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Indian Law Bulletins  |  U.S. Supreme Court  | 2002-2003 Term

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Four Indian law cases have been decided by the Supreme Court in the 2002-2003 term.

Grutter v. Bollinger
539 U.S. 306
(This is not an Indian law case but is of significant importance to the Indian community.)
Docket No. 02-241
Briefs & Pleadings: Brief: Grutter,
Brief: U. of Michigan
, Brief: Dept. of Justice
Oral Argument Transcripts

Subjects: Affirmative action programs -- Michigan; University of Michigan. Law School -- Admission; Minorities -- Education (Higher) -- United States; Equality before the law -- United States; United States. Constitution. 14th Amendment; United States. Civil Rights Act of 1964. Race. Ethnicity.

*Issues: (1) Does University of Michigan Law School's use of racial preferences in student admissions violate equal protection clause of 14th Amendment, Title VI of 1964 Civil Rights Act (42 U.S.C. § 2000d), or 42 U.S.C. § 1981? (2) Should appellate court required to apply strict scrutiny to governmental race-based preferences review de novo district court's findings because fact issues are "constitutional"?

Holdings: (from Westlaw) The Supreme Court, Justice O'Connor, held that:
(1) law school had a compelling interest in attaining a diverse student body; and
(2) admissions program was narrowly tailored to serve its compelling interest in obtaining the educational benefits that flow from a diverse student body, and thus did not violate the Equal Protection Clause.
Affirmed.

History: Petition for certiorari was filed on 8/09/02. Petition granted on 12/2/02. Argued 4/01/03. Decided 6/23/03.

*Holding below: Grutter V. Bollinger, Sixth Cir., 288 F.3d 732, Public law school admissions policy that considers applicants' race and ethnicity as potential "plus" factors in pursuit of "critical mass" of under-represented minority students, without setting aside seats for them or insulating them from comparison with nonminority applicants, is narrowly tailored to achieve state's compelling interest in attaining diverse student body and thus does not violate 14th Amendment's equal protection clause; appellate court conducts independent review of record when constitutional facts are at issue.

Related News Stories: At U-Michigan, Minority Students Find Access -- and Sense of Isolation (Washington Post) Supreme Court briefs back affirmative action (Indianz.com)

Inyo County v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony
538 U.S. 701
Docket No. 02-281
Briefs & Pleadings
Oral Argument Transcripts

Subjects: Sovereign immunity -- Tribe; Civil rights; Criminal jurisdiction -- state; Search and seizure; Qualified immunity.

*Issues: (1) Does doctrine of tribal sovereign immunity enable Indian tribes, their gambling casinos, and other commercial businesses to prohibit searching of their property by law enforcement officers for criminal evidence pertaining to commission of off-reservation state crimes, when search is pursuant to search warrant issued upon probable cause? (2) Does such search by state law enforcement officers constitute violation of tribe's civil rights that is actionable under 42 U.S.C. § 1983? (3) If such search is actionable under Section 1983, are state law enforcement officers who conducted search nonetheless entitled to qualified immunity?

Holding: (from Westlaw) The Supreme Court, Justice Ginsburg, held that tribe was not “person” who could sue under § 1983.
Vacated and remanded.

History: Petition for certiorari was filed on 8/19/02. Petition granted on 12/2/02. Argued 3/31/03. Decided 5/19/03.

Supreme Court pleadings and briefs and oral argument: Tribal Supreme Court Project, Oral argument

*Holding below:Bishop Paiute Tribe v. County of Inyo, Ninth Cir., 291 F.3d 549. Under United States v. James, 980 F.2d 1314 (9th Cir. 1992), search warrant against Indian tribe and tribal property violated tribe's sovereign immunity; district attorney and county sheriff violated Fourth Amendment when they executed search warrant to seize tribal property held on tribal land, both of which were outside their jurisdiction, and such violation is actionable under 42 U.S.C. § 1983; at time search warrant was obtained, it would have been clear to reasonable officer in Ninth Circuit that there was no jurisdictional grant authorizing county officers to search and seize tribal property as part of criminal prosecution of individual Native American, and, therefore, district attorney and sheriff are not entitled to qualified immunity.

Related News Stories: Supreme Court Hears Inyo County v. Bishop Paiute Tribe - Tribal Supreme Court Project Plays a Key Role (NCAI) 4/1/03

Supreme Court to consider limit of state authority on Indian land (San Francisco Chronicle) 3/29/0

United States v. Navajo Nation
537 U.S. 488
Docket No. 01-1375
Oral Argument Transcripts

Subjects: Mineral rights -- Indian Mineral Leasing Act (25 USC 396a et seq.); Mineral Rights -- Claims against the United States; Mineral rights -- Leasing.

*Issues: Did court of appeals properly hold that United States is liable to Navajo Nation for up to $600 million in damages for breach of fiduciary duty in connection with secretary of interior's actions concerning Indian mineral lease, without finding that secretary had violated any specific statutory or regulatory duty established pursuant to Indian Mineral Leasing Act?

Holding: (from Westlaw) The Supreme Court, Justice Ginsburg, held that Tribe's claim for compensation did not derive from any liability-imposing provision of Indian Mineral Leasing Act (IMLA) or its implementing regulations.
Reversed and remanded.

History: Petition for certiorari filed 3/15/02. Petition granted 6/03/02. Argued 12/02/02. Decided 3/04/03.

Supreme Court Pleadings and Briefs: Briefs

*Holding below: Navajo Nation v. United States. Fed. Cir., 263 F. 3d. 1325. By suppressing deputy assistant secretary for Indian affairs' decision to increase royalty rate on Indian coal lease to reasonable level after meeting secretly with lessee and adopting lessee's position, secretary of interior acted in direct contravention of Indian Mineral Leasing Act's charge to obtain for Indians maximum return for their minerals and breached government's fiduciary duty, action that was within jurisdiction of Court of Federal Claims and subject to remedy by assessment of damages resulting from breach of trust.

United States v. White Mountain Apache Tribe
537 U.S. 465
Docket No. 01-1067
Oral Argument Transcripts

Subject: Trust relation -- Breach.

