2009 Federal Courts Cases

December

In re United States
Briefs from Turtle Talk Blog
590 F.3d 1305
No. 908
United States Court of Appeals, Federal Circuit, December 30, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: United States filed petition for writ of mandamus, seeking to direct the United States Court of Federal Claims, Francis M. Allegra, J., 88 Fed.Cl. 1, to vacate order requiring United States to produce documents in litigation involving Indian tribe.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that United States could not deny tribe's request to discover communications between United States and its attorneys based on attorney-client privilege.
Petition denied.

Jeffredo v. Macarro
590 F.3d 751
No. 08-55037
United States Court of Appeals, Ninth Circuit, December 22, 2009

Subjects: not yet available

*Synopsis: Disenrolled members of Indian tribe filed petition for habeas corpus under Indian Civil Rights Act, claiming that their disenrollment by tribal council was tantamount to an unlawful detention. The United States District Court for the Central District of California, John F. Walter, J., dismissed the petition. Members appealed.

*Holding: The Court of Appeals, N.R. Smith, Circuit Judge, held that:
(1) disenrolled members were not detained, as required to assert habeas relief, and
(2) on matter of first impression, tribal proceeding was of civil nature and thus not subject to habeas review.
Affirmed.

United States v. Washington
588 F.3d 1270
No. 08-35794
United States Court of Appeals, Ninth Circuit, December 11, 2009

Subjects: not yet available

*Synopsis: Indian tribe moved to reopen judgment, 476 F.Supp. 1101, that had denied tribal members treaty fishing rights on ground that tribe had not maintained organized tribal structure. The United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., denied relief, and tribe appealed. The Court of Appeals, 394 F.3d 1152, reversed. On remand, the District Court, Ricardo S. Martinez, J., again denied relief and the tribe again appealed.

*Holding: The Court of Appeals, en banc, Canby, Circuit Judge, held that federal recognition obtained by Indian tribe was not extraordinary circumstance that warranted reopening of previous denial of treaty rights. Affirmed.

Dickson v. San Juan County
355 Fed.Appx. 243
No.08-4148
United States Court of Appeals, Tenth Circuit, December 10, 2009

Subjects: not yet available

*Synopsis: Employees of special service district, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. The United States District Court for the District of Utah, Bruce S. Jenkins, J., 391 F.Supp.2d 895, refused to enforce three preliminary injunction orders issued by the Navajo court against county defendants, and special service district, and employees appealed. The United States Court of Appeals, Kelly, Circuit Judge, 497 F.3d 1057, affirmed in part, reversed in part, and vacated in part. On remand, employees moved for relief from judgment. The District Court, Bruce S. Jenkins, Senior District Judge, 566 F.Supp.2d 1239, denied motion. Employees appealed.

*Holding: The Court of Appeals, Stephen H. Anderson, Circuit Judge, held that:
(1) decision on prior appeal, that tribal court lacked subject-matter jurisdiction to exercise civil authority over the conduct of the nonmember defendants, was law of the case, and
(2) defendants were not entitled to damages on claim that employees' appeal was frivolous. Affirmed.

South Fork Band of Western Shoshone of Nevada v. United States Department of the Interior
588 F.3d 718
No. 09-15230
United States Court of Appeals, Ninth Circuit, December 3, 2009

Subjects: not yet available

*Synopsis: Indian tribes brought action challenging Bureau of Land Management's (BLM) approval of mining project on federal land. The United States District Court for the District of Nevada, Larry R. Hicks, J., 643 F.Supp.2d 1192, denied tribes a preliminary injunction. Tribes appealed.

*Holding: The Court of Appeals held that:
(1) tribes had no likelihood of success on merits of Federal Land Policy and Management Act (FLPMA) claim;
(2) BLM failed to take requisite hard look at environmental impacts of ore transport under National Environmental Policy Act (NEPA); and
(3) BLM failed to take hard look at impacts of mine dewatering. Affirmed in part, reversed in part, and remanded.

Fort Independence Indian Community v. California
not on Westlaw
2:08-cv-00432-LKK-KJM
United States Dictrict Court, California, December 28, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff Fort Independence Indian Community, a federally recognized tribe, brings suit against the State of California and associated officials (collectively, the 'State'). The Tribe's sole remaining claim alleges that the State has violated its obligation to negotiate in good faith regarding a Tribal-State gaming compact. In particular, the Tribe argues that the State has improperly insisted upon a revenue sharing agreement.

*Holding: not yet available

Related News Stories: Fort Independence survives summary judgment in IGRA good faith suit (Turtle Talk) 12/28/09.

Fort Independence Indian Community v. California
2009 WL 5206797
No. CIV. S-08-432 LKK/KJM
United States Dictrict Court, E.D. California, December 24, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff Fort Independence Indian Community, a federally recognized tribe, brings suit against the State of California and associated officials (collectively, the 'State'). The Tribe's sole remaining claim alleges that the State has violated its obligation to negotiate in good faith regarding a Tribal-State gaming compact. In particular, the Tribe argues that the State has improperly insisted upon a revenue sharing agreement. Although the Indian Gaming Regulatory Act is apparently hostile to such agreements, they have become common. These agreements have also been upheld by the Department of the Interior, the agency that administers this aspect of the IGRA.

*Holding: not yet available

United States v. Bertucci
2009 WL 5214591
No. 8:09CR84
United States Dictrict Court, Nebraska, December 22, 2009

Subjects: not yet available

*Synopsis: (from the opinion) The defendant has been charged with a violation of the Bald and Golden Eagle Protection Act, 16 U.S.C. ? 668(a) (hereinafter, 'the Eagle Protection Act'). The Indictment charges him with 'knowingly and intentionally, and with wanton disregard for the consequences of his act, taking a bald eagle without being permitted to do so,' by shooting and killing a two bald eagles (Counts I & II) and selling red-tail hawk feathers (Count III). Filing No. 1, Indictment at 1-2. The defendant's motion to dismiss is based on his contention that the Eagle Protection Act impermissibly burdens his freedom to practice his religion and violates the Religious Freedom Restoration Act ('RFRA'), 42 U.S.C. ?? 2000bb-1 to 2000bb-4.

*Holding: not yet available

Auto Owners Insurance Company v. Azure
2009 WL 5202001
No. 2:08-cv-117
United States Dictrict Court, North Dakota, December 22, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Davis and Laducer seek dismissal based on the Court's discretion under the Declaratory Judgment Act and the principles embodied in the tribal exhaustion doctrine. The motion is predicated upon Rule 12(b) of the Federal Rules of Civil Procedure.

*Holding: not yet available

Harris v. Sycuan Band of Diegueno Mission Indians
2009 WL 5184077
No. 08cv2111-WQH-AJB
United States Dictrict Court, S.D. California, December 18, 2009

Subjects: not yet available

*Synopsis: (from the opinion) On November 17, 2008, Plaintiff Sara Harris initiated this action by filing a Complaint. (Doc. # 1). The Complaint sought to enforce an arbitration award totaling $160,000 for physical injuries allegedly suffered by Harris as a result of the conduct of one of Sycuan's employees. The Complaint alleged that the Court had subject matter jurisdiction pursuant to the Federal Arbitration Act ('FAA'), 9 U.S.C. ? 1, et seq. On March 2, 2009, this Court issued an order granting Sycuan's motion to dismiss, and dismissing the Complaint for lack of subject matter jurisdiction. (Doc. # 10). The Court held that Harris failed to satisfy her burden of establishing subject matter jurisdiction.

*Holding: not yet available

United States v. Cavanaugh
2009 WL 5169530
No. 2:09-cr-04
United States Dictrict Court, D. North Dakota, December 18, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Before the Court is Defendant Roman Cavanaugh, Jr.'s motion to dismiss the indictment. Cavanaugh raises three issues: (1) the indictment is fatally defective for failure to list an essential element of the offense; (2) Section 117(a) of Title 18, United States Code, is unconstitutional as it exceeds Congress's power; and (3) Section 117(a) of Title 18, United States Code, violates the United States Constitution by permitting the use of uncounseled tribal court convictions to be offered as substantive evidence to prove an essential element of a federal charge.

*Holding: not yet available

Ingrassia v. Chicken Ranch Bingo and Casino
2009 WL 5030658
No. CIV-F-09-1266 AWI SMS
United States Dictrict Court, E.D. California, December 16, 2009

Subjects: Trademarks

*Synopsis: (from the opinion) In 1986, Plaintiffs Bruce Alan Ingrassia and Millimac Enterprises produced a number of original visual images among them, 'MiWuk Indian Riding on a Chicken.' Plaintiffs printed this image on hats, shirts, and other souvenirs. Defendants Chicken Ranch Rancheria Tribe and Chicken Ranch Bingo and Casino purchased these items for resale. Plaintiffs retained the copyright under the arrangement. It is unclear whether there was a written contract between Plaintiffs and Defendants. The business relationship lasted for a number of years and ended at an unspecified time. In 2007, Plaintiffs discovered that Defendants were selling items with the image of 'MiWuk Indian riding on a Chicken' produced without Plaintiffs' permission.

*Holding: not yet available

Gristede's Food, Inc. v. Poospatuck (Unkechauge) Nation
2009 WL 4981905
No. 06-cv-1260 (KAM)
United States Dictrict Court, E.D. New York, December 10, 2009

Subjects: not yet available

*Synopsis: (from the opinion) In the present motion before the court, the Shinnecock defendants argue that a stay pending a determination of tribal status by the BIA is warranted because, should the Shinnecock be placed on the BIA's list of federally recognized tribes, it will be immune from suit. Accordingly, defendants argue that the defendant smoke shops and owners thereof would enjoy the tribe's immunity as entities of the tribe.

*Holding: not yet available

United States v. Bird
2009 WL 4801374
No. 2:09cr15.
United States Dictrict Court, W.D. North Carolina, December 8, 2009

Subjects: not yet available

*Synopsis: (from the opinion) In the Defendant's last objection, he argues that his per capita distribution of gaming proceeds is exempt from garnishment. Indian tribes have traditionally been considered sovereign nations which possess common law immunity from suit; however, that immunity may be abrogated by Congress. C & L Enterprises v. Citizens Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001). When Congress enacted the FDCPA, it defined a 'garnishee' as any person who has custody of any property in which the debtor has a nonexempt interest; and, it defined 'person' as including an Indian tribe. 28 U.S.C. ?? 3002(7) & (10). 'Congress has the power to statutorily waive a tribe's sovereign immunity.' Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458, 462 (8th Cir.1993). The FDCPA uses unequivocal language to waive this immunity. C & L Enterprises, 532 U.S. 411. As a result, the Band as the garnishee must pay over to the federal government any property in which the Defendant has a nonexempt interest.

*Holding: not yet available

Nkihtaqmikon v. Bureau of Indian Affairs
672 F.Supp.2d 154
No. CV-05-188-B-W
United States District Court, Maine, December 2, 2009

Subjects: not yet available

*Synopsis: Members of Indian tribe brought Freedom of Information Act (FOIA) action against Bureau of Indian Affairs (BIA), alleging that agency improperly withheld documents regarding its approval of lease to operate liquefied natural gas terminal on tribal lands. Members brought Request for Relief.

*Holding: The District Court, John A. Woodcock, Jr., Chief Judge, held that:
(1) BIA failed to conduct search reasonably calculated to uncover all relevant
documents;
(2) members failed to establish pattern and practice of non-compliance with
FOIA;
(3) members were entitled to injunctive relief compelling further production of
responsive records; and
(4) members were entitled to attorney's fees and costs.
Request granted in part and denied in part.

Acosta-Vigil v. Delorme-Gaines
2009 WL 4641813
No. 1:09-CV-929 BB/LAM
United States Dictrict Court, New Mexico, December 2, 2009

Subjects: not yet available

*Synopsis:Enrolled member of the Assiniboine/Sioux of Ft. Belknap, Montana, who was found guilty in the Tesuque Tribal Court, Delorme-Gaines, J., of driving with suspended or revoked license and was sentenced to 20 days' incarceration, petitioned for writ of habeas corpus and for relief from conviction and sentence by a person in tribal custody with request for expedited relief.

*Holding: The District Court, Bruce D. Black, J., held that member failed to exhaust tribal court remedies before pursuing habeas relief. Petition denied.

November

Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc
585 F.3d 917
No. 08-6145
United States Court of Appeals, Sixth Circuit, November 4, 2009

Subjects: not yet available

*Synopsis: Biodiesel refining company brought action against federally chartered tribal corporation that delivered diesel fuel and soybean oil to the company for refining, seeking a declaratory judgment that the corporation's waiver of sovereign immunity was effective, an order compelling arbitration, and a temporary restraining order (TRO) prohibiting the corporation from proceeding with a case against the company in tribal court. The United States District Court for the Western District of Tennessee, Samuel H. Mays, J., dismissed the suit for lack of subject matter jurisdiction. Company appealed.

*Holding: The Court of Appeals, Cole, Circuit Judge, held that:
(1) as a matter of first impression, incorporation under the Indian Reorganization Act (IRA) did not automatically waive tribal sovereign immunity;
(2) corporation's charter did not contain an express waiver of sovereign immunity; and
(3) contractual provision purporting to waive sovereign immunity was insufficient to waive immunity, absent board approval as required by charter.
Affirmed.

Robinson v. United States
586 F.3d 683
No. 07-17052
United States Court of Appeals, Ninth Circuit, November 2, 2009

Subjects: not yet available

*Synopsis: Easement holders brought action against the United States as trustee for Indian tribe, asserting claims for disruption of lateral and subjacent support, negligence, and nuisance, and alleging that an unshored slope caused subsidence and that a curb, concrete walkway, wrought iron fence, and fire hydrant encroached onto the easement. The United States District Court for the Eastern District of California, Ralph R. Beistline, J., 2007 WL 2580612, dismissed the suit for lack of subject matter jurisdiction due to the sovereignty of the United States under the Quiet Title Act (QTA). Easement holders appealed.

*Holding: As a matter of first impression, the Court of Appeals, D.W. Nelson, Senior Circuit Judge, held that the QTA was not applicable to the easement holders' suit. Vacated and remanded

Samish Indian Nation v. United States
2009 WL 4457303
No. 02-1383L
United States Court of Federal Claims, November 30, 2009

Subjects: not yet available

*Synopsis: Indian tribe sued United States, seeking compensation for programs, services, and benefits that tribe allegedly would have received over nearly 30-year time span but for Department of Interior's (DOI) improper omission of tribe from list of federally recognized tribes. Government moved to dismiss for lack of subject matter jurisdiction.

*Holding: The Court of Federal Claims, Sweeney, J., held that:

(1) claims based on federal grants-in-aid did not derive from money-mandating
sources of jurisdiction;

(2) claims under federal revenue sharing program were moot;

(3) claims under Housing Act were not based on money-mandating source of
jurisdiction;

(4) claims for housing improvement program benefits were not based on
money-mandating source of jurisdiction;

(5) claims for commodity food distribution program benefits were not based on
money-mandating source of jurisdiction;

(6) claims for employment and training assistance programs benefits were not
based on money-mandating source of jurisdiction; and

(7) no fiduciary relationship between government and tribe created
money-mandating source of jurisdiction.

Dismissed.

Geroux v. Assurant, Inc.
2009 WL 4068700
No. 2:08-cv-00184
United States Dictrict Court, W.D. Michigan, November 23, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff Richard Geroux brought a complaint for unpaid benefits pursuant to long-term disability coverage provided by his employer, the Keweenaw Bay Indian Community, in the Tribal Court of the Keweenaw Bay Indian Community, L'Anse Reservation, Michigan. Plaintiff sought compensation for alleged underpayment of benefits under the policy of 'approximately $230.39 per month since December 21, 1982.' Id. Plaintiff's Complaint does not mention any claims pursuant to the Employee Retirement Income Security Act, 29 U.S.C. ?? 1001, et seq. ('ERISA').

*Holding: not yet available

Yancey v. Thomas
2009 WL 3837405
No. CIV-09-597-C
United States Dictrict Court, W.D. Oklahoma, November 16, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Plaintiff is a member of the Muscogee (Creek) Indian Nation of Oklahoma. He is the father of Baby Boy L., who was born out of wedlock on October 4, 2002. In July 2002, the mother, who is not of Indian descent, decided to place the baby for adoption. Shortly after the birth, the Prospective Adoptive Parents took the child to Missouri, where he has since resided. On October 10, 2002, the mother relinquished her parental rights in Oklahoma County. On December 26, 2002, an adoption petition was filed in Cleveland County. The Plaintiff's parental rights were terminated and he appealed to the Oklahoma Supreme Court, claiming that the trial court erred in holding that the Indian Child Welfare Act, 25 U.S.C. ?? 1901 et seq. ('the Act'), did not apply. The Supreme Court agreed, reversing the termination of the Plaintiff's parental rights.

*Holding: not yet available


Boye v. United States
2009 WL 3824371
No. 07-195 C
United States Court of Federal Claims, November 12, 2009

Subjects: not yet available

*Synopsis: Employees of Navajo Nation sued United States, alleging breach of self-determination contracts to perform law enforcement and criminal investigation services, executed by employer tribe and Department of Interior (DOI), under Indian Self-Determination and Education Assistance Act (ISDEAA), and seeking accounting and payment of unpaid wages and benefits allegedly owed to employees as third-party beneficiaries of contracts. Government moved to dismiss for lack of jurisdiction and for failure to state claim.

*Holding: The Court of Federal Claims, Sweeney, J., held that:
(1) continuing violation doctrine applied to claim;
(2) Indian Self-Determination Act was money-mandating source for Tucker Act
jurisdiction for contracts; but
(3) employees were not intended third-party beneficiaries of contracts.
Motion granted.

Chippewa v. Shoshone-Bannock Tribes Fort Hall Indian Reservation, Idaho
2009 WL 3762328
No. CV-09-57-E-BLW
United States District Court, Idaho, November 9, 2009

Subjects: not yet available

*Synopsis: (from the opinion) Chippewa is seeking a writ of mandamus pursuant to 28 U.S.C. ? 1651 to order the Tribal Court to respond to his pending motions to dismiss the detainer lodged against him and to run the Tribal Court charges concurrently with the federal sentence 'as agreed upon.' The Court cannot grant the requested relief.

*Holding: not yet available

Pearson v. Chugach Government Services, Inc.
2009 WL 3757370
No. 09-227
United States District Court, Deleware, November 6, 2009

Subjects: not yet available

*Synopsis: (from the opinion) The question before the Court is one of first impression: whether the Title VII exemption for Alaskan Native Corporations, provided for in the Alaska Native Claims Settlement Act, is broad enough to preclude related employment discrimination claims raised under the ADA and the FMLA. The answer to this question lies at the confluence of two powerful federal interests. On one hand, the federal government has recognized the quasi-sovereignty of Native American tribes and tribal entities. Towards that end, Congress and the Supreme Court have established exemptions and immunities to provide social and political space for Native American self-governance and self-determination. On the other hand, Congress has recognized the obstacles and injustice of discrimination, and promulgated an interlocking web of statutory prohibitions to reduce and eliminate the harms of employment discrimination. From the outset, the Court recognizes this opinion must reconcile these competing federal mandates.

*Holding: not yet available

Timbisha Shoshone Tribe v. Kennedy
Briefs
687 F.Supp.2d 1171
No. CV F 09-1248 LJO SMS
United States District Court, E.D. California, November 3, 2009

Subjects: not yet available

*Synopsis: Tribal council faction brought state court action against members elected to later tribal council after purported disenrollment of tribe members, seeking declaratory and injunctive relief and challenging the authority of the purported trial council and the purported council's maintenance and use of bank accounts. Defendant council member removed the action, and plaintiff faction moved for preliminary injunctive relief identifying specific people as council members with authority to act.

*Holding: The District Court, Lawrence J. O'Neill, J., held that:
(1) plaintiff faction had failed to demonstrate standing;
(2) plaintiff faction had failed to make clear showing the faction was likely to
succeed on the merits, so as to warrant injunctive relief;
(3) court could not determine whether sovereign immunity extended to defendant
faction members, and so preliminary injunctive relief would not be granted;
(4) defendant faction had raised serious jurisdictional issues that might bar
suit, and so plaintiff faction had failed to make clear showing of likely success
that would warrant injunctive relief;
(5) Bureau of Indian Affairs (BIA) decisions recognizing particular tribal
council as valid did not make clear showing that plaintiff faction holding
majority of that council would be recognized, and so did not entitle that faction
to injunctive relief; and
(6) plaintiff faction had failed to demonstrate irreparable injury redressable
in federal court that would warrant injunctive relief.
Injunctive relief denied.

October

Nkihtaqmikon v. Impson
585 F.3d 495
No. 08-2122
United States Court of Appeals, First Circuit, October 28, 2009

Subjects: Oil and gas leases; Nulankeyutmonen Nkihtaqmikon; Factions -- Passamaquoddy Tribe of Maine; United States. Bureau of Indian Affairs.

*Synopsis: Following dismissal, 462 F.Supp.2d 86, of action challenging Bureau of Indian Affairs' (BIA) approval of Indian tribe's decision to lease tribal land to be used for a liquefied natural gas (LNG) terminal, appeal was taken. The Court of Appeals, 503 F.3d 18, affirmed in part and remanded in part, and BIA filed a second motion to dismiss. On remand, the United States District Court for the District of Maine, John A. Woodcock, Jr., J., 573 F.Supp.2d 311, granted motion. Plaintiffs appealed.

*Holding: The Court of Appeals, Boudin, Circuit Judge, held that Court of Appeals' prior ruling that administrative exhaustion was mandatory was the law of the case. Affirmed.

United States v. Espinosa
585 F.3d 418
No. 08-3354
United States Court of Appeals, Eighth Circuit, October 26, 2009

Subjects: Child sexual abuse; Sex crimes -- South Dakota.

*Synopsis: Defendant was convicted of aggravated sexual abuse and abusive sexual contact, following jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, Senior District Judge. Defendant appealed.

*Holding:The Court of Appeals, Smith, Circuit Judge, held that:
(1) conviction for aggravated sexual abuse was supported by sufficient evidence;
(2) evidence was insufficient to show that child's age was below twelve when
alleged sexual contact occurred, as required to support conviction for abusive
sexual contact;
(3) mistrial was not warranted due to psychiatrist's testimony that it was her
opinion that child had suffered sexual abuse;
(4) statements from witnesses attesting to child's alleged prior consistent
statements accusing defendant of abuse were not hearsay.
Affirmed in part, reversed in part, and remanded.

