2011 Federal Courts Cases

December

United States v. Pecore
2011 WL 6880632
Nos. 10 2676, 10 3599
United States Court of Appeals, Seventh Circuit, Dec. 30, 2011.

*Synopsis: United States filed civil action against tribal forest manager and fire management officer alleging violation of False Claims Act (FCA). Defendants prevailed after jury trial. Defendants moved for award of attorney's fees under Equal Access to Justice Act (EAJA), or alternatively, sanctions. The United States District Court for the Eastern District of Wisconsin, William C. Griesbach, J., 2010 WL 2465505, denied motion. Defendants appealed.

*Holdings: The Court of Appeals, Kanne, Circuit Judge, held that:
(1) alleged violation of internal agency policy guidelines served only as probative evidence that government did not file suit in good faith;
(2) case involving contract performance does not necessarily foreclose FCA liability;
(3) district court did not abuse its discretion in finding that government's motive theory was substantially justified;
(4) district court did not abuse its discretion in finding that government had reasonable grounds for believing that defendants had knowingly submitted false invoices;
(5) government did not abdicate its duty to diligently investigate FCA claims by giving greater deference to its own expert; and
(6) district court did not abuse its discretion in rejecting request for sanctions for government's refusal to admit genuineness of tribal invoices, completion maps, and accomplishment memoranda.
Affirmed.

United States v. Maxwell
664 F.3d 240
Nos. 11?1073, 11?1074
United States Court of Appeals, Eighth Circuit, December 22, 2011.

*Synopsis: Native American defendants pled guilty to second degree murder committed on Indian reservation against Native American victim and were sentenced, respectively, to 121?month prison term by downward departure for defendant who provided substantial assistance, and 222?month prison term by upward variance for her co-defendant boyfriend, imposed by the United States District Court for the District of Minnesota, Donovan W. Frank, J. Defendants appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) co-defendant's sentence based on upward variance was substantively reasonable;
(2) downward departure was not warranted based on co-defendant's mental illness;
(3) downward departure based on duress was not warranted;
(4) sentencing factors were adequately considered; and
(5) defendant's within-guidelines sentence was substantively reasonable.
Affirmed.

New Jersey v. Environmental Protection Agency
2011 WL 6352310
Nos. 05 1097, 05 1104, 05 1116, 05 1118, 05 1158, 05 1159, 05 1160, 05 1162, 05 1163, 05 1164, 05 1167, 05 1174, 05 1175, 05 1176, 05 1183, 05 1189, 05 1263, 05 1267, 05 1270, 05 1271, 05 1275, 05 1277, 06 1211, 06 1220, 06 1231, 06 1287, 06 1291, 06 1293, 06 1294.
United States Court of Appeals, District of Columbia Circuit, Dec. 20, 2011.

*Synopsis: States and others petitioned for review of Environmental Protection Agency (EPA) rules regulating mercury emissions from power plants. Native American tribes and tribal associations intervened on behalf of petitioners. The Court of Appeals, Rogers, Circuit Judge, 517 F.3d 574, granted petition and vacated rules. Tribal intervenors moved to recover their costs of litigation, including attorney's fees, from EPA.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that intervenors were entitled under to recover litigation costs, although their arguments were never reached by court in determining to vacate rules.
Ordered accordingly.
Brown, Circuit Judge, filed dissenting opinion.

Wells Fargo Bank v. Maynahonah
2011 WL 6826825
No. CV 11 648 D.
United States District Court, W.D. Oklahoma, Dec. 28, 2011

*Synopsis: (from the opinion) "Before the Court is the Amended Motion to Intervene [Doc. No. 46], filed by TGS Anadarko, LLC ("TGS") pursuant to Fed.R.Civ.P. 24. The Amended Motion is accompanied by a proposed complaint, as required by Rule 24(c). It was filed the same day that the Court denied TGS's initial motion due to noncompliance with Rule 24(c). See Order 7/20/11 [Doc. No. 45]. Defendants have timely opposed the motion; Plaintiff Wells Fargo Bank, N.A. has responded in support of it. The time for filing a reply brief has expired. Thus, the motion is at issue.
[...]
This declaratory judgment action under 28 U.S.C. ss 2201-02 and 28 U.S.C. s 1331, seeks a determination of the federal question of whether the Apache Business Committee and the Apache Gaming Commission have jurisdiction over Plaintiff Wells Fargo Bank with respect to a loan agreement between Plaintiff and the Apache Tribe of Oklahoma (the "Tribe"), and assignments of a lease agreement between the Tribe and KAGD, LLC.[...]"

*Holdings: (not yet available)

Colorado v. Western Sky Financial
845 F.Supp.2d 1178
No. 11?cv?00887.
United States District Court, D. Colorado, Dec. 27, 2011

*Synopsis: Colorado Attorney General and Administrator of Uniform Consumer Credit Code filed state court action against South Dakota limited liability company and its sole manager and executive officer, who was enrolled member of Indian tribe, that allegedly had made unlicensed supervised loans with excessive finance charges via Internet to Colorado consumers, seeking injunctive relief and damages for alleged violations of Colorado Uniform Consumer Credit Code (UCCC) and Colorado Consumer Protection Act (CCPA). Defendants removed action to federal court on basis of federal question jurisdiction, noting that loan agreement stated it was governed by Indian Commerce Clause and claiming complete preemption. The District Court, Kathleen M. Tafoya, United States Magistrate Judge, 2011 WL 2457861, granted in part and denied in part plaintiffs' motion to stay discovery and related matters pending remand. Plaintiffs moved to remand to state court for lack of subject matter jurisdiction.

*Holdings: The District Court, R. Brooke Jackson, J., held that under the well-pleaded complaint rule, case was not removable to federal court and had to be remanded. Motion granted.

 

Saginaw Chippewa Indian Tribe of Michigan v. National Labor Relations Board
2011 WL 6754102
No. 11 14652
United States District Court, E.D. Michigan, Dec. 23, 2011

*Synopsis: (from the opinion) "This case involves competing claims to jurisdiction-more precisely, the lack thereof. The Saginaw Chippewa Indian Tribe of Michigan filed suit in this Court to enjoin the National Labor Relations Board from applying the National Labor Relations Act, 29 U .S.C. ss 151-69, to the Tribe's casino operations. Moving for a preliminary injunction, the Tribe contends that it is not subject to the Board's jurisdiction as the Act does not expressly provide that it applies to Indian tribes. The Board, in turn, moves to dismiss the Tribe's complaint, contending this Court lacks jurisdiction because the Act "requires parties to exhaust administrative remedies before the Board and an appropriate court of appeals." Whether the Tribe is correct that the Board lacks jurisdiction or the Board is correct that this Court lacks jurisdiction (or, indeed, whether they are both correct) are issues that will ultimately be resolved by the Sixth Circuit, regardless of what this Court decides. Nevertheless, this Court concludes that the Board has the better argument regarding this Court's jurisdiction-more precisely, the lack thereof.[...]"

*Holdings: (not yet available)

Everglades Ecolodge at Big Cypress, LLC v. Seminole Tribe of Florida
836 F.Supp.2d 1296
Case No. 11?60839?civ.
United States District Court, S.D. Florida, Dec. 22, 2011

*Synopsis: Developer brought action against tribe in state court, alleging breach of lease for development of resort and for specific performance. Tribe removed action to federal court and moved to dismiss. Developer moved to remand.

*Holdings: The District Court, Marcia G. Cooke, J. held that:
(1) developer's claims arose under federal law;
(2) state court's jurisdiction was preempted; and
(3) waiver of sovereign immunity in lease was invalid.

Defendant's motion granted; Plaintiffs' motion denied.

Osage Nation v. Wind Capital Group, LLC
2011 WL 6371384
No. 11 CV 643 GKF PJC
United States District Court, N.D. Oklahoma, Dec. 20, 2011

*Synopsis: (from the opinion) "In short, plaintiff has not met its burden on its claims for declaratory and injunctive relief under either federal or state law. Plaintiff did not prove that the Wind Farm will unreasonably interfere with plaintiff's right to make reasonable use of the surface estate, nor did it prove that the Wind Farm will unreasonably hinder the right to use so much of the surface as may be reasonable for oil and gas operations and marketing. Plaintiff also failed to prove that it would be irreparably harmed unless an order enjoining construction and operation of the Wind Farm is granted; that the threatened injury to the Tribe outweighs the harm the injunction may cause the defendants; and that the injunction, if issued, would not adversely affect the public interest. Accordingly, The Osage Nation's request for declaratory relief and a permanent injunction barring Defendants from constructing a wind farm in Osage County, Oklahoma, is denied and the action shall be dismissed on the merits by separate Judgment entered contemporaneously herewith."

*Holdings: (not yet available)

Crow Tribe of Indians v. Peters
2011 WL 6337641
No. CV 10 95 BLG CSO
United States District Court, D. Montana, Billings Division, Dec. 19, 2011

*Synopsis: Indian tribe and mineral lessee brought action against owner of surface estate, alleging illegal interference with lessee's rights to use surface. Parties moved and cross?moved for partial summary judgment.

*Holdings: The District Court, Carolyn S. Ostby, United States Magistrate Judge, held that:
(1) federal law controlled action;
(2) lessee was not required to obtain surface owner's consent prior to exercising its surface rights;
(3) letter from Office of Surface Mining Reclamation and Enforcement (OSM) did not alter applicable law; and
(4) issue presented was ripe for judicial review.

Plaintiffs' motion granted in part and owner's motion denied.

Lewis v. Tulalip Housing Limited Partnership #3
2011 WL 6140881
No. C11 1596 RSM
United States District Court, W.D. Washington, at Seattle, December 9, 2011


*Synopsis: (from the opinion) "This matter comes before the Court upon Plaintiff's Motion to Remand to State Court and for an Award of Fees and Costs (Dkt.# 7). For the reasons set forth below, Plaintiff's motion is GRANTED.

Plaintiff brought this action in Snohomish County Superior Court on July 1, 2011, naming defendants Mike Alva, Patti Gobin, Chuck James, and Jane Doe James (the "Individual Defendants"), Raymond James Native American Housing Opportunities Fund II, L.L.C. (the "Fund"), and Tulalip Housing Limited Partnership # 3 (the "Partnership"). Plaintiff is a citizen of the state of Washington. The Individual Defendants are enrolled members of the Tulalip Tribes, who live on the Tulalip Reservation, and are also Washington residents. The Partnership is a Washington limited partnership with its principal place of business in Washington. The Fund is a Delaware limited liability corporation with its principal place of business in Florida. [...]"

*Holdings: (not yet available)

Friends of Amador County, Bea v. Salazar
2011 WL 6141291
No. CIV. 2:10 348 WBS CKD
United States District Court, E.D. California, December 9, 2011

*Synopsis: (from the opinion) "On August 16, 2011, the Buena Vista Indians (the "Tribe") requested permission to Rancheria of Me-Wuk appear specially to present a motion to dismiss based on failure to join a necessary and indispensable party under Federal Rule of Civil Procedure 19. (Docket No. 32.) On October 4, 2011, the court issued an order dismissing the action. (Docket No. 62.) Plaintiffs now move to reconsider, vacate, amend, or modify this court's order of October 4, 2011."

*Holdings: (not yet available)

Gold River, Llc v. La Jolla Band of Luiseno Mission Indians
2011 WL 6152291
No. 11cv1750 JM(BGS)
United States District Court, S.D. California, December 9, 2011

*Synopsis: (from the opinion) "Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendant La Jolla Band of Luiseno Mission Indians ("La Jolla Band") moves to dismiss the action based upon the doctrine of sovereign immunity. Plaintiff Gold River, LLC ("Gold River") opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds this matter appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss with prejudice and instructs the Clerk of Court to close the file."

*Holdings: (not yet available)

Alturas Indian Rancheria v. California Gambling Control Commission
2011 WL 6130912
No. CIV. S 11 2070 LKK/EFB
United States District Court, E.D. California, December 8, 2011

*Synopsis: (from the opinion) "Plaintiff in this case is the Del Rosa Faction of the Alturas Valley Indian Tribe. The Del Rosas filed this action seeking to enjoin the California Gambling and Control Commission ("CGCC") from releasing funds held in trust for the Alturas Valley Indian Tribe to the IRS pursuant to two tax levies. Pending before the court are two motions to dismiss. One is by defendant-intervenor United States, and the other is a voluntary dismissal by plaintiff-intervenor, the Rose Faction of the Tribe."

*Holdings: (not yet available)

 

Blue Lake Rancheria v. Morgenstern
2011 WL 6100845
No. 2:11 CV 01124 JAM JFM
United States District Court, E.D. California, December 6, 2011

*Synopsis: (from the opinion) "This matter is before the Court on Defendants' Marty Morgenstern ("Morgenstern"), Pam Harris ("Harris"), Jack Budmark ("Budmark"), Talbott Smith ("Smith"), Kathy Dunne ("Dunne") and Sarah Reece ("Reece"), the State of California (the "State"), and the Employment Development Department ("EDD") (collectively "Defendants") Motion to Dismiss (Docs.# 26, # 36) Plaintiffs' Blue Lake Rancheria ("the Tribe"), Blue Lake Rancheria Economic Development Corporation ("EdCo"), and Mainstay Business Solutions ("Mainstay") (collectively "Plaintiffs") Complaint (Doc. # 1).

Defendants move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of jurisdiction and 12(b)(6) for failure to state a claim. Plaintiffs oppose the motion (Doc. # 46). For the reasons set forth below, the motion to dismiss is DENIED. "

*Holdings: (not yet available)

 

Northwestern Band of Shoshone v. United States
2011 WL 6091340
No. 06-914 L.
United States Court of Federal Claims, December 6, 2011


See Also:

Lower Brule Sioux Tribe v. United States
2011 WL 6062269
No. 06-922 L.
United States Court of Federal Claims, December 1, 2011


*Synopsis: Indian tribe brought action against the United States, seeking money damages for alleged breaches of trust responsibilities. Government moved to dismiss.

*Holdings: The Court of Federal Claims, Block, J., held that Court lacked jurisdiction.
Motion granted.

Yakama Nation Housing Authority v. United States
2011 WL 6062362
No. 08-839C
United States Court of Federal Claims, December 5, 2011

*Synopsis: Indian nation's housing authority brought action against United States, alleging that Department of Housing and Urban Development (HUD) improperly reduced Indian Housing Block Grants that authority received under Native American Housing and Self?Determination Act (NAHASDA) over course of several years and seeking to account for and recover purportedly withheld grant funds. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim."

*Holdings: The Court of Federal Claims, Smith, Senior Judge, held that:
(1) authority's other district court filings did not divest court of jurisdiction;
(2) some of authority's claims were time?barred;
(3) NAHASDA was money?mandating statute for purposes of court's jurisdiction;
(4) Anti?Deficiency Act did not bar relief on authority's claims;
(5) Congress did not bar court's jurisdiction under NAHASDA; and
(6) enforceable trust relationship existed between authority and HUD.
Motion granted in part and denied in part.

Related News Stories: Judge rules in favor of Klamath Tribes in water rights case (The Sacramento Bee) 12/13/11

 

Rosebud Sioux Tribe v. United States
2011 WL 6017542
No. 06-924 L
United States Court of Federal Claims, December 2, 2011
See also:
Muscogee (Creek) Nation of Oklahoma v. United States
2011 WL 6017188
No. 06-918 L
United States Court of Federal Claims, December 2, 2011

*Synopsis: Indian tribe brought action against the United States, seeking money damages for alleged breaches of trust responsibilities arising out of mismanagement of tribal trust assets. Government moved to dismiss.

*Holdings: The Court of Federal Claims, Merow, Senior Judge, held that Court lacked jurisdiction.
Motion granted.

November

Brandt v. United States
2011 WL 6076190
No. 09-265 L
United States Court of Federal Claims, November 30, 2011

*Synopsis: Claimants brought action against government, alleging a taking of their property interests in a railroad right-of-way that traversed their Wyoming property. Government filed motion to dismiss for lack of jurisdiction.

*Holdings: The Court of Federal Claims, Hewitt, Chief Judge, held that claimants' takings suit was "pending" for the purposes of statute depriving Court of Federal Claims of jurisdiction over claim for or in respect to which the plaintiff has pending suit against United States in another court where suit was filed during the period after district court had entered judgment on claimants' takings counterclaim but before the time to appeal that judgment had expired.
Motion granted.

Prairie Band of Potawatomi Indians v. United States
2011 WL 5925328
No. 06-921 L
United States Court of Federal Claims, Nov. 29, 2011

*Synopsis: Indian tribe brought action against the United States, seeking money damages for alleged breaches of its fiduciary duties with respect to tribal assets held in trust by the Government. Government moved to dismiss.

*Holdings: The Court of Federal Claims, Bush, J., held that Court lacked jurisdiction.
Motion granted.

Thorpe v. Borough of Jim Thorpe
2011 WL 5878377
Civil Action No. 3:10-CV-01317
United States District Court, M.D. Pennsylvania, Nov. 23, 2011

*Synopsis: (from the opinion) "Presently before the Court are Defendants' Motions to Dismiss the Amended Complaint, Motions to Dismiss Pursuant to Rule 25, and Plaintiffs' Motion for Leave to File Second Amended Complaint. Plaintiffs state a claim under the Native American Graves Protection and Repatriation Act and no further parties are necessary to the action, so Defendants' motion to dismiss will be denied in part. But because Plaintiffs fail to state a claim under 42 U.S.C. s 1983 or the Equal Access to Justice Act, Defendants' motions to dismiss will be granted in part. Further, since no statement noting death has been served, a motion for substitution is not yet required, so Defendants' motions to dismiss pursuant to Rule 25 will be denied. Finally, because leave to amend should be granted freely, Plaintiffs' motion to amend will be granted. "

*Holdings: (not yet available)

Wyandotte Nation v. Salazar
2011 WL 5841611
Civil Action No. 11-1361 (BAH)
United States District Court, District of Columbia, Nov. 22, 2011

*Synopsis: Federally recognized Indian tribe sought writ of mandamus to compel Secretary of Department of Interior to accept trust title to land, pursuant to Land Claim Settlement Act. Defendant moved to transfer venue.

*Holdings: The District Court, Beryl A. Howell, J., held that:
(1) public interest factors favored transfer to Kansas, and
(2) private interest factors favored transfer to Kansas.

Motion granted.



City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa
2011 WL 5854639
Civil No. 09-2668 (SRN/LIB)
United States District Court, D. Minnesota, Nov. 21, 2011

*Synopsis: City sued band of Native American tribe, alleging breach of contractual obligations created when city and band agreed to establish casino in city's downtown, and also seeking declaration that parties' contracts were valid and enforceable, damages, and injunction ordering band to comply with its contractual obligations or, alternatively, accelerated damages for estimated amounts owed to city for remainder of contractual relationship. Tribe asserted counterclaims, alleging that contracts were unenforceable. After entry of summary judgment barring tribe from challenging agreement's validity, 708 F.Supp.2d 890, and entry of order compelling tribe to arbitrate amount of rent to be paid to city for extension term, 2011 WL 1832786, tribe moved for relief from judgment.

*Holdings: The District Court, Susan Richard Nelson, J., held that:
(1) parties' agreement was subject to National Indian Gaming Commission's (NIGC) authority;
(2) NIGC's notice of violation was change in law warranting relief from consent decree;
(3) arbitration provision in joint venture agreement was no longer enforceable; and
(4) NIGC's notice of violation did not apply retroactively.

Motion granted in part and denied in part.

Coeur D'Alene Tribe v. United States
2011 WL 5822177
Briefs from Turtletalk
No. 06-940 L
United States Court of Federal Claims, Nov. 18, 2011

*Synopsis: Indian tribe sued United States, seeking damages for alleged mismanagement of tribe's trust funds and resources. Government moved to dismiss for lack of subject matter jurisdiction.

*Holdings: The Court of Federal Claims, Damich, J., held that:
(1) tribe's suit was for or in respect to same claim as tribe's suit in district court, and
(2) jurisdiction was barred by tribe's pending suit filed same day in district court.

Motion granted.