* Issue: Does Pub. L. No. 86-392 (1960) authorize award of money damages against United States for alleged breach of trust in connection with described property?

Holding: (from Westlaw) The Supreme Court, Justice Souter, held that United States's breach of fiduciary duty to maintain and preserve trust property gave rise to substantive claim for money damages under the Indian Tucker Act.
Affirmed and remanded.

History: Petition for certiorari filed 1/22/02. Petition for certiorari granted 4/22/02. Argued 12/02/02. Decided 3/04/03.

Supreme Court Pleadings: Briefs

*Holding Below: White Mountain Apache v. United States Fed. Cir., 249 F.3d. 1364, Pub. L. No. 86-392 (1960), which provided that Fort Apache military post shall be "held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for that purpose," created enforceable fiduciary relationship between United States and tribe with respect to buildings over which United States exercised control to exclusion of tribe, breach of which gives rise to cognizable claim for money damages.

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There is one pending Indian law case held over from 2001-2002 term.

Alaska v. United States
Docket No. 128 Original
Oral Argument Transcripts

Subject: Submerged lands and wetlands.

Supreme Court Pleadings and orders: Briefs and orders

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No Petitions for Certiorari were granted in this term.

 

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The following two cases were carried over into the 2003-2004 term and judgments were issued in later terms. See notes under case "History" and more current bulletins for a link to the judgment and more current information about the cases.

Cherokee Nation of Oklahoma v. Thompson
Docket No. 02-1393

Subjects: United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Contracts; Cost; Self-determination.

*Issues: (1) Can federal government repudiate, without liability, express contractual commitments for which it has received valuable consideration, either by spending down discretionary agency appropriations otherwise available to pay its contracts, or simply by changing law and contracts retroactively? (2) Do government contract payment rights that are contingent on "the availability of appropriations" vest when agency receives lump-sum appropriation that is legally available to pay contracts--as is law of Federal Circuit under Blackhawk Heating & Plumbing Co. v. United States, 622 F.3d 539 (Ct. Cl. 1980)--or is government's liability calculated only at end of year after agency has spent its appropriations on other activities, as Tenth Circuit ruled below?

History: Petition for certiorari was filed on 4/03/03. Judgment issued 4/01/05.

*Holding below: Cherokee Nation v. Thompson, 10th Cir., 11/26/02, 311 F.3d 1054. Provision of Indian Self-Determination and Education Assistance Act stating that "[n]otwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary [of Health and Human Services] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe," 25 U.S.C. § 450j-1(b), clearly expresses Congress's intent that provisions that obligate secretary to provide funding for various self-determination contracts or compacts, to operate programs previously operated by federal government, in amount equal to what would have been provided if HHS had continued to provide, in this case, health care services itself, as well as contract support costs (i.e., indirect costs incurred by tribe in carrying out self-determination contract), do not create entitlement on tribes' part--independent of appropriations to cover such amounts--to recover complete contract support costs incurred in connection with health care services, and thus federal government is not liable to tribes for contract support costs they incurred in administering expanded health programs after money had already been disbursed for years in question and no other appropriations were available.

South Florida Water Management District, Petitioner v. Miccosukee Tribe of Indians, et al
Docket No. 02-626
Briefs & Pleadings
Oral Argument Transcripts

Subjects: Environmental regulation; Water rights -- Water quality.

*Issues: (1) Does pumping of water by state water management agency that adds nothing to water being pumped constitute "addition" of pollutant "from" point source triggering need for NPDES permit under Clean Water Act? (2) Should court below have deferred to consistent and long-held federal and state agency position that petitioner's pumping does not constitute "addition" that requires NPDES permit?

History: Petition for certiorari was filed on 10/21/02. Judgement issued 5/17/04.

*Holding below: Miccosukee Tribe v. So. Florida, Eleventh Cir., 280 F.3d 1364. South Florida Water Management District's operation, in interest of flood prevention, of pump station, which pumps water collected by canal--runoff from water basin and seepage through levees--into water conservation area, is cause-in-fact of addition of pollutants to water conservation area, because polluted waters from canal would not normally flow into water conservation area, and thus, release of water caused by pump station's operation constitutes addition of pollutants from point source, for which National Pollutant Discharge Elimination System permit under Clean Water Act is required.

Related News Stories: Western officials await 'Glades water decision (South Florida Sun-Sentinel) 2/7/03,

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Petition for certiorari was denied in the following twenty eight Indian law cases.

Kennedy v. Hughes
Docket No. 02-1853

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

*Issues:(1) Does Tenth Circuit decision set precedent that allows tribes to single-out and violate nonmembers' constitutional rights? (2) Did district court incorrectly interpret this court's rule regarding requirement to exhaust remedies?

History: Petition for certiorari was filed on 6/18/03. Petition was denied on 10/6/03

*Holding below: Kennedy v. Hughes, 60 Fed. Appx. 734, 10th Cir., Plaintiffs' claims having been resolved on merits by tribal court, plaintiffs do not satisfy test of Dry Creek Lodge Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1982), which recognized limited exception to holding of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), that there is no private cause of action under Indian Civil Rights Act except under ICRA's habeas corpus provision, and thus plaintiffs' claims alleging violation of their civil and constitutional rights as protected by ICRA were properly dismissed for lack of subject matter jurisdiction or failure to state claim upon which relief may be granted.

Long v. United States
Docket No. 02-1801

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

*Issues:Does federally recognized Indian tribe, whose present power to prosecute tribal offenses was established by act of Congress, prosecute as sovereign separate from federal government for purposes of dual sovereignty exception to Fifth Amendment's double jeopardy clause?

History: Petition for certiorari was filed on 6/10/2003. Petition was denied on 10/6/03.

*Holding below: United States v. Long, 2003 WL 140083, 7th. cir. The United States District Court for the Eastern District of Wisconsin, Lynn Adelman, J., 183 F.Supp.2d 1106, dismissed the indictment. Government appealed. Congress's 1973 restoration of Native American tribe's sovereign status is not mere delegation of federal power to tribe and, therefore, tribe is separate sovereign for purposes of dual sovereignty exception to Fifth Amendment's double jeopardy clause; person prosecuted in tribal court could be subsequently prosecuted in federal court for same offense.