Schaghticoke Tribal Nation v. Kempthorne
587 F.3d 132
No. 08-4735-cv
United States Court of Appeals, Second Circuit, October 19, 2009

Subjects: Federal recognition of Indian tribes; State recognized Indian tribes; Schaghticoke Tribal Nation (Conn.); Connecticut; United States. Dept. of the Interior.

*Synopsis: Indian tribe appealed judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, J., 587 F.Supp.2d 389, upholding a decision of the Department of the Interior (DOI) which denied the tribe's petition for federal acknowledgement.

*Holding: The Court of Appeals held that:
(1) decision to deny tribe's request for acknowledgement was not the result of any improper political influence, and
(2) decision was not a violation of the Vacancies Reform Act.
Affirmed.

Related News Stories: For Schaghticokes, the fight's not over (New London Day) 10/20/09

Ute Distribution Corporation v. Secretary of the Interior of the United States
584 F.3d 1275
No. 08-4147
United States Court of Appeals, Tenth Circuit, October 19, 2009

Subjects: Water rights; Utah; Ute Distribution Corporation; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ex-members; Indians of North America Mixed descent; United States. Ute Partition and Termination Act; United States. Dept. of the Interior.

*Synopsis: Following dismissal, by the United States District Court for the District of Utah, Dee Benson, J., 624 F.Supp.2d 1322, of action challenging Department of the Interior's (DOI) determination that Indian tribe's water rights were previously divided and distributed pursuant to the Ute Partition and Termination Act (UPA), distribution corporation representing terminated mixed-blood former members of the tribe appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that action was untimely filed. Affirmed, and remanded with instructions.

United States v. Milner
583 F.3d 1174
No. 05-35802, 05-36126
United States Court of Appeals, Ninth Circuit, October 9, 2009

Subjects: Trespass; Submerged lands; Land use; United States. Rivers and Harbors Appropriation Act; United States. Federal Water Pollution Control Act; United States. Equal Access to Justice Act; Lummi Tribe of the Lummi Reservation, Washington.

*Synopsis: United States, on own behalf and as trustee on behalf of Indian tribe, sued waterfront homeowners, claiming violations of common law trespass, Rivers and Harbors Appropriation Act (RHA), and Clean Water Act (CWA), arising from ambulatory tideland property boundary coming to intersect with shore defense structures erected by homeowners. Following bench trial, the United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2005 WL 3072830, granted government summary judgment, ordered removal of structures and payment of civil penalty, and denied award of attorney fees, under Equal Access to Justice Act (EAJA). Homeowners appealed.

*Holding: The Court of Appeals, B. Fletcher, Circuit Judge, held that:
(1) United States, not State of Washington, owned tidelands;
(2) homeowners' construction of structures to prevent erosion was no defense to trespass claim; (3) common enemy doctrine did not apply as defense to trespass claim;
(4) homeowners intended and caused trespass;
(5) homeowners violated RHA by refusing to remove structures;
(6) fact issue precluded summary judgment as to CWA violation; and
(7) award of attorney fees was not warranted under EAJA.
Affirmed in part, reversed in part, and remanded.

Frazier v. Brophy
358 Fed.Appx. 212
No. 08-2919-CV
United States Court of Appeals, Second Circuit, October 8, 2009

Subjects: not available

*Synopsis: Action was brought against casino and other defendants. The United States District Court for the Northern District of New York, Skullin, J., entered summary judgment in defendants' favor, 2008 WL 4834929, and plaintiffs appealed.

*Holding:The Court of Appeals held that district court lacked subject matter jurisdiction over Indian tribe on basis of diversity.
Remanded with directions to dismiss.

Beaulieu v. Minnesota
583 F.3d 570
No. 08-3322
United States Court of Appeals, Eighth Circuit, October 8, 2009

Subjects: not yet available

*Synopsis: Petitioner sought habeas relief, arguing that Minnesota lacked jurisdiction to enforce its civil commitment statutes on Indian reservation. The United States District Court for the District of Minnesota, James M. Rosenbaum, J., 2008 WL 4104701, adopting Report and Recommendation of Janie S. Mayeron, United States Magistrate Judge, denied relief. Petitioner appealed.

*Holding: The Court of Appeals, Smith, Circuit Judge, held that:
(1) finding that petitioner procedurally defaulted his claim was not precluded
by fact that his claim was challenge to subject matter jurisdiction, and
(2) petitioner failed to exhaust Minnesota remedies as to his claim that his
attorney's failure to timely file appeal of civil commitment order constituted
cause for his procedural default.
Affirmed.

Lanphere v. Wright
2009 WL 3617752
No. C09-5462BHS
United States District Court, October 29, 2009

Subjects: not yet available

*Synopsis: (from the opinion) As a threshold matter, the Court must determine whether it is vested with authority to rule in a matter where the same parties have presented the same issues before the Tribal Court of Appeals and that action remains unresolved in the tribal court system. This is the case here. See Dkt. 5 (first amended complaint); see also Dkt. 6-4 (order staying Tribal Court of Appeals proceedings). Defendants move the Court to dismiss this case because Plaintiffs have failed to exhaust their remedies in the Puyallup Tribal Court.

*Holding: not yet available

Slokish v. United States Federal Highway Administration
2009 WL 3335320
No. CV-08-1169-ST
United States District Court, Oregon, October 13, 2009

Subjects: Sacred sites -- Oregon; Archaeological sites -- Oregon; Hood, Mount (Or.); United States. National Historic Preservation Act of 1966; United States. National Environmental Policy Act of 1969; United States. Federal Highway Administration; Oregon. Dept. of Transportation; United States. Bureau of Land Management.

*Synopsis: (from the opinion) This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project ('Wildwood-Wemme project' or 'the project') near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration ('FHWA'), United States Bureau of Land Management ('BLM'), Advisory Council on Historic Preservation ('ACHP'), and Matthew Garrett, the Director of the Oregon Department of Transportation ('ODOT'), violated the National Historic Preservation Act ('NHPA'), 16 USC ?? 470-470x-6, National Environmental Policy Act ('NEPA'), 42 USC ?? 4321-4347, ? 4(f) of the Department of Transportation Act ('DTA'), 49 USC ? 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.

*Holding: not yet available

United States v. Taylor
663 F.Supp.2d 1157
No. 07-CR-1244 WPJ
United States District Court, D. New Mexico, October 9, 2009

Subjects: not yet available

*Synopsis: Defendant was charged with multiple violent crimes in aid of purported racketeering activity. Defendant moved to dismiss or, in the alternative, stay the proceedings.

*Holding: The District Court, William P. Johnson, J., held that:
(1) Court had to look to relevant qualified juror wheels when analyzing jury
composition;
(2) jurors who did not provide any information on their race and/or
ethnicity had to be excluded entirely from calculations of disparities for
Hispanics and Native Americans;
(3) use of population data from most recent census was appropriate to make
calculations of disparities for Hispanics and Native Americans;
(4) absolute disparity of 4.7 percent and comparative disparity of 12.8 percent
between grand jury list and adult population of entire state was not sufficient to
make out prima facie case that Hispanics were underrepresented;
(5) absolute disparity of 3.0 percent and comparative disparity of 8.4 percent
between petite jury list and adult population of entire state was not sufficient
to make out prima facie case that Hispanics were underrepresented;
(6) absolute disparity of 0.3 percent, and comparative disparity of 17.6
percent, between grand jury list and adult population of entire state was not
sufficient to make out prima facie case that Native Americans were
underrepresented;
(7) absolute disparity of 3.5 percent, and comparative disparity of 40.2
percent, between petite jury list and adult population of entire state was not
sufficient to make out prima facie case that Native Americans were
underrepresented; and
(8) absolute disparities for men of 4.6 percent and 5.1 percent, and comparative
disparities of 9.5 percent and 10.5 percent, for grand and petit jury
respectively, were not sufficient to make out prima facie case that men were
underrepresented.
Motion denied.

Gristede's Food, Inc v. Unkechauge Nation
2009 WL 3235181
No. 06-cv-1260
United States District Court, E.D. New York, October 8, 2009

Subjects: Cigarettes -- Taxation; Cigarettes -- Sales; United States. Racketeer Influenced and Corrupt Organizations Act; United States. Trademark Act of 1946; Unkechauge Poospatuck Tribe; Shinnecock Indian Nation (N.Y.); Gristede's Foods, Inc.

*Synopsis: Supermarket chain brought action under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Lanham Act, and New York law against, inter alia, two Indian tribes and a smoke shop, alleging that they engaged in unauthorized sale of untaxed cigarettes to non-tribe members. Defendants moved to dismiss.

*Holding: The District Court, Matsumoto, J., held that:
(1) Court had jurisdiction to determine whether tribe was entitled to tribal
status;
(2) tribe was entitled to sovereign immunity;
(3) smoke shop was not an arm of the tribe; and
(4) owner of smoke shop was entitled to sovereign immunity only to extent he was
being sued in his capacity as a tribal government official for acts within the
scope of his tribal authority.
Motion granted in part and denied in part.

Confederated Bands and Tribes of the Yakama Nation v. United States
89 Fed.Cl. 589
No. 09-160L
United States Court of Federal Claims, October 8, 2009

Subjects: Jurisdiction; Breach of trust; Fiduciary accountability; Confederated Tribes and Bands of the Yakama Nation, Washington.

*Synopsis: Indian tribe and Indian landowners, as lessors, sued United States, claiming breach of trust and fiduciary duties by failing to collect second-quarter rent from lessees under 20-year recreational lease of Indian reservation land allotments held in trust by Secretary of Interior, pursuant to Indian Long-Term Leasing Act. Government moved to dismiss for lack of subject matter jurisdiction.

*Holding: The Court of Federal Claims, Miller, J., held that:
(1) under ripeness doctrine, claim was fit for judicial review, and
(2) under ripeness doctrine, Indians would suffer sufficient nonfinancial
hardship absent judicial review.
Motion denied.

Rosales v. United States
2009 WL 3286594
No. 08-512 L, 98-860 L
United States Court of Federal Claims, October 7, 2009

Subjects: Tribal government; Elections; Land tenure; Jamul Indian Village of California -- Trials, litigation, etc.

*Synopsis: Indians filed suits against United States, claiming breach of fiduciary and trust duties, under panoply of statutes including Indian Reorganization Act (IRA) and Native American Graves Protection and Repatriation Act (NAGPRA), and seeking to invalidate tribal elections and to wrest from tribal government beneficial ownership of two parcels of land for which United States allegedly effected taking without just compensation by granting parcels to tribal government. Following consolidation, United States moved to dismiss.

*Holding: The Court of Federal Claims, Block, J., held that:

(1) claims were time-barred;
(2) timeliness of claims was not restored under continuing claims doctrine;
(3) claims were ineligible for accrual suspension;
(4) claims were not tolled by Indian Trust Accounting Statute (ITAS);
(5) assuming claims were timely, collateral estoppel barred adjudication, and
(6) assuming claims were not precluded, tribal government was necessary and
indispensable party barred from joinder by sovereign immunity.
Motion granted.

Northern Arapaho Tribe v. Harnsberger
2009 WL 3229758
No. 08-CV-215-B
United States District Court, District of Wyoming, October 6, 2009

Subjects: Taxation; Intergovernmental agreements; Boundaries; Wind River Indian Reservation (Wyo.); Northern Arapaho Tribe of the Wind River, Reservation, Wyoming.

*Synopsis: Northern Arapaho Tribe (NAT) brought action seeking injunctive relief against allegedly unlawful taxation by state and county defendants within Wind River Indian Reservation. After city which was purportedly situated within reservation intervened, and Eastern Shoshone Tribe (EST) and United States were joined as third-party defendants as required parties, defendants and third-party defendants moved to dismiss.

*Holding: The District Court, Clarence A. Brimmer, J., held that:
(1) EST enjoyed sovereign immunity precluding its involuntary joinder as
third-party defendant;
(2) Administrative Procedure Act (APA) did not effect waiver of United States'
sovereign immunity;
(3) potential prejudice to sovereign interests of EST and United States if
judgment were rendered in their absence weighed in favor of dismissal for failure
to join required parties;
(4) potential prejudice to state and county defendants if judgment were rendered
in absence of EST or United States weighed in favor of dismissal;
(5) inability to mitigate potential prejudice weighed in favor of dismissal;
(6) inadequacy of any judgment rendered in absence of EST and United States
weighed in favor of dismissal; and
(7) potential prejudice to NAT due to lack of alternative forum was outweighed
by factors favoring dismissal.

Motions granted.

Ute Mountain Ute Tribe v. Homans
2009 WL 7809263
No. CIV 07-772 JP/WDS..
United States District Court, District of New Mexico Oct. 2, 2009

*Synopsis: Indian tribe filed a complaint against New Mexico's Secretary of Taxation and Revenue Department, alleging that the imposition of state taxes on their land and on oil and gas production equipment violated tribal members' constitutional rights.

*Holdings: The District Court, James A. Parker, Senior District Judge, held that federal law preempted New Mexico's assertion of jurisdiction to tax non-Indians' severance of oil and gas on reservation land.
Ordered accordingly.

September

Arctic Slope Native Association, LTD. v. Sebelius
583 F.3d 785
No. 2008-1532, 2008-1607, 2009-1004
United States Court of Appeals, Federal Circuit, September 29, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Indian tribes and tribal health care providers, as members of putative class action suits that were denied certification, challenged Indian Health Service (IHS) contracting officers' denial of Contract Disputes Act (CDA) claims that IHS had failed to pay full amount of contract support costs incurred in providing health services to tribal members, under IHS contracts pursuant to Indian Self-Determination and Education Assistance Act (ISDA). The Civilian Board of Contract Appeals, Candida S. Steel, A.J., 2008 WL 3052447, dismissed claims as time-barred. Appeal was taken.

*Holding: The Court of Appeals, Bryson, Circuit Judge, held that:
(1) limitations period for CDA claims was not tolled under class action tolling
doctrine, but
(2) in matter of first impression, limitations period for CDA claims was subject
to equitable tolling.
Affirmed in part, reversed in part, and remanded

United States v. Stymiest
581 F.3d 759
No. 08-3320
United States Court of Appeals, Eighth Circuit,September 22, 2009

Subjects: Assault and battery -- In Indian Country; Violent crimes -- In Indian Country.

*Synopsis: After having his motions to suppress and to dismiss denied by the United States District Court for the District of South Dakota, Charles B. Kornmann, J., 2008 WL 2132998, adopting the report and recommendation of Mark A. Mareno, United States Magistrate Judge 2008 WL 2038863, defendant was convicted in a jury trial of assault resulting in serious bodily injury in Indian country. Defendant appealed.

*Holding: The Court of Appeals, Loken, Chief Judge, held that:
(1) jury instruction on determining defendant's Indian status was not abuse of discretion;
(2) sufficient evidence supported jury's finding that defendant was an Indian for purposes of statute governing crimes committed in Indian country;
(3) jury instruction did not constructively amend indictment;
(4) district court did not abuse its discretion by allowing witness to testify that defendant took a knife from kitchen and left in pursuit of victim; and
(5) defendant's third-degree burglary conviction was a crime of violence under the Armed Career Criminal Act (ACCA).
Affirmed.

United States v. Espinosa
581 F.3d 826
No. 08-3354
United States Court of Appeals, Eighth Circuit, September 18, 2009

Subjects: Child sexual abuse; Sex crimes -- South Dakota.

*Synopsis: Defendant was convicted of aggravated sexual abuse and abusive sexual contact, following jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, Senior District Judge. Defendant appealed.

*Holding:The Court of Appeals, Smith, Circuit Judge, held that:
(1) conviction for aggravated sexual abuse was supported by sufficient evidence;
(2) evidence was insufficient to show that child's age was below twelve when
alleged sexual contact occurred, as required to support conviction for abusive
sexual contact;
(3) mistrial was not warranted due to psychiatrist's testimony that it was her
opinion that child had suffered sexual abuse;
(4) statements from witnesses attesting to child's alleged prior consistent
statements accusing defendant of abuse were not hearsay.
Affirmed in part, reversed in part, and remanded.

Eastern Shawnee Tribe of Oklahoma v. United States
582 F.3d 1306
No. 2008-5102
United States Court of Appeals, Federal Circuit,September 17, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Fiduciary accountability; Federal-Indian trust relationship; Trusts and trustees; Breach of trust -- United States; Jurisdiction; Eastern Shawnee Tribe of Oklahoma.

*Synopsis: Indian tribe sued United States, seeking damages for alleged breach of fiduciary duties as trustee of tribe's assets and property. The United States Court of Federal Claims, Charles F. Lettow, J., 82 Fed.Cl. 322, dismissed without prejudice on jurisdictional grounds. Tribe appealed.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that tribe's claim in district court did not bar tribe's claim in Court of Federal Claims.
Reversed and remanded.

State of Michigan v. United States Environmental Protection Agency
581 F.3d 524
No. 08-2582
United States Court of Appeals, Seventh Circuit,September 9, 2009

Subjects: Air quality management -- On Indian reservations; Forest County Potawatomi Community, Wisconsin; Wisconsin; Michigan; United States. Environmental Protection Agency; United States. Clean Air Act.

*Synopsis: Michigan filed petition for review of Environmental Protection Agency's (EPA) final ruling redesignating Indian tribe's lands to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act, which had the effect of imposing stricter air quality controls on emitting sources in and around tribe's redesignated lands.

*Holding: The Court of Appeals, Wood, Circuit Judge, held that:
(1) Michigan did not sustain cognizable injury from EPA's final ruling;
(2) even assuming injury resulted from EPA's final ruling, Michigan was not the injured party; and
(3) Michigan's alleged injuries resulting from EPA's final ruling were not redressable.
Petition dismissed.

United States v. Bullcoming
579 F.3d 1200
No. 09-6010
United States Court of Appeals, Tenth Circuit, September 3, 2009

Subjects: Embezzlement -- Tribes -- Oklahoma.

*Synopsis: Defendant pled guilty in the United States District Court for the Western District of Oklahoma to embezzlement from Indian tribal organizations, and he was sentenced to 36 months' imprisonment. Defendant appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that:
(1) government did not breach plea agreement by presenting testimony of witness
who argued that the defendant failed to accept responsibility;
(2) government did not breach plea agreement by commenting at sentencing hearing
that it would probably never be able to prove the full amount of restitution that
defendant ultimately should be entitled to pay; and
(3) applying upward variance to impose a sentence which was double that of the
top of the applicable Sentencing Guidelines range was warranted.
Affirmed.

Hobbs v. Zenderman
579 F.3d 1171
No. 08-2099
United States Court of Appeals, Tenth Circuit, September 1, 2009

Subjects: Medicaid; Supplemental-needs trusts; Civil rights; Off-reservation Indians; New Mexico. Dept. of Human Services.

*Synopsis: Medicaid claimant brought ? 1983 action against several employees of New Mexico Human Services Department following its denial of his application for benefits. The United States District Court for the District of New Mexico, Bruce D. Black, J., granted summary judgment to defendants. Claimant appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Medicaid statute exempting special needs trusts from the counting of resources available did not create private right of action under ? 1983;
(2) methodology provisions of Medicaid statute did not support claimant's ? 1983 action; and
(3) counting of special needs trust resources did not violate due process.
Affirmed.

Native Village of Kivalina v. Exxonmobil Corporation
2009 WL 3326113
No. C 08-1138 SBA
United States District Court, N.D. California, September 30, 2009

Subjects: Native Village of Kivalina; Exxon Mobil Corporation; Global warming; Arctic regions; Damages.

*Synopsis:Eskimo village and city brought action against oil, energy and utility companies for federal common law nuisance, based on emission of greenhouses gases that contributed to global warming, which caused erosion of Arctic sea ice. Defendants filed motions to dismiss for lack of subject matter jurisdiction.

*Holding: The District Court, Saundra Brown Armstrong, J., held that:
(1) issue whether emission of greenhouse gases from defendants' conduct
contributed to global warming was not relegated exclusively to Executive, for
purposes of determining whether issue raised nonjusticiable political question;
(2) claim presented lack of judicially discoverable and manageable standards;
(3) claim required court to make initial, important policy determinations;
(4) village and city lacked Article III standing; and
(5) village and city did not have standing based on special solitude afforded to
sovereigns.
Motions to dismiss granted.

Sisseton Wahpeton Oyate v. United States Department of State
2009 WL 3153655
No. 08-3023
United States District Court, South Dakota, September 29, 2009

Subjects: not yet available

*Synopsis: Indian tribes brought action against United States Department of State and various officials therein, arising out of planned construction of oil pipeline across the border of Canada into the United States. Defendants moved to dismiss.

*Holding: The District Court, Kornmann, J., held that:
(1) Indian tribes lacked standing to challenge permit;
(2) National Environmental Policy Act (NEPA) did not provide private cause of action;
(3) National Historic Preservation Act (NHPA) did not provide private cause of action; and
(4) actions taken pursuant to executive order were presidential in nature.
Motion granted.

New York v. Salazar
2009 WL 3165591
No. 6:08-CV-644
United States District Court, N.D. New York, September 29, 2009

Subjects: Land into trust; Oneida Nation of New York; United States. Dept. of the Interior.

*Synopsis: (from the opinion) The above-captioned case is one of several filed in this Court by different plaintiffs raising challenges to various aspects of the DOI's May 20, 2008 Record of Decision. See 5:08-CV-633; 5:08-CV-648; 5:08-CV-649; 6:08-CV-647; 6:08-CV-660. These cases represent only the latest chapter in a long saga of litigation involving the OIN's land claims in New York.

*Holding: not yet available

Town of Verona v. Salazar
2009 WL 3165556
No. 6:08-CV-647
United States District Court, N.D. New York, September 29, 2009

Subjects: Land into trust; Oneida Nation of New York; United States. Dept. of the Interior.