Iowa Tribe of Kansas and Nebraska v. United States
2011 WL 5600535
Briefs from Turtletalk
No. 06-920 L
United States Court of Federal Claims, Nov. 17, 2011

*Synopsis: Native American tribe brought action against United States, seeking damages for government's alleged mismanagement of tribe's trust funds and resources. Government moved to dismiss for lack of subject matter jurisdiction.

*Holdings: The Court of Federal Claims, Damich, J., held that it lacked subject matter jurisdiction over action.
Motion granted.

October

Oneida Indian Nation of New York v. Madison County
665 F.3d 408
NARF Tribal Supreme Court Project Information
Docket Nos. 05?6408?cv (L), 06?5168?cv (CON), 06?5515?cv (CON)
United States Court of Appeals, Second Circuit, Oct. 20, 2011.

*Synopsis: Indian tribe brought actions against counties to enjoin them from assessing property tax on tribe-owned property, acquired on the open market, and from enforcing those taxes through tax sale or foreclosure. In first case, the United States District Court for the Northern District of New York, David N. Hurd, J., 145 F.Supp.2d 226,145 F.Supp.2d 268, determined that property not taxable, and county appealed. The Court of Appeals, B.D. Parker, Jr., Circuit Judge, 337 F.3d 139, vacated judgment, and certiorari was granted. The Supreme Court, Ginsberg, J., 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386, reversed and remanded. On remand parties cross-moved for summary judgment. The District Court entered summary judgment in favor of tribe, 401 F.Supp.2d 219, and denied county's motion for relief from judgment, 235 F.R.D. 559. County appealed. In second case, the District Court, 432 F.Supp.2d 285, entered summary judgment in favor of tribe. County appealed, and cases were consolidated on appeal. The Court of Appeals, Sack, Circuit Judge, 605 F.3d 149, affirmed, and certiorari was granted. Tribe declared that it waived its tribal sovereign immunity from suit. The Supreme Court, ??? U.S. ????, 131 S.Ct. 704, 178 L.Ed.2d 587, vacated and remanded."

*Holdings: On remand, the Court of Appeals, Sack, Circuit Judge, held that:
(1) tribe irrevocably waived its claim to tribal sovereign immunity from enforcement of real property taxation through foreclosure by state, county, and local governments;
(2) tribe abandoned its claim on appeal that Nonintercourse Act's statutory restrictions on alienation of Indian land prohibited counties' tax foreclosures;
(3) vacatur of district court's grant of summary judgment to Indian tribe was proper, to the extent that judgment rested upon doctrine of tribal sovereign immunity and Nonintercourse Act;
(4) counties' notices of tax enforcement proceedings provided tribe with sufficient notice of its due-process-protected right to redeem its properties from foreclosure and enable it to take appropriate steps to protect property before redemption period expired;
(5) district court was required to decline supplemental jurisdiction over tribe's claim that property that tribe acquired on open market was "Indian reservation" property under New York law and thus was exempt from taxation; and
(6) counties forfeited their arguments on appeal in opposition to tribe's claim that it was entitled on grounds of equity to declaratory judgment that it did not owe interest or penalties on taxes that accrued prior to Supreme Court's holding that overturned prior decisional law under which property purchased on open market was not subject to taxation on ground that tribe possessed sovereign authority over property.
Affirmed in part, reversed in part, vacated in part, and remanded with instructions.

Engage Learning, Inc. v. Salazar
660 F.3d 1346
No. 2011-1007.
United States Court of Appeals, Federal Circuit, October 5, 2011.

*Synopsis: Service provider submitted claim under Contract Disputes Act (CDA) for unpaid educational training and support services provided to schools run by Bureau of Indian Affairs. Bureau denied claim. Provider appealed to the Civilian Board of Contract Appeals, 2010 WL 2484235, Catherine B. Hyatt, Administrative Judge, which granted government's motion to dismiss for lack of subject matter jurisdiction. Provider appealed.

*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
(1) in a matter of first impression, service provider's allegations were sufficient to establish that denial of claim was "relative to" express contract with an executive agency, and thus Civilian Board of Contract Appeals had subject matter jurisdiction over provider's appeal of denial of claim;
(2) Civilian Board of Contract Appeals was not permitted to resolve genuine issues of fact as to whether service provider had contract with Bureau on motion to dismiss for lack of subject matter jurisdiction; but
(3) service provider failed to state claim for unpaid services on ground that services were rendered pursuant to contract authorized under No Child Left Behind Act.
Affirmed in part, vacated in part, and remanded.

New Mexico ex rel. Reynolds v. Gutierrez
Briefs from Turtletalk
2011 WL 4537776
No. 10?2258
United States Court of Appeals. Tench Circuit, October 3, 2011.

*Synopsis: (from the opinion) "This appeal arises out of the adjudication of water rights in the Nambe?Pojoaque?Tesuque river system (NPT), a tributary of the Rio Grande river in the State of New Mexico. Pro se Defendants?Appellants Joe and Bertha Gutierrez challenge the district court's order denying their motion to vacate a special master's determination that their priority objection was untimely. Because we lack jurisdiction, we DISMISS this appeal."

*Holdings: (not available)

Los Coyotes Band of Cahuilla & Cupeno Indians v. Salazar
2011 WL 5118733
No. 10cv1448 AJB (NLS).
United States District Court, S.D. California, Oct. 28, 2011

*Synopsis: (from the opinion) ?Presently before the Court are Plaintiff's Motion for Summary Judgment (Doc. 21) and Defendants' Cross Motion for Summary Judgment (Doc. 33). For the following reasons, Plaintiff's Motion for Summary Judgment is GRANTED in part and DENIED in part, and Defendants' Cross Motion for Summary Judgment is GRANTED in part and DENIED in part.
[...]
This case arises from the Defendant Bureau of Indian Affairs ("BIA"), Office of Justice Services' ("OJS") denial of Plaintiff's request for a law enforcement funding contract under the Indian Self-Determination and Educational Assistance Act ("ISDEAA"), 25 U.S.C. s 450 et seq. These contracts are commonly known as "638 contracts."?

*Holdings: (not yet available)

ERTC, LLC. v. Los Coyotes Band of Cahuilla and Cupeno Indians
Briefs from Turtletalk
2011 WL 5118772
No. 11cv2148-WQH-NLS.
United States District Court, Southern District of California, Oct. 28, 2011

*Synopsis: (from the opinion) ?The matter before the Court is the ?Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction Pursuant to Fed. R. Civ. P. 65?(?Application for Temporary Restraining Order?). (ECF No. 11).
[?]
On September 15, 2011, Plaintiff ERTC, LLC (?ERTC?) filed a ?Complaint for Declaratory and Injunctive Relief and Unjust Enrichment? against Defendant Los Coyotes Band of Cahuilla and Cupeno Indians (?Los Coyotes?). (ECF No. 1). Los Coyotes is a federally recognized Native American Indian Tribe whose Reservation is located in San DiegoCounty California. Plaintiff alleges that Plaintiff ?has provided good and valid consideration for a lease of a portion of Los Coyotes? 25,000 acre reservation ... in Warner Springs ... for ERTC?s use in providing shooting ranges and tactical training for law enforcement and military personnel. Los Coyotes approved the Lease and proceeded to further ratify it by repeatedly accepting the benefits of the Lease.? (ECF No. 1 at 2). Plaintiff alleges that ?Los Coyotes suddenly disavowed the Lease,? and ?[a]fter breaking off negotiations, on September 12, 2011, the Tribe issued a Notice of Violation of Tribal Ordinances.? Id. Plaintiff alleges that ?[m]embers of Los Coyotes even threatened to take matters into their own hands if ERTC did not vacate the leased property?tragically, such threats came to fruition when the Tribe allowed certain Tribal members to take matters into their own hands by pouring gasoline on ERTC?s security boot and lighting it on fire, and destroying new surveillance cameras that were installed following the fire.? Id. On September 16, 2011, Plaintiff filed an Ex Parte Application for Temporary Restraining Order. (ECF No. 4). On September 19, 2011, Los Coyotes filed an Opposition to the application. (ECF No. 7). On September 20, 2011, a hearing on the application was held before this Court, at which the application was withdrawn.?

*Holdings: (not yet available)

Alturas Indian Rancheria V. California Gambling Control Commission
2011 WL 5118974
No. CIV. S-11-2070 LKK/EFB.
United States District Court, E.D. California, Oct. 25, 2011

*Synopsis: (from the opinion) ?This case is another arising from the dispute between members of the Alturas tribe. It is one more demonstration of why that case should settle, and why the ongoing dispute is not in the best interest of the tribe. This case involves funds held in trust by the California Gambling and Control Commission for the Alturas Valley Indian Rancheria, a federally-recognized Indian Tribe. Pending before the court is a Motion to Intervene by the United States. For the reasons stated herein, the motion to intervene is GRANTED. ?

*Holdings: (not yet available)

 

Winnebago Tribe of Nebraska v. United States
2011 WL 5042385
No. 06-913L
United States Court of Federal Claims, Oct. 25, 2011

*Synopsis: During pendency of action in which Indian tribe sought an accounting based on Government's alleged failure to properly generate, invest, or manage tribe's trust assets, tribe brought a second action, seeking monetary damages for those failures. Government moved to dismiss.

*Holdings: The District Court, Sweeney, J., held that statute depriving Court of jurisdiction over claims already pending in another court required dismissal.
Motion granted.

Wolfchild v. United States
2011 WL 5075078
Nos. 03-2684L, 01-568L
United States Court of Federal Claims, Oct. 25, 2011

*Synopsis: Government moved for reconsideration of a partial final judgment of the United States Court of Federal Claims, 101 Fed.Cl. 54, granting awards, pursuant to the Indian Tribal Judgment Funds Use or Distribution Act, to approximately 20,750 persons of Indian descent on their claims for revenue derived from use of lands reserved for eligible Indians.

*Holdings: The Court of Federal Claims, Lettow, J., held that upon Reports Elimination Act's repeal of Secretary of the Interior's duty under Indian Tribal Judgment Funds Use or Distribution Act to submit to Congress a plan for the use and distribution of the funds to pay a judgment of the Court of Federal Claims to any Indian tribe, Court of Federal Claims regained its general powers of effectuation of its judgments, including by issuing "a remit, remand, and direction to the Secretary of the Interior to provide a report to the court within the time specified in Indian Tribal Judgment Funds Use or Distribution Act".
Motion denied.

La Cuna De Aztlan Sacred Sites Prot. Circle Advisory Comm. v. United States DOI
2011 WL 5545473
Briefs from Turtletalk
No. CV 11-00395 ODW (OPx)
United States District Court, C.D. California, Oct. 24, 2011

*Synopsis: (from the opinion) ?This lawsuit arises out of Plaintiffs' challenges to Defendents' actions in connection with a solar-electricity generation project called the Chevron Energy Solutions Lucerne Solar Project. [...] Plaintiffs allege that Federal Defendents: (1) failed to consult with Plaintiffs regarding the Project as required under the National Historic Preservation Act (NHPA); (2) 'failed to conduct an analysis of the cumulative impacts, failed to prepare a programmatic environmental impact statement, failed to adequately identify and evaluate the significance of the affected cultural environment, and failed to conduct an adequate analysis of alternatives to the project' in violation of the National Environmental Policy Act [...]?

*Holdings: (not yet available)

Mishewal Wappo Tribe of Alexander Valley v. Salazar
Briefs from Turtletalk
2011 WL 5038356
No. 5:09-cv-02502 EJD.
United States District Court, N.D. California, Oct. 24, 2011

*Synopsis: (from the opinion) ?Presently before the Court is the motion of Intervenors County of Sonoma and County of Napa (the "Counties"), who jointly seek dismissal of this action filed by Plaintiff Mishewal Wappo Tribe of Alexander Valley (the "Tribe"). Both the Tribe and the Federal Defendants (the "Government") oppose the motion. According to the FAC, this court has jurisdiction pursuant to 28 U.S.C. ss 1331 and 1361. See FAC at PP 2, 3. For the reasons discussed below, the motion will be denied.
[...]
On June 5, 2009, the Tribe filed a complaint against the Secretary and Assistant Secretary of the Interior seeking federal recognition and the protection, services and benefits which stem from such recognition. See Complaint, Docket Item No. 1. In addition, the Tribe seeks an order directing the Secretary to take into trust public lands currently held by the Department of the Interior for the benefit of the Tribe. See id. A First Amended Complaint ("FAC") was thereafter filed on May 10, 2010.?

*Holdings: (not yet available)

Desautel v. Dupris
Briefs from Turtletalk
2011 WL 5025270
No. CV-11-0301-EFS
United States District Court, E.D. Washington, Oct. 21, 2011

*Synopsis: (from the opinion)?Plaintiffs Shawn DesAutel, Tamara Davis, and Tonia DesAutel filed this pro se lawsuit on August 16, 2011. The essence of Plaintiffs' ninety-two-page Complaint and accompanying 439-pages of exhibits, ECF No. 1, is that the Colville Tribal Court and Business Council and individuals with those entities "Individual Defendants) (collectively "Defendants") violated Plaintiffs' U.S. constitutional rights 1) by granting them adopted tribal membership rather than enrolled tribal membership, 2) through the process used to deny enrolled tribal membership, and 3) by requiring Mr. DesAutel to pay the Colville Business Council's attorneys fees and costs incurred as a result of his tribal- court lawsuits. Although Plaintiffs are treated as adopted tribal members, Plaintiffs seek enrolled tribal membership: enrolled tribal membership will allow Plaintiffs to receive additional tribal per capita payments. Plaintiffs ask the Court to set aside the Colville Business Council and Colville Tribal Court's decisions and orders and find that Plaintiffs are entitled to enrolled tribal membership and receipt of the accompanying per capita payments. [...] the Court denies Plaintiffs' motions and grants and denies in part Defendants' motion: judgment is entered in Defendants' favor.?

*Holdings: (not yet available)

United States v. Washington
2011 WL 4945211
No. C70-9213 RSM
United States District Court, W.D. Washington, Oct. 18, 2011

*Synopsis: (from the opinion) ?The State of Washington filed a request for dispute resolution under section 9 of the Shellfish Implementation Plan (SIP) to resolve a dispute between the State and the Squaxin Island Tribe regarding proposed leases of state land for private aquaculture activity. In response to the State's request for dispute resolution, United States District Judge Ricardo Martinez referred this subproceeding to the undersigned magistrate judge to hear and determine the dispute pursuant to Paragraphs 9.1.1 and 9.2 of the Shellfish Implementation Plan.?

*Holdings: (not yet available)

Salton Sea Venture, Inc. v. Ramsey
2011 WL 4945072
No. 11cv1968-IEG (WMC)
United States District Court, S.D. California, Oct. 18, 2011.

*Synopsis: (from the opinion) ?Presently before the Court is Plaintiff Salton Sea Venture, Inc. ("SSV")'s motion for a preliminary injunction. [Doc. No. 1-6.] For the reasons below, the Court DENIES Plaintiff's motion for a preliminary injunction. [...] Plaintiff Salton Sea Venture, Inc. is the owner and operator of a fuel station and convenience stores known as the "ARCO Travel Center" located in Salton City, California. [Doc. No. 1-3, Compl. PP 1, 6-7.] Plaintiff's travel center is located six miles from the "Red Earth Travel Center." [Id. P 8.] Plaintiff alleges that the Defendants Robert Ramsey and First American Petroleum through their actions at the Red Earth Travel Center have violated state law by (1) selling fuel at a price below its cost; (2) failing to charge patrons taxes; (3) selling fuel that does not meet California's minimum standards for reformulated gas; (4) failing to register with the Secretary of State; (5) selling fuel at an anti-competitive price in order to put Plaintiff out of business; and (6) selling fuel at an anti-competitive price resulting in the loss of sale of Plaintiff's business.?

*Holdings: (not yet available)

Western Sky Financial, LLC v. Maryland Commissioner of Financial Regulation
2011 WL 4929485
Civil No. WDQ-11-1256
United States District Court, D. Maryland, Northern Division, Oct. 13, 2011

*Synopsis: (from the opinion) "Western Sky Financial, LLC, Great Sky Finance, LLC, PayDay Financial, LLC, and Martin A. Webb ("plaintiffs"), sued the Maryland Commissioner of Financial Regulation ("CFR"), for declaratory relief. For the following reasons, the CFR's motion to dismiss will be granted. [...]
Martin Webb, a member of the Cheyenne River Sioux Tribe who resides on the Cheyenne River Reservation, owns Western Sky Financial, LLC, Great Sky Finance, LLC, and PayDay Financial, LLC, internet-based loan companies. ECF No. 1 PP 1- 2. All the plaintiffs reside on the Reservation. Id. The three companies state in their loan agreements that: (1) the agreement is subject to the exclusive laws of the Cheyenne River Sioux Tribe, (2) the debtor consents to the exclusive jurisdiction of the Cheyenne River Sioux Tribal Court, (3) the agreement is governed by the Indian Commerce Clause of the U.S. Constitution and Cheyenne River Sioux Tribe laws, and (4) the company is subject to the laws of no state."

*Holdings: (not yet available)

Fast Horse v. United States
101 Fed.Cl. 544
No. 11?264L
United States Court of Federal Claims, Oct. 12, 2011

*Synopsis: Member of Lakota Sioux Indian tribe filed putative class action against President, Secretary of Interior, and state governor seeking money damages arising from his incarceration in state prison. United States moved to dismiss.

*Holdings: The Court of Federal Claims, Wheeler, J., held that:
(1) Indian Claims Commission Act (ICCA) did not provide jurisdiction over claims;
(2) plaintiff's Bivens claims did not fall within scope of court's jurisdiction; and
(3) plaintiff was not authorized to present claims on behalf of other tribe members.
Motion granted.

Omaha Tribe of Nebraska v. United States
2011 WL 4793244
No. 06-911L
United States Court of Federal Claims, Oct. 7, 2011

*Synopsis: Indian tribe brought action against federal government, seeking monetary award in relation to trust accounting and management duties and responsibilities allegedly owed to tribe by government. Government argued to dismiss for lack of subject matter jurisdiction, in light of tribe's pending action in United States District Court seeking declaratory and injunctive relief.

*Holdings: The Court of Federal Claims, Firestone, J., held that court lacked jurisdiction under Indian Tucker Act.
Action dismissed.

Maryland Commissioner of Financial Regulation v. Western Sky Financial, LLC
Briefs from Turtletalk
2011 WL 4894075
Civil No. WDQ-11-0735
United States District Court, D. Maryland, Northern Division, Oct. 6, 2011

*Synopsis: (from the opinion) "In an administrative proceeding, the Maryland Commissioner of Financial Regulation ("CFR") ordered Western Sky Financial, LLC, Great Sky Finance, LLC, PayDay Financial, LLC, and Martin A. Webb ("defendants"), to cease and desist from lending money to Maryland customers. The defendants removed to this Court. For the following reasons, the CFR's motion to remand will be granted, and the defendants' motion to dismiss will be remanded."

*Holdings: (not yet available)

Miller v. Wright
Briefs from Turtletalk
2011 WL 4712245
No. 3:11?cv?05395 RBL
United States District Court, W.D. Washington, at Tacoma, Oct. 6, 2011

*Synopsis: (from the opinion) "On May 26, 2011, Plaintiffs filed the current suit against Defendants Wright, Dillon, and the Tribe. In their complaint, Plaintiffs allege price-fixing, antitrust, and unfair competition by Defendants in violation of the Sherman and Clayton Antirust Acts, 15 U.S.C. ?? 1?26, by imposing taxes on all purchases of cigarettes within the boundaries of the Puyallup Indian Reservation. Plaintiff seeks an injunction against Defendants to bar them from collecting taxes or any other additional fees on cigarette purchases by non-member, non-Indian buyers from Matheson's retail store. Plaintiff alleges that Defendant Wright, as Tax Enforcement Officer of the Tribe, acted beyond the scope of his authority by agreeing to ?force Plaintiffs to charge and pay higher prices? at the same time he was CEO of Tahoma Market, a competitor of Matheson's store. Plaintiff alleges that Defendant Dillon, as Chairman of the Tribe, acted beyond the scope of his authority by knowingly violating federal antitrust and price control laws and by signing the Tribe?State tax agreement in 2005. [...]
Defendants filed their Motion to Dismiss, arguing that this Court lacks jurisdiction to hear the case based upon the Tribe's sovereign immunity and the res judicata effect of prior rulings of Washington courts and Puyallup Tribal Courts. Defendants argue that a combination of plaintiffs in the instant case have already fully litigated the issue of tribal sovereign immunity and lost. Defendants argue that new plaintiffs do not lift the res judicata effect as all plaintiffs are in privity with one another and thus bound by previous sovereign immunity rulings. Defendants also argue that the Tribe's sovereign immunity remains a bar to suit, because no waiver of or exception to immunity is alleged in Plaintiffs' complaint. Plaintiffs, in their response to Defendants' motion argue that the Tribe waived sovereign immunity by dealing in wholesale or retail cigarette marketing and by ceding price-setting control of wholesale and minimum prices to the State."