Table Mountain Rancheria v. American Vantage Companies
Docket No. 02-1770

Subjects: Non-Indians; Contractors; Breach of contract; Indian gaming; Jurisdiction; Table Mountain Racheria of California; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.).

*Issues: Are state law claims for breach of contract brought against Indian tribe by private gaming management company, involving matters integrally related to tribe's control over its gaming operations, completely preempted by IGRA and pursuable only in federal court?

History: Petition for certiorari was filed on 6/2/2003. Petition was denied on 10/6/03.

*Holding below: American Vantage Companies v. Table Mountain Rancheria, 126 Cal.Rptr.2d 849, Consultant's contract with Indian tribe to provide technical assistance, training, and advice to tribe in operation of its gaming activities, and consultant's agreement with tribe to terminate prior contract to manage tribe's casino, were determined by National Indian Gaming Commission not to require approval of its chairman, and thus consultant's state law causes of action against tribe for breach of each contract and seeking money damages as sole remedy are not preempted by Indian Gaming Regulatory Act, under which regulation of contracts is limited to management contracts and agreements collateral thereto.

In re Riggs
Docket No. 02-1774

Subjects: Indian courts -- Navajo Nation, Arizona, New Mexico & Utah -- Enforcement of opinions and orders. Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah. Comity of nations. Due process of law.

*Issues:(1) Does Navajo Nation qualify as "territory," or "possession," or federal independent contractor, for purposes of 28 U.S.C. § 1738 full faith and credit and comity enforcement of Navajo Nation orders by this court by way of extraordinary writ of mandamus? (2) Does respondents' "unified defense" so contradict rules of ethical representation that petitioners are denied due process and respondents should be prohibited from using unified defense in federal courts by extraordinary writ of prohibition by this court?

History: Petition for certiorari was filed on 5/28/2003. Petition was denied on 10/6/03.

*Holding below: Petition for writ of mandamus asking Tenth Circuit to vacate and replace its decision upholding dismissal of certain claims seeking enforcement of Navajo court orders and remanding others for determination of Navajo court jurisdiction, MacArthur v. San Juan County, Utah, 309 F.3d 1216 (2002), cert. denied, 71 U.S.L.W. 3750 (U.S. June 2, 2003) (Nos. 02-1253, 02-1444, 02-1445), amounts to untimely petition for rehearing and is denied; petition for mandamus to direct district court either to recuse or to follow different directions than those given in Tenth Circuit's 2002 decision is denied because petitioners, who may file appeal from any judgment adverse to them, have other adequate means to attain relief they desire and thus are not entitled to mandamus relief.

Shook v. Montana
Docket No. 02-1658

Subjects: Hunting on Indian reservations -- Montana; Indians of North America – Non-members of a tribe; Game laws -- Montana; Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Equality before the law – United States; Conflict of laws.

*Issues: Coming soon

History: Petition for certiorari was filed on 5/9/2003. Petition was denied on 10/6/03.

*Holding below: State v. Shook (Briefs), 313 Mont. 347, Montana Supreme Court. The Supreme Court, Nelson, J., held that: (1) regulation was rationally tied to fulfillment of obligations to Indians, such that it did not violate equal protection, and (2) state law, which includes Indian treaties reserving hunting or fishing rights to the respective tribes, provided authorization for promulgation of the regulation.

Ramsey v. United States
Docket No. 02-1547

Subjects: Fuel -- Taxation; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington -- Taxation; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington -- Treaties -- Canons of construction favoring Indian.

*Issues: (1) Are previous opinions of this court, applying canons of treaty construction to construe language "the right of taking ... in common with citizens of the territory" in Article III, Paragraph 2, of Treaty with Yakamas of 1855 (12 Stat. 951), and finding that "right ... in common with" language reserved to Yakama specific and special rights to take fish, in direct conflict with opinions of Ninth Circuit in this case finding that identical language of same treaty article provided Yakamas with no special and specific rights as to travel on public highways? (2) Is opinion below, finding that terms "in common with" and "right to travel" in Article III provide Yakamas no rights, in direct conflict with this court's opinion in Washington v. Washington State Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), construing same language to grant specific rights to Yakama Indians? (3) Does reasoning of opinion of this court in Tulee v. Washington, 315 U.S. 682 (1942), construing "in common with" language of Article III, Paragraph 2, of Treaty with Yakama of 1855 (12 Stat. 951) as reserving to Yakama tribal members right to take fish without payment for fees for that right, conflict with court of appeals' ruling that identical language of Article III, Paragraph 1, of treaty regarding right of Yakama Indians to haul tribally produced goods to market on public highways free of federal diesel and heavy vehicle use tax, provided no similar exemption? (4) Is court of appeals' opinion requiring that Indian treaty must contain "express exemptive language" on its face before it may qualify Indian for federal tax exemption in direct conflict with prior rulings of this court in Choate v. Trapp, 224 U.S. 665 (1912), Squire v. Capoeman, 351 U.S. 1 (1956), and Chickasaw Nation v. United States, 534 U.S. 84, 70 U.S.L.W. 4020 (2001), holding that such language need only be "clearly expressed," with all doubtful terms and expressions construed in favor of Indians?

History: Petition for certiorari was filed on 4/22/2003. Petition was denied on 10/6/03.

*Holding below: Ramsey v. United States. 9th cir. 302 F.3d 1074. Language in 1855 Yakama Treaty stating that "free access from the [reservation] to the nearest public highway, is secured to [the Yakama]; as also the right in common with citizens of the United States, to travel upon all public highways," does not provide express exemptive language from which court can discern intent to exempt Yakama from generally applicable federal heavy vehicle and federal diesel fuel taxes, and thus, member of federally recognized Indian tribe who lives and works on reservation is subject to federal heavy vehicle and diesel fuel taxes for hauling timber that was cut on reservation to off-reservation markets using diesel fuel trucks that exceed 55,000 pounds gross vehicle weight.