*Synopsis: (from the opinion) Plaintiffs filed this action on June 19, 2008, challenging a May 20, 2008 Record of Decision ('ROD') in which the United States Department of the Interior ('DOI') decided to accept over 13,000 acres of land in central New York into trust for the benefit of the Oneida Indian Nation of New York

*Holding: not yet available

Vacco v. Harrah's Operating Company, Inc.
2009 WL 3164732
No. 07-CV-663
United States District Court, N.D. New York, September 28, 2009

Subjects: Tribes -- Government relations; Tribal government; Saint Regis Mohawk Tribe, New York.

*Synopsis: (from the opinion) This case arises in the midst of a long-standing dispute within the St. Regis Mohawk Tribe ('the Tribe') regarding the system of governance in the Tribe, and the uncertainty by the Executive Branch of the U.S. government as to which system of tribal government it would recognize for purposes of interaction with the U.S. government.

*Holding: not yet available

Saginaw Chippewa Indian Tribe of Michigan v. Granholm
2009 WL 3125612
No. 05-10296-BC
United States District Court, E.D. Michigan, September 28, 2009

Subjects: Jurisdiction; Indian Country (U.S.); Saginaw Chippewa Indian Tribe of Michigan.

*Synopsis: (from the opinion) The Saginaw Chippewa's complaint alleges that pursuant to the two treaties, the six townships became 'Indian country' subject to the jurisdiction of the Saginaw Chippewa. Am. Cmpl. ? 1; [Dkt. # 17]. The complaint seeks declaratory and injunctive relief, requiring Defendant officials of the State of Michigan (collectively 'Michigan' or 'Michigan Defendants') to recognize the six townships as Indian country and 'prohibiting [the Michigan Defendants] from enforcing Michigan state law against the [Saginaw Chippewa] and its members within' the six townships.

*Holding: not yet available

Mesa Grande Band of Mission Indians v. Salazar
2009 WL 3088798
No. 08cv1544-LAB
United States District Court, S.D. of California, September 25, 2009

Subjects: Indian title; Land titles; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande; Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation, California; United States. Dept. of the Interior.

*Synopsis: Indian tribe sued Secretary of Department of Interior, claiming beneficial title to over 15,000 acres of land for which government, as trustee, allegedly mistakenly issued patents to neighboring Indian tribe. Government moved to dismiss.

*Holding: The District Court, Larry Alan Burns, J., held that:

(1) Secretary was shielded from suit by sovereign immunity, and

(2) tribe's claim was time-barred.

Motion granted.

Brown v. Hawaii
2009 WL 3818233
No. 07-00556 ACK-LEK
United States District Court, Hawaii, September 23, 2009

Subjects: not yet available

*Synopsis: Former state employee brought action against State of Hawaii and administrator of State Historic Preservation Division, asserting claims under s 1983 for First Amendment retaliation and under Native American Graves and Repatriation Act (NAGPRA).

*Holding: >The District Court, Alan C. Kay, Senior District Judge, held that:
(1) employee's statements were made pursuant to his official duties;
(2) employee failed to demonstrate that his statements were substantial or
motivating factor in administrator's decision not to renew his employment; and
(3) fact issue precluded summary judgment for employee on NAGPRA claim.
Ordered accordingly.

Water Wheel Camp Recreation Area v. LaRance
2009 WL 3089216
No. CV-08-0474-PHX-DGC
United States District Court, Arizona, September 23, 2009

Subjects: Tribal courts; Jurisdiction; Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Water Wheel Camp Recreational Area, Inc.

*Synopsis: (from the opinion) Plaintiffs Water Wheel Camp Recreational Area, Inc. and Robert Johnson have been sued for eviction in an action pending in the Tribal Court of the Colorado River Indian Tribes ('CRIT'). Plaintiffs ask this Court to prevent Defendants-a judge and clerk of the Tribal Court-from proceeding with the Tribal Court action. Plaintiffs argue that the Tribal Court lacks subject matter jurisdiction under Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). After hearings on two requests for temporary restraining orders, extensive litigation in the Tribal Court and Tribal Court of Appeals, and considerable briefing and oral argument, the Court concludes that the Tribal Court properly exercised jurisdiction over Water Wheel, but not over Robert Johnson. The Court will grant Plaintiffs' request for declaratory relief with respect to Mr. Johnson and deny it with respect to Water Wheel.

*Holding: not yet available

Related News Stories: Court speaks: CRIT and Residents see judgment differently (Parker Live) 9/29/09

.

Springer v. Griffin
2009 WL 3052209
No. 4:09CV3166
United States District Court, Nebraska, September 23, 2009

Subjects: Casinos; Indian gaming; Profit-sharing; Revenue sharing; Omaha Tribe of Nebraska.

*Synopsis: (from the opinion) Plaintiff alleges that Defendants violated federal law when they failed to provide him with his per capita distribution of casino proceeds. ( Id. at CM/ECF pp. 4, 6-9.) Specifically, Plaintiff alleges that Defendants have control of the Omaha Tribe's financial resources, including 'Casino Omaha and Casino Lucky 77.' ( Id. at CM/ECF pp. 4-8.) Omaha tribal members are 'entitled' to a portion of the proceeds generated by these casinos and Defendants distribute these proceeds by check. ( Id.) Defendants allegedly distributed at least four of Plaintiff's 'entitlement' checks to another 'Springer Family' member. ( Id. at CM/ECF pp. 4-5.) Plaintiff seeks monetary relief in an 'undetermined' amount for the four checks. ( Id. at CM/ECF pp. 5, 10.) Plaintiff also seeks injunctive relief in the form of a temporary restraining order that prevents the 'sale of [tribal] land to outside investors.' ( Id.)

*Holding: not yet available

City of Oneida, New York v. Salazar
2009 WL 3055274
No. 5:08-CV-0648
United States District Court, N.D. of New York, September 21, 2009

Subjects: Trust lands; Oneida (N.Y.); Oneida Nation of New York; United States. Dept. of the Interior.

*Synopsis: (from the opinion) The City of Oneida, New York ('Plaintiff') filed this action on June 19, 2008, challenging a May 20, 2008 Record of Decision ('ROD') in which the United States Department of the Interior ('DOI') decided to accept approximately 13,000 acres of land in central New York into trust for the benefit of the Oneida Indian Nation ('OIN'). See generally Complaint (Dkt. No. 1). Presently before the Court is a Motion to dismiss two of Plaintiff's claims, filed by Defendants.

*Holding: not yet available

Miccosukee Tribe of Indians of Florida v. United States
2009 WL 2970498
No. 08-23001-CIV
United States District Court, S.D. Florida, September 16, 2009

Subjects: Florida. Indian Claims Settlement Act; Water leases; Water quality management; Miccosukee Tribe of Indians of Florida.

*Synopsis: (from the opinion) The Miccosukee Tribe claims that Defendants violated the Florida Indian Claims Settlement Act by violating the terms of the Lease. See 25 U.S.C. ?? 1741 et seq. (ratifying the Lease). The stated purpose of the Lease is: '(1) to preserve the Leased Area in its natural state for the use and enjoyment of the Miccosukee Tribe and the general public ... (2) to preserve fresh water aquatic life, wildlife, and their habitat; and (3) to assure proper management of water resources.'

*Holding: not yet available

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
2009 WL 2971547
No. CIV. S-04-2265 FCD KJM
United States District Court, E.D. California, September 11, 2009

Subjects: Intergovernmental agreements -- California; Intergovernmental agreements -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California.

*Synopsis: (from the opinion) Defendants contend that they are likely to succeed on the merits with respect to their questions of 'whether it was proper ... for the court to weigh disputed facts in order to determine: (a) that the parties had no common understanding of the meaning of ? 4.3 .2.2(a)(1) of Colusa and Picayune's respectie Compacts at the time the Compacts were executed in 1999; and (b) that the 1999 Compact was drafted by the State without negotiation by Colusa and Picayune, and is therefore subject to the doctrine of contra proferentem.? (Def.'s Mot., filed Sept. 1, 2009, at 9.) Defendants also assert, for the very first time, that there was not a sufficient binding agreement between the parties. ( Id. at 12.) Finally, defendants assert that the court's entry of judgment pursuant to the Ninth Circuit's remand order is an 'unusual remedy,' which creates an 'asymmetrical legal relationship between the 1999 Compact tribes and the State.'

*Holding: not yet available

Hoaglen v. Reinke
2009 WL 2949309
No. CV-08-272-S-BLW
United States District Court, Idaho, September 11, 2009

Subjects: Freedom of religion -- Indian prisoners; Indian prisoners -- Rites and ceremonies -- Protection; Indian prisoners -- Religion -- Protection; United States. Religious Land Use and Institutionalized Persons Act of 2000; Idaho. Dept. of Correction.

*Synopsis: (from the opinion) Plaintiffs allege that Idaho Department of Correction (IDOC) officials have violated their rights under the Religious Land Use and Institutionalized Persons Act ('RLUIPA') by impeding their ability to practice their Native American religions. Complaint, (Docket No. 7), p. 4. Plaintiffs claim that they are being denied the right to engage in religious practices that are central to their religion. They also allege that the IDOC failed to create policies relating to the religious worship rights of Native American inmates. They claim that the failure to create a policy relating to religious worship rights has adversely affected the Native American inmates who are transferred to prisons outside of Idaho. Id. Plaintiffs further allege that IDOC officials are violating the 'Brown Consent Decree' which protects the religious worship rights of Native American inmates.

*Holding: not yet available

Russell v. United States
2009 WL 2929426
No. CV-08-8111-PCT-MHM
United States District Court, Arizonia, September 10, 2009

Subjects: Traffic violations; Indian reservation police; Police brutality; Police misconduct; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona.

*Synopsis: (from the opinion) Plaintiff, Gregory Russell, is an enrolled member of the Hualapai Indian Tribe. Plaintiff alleges that on May 21, 2006 he was stopped by Hualapai Nation Police Officer Francis Bradley, Jr. for driving recklessly on tribal land. Plaintiff claims that shortly after being placed in handcuffs at the scene of the arrest, Francis Bradley, Sr., Chief of Police of the Hualapai Nation Police Department, and father of the arresting officer, arrived at the scene. According to Plaintiff, officers Bradley, Jr. and Bradley, Sr. physically assaulted Plaintiff before transporting him in a federal BIA vehicle to the Hualapai Nation Police headquarters. After arriving at police headquarters, Hualapai Nation Police Officer Brian Miller allegedly came out of the building to meet the incoming vehicle, which contained Plaintiff, two other detained individuals, Officer Bradley, Jr., and Chief Bradley, Sr. While in custody at the Hualapai Nation Police headquarters, Plaintiff claims that he was again physically assaulted, this time by Hualapai Nation police officers Bradley, Jr., Bradley, Sr., and Miller. Plaintiff subsequently filed suit in federal court against the United States of America pursuant to the Federal Tort Claims Act ('FTCA'), 28 U.S.C. ? 2680.

*Holding: not yet available

The Shinnecock Indian Nation v. Kempthorne
2009 WL 2873174
No. 06-CV-5013 (JFB)(ARL)
United States District Court, E.D. of New York, September 9, 2009

Subjects: Federal recognition of Indian tribes; Federal-Indian trust relationship; Shinnecock Indian Nation (N.Y.); United States. Dept. of the Interior; United States. Indian Non-Intercourse Act of 1834.

*Synopsis:Following dismissal, 2008 WL 4455599, of three claims in Indian tribe's action against the Department of the Interior (DOI) and various Government officials, tribe filed a second amended complaint which added two claims, including one to compel disclosure of documents pursuant to the Freedom of Information Act (FOIA). DOI moved for summary judgment with respect to the FOIA claim, or for in camera review of the withheld documents, and tribe cross-moved for summary judgment.

*Holding: The District Court, Joseph F. Bianco, J., held that:
(1) documents identified by DOI as responsive to tribe's FOIA request were
properly considered predecisional;
(2) documents were properly considered deliberative;
(3) documents were entitled to protection from disclosure under the work product
privilege; and
(4) documents contained no non-exempt material that was reasonably segregable
from those portions of the documents that were exempt from disclosure.
Defendants' motion granted and plaintiffs' cross-motion denied.

Salt River Pima-Maricopa Indian Community v. United States
2009 WL 2870094
No. CV-08-1005-PHX-ROS
United States District Court, District of Arizona, September 3, 2009

Subjects: Electric lines -- On Indian reservations; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona.

*Synopsis: (from the opinion) On May 30, 2008 the Salt River Pima-Maricopa Indian Community and various Community members (Plaintiffs/Counterdefendants) filed a tort class action against the United States and its officers (Defendants/Counterclaimants) relating to the unauthorized presence of federal power lines on Plaintiffs' property, seeking monetary, declaratory and injunctive relief.

*Holding: not yet available

Quapaw Tribe of Oklahoma v. Blue Tee Corp
2009 WL 2901191
No. 03-CV-0846-CVE-PJC
United States District Court, N.D. Oklahoma, September 2, 2009

Subjects: Sovereignty; Quapaw Tribe of Indians, Oklahoma -- Members.

*Synopsis: (from the opinion) Defendants collectively assert that the Quapaw Tribe of Oklahoma (the Tribe) lacks standing to pursue any claim on behalf of its members because the claims asserted in the fifth amended complaint and any respective damages belong exclusively to the individual Tribal members. The Tribe responds that it has parens patriae standing to assert claims to protect its quasi-sovereign interest in the health and well-being of Tribal members, without interfering with the rights of its members to pursue their own claims.

*Holding: not yet available

August

Kaltag Tribal Council v. Jackson
344 Fed.Appx. 324
No. 08-35343
United States Court of Appeals, Ninth Circuit, August 28, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: not yet available

*Synopsis: Tribal council of native village and others brought action against employees of State of Alaska's Department of Health and Human Services, alleging that adoption judgment issued by tribal court was entitled to full faith and credit under the Indian Child Welfare Act (ICWA) and that the Alaska employees were required to grant request for new birth certificate. The United States District Court for the District of Alaska, Timothy M. Burgess, J., granted plaintiffs' motion for summary judgment and denied defendants' motion.
Defendants appealed.

*Holding:The Court of Appeals held that:
(1) neither the ICWA nor Public Law 280 prevented the tribal court from exercising jurisdiction, and (2) the Eleventh Amendment did not bar the relief sought by plaintiffs.

United States v. George
579 F.3d 1171
No. 08-30339
United States Court of Appeals, Ninth Circuit, August 25, 2009

Subjects: Sex offenders -- Washington (State) -- Registers; United States. Sex Offender Registration and Notification Act.

*Synopsis: Defendant was convicted, by conditional guilty plea, of failure to register as sex offender, in violation of Sex Offender Registration and Notification Act (SORNA), by the United States District Court for the Eastern District of Washington, Wm. Fremming Nielson, J. Defendant appealed.

*Holding: The Court of Appeals, Thompson, Senior Circuit Judge, held that:
(1) in matter of first impression, conviction was not invalidated by
Washington's failure to implement SORNA;
(2) SORNA's registration requirement was not outside Congress' Commerce Clause
powers; and
(3) SORNA's registration requirement did not violate Ex Post Facto Clause.
Affirmed.

Yankton Sioux Tribe v. Podhradsky
577 F.3d 951
No. 08-1441, 08-1488
United States Court of Appeals, Eighth Circuit, August 25, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Diminished Indian reservations; Trust lands; Boundaries; Yankton Sioux Tribe of South Dakota; Charles Mix County (S.D.); South Dakota.

*Synopsis: Following remand, 522 U.S. 329, 118 S.Ct. 789, 139 L.Ed.2d 773, of Indian tribe's action challenging State of South Dakota's jurisdiction over lands that once fell within reservation boundaries, action was consolidated with tribe's separate action seeking declaratory judgment that all land not ceded to the United States remained part of tribe's reservation. The District Court, 14 F.Supp.2d 1135, entered judgment for tribe, and appeal was taken. The Court of Appeals, 188 F.3d 1010, ruled that reservation had been diminished rather than disestablished and that it included at least certain reserved agency trust lands, but reversed and remanded in other respects. The United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 529 F.Supp.2d 1040, ruled that certain trust land remained part of the reservation and that land continuously owned in fee by individual Indians also qualified as reservation. State and county appealed, and tribe cross-appealed.

*Holding: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) two parcels of agency trust land were "reservation land" under the
controlling law of the case;
(2) decision of the Secretary of the Interior, to take former reservation land
into trust for Indian tribe pursuant to the Indian Reorganization Act (IRA), was
sufficient to restore that land to its previous status as "reservation" land;
(3) miscellaneous lands that were acquired in trust for Indian tribe other than
under the IRA constituted "dependent Indian communities" within meaning of statute
establishing federal jurisdiction over Indian country; and
(4) statute prohibiting alterations to boundaries of Indian reservations except
by act of Congress did not serve to establish that any lands alienated in fee to
whites during effective period of such freeze should be considered part of the
reservation.
Affirmed in part and vacated in part.

Related News Stories: Appeals court upholds existence of SD reservation (The Daily Republic) 8/27/09

United States v. Washington
579 F.3d 969
No. 08-35794
United States Court of Appeals, Ninth Circuit, August 19, 2009

Subjects: not yet available

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

*Holding: not yet available

Ottawa Tribe of Oklahoma v. Logan
577 F.3d 634
No. 08-3621
United States Court of Appeals, Sixth Circuit, August 18, 2009

Subjects: Fishing rights; Treaty rights; Ottawa Tribe of Oklahoma; Ohio. Dept. of Natural Resources.

*Synopsis: Ottawa Tribe of Oklahoma sought declaratory judgment that it had right to fish in Lake Erie without restrictions from Ohio Department of Natural Resources (DNR). The United States District Court for the Northern District of Ohio, Jack Zouhary, J., 541 F.Supp.2d 971, granted DNR summary judgment. Tribe appealed.

*Holding: The Court of Appeals, Alan E. Norris, Circuit Judge, held that whatever fishing rights Tribe had were extinguished when Tribe abandoned the land.

Related News Stories: Indian tribe loses claim to Lake Erie fishing rights (toledoBlade.com) 8/19/09.

ENSCO International, Incorporated v. Certain underwriters at Lloyd's
579 F.3d 442
No. 08-10451
United States Court of Appeals, FIfth Circuit, August 12, 2009

Subjects: Offshore oil well drilling.

*Synopsis: Owner of offshore drilling rig damaged in hurricane brought action in state court against its insurer to recover costs of removal of debris from the rig that fell to the sea floor. Following removal, owner moved to remand. The United States District Court for the Northern District of Texas, Reed O'Connor, J., 2008 WL 958205, granted motion, and insurer appealed.

*Holding: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that insurer waived right to remove.
Affirmed.

Upper Skagit Tribe v. Washington
576 F.3d 920
No. 07-35061
United States Court of Appeals, Ninth Circuit, August 6, 2009

Subjects: Fishing -- Northwest, Pacific; Fishing rights -- Tribes; Upper Skagit Indian Tribe of Washington; Suquamish Indian Tribe of the Port Madison Reservation, Washington.

*Synopsis: Upper Skagit Tribe filed request for determination that members of Suquamish Indian Tribe, upon changing fishing patterns to include Saratoga Passage and Skagit Bay, were fishing outside of their usual and accustomed fishing grounds and stations in Puget Sound, as established by federal government's treaties with tribes of Pacific Northwest and as adjudicated over three decades ago in government's underlying suit against State of Washington. The United States District Court for the Western District of Washington, Ricardo S. Martinez, J., 2007 WL 30869, granted Upper Skagit summary judgment. Suquamish appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that geographical scope of Suquamish's fishing grounds included waters at center of Puget Sound.
Reversed and remanded.

Related News Stories: Appeals court rules in favor of Suquamish fishing (Seattle Post Intelligencer) 8/6/09

Bressi v. Ford
575 F.3d 891
No. 07-15931
United States Court of Appeals, Ninth Circuit, August 4, 2009

Subjects: Civil rights; Roadblocks (Police methods); Law enforcement -- On Indian reservations; Law enforcement -- Tribes -- United States.

*Synopsis: Arrestee brought civil rights action against tribal police officers and United States after he was stopped and cited at a roadblock on a state highway crossing into tribal reservation. The United States District Court for the District of Arizona, John M. Roll, J., granted summary judgment to the officers and the United States separately. Arrestee appealed.

*Holding: Holdings: The Court of Appeals, Canby, Circuit Judge, held that:
(1) tribal officers were acting under color of state law;
(2) fact issues precluded summary judgment on 1983 claim against officers;
(3) officers were not acting under color of federal authority; and
(4) officers were entitled to qualified immunity concerning the arrest.
Affirmed in part, reversed in part, and remanded.

Related News Stories: Federal appeals court limits tribal roadblocks (thenewspaper.com) 8/10/09. Ruling limits tribal official's authority (East Valley Tribune) 8/4/09

Jicarilla Apache Nation v. United States Department of Interior
648 F.Supp.2d 140
No. 08-0316 (JDB)
United States District Court, District of Columbia, August 31, 2009

Subjects: Oil and gas leases -- Royalties; United States. Indian Mineral Leasing Act of 1938; Jicarilla Apache Nation, New Mexico; United States. Dept. of the Interior; Merit Energy Company.

*Synopsis: Indian tribe sought review of a decision of Interior Board of Land Appeals which determined that United States Department of the Interior had jurisdiction to consider energy company's challenge to substance of order to perform directing company to recalculate royalties due to Indian tribe on oil and gas lease. Energy company intervened and moved to dismiss.

*Holding: The District Court, John D. Bates, J., held that:
(1) decision of Board was not final agency action that was reviewable
under Administrative Procedure Act (APA), and
(2) tribe's breach of trust complaint was not ripe for judicial review.
Motion granted.

Tunica-Biloxi Tribe of Louisiana v. United States
655 F.Supp.2d 62
No. 02-2413 (RBW)
United States Dictrict Court, District of Columbia, August 27, 2009

Subjects: not yet available

*Synopsis: In action under the Contract Disputes Act (CDA), brought against Department of Health and Human Services and Department of the Interior (DOI) by an Indian tribe and the school board of a second tribe, and alleging violations of the Indian Self-Determination and Education Assistance Act (ISDA), after entry of order, 577 F.Supp.2d 382, granting in part and denying in part Government's renewed motion to dismiss and for summary judgment, and denying in part plaintiffs' renewed cross-motion for partial summary judgment, Government moved for clarification and plaintiffs moved for leave to file a second supplemental complaint.

