2005 Federal Courts - Indian Law Bulletins; National Indian Law Library, Native American Rights Fund

2005 Federal Courts Cases

December

Zuni Public School District No. 89 v. United States Department of Education
393 F.3d 1158
No. 01-9541
United States Court of Appeals, Tenth Cir., December 30, 2005

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

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

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

Fletcher v. United States
160 Fed.Appx. 792
No. 04-5112
United States Court of Appeals, Tenth Cir., December 29, 2005

Subjects: Osage Indians -- Political activity; Elections -- Osage Tribe, Oklahoma; Minneral rights -- Osage Tribe, Oklahoma; Trusts and trustees -- United States.

*Synopsis: Descendants of Indian tribe brought action against United States and others alleging violation of right to political association and participation in tribal government, breach of trust, and a Fifth Amendment takings claim related to Act which directed preparation of final membership roll of tribe. The United States District Court for the Northern District of Oklahoma dismissed the complaint for failure to join tribal council as necessary and indispensable party. Plaintiffs' appealed.

*Holding: The Court of Appeals, Henry, Circuit Judge, held that: (1) breach of trust and takings claim did not seek money damages under the Administrative Procedure Act, and (2) Court of Appeals would not determine whether tribal council was necessary and indispensable party to breach of trust and takings claim without benefit of district court's analysis of issue.
Vacated and remanded.

Morris v. Tanner
160 Fed.Appx. 600
No. 03-35922
United States Court of Appeals, Ninth Cir., December 22, 2005

Subjects: Criminal jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana -- Application -- Non-members of a tribe; Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members; United States. Indian Civil Rights Act.

*Synopsis: (from the opinion) Thomas Lee Morris appeals the district court's grant of summary judgment in favor of defendant, Judge Winona Tanner, and defendant-intervenor, United States. For the past six years, Morris has had criminal speeding charges pending against him in the tribal court of the Confederated Salish and Kootenai Tribes ("CSKT") in Montana. Morris is an enrolled member of the Minnesota Chippewa Tribe, Leech Lake Reservation, but is not a member of the CSKT. He challenges the jurisdiction of the tribal court. The district court granted summary judgement against Morris. Morris v. Tanner, 288 F.Supp.2d 1133, 1144 (D.Mont.2003). Morris appealed.
Morris challenges the jurisdiction of the CSKT tribal court, which was confirmed by the 1990 amendments to the Indian Civil Rights Act ("ICRA") to extend to "all Indians" in criminal cases.

*Holding: not yet available

Means v. Navajo Nation
432 F.3d 924
No. 01-17489
United States Court of Appeals, Ninth Cir., December 13, 2005

Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Equality before the law -- United States; Due proecess of law -- United States; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe.

*Synopsis: . After being charged in the tribal court of an Indian reservation with various offenses, petitioner, an enrolled member of a different Indian tribe, sought a writ of habeas corpus enjoining the tribal court from proceeding with the case. The United States District Court for the District of Arizona, Earl H. Carroll, J., denied the petition, and petitioner appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that petitioner was not deprived of equal protection or due process by statute which made him subject to the criminal jurisdiction of another tribe's courts for misdemeanors committed on that tribe's reservation. Affirmed.

Dewberry v. Kulongoski
406 F.Supp.2d 1136
No. Civ. 04-6175-AA
United States District Court, D. Oregon, December 21, 2005

Subjects: Standing to sue; Intergovernmental agreements -- Oregon; Intergovernmental agreements -- Coos, Lower Umpqua and Siuslaw Indians, Confederated Tribes of the, Oregon; Parties to actions -- Coos, Lower Umpqua and Siuslaw Indians, Confederated Tribes of the, Oregon; Casinos -- Oregon; Oregon. Office of the Governor -- Powers and duties.

*Synopsis: Gambling opponents challenged validity of state's gaming compact with Indian tribe. Parties cross-moved for summary judgment.

*Holding: The District Court, Aiken, J., held that:
(1) plaintiffs lacked standing to sue;
(2) tribe was indispensable party;
(3) Oregon constitution's ban on operation of casinos did not bar state from negotiating compact with Indian tribe; and
(4) governor had constitutional and statutory authority to negotiate compact.
Plaintiff's motion denied; defendant's motion granted.

