring defendants to "fix the system" exceeded the scope of the district court's authority; and
(4) court's authority was limited to considering specific claims that Deprtment of Interior breached particular statutory trust duties, understood in light of the common law of trusts, and to ordering specific relief for those breaches.
Vacated in part and remanded.

Commanche Indian Tribe of Oklahoma v. 49, L.L.C.
391 F.3d 1129
Docket No. 02-8108
United States Court of Appeals, Tenth Cir., December 9, 2004.

Subjects: Arbitration (Administrative law)-- United States; Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe);49 LLC; Indian gaming -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Gambling on Indian reservations -- Oklahoma; Casinos -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Machinery.

*Synopsis: Indian tribe brought breach of contract action against lessor of gaming machines that tribe offered for play at its casinos, which were located on tribal land. Lessor submitted demand for arbitration, and tribe moved to dismiss demand for arbitration. The United States District Court for the Western District of Oklahoma, David L. Russell, J., stayed proceedings and compelled arbitration, and tribe appealed.

*Holding: The Court of Appeals, Tymkovich, Circuit Judge, held that:
(1) parties' contracts related to and affected interstate commerce, and thus came within ambit of the Federal Arbitration Act, and
(2) District Court's order staying proceedings pending arbitration, rather than dismissing case, was not an appealable final decision.
Appeal dismissed.

Grynberg v. Koch Gateway Pipeline Co.
390 F.3d 1276
Docket No. 02-8108
United States Court of Appeals, Tenth Cir., December 7, 2004.

Subjects: Oil and gas leases -- Indian Country (U.S.); Fraud; Natural gas -- Measurement; Trusts and trustees -- Accounting; United States. False Claims Act; United States.

*Synopsis: Relator brought qui tam action under False Claims Act against gas producer that had allegedly defrauded United States by fraudulently measuring natural gas it produced on federal and Indian land and underpaying royalties to United States as a result. The United States District Court for the District of Wyoming dismissed action, and relator appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that action was barred by Act's first-to-file bar. Affirmed.

Cobell v. Norton
391 F. 3d 251
Docket Nos. 03-5262 and 04-5084
United States Court of Appeals, DC Cir., December 3, 2004.

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

*Synopsis: Beneficiaries of individual Indian money (IIM) trust accounts brought action against Secretary of Interior, Secretary of Treasury and other trustees seeking declaratory and injunctive relief from alleged mismanagement of trust accounts under Indian Trust Fund Management Reform Act. The United States District Court for the District of Columbia, Royce C. Lamberth, 310 F.Supp.2d 98, entered preliminary injunction requiring Department of Interior to disconnect computers from Internet until it could certify security of trust account data. Department appealed.

*Holding: The Court of Appeals, Rogers, Circuit Judge, held that injunction was abuse of discretion to extent that it placed burden of persuasion on Department, disregarded Department's certifications on state of its computer security, and failed to hold evidentiary hearing on issue. Vacated and remanded.

Related News Stories and Other Information: Judge's Plan Faulted in Indian Trust Case (The Washington Post) 10/13/04, Slap on the wrist for Lamberth is a grand slam for trust plaintiffs (Indian County Today) 12/10/04. Appraiser warned DOI of undervaluation of Indian lands (Indianz.com) 12/6/04, also www.indiantrust.com

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

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

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

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

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

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

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

*Holding: not yet available

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

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

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

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

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

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

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

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

November

Northern Arapaho Tribe v. State of Wyoming
389 F.3d 1308
Docket Nos. 02-8026, 02-8031
United States Court of Appeals, Tenth Cir., Nov. 23, 2004.

Subjects: Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Wyoming; United States. Indian Gaming Regulatory Act; Intergovernmental agreements; Indian gaming -- Class III -- Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Gambling on Indian reservations -- Wyoming; Casinos -- Northern Arapaho Tribe of the Wind River, Reservation, Wyoming; Negotiation.

*Synopsis: Indian tribe sued state, alleging failure to negotiate in good faith in violation of Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of Wyoming, Johnson, J., 2002 WL 31961497, partially granted summary judgment for tribe, and cross-appeals were taken.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) state was required to negotiate compact with Indian tribe concerning full gamut of calcutta and paramutual wagering, and
(2) state was required to negotiate compact with Indian tribe concerning full gamut of casino-style Class III gambling.
Affirmed in part and reversed in part.

Wodruff v. Covington
389 F.3d 1117
Docket Nos. 02-7040, 02-7051
United States Court of Appeals, Tenth Cir., Nov. 17, 2004.

Subjects: United States. Federal Tort Claims Act; Medical personnel -- Malpractice; Central Oklahoma American Indian Health Council; Carl Albert Indian Health Facility ("Carl Albert Hospital") (Okla.); United States; United States -- Officials and employees; United States. Indian Health Care Improvement Act.

*Synopsis: Former patient brought action under Federal Tort Claims Act (FTCA) against United States, two medical facilities, and physician, alleging defendants' negligence resulted in the surgical removal of his bladder. The United States District Court for the Eastern District of Oklahoma, 189 F.Supp.2d 1283, Frank H. Seay, J., denied physician's motion to dismiss, and appeal was taken.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) physician's notice of appeal of district court's denial of immunity was timely;
(2) district court orders denying motions to dismiss on immunity grounds were immediately appealable under the collateral order doctrine;
(3) physicians were not entitled to immunity as federal employees under the FTCA; and
(4) congress did not expressly extend FTCA immunity to independent contracting physicians practicing at Indian health care facility.
Affirmed.

Cherokee Nation of Oklahoma v. Norton
389 F.3d 1074
Docket No. 03-5055
United States Court of Appeals, Tenth Cir., Nov. 16, 2004.

Subjects: Federal recognition of Indian tribes -- Delaware Tribe of Indians, Oklahoma; Restorations, Political -- Delaware Tribe of Indians, Oklahoma; Cherokee Nation of Oklahoma; United States. Dept. of the Interior; United States. Federally Recognized Indian Tribe List Act.

*Synopsis: Cherokee Nation of Oklahoma brought action challenging decision of Department of the Interior (DOI) to recognize Delaware Tribe of Indians as tribal entity separate form Cherokee Nation. Following remand, 117 F.3d 1489, and transfer to the United States District Court for the Northern District of Oklahoma, the District Court, Holmes, J., 241 F.Supp.2d 1368, sustained DOI's decision. Cherokee Nation appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that: (1) DOI's decision violated Federally Recognized Indian Tribe List Act, and (2) DOI's decision was arbitrary and capricious. Reversed. Seymour, Circuit Judge, filed concurring opinion.

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft
389 F.3d 973
Docket No. 02-2323
Cert Granted (04/18/05) U.S. Supreme Court
United States Court of Appeals, Tenth Cir., November 12, 2004.

Subjects: União do Vegetal -- Rituals; United States; United States. Controlled Substances Act; Hoasca; Hallucinogenic plants.

*Synopsis: Members of religious organization brought action against United States seeking preliminary injunction to enjoin government from enforcement of Controlled Substances Act (CSA) as it pertained to importation, possession, and distribution of hoasca for religious ceremonies. The United States District Court for the District of New Mexico, James A. Parker, J., granted preliminary injunction, and government appealed. The United States Court of Appeals for the Tenth Circuit, 342 F.3d 1170, affirmed.

*Holding: On en banc review, the Court of Appeals held that a movant seeking a preliminary injunction that falls into one of the categories of historically disfavored preliminary injunctions must satisfy a heightened burden.
Affirmed.

Cabazon Band of Mission Indians v. Smith
388 F.3d 691
Docket No. 02-56943
United States Court of Appeals, Ninth Cir., Nov. 3, 2004.

Subjects: Indian reservation police -- Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California; Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California. Public Safety Department; Riverside County (Calif.); Roads -- Off Indian reservations; California. Vehicle Code; Police vehicles -- Lighting; Sovereignty -- Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation California.

*Synopsis: Indian tribe sued county sheriff, seeking determination that tribal public safety department vehicles equipped with light bars could traverse state highways while passing from one segment of reservation to another. On remand, 271 F.3d 910, the United States District Court for the Central District of California, Christina A. Snyder, 2002 WL 32065673, held for county, and tribe appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that application of California statute, prohibiting unauthorized emergency vehicles from using emergency light bars, to tribal public safety department vehicles was discriminatory, and thus preempted by federal law. Reversed.

Related News Stories: Court sides with tribe in law enforcement dispute (Indianz.com) 11/12/04.

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

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

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

*Holding: not available

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

October

Kahawaiolaa v. Norton
386 F.3d 1271
Docket No. 02-17239
United States Court of Appeals, Ninth Cir., Oct 27, 2004.

Subjects: Native Hawaiians; United States. Dept. of the Interior; Federal recognition of Indian tribes -- Native Hawaiians; Issues and challenges; Equality before the law -- Native Hawaiians.

*Synopsis: Native Hawaiians or native Hawaiian groups as defined by the Hawaiian Homes Commission Act, brought suit against the Secretary of the Department of Interior (DOI), alleging that DOI regulations excluding native Hawaiians form tribal recognition process for Indian tribes violated equal protection. The United States District Court for the District of Hawaii, Alan C. Kay, 222 F.Supp.2d 1213, granted defendant's motion to dismiss, and plaintiffs appealed.

*Holding: The Court of Appeals, Thomas, Circuit Judge, held that: (1) political question doctrine did not preclude consideration of suit; (2) rational basis standard of review was applicable to plaintiffs' equal protection challenge; and (3) regulations did not violate equal protection. Affirmed.

Prescott v. Little Six, Inc.
387 F.3d 753
Appealed to the U.S. Supreme Court
Docket No. 03-3702
United States Court of Appeals, Eighth Cir., October 21, 2004.