*Holdings: (not yet available)

Cobell v. Salazar
Briefs from Turtletalk
2011 WL 4590776
Civil. Action No. 96-01285 (TFH)
United States District Court, District of Columbia, Oct. 5, 2011

*Synopsis: Following final judgment approving a $3.412 billion settlement in class action involving allegations that the United States breached its trust obligations by mismanaging the money, land and resource assets of more than 450,000 Indians, plaintiffs filed motions for appeal bonds to be imposed against appellants./p>

*Holdings: The District Court, Thomas F. Hogan, J., held that attorney fees that could be assessed on appeal were not taxable as costs covered by appeal bonds.
Motions denied.

Related News Stories: Ruling clears way for appeals of Indian trust deal (The Examiner) 10/08/11

United States v. Native Wholesale Supply Co.
2011 WL 4704221
No. 08-CV-850
United States District Court, W.D. New York, Oct. 4, 2011

*Synopsis: United States brought action against Native American-owned tobacco importer for failing to pay its quarterly assessments as required by the Fair and Equitable Tobacco Reform Act (FETRA). The United States moved for summary judgment. Following transfer by Richard J. Arcara, J., the parties cross-moved for summary judgment.

*Holdings: The District Court, John T. Curtin, J., held that:
(1) Commodity Credit Corporation's (CCC) interpretation of FETRA was reasonable, and therefore entitled to Chevron deference;
(2) FETRA did not violate the Takings Clause or the Due Process Clause of the Fifth Amendment; and
(3) Native American importers were not exempt from FETRA.
Government's motion granted; defendant's motion denied.

Alto v. Salazar
2011 WL 4591944
No. 11cv2276-IEG (BLM)
United States District Court, S.D. California, Oct. 4, 2011

*Synopsis: (from the opinion) "Plaintiffs, collectively known as the "Marcus Alto Sr. Descendants," seek declaratory and injunctive relief from a January 28, 2011 order issued by Defendant Assistant Secretary Echo Hawk finding that the Marcus Alto Sr. Descendants should be excluded from the San Pasqual tribal membership roll. Plaintiffs allege that the January 28, 2011 order was arbitrary and capricious in violation of their due process rights under the Fifth Amendment and the Administrative Procedure Act. Currently before the Court is Plaintiffs' Ex Parte Application for Temporary Restraining Order. [Doc. No. 3.] Plaintiffs allege that they gave notice to Defendants of their intention to file the present action and to seek interim relief. Having considered Plaintiffs' arguments, and for the reasons set forth below, the Court GRANTS the motion for a temporary restraining order and SCHEDULES a hearing on the motion for a preliminary injunction for Tuesday, October 18, 2011 at 10:00 a.m.
(1) Granting Temporary Restraining Order [Doc. No. 3], and
(2) Scheduling a hearing on motion for a preliminary injunction [Doc. No. 4]. "

*Holdings: (not yet available)

September

Confederated Tribes and Bands of the Yakama Indian Nation v. Gregoire
Briefs from Turtletalk
2011 WL 4430858
No. 10?35776
United States Court of Appeals. Ninth Circuit, September 23, 2011.

*Synopsis: Yakama Indian tribes brought action against various Washington state officials, challenging state's cigarette excise tax as violating Indian tax immunity based on its purportedly making retailers on Indian lands liable for payment of tax for sales to non?Indians. The United States District Court for the Eastern District of Washington, Robert H. Whaley, Senior District Judge, 680 F.Supp.2d 1258, granted in part and denied in part defendants' summary judgment motion. Tribes appealed.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that legal incidence of tax did not fall upon Indian retailers, but instead fell on non?Indian purchasers.
Affirmed.

Red Earth LLC v. United States
Briefs from Turtletalk
2011 WL 4359919
Docket Nos. 10?3165?cv(L), 10?3191?cv(XAP), 10?3213?cv(XAP).
United States Court of Appeals. Second Circuit, September 20, 2011.

*Synopsis: (from the opinion) "Appeal from an order of the Western District of New York (Richard J. Arcara, Judge) granting a preliminary injunction to stay enforcement of provisions of the Prevent All Cigarette Trafficking Act (?PACT Act?) that require mail-order cigarette sellers to pay state excise taxes. The government argues that the district court erred in concluding that plaintiffs were likely to succeed on their claim that the PACT Act's provision requiring out-of-state tobacco sellers to pay state excise taxes regardless of their contact with that state violates due process. We affirm the district court's order granting the preliminary injunction. AFFIRMED."

*Holdings: not yet available

Related News Stories: Appeals court sides with Senecas (The Post-Journal ) 09/21/11

Samish Indian Nation v. United States
Briefs from Turtletalk
2011 WL 4359941
No. 2010-5067
United States Court of Appeals. Federal Circuit, September 20, 2011.

*Synopsis: (from the opinion) "The issues on appeal before this court are ones of statutory construction. We must decide whether certain claims are premised on money-mandating statutes and are therefore within the jurisdiction of the United States Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. s 1491(a), and the Indian Tucker Act, 28 U.S.C. s 1505. The Court of Federal Claims dismissed for lack of jurisdiction over the claims brought by the Samish Indian Nation ("Samish") because some of their allegations were not premised upon any statute that was money-mandating, and the allegations reliant on money-mandating statutes were limited by other statutes. We affirm the Court of Federal Claims' decision that it lacked jurisdiction over some of the Samish's allegations because the Tribal Priority Allocation ("TPA") system is not money-mandating. We conclude, however, that the trial court's ability to provide a monetary remedy under the State and Local Fiscal Assistance Act of 1972 ("Revenue Sharing Act") is not limited by operation of the Anti-Deficiency Act, 31 U.S.C. s 1341. We therefore reverse the trial court's dismissal of the Samish's Revenue Sharing Act allegations and remand for further proceedings consistent with this opinion."

*Holdings: not yet available

Related News Stories: Federal Circuit revives part of Samish Nation federal funds suit (Indianz.com) 09/21/11

Southern Ute Indian Tribe v. Sebelius
Briefs from Turtletalk
2011 WL 4348299
Nos. 09-2281, 09-2291.
United States Court of Appeals. Tenth Circuit, September 19, 2011.

*Synopsis: Indian tribe brought suit, under Indian Self-Determination and Education Assistance Act (ISDA), 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. The Court of Appeals, Henry, Chief Judge, 564 F.3d 1198, dismissed for lack of jurisdiction. On remand, the District Court issued a final order, directing the parties to enter a self-determination contract including HHS's proposed language regarding the contract start date and contract support costs, and denying Tribe's request for damages. Cross-appeals were taken.

*Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) HHS was not permitted to decline self-determination contract with tribe on basis that available appropriations were insufficient; and
(2) start date for self-determination contract was date that tribe assumed operation of clinic.
Affirmed in part and reversed in part.

Wells Fargo Bank, National Association v. Lake of the Torches Economic Development Corporation
Briefs from Turtletalk
658 F.3d 684
No. 10-2069
United States Court of Appeals. Seventh Circuit, Argued Oct. 20, 2010.
Decided Sept. 6, 2011.
Rehearing En Banc Denied Oct. 28, 2011.

*Synopsis: National bank brought action against tribal casino development corporation, alleging breach of a trust indenture. The United States District Court for the Western District of Wisconsin, Rudolph T. Randa, J., 677 F.Supp.2d 1056, entered an order dismissing action, and bank appeale

*Holdings: The Court of Appeals, Ripple, Circuit Judge, held that:
(1) as a matter of first impression, tribal casino development corporation was a citizen of a state for purposes of diversity statute, and
(2) trust indenture was void ab initio under Indian Gaming Regulatory Act (IGRA).
Affirmed in part, reversed in part, and remanded.

Vann v. Salazar
2011 WL 4953030
Civil Action No. 03-1711 (HHK)
United States District Court, District of Columbia, Sept. 30, 2011

*Synopsis: Descendants of so-called Freedmen, former slaves of Cherokees or free blacks who intermarried with Cherokees, sued Secretary of Department of Interior (DOI), tribe, tribal chief, and other tribal officers, alleging that they were disenfranchised in violation of the Thirteenth and Fifteenth Amendments, the 1970 Principal Chiefs Act, the Cherokee Constitution, the Treaty of 1866, and the Indian Civil Rights Act (ICRA). Defendants moved to dismiss.

*Holdings: The District Court, Henry H. Kennedy, Jr., J., held that:
(1) Cherokee Nation would be prejudiced if action proceeded in its absence;
(2) prejudice to Nation could not be lessened or avoided if it was not party;
(3) judgment entered in Nation's absence would not be adequate;
(4) descendants would have adequate remedy if action was dismissed;
(5) public interest exception to application of joinder rules was inapplicable; and
(6) leave for descendants to amend its fourth amended complaint would be futile and was therefore denied.
Motion granted.

Larimer v. Konocti Vista Casino Resort, Marina & RV Park
Briefs from Turtletalk
2011 WL 4526023
No. C 11-01061 JW.
N.D. California, San Francisco Division., Sept. 29, 2011

*Synopsis: Discharged casino employee brought action against employer, a federally-recognized Indian tribe, and employer's chief executive officer (CEO), alleging defendants failed to pay overtime wages in violation of the Fair Labor Standards Act (FLSA) and breached parties' employment contract. Defendants moved to dismiss.

*Holdings: The District Court, James Ware, Chief Judge, held that:
(1) employer was entitled to tribal sovereign immunity;
(2) as a matter of first impression, FLSA did not abrogate tribal sovereign immunity; and
(3) CEO was entitled to tribal sovereign immunity.

Motion granted.

Muwekma Ohlone Tribe v. Salazar
Briefs from Turtletalk
2011 WL 4470643
Civil Action No. 03-1231 (RBW)
United States District Court, District of Columbia, Sept. 28, 2011

*Synopsis: Native American group brought action against Department of the Interior and agency officials, challenging decision declining to grant federal recognition to group as Native American tribe. Parties cross-moved for summary judgment.

*Holdings: The District Court, Reggie B. Walton, J., held that:
(1) claim alleging unlawful termination of federal recognition was time-barred;
(2) determination that group did not fulfill criteria for federal recognition was not arbitrary and capricious;
(3) group lacked trust relationship with government sufficient to create fiduciary duty;
(4) group lacked protected property interest in its prior acknowledgement;
(5) agency was not required to provide hearing to group; and
(6) group failed to show that it was "similarly situated" for equal protection purposes.

Defendants' motion granted.

Colombe v. Rosebud Sioux Tribe
Briefs from Turtletalk
2011 WL 4458795
No. CIV 11-3002-RAL
United States District Court, D. South Dakota, Sept. 23, 2011

*Synopsis: (from the opinion) "Plaintiff Charles Colombe, a shareholder, director, and officer of BBC Entertainment, Inc. ("BBC") filed a Complaint against Defendants Rosebud Sioux Tribe, Rosebud Sioux Tribal Court, and Judge Sherman Marshall (collectively "Defendants"). Plaintiff seeks de novo review of a tribal court decision regarding a casino management contract dispute and an injunction prohibiting Defendants from continuing a tribal court action to pierce the corporate veil of BBC. Defendants seek, and Plaintiff opposes, dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. (Doc. 5, 8, 13). On August 17, 2011, this Court issued an Opinion and Order Regarding Motion to Dismiss resolving part of the issues and requiring submission of a tribal resolution missing from the record that affected the Court's analysis of waiver of tribal sovereign immunity. Since that time, both parties filed additional material relating to the issues in this case. This Court now denies in part the motion to dismiss."

*Holdings: (not yet available)

Cahto Tribe of the Laytonville Rancheria v. Dutschke
Briefs from Turtletalk
2011 WL 4404149
No. 2:10-cv-01306-GEB-GGH
United States District Court, E.D. California, Sept. 22, 2011

*Synopsis: (from the opinion) "Cahto Tribe of the Laytonville Rancheria (the "Tribe") seeks an order under the Administrative Procedures Act ("APA") vacating and reversing the Bureau of Indian Affairs' ("BIA") administrative decision that ordered the Tribe to re-enroll twenty-two members of the Sloan/Hecker family who were disenrolled by the Tribe in 1995. A hearing on the pending cross motions for summary judgment was held on May 23, 2011. For the reasons stated below, Plaintiff's motion for summary judgment is denied, Defendants' motion for summary judgment is granted, and the BIA's decision is affirmed."

*Holdings: (not yet available)

Related News Stories: Cahto Tribe loses disenrollment case to feds (Capitol Weekly) 10/06/11

Nisenan Maidu Tribe of the Nevada City Rancheria v. Salazar
Briefs from Turtletalk
2011 WL 4433830
No. 5:10-cv-00270-JF
United States District Court, N.D. California, Sept. 22, 2011

*Synopsis: (from the opinion) "Plaintiff moves to proceed in the matter of Tillie Hardwick, et al. v. United States, et al., No. C 79-1710 JF (filed July 10, 1979) (?Hardwick?). Defendants move to dismiss Plaintiff?s claims as time-barred. For the reasons discussed below, the Court will defer consideration of both motions pending discovery with respect to the threshold question of whether Plaintiff is a Hardwick class member and is entitled to relief under the judgment in that case."

*Holdings: (not yet available)

Native American Council of Tribes v. Weber
2011 WL 4382271
No. CIV. 09-4182-KES
United States District Court, D. South Dakota, Sept. 20, 2011

*Synopsis: (from the opinion) "Plaintiffs, Native American Council of Tribes, Blaine Brings Plenty, Brian Dubray, and Clayton Creek (collectively plaintiffs), brought suit against defendants, Douglas Weber, Timothy Reisch, and Marty Jackley (collectively defendants), alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. s 2000cc, the First Amendment, the Fourteenth Amendment, the American Indian Religious Freedom Act, 42 U.S.C. s 1996, and various international laws. Defendants move for summary judgment. Only Clayton Creek has filed a brief in opposition to the summary judgment motion. Defendants' motion for summary judgment is granted in part and denied in part. "

*Holdings: (not yet available)

Washoe Housing Authority v. U.S. Department of Housing and Urban Development
2011 WL 4047702
No. 3:08-cv-00617-RCJ-RAM
United States District Court, D. Nevada, Sept. 8, 2011

*Synopsis: (from the opinion) "This case arises out of the alleged improper interpretation and application of the Native American Housing Assistance and Self-Determination Act ("NAHASDA") by the U.S. Department of Housing and Urban Development ("HUD"). Plaintiff Washoe Housing Authority ("WHA") has sued for declaratory and injunctive relief. The parties have filed cross motions for summary judgment. For the reasons given herein, the Court grants HUD's motion, denies WHA's motion, and grants WHA fourteen (14) days to amend."

*Holdings: (not yet available)

Stillaguamish Tribe of Indians v. Pilchuck Group II. L.L.C.
2011 WL 4001088
No. C10-995RAJ
United States District Court, W.D. Washington, at Seattle, Sept. 7, 2011

*Synopsis: (from the opinion) "This matter comes before the court on a motion for summary judgment from Plaintiff, The Stillaguamish Tribe of Indians (the "Tribe") and a barely distinguishable motion from Defendant Pilchuck Group II, L.L.C. ("Pilchuck"). [FN1] Dkt. 18, 21. Pilchuck also filed a motion to seal documents. Dkt. # 19. No party requested oral argument on any motion. For the reasons stated below, the court GRANTS the Tribe's motion because, as a matter of law, the Tribe did not waive its sovereign immunity from suits arising out of the contract at the core of this case. The court accordingly enjoins Pilchuck from pursuing its arbitration demand against the Tribe. The court DENIES Pilchuck's motion for the same reasons. The court DENIES the motion to seal, and directs the clerk to UNSEAL the documents at Docket No. 20. [FN2]

FN1. The court cannot imagine why the parties chose to duplicate their arguments repeatedly in two separate but essentially identical motions. That duplication extended to the evidentiary record, where the parties filed numerous copies of several documents. Had the parties agreed to file cross-motions, they would have reduced the number of briefs on these motions from six to four or even three. No one benefitted from the flood of paper before the court, least of all the parties.

FN2. Pilchuck filed its motion to seal merely to satisfy its obligation to protect documents the Tribe had designated as confidential. The Tribe did not respond to the motion, much less explain how sealing the documents complies with the standards set forth in Local Rules W.D. Wash. CR 5(g).

This order will also address a motion pending in Stillaguamish Tribal Enterprise Corp. v. Pilchuck Group II, L.L.C., Case No. C11-387RAJ. Stillaguamish Tribal Enterprise Corporation ("STECO") is a Tribe-chartered entity. In early 2011, Pilchuck supplemented its arbitration demand against the Tribe with a virtually identical demand against STECO regarding the same dispute. Like the Tribe, STECO sued to enjoin the arbitration, invoking its sovereign immunity. STECO moved for summary judgment. Dkt. # 6. Again, no one requested oral argument. The court DENIES STECO's motion solely because it finds that Pilchuck has not had an opportunity to pursue discovery in that case. It imposes conditions on Pilchuck before it can pursue that discovery. The court will enter an order in Case No. C11-387 memorializing its decision. ""

*Holdings: (not yet available)

Alturas Indian Rancheria v. California Gambling Control Commission
2011 WL 3890223
No. CIV. S-11-2070 LKK/EFB
United States District Court, E.D. California, Sept. 2, 2011

*Synopsis: (from the opinion) "Plaintiff in this case is the Del Rosa faction of the Alturas Indian Rancheria, a federally recognized Indian Tribe. Plaintiff sought a preliminary injunction to prohibit defendant California Gambling Control Commission from releasing funds held in trust for the Tribe to the Internal Revenue Service. The IRS is attempting to collect the funds pursuant to two Notices of Levy it issued to the defendant on June 27, 2011 and July 8, 2011 respectively."

*Holdings: (not yet available)

August

Miami Tribe of Oklahoma v. United States
Briefs from Turtletalk
2011 WL 3805923
No. 10-3060.
United States Court of Appeals. Tenth Circuit, August 30, 2011.

*Synopsis: (from the opinion) "This appeal requires us to consider whether the Bureau of Indian Affairs (BIA) properly exercised its discretion to reject a gift of property by a member of the Miami Tribe of Oklahoma to the tribe."

*Holdings: not yet available

Miranda v. Anchando
Briefs from Turtletalk
2011 WL 3607130
No. 10-15308.
United States Court of Appeals. Ninth Circuit, August 17, 2011.

To see the Ninth Circuit, February 6th amendment denying an en banc rehearing in Mirando v. Anchando please see our 2012 Court of Appeals

*Synopsis: Member of Indian tribe filed a petition for a writ of habeas corpus, challenging her tribal court conviction of eight criminal violations arising from a single criminal transaction. The United States District Court for the District of Arizona, Paul G. Rosenblatt, Senior District Judge, granted the petition. Respondents appealed.

*Holdings: The Court of Appeals, Sammartino, J., held that:
(1) respondents did not waive their right to appeal by filing untimely objections to magistrate judge's report and recommendation, and
(2) tribe member's sentence did not violate the Indian Civil Rights Act (ICRA).
Reversed.

Fond Du Lac Band of Lake Superior Chippewa v. Frans
2011 WL 3518182
No. 10-1236.
United States Court of Appeals. Eighth Circuit, August 12, 2011.

