2012 Federal Courts Cases

December

Vann v. U.S. Department of the Interior
701 F.3d 927
No. 11?5322.
United States Court of Appeals, District of Columbia Circuit, December 14, 2012.

*Synopsis: Freedmen, as descendants of former slaves of Cherokee Nation, sued Secretary of Department of Interior (DOI), tribe, and principal chief in his official capacity for allegedly violating treaty freeing Cherokee slaves and their descendants and guaranteeing them all rights of native Cherokees including right to tribal membership and right to vote in tribal elections. The United States District Court for the District of Columbia, Henry H. Kennedy, Jr., J., 2011 WL 4953030, granted defendants' motion to dismiss on grounds that tribe had sovereign immunity and was required party whose interests could not be adequately represented by principal chief. Freedmen appealed.

*Holdings: The Court of Appeals, Kavanaugh, Circuit Judge, held that suit could proceed against chief in his official capacity without tribe as party.
Reversed and remanded.

Related News Stories: Court denies Cherokee appeal on Freedmen ruling (Native American Times) 3/13/13

Oklevueha Native American Church of Hawaii, Inc. v. Holder
2012 WL 6738532
Civil No. 09?00336 SOM/BMK.
United States District Court, D. Hawai'i, December 31, 2012.

*Synopsis: (from the opinion) "Plaintiffs Michael Rex "Raging Bear" Mooney and the Oklevueha Native American Church of Hawaii, Inc., allege that marijuana (or, as they say, "cannabis") is a central part of their religion. Plaintiffs assert that their right to religious freedom is being infringed on by enforcement of federal drug laws, specifically 21 U.S.C. ? 841."

*Holdings: (not yet available)

Plains Commerce Bank v. Long Family Land and Cattle Co.
Materials from Turtle Talk
2012 WL 6731812
No. CIV 12?3021?RAL.
United States District Court, D. South Dakota, Central Division, December 31, 2012.

*Synopsis: Non-Indian bank and its sureties commenced action seeking declaratory judgment that tribal court had no jurisdiction over action by Indian borrowers to recover pursuant to verdict entered against bank in prior action. Plaintiffs moved for summary judgment.

*Holdings: The District Court, Roberto A. Lange, J., held that tribal court exhaustion doctrine barred bank's action.
Motion denied.

Evans v. Shoshone-Bannock Land Use Policy Commission
2012 WL 6651194
4:12?CV?417?BLW.
United States District Court, D. Idaho, December 22, 2012.

*Synopsis: (from the opinion) The plaintiffs filed a motion for injunctive relief in this Court to enjoin the defendants from attempting to enforce Tribal ordinances against them.

*Holdings: (not yet available)

United States v. Lopez
2012 WL 6629595
No. CR 11?50073?JLV.
United States District Court, D. South Dakota, Dec. 19, 2012

*Synopsis: (from the opinion) "On July 6, 2011, defendant Francisco Lopez was indicted for failure to pay legal child support. (Docket 1). On February 27, 2012, defendant filed a motion to dismiss the indictment. (Docket 28). Mr. Lopez claims the prosecution is based on "an invalid state order that was premised on Tribal Court adoption proceedings which were illegally and improperly held as the Tribal Court ... lacked any jurisdiction to enter an adoption order."

*Holdings: (not yet available)

Northern Arapaho Tribe and Jim Shakespeare of Miwok Indians v. Ashe
2012 WL 7192654
No. 11?CV?347?J.
United States District Court, D. Wyoming, Dec. 18, 2012, Order Denying Motion to Certify Appeal Jan. 23, 2013.

*Synopsis: Indian tribe and tribal member brought action alleging that Fish and Wildlife Service (FWS) had violated Free Exercise Clause, Religious Freedom Restoration Act (RFRA), and Administrative Procedure Act (APA) by delaying for two and a half years permit allowing them to take eagles for use in their religious ceremonies, and by refusing to allow them to take eagles within their reservation. Parties filed cross-motions for partial summary judgment.

* Holding: The District Court, Alan B. Johnson, J., held that:
(1) plaintiffs lacked standing to seek declaratory judgment that FWS violated RFRA by delaying issuance of their eagle take permit;
(2) plaintiffs had standing to seek declaratory judgment that FWS's refusal to allow eagle take within reservation violated RFRA;
(3) FWS's decision did not violate RFRA; and
(4) interlocutory appeal was not warranted.
Government's motion granted.

Hardwick v. United States
2012 WL 6524600
No. 5:79?CV?1710?JF.
United States District Court, N.D. California, San Jose Division, Dec. 13, 2012

*Synopsis: (from the opinion) "Mona Bragdon (?Bragdon?) and Anthony Ramirez (?Ramirez?) (collectively, ?Plaintiffs?) move to enforce a stipulation and judgment entered in this case in 1983. The motion is opposed by the United States of America and the Picayune Rancheria of Chukchansi Indians (?the Chukchansi Tribe? or ?the Tribe?), both of which were parties to the stipulation and judgment......The United States and the Tribe argue that although Plaintiffs have styled their motion as a motion to enforce a stipulated judgment, Plaintiffs actually are challenging the legitimacy of the Tribe's governing body, which to date has been controlled by their rivals, the Wyatt family. As noted above, the BIA has recognized and dealt with the Tribe's governing body since 1989."

*Holdings: (not yet available)

United States v. Tsosie
2012 WL 6163075
No. CR?12?08147?PHX?GMS.
United States District Court, D. Arizona, Dec. 11, 2012

*Synopsis: (from the opinion) "Section 28?661 requires that, in those cases in which a person has been injured in an accident, the driver is required to remain on the scene and provide assistance to that person. Because, in this accident, Tsosie failed to remain on the scene and provide assistance to Spencer, who was injured in the accident, he committed a crime against Spencer, the person to whom the statute specifies the assistance was due. Furthermore, because Tsosie and Spencer were both Indians, the crime he committed was "committed by one Indian against the person ... of another Indian" and thus falls within the exception to the ICCA."

*Holdings: (not yet available)

State of Wisconsin v. Mariner
2012 WL 6082720
No. 4:09?cr?101.
United States District Court, D. North Dakota, Northwestern Division, Dec. 5, 2012

*Synopsis: (from the opinion) "Mariner first argues the district court lacked jurisdiction over him because the United States no longer has jurisdiction over crimes committed by Indians on the Fort Berthold Reservation. Mariner contends that only the State of North Dakota has jurisdiction over such offenses. Mariner contends the factual stipulation entered into by the parties for trial (that the alleged offenses occurred in Indian country) was insufficient to confer jurisdiction on the federal court. Mariner failed to raise this issue at trial or on direct appeal. Therefore, he must demonstrate cause and prejudice before the Court may consider this claim in a habeas petition. While ineffective assistance of counsel can constitute "cause" for failing to raise a claim, see United States v. Frady, 456 U.S. 152, 167?68 (1982), there is no cause in this instance as Mariner's allegation of a lack of federal jurisdiction is meritless, and defense counsel was not ineffective for failing to pursue the matter at trial or on direct appeal. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir.1994). The United States, not the State of North Dakota, has jurisdiction over the major crimes committed by Indian persons on the Fort Berthold Reservation."

*Holdings: (not yet available)

State of Wisconsin v. Ho-Chunk Nation
Arbritration Award
Motion to Vacate, Reply, and Brief from Turtle Talk
12-cv-505-bbc.
United States District Court, W.D. Wisconsin, December 5, 2012

*Synopsis: (from the opinion) "Petitioner State of Wisconsin has brought this petition under 9 U.S.C. ? 9 to confirm an arbitration award that enjoins respondent Ho-Chunk Nation from offering "non-banking poker" at DeJope Gaming Facility in Madison, Wisconsin. Respondent seeks to vacate the award under 9 U.S.C. ? 10(a)(4) on the ground that it did not agree to arbitrate this dispute and that the arbitrator exceeded his authority."

*Holdings: (not yet available)

November

New York v. Shinnecock Indian Nation
701 F.3d 101
No. 08?1194?cv.
United States Court of Appeals, Second Circuit, November 28, 2012.

*Synopsis: (from the opinion) Following disposition of this appeal on June 25, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

*Holdings: (not available)

United States v. Wahchumwah
Briefs from Turtle Talk
704 F.3d 606
No. 11-30101.
United States Court of Appeals, Ninth Circuit, November 27, 2012.

*Synopsis: The opinion of the United States Court of Appeals, Ninth Circuit, in U.S. v. Wahchumwah, published in the advance sheet at this citation, 704 F.3d 606, was withdrawn from the bound volume because it was amended and superseded on denial of rehearing March 4, 2013. For superseding opinion, see 2013 WL 811610.

Desautel v. Dupris
Briefs from Turtle Talk
490 Fed.Appx. 914
No. 11-35926.
United States Court of Appeals, Ninth Circuit, November 26, 2012.

*Synopsis: (from the opinion) "Shawn Lawrence DesAutel, Tamara Desautel Davis and Tonia Rene Desautel, adopted members of the Colville Confederated Tribes, appeal pro se from the district court's judgment dismissing their action alleging that defendants violated their First, Fifth, Thirteenth, and Fourteenth Amendment rights during proceedings in which plaintiffs challenged their enrollment status before the Colville Tribal Courts."

*Holdings: (not yet available)

Valenzuela v. Silversmith
Briefs from Turtle Talk
699 F.3d 1199
No. 11?2212.
United States Court of Appeals, Tenth Circuit, November 14, 2012.

*Synopsis: Member of Indian tribe petitioned for writ of habeas corpus, seeking relief from tribal court convictions and his sentence. The United States District Court for the District of New Mexico dismissed petition. Petitioner appealed.

*Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) taking less burdensome course of disposing of appeal without addressing mootness issue was warranted;
(2) member was required to exhaust his tribal court remedies before filing his petition for writ of habeas corpus in federal court;
(3) member had tribal court remedies that he had to exhaust; and
(4) failure of member to file habeas petition in tribal court could not be excused from requirement to exhaust.
Affirmed.

Miller v. Wright
705 F.3d 919
No. 11-35850.
United States Court of Appeals, Ninth Circuit, November 13, 2012.
Amended January 14, 2013.

*Synopsis: Native American cigarette retailer and his customers brought action against Indian tribe, tribal chairman, and head of tribe's tax department alleging that imposition of cigarette sales taxes by tribe on non-Native-Americans in Indian country pursuant to agreement between State of Washington and tribe was illegal. The United States District Court for the Western District of Washington, Ronald B. Leighton, J., 2011 WL 4712245, dismissed action for lack of subject matter jurisdiction in light of tribe's sovereign immunity. Plaintiffs appealed.

*Holdings: The Court of Appeals, Rawlinson, Circuit Judge, held that:
(1) tribe did not implicitly waive its sovereign immunity by entering into cigarette tax contract with State of Washington;
(2) tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures;
(3) tribal immunity was not preempted by federal antitrust laws;
(4) tribe's sovereign immunity extended to its officials;
(5)Ex Parte Young barred complaint to extent that plaintiffs sought monetary relief; and (6) res judicata barred action.
Affirmed.

Arctic Slope Native Ass'n, Ltd. v. Sebelius
699 F.3d 1289
No. 2011?1485.
United States Court of Appeals, Federal Circuit, November 9, 2012.

*Synopsis: Indian Self?Determination and Education Assistance Act (ISDA) contractor appealed from a decision of the Civilian Board of Contract Appeals, 2011 WL 2570533, dismissing its breach-of-contract claim under the Contract Disputes Act (CDA) as time-barred.

*Holdings: The Court of Appeals, Reyna, Circuit Judge, held that equitable tolling of statutory time limit for contractor's breach-of-contract claim under the Contract Disputes Act (CDA) was warranted.
Reversed and remanded.

Coffey v. United States
906 F.Supp.2d 1114
No. CIV 08-0588 JB/LFG.
United States District Court, D. New Mexico, Nov. 25, 2012

*Synopsis: Mother of decedent, a Native American who died in county correctional institution, brought actions, later consolidated, on behalf of her son and his children against government, alleging wrongful death and negligence claims arising from his treatment while in institution.

*Holdings: After two-day bench trial, the District Court, James O. Browning, J., held that:
(1) notice provided to Bureau of Indian Affairs (BIA) in mother's administrative claim was sufficient, thereby providing jurisdiction over mother's wrongful death and negligence claims;
(2) BIA's decision whether to screen and transfer inmate were not choices susceptible to policy analysis, and thus, discretionary-function exception to Federal Tort Claims Act (FTCA) did not preclude jurisdiction;
(3) mother's negligent screening claims were precluded;
(4) mother's negligent transfer claims were precluded; and
(5) mother's wrongful death claims, arising under FTCA, were precluded.
So ordered.

Grand Canyon Skywalk Development v. 'Sa' Nyu Wa, Inc.
2012 WL 6101901
No. CV?12?8030?PCT?DGC.
United States District Court, D. Arizona, Nov. 21, 2012

*Synopsis: (from the opinion) "Plaintiff Grand Canyon Skywalk Development, LLC ("GCSD") filed an application for confirmation of arbitration award which was randomly assigned to Judge Frederick J. Martone. No. 12?cv?08183, Doc. 1. Defendant 'Sa' Nyu Wa, Inc. ("SNW") filed a motion for judicial transfer pursuant to Local Rule 42.1. Doc. 63. The motion has been fully briefed (Docs.64, 66), and neither party has requested oral argument. For the reasons set forth below, the Court will grant Defendant's motion."

*Holdings: (not yet available)

Jackson v. United States
107 Fed.Cl. 495
No. 11?671 L.
United States Court of Federal Claims, Nov. 20, 2012

*Synopsis: Members of Indian tribe brought suit against the United States in the United States District Court for the District of Idaho, alleging negligence and breach of fiduciary duty. The District Court granted summary judgment against tribe members as to negligence claims, but transferred breach of fiduciary duty claims to United States Court of Federal Claims. Defendant moved for judgment on the pleadings.

*Holdings: The Court of Federal Claims, Block, J., held that:
(1) claims filed simultaneously were "pending" claims under statute limiting jurisdiction of the Court of Federal Claims, and
(2) Court of Federal Claims lacked jurisdiction over transferred claims because they arose out of same operative facts as pending, nontransferred claims.
Dismissed.

Siemion v. Stewert
2012 WL 5932996
Findings and Recommendation of United States Magistrate Judge
Cv. No. 11?120?BLG?RFC?CSO.
United States District Court, D. Montana, Billings Division, November 7, 2012

*Synopsis: (from the Findings and Recommendation) "Siemion alleges that Passes: (1) conspired with others to deprive her of lands she previously leased for her bison operation, id. at 10?11; (2) cut fences and opened gates allowing her bison to escape and be rounded up and held by others, id. at 11; (3) assaulted her son and husband, id.; (4) "concocted some sort of plan to fraudulently take control of all Crow Tribal Lands," including her land and home, id.; and (5) was involved in the sale of a horse that belonged to her granddaughter at a Bureau of Indian Affairs horse sale, id. at 11?12."

"Passes seeks dismissal of Siemion's claims against him arguing that Siemion has failed to: (1) first present her claims against him to the Tribal Court before bringing them in federal court, Passes' Br. (DKT 73) at 4?5; (2) establish that this Court has subject matter jurisdiction over this action under Rules 8(a)(1) and 12(b)(1),FN1 id. at 5?7; (3) bring her claims within the applicable limitations period, id. at 7?8; (4) join as a defendant the Crow Tribe of Indians, a necessary and indispensable party under Rule 19, id. at 8?9; and (5) state a claim upon which relief can be granted as required by Rule 12(b)(6), id. at 9?11. In the alternative to dismissal, Passes seeks an order for a more definite statement of Siemion's claims against him, under Rule 12(e). Id. at 11?14. Finally, Passes requests a hearing under Rule 12(I). Id. at 14."

*Holdings: (not yet available)

Mark Wandering Medicine v. McCulloch
2012 WL 5414022
No. CV?12?135?BLG?RFC.
United States District Court, D. Montana, Billings Division, November 6, 2012

*Synopsis: Residents of Indian reservations brought action against Montana's Secretary of State and Montana county officials, seeking order requiring Secretary and officials to open satellite county offices with in-person absentee voting and late voter registration on three Indian reservations, and alleging violations of Voting Rights Act and Equal Protection Clause. Residents moved for mandatory preliminary injunction directing Secretary and officials to immediately open satellite offices.

*Holdings: The District Court, Richard F. Cebull, J., held that preliminary injunction would not be issued, given residents' unlikelihood of success on merits and hardship that would be imposed on Secretary if preliminary injunction were granted.
Motion denied.

Dish Network Corporation v. Tewa
2012 WL 5381437
No. CV 12?8077?PCT?JAT.
United States District Court, D. Arizona, November 1, 2012

*Synopsis: (from the opinion) "In 2009, the Hopi Tribe Office of Revenue Commission (the "Hopi Revenue Commission") informed Dish Service that it had to apply for and obtain a license to do business on the Hopi Reservation and pay an annual fee pursuant to Hopi Tribal Ordinance 17A ("Ordinance 17A"). (Id. at ? 18). Dish Service contended that it should not need to obtain the license or pay the fee because Ordinance 17A is preempted by section 303(v) of the Communications Act of 1934, as amended, and local fees or taxes on direct-to-home satellite services are preempted by section 152 of the Communications Act of 1934, as amended."

*Holdings: (not yet available)

Petro-Hunt, L.L.C. v. Danks
2012 WL 12897110
Case No. 4:12-cv-078
United States District Court, D. North Dakota, Northwestern Division, November 1, 2012

*Synopsis: (from the background) "Petro-Hunt filed this action on June 15, 2012, seeking a declaration that the Tribal Court lacks personal jurisdiction over Petro-Hunt and lacks subject matter jurisdiction over the dispute. Petro-Hunt is seeking injunctive relief prohibiting the Tribal Court from adjudicating this dispute. The Danks filed an answer on July 10, 2012. Gillette, acting pro se without assistance from the tribal legal department, filed a motion to dismiss on July 18, 2012. Petro-Hunt filed a response to the motion on August 8, 2012."

*Holdings: (not yet available)

October

United States v. Lebeau
Briefs from Turtle Talk
490 Fed. Appx. 831
No. 11-3428.
United States Court of Appeals, Eighth Circuit, October 31, 2012.

*Synopsis: Following imposition of revocation sentence, the United States District Court for the District of South Dakota, Karen E. Schreier, Chief Judge, reimposed special condition of supervised release. Defendant appealed.

*Holdings: The Court of Appeals held that reimposition of special condition of supervised release did not constitute plain error.
Affirmed.

Muscogee (Creek) Nation Division of Housing v. HUD
Briefs from Turtle Talk
698 F.3d 1276
No. 11-7040.
United States Court of Appeals, Tenth Circuit, October 30, 2012.

*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. The United States District Court for the Eastern District of Oklahoma, James H. Payne, J., 819 F.Supp.2d 1225, granted HUD's motion to dismiss. Tribe appealed.

*Holdings: The Court of Appeals, McKay, Circuit Judge, held that:
(1) HUD did not exceed its statutory authority by promulgating requirement that investments of block grant funds not exceed two years in length;
(2) court had subject matter jurisdiction to consider whether HUD was authorized to demand remittance of interest earned in violation of that requirement; and
(3) HUD's demand for remittance was consistent with federal law.
Affirmed.

Related News Stories: US Tenth Circuit Court of Appeals rules against Muscogee nation, HUD prevails in investment dispute (Indian Country Today) 11/3/12

United States v. Cook
698 F.3d 667
No. 12-1366.
United States Court of Appeals, Eighth Circuit, October 26, 2012.

*Synopsis: Defendant was convicted of conspiracy to possess with intent to distribute oxycodone and assault resulting in serious bodily injury, following entry of guilty plea separate proceedings in the United States District Court for the District of Minnesota, Joan N. Ericksen, J., and Donovan W. Frank, J., and was sentenced to 165 months' imprisonment for drug charge and 120 months' imprisonment for assault charge, to run concurrently. Defendant appealed sentence.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) trial court did not abuse its discretion in finding that defendant was not entitled to downward variance;
(2) trial court, during sentencing for drug charge, did not abuse its discretion in considering assault charge in denying defendant sentence reduction for substantial government assistance; and
(3) trial court did not abuse its discretion in imposing disparate sentences upon defendant and codefendant.
Affirmed.