Sac & Fox Tribe of Mississippi in Iowa v. Iowa Management & Consultants, Inc.
Docket No. 02-1563
Briefs & Pleadings

Subjects: Indian gaming -- Sac & Fox Tribe of the Mississippi in Iowa; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Jurisdiction; Iowa. Supreme Court; State courts -- United States; Contracts -- Federal approval of; Arbitration (Administrative law).

*Issues: Does IGRA completely preempt state court jurisdiction over dispute concerning nature and validity, under tribe's gaming ordinance and federal law, of contract between that tribe and non-Indian casino management company?

History: Petition for certiorari was filed on 4/23/03. Rule 46 dismissal on 6/24/03.

*Holding below: Iowa Management & Consultants v. Sac & Fox Tribe of the Mississippi in Iowa, Iowa Supreme Court, 656 N.W.2d 167. State court has subject matter jurisdiction over (i) consulting firm's demand, under arbitration clause of its contract with Indian tribe, to compel arbitration of firm's claims for compensation under contract, and (ii) tribe's federal defenses to effort to compel arbitration; case is remanded to resolve genuine issues of material fact with respect to tribe's challenge to validity of entire agreement, including arbitration clause, based on failure to secure approval of contract by National Indian Gaming Council as required by section of Indian Gaming Regulatory Act, 25 U.S.C. § 2711, that requires NIGC approval of all management contracts to which tribe is party.

Supreme Court pleadings and briefs and oral argument: Tribal Supreme Court Project

Saucerman v. Norton
Docket No. 02-1393

Subjects: United States. Administrative Procedure Act; United States -- Officials and employees; Tribal government -- Officials and employees; Civil rights; Trials (Eviction); Government liability -- United States; Sovereign immunity; United States. Quiet Title Act (28 USC 2409); Equitable title; Chemehuevi Indian Tribe of the Chemehuevi Reservation, California; Havasu, Lake (Ariz. and Calif.).

*Issues: (1) Does "Indian exception" to Quiet Title Act divest federal court of subject matter jurisdiction to determine land status element of Montana v. United States, 450 U.S. 544 (1981), as Ninth Circuit has ruled, or is exception not applicable to determination of land status as held by Tenth Circuit in Kansas v. United States, 249 F.3d 1212 (10th Cir. 2001)? (2) Does solicitor's opinion that secretary of interior has discretionary authority to restore "equitable title" to shoreline of Lake Havasu to Chemehuevi Indian Tribe create "colorable claim" in United States that defeats judicial review of laws and administrative actions that are basis of its claim?

History: Petition for certiorari was filed on 2/21/03. Petition was denied on 6/23/03.

*Holding below: Saucerman v. Norton (unreported), 9th Cir. 2002 WL 31557880. Former permittees' Administrative Procedure Act suit against Indian tribe that evicted them from their cabins on Indian reservation is barred by Indian lands exception to Quiet Title Act, 28 U.S.C. § 2409a, which expressly reserves sovereign immunity in disputes involving property held in trust for Indian tribes as long as government has colorable claim regarding its title as trustee to land at issue; government established colorable claim of title as trustee to land at issue, based on Interior Department solicitor's opinion recognizing establishment of reservation and secretary's authority to grant equitable title of disputed lands to tribe, statute authorizing secretary to designate reservation lands for construction of dam, and case law recognizing tribe and reservation.

San Juan County, Utah v. Riggs
Docket No. 02-1444

Subjects: Sovereign immunity -- Tribe; Sovereignty -- Tribal; Tribal Court - Jurisdiction

*Issues: Did court of appeals err in reversing district court's dismissal of claims against cross-petitioners and holding that Navajo tribal court's subject matter jurisdiction must be addressed prior to issue of cross-petitioners' sovereign immunity from suit in tribal court?

History: Petition for certiorari was filed on 3/28/03. Petition denied on 6/02/03.

*Holding below: MacArthur v. San Juan County, Utah, 10th Cir., 309 F.3d 1216. In lawsuit brought by employees of county health clinic under contract with federal Indian Health Service to provide health care to members of Navajo community, seeking enforcement of Navajo court preliminary injunction premised on various violations of Navajo law, dismissal of employees' claims against county and various health district defendants on basis of sovereign immunity from suit in Navajo tribal court is vacated and case is remanded to determine threshold question of whether Montana v. United States, 450 U.S. 544 (1981), divests Navajo court of power to adjudicate employees' claims.

San Juan Health Services Districy v. Riggs
Docket No. 02-1445

Subjects: Sovereign immunity -- Tribe; Sovereignty -- Tribal; Tribal Court - Jurisdiction

*Issues: Did court of appeals err in reversing district court's dismissal of claims against cross-petitioners and holding that Navajo tribal court's subject matter jurisdiction must be addressed prior to issue of cross-petitioners' sovereign immunity from suit in tribal court?

History: Petition for certiorari was filed on 3/28/03. Petition denied on 6/02/03.

*Holding below: MacArthur v. San Juan County, Utah, 10th Cir., 309 F.3d 1216. In lawsuit brought by employees of county health clinic under contract with federal Indian Health Service to provide health care to members of Navajo community, seeking enforcement of Navajo court preliminary injunction premised on various violations of Navajo law, dismissal of employees' claims against county and various health district defendants on basis of sovereign immunity from suit in Navajo tribal court is vacated and case is remanded to determine threshold question of whether Montana v. United States, 450 U.S. 544 (1981), divests Navajo court of power to adjudicate employees' claims.

Riggs v. San Juan County
Docket No. 02-1253

Subjects: Federal courts jurisdiction; Jurisdiction -- Deference to tribal courts; Tribal courts; Jurisdiction -- Over non-Indians; Jurisdiction -- Over non-members of a tribe; Navajo courts; Navajo Nation, Arizona, New Mexico, Utah -- Medical care; Insurer; Attorney; United States. Indian Health Service; Health facilities -- Employees.