*Holding: The District Court, Reggie B. Walton, J., held that:
(1) Court was without power, in a motion for reconsideration, to dismiss with
prejudice, and
(2) claims raised in proposed second supplemental complaint were futile.
Motions denied.

Port of Arlington v. United States Department of the Army
2009 WL 2843184
No. 08-1344-KI
United States District Court, District of Oregon, August 27, 2009

Subjects: Confederated Tribes of the Umatilla Reservation, Oregon; Port of Arlington (Ore.); United States. Army. Corps of Engineers; United States. Federal Water Pollution Control Act; United States. Rivers and Harbors Act.

*Synopsis: (from the opinion) The Port alleges in its First Amended Complaint that the Corps' decision to revoke the Port's Section 10 Rivers and Harbors Act permit and to deny the Port's Section 404 Clean Water Act permit is unlawful, arbitrary and capricious, and an abuse of discretion under the Administrative Procedures Act. Additionally, the Port contends that the decision was outside the Corps' authority and was the result of bias or misunderstanding of the Corps' fiduciary relationship with the Umatilla Tribe.

*Holding: not yet available

Paddy v. Mulkey
2009 WL 2602001
No. 3:08-cv-00236-LRH-RAM
United States District Court, Nevada, August 21, 2009

Subjects: not yet available

*Synopsis: (from the opinion)

*Holding: not yet available

Patchak v. Salazar
646 F.Supp.2d 72
No. 08-1331(RJL)
United States District Court, District of Columbia, August 19, 2009

Subjects: Trust lands; Allegan County (Mich.); Jurisdiction; United States. Indian Reorganization Act; United States. Dept. of the Interior; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan.

*Synopsis: Resident of rural community filed suit, under Administrative Procedure Act (APA), against Secretary of Interior and Assistant Secretary of Department of Interior, Bureau of Indian Affairs, challenging decision to take two parcels of land into trust on behalf of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, pursuant to Indian Reorganization Act (IRA), and seeking injunctive relief. Government moved to dismiss, and tribe moved for judgment on pleadings.

*Holding:The District Court, Richard J. Leon, J., held that resident was not within IRA's zone of interests for prudential standing. Motions granted.

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California
2009 WL 2475000
No. S-04-2265 FCD KJM
United States District Court, E.D. California, August 11, 2009

Subjects: Indian gaming; Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California.

*Synopsis: (from the opinion) Specifically, defendants seek reconsideration of the court's determination of plaintiffs' claims regarding the size of the Gaming Device license pool under the 1999 Compact.

*Holding: not yet available

Liska v. Macarro
2009 WL 2424293
No. 08-CV-1872IEG(POR)
United States District Court, S.D. California, August 5, 2009

Subjects: Disenrollment; Tribal membership disputes; Sovereign immunity; Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California.

*Synopsis: (from the opinion) Petitioner alleges Respondent was 'at all times [a] member[ ] of the General Council of the tribe or [was an] individual who [was] given official authority to cause the banishment of Petitioner,' and that she caused him to be banished 'while acting in her official capacity.' Respondent argues that because Petitioner sued her in her official capacity, she is protected by the doctrine of sovereign immunity and the Court lacks subject matter jurisdiction over this action.

*Holding: not yet available

Anderson & Middleton Company v. Salazar
2009 WL 2424446
No. 3:09-cv-05033-RBL
United States District Court, W.D. Washington, August 4, 2009

Subjects: Tribal property; Acquisition of property; Quinault Tribe of the Quinault Reservation, Washington; United States. Bureau of Indian Affairs.

*Synopsis: (from the opinion) This case involves the bidding process for the sale of 26 parcels of tribal land owned by individual members of the Quinault Indian Tribe. The question before the Court is whether the Bureau of Indian Affairs (BIA) acted arbitrarily and capriciously in its management of the bidding process or its subsequent forfeiture of the Quinault Indian Nation's (QIN) deposit and right to purchase certain of the parcels.

*Holding: not yet available

July

United States v. Fox
573 F.3d 1050
No. 08-2190
United States Court of Appeals, Tenth Circuit, July 29, 2009

Subjects: Firearms -- Law and legislation -- United States; Hunting rights; Treaties -- United States; Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Following denial of motion to dismiss indictment in the United States District Court for the District of New Mexico, James O. Browning, J., 557 F.Supp.2d 1251, defendant pled guilty to being a felon in possession of a firearm. Defendant appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) Treaty Between the United States of America and the Navajo Tribe of Indians of [1868] guaranteed hunting rights that could be asserted by individual members of tribe, and
(2) Treaty did not insulate individual tribal member from prosecution for possession of firearm by felon.
Affirmed.

United States v. Graham
572 F.3d 954
No. 08-3580, 09-2009
United States Court of Appeals, Eighth Circuit , July 28, 2009

Subjects: Indictments; Murder -- In Indian Country.

*Synopsis: Following grand jury indictment on one count of first degree murder in Indian Country, the United States District Court for the District of South Dakota, Lawrence L. Piersol, J., 585 F.Supp.2d 1144, dismissed the indictment, and, 2009 WL 1173039, dismissed an identical count in later indictment. Government appealed.

*Holding: The Court of Appeals, Benton, Circuit Judge, held that:
(1) first degree murder indictment was deficient, and
(2) aiding and abetting murder indictment was deficient.
Affirmed.

Cobell v. Salazar
573 F.3d 808
No. 08-5500, 08-5506
United States Court of Appeals, District of Columbia, July 24, 2009

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: Beneficiaries of individual Indian money (IIM) trust accounts brought class action against United States government, alleging that Secretaries of Interior and Treasury breached their fiduciary duties by mismanaging accounts. After court found that government had not succeeded in providing accounting mandated by Indian Trust Fund Management Reform Act, and that record demonstrated impossibility of rendering such accounting, 532 F.Supp.2d 37, beneficiaries moved for equitable relief in nature of restitution. The United States District Court for the District of Columbia, James Robertson, J., 569 F.Supp.2d 223, granted the motion. Parties cross-appealed.

*Holding: The Court of Appeals, Sentelle, Chief Judge, held that beneficiaries were statutorily entitled to an accounting, and District Court had obligation to exercise its equitable powers to ensure an equitable accounting.
Vacated and remanded.

Related News Stories: Court throws out money judgment to Indians, orders accounting (NewsOK) 7/24/09

United States v. Doe
572 F.3d 1162
No. 08-1137, 08-1184
United States Court of Appeals, Tenth Circuit, July 20, 2009

Subjects: Juvenile delinquency -- Cases; Arson -- In Indian Country; Church buildings -- In Indian Country.

*Synopsis: Defendants were convicted, in separate bench trials in the United States District Court for the District of Colorado, Edward W. Nottingham, J., of an act of juvenile delinquency arising out of the arson of a church building in Indian country. They appealed.

*Holding: On consolidation of appeals the Court of Appeals, Briscoe, Circuit
Judge, held that:
(1) word "person," as used in statute prohibiting, inter alia, arson of the
property of an "Indian or other person," applied to living individuals and
corporations, but not to unincorporated associations;
(2) evidence was sufficient to show that building was owned by a nonprofit
corporation;
(3) district court did not abuse its discretion by allowing prosecution to
reopen its cases to present evidence related to the corporate status of the arson
victim; and
(4) information provided sufficient identification of the arson victim and its
status.
Affirmed.

United States v. Papakee
573 F.3d 569
No. 08-2032, 08-2037
United States Court of Appeals, Eighth Circuit, July 17, 2009

Subjects: Sex crimes -- In Indian Country; Trials (Sex crimes).

*Synopsis: Following denial of defendants' motion to suppress, 2007 WL 891717, defendants were convicted in the United States District Court for the Northern District of Iowa, Linda R. Reade, Chief Judge, of sexual abuse in Indian country, and sentence was imposed, 550 F.Supp.2d 991. Defendants appealed.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) exclusion of testimony by deputy sheriff about victim's sexual proposition
was warranted;
(2) evidence was sufficient to support convictions;
(3) four-level sentencing increase for use of force was warranted; and
(4) imposition of 360-month prison term was reasonable.
Affirmed.

Thomas v. Mundell
572 F.3d 756
No. 07-15388
United States Court of Appeals, Ninth Ciruit, July 15, 2009

Subjects: Indians of North America -- Civil rights; Arizona. Superior Courts; Drunk driving.

*Synopsis: County Attorney and victims of driving under the influence (DUI) offenses sued judges and commissioners of the Arizona Superior Court for injunctive and declaratory relief, alleging that special Spanish-speaking and Native American DUI courts instituted by that Court violated their federal constitutional and statutory rights. The United States District Court for the District of Arizona, Earl H. Carroll, J., dismissed claims for lack of standing. Plaintiffs appealed.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) county attorney lack standing, and
(2) victims lacked standing.
Affirmed.

North Country Community Alliance, Inc. v. Salazar
573 F.3d 738
No. 07-36048
United States Court of Appeals, Ninth Ciruit, July 15, 2009

Subjects: Indian gaming; Casinos; Environmental impact statements; Nooksack Indian Tribe of Washington; United States. National Environmental Policy Act of 1969; United States. Indian Gaming Regulatory Act; North Country Community Alliance, Inc.; National Indian Gaming Commission (U.S.); United States. Dept. of the Interior.

*Synopsis: Nonprofit organization, comprised of residents and property owners near Indian casino site, sued National Indian Gaming Commission (NIGC) and Department of Interior (DOI), claiming violation of Indian Gaming Regulatory Act (IGRA) by agencies' failure to make Indian lands determination, either before approving Nooksack Indian Tribe's proposed gaming ordinance or before Nooksacks licensed and began constructing casino, and violation of National Environmental Policy Act (NEPA) by failure to prepare environmental impact statement (EIS). The United States District Court for the Western District of Washington, John C. Coughenour, J., dismissed for lack of subject matter jurisdiction and for failure to state claim. Nonprofit organization appealed.

*Holding: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) claim regarding NIGC's approval of ordinance for casino licensing and
construction was not time-barred;
(2) Indian lands determination was not required by IGRA prior to approving
ordinance;
(3) Indian lands determination was not required by IGRA prior to licensing and
constructing casino; and
(4) EIS was not required, under NEPA.
Affirmed.

United States v. Washington
573 F.3d 701
Nos. 07-35062, 07-35124, 07-35219.
United States Court of Appeals, Ninth Ciruit, July 13, 2009

Subjects: Fishing rights -- Tribes -- Washington (State) -- Cases; Treaty rights -- Tribes -- Washington (State) -- Cases; Fishing -- Northwest, Pacific; Tribes -- Washington (State).

*Synopsis: United States instituted action against state to enforce Indian fishing rights under treaties with Indian tribes of Pacific Northwest. One tribe commenced subproceeding against other tribes for equitable apportionment of shared fishery. The United States District Court for the Western District of Washington, Ricardo S. Martinez, J., 2006 WL 3386868, dismissed subproceeding, and tribe appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that tribe was not entitled to equitable apportionment of fishery.
Affirmed

In re Shinnecock Smoke Shop
571 F.3d 1171
No. 2009-1100
United States Court of Appeals, Federal Circuit, July 1, 2009

Subjects: Shinnecock Indian Nation (N.Y.); Shinnecock Smoke Shop (N.Y.); Trademarks -- Law and legislation; United States. Trademark Act of 1946.

*Synopsis: Trademark applicant, who was a United States citizen and member of the Shinnecock Indian Nation, appealed decision of Trademark Trial and Appeal Board, 2008 WL 4354159, affirming examining attorney's decision refusing to register the proposed marks.

*Holding: The Court of Appeals, Clevenger, Circuit Judge, held that:
(1) Shinnecock Indian Nation qualified as an 'institution' under Trademark Act;
(2) Board did not err in affirming examining attorney's rejection of applicant's trademarks;
(3) Patent and Trademark Office (PTO) refusal to register applicant's trademarks did not violate applicant's due process rights; and
(4) PTO's refusal to register applicant's trademarks did not violate applicant's equal protection rights.
Affirmed.

Reber v. Steele
570 F.3d 1206
No. 08-4057
United States Court of Appeals, Tenth Ciruit, July 1, 2009

Subjects: Habeas corpus; Juvenile delinquency; Hunting rights -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Members; Game laws -- Utah; Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah; Indians of North America -- Defined; Indian Country (Utah) -- Defined.

*Synopsis: State petitioner sought federal habeas corpus review, after affirmance of his state juvenile court conviction and finding of delinquency, 128 P.3d 1211, but prior to sentencing. The United States District Court for the District of Utah, Bruce S. Jenkins, Senior District Judge, 2008 WL 444545, denied petition. Petitioner appealed.

*Holding: The Court of Appeals, Henry, Chief Judge, held that petition was premature, since it was filed before imposition of sentence.
Vacated and remanded.

New York v. Smith
2009 WL 2390809
No. 08-CV-4422
United States District Court, E.D. New York, July 31, 2009

Subjects: Jurisdiction; Fishing rights; Indians of North America -- Civil rights; Shinnecock Indian Nation (N.Y.).

*Synopsis: (from the opinion) Defendant alleges that New York State illegally regulates the Shinnecock and therefore Defendant cannot litigate his civil rights in state court. Defendant also claims that Farrish, by force or threat of force, interfered with Defendant in violation of 18 U.S.C. ? 245(b)(1)(B). Within this section, Defendant claims that his protected rights were violated because of (1) Sovereign Immunity; (2) The Fort Albany Treaty of 1664; (3) Wyandanch's Deed; (4) the Contract Clause; (5) the Indian Commerce Clause; (6) Congressional Indian Policy; (7) Federal Trust and; (8) United Nations' International Convention on the Elimination of All Forms of Racial Discrimination.

*Holding: not yet available

 

Three Affiliated Tribes of the Fort Berthold Indian Reservation v. United States
637 F.Supp.2d 25
No. 08-1601 (JDB)
United States District Court, District of Columbia, July 27, 2009

Subjects: Contracts; Health services accessibility; Medical care -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; United States. Indian Self-Determination and Education Assistance Act; United States. Indian Health Care Improvement Act.

*Synopsis: Three Indian tribes sued United States, Secretary of Department of Health and Human Services (HHS), Director and Acting Area Director of Indian Health Service (IHS) in their official capacities alleging that defendants violated Indian Self-Determination and Education Assistance Act (ISDEAA) by declining tribes' proposals for contract support costs (CSC) and provision of health care services to non-Indians pursuant to Indian Health Care Improvement Act (IHCIA). Defendants moved to dismiss.

*Holding: The District Court, John D. Bates, J., held that:
(1) other Indian tribes with ongoing ISDEAA contracts were not required parties
to action, and

(2) declination finding issued by Director of IHS fell within waiver of
sovereign immunity in ISDEAA.

Motion denied.

Yellowbear v. Wyoming Attorney General
2009 WL 2207821
No. 06-CV-082-B
United States District Court, Wyoming, July 23, 2009

Subjects: Criminal actions arising in Indian Country (U.S.); Criminal jurisdiction.

*Synopsis: (from the opinion) Petitioner's first and remaining claim (Claims 2 and 3 were voluntarily dismissed) is that the State lacks jurisdiction over the crime for which he was convicted, and that as a result, the state court decision regarding jurisdiction was contrary to or an unreasonable application of clearly established federal law under 28 U.S.C. ? 2254(d)(1). Petitioner contends that the Wyoming Supreme Court 'erroneously' determined the question of whether his crime occurred in Indian country and whether the State lacked jurisdiction.

*Holding: not yet available

Greene v. Skibine
2009 WL 2208129
No. 1:09-cv-1022 AWI GSA
United States District Court, E.D California, July 23, 2009

Subjects: Tribal membership disputes; Heritage; Choctaw Nation of Oklahoma.

*Synopsis: (from the opinion) Plaintiff, is seeking judicial review of a final administrative decision dated April 23, 2009, from the United States Department of the Interior, Bureau of Indian Affairs ('BIA'), based on the Administrative Procedures Act ('APA'). See, Ex. A-1; 5 U.S.C. ?? 701-706. Plaintiff is an African American male who alleges that he is a true descendant of a legal tribal member of the Choctaw Nation of Oklahoma. He alleges that he was denied membership in the tribe because he could not connect back to a direct ancestor enrolled by blood. Plaintiff has attempted to become a recognized tribe member since at least 1999. He asserts that the failure to be recognized as a tribe member is discriminatory and is a violation 42 U.S.C. ? 1981.

*Holding: not yet available

Oklahoma v. Tyson Foods, Inc.
258 F.R.D. 472
Cherokee Nation Brief at 10th Cir.
No. 05-cv-329-GKF-PJC
United States District Court, N.D Oklahoma, July 22, 2009

Subjects: Poultry industry -- Oklahoma; Pollution -- Illinois River Watershed (Ark. and Okla.); Oklahoma; Cherokee Nation, Oklahoma; Tyson (Firm).

*Synopsis: State of Oklahoma brought action seeking monetary damages and injunctive relief against poultry producers for injury caused to the river watershed by producers' practice of storing and disposing of hundreds of thousands of tons of poultry waste on lands within the watershed. Producers filed motion to dismiss for failure to join Indian nation as a required party or in the alternative, motion for judgment on the pleadings.

*Holding:The District Court, Gregory K. Frizzell, J., held that non-party Indian tribe was an indispensable party whose joinder was not feasible, thus warranting dismissal of state's action.

Related News Stories: Poultry lawsuit is partially dismissed (The Tulsa World) 7/23/09

Jicarilla Apache Nation v. United States
88 Fed.Cl. 1
No. 02-25L
United States Court of Federal Claims, July 21, 2009

Subjects: Discovery (Law); Tribal trust funds; Jicarilla Apache Nation, New Mexico.

*Synopsis: Indian tribe brought action against United States seeking accounting and recovery of monetary loss and damages resulting from government's alleged mismanagement of trust funds. Tribe moved to compel discovery and for protective order, and United States moved to compel.

*Holding: The United States Court of Federal Claims, Allegra, J., held that:
(1) communications between United States agencies and attorneys regarding Indian
trust accounts were subject to fiduciary exception to attorney-client privilege;
(2) United States did not waive work product objection to documents prepared by
Department of Interior's Solicitor's Office;
(3) communications between Solicitor's Office or Department of Justice and
accounting firm hired to conduct financial and compliance audits of Bureau of
Indian Affairs' (BIA) Office of Trust Funds Management were protected by work
product doctrine;
(4) document recommending that particular strategies for investing tribal trust
funds be adopted in response to litigation was not protected by work product
doctrine; and
(5) evidence of tribe's non-trust investment patterns was not relevant in
determining whether United States had breached its fiduciary duties.
Motions granted in part and denied in part.

Preservation of Los Olivos v. United States Department of Interior
635 F.Supp.2d 1076
No. 06-1502 AHM (CTx)
United States District Court, C.D. California, July 8, 2009

Subjects: not yet available

*Synopsis: In citizens' groups' action for review of two orders of the Interior Board of Indian Appeals (IBIA) which dismissed their appeal from a Bureau of Indian Affairs (BIA) decision approving an Indian tribe's application to have land taken into federal trust, and for injunctive relief against enforcement of the order approving the tribe's application, groups moved for summary judgment.

*Holding: The District Court, A. Howard Matz, J., held that:

(1) Court had jurisdiction to evaluate whether citizens' groups had standing to
seek judicial review of IBIA's orders;

(2) groups demonstrated injury in fact;

(3) groups had an interest directly regulated by an action of the IBIA, as
required to have prudential standing; and

(4) IBIA acted arbitrarily and capriciously in invoking judicial standing
principles to dismiss groups' appeal.

Motion granted in part and denied in part.

Nisqually Indian Tribe v. Gregoire
2009 WL 2029788
No. C08-5069RBL
United States District Court, W.D. of Washington, July 8, 2009

Subjects: Taxation -- Intergovernmental agreements; Intergovernmental agreements -- Washington (State); Nisqually Indian Tribe of the Nisqually Reservation, Washington; Squaxin Island Tribe of the Squaxin Island Reservation, Washington; Frank's Landing Indian Community.

*Synopsis: (from the opinion) The entry into the intergovernmental agreement by Frank's Landing, and the assertion of taxing authority by the Squaxin Island Tribe at Frank's Landing do not violate federal law. A. Congress has not declared the Frank's Landing Indian Community to Be a 'Tribal-free' Zone.

*Holding: not yet available

Lil' Brown Smoke Shack v. Wasden
2009 WL 2044409
No. CV 09-044-CWD
United States District Court, Idaho, July 7, 2009

Subjects: Sovereign immunity -- Indian business enterprises; Idaho. Minors' Access Act; Tobacco -- Law and legislation -- Idaho; Lil' Brown Smoke Shack; Younger v. Harris.

*Synopsis: (from the opinion) Defendants argue that the State of Idaho's interest in regulating tobacco and preventing minors' access to tobacco are important state interests that justify abstention under Younger. Plaintiff makes two arguments in response: 1) Defendants have not established an important state interest in enforcement of the permitting provisions of the Act; and 2) the jurisdictional question of whether the state has authority to enforce the Act against businesses located on tribal lands outside of the state is a question of federal law and should be decided by the federal court.

*Holding: not yet available

June

Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States Army Corp of Engineers
570 F.3d 327
No. 08-5133
United States Court of Appeals, District of Columbia, June 26, 2009

Subjects: Indian reservations -- Boundaries -- Cases; Diminished Indian reservations -- Cases; National Register of Historic Places; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; United States. Army. Corps of Engineers.

*Synopsis: Indian tribe brought action against U.S. Army Corps of Engineers (Corps) and others, seeking, inter alia, a declaration that Act of Congress which dissolved prior reservation never took effect, and a writ of mandamus to compel the Corps to evaluate federally-owned properties within the former reservation for inclusion in the National Register of Historic Places. The United States District Court for the District of Columbia, Paul L. Friedman, J., dismissed, and tribe appealed.

*Holding: The Court of Appeals, Randolph, Senior Circuit Judge, held that:
(1) tribe's claims were barred by limitations period established in the Indian Claims Commission Act, and
(2) Corps had no duty under National Historical Preservation Act (NHPA) to evaluate federally-owned properties for inclusion in the National Register of Historic Places.
Affirmed.