Friends of the Everglades v. EPA
699 F.3d 1280
No. 08-13652
United States Court of Appeals, Eleventh Circuit, October 26, 2012.

*Synopsis: Environmental advocacy organizations, nine states, Canadian province, and Indian tribe petitioned for review of final rule issued by Environmental Protection Agency (EPA), 40 CFR PART 122, creating permanent exemption from Clean Water Act (CWA) permit requirements for pollutants discharged from transfers of waters of United States. Judicial Panel on Multidistrict Litigation (MDL) consolidated petitions, and state water management district and sugar company intervened to defend water-transfer rule.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) CWA jurisdictional provision governing effluent or other limitations did not apply;
(2) CWA jurisdictional provision governing issuance or denial of permits did not apply; and
(3) hypothetical jurisdiction could not be exercised.
Petitions dismissed.

United States v. Wilson
Briefs from Turtle Talk
699 F.3d 235
Docket No. 11-915.
United States Court of Appeals, Second Circuit, October 25, 2012.

*Synopsis: Defendant indicted for possession with intent to distribute 50 kilograms or more of marijuana moved to suppress evidence obtained in the search of his vehicle. The United States District Court for the Northern District of New York, David N. Hurd, J., 754 F.Supp.2d 450, granted the motion. The government appealed.

*Holdings: The Court of Appeals, Pooler, Circuit Judge, held that:
(1) officers had probable cause to stop defendant's vehicle;
(2) officer's failure to follow Immigration and Customs Enforcement (ICE) directive did not render stop unconstitutional; and
(3) warrantless search of defendant's vehicle was warranted under automobile exception.
Reversed and remanded.

Onondaga Nation v. New York
500 Fed.Appx. 87
No. 10-4273.
United States Court of Appeals, Second Circuit, October 19, 2012.

*Synopsis: Indian tribe brought action against State of New York to recover ancestral land. The United States District Court for the Northern District of New York, Kahn, J., 2010 WL 3806492, dismissed action. Tribe appealed.

*Holdings: The Court of Appeals held that equitable bar on recovery of ancestral land foreclosed tribe's claims.
Affirmed.

Northern Arapaho Tribe v. Harnsberger
Briefs from Turtle Talk
697 F.3d 1272
No. 09-8098.
United States Court of Appeals, Tenth Circuit, October 18, 2012.

*Synopsis: Northern Arapaho Tribe (NAT) brought action against state and county officials seeking injunction against state's imposition of certain vehicle and excise taxes on Indians living in purported Indian country. City intervened, and Eastern Shoshone Tribe (EST) and United States were joined as third-party defendants. The United States District Court for the District of Wyoming, 660 F.Supp.2d 1264, dismissed EST and United States as parties, and dismissed complaint. NAT appealed.

*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) EST was required party;
(2) EST's sovereign immunity prevented its joinder;
(3) district court did not abuse its discretion in dismissing action for failure to join EST as indispensable party; and
(4) dismissal was without prejudice.
Affirmed in part, vacated in part, and remanded.

Related News Story: US tenth circuit court upholds Wind River tax case dismissal (Indian Country Today) 10/27/12

Miccosukee Tribe of Indians of Florida v. United States
698 F.3d 1326
No. 11?14825.
United States Court of Appeals, Eleventh Circuit, October 15, 2012.

*Synopsis: Tribe petitioned to quash summons issued by Commissioner of Internal Revenue Service (IRS) to third-party financial institutions to determine whether tribe had complied with federal withholding requirements on grounds of sovereign immunity, improper purpose, relevance, bad faith, and overbreadth. The United States District Court for the Southern District of Florida, No. 1:10-cv-23507-ASG, Alan S. Gold, J., 730 F.Supp.2d 1344, and 2011 WL 3300164, denied petitions, and 2011 WL 5508802, denied tribe's motion to stay pending appeal. Tribe appealed.

*Holdings: The Court of Appeals, Pryor, Circuit Judge, held that:
(1) tribe could not rely on tribal sovereign immunity to quash summonses;
(2) summonses were issued for proper purpose; and
(3) tribe lacked standing to challenge third-party summons as overbroad.
Affirmed.

Related News Stories: IRS wins key legal battle as it seeks to collect millions in taxes from the Miccosukees (Miami Herald) 10/15/12

U.S. v. Jackson
697 F.3d 670
No. 11?3718.
United States Court of Appeals, Eighth Circuit, October 2, 2012.

*Synopsis: After his motion to dismiss the indictment was denied, Indian entered a conditional plea of guilty in the United States District Court for the District of Minnesota, Donovan W. Frank, J., 2011 WL 7395040, to assault with a dangerous weapon, and discharging a firearm during the commission of a crime of violence. Indian appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that record was insufficient to support ruling that reservation on which alleged assault occurred was not diminished by 1905 Act.
Vacated and remanded.

Evans v. United States
107 Fed.Cl. 442
Nos. 10?536L, 11?676L..
United States Court of Federal Claims, October 22, 2012

*Synopsis: Claimant brought action against the United States alleging he failed to inherit trust, land, and stock upon the death of his biological mother, who was an Alaska Native. Government moved to dismiss.

*Holdings: The Court of Federal Claims, Horn, J., held that:
(1) court lacked subject matter jurisdiction;
(2) claim accrued when claimant reached the age of majority; and
(3) claimant failed to raise any allegations regarding the management or sale of Indian land held in trust.
Motion granted.

Equal Employment Opportunity Commission v. Peabody Western Coal Company
Motions and Response from Turtle Talk
2012 WL 5034276
No. 2:01?cv?01050 JWS.
United States District Court, D. Arizona, October 18, 2012

*Synopsis: (from the opinion) "While it is likely that Congress intended to only exempt Indian employment preferences in general and not tribe-specific preferences from Title VII in situations where an employer discriminates against members of a particular tribe without oversight or approval by the federal government, that is not the situation presented in this case."

*Holdings: (not yet available)

Farmer Oil and Gas Properties, LLC v. Southern Ute Indian Tribe
899 F.Supp.2d 1097
Civil No. 12?cv?00313?LTB.
United States District Court, D. Colorado, October 12, 2012

*Synopsis: Property owner brought action against Indian tribe to resolve ownership of coalbed methane (CBM) gas beneath parcel of land within tribe's reservation. Tribe moved to dismiss.

*Holdings: The District Court, Babcock, J., held that:
(1) tribe did not waive its sovereign immunity when tribe filed suit claiming ownership of CBM gas by virtue of its ownership of coal under parcel;
(2) settlement agreement between Indian tribe and mining company did not constitute waiver of tribe's sovereign immunity; and
(3) res judicata did not preclude tribe from asserting ownership over CBM gas.
Motion granted.

United States v. Washington
2012 WL 4846239
Nos. CV70?9213RSM, 11?SP?02.
United States District Court, W.D. Washington, at Seattle, October 11, 2012

*Synopsis: (from the opinion) "This matter is before the Court for consideration of the motion for summary judgment filed by the Requesting Tribes, namely the Jamestown S'Klallam, Lower Elwha Klallam, and Port Gamble S'Klallam Tribes (together, “the S'Klallam”). Dkt. # 40. They request that the Court grant summary judgment on the issues presented in their Request for Determination filed November 8, 2011. Dkt. # 1. The Request for Determination asks the Court to find that the actions of the Lummi Nation in fishing in the “case area” is not in conformity with Final Decision # I."

*Holdings: (not yet available)

Wilbur v. Makah Tribal Court
2012 WL 4795667
No. C12?5484 BHS.
United States District Court, W.D. Washington, at Tacoma, October 9, 2012

*Synopsis: (from the opinion) " This matter comes before the Court on Respondent Makah Tribal Court's (“Tribal Court”) motion to dismiss (Dkt.6)." ... "On June 5, 2012, the Petitioner James G. Wilbur (“Wilbur”) filed a petition for writ of habeas corpus. Dkt. 1?1. On July 26, 2012, the Tribal Court filed a motion to dismiss Wilbur's petition for failure to exhaust tribal remedies and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. (“Rule”) 12(b)(6). Dkt. 6. On August 17, 2012, Wilbur responded. Dkt. 9. On August 24, 2012, the Tribal Court replied. Dkt. 11."

*Holdings: (not yet available)

George v. United States
901 F.Supp.2d 1179
No. C 11?06159 RS.
United States District Court, N.D. California, San Francisco Division, October 4, 2012

*Synopsis: Native American brought action under the Administrative Procedure Act (APA) against the United States, Secretary of the Interior, and Assistant Secretary?Indian Affairs challenging denial of her application for enrollment in the Hoopa Valley Tribe (HVT) under the Hoopa?Yurok Settlement Act (HYSA). The parties filed cross-motions for summary judgment.

*Holdings: The District Court, Richard Seeborg, J., held that:
(1) AS?IA did not withhold agency action on Native American's application for enrollment;
(2) Department of the Interior's (DOI) interpretation of enrollment criteria was entitled to Chevron deference; and
(3) decision to deny enrollment was not arbitrary and capricious.
Ordered accordingly.

Oglala Sioux Tribe v. TGS Anadarko, LLC v. Schwarting
894 F.Supp.2d 1195
No. 4:12?CV?3027.
United States District Court, D. Nebraska, October 1, 2012

*Synopsis: Indian tribe brought action against several manufacturers, distributors, and retailers of beer and other alcoholic beverages, alleging that the sale of the beverages in a town located outside the tribe's reservation contributed significantly to tragic conditions on the reservation. Defendants moved to dismiss.

*Holdings: The District Court, John M. Gerrard, J., held that Court lacked jurisdiction.
Motions granted.

September

Native Village of Kivalina v. Exxonmobil Corporation
696 F.3d 849
No. 09?17490.
United States Court of Appeals, Ninth Circuit, September 21, 2012.

*Synopsis: Alaskan city located on tip of barrier reef and native Alaskan tribe, members of which resided in city, brought action for damages under federal common-law claim of public nuisance, and dependent civil conspiracy claim, against multiple oil, energy, and utility companies, alleging that companies' massive greenhouse gas emissions had resulted in global warming which in turn severely eroded land upon which city was situated. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 663 F.Supp.2d 863, granted companies' motions to dismiss for lack of subject matter jurisdiction. Plaintiffs appealed.

*Holdings: The Court of Appeals, Thomas, Circuit Judge, held that Clean Air Act (CAA) and agency action authorized thereunder displaced federal common law, precluding claim for public nuisance.
Affirmed.

Maxwell v. County of San Diego
697 F.3d 941
Nos. 10?56671, 10?56706.
United States Court of Appeals, Ninth Circuit, September 13, 2012.

*Synopsis: Shooting victim's family members filed ? 1983 action alleging that sheriff's officers and tribal fire department and its paramedics unreasonably delayed in obtaining appropriate medical treatment for victim, resulting in her death, and that officers unreasonably seized family members and employed excessive force. The United States District Court for the Southern District of California, John A. Houston, J., denied officers' motion for summary judgment and dismissed claims against tribal defendants. Parties filed cross-appeals.

*Holdings: The Court of Appeals, Farris, Circuit Judge, held that:
(1) officers who prevented victim's ambulance from leaving crime scene were not entitled to qualified immunity;
(2) officers were not entitled to qualified immunity with regard to unreasonable seizure claim;
(3) summary judgment on qualified immunity grounds was not warranted with regard to excessive force claim;
(4) summary judgment in supervisors' favor on qualified immunity grounds was not warranted; and (5) paramedics for tribal fire department did not enjoy tribal sovereign immunity.
Affirmed in part, reversed in part, and remanded.

Gila River Indian Community v. U.S.
Briefs from Turtle Talk
697 F.3d 886
No. 11-15631.
United States Court of Appeals, Tenth Circuit, September 11, 2012.

*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. The United States District Court for the District of Arizona, David G. Campbell, J., 776 F.Supp.2d 977, granted summary judgment for the government, and city and other parties appealed.

*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) Gila Bend Indian Reservation Lands Replacement Act created a cap only on land held in trust for the tribe, not on total land acquisition by the tribe under the Act;
(2) Department of Interior's interpretation of Act so as to exclude parcel located on a county island fully surrounded by city land from city's corporate limits was reasonable; and
(3) Act was valid exercise of Congress's power under the Indian Commerce Clause.
Affirmed.

Related News Stories: 9th Circuit backs Tohono O'odham Nation land-into-trust bid (Indianz.com) 9/11/12

Gilmore v. Weatherford
694 F.3d 1160
No. 11-5025.
United States Court of Appeals, Tenth Circuit, September 4, 2012.

*Synopsis: Indian tribal members with restricted, undivided interests in mine tailings, or "chat," that was being sold and removed by other parties who also had interest in chat brought cause of action against these other parties, as well as against the Secretary of the Interior and several Bureau of Indian Affairs (BIA) officials, seeking to compel accounting, to obtain other equitable relief, and to recover on theory that private party defendants were guilty of conversion in removing/selling this chat without approval of the Secretary of the Interior. The United States District Court for the Northern District of Oklahoma, Claire V. Eagan, J., 748 F.Supp.2d 1299, dismissed claims against federal defendants based on plaintiffs' failure to exhaust their administrative remedies, and later ruled, 2010 WL 5462476, that it did not have federal question jurisdiction over plaintiffs' accounting and conversion claims against private parties. Plaintiffs appealed.

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) doctrine of exhaustion of administrative remedies applies as matter of judicial discretion to common law claims; abrogating Otoe?Missouria Tribe v. Kempthorne, 2008 U.S. Dist. LEXIS 99548 (W.D.Okla. Dec. 10, 2008); Tonkawa Tribe of Indians of Oklahoma v. Kempthorne, 2009 U.S. Dist. LEXIS 21484 (W.D.Okla. Mar. 17, 2009); and Seminole Nation v. Salazar, 2009 U.S. Dist. LEXIS 27836 (E.D.Okla. Mar. 31, 2009);
(2) district court did not abuse its discretion in requiring tribal members to first exhaust their administrative remedies, as prerequisite to pursuing claims against federal defendants in district court;
(3) state law accounting claim asserted by Indian tribal members against private parties who also had interest in chat was not claim over which district court could exercise federal question jurisdiction; but
(4) conversion claim necessarily presented a substantial question of federal law, regarding need for the Secretary to approve disposition of restricted Indian personalty, and was claim over which district court could exercise federal question jurisdiction.
Affirmed in part, reversed in part, and remanded.

United States v. 43.47 acres of land, more or less, situated in the County of Litchfield, Town of Kent
896 F.Supp.2d 151
Civil Nos. 2:85?cv?01078(AWT), 3:98?cv?01113(AWT), 3:00?cv?00820(AWT).
United States District Court, D. Connecticut, September 30, 2012

*Synopsis: Group of Native Americans brought action against United States and other government landholders arguing that they were dispossessed of land in violation of the Indian Nonintercourse Act. The landholders moved for judgment on the pleadings.

*Holdings:The District Court, Alvin W. Thompson, J., held that:
(1) court would defer to Bureau of Indian Affairs (BIA) determination that Native Americans lacked tribal status, and
(2) Native Americans were collaterally estopped from arguing in district court that they qualified for tribal status.
Motion granted.

Related News Stories: Schaghticoke Tribe's bid to win back land in Kent dead; Is it the last chapter in the saga? (Litchfield County Times) 10/10/12

Apache Tribe of Oklahoma v. TGS Anadarko, LLC
2012 WL 4482120
Nos. CV?11?1078?D, CJ?2011?108.
United States District Court, W.D. Oklahoma, September 28, 2012

*Synopsis: (from the opinion) "Plaintiff Dolgen operates a Dollar General store on trust land on the Choctaw Indian Reservation in Choctaw, Mississippi... At all relevant times, Dale Townsend was employed as a store manager. According to defendants, in 2003, defendant John Doe, a minor tribe member, was molested by Townsend during a time when Doe was assigned to work at the Dollar General store as part of the Tribe's Youth Opportunity Program (TYOP), a work experience program run by the Tribe pursuant to which tribal youth were placed with local businesses to gain work experience."

*Holdings: (not yet available)

Johnson v. Tracy
2012 WL 4478801
No. CV?11?01979?PHX?DGC.
United States District Court, D. Arizona, September 28, 2012
See also Report and Recommendation of August 10th, 2012

*Synopsis: (from the opinion) "On October 11, 2011, Petitioner Sherwin Johnson filed a pro se Petition for Writ of Habeas Corpus pursuant to 25 U.S.C. ? 1303 and 28 U.S.C. ? 2241. Doc. 1. Petitioner alleges that the procedures of his trial by the Gila River Indian Community violated the Tribal Law and Order Act ("TLOA"), Pub.L. No. 111?121, tit. II (Jul. 29, 2010), 124 Stat. 2261?2301. Doc. 1 at 5?12. The TLOA amended the Indian Civil Rights Act ("ICRA"), 25 U.S.C. ? 1302.

*Holdings: (not yet available)

Swanda Brothers, Inc. v. Chasco Constructors, Ltd., L.L.P.
2012 WL 4382612
No. CIV?08?199?D.
United States District Court, W.D. Oklahoma, September 25, 2012

*Synopsis: (from the opinion) "Plaintiff Swanda Brothers, Inc. ("Swanda") brought this lawsuit to collect amounts it claims are due and owing to it by Chasco for work performed by Swanda as a subcontractor on the construction of the Kiowa Casino located in Cotton County, Oklahoma (the "Casino"). Chasco, as the general contractor for the Casino, executed a contract with KCOA to build the Casino (the "Construction Agreement"), and it engaged Swanda and others as subcontractors to perform certain aspects of the construction. Before the Court is the motion [Doc. No. 168] of Defendant Chasco Constructors, Ltd., L.L.P. ("Chasco") to impose sanctions against the Kiowa Casino Operations Authority ("KCOA") for spoliation of evidence. KCOA has filed a response, and Chasco has replied."

*Holdings: (not yet available)

Yakama Nation Housing Authority v. United States
106 Fed.Cl. 689
No. 08?939C
United States Court of Federal Claims, September 25, 2012

*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. The Court of Federal Claims, Smith, Senior Judge, 102 Fed.Cl. 478, granted in part and denied in part government's motion to dismiss. Authority moved to vacate, alter, or amend that order.

*Holdings: The Court of Federal Claims, Smith, Senior Judge, held that authority stated separate claim for relief under NAHASDA section regarding remedies for non?compliance.
Motion granted.

Segura v. Colombe
895 F.Supp.2d 1141
Civ. No. 11?0926 MV/WDS.
United States District Court, D. New Mexico, September 24, 2012

*Synopsis: Arrestee brought action against board of county commissioners, alleging claims pursuant to ? 1983 and the New Mexico Tort Claims Act (NMTCA) following arrest by tribal police officer who was appointed and commissioned as a county deputy sheriff. Board moved for summary judgment.

*Holdings: The District Court, Martha V?zquez, J., held that:
(1) officer was not a law enforcement officer under the NMTCA;
(2) officer was an independent contractor; and
(3) board did not have immediate supervisory responsibilities over officer.
Motion granted in part and denied in part.

Native American Council of Tribes v. Weber
897 F.Supp.2d 828
United States District Court, D. South Dakota, September 19, 2012

*Synopsis: Native American organization and inmates brought action against Secretary of South Dakota Department of Corrections, alleging Department's policy banning all tobacco from its facilities violated Religious Land Use and Institutionalized Persons Act (RLUIPA).

*Holdings: Following a bench trial, the District Court, Karen E. Schreier, Chief Judge, held that:
(1) inmates' use of tobacco was a religious exercise protected under RLUIPA;
(2) policy placed a substantial burden on inmates' exercise of their religious beliefs; and
(3) policy was not supported by a compelling governmental interest.
Ordered accordingly.

Related News Stories: Indian inmates in South Dakota win religious freedom lawsuit (Indianz.com) 9/20/12, Judge: SD prison tobacco ban curbs religion rights (FresnoBee.com) 9/19/12

Rivera v. Puyallup Tribe of Indians
2012 WL 4023350
No. 3:12?CV?05558?RBL.
United States District Court, W.D. Washington, September 12, 2012

*Synopsis: (from the opinion) "This matter is before the Court on Defendants' Motion to Dismiss under Rule 12(b)(1) for lack of jurisdiction . Plaintiff Michelle Rivera presents claims arising from her termination as Director of the Tribal Council Office. Defendants Puyallup Tribe of Indians and the individual Tribal Council Members argue that there is no federal question jurisdiction, and they have sovereign immunity in federal court. Rivera argues that federal jurisdiction is appropriate because no other forum is available. After reviewing the materials submitted with this motion, including counsels' nine back and forth declarations, Defendants' Motion to Dismiss is GRANTED, and the case is DISMISSED with prejudice."