Navajo Nation v. United States
68 Fed.Cl. 805
No. 93-763L
United States Court of Federal Claims, December 20, 2005

Subjects: Tribal trust funds -- Navajo Nation, Arizona, New Mexico & Utah; Coal -- Navajo Nation, Arizona, New Mexico & Utah; Leases -- Navajo Nation, Arizona, New Mexico & Utah; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Fiduciary accountability; United States. Dept. of the Interior.

*Synopsis: Navajo Nation brought suit alleging that Secretary of Interior breached fiduciary duties owed to Nation by approving coal lease amendments negotiated by Nation and lessee. The Court of Federal Claims, 46 Fed.Cl. 217, dismissed complaint. Nation appealed. The Court of Appeals for the Federal Circuit, 263 F.3d 1325, reversed. Certiorari was granted. The Supreme Court, 123 S.Ct. 1079, reversed and remanded. On remand, the Court of Appeals, 347 F.3d 1327, remanded.

*Holding: The Court of Federal Claims, Baskir, J., held that jurisdiction was lacking over claims of Navajo Nation that the Secretary breached fiduciary duties owed to the Nation when Secretary approved coal lease amendments establishing a royalty rate of 12.5 and not 20 percent of the lessee's gross revenues, as statutory and regulatory framework cited by the Nation did not establish a money-mandating trust in the area of royalty rates.
Dismissed.

Cobell v. Norton
407 F.Supp.2d 140
No. Civ.A. 96-1285(RCL)
United States District Court, D. D.C., December 19, 2005

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

*Synopsis: In action by beneficiaries of Individual Indian Money (IIM) trust accounts, alleging breach of fiduciary duties through mismanagement of accounts by Secretaries of the Interior and Treasury, plaintiffs moved for interim award of attorney fees and costs.

*Holding: The District Court, Lamberth, J., held that:
(1) plaintiffs gave class adequate notice of fee petition;
(2) government's position was not substantially justified;
(3) some claimed hours were not compensable, excessive, or insufficiently documented;
(4) accounting expert's claimed fee and expenses were excessive;
(5) plaintiffs were entitled to bad faith fee enhancement; and
(6) appropriate hourly rates were rates set by court's Laffey Matrix.
Fees awarded.

Related News Stories: Cobell legal team awarded fees for trust fund fight. (Indianz.com) 12/20/05)

The Cherokee Nation of Oklahoma v. United States
69 Fed.Cl. 148
Nos. 89-218L, 89-630L
United States Federal Court of Claims, December 19, 2005

Subjects: Tribal trust funds -- Cherokee Nation, Oklahoma; Natural resources -- Arkansas River; Breach of trust -- United States; Lawyers -- Fees.

*Synopsis: Indian tribes filed suit against the United States seeking damages for the government's use and mismanagement of tribal trust resources along the Arkansas River. Settlement negotiations resulted in the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act of 2002. Law firm which represented one of nations filed motion to intervene and motion for attorney fees.

*Holding: The Court of Federal Claims, Damich, Chief Judge, held that:
(1) law firm had the necessary interest relating to the subject of the action for intervention;
(2) firm demonstrated that it was so situated that its ability to protect its interest in attorney fees might be impaired by disposition of action;
(3) firm demonstrated that the parties did not adequately represent its interests; and
(4) jurisdiction over firm's claim against the government for attorney fees under attorney fee provision of the Claims Settlement Act, as provision was money-mandating.
Motion to intervene granted; motion for attorney fees denied.

Wolfchild v. United States
68 Fed.Cl. 779
No. 03-2684L
United States Court of Federal Claims, December 16, 2005

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

*Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862 brought suit against the United States for breach of fiduciary duty and contract in the management of property originally provided for the benefit of loyal Mdewakanton. The Court of Federal Claims, 62 Fed.Cl. 521, granted in part government's motion to dismiss, and plaintiffs' motion for partial summary judgment. Government filed motion for reconsideration.

*Holding: The Court of Federal Claims, Lettow, J., held that:
(1) United States created a trust for Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862, as reflected in Appropriations Acts of 1888, 1889, 1890 and 1901, and subsequent acts affecting trust property in 1906, 1923, and 1944 were consistent with existence of the trust, and
(2) Court had authority under the “Call Statute” to require the Department of Interior to provide a list of lineal descendants of loyal Mdewakanton Sioux.
Motion denied.