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 executive employees of Indian tribal casino brought action under Employee Retirement Income Security Act (ERISA), seeking benefits under employee benefits plan. The United States District Court for the District of Minnesota, David S. Doty, J., 284 F.Supp.2d 1224, denied casino's motion to dismiss, and casino appealed.

*Holding: The Court of Appeals, Bowman, Circuit Judge, held that district court erred in not giving proper deference to tribal court finding that plans were not authorized under tribal law. Reversed and remanded.

United States v. Wood
386 F.3d 961
Docket No. 03-5188
United States Court of Appeals, Tenth Cir., October 18, 2004.

Subjects: Trials (Burglary); Indians of North America; Burglary -- Indian Country; Sentences (Criminal procedure).

*Synopsis: Defendant, a Native American, was convicted in the United States District Court for the Northern District of Oklahoma on his plea of guilty to second degree burglary in Indian Country. Defendant appealed.

*Holding: The Court of Appeals, Baldock, Circuit Judge, held that Sentencing Guidelines required imposition of sentence between minimum and maximum sentences state law established for the particular crime. Affirmed.

United States v. Smith
387 F.3d 826
Docket No. 03-30482
United States Court of Appeals, Ninth Cir., October 15, 2004.

Subjects: Blackfeet Tribe of the Blackfeet Indian Reservation of Montana -- Members; Witnesses; Sentences (Criminal procedure).

*Synopsis: Following a jury trial, defendant was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., of retaliating against a federal witness, and defendant appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that:
(1) law prohibiting retaliation against a federal witness was a law of nationwide applicability that could be applied to crimes committed by and against Indians in Indian country;
(2) eight-level increase for threatening to cause physical injury in order to obstruct the administration of justice was warranted; and
(3) district court's finding that it could not depart downward on the basis of aberrant behavior was clearly erroneous. Affirmed in part, reversed in part, and remanded with instructions.

United States v. March
111 Fed.Appx. 888
Docket No. 03-30094
United States Court of Appeals, Ninth Cir., October 7, 2004.

Subjects: United States. Lacey Act Amendments of 1981; Sentences (Criminal procedure); Law -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Fish and game licenses -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: Defendant was convicted in the United States District Court for the District of Idaho, Mikel H. Williams, United States Magistrate Judge, for violations of the Lacey Act. He appealed.

*Holding: The Court of Appeals held that:
(1) district court had jurisdiction over charges, alleging defendant violated provisions of Indian tribal code prohibiting presentation of false information to obtain hunting permits or tags;
(2) tribal code did not specify the form in which the information had to be communicated; and
(3) issue of defendant's sentence would be remanded to the district court for its consideration.

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

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

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

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

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

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

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

*Holding: not available

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

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

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

*Holding: not available

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

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

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

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

*Holding: not yet available

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

Subjects: not yet available

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

September

Wyoming Sawmills Inc. v. United States Forest Service
383 F.3d 1241
Appealed to the U.S. Supreme Court
Docket No. 02-8009
United States Court of Appeals, Tenth Cir., September 20, 2004.

Subjects: Medicine Wheel National Historic Landmark (Wyo.); Wyoming Sawmills; United States. Forest Service; United States. National Forest Management Act of 1976; Historic preservation -- Planning; Freedom of religion -- United States; Standing to sue.

*Synopsis: Timber company brought suit, alleging that historic preservation plan (HPP) issued by United States Forest Service for management of Medicine Wheel National Historic Landmark violated Establishment Clause and National Forest Management Act. The United States District Court for the District of Wyoming, Alan B. Johnson, Chief Judge, 179 F.Supp.2d 1279, dismissed Establishment Clause claim for lack of standing and ruled against timber company on statutory claim. Timber company appealed.

*Holding: The Court of Appeals, Holloway, Circuit Judge, held that: (1) timber company lacked standing to pursue Establishment Clause challenge, and (2) Service did not abuse its discretion in finding that forest plan amendment by which HPP was implemented was not significant change of overall forest plan. Affirmed.

In re Brooks
383 F.3d 1036
Docket Nos. 03-5047 to 03-5050, 03-5057
United States Court of Appeals, DC Cir., September 14, 2004.

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior; Fiduciary accountability -- United States. Dept. of the Treasury; Contempt of court; Conduct of court proceedings.

*Synopsis: In action alleging that Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging Individual Indian Money (IIM) trust accounts, numerous present or former government employees who were the subject of contempt proceedings moved to disqualify presiding judge, special master, and special master-court monitor from participating in the contempt proceedings, or, in the alternative, for full discovery relating to alleged ex parte communications among the master, the monitor, other government employees, and the court. The United States District Court for the District of Columbia, Royce Lamberth, J., 237 F.Supp.2d 71, denied the motions. Eleven government employees then filed petitions for writs of mandamus, seeking recusal of judge and suppression of reports and recommendations that had been written, but not filed with the district court, by special master before he resigned.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that: (1) neither the proffered evidence of ex parte meetings between the court and its agents nor the district court's opinions denying the recusal motions showed that the judge had acquired "personal knowledge of disputed evidentiary facts" as would have entitled petitioners to their requested writs; (2) the judge's ex parte communications with his agents would not have caused a reasonable and informed observer to question the judge's impartiality; (3) petitioners failed to show a "clear and indisputable right" to discovery of the ex parte communications between the judge and his agents; (4) the ex parte communications that special master had with witnesses and third parties in the underlying trust reform litigation required his recusal from the contempt proceedings; and (5) because special master should have been recused from the contempt proceedings, any reports, recommendations, or other work product he prepared pursuant to the district court's referrals could not be submitted to the court or otherwise disseminated. Petitions denied; proposed reports and recommendations vacated.

United States ex rel. Bernard v. Casino Magic Corp
384 F.3d 510
Docket Nos. 03-3043, 03-3149
United States Court of Appeals, Eighth Circuit, Sep. 13, 2004.

Subjects: United States. Indian Gaming Regulatory Act; Indian gaming -- Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Reservation, South Dakota; Gambling on Indian reservations; Contracts; Casinos; United States; Casino Magic Corp. (Minn.); Casino Magic American Corp. (Minn.); Fees, Administrative; Costs (Law).

*Synopsis: United States and its relator brought qui tam action against casino manager under Indian Gaming Regulatory Act (IGRA), disputing the legality of contracts for a casino project. After the district court granted summary judgment for casino manager, United States and its relator appealed. The Court of Appeals, 293 F.3d 419, declared the contracts illegal and remanded for a determination of damages. Upon remand, the United States District Court for the District of South Dakota, Richard H. Battey, J., awarded damages in the amount of $350,000. Parties cross-appealed.

*Holding: The Court of Appeals, Heaney, Circuit Judge, held that:
(1) borrowing fees arising out of management company's loans to tribe, made as part of a co-lender agreement through a bank, did not constitute management fees and thus were properly excluded from damages calculation;
(2) indirect costs, including licensing fees, legal fees, and a donation to a men's softball team, along with other unverifiable expenses did not constitute management fees;
(3) company was not entitled to offset its out-of-pocket expenses against the calculated damages; and
(4) district court's reasons for denying prejudgment interest, in damages calculation, did not rise to the level of exceptional circumstances justifying deviating from the general rule of awarding prejudgment interest.
Affirmed in part and reversed in part.

Seneca Nation of Indians v. State of N.Y.
382 F.3d 245
Docket Nos. 02-6185(L), 02-6195(XAP), 02-6197(C), 02-6213(C)
United States Court of Appeals, Second Circuit, Sep. 9, 2004.

Subjects: Seneca Nation of New York; Tonawanda Band of Seneca Indians of New York; New York (State); New York State Thruway Authority; Conveyancing; Grand Island (N.Y. : Island); Niagara River (N.Y. and Ont.); Treaties -- Ratification; United States. Trade and Intercourse Act; Land tenure; Interest (Ownership rights).

*Synopsis: Indian tribes brought suit under Trade and Intercourse Act (Nonintercourse Act), alleging the invalidity of an 1815 conveyance in which the State of New York purportedly purchased Grand Island and other islands in the Niagara River from predecessor tribe, on basis that no United States treaty commissioner was present at the negotiations and the agreement was never ratified by the United States Congress as required by the Act. The United States District Court for the Western District of New York, 206 F.Supp.2d 448, Richard Arcara, J., dismissed. Tribes appealed.

*Holding: The Court of Appeals, Parker, Circuit Judge, held that at the time of the conveyance, the islands were not tribal land protected by the Act inasmuch as they were already owned by the State. Affirmed.

Seneca Nation of Indians v. State of N.Y.
383 F.3d 45
Docket Nos. 02-6185(L), 02-6195(XAP), 02-6197(C), 02-6213(C)
United States Court of Appeals, Second Circuit, Sep. 9, 2004.

Subjects: Seneca Nation of New York; New York (State); Roads -- On Indian reservations -- Seneca Nation of New York; Servitudes -- New York (State); Parties to actions -- New York (State).

*Synopsis: Indian tribe sought to invalidate an easement which had been granted for construction of a state highway through a reservation. The United States District Court for the Western District of New York, Richard J., Arcara, J., dismissed. Tribe appealed.

*Holding: The Court of Appeals held that State of New York was a necessary and indispensable party to the action.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Kean-Argovitz Resorts
383 F.3d 512
Docket Nos. 03-1267
United States Court of Appeals, Sixth Cir., September 8, 2004.

Subjects: Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Arbitration agreements, Commercial; United States. Indian Gaming Regulatory Act; Indian gaming -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Gambling on Indian reservations -- Michigan; Contracts -- Federal supervision; National Indian Gaming Commission (U.S.); Casinos; Kean-Argovitz Resorts.