*Holdings: (not yet available)

New Gaming Systems, Inc. v. National Indian Gaming Commission
896 F.Supp.2d 1093
No. CIV?08?0698?HE.
United States District Court, W.D. Oklahoma, September 13, 2012

*Synopsis: Gaming machine lessor brought action against National Indian Gaming Commission (NIGC), its chairman and vice chairman, the Sac and Fox Indian Nation, and Nation's business enterprise, seeking judicial review of NIGC's final decision under Administrative Procedure Act (APA), that machine lease and promissory act constituted a management contract under Indian Gaming Regulatory Act (IGRA).

*Holdings: The District Court, Joe Heaton, J., held that:
(1) IGRA implementing regulation was not void for vagueness;
(2) NIGC's construction of IGRA in issuing implementing regulation was not contrary to clear congressional intent;
(3) lessor was not entitled to a hearing prior to NIGC's final decision; and
(4) machine lease and promissory note constituted a ?management contract? for the operation of a gaming facility within the meaning of IGRA.
Affirmed.

Oneida Tribe of Indians of Wisconsin v. Village of Hobart, Wisconsin
891 F.Supp.2d 1058
No. 10-C-137.
United States District Court, E.D. Wisconsin, September 5, 2012

*Synopsis: Indian tribe filed action seeking a declaratory judgment that village lacked authority to impose charges under its storm water management utility ordinance on parcels of land held in trust by the United States for the tribe located on reservation and within village. The tribe also sought injunctive relief enjoining the village from attempting to enforce its ordinance upon tribal lands. Tribe filed motion for summary judgment. United States filed motion for summary judgment on village's third-party complaint against the United States, alleging that the United States, as holder of the bare title to the tribal trust lands, had to pay the storm water fees if the tribe was not responsible for doing so.

*Holdings: The District Court, William C. Griesbach, J., held that:
(1) village's storm water management charges constituted an impermissible tax upon tribal trust property, and
(2) Clean Water Act (CWA) provision requiring federal facilities to comply with the specified state and local water pollution control requirements was not a waiver of sovereign immunity permitting village to impose on United States village's storm water management charges upon the property held in trust for the benefit of Indian tribe.
Motions granted.

Nambe Pueblo Housing Entity v. U.S. Dept. Housing and Urban Development
2012 WL 3834811
11?CV?01516?RPM.
United States District Court, D. Colorado, September 4, 2012

*Synopsis: (from the opinion) "Nambe Pueblo Housing Entity (Nambe Pueblo) filed this action pursuant to the Administrative Procedure Act (APA), 5 U.S.C. ?? 701?06, challenging HUD determinations that resulted in the elimination of certain Mutual Help units from the Formula Current Assisted Stock (FCAS) component of Nambe Pueblo's IHBG allocation and reductions to Nambe Pueblo's grant allocations for fiscal year (FY) 2006 and subsequent years."

*Holdings: (not yet available)

 

August

Contour Spa at the Hard Rock Inc. v. Seminole Tribe of Florida
Briefs from Turtle Talk
692 F.3d 1200
No. 11?11997.
United States Court of Appeals, Eleventh Circuit, August 30, 2012.

*Synopsis: Commercial lessee brought state-court action against lessor, an Indian tribe, seeking emergency declaratory and injunctive relief after tribe purported to terminate their lease agreement and padlocked doors to lessee's business. Tribe removed action to federal court. The United States District Court for the Southern District of Florida, No. 0:10-cv-60483-WJZ, William J. Zloch, J., 2011 WL 1303163, entered an order dismissing action, and lessee appealed.

*Holdings: The Court of Appeals, Marcus, Circuit Judge, held that as a matter of first impression, tribe's removal of action did not waive its sovereign immunity.
Affirmed.

Arctic Slope Native Ass'n, Ltd. v. Sebelius
501 Fed.Appx. 957
No. 2010?1013.
United States Court of Appeals, Federal Circuit, August 22, 2012.

*Synopsis: Association of Native?American tribes, which provided health care services to its members under self?determination contracts entered pursuant to Indian Self?Determination and Education Assistance Act (ISDA), brought action against Secretary of the Department of Health and Human Services (HHS), alleging breach of contract related to government's failure to pay association's contract support costs shortfall for two fiscal years. The Civilian Board of Contract Appeals, Candida S. Steel and Jeri Kaylene Somers, Administrative Judges, granted summary judgment in favor of HHS and association appealed. The Court of Appeals, Dyk, Circuit Judge, 629 F.3d 1296, affirmed, and the association petitioned for writ of certiorari. The United States Supreme Court, ??? U.S. ????, 133 S.Ct. 22, 183 L.Ed.2d 671, granted certiorari and vacated and remanded for further consideration in light of its opinion in Salazar v. Ramah Navajo Chapter, ??? U.S. ????, 132 S.Ct. 2181, 183 L.Ed.2d 186.

*Holdings: The Supreme Court, Justice Sotomayor, held that self-determination contracts between the Secretary of the Interior and Indian tribes, pursuant to which tribes undertook to provide education, law enforcement and other services normally provided by government, in exchange for commitment by the Secretary to pay costs incurred by tribes in performing their contracts "[s]ubject to the availability of appropriations," obligated government to pay full amount of contract support costs incurred by tribes once Congress made lump-sum appropriation sufficient to pay any individual contractor's contract support costs; abrogating Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F.3d 1296.
Affirmed.

Cook Inlet Region, Inc. v. Rude
Briefs from Turtle Talk
690 F.3d 1127
No. 11?35252.
United States Court of Appeals, Ninth Circuit, August 20, 2012.

*Synopsis: Alaska Native regional corporation, formed under the Alaska Native Claims Settlement Act (ANCSA), brought action against shareholders and former directors, alleging defendants violated ANCSA and Alaska law by soliciting shareholder signatures for petitions for a vote to lift alienability restrictions on corporation's stock and for a special shareholder meeting to consider certain advisory resolutions. Corporation moved for summary judgment. The United States District Court for the District of Alaska, Ralph R. Beistline, Chief Judge, 2010 WL 5146520, granted motion. District court subsequently denied defendants' motion for relief from judgment insofar as it sought relief on ground that district court lacked federal-question subject matter jurisdiction. Defendants appealed.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that district court had federal-question jurisdiction over ANCSA claims. Affirmed.

Michigan v. Bay Mills Indian Community
Briefs from Turtle Talk
695 F.3d 406
No. 11?1413.
United States Court of Appeals, Sixth Circuit, August 15, 2012.

*Synopsis: State of Michigan and Indian tribe filed action to prevent other Indian tribe from operating small casino on its property. The United States District Court for the Western District of Michigan, Paul Lewis Maloney, Chief District Judge, entered preliminary injunction to stop defendant from gaming. Defendant appealed.

*Holdings:The Court of Appeals, Kethledge, Circuit Judge, held that:
(1) proximity of two properties, along with likelihood that at least some gaming revenue from defendant's casino otherwise would have gone to plaintiff tribe through its casino, was enough to show injury in fact;
(2) federal courts lacked jurisdiction to adjudicate claim under Regulatory Act, alleging that defendant Indian tribe's casino violated Tribal?State compact, to extent that claim had been based on allegation that defendant's casino was not on Indian lands;
(3) federal courts lacked jurisdiction to adjudicate claim under Regulatory Act, alleging that defendant Indian tribe's casino violated Tribal?State compact, to extent that claim was based on allegation that defendant's property had not been acquired by Secretary of Interior in trust for benefit of defendant;
(4) common law claims brought by State of Michigan against Indian tribe to prevent it from operating small casino, which depended on whether casino was located on Indian lands, arose under federal law, as required for federal question subject matter jurisdiction;
(5) defendant was immune from suit on common law claims brought by State of Michigan to prevent tribe from operating small casino, which depended on whether casino was located on Indian lands, unless Congress had authorized suit or tribe waived its immunity;
(6) provision of Regulatory Act that supplied federal jurisdiction and abrogated tribal immunity did not abrogate Indian tribe's sovereign immunity over claims that did not satisfy all textual prerequisites of Act;
(7) inferential logic that federal statute governing gambling in Indian country abrogated sovereign immunity of Indian tribes with regard to gaming not conducted under approved Tribal?State gaming compact was not sufficient to abrogate tribe's sovereign immunity with regard to such gaming; and
(8) tribal gaming ordinance waiving immunity only for tribal commission did not result waiver of Indian tribe's immunity.
Vacated and remanded.

Native Village of Kivalina Ira Council v. U.S. E.P.A.
Briefs from Turtle Talk
687 F.3d 1216
No. 11?70776.
United States Court of Appeals, Ninth Circuit, August 9, 2012.

*Synopsis: Alaska Native villages petitioned for review of an order of the United States Environmental Protection Agency Environmental Appeals Board, which denied their challenges to the re-issuance of a permit authorizing a mine operator to discharge wastewater caused by mine operation.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that villages were not entitled to Board review of villages' challenge to EPA's re-issuance of permit.
Petition denied.

KG Urban Enterprises v. Patrick
Briefs from Turtle Talk
693 F.3d 1
No. 12?1233.
United States Court of Appeals, First Circuit, August 1, 2012.

*Synopsis: Casino development company, as potential applicant for Massachusetts gaming license, brought action to challenge provisions of Massachusetts Act Establishing Expanded Gaming in the Commonwealth, alleging certain provisions violated the Equal Protection Clause and the Massachusetts Declaration of Rights, and were pre?empted by the Indian Gaming Regulatory Act (IGRA). The United States District Court for the District of Massachusetts, Nathaniel M. Gorton, J., denied company's motion for preliminary injunction and dismissed complaint. Company appealed.

*Holdings:The Court of Appeals, Lynch, Chief Judge, held that:
(1) company failed to establish its standing to challenge composition of gaming policy advisory committee under Act;
(2) company waived its argument that different standard applied to its federal and state constitutional challenges;
(3) company's equal protection challenge was ripe for judicial review; and
(4) factors weighed strongly against preliminary injunctive relief.

Affirmed in part and vacated and remanded in part.

Fort Peck Housing Authority v. U.S. Dept. Housing and Urban Development
2012 WL 3778299
05?CV?00018?RPM.
United States District Court, D. Colorado, August 31, 2012

*Synopsis: (from the opinion) "The core of the complaint was that HUD's decision, based on a regulation, 24 C.F.R. ? 1000.318(a), was inconsistent with the statutory requirement in 28 U.S.C. ? 4152(b) that set out the following parameters for the formula to be developed through a negotiated rulemaking process for the allocation of annual block grants of funds for providing affordable housing for low income families among Indian tribes."

*Holdings: (not yet available)

Jackson v. Tracy
Briefs from Turtle Talk
2012 WL 3704698
No. CV 11?00448?PHX?FJM.
United States District Court, D. Arizona, August 28, 2012

*Synopsis: (from the opinion) "Petitioner filed a petition for writ of habeas corpus pursuant to 25 U.S.C. ? 1303 on March 8, 2011, asserting three claims for relief under the Indian Civil Rights Act ("ICRA"), 25 U.S.C. ? 1302 (2008):(1) that his conviction violates 25 U.S.C. ?? 1302(6) and 1302(8) because he was improperly denied his right to counsel; (2) that the Tribe violated his right to due process under 25 U.S.C. ? 1302(8) when it failed to provide written or recorded witness statements prior to trial as required by the Tribe's criminal code; and (3) that his conviction violated his right to due process and to be informed of the charges against him under 25 U.S.C. ?? 1302(6) and 1302(8) because the Tribe served him with an amended criminal complaint on the morning of trial.FN1 Petitioner moves for summary judgment on all three claims."

*Holdings: (not yet available)

Federal Trade Commission v. AMG Services
Briefs from Turtle Talk
2012 WL 3730561
No. 2:12?cv?00536?GMN?VCF.
United States District Court, D. Nevada., August 28, 2012

*Synopsis: (from the opinion) "In support of their request for a discovery stay, the defendants advance the following positions: 1. Native American Tribes are subject to the FTC consumer protection regulations at issue in this case. 2. However, Native American Tribes and Tribal?Chartered Entities, which are arms of Native American Tribes (operating for the benefit of those tribes), are not subject to enforcement actions by the FTC for violation of these consumer protection regulations. 3. As part of its regulation of Native American Tribes, Congress has deprived the FTC of jurisdiction over any Tribal?Chartered Entity to enforce the provisions of the FTC Act, 15 U.S.C. ? 45(a). 4. Congress also has deprived the FTC of jurisdiction to bring enforcement actions against Tribal?Chartered Entities asserting violations of TILA, 15 U.S.C. ?? 1601?1666j, and EFTA, 15 U.S.C. ?? 1693?1693r. 5. This lack of jurisdiction extends to any employee or contractor working for or with any Tribal?Chartered Entity. 6. This lack of jurisdiction exists no matter how remote or marginal a benefit is actually conferred upon the Tribe by the Tribal?Chartered Entity, under the terms of its arrangement with the Tribe. Independent of these arguments, all defendants move for dismissal of the complaint on the grounds that the FTC has not pled its causes of action with the degree of specificity required by Rule 8(a) and 9(b) of the Federal Rules of Civil Procedure against each of them individually. During oral argument, it was established that the pending motions to dismiss are not based on this court's lack of jurisdiction, improper venue or immunity."

*Holdings: (not yet available)

Eastern Shawnee Tribe of Oklahoma v. Douthitt
Briefs from Turtle Talk
2012 WL 3637623
No. 11?CV?0675?CVE?TLW.
United States District Court, N.D. Oklahoma., August 22, 2012

*Synopsis: (from the opinion) "Now before the Court is Defendants' Motion to Dismiss and Brief in Support (Dkt.# 16). Defendants argue that the Court lacks subject matter jurisdiction over this case because plaintiff is asking the Court to resolve an internal tribal dispute. They also assert that they have not waived their sovereign immunity from suit and that plaintiff's claims should be dismissed. Plaintiff responds that it is asking the Court to determine whether the Court of Indian Offenses for the Eastern Shawnee Tribe of Oklahoma had jurisdiction to decide an election dispute, and this is a federal question that can be decided by this Court. They also argue that defendants are not shielded from suit by the doctrine of sovereign immunity.."

*Holdings: (not yet available)

Lummi Tribe of the Lummi Reservation v. US
Briefs from Turtle Talk
106 Fed.Cl. 623
No. 08?848C.
United States Court of Federal Claims, August 21, 2012

*Synopsis: Indian tribal housing authorities brought action under the Native American Housing Assistance and Self?Determination Act of 1996 (NAHASDA), seeking recovery of grant funds originally paid to the authorities by the Department of Housing and Urban Development (HUD) but later recaptured through administrative offset on basis that misapplication of the allocation formula had resulted in overpayments. HUD moved to dismiss count alleging that recapture of the funds constituted an illegal exaction.

*Holdings: The Court of Federal Claims, Wiese, Senior Judge, held that HUD was required to provide notice and a hearing before adjusting housing authorities' grant amounts, and was precluded from recapturing grant amounts already expended on affordable housing activities.
Motion denied.

Cayuga Indian Nation of New York v. Seneca County, New York
Briefs from Turtle Talk
890 F.Supp.2d 240
No. 11?CV?6004 CJS.
United States District Court, W.D. New York, August 20, 2012

*Synopsis:In Indian tribe's action seeking permanent declaratory and injunctive relief against county's attempts to collect property taxes on five parcels of land purchased by tribe, tribe moved for preliminary injunctive relief enjoining county from foreclosing on the properties pursuant to New York law.

*Holdings: The District Court, Charles J. Siragusa, J., held that county had no right to sue to foreclose on the properties.
Application granted.

City of New York v. Milhelm Attea & Bros., Inc.
2012 WL 3579568
No. 06?CV?3620 (CBA).
United States District Court, E.D. New York, August 17, 2012

*Synopsis: (from the opinion) "The City of New York has brought an Amended Complaint against the above-captioned defendants, cigarette wholesalers who are state-licensed cigarette stamping agents. The principal contention of the City is that the wholesalers violated the Contraband Cigarette Trafficking Act ("CCTA"), 18 U.S.C. ? 2341 et seq., by shipping in excess of 10,000 unstamped cigarettes to Native American reservation retailers who re-sold the cigarettes to the public. According to the City, the former version New York Tax Law ? 471 applied a tax to cigarettes sold to reservation retailers for re-sale to the public, and the defendant agents violated that provision by distributing large quantities of cigarettes to reservation retailers without purchasing and affixing the requisite state tax stamps. The City currently seeks civil penalties or disgorgement of profits pursuant to the CCTA, and also brings state law claims for public nuisance and violations of the Cigarette Marketing Standards Act ("CMSA"), New York Tax Law ? 484. The parties have engaged in multiple rounds of motion practice, as well as some discovery, and now cross-move for summary judgment. "

*Holdings: (not yet available)

EXC, Inc. v. Jensen
Briefs from Turtle Talk
2012 WL 3264526
CV 10-08197-PCT-JAT
United States District Court, D. Arizona, August 9, 2012

*Synopsis: (from the opinion) "On August 12, 2006, the Jensen Defendants filed negligence claims against Plaintiffs in the Kayenta District Court. Plaintiffs then filed a Motion to Dismiss based on lack of jurisdiction, which the Kayenta District Court denied. Thereafter, Plaintiffs filed a Writ of Prohibition with the Navajo Supreme Court seeking to prevent the Kayenta District Court from proceeding based on lack of subject matter jurisdiction. The Navajo Supreme Court affirmed, holding that the Kayenta District Court had jurisdiction. Plaintiffs then filed this case seeking (1) a declaratory judgment that the Kayenta District Court lacks jurisdiction to hear the Jensen Defendants' claims and (2) an injunction barring the Jensen Defendants from proceeding with their claims in Kayenta District Court. Defendants then moved to dismiss Plaintiffs' Complaint without prejudice based on Plaintiffs' alleged failure to exhaust tribal court remedies. This Court denied Defendants' Motion to Dismiss, finding that requiring Plaintiffs to further exhaust their jurisdictional requirement in Kayenta District Court would be futile. (Doc. 80). Plaintiffs and Defendants now move for summary judgment on the jurisdictional issue."

*Holdings: (not yet available)

Absentee Shawnee Housing v. US Department of Housing and Urban Development
Briefs from Turtle Talk
2012 WL 3245953
No. CIV?08?1298?HE.
United States District Court, W.D. Oklahoma, August 8, 2012

*Synopsis: (from the opinion) "Plaintiffs, The Absentee Shawnee Housing Authority ("ASHA") and the Housing Authority of the Seminole Nation of Oklahoma ("HASNOK"), filed this action under the Administrative Procedure Act, 5 U.S.C. ?? 701?706 ("APA"), against the United States Department of Housing and Urban Development ("HUD"), claiming the agency wrongfully withheld and recaptured grant funds paid to plaintiffs pursuant to the Native American Housing and Self?Determination Act of 1996, 25 U.S.C. ?? 4101?4243 ("NAHASDA" or "Act"). Plaintiffs challenge a regulation HUD promulgated in 1998 as part of the funding allocation formula the agency used to distribute housing funds from 1998 through 2008."

*Holdings: (not yet available)

Chance v. TDJC
2012 WL 3257836
Second Report and Recommendation of United States Magistrate Judge
Cv. No. 6:11cv435.
United States District Court, E.D. Texas, Tyler Division, August 8, 2012

*Synopsis: (from the opinion) "Plaintiff William E. Chance, Jr., an inmate confined in the Texas prison system, filed the above-styled and numbered lawsuit. The complaint was referred to United States Magistrate Judge John D. Love, who issued a Second Report and Recommendation concluding that the Defendants' motion for summary judgment should be granted. Plaintiff has filed objections."
(from the Second Report and Recommendation of the U.S. Magistrate Judge) "Plaintiff William E. Chance, Jr., a prisoner confined at the Michael Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. ? 2000cc, the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment."