*Synopsis: Indian band sued the Commissioner of the Minnesota Department of Revenue to prevent taxation of the out-of-state pension income of band members. The United States District Court for the District of Minnesota, Paul A. Magnuson, J., entered judgment for the Commissioner, and band appealed.

*Holdings: The Court of Appeals, Benton, Circuit Judge, held that:
(1) taxation of the out-of-state pension income did not violate due process, and
(2) federal law did not preempt such taxation.
Affirmed.

Blue Lake Rancheria v. United States
2011 WL 3506092
No. 10-15519
United States Court of Appeals. Ninth Circuit, August 11, 2011.

*Synopsis: Indian tribe sought refund of Federal Unemployment Tax Act (FUTA) taxes paid by employee leasing company wholly owned by Tribe. The United States District Court for the Northern District of California, Samuel Conti, Senior Judge, 2010 WL 144989, granted summary judgment for government. Tribe appealed.

*Holdings: The Court of Appeals, Silverman, Circuit Judge, held that:
(1) services performed "in the employ of an Indian tribe" were excepted from definition of "employment" in FUTA only where tribe or its instrumentality was common-law employer of worker performing services and
(2) employee leasing company wholly owned by Indian tribe was common-law employer of its leased employees, and thus was not required to pay FUTA taxes with respect to those employees.
Reversed and remanded.

United States v. Poitra
Briefs from Turtle Talk Blog
Not yet available on Westlaw
No. 10-3480.
United States Court of Appeals. Eighth Circuit, August 10, 2011.

*Synopsis: (from the opinion) "A jury convicted Deven Poitra of one count of aggravated sexual abuse under 18 U.S.C. ?? 1153, 2241(c) and one count of failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), under 18 U.S.C. ? 2250. Poitra appeals, challenging his conviction as well as the district court?s imposition of certain special conditions of supervised release. We affirm."

*Holdings: not yet available

K2 America Corporation v. Roland Oil and Gas, LLC
Briefs from Turtle Talk Blog
2011 WL 3374228
No. 10-35455.
United States Court of Appeals. Ninth Circuit, August 5, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Montana corporation brought action against defendant Montana limited liability company (LLC), asserting tort, contract, and state statutory claims, and seeking a constructive trust and declaratory judgment over an oil and gas lease located on allotted land that was held by the United States in trust for various Indian allottees. The United States District Court for the District of Montana, Keith Strong, United States Magistrate Judge, granted defendant's motion to dismiss for lack of subject matter jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals, Thomas, Circuit Judge, held that:
(1) statutory provision that limited certain states' jurisdiction over civil causes of action arising in Indian country did not confer subject matter jurisdiction on district court;
(2) complete preemption doctrine did not provide district court with jurisdiction; and
(3) action did not arise under federal law, although lease was subject to specific federal statutory and regulatory scheme.
Affirmed.

Jachetta v. United States
Briefs from Turtle Talk Blog
2011 WL 3250450
No. 10-35175.
United States Court of Appeals. Ninth Circuit, August 1, 2011.

*Synopsis: Native American granted allotment by Bureau of Land Management (BLM) brought action against BLM, State of Alaska, and pipeline service company, alleging inverse condemnation, injunctive relief, nuisance, breach of fiduciary duties, and civil rights violations. BLM and Alaska moved to dismiss on basis of sovereign immunity. The United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, granted motions. Native American appealed.

*Holdings: The Court of Appeals, Bybee, Circuit Judge, held that: (1) Federal Tort Claims Act (FTCA) did not provide waiver of immunity for causes of action for inverse condemnation, injunctive relief to prevent future unconstitutional takings, and violations of federal civil rights statutes; (2) FTCA could provide a waiver of sovereign immunity for nuisance and breach of fiduciary duty claims; (3) Eleventh Amendment barred Fifth Amendment inverse condemnation claim in federal court; and (4) Eleventh Amendment immunity exception for suits in which a plaintiff asserted a claim for return of his property did not apply.
Affirmed in part, reversed in part, and remanded.

Winnemucca Indian Colony v. United States
2011 WL 3893905
No. 3:11-cv-00622-RCJ-VPC
United States District Court, D. Nevada, Aug. 31, 2011

*Synopsis: Native? American colony brought action against United States, Department of the Interior, and Board of Indian Affairs (BIA) and its regional agency, seeking declaration as to identity of legitimate colonial officials and injunctive relief preventing BIA from interfering with contractors hired by purported colonial council chairman to perform work within colony. After court granted temporary restraining order (TRO) in relation to injunction claim, 2011 WL 3893905, colony moved for preliminary injunction and BIA moved to vacate TRO.

*Holdings: The District Court, Robert C. Jones, J., held that colony was entitled to preliminary injunction enjoining BIA from interfering with activities on colonial land by purported chairman or his agents.
Injunction motion granted in part and denied in part, and motion to vacate denied.

Citizens Against Casino Gambling in Erie County v. Stevens
2011 WL 3844113
No. 09?CV?0291S
United States District Court, W.D. New York, Aug. 30, 2011

*Synopsis: Anti-gambling organization brought action challenging the legality of a gambling casino operated by Indian tribe on land it acquired. Organization filed motion for an order compelling production of administrative record documents and authorizing discovery to supplement the administrative record.

*Holdings: The District Court, William M. Skretny, Chief Judge, held that postdecisional memorandum setting forth the reasons for agency's change of position with regard to a decision already made was not protected by the deliberative process privilege and was subject to disclosure.
Motion granted in part and denied in part.

Jicarilla Apache Nation v. United States
Briefs from Turtletalk
2011 WL 3796273
No. 02-25L.
United States Court of Federal Claims, August 26, 2011

*Synopsis: In tribal trust case, Jicarilla Apache Nation filed suit against United States, seeking accounting and to recover for monetary loss and damages relating to government's breach of fiduciary duties by failing to pool Nation's trust funds with those of other tribes for investment purposes, and by immediately removing funds from trust fund to cover disbursement check, thereby creating lag between removal of funds and check negotiation during which time no income was earned on funds. Government moved for partial summary judgment on pooling and disbursement lag claims, and Nation cross-moved for partial summary judgment on disbursement lag claim.

*Holdings: The Court of Federal Claims, Allegra, J., held that:
(1) claims that government violated duty to maximize trust income by prudent investment are within Indian Tucker Act jurisdiction;
(2) pooling claim fell within Indian Tucker Act jurisdiction;
(3) fact issues precluded summary judgment as to pooling claim; but
(4) disbursement lag claim was not within Indian Tucker Act jurisdiction.
Plaintiff's motion denied; defendant's motions denied for one claim and granted for other claim.

Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa
Briefs from Turtletalk
2011 WL 3648551
No. 05-CV-168-LRR
United States District Court, N.D. Iowa, August 19, 2011

*Synopsis: Non?Indian contractor brought action against Indian tribe, seeking declaratory judgment that tribal court lacked jurisdiction in tribe's tort action against contractor and an order compelling arbitration. Contractor moved for a preliminary injunction against further proceedings in tribal court. The United States District Court for the Northern District of Iowa, Linda R. Reade, Chief Judge, denied contractor's motion for summary judgment and granted tribe's motion to dismiss, and contractor appealed. The Court of Appeals, Murphy, Circuit Judge, 609 F.3d 927, affirmed in part and reversed in part. The United States Supreme Court, ??? U.S. ????, 131 S.Ct. 1003, 178 L.Ed.2d 827, denied certiorari.

*Holdings: On remand, the District Court, Linda R. Reade, Chief Judge, held that:
(1) contractor had consensual relationship with tribal member, but
(2) specific conduct tribe sought to regulate did not occur on tribal lands.
Contractor's motion granted and tribe's motion denied.

Colombe v. Rosebud Sioux Tribe
2011 WL 3654412
No. CIV 11-3002-RAL.
United States District Court, D. South Dakota, Central Division, August 17, 2011

*Synopsis: Casino management company's principal brought action seeking review of tribal court decision regarding casino management contract dispute and injunction prohibiting tribe from continuing tribal court action to pierce corporate veil. Tribe moved to dismiss.

*Holdings: The District Court, Roberto A. Lange, J., held that:
(1) action fell within scope of court's federal question jurisdiction;
(2) tribe waived its sovereign immunity in parties' contract;
(3) company exhausted its tribal court remedies as to limited issue of tribal court's jurisdiction to find illegal modification of contract; but
(4) court lacked subject matter jurisdiction over principal's other claims.

Motion granted in part and denied in part

Alturas Indian Rancheria v. California Gambling Control Commission
2011 WL 3503142
No. CIV. S?11?2070 LKK/EFB
United States District Court, E.D. California., August 10, 2011

*Synopsis: (from the opinion) "Plaintiff in this case is the Del Rosa faction of the Alturas Indian Rancheria, a federally recognized Indian Tribe. Plaintiff has filed an ex parte application for a Temporary Restraining Order that would enjoin defendant California Gambling Control Commission from releasing funds held in trust for the Tribe to the Internal Revenue Service. The IRS is attempting to collect the funds pursuant to a ?Notice of Levy,? which plaintiff became aware of on or about July 20, 2011."

*Holdings: (not yet available)

Lummi Tribe v. Unites States
2011 WL 3417092
No. 08-848C.
United States Court of Federal Claims, August 4, 2011

*Synopsis: Indian tribes and tribal housing authorities brought lawsuit alleging that the Department of Housing and Urban Development (HUD) acted improperly in calculating and seeking repayment of grant funds paid to the tribes pursuant to the Native American Housing Assistance and Self?Determination Act of 1996 (NAHASDA), thus depriving them of funding to which they were entitled. HUD moved to dismiss.

*Holdings: The United States Court of Federal Claims, Wiese, J., held that:
(1) Court lacked jurisdiction over claim of one tribe;
(2) mandatory language of NAHASDA was sufficient to confer jurisdiction on Court of Federal Claims;
(3) Court had jurisdiction to determine validity of regulation pursuant to which HUD sought repayment of grant funds; and
(4) Court lacked jurisdiction over claims that accrued more than six years prior to filing of tribes' action.
Motion granted in part and denied in part.

Different Horse v. Salazar
2011 WL 3422842
No. CIV 09-4049.
United States District Court, D. South Dakota, Southern Division, August 4, 2011

*Synopsis: (from the opinion) "This Complaint arises from the extensive litigation between the Sioux Nation and the United States regarding the payment for land taken by the Fort Laramie Treaty of 1868 and the unlawful taking of the Black Hills and hunting rights to other lands by legislation enacted in 1877..... Plaintiffs wish to receive their portion ofthe funds for the wrongful taking ofthe Black Hills and the lands ceded by the Treaty ofLaramie of 1868. Plaintiffs have a position contrary to that of their tribal governing bodies. That difference of position is an internal tribal matter into which the federal courts cannot intrude. The fact that this is an internal tribal matter not subject to federal court intervention is another recognition oftribal sovereignty. If a tribe changes its position, that is for the tribe to decide...?

*Holdings: (not yet available)

Related News Story: Tribal leader agrees with dismissal of Hills lawsuit (Rapid City Journal) 08/10/11

Defenders of Wildlife v. Hall
807 F.Supp.2d 972
No. CV 08?14?M?DWM
United States District Court, D. Montana, Missoula Division., Aug. 3, 2011

*Synopsis: Environmental organizations brought action challenging designation of wolves of northern Rocky Mountains as nonessential experimental species under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Cross-motions for summary judgment were filed, and defendants moved to dismiss.

*Holdings: The District Court, Donald W. Molloy, J., held that:
(1) environmental organizations had standing under Administrative Procedure Act (APA) to challenge content of regulation;
(2) environmental organizations had standing to bring NEPA challenge to regulation;
(3) environmental organizations' NEPA challenge to regulations governing management of wolves on Indian reservation was not moot;
(4) Fish and Wildlife Service did not act arbitrarily or capriciously under NEPA by failing to account for effects from hypothetical changes to states' or tribes' ungulate management objectives; and
(5) Fish and Wildlife Service did not act arbitrarily and capriciously in violation of NEPA when it decided not to prepare an environmental impact statement.
Defendants' motion granted in part and denied in part; Plaintiffs' motion denied.

 

July

Owen v. Weber
Briefs from Turtle Talk Blog
2011 WL 3112004
No. 10-3330.
United States Court of Appeals. Eighth Circuit, July 27, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Petitioner, a Native American who was convicted in state court of first degree murder and aggravated assault, 729 N.W.2d 356, sought federal habeas relief. The United States District Court for the District of South Dakota, Karen E. Schreier, J., denied petition, and petitioner appealed.

*Holdings: The Court of Appeals held that tribal housing complex at which petitioner stabbed two victims was not a "dependent Indian community," in determining whether resulting murder and assault charges were within federal courts' exclusive jurisdiction.
Affirmed.

Ute Mountain Ute Tribe v. Rodriguez
Briefs from Turtle Talk Blog
660 F.3d 1177
No. 09-2276
United States Court of Appeals. Tenth Circuit, July 27, 2011.

*Synopsis: Indian tribe filed complaint against New Mexico's Secretary of Taxation and Revenue Department alleging that imposition of state taxes on their land and on oil and gas production equipment violated tribal members' constitutional rights. The United States District Court for the District of New Mexico, James A. Parker, Senior District Judge, 2009 WL 7809263, enjoined State of New Mexico from further imposing taxes on non-Indian lessees operating on Ute Reservation. Defendant appealed.

*Holdings:The Court of Appeals, Holmes, Circuit Judge, held that federal law did not preempt New Mexico's assertion of jurisdiction to tax non-Indians' severance of oil and gas on Ute Mountain Reservation in New Mexico.

Reversed and remanded.

United States v. Shavanaux
Briefs from Turtle Talk Blog
2011 WL 3087015
No. 10-4178.
United States Court of Appeals. Tenth Circuit, July 26, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Defendant moved to dismiss indictment against him for domestic assault by a habitual offender. The United States District Court for the District of Utah, Tena Campbell, Chief Judge, 2010 WL 4038839, granted motion. Government appealed.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) use of defendant's uncounselled tribal court convictions did not violate Sixth Amendment right to counsel;
(2) defendant's tribal convictions and their subsequent use for indictment did not violate Due Process Clause of the Fifth Amendment; and
(3) statute governing domestic assault by a habitual offender did not violate equal protection.
Reversed and remanded.

United States v. Newell
2011 WL 2675362
Nos. 09-1590, 09-1614.
United States Court of Appeals. First Circuit, July 11, 2011.

*Synopsis: Native American defendants were convicted in the United States District Court for the District of Maine, 578 F.Supp.2d 207, George Z. Singal, J., of conspiracy to defraud United States, among other offenses, and they appealed.

*Holdings: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) district court had jurisdiction over conspiracy charges;
(2) evidence was sufficient to sustain convictions for conspiracy to defraud; and
(3) evidence was insufficient to sustain conviction for making materially false statements.
Affirmed in part, vacated in part, and remanded.

Related News Stories: Federal appeals court upholds all but one conviction against Passamaquoddy embezzlers (Bangor Daily News) 07/12/11.

United States v. Drapeau
644 F.3d 64
No. 10-15519
United States Court of Appeals. Eighth Circuit, July 8, 2011.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Roberto A. Lange, J., of assaulting, resisting, or impeding a federal officer resulting in bodily injury. Defendant appealed.

*Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) defendant waived claim that the officer-victim was unauthorized to enforce tribal law;
(2) evidence was sufficient to support jury's finding that officer was engaged in the performance of his duties at time of assault;
(3) evidence was sufficient to support finding that defendant did not act in self-defense;
(4) evidence of officer's reputation for aggression and unlawfulness was inadmissible;
(5) written sentencing judgment was consistent with the court's oral statement at sentencing; and
(6) there was no plain error in district court court's statement requiring that defendant comply with the "standard conditions" of supervised release.
Affirmed.

United States v. Smith
2011 WL 2670096
No. 09-35127.
United States Court of Appeals. Ninth Circuit, July 8, 2011.

*Synopsis: (from the opinion) "Ronnie Lynn Smith appeals the district court's denial of his motion to vacate, set aside or correct his sentence under 28 U.S.C. ? 2255. We affirm. Indian status. Smith was convicted of assault with a dangerous weapon in violation of 18 U.S.C. ?? 113(a)(3) and 1153 for the stabbing of Lee Harrison Tuttle, an Indian person. To convict Smith under ? 1153, the jury was required to find beyond a reasonable doubt that Smith was an Indian. See 18 U.S.C. ? 1153(a) (subjecting ?[a]ny Indian? who commits one of 14 major crimes to the criminal laws and penalties applicable in areas of exclusive federal jurisdiction). Smith argues under United States v. Bruce, 394 F.3d 1215 (9th Cir.2005), United States v. Cruz, 554 F.3d 840 (9th Cir.2009), and United States v. Maggi, 598 F.3d 1073 (9th Cir.2010), that the government presented insufficient evidence of his Indian status. We disagree."

*Holdings: (not yet available)

United States v. Cavanaugh
2011 WL 2623314
No. 10-1154.
United States Court of Appeals. Eighth Circuit, July 6, 2011.
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Defendant was charged with domestic assault by habitual offender, base don prior convictions in Native?american tribal courts. The United States District Court for the District of North Dakota, Ralph R. Erickson, Chief Judge, 680 F.Supp.2d 1062, dismissed indictment. Government appealed.

*Holdings: The Court of Appeals, Melloy, Circuit Judge, held that, as matter of first impression defendant's uncounselled prior convictions in tribal court could be used to enhance federal charge.
Reversed and remanded.
Bye, Circuit Judge, dissented and filed opinion.

Morrison v. Viejas Enterprises
2011 WL 3203107
No. 11cv97 WQH (BGS)
United States District Court, S.D. California, July 26, 2011

*Synopsis: (from the opinion) Plaintiff has asserted a claim for violation of the Family Medical Leave Act, 29 U.S.C. ? 2601 et seq., and a California tort claim for wrongful adverse action and termination in violation of the public policies of the California Fair Employment and Housing Act, the Americans with Disabilities Act, the California Family Rights Act, and the Federal Family Medical Leave Act. Plaintiff seeks monetary damages, an injunction that Defendants refrain from ?unlawful practices, policies, usages and customs,? and reinstatement to the ?position from which [Plaintiff] was wrongfully terminated or a comparable position ....?

*Holdings: (not yet available)

Sandy Lake Band of Mississippi Chippewa v. United States
2011 WL 2601840
Civil No. 10-3801 (DWF/LIB).
United States District. D. Minnesota, July 1, 2011.

*Synopsis: (from the opinion) "Plaintiff Sandy Lake Band of Mississippi Chippewa (?Sandy Lake Band? or ?Band?) describes itself as ?a federally recognized Indian tribe that has never been lawfully terminated by an Act of Congress.? (Compl.? 4.) Between 1825 and 1867, the United States entered into ten (10) treaties that included the Sandy Lake Band. ( Id. ?? 6?20.) In addition to those treaties, in 1915 President Woodrow Wilson issued Executive Order No. 2144, which created the Sandy Lake Reservation ?for the use and occupancy of a band of Chippewa Indians, now living thereon, and for such other Indians as the Secretary of the Interior may see fit to settle thereon.? ( Id. ? 29, Ex. 22.) Plaintiff filed an Amended Complaint on June 2, 2011, the day before the hearing before the Court on Defendants' Motion to Dismiss. As acknowledged by Plaintiff during the June 3, 2011 hearing, the Amended Complaint was not filed within the time limit permitted for amending as a matter of course under Fed.R.Civ.P. 12(a)(1). Plaintiff was therefore required to either obtain the opposing parties' written consent or leave of the Court before filing. Plaintiff did not do so, and therefore the original Complaint remains the operative complaint in this action."

*Holdings: (not yet available)

Quitiquit v. Robinson Rancheria Citizens Business Council
2011 WL 2607172
No. C 11-0983 PJH.
United States District. N.D. California, July 1, 2011

*Synopsis: (from the opinion) "Petitioners filed the present action on March 3, 2011, asserting that their evictions and effective ?banishment? violated the Indian Civil Rights Act (?ICRA?), 25 U.S.C. ? 1302. Petitioners seek an order prohibiting respondents from evicting them from their homes for non-payment of rent."