*Synopsis: Indian tribe sought declaratory and injunctive relief to restrain casino development and management company from attempting to enforce arbitration clause in development agreement after tribe had unilaterally terminated development and management agreements. Company filed counterclaim, seeking to compel tribe to submit to arbitration. The United States District Court for the Western District of Michigan, Gordon J. Quist, J., 249 F.Supp.2d 901, entered summary judgment for tribe. Company appealed.

*Holding: The Court of Appeals, Gilman, Circuit Judge, held that tribe's allegation, that development agreement was void under Indian Gaming Regulatory Act (IGRA) because agreement had not been approved by Chairman of National Indian Gaming Commission (NIGC), challenged substance of agreement, and such issue thus was subject to agreement's arbitration clause. Vacated and remanded.

Magiera v. Norton
108 Fed.Appx. 542
Docket Nos. 02-17364. D.C. No. CV-01-00467-LRH
United States Court of Appeals, Ninth Circuit, Sep. 2, 2004.

Subjects: Winnemucca Indian Colony of Nevada; Sovereign immunity -- United States; United States. Dept. of the Interior; Norton, Gale A.; Trusts and trustees -- United States; Breach of trust.

*Synopsis: Indians brought action against Secretary of the Interior in her official capacity, relating to governance of Indian colony. The United States District Court for the District of Nevada, Larry R. Hicks, J., dismissed the action, based on sovereign immunity. Indians appealed.

*Holding: The Court of Appeals held that:
(1) general jurisdictional statutes did not establish waiver of sovereign immunity;
(2) Indians had not satisfied requirements for limited waiver of sovereign immunity under Federal Tort Claims Act (FTCA); and
(3) Indians had not satisfied requirements for limited waiver of sovereign immunity under Administrative Procedure Act (APA).
Affirmed.

United States v. Medearis
380 F.3d 1049
Docket No. 03-2388
United States Court of Appeals, Eighth Circuit, Sep. 2, 2004.

Subjects: Rape -- Indian Country (U.S.); Evidence.

*Synopsis: Defendant was convicted of aggravated sexual abuse in Indian Country by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., and he appealed.

*Holding: The Court of Appeals, Hamilton, United States Circuit Judge for the Fourth Circuit Court of Appeals, sitting by designation, held that: (1) decision to exclude, based on defendant's failure to disclose it to government prior to trial in alleged violation of his reciprocal pre-trial disclosure obligations, a letter that defendant sought to introduce solely to impeach statements made by complaining witness constituted abuse of district court's discretion; (2) this error was harmless beyond reasonable doubt; and (3) finding that defendant had used force or threat of force to cause victim to engage in sexual acts was sufficiently supported by evidence, including testimony of victim, as corroborated by testimony of witness who heard victim's screams, by defendant's flight, and by results of physical examination of victim at hospital. Affirmed.

Snyder v. Navajo Nation
382 F.3d 892
Docket Nos. No. 02-16632, 03-15395
United States Court of Appeals, Ninth Cir., September 2, 2004.

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Fair Labor Standards Act of 1938; Law enforcement; Indian reservation police -- Navajo Nation, Arizona, New Mexico & Utah; Overtime; United States. Indian Self-Determination and Education Assistance Act.

*Synopsis: Indian tribe's law enforcement officers sued tribe and United States for violations of Fair Labor Standards Act (FLSA). The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims, and officers appealed.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that:
(1) FLSA's overtime pay provision did not apply to law enforcement officers employed by Indian tribe, and
(2) provision of Indian Self-Determination and Education Assistance Act (ISDEAA), deeming tribal members employed under self-determination contracts to be federal employees for purposes of tort liability, did not make them federal employees for purposes of FLSA.
Affirmed.

United States v. Madearis
380 F.3d 1049
Docket Nos. No. 03-2388
United States Court of Appeals, Eighth Cir., September 2, 2004.

Subjects: Sex crimes -- Indian Country; Family violence; Evidence; Testimony; Witnesses.

*Synopsis: Defendant was convicted of aggravated sexual abuse in Indian Country by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., and he appealed.

*Holding: The Court of Appeals, Hamilton, United States Circuit Judge for the Fourth Circuit Court of Appeals, sitting by designation, held that: (1) decision to exclude, based on defendant's failure to disclose it to government prior to trial in alleged violation of his reciprocal pre-trial disclosure obligations, a letter that defendant sought to introduce solely to impeach statements made by complaining witness constituted abuse of district court's discretion; (2) this error was harmless beyond reasonable doubt; and (3) finding that defendant had used force or threat of force to cause victim to engage in sexual acts was sufficiently supported by evidence, including testimony of victim, as corroborated by testimony of witness who heard victim's screams, by defendant's flight, and by results of physical examination of victim at hospital. Affirmed.

Cholla Ready Mix v. Mendez
382 F.3d 969
Docket No. 03-15423
United States Court of Appeals, Ninth Cir., Sep.1 , 2004.

Subjects: Cholla Ready Mix, Inc. (Ariz.); Landowners -- Arizona; United States. Dept. of Transportation; Roads -- Design and construction -- Arizona; Limitation of actions -- Arizona; Freedom of religion -- United States; United States. Constitution. 1st Amendment; Mining rights; Civil rights -- United States; Arizona. Constitution; Race discrimination; Right of property; Sacred sites -- Defined; Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Zuni Tribe of the Zuni Reservation, New Mexico.

*Synopsis: Miner of aggregate materials used primarily for road construction brought action against various state government officials, alleging that policy of state department of transportation against using materials from butte in state construction projects violated its rights under the Establishment Clause, federal civil rights laws, and the Arizona Constitution. The United States District Court for the District of Arizona, Frederick J. Martone, J., dismissed complaint, and plaintiff appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that:
(1) Arizona's statute of limitations for personal injury claims, rather than four-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990, applied to plaintiff's civil rights claims;
(2) policy against using materials from butte in state construction projects did not violate the Establishment Clause; and
(3) plaintiff failed to state a claim for racial discrimination under § 1981 §2000d. Affirmed.

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

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

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

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

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

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

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

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

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

Subjects: not yet available

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

*Holding: not yet available

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

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

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

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

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

Subjects: not yet available

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

*Holding: not yet available

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

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

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

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

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

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

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

*Holding: not available

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

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

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

*Holding: not available

August

Boozer v. Wilder
381 F.3d 931
Docket Nos. 03-35722
United States Court of Appeals, Ninth Cir., August 27, 2004.

Subjects: Jurisdiction -- Colville Reservation, Confederated Tribes of the, Washington; Tribal members -- Colville Reservation, Confederated Tribes of the, Washington; Parent and child (Law); Trials (Custody of children) -- Washington; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978.

*Synopsis: In child custody dispute, father filed complaint requesting that an Indian tribal court or his daughter's grandparents be ordered to return the child to his custody. The United States District Court for the Eastern District of Washington, Alan A. McDonald, J., dismissed. Father appealed.

*Holding: The Court of Appeals, Betty B. Fletcher, Circuit Judge, held that father was required to exhaust his tribal court remedies.

Blackhawk v. Pennsylvania
381 F.3d 202
No. 02-3947, 02-4158
United States Court of Appeals, Third Cir., August 20, 2004.

Subjects: Animal owners; Indians of North America; Black bear; Pennsylvania Game Commission; United States. Constitution. 1st Amendment; Freedom of religion; Licenses.

*Synopsis: Native American owner of black bears brought § 1983 action against Pennsylvania Game Commission and individual Commission officials, alleging that they violated his First Amendment right to free exercise of religion by refusing to grant him exemption to permit fee requirement for keeping wildlife in captivity. The United States District Court for the Middle District of Pennsylvania, Thomas I. Vanaskie, J., 225 F.Supp.2d 465, enjoined officials from charging owner a permit fee, but declined to hold individual defendants liable. Owner and officials appealed.

*Holding: The Court of Appeals, Alito, Circuit Judge, held that:
(1) statute allowing waiver of fee for permit to keep wildlife in captivity was not generally applicable, and thus was subject to strict scrutiny;
(2) statute did not withstand strict scrutiny; and
(3) officials were qualifiedly immune from liability. Affirmed.

Coeur D'Alene Tribe of Idaho v. Hammond
384 F.3d 674
Docket Nos. Nos. 02-35965, 02-35998, 02-36020
United States Court of Appeals, Ninth Cir., August 19, 2004.

Subjects: Motor fuels -- Taxation -- Idaho; Nez Perce Tribe of Idaho; Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Idaho. State Tax Commission; Gasoline; Service stations -- On Indian reservations -- Idaho; Distributors (Commerce) -- Idaho; Non-members of a tribe; Sovereign immunity -- Indian Country (Idaho); United States -- Hayden-Cartwright Act.

*Synopsis: Indian tribes brought actions to enjoin State of Idaho from collecting motor fuel tax on gasoline delivered by non-tribal distributors to tribally-owned gas stations for sale on Indian reservations. Actions were consolidated. The United States District Court for the District of Idaho, David O. Carter, J., entered summary judgment for tribes. State appealed, and tribes cross-appealed, asserting that State was barred from re-litigating applicability of Hayden-Cartwright Act.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that:
(1) Court of Appeals would not automatically defer to Idaho legislature's statement that legal incidence of tax lay on non-tribal distributors;
(2) legal incidence of tax fell on Indian tribes;
(3) Idaho was not collaterally estopped from re-litigating whether Hayden-Cartwright Act abrogated tribal immunity; and
(4) Hayden-Cartwright Act did not indicate clear congressional intent to abrogate tribes' sovereign immunity from motor fuel taxes. Affirmed. Kleinfeld, Circuit Judge, filed dissenting opinion

Kaw Nation ex rel.McCauleyv. Lujan
378 F.3d 1139
Docket Nos. 03-6213
United States Court of Appeals, Tenth Cir., August 16, 2004.