*Holdings: (not yet available)

Robinson v. Salazar
Briefs from Turtle Talk
885 F.Supp.2d 1002
No. 09?cv?01977?BAM.
United States District Court, E.D. California, August 7, 2012

*Synopsis: Alleged Indian tribe and tribal chairman sued Secretary of Department of Interior (DOI), county, and owners of ranch, seeking federal recognition as tribe, seeking title to 270,000 acres of ranchland and 49,000 acres of Indian reservation that ranch owners also claimed to own, but that United States allegedly guaranteed to tribe pursuant to treaty allegedly signed by tribe's predecessors, and asserting claims against Secretary for deprivation of due process and equal protection, breach of fiduciary duty, and non-statutory review, claims against owners for unlawful possession under common law, trespass, accounting, and violation of Non-Intercourse Act and Native American Graves Protection and Repatriation Act (NAGPRA), and claim against county for equitable enforcement. Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state claim.

*Holdings: The District Court, Barbara A. McAuliffe, United States Magistrate Judge, held that:
(1) treaty did not grant title to land;
(2) Act settling Mexican land claims granted ranch owners patents for disputed land;
(3) ranch owners' land patents were valid;
(4) unratified treaty did not grant tribe title to reservation;
(5) government's sovereign immunity was not waived under Administrative Procedure Act (APA);
(6) sovereign immunity was not waived under Ex Parte Young;
(7) claims were precluded by political question doctrine;
(8) tribe's failure to exhaust claims was not excused; and
(9) NAGPRA was not violated.
Motions granted.

Hester v. Redwood County
Briefs from Turtle Talk
885 F.Supp.2d 934
Civil No. 11?1690 ADM/JJK.
United States District Court, D. Minnesota, August 6, 2012

*Synopsis: Member of federally recognized Indian tribe brought ? 1983 action against tribe police officer, county, county officials, and tribe, alleging Fourth Amendment violations. Defendants moved to dismiss.

*Holdings: The District Court, Ann D. Montgomery, J., held that:
(1) officer was entitled to qualified immunity;
(2) tribe did not waive its sovereign immunity;
(3) chair of county board of officials and former county attorney were entitled to qualified immunity; and
(4) member failed to state ? 1983 claim against county and county officials for continued prosecution after his allegedly unlawful arrest.
Motions granted.

Wyandotte Nation v. Salazar
Briefs from Turtle Talk
2012 WL 3156810
No. 11?2656?JAR?DJW.
United States District Court, D. Kansas, August 3, 2012.

*Synopsis: (from the opinion) " Plaintiff Wyandotte Nation, a federally recognized Indian tribe ("the Nation"), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior ("the Secretary"), seeking an order from this Court compelling the Secretary to comply with his mandatory duty to accept title to certain land and hold it in trust for the Nation's benefit, as specifically required by Public Law 98?602, 98 Stat. 3149 (1984). The State of Kansas ("the State") was permitted to intervene as of right under Fed.R.Civ.P. 24(a) (Doc. 41) and in its Answer, brought counterclaims against the Nation and cross-claims against Defendant Secretary. This matter is before the Court on the Nation and the Secretary's Motions to Dismiss the State's claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) (Docs.45, 47). The Secretary and the State have supplemented their submissions, per the Order of this Court (Doc. 53). For the reasons explained in detail below, the Court grants the motions to dismiss."

*Holdings: (not yet available)

Yowell v. Abbey
2012 WL 3205864
No. 3:11?cv?518?RCJ?VPC.
United States District Court, D. Nevada, August 3, 2012.

*Synopsis: (from the opinion) "Plaintiff was a Shoshone Indian, ward of the United States, and a member of the Te?Moak Tribe of the Western Shoshone Indians of Nevada. (Id.). He was a cattle rancher. (Id.). Throughout his life, Plaintiff let his livestock graze on the “historic grazing lands associated with the South Fork Indian Reservation.” (Id.). During the 1980s, the BLM attempted to get an Indian grazing association to sign a permit to graze livestock, but never approached Plaintiff directly. (Id.). Plaintiff never obtained a permit to graze his livestock because the proclamation that established the South Fork Indian Reservation, pursuant to the Indian Reorganization Act, stated that the reservation came “together with all range, and ranges, and range watering rights of every name, nature, kind and description used in connection” with the described boundaries of the reservation. (Id.). Plaintiff alleged that he was only exercising his treaty guaranteed vested rights to be a herdsman and to graze his livestock on the ranges. [...]

In the 1990s, the BLM alleged that Plaintiff was trespassing. (Id.). On May 24, 2002, Defendants assembled where Plaintiff's livestock were grazing, gathered Plaintiff's livestock, and seized the livestock without a warrant or court order for the seizure. (Id. at 7, 14). Defendants then transported Plaintiff's livestock over 300 miles to the BLM facility in Palomino Valley, Nevada. (Id. at 14). Defendants never gave Plaintiff notice or an opportunity to dispute the underlying basis of the allegations against him. (Id.). Defendants gave Plaintiff a “bill” for the seizure, transport, and alleged trespass fee in excess of $150,000 and told Plaintiff that he had to pay or they would sell his livestock on May 31, 2002. (Id.). Defendants sold Plaintiff's livestock on May 31, 2002. (Id.).."

*Holdings: (not yet available)

Blackfeet Housing v. US
Briefs from Turtle Talk
106 Fed.Cl. 142
No. 12?04C.
United States Court of Federal Claims, August 2, 2012

*Synopsis: Tribal housing authority, which constructed approximately 225 homes on reservation using federal government funds allocated through Department of Housing and Urban Development (HUD), filed suit against government, seeking $30 million in damages resulting from HUD's alleged breach of its trust responsibility to authority. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim.

*Holdings: The Court of Federal Claims, Christine O.C. Miller, J., held that:
(1) housing authority's claim against government based on HUD negligently constructed, managed, and maintained homes for tribal members, resulting in the failure of its trust obligation to provide decent, safe, and sanitary housing accrued, for limitations purposes, in 2002 when authority had full knowledge that the wooden foundations in the houses were causing both safety and health hazards to residents, and
(2) federal government did not assume any trust duties under Native American Housing Assistance and Self?Determination Act (NAHASDA).
Dismissed.

July

Native Village of Eyak v. Blank
Briefs from Turtle Talk
688 F.3d 619
No. 09?35881.
United States Court of Appeals, Ninth Circuit, July 31, 2012.

*Synopsis: Several Alaskan Native villages brought action against Secretary of Commerce, seeking to enforce claimed non?exclusive aboriginal hunting and fishing rights in certain parts of outer continental shelf (OCS) of Gulf of Alaska. Following remand, 375 F.3d 1218, with instructions to determine what aboriginal rights, if any, were held by villages, the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, conducted bench trial and found that villages had no non?exclusive right to hunt and fish in OCS. Villages appealed.

*Holdings: The Court of Appeals held that:
(1) villages satisfied continuous use and occupancy requirement for establishing aboriginal rights, and
(2) villages did not have exclusive use of claimed portions of OCS.
Affirmed.

 

Somerlott v. Cheeroke Nation Distributors
Briefs from Turtle Talk
686 F.3d 1144
No. 10?6157.
United States Court of Appeals, Tenth Circuit, July 27, 2012.

*Synopsis: Employee brought federal employment discrimination claims against tribal corporation, alleging violations of Title VII and the Age Discrimination in Employment Act (ADEA). The United States District Court for the Western District of Oklahoma, DeGiusti, J., 2010 WL 1541574, dismissed complaint for lack of subject matter jurisdiction. Employee appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) tribal corporation was not immune from employee's federal employment discrimination claims under tribal sovereign immunity, and
(2) employee failed to preserve argument regarding sovereign immunity.
Affirmed.

Rincon Mushroom Corporation of America v. Mazzetti
Briefs from Turtle Talk
490 Fed.Appx. 11
No. 10?56521.
United States Court of Appeals, Ninth Circuit, July 19, 2012.

*Synopsis: Non-Indian property owner brought action to enjoin tribal officials from enforcing tribal environmental and land-use regulations on its property. The United States District Court for the Southern District of California, William Q. Hayes, District Judge, 2010 WL 3768347, dismissed the action. Non-Indian property owner appealed.

*Holdings: The Court of Appeals, held that:
(1) non-Indian property owner was required to exhaust tribal court remedies before bringing suit in federal court, but
(2) district court abused its discretion in dismissing, rather than staying the case.
Reversed and remanded.

US v. Morrison
Briefs from Turtle Talk
686 F.3d 94
Nos. 10?1926(L), 10?1951.
United States Court of Appeals, Second Circuit, July 16, 2012.

*Synopsis: Defendant was charged by indictment with a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy and multiple other crimes. Following denial of defendant's motion to dismiss the indictment, 521 F.Supp.2d 246, and a jury verdict finding defendant guilty of a RICO conspiracy and being a felon in possession of a firearm, defendant moved to dismiss the RICO charge or for a new trial. The United States District Court for the Eastern District of New York, Denis R. Hurley, J., 596 F.Supp.2d 661, denied the motion, and defendant moved for reconsideration. The District Court, Hurley, J., 706 F.Supp.2d 304, granted reconsideration in part, vacating the RICO conviction. The parties cross-appealed.

*Holdings:The Court of Appeals, Calabresi, Circuit Judge, held that:
(1) prior certification to the New York Court of Appeals of questions regarding the New York Tax Law section delineating the parameters of a Contraband Cigarette Trafficking Act (CCTA) violation did not support a determination that the section was unconstitutionally vague, and
(2) defendant could be validly convicted under the CCTA, even though, at the time, the state was refraining from enforcing taxes on on-reservation sales.
Reversed and remanded.

Franco v. U.S. Department of Interior
2012 WL 3070269
No. CIV S?09?1072 KJM?KJN.
United States District Court, E.D. California, July 27, 2012

*Synopsis: (from the opinion) "Plaintiffs are members of a non-federally recognized Indian tribe that resides in the McCloud River Valley in Shasta County, California. In this action, they contend defendants United States Department of the Interior ("DOI"), Bureau of Reclamation ("BOR"), Bureau of Indian Affairs ("BIA"), Bureau of Land Management ("BLM"), United States Forest Service ("USFS") and United States Department of Agriculture ("USDA") (collectively, "defendants") have failed to protect historic and cultural sites that are important to them. This matter is before the court on defendants' motion to dismiss plaintiffs' second amended complaint. The Winnemem Wintu Tribe, Caleen Sisk Franco, and Mark Franco (collectively, "plaintiffs") oppose defendants' motion. The court heard argument on August 31, 2011. Assistant United States Attorney Erica Lynn Ernce appeared on behalf of the government defendants; Jayne Flemming, Reed Smith LLP, appeared on behalf of the plaintiffs. For the reasons set forth herein, defendants' motion is GRANTED in part and DENIED in part."

*Holdings: (not yet available)

Related News Stories: Winnemem Wintu Tribe wrestles with bureaucracy to perform sacred ritual read (Indian Country Today) 8/09/12

Kelin v. Guy
2012 WL 3061602
No. CIV?11?1080?M.
United States District Court, W.D. Oklahoma, July 26, 2012

*Synopsis: (from the opinion) "Both plaintiff and defendant are Caddo Indians and members of the Caddo Nation. Plaintiff is a resident and citizen of the State of Colorado, and defendant is a resident and citizen of the State of Oklahoma. Plaintiff is the president of an office supply company called CADDO Design, Inc. In early 2011, plaintiff and CADDO Design, Inc. began negotiations with the Caddo Nation with the intention of entering into a business venture to sell office products. Plaintiff and the Caddo Nation formed a limited liability company together; however, the venture fell apart after the Caddo Nation Tribal Counsel failed to approve the financing agreements. On September 27, 2011, plaintiff filed the instant action, premised on diversity jurisdiction. Plaintiff alleges that defendant made various defamatory statements to tribal members in an effort to stifle the deal between CADDO Design, Inc. and the Caddo Nation. These statements were allegedly made at tribal counsel meetings within the territorial boundaries of the Caddo Nation and through emails sent from defendant's office computer outside of the territorial boundaries of the Caddo Nation. Plaintiff has asserted multiple tort claims based on Oklahoma law, including slander per se, libel, invasion of privacy?false light, and invasion of privacy?publicity given to private life.."

*Holdings: (not yet available)

Brooks v. Roy
881 F.Supp.2d 1034
Civil No. 12?316 (SRN/JSM).
United States District Court, D. Minnesota, July 25, 2012.

*Synopsis: Native American state prisoner filed ? 1983 action, claiming that his required participation in prison's substance abuse treatment program violated Free Exercise Clause, Religious Land Use and Institutionalized Persons Act (RLUIPA), American Indian Religious Freedom Act (AIRFA), and Minnesota constitution, and seeking injunction assigning him at his own expense to privately-run, Native American inpatient treatment program 200 miles from prison or readmitting him to prison's program so that he would be eligible for prison benefits. Prisoner moved for temporary restraining order or preliminary injunction.

*Holdings: The District Court, Susan Richard Nelson, J., adopting report and recommendation of Janie S. Mayeron, United States Magistrate Judge, held that:
(1) Free Exercise Clause and RLUIPA claims were not actionable;
(2) First Amendment retaliation claim was not actionable;
(3) prisoner would not likely suffer irreparable harm absent preliminary injunction;
(4) balance of hardships did not favor preliminary injunction;
(5) public interest did not support preliminary injunction; and
(6) AIRFA lacked private cause of action.
Motion denied.

Oklahoma v. Hobia
Briefs from Turtle Talk
2012 WL 2995044
No. 12?CV?054?GKF?TLW.
United States District Court, N.D. Oklahoma, July 20, 2012

*Synopsis: (from the opinion) " Before the court is the Motion for Preliminary Injunction [Dkt. # 4] filed by plaintiff, the State of Oklahoma. The plaintiff seeks entry of a preliminary injunction prohibiting defendants from constructing or operating a casino on a restricted Indian allotment in the City of Broken Arrow, Oklahoma."

*Holdings: (not yet available)

In re Whitaker
Briefs from Turtle Talk
474 B.R. 687
Nos. 12?6004, 12?6005, 12?6006, 12?6007.
United States Bankruptcy Appellate Panel of the Eighth Circuit., July 19, 2012

*Synopsis: Trustees brought adversary proceedings in separate Chapter 7 cases to avoid lien or compel turnover. The United States Bankruptcy Court for the District of Minnesota, Dennis D. O'Brien, J., granted defendants' motion to dismiss on sovereign immunity grounds, on theory that Congress had not abrogated the immunity that they possessed as an Indian tribe and tribal finance company. Trustees appealed.

*Holdings: The Bankruptcy Appellate Panel, Federman, J., held that:
(1) Congress did not unequivocally express its intent to abrogate sovereign immunity of Indian tribes in suits under the Bankruptcy Code, and
(2) tribal finance company was sufficiently close to Indian tribe to assert its sovereign immunity, and could not be subject of avoidance actions brought by Chapter 7 trustees.
Affirmed.

Klamath Tribe Claims Committee v. U.S.
Briefs from Turtle Talk
106 Fed.Cl. 87
No. 09?75L.
United States Court of Federal Claims, July 16, 2012.

*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.

*Holdings: The Court of Federal Claims, Allegra, J., held that tribes were indispensable parties.
Dismissed.

In re Greektown Holdings, LLC.
475 B.R. 563
12?cv?12340.
United States District Court, E. D. Michigan, July 13, 2012

*Synopsis: Unsecured creditors committee brought adversary proceeding against alleged transferees of avoidable fraudulent transfers, including Indian tribe and gaming authority. After replacing committee as plaintiff, trustee for both litigation trust and unsecured creditors distribution trust sought approval of settlement with tribe and authority. Nonsettling defendants objected. Parties stipulated to withdrawal of the reference from United States Bankruptcy Court for the Eastern District of Michigan as to motion to approve settlement.

*Holdings: The District Court, Paul D. Borman, J., held that:
(1) tribe and authority were not judicially estopped from seeking claims bar order in settlement, without carve-out for nonsettling defendants;
(2) nonsettling defendants did not have potential viable claim for indemnification against tribe and authority;
(3) nonsettling defendants were not joint tortfeasors with tribe and authority, as required for nonsettling defendants to have viable contribution claims;
(4) nonsettling defendants did not have potential viable claims for fraud;
(5) nonsettling defendants did not have potential viable claim for deepening insolvency;
(6) tribe and authority did not waive sovereign immunity from suit with respect to any claims that nonsettling defendants might later assert against them; and
(7) proposed settlement was fair and reasonable, warranting its approval.
Motion granted; settlement approved.

Miccosukee Tribe of Indians of Florida v. United States
877 F.Supp.2d 1331
Case No. 11?CV?23107.
United States District Court, S.D. Florida, July 12, 2012

*Synopsis: Indian tribe petitioned to quash IRS summonses to third-party recordkeepers for financial records of accounts belonging to tribe for certain tax years.

*Holdings: The District Court, Alan S. Gold, J., held that:
(1) tribal sovereign immunity did not bar IRS summons enforcement proceedings, and
(2) IRS asserted a legitimate investigative purpose for issuing IRS summonses.
Petition denied.

Dish Network Service LLC v. Laducer
2012 WL 2782585
No. 4:12?cv?058.
United States District Court, D. North Dakota, Northwestern Division., July 9, 2012

*Synopsis: (from the opinion) "Defendant Brian Laducer is an enrolled member of the Turtle Mountain Band of Chippewa Indians and resides on the Turtle Mountain Indian Reservation in North Dakota. Dish Network provided television services to Brian Laducer at his home on the reservation. Dish Network subscribers are required to provide a credit card number. Brian Laducer provided the number of a credit card owned by his daughter, Lacey Laducer. Brian Laducer subsequently failed to pay Dish Network for their services and failed to return the equipment that Dish Network had installed. Dish Network then charged the credit card provided by Brian Laducer, which belonged to Lacey Laducer. On April 21, 2009, Lacey Laducer filed a complaint against Dish Network in North Dakota state district court in Rollette County, North Dakota. See Case No. 4:09?cv?052, Docket No. 1?3. Lacey Laducer's complaint included two causes of action: conversion and consumer fraud."

*Holdings: (not yet available)

Winnemucca Indian Colony v. U.S. Dept. of Interior
2012 WL 2789611
No. 3:11?cv?00622?RCJ?VPC.
United States District Court, D. Nevada., July 9, 2012.

*Synopsis: (from the opinion) "This case arises out of the refusal of the U.S. Department of the Interior (?DOI?) to recognize a tribal government of the Winnemucca Indian Colony (the ?Colony?) and the interference of the Bureau of Indian Affairs (?BIA?) with the activities of a purported Council member on colonial land. The Court issued a temporary restraining order (?TRO?) ordering the BIA to grant interim recognition to some person or persons but not ordering or restraining any BIA activity on the land."

*Holdings: (not yet available)

 

June

Furry v. Miccosukee Tribe of Indians of Florida
Briefs from Turtle Talk
685 F.3d 1224
No. 11?13673
United States Court of Appeals, Eleventh Circuit, June 29, 2012.

*Synopsis: Father, as personal representative of the estate of his daughter, brought wrongful death action against Indian tribe that owned and operated gambling and resort facility, asserting that tribe violated federal law and Florida's dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who later was involved in a fatal motor vehicle collision. Tribe moved to dismiss on the ground that it was immune from suit under the doctrine of tribal sovereign immunity. The United States District Court for the Southern District of Florida, No. 1:10?cv?24524?PAS, Patricia A. Seitz, J., 2011 WL 2747666, granted the motion, and plaintiff appealed.

*Holdings: The Court of Appeals, Marcus, Circuit Judge, held that:
(1) in enacting the federal statute governing application of Indian liquor laws, which authorizes state regulation and licensing of tribal liquor transactions, Congress did not abrogate tribal immunity from private tort suits based on state dram shop acts or other tort law, and
(2) tribe did not waive its immunity from private tort actions by applying for a state liquor license.

Affirmed.

N.Y. v. Shinnecock Indian Nation
Briefs from Turtle Talk
686 F.3d 133
Docket Nos. 08?1194?cv (L), 08?1195?cv (CON)
United States Court of Appeals, Second Circuit, June 25, 2012.