*Issues: Did Tenth Circuit, in remanding case to district court and in ruling that district court had no jurisdiction to enforce judgment of Navajo tribal court as against defendants: (i) violate precedents of this court; (ii) directly conflict within itself and other circuits; and (iii) act outside its own subject matter jurisdiction, by defining tribal court subject matter jurisdiction by immunizing non-Indians from tribal government authority contrary to treaties, statutes, executive orders, regulations, policies, and contracts?

History: Petition for certiorari was filed on 2/6/03. Petition denied on 6/02/03.

*Holding below: MacArthur v. San Juan County, 10th Cir., 10/7/02. Contractual and consensual relationships between Navajo tribe and, respectively, insurer of and attorney for Utah county health clinic under contract with federal Indian Health Service to provide health care to members of Navajo community were too attenuated to justify tribal court's exercise of jurisdiction over insurer and attorney, both nonmembers of tribe, and thus, federal district court properly dismissed claims against insurer and attorney brought by employees of clinic seeking enforcement of Navajo court preliminary injunction premised on various violations of Navajo law; with respect to county itself and various health district defendants in employees' suit, case is remanded to federal district court to determine whether Montana v. United States, 450 U.S. 544 (1981), divests Navajo court of power to adjudicate clinic employees' claims.

Snohomish County v. Gobin
Docket No. 02-1029

Subjects: Tribal property -- personal property; Lands; Right of property; Reservations; Jurisdiction -- Snohomish County.

*Issues: (1) Does express in rem jurisdiction over reservation fee lands established by Congress in Sections 5 and 6 of Indian General Allotment Act and recognized in County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992), allow Snohomish County to zone or impose any land use regulations against fee land located on Tulalip Indian Reservation when land is owned by member of Tulalip Tribes? (2) In light of diminished tribal authority over reservation fee lands recognized in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), and minimal federal and tribal interests in maintaining exclusive tribal jurisdiction over private open-market development, do legitimate regulatory interests of state and local government allow Snohomish County to zone or impose any land use regulations against reservation fee lands or tribal members developing those lands when land is owned by member of Tulalip Tribes?

History: Petition for certiorari was filed on 12/13/02. Petition for certiorari was denied on 3/10/03.

Holding Below: Gobin v. Snohomish County, Ninth Cir., 304 F.3d 909, Congress did not expressly authorize plenary state in rem jurisdiction over Indian reservation land owned in fee simple by registered members of tribe when it made such land freely alienable and encumberable, and thus, absent exceptional circumstances not present here, county may not assert land use jurisdiction over proposed development on such land.

Related News Stories: Supreme Court rejects state jurisdiction appeal 3/11/03.

Lobo Gaming, Inc.v. Pit River Tribe of California
Docket No. 02-865

Subjects: Gaming -- Contracts -- Breach.

*Issues: (1) Should courts resolve issues of tribal sovereign immunity by applying uniform principles of federal law? (2) Under federal law, does governing body of Indian tribe have authority to waive tribe's sovereign immunity in cases in which governing body is expressly authorized to enter into contracts on tribe's behalf? (3) Is Pit River Indian Tribe barred from asserting sovereign immunity from suit on contract when contract was duly authorized and executed by tribal council and contract itself contains waiver of tribe's immunity from suit?

History: Petition for certiorari was filed on 11/12/02. Petition for certiorari was denied on 2/24/03.

Holding Below: Lobo Gaming Inc., v. Pit River Tribe of California, Cal App. Ct. (unpublished) 2002 WL 922136. Contractor brought action against Indian tribe for breach of lease agreement, pursuant to which tribe borrowed funds to construct two casinos and leased gaming machines and furnishings. The Superior Court, Shasta County, No. 140106, granted tribe's motion to quash service. Contractor appealed. The Court of Appeal, Raye, J., held that agreement's purported waiver of sovereign immunity was invalid.

Sun Prairie v. McCaleb
Docket No. 02-751

Subjects: Lands -- Leasing; Environmental regulation -- National Environmental Policy Act (42 U.S.C. 4321 -); Federal authority over Indian affairs -- Contracts; Bureau of Indian Affairs -- Federal authority over Indian affairs; Cultural heritage -- National Historic Preservation Act (16 U.S.C. 470).

*Issues: Once lease of Indian lands to non-Indian party has received federal approval under 25 U.S.C. §§ 81 and 415, does that non-Indian party have prudential standing to challenge federal agency's attempt to void lease by unilaterally withdrawing previous federal approval?

History: Petition for certiorari was filed on 11/02/02. Petition for certiorari was denied on 2/24/03.

*Holding Below: Rosebud Sioux Tribe v. McDivitt. Eighth Cir., 286 F. 3d. 1031. Non-Indian lessee of Indian tribal trust property on which lessee plans to construct pork production facility lacks standing to challenge Bureau of Indian Affairs decision voiding lease on ground that Finding of No Significant Impact was issued in violation of National Environmental Policy Act; although lessee has demonstrated constitutionally required elements of standing--injury that is fairly traceable to actions of defendant and that can be redressed by favorable court ruling--its interest, being purely economic, falls outside zone of interests sought to be protected by NEPA and National Historic Preservation Act, which lessee claims were violated by BIA's voiding of lease.

Alabama-Coushatta Tribe of Texas v. America Tobacco Co.
Docket No. 02-746

Subjects: Sovereignty -- Tribal; Smoking costs; Medical care, Cost of; Smoking -- Health aspects; Health and welfare / social services.

*Issues: (1) Does federally recognized Indian tribe have standing to sue on its own behalf for decimation of its discrete and narrow population? (2) Is heightened standard being applied in determining whether Indian tribes have standing to sue on behalf of their tribal members?

History: Petition for certiorari was filed on 11/12/02. Petition for certiorari was denied on 1/21/03.

*Holding below: Fifth Circuit (Unreported and no opinion from District Court or Court of appeals. See Westlaw table at: 46 Fed.Appx. 225). Indian tribe's sovereign status and its allegation that tobacco-related injuries to tribal members injured tribe itself, by adversely affecting tribe's size and health and well-being of its members, are insufficient to establish "direct injury" needed to support tribe's fraud, racketeering, product liability, negligence, and warranty claims against tobacco manufacturers.