*Holdings: (not yet available)

June

Texas v. Ysleta Del Sur Pueblo
2011 WL 2583615
No. 10-50804.
United States Court of Appeals. Fifth Circuit, June 30, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) "Defendant-Appellant Ysleta del Sur Pueblo has been locked in litigation with the State of Texas for many years over gaming activities conducted at the Tribe?s casino. In this appeal ? the third in a series of related appeals spanning almost twenty years ? the Tribe contests a contempt order issued by the district court. The Tribe asserts that the contempt order is improper because (1) it is criminal in nature, but the district court treated it as a civil contempt order, and (2) the district court exceeded its authority when it granted state agents monthly access to the Tribe?s gaming records. Disagreeing with the Tribe and concluding that the contempt order was properly issued and is valid, we affirm that order and dismiss the Tribe?s appeal."

*Holdings: (not yet available)

Water Wheel Camp Recreational Area, Inc. v. Larance
2011 WL 2279188
Nos. 09-17349, 09-17357.
United States Court of Appeals, Ninth Circuit, June 10, 2011

*Synopsis: (From the Opinion) Non-Indian closely held corporation and its non-Indian owner filed a complaint seeking declaratory and injunctive relief against a tribal court's exercise of jurisdiction over them in an unlawful detainer action for breach of a lease of tribal lands and trespass. The United States District Court for the District of Arizona, David G. Campbell, J., 2009 WL 3089216, entered jurisdictional rulings from which both sides appealed.

*Holdings: (From the Opinion) The Court of Appeals held that tribe had adjudicative jurisdiction over both non-Indian closely held corporation and its non-Indian owner.
Judgment affirmed in part and reversed in part; order vacated and remanded.

Related News Story: Ninth Circuit roundly affirms tribal court jurisdiction in Water Wheel case (Turtle Talk) 06/10/11

United States v. LaBuff
Briefs from Turtletalk
2011 WL 4840449
No. 10-30274
United States Court of Appeals. Ninth Circuit, June 8, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) "The Major Crimes Act, 18 U.S.C. s 1153, provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country. We previously have noted that determining who is an Indian under s 1153 is not easy, as the statute does not define the term "Indian." United States v. Maggi, 598 F.3d 1073, 1075 (9th Cir.2010) (citing Felix S. Cohen's Handbook of Federal Indian Law at 24 (Rennard Strickland et al. ed., 1982)). Our circuit, however, has developed a specific framework for determining whether a person can be prosecuted by the federal government under s 1153. To meet its burden, the government must prove both that the defendant has a sufficient "degree of Indian blood" and has "tribal or government recognition as an Indian." United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005) (internal quotations omitted).
Gentry Carl LaBuff was charged with robbery and aiding and abetting robbery in Indian country in violation of 18 U.S.C. ss 1153(a) and 2111. A jury convicted LaBuff of these charges following a two-day trial. On appeal, LaBuff contends that the government did not present sufficient evidence to establish that he is an "Indian" for purposes of prosecution under s 1153. We disagree and conclude that, in light of all the evidence presented at trial, a reasonable trier of fact could have found that LaBuff is an Indian. We therefore affirm his conviction. "

*Holdings: (not yet available)

Tohono O'odham Nation v. City of Glendale
This case was appealed to the Court of Appeals. See briefs.
2011 WL 2650205
No. CV-11-279-PHX-DGC.
United States District. D. Arizona, June 30, 2011

*Synopsis: (from the opinion) "The Tohono O'odham Nation purchased unincorporated land surrounded by the City of Glendale, asked the Department of the Interior to take the land into trust, and announced plans to construct and operate a major casino on the property. In response, the Arizona Legislature passed House Bill 2534 on February 1, 2011. The bill authorizes cities and towns within Arizona's three largest counties, which would include the City of Glendale, to use an expedited procedure to annex land surrounded or nearly surrounded by the city or town if the owner of the land has asked the federal government to take ownership of the land or to take the land into trust. In this lawsuit, the Nation asks the Court to declare H.B. 2534 invalid and enjoin Glendale from using it to annex the Nation's land. The parties have filed and briefed motions for summary judgment. Docs. 23, 28, 30, 31, 32. The Court heard oral arguments on June 17, 2011. Docs. 33, 35. For reasons that follow, the Court holds that H.B. 2534 is preempted by federal law."

*Holdings: (not yet available)

Related News Stories: Court rules for Tohono O'odham on annexation (The Glendale Star) 07/06/11

United States v. Lacy
2011 WL 2604770
No. 2:09-CR-45 TS.
United States District. D. Utah, June 30, 2011

*Synopsis: (from the opinion) "Defendant is charged with the violation of three different statutes: 16 U.S.C. ? 470ee (Archeological Resource Protection Act or ?ARPA?); 18 U.S.C. ? 1170(b) (Native American Grave Protection and Repatriation Act or ?NAGPRA?); and 18 U.S.C. ? 641 (Theft of Government Property). At issue in this Motion are the charges against Defendant under ARPA and NAGPRA."

*Holdings: (not yet available)

Flandreau Santee Sioux Tribe v. South Dakota
2011 WL 2551379
No. CIV. 07-4040.
United States District. D. South Dakota, June 27, 2011

*Synopsis: (from the opinion) "The Tribe brought this action for declaratory and injunctive relief, alleging that the State has violated various provisions of the IGRA 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. "

*Holdings: (not yet available)

Grand Canyon Skywalk Development v. Vaughn
2011 WL 2491425
No. CV11-8048-PCT-DGC.
United States District. D. Arizona, June 23, 2011

*Synopsis: (from the opinion) "Plaintiff entered into a formal revenue-sharing agreement with 'Sa' Nyu Wa ("SNW"), a corporation wholly owned by the Hualapai Indian Tribe, for the planning, construction, and operation of a glass skywalk and related facilities on the edge of the Grand Canyon on the Hualapai reservation. Doc. 1 at 2. Defendants passed an ordinance that would, according to Plaintiff, allow the Tribe to condemn Plaintiff's contract rights in the skywalk. Fearing that its rights would be condemned by the Tribe, Plaintiff filed this lawsuit to challenge the validity of the tribal ordinance. Doc. 26 at 8. Plaintiff seeks a declaratory judgment that the Tribe lacks the power to condemn Plaintiff's contract rights under the ordinance."

*Holdings: (not yet available)

Related News Stories: Judge rules Skywalk partner must go to Hualapai Tribe's court (Indianz.com) 06/24/11

Otter Tail Power Company v. Leech Lake Band of Ojibwe
Briefs from Turtle Talk Blog
2011 WL 2490820
Civil No. 11-1070 (DWF/LIB).
United States District. D. Minnesota, June 22, 2011

*Synopsis: (from the opinion) "This matter is before the Court on a Motion for Temporary Restraining Order and Immediate Preliminary Injunctive Relief brought by Plaintiffs (the "Utilities"). The Utilities seek a declaration that Defendants Leech Lake Band of Ojibwe, its Reservation Business Committee, and Reservation Business Committee Members Arthur "Archie" LaRose, Eugene "Ribs" Whitebird, Robbie Howe-Bebeau and Steve White (collectively, the "Tribe") lack the authority to regulate or prohibit the Utilities' high-voltage transmission line construction project from Bemidji to Grand Rapids, Minnesota (the "Project"), and therefore that the Utilities are not required to obtain the Tribe's consent to proceed with the Project. For the reasons set forth below, the Utilities' motion is granted."

*Holdings: (not yet available)

Cobell v. Salazar
2011 WL 7719672
Civ. No. 96?1285 (TFH)
United States District Court, D. Columbia, June 15, 2011

*Synopsis: (from the opinion) "Pending before the Court is the Motion for Leave to File Corrected Objections Concerning Proposed Settlement on Behalf of the Quapaw Tribe of Oklahoma (O?GAH?PAH) and Tribal Members [Dkt. # 3808] (the "Motion to File" ) and Motion of Quapaw Tribal Members to Opt Out of Proposed Settlement Agreement (the "Opt Out Motion" ). After carefully considering the motions and the entire record of this case the Court DENIES the motions for the reasons stated below.

*Holdings: (not yet available)

Colmar v. Jackson Band of Miwuk Indians
2011 WL 2456628
No. CIV S-09-0742 DAD.
United States District. E.D. California, June 15, 2011

*Synopsis: (from the opinion) "This matter came before the court on June 3, 2011, for hearing of defendant's motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(1) and defendant's second motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). The parties have previously consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. s 636(c). Attorney John Bridges appeared on behalf of plaintiff Steven Colmar and attorney Jill Peterson appeared on behalf of defendant the Jackson Rancheria Band of Miwuk Indians. Oral argument was heard and defendant's motions were taken under submission. For the reasons set forth below, defendant's motion for reconsideration will be granted in part, and defendant's second motion to dismiss will be granted. DEFENDANT'S MOTION FOR RECONSIDERATION On March 17, 2009, plaintiff filed a complaint alleging that the defendant unlawfully discriminated against him based on his age in violation of 29 U.S.C. ss 621-634. On May 22, 2009, defendant filed its first motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On March 31, 2011, the court issued an order denying defendant's first motion to dismiss.

*Holdings: (not yet available)

Arizona v. Tohono O'odham Nation
2011 WL 2357833
No. CV11-0296-PHX-DGC.
United States District. D. Arizona, June 15, 2011

*Synopsis: (from the opinion) "This lawsuit concerns plans by Defendant Tohono O?odham Nation (?the Nation?) to construct and operate a major casino on unincorporated land within the outer boundaries of the City of Glendale, Arizona. The State of Arizona, the Gila River Indian Community, and the Salt River Pima?Maricopa Indian Community have sued to enjoin the casino, arguing that it would violate the compact between the State and the Nation as well as promises made by the Nation during negotiation of and public voting on the compact."

*Holdings: (not yet available)

City of Yreka v. Salazar
2011 WL 2433660
Civ. No. S-10-0845 JAM GGH PS
United States District. E.D. California, June 14, 2011

*Synopsis: (from the opinion) "Plaintiffs City of Yreka and City Council of the City of Yreka brought this action pursuant 1 to the Administrative Procedures Act, 5 U.S.C. ss 701-706, against defendants Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; Larry Echohawk, in his official capacity as Assistant Secretary for Indian Affairs of the Department of the Interior; the Bureau of Indian Affairs; Dale Morris, in his official capacity as the Pacific Regional Director of the BIA; and Michael Mallory, in his official capacity as Siskiyou County Assessor-Recorder, arising from the Secretary's decision to acquire approximately 0.90 acres of land to be held in trust by the United States for the Karuk Tribe of California. The Secretary decided to acquire the land pursuant to the Indian Reorganization Act, 25 U.S.C. ss 461-79, and its implementing regulations. Plaintiffs have filed a motion for summary judgment or, in the alternative, summary adjudication, and defendants have filed a motion for summary judgment.

*Holdings: (not yet available)

Fred v. Washoe Tribe of Nevada
2011 WL 2364953
Civ. No. S-10-0845 JAM GGH PS
United States District. E.D. California, June 9, 2011

*Synopsis: (from the opinion) Plaintiff is proceeding pro se in this action, which was referred to the undersigned pursuant to Local Rule 302(c)(21). As a grandparent of two children associated with the Washoe Tribe, plaintiff seeks custody of her grandchildren despite the previous action of the Washoe Tribal Court and the Inter-Tribal Court of Appeal of Nevada. Presently pending is defendant's motion to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, 12(b)(6) for failure to state a claim, for failure to exhaust tribal court remedies and for sovereign immunity.

*Holdings: (not yet available)

Pine Bar Ranch LLC v. Acting Regional Director, Bureau of Indian Affairs, Rocky Mountain Regional Office
2011 WL 2268480
No. CV 10-88-BLG-RFC.
United States District. D. Montana, June 7, 2011

*Synopsis: (from the opinion) Plaintiffs present claims under the Declaratory Judgment Act (28 U.S.C. s 2201) and the Administrative Procedures Act (5 U.S.C. s 704) seeking a legal determination that an unpaved portion of Surrell Creek Road located on the Wind River Indian Reservation is a "public road." Defendants challenge Plaintiffs' motion on several grounds. Primarily, Defendants contend that Plaintiffs' claims are procedurally barred by sovereign immunity.

*Holdings: (not yet available)

Bernard v. United States Department of the Interior
2011 WL 2160930
No. CIV 08? 1019
United States District. D. South Dakota, Northern Division, June 1, 2011

*Synopsis: (from the opinion) "This action, in the final analysis, has been an appeal from final agency action taken by the Board of Indian Appeals ("Board" or "IBIA"), the Board being authorized to deal with such matters by the Secretary of the Interior. The Board affirmed on October 16, 2007, a decision made by the Great Plains Area Regional Director of the Bureau of Indian Affairs ("BIA") on February 3, 2005."

*Holdings: (not yet available)

 

May

Crowe & Dunlevy, P.C. v. Stidham
640 F.3d 1140
No. 09-5071
United States Court of Appeals, Tenth Circuit, May 27, 2011

*Synopsis: (From the Opinion) "The present case stems from Crowe?s representation of the Thlopthlocco in the Muscogee (Creek) Nation District Court (?Muscogee District Court?) in 2007, in a case alleging that Nathan Anderson, then a member of the Tholoptholocco 1 According to the Muscogee District Court in Thlopthlocco Tribal Town v. Tomah, 8 Okla. Trib. 451, 2004 WL 5744828, at *1 (Muscogee (Cr.) D. Ct. 2004), ?prior to the filing of [that] lawsuit, the Thlopthlocco [had] never authorized the Muscogee (Creek) Nation to exercise jurisdiction over Thlopthlocco matters.? Business Committee, had attempted a coup d? etat, declared himself the only valid leader, and purported to appoint a new government. The Thlopthlocco asserted that Anderson and his allies (collectively, the ?Anderson defendants?) had interfered with the Thlopthlocco?s business interests by, among other things, accessing the Thlopthlocco?s bank accounts, issuing regulations on tribal letterhead, and meddling with the Thlopthlocco?s contractual relationships with various third-party service providers. The Thlopthlocco sought both declaratory and injunctive relief."

*Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) Court of Appeals lacked jurisdiction to review district court's determination that tribal judiciary was not required party;
(2) law firm's consensual relationship with tribe based on membership in tribe's bar association and practice before tribal court did not provide tribal court with jurisdiction to order law firm to return fees;
(3) in a matter of first impression, Ex parte Young doctrine applied to tribal sovereign immunity;
(4) Ex parte Young permitted firm's action against tribal court judge; and
(5) firm demonstrated irreparable harm as a result of lost attorney's fees in the absence of preliminary injunction.
Affirmed

Hollywood Mobile Estates Limited v. Seminole Tribe of Florida
2011 WL 1938427
No. 09-15336 D.C. Docket No. 08-61048-CV-WPD.
United States Court of Appeals, Eleventh Circuit, May 23, 2011

*Synopsis: Lessee of real property owned by Native American tribe brought action against the tribe and the Secretary of the Interior, seeking a preliminary injunction to enjoin tribe from repossessing the property. After the tribe actually repossessed the property, the United States District Court for the Southern District of Florida, No. 08-61048-CV-WPD, William P. Dimitrouleas, J., dismissed the tribe, granted lessee's lender's motion to intervene, denied the lessee's motion for leave to amend complaint, and dismissed the action for failure to state a claim. Lessee and lender appealed.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) lessee lacked constitutional standing to bring action against the Secretary of the Interior;
(2) amended complaint against Secretary was required to be construed as a request for a mandatory injunction under the Administrative Procedure Act (APA); and
(3) lessee lacked prudential standing to bring action against Secretary.
Affirmed in part, vacated in part, and remanded.

Blatchford v. Alaska Native Tribal Health Consortium
645 F.3d 1089
No. 10-35785
United States Court of Appeals. Ninth Circuit, May 19, 2011.

*Synopsis: Former patient brought state court action against Alaska Native health consortium, challenging lien imposed by consortium against any funds received by patient from third parties related to injuries for which she was treated. Action was removed. The United States District Court for the District of Alaska, Timothy Mark Burgess, J., granted summary judgment in favor of consortium. Patient appealed.

*Holdings: The Court of Appeals, Graber, Circuit Judge, held that Federal Health Services Lien statute was inapplicable to patient.
Reversed and remanded.

United States v. Genschow
2011 WL 1885849
No. 09-1946
United States Court of Appeals, Sixth Circuit, May 19, 2011

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Michigan, Robert Holmes Bell, J., of destroying trees on a reservation and stealing tribal property for his own use. Defendant appealed.

*Holdings:
(1) defendant's refusal to join other members of his Native-American band in forming Native-American community did not continue existence of band to be a federally recognized tribe;
(2) challenge as not moot to district court's refusal to grant him an acceptance of responsibility reduction;
(3) district court did not clearly err in denying defendant an acceptance of responsibility reduction; and
(4) order of restitution was not an abuse of discretion.
?Affirmed.

Seneca Nation of Indians v. Cuomo
2011 WL 1745008
Nos. 10-4265(L), 10-4272(con), 10-4598(con), 10-4758(con), 10-4477(XAP), 10-4976(XAP), 10-4981(XAP).
United States Court of Appeals, Second Circuit, May 9, 2011

*Synopsis: Indian tribes brought actions to enjoin amendments to New York's tax law designed to tax on-reservation cigarette sales to non-member purchasers. The United States District Court for the Western District of New York, Arcara, J., 752 F.Supp.2d 320, 2010 WL 4027796, denied two tribes' motions for preliminary injunction, and tribes appealed. The United States District Court for the Northern District of New York, Hurd, J., 2010 WL 4053080, granted another tribe's motion for preliminary injunction, and state appealed. Appeals were consolidated.

*Holdings: The Court of Appeals, Wesley, Circuit Judge, held that:
(1) to prevail on merits of their claim that law requiring wholesalers to prepay cigarette tax and affix tax stamps on all cigarette packs imposed categorically impermissible direct tax on tribal retailers, and
(2) tribes were not likely to prevail on merits of their claim that law providing means for tribes to obtain limited quantity of tax-exempt cigarettes failed to adequately ensure members' access to tax-free cigarettes and threatened tribal self-government.
Affirmed in part, vacated in part, and remanded.

Ramah Navajo Chapter; Oglala Sioux Tribe; Pueblo of Zuni v. Salazar
Briefs from Turtle Talk Blog
2011 WL 1746138
No. 08-2262
United States Court of Appeals, Tenth Circuit, May 9, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) We are faced with an apparent contradiction. Pursuant to the Indian Self- Determination and Education Assistance Act (?ISDA?), the United States enters into selfdetermination contracts with Indian tribes and tribal organizations ?for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law.? 25 U.S.C. ? 450b(j). These agreements include contract support costs which are the ?reasonable costs for activities that must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management,? but would not be paid by the Secretary of the Interior if the federal government operated the contracted program directly. ? 450j-1(a)(2). Congress has mandated that all self-determination contracts provide full funding of CSCs, see ? 450j-1(g), but has nevertheless failed to appropriate funds sufficient to pay all CSCs every year since 1994, instead capping appropriations at a level well below the sum total of CSCs... These funding shortfalls have threatened tribal programs designed to fulfill the congressionally mandated goal of the ISDA to ?enhance the progress of Indian people and their communities.? 25 U.S.C. ? 450(a)(1). Contracts for programs absolutely essential to self-government, such as law enforcement, economic development, and natural resource management, have become ?unworkable? in the words of a tribal representative. As a result, several tribes and tribal organizations brought suit seeking to collect the promised, but unappropriated, CSCs.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that although amount of lump sum appropriation was insufficient to fund all ISDA contracts, ?subject to the availability of appropriations? clause of ISDA was satisfied with respect to certain ISDA contracts because Congress appropriated enough funds to pay CSCs on any individual contract. Reversed and remanded.