*Synopsis: New York State, state agencies, and municipality brought action against Indian nation and its tribal officials in state court seeking to enjoin them from constructing casino and conducting certain gaming on parcel of non-reservation property. Tribe removed case to federal court on basis that State's complaint had pleaded issues of federal law. The United States District Court for the Eastern District of New York, Thomas Collier Platt Jr., J., 274 F.Supp.2d 268, denied State's motion to remand, entered preliminary injunction barring construction, 280 F.Supp.2d 1, and denied parties' cross-motions for summary judgment, 400 F.Supp.2d 486. After reassignment, Joseph F. Bianco, J., 523 F.Supp.2d 185, entered judgment for plaintiffs and issued injunction following bench trial, and then limited injunction to construction and operation of casino or gaming on property, 560 F.Supp.2d 186. Tribe appealed.

*Holdings: The Court of Appeals, John M. Walker, Jr., Circuit Judge, held that:
(1) complaint did not raise issue of federal law by referencing federal law in anticipation of tribe's defenses and
(2) substantial federal question exception to well-pleaded complaint rule did not apply.
Vacated and remanded.

Turner v. McGee
Briefs from Turtle Talk
681 F.3d 1215
No. 10?6031.
United States Court of Appeals, Tenth Circuit, June 19, 2012.

*Synopsis: Native American offender who was convicted in state court for instituting or encouraging cockfighting brought action against judges of the Court of Indian Offenses, challenging the judges' refusal to enjoin the state criminal prosecution. The United States District Court for the Western District of Oklahoma, Vicki Miles?LaGrange, Chief Judge, 2010 WL 415296, dismissed the action. Plaintiff appealed..

*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Court of Appeals had jurisdiction, and
(2) offender lacked constitutional standing to bring action.
Affirmed.

Marceau v. Blackfoot
473 Fed.Appx. 764
No. 11?35444.
United States Court of Appeals, Ninth Circuit, June 5, 2012.

*Synopsis: (from the opinion) "In this putative class action, plaintiffs?American Indian individuals whose homes were built in the late 1970s with the financial assistance of the United States Department of Housing and Urban Development ("HUD")?appeal the district court's grant of summary judgment in favor of HUD. Because the district court certified its judgment under Fed.R.Civ.P. 54(b), we have jurisdiction under 28 U.S.C. ? 1291. We affirm."

*Holdings: Not yet available.

Karuk Tribe of California v. U.S. Forest Service
Briefs from Turtle Talk
681 F.3d 1006
No. 05?16801
United States Court of Appeals, Ninth Circuit, June 1, 2012.

*Synopsis: Indian tribe sued United States Forest Service, seeking declaratory and injunctive relief from alleged violation of Endangered Species Act (ESA) by approval of four notices of intent (NOIs) to conduct mining activities in threatened coho salmon critical habitat within national forest without consultation. The United States District Court for the Northern District of California, Saundra B. Armstrong, J., 379 F.Supp.2d 1071, entered judgment for government. Tribe appealed. The Court of Appeals, M. Smith, Circuit Judge, 640 F.3d 979, affirmed. Subsequently, en banc rehearing was granted.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that Forest Service's approval of NOIs required prior consultation with federal wildlife agencies.
Reversed and remanded.

Citizens Against Casino Gambling in Erie County v. Stevens
2012 WL 2405195
NO. 09-CV-0291S
United States District Court, W.D.N.Y., June 23, 2012

*Synopsis: (from the opinion) "This is the third lawsuit commenced by largely the same plaintiffs, who seek to bar the SNI from operating a gambling facility in Buffalo, New York. Each lawsuit has alleged that the SNI's gambling operation on the Buffalo Parcel is unlawful because the land is not ?Indian lands,? as that term is defined in the Indian Gaming Regulatory Act (the ?IGRA?), and even if it were, the land was not acquired ?as part of the settlement of a land claim,? such that it would be excepted from the IGRA's general prohibition on gaming on lands acquired after October 17, 1988. 25 U.S.C. ? 2719."

*Holdings: (not yet available)

DeCoteau v. District Court, 85th Judicial Dist., Brazos County, Tex.
2012 WL 2370113
NO. 4:12-CV-030.
United States District Court, D.N.D., June 22, 2012

*Synopsis: (from the opinion) "Tyrell DeCoteau filed a motion in federal district court seeking the following relief: (1) That Petitioner have judgment against Respondents whereby this Court issue a Temporary Restraining Order preventing Respondent District Court, 85th Judicial District, Brazos County, State of Texas from taking jurisdiction of the custody action in Texas until the parties have exhausted Tribal Court remedies; (2) That the Court issue a declaratory judgment declaring the Tribal Court has exclusive jurisdiction under Texas laws and Tribal laws, and the Tribal Court Orders are enforceable under the rule of comity and that the warrant for Respondent Francyne DeCoteau's arrest is valid and enforceable and that the Bureau of Indian Affairs must make arrangements to extradite Respondent Francyne DeCoteau back to the Turtle Mountain Tribal jurisdiction; and (3) That the Court issue a permanent injunction against Respondent Francyne DeCoteau ordering her to cease and desist in pursuing this matter in the Texas courts and ordering Respondent District Corut, 85th Judicial District, Brazos County, State of Texas from taking jurisdiction of the custody action in Texas."

*Holdings: (not yet available)

Garcia v. United Auburn Indian Community
2012 WL 2371394
NO. CIV. S-11-2552 KJM
United States District Court, E.D.Cal., June 21, 2012

*Synopsis: (from the opinion) "The amended complaint alleges that defendants United Auburn Indian Community, Station Casinos, Inc., Analytical Environmental Services (?AES?), and Wildlands, Inc. engaged in ?defamatory and intimidating practices against Plaintiff from June of 2006 through June of 2009 culminating in the retaliatory, wrongful firing of Plaintiff on July 5, 2009, in order to protect themselves from discovery and prosecution of widespread violations of State and Federal animal cruelty statutes as well as the Migratory Bird Treaty Act.? Plaintiff's second claim concerns defendants' ?cruel and negligent treatment of a federally protected species,? the Cliff Swallows. Plaintiff has now, in his amended complaint, described defendants' actions concerning the swallows in much detail; however, his action must be dismissed for the same reasons stated in response to the complaint, which are repeated here."

*Holdings: (not yet available)

U.S. ex rel. Howard v. Shoshone Paiute Tribes
Briefs from Turtle Talk
2012 WL 2327676
No. 2:10?cv?01890?GMN?PAL.
United States District Court, D. Nevada., June 19, 2012.

*Synopsis: (from the opinion) "The parties' disagree about whether initial disclosures under Rule 26 of the Federal Rules of Civil Procedure must be exchanged and discovery commenced. Plaintiffs/Relators assert that Defendant's Motion to Dismiss (Dkt.# 15) constitutes an appearance, and the parties should exchange initial disclosures and start discovery. Defendant contends the Motion to Dismiss is a jurisdictional motion based on sovereign immunity, and disclosure obligations under Rule 26 and discovery should be held in abeyance until the Motion is decided. Although a motion to stay discovery has not been filed, the court set the matter for hearing to save the parties expensive motion practice."

*Holdings: (not yet available)

U.S. v. Gatewood
2012 WL 2389960
NO. CR-11-08074-PCT-JAT
United States District Court, D.Ariz., June 18, 2012

*Synopsis: (from the opinion) "Defendant is charged in Counts I and II with sexually abusing a minor. Defendant was previously tried in tribal court for sexually abusing this same minor. Defendant now argues that this re-prosecution violates his Constitutional rights. Specifically, Defendant argues that re-prosecution violates his Constitutional rights because the Dual Sovereignty Doctrine, which allows two prosecutions for the same offense by independent sovereigns, violates the Double Jeopardy Clause of the Fifth Amendment. In addition, Defendant argues that the Bartkus exception to the Dual Sovereignty Doctrine applies here because of law enforcement and institutional collusion between the federal government and the White Mountain Apache Tribe (Tribe). Defendant also requests an evidentiary hearing at which Bureau of Indian Affairs (BIA) Special Agent Daniel Hawkins and other witnesses can testify on the nature and extent of BIA assistance during the White Mountain Apache Tribal Police investigations."

*Holdings: (not yet available

 

Harris v. Muscogee (Creek) Nation
Briefs from Turtle Talk
2012 WL 2279340
No. 11?CV?654?GKF?FHM.
United States District Court, N.D. Oklahoma., June 18, 2012.

*Synopsis: (from the opinion) "Plaintiff, a customer of River Spirit Casino, was injured in slip and fall accident at the casino on May 10, 2009. She filed suit in Tulsa County District Court against Creek Nation, the owner of the casino, asserting a claim for negligence, and against Hudson, the casino's liability insurer. [Dkt. # 2?1, Petition [Id., ?? 22?23]. Plaintiff asserts she is a third party beneficiary of the insurance policy and Hudson has breached the policy by denying her tort claim. [Id., ? 25]. Creek Nation removed the case to federal court pursuant to 28 U.S.C. ?? 1331, 1441 and 1446, alleging federal question jurisdiction. [Dkt. # 2, Notice of Removal]. Specifically, Creek Nation asserted the federal question raised by plaintiff's action is whether the state court has jurisdiction over a tort action arising in Indian Country against the Creek Nation. [Dkt. # 2 at 1]. Citing Williams v. Lee, 358 U.S. 217, 217?18 (1959), the Creek Nation argued federal law determines whether a state may exercise jurisdiction over civil actions against Indians in Indian Country. [Id. at 3]."

*Holdings: (not yet available)

Alto v. Salazar
Briefs from Turtle Talk
2012 WL 2152054
No. 11cv2276?IEG(BLM).
United States District Court, S.D. California., June 13, 2012.

*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 Band of Mission Indians ("Tribe" or "Band") membership roll. Presently before the Court is (1) the Tribe's motion to dismiss under Fed.R.Civ.P. 12(b)(7) for failure to join the Tribe as a required and indispensible party within the meaning of Fed.R.Civ.P. 19 or alternatively to dismiss for lack of subject matter jurisdiction FN1 pursuant to Fed.R.Civ.P. 12(b)(1), and (2) the Tribe's motion to dissolve the preliminary injunction."

*Holdings: (not yet available)

Goodeagle v. U.S.
105 Fed.Cl. 164
No. 11?582 L.
United States Court of Federal Claims, June 12, 2012.

*Synopsis: Enrolled members of federally-recognized Indian tribe filed putative class action, claiming that United States breached fiduciary duties and trust obligations owed to tribal members as owners of allotments of land managed by United States. Government moved to dismiss for lack of subject matter jurisdiction.

*Holdings: The Court of Federal Claims, George W. Miller, J., held that claims fell within statutory jurisdictional bar.
Motion granted.

Agamenv v. Laverdure
866 F.Supp.2d 1091
No. 4:12?cv?074.
United States District Court, D. North Dakota, Northwestern Division, June 11, 2012

*Synopsis: Limited liability company (LLC), which entered into agreement with Indian tribe for purpose of constructing and operating new casino, and LLC's primary members brought action against tribal court associate judge and tribal council members seeking temporary restraining order enjoining defendants from enforcing orders entered against plaintiffs in tribal court proceeding.

*Holdings: The District Court, Daniel L. Hovland, J., held that:
(1) irreparable harm would not result absent issuance of temporary restraining order;
(2) balance of harm factor neither weighed in favor nor against granting temporary restraining order;
(3) plaintiffs failed to establish likelihood of success on merits of their claim that tribal court lacked jurisdiction over them; but
(4) public interest factor weighed neither in favor of nor against issuance of temporary restraining order.
Motion denied.

May

Cobell v. Salazar
Briefs from Turtle Talk
679 F.3d 909
No. 11?5205
United States Court of Appeals, D.C. Circuit, May 22, 2012.

*Synopsis: Native Americans filed class action against Secretary of Interior alleging breach of fiduciary duties in managing class members' "Individual Indian Money" (IIM) trust account. The United States District Court for the District of Columbia, approved settlement agreement. Class member appealed.

*Holdings: The Court of Appeals, Rogers, Circuit Judge, held that:
(1) prior holding that restitution award would be arbitrary, inaccurate, and unfair to some class members in absence of historical accounting was not law of the case;
(2) per capita settlement payment of $1,000 properly was viewed as non-individualized;
(3) district court reasonably concluded that class settlement agreement offered fair resolution of plaintiff classes' claims free of impermissible intra-class conflict;
(4) appellant had non-speculative basis for asserting injury in fact;
(5) trust administration class satisfied commonality requirement;
(6) district court's award of incentive payments to class representatives did not create impermissible conflict;
(7) district court's reference to small number of objectors was not inconsistent with caution that should be exercised in inferring support from small number of objectors to sophisticated class action settlement; and
(8) any prejudice was harmless that resulted from district court's striking of supplemental brief as untimely.

Affirmed.

*Related News Story: DC Circuit affirms fairness of $3.4B Cobell trust fund settlement (Indianz.com) 5/22/12

Timbisha Shoshone Tribe v. Salazar
Briefs from Turtle Talk
678 F.3d 935
No. 11?5049.
United States Court of Appeals, D.C. Circuit, May 15, 2012.

*Synopsis: Faction of Indian tribe, purporting to be its tribal council, 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. The United States District Court for the District of Columbia, Gladys Kessler, J., 766 F.Supp.2d 175, dismissed for failure to state a claim. Plaintiffs appealed.

*Holdings: The Court of Appeals, Griffith, Circuit Judge, held that plaintiffs lacked standing.
Vacated and remanded with instructions to dismiss for lack of jurisdiction.

*Related News Story: DC court: Tribal faction can't block land payments (SFGate) 5/17/12

U.S. v. Diaz
Briefs from Turtle Talk
679 F.3d 1183
No. 10?2252
United States Court of Appeals, Tenth Circuit, May 8, 2012.

*Synopsis: Defendant was convicted in the United States District Court for the District of New Mexico, C. Leroy Hansen, Senior District Judge, of committing a crime in Indian Country after she knowingly left scene of a fatal automobile accident, and she appealed.

*Holdings: The Court of Appeals, Tymkovich, Circuit Judge, held that:
(1) district court had jurisdiction;
(2) evidence that defendant had been drinking prior to accident was admissible; and
(3) undisclosed evidence regarding government's accident reconstruction expert was not material under Brady.

Affirmed.

Related News Stories: Ex-Pojoaque Pueblo leader's hit-and-run conviction affirmed (Santa Fe New Mexican) 5/08/12

Otoe-Missouria Tribe v. U.S.
105 Fed.Cl. 136
No. 06?937L.
United States Court of Federal Claims., May 31, 2012.

*Synopsis: After Indian tribe brought action in the Court of Federal Claims (CFC) alleging that the United States mismanaged tribal assets in trust, and then filed second complaint in a District Court later that same day, alleging that Government had not provided an accurate accounting to the tribe of its trust fund, Government moved to dismiss.

*Holdings: The Court of Federal Claims, Smith, Senior Judge, held that filing of second lawsuit did not divest CFC of jurisdiction.
Motion denied.

Rancheria v. Bonham
Briefs from Turtle Talk
872 F.Supp.2d 964
No. C?11?6710 EMC.
Docket No. 11
United States District Court, N.D. California, May 31, 2012.

*Synopsis: Indian tribe and two of its members brought action against the California Department of Fish and Game (DF & G), seeking a declaration that they were entitled to fish on the portion of a river that lay within another tribe's reservation, as well as injunctive relief. DF & G moved to dismiss and plaintiffs moved for summary judgment.

*Holdings: The District Court, Edward M. Chen, J., held that tribe lacked standing to challenge DF & G's enforcement of fishing regulations.
Dismissed.

Siemion v. Stewert
2012 WL 1925743
No. CV?11?120?BLG?RFC
United States District Court, D. Montana, Billings Division, May 25, 2012.

*Synopsis: (from the opinion) "The United States Attorney for Montana, under 28 U.S.C. ? 2679(d)(1) and 28 C.F.R. ? 15.4(a), has certified that Scott, Hugs, Stewart, and Ten Bear were acting within the scope of their employment with the BIA at the time of the incidents alleged in Siemion's Asmended Complaint. Doc. 43. The certification is "prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident[,]" Pauly v. U.S. Dept. of Agri., 348 F.3d 1143, 1151 (9th Cir.2003) (quoting Billings v. United States, 57 F.3d 797, 800 (9th Cir.1995)).

Siemion's claim against these Tribal Defendants involves their killing of three of her bison on the reservation by tribal officers and members. In civil cases arising between Indians, or against an Indian defendant in an action arising in Indian country, tribal jurisdiction usually will be exclusive. Fisher v. District Court, 424 U.S. 382, 386?89 (1976); Williams v. Lee, 358 U.S. 217, 223 (1959). Indian tribes ?exercise inherent sovereign authority over their members and territories.? Oklahoma Tax Com'n v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991).

*Holdings: (not yet available)

 

Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v. Black
Briefs from Turtle Talk
2012 WL 1893520
No. 06?2248?CM
United States District Court, D. Kansas, May 24, 2012.

*Synopsis: (from the opinion) "Plaintiff Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas filed this water rights action against federal and non-federal defendants on June 14, 2006. On December 23, 2011, plaintiff filed a first amended complaint (Doc. 154). Defendants, among others, include individual Board members of the Nemaha Brown Watershed Joint District No. 7 ("Watershed District"): Dexter Davis, Wayne Heiniger, Glenn Hennigan, Leo Wessel, Rodney Lierz, Jim Renyer, Roger Ploeger, David Zeit, and Rodney Heinen (the "individual defendants"). These individual defendants are named in their official and individual capacities.

The amended complaint asserts four counts. The third ("Count Three") and fourth ("Count Six") counts are the subject of this motion.FN1 Specifically, in Count Three, plaintiff seeks declaratory judgment regarding the individual defendants' failure to perform under the 1994 Upper Delaware River and Tributaries Watershed Plan and Agreement ("1994 Watershed Agreement"), and it seeks specific performance under the Agreement. "Count Six" seeks limited and specific recovery of damages?authorized under the 1994 Agreement?against the individual defendants for increased costs that plaintiff has incurred as a result of the individual defendants' failure to timely perform.

Although the Watershed District and the individual defendants contest the existence of an obligation, the individual members seek dismissal on the basis that, even if the Watershed District was bound under the 1994 Watershed Agreement to exercise its power of eminent domain, the individual members of the Watershed District's Board of Directors have absolute legislative immunity from liability. (Doc. 166.) Plaintiff counters that the individual defendants lacked discretion to decide not to exercise the power of eminent domain; they were obligated to do so as a ministerial matter under the 1994 Watershed Plan; and their failure to do so is ultra vires, making them personally liable. For the following reasons, the court grants the individual defendants' motion to dismiss. "

*Holdings: (not yet available)

 

Native American Arts, Inc. v. Bud K World Wide, Inc.
2012 WL 1833877
Civil Action No. 7:10?CV?124 (HL)
United States District Court, M.D. Georgia, Valdosta Division, May 18, 2012.

*Synopsis: (from the opinion) "At issue in this case is the Indian Arts and Crafts Enforcement Act of 2000 ("IACEA"), 25 U.S.C. ? 305, et seq. The IACEA creates a civil cause of action against "a person who directly or indirectly, offers or displays for sale or sells a good ... in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization...." 25 U.S.C. ? 305e(b). Plaintiff alleges that Defendant has "directly or indirectly offered or displayed for sale or sold multiple quantities of various goods," and has "advertised, marketed, offered and displayed for sale and sold goods at its stores, via catalogues and on the Internet through its interactive website, budk.com," in a manner that falsely suggests the goods are Indian produced, an Indian product, or the product of a particular Indian or particular Indian tribe or Indian arts and crafts organization resident within the United States. The goods include tomahawks, artworks, crafts, and knives in a traditional Indian style or medium."

*Holdings: (not yet available)

Cressman v. Thompson
871 F.Supp.2d 1176
No. CIV?11?1290?HE
United States District Court, W.D. Oklahoma, May 16, 2012.

*Synopsis: Motorist brought action against various Oklahoma officials challenging Oklahoma statutes prohibiting him from covering image on standard passenger vehicle license plate of Native American shooting an arrow, which he alleged was repugnant to his religious beliefs. Motorist moved for preliminary injunction, and defendants' moved to dismiss.

*Holdings: The District Court, Joe Heaton, J., held that:
(1) motorist had Article III standing, and
(2) image on Oklahoma's license plate did not communicate a message about Native American religion.
Defendants' motion denied; plaintiff's motion denied.

Villegas v. United States
2012 WL 1801735
No. CV?12?0001?EFS
United States District Court, E.D. Washington, May 16, 2012.