Notti v. Cook Inlet Region Inc.
Docket No. 02-392

Subjects: Alaska Native Claims Settlement Act (43 USC 1601 et seq.); Discriminatory dividend payments; Removal.

*Issues: (1) Can adoption of federal law by state statute give rise to federal question jurisdiction under 28 U.S.C. § 1331 when federal law does not occupy field, does not entirely displace state law, does not create federal cause of action, and does not contain federal remedy? (2) Should this court adopt bright-line rule requiring existence of private cause of action and remedy under federal law before it will allow Section 1331 jurisdiction? (3) Should this court adopt bright-line rule that federal law that provides no private remedy cannot supply "jurisdiction-triggering federal question" and thus cannot give rise to Section 1331 jurisdiction?

History: Petition for certiorari was filed on 8/19/02. Petition was denied on 1/13/03.

*Holding below: Ninth Cir., (unpublished, but available for a fee on Westlaw.com at 31 Fed. Appx. 586.) District court did not err in denying motion of plaintiff shareholders in suit against Alaska corporation organized pursuant to Alaska Native Claims Settlement Act to remand action to state court; notwithstanding plaintiffs' contention that district court lacked removal federal question jurisdiction over suit, district court did have subject matter jurisdiction over case, because complaint raised substantial federal question of whether Section 7(r) of ANCSA authorizes regional corporation established pursuant to that statute to pay dividends on discriminatory basis to Native leaders who were original shareholders in such corporation.

Aria v. United States, on behalf of the Fort Mohave Indian Tribe
Docket No. 02-604

Subjects: Lands -- Quiet title; Lands -- Trespass.

*Issues: (1) Did congressional enactment of Swamp and Overflowed Lands Act of Sept. 28, 1850 establish in praesenti grant to individually affected states such that title vested in states as of that date? (2) Is title to swamp lands retained by federal government until such time as federal government elects to issue patent to state? (3) Did Ninth Circuit correctly hold that this court's precedent establishing and reconfirming doctrine of "relation back" as to swamp lands has been implicitly overruled by "trend" in case law requiring that patent be issued before state's title to swamp lands becomes perfected?

History: Petition for certiorari was filed on 10/11/02. Petition was denied on 12/16/02.

*Holding below: United States v. Byrne, Ninth Cir., 291 F.3d 1056. In determining whether it had jurisdiction over quiet title and ejectment action and, if so, whether it properly determined that property in question is located in California rather than Arizona, district court's analysis should have commenced with date on which United States patented disputed lands to California in 1905, and not with pre-1905 avulsive movements of Colorado River, and thus, given undisputed testimony that both accretion and avulsion occurred in relevant area after that date, remand is required to permit district court to conduct whatever proceedings it deems necessary for re-analysis using correct premise; Swamp and Overflowed Lands Act invested states in praesenti with inchoate title to those lands falling within description of act, to be perfected as of date of act when land should be identified and patent issued, and thus it was only when secretary of interior identified and patented land granted under Swamp Act that fee simple title vested in state and state's title became perfect.

Montana Department of Revenue, Petitioner v. Flat Center Farms, Inc.
Docket No. 02-464

Subjects: Business and economic development -- Tribal industry; Business and economic development -- Taxation; Taxation -- State.

*Issues: Does federal law preempt assessment of Montana state corporation license tax on Montana business corporation doing business within Fort Peck Indian Reservation on grounds that such assessment is presumed preempted absent express congressional authorization, that enrollment status of one of corporation's Indian shareholders is shared by corporation, and that corporation is not "carrying on business in" Montana?

History: Petition for certiorari was filed on 9/18/02. Petition was denied on 12/02/02.

*Holding below: Flat Center Farms v. State of Montana, MT Supreme Ct., 310 Mont. 206, 49 P.3d 578. Flat Center Farms Inc. is tribally chartered corporation owned and operated by Indians, conducts business entirely on Fort Peck Reservation, and does not "carry on business" in Montana, and therefore lower court did not err in applying long-standing rule--that state lacks power to tax Indian income generated from on-reservation activities absent express authorization by Congress--and in concluding that Montana corporation license tax may not be imposed on Flat Center Farms Inc.

Miccosukee Tribe v. Tamiami Partners. Ltd.
Docket No. 02-491

Subjects: Jurisdiction -- United States; Contracts; United States. Indian Gaming Regulatory Act; Jurisdiction -- Miccosukee Tribe of Indians of Florida; Sovereign immunity -- Miccosukee Tribe of Indians of Florida; Indian Gaming -- Miccosukee Tribe of Indians of Florida.

*Issues: (1) Do Tamiami decisions, which interpret Federal Arbitration Act as allowing courts "to look through" arbitration to underlying federal claims to find jurisdiction, and which find substantial federal question based on federal statute that provides no private right of action, represent unprecedented expansion of federal question jurisdiction that conflicts with majority of circuits that have decided issues? (2) Does Eleventh Circuit's rejection of Miccosukee Tribal Court orders, which stayed arbitration and vacated award, conflict with unbroken line of U.S. Supreme Court precedent requiring deference to tribal courts and precluding relitigation of issues resolved in tribal court, and should this court grant certiorari to decide unresolved question in Nevada v. Hicks, 533 U.S. 353, 69 U.S.L.W. 4528 (2001), regarding scope of tribal court jurisdiction over nonmembers?

History:Petition for certiorari was filed on 9/23/02.Petition was denied on 11/18/02.

*Holding below: See case below at: Tamiami Partners Ltd. v. Miccosukee, 35 Fed. Appx. 855 (Unreported, but table available on Westlaw.com, a fee-based service.) See related case: Tamiami Partners Ltd. v. Miccosukee, Eleventh Cir., 177 F. 3d. 1212 (1999). District court properly ordered enforcement of 1993 arbitration award that ordered Indian tribe that had terminated contract with partnership for operation of gambling facility on reservation to either reinstate partnership or pay damages; notwithstanding tribe's contention that district court lacked jurisdiction to hear case, appeals court holds for third time that district court has jurisdiction to hear case because it implicates Indian Gaming Regulatory Act; tribal court did not have authority to stay arbitration or vacate award; by entering agreement that provided for arbitration under oversight of state or federal courts, tribe waived immunity to federal court jurisdiction.