Related News Stories: Court upholds dismissal of SD tribe?s land lawsuit (Indian Country Today) 7/7/09

Keweenaw Bay Indian Community v. Rising
569 F.3d 589
No. 08-1585
United States Court of Appeals, Sixth Ciruit, June 26, 2009

Subjects: Taxation -- Law and legislation -- Michigan; Tax exemption; Keweenaw Bay Indian Community, Michigan.

*Synopsis: Tribe brought action against state, state treasury officials, and secretary of state, seeking declaratory and injunctive relief from the State's collection of sales and use taxes on transactions involving tribe or its members, and asserting 1983 claim that State's offset of federal funds violated various constitutional and statutory rights. The United States District Court for the Western District of Michigan at Marquette, Gordon J. Quist, J., 546 F.Supp.2d 509, granted summary judgment for the State. Tribe appealed.

*Holding: The Court of Appeals, Merritt, Circuit Judge, held that:
(1) tribe's request for declaration concerning its tax immunities did not present justiciable question;
(2) tribe's claim for declaration that Michigan tax policy was invalid was unripe;
(3) issue of whether treaty affected Michigan's collection of sales and use taxes was not properly before the Court;
(4) but remand was warranted to determine if tribe was person under 1983.
Affirmed in part, vacated in part, and remanded.


Smith v. Shulman
333 Fed.Appx. 607
No. 08-1896-cv
United States Court of Appeals, Second Ciruit, June 17, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Income tax; Jurisdiction; Injunctions.

*Synopsis: Taxpayer filed complaint against Commissioner of Internal Revenue seeking refund, injunctive relief, and declaration that Internal Revenue Service (IRS) illegally assessed taxes, penalties, and interest on income that he earned on Indian reservation. The District Court denied taxpayer's motion for preliminary injunction, and taxpayer appealed. The Court of Appeals, 266 Fed.Appx. 58, reversed and remanded. On remand, the United States District Court for the Eastern District of New York, Feuerstein, J., 2008 WL 818512, dismissed complaint, and taxpayer appealed.

*Holding: The Court of Appeals held that:
(1) Tax Court had exclusive jurisdiction over appeal of adverse decision of due process hearing officer, and
(2) taxpayer's attempt to obtain injunction was barred by Tax Anti-Injunction Act.
Affirmed.

Philip Morris USA, Inc. v. King Mountain Tobacco Company, Inc.
569 F.3d 932
No. 06-36066
United States Court of Appeals, Ninth Circuit, June 11, 2009

Subjects: Cigarettes -- Marketing; Trademark infringement; Phillip Morris USA; King Mountain Tobacco Company, Inc.

*Synopsis: Cigarette maker brought action against tribal corporation selling cigarettes alleging various federal and state law claims, including trademark infringement, and seeking injunctive relief against tribal corporation's continued sale of its products. After the tribal corporation brought an action for declaratory relief against cigarette maker in tribal court, the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., granted tribal corporation's request to stay the proceedings pending the tribal court's determination of its jurisdiction. Cigarette maker appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.


United States v. Oldbear
568 F.3d 814
No. 08-6095
United States Court of Appeals, Tenth Ciruit, June 10, 2009

Subjects: Tribal trust funds; Trials (Embezzlement); False testimony.

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma, Stephen P. Friot, J., of embezzling Indian tribal funds, and making a false statement to government agent. Defendant appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.

United Keetowah Band of Cherokee Indians of Oklahoma v. United States Department of Housing and Urban Developement
567 F.3d 1235
No. 08-7025
United States Court of Appeals, Tenth Circuit, June 5, 2009

Subjects: United Keetoowah Band of Cherokee Indians of Oklahoma; United States. Dept. of Housing and Urban Development; United States. Native American Housing Assistance and Self-Determination Act of 1996; Federal aid to housing.

*Synopsis: Indian tribe brought action challenging a final agency action by the United States Department of Housing and Urban Development (HUD) which drastically reduced the federal funding that the tribe received for housing under the Native American Housing Assistance and Self-Determination Act (NAHASDA). The United States District Court for the Eastern District of Oklahoma, Ronald A. White, J., rejected the tribe's challenge, and tribe appealed.

*Holding: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that HUD regulation imposing a non-need-based factor in its allocation formula was inconsistent with unambiguous statutory language, and therefore not entitled to Chevron deference.
Reversed and remanded.

Related News Stories: Cherokee tribes claim victory after housing ruling (Cherokee Phoenix) 6/15/09

Harris v. Sycuan Band of Diegueno Mission Indians
2009 WL 1883674
No. 08cv2111 WQH
United States District Court, S.D of California, June, 30, 2009

Subjects: Arbitration and award; Sycuan Band of the Kumeyaay Nation (formerly the Sycuan Band of Diegueno Mission Indians of California).

*Synopsis: (from the opinion) This case simply requests that the Court enforce an arbitration award. The FAC, on its face, does not require an interpretation the IGRA or any other federal law in order to determine whether enforcement of the arbitration award is proper. The FAC, on its face, does not require resolution of a substantial issue of federal law in order to resolve the matter.

*Holding: not yet available

Big Lagoon Rancheria v. California
2009 WL 1855332
No. C 09-1471 CW
United States District Court, N.D of California, June, 29, 2009

Subjects: Sovereign immunity; Bad faith (Law); United States. Indian Gaming Regulatory Act; California; Big Lagoon Rancheria, California.

*Synopsis: (from the opinion) Defendant State of California moves for judgment on the pleadings, asserting that it is entitled to Eleventh Amendment sovereign immunity from Plaintiff Big Lagoon Rancheria's claim for bad faith negotiation under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. ?? 2701-2721. Big Lagoon opposes the motion, arguing that California has waived its sovereign immunity pursuant to statute or, alternatively, as part of an earlier settlement agreement with Big Lagoon. The matter was heard on June 25, 2009. Having considered oral argument and all of the papers submitted by the parties, the Court denies the motion.

*Holding: not yet available

Pakootas v. Teck Cominco Metals, LTD.
2009 WL 1796808
No. CV-04-256-LRS
United States District Court, E.D of Washington, June, 19, 2009

Subjects: Hazardous wastes -- Washington (State); Liability for environmental damages; Franklin D. Roosevelt Lake (Wash.); United States. Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

*Synopsis: (from the opinion) In its Answer to the Second Amended Complaint of the Tribes (Ct. Rec 194), Defendant Teck asserts two CERCLA counterclaims against the Tribes, contending the Tribes caused and contributed to the hazardous substances contamination of Lake Roosevelt. As part of its counterclaims against the Tribes for cost recovery, contribution and declaratory relief, Teck alleges the Tribes 'are covered 'persons' within the meaning of that term as it is used in CERCLA, 42 U.S.C. Section 9601(21).' The Tribes move to dismiss the counterclaims, asserting they are not 'person[s]' subject to liability under CERCLA, 42 U.S.C. Section 9607(a), and therefore, that Teck's counterclaims are not based on 'a cognizable legal theory.'

*Holding: not yet available

Related News Stories: Court ruling exempts tribes from CERCLA liability (Northwest Hub) 9/2/09. Washington court rules tribes are not "persons" under CERCLA (Northwest Indian Law & Business Advisor) 6/20/09.

In the matter of the adoption OF C.D.K.
2009 WL 1743765
No. 2:08-CV-490 TS
United States District Court, Utah, June 18, 2009

Subjects: Parent and child (Law); Trials (Custody of children) -- Utah; Adoption; United States. Indian Child Welfare Act of 1978.

*Synopsis: (from the opinion) Petitioner filed her Petition to Invalidate Adoption, pursuant to the Indian Child Welfare Act (the 'ICWA'), on June 2, 2008. Petitioner requested that the Court invalidate the adoption of her biological child by Respondents under ? 1914, which provides that 'any parent ... from whose custody such [Indian] child was removed ... may petition any court of competent jurisdiction to invalidate such action upon a showing [the relevant placement proceedings] violated any provision of sections 1911, 1912, and 1913 of this title.' Petitioner also requested that the Court immediately return the child to her custody.

*Holding: not yet available

Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa
2009 WL 1783497
No. 05-CV-168-LRR
United States District Court, N.D of Iowa, June, 18, 2009

Subjects: Breach of contract; Arbitration (Administrative law); Sac & Fox Tribe of the Mississippi in Iowa; Attorney's Process & Investigation Services, Inc.

*Synopsis: (from the opinion) On October 21, 2005, API filed a Complaint (docket no. 2) in this court. The Complaint alleges the Tribe, acting under the leadership of the Bear Council, breached a contract and asks the court to bar the Tribe's lawsuit in the Tribal Court. Additionally, API asks the court to compel arbitration.

*Holding: not yet available

Absentee Shawnee Tribe of Oklahoma v. Combs
2009 WL 1752412
No. Civ-09-0091-F
United States District Court, W.D of Oklahoma, June, 18, 2009

Subjects: Sovereign immunity -- Absentee-Shawnee Tribe of Indians of Oklahoma; Jurisdiction -- Oklahoma; Thunderbird Entertainment Center, Inc.; Liability (Law); Drunk driving.

*Synopsis: (from the opinion) In this action the Absentee Shawnee Tribe of Oklahoma and the Thunderbird Entertainment Center, Inc., a corporation allegedly organized under the laws of the Tribe and owned by the Tribe, ask this court to enjoin proceedings in a civil state-court action currently pending before Judge Douglas Combs in the District Court of Pottawatomie County, State of Oklahoma, as Bittle v. Bahe, CJ-2005-1249. The complaint also seeks certain declarations.

*Holding: not yet available

Gustafson v. Poitra
2009 WL 1688192
No. 4:09-cv-016
United States District Court, of N. Dakota, June, 17, 2009

Subjects: Fee lands -- Indian Country (U.S.); Turtle Mountain Indian Reservation (N.D.); Rolette County (N.D.).

*Synopsis: (from the opinion) Before the Court is the Plaintiff's 'Motion for Ex Parte Temporary Restraining Order' filed on April 8, 2009, and a request for a preliminary injunction. The Plaintiff seeks to enjoin and restrain the Defendants, and any person or entities acting in concert with or on behalf of the Defendants, from interfering with the Plaintiff's access to and possession of fee land located in Rolette County, North Dakota, within the Turtle Mountain Indian Reservation.

*Holding: not yet available

The Osage Tribe of Indians of Oklahoma v. United States
87 Fed.Cl. 338
No. 99-550 L, 00-169 L
United States Court of Federal Claims, June, 12, 2009

Subjects: Photocopying services -- Costs; Trusts and trustees; Osage Nation, Oklahoma (formerly the Osage Tribe); United States. National Archives and Records Administration.

*Synopsis:Indian tribe brought suit against the United States seeking damages for breach of fiduciary duty by mismanaging tribal trust funds and failing to account. Tribe moved to compel government to pay for copying and imaging costs in second phase of discovery.

*Holding: The Court of Federal Claims, Hewitt, Chief Judge, held that equities
weighed in favor of requiring government to pay copying expenses for production of
documents.
Motion granted.

Related News Stories: Reservation still intact: Osages seek to reverse District Court ruling (Targeted News Service) 7/27/09

Citizen Potawatomi Nation v. Salazar
624 F.Supp.2d 103
No. 06-830
United States District Court, District of Columbia, June, 12, 2009

Subjects: Tribal trust funds; Citizen Potawatomi Nation, Oklahoma; United States. Dept. of the Interior; Salazar, Ken.

*Synopsis: Federally recognized Indian tribe brought action seeking review of the Interior Board of Indian Appeals' (IBIA) application of a formula used to distribute funds to certain tribes. Parties filed cross-motions for summary judgment.

*Holding: The District Court, Gladys Kessler, J., held that:
(1) non-party Indian tribes were indispensable;
(2) IBIA did not act arbitrarily or capriciously in its use of 1988 data for
application of the funding formula agreed to in tribal resolution; and
(3) tribe was collaterally estopped from litigating the effect of prior
administrative decision on the funding formula.
Defendant's motion granted.

In the matter of the adoption of C.D.K.
2009 WL 1586659
No. 2:08-CV-490 TS
United States District Court, Utah, June, 4, 2009

Subjects: Parent and child (Law); Trials (Custody of children) -- Utah; Adopted Indian children; Heritage; United States. Indian Child Welfare Act of 1978.

*Synopsis: (from the opinion) Petitioner claims that, as a matter of law, C.D.K. is an Indian Child, as defined by the Indian Child Welfare Act ('ICWA', and that the Relinquishment Hearing did not comply with the requirements of the ICWA. Respondents, the adoptive parents, argue in their Motion that Petitioner has failed to establish that C.D.K. is an Indian Child. Because the Court finds that Petitioner has provided sufficient evidence to establish that C .D.K. is an Indian Child pursuant to the ICWA and that the Relinquishment Hearing did not comply with the procedural requirements of the ICWA, the Court will grant Petitioner's Motion for Summary Judgment and deny Respondents' Motion for Partial Summary Judgment.

*Holding: not yet available

Native American Art, Inc. v. Mangalick Enterprises, Inc.
2009 WL 1543734
No. 08-cv-4464
United States District Court, N.D. Illinois, June 2, 2009

Subjects: Indian art -- Forgeries.

*Synopsis: (from the opinion) Plaintiff, Native American Arts, Inc. ('NAA'), filed this lawsuit on August 7, 2008. NAA's complaint comprises a single count and names only Defendant, Mangalick Enterprises, Inc., d/b/a IAC International ('Mangalick'). According to the complaint, Mangalick is violating the Act by selling inauthentic Indian goods in a manner that falsely suggests that they are authentic. Currently before the Court is Defendant's motion to dismiss, which seeks to curtail Plaintiff's lawsuit on a number of constitutional and procedural grounds. Pursuant to Federal Rule of Civil Procedure 24 and 28 U.S.C. ? 2403(a), the Government intervened to defend the constitutionality of the Act. For the reasons set forth below, Defendant's motion is denied.

*Holding: not yet available

May

Pyke v. Cuomo
567 F.3d 74
No. 07-0334-cv(L), 07-3524(CON)
United States Court of Appeals, Second Circuit, May 27, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Race discrimination -- New York (State); Discrimination in law enforcement -- New York (State); Equality before the law -- United States.

*Synopsis: Class of Native American anti-gambling demonstrators brought s 1983 action alleging that New York officials denied them equal protection by failing to provide police protection on reservation. The United States District Court for the Northern District of New York, McCurn, J., 2006 WL 3780808, granted summary judgment to defendants. Plaintiffs appealed.

*Holding: The Court of Appeals held that:
(1) New York officials' alleged roadblock policy did not amount to an express
racial classification, and
(2) decision to notify heavily armed Native American organization before
entering reservation was not an express racial discrimination.
Affirmed.

Pro Football, Inc. v. Harjo
565 F.3d 880
No. 03-7162
United States Court of Appeals, District of Columbia Circuit, May 15, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

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

*Synopsis: Native Americans petitioned to cancel professional football team's trademark registrations on ground that registrations disparaged Native Americans. The Trademark Trial and Appeal Board (TTAB), 1999 WL 375907, cancelled registrations, and team sought judicial review. The district court granted summary judgment in favor of team. Defendants appealed. The Court of Appeals, 415 F.3d 44, remanded. The United States District Court for the District of Columbia, Colleen Kollar-Kotelly, J., 567 F.Supp.2d 46, granted judgment for team. Defendants appealed.

*Holding: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) district court did not abuse its discretion in finding trial prejudice;
(2) district court did not abuse its discretion in finding economic prejudice; and
(3) district court did not abuse its discretion in finding that 29 month delay evinced lack of reasonable diligence.
Affirmed.

Elliot v. White Mountain Apache Tribal Court
566 F.3d 842
No. 07-15041
United States Court of Appeals, Ninth Circuit, May 14, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Non-Indians; Law -- Tribes -- Application -- Non-members of a tribe; Civil actions arising on Indian reservations; Forest fires; Tribal courts; Jurisdiction -- Tribes; Exhaustion of tribal remedies; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.

*Synopsis: Non-Indian brought action against Native American Tribal Court, Tribal Judge, and Tribe, seeking injunctive and declaratory relief against defendants and from conducting any further proceedings in tribal court. The United States District Court for the District of Arizona, Mary H. Murguia, J., 2006 WL 3533147, dismissed the action and non-Indian appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that:
(1) district court's decision was final;
(2) request for interlocutory appeal before tribal appellate court did not fully exhaust tribal remedies; and
(3) tribal jurisdiction was not plainly lacking.
Affirmed.

Wilkinson v. United States
564 F.3d 927
No. 07-2274
United States Court of Appeals, Eighth Circuit, May 6, 2009

Subjects: Trespass; United States. Federal Tort Claims Act; Wrongful death; Leases -- United States; United States. Bureau of Indian affairs -- Officials and employees; Payments -- United States; Rent charges -- Indian Country (U.S.); Trust lands -- Indian Country (U.S.); Standing to sue -- United States; Trusts and trustees -- United States.

*Synopsis: Owners, and their heirs, of descendable interests on allotted Indian land held in trust by the Bureau of Indian Affairs (BIA) brought action against United States alleging trespass of several family allotments, conversion of farm equipment, intentional infliction of emotional distress (IIED), and wrongful death under the Federal Tort Claims Act. The United States District Court for the District of North Dakota, Daniel L. Hovland, J., 314 F.Supp.2d 902, granted summary judgment for United States and plaintiffs appealed. The Court of Appeals, 440 F.3d 970, reversed and remanded. Following bench trial on remand, the District Court, Rodney S. Webb, Senior District Judge, 2007 WL 3544062, found in favor of plaintiffs on the trespass, conversion, and IIED claims and assessed damages. United States appealed.

*Holding: The Court of Appeals, Melloy, Circuit Judge, held that:
(1) BIA's leasing of allotments of Indian land did not amount to conversion of the owner's farming equipment, and
(2) noneconomic damages award of $232,407 was properly based on ongoing anguish BIA caused landowners.
Affirmed in part, reversed in part, and remanded.

Southern Ute Indian Tribe v. Leavitt
564 F.3d 1198
No. 07-2274
United States Court of Appeals, Tenth Circuit, May 4, 2009

Subjects: United States. Dept. of Health and Human Services; United States. Indian Self-Determination and Education Assistance Act; Contracts -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Medical care --Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.

*Synopsis: Indian tribe brought suit, under Indian Self-Determination and Education Assistance Act (ISDEAA), challenging declination of Department of Health and Human Services (HHS) to enter into self-determination contract with tribe for reservation health services, asserting claim under Administrative Procedure Act (APA), and seeking damages and injunctive relief. The United States District Court for the District of New Mexico, William P. Johnson, J., 497 F.Supp.2d 1245, granted tribe partial summary judgment as to self-determination contract and directed parties to draft form of injunctive relief, and subsequently issued second order in favor of HHS's approach as to contract start date and as to payment of contract support costs. Tribe appealed second order.

*Holding: The Court of Appeals, Henry, Chief Judge, held that:
(1) second order did not expressly grant injunctive relief, as would allow review;
(2) second order did not have practical effect of granting injunctive relief, as would allow review; and
(3) second order clarified, rather than modified, first order, thus precluding review.
Dismissed.

United Keetoowah Band of Cherokee Indians in Oklahoma v. Kempthorne
2009 WL 1505558
No. 08-355-JHP
United States District Court, E.D. Oklahoma, May 28, 2009

Subjects: Health services -- United Keetoowah Band of Cherokee Indians of Oklahoma; Contracts.

*Synopsis: (from the opinion) [A]n action by the Tribe seeking a declaratory judgment that the Defendants violated their statutory requirement (1) to obtain the Tribe's authorization prior to entering a contract for health services with the Cherokee Nation of Oklahoma (an entity not organized under the Oklahoma Indian Welfare Act), (2) to provide meaningful consultation to the Tribe pursuant to their general trust responsibilities and applicable law, and (3) to assure services to all tribal members in the service area of the health service contract at issue herein.

*Holding: not yet available

Nahno-Lopez v. Houser
2009 WL 1469667
No. CIV-08-1147-F
United States District Court, W.D. Oklahoma, May 20, 2009

Subjects: Trespass; Trust lands -- Indian Country (U.S.); Fort Sill Apache Tribe of Oklahoma.

*Synopsis: (from the opinion) The complaint alleges generally that all of the plaintiffs' property (including both the Kerchee Plaintiffs' land and the Pence Plaintiffs' leasehold) lies within Allotment No. 2329, to the west and south of the Fort Sill Apache Tribe's casino. Plaintiffs allege that defendants have acted outside their authority, in violation of federal statutes, 'by trespassing, hindering access, encroaching, detaining and destroying the Kerchee and Pence Plaintiff(s)' federal trust property.' The complaint seeks relief 'from the intentional and egregious actions of the Defendants in their continuing trespass, interference with exclusive use, occupancy, illegal detention, encroachment and destruction of the Kerchee and Pence Plaintiff(s)' lands' included in Allotment No. 2329. The complaint alleges that defendants 'continue to invade and hinder the ability of the Plaintiff's [sic] to access their lands and continue to interfere in the quiet enjoyment and occupancy of said lands by the Plaintiffs.

*Holding: not yet available

Miner v. Standing Rock Sioux Tribe
2009 WL 1393623
No. 1:08-cv-105
United States District Court, North Dakota, May 20, 2009

Subjects: Jurisdiction -- Tribes; Standing Rock Sioux Tribe of North & South Dakota -- Officials and employees; Judges.

*Synopsis: Former Chief Judge of Indian tribal court filed declaratory judgment action seeking declaration that tribal court had jurisdiction over her breach of contract, wrongful discharge, and Indian Civil Rights Act (ICRA) claims. Defendants moved for judgment on the pleadings, and plaintiff moved for summary judgment.

*Holding: The District Court, Daniel L. Hovland, Chief Judge, held that:
(1) diversity jurisdiction was not present, and
(2) complaint failed to raise a federal question.

White Body v. Mukasey
614 F.Supp.2d 978
No. 4:08-cv-101, 4:06-cr-033
United States District Court, North Dakota, May 15, 2009

Subjects: Trials (Sex crimes); Double jeopardy; Tribal courts.

*Synopsis: Defendant, who was Indian tribe member, pled guilty to two counts of sexual abuse and was sentenced to 70-month's imprisonment. Defendant moved to vacate.