Subjects: Kaw Nation, Oklahoma; Judges -- Selection and appointment -- Kaw Nation, Oklahoma; Kaw Nation, Oklahoma -- Officials and employees -- Selection and appointment; United States. Indian Civil Rights Act; Jurisdiction -- United States.

*Synopsis: Members or former members of Indian tribe's Executive Council brought action for declaratory and injunctive relief from the allegedly improper appointment of three tribal judges. One judge and tribe's chairman moved to dismiss. Following dismissal, plaintiffs moved to amend judgment and for relief from judgment. The United States District Court for the Western District of Oklahoma dismissed. Plaintiffs appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that:
(1) declaratory and injunctive relief, and monetary damages, were not available under Indian Civil Rights Act (ICRA);
(2) district court lacked subject matter jurisdiction pursuant to supplemental jurisdiction statute; and
(3) district court lacked original jurisdiction over claims. Affirmed.

Henderson v. Terhune
379 F.3d 709
Docket Nos. 02-17224
United States Court of Appeals, Ninth Cir., August 12, 2004.

Subjects: Indian prisoners -- California; California. Dept. of Corrections; Freedom of religion; Long hair; United States. American Indian Religious Freedom Act; United States. Constitution. 1st Amendment.

*Synopsis: Native American state prison inmate brought §1983 action against corrections officials, alleging that regulation governing inmates' hair length infringed inmate's rights under First Amendment's Free Exercise Clause. The United States District Court for the Eastern District of California, Burrell, J., granted summary judgment for corrections officials, and inmate appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that:
(1) District Court did not clearly err by finding that several proffered justifications for enforcing regulation constituted legitimate penological interests, and
(2) hair-length regulation was reasonably related to several of those interests, including identification of inmates and ease of control of contraband, and thus did not unduly infringe inmate's free exercise rights. Affirmed.

Prairie Band of Potawatomi Nation v. Richards
379 F.3d 979
Docket No. 03-3218
United States Court of Appeals, Tenth Cir., August 11, 2004.

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; Exclusive and concurrent legislative powers -- United States; Sovereignty -- Prairie Band of Potawatomi Indians, Kansas; Kansas. Dept. of Revenue.

*Synopsis: Indian tribe brought suit for declaratory and injunctive relief, challenging state's imposition of tax on motor fuel supplied to gas station operated by tribe on reservation property by non-Indian distributor. The United States District Court for the District of Kansas, Julie A. Robinson, J., 241 F.Supp.2d 1295, granted summary judgment dismissing action. Tribe appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that tax was incompatible with, and outweighed by, strong federal and tribal interests against tax, and thus was preempted by federal law. Reversed.

Smith v. Salish Kootenai College
378 F.3d 1048
Docket No. 03-35306
United States Court of Appeals, Ninth Cir., August 6, 2004.
Briefs

Subjects: Traffic fatalities -- On Indian reservations -- Umatilla Reservation, Confederated Tribes of the, Oregon; Non-members of a tribe; Tribal members -- Umatilla Reservation, Confederated Tribes of the, Oregon; Jurisdiction -- Umatilla Reservation, Confederated Tribes of the, Oregon; Salish Kootenai College; Evidence (Law).

*Synopsis: In a dispute, arising out of a traffic accident on a public highway on an Indian reservation, in which plaintiff, a non-member of the tribe who was a student at a college on the reservation, brought action alleging negligence and spoliation of evidence, a jury in the tribal court found for the college. Student brought action in federal court, alleging that the tribal court lacked jurisdiction over his claim. The United States District Court for the District of Montana, Leif B. Erickson, United States Magistrate Judge, dismissed. Student appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that tribal court lacked jurisdiction. Reversed and remanded.

Neighbors for Rational Development, Inc. v. Norton
379 F.3d 956
Docket No. 02-2085
United States Court of Appeals, Tenth Cir., August 4, 2004.

Subjects: Pueblos -- New Mexico; Trust lands -- Albuquerque (N.M.); Neighbors for Rational Development (N.M.); United States. Quiet Title Act; United States. Dept. of the Interior; United States. National Environmental Policy Act of 1969; Real estate development; Land use -- Albuquerque (N.M.); Injunctions.

*Synopsis: Owners of property adjoining tract of Indian land, which Secretary of the Interior had agreed to hold in trust for 19 Indian Pueblos, brought suit challenging acquisition, seeking declaratory judgment that acquisition was null and void due to Secretary's failure to comply with applicable laws, and to permanently enjoin Secretary from proceeding with or authorizing development of property until Secretary complied with all applicable federal laws. The United States District Court for the District of New Mexico, upheld acquisition. Property owners appealed.

*Holding: The Court of Appeals, Brorby, Circuit Judge, held that:
(1) action was barred by Quiet Title Act, which excludes Indian lands from Act's waiver of sovereign immunity, to extent it sought to nullify trust acquisition, and
(2) request for permanent injunction was moot.
Dismissed and remanded.

Skull Valley Band Of Goshute Indians v. Nielson
376 F.3d 1223
Docket No. 02-4149
United States Court of Appeals, Tenth Cir., August 4, 2004.

Subjects: Skull Valley Band of Goshute Indians of Utah; Nuclear fuels -- Storage -- Skull Valley Band of Goshute Indians of Utah; Law -- Utah; Administrative law -- Utah; United States. Nuclear Waste Policy Act of 1982; Private Fuel Storage.

*Synopsis: Indian tribe and private company planning to operate storage facility for spent nuclear fuel (SNF) on reservation lands brought action against state officials for declaratory and injunctive relief from operation of state laws restricting storage activities. The United States District Court for the District of Utah, Tena Campbell, J., 215 F.Supp.2d 1232, granted summary judgment in favor of plaintiffs. Defendants appealed.

*Holding:The Court of Appeals, Henry, Circuit Judge, held that:
(1) plaintiffs had standing to bring action;
(2) action was ripe for judicial review;
(3) statutes requiring counties to facilitate regulation of SNF facilities were preempted by federal law;
(4) statutes requiring compensation for unfunded potential liabilities of facilities were preempted;
(5) statute abolishing limited liability for stockholders in companies operating facilities was preempted; and

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

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

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

*Holding: not yet available

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

July

Westlands Water District v U.S. Dept of Interior
376 F.3d 853
Docket Nos. 03-15194, 03-15289, 03-15291, 03-15737
United States Court of Appeals, Ninth Cir., July 13, 2004.

Subjects: Wetlands Water District (Calif.); United States. Dept. of the Interior; Water; Wetland restoration; Fisheries -- Environmental aspects; United States. National Environmental Policy Act of 1969; Environmental impact statements; U.S. Fish and Wildlife Service; United States. National Marine Fisheries Service; Hoopa Valley Tribe, California; Yurok Tribe of the Hoopa Valley Reservation, California; Sacramento Municipal Utility District (Calif.); Northern California Power Agency; United States. Dept. of Commerce; United States. Bureau of Reclamation.

*Synopsis: Water and utility districts brought action against Department of Interior, challenging administration of federal water project and implementation of fisheries restoration legislation. Native American tribes intervened as defendants. Parties cross-moved for summary judgment. The United States District Court for the Eastern District of California, Oliver W. Wanger, J., 275 F.Supp.2d 1157, granted motions in part and denied them in part. Appeal was taken.

*Holding: The Court of Appeals, Goodwin, Circuit Judge, held that: (1) under National Environmental Policy Act (NEPA) and implementing regulations, statement of purpose and need was not unreasonably narrow in geographically limiting scope of environmental impact statement (EIS) or in excluding consideration of nonflow measures; (2) range of alternatives considered in EIS was reasonable;
(3) supplemental environmental impact statement (SEIS) was not required to discuss National Marine Fisheries Service's (NMFS's) BioOp (Biological Opinion) requiring mitigation of impacts to Sacramento River temperatures; (4) California energy crisis did not pose "significant new circumstance" that compelled issuance of SEIS; (5) Fish and Wildlife Service (FWS) BioOp RPM (reasonable and prudent measures) involving mitigation of X2 movement was major change and therefore invalid under Endangered Species Act (ESA) regulations; and
(6) NMFS RPM directing that recommended flow regime by implemented as soon as possible was properly set aside.Affirmed in part, reversed in part, and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

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

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

June

Eyak Native Village v. Daley
375 F.3d 1218
Docket No. 02-36155
United States Court of Appeals, Ninth Cir., June 22, 2004.

Subjects: Alaska Native villages; Aboriginal rights -- Alaska Native villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion)The district court decided the federal paramountcy question and thereby avoided determining the existence or extent of the plaintiff villages' claimed aboriginal rights. As an appellate body, we would be greatly assisted by an initial determination by the district court of what aboriginal rights, if any, the villages have. We therefore VACATE the district court's order granting summary judgment for defendants. We REMAND with instructions that the district court decide what aboriginal rights to fish beyond the three-mile limit, if any, the plaintiffs have. For purposes of this limited remand, the district court should assume that the villages' aboriginal rights, if any, have not been abrogated by the federal paramountcy doctrine or other federal law.
The en banc panel retains jurisdiction over all future proceedings in this matter.

*Holding: not available

Quarles v. U.S ex rel. Bureau of Indian Affairs
372 F.3d 1169
Docket No. 03-5035
United States Court of Appeals, Tenth Cir., June 16, 2004.