Amador County v. Salazar
640 F.3d 373
No. 10-5240.
United States Court of Appeals, District of Columbia Circuit, May 6, 2011

*Synopsis: County brought action against Secretary of the Interior, challenging Secretary's "no-action" approval of a compact between Indian tribe and state of California allowing gaming on tribal land. The United States District Court for the District of Columbia, 592 F.Supp.2d 101, and 723 F.Supp.2d 67, determined that county lacked standing, and dismissed the suit, and county appealed.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) county had standing to challenge "no-action" approval, and
(2) Administrative Procedure Act (APA) did not preclude judicial review of "no-action" approval. Reversed and remanded.

United States v. Jacobs
638 F.3d 567
No. 10-2705.
United States Court of Appeals, Eighth Circuit, May 2, 2011

*Synopsis: Defendant pleaded guilty, pursuant to a written plea agreement in the United States District Court for the District of South Dakota, Jeffrey L. Viken, J., to assault with a dangerous weapon in Indian Country. He appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that federal courts had subject matter jurisdiction regardless of any jurisdictional requirements imposed by Fort Laramie Treaty of 1868. Affirmed.

Allman v. Creek Casino Wetumpka
2011 WL 2313706
Civil Action No. 2:11CV24-WKW
United States District. M.D. Alabama, May 23, 2011

*Synopsis: (from the opinion) Plaintiff Delbert Allman has filed a motion to proceed in forma pauperis in this action. It is ORDERED that the motion is GRANTED. However, upon its review of the complaint, the court concludes that dismissal of this action is appropriate under 28 U.S.C. s 1915(e)(2)(B). Plaintiff, proceeding pro se, brings claims against the Creek Casino in Wetumpka, Alabama (also designated in the complaint as the Riverside Entertainment Center) and the Poarch Band of Creek Indians ("the Tribe"). He contends that the defendants violated his constitutional rights by barring him from the casino.

*Holdings: (not yet available)

Cloverdale Rancheria of Pomo Indians of California v. Salazar
2011 WL 1883196
No. . 5:10-cv-1605 JF/PVT
United States District. N.D. California, May 17, 2011

*Synopsis: (from the opinion) Plaintiffs bring the instant action under the Administrative Procedure Act (APA), 5 U.S.C. ?? 551, et seq., and 701, et seq., seeking a writ of mandamus compelling Defendants to recognize what Plaintiffs claim is the duly authorized government of the Cloverdale Rancheria of Pomo Indians. Defendants move to dismiss the action for lack of subject-matter jurisdiction, contending that Plaintiffs have not challenged ?final agency action? as that term is used in the APA. Proposed intervenors, who also claim to represent the Cloverdale Rancheria of Pomo Indians, move to intervene in the action and for sanctions against Plaintiffs.

*Holdings: (not yet available)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. US Dept. of the Interior
2011 WL 1743656
No. 4:10-CV-004-BLW.
United States District of Idaho, May 3, 2011

*Synopsis: (from the opinion) In the 1940s, Simplot and FMC corporation built phosphate processing facilities about two miles northwest of the City of Pocatello. The Simplot plant is known as the Don plant. Both plants produced phosphogypsum, a solid waste by-product of the manufacturing process. The phosphogypsum is primarily gypsum and phosphorus, and includes contaminates such as arsenic, low-level radionuclides, selenium, zinc, cadmium, vanadium, fluoride, sodium, potassium, chloride, nitrates, ammonia, and sulfate. AR 335-36. This phosphogypsum waste from the Simplot plant is pumped as a slurry into a "gyp-stack," a storage facility 240 feet tall that spreads out over 400 acres. By 2007, it contained 66 million tons of phosphogypsum waste. The Simplot gyp-stack is not lined, and the slurry of phosphogypsum has leached over the years into the groundwater. AR 1391. The groundwater moves generally north-northeast under the gyp-stack, and discharges to springs and to the Portneuf River. The Portneuf River flows past the Simplot plant and onto the Fort Hall Indian Reservation through an area known as "the Bottoms" where a majority of Shoshone-Bannock traditional and ceremonial activities occur, including fishing and gathering of native plants.

*Holdings: (not yet available)

Muscogee Nation Division of Housing v. United States Dep't. of Housing and Urban Development Briefs from Turtle Talk Blog
2011 WL 1656039
No. 10-cv-193 JHP.
United States District Court, E.D. of Oklahoma, May 2, 2011

*Synopsis: Indian tribe brought action against Department of Housing and Urban Development (HUD) under Administrative Procedure Act (APA), challenging limitation of investment of grant money awarded under the Native American Housing Assistance and Self?Determination Act (NAHASDA) to a period of no longer than two years. HUD moved to dismiss.

*Holdings: The District Court, James H. Payne, J., held that: (1) APA did not provide waiver to immunity from suit; (2) Ex Parte Young doctrine did not provide waiver of sovereign immunity; and (3) Indian tribe's allegations failed to state claim against HUD. Motion granted.

April

San Carlos Apache Tribe v. United States
639 F.3d 1346
No. 2010-5102.
United States Court of Appeals, Federal Circuit, April 25, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: San Carlos Apache Tribe filed action against United States alleging breach of fiduciary duty relating to water rights in Gila River. The United States Court of Federal Claims, Robert H. Hodges, Jr., Senior Judge, dismissed tribe's monetary damages claim. Tribe appealed.

*Holdings: The Court of Appeals, Lourie, Circuit Judge, held that Tribe should have known that terms of consent decree precluded it from seeking additional Gila River water rights upon entry of decree.
Affirmed.

United States v. Langford
2011 WL 1368548
No. 10-6070.
United States Court of Appeals, Tenth Circuit, April 11, 2011

*Synopsis: Defendant was convicted in the United States District Court for the Western District of Oklahoma, 2009 WL 523184, for being a spectator at a cockfight, and he appealed.

*Holdings: In resolving a question of first impression, the Court of Appeals, Lucero, Circuit Judge, held that government's failure to allege or present evidence with respect to defendant's Indian/non?Indian status constituted plain error, and since defendant was a non-Indian and there was no evidence that he victimized any Indian, his conviction for being a spectator at a cockfight held on Indian land affected the fairness, integrity, or public reputation of judicial proceedings. Vacated and remanded.

Karuk Tribe of California v. United States Forest Service
640 F.3d 979
No. 05-16801.
United States Court of Appeals, Ninth Circuit, April 7, 2011

*Synopsis: Indian tribe brought action under National Forest Management Act (NFMA), National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) alleging improper management of suction dredge and other mining operations in waterways and riparian areas within Klamath National Forest. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 379 F.Supp.2d 1071, granted summary judgment for defendants. Plaintiff appealed.

*Holdings: The Court of Appeals, Milan D. Smith, Jr., Circuit Judge, held that:
(1) internal decision of United States Forest Service (USFS) to not require plan of operations after receiving Notice of Intent (NOI) from miners did not constitute ?agency action? under ESA and
(2) ESA consultation obligation was not triggered by park ranger's discretionary authority to provide advice to proposed miner about what additional information was needed for him to evaluate NOI and how miner could alter his operations to avoid filing plan of operations.
Affirmed.

Nielson v. Ketchum
640 F.3d 1117
Nos. 09-4113, 09-4129.
United States Court of Appeals, Tenth Circuit, April 5, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Biological mother brought action under Indian Child Welfare Act (ICWA) against the adoptive parents of child, seeking the invalidation of her termination of her parental rights over child on the ground that ICWA procedural requirements were not met because biological mother consented to termination of her parental rights less than ten days after child's birth. Indian tribe intervened. Biological mother and adoptive parents moved for summary judgment. The United States District Court for the District of Utah granted biological mother's motion in part and denied adoptive parents' motion. Adoptive parents appealed.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that adopted child was not a ?member of an Indian tribe? at time of adoption and thus was not an ?Indian child? under ICWA, and termination of parental rights was not therefore invalid.
Reversed.

Fife v. Moore
2011 WL 1533147
No. CIV-11-133-RAW
United States District Court, E.D. Oklahoma, April 22, 2011

*Synopsis: Defendants charged with theft-related crimes in tribal court filed emergency motion for temporary restraining order (TRO) and preliminary injunction to enjoin their trials in tribal court. "

*Holdings: The District Court, Ronald A. White, J., held that:
(1) defendants were entitled to injunctive relief, and
(2) tribal court lacked jurisdiction over defendants' prosecutions.
Emergency motion granted.

Pablo v. United States
98 Fed.Cl. 376
No. 10-427C.
United States Court of Federal Claims, April 21, 2011

*Synopsis: Mother of young Indian girl brought action against government seeking damages under Fort Sumner Treaty for various injuries stemming the sexual abuse of the girl by a police officer. Government has moved for summary judgment.

*Holdings: The Court of Federal Claims, Firestone, J., held that alleged injuries to young Indian girl did not give rise to a claim for compensation under the "bad men" clause of Fort Sumner Treaty, where girl's permanent residence was outside the boundaries of the Navajo Reservation recognized by the Fort Sumner Treaty and where the girl was attacked outside the boundaries of the Navajo Reservation recognized by the treaty.

Scanlon v. Greenberg Traurig, LLP
778 F.Supp.2d 56
Misc. No. 11-138 (RCL)
United States District Court, District of Columbia, April 20, 2011

*Synopsis: Defendant, who was convicted of defrauding law firm's Indian tribe clients of over $20 million, moved to determine availability of objections to order requiring him to reimburse law firm for amount of restitution it paid victims under Mandatory Victims Restitution Act (MVRA).

*Holdings: The District Court, Royce C. Lamberth, Chief Judge, held that:
(1) defendant's motion was timely, and
(2) as a matter of apparent first impression, defendant had no right to evidentiary hearing challenging order requiring him to reimburse law firm for amount of restitution it paid victims on grounds that firm was not "victim" within meaning of MVRA.
Motion denied.

Merit Management Group v. Ponca Tribe of Indians of Oklahoma
778 F.Supp.2d 916
No. 08 C 825.
United States District Court, N.D. Illinois, April 19, 2011

*Synopsis: Plaintiff filed breach of contract action against Indian tribe, alleging that tribe failed to repay money loaned to it. Following entry of default judgment for plaintiff, and filing of an enforcement action, tribe moved to vacate.

*Holdings: The District Court, Elaine E. Bucklo, J., held that purported "exclusivity agreement," signed by tribe in connection with loan transaction, was not a waiver of tribe's sovereign immunity.
Motion granted, and dismissed.

Lewis v. Salazar
2011 WL 1532410
No. 1:10-cv-01281-OWW-DLB.
United States District Court, E.D. of California, April 20, 2011

*Synopsis: (from the opinion) On or about March 28, 1983, the United States District Court for the Northern District of California [in an action entitled Table Mountain Rancheria Association et al. v. James Watt et al. Case No. C-80-4595 MHP] entered a stipulated judgment which re-instated the plaintiffs who had not participated in the 1958 distribution as Indians under the laws of the United States prior to the 1958 CRTA and who were entitled to the benefits which they enjoyed prior to 1958. The district court ordered the Secretary of the Interior to prepare and provide to Plaintiffs a list of federal services, benefits, and programs and the eligibility criteria which were available to Indians because of their status as Indians between May 2, 1973 and June 25, 1975. The Secretary did not comply. Plaintiffs contend the Secretary's failure to comply with the Watt Judgment has caused Plaintiffs to expend great sums of their own funds to gain access to services, benefits and programs which the Secretary failed to provide to them. In many cases, because of the lack of funds, many Distributees were deprived of an education, adequate housing, prompt and adequate medical services. Plaintiffs were and are still being deprived of the federal services, benefits, and programs including but not limited to education, medical care and services, vocational training and services, housing services, repatriation of "remains," observation of rituals and income from the land.

*Holdings: (not yet available)

Oneida Tribe of Indians of Wisconsin v. Village of Hobart
2011 WL 1467622
No. 10-C-137.
United States District. E.D. Wisconsin, April 18, 2011

*Synopsis: Indian tribe brought action seeks declaratory and injunctive relief precluding village from assessing utility fee for land in village owned by United States and held in trust for tribe. Village filed third party complaint against United States alleging that Clean Water Act required United States to pay village's storm water fees to extent tribe was not liable for fees. United States moved to dismiss.

*Holdings: The District Court, William C. Griesbach, J., held that:
(1) tribe's decision was not subject to judicial review under Administrative Procedure Act (APA), and
(2) Bureau of Indian Affairs (BIA) regional director's issuance of opinion regarding matter was not final agency action.
Motion granted.

Wells Fargo Bank v. Sokaogon Chippewa Community
Briefs from Turtle Talk Blog
2011 WL 1457125
No. 10?C?1039.
United States District Court, E.D. of Wisconsin, April 15, 2011

*Synopsis: During pendency of Indian tribe's motion to dismiss lawsuit that had been brought against it in Wisconsin state court, arising out of the alleged default, by the Tribe and its casino, of their obligations to repay loan, the trustee for the bondholders brought action seeking, inter alia, declaratory judgment that defendants had effectively waived their sovereign immunity to suit and that the loan indenture was not a management contract within the meaning of the Indian Gaming Regulatory Act (IGRA). Tribe moved to dismiss.

*Holdings: The District Court, William C. Griesbach, J., held that:
(1) Court had federal question jurisdiction;
(2) tribe was judicially estopped from arguing that District Court should abstain pursuant to the Wilton/Brillhart doctrine;
(3) loan indenture and related documents did not constitute a management contract within meaning of IGRA; and
(4) failure to obtain approval of the Secretary of the Department of the Interior for loan indenture did not render it void as an unapproved encumbrance on Indian lands.
Motion denied.

Manoukian v. Harrah's Entertainment, Inc.
2011 WL 1343009
No. 11cv503-L(JMA).
United States District Court, S.D. of California, April 7, 2011

*Synopsis: (from the opinion) On March 11, 2011 Defendants filed a notice of removal, removing from State court this slip and fall action by a casino patron against the casino and other defendants. The notice of removal is based on diversity jurisdiction and, alternatively, federal preemption, and 28 U.S.C. Section 1441. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction."

*Holdings: (not yet available)

Smith v. Commissioner of Internal Revenue
Briefs from Turtle Talk Blog
2011 WL 1314679
Nos. 11580-08, 11607-08, 11614-08, 11909-08.
United States Tax Court, April 6, 2011

*Synopsis: In consolidated cases, three members of Native?American tribal council members petitioned for redetermination of income tax deficiencies arising from issues of how much of members' compensation from various tribal activities was ?income? and whether members were entitled to deduct certain business expenses.

*Holdings: The Tax Court, Morrison, J., held that:
(1) compensation members received from tribe's fishing rights?related activities was not exempt from tax in its entirety;
(2) members suffered prejudice from IRS belatedly raising issue of self?employment tax liability stemming from tribal?council compensation; and
(3) whatever reliance members placed on advice of tribe's attorney did not constitute reasonable cause for failing to timely file returns.
Decision for IRS in part and for taxpayers in part.

March

United States v. Wilgus
638 F.3d 1274
No. 09-4046.
United States Court of Appeals, Tenth Circuit, March 29, 2011

*Synopsis: (from the opinion) This case requires us to navigate the treacherous terrain at the intersection of the federal government's obligations, on the one hand, to refrain from imposing burdens on the individual's practice of religion, and, on the other, to protect key aspects of our natural heritage and preserve the culture of Native American tribes. Defendant-Appellee Samuel Ray Wilgus was arrested in June of 1998 for possessing 141 feathers of bald and golden eagles. The Bald and Golden Eagle Protection Act ("Eagle Act"), 16 U.S.C. s 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. s 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. s 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) federal government had compelling interest in protecting eagles;
(2) federal government had compelling interest not in preserving Native American religion generally, but in protecting the religion of federally recognized Indian tribes; and
(3) government's compelling interests were balanced and advanced in the least restrictive manner by criminalization of possession of eagle feathers without a permit that was available only to members of recognized tribes.
Reversed.

*Related News Stories:• Only Indians can use eagle feathers for religious purposes, court rules (NY Times) 03/30/11. Court overturns case that allowed non-Indians to possess eagle feathers (The Denver Post) 03/29/2011

Wapato Heritage, L.L.C. v. United States
637 F.3d 1033
No. 09-36150.
United States Court of Appeals, Ninth Circuit, March 22, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: (from the opinion) Plaintiff-Appellant Wapato Heritage, L.L.C., appeals the district court's order denying its motion for summary judgment and motion for reconsideration, and granting Defendants-Appellees' motion for summary judgment and motion to dismiss. We address whether Wapato's predecessor-in-interest, William Wapato Evans, Jr., effectively exercised his option to renew a lease agreement (Lease) between Evans and certain Native American landowners covering real property known as Moses Allotment No. 8. The district court ruled that Evans did not comply with the Lease's requirements that he notify all the Landowners that he intended to renew the Lease. Wapato, the current holder of all the Lessee's rights under the Lease, timely appealed. We 28 U.S.C. s 1291.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that:
(1) BIA was not the lessor, and (2) lessee's notice to BIA alone was thus ineffective to exercise option to renew lease.
Affirmed.

United States v. Tony
637 F.3d 1153
No. 09-2264.
United States Court of Appeals, Ninth Circuit, March 17, 2011

*Synopsis: Defendant convicted of two counts of assault resulting in serious bodily injury and one count of aggravated burglary in Indian Country, affirmed at 195 Fed.Appx. 789, moved pro se to vacate sentence. The United States District Court for the District of New Mexico denied relief, and defendant requested a certificate of appealability (COA).

*Holdings: The Court of Appeals, O'Brien, Circuit Judge held that:
(1) defendant's claim that his crime did not occur in Indian Country did not touch on subject-matter jurisdiction and was thus waived when he failed to raise it on direct appeal, and
(2) defendant's Double Jeopardy claim would not be considered given his failure to raise the issue during his trial proceedings or on direct appeal.
COA denied and matter dismissed.

Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony v. City of Los Angeles Briefs from Turtle Talk Blog
637 F.3d 993
No. 07-16727.
United States Court of Appeals, Ninth Circuit, March 14, 2011

*Synopsis: Federally recognized Indian tribe brought action against city, seeking order restoring tribe to possession of land previously acquired by city in deal with United States. The United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, 2007 WL 521403, dismissed on grounds that United States was required party that could not be joined, and, 2007 WL 2202242, certified order for immediate appeal. Tribe requested interlocutory appeal, which was granted.

*Holdings: The Court of Appeals, Graber, Circuit Judge, held that:
(1) United States was required party in action;
(2) tribe's failure to assert its claim before statute of limitations under Indian Claims Commission Act (ICCA) expired deprived district court of jurisdiction over tribe's claim against United States; and (3) action could not, in equity and good conscience, proceed without United States, warranting dismissal.
Affirmed.

 

Fletcher v. United States
2011 WL 1326045
No. 02-CV-427-GKF-FHM.
United States District Court, Northern District of Oklahoma, March 31, 2011

*Synopsis: (fr)om the opinion) This matter comes before the court on the Motion to Dismiss of defendant Ben T. Benedum. Benedum contends the plaintiffs' Third Amended Complaint fails to state a claim upon which relief can be granted. Benedum is one of approximately 1,700 individuals named as defendants in the Third Amended Complaint... The plaintiffs in this case are Osage Indians and are descendants of individuals listed on the tribal rolls at the time of the Osage Allotment Act. Plaintiffs assert three claims for relief in their Third Amended Complaint. First, they allege that the United States, the Department of the Interior, the Secretary of the Interior, the Bureau of Indian Affairs, and the Assistant Secretary of the Interior for Indian Affairs have breached their trust obligations by improperly distributing trust assets in violation of the 1906 Act, and by failing to account to the plaintiffs for all funds held in trust, including the headright payments. Second, plaintiffs allege the Federal Defendants' failure to properly manage the trust assets constitutes a deprivation of plaintiffs' property in violation of the Fifth Amendment. Third, the plaintiffs allege the Federal Defendants took administrative actions not in accordance with the law by making headright payments to improper persons in violation of the law and by refusing to provide plaintiffs with an accounting... The 1,700 Individual Defendants, including Benedum, were added after the Federal Defendants persuaded the court that the non-Osage headright owners were required parties to this action.