MacArthur v. San Juan County
405 F.Supp.2d 1302
No. Civ. 2:00-CV-584BSJ
United States District Court, D. Utah, December 16, 2005

Subjects: Indian preference in hiring; Health facilities -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Health facilities -- Utah -- San Juan County; Employees, Dismissal of -- San Juan Health Services District; Utah Navajo Health Systems; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Civil jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: Employees of county health district, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. The District Court, Kimball, J., granted district's motion to dismiss, and employees appealed. The Court of Appeals, 309 F.3d 1216, affirmed in part, but remanded for consideration of whether tribal court had adjudicative jurisdiction. On remand the District Court entered declaratory judgment for district on governmental immunity grounds, and employees moved for amendment or relief from judgment. Non-employee plaintiffs alleging antitrust, RICO, civil rights, and tort claims moved for amendment or relief from judgment.

*Holding: The District Court, Jenkins, Senior District Judge, held that:
(1) Congress did not legislatively overrule Supreme Court Montana decision, limiting tribal court assertion of jurisdiction over non-Indians on reservation land not owned by tribe;
(2) equal protection clause of Indian Civil Rights Act (ICRA) did not mandate jurisdiction over non-Indians on reservation land not owned by tribe;
(3) under Navajo legal principles, governmental immunity would be granted to employer under state immunity statute to same extent that tribal immunity would be recognized in state courts;
(4) court did not make additional findings of fact not part of tribal court record; and
(5) interlocutory injunction was not required to be enforced.
Motions denied.

Shoshone-Bannock Tribes of the Fort Hall Reservation v. Leavitt
408 F.Supp.2d 1073
No. CV-96-459-ST
United States District Court, D. Oregon, December 13, 2005

Subjects: United States. Indian Self-Determination and Education Assistance Act; Contracts -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Education -- Costs -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Self-determination -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Synopsis: Indian tribes, which had sued to enforce their self-determination contractors' rights to recover contract support costs (CSC), under the Indian Self-Determination and Education Assistance Act (ISDA), associated with operation of health care services, moved for relief from judgment of dismissal entered following decision by the United States Court of Appeals for the Ninth Circuit, 279 F.3d 660.

*Holding: The District Court, Stewart, United States Magistrate Judge, held that:
(1) relief from judgment of dismissal was warranted, on basis of clear and authoritative change in governing law by virtue of the Supreme Court's subsequent Cherokee Nation decision, which compelled government to abide by promises made to other tribes to pay CSC, and
(2) fact that tribes did not petition for certiorari from the Ninth Circuit's decision did not render the judgment of dismissal irremediably final.
Motion granted.

State of Wisconsin v. Ho-Chunk Nation
402 F.Supp.2d 1008
No. 05-C-632-S
United States District Court, W.D. Wisconsin, December 8, 2005

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act.

*Synopsis: State of Wisconsin brought action, pursuant to provisions of its gaming compact with Indian tribe and Federal Arbitration Act (FAA), for appointment of an arbitrator in dispute arising under Indian Gaming Regulatory Act (IGRA). State moved for immediate appointment of an arbitrator, and tribe moved to dismiss.

*Holding: The District Court, Shabaz, J., held that
(1) district court had original jurisdiction in dispute, and
(2) lapse of nearly six months in process of appointing an arbitrator triggered district court's authority to appoint an arbitrator.
Ordered accordingly.

Aroostook Band of Micmacs v. Ryan
403 F.Supp.2d 114
No. CIV.03-24-B-K
United States District Court, D. Maine, December 5, 2005

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

*Synopsis: Indian tribe challenged state's authority to enforce state employment discrimination laws against it. The United States District Court for the District of Maine, 307 F.Supp.2d 95, dismissed for lack of subject matter jurisdiction, and tribe appealed. The United States Court of Appeals for the First Circuit, 404 F.3d 48, reversed in part, vacated in part, and remanded. On remand, parties filed cross motions for summary judgment.

*Holding: The District Court, Kravchuk, United States Magistrate Judge, held that:
(1) Maine's Micmac Settlement Act (MMSA) was not an effective law because tribe never attempted to comply with the written certification requirement contained in an amendment to the Act;
(2) no provision in either MMSA or federal Aroostook Band of Micmacs Settlement Act (ABMSA) expressly or through incorporation subjected Aroostook Band of Micmacs to Maine employment discrimination laws; and
(3) tribe was not an employer, and thus not subject to suit under Title VII of Civil Rights Act.
Judgment for tribe.