*Synopsis: (from the opinion) "The Complaint asserts that the United States, Dawn Mining, Newmont, Washington Water Power/AVISTA, and Mr. Sharpe violated their obligations to Mr. Villegas in a number of ways:

? The United States has failed to award Mr. Villegas full payment for the income derived from the processing of uranium stockpiles both in Ford, Washington, and at the Midnite Mine; has failed to hold Dawn Mining and Newmont "accountable"; has failed to provide Mr. Villegas with accounts and records pertaining to the leases; has drawn charges against Mr. Villegas' trust account without explanation; and has utilized a right-of-way through Allotment No. 156 without compensating Mr. Villegas for its use.

? Dawn Mining and Newmont have at times operated on the allotment without permission and/or under an expired lease; have manipulated the "grade" and under-measured the quantity of ore extracted from the mine; have placed Mr. Villegas' funds into an escrow account and charged Mr. Villegas for resoration of the mine in violation of the 1956 lease agreement; have illegitimately charged Mr. Villegas for services; and have utilized a right-of-way through Allotment No. 156 without compensating Mr. Villegas for its use.

? Washington Water Power/AVISTA constructed power lines over Allotment No. 156 without authorization.

The Complaint also asserts that the income from Mr. Villegas' probate settlement were paid to Mr. Sharpe and ONB Bank and Trust until March 1978, and that the funds recieved between October 1974 and March 1978 have never been distributed to Mr. Villegas. Finally, the Complaint states that "[u]pon information and belief, at some point in 1961 the posts marking the allotment were moved from their original placement" in order to fraudulently replace the valuable allotment land with less-valuable land, but does not identify the actor."

*Holdings: (not yet available)

Allen v. United States
Briefs from Turtle Talk
871 F.Supp.2d 982
No. C 11?05069 WHA
United States District Court, N.D. Cal., May 15, 2012.

*Synopsis: Individuals allegedly possessing a one-half or more degree of Pomo Indian blood sued the Government and the Secretary of the United States Department of the Interior, challenging the failure of the Bureau of Indian Affairs (BIA) to call a Secretarial election for a tribe under the Indian Reorganization Act (IRA). The Government moved to dismiss, and the plaintiffs moved for summary judgment.

*Holdings: The District Court, William Alsup, J., held that:
(1) plaintiffs were not a "tribe" within the meaning of the IRA, and
(2) plaintiffs were not excused from exhaustion of administrative remedies on the ground of futility.
Ordered accordingly.

Miccosukee Tribe of Indians of Florida v. United States
2012 WL 1658987
No. 11?MC?23107
United States District Court, S.D. Florida, May 11, 2012.

*Synopsis: (from the opinion) "THIS CAUSE is before the Undersigned upon [ECF No. 37] the District Court's order of reference of [ECF No. 36] the Miccosukee Tribe's Motion for Disclosure and Production of Government's Confidential Informant(s). The Court has reviewed the motion and [ECF 40] the Government's Response. In addition, the Court held [ECF No. 45] a lengthy hearing on May 1, 2012 and reviewed [ECF Nos. 46?48] post-hearing submissions by the Tribe and the Government.

For the reasons outlined below, the Court denies the Tribe's motion to compel the Government to disclose all reports and information about the confidential informant and its associated, alternate request for the Court to conduct an in camera review of the reports. [...]

This case concerns the Tribe's challenge to summonses issued as part of the Government's investigation into whether the Tribe is liable for failing to withhold from and report distributions to its members for the 2010 tax year."

*Holdings: (not yet available)

Cloverdale Rancheria of Pomo Indians of California v. Salazar
2012 WL 1669018
No. 5:10?cv?1605?JF
United States District Court, N.D. California, San Jose Division, May 11, 2012.

*Synopsis: (from the opinion) "This action arises out of an internal political dispute within the Cloverdale Rancheria of Pomo Indians of California ("the Cloverdale Rancheria" or "the Tribe"). Plaintiffs claim that they are members of the Tribe's rightful governing body, that Defendants improperly have refused to deal with them, and that instead Defendants have dealt with a competing governing body that lacks authority to act on behalf of the Tribe. Plaintiffs allege claims under the Administrative Procedure Act ("APA"), 5 U.S.C. ? 701 et seq., and the Indian Self?Determination and Education Assistance Act ("ISDA"), 25 U.S.C. ? 450 et seq. Defendants move to dismiss the operative second amended complaint ("SAC") for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for lack of standing pursuant to Fed.R.Civ.P. 12(b) (6). In a separate motion, the "Cloverdale Rancheria of Pomo Indians of California" ("Proposed Intervenor"), as represented by the governing body that has been recognized by Defendants, seeks leave to intervene in the action. The Court concludes that these motions are appropriate for disposition without oral argument pursuant to Civ. L.R. 7?1(b). For the reasons discussed below, the motion to dismiss for lack of subject matter jurisdiction will be granted in part and denied in part, the motion to dismiss for lack of standing will be granted, the motion to intervene will be terminated as moot, and the action will be dismissed with prejudice."

*Holdings: (not yet available)

Kennedy v. United States Department of the Interior
282 F.R.D. 588
2:11?cv?00995?MCE?DAD
United States District Court, E.D. California, May 9, 2012.

*Synopsis: Tribal members brought action against federal government defendants, seeking a complete rejection of elected council's recognition as the "exclusive governing authority" of the tribe. Defendants filed motion to dismiss.

*Holdings: The District Court, Morrison C. England, Jr., J., held that:
(1) tribe and elected tribal council were indispensable parties, and
2) it was not appropriate to apply the public rights exception to save suit from dismissal for failure to join indispensable parties.
Motion granted.

Sandy Lake Band of Mississippi Chippewa v. U.S.
2012 WL 1581078
Civil No. 11?2786 (DWF/LIB)
United States District Court, D. Minnesota, May 4, 2012.

*Synopsis: (from the opinion) "Plaintiff brought a previous lawsuit against the United States and several employees of the Department of Interior, asserting claims for Violation of the Federally Recognized List Act of 1994 ("List Act"); Violation of the Indian Reorganization Act, 25 U.S.C. ? 461, et seq. ("IRA"); Violation of the Administrative Procedure Act ("APA"); Violation of the Fifth Amendment; and Breach of Trust, List Act, and IRA. The Court dismissed Plaintiff's claims, without prejudice, for failing to exhaust its sole administrative remedy?the Federal acknowledgement process. See Sandy Lake Band of Mississippi Chippewa v. United States, Civ. No. 10?3801, 2011 WL 2601840, at *4 (D.Minn. July 1, 2011) ("Sandy Lake I "). [...]"

*Holdings: (not yet available)

Coffey v. United States
870 F.Supp.2d 1202
No. CIV 08-0588 JB/LFG.
United States District Court, D. New Mexico, May 2, 2012

*Synopsis: Mother of deceased inmate brought action against government under Federal Tort Claims Act (FTCA), alleging, among other things, that Bureau of Indian Affairs (BIA) was negligent in failing to medically screen inmate prior to his transfer to different facility. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim or, in the alternative, for summary judgment.

*Holdings: The District Court, James O. Browning, J., held that:
(1) law of Nevada applied to mother's negligent screening and transfer theories;
(2) law of Arizona applied to negligent "hand off" theory;
(3) fact issues precluded summary judgment as to negligent medical screening claim;
(4) fact issues precluded summary judgment as to claim that BIA was negligent in failing to have procedures in place to facilitate transferring inmate's medical information and property;
(5) fact issues precluded summary judgment as to claim that BIA was negligent in failing to adequately screen whether county jail was appropriate facility to have inmate in light of his condition; and
(6) fact issues precluded summary judgment as to claim that BIA was negligent in transferring inmate to inappropriate facility.
Motion for summary judgment denied.

 

April

Rincon Mushroom Corporation of America v. Mazzetti
Briefs from Turtle Talk
2012 WL 1377032
No. 10?56521
United States Court of Appeals, Ninth Circuit, April 20, 2012.

*Synopsis: Memorandum disposition withdrawn on grant of rehearing July 19, 2012. For substituted memorandum disposition, see 2012 WL 2928605 [490 Fed.Appx. 11].

Gonzalez v. Arizona
677 F.3d 383
Nos. 08?17094, 08?17115
United States Court of Appeals, Ninth Circuit, April 17, 2012.

*Synopsis: Arizona residents and Indian tribes filed actions challenging validity of proposition requiring prospective voters in Arizona to present documentary proof of citizenship in order to register to vote and requiring registered voters to present proof of identification in order to cast ballot at polls. Actions were consolidated. The United States District Court for the District of Arizona, Roslyn O. Silver, Chief Judge, entered judgment in state's favor, and plaintiffs appealed. The Court of Appeals, Ikuta, Circuit Judge, 624 F.3d 1162, affirmed in part and reversed in part.

*Holdings: Upon rehearing en banc, the Court of Appeals, Ikuta, Circuit Judge, held that:
(1) Arizona's requirement that prospective voters provide documentary proof of citizenship was superseded by National Voter Registration Act (NVRA);
(2) law of the case doctrine did not bar panel from reconsidering issue following remand from earlier decision;
(3) requirement that voters provide proof of identification before voting at polls did not violate Voting Rights Act (VRA); and
(4) requirement that voters show identification at polls was not poll tax. Affirmed in part, reversed in part.

Richard v. U.S.
Briefs from Turtle Talk
677 F.3d 1141
No. 2011?5083
United States Court of Appeals, Federal Circuit, April 13, 2012.

*Synopsis: Representatives of the estates of two members of a Sioux tribe who were killed by an intoxicated driver brought suit claiming that the United States was obligated to reimburse the injured parties for losses sustained. The United States Court of Federal Claims, Margaret M. Sweeney, J., 98 Fed.Cl. 278, dismissed for lack of jurisdiction, and the representatives appealed.

*Holdings: The Court of Appeals, Wallach, Circuit Judge, held that "bad men" provision of the Laramie Treaty of 1868 is not limited to governmental actors.
Vacated and remanded.

Oklevueha Native American Church of Hawaii, Inc. v. Holder
Briefs from Turtle Talk
676 F.3d 829
No. 10?17687
United States Court of Appeals, Ninth Circuit, April 9, 2012.

*Synopsis: Native American Oklevueha church and its spiritual leader brought action against government officials, alleging that their right to use marijuana in their religion was being infringed on by federal drug laws, and asserting claims under state law for theft and conversion. The United States District Court for the District of Hawai'i, Susan Oki Mollway, Chief Judge, 719 F.Supp.2d 1217 and 2010 WL 4386737, dismissed action. Plaintiffs appealed.

*Holdings: The Court of Appeals, Murguia, Circuit Judge, held that:
(1) plaintiffs sufficiently alleged concrete plan;
(2) definite and concrete dispute regarding lawfulness of marijuana seizure came into existence;
(3) members did not have to demonstrate threat of future prosecution;
(4) preenforcement claim was ripe for review;
(5) allegations about use, possession, cultivation, and distribution of marijuana were not required;
(6) Religious Freedom Restoration Act (RFRA) did not contain exhaustion requirement;
(7) Oklevueha church had associational standing; and
(8) RFRA did not waive sovereign immunity for monetary damages.
Affirmed in part, reversed in part, and remanded.

County of Charles Mix v. United States Department of the Interior
674 F.3d 898
No. 11?2217
United States Court of Appeals, Eighth Circuit, April 6, 2012.

*Synopsis: County filed suit, under Administrative Procedure Act (APA), against Department of the Interior (DOI) to obtain declaratory and injunctive relief from decision of Bureau of Indian Affairs (BIA), affirmed by Interior Board of Indian Appeals, to grant Indian tribe's request to acquire 39 acres of on-reservation land in trust for tribe, pursuant to Indian Reorganization Act. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 799 F.Supp.2d 1027, granted DOI summary judgment. County appealed.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
(1) DOI's acquisition of land in trust did not violate Republican Guarantee Clause;
(2) county's challenge to DOI's jurisdiction to consider tribe's request was not reviewable; and
(3) DOI's acquisition of land in trust was supported by rational basis.
Affirmed.

Bernard v. United States Department of the Interior
Briefs from Turtle Talk
674 F.3d 904
No. 11?2502
United States Court of Appeals, Eighth Circuit, April 6, 2012.

*Synopsis: Owner of Indian trust land and his wife sued Department of Interior (DOI), seeking money damages for breach of trust and seeking review of decision of Interior Board of Indian Appeals (IBIA), affirming Bureau of Indian Affairs' (BIA) denial of landowner's request to set aside gift deed conveying property to himself and his cousin as joint tenants with right of survivorship. After landowners amended complaint to eliminate money damages claim and to add cousin as defendant, who later settled and agreed to deed back portion of land, the United States District Court for the District of South Dakota, Charles B. Kornmann, J. affirmed administrative decision, dismissed action, and subsequently denied landowners' motion to alter judgment by transferring damages claim to Court of Federal Claims. Landowners appealed denial of their motion to alter judgment.

*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that interest of justice did not require transfer of money damages claim. Affirmed.

United States v. Wilbur
Briefs from Turtle Talk
674 F.3d 1160
Nos. 10?30185, 10?30186, 10?30187, 10?30188
United States Court of Appeals, Ninth Circuit, April 6, 2012.

*Synopsis: Pursuant to their guilty pleas, defendants were convicted in the United States District Court for the Western District of Washington, Marsha J. Pechman, J., 2010 WL 519735, of a conspiracy to violate the Contraband Cigarette Trafficking Act (CCTA), and they appealed.

*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
(1) defendants' actions in selling unstamped cigarettes violated CCTA during periods that Indian tribe's cigarette tax contract (CTC) with state was not in effect;
(2) rules applicable to constructive amendment of indictments or variances which prejudices a defendant's substantial rights did not apply where indictment charged a single continuous conspiracy to violate the CCTA, while the facts showed two separate conspiracies with a gap between them; and
(3) neither Treaty at Point Elliott nor Washington law deprived Washington of the power to enforce its cigarette tax laws against reservation Indians' trade of tobacco.
Affirmed in part, reversed in part, and remanded. Rawlinson, Circuit Judge, filed opinion concurring in part and dissenting in part.

Alltel Communications, LLC v. DeJordy
675 F.3d 1100
No. 11?1520
United States Court of Appeals, Eighth Circuit, April 4, 2012.

*Synopsis: Tribe and tribal administrator filed motions to quash third-party subpoenas duces tecum served by telecommunications company that filed suit in another district against former senior vice president for allegedly breaching separation agreement by assisting tribe in tribal court lawsuit to enjoin company from proposed sale of assets that provided telecommunications services on Indian Reservation. The United States District Court for the District of South Dakota, Jeffrey L. Viken, J., denied motions. Tribe and tribal administrator appealed.

*Holdings: The Court of Appeals, Loken, Circuit Judge, held that tribal immunity barred enforcement of subpoenas.
Reversed.

Oklahoma v. Hobia
Briefs from Turtle Talk
2012 WL 1454885
No. 12?CV?054?GKF?TLW
United States District Court, N.D. Oklahoma, April 26, 2012.

*Synopsis: (from the opinion) "Before the court are Motions to Dismiss filed by defendants Tiger Hobia, as Town King and member of the Kialegee Tribal Town Business Committee ("Hobia") [Dkt. # 62], Florence Development Partners, LLC ("Florence") [Dkt. # 64] and the Kialegee Tribal Town, a federally chartered corporation ("Town Corporation"). [Dkt. # 70]. Defendants seek dismissal of this action for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

The State of Oklahoma ("State") filed suit on February 8, 2012, seeking declaratory and injunctive relief to prevent Hobia (as well as other tribal officers), Florence and the Town Corporation from proceeding with the construction and operation of the proposed "Red Clay Casino" in Broken Arrow, Oklahoma. The State contends defendants are violating both the April 12, 2011, Gaming Compact between the Kialegee Tribal Town and the State ("State Gaming Compact") and the Indian Gaming Regulatory Act, 25 U.S.C. ?? 2701?2721 ("IGRA").

Hobia and the Town Corporation assert they are protected by sovereign immunity and are not proper parties. All three defendants argue the court lacks Article III jurisdiction because the State lacks standing to bring this suit. Further, defendants contend the controversy is not ripe for judicial review."

*Holdings: (not yet available)

United States v. Walker River Irrigation District
2012 WL 1424178
Nos. 3:73?cv?00127?ECR?WGC, 3:73?cv?00128?ECR?WGC
United States District Court, D. Nevada, April 23, 2012.

*Synopsis: (from the opinion) "This litigation involves rights to and the administration of the Walker River system. Now pending are three objections by Defendant Walker River Irrigation District ("WRID") to Orders of the Magistrate Judge. [...]

The Walker River is an interstate stream system that begins in California and flows into Nevada and through the Walker River Paiute Reservation ("Reservation"), just before ending in Walker Lake. (Pls. Status Report at 4 (3:73?cv?00125, # 1054).) This litigation over rights to and administration of the Walker River system began in 1924, when the United States sued the WRID and others to quiet title to a federal reserved water right claim for the Reservation and to determine the relative rights to water of parties in Nevada and California. (Id.) The initial action by the United States led to a Decree entered by this Court which was "deemed to determine all of the rights of the parties to this suit and their successors in interest in and to the waters of Walker River and its tributaries as of the 14th day of April, 1936." (Id. at 5.) The Court retained jurisdiction "for the purpose of changing the duty of water or for correcting or modifying this decree; also for regulatory purposes."

*Holdings: (not yet available)

Pueblo of Santa Ana v. Nash
Briefs from Turtle Talk
854 F.Supp.2d 1128
Civ. No. 11?0957 BB?LFG
United States District Court, D. New Mexico, April 10, 2012.

*Synopsis: After Supreme Court of New Mexico, 150 N.M. 258, 258 P.3d 1050, affirmed New Mexico Court of Appeals' decision, 148 N.M. 534, 238 P.3d 903, that state court had jurisdiction over wrongful death action against tribal casino, casino operator filed Section 1983 action seeking declaration that the Indian Gaming Regulatory Act (IGRA) did not permit the shifting of jurisdiction from tribal courts to state courts over private personal injury lawsuits brought against tribes or tribal entities with respect to claims arising within Indian country, and an order prohibiting state court judge from exercising jurisdiction over the state court proceeding commenced by personal representatives of estates of individuals killed in a single-vehicle automobile accident as result of casino employees' alleged negligence. Personal representatives moved to dismiss for want of federal subject matter jurisdiction under the Rooker?Feldman doctrine. State court judge also moved to dismiss on various grounds.

*Holdings: The District Court, Bruce D. Black, J., held that:
(1) Rooker?Feldman was not implicated;
(2) Younger abstention was not appropriate;
(3) injunction against state court proceeding was not subject to the bar of the Anti?Injunction Act; and
(4) state was not indispensable party.
Motions granted in part and denied in part.

Western Sky Financial, LLC v. Maryland Commissioner of Financial Regulation
2012 WL 1284407
Civil No. WDQ?11?1256
United States District Court, D. Maryland, Northern Division, April 9, 2012.

*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 plaintiffs' motion for reconsideration will be denied; their motion for leave to file an amended complaint will be granted."

*Holdings: (not yet available)

Admiral Insurance Company v. Blue Lake Rancheria Tribal Court
Briefs from Turtle Talk
2012 WL 1144331
No. 5:12?cv?01266?LHK
United States District Court, N.D. California, San Jose Division, April 4, 2012.

*Synopsis: (from the opinion) "On March 20, 2012, the Court issued an order, ECF No. 13, denying without prejudice Plaintiff's original application for a temporary restraining order ("TRO"). ECF No. 8 ("Ex Parte TRO Appl."). Before the Court is Plaintiff Admiral Insurance Company's ("Admiral") renewed application for a temporary restraining order and order to show cause why a preliminary injunction should not be issued against Defendant Blue Lake Rancheria Tribal Court ("Tribal Court"); the Honorable Lester J. Marston, Chief Judge of the Blue Lake Rancheria Tribe ("Judge Marston"); Wood's Roofing Inc. ("WRI"); and Does 1?10 (collectively "Defendants"). Admiral's Appl. for TRO and Order to Show Cause Why Prelim. Inj. Should Not Be Issued ("TRO Appl."), ECF No. 18. On March 27, 2012, the Tribal Court and Judge Marston filed a joint opposition ("Tribe Opp'n"), ECF No. 26, and WRI filed a separate opposition ("WRI Opp'n"). ECF No. 29. For the reasons set forth below, Admiral's application for a TRO and order to show cause why a preliminary injunction should not be issued is DENIED."