Subjects: Water leakage; Factory and trade waste; Oil and gas production; Landowners -- Osage Tribe of Oklahoma; Exhaustion of administrative remedies; United States; United States. Osage Act (Indians); Environmental Conservation Foundation; Quarles, Don; United States. Bureau of Indian Affairs; Indian allotments.

*Synopsis: Owner of land on Osage Indian reservation sued oil companies and federal government to recover for damage caused by waste water leaks from oil production. The United States District Court for the Northern District of Oklahoma dismissed for failure to exhaust administrative remedies, and owner appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that arbitration requirement in Osage Allotment Act applied only to claims "arising under" Act. Reversed and remanded.

Peabody Coal Company v. Navajo Nation
373 F.3d 945
Docket No. 03-15272
United States Court of Appeals, Ninth Cir., June 16, 2004.

Subjects: Coal leases; Navajo Nation, Arizona, New Mexico & Utah; United States. Indian Mineral Leasing Act of 1938; United States. Racketeer Influenced and Corrupt Organizations Act; Trusts and trustees –- Accounting; Jurisdiction -- United States; Federal question; Peabody Coal Company; Coal mines and mining; Coal rights; Arbitration (Administrative law).

*Synopsis: Lessee of coal mining rights brought action against Indian tribe, seeking enforcement of arbitration settlement agreement setting royalty rates. The United States District Court for the District of Arizona, Robert C. Broomfield, J., dismissed for lack of subject matter jurisdiction, and company appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that court lack federal question jurisdiction. Affirmed.

Snyder v. Navajo Nation
371 F.3d 658
Docket Nos. 02-16632, 03-15395
United States Court of Appeals, Ninth Cir., June 9, 2004.

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Fair Labor Standards Act of 1938; Law enforcement; Indian reservation police -- Navajo Nation, Arizona, New Mexico & Utah; Overtime; United States. Indian Self-Determination and Education Assistance Act.

*Synopsis: Indian tribe's law enforcement officers sued tribe and United States for violations of Fair Labor Standards Act (FLSA). The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims, and officers appealed.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that: (1) FLSA's overtime pay provision did not apply to law enforcement officers employed by Indian tribe, and (2) provision of Indian Self-Determination and Education Assistance Act (ISDEAA), deeming tribal members employed under self-determination contracts to be federal employees for purposes of tort liability, did not make them federal employees for purposes of FLSA. Affirmed.

Related News Stories: Court ruling adds to debate over tribal-labor disputes (Indianz.com) 6/14.

Confederated Tribes of Warm Springs Reservation of Oregon v. United States
101 Fed.Appx. 818
Docket Nos. 02-5167
United States Court of Appeals, Federal Cir., June 8, 2004.

Subjects: Timber; Sales; Vendors and purchasers; United States; Warm Springs Reservation, Confederated Tribes of the, Oregon.

*Synopsis: Indian tribes sued United States, alleging that its mismanagement of tribes' timber resources constituted breach of fiduciary duty. Following trial, the United States Court of Federal Claims, Robert H. Hodges, Jr., J., found that fiduciary breach had occurred but that tribes were not entitled to damages. Tribes appealed. The Court of Appeals, Bryson, Circuit Judge, 248 F.3d 1365, vacated and remanded. On remand, the Court of Federal Claims assessed damages owed by government to be $13,805,607, and government appealed.

*Holding: On appeal after remand, the Court of Appeals, Prost, J., held that:
(1) factual determination regarding amount of timber that government improperly sold would be upheld; (2) Court of Federal Claims did not clearly err by relying on tribes' estimates for missing timber; and (3) Court of Federal Claims properly applied log value of logs taken in trespass as measure of timber trespass damages, and, pursuant to Oregon law, awarded double damages to all trees taken in trespass. Affirmed.

Anderson V. Evans
371 F.3d 475
Docket No. 02-35761.
United States Court of Appeals, Ninth Cir., June 7, 2004.

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; Environmental impact analysis; 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, 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. Reversed.

Crue V. Aiken
370 F.3d 668
Docket No. 02-3627, 03-2281, 03-2951
United States Court of Appeals, Seventh Circuit, June 1, 2004.

Subjects: Freedom of speech; United States. Constitution. 1st Amendment; Indians as mascots -- Illinois; College athletes -- Illinois; University of Illinois at Urbana-Champaign; Universities and colleges -- Faculty -- Illinois; College students -- Illinois.

*Synopsis: University students and faculty members, who wished to contact prospective student athletes to make them aware that university and its athletic program utilized mascot that they believed was degrading to Native Americans, brought civil rights action against chancellor of university, seeking declaratory judgment that chancellor's preclearance directive banning all speech directed toward prospective student athletes without prior permission violated their First Amendment rights. The United States District Court for the Central District of Illinois, Michael M. Mihm, J., granted partial summary judgment for plaintiffs, 204 F.Supp.2d 1130. Defendants appealed.

*Holding: The Court of Appeals, Evans, Circuit Judge, held that: (1) action was not mooted by chancellor's resignation and retraction of preclearance directive; (2) free speech rights of university students and faculty were infringed by preclearance directive; (3) chancellor was not entitled to qualified immunity from liability for issuing preclearance directive; and (4) district court did not abuse its discretion by allowing petition for award of attorney fees to be filed one day late due to excusable neglect. Affirmed. Manion, Circuit Judge, filed a dissenting opinion.

United States V. Black
369 F.3d 1171
Docket No. 03-4174
United States Court of Appeals, Tenth Circuit, June 1, 2004.

Subjects: Trials (Murder); Murder -- On Indian reservations; Assault and battery -- On Indian reservations; Examination of witnesses; Navajo language; Jurors.

*Synopsis: Following jury trial before the United States District Court for the District of Utah, defendant was convicted of two counts of first-degree murder on Indian land, assault with a dangerous weapon on Indian land, and one count of assault resulting in serious bodily injury on Indian land. Defendant appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that: (1) refusal to appoint interpreter to allow witness to testify in Navajo was not abuse of discretion; (2) refusal to dismiss juror who fainted was not abuse of discretion; and (3) not declaring mistrial after juror fainted did not deprive defendant of fair trial under Sixth Amendment. Affirmed.

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

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

May

Wade V. Blue
369 F.3d 407
Docket No. 03-2245
United States Court of Appeals, Fourth Circuit, May 26, 2004.

Subjects: Jurisdiction -- South Carolina; Civil actions arising in Indian Country -- Catawba Indian Tribe of South Carolina; Tribal courts; Catawba Indian Tribe of South Carolina.

*Synopsis: Individual members of Indian tribe brought action alleging that tribal leadership was acting improperly in its control over the tribe's assets and affairs. The United States District Court for the District of South Carolina, Julian Abele Cook, Jr., Senior District Judge sitting by designation, denied defendants' motion to dismiss. Defendants appealed.

*Holding: The Court of Appeals, Wilkinson, Circuit Judge, held that absent establishment of a tribal court, all civil actions involving internal matters of Indian tribe were required to be brought in South Carolina courts. Reversed and remanded with instructions.

State of Connecticut V. United States Department of the Interior
99 Fed.Appx. 313
Docket No. 03-6142
United States Court of Appeals, Second Circuit, May 24, 2004

Subjects: Connecticut; United States. Dept. of the Interior; North Stonington (Conn. : Town); Ledyard (Conn. : Town); Preston (Conn. : Town); Civil procedure; Federal recognition of Indian tribes -- Paucatuck Eastern Pequot Indians of Connecticut; Petitions.

*Synopsis: State and towns filed complaint challenging petitions by Indian tribes for federal acknowledgment by Bureau of Indian Affairs (BIA). The United States District Court for the District of Connecticut, Alfred V. Covello, J., dismissed complaint, and plaintiffs appealed.

(from the order) Plaintiffs-appellants the State of Connecticut and the towns of North Stonington, Ledyard, and Preston appeal from an April 23, 2003, order of the district court granting the defendants' motion to dismiss the plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The plaintiffs' complaint related to petitions by the Paucautuck Eastern Pequot Tribe and the Eastern Pequot Indians of Connecticut for federal acknowledgment pursuant to Bureau of Indian Affairs ("BIA") regulations contained in 25 C.F.R. Part 83.

*Holding: The Court of Appeals held that plaintiffs' claims were not ripe for judicial review.
Affirmed.

Grand Traverse Band of Ottawa and Chippewa Indians V. State of Michigan
369 F.3d 960
Docket No. 02-1679
United States Court of Appeals, Sixth Circuit, May 24, 2004

Subjects: Indian gaming; Trust lands -- Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan; United States. Indian Gaming Regulatory Act; Restored Indian reservations -- Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan; Grand Traverse Band of Ottawa & Chippewa Indians of Michigan; Michigan.

*Synopsis: Indian band sought declaratory judgment as to legality of gambling operation. The United States District Court for the Western District of Michigan, Douglas W. Hillman, Senior District Judge, 198 F.Supp.2d 920, entered judgment for plaintiff. State appealed.

*Holding: The Court of Appeals, Clay, Circuit Judge, held that indian band was a restored tribe, for purposes of Indian Gaming Regulatory Act. Affirmed.

United States V. Harlan
368 F.3d 870
Docket No. 03-3817
United States Court of Appeals, Eighth Circuit, May 14, 2004

Subjects: Assault and battery -- On Indian reservations -- Omaha Tribe of Nebraska; Weapons; Recidivism; Sentences (Criminal procedure); Evidence.

*Synopsis: Defendant was convicted, by a jury in the United States District Court for the District of Nebraska, Joseph F. Bataillon, J., of assault with a dangerous weapon and assault resulting in serious bodily injury on an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that: (1) evidence was sufficient to support verdict; (2) sentencing court acted within its sound discretion by imposing upward departure on basis of defendant's prior convictions; and (3) sentencing court permissibly relied on defendant's prior manslaughter conviction as basis for an upward departure. Affirmed.