*Holding: The District Court, Daniel L. Hovland, Chief Judge, held that:
(1) defendant was not entitled to equitable tolling of one-year limitations
period for filing motion to vacate, and
(2) double jeopardy principles were not offended by defendant's successive
prosecutions in both tribal and federal court.
Motion denied.

Bolssen v. Unum Life Insurance Company of America
2009 WL 1307781
No. 09-C-202
United States District Court, E.D. Wisconsin, May 7, 2009

Subjects: United States. Employee Retirement Income Security Act of 1974; Retirement planning; Casinos -- Oneida Tribe of Indians of Wisconsin -- Officials and employees; Oneida Tribe of Indians of Wisconsin -- Officials and employees -- Defined; Beneficiaries; Breach of contract -- UNUM Life Insurance Company of America.

*Synopsis: (from the opinion) Unum asserts that the fact Bolssen was employed by the tribe is not dispositive of whether the plan is a governmental plan which would take it outside of ERISA. In support of this argument, Unum notes that Bolssen was actually employed by the Oneida Tribe's casino and his janitorial duties at the casino were commercial activities and not essential governmental functions. Unum also contends that ERISA governs as the plan itself provides that it was governed by ERISA, and because Unum administered Bolssen's claim in accordance with ERISA.

*Holding: not yet available

Fort Independence Indian Community v. California
2009 WL 1283146
No. S-08-432 LKK/KJM
United States District Court, E.D. California, May 7, 2009

Subjects: Indian gaming -- Fort Independence Indian Community of Paiute Indians of the Fort Independence Reservation, California; Gambling on Indian reservations -- California; Indian gaming -- Intergovernmental agreements; Negotiation -- California; United States. Indian Gaming Regulatory Act; Good faith (Law).

*Synopsis: (from the opinion) Plaintiff Fort Independence Indian Community, a federally recognized tribe, brings suit against the State of California and associated defendants alleging that defendants have violated their obligation to negotiate a Tribal-State Compact in good faith.

*Holding: not yet available

Leonard v. Eastern Illinois University
614 F.Supp.2d 918
No. 07-CV-2172
United States District Court, C.D of Illinois, May 4, 2009

Subjects: Indians of North America -- Promotions; Amnesia; Head Injuries, Closed; Eastern Illinois University -- Officials and employees -- Promotions ; United States. Civil Rights Act of 1964; Indians as mascots.

*Synopsis: Native-American employee of state university, who suffered from retrograde amnesia as result of severe closed head injury and worked as building service worker until he resigned, filed suit alleging he was denied promotion to Building Services Subforeman in retaliation for activity protected under Title VII. University moved for summary judgment.

*Holding: The District Court, Michael P. McCuskey, Chief Judge, held that:
(1) employee engaged in statutorily protected activity when he went to
university's internal civil rights office and filed complaint about shirts worn by
two interviewers which contained likeness of sports team mascot that he felt was
derogatory toward Native Americans, but
(2) employee's failure to successfully interview for promotion was not a
materially adverse employment action.
Motion granted.

In re Fess
408 B.R. 793
No. 06-11890
United States Bankruptcy Court, W.D. Wisconsin, May 4, 2009

Subjects: not yet available

*Synopsis: Chapter 7 trustee moved to compel turnover of future per capita payments to which Chapter 7 debtor was entitled, as member of Indian tribe, from tribe's casino gambling operations.

*Holding: The Bankruptcy Court, Robert D. Martin, J., held that:
(1) tribal law, under which members of Indian tribe had no right, title,
interest or entitlement to per capita payments from tribe's casino operations
until payment was received, rather than Wisconsin state law, governed interest
that bankrupt tribal member had in future per capita payments at time petition was
filed, and
(2) prior order of bankruptcy court, that was entered based on debtor's default
and that directed Indian tribe of which debtor was member to turn over to trustee
per capita payments from tribe's casino operations, was not law of the case.
Motion denied.

April

Solis v. Matheson
563 F.3d 425
No. 07-35633
United States Court of Appeals, Ninth Circuit, April 20, 2009

Subjects: Indian business enterprises -- On trust lands; United States. Fair Labor Standards Act of 1938; Overtime; Treaty rights; Jurisdiction -- United States; United States. Dept. of Labor. Office of the Secretary; Puyallup Tribe of the Puyallup Reservation, Washington -- Members.

*Synopsis: Secretary of labor brought action against owners of retail store located on trust land within Indian Reservation alleging failure to pay overtime wages to its employees as required by Fair Labor Standards Act (FLSA). The United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2007 WL 1830738, entered judgment in favor of Secretary. Owners appealed.

*Holding: The Court of Appeals, Ezra, District Judge, sitting by designation, held that:
(1) intramural exception to federal regulation did not apply to exempt retail store from FLSA;
(2) Treaty Rights Exception to federal regulation did not apply to exempt retail store from FLSA;
(3) Secretary of Labor had authority to enter reservation in order to locate records and investigate FLSA violations; and
(4) appointment of receiver was premature.
Affirmed in part and vacated in part.

Related News Stories: Lumbee recognition bill heads to full U.S. House (Fayetteville Observer) 4/23/09

Center for Biological Diversity v. United States Department of Interior
563 F.3d 466
No. 07-1247, 07-1344
United States Court of Appeals, District of Columbia, April 17, 2009

Subjects: Center for Biological Diversity; Alaska. Outer Continental Shelf; United States. Dept. of the Interior; Energy development; Offshore oil well drilling; United States. Outer Continental Shelf Lands Act; United States. National Environmental Policy Act of 1969; United States. Endangered Species Act of 1973; Standing to sue.

*Synopsis: Non-profit activist organizations petitioned for review of an order of the Department of Interior approving a five-year program to expand leasing areas within outer continental shelf (OCS) off coast of Alaska for offshore oil and gas development alleging violations of the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).

*Holding: The Court of Appeals, Sentelle, Chief Judge, held that:
(1) organizations failed to establish standing to challenge Department's
decision under a substantive standing theory;
(2) organizations established standing to challenge decision, under NEPA and
OCSLA, under procedural standing theory;
(3) organizations' NEPA and ESA claims were not ripe;
(4) Department relied on substantial baseline evidence in approving five-year
program, as required by OCSLA; and
(5) Department's sole reliance on shoreline study to measure environmental
sensitivity of OCS areas was inadequate.
Vacated and remanded.

Hydro Resources, Inc. v. United States Environmental Protection Agency
562 F.3d 1249
No. 07-9506
United States Court of Appeals, Tenth Circuit, April 17, 2009

Subjects: United States. Safe Drinking Water Act; Mining corporations; New Mexico; United States. Environmental Protection Agency; Hydro Resources, Inc.; Standing to sue; Navajo Nation, Arizona, New Mexico & Utah; Indian reservations -- Boundaries; Uranium mines and mining; Checkerboard Indian reservations; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Mining company and New Mexico Environmental Department (NMED) petitioned for judicial review of Environmental Protection Agency's (EPA) decision to implement, pursuant to Safe Drinking Water Act (SDWA), federal underground injection control (UIC) program on certain New Mexico lands. The Court of Appeals, 198 F.3d 1224, dismissed the petitions for review and remanded. On remand, the EPA determined that land on which company intended to operate uranium mine fell within a dependent Indian community. Company petitioned for review.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) company had standing;
(2) appropriate community of reference for assessing whether the land was within a dependent Indian community was local government organization of the Navajo Nation;
(3) land within geographic boundaries of organization was set aside by federal government for use of Indians as Indian land; and
(4) organization was under the superintendence of the federal government.
Petition denied.

Arizona Public Service Company v. United States Environmental Protection Agency
562 F.3d 1116
No. 07-9546, 07-9547
United States Court of Appeals, Tenth Circuit, April 14, 2009

Subjects: Coal-fired power plants -- On Indian reservations; United States. Clean Air Act; Arizona Public Service Company; United States. Environmental Protection Agency.

*Synopsis: Owner of coal-fired power plant on Indian reservation and environmental groups filed petitions under Clean Air Act (CAA) for review of Environmental Protection Agency (EPA) regulation authorizing source-specific federal plan for plant.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) plan's fugitive dust limit was severable from remainder of plan;
(2) tribal authority rule (TAR) did not require that plan improve air quality in
area surrounding plant; and
(3) EPA's decision to enact 20% opacity limit was not arbitrary and capricious.
Petitions granted in part and denied in part.

Barrett v. United States
561 F.3d 1140
No. 08-6017
United States Court of Appeals, Tenth Circuit, April 6, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

Subjects: Income tax -- Citizen Potawatomi Nation, Oklahoma -- Members; United States. Internal Revenue Service; Tribal trust funds -- Citizen Potawatomi Nation, Oklahoma; Citizen Potawatomi Nation, Oklahoma -- Officials and employees -- Salaries.

*Synopsis: Native American Tribe member brought action against United States, seeking refund of federal income taxes, penalties, and interest paid on compensation for services rendered as Tribal chairman. The United States District Court for the Western District of Oklahoma, Joe Heaton, J., entered summary judgment for U.S., and member appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that compensation paid to member was not exempt from federal income taxation.
Affirmed.

United States v. Duro
2009 WL 1653548
No. EDCV 07-01309-SGL
United States District Court, C.D. California, April 30, 2009

Subjects: Mobile home parks -- On Indian reservations; Torres Martinez Desert Cahuilla Indians, California (formerly the Torres-Martinez Band of Cahuilla Mission Indians of California).

*Synopsis: (from the opinion) On October 7, 2007, the government filed a complaint against Harvey Duro, Sr., and Desert Mobilehome Park, Inc. ('the Park'), seeking injunctive relief, money damages, and 'such other and further relief as the Court deems appropriate.' The complaint alleged a violation of the Court-approved Stipulation that settled the parties' prior case ( United States v. Harvey Duro. Sr., ED CV 03-0754 RT (SGLx) (' Duro I ')): failure to obtain a lease in violation of 25 U.S.C. ? 415; public nuisance; and private nuisance.

*Holding: not yet available

Sweet v. Hinzman
2009 WL 1175647
No. C08-844JLR
United States District Court, W.D. Washington, April 30, 2009

Subjects: Disenrollment; Tribal membership disputes -- Snoqualmie Tribe (Wash.); Exile (Punishment); Notice (Law); Habeas corpus; United States. Indian Civil Rights Act.

*Synopsis: (from the opinion) Petitioners seek relief against Respondents for three violations of ICRA that they allege occurred when Respondents banished Petitioners from the Tribe on April 27, 2008:(1) denial of due process for banishment without adequate formal notice and without an opportunity for a hearing; (2) denial of equal protection for banishment without equal application of the laws; and (3) denial of the right to confront and offer witnesses for banishment without the opportunity to confront opposing witnesses and offer favorable witnesses. Petitioners raise these claims in a petition for a writ of habeas corpus, which was filed in May 2008. Petitioners seek an order setting aside and vacating the banishment, and restoring to Petitioners such rights as they had prior to the initiation of the banishment action on April 8, 2008.

*Holding: not yet available

Related News Stories: Judge rules for banished tribe members (Star.com) 5/7/09.

Saginaw Chippewa Indian Tribe of Michigan v. Granholm
2009 WL 1285846
No.05-10296-BC
United States District Court, E.D. Michigan, April 29, 2009

Subjects: Saginaw Chippewa Indian Tribe of Michigan, Isabella Reservation; Indian Country (U.S.) -- Defined; Law -- Michigan -- Application -- Indian Country (U.S.); Treaties -- Saginaw Chippewa Indian Tribe of Michigan.

*Synopsis: (from the opinion) The amended complaint seeks to enforce rights under the 1855 and 1864 treaties, including limiting Defendants from asserting criminal or civil regulatory jurisdiction over the Saginaw Chippewa, or interfering with their rights under federal law relating to Indian County. Defendants contend that the treaties entered in 1855 and 1864 between the 'Chippewa of Saginaw' and the United States did not establish a reservation.

*Holding: not yet available

Elk v. United States
87 Fed.Cl. 70
No. 05-186L
United States Court of Federal Claims, April 28, 2009

Subjects: Fort Laramie, Treaty of, 1851; Personal injuries ? Cases; Sexual harassment; Indian high school students; United States. Army.

*Synopsis: Member of Oglala Sioux Tribe who had been sexually assaulted by Army officer sued United States seeking relief under Article I clause of Sioux Treaty of April 29, 1868, which provided that if "bad men" among the whites committed any wrong upon person or property of any Sioux, United States would reimburse injured person for loss sustained. The Court of Federal Claims, 70 Fed.Cl. 405, denied government's motion to dismiss for lack of administrative exhaustion.

*Holding: Following trial, the Court of Federal Claims, Allegra, J., held that:
(1) potential recovery under "bad men" clause extended beyond repayment of
out-of-pocket expenses, to lost income, pain, suffering and mental anguish;
(2) evidence supported finding that tribe member had suffered post-traumatic
stress disorder (PTSD) as result of sexual assault;
(3) tribe member was entitled to recover costs for weekly psychotherapy and
monthly pharmacologic management;
(4) tribe member was entitled to future lost income, discounted at rate of 12%;
and
(5) tribe member was entitled to recover pain, suffering and emotional distress
damages of $250,000.
Judgment for claimant.

Related News Stories: A Lakota warrior woman wins in court (Rapid City Journal) 5/9/09. Judge rules treaty obligations include reimbursement for pain and suffering (Rapid City Journal.com) 4/30/09.

Crowe & Dunlevy, P.C v. Stidham
609 F.Supp.2d 1211
No. 09-CV-095-TCK-PJC
United States District Court, N.D. Oklahoma, April 24, 2009

Subjects: Leadership disputes; Cooperative agreements; Lawyers -- Fees; Thlopthlocco Tribal Town, Oklahoma; Jurisdiction -- Muscogee (Creek) Nation, Oklahoma; Tribal courts -- Muscogee (Creek) Nation, Oklahoma.

*Synopsis: Law firm that represented Indian tribe in tribal court brought action against tribal court judge, seeking a judgment declaring that tribal court did not have jurisdiction over firm, did not have jurisdiction over tribe's expenditure of its governmental funds to firm, did not have jurisdiction over agreements entered between tribe and firm, and did not have jurisdiction to order firm to return all attorney fees paid from tribal treasury. Law firm moved for preliminary injunction, and judge moved to dismiss.

*Holding: The District Court, Terence Kern, J., held that:
(1) judge did not have judicial immunity;
(2) judge did not have tribal sovereign immunity;
(3) joinder rule did not require dismissal of the action;
(4) venue in the District Court for the Northern District of Oklahoma was proper;
(5) firm satisfied requirements for a preliminary injunction; and
(6) bond was not required in connection with issuance of the preliminary injunction.
Judge's motion denied, and law firm's motion granted.

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. Salazar
2009 WL 1110409
No. 08-CV-659-BBC
United States District Court, W.D. Wisconsin, April 24, 2009

Subjects: United States. Indian Self-Determination and Education Assistance Act; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Tribal schools -- Costs; School management and organization ? Tribes ? United States; Public contracts ? United States; Government aid to education ? United States.

*Synopsis: (from the opinion) This is a civil action for declaratory and injunctive relief brought under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. ? 450j-1(f), in which plaintiff Lac Courte Oreilles asks this court to bar defendants Ken Salazar, George Skibine, Kevin Skenandore and Lynn Lafferty from enforcing a bill for collection issued by the Bureau of Indian Affairs or pursuing any future right or remedy related to any disallowance of costs associated with the Single Agency audit for the fiscal year ending June 30, 2005

*Holding: not yet available

Cachil Dehe Band of Wintum Indians of the Colusa Indian Community v. California
2009 WL 1084830
No. S-04-2265 FCD KJM
United States District Court, E.D of California, April 22, 2009

Subjects: not yet available

*Synopsis: (from the opinion) On October 25, 2004, plaintiff filed a complaint in this court, alleging violations of the Compact. Plaintiff asserts that defendants violated the Compact by: (1) excluding the Tribe from participating in the third priority tier in the December 19, 2003 round of draws; (2) unilaterally determining the number of Gaming Device licenses authorized by ? 4.3.2.2(a)(1) of the Compact; (3) failing to refund money paid pursuant to the non-refundable one-time pre-payment fee set forth in ? 4.3.2.2(e) of the Compact; (4) CGCC conducting rounds of draws of Gaming Device licenses without authority; and (5) failing to negotiate in good faith.

*Holding: not yet available

Stop the Casino 101 Coalition v. Salazar
2009 WL 1066299
No. C 08-02846 SI
United States District Court, N.D. California, April 21, 2009

Subjects: Land into trust; Indian gaming -- Federated Indians of Graton Rancheria, California; Gambling on Indian reservations -- California.

*Synopsis: (from the opinion) This case concerns an action taken by officials of the United States Department of the Interior ('Secretary'). On April 18, 2008, the Secretary approved an application by the Federated Indians of the Graton Rancheria ('the Tribe') to accept a 254-acre parcel of land ('the parcel') near the City of Rohnert Park, California into trust.

*Holding: not yet available

Butte County, California v. Hogen
609 F.Supp.2d 20
No. Civ. 08-00519(HHK)
United States District Court District of Columbia, April 13, 2009

Subjects: Butte County (Calif.); Indian gaming -- Mechoopda Indian Tribe of Chico Rancheria, California; Gambling on Indian reservations -- California; National Indian Gaming Commission (U.S.); United States. Dept. of the Interior; Gambling ? Law and legislation -- Mechoopda Indian Tribe of Chico Rancheria, California; Land into trust.

*Synopsis: County brought action against members of National Indian Gaming Commission (NIGC) and Department of Interior, challenging agency decisions concerning intervening tribe, in which decisions NIGC approved gaming ordinance enacted by tribe pursuant to Indian Gaming Restoration Act (IGRA) and department took parcel of land in county into trust on behalf of tribe pursuant to Indian Restoration Act (IRA). Defendants moved to dismiss and county cross-moved for summary judgment.

*Holding: The District Court, Henry H. Kennedy, Jr., J., held that:
(1) county had Article III standing to challenge decisions;
(2) parcel qualified as restoration of lands under IGRA; and
(3) NIGC and department considered all necessary factors and gave explanation permitting rational understanding of decision.
Defendants' motion granted and county's motion denied.

Oglala Sioux Tribe v. C & W Enterprises, Inc.
2009 WL 973187
No. Civ. 07-5024-KES
United States District Court, District of South Dakota, April 7, 2009

Subjects: Tribal trust funds -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Roads -- Contracts -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Jurisdiction -- States; Arbitration (Administrative law); Attachment and garnishment.

*Synopsis: (from the opinion) Plaintiff, Oglala Sioux Tribe (the Tribe), moved for a temporary restraining order (TRO) and preliminary and permanent injunction to prevent defendant, C & W Enterprises, Inc. (C & W), from imposing an execution and levy on tribal funds held by the Bureau of Indian Affairs, the South Dakota Department of Revenue, and First National Bank of Gordon, Nebraska, on March 25, 2009. The court granted the Tribe's TRO motion the same day. Upon the court's request, the parties briefed the issues of jurisdiction, abstention, and the merits. An evidentiary hearing on the preliminary injunction request was held on April 3, 2009. Upon consideration of the parties' arguments, the court finds that the Anti-Injunction Act and principles of the Younger abstention prevent the court from enjoining C & W from executing and levying on tribal funds.

*Holding: not yet available

Related News Stories: Oglala Sioux Tribe hit with levy in immunity case (Indianz.com) 4/21/09

March

Freemanville Water System Inc. v. Poarch Band of Creek Indians
563 F.3d 1205
No. 08-10602 D.C., 07-00688-CV-WS
United States Court of Appeals, Eleventh Circuit, March 30, 2009

Subjects: Water treatment plants -- Design and construction -- Poarch Band of Creek Indians of Alabama; Sovereign immunity -- Poarch Band of Creek Indians of Alabama; United States. Consolidated Farm and Rural Development Act; Jurisdiction -- United States.

*Synopsis: Water authority brought action, under anti-curtailment provision of the Consolidated Farm and Rural Development Act of 1961, to preclude Indian tribe from developing its own water facilities and distribution system. The United States District Court for the Southern District of Alabama, No. 07-00688-CV-WS, William H. Steele, J., 2008 WL 80644, granted tribe's motion to dismiss, and water authority appealed.

*Holding: The Court of Appeals, Carnes, Circuit Judge, held that:
(1) pursuant to tribe's sovereign immunity, district court lacked jurisdiction to entertain water authority's action, and
(2) tribe's sovereign immunity extended to portions of planned water system that would have to run through non-tribal land.
Affirmed.

Related News Stories: Court upholds Ala. tribe's water system (Montgomery Advertiser) 3/30/09

In re Natural Gas Royalties
562 F.3d 1023
This opinion was withdrawn from the bound volume because the mandate was recalled and an amended opinion was reissued nunc pro tunc. For amended opinion, see 2009 WL 1336644.
No. 08-8004, 08-8008, 08-8010, 08-8011, 08-8012.
United States Court of Appeals,Tenth Circuit, March 17, 2009

Subjects: United States. False Claims Act; Royalties; Natural gas pipelines -- Indian Country (U.S.); Natural gas pipelines -- Public lands; Carbon dioxide.

*Synopsis: Relator appealed dismissal, by the United States District Court for the District of Wyoming, of five of his seven qui tam actions, under False Claims Act (FCA), alleging that natural gas companies underpaid royalties on carbon dioxide produced from federal and Indian lands.

*Holding: On consolidation of appeals the Court of Appeals, McConnell, Circuit Judge, held that first-to-file provision did not bar five of the seven qui tam actions.

Related News Stories: 10th Circuit dismisses oilman's claims of royalties fraud (Law.com) 3/20/09

Cheyenne Arapaho Tribes of Oklahoma v. United States
558 F.3d 592
No. 07-5399
United States Court of Appeals, District of Columbia, March 17, 2009

Subjects: Cheyenne-Arapaho Tribes of Oklahoma -- Compensation for taking; United States. Quiet Title Act; Fort Reno Military Reserve; Treaties -- Cheyenne-Arapaho Tribes of Oklahoma; Sovereign immunity -- United States; Discovery (Law).