*Holdings: (not yet available)

 

March

Salt River Project Agr. Imp. and Power Dist. v. Lee
Briefs from Turtle Talk
672 F.3d 1176
No. 10?17895
United States Court of Appeals, Ninth Circuit, March 15, 2012.

Amended May 29th, 2012
Amended Opinion

*Synopsis: Non-Indian employers brought action seeking declaratory judgment that tribal officials lacked authority to regulate employment relations at their plant and injunction staying former employees' claims under tribal law. The District Court, 2009 WL 89570, dismissed complaint, and employers appealed. The Court of Appeals, 371 Fed.Appx. 779, reversed and remanded. On remand, the United States District Court for the District of Arizona, James A. Teilborg, J., 2010 WL 4977621, dismissed complaint, and employers appealed.

*Holdings: The Court of Appeals, Silverman, Circuit Judge, held that tribe was not necessary party.
Reversed and remanded. 

Fletcher v. United States
Briefs from Turtle Talk
2012 WL 1109090
No. 02?CV?427?GKF?FHM
United States District Court, N.D. Oklahoma, March 31, 2012.s

Amended April 10, 2012.

*Synopsis: (from the opinion) "This matter comes before the court on the Motion to Dismiss plaintiffs' Third Amended Complaint, filed by defendants the United States of America, the Department of the Interior, Kenneth Salazar in his official capacity as Secretary of the Interior, the Bureau of Indian Affairs, and Larry EchoHawk in his official capacity as Assistant Secretary of the Interior? Indian Affairs (collectively, the "Federal Defendants"). For the reasons set forth below, the Motion to Dismiss [Dkt. # 1126] is granted.

[...]

Plaintiffs filed this case on May 31, 2002. Their complaint asserted four causes of action: (1) a claim that the Federal Defendants violated their right to political association and participation in the Osage government; (2) a claim that the Federal Defendants breached their trust responsibilities by (a) eliminating the plaintiffs' right to participate or vote in Osage tribal elections, and (b) allowing mineral royalties to be alienated to persons and entities not of Osage blood; (3) a Fifth Amendment takings claim; and (4) a claim that the federal regulations regarding the Osage Tribe violated their right to participate in their government and the defendants' trust responsibilities."

*Holdings: (not yet available)

Aguayo v. Salazar
Briefs from Turtle Talk
2012 WL 1069018
No. 12cv00551?WQH?KSC
United States District Court, S.D. California, March 29, 2012.

*Synopsis: (from the opinion) "In the Complaint, Plaintiffs allege that they are federally recognized tribe members of the Pala Band of Mission Indians ("Pala Band"). Plaintiffs allege in the Complaint that they are descendants of Margarita Britten who was identified on the Pala Band allotment roll in 1913 as 4/4 degree Pala Indian. Plaintiffs allege that on February 3, 2012, the Pala Band Executive Committee "acted outside the scope of their governing authority" by terminating their individual tribal membership rights and benefits. (ECF No. 1 at 3). Plaintiffs allege that they "are still tribal members until they are officially removed from the federally approved roll and until they have exhausted their appeal through the administrative process. The [Department of the Interior] and the [Bureau of Indian Affairs] has a fiduciary duty to protect them and preserve the status quo.""

*Holdings: (not yet available)

Alvarez v. Tracey
Briefs from Turtle Talk
2012 WL 1038746
No. CV?08?02226?PHX?DGC
United States District Court, D. Arizona, March 28, 2012.

*Synopsis: (from the opinion) "Petitioner Fortino Alvarez filed a petition for writ of habeas corpus pursuant to the Indian Civil Rights Act, 25 U.S.C. ? 1303, and 28 U.S.C. ? 2241. Doc. 1. The Petition challenges convictions and sentences that the Gila River Indian Community court imposed in four separate criminal cases regarding incidents that took place in 2003. Magistrate Judge David K. Duncan filed a Report and Recommendation ("R & R"), recommending that the Court deny the petition. Doc. 105 at 12. Alvarez filed objections to the R & R. Doc. 106. Alvarez has not requested oral argument. For the reasons that follow, the Court will accept the R & R and deny the petition."

*Holdings: (not yet available)

United Keetoowah Band of Cheeroke Indians in Oklahoma v. U.S.
104 Fed.Cl. 180
No. 06?936L.
United States Court of Federal Claims, March 27, 2012.

*Synopsis: Government moved to dismiss the complaint of an Indian tribe alleging breach of fiduciary duty with respect to alleged mismanagement of tribe's trust account.

*Holdings: The Court of Federal Claims, Wheeler, J., held that Tecon's sequence of filing rule was applicable in determining whether Court of Federal Claims had subject matter jurisdiction over Indian tribe's breach of fiduciary duty action against government where tribe filed complaint in federal district court approximately four hours after filing suit in Court of Federal Claims. Motion denied.

Mashantucket Pequot Tribe v. Town of Ledyard
Briefs from Turtle Talk
2012 WL 1069342
No. 3:06cv1212 (WWE)
United States District Court, D. Connecticut, March 27, 2012.

*Synopsis: (from the opinion) "This case concerns the authority of defendants State of Connecticut (the "State") and the Town of Ledyard (the "Town") FN1 to tax slot machines owned by non-Indian entities leased by plaintiff Mashantucket Pequot Tribe ("Tribe"). In counts one and two, the Tribe complains that the Town's property tax is preempted by federal law; in count three, the Tribe claims that the tax interferes with its ability to exercise its sovereign functions. The parties have filed cross-motions for summary judgment. For the following reasons, the plaintiff's motion for summary judgment will be granted. Defendants' motion in limine and motions for summary judgment will be denied."

*Holdings: (not yet available)

Related News Story: Judge gives nod to tribe in suit over slots taxes (TheDay.com) 03/30/12

Missouri v. Webb
Briefs from Turtle Talk
2012 WL 1033414
No. 4:11CV1237 AGF
United States District Court, E.D. Missouri, Eastern Division, March 27, 2012.

*Synopsis: (from the opinion) "Plaintiff filed this action in the Circuit Court of St. Louis County, Missouri, alleging claims for piercing of the corporate veil and violation of the Missouri Merchandising Practices Act ("MMPA"), Mo.Rev.Stat. ? 407.010 et. seq. against Defendants Martin A. Webb ("Webb"), 24?7 Cash Direct LLC, Financial Solutions LLC, Great Sky Finance LLC, High Country Ventures LLC, Management Systems LLC, Payday Financial LLC, Red River Ventures LLC, Red Stone Financial LLC, Western Capital LLC, Western Sky Financial LLC ("the Lending Companies"), certain limited liability companies organized and registered under the laws of South Dakota, engaged in the business of internet-based lending, and owned, controlled, or managed by Webb.

Defendants timely removed this action pursuant to 28 U.S.C. ?? 1331 and 1441(a), asserting in their notice of removal that Plaintiff's claims give rise to substantial, disputed questions of federal law, and that they are entitled to tribal immunity as Native? American owned businesses operating on tribal lands. Now before the Court are Plaintiff's motion to remand pursuant to 28 U.S .C. ? 1447(c), and Defendants' motion to dismiss. For the reasons set forth below, the Court will grant Plaintiff's motion to remand and, therefore, does not address the arguments set forth in Defendants' motion to dismiss."

*Holdings: (not yet available)

Quantum Entertainment, Ltd. v. Department of Interior
Briefs from Turtle Talk
848 F.Supp.2d 30
Civil Action No. 11?47 (RMU).
United States District Court, District of Columbia, March 26, 2012

*Synopsis: Company that entered into agreement to manage Indian tribe's gas distribution business brought action against Department of the Interior's (DOI) Bureau of Indian Affairs (BIA) challenging decision of DOI's Board of Indian Appeals that agreement was invalid. The parties filed cross-motions for summary judgment.

*Holdings: The District Court, Ricardo M. Urbina, J., held that:
(1) agreement required DOI approval under former version of statute governing agreements related to Native American lands, and
(2) new version of statute did not apply retroactively.
Government's motion granted.

California Valley Miwok Tribe v. Salazar
281 F.R.D. 43
Civil Action No. 11?160 (RWR)
United States District Court, District of Columbia, March 26, 2012.

*Synopsis: Federally-recognized Indian tribe, Tribal Council, and others brought action against Secretary of Department of Interior, Assistant Secretary for Indian Affairs, and others, alleging that defendants' decision to recognize General Council as tribe's legitimate government and membership violated Administrative Procedure Act (APA) and Indian Civil Rights Act (ICRA). General Council moved to intervene as of right.

*Holdings: The District Court, Richard W. Roberts, J., held that:
(1) General Council had Article III standing to intervene as of right, and
(2) intervention of General Council as of right was warranted.
Motion granted.

Bonnet v. Harvest (US) Holdings, Inc.
Briefs from Turtle Talk
2012 WL 994403
No. 2:10?cv?217 CW
United States District Court, D. Utah, Central Division, March 23, 2012.

*Synopsis: (from the opinion) "Plaintiffs served non-party Ute Indian Tribe of the Uintah and Ouray Reservations ("the Ute Tribe") with a Subpoena Duces Tecum as part of its discovery in this case. The Ute Tribe moved to quash the subpoena, asserting tribal sovereign immunity. Magistrate Judge Brooke Wells issued a Ruling and Order on August 11, 2011 denying the Ute Tribe's motion to quash the subpoena. [Ruling and Order ("Ruling and Order"), Dkt No. 56 (Aug. 29, 2011) ]. The Ute Tribe objected, Plaintiffs responded, and both parties submitted supplemental memoranda. Briefing on the objection was completed on February 15, 2012. For the reasons stated below, the court now AFFIRMS IN PART and REVERSES IN PART the contested Ruling and Order."

*Holdings: (not yet available)

Santana v. Muscogee (Creek) Nation ex rel. River Spirit Casino
Briefs from Turtle Talk
2012 WL 896243
No. 11?CV?782?JHP?PJC
United States District Court, N.D. Oklahoma, March 15, 2012.

*Synopsis: (from the opinion) "Before the Court are Defendant Muscogee (Creek) Nation's Motion to Dismiss,FN1 Plaintiff's FRCP Rule 18[sic] Motion to Add Claims, FN2 Plaintiff's Notice and Motion for FRCP Rule 20[sic] Joinder of State of Oklahoma as a Party Defendant,FN3 Defendant's Motion to Strike Plaintiff's (2nd) Supplemental Response to Motion to Dismiss, and Plaintiff's Objection to Defendant's Motion to Strike and Motion for Leave to Amend Objection to Defendant's Motion to Dismiss.FN4 Plaintiff has responded to the Motion to Dismiss and has also supplemented that response on two separate occasions.FN5 Defendant has responded to each of Plaintiff's filings and has filed a Reply to Plaintiff's Response on the Motion to Dismiss.FN6 The Court considers each of these motions fully briefed and at issue. For the reasons detailed below, Defendant's Motion to Dismiss is GRANTED. [?]

Plaintiff opens his complaint by stating that he is a gambling addict. FN10 Plaintiff alleges that Defendant was unjustly enriched by allowing Plaintiff to gamble at the Defendant's casino.FN11 Plaintiff further alleges that Defendant's advertising unfairly targets those with gambling addiction and that as a result, Plaintiff spent more than $60,000 in student loan money .FN12 Plaintiff also seeks to add a claim of negligence per se, for the failure of casino employees to ask him to leave "as is contemplated in Part 5(E)(4) of the Model Gaming Compact" and seeks declaratory relief from this Court that would order the state of Oklahoma to "do what's right" and enter the case to defend its interests under Part 6 of the Compact.FN13 Plaintiff fleshed out this second request in his Federal Rule of Civil Procedure 20 motion to join Oklahoma as a party defendant."

*Holdings: (not yet available)

Confederated Tribes and Bands of the Yakama Nation v. Holder
Briefs from Turtle Talk
2012 WL 893913
No. CV?11?3028?RMP
United States District Court, E.D. Washington, March 15, 2012.

*Synopsis: (from the opinion) "This case originated out of an entry by federal and state agents onto the reservation land of the Plaintiff, Confederated Tribes and Bands of the Yakama Nation ("Nation"). The Nation brought the action seeking declaratory and injunctive relief against a myriad of government defendants both local and federal. Yakima County ("County") is one of the defendants against whom the Nation seeks an injunction.

After the filing of this case, the Nation alleges that the County has made other entries onto Nation land without Nation permission. Of particular note were two entries onto Nation trust land by County officers effecting an arrest warrant for enrolled member, and tribal elder, Jessie M. Sampson. In response to the recent entries onto Nation trust land without permission, and in response to the apparent position of the County that such permission was not required, the Nation filed the instant motion seeking a temporary restraining order and preliminary injunction restricting the County from entering trust land without permission by the Nation."

*Holdings: (not yet available)

Center for Biological Diversity v. Pizarchik
858 F.Supp.2d 1221
Civil Case No. 11?cv?00243?REB?CBS.
United States District Court, D. Colorado, March 14, 2012

*Synopsis: Environmental groups brought action against director of Office of Surface Mining Reclamation and Enforcement and United States Secretary of Interior, challenging defendants' grant of permit for operation of coal mine on Navajo tribal land. The coal company and Native? American tribe intervened and then moved to dismiss complaint for failure to join required party.

*Holdings: The District Court, Blackburn, J., held that:
(1) tribe enjoyed sovereign immunity;
(2) tribe was required party, based on its economic interest in suit's outcome; and
(3) action could not in equity and good conscience proceed without joining tribe.
Motion granted.

Warren v. United States
Briefs from Turtle Talk
859 F.Supp.2d 522
No. 06?CV?226S
United States District Court, W.D. New York, March 13, 2012.

*Synopsis: Taxpayer brought action against United States, Department of the Interior, National Indian Gaming Commission (NIGC), various individual federal officials, governor of New York, and chair of the New York State Racing and Wagering Board, alleging that Indian Gaming Regulatory Act (IGRA) was unconstitutional, that Gaming Compact between New York and tribe was invalid, and violation of United States' trust obligation toward Indian nations and tribes. Defendants moved to dismiss, and taxpayer moved to amend.

*Holdings: The District Court, William M. Skretny, Chief Judge, held that:
(1) taxpayer lacked standing to bring claims alleging violation of Tenth Amendment;
(2) taxpayer lacked standing to challenging validity of IGRA;
(3) taxpayer's suit against governor of New York was barred by Eleventh Amendment sovereign immunity; and
(4) gaming corporation was government instrumentality entitled to tribal sovereign immunity.
Defendants' motion granted; Plaintiff's motion denied.

Equal Opportunity Employment Commission v. Peabody Western Coal Company
2012 WL 748301
No. 2:01?cv?01050 JWS
United States District Court, D. Arizona, March 7, 2012.

*Synopsis: (from the opinion) "This lawsuit was filed in 2001 and arises out of lease provisions requiring that Peabody, a coal mining company which leases land from the Nation, provide employment preference to Navajo job applicants over other applicants."

*Holdings: (not yet available)

Chalepah v. Salazar
2012 WL 728280
No. CIV?11?99?M
United States District Court, W.D. Oklahoma, March 5, 2012.

*Synopsis: Indian tribe sued United States, seeking money damages, declaratory judgment, and injunction for alleged breach of duties as trustee of tribe's assets that resulted in financial losses. Government moved to dismiss for lack of subject matter jurisdiction.

*Holdings: The Court of Federal Claims, Allegra, J., held that jurisdiction was not barred by statute governing pendency of claims in other courts.
Motion denied.

 

February

Muscogee (Creek) Nation v. Pruitt
Briefs from Turtle Talk
669 F.3d 1159
No. 11?7005
United States Court of Appeals, Tenth Circuit, February 28, 2012.

*Synopsis: Indian tribe brought action alleging that Oklahoma's tobacco tax-stamp scheme violated federal law and tribal sovereignty. The United States District Court for the Eastern District of Oklahoma dismissed complaint, and tribe appealed.

*Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) district court had subject matter jurisdiction over matter;
(2) requirement that retailers on Indian reservations obtain state tax exemption certificates was not preempted by federal statute;
(3) requirement that tribally-licensed retailers purchase tobacco products from state-licensed wholesalers did not impermissibly infringe on tribal self-governance;
(4) use of probable-demand formula to limit number of tax-free stamps did not impose impermissible burden on tribal self-governance;
(5) state's practice seizing cigarettes outside Indian country that did not have tax or tax-free stamp did not impermissibly infringe on tribe's sovereignty;
(6) statutes did not unduly interfere with tribal members' ability to buy cigarette brands of their choosing; and
(7) Indian trader statute did not preempt statutes requiring tobacco manufacturers that did not join master settlement agreement (MSA) to pay into escrow fund.
Affirmed.

Large v. Fremont County, Wyoming
Briefs from Turtle Talk
670 F.3d 1133
No. 10?8071
United States Court of Appeals, Tenth Circuit, February 22, 2012.

*Synopsis: Enrolled members of Eastern Shoshone and Northern Arapaho Tribes brought action against county, members of county commission, and county clerk, in their official capacities, alleging, among other things, that county's at-large method for county commission elections violated Voting Rights Act. The United States District Court for the District of Wyoming, Alan B. Johnson, J., declared that election system violated Voting Rights Act. The United States District Court rejected the County Board of Commissioners' proposed hybrid remedial plan and fashioned a remedial plan solely consisting of single-member districts. Defendants appealed.

*Holdings: The Court of Appeals, Holmes, Circuit Judge, held that:
(1) Board's proposed hybrid election scheme was not a legislative plan entitled to deference, and
(2) district court did not abuse its discretion in fashioning a remedial plan solely consisting of single-member districts.
Affirmed.

Save the Peaks Coalition v. U.S. Forest Service
Briefs from Turtle Talk
669 F.3d 1025
No. 10?17896
United States Court of Appeals, Ninth Circuit, Feb. 9, 2012.

*Synopsis: Environmental group and individuals brought action under National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA) challenging United States Forest Service's (USFS) decision to approve snowmaking project at existing ski area in national forest. Ski resort operator intervened. The United States District Court for the District of Arizona, Mary H. Murguia, J., 2010 WL 4961417, entered summary judgment in favor of USFS and intervenor, and plaintiffs appealed.

*Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that:
(1) action was not barred by laches;
(2) final environmental impact statement (FEIS) adequately considered risks posed by human ingestion of snow made from reclaimed water; and
(3) USFS did not violate its duty to ensure scientific integrity of discussion and analysis in FEIS.

Kaw Nation of Oklahoma v. United States
103 Fed.Cl. 613
No. 06?934L
United States Court of Federal Claims, Feb. 29, 2012

*Synopsis: Indian tribe sued United States, seeking money damages, declaratory judgment, and injunction for alleged breach of duties as trustee of tribe's assets that resulted in financial losses. Government moved to dismiss for lack of subject matter jurisdiction.

*Holdings: The Court of Federal Claims, Allegra, J., held that jurisdiction was not barred by statute governing pendency of claims in other courts.
Motion denied.

Knows His Gun v. Montana
866 F.Supp.2d 1235
Case No. CV?11?42?H?CCL.
United States District Court, D. Montana, Helena Division, February 29, 2012

*Synopsis: Native American state prisoners brought action against state, state department of corrections (DOC), private prison facility, and wardens, alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). Defendants filed motion to dismiss.

*Holdings: The District Court, Charles C. Lovell, Senior District Judge, held that:
(1) allegations were sufficient to plead searches were a substantial burden on their religious exercise;
(2) allegations were sufficient plead confiscations and prohibitions were a substantial burden on their religious exercise;
(3) allegations about relieving prisoner from pipe carrier position were sufficient to plead it was substantial burden on his religious exercise;
(4) transferred prisoners did not have standing for claims for injunctive and declaratory relief;
(5) facility was a state actor; and
(6) facility was an instrumentality of the state.
Motion granted in part and denied in part.

KG Urban Enterprises, LLC. v. Patrick
Briefs from Turtle Talk
839 F.Supp.2d 388
Civil No. 11?12070?NMG
United States District Court, D. Massachusetts, Feb. 16, 2012

*Synopsis: Casino development company brought action challenging provisions of Massachusetts Act Establishing Expanded Gaming in the Commonwealth, alleging certain provisions violated the Equal Protection Clause and the Massachusetts Declaration of Rights, and were pre-empted by the Indian Gaming Regulatory Act (IGRA). Company moved for a preliminary injunction.