United States of America V. Archambault
97 Fed.Appx. 59
Docket No. 02-2411
United States Court of Appeals, Eighth Circuit, May 12, 2004.

Subjects: Non-members of a tribe; Indians of North America; Double jeopardy -- United States; Tribal Courts; Courts -- United States; Subpoena; U.S. v. Lara.

*Synopsis: James Archambault appeals the district court's denial of his motion to dismiss the indictment against him, contending nonmember Indians cannot be tried in both tribal and federal court for the same offense conduct without violating the Double Jeopardy Clause. Archambault also appeals the district court's order quashing his subpoena of a tribal treasurer, who Archambault posits would present evidence of the financial relationship between the tribe and the federal government, in support of his claim the tribe's authority to prosecute nonmember Indians was delegated rather than inherent.

*Holding: The court concludes both of Archambault's contentions are controlled and precluded by the Supreme Court's recent decision in United States v. Lara, 124 S.Ct. 1628, 1639 (2004) (holding tribes have inherent, rather than delegated, power to prosecute nonmember Indians and thus prosecutions brought by a tribe and the federal government for same offense conduct are brought by different sovereigns and do not violate the Double Jeopardy Clause), the court affirms the district court.

United States V. Doe
366 F.3d 1069
Docket No. 02-10170.
United States Court of Appeals, Ninth Cir., May 11, 2004.

Subjects: Indian children; Juvenile delinquents; Rape -- On Indian reservations; Teachers -- On Indian reservations; United States. Juvenile Delinquency Act; Records.

*Synopsis: Juvenile Indian pleaded guilty in the United States District Court for the District of Arizona, Raner C. Collins, J., to charges of juvenile delinquency and several offenses related to his alleged sexual assault on a teacher on an Indian reservation. Juvenile appealed. A panel of the Court of Appeals, 324 F.3d 1057, reversed and remanded.

*Holding: On rehearing en banc, the Court of Appeals, Canby, Senior Circuit Judge, held that: (1) speedy trial clock of the Juvenile Delinquency Act began to run from the date upon which federal detention was begun on the charges of delinquency for which the alleged delinquent was in custody pending trial; overruling United States v. Andy , 549 F.2d 1281; (2) juvenile record certification requirements were not jurisdictional, but rather went to the conduct of the proceeding; overruling United States v. Juvenile Male, 336 F.3d 1107, and United States v. Doe, 13 F.3d 302; and (3) district court's error, if any, in failing to obtain formal certification from tribal juvenile court record did not amount to plain error requiring reversal. Affirmed.

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

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

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

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

*Holding: not available

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

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

April

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin V. United States
367 F.3d 650
Docket No. 03-2323
United States Court of Appeals, Seventh Circuit, April 29, 2004.

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 challenging constitutionality of Indian Gaming Regulatory Act's (IGRA's) gubernatorial concurrence requirement for gaming on newly-acquired lands. The United States District Court for the Western District of Wisconsin, 259 F.Supp.2d 783, Barbara B. Crabb, Chief Judge, granted judgment on pleadings for government, and tribes appealed.

*Holding: The Court of Appeals, Flaum, Chief Judge, held that:
(1) requirement did not violate separation of powers or non-delegation doctrines;
(2) requirement did not violate Appointments Clause;
(3) requirement did not violate Tenth Amendment; and
(4) requirement did not violate federal government's trust responsibility to Indians. Affirmed.

Related News Stories: Court Upholds Off-reservation Gaming Provision in IGRA (Indianz.com) 04/30

United States V. J.D. Bell
367 F.3d 452
Docket Nos. 03-60253, 03-60254.
United States Court of Appeals, Fifth Circuit, April 20, 2004.

Subjects: Rape -- On Indian reservations; Tribal members -- Mississippi Band of Choctaw Indians, Mississippi; Criminal actions arising in Indian Country (Mississippi).

*Synopsis: Two defendants were convicted in separate trials, in the United States District Court for the Northern District of Mississippi, Glen H. Davidson, Chief Judge, of aggravated sexual abuse on Indian reservation. Their appeals were consolidated.

*Holding: The Court of Appeals, DeMoss, Circuit Judge, held that:(1) first defendant's confession was voluntary; (2) trial court did not abuse its discretion in allowing sister of deaf mute victim to interpret his trial testimony;(3) erroneous admission of unavailable accomplice's inculpatory statements in second defendant's trial was harmless; (4) sentencing enhancement for inflicting serious bodily injury was warranted; and (5) sentencing enhancement for abuse of vulnerable victim was warranted. Affirmed.

Chippewa Trading Co. V. Cox
365 F.3d 538
Docket No. 03-1445
United States Court of Appeals, Sixth Circuit, April 19, 2004.

Subjects: Remedies (Law); Indian business enterprises; Indian business enterprises -- Keweenaw Bay Indian Community of L'Anse and Ontonagon Bands of Chippewa Indians of the L'Anse Reservation, Michigan; Chippewa Trading Co. (Mich.); Michigan. Tobacco Products Tax Act.

*Synopsis: Indian corporation brought § 1983 action, challenging constitutionality of Michigan's Tobacco Products Tax Act (TPTA). The United States District Court for the Western District of Michigan, David W. McKeague, J., dismissed, and corporation appealed.

*Holding: The Court of Appeals, Boggs, Chief Judge, held that corporation had adequate state court remedy by which to pursue its federal constitutional challenges, and thus federal abstention was warranted. Affirmed.

United States V. Leon
365 F.3d 750
Docket No. 03-30129
United States Court of Appeals, Ninth Circuit, April 16, 2004

Subjects: Sentences (Criminal procedure); Indian children; Juvenile delinquents; Crime and age.

*Synopsis: Juvenile Indian was adjudicated delinquent by the United States District Court for the District of Montana, Sam E. Haddon, J., and he appealed sentence.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that juvenile was properly sentenced based on his age at time of sentencing. Affirmed.

Shoshone Tribe of the Wind River Reservation v. United States
364 F.3d 1339
Docket Nos. 03-5036, 03-5037
United States Court of Appeals, Federal Cir., April 7, 2004.

Subjects: Tribal trust funds -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior; Gravel; Sand; Sovereign immunity -- United States; Damages.

*Synopsis: Indian tribes brought action against the United States, alleging breach of trust in mismanaging the tribes' sand and gravel resources up to the point of collection and with respect to its handling of tribal funds post-collection. The Court of Federal Claims, Emily C. Hewitt, J., 51 Fed.Cl. 60, denied Government's motion to dismiss. Government appealed and tribes cross-appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that:(1) statute relating to tribes' remedies for mismanagement of trust funds expressly waived Government's sovereign immunity and deferred accrual of tribes' action; (2) allegation that Government mismanaged tribes' sand and gravel assets by failing to obtain the best possible market rates for the contracts failed to state a claim; but (3) allegation that Government mismanaged tribes' sand and gravel assets by failing to manage and timely collect proceeds from approved mining contracts sufficiently stated a claim; and (4) tribes were entitled to interest as part of their damages. Affirmed in part, reversed in part, and remanded.
Rader, Circuit Judge, filed opinion dissenting in part.

Eyak Native Village V. Daley
364 F.3d 1057
Docket Nos. CV-98-00365-HRH
United States Court of Appeals, Ninth Cir., April 7, 2004.

Subjects: Alaska Native Villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3.

*Holding: not available

Bonnichsen V. United States
367 F.3d 864
Docket Nos. 02-35994, 02-35996
United States Court of Appeals, Ninth Cir., April 19, 2004.

Subjects: Kennewick Man; Human remains (Archaeology); United States. Native American Graves Protection and Repatriation Act; Native Americans -- Defined; Petitions.

*Synopsis: Scientists sought judicial review of a final decision of the Department of the Interior (DOT) that awarded approximately 9,000 years old human remains, designated as Kennewick Man, to a coalition of Indian tribes, pursuant to Native American Graves Protection and Repatriation Act (NAGPRA), and denied scientific study of those remains. The United States District Court for the District of Oregon, 217 F.Supp.2d 1116, John Jelderks, United States Magistrate Judge, held for scientists. DOT and tribes appealed. The Court of Appeals affirmed, and DOT and tribes moved for rehearing and for rehearing en banc.

*Holding: Amending and superseding prior opinion, 357 F.3d 962, the Court of Appeals, Gould, Circuit Judge, held that:(1) scientists had standing to bring action; (2) human remains must bear some relationship to presently existing tribe, people, or culture to be "Native American" within meaning of NAGPRA; and (3) substantial evidence did not support DOT's decision that remains were Native American within meaning of NAGPRA. Petitions denied.


Steffler V. Cow Creek Band of Umpqua Tribe of Indians
94 Fed.Appx. 659
Docket Nos. 03-35138
United States Court of Appeals, Ninth Cir., April 16, 2004.

Subjects: Cow Creek Band of Umpqua Indians of Oregon; Jurisdiction -- Cow Creek Band of Umpqua Indians of Oregon; Detention of persons -- Oregon; Courts -- Oregon; Criminal law -- Oregon.

*Synopsis: (from the opinion) Steffler contends that the district court erred by dismissing his petition for lack of jurisdiction because the Cow Creek Band Board of Directors unlawfully caused him to be subjected to Oregon state criminal proceedings. We are not persuaded.

*Holding: not available

Eyak Native Village V. Daley
364 F.3d 1057
Docket Nos. CV-98-00365-HRH
United States Court of Appeals, Ninth Cir., April 7, 2004.