*Synopsis: Indian tribes brought action against the United States, seeking to quiet title to land originally designated as part of a reservation and later set apart as a military installation. The United States District Court for the District of Columbia, Paul L. Friedman, J., 517 F.Supp.2d 365, dismissed the action for lack of subject matter jurisdiction and denied tribes' motion for a continuance to permit jurisdictional discovery. Tribes appealed.

*Holding: The Court of Appeals, Griffith, Circuit Judge, held that the District Court did not abuse its discretion in denying tribes' request for discovery.
Affirmed.

Tohono O'Odham Nation v. United States
559 F.3d 1284
No. 2008-5043
United States Court of Appeals, Federal Circuit, March 16, 2009

Subjects: Tribal trust funds -- Tohono O'odham Nation of Arizona; Breach of trust -- United States; Trusts and trustees -- United States; Jurisdiction; Natural resources -- Tohono O'odham Nation of Arizona -- Royalties.

*Synopsis: Indian tribe brought action against the United States, alleging the government breached its fiduciary duties as trustee of various funds and property owned by the tribe. The Court of Federal Claims, Eric G. Bruggink, J., 79 Fed.Cl. 645, entered order dismissing the tribe's action due to its separate action against the government in district court. The tribe appealed.

*Holding: The Court of Appeals, Linn, Circuit Judge, held that the tribe's district court action did not present the same claim as its Court of Federal Claims action.
Reversed and remanded.

Related News Stories: Federal Circuit ruling in Tohono O'odham trust case (Indianz.com) 3/16/09

Wolfchild v. United States
559 F.3d 1228
No. 2008-5018
United States Court of Appeals, Federal Circuit, March 10, 2009
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

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 United States during 1862 Sioux Outbreak in Minnesota brought suit against United States for breach of fiduciary duty and contract in management of property originally provided for benefit of loyal Mdewakanton. The United States Court of Federal Claims, Charles F. Lettow, J., 62 Fed.Cl. 521, ruled that government had breached its fiduciary duties, and government filed interlocutory appeal.

*Holding: The Court of Appeals, Bryson, Circuit Judge, held that:
(1) Appropriations Acts did not create trust for benefit of loyal Mdewakanton and their lineal descendants;
(2) Act that transferred United States' interest in land purchased with funds from Appropriations Acts terminated any trust relationship created by Appropriations Acts; and
(3) Congress's change in identity of beneficiaries of Indian trust lands did not constitute compensable taking.
Reversed and remanded.

Related News Stories: Appeals court decision in Dakota trust case (Indianz.com) 3/10/09

Yankton Sioux Tribe Head Start Concerned Parents v. Longview Farms, LLP
2009 WL 891866
No. Civ. 08-4058
United States District Court, South Dakota, March 31, 2009

Subjects: Longview Farms, LLP; Swine farrowing facilities; Environmental impact analysis; Environmental impact statements; United States. National Environmental Policy Act of 1969; United States. National Historic Preservation Act of 1966; Constitutional law -- United States; Constitutional law -- Yankton Sioux Tribe of South Dakota ; United States. Administrative Procedure Act; United States. Clean Air Act; United States. Federal Water Pollution Control Act; Indian Country (U.S.) -- Defined.

*Synopsis: (from the opinion) Plaintiffs have filed a Complaint for Declaratory and Injunctive Relief against Defendant alleging that Defendant violated various federal regulations and asking for an injunction ordering Defendant to cease constructing its farrowing operation. In particular, Plaintiffs allege that: (1) Defendant's farrowing operation was not presented to the Yankton Sioux Tribe for consideration in accordance with the Yankton Sioux Constitution Article 1. section 1; (2) Defendant violated the National Environmental Protection Act by failing to provide an environmental impact statement and by failing to provide for public participation and appeals prior to construction of the facility; (3) Defendant violated the National Historic Preservation Act by failing to ascertain the presence of historic and cultural resources which could be affected by the facility's construction and operation on a cultural and historic site; (4) Defendant violated the Administrative Procedures Act by failing to provide for public participation and appeals prior to the construction of the farrowing facility; (5) Defendant's actions violate Article VI of the United States Constitution; and (6) Defendant is in violation of the Clean Water and Clean Air Acts.

*Holding: not yet available

Moss v. Bossman
2009 WL 891867
No. Civ. 08-4085
United States District Court, South Dakota, March 31, 2009

Subjects: Longview Farms, LLP; Swine farrowing facilities; Law -- Yankton Sioux Tribe of South Dakota -- Application -- Non-Indians; Exclusion, Right of.

*Synopsis: (from the opinion) Plaintiffs contest the following efforts by Defendants to assert tribal jurisdiction over non-member Defendants and over the farrowing confinement unit that Plaintiffs were constructing on land outside the boundaries of the Yankton Sioux Reservation: (1) a petition filed by Yankton Sioux Tribe against Plaintiffs and the employees, agents, representatives, contractors, and vendors of Longview Farm, LLP, for an ex parte emergency exclusion and removal order which was granted ex parte by the Honorable William Bossman, Chief Judge, Yankton Sioux Tribal Court; (2) an action initiated in Yankton Sioux Tribal Court by Defendant, Director of the Tribal Employment Rights Ordinance Commission, Leonard R. Heth, claiming at least Three Hundred Fifty-Five Thousand Dollars ($355,000.00) in tribal sanctions since April 7, 2008, and expressly directing Plaintiffs to stop all operations with respect to the farrowing confinement unit; and (3) a pro se petition filed by Adelberto Michael Zephier, Jr. against 'Lyndon Moss and fellow Investors of Longview Farms, LLC and Castle Construction,' praying for an 'Injunction to Stop All further construction of the buildings at Longview Farms (sic) jobsite.'

*Holding: not yet available

Jicarilla Apache Nation v. United States Department of Interior
2009 WL 837699
No. 07-803(RJL)
United States District Court, District of Columbia, March 31, 2009

Subjects: Jicarilla Apache Nation, New Mexico; United States. Administrative Procedure Act; United States. Minerals Management Service; Natural gas -- Royalties.

*Synopsis: Indian tribe moved for summary judgment in its action alleging that Department of the Interior (DOI) violated the Administrative Procedure Act (APA) by rejecting use of a "major portion" analysis methodology to calculate natural gas royalties owed the tribe.

*Holding: The District Court, Richard J. Leon, J., held that:
(1) DOI's failure to explicitly discuss and explain its departure from previous
decisions did not render decision arbitrary and capricious;(2) DOI's decision was entitled to deference; and
(3) DOI did not violate its fiduciary duty to tribe.
Motion denied.

Flandreau Santee Sioux Tribe v. South Dakota
2009 WL 874002
No. Civ. 07-4040
United States District Court, South Dakota, March 30, 2009

Subjects: Flandreau Santee Sioux Tribe of South Dakota; United States. Indian Gaming Regulatory Act: Intergovernmental agreements -- Indian gaming -- Class III; Equality before the law; South Dakota.

*Synopsis: (from the opinion) The Tribe alleges that the State has violated various provisions of the Indian Gaming Regulatory Act by failing to negotiate in good faith with the Tribe for purposes of entering into a Tribal-State compact for conducting class III gaming on the Tribe's reservation. The Tribe also asserts state and federal equal protection claims, alleging that the defendants give preferential treatment to gaming operators other than the Tribe.

*Holding: not yet available

Salt River Pima-Maricopa Indian Community v. United States
2009 WL 874011
No. 08-354C
United States Court of Federal Claims, March 30, 2009

Subjects: United States. Western Area Power Administration; Breach of contract -- United States; Servitudes -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Electric lines -- On Indian reservations.

*Synopsis: Indian tribe and its individual members brought putative class action against the United States, asserting claims sounding in tort for trespass and nuisance, and seeking money damages from the Western Area Power Administration (WAPA) for breach of a contract and grant of easement. Government moved to dismiss.

*Holding:The Court of Federal Claims, Horn, J., held that:
(1) Contract Disputes Act's (CDA) six-year statute of limitations did not
apply, and
(2) parties' contract and grant of easement was covered by the CDA, and,
thus, CDA was money-mandating statute required for Court of Federal Claims to
assert Tucker Act jurisdiction over the action.
Motion denied.

Hoopa Valley Tribe v. United States
2009 WL 805609
No. 08-72L
United States Court of Federal Claims, March 25, 2009

Subjects: United States. Hoopa-Yurok Settlement Act; Land tenure -- Hoopa Valley Tribe, California; Land tenure -- Yurok Tribe of the Yurok Reservation, California; Tribal trust funds.

*Synopsis: Indian tribe brought action against the United States, challenging government's distribution of money from a trust created under the Hoopa-Yurok Settlement Act to resolve longstanding issues regarding ownership, management, and revenue-sharing of a former joint reservation inhabited by two tribes. Government filed third party complaint against the other tribe, seeking judgment against that tribe if it were found liable for mistakenly disbursing the funds. Plaintiff tribe moved for partial summary judgment, government moved to dismiss or for summary judgment, and defendant tribe moved to dismiss or for summary judgment.

*Holding: The Court of Federal Claims, Wheeler, J., held that plaintiff tribe lacked standing to challenge distribution to defendant tribe. Plaintiff tribe's motion denied, government's motion granted, and defendant tribe's motion dismissed.

White Earth Band of Chippewa Indians v. County of Hahnomen, Minnesota
2009 WL 805609
No. 07-3962
United States District Court, D. Minnesota, March 25, 2009

Subjects: White Earth Band of Chippewa Indians; Taxation -- Law and legislation -- Hahnomen County (Minn.) -- Application -- Indian Country (U.S.); Real property tax.

*Synopsis: (from the opinion) This is an action for declaratory and injunctive relief and for money damages in response to the Defendants' alleged unlawful actions to assess and collect property taxes under state authority upon tribally owned lands located within the exterior boundaries of the White Earth Band Reservation.

*Holding: not yet available

Oglala Sioux Tribe v. C & W Enterprises, Inc.
2009 WL 803625
No. 07-5024-KES
United States District Court, D. South Dakota, March 25, 2009

Subjects: Mining leases -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Roads -- Contracts -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Sand and gravel plants -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Arbitration (Administrative law); Attachment and garnishment.

*Synopsis: (from the opinion) Plaintiff, Oglala Sioux Tribe, moves for a temporary restraining order (TRO) to prevent the execution and levy of tribal funds held by the Bureau of Indian Affairs, the South Dakota Department of Revenue, and First National Bank of Gordon, Nebraska. The Oglala Sioux Tribe served the motion on defendant, C & W Enterprises, Inc. (C & W Enterprises), which has not responded. The Oglala Sioux Tribe's request for a TRO is granted.

*Holding: not yet available

Pelt v. Utah
2009 WL 803115
No. 2:92-CV-639-TX
United States District Court, D. Utah, March 25, 2009

Subjects: Navajo Indians -- San Juan County (Utah); Utah; Class actions (Civil procedure); Trusts and trustees -- Accounting -- Utah; Oil and gas leases -- Royalties; Breach of trust; Fiduciary accountability.

*Synopsis: (from the opinion) Beneficiaries of the Navajo Trust Fund ("NTF" or "Trust Fund") filed this class action against the NTF trustee, Defendant State of Utah, seeking relief for alleged mismanagement of Trust Fund monies. They seek an equitable accounting of Trust Fund income and expenditures and replenishment of Trust Fund resources lost through any proven breach of fiduciary duty.

*Holding: not yet available

White Earth Band of Chippewa Indians v. County of Mahnomen, Minnesota
605 F.Supp.2d 1034
No. 07-3962
United States District Court, D. Minnesota, March 24, 2009

Subjects: not yet available

*Synopsis: Indian tribe that owned casino brought action against county and county officials, alleging that the collection of real property taxes on casino property was unlawful, and seeking a refund of such taxes. County moved to dismiss certain claims on sovereign immunity grounds, and parties cross-moved for summary judgment.

*Holding: The District Court, Michael J. Davis, Chief Judge, held that:
(1) money damages claim was barred by Eleventh Amendment;
(2) claims for injunctive and declaratory relief were not barred by the Eleventh
Amendment;
(3) District Court would not abstain under Younger;
(4) District Court would not abstain under Colorado River; and
(5) White Earth Lands Settlement Act (WELSA) precluded county in Minnesota from
assessing and collecting taxes on casino property.
Motions granted in part, and denied in part.

Mahnomen County, Minnesota v. Bureau of Indian Affairs
604 F.Supp.2d 1252
No. 08-5180
United States District Court, Minnesota, March 24, 2009

Subjects: Land into trust -- White Earth Band of Chippewa Indians; White Earth Band of Chippewa Indians -- Land tenure; United States. Bureau of Indian Affairs; Notice (Law); Mahnomen County (Minn.).

*Synopsis: County brought action against Bureau of Indian Affairs (BIA), Secretary of Interior, and United States, seeking review of BIA determination, which took property on White Earth Indian Reservation into trust as a mandatory acquisition under White Earth Lands Settlement Act WELSA). Defendants moved to dismiss or for summary judgment.

*Holding: The District Court, Michael J. Davis, Chief Judge, held that:
(1) determination that tract was purchased exclusively with WELSA funds was
reasonable and supported by evidence;
(2) BIA did not act in bad faith in reviewing reservation's records; and
(3) regulation providing for notice and opportunity to be heard in relation to
discretionary acquisitions was not applicable to county's challenge.
Motion granted.

New Jersey Sand Hill Band of Lenape & Cherokee Indians v. Corzine
2009 WL 799210

No. 09-683
United States District Court, D. New Jersey, March 24, 2009

Subjects: Land tenure -- New Jersey Sand Hill Band of Lenape & Cherokee Indians; New Jersey.

*Synopsis: (from the opinion) This matter comes before the Court upon the petition of the New Jersey Sand Hill Band of Lenape & Cherokee Indians (the "Sand Hill Band") and its public minister, Ronald-Stacey (collectively, "petitioners"). Petitioners request the Court to, inter alia, temporarily restrain respondents--the State of New Jersey, counties therein, and official representatives of those entities (collectively, "respondents")--from enforcing certain state laws and regulations against them. The crux of the petition is that respondents and their predecessors have wrongly converted and misappropriated petitioners' land and other property for over 200 years, in violation of federalconstitutional and statutory protections.

*Holding: not yet available

United Keetoowah Band of Cherokee Indians in Oklahoma v. United States
2009 WL 764488
No. 06-936L
United States Court of Federal Claims, March 20, 2009

Subjects: Breach of trust -- United States; Fiduciary accountability; Tribal trust funds -- United Keetoowah Band of Cherokee Indians of Oklahoma.

*Synopsis: (from the opinion) United Keetoowah Band of Cherokee Indians in Oklahoma filed action against United States alleging breach of its fiduciary duty to properly administer, provide accountingof, and safely invest funds derived from tribe's assets. United States moved to dismiss for lack of subject matter jurisdiction.

*Holding: The United States Court of Federal Claims, Thomas C. Wheeler, J., held that plaintiff that filed its complaint in Court of Federal Claims first did not have claim "pending" in another court. Motion denied.

Red Lake Band of Chippewa Indians v. U.S. Department of Interior
2009 WL 763069
No. 06-1826
United States District Court, District of Columbia, March 19, 2009

Subjects: not yet available

*Synopsis: Indian tribe filed action against Department of Interior and Secretary of Department, alleging breach of provisions of parties' Compact of Self-Governance and accompanying agreements entered into pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA). Cross-motions for summary judgment were filed.

*Holding: The District Court, Colleen Kollar-Kotelly, J., held that:
(1) issues of fact regarding injury suffered precluded summary judgment on
breach of contract claims;
(2) tribe did not suffer loss as result of Department's failure to notify tribe
of availability of year end funds; and
(3) as an issue of first impression, district court had jurisdiction to order
specific performance of contract under ISDEAA.
Plaintiff's motion granted in part and denied in part; defendants' motion granted
in part and denied in part.

Bales v. Chickasaw Nation Industries
2009 WL 904084
No. 07-1024 JP/RLP
United States District Court, New Mexico, March 19, 2009

Subjects: Indian business enterprises -- Chickasaw Nation, Oklahoma; Chickasaw Nation Industries; Law -- New Mexico -- Application -- Tribes; United States. Civil Rights Act of 1964. Title 7; United States. Age Discrimination in Employment Act of 1967; Discrimination in employment.

*Synopsis: (from the opinion) The Plaintiff, a non-Native American, brings this employment discrimination lawsuit against Defendant, a corporation wholly owned by the Chickasaw Nation of Oklahoma doing business in New Mexico. Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act (ADEA); and New Mexico common law. See Complaint for Damages From Race Discrimination, Age Discrimination, Sex, Discrimination, Breaches of an Implied Contract of Employment and Constructive Discharge, filed Oct. 9, 2007; Plaintiffs Response to Defendant's Motion to Dismiss For Lack of Subject Matter Jurisdiction

*Holding: not yet available

Council of Athabascan Tribal Governments v. United States
2009 WL 6046984
Briefs & Pleadings from Turtle Talk Blog
No. 07-1270(RWR)
United States District Court, District of Columbia, March 16, 2009

Subjects: not yet available

*Synopsis: (from the opinion) The complaint alleges that the ISDEAA requires the Secretary to pay the Council the full contract support costs due under its contracts and that IHS has failed to do so, resulting in a shortfall. Indirect costs are calculated using a ratio between the '[indirect costs] pool, the amount considered necessary to run the contractor's entire PFSAs-the numerator-and the total direct funding for those PFSAs-the denominator.'

*Holding: not yet available

United States v. Patterson
2009 WL 1255448
No. CR 07-2249 JB.
United States District Court, District of New Mexico March 3, 2009

*Synopsis: Defendant who was charged with theft of property in Indian Country, stealing and converting property belonging to an Indian tribal organization, and burglary in Indian Country moved to dismiss indictment or to compel election of counts.

*Holdings: The District Court, James O. Browning, J., held that:
(1) charges of theft of property in Indian country and stealing and converting property belonging to an Indian tribal organization were not multiplicitous;
(2) charges of theft of property in Indian country and burglary in Indian Country were not multiplicitous; and
(3) charges of stealing and converting property belonging to an Indian tribal organization and burglary in Indian country were not multiplicitous.
Motion denied.

February

United States v. Janis
556 F.3d 894
No. 08-1286
United States Court of Appeals, Eighth Circuit, February 26, 2009

Subjects: Evidence (Law); Embezzlement -- Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Officials and employees.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Karen E. Schreier, J., of theft or embezzlement from an Indian tribal organization. Defendant appealed.

*Holding: The Court of Appeals, Gruender, Circuit Judge, held that evidence was sufficient to support conviction.
Affirmed.

United States v. Cruz
554 F.3d 840
No. 07-30384
United States Court of Appeals, Ninth Circuit, February 10, 2009

Subjects: Jurisdiction -- United States; Indians of North America -- Defined; Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Assault and battery -- Browning (Mont.).

*Synopsis: Following denial of motion for acquittal, defendant was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., of assault resulting in serious bodily injury committed by an Indian on an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Reinhardt, Circuit Judge, held that insufficient evidence established that defendant was an Indian.
Reversed.

United States v. Begay
2009 WL 465026
No. CR08-1203-PHX-DGC
United States District Court, D of Arizona, February 24, 2009

Subjects: United States. Adam Walsh Child Protection and Safety Act of 2006; Sex offenders -- Registers; Criminal actions arising on Indian reservations; Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: (from the opinion) Defendant Brandon Begay asks the Court to dismiss the indictment against him on ten separate grounds related to the application and timing of the Sex Offender Registration and Notification Act.

*Holding: not yet available

United States v. Hardman
2009 WL 453354
No. 2:99-CR-00166, 2:99-CR-000047, 2:00-CR-00029
United States District Court, Utah, February 19, 2009

Subjects: Eagle feathers; Eagles -- Protection; Unlawful possession; United States. Religious Freedom Restoration Act of 1993.

*Synopsis: In three separate cases in the United States, District Courts for the Districts of New Mexico and Utah, Edwin L. Mechem, J. and Dee Benson, Chief District Judge, two of the claimants were convicted for unrelated counts of illegally possessing eagle feathers, and the other claimant had his eagle feather returned following seizure by the Bureau of Indian Affairs. After vacating the panel opinions, and then sua sponte ordering that the cases be reheard en banc, the Court of Appeals, Tacha, Chief Judge, 297 F.3d 1116, remanded with respect to two claimants, and affirmed with respect to other claimant.

*Holding: On remand, the District Court, Dee Benson, J., held that government did not employ least restrictive means in enacting ban on possession of eagle feathers by non-Native Americans, as required under Religious Freedom Restoration Act (RFRA).
So ordered.

United States v. Wilgus
2009 WL 393617
No. 2:99-CR-00047, 2:99-CR-00166, 2:00-CR-00029
United States District Court, Utah, February 17, 2009

Subjects: United States. Constitution. Free exercise clause; Eagle feathers; Non-Indians; Freedom of religion; Religious articles.

*Synopsis: (from the opinion) In 1990 the United States Supreme Court held that an otherwise valid law of general application that incidentally imposed a burden on the practice of a particular religion did not offend the free exercise clause of the First Amendment. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Characterizing Smith as an unwarranted departure from well-established free exercise jurisprudence, Congress retaliated by passing the Religious Freedom Restoration Act (RFRA) of 1993. 42 U.S .C. ? 2000bb et seq. A certain amount of edifying back-and-forth between the legislative and judicial branches ensued. For present purposes, the result of that interaction is that RFRA's reinstatement of the strict scrutiny test governs this Court's consideration of federal laws permitting Native American practitioners of Native American religions to possess eagle feathers for religious purposes but forbidding non-Native American adherents of the very same religions from likewise possessing eagle feathers. If the federal government imposes a substantial burden on the free exercise of religion, as the government concedes it has done in this case, the government action creating the burden will fall afoul of RFRA unless the government can demonstrate that the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. ? 2000bb-1(b). In other words, 'only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.' Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In order to show that its compelling interests 'cannot otherwise be served,' the government must demonstrate that it has explored other possible means of advancing its goals and found that they would not serve.

*Holding: not yet available

Chippewa Cree Tribe of the Rocky Boy's Reservation v. United States
2009 WL 349809
No. 02-6751 L
United States Court of Federal Claims, February 10, 2009

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

*Synopsis: Indian tribes brought suit against United States seeking damages for mismanagement of judgment funds awarded by Indian Claims Commission. Proposed intervenors filed motion to intervene.