*Holdings: (not yet available)

South Dakota v. United States Department of the Interior
2011 WL 1303022
No. CIV 10-3006-RAL.
United States District Court, District of South Dakota, March 31, 2011

*Synopsis: State, county and city brought action against Department of the Interior (DOI), Indian tribe, and individual Government officials, seeking declaratory and injunctive relief from DOI's decision to take land into trust for Indian tribe. Defendants moved to dismiss or for summary judgment, and plaintiffs cross-moved for summary judgment.

*Holdings: The District Court, Roberto A. Lange, J., held that:
(1) statute authorizing DOI to acquire trust land for Indian tribes was not an unconstitutional delegation of legislative authority;
(2) acceptance of parcel into trust met aims of statute;
(3) failure to provide plaintiffs with documents resulted in a due process violation; and
(4) allegations failed to demonstrate that Regional Director (RD) was biased.
Motions granted in part and denied in part.

County of Charles Mix v. United States Department of the Interior
2011 WL 1303125
No. CIV 10-3012-RAL.
United States District Court, District of South Dakota, March 31, 2011

*Synopsis: County brought action, under the Administrative Procedure Act (APA), seeking declaratory and injunctive relief from decision of the Department of the Interior (DOI) to take 39 acres of land into trust for Indian tribe. Defendants moved to dismiss or for summary judgment, and County cross-moved for summary judgment.

*Holdings: The District Court, Roberto A. Lange, J., held that:
(1) statute providing DOI with authority to acquire trust land for Indian tribe was not an unconstitutional delegation of legislative power;
(2) statute did not have effect of depriving County of a republican form of government;
(3) statute did not violate Fifth Amendment rights of non-Indians;
(4) acceptance of the land into trust met statutory aims; and
(5) Bureau of Indian Affairs (BIA) did not act arbitrarily or capriciously in deciding to take the land into trust.
Defendants' motion granted and County's motion denied.

Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida
2011 WL 1303163
No. 10-60483-CIV.
United States District Court, Southern District of Florida, March 31, 2011

*Synopsis: (from the opinion) This matter is before the Court upon the Motion Of Defendant, Seminole Tribe Of Florida, To Dismiss As To Amended Complaint, and upon the Motion Of Defendant, Mitchell Cypress, To Dismiss As To Amended Complaint. The Court has carefully reviewed said Motions, the entire court file and is otherwise fully advised in the premises. This cause of action arises out of a contractual dispute between the Seminole Tribe of Florida and the Contour Spa At The Hard Rock, Inc., a spa facility located inside the Hard Rock Hotel and Casino Hollywood. After leasing its premises to the Spa for over six years, the Tribe declared the lease void and locked out the Spa Owner and employees. Plaintiff then brought suit in state court, and Defendant Seminole Tribe of Florida removed to federal court.

*Holdings: (not yet available)

Evans v. Salazar
2011 WL 1219228
No. C08-0372-JCC.
United States District Court, Western District of Washington, March 31, 2011

*Synopsis: (from the opinion) This case arises out of a decision by the Department of Interior to deny an Indian group's petition to become a federally acknowledged tribe. Plaintiffs--the Snohomish Tribe of Indians and its chairman Michael C. Evans--claim to be the successor to the historical Snohomish tribe from the Puget Sound region of Western Washington. In 1855, the Snohomish tribe signed the Treaty of Point Elliott, which established the Tulalip reservation. Over the next several years, a substantial portion of the Snohomish tribe moved onto the Tulalip reservation, and although other tribes moved there as well, the Snohomish remained the largest group. Plaintiffs' members are descendants of Indian women who married white settlers during this period, but Plaintiffs' ancestors never moved onto the reservation. In 1926, a group consisting of both on- and off-reservation Snohomish created an organization that pursued treaty claims on behalf of Snohomish descendants. Many of Plaintiffs' ancestors belonged to this organization, which remained active until at least 1935. That same year, the various tribes residing at Tulalip, including the Snohomish, elected to reorganize under a single tribal government. The resulting entity, known as the "Tulalip Tribes," has since been federally acknowledged but has never included any of Plaintiffs' ancestors. Plaintiffs characterize the 1935 Tulalip Reorganization as having caused a "rift" between the onreservation and off-reservation Snohomish. They insist that the 1926 organization was the official governing body of the Snohomish tribe and that its off-reservation members--including Plaintiffs' ancestors--continued to conduct tribal affairs after the on-reservation members "defected" to the Tulalip Tribes. Plaintiffs formally incorporated in 1950, creating the entity that continues to the present, though they describe this event as simply a "reorganization" of the 1926 organization. Plaintiffs, in effect, argue that they represent the "true" Snohomish tribe.

*Holdings: (not yet available)

Alvarez v. Tracey
2011 WL 1211549
No. CV-08-2226-PHX-DGC (DKD).
United States District Court, District of Arizona March 31, 2011

*Synopsis: (from the opinion) Petitioner was convicted and sentenced by the Gila River Indian Community Court in four separate criminal cases. The motion for partial summary judgment relates to Petitioner's sentences in case CR 2003-543, where he "was convicted of two counts of assault, two counts of domestic violence, and one count of mischief involving weapons." The criminal charges in the case arose from Petitioner's actions on April 12, 2003, when he "assaulted his girlfriend[, E.C.,] and her brother, [J.C.,] both of whom were minors." Petitioner asserts that his striking of E.C. twice on the head with a flashlight was charged as separate counts of Assault and Domestic Violence, that his "pulling a knife" on E.C. was charged as separate counts of Domestic Violence and Misconduct Involving Weapons, and that his striking of J.C. with a flashlight after J.C. began chasing Petitioner outside was charged as a separate count of Assault. Petitioner was convicted of each of the five charges and sentenced to five years' detention.

*Holdings: (not yet available)

Richard v. United States
2011 WL 1227777
No. 10-503 C.
United States Court of Federal Claims March 31, 2011

*Synopsis: Estates of members of Sioux Tribe, who were struck and killed by a vehicle driven by an intoxicated non-Indian while they were walking along a highway within an Indian reservation, sought money damages from government stemming from the deaths under the ?bad men? clause of the 1868 Fort Laramie Treaty. Government moved to dismiss.

*Holdings: In resolving issue of first impression, The Court of Federal Claims, Sweeney, J., held that driver was not ?subject to the authority of the United States? within meaning of ?bad men? clause of treaty, and therefore court lacked subject matter jurisdiction over the claims. Motion granted.

Quechan tribe of the Fort Yuma Indian Reservation v. United States
2011 WL 1211574
No. CIV 10-02261-PHX-FJM.
United States District Court, District of Arizona March 31, 2011

*Synopsis: (from the opinion) This is an action brought by the Quechan Indian Tribe against the United States seeking a declaration that the United States has a duty to operate its medical facilities and practices at a level that meets or exceeds a minimum generally accepted standard of care, and that the United States has breached that duty. Plaintiff also seeks equitable relief requiring defendants to ensure its medical services at the Fort Yuma Indian Reservation do not fall below the minimum standard of care. Defendants move to dismiss plaintiff's First Amended Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. and for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P.

*Holdings: (not yet available)

Neighbors of Casino San Pablo v. Salazar
2011 WL 1238720
No. 09-2384 (RJL). .
United States District Court, District of Columbia March 30, 2011

*Synopsis: Neighbors of Indian tribe-operated casino brought action against various officials in the United States Department of the Interior, as well as the National Indian Gaming Commission (NIGC), alleging that the NIGC failed its statutory evaluation and enforcement duties with respect to the casino, and that the NIGC acted arbitrarily and capriciously in the determinations it did make about the tribe's gaming. Defendants filed motion to dismiss.

*Holdings: The District Court, Richard J. Leon, J., held that:
(1) Indian Gaming Regulatory Act (IGRA) did not require NIGC to perform an independent "Indian lands" determination in conjunction with the tribe's submission of non-site-specific gaming ordinances;
(2) NIGC's discretion as to whether to enforce conduct that was allegedly unlawful under IGRA was not subject to judicial review; and
(3) plaintiffs lacked standing to challenge non-final NIGC actions.
Motion granted.

Reber v. Payne
2011 WL 1226043
No. 2:08-CV-50 TS.
United States District Court, District of Utah March 29, 2011

*Synopsis: (from the opinion) A jury convicted Petitioner of one count of aiding and assisting in the wanton destruction of wildlife, a third-degree felony under Utah Code s 23-20- 4(3)(a), for which he was sentenced to five years in prison. The sentence was stayed conditioned on him paying a fine and restitution. He apparently never served prison time and his probation has since ended. The conviction was overturned by the Utah Court of Appeals. But then, the Utah Supreme Court reversed that decision and reinstated Petitioner's conviction.

*Holdings: (not yet available)

Round Valley Indian Tribes v. United States
97 Fed.Cl. 500
No. 06-900L.
United States Court of Federal Claims, March 23, 2011

*Synopsis: Indian tribes, alleging that the United States Government violated its trust duty to them with regard to its management of the tribes' trust funds, brought action for an accounting and monetary damages. Government moved for partial summary judgment.

*Holdings: The District Court, Braden, J., held that:
(1) doctrine of claim preclusion did not bar tribes' action;
(2) stipulation and final judgment in prior case did not waive claim; and
(3) jurisdictional provision of Indian Claims Commission Act (ICCA) did not bar tribes from having their claims adjudicated in the Court of Federal Claims.
Motion denied.

Crosby Lodge v. NIGC
Briefs from Turtle Talk Blog
2011 WL 888242
No. 3:06-CV-00657-LRH-RAM.
United States District Court, District of Nevada, March 14, 2011

*Synopsis: Operator of business on Indian reservation, including licensed gaming activity, brought action against National Indian Gaming Commission (NIGC), challenging adoption and enforcement of regulation, promulgated under Indian Gaming Regulatory Act (IGRA), that required tribes that licensed individually?owned gaming operations to mandate by tribal ordinance "that not less than 60 percent of the net revenues be income to the Tribe." Parties moved and cross?moved for summary judgment.

*Holdings: The District Court, Larry R. Hicks, J., held that:
(1) Congress's intent concerning IGRA was ambiguous, and
(2) NIGC's interpretation of IGRA in promulgating regulation was reasonable.
Operator's motion denied and NIGC's motion granted.

Gila River Indian Community v. United States
Court of Appeals Briefs at 9th Circuit on Turtle Talk Blog
2011 WL 826282
Nos. CV-10-1993-PHX-DGC, CV-10-2017-PHX-DGC, CV-10-2138-PHX-DGC.
United States District Court, District of Arizona, March 3, 2011

*Synopsis: City and Indian tribe brought actions challenging Department of Interior's (DOI) decision to accept property in trust for benefit of another tribe. State legislative and executive branch leaders intervened as parties plaintiff, and other tribe intervened as party defendant. Parties filed cross-motions for summary judgment.

*Holdings: The District Court, David G. Campbell, J., held that:
(1) city and tribe had standing to challenge DOI's decision;
(2) tribe waived claim that other tribe's acquisition of private lands exceeded amount permitted by Gila Bend Act;
(3) DOI's determination that unincorporated land surrounded by municipality could be accepted in trust for tribe was entitled to Chevron deference;
(4) DOI's interpretation of its own regulation was reasonable;
(5) gaming determination pursuant to Indian Gaming Regulatory Act (IGRA) was not prerequisite to taking land in trust; and
(6) DOI's decision did not violate Tenth Amendment.
Defendants' motion granted.

Ford Motor Credit Company v. Poitra
2011 WL 799746
No. 4:10-CV-042.
United States District Court, District of North Dakota, March 2, 2011

*Synopsis: Lenders brought action against borrower seeking injunctive and declaratory relief barring further proceedings in tribal court. Lenders moved for summary judgment, and borrower moved to dismiss.

*Holdings: The District Court, Daniel L. Hovland, J., held that:
(1) lender adequately exhausted its tribal remedies, and
(2) tribal court had jurisdiction over lender.
Motions denied.

Timbisha Shoshone Tribe v. Salazar
2011 WL 691366
No. 10-968
United States District Court, District of Columbia, March 1, 2011

*Synopsis: Indian tribe brought action against Departments of the Interior (DOI) and the Treasury (DOT), seeking declaratory and injunctive relief from provision of the Western Shoshone Claims Distribution Act which directed that funds appropriated for the tribe pursuant to a determination of the Indian Claims Commission (ICC) be distributed directly to individual tribe members rather than to any tribal entity, which the plaintiffs alleged constituted an unconstitutional taking of tribal property and a denial of equal protection. Government moved to dismiss.

*Holdings: The District Court, Gladys Kessler, J., held that:
(1) allegations, that the Secretary of the Treasury and Department of the Treasury would play a necessary role in administration of the distribution, were insufficient to state a viable claim against the Department and the Secretary;
(2) complaint failed to state a Fifth Amendment Takings Clause claim;
(3) allegation that the allocation of funds violated tribe's equal protection rights failed to state a claim.
Motion granted.

February

Hollywood Mobile Estates Limited v. Cypress
2011 WL 661370
No. 10-10304.
United States Court of Appeals, Eleventh Circuit, February 24, 2011

*Synopsis:Limited partnership brought action against various officials of a Native American tribe, seeking an injunction compelling them to restore possession of certain leased premises and for relief compelling tribal officials to return rents collected from subleases. The United States District Court for the Southern District of Florida dismissed the lawsuit for lack of jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals held that:
(1) request for restitutionary relief compelling tribal officials to return collected rents was not prospective in nature, so as to come within sovereign immunity doctrine, and
(2) request for injunction was a request for prospective relief, but did not implicate special sovereignty interests, so as to warrant application of sovereign immunity.
Affirmed in part, reversed in part, and remanded.

United States v. Shillingstad
632 F.3d 1031
No. 10-1283.
United States Court of Appeals, Eighth Circuit, February 22, 2011

*Synopsis: Defendant was convicted, by a jury in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of assault with a dangerous weapon and assault resulting in serious bodily injury in Indian country. He appealed.

*Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) district court did not abuse its discretion in admitting evidence of defendant's prior tribal convictions for assaulting his victim;
(2) any error in permitting government to question defendant's mother about his prior offenses against her was harmless; and
(3) sentencing court did not err in departing upward on basis that defendant's criminal history category underrepresented the likelihood he would commit further crimes of violence and substantially underrepresented his actual criminal history.
Affirmed.

Gordon v. Holder
632 F.3d 722
No. 10-5227.
United States Court of Appeals, District of Columbia Circuit, February 18, 2011

*Synopsis: Native American delivery seller of tobacco products brought action against United States Attorney General, challenging constitutionality of Prevent All Cigarette Trafficking Act (PACT Act) under both the Due Process and Equal Protection Clauses. The United States District Court for the District of Columbia denied seller's motion for temporary restraining order (TRO) and preliminary injunction (PI), and seller appealed.

*Holdings: The Court of Appeals, Brown, Circuit Judge, held that:
(1) late hour of seller's filing of motion for TRO and PI, on its own, was impermissible basis for denying motion, and
(2) remand to district court was required for determination of preliminary injunction factors. Remanded.

Klamath Irrigation Dist. v. United States
635 F.3d 505
No. 2007-5115.
United States Court of Appeals, Federal Circuit, February 17, 2011

*Synopsis: Irrigation districts and agricultural landowners brought consolidated suits against United States government, alleging that Bureau of Reclamation?s temporary reductions of irrigation water breached contracts for supply of water from Klamath River Basin reclamation project, breached interstate compact, and violated Fifth Amendment as uncompensated taking of property. The United States Court of Federal Claims, Francis M. Allegra, J., 75 Fed.Cl. 677, granted partial summary judgment in favor of government. Plaintiffs appealed. Questions relating to plaintiffs' claims were certified to Oregon Supreme Court, 532 F.3d 1376.

*Holdings: The Court of Appeals, Schall, Circuit Judge, held that:
(1) plaintiffs' takings and compact claims would be remanded for determination of outstanding property interest questions, and
(2) impossibility of performance was proper factor to be taken into account in considering applicability of sovereign acts doctrine.
Vacated and remanded.

*Related News Stories: Federal Circuit reinstates and remands Klamath Irrigation Dist. v. United States (Turtle Talk Blog) 02/17/11

Amerind Risk Management Corp. v. Myrna Malaterre
Briefs from Turtle Talk Blog
Commentaries from Turtle Talk Blog
633 F.3d 680
No. 08-3949.
United States Court of Appeals, Eighth Circuit, February 15, 2011
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.

*Synopsis: Administrator of self-insurance risk pool that insured federally subsidized Native-American housing owned and operated by tribes brought action against tribe members, seeking declaratory judgment that administrator was not subject to direct action, and seeking to enjoin tribe members from proceeding with underlying wrongful death and personal injury action in tribal court against administrator. The United States District Court for the District of North Dakota, Daniel L. Hovland, Chief Judge, granted summary judgment in favor of tribe members. Administrator appealed.

*Holdings: The Court of Appeals, Beam, Circuit Judge, held that:
(1) administrator was entitled to tribal sovereign immunity, and
(2) administrator did not waive that immunity.
Reversed and remanded.

Lantry v. Walker River Paiute Tribe Tribal Police
2011 WL 769974
No. 3:06-cv-600-RCJ-VPC.
United States District Court, District of Nevada, February 25, 2011

*Synopsis: (from the opinion) Currently before the Court are Walker River Paiute Tribe Tribal Police's Motion to Dismiss, Plaintiff David Lantry's Motion to Extend Time to File Proposed Pretrial Order, and Defendant's Motion to Extend Time to File Proposed Pretrial Order. The Court heard oral argument on the motions on January 18, 2011... According to the complaint, in April 2004, Plaintiff, a non-tribal member, drove an unregistered agricultural vehicle on Tribal property. The Tribal Police cited him into the Mineral County Justice Court. In May 2004, Plaintiff appeared in court but was told that a judge was unavailable and that he should check back in a week for a new court date. In April 2005, three tribal police officers forcibly removed Plaintiff from his residence located on private property, not subject to tribal authority, and took him into custody. The officers took Plaintiff to the Mineral County Jail where he was booked on a warrant based upon the earlier citation.

*Holdings: (not yet available)

Wasson v. Pyramid Lake Paiute Tribe
2011 WL 769989
No. 3:10-cv-00123-RCJ.
United States District Court, District of Nevada, February 25, 2011

*Synopsis: Indian tribe members brought action against tribe, tribal officials, employees of United States Bureau of Indian Affairs (BIA), and tribal consultant, alleging tribe violated their due process and equal protection rights by ignoring their petitions and election referendum votes. Tribe moved to dismiss.

*Holdings: The District Court, Robert C. Jones, J., held that:
(1) tribal sovereign immunity barred members' action, and
(2) dismissal of tribe from action necessitated dismissal of entire case against all defendants. Motion granted.

Osage Tribe of Indians of Oklahoma v. United States
97 Fed.Cl. 542
Nos. 99-550 L, 00-169 L.
United States Court of Federal Claims, February 24, 2011

*Synopsis: Native-American tribe sued United States, seeking damages for breach of government's fiduciary duties as trustee of tribe's mineral estate by failure of Bureau of Indian Affairs (BIA) to collect, invest, and deposit revenues generated from tribe's oil and gas leases. The Court of Federal Claims, Emily C. Hewitt, Chief Judge, --- Fed.Cl. ----, 2011 WL 477042, granted government's motion for partial reconsideration of its prior order, --- Fed.Cl. ---, 2010 WL 5397226, as to calculating damages, and parties thereby filed statements to explain basis of their disagreement of damages calculation.

*Holdings: The Court of Federal Claims, Hewitt, Chief Judge, held that damages award of $330,735,185.55 was warranted.
So ordered.

McGuire v. United States
97 Fed.Cl. 425
No. 09-380L.
United States Court of Federal Claims, February 18, 2011

*Synopsis: Farmer who leased tribal land brought inverse condemnation action against government in Bankruptcy Court, alleging that decision of Bureau of Indian Affairs (BIA) to remove bridge over canal on leased land was unconstitutional taking. The Bankruptcy Court determined that government had committed regulatory taking. The United States District Court for the District of Arizona, James A. Teilborg, J., rejected Bankruptcy Court's findings and recommendations, and dismissed action. Farmer appealed. The Court of Appeals, Thomas, J., 550 F.3d 903, reversed and remanded for transfer to Court of Federal Claims. Government moved to dismiss and for summary judgment.