*Holdings: The District Court, Gorton, J., held that:
(1) company's action was ripe;
(2) company had standing to bring challenge to provision of Massachusetts Act authorizing governor to enter into a Tribal?State casino gaming compact;
(3) company lacked standing to challenge provision of Massachusetts Act requiring at least one member of Gaming Policy Advisory Committee (GPAC) be a representative of a federally recognized Indian tribe;
(4) Massachusetts Act was not preempted by the IGRA;
(5) rational basis review applied to company's equal protection challenge to Massachusetts Act; and
(6) challenged provisions of Massachusetts Act were consistent with the Equal Protection Clause.
Motion denied.

Grondal v. United States
Briefs from Turtle Talk
2012 WL 523667
No. CV?09?0018?JLQ
United States District Court, E.D. Washington, Feb. 16, 2012

*Synopsis: (from the opinion) "Plaintiffs filed their Complaint on January 21, 2009. Plaintiffs have acquired memberships in and are tenants/occupants of the Mill Bay Resort, a campground located on Lake Chelan in Chelan County, Washington. The Mill Bay Resort exists on real property known as Moses Allotment No. 8, also known as Indian Allotment 151?MA?8 ("MA?8"), which consists of approximately 174.26 acres on the shores of Lake Chelan. MA?8 is part of an original allotment authorized under the Moses Agreement of July 7, 1883 as ratified by 23 Stat. 79?80, July 4, 1884 and conveyed to Wapato John through two trust patents. The history of the creation of MA?8 and other Moses Agreement allotments has been discussed elsewhere, including in this court's decision on summary judgment (ECF No. 144), in Wapato Heritage, LLC v. U.S., 637 F.3d 1033 (9th Cir.2011), and in U.S. v. La Chappelle, 81 F. 152 (C.C.Wash.1897), United States v. Moore, 161 F. 513 (9th Cir.1908), and Starr v. Long Jim, 227 U.S. 613, 33 S.Ct. 358, 57 L.Ed. 670 (1913)."

*Holdings: (not yet available)

United States v. Ganadonegro
854 F.Supp.2d 1068
No. CR 09?0312 JB
United States District Court, D. New Mexico, Feb. 14, 2012

*Synopsis: Following mistrial in prosecution for first-degree murder in Indian country, arising out of allegations of intentional child abuse, superseding indictment was issued charging defendant with second-degree murder in Indian country, voluntary manslaughter in Indian country, and negligent child abuse resulting in death, under New Mexico law, in Indian country. Defendant moved to dismiss the child abuse count.

*Holdings: The District Court, James O. Browning, J., held that:
(1) Government could properly prosecute defendant's alleged violation of New Mexico statute prohibiting negligent child abuse resulting in death, under the Indian Major Crimes Act (IMCA);
(2) indictment was not multiplicitous in charging defendant with second-degree murder in Indian country and negligent child abuse resulting in death under New Mexico law; and
(3) indictment was not multiplicitous in charging defendant with voluntary manslaughter in Indian country and negligent child abuse resulting in death under New Mexico law.
Motion denied.

 

Slockish v. United States Federal Highway Administration
Briefs from Turtle Talk
2012 WL 398989
No. 3:08?CV?1169?ST
United States District Court, D. Oregon., Feb. 7, 2012

*Synopsis: (from the opinion) "Plaintiffs allege in their Second Amended Complaint that between July 2008 to July 2009 Federal Defendants' road-widening project on Highway 26 in the vicinity of the Wildwood Recreation Area near Welches, Oregon, severely damaged Plaintiffs' sacred burial grounds, traditional campsite, and other historic, cultural, and natural resources. As a result of the project, Plaintiffs contend their access route from the highway to the campsite was blocked.

Plaintiffs assert Defendant Garrett, acting in his capacity as Director of the Oregon Department of Transportation, was involved with Federal Defendants in the road-widening project.

2 Plaintiffs contend each of the Defendants' actions in the course of the road-widening project violated Plaintiffs' rights to due process under the Fifth Amendment and their rights to exercise their religion freely under the First Amendment to the United States Constitution, and the Public Trust Doctrine."

*Holdings: (not yet available)

Colombe v. Rosebud Sioux Tribe
Briefs from Turtle Talk
835 F.Supp.2d 736
No. CIV 11?3002?RAL.
United States District Court, D. South Dakota, Central Division, February 2, 2012

*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.

Big Lagoon Rancheria v. California
Briefs from Turtle Talk
2012 WL 298464
No. C 09?1471 CW
United States District Court, N.D. California, Feb. 1, 2012

*Synopsis: (from the opinion) "Defendant State of California seeks leave to file a motion to vacate the Mediator's order selecting a compact or, in the alternative, to stay these proceedings pending the completion of the parties' cross-appeals of the Court's November 22, 2010 order granting the motion of Plaintiff Big Lagoon Rancheria (Big Lagoon or the Tribe) for summary judgment and denying Defendant's cross-motion for summary judgment. Big Lagoon opposes both motions. The Court took the State's motions under submission on the papers. Having considered the arguments in the parties' papers, the Court DENIES the State's motion for leave to file an order to vacate the Mediator's order selecting a compact and GRANTS the State's motion to stay pending appeal."

*Holdings: (not yet available)

 

January

South Dakota v. United States Department of Interior
665 F.3d 986
No. 11?1745
United States Court of Appeals, Eighth Circuit, Jan. 11, 2012.

*Synopsis: State brought action challenging Secretary of Interior's decision to accept transfer of land into trust for benefit of Indian tribe. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 775 F.Supp.2d 1129, granted summary judgment in favor of the Secretary, and State appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) State had Article III standing, but
(2) State lacked standing to bring a constitutional due process claim.
Appeal dismissed.

Miranda v. Anchando
Briefs from Turtle Talk
684 F.3d 844
Nos. 10?15167, 10?15308
United States Court of Appeals, Ninth Circuit, Amended Feb. 6, 2012.

To see the Ninth Circuit, August 17th decision in Mirando v. Anchando please see our 2011 Archive

*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, 2010 WL 148218, granted the petition. Respondents appealed.

*Holdings: The Court of Appeals, Sammartino, District Judge, sitting by designation, 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.

United States v. Juvenile Male
670 F.3d 999
Nos. 09?30330, 09?30273, 09?30365
United States Court of Appeals, Ninth Circuit, January 25, 2012.

*Synopsis: Three juvenile defendants, each of whom was a member of an Indian tribe and who pleaded true to a charge of aggravated sexual abuse with children in the United States District Court for the District of Montana, Richard F. Cebull, Chief Judge, and Sam E. Haddon, J., appealed their conditions of probation or supervision requiring registration under the Sex Offender Registration and Notification Act (SORNA).

*Holdings: The Court of Appeals, Wardlaw, Circuit Judge, held that:
(1) SORNA registration requirement as applied to certain juvenile delinquents in cases of aggravated sexual abuse superseded conflicting confidentiality provisions of Federal Juvenile Delinquency Act (FJDA), and
(2) SORNA registration requirement did not violate juveniles' constitutional rights.
Affirmed.

United States v. Juvenile Male
Briefs from Turtle Talk
666 F.3d 1212
No. 11?30065
United States Court of Appeals, Ninth Circuit, January 20, 2012.

*Synopsis: Juvenile was convicted in the United States District Court for the District of Montana, Sam E. Haddon, J., under Major Crimes Act. Juvenile appealed.

*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that juvenile was an "Indian" under Major Crimes Act.
Affirmed.

 

South Dakota v. United States Department of Interior
665 F.3d 986
No. 11?1745
United States Court of Appeals, Eighth Circuit, January 11, 2012.

*Synopsis: State brought action challenging Secretary of Interior's decision to accept transfer of land into trust for benefit of Indian tribe. The United States District Court for the District of South Dakota, Roberto A. Lange, J., 775 F.Supp.2d 1129, granted summary judgment in favor of the Secretary, and State appealed.

*Holdings: The Court of Appeals, Riley, Chief Judge, held that:
(1) State had Article III standing, but
(2) State lacked standing to bring a constitutional due process claim. Appeal dismissed.

 

The Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States
672 F.3d 1021
No. 2010?5150
United States Court of Appeals, Federal Circuit, January 9, 2012.

*Synopsis: Indian tribes brought actions against United States for breach of fiduciary duty in management and payment of royalties on oil and gas production on Indian lands. Actions were consolidated. The United States Court of Federal Claims, Emily C. Hewitt, Chief Judge, 93 Fed.Cl. 449, granted summary judgment for United States. Tribes appealed.

*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
(1) tribes had not been prevented from knowing all material facts that established government's liability;
(2) government's misstatements and omissions did not toll accrual of statute of limitations for their claim;
(3) tribes should have known that oil and gas leases had not been competitively bid;
(4) Interior Appropriations Act did not reach claims related to trust assets involving losses resulting from terms of contract being suboptimal;
(5) failure to strictly comply with requirements of Non-intercourse Act rendered any resulting conveyance void;
(6) government's unauthorized lease of Indian land to third parties for oil and gas production did not create implied right for lessees to extract oil and gas from that land; and
(7) remand was required.
Vacated and remanded.

United States v. Bryant
664 F.3d 831
No. 11?7029
United States Court of Appeals, Tenth Circuit, January 5, 2012.

*Synopsis: Defendant conditionally plead guilty in the United States District Court for the Eastern District of Oklahoma to theft by an officer or employee of a gaming establishment on Indian lands, reserving the right to appeal the denial of her motion to dismiss for lack of jurisdiction. Defendant appealed.

*Holdings: The Court of Appeals, Kelly, Circuit Judge, held that district court had subject matter jurisdiction over action.
Affirmed.

Belinda K. v. County of Alameda
2012 WL 273720
No. 10?CV?05797?LHK
United States District Court, N.D. California, San Jose Division, January 30, 2012

*Synopsis: (from the opinion) "ORDER DENYING MOTION TO STAY; DENYING MOTION TO REMOVE GUARDIAN AD LITEM; DENYING MOTION TO INVALIDATE PROTECTIVE ORDER [...]

*1 Before the Court are Plaintiff's Motion to Stay the Litigation, Plaintiff's Motion to Remove Guardian Ad Litem, and Plaintiff's Motion to Invalidate Protective Order under ICWA. See ECF Nos. 169, 204, 213. The underlying events giving rise to this civil suit relate to state court child custody proceedings. The facts underlying the litigation are set forth in this Court's July 8, 2011 Order, and will not be recited in full here. See ECF No. 153. Pursuant to Civil Local Rule 7?1(b), the Court deems Defendants' motions suitable for decision without oral argument. For the foregoing reasons, Plaintiff's pending motions are DENIED."

*Holdings: (not yet available)

Rolling Frito-Lay v. Stover
Briefs from Turtle Talk
2012 WL 252938
CV 11-1361-PHX-FJM
United States District Court, District of Arizona, January 26, 2012

*Synopsis: (from the opinion) "The facts are undisputed. The On-Auk-Mor Trade Center ("On-Auk-Mor") is owned by defendant Montiel and located on the Salt River Pima-Maricopa Indian Reservation. Montiel is a tribal member. Plaintiff, a non-Indian limited partnership, provides products to On-Auk-Mor for sale. Defendant Rebecca Stover, a non-Indian, visited On-Auk-Mor, slipped on one of plaintiff's boxes, fell, and was injured.

Stover filed an action in the Superior Court of Arizona in Maricopa County against plaintiff, Montiel, and On-Auk-Mor on May 14, 2010. In August 2010, the Superior Court dismissed all claims against Montiel and On-Auk-Mor because, as tribal members, they were not subject to state jurisdiction. Much later, in April 2011, the Superior Court dismissed Stover's claim against plaintiff without prejudice for lack of prosecution. It is unclear why Stover abandoned her claim against plaintiff in a court which clearly had jurisdiction. Stover brought an action in tribal court against plaintiff, where only special tribal advocates are permitted to appear.

Plaintiff filed this action, seeking, among other things, to enjoin Stover from proceeding against plaintiff in tribal court. "

*Holdings: (not yet available)

 

Menominee Indian Tribe of Wisconsin v. United States
Briefs from Turtle Talk
841 F.Supp.2d 99
No. 07?cv?0812 (RMC)
United States District Court, District of Columbia, January 24, 2012

*Synopsis: Indian tribe that operated health care system for tribal members pursuant to self-determination contract with Secretary of Health and Human Services (HHS) brought action against HHS, alleging breach of that contract. HHS moved to dismiss. The United States District Court for the District of Columbia, 539 F.Supp.2d 152,dismissed claims in part, and, 2008 WL 3919158, denied tribe's motion to reconsider. The United States Court of Appeals for the District of Columbia Circuit, 614 F.3d 519, reversed and remanded. On remand, the government moved to dismiss, or alternatively for summary judgment, and tribe filed cross-motion for summary judgment.

*Holdings: The District Court, Rosemary M. Collyer, J., held that:
(1) six-year limitation period for presenting administrative claims could not be equitably tolled;
(2) claims based on contract executed before there was a statute of limitations was not subject to the statute of limitations in the Contract Disputes Act; and
(3) argument that Indian tribe's 1999 and 2000 stable-funding claims was not barred by the statute of limitations that ran with the tribe's 1997 or 1998 shortfall claims was foreclosed by the law of the case.
Defendant's motions granted in part and denied in part; plaintiff's motion denied.

Dolgencorp Inc. v. Mississippi Band of Choctaw Indians
846 F.Supp.2d 646
Civil Action No. 4:08CV22TSL?FKB
United States District Court, S.D. Mississippi, December 21, 2011

*Synopsis: Non-Indian owner and non-Indian manager of general store operated on trust land on Choctaw Indian Reservation filed suit against tribe, tribal court, and minor tribal member by and through his parents, seeking determination that tribal court lacked jurisdiction over parents' underlying complaint seeking to hold owner vicariously liable for manager's alleged molestation of minor tribe member while he was assigned to work at general store as part of tribe's youth opportunity program (TYOP), and seeking to hold owner directly liable for alleged negligence in hiring, training, and supervising manager. The District Court, Tom S. Lee, J., 2008 WL 5381906, denied motion by owner and manager for preliminary injunction against further proceedings in tribal court pending final determination regarding tribal jurisdiction. All parties cross-moved for summary judgment.

*Holdings: The District Court, Tom S. Lee, J., held that tribal court had jurisdiction over underlying claims against owner and manager.
Plaintiffs' motion denied; defendants' motions granted.

United States v. Youngbear
2012 WL 176247
No. 11?CR?151?LRR
United States District Court, N.D. Iowa, Cedar Rapids Division, January 20, 2012

*Synopsis: (from the opinion) "In this case, the issue is whether Defendant's Fourth Amendment rights were violated if Judge Mahoney exceeded her warrant-issuing authority. Defendant argues that there was a Fourth Amendment violation: ?In this case, the tribal court lacked the authority to issue the warrant, as ... it did not seek evidence of a tribal offense and, thus, was lacking in probable cause.? Objections at 12. The court agrees that, if Judge Mahoney lacked the authority to issue a search warrant for evidence of a federal offense and the warrant sought evidence relating solely to a federal offense, the search violated Defendant's Fourth Amendment rights. "

*Holdings: (not yet available)

Robinson v. Salazar
838 F.Supp.2d 1006
No. 09?cv?01977?BAM
United States District Court, E.D. California, January 18, 2012

*Synopsis: Indian group and its chairman brought action against Secretary of the Interior, county, and land developers, claiming right to occupy some or all of 270,000 acres proposed for development. Defendants filed separate motions to dismiss.

*Holdings: The District Court, Barbara A. McAuliffe, United States Magistrate Judge, held that:
(1) plaintiffs were entitled to leave to amend complaint to challenge validity of land patents;
(2) plaintiffs were entitled to leave to amend complaint to allege continued occupancy of land;
(3) neither Treaty with the Utah nor Treaty D provided plaintiffs with basis for their claim to subject lands;
(4) lands did not constitute established reservation;
(5) plaintiffs were entitled to leave to amend complaint to assert that lands constituted de facto reservation;
(6) plaintiffs' allegations were insufficient to allege that group constituted "tribe" under Indian Nonintercourse Act (NIA);
(7) plaintiffs' allegations were insufficient to state claim under Native American Graves Protection and Repatriation Act (NAGPRA);
(8) plaintiffs failed to state ? 1983 claim against county;
(9) plaintiffs' claim under California Environmental Quality Act (CEQA) was barred under Rooker?Feldman doctrine;
(10) plaintiffs were entitled to leave to amend their declaratory judgment claim against Secretary.
Motions granted in part and denied in part.

Winnemucca Indian Colony v. United States Department of the Interior
2012 WL 78198
No. 3:11?cv?00622?RCJ?VPC
United States District Court, D. Nevada, January 10, 2012

*Synopsis: (from the opinion) "This case arises out of the refusal of the U.S. Department of the Interior ("DOI") to recognize a government of the Winnemucca Indian Colony (the "Colony") and the interference of the Bureau of Indian Affairs ("BIA") with activity on colonial land. The Court issued a temporary restraining order ("TRO") ordering the BIA to grant interim recognition to some person or persons but not enjoining any BIA activity on Colony land. The Court then granted a preliminary injunction in part, "enjoin[ing] the BIA from interfering with activities on colonial land by Wasson and his agents" and noting that "[u]ntil some tribal court says otherwise or Bills appears and is heard to object (making the Council's vote 1?1), Wasson represents the will of the Council under the [ Indian court's] ruling." "

*Holdings: (not yet available)

J.L. Ward Associates v. Great Plains Tribal Chairmen's Health Board
842 F.Supp.2d 1163
No. CIV 11?4008?RAL.
United States District Court, D. South Dakota, Southern Division, January 13, 2012

*Synopsis: Consultant that prepared application for Access to Recovery (ATR) grant on behalf of non-profit corporation created by sixteen Indian tribes to provide tribes with single entity to communicate and participate with federal agencies on health matters brought action alleging breach of contract, promissory estoppel, negligent misrepresentation, fraudulent misrepresentation, unjust enrichment, and infringement on its copyrights. Corporation moved to dismiss complaint.

*Holdings: The District Court, Roberto A. Lange, J., held that:
(1) corporation was tribal entity entitled to sovereign immunity;
(2) dispute resolution clause in parties' contract did not waive entity's sovereign immunity to allow federal court to address merits of claims; and
(3) corporation was citizen of South Dakota, for diversity purposes.

Motion granted in part.

Fritcher v. Zucco
2012 WL 78257
No. 1:11?cv?02071?AWI?JLT
United States District Court, E.D. California, January 10, 2012

*Synopsis: (from the opinion) "Plaintiff appears to allege that Defendants were properly served with a request for documents pertaining to the Housing Improvement Program (?HIP?) but that Defendants refused to provide these documents. (Doc. 1 at 4?5.) Plaintiff contends that Defendants refusal to provide the documents violates federal law, provided under the Freedom of Information Act, (?FOIA?), 5 U.S.C. ? 522.
[...]
Under Ninth Circuit law, tribal immunity has been extended so that a lawsuit cannot be brought indirectly against a tribe by suing its officers or even its employees. [...]"

*Holdings: (not yet available)

Dupris v. McDonald
2012 WL 37366
Nos. 08?8132?PCT?PGR, 08?8133?PCT?PGR
United States District Court, D. Arizona, January 9, 2012

*Synopsis: For superseding opinion, see 2012 WL 210722.

In re Krystal Energy Co. Inc.
2012 WL 32636
Bankruptcy No. 2:01?00166?GBN. Adversary No. 01?ap?00171?GBN.
United States Bankruptcy Court, D. Arizona, January 6, 2012

*Synopsis: (from the opinion) "This adversary proceeding seeks, inter alia, to adjudicate a demand for damages by the Chapter 11 bankruptcy estate of Krystal Energy Co., Inc. against the Navajo Nation, a sovereign Indian tribe. Plaintiff filed a Chapter 11 bankruptcy case in the District of Arizona on January 5, 2001. On April 8, 2003, the case was dismissed by stipulated order between the Chapter 11 bankruptcy trustee and the United States Trustee, effective as of February 14, 2003 and reserving to this court jurisdiction over this adversary proceeding."

*Holdings: (not yet available)

 

 

 

 

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