Rosales v. Kean Argovitz Resorts Inc.
Docket No. 02-280

Subjects: Civil rights -- Race discrimination; Gaming; Conspiracy; Voting -- Rights.

*Issues: Is private conspiracy by non-Indian gaming corporations actionable under 42 U.S.C. § 1985(3), when it deprives petitioners of right to vote because petitioners are Indians and members of tribal political faction?

History: Petition for certiorari was filed on 8/19/02. Petition was denied 10/21/02.

*Holding below: Ninth Cir., (Unpublished but available on Westlaw.com for a fee at 35 Fed.Appx. 562) Court affirms district court's ruling that plaintiff tribal members' allegations that defendant gaming contractors contributed money to opposing political faction and referred to plaintiffs as "half blood Indians" suggested at most that defendants' conduct was motivated by political beliefs and not racial animus, amounted to nothing more than naked allegation of racial discrimination, and thus failed to state race-based conspiracy claim under 42 U.S.C. § 1985(3).

Tang v. Northern Cheyenne Tribe
Docket No. 01-1057

Subjects: Tribal courts -- Jurisdiction; Civil jurisdiction, Federal -- Exhaustion of tribal remedies; Tribal courts -- Appeal and Review.

*Issues: None provided

History: Petition for certiorari filed (in forma pauperis) 4/26/2001. Petition was denied 10/07/02.

*Holding below: Tang v. Northern Cheyenne Tribe, Ninth Cir., (Unreported) 31 Fed.Appx. 438, The federal courts lack jurisdiction to consider Tang's claims against the Northern Cheyenne Tribe because Tang has not yet exhausted his remedies by appealing tribal jurisdiction to the tribal appeals court. See Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir.), amended by 197 F.3d 1031 (9th Cir.1999).

Dawavendewa v. Salt River Project Agricultural Improvement and Power District
Docket No. 01-1762

Subjects: Salt River Project Agricultural Improvement and Power District; Indian preference in hiring -- Navajo Nation, Arizona, New Mexico & Utah -- Members; Hopi Indians; Independent contractors -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Sovereign immunity -- Tribes -- United States; Tribal self-determination -- United States; United States. Indian Self-Determination and Education Assistance Act; United States. Civil Rights Act of 1964. Title 7; Discrimination in employment; Sovereign immunity -- Tribes -- Officials and employees.

*Issues: (1) Does tribal sovereign immunity render Title VII of 1964 Civil Rights Act impotent in claims between non-member employee and nonmember employer engaged in business on reservation when tribe has passed legislation mandating discriminatory employment practices? (2) Can tribal officials be sued as indispensable and necessary parties for purpose of prospective relief in situations in which tribal nations pass and enforce legislation that conflicts with federal law regarding employment and exceeds scope of tribe's sovereign powers?

History: Petition for certiorari was filed on 5/30/02. Petition denied on 10/07/02.

*Holding below: Dawavendewa v. Salt River Agr. Imp. and Power District, Ninth Cir., 276 F.3d. 1150. In Hopi plaintiff's suit against lessee of Navajo Nation challenging lessee's enforcement of lease provision giving employment preference to members of Nation, Nation is necessary party because plaintiff cannot be accorded complete relief in Nation's absence, suit threatens to impair Nation's contractual interests, and any disposition of suit in Nation's absence threatens to leave lessee subject to substantial risks of incurring multiple or inconsistent obligations, but Nation cannot be joined because it has not waived its tribal sovereign immunity and Congress has not clearly abrogated tribal sovereign immunity in cases under Title VII of 1964 Civil Rights Act; plaintiff's suit was against lessee only, he specified no action by tribal officials performed in contravention of constitutional or federal statutory law, relief he seeks would operate against Nation as signatory to lease, and thus plaintiff may not circumvent Nation's sovereign immunity by joining tribal officials in its stead; both Nation and lessee could incur prejudice if decision were rendered in Nation's absence, no relief mitigates prejudice, no partial relief is adequate, and plaintiff may have alternative forum available via suit brought on his behalf by Equal Employment Opportunity Commission, and thus Nation is indispensable party whose absence requires dismissal of suit without prejudice.

Bank One NA v. Shumake
Docket No. 01-1732

Subjects: Tribal courts -- Jurisdiction; Civil jurisdiction, Federal -- Exhaustion of tribal remedies.

* Issues: 1) Should prudential, judge-made "tribal exhaustion" doctrine be expanded to displace statutory command of Federal Arbitration Act, 9 U.S.C. § 4, which creates juridical remedy in federal district court for enforcement of agreements to arbitrate? (2) Does Indian tribal court jurisdiction extend to civil suits arising out of alleged commercial relationships between members and nonmembers of tribe, when such assertions of jurisdiction are not necessary to protect tribal self-government or to control internal tribal relations--question left open by this court in Nevada v. Hicks, 533 US 353, 69 U.S.L.W. 4528 (2001)?

History: Petition for certiorari filed 5/22/02. Petition was denied on 10/07/02.

*Holding below: Bank One, N.A. v. Shumake, 5th Cir., 281 F.3d 507, District court's dismissal of bank's suit to compel arbitration of claims brought against it in tribal court by members of Mississippi Band of Choctaw Indians asserting that bank financed satellite system purchases through use of bogus credit cards and concealed material information with respect to credit transactions is affirmed, district court having properly determined that tribal exhaustion doctrine required giving tribal court first opportunity to rule on question of its jurisdiction.

Bay View Inc. v. United States
Docket No. 01-1863

Subjects: Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) -- Revenue sharing; Tribal property.

*Issues: (1) May Congress, in legislation enacted at request of one of parties to litigation, retroactively terminate vested property rights in transactions long completed without United States incurring liability under Fifth Amendment? (2) Did Federal Circuit violate standards set by this court in dismissing on pleadings petitioner's fact-intensive complaint of retroactive taking of its property rights by Congress? (3) Has court of appeals ignored plain meaning and congressional intent of key provision of ANCSA that requires Alaskan Regional Corporations to share with each other and then with Village Corporations "70 percent of all revenues received by each Regional Corporation from the timber resources and subsurface estate patented to it"? (4) Does decision of Federal Circuit in depriving over 200 Alaska villages of their share of revenues from sale of timber and mineral resources conflict with settled construction of ANCSA, and similar act, by Ninth Circuit and Alaska federal court?