*Holdings:The Court of Federal Claims, Futey, J., held that:
(1) regulatory takings case was ripe for adjudication;
(2) genuine issues of material fact precluded summary judgment on the issue of a partial regulatory taking; and
(3) removal of bridge on leased farm land was not a categorical taking.
Motions denied in part and granted in part.

Alltel Communications, LLC v. DeJordy
2011 WL 672003
No. 4:10CV00130 BSM.
United States District Court, Eastern District of Arkansas, February 17, 2011

*Synopsis: (from the opinion) Viewed in the light most favorable to Alltel, the nonmoving party, the facts are as follows. DeJordy was an attorney employed by Alltel or its predecessors from 1995 through 2007. While working for Western Wireless Corporation, a predecessor to Alltel, DeJordy served as executive director for regulatory affairs and, in that capacity, allegedly negotiated the Tate Woglaka Service Agreement with the Oglala Sioux Tribe, a recognized Native American tribe located in South Dakota. The Agreement set forth the terms and conditions applying to telecommunications services that Western Wireless was to provide to the Tribe on the Pine Ridge Indian Reservation in South Dakota. In negotiating the Agreement, DeJordy received confidential information from, and provided confidential legal advice to, Western Wireless. Western Wireless was acquired by Alltel's parent corporation in August 2005, and DeJordy became Alltel's senior vice president for regulatory affairs. On November 2, 2007, DeJordy was terminated for unsatisfactory performance. Alltel alleges that DeJordy was paid $2,039,983 in severance in exchange for entering into a separation agreement that contained a nonsolicitation provision, as well as confidentiality and noncooperation provisions.

*Holdings: (not yet available)

Alltel Communications, LLC v. DeJordy
2011 WL 673766
No. CIV. 10-MC-00024.
United States District Court, District of South Dakota, February 17, 2011

*Synopsis: (from the opinion) This action is in connection with a lawsuit pending in the Eastern District of Arkansas, 4:10-cv-00130... Viewed in the light most favorable to Alltel, the nonmoving party, the facts are as follows. DeJordy was an attorney employed by Alltel or its predecessors from 1995 through 2007. While working for Western Wireless Corporation, a predecessor to Alltel, DeJordy served as executive director for regulatory affairs and, in that capacity, allegedly negotiated the Tate Woglaka Service Agreement with the Oglala Sioux Tribe, a recognized Native American tribe located in South Dakota. The Agreement set forth the terms and conditions applying to telecommunications services that Western Wireless was to provide to the Tribe on the Pine Ridge Indian Reservation in South Dakota. In negotiating the Agreement, DeJordy received confidential information from, and provided confidential legal advice to, Western Wireless. Western Wireless was acquired by Alltel's parent corporation in August 2005, and DeJordy became Alltel's senior vice president for regulatory affairs. On November 2, 2007, DeJordy was terminated for unsatisfactory performance. Alltel alleges that DeJordy was paid $2,039,983 in severance in exchange for entering into a separation agreement that contained a nonsolicitation provision, as well as confidentiality and noncooperation provisions.

*Holdings: (not yet available)

Munoz v. McDonald
2011 WL 569889
No. C 09-4941 MHP (pr).
United States District Court, Northern District of California, February 15, 2011

*Synopsis: (from the opinion) Petitioner filed a pro se action seeking a writ of habeas corpus under 28 U.S.C. s 2254. Respondent has filed an answer and lodged the record with the court. Petitioner has not filed a traverse. The matter now is before the court for consideration on the merits. For the reasons discussed below, the petition will be denied...Petitioner was convicted in Lake County Superior Court of first degree murder with a criminal street gang special circumstance. The jury also found that he had personally used a dangerous or deadly weapon. He was sentenced to life imprisonment without the possibility of parole.

*Holdings: (not yet available)

Outboard Marine Corp. v. Listman
2011 WL 666104
No. 3:10-CV-00311-LRH-RAM.
United States District Court, District of Nevada, February 14, 2011

*Synopsis: (from the opinion) This matter arises out of a recreational boating accident on Pyramid Lake, located within the Pyramid Lake Paiute Tribe Reservation. Robin Listman, who suffered serious injuries in the accident, filed suit in Nevada state court in August 2003 against several parties, including OMC as the alleged designer and manufacturer of the boat. That state court action, Listman v. Porsow, CV03-05022, remains pending and is proceeding to trial with Listman and OMC as the sole remaining parties.

*Holdings: (not yet available)

Klamath Tribe Claims v. United States
97 Fed.Cl. 203
No. 09-75L.
United States Court of Federal Claims, February 11, 2011

*Synopsis: Tribe claims committee brought action alleging that Interior Department failed to disburse funds owed to tribal members and to safeguard treaty-based water rights associated with dam. Department moved to dismiss.

*Holding: The Court of Federal Claims, Allegra, J., held that:
(1) tribes' claim arising from Interior Department's failure to reimburse them pursuant to Klamath Termination Act was untimely;
(2) tribes' claims relating to transfer of dam and its associated water storage were untimely; and
(3) tribes were necessary parties.
Motion granted in part.

Alturas Indian Rancheria v. Salazar
2011 WL 587588
No. CIV. S-10-1997 LKK/EFB.
United States District Court, Eastern District of California, February 9, 2011

*Synopsis: (from the opinion) Plaintiff, a federally recognized Indian tribe filed its original complaint with this court on July 27, 2010, and an amended complaint on November 8, 2010. In the amended complaint plaintiff alleges three claims against federal officials relating to a contract renewal request submitted by plaintiff to the Secretary of the Interior pursuant to the Indian Self-Determination and Education Assistance Act ("ISDA"). Plaintiff also seeks relief against State of California officials for violations of the Indian Gaming Regulatory Act and a Tribal-State Gaming Compact entered into by plaintiffs and the State. Pending before the court are plaintiff's motion for summary judgment on its first and second claims for relief, the federal defendants' motion to dismiss plaintiff's first amended complaint, and the state defendants motion to dismiss the forth claim for relief. Also pending before the court is a motion to intervene, filed by another faction of the Alturas Indian Rancheria on January 11, 2011.

*Holdings: (not yet available)

Osage Tribe of Indians of Oklahoma v. United States
97 Fed.Cl. 345
Nos. 99-550 L, 00-169 L.
United States Court of Federal Claims, February 8, 2011

*Synopsis: Indian tribe brought action alleging that United States breached its fiduciary duty to collect, deposit, and invest revenues generated from oil leases. After entry of order limiting application of information from oil company's database in calculating tribe's damages, 96 Fed.Cl. 390, United States moved for partial reconsideration.

*Holdings: The Court of Federal Claims, Hewitt, Chief Judge, held that United States could use 40-degree prices found in oil company's crude oil database in calculating damages.
Motion granted.

Oenga v. United States
97 Fed.Cl. 80
No. 06-491L.
United States Court of Federal Claims, February 8, 2011

*Synopsis: Owners of Alaska Native allotment brought action against federal government, alleging that government breached its trust obligations in connection with lease allowing oil company possession and use of allotment for oil production-related activities. Company intervened as defendant. Following trial, the Court of Federal Claims, Nancy B. Firestone, J., 2010 WL 5160204, determined that plaintiffs were entitled to damages for government's breach of trust, measured as the fair annual rental for unauthorized uses, as calculated using cost savings methodology presented by plaintiff's expert. Parties submitted their proposed damages calculations and moved for reconsideration, and defendant-intervenors also moved for clarification.

*Holding: The Court of Federal Claims, Nancy B. Firestone, J., held that:
(1) company's alternative cost of building bypass road was appropriate measure of cost savings;
(2) real, rather than nominal, discount rate of seven percent applied when calculating damages;
(3) upper end of company's price range estimate for cost of bypass road alternative was appropriately used in calculating damages;
(4) amortization period of 16 years was appropriate;
(5) only company's past unauthorized use was covered by damages award;
(6) damages would not be offset by amount of rent previously paid by company for authorized use of allotment; and
(7) amount of $4,924,000 was the appropriate damages award.
Ordered accordingly.

*Related News Stories: Judge awards Alaska family $5M (UPI.com) 02/09/11

State of South Dakota v. United States Dept. of the Interior
2011 WL 382744
No. CIV 10-3007-RAL.
United States District Court, District of South Dakota, February 3, 2011

*Synopsis: State, county, school districts, and a city brought suit seeking declaratory and injunctive relief from the Department of the Interior's decision to take four parcels of land into trust for an Indian tribe. The parties cross-moved for summary judgment.

*Holding:The District Court, Roberto A. Lange, J., held that:
(1) section of the Indian Reorganization Act (IRA) authorizing the Secretary of the Interior to take land into trust for Indian tribes was not an unconstitutional delegation of legislative power;
(2) claim that the same IRA section deprived plaintiffs of a republican form of government presented a nonjusticiable political question, and was in any event without merit;
(3) Superintendent of a BIA agency was not biased, so as to violate Due Process;
(4) alleged inherent structural bias of the BIA did not render a decision to take the land into trust a violation of due process; and
(5) BIA's decision to take the four parcels into trust was not arbitrary and capricious.
Defendants' motion granted.

January

Nanomantube v. Kickapoo Tribe
631 F.3d 1150
No. 09-3347.
United States Court of Appeals, Tenth Circuit, January 31, 2011

*Synopsis: Former tribal employee brought Title VII employment discrimination action against Indian tribe, as well as against tribe's governing body and unincorporated tribal casino at which employee worked. The United States District Court for the District of Kansas dismissed action based on tribal sovereign immunity, and employee appealed.

*Holdings: The Court of Appeals, McKay, Circuit Judge, held that:
(1) Congress did not abrogate tribal immunity with regard to Title VII, and
(2) tribe's agreement to comply with Title VII, contained in single sentence in casino employee handbook, did not unequivocally waive tribal sovereign immunity.
Affirmed.

El Paso Natural Gas Co. v. United States
632 F.3d 1272
Nos. 10-5080, 10-5090.
United States Court of Appeals, District of Columbia Circuit, January 28, 2011

*Synopsis: Energy company brought action against United States Department of Energy (DOE), among other federal defendants, alleging violations of Administrative Procedure Act (APA) and Resource Conservation and Recovery Act (RCRA), in connection with certain properties alleged to be contaminated with residual radioactive waste. The United States District Court for the District of Columbia, Richard J. Leon, J., 605 F.Supp.2d 224, dismissed action for want of subject matter jurisdiction. Plaintiff appealed.

*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
(1) claim was not subject to judicial review and
(2) canon of statutory interpretation directing courts to liberally construe statutes in favor of Native Americans did not apply to Uranium Mill Tailings Radiation Control Act (UMTRCA).
Affirmed.

Patchak v. Salazar
Briefs from Turtle Talk Blog
632 F.3d 702
No. 09-5324
United States Court of Appeals, D.C. Circuit, January 21, 2011

*Synopsis: Resident of rural community brought action challenging Secretary of the Interior's decision to take a parcel of land into trust on behalf of Indian tribe for casino use. The United States District Court for the District of Columbia, Richard J. Leon, J., 646 F.Supp.2d 72, dismissed the complaint. Resident appealed.

*Holdings: The Court of Appeals, Randolph, Senior Circuit Judge, held that:
(1) resident had Article III standing to sue;
(2) resident had prudential standing to sue; and
(3) Indian lands exception to the Quiet Title Act's waiver of sovereign immunity did not apply so as to negate the Administrative Procedure Act's waiver of sovereign immunity.
Reversed and remanded.

United States v. DeCoteau
630 F.3d 1091
No. 10-2122.
United States Court of Appeals, Eighth Circuit, January 12, 2011

*Synopsis: Defendant was convicted of aggravated sexual abuse of a minor in Indian Country and abusive sexual contact in Indian country after the United States District Court for the District of North Dakota, Daniel L. Hovland, J., 648 F.Supp.2d 1145, ruled that he was competent to stand trial, and defendant appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) district court did not abuse its discretion in determining that defendant was competent to stand trial;
(2) evidence was sufficient to support conviction for aggravated sexual abuse of a minor; and
(3) court was not authorized to impose a sentence below the 30-year statutory mandatory minimum.
Affirmed.

Navajo Nation v. United States
631 F.3d 1268
No. 2010-5036.
United States Court of Appeals, Federal Claims, January 10, 2011

*Synopsis: Indian tribe brought action against United States, alleging a Fifth Amendment takings claim arising out of requirement that it obtain written approval from second tribe before developing land within a portion of the reservation. The United States Court of Federal Claims, Eric G. Bruggink, Senior District Judge, dismissed, and tribe appealed.

*Holdings: The Court of Appeals, Mayer, Circuit Judge, held that six-year statute of limitations accrued when Congress precluded tribe from undertaking any development unless second tribe gave written consent.
Vacated and remanded with instructions.

Confederated Tribes of the Colville Reservation v. Anderson
2011 WL 8948779
CV?09?0342?EFS.
United States District Court, E. D. Washington, January 26, 2011

*Synopsis: (from the opinion) "The parties ask the Court to wrestle with an age-old issue: the struggle between two sovereigns asserting their respective rights to protect the safety and interests of those for whom they are responsible. The state of Washington asserts its right to enforce hunting laws against members of the Colville Indian Tribe (?Tribe?), who are hunting off the reservation but on lands on which tribal members enjoy ?in common? treaty-hunting rights. Although numerous appellate and district courts have discussed the interplay between a state's and a tribe's responsibilities as they relate to wildlife conservation to which they enjoy ?in common? rights, no appellate court has focused on this interplay as it relates to hunting safety. The Court herein is tasked with the responsibility of setting forth a legal standard with which to assess the State's hunting safety laws, as well as resolving challenging issues relating to Plaintiffs' 42 U.S.C. ? 1983 claims."

*Holdings: (not yet available)

Flandreau Santee Sioux Tribe v. State of South Dakota
2011 WL 294450
No. CIV. 07-4040.
United States District Court, District of South Dakota, January 26, 2011

*Synopsis: (from the opinion) Pending is the State's motion to quash the Tribe's notice to take the deposition of Governor Michael Rounds. The State argues former Governor Rounds is a high ranking government official whose deposition cannot be taken absent extraordinary circumstances. The State also argues that conversations among the former Governor and staff are protected from discovery by the deliberative process privilege. The Tribe argues Governor Rounds is the only source for the particular information they need to prove their case and the deliberative process privilege does not apply.

*Holding: (not yet available)

Sekayumptewa v. Salazar
2011 WL 231460
No. CV 11-8005-PCT-DGC.
United States District Court, District of Arizona, January 24, 2011

*Synopsis: (from the opinion) Plaintiffs are individual members and villages of the Hopi Tribe.. Plaintiffs have filed a complaint seeking to enjoin a Hopi tribal election ordered by the Secretary of the Interior pursuant to 25 U.S.C. s 476 and scheduled to occur on January 27, 2011. The election concerns proposed amendments to the Hopi tribal constitution that would, according to Plaintiffs, alter the traditional village organization and divide First Mesa into three distinct villages. .

*Holding: (not yet available)

Ventura v. Snoqualmie Indian Tribe
2011 WL 219678
No. C11-45RAJ.
United States District Court, Western District of Washington, January 24, 2011

*Synopsis: (from the opinion) Petitioner Arlene Ventura is a member of the Snoqualmie Indian Tribe, (the "Tribe") as is her son, Petitioner Kanium Ventura. Both are elected members of the Snoqualmie Tribal Council. Both are also board members of the Snoqualmie Entertainment Authority, the agency with oversight over the Snoqualmie Casino. The Tribal Prosecutor, Cynthia Tomkins, charged Mr. and Ms. Ventura in Tribal Court with crimes arising from the preparation in late 2008 of a Tribal Council resolution authorizing the hiring of the Moss Adams accounting firm to audit the Casino. The criminal charges arise from allegations that the Venturas falsely represented that the Tribal Council had authorized the resolution, and used false statements to induce the Council chair.

*Holding: (not yet available)

Inglish Interests, LLC v. Seminole Tribe of Florida, Inc.
2011 WL 208289
No. 2:10-cv-367-FtM-29DNF.
United States District Court, Northern District of Florida, January 21, 2011

*Synopsis: (from the opinion) Plaintiff Inglish Interests, LLC (plaintiff or Inglish) alleges the following facts in the Complaint: Defendant, Seminole Tribe of Florida, Inc. owns a citrus grove located in Glades and Hendry Counties on the Big Cypress and Brighton reservations (the Grove Property). Inglish sought to lease the Grove Property from STOFI in order to harvest the crops and market them for profit. The parties signed a letter of intent (LOI) which memorialized their preliminary agreement regarding an anticipated ten-year property lease. While the parties intended to enter into a formal lease agreement, one was never executed. Instead, the parties operated pursuant to the LOI for approximately fifteen months. The LOI contains eight short paragraphs and makes no mention of tribal sovereign immunity. A dispute ensued, and plaintiff has filed a four-count Complaint alleging state law claims for breach of contract, imposition of a crop lien pursuant to Fla. Stat. s 713.59, a right to emblements, and unjust enrichment.

*Holding: (not yet available)

United States v. Medearis
2011 WL 112018
No. CR 10-30057-RAL..
United States District Court, District of South Dakota, January 13, 2011

*Synopsis: Defendant was indicted in the United States District Court for the District of South Dakota on charges of tampering with evidence. Defendant moved to suppress physical evidence as well as all statements he made to tribal officers and Federal Bureau of Investigation (FBI) agent.

*Holdings: The District Court, Roberto A. Lange, J., adopted in part and declined in part report and recommendation of Mark Mareno, United States Magistrate Judge, 2010 WL 5576192, and held that: (1) tribal officer with Bureau of Indian Affairs (BIA) certification was acting as tribal officer, not federal officer, when obtaining and executing search warrants;
(2) good-faith exception to exclusionary rule applied;
(3) defendant's statements were voluntary;
(4) defendant was not in custody, for Miranda purposes, when officers initially questioned him outside his residence;
(5) officers did not violate defendant's Fourth Amendment rights when they entered his residence to freeze situation and secure premises;
(6) defendant was in custody, for Miranda purposes, when officers questioned him inside his kitchen; but
(7) defendant's statements following his release from tribal custody were sufficiently an act of free will to purge primary taint of his prior non- Mirandized statements.
Motion to suppress granted in part and denied in part.

Cryer v. Massachusetts Dept. of Corrections
763 F.Supp.2d 237
No. 1:09-10238-PBS.
United States District Court, District of Massachusetts, January 7, 2011

*Synopsis: Native American inmate brought civil rights action against Massachusetts Department of Correction and officials, challenging denial of access to ceremonial tobacco to be used for religious purposes. Parties cross-moved for summary judgment.

*Holding: The District Court, Saris, J., adopted report and recommendation of Robert B. Collings, United States Magistrate Judge, which held that:
(1) fact issues existed whether correctional anti-smoking policy created substantial burden on inmate's religious practice;
(2) state correctional officials were entitled to qualified immunity on First Amendment claim; and
(3) correctional policy did not contravene state anti-smoking statute.
Motions granted in part and denied in part.

Confederated Tribes of the Coville Reservation v. Anderson
761 F.Supp.2d 1101
No. CV-09-0342-EFS.
United States District Court, Eastern District of Washington, January 3, 2011

*Synopsis: Indian tribe and one of its enrolled members brought ? 1983 action challenging State's enforcement of its hunting safety laws against tribe members hunting on off-reservation lands on which tribe members enjoyed ?in common? treaty hunting rights. State moved to dismiss, and parties filed cross-motions for partial summary judgment.

*Holding: The District Court, Edward F. Shea, J., held that:
(1) tribe member had standing to bring action;
(2) member was not required to satisfy the favorable-termination rule of Heck v. Humphrey;
(3) tribe could not bring claim under ? 1983 as parens patriae; and
(4) State was entitled to enact and enforce laws regulating a tribal member's exercise of an ?in common? hunting right for public-safety purposes, so long as the law satisfied certain conditions. Ordered accordingly.

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