Subjects: Alaska Native Villages; Eyak (Cordova), Native Village of (AK); Tatitlek, Native Village of (AK); Nanwalek (aka English Bay), Native Village of (AK); Port Graham, Native Village of (AK); Chanega (aka Chenega), Native Village of (AK); United States. Dept. of Commerce; Hunting rights; Fishing rights; Alaska. Outer Continental Shelf; Cook Inlet (Alaska); Alaska, Gulf of (Alaska); Alaska.

*Synopsis: (from the opinion) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3.

*Holding: not available

Shoshone Indian Tribe of The Wind River Reservation V. United States
364 F.3d 1339
Docket Nos. 03-5036, 03-5037.
United States Court of Appeals, Federal Circuit, April 7, 2004.

Subjects: United States; Shoshone Tribe of the Wind River Reservation, Wyoming; Arapahoe Tribe of the Wind River Reservation, Wyoming; Sand and gravel plants -- Wind River Indian Reservation (Wyo.); Tribal trust funds; Fiduciary accountability -- United States; Trusts and trustees -- Accounting -- United States.

*Synopsis: Indian tribes brought action against the United States, alleging breach of trust in mismanaging the tribes' sand and gravel resources up to the point of collection and with respect to its handling of tribal funds post- collection. The Court of Federal Claims, Emily C. Hewitt, J., 51 Fed.Cl. 60, denied Government's motion to dismiss. Government appealed and tribes cross- appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that: (1) statute relating to tribes' remedies for mismanagement of trust funds expressly waived Government's sovereign immunity and deferred accrual of tribes' action;(2) allegation that Government mismanaged tribes' sand and gravel assets by failing to obtain the best possible market rates for the contracts failed to state a claim; but (3) allegation that Government mismanaged tribes' sand and gravel assets by failing to manage and timely collect proceeds from approved mining contracts sufficiently stated a claim; and (4) tribes were entitled to interest as part of their damages. Affirmed in part, reversed in part, and remanded.

United States V. Blaine County, Montana
363 F.3d 897
Docket No. 02-35691.
United States Court of Appeals, Ninth Circuit, April 7, 2004.

Subjects: Voting -- Blaine County (Mont.); Blaine County (Mont.); United States; Indians of North America -- Suffrage -- Montana; United States. Voting Rights Act of 1965; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment.

*Synopsis: United States challenged county's at-large voting system for electing members to county commission as violative of Native American residents' rights under Voting Rights Act. The United States District Court for the District of Montana, Philip M. Pro, J., upheld constitutionality of statute, 157 F.Supp.2d 1145, and found that it was violated. County appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) vote dilution provision was constitutional exercise of Congress' powers under Fourteenth and Fifteenth Amendments, and (2) evidence supported finding that county's at-large voting system violated statute.

Krystal Energy Company V. Navajo Nation
357 F3d. 1055
Docket No. 02-17047
United States Court of Appeals, Ninth Cir., April 6, 2004.

Subjects: Krystal Energy Co.; Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Abrogation; Bankruptcy.

*Synopsis: In bankruptcy proceeding, company brought adversary action against Indian tribe. The United States District Court for the District of Arizona, Mary H. Murguia, J., dismissed, and company appealed.

*Holding: The Court of Appeals, Berzon, Circuit Judge, held that Congress had abrogated tribe's sovereign immunity by statute.
Reversed and remanded.

Kennard V. Comstock Resources, Inc.
363 F.3d 1039
Docket No. 03-8012
United States Court of Appeals, Tenth Circuit, April 5, 2004.

Subjects: United States. False Claims Amendments Act of 1986; Jurisdiction -- United States. District Court (Wyoming); Oil and gas leases; Comstock Resources, Inc.; Sales -- United States -- Cases; Leases -- United States -- Cases; Wind River Indian Reservation (Wyo.).

*Synopsis: Relators brought qui tam False Claims Act (FCA) suit against oil and gas well operator, alleging fraudulent underpayment of royalties to Indian tribe. The United States District Court for the District of Wyoming dismissed for lacked of subject matter jurisdiction, and relators appealed.

*Holding: The Court of Appeals held that: (1) there had been prior public disclosure, but (2) relators were original source. Reversed and remanded.

Related News Stories: Court Revives Royalties Claim (Billings Gazette) 04/07

Shenandoah V. Halbritter
366 F.3d 89
Docket No. 03-7862.
United States Court of Appeals, Second Circuit, April 2, 2004

Subjects: Habeas corpus; United States. Indian Civil Rights Act; Housing -- Law and legislation -- Oneida Nation of New York. Jurisdiction -- United States. District Court (New York : Northern District).

*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. The United States District Court for the Northern District of New York, 275 F.Supp.2d 279, Mordue, J., dismissed. Residents appealed.

*Holding: The Court of Appeals, Van Graafeiland, Senior Circuit Judge, held that (1) tribe's enforcement of housing ordinance did not constitute a sufficiently severe restraint on the residents' liberty to invoke federal court's habeas corpus jurisdiction, and (2) housing ordinance was not a bill of attainder. Affirmed.

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

March

Cobell V. Norton
2004 WL 603456
Docket No. 03-5262
United States Court of Appeals, District of Columbia Circuit, March 24, 2004

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

*Synopsis: (from the opinion) Upon consideration of the emergency motion to consolidate appeals and the emergency motion for a stay pending appeal and for a temporary stay pending consideration of the motion for a stay pending appeal, it is ORDERED that the motion for a temporary stay pending consideration of the motion for a stay pending appeal be granted, and that the district court's preliminary injunction filed March 15, 2004 be stayed pending further order of the court.

*Holding: not available

Related News Stories: Appeals Court Hearing Cobell Disqualification Dispute (Indianz.com) 03/15

Natural Arch and Bridge Society V. Alston
98 Fed.Appx. 711
Docket No. 02-4099
United States Court of Appeals, Tenth Cir., March 23, 2004

Subjects: United States. National Park Service; Policies and institutions; Rainbow Bridge National Monument (Utah); Sacred sites -- Utah; Freedom of religion; Indians of North America.

*Synopsis: Various plaintiffs, including visitors to national park, brought suit against Superintendent of Rainbow Bridge National Monument, Director of National Park Service, and National Park Service, seeking declaratory and injunctive relief from National Park policy of asking visitors to voluntarily refrain from approaching or walking under Rainbow Bridge, which was Native American religious site, and alleging that policy violated Establishment Clause of First Amendment. The United States District Court for the District of Utah denied plaintiffs' motion for summary judgment and granted defendants' motion to dismiss, and plaintiffs appealed.

*Holding: The Court of Appeals, McWilliams, Senior Circuit Judge, held that visitors lacked standing to challenge the policy.
Affirmed.

Related News Stories: Group's Challenge to Sacred Site Policy Rejected (Indianz.com) 03/31

County of Mille Lacs V. Benjamin
361 F.3d 460
Docket Nos.03-2527, 03-2537.
United States Court of Appeals, Eighth Circuit, March 9, 2004

Subjects: Mille Lacs County (Minn.); First National Bank of Milaca, Minn.; 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; Minnesota; South Dakota; Boundary disputes; Indian reservations.

*Synopsis: County and bank sought declaratory judgment as to boundaries of Indian reservation. The United States District Court for the District of Minnesota, 262 F.Supp.2d 990, James M. Rosenbaum, Chief District Judge, dismissed with prejudice. County and bank appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that (1) bank and county both lacked standing to bring action, and (2) dismissal with prejudice was erroneous. Affirmed in part and reversed in part.

Related News Stories: Minn. Tribe Wins Another Round in Reservation Dispute (Indianz.com) 03/11

Blackbear V. Norton
93 Fed.Appx. 192
Docket No. 02-4230.
United States Court of Appeals, Tenth Circuit, March 5, 2004

Subjects: Skull Valley Band of Goshute Indians of Utah; Private Fuel Storage (Utah); United States. Bureau of Indian Affairs; Leases -- Federal approval; Exhaustion of administrative remedies; Nuclear fuels -- Storage -- Skull Valley Band of Goshute Indians of Utah.

*Synopsis: Tribe members filed lawsuit challenging a variety of governmental and tribal actions surrounding the Bureau of Indian Affairs' (BIA) conditional approval of a lease between tribe and private company for placement of a spent nuclear fuel storage facility on tribal land. The United States District Court for the District of Utah dismissed action. Tribe members appealed.

*Holding: The Court of Appeals held that:
(1) dismissal of lawsuit for failure to exhaust administrative remedies was required, and
(2) claim did not fall within recognized exception to sovereign immunity.
Affirmed.

United States V. Bird
359 F.3d 1185
Docket Nos. 02-30246, 02-30282.
United States Court of Appeals, Ninth Cir., March 3, 2004.

Subjects: Mandamus; United States; United States. Major Crimes Act; Jurisdiction -- United States; Indian criminals; Indians of North America -- Victims of crime; Burglary -- Indian Country (Montana).

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

*Holding: Appeals were consolidated. The Court of Appeals, Alarcon, Circuit Judge, held that: (1) district court's rejection of defendants' challenge to sufficiency of indictment did not come within collateral order exception to final judgment rule, providing that Court of Appeals only had jurisdiction over appeals from final judgments of district courts, and (2) defendants' appeals would not be treated as application for writ of mandamus. Dismissed, and alternative application to treat appeals as application for writ of mandamus denied.

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

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

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

*Holding: not available

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*Holding: not available

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

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

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

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

February

Chickaloon-Moose Creek Native Ass'n., Inc. v. Norton
360 F.3d 972
Docket No. 01-35921.
United States Court of Appeals, Ninth Circuit, Feb. 26, 2004.

Subjects: United States. Alaska Native Claims Settlement Act; Land titles -- Registration and transfer; Cook Inlet (Alaska); Cook Inlet Region, Inc.; United States. Dept. of the Interior; Alaska Native villages.