History: Petition for certiorari was filed on 5/16/02. Petition was denied on 10/07/02.

*Holding below: Bay View v. United States Federal Cir., 278 F. 3d.1259. Proceeds from Alaska native corporations' sales of net operating loss deductions, arising from their sale of timber and other natural resources at less than their tax basis, did not constitute "revenues ... from the timber resources and subsurface estate[s]" that each "Regional Corporation" created by Alaska Native Claims Settlement Act is required by ANCSA to share with "Village Corporations" in its region, and thus Fifth Amendment's takings clause was not violated by retroactive 1995 amendment to ANCSA that exempted pre-1989 sales of NOLs from ANCSA's revenue sharing requirement.

Kornwolf v. United States
Docket No. 01-1534

Subjects: Environmental regulation -- Migratory Bird Treaty Act (16 U.S.C. 703); Environmental regulation -- Bald Eagle Protection Act (16 U.S.C. 668); Cultural resources; Eagle feathers.

*Issues: 1) Is Andrus v. Allard still good law despite its inconsistency with subsequent opinions of this court, almost unanimous criticism of commentators, and confusion it has promoted in lower courts? (2) Is it unconstitutional taking of private property to impose criminal sanctions on sale of innocuous, historically significant, antique Indian artifacts containing golden eagle feathers when petitioner's ownership of those artifacts predates statutory protection of golden eagle, there is no evidence that ban on sale substantially advances protection of golden eagle, and effect of ban is to destroy economic value of artifacts?

History: Petition for certiorari was filed on 4/11/02. Petition was denied on 10/07/02.

*Holding Below: United States v. Kornwolf, (PDF) Eighth Cir., 276 F.3d. 1014. Under Andrus v. Allard, 444 US 51 (1979), provisions of Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act that ban sale of eagle feathers do not create unconstitutional taking when applied to sale of Indian artifacts containing eagle feathers that owner had acquired prior to effective dates of statutes.

Sault Ste. Marie Tribe of Chippewa Indians v. Young
Docket No. 01-1786

Subjects: Sovereign immunity -- Tribal; Employment; Business and economic development -- Contracts; Statutes -- State.

*Issues: (1) Did tribe waive its sovereign immunity such that it can be held liable for alleged breach of employment agreement--even though it was never party to agreement--based on state law doctrines extending liability to noncontractual parties? (2) Did tribe waive its sovereign immunity for purpose of subjecting itself to Michigan's judgment interest statute even though it never expressly agreed to subject itself to statute? (3) In actions against sovereign Indian tribes, can state courts vitiate federal law governing waivers of sovereign immunity, which requires such waivers to be express and unequivocal, by applying state law doctrines or statutes?

History: Petition for certiorari was filed on 6/3/02. Petition was denied on 10/07/02.

*Holding below: Young v. Sault Ste. Marie Tribe of Chippewa Indians, Mich. (unreported) 2001 WL 672070. Plain language of joint venture master agreement, which was signed by tribe, demonstrates that parties thereto intended that such agreement and other documents "executed and delivered at [c]losing," including employment agreement, be construed as one agreement, and thus (i) breach of employment agreement constitutes breach of joint venture master agreement, which explicitly waives tribe's sovereign immunity from suit to enforce that agreement and all agreements executed and delivered at closing, (ii) claim of breach was subject to arbitration under terms of joint venture master agreement, and (iii) tribe could be held liable for such breach; award of statutory interest from date arbitration award was issued through date judgment entered on award is satisfied is statutorily required by state law, despite tribe's contention that its waiver of sovereign immunity, even if it applies to claims of breach of employment agreement, does not apply to awards of postaward and postjudgment statutory interest.

Ramapough Mountain Indians v. Norton
Docket No. 01-1703

Subjects: Tribes -- Federal recognition of; Cultural heritage -- History.

*Issues: Can Bureau of Indian Affairs deny tribal descent by dismissing key pieces of evidence under conclusiveness standard, ignoring reasonable inferences, and discounting each piece of evidence in isolation without regard to cumulative weight of evidence?

History: Petition for certiorari filed 5/16/02. Petition was denied on 10/07/02.

*Holding below: Ramapough Mountain Indians v. Norton, D.C. Cir., 25 Fed.Appx. 2. (Unpublished) Assistant secretary for Indian Affairs reasonably concluded that group of people seeking federal recognition as Indian tribe failed to comply with regulation requiring it to show, as prerequisite for recognition, that its membership consists of individuals who descend from historical Indian tribe, documentation of such descent not having been offered and other evidence being limited.

Ysleta del Sur Pueblo v. Texas
Docket No. 01-1671

Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 U.S.C. 2701 et seq.); Tribal sovereignty and powers; State rights; Gambling -- Law and legislation.

*Issues: (1) Does Indian Gaming Regulatory Act, instead of Pueblo's Restoration Act, govern gaming activities on reservation lands of Ysleta del Sur Pueblo? (2) If not, should gaming provisions of Pueblo's Restoration Act be interpreted consistently with this court's decision in California v. Cabazon Band of Mission Indians, 480 US 202 (1987), thus preventing grave miscarriage of justice?

History: Petition for certiorari was filed 5/13/02. Petition was denied on 10/07/02.

*Holding below: Unreported decision. Fifth Cir., 1/17/02. Summary judgment in favor of Texas in its action to enjoin gambling on Indian reservation and injunction directing Ysleta del Sur Pueblo to stop gambling activities at Speaking Rock Casino are affirmed for reasons stated by district court, namely that Pueblo's Restoration Act, which prohibits Pueblo from engaging in gaming activity that would not be permissible for ordinary citizen of Texas, precludes gaming activities at Speaking Rock Casino, which violate Texas Penal Code.

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