*Holding: The United States Court of Federal Claims, Hewitt, J., held that:
(1) interest of proposed intervenors, who had not been recognized as beneficiaries of compensation fund for ceded land, in gaining status as beneficiaries, was indirect or contingent, and thus was complete bar to granting intervention of right;
(2) proposed intervenors did not hold interest that substantive law recognized as belonging to, or being owned by, them, as required to intervene as of right;
(3) interest of proposed intervenors had not been impaired, as required to intervene as of right;
(4) issue of whether existing parties adequately represented interest of proposed intervenors was not relevant to motion;
(5) delay of 16 years in applying for intervention did not favor finding that intervention was timely;
(6) existence of body of case law that addressed precise issue of contestations of tribal enrollment practices militated against existence of unusual circumstances that would have supported finding that motion to intervene as of right was timely;
(7) prejudice to proposed intervenors by judgment in lawsuit would have been minimal at best; and (8) common question of law or fact did not exist, as required for permissive intervention. Motion denied.

United States v. Morrison
2009 WL 320333
No. 04-CR-699
United States District Court, of E.D New York, February 6, 2009

Subjects: Cigarettes -- Labeling -- New York (State); Cigarettes -- Sales -- Taxation; United States. Contraband Cigarette Trafficking Act; United States. Racketeer Influenced and Corrupt Organizations Act.

*Synopsis: After jury found defendant guilty of Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy and being a felon in possession of a firearm, defendant filed motion to dismiss or for new trial.

*Holding: The District Court, Hurley, Senior District Judge, held that:
(1) defendant's alleged violations of the Contraband Cigarettes Trafficking Act
(CCTA) in connection with his alleged sale of cigarettes lacking valid New York
State tax stamps while operating retail cigarette business on Indian reservation
could serve as predicate acts under RICO;
(2) government was not barred from changing its theory of case for RICO
conspiracy counts by arguing that predicate acts were on-reservation sale of
unstamped cigarettes;
(3) CCTA provision barring sale of cigarettes lacking tax stamp required by
state law was not unconstitutionally vague;
(4) application of the CCTA provision to defendant was not arbitrary, in
violation of substantive due process;
(5) application of CCTA provision to defendant was not result of selective
enforcement, in violation of equal protection;
(6) lack of scienter requirement the CCTA provision did not make the statute
unconstitutionally vague;
(7) tax attorney who advised defendant was not the equivalent of an authorized
state official for purposes of entrapment by estoppel; and
(8) evidence was sufficient to support the felon in possession conviction.

AK-Chin indian Community v. United States
2009 WL 320333
No. 06-932 L
United States Court of Federal Claims, February 5, 2009

Subjects: United States. Court of Federal Claims; United States. District Court (District of Columbia); Jurisdiction; Breach of trust -- United States; Trusts and trustees -- United States; Leases -- On trust lands -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Discovery (Law).

*Synopsis: Indian tribe brought action against United States, seeking damages for alleged breach of trust obligations. Tribe moved to compel discovery. The Court of Federal Claims, - Fed.Cl. -, 2009 WL 141205, granted motion. United States moved for reconsideration.

*Holding: The Court of Federal Claims, Emily C. Hewitt, J., held that manifest injustice would not result absent reconsideration of order granting tribe's motion to compel discovery.
Motion for reconsideration denied.

South Fork Band v. United States Department of Interior
2009 WL 249711
No. 3:08-CV-00616-LRH-RAM
United States District Court, of Nevada, February 3, 2009

Subjects: Mines and mineral resources; United States. National Environmental Policy Act of 1969; United States. Federal Land Policy and Management Act of 1976; United States. Religious Freedom Restoration Act of 1993; 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; Tribes - Land tenure.

*Synopsis: Indian tribes brought action challenging Bureau of Land Management's (BLM) approval of mining project on federal land. Tribes moved for preliminary injunction prohibiting mining company from proceeding with the project. Mining company filed motion for partial judgment on the pleadings.

*Holding: The District Court, Larry R. Hicks, J., held that:

(1) tribes satisfied their burden of demonstrating associational standing to
represent their members;
(2) tribes failed to establish a likelihood of success on the merits of their
Religious Freedom Restoration Act (RFRA) claim; and
(3) tribes failed to establish a likelihood of success on the merits of their
Federal Land Policy and Management Act (FLPMA) claims.
Motions denied.

January

Wisconsin v. Stockbridge-Munsee Community
554 F.3d 657
No. 04-3834
United States Court of Appeals, Seventh Circuit, January 20, 2008

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; Indian Country (U.S.) -- Defined; Indian reservations -- Boundaries.

*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). The United States District Court for the Eastern District of Wisconsin, Patricia J. Gorence, United States Magistrate Judge, 366 F.Supp.2d 698, denied defendants' motion for summary judgment and granted state's motion for summary judgment. Defendants appealed.

*Holding: The Court of Appeals, Evans, Circuit Judge, held that:
(1) 1981 Act intended to remove opened lands from the reservation, and
(2) 1906 Act effectively abolished the reservation.
Affirmed.

Philip Morris USA v. King Mountain Tobacco Company, Inc.
552 F.3d 1098
No. 06-36066
United States Court of Appeals, Ninth Circuit, January 20, 2008

Subjects: Phillip Morris USA; Jurisdiction -- United States; Jurisdiction -- Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes and Bands of the Yakama Nation, Washington -- Members; Indian business enterprises; Trademark infringement; Cigarettes.

*Synopsis: Cigarette maker brought action against tribal corporation selling cigarettes alleging various federal and state law claims, including trademark infringement, and seeking injunctive relief against tribal corporation's continued sale of its products. After the tribal corporation brought an action for declaratory relief against cigarette maker in tribal court, the United States District Court for the Eastern District of Washington, Robert H. Whaley, J., granted tribal corporation's request to stay the proceedings pending the tribal court's determination of its jurisdiction. Cigarette maker appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that tribal court did not have colorable jurisdiction over tribal corporation's action for declaratory relief.
Reversed and remanded.

Douglas v. Dry Creek Rancheria Band of Pomo Indians
2009 WL 224538
No. CV08-159-S-EJL
United States District Court, of Idaho, January 29, 2009

Subjects: Tribal members -- Dry Creek Rancheria of Pomo Indians of California; Tribal membership; Articles of Association -- Dry Creek Rancheria of Pomo Indians of California; Records -- Management.

*Synopsis: (from the opinion) The Plaintiffs, Deborah J. Dollar Douglas, Lisa R. Dollar Shinaver, and Elizabeth Wiley, are enrolled members of the Dry Creek Rancheria Band of Pomo Indians ('the Tribe'). Plaintiffs filed a class action law suit on behalf of members of the Tribe against certain named Defendants, who are executive board members of the Tribe's committee and are responsible for the enrollment records of the Tribe. The Complaint alleges Defendants have isolated the Tribe's Articles of Association by failing to properly maintaining the enrollment records of the Tribe such that a large number of individuals are improperly listed as enrolled members. Certain monetary distributions and other benefits are made to enrolled tribal members from the list. As a result, Plaintiffs argue, a number of individuals are improperly receiving the benefits of Tribal membership. Plaintiffs seek an order directing the Defendants 'to refrain immediately and pending the final hearing and determination of this action' from convening membership meetings where candidate nominations and elections for the new board of directors for the Tribe will be held and/or holding meetings for referendum elections or votes on amendments to the Tribe's Articles of Association.

*Holding: not yet available

Samish Indian Nation v. United States
2009 WL 234585
No. 02-1383L
United States Court of Federal Claims, January 28, 2009

Subjects: Samish Indian Tribe, Washington -- Services for; Federally recognized Indian tribes -- Lists; Samish Indian Tribe, Washington -- Government relations -- United States; Tribal Priority Allocation system (TPA).

*Synopsis: Indian tribe brought suit against the United States, seeking compensation for benefits it would have received under the Tribal Priority Allocation (TPA) system and the Indian Health Service (IHS) funding process if it had been properly recognized by the federal government during a nearly 28-year period. Following partial dismissal, 82 Fed.Cl. 54, tribe moved for entry of judgment.

*Holding: The Court of Federal Claims, Sweeney, J., held that:

(1) tribe's claims were not individual, cognizable claims, as required for entry of judgment, and
(2) just reason existed for delaying entry of final judgment. Motion denied.

Siegfried v. Bureau of Indian Affairs
2009 WL 189406
No. 1:05-CV-055
United States District Court, District of North Dakota, January 27, 2009

Subjects: Indian reservation police; Police -- Standing Rock Sioux Tribe of North & South Dakota; United States. Federal Tort Claims Act; Workers' compensation; Police vehicles -- Accidents; Automobiles -- Maintenance and repair; Liability for traffic accidents; United States. Bureau of Indian Affairs.

*Synopsis: (from the opinion) Plaintiff, Allen Siegfried ('Siegfried'), is a tribal law enforcement officer employed by the Standing Rock Indian Reservation. He initiated the above-entitled action by complaint pursuant to the Federal Tort Claims Act on April 15, 2005. He sought to recover damages for injuries he sustained while assisting with the apprehension of Curtis Feather ('Feather'), a suspected pickup thief, near Cannonball, North Dakota.FN1 His complaint set forth two causes of action: (1) the BIA was negligent for failing to maintain the patrol vehicle in which he was injured while a passenger; and (2) the Government was obligated to provide compensation under the State's underinsured motorist laws given the fact that Feather was not insured.

*Holding: not yet available

Osage Nation v. Oklahoma ex rel. Oklahoma Tax Commission
2009 WL 204194
No. 01-CV-516-JHP-FHM
United States District Court, of N.D. Oklahoma, January 23, 2009

Subjects: Disestablished Indian reservations; Indian reservations -- Boundaries; Indian Country (Okla.) -- Defined; Taxation -- Law and legislation -- Oklahoma -- Application -- Osage Tribe, Oklahoma -- Members; Income tax -- Osage Tribe, Oklahoma -- Members -- Oklahoma -- Osage County; Osage Tribe, Oklahoma -- Officials and employees -- Taxation -- Oklahoma; Standing to sue.

*Synopsis: Indian tribe brought action against Oklahoma state tax commission and members of commission, seeking declaratory judgment that reservation boundaries were not disestablished and that reservation was Indian country, and injunction prohibiting commission and its members from imposing and collecting taxes on income of tribe's members who resided and earned income within reservation boundaries. Defendants moved to dismiss and motion was converted to one for summary judgment.

*Holding: The District Court, James H. Payne, J., held that:
(1) tribe had standing to bring suit challenging reservation status;
(2) reservation was no longer intact; and
(3) income of tribe members working and living on private fee lands was not exempt from taxation. Motion granted.

Boney v. Valline
2009 WL 302053
No. 3:05-cv-00683-RCJ-VPC
United States District Court, District of Nevada, January 22, 2009

Subjects: United States. Constitution. 1st Amendment; United States. Constitution. 4th Amendment; Arrest; United States. Federal Tort Claims Act; Indian reservation police; Police shootings; Police -- Walker River Paiute Tribe of the Walker River Reservation, Nevada.

*Synopsis: Arrestee brought Bivens action against tribal police officer, seeking damages for officer's alleged violation of her First and Fourth Amendment rights in connection with her arrest and son's death. Officer moved for summary judgment.

*Holding: The District Court, Robert C. Jones, J., held that:
(1) on matter of first impression, officer was not acting under color of federal law, as required to subject officer to arrestee's Bivens action, and
(2) officer was not acting as a federal employee within meaning of Federal Tort Claims Act (FTCA). Motion granted.

Cachil Dehe band of Wintun indians of the Colusa Indian Community v. California
2009 WL 161081
No. 0 CIV. S-04-2265 FCD KJM
United States District Court, District of California, January 22, 2009

Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming.

*Synopsis: (from the opinion) In this case, proposed plaintiff-intervenor Picayune Rancheria alleges that the Commission breached its Gaming Compact with the State of California by miscalculating the total number of licenses in the gaming device license pool. (Proposed Compl. in Intervention [Docket # 55], filed Jan. 2, 2009.) Proposed plaintiff-intervenor seeks a declaration that 'the correct number of licenses in excess of 32,151 in the gaming device license pool' should be available for issuance to Proposition 1A Tribes, including the Picayune Rancheria.

*Holding: not yet available

Betenbaugh v. Needville Independent School District
701 F.Supp.2d 863
No. H-08-2934
United States District Court, S.D. Texas, January 20, 2009

Subjects: not yet available

*Synopsis: Student and his parents sued school district, alleging that exemption to dress code prohibiting boys from wearing their hair long, which allowed student to wear his hair in tightly woven braid stuffed down the back of his shirt, violated student's right to free exercise of religion and right to free expression, and violated parents' right to raise student according to their Native American religion and heritage, which they claimed placed religious significance on long hair. Plaintiffs moved for preliminary injunction.

*Holding: The District Court, Keith P. Ellison, J., held that: (1) plaintiffs had sincerely held religious belief, protected by the Free Exercise Clause of the Fourteenth Amendment, that placed religious significance on having long hair; (2) the dress code burdened student's sincerely held religious belief that his hair should be worn long; but (3) requirement that student annually reapply for a religious exemption to the dress code did not violate his right to free exercise of religion; (4) student's choice to wear his hair long in two braids was protected by his First Amendment right to freedom of speech; (5) exemption violated student's First Amendment right to freedom of speech; (6) exemption violated parents' due process right to raise student in accordance with their own religious beliefs; and (7) plaintiffs would likely suffer irreparable harm, in absence of preliminary injunction. Motion granted in part and denied in part.

United States v. Menominee Tribal Enterprises
2009 WL 122802
No. 07-C-316
United States District Court, District of Wisconsin, January 16, 2009

Subjects: United States. Bureau of Indian Affairs -- Contracts; Breach of contract -- Menominee Tribal Enterprises; Sovereign immunity -- Menominee Indian Tribe of Wisconsin -- Officials and employees; United States. False Claims Act; Fire extinction -- Contracts -- United States; Discovery (Law).

*Synopsis: (from the opinion) The United States brought this action against Menominee Tribal Enterprises ('MTE') and two of its employees. The Government alleges that the Defendants submitted invoices seeking payment that contained false information, in violation of the False Claims Act, 31 U.S.C. ? 3729. It further alleges that MTE breached contracts it had with the Bureau of Indian Affairs when it made several large purchases without receiving prior approval.

*Holding: not yet available

Ak-Chin Indian Community v. United States
85 Fed.Cl. 397
No. 06-932 L
United States Court of Federal Claims, January 14, 2009

Subjects: United States. Court of Federal Claims; United States. District Court (District of Columbia); Jurisdiction; Breach of trust -- United States; Trusts and trustees -- United States; Leases -- On trust lands -- Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona.

*Synopsis: Indian tribe brought action against United States seeking damages for
breach of trust obligations. Tribe moved to compel discovery.

*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) government had to organize and label documents responsive to tribe's
document production requests and interrogatories, and
(2) government's offer to produce business records was not adequate response to
tribe's interrogatories.
Motion granted.

Bercier v. Turtle Mountain Tribal Court
2009 WL 113606
No. 4:08-cv-094
United States District Court, District of North Dakota, January 15, 2009

Subjects: Exhaustion of tribal remedies; Jurisdiction -- Turtle Mountain Band of Chippewa Indians of North Dakota; Habeas corpus; United States. Indian Civil Rights Act; Jurisdiction -- United States.

*Synopsis: (from the opinion) Before the Court is the Plaintiff's petition for habeas corpus relief pursuant to the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-03 filed on November 4, 2008. See Docket No. 2. On December 19, 2008, the Defendant filed a Motion to Dismiss for Failure to Exhaust Tribal Court Remedies. See Docket No. 8. Magistrate Judge Charles S. Miller, Jr. reviewed the pending motions and, on December 22, 2008, submitted a Report and Recommendation. See Docket No. 10. Judge Miller found that the Court should require the Plaintiff to exhaust his tribal court remedies by seeking relief from the Turtle Mountain Tribal Court of Appeals. Judge Miller recommended that the Defendant's motion to dismiss be granted and that the Plaintiff's habeas corpus petition be denied without prejudice to a later refiling after available tribal remedies have been exhausted or the Plaintiff is able to demonstrate that exhaustion would be futile.

*Holding: not yet available

Gillette v. Edison
2009 WL 81919
No. 4:08-cv-102
United States District Court, D. North Dakota, January 14, 2009

Subjects: Jurisdiction -- North Dakota; Lawyers -- Malpractice; Equality before the law; Criminal actions arising on Indian reservations; Tribal courts -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.

*Synopsis: Attorney who was the subject of pending North Dakota disciplinary proceedings brought cause of action to enjoin proceedings, based both on alleged violation of his equal protection rights and on theory that North Dakota Supreme Court did not have jurisdiction to discipline him for alleged misconduct occurring in connection with litigation in Indian tribal court. Defendant moved to dismiss.

*Holding: The District Court, Daniel L. Hovland, Chief Judge, held that:
(1) North Dakota Supreme Court had jurisdiction and authority to discipline
attorney who had been licensed to practice law in North Dakota for misconduct
allegedly occurring in connection with his representation of clients before tribal
court; and
(2) North Dakota attorney disciplinary proceeding that attorney sought to enjoin
was "ongoing state judicial proceeding," of kind contemplated by Younger
abstention doctrine;
(3) North Dakota had important interest in pending disciplinary proceeding; and
(4) attorney had adequate opportunity to raise constitutional claims in
disciplinary proceeding, so that attorney's lawsuit would be enjoined.

Amador County, California v. Kempthorne
2009 WL 37517
No. 05-658
United States District Court, District of Columbia, January 8, 2009

Subjects: Intergovernmental agreements -- Buena Vista Rancheria of Me-Wuk Indians of California; Intergovernmental agreements -- California; Indian gaming; Gambling on Indian reservations -- California; United States. Indian Gaming Regulatory Act; United States. Dept. of the Interior; Amador County (Calif.); Indian Country (U.S.) -- Defined; Casinos -- Design and construction.

*Synopsis: County brought action against the Department of the Interior (DOI), the Secretary of the DOI, and the Assistant Secretary for Indian Affairs, alleging that the approval of an amendment to the gaming compact between an Indian tribe and the state of California was an arbitrary and capricious decision in violation of the Administrative Procedure Act (APA) because the amendment authorized gaming in violation of the Indian Gaming Regulatory Act (IGRA). Defendants moved to dismiss.

*Holding: The District Court, Richard W. Roberts, J., held that:
(1) county alleged an injury-in-fact as required to satisfy constitutional standing;
(2) county alleged an injury fairly traceable to defendants' action that could be redressable through judicial means, as required for constitutional standing;
(3) decision of Secretary to approve, disapprove, or take no action on compact was committed to agency discretion and was thus unreviewable under the APA; and
(4) approval of compact could not violate the IGRA.
Motion granted.

Gasplus, L.L.C. v. United States Department of the Interior
2009 WL 42926
No. 03-1902
United States District Court, District of Columbia, January 6, 2009

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

*Synopsis: Gasoline distribution company sued Department of the Interior (DOI), challenging decision in which Bureau of Indian Affairs (BIA) declared that management agreement between company and Indian tribe was terminated immediately for lack of approval by Secretary of the Interior, as required by statute. The District Court, 510 F.Supp.2d 18, granted summary judgment for company. Company applied for costs and attorney fees pursuant to Equal Access to Justice Act (EAJA).

*Holding: The District Court, Rosemary M. Collyer, J., held that:
(1) company could not recover photocopying expense as part of cost award;
(2) costs incurred in serving two defendants who were sued in their individual capacities under Bivens were not incurred as part of action against United States, and thus could not be recovered as part of cost award;
(3) government's interpretation of statute underlying contract termination was not substantially justified;
(4) government's alleged bad faith was not established by clear and convincing evidence, precluding award of discretionary fees; and
(5) reduction in company's attorney fee award was not warranted on grounds that company did not prevail on its due process claim and its opposition to government's motion to remand. Ordered accordingly.

The Mobile Washington (MOWA) Band of the Choctaw Indian Tribes v. Sunbelt Resources
2009 WL 32734
No. 08-00413-WS-B
United States District Court, S.D. Alabama, January 5, 2009

Subjects: Incineration -- Waste disposal; Hazardous and toxic substances; Breach of contract; Bad faith (Law); Sunbelt Resources, Inc.; MOWA Band of Choctaw Indians of Alabama.

*Synopsis: Indian tribe/lessor and individual landowners brought state-court action against lessees, operators of incineration plant for non-hazardous waste on tribal property, alleging discharge of hazardous and toxic substances. Lessees filed third-party action against insurer, alleging breach of contract and bad faith in insurer's failure to defend and indemnify against tribe's and landowners' action. Insurer removed entire action on diversity grounds. After removal, insurer moved to sever and remand, contending that it had been improperly joined. Tribe and landowners moved to remand entire action, and lessees also moved to remand entire action.

*Holding: The District Court, William H. Steele, J., adopted opinion of United
States Magistrate Judge Sonja F. Bivins, which held that:
(1) third party defendants are not entitled to exercise right of removal;
(2) separate and independent claim can justify removal only if that claim is
within federal-question jurisdiction; and
(3) statutory one-year deadline for diversity-based removal only applies to
cases not removable at time of filing.
Motion to sever and remand denied; motions to remand granted.

Stockbridge-Munsee Community v. United States
593 F.Supp.2d 44
No. 08-1031 (EGS)
United States District Court, District of Columbia, January 5, 2009

Subjects: Stockbridge-Munsee Community of Mohican Indians of Wisconsin -- Boundaries; Land into trust -- Oneida Nation of New York; Land tenure -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; Ancestral lands -- Stockbridge-Munsee Community of Mohican Indians of Wisconsin; United States. Administrative Procedure Act.

*Synopsis: In Indian tribe's action challenging Department of the Interior's (DOI) decision to take certain lands in New York into trust for benefit of another tribe, defendants moved to transfer case to Northern District of New York and suspend its obligation to answer in the District Court.

*Holding: The District Court, Emmet G. Sullivan, J., held that:
(1) private-interest factors favored granting Government's motion to transfer
action, and
(2) public-interest considerations favored granting motion.
Motion granted.

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