*Synopsis: Village corporations and regional corporation in Alaska brought actions contesting Department of Interior decision regarding which lands would be conveyed from federal government to regional corporation, for reconveyance to villages. Actions were consolidated. Following bench trial, the United States District Court for the District of Alaska, James K. Singleton, Jr., Chief Judge, entered judgment for government, and plaintiffs appealed.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that:
(1) Department's interpretation of its agreement with regional corporation, which governed land conveyance, was not entitled to deference;
(2) agreement between Department and regional corporation precluded conveyance of lands designated in second appendix to agreement if conveyance of lands designated in first appendix was sufficient in quantity to satisfy villages' acreage entitlements under the Alaska Native Claims Settlement Act (ANCSA);
(3) village that had no more selections among lands listed in first appendix had to substitute other lands from that appendix and was not entitled to lands it selected from second appendix; and
(4) statute enacted to enable performance of agreement did not authorize Department to convey lands in manner inconsistent with agreement.
Affirmed.

Proschold V. United States of America
90 Fed.Appx. 516
Docket No. 02-16655. D.C. No. CV-01-02390-SBA.
United States Court of Appeals, Ninth Circuit, Feb. 20, 2004.

Subjects: Quiet title actions; Jurisdiction; Sovereign immunity; Land use -- Dry Creek Rancheria of Pomo Indians of California; United States.

*Synopsis: Owners of servient estate under easement granted to government to provide access to Indian reservation brought action under Quiet Title Act (QTA) seeking determination of permissible scope of easement after construction of casino on reservation. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., dismissed complaint, and owners appealed.

*Holding: The Court of Appeals held that jurisdictional exception under QTA barred suit. Affirmed.

Victor V. Grand Casino-Coushatta
359 F.3d 782
Docket No. 03-30703
United States Court of Appeals, Fifth Cir., February 19, 2004.

Subjects: Casinos -- Coushatta Tribe of Louisiana; Grand Casinos of Louisiana, Inc. - Coushatta; Gambling on Indian reservations; Indian gaming; Slot machines; Jurisdiction -- United States; Jurisdiction -- Louisiana.

*Synopsis: Slot machine player who claimed to have won large jackpot sued casino, Indian tribe, and casino corporation in state court for breach of contract after casino refused to pay, asserting that malfunction in slot machine had generated jackpot. Action was removed to federal court on basis of diversity jurisdiction. The United States District Court for the Western District of Louisiana, James T. Trimble, Jr., J., remanded to state court based on determination that parties were nondiverse and federal subject matter jurisdiction was lacking. Defendants appealed.

*Holding: The Court of Appeals held that court lacked jurisdiction to review order of remand, which directly implicated subject matter jurisdiction of district court. Appeal dismissed.

Krystal Energy Company V. Navajo Nation
357 F.3d 1055
Docket No. 02-17047
United States Court of Appeals, Ninth Cir., Feb. 10, 2004.

Subjects: Bankruptcy; Sovereign immunity -- Abrogation -- Navajo Nation, Arizona, New Mexico & Utah; Krystal Energy Co. (Ariz.).

*Synopsis: In bankruptcy proceeding, company brought adversary action against Indian tribe. The United States District Court for the District of Arizona, Mary H. Murguia, J., dismissed, and company appealed.

*Holding: The Court of Appeals, Berzon, Circuit Judge, held that Congress had abrogated tribe's sovereign immunity by statute. Reversed and remanded.

Skokomish Indian Tribe V. United States
358 F.3d 1180
Docket Nos. 01-35028, 01-35845.
United States Court of Appeals, Ninth Cir., Feb. 23, 2004.

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; Tacoma (Wash.). Dept. of Public Utilities; Tacoma (Wash.); United States. Internal Revenue Service.

*Synopsis: (from the order) Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

*Holding: not available

Related News Stories: Federal Court to Hear Appeal in Cushman Dam Case (News Tribune) 03/17

Bonnichsen V. United States ("Kennewick Man")
357 F.3d 962
Docket Nos. 02-35994, 02-35996
United States Court of Appeals, Ninth Cir., February 4, 2004.

Subjects: Kennewick Man; Jurisdiction -- United States; Human remains (Archaeology).

*Synopsis: Scientists sought judicial review of final decision of Secretary of the Interior that human remains, which were known as "Kennewick Man" and were approximately 9,000 years old, were "Native American" within meaning of Native American Graves Protection and Repatriation Act (NAGPRA), and awarding remains to coalition of Indian tribes. The United States District Court for the District of Oregon, John Jelderks, United States Magistrate Judge, Bonnichsen v. U.S., 217 F.Supp.2d 1116, vacated Secretary's decision, and determined that scientists should have opportunity to study remains under Archaeological Resources Protection Act (ARPA). Government and tribes appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that: (1) scientists had standing to bring action; (2) human remains must bear some relationship to presently existing tribe, people, or culture to be "Native American" within meaning of NAGPRA; and (3) Secretary's decision was not arbitrary or capricious, since remains bore no such relationship. Affirmed.

Related News Stories: Judges Back Study of Ancient Human Remains (NYT) * 02/05; Kennewick Man Can Be Studied, Court Rules (Washington Post) 2/05

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subjects: not yet available

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

*Holding: not yet available

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January

United States V. Clifford Matley Family Trust
354 F.3d 1154
Docket Nos. 01-15778, 01-15813
United States Court of Appeals, Ninth Cir., Jan. 20, 2004

Subjects: Land use; Newlands Project (U.S.); Procedure (Law); Due process of law; Resource allocation; Water; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States.

*Synopsis:After court-appointed Water Master reclassified private farm land from "bottom land" to "bench land" for purposes of water allocation within Newlands Reclamation Project, federal government and Indian tribe sought evidentiary hearing. Following District Court remand, Water Master restated his original findings, and the United States District Court for the District of Nevada, Howard D. McKibben, J., adopted Master's report and approved reclassification. Government and tribe appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) Master was not required to follow federal rules of evidence or civil procedure; (2) Master's failure to hold evidentiary hearing did not deprive tribe of due process, despite its property interest in water now allocated to farm; and (3) water master could not make reclassification determination without considering principle of beneficial use. Reversed and remanded.

Chayoon V. Chao
355 F.3d 141
Docket No. 03-6143
United States Court of Appeals, Second Circuit, Jan. 16, 2004.

Subjects: Mashantucket Pequot Gaming Enterprise -- Employees; Casinos -- Mashantucket Pequot Tribe of Connecticut; Gambling on Indian reservations; Indian gaming; United States. Family and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut.

*Synopsis: Employee at casino operated by Indian tribe sued tribal officials for violation of Family and Medical Leave Act (FMLA). The United States District Court for the District of Connecticut, Janet C. Hall, J., dismissed, and employee appealed.

*Holding: The Court of Appeals held that tribe was immune from suit for damages.
Affirmed.

Delorme V. United States
354 F.3d 810
Docket No. 02-3460
United States Court of Appeals, Eighth Cir., January 13, 2004.

Subjects: Standing to sue -- Little Shell Band of Indians of North Dakota; Ojibwa Indians -- Claims vs.; Land use; Trusts and trustees -- Accounting -- United States.

*Synopsis: Representative of federally unrecognized Indian tribe sought accounting of funds distributed pursuant to federal appropriations statutes. The United States District Court for the District of North Dakota, Patrick A. Conmy, dismissed, and appeal was taken.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that representative failed to establish standing to sue. Affirmed.

Thompson V. Scott
86 Fed.Appx. 17
Docket No. 03-40408
United States Court of Appeals, Fifth Circuit, Jan. 9, 2004

Subjects: Indian prisoners -- Texas; Civil rights; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000; Freedom of religion; Long hair; Confiscations.

*Synopsis: Native American inmate filed civil rights suit in state court alleging that state prison officials violated First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA) by failing to adequately accommodate his religious beliefs. After removal, the United States District Court for the Southern District of Texas entered summary judgment in favor of officials, and inmate appealed.

*Holding: The Court of Appeals held that: (1) inmate did not have standing to challenge requirement that inmates pass written test on Native American practices in order to participate in Native American services; (2) confiscation of inmate's medicine bag and dream catcher did not violate his rights; and (3) fact issues remained as to whether compelling government interest required inmates' hair to be no more than one-eighth inch long. Affirmed in part, vacated in part, and remanded.

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

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

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

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

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

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

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

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

United States v. Washington
20 F.Supp.3d 777
Case No. 9213.
United States District Court, W.D. Washington, at Seattle, Filed Jan. 16, 2004. Compilation of major post-trial substantive orders (January 1, 2004 through December 31, 2006).

*Synopsis: United States, on its own behalf and as trustee for various Indian tribes, brought action for declaratory and injunctive relief against State of Washington and others concerning off-reservation treaty right fishing. Various tribes intervened.

*Holding: On various motions, the District Court, Robert S. Lasnik and Ricardo S. Martinez, JJ., and Karen L. Strombom, United States Magistrate Judge, held that:
(1) tribe demonstrated strong likelihood of success on merits of dispute regarding implementation of plan governing treaty right to harvest shellfish from tidelands;
(2) district court had jurisdiction to clarify usual and accustomed fishing grounds as defined under prior court order;
(3) request for clarification of usual and accustomed fishing grounds of Suquamish Tribe under treaty as defined in prior court order was barred by the doctrine of res judicata;
(4) delay of opening of state's commercial non-tribal Dungeness Crab fishery was warranted; and
(5) documents generated during settlement proceedings between Swinomish Indian Tribal Community and Lummi Nation were admissible.
Ordered accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

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