Related News Stories: Micmacs prevail in court; Band ruled not subject to employment laws (Bangor Daily News) 12/05/05

November

United States v. Truckee-Carson Irrigation District
429 F.3d 902
Nos. 04-16032, 04-16033
United States Court of Appeals, Ninth Cir., November 21, 2005

Subjects: United States; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Truckee-Carson Irrigation Disrict (Nev.); Nevada; Fernley (Nev.); Reserved water rights -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Water use -- Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada.

*Synopsis: Indian tribe and irrigation district cross-appealed from state engineer's partial grant of tribe's application to temporarily change place and manner of use of federally reserved water rights. The United States District Court for the District of Nevada, Lloyd D. George, J., 309 F.Supp.2d 1245, generally affirmed engineer's ruling, and tribe appealed.

*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that tribe's right to temporarily change place and manner of use was limited to maximum amount of water allocated for prior use.
Affirmed.

Cobell v. Norton
428 F.3d 1070
Docket No. 05-5068
United States Court of Appeals, District of Columbia Cir., November 15, 2005

*Synopsis: Present and past beneficiaries of individual Indian money (IIM) accounts filed class action, alleging gross mismanagement by Interior and Treasury Departments. The United States District Court for the District of Columbia, Lamberth, J., 357 F.Supp.2d 298, ordered historical accounting of trust fund assets, and defendants appealed.

*Holding: The Court of Appeals, Williams, Senior Circuit Judge, held that injunction was abuse of discretion.
Vacated and remanded.

*Related News Stories: • • Appeals court: Indian money accounting would be impossible (Grand Forks Herald) 11/15/05

Shivwits Band of Paiute Indians v. State of Utah
428 F.3d 966
Docket No. 03-4274
Petition for Certiorari Filed (October 9, 2006)
United States Court of Appeals, Tenth Cir., November 9, 2005

Subjects: Jurisdiction -- United States; United States. Bureau of Indian Affairs; Leases -- Shivwits Band of Paiutes; Police power -- Utah; Trust lands -- Shivwits Band of Paiutes; Land use -- Shivwits Band of Paiutes.

*Synopsis: After Indian tribe purchased land and placed it in trust with federal government, it leased the land to advertiser for construction of outdoor billboards. State of Utah threatened to bring a lawsuit, and the city issued stop work order. Tribe and advertiser sought declarative and injunctive relief, and State and city counterclaimed and brought third-party claim against United States. Parties cross-moved for summary judgment. The United States District Court for the District of Utah granted judgment for tribe and advertiser, and State and city appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that:
(1) district court lacked subject matter jurisdiction to consider counterclaim and third-party claim, to extent those claims challenged Bureau of Indian Affairs' (BIA) decision to take the property at issue into trust;
(2) city and State waived argument that BIA was required to enforce Highway Beautification Act (HBA) when approving tribe's lease of land to advertiser; and
(3) State was not entitled to exercise its police power to regulate use of tribe's land.
Affirmed.

Related News Story: Third court decision favors land-into-trust process (Indianz.com) 11/11/05.

Piro-Harabedian v. Saginaw Chippewa Indian Tribe
2005 WL 3163395
No. 05-CV-72581-DT
United States District Court, E.D. Michigan, Southern Division, November 23, 2005

Subjects: Jurisdiction -- United States; Breach of contract -- Saginaw Chippewa Indian Tribe of Michigan; Industrical accidents -- Saginaw Chippewa Indian Tribe of Michigan; Soaring Eagle Casino and Resort (Mich.); Foreign Sovereign Immunity Act.

*Synopsis: (from the opinion) A. Foreign Sovereign Immunity Act (the "FSIA") Plaintiff bases her claim that the court has jurisdiction in this matter exclusively upon FSIA, 28 U.S.C. § 1330(A) and 28 U.S.C. §§ 1605(a)(5). Defendant Tribe's motion to dismiss argues that the court has no subject matter jurisdiction over Plaintiff's claim. In its motion, Defendant argues that the FSIA "expresses no grant of jurisdiction over actions against Indian tribes and Indian tribes are not referenced in any fashion in the [ ] provisions [of the Act]." (Def.'s Mot. at 3.) More specifically, Defendant notes that "the statute's immunity exception applies in the first instance only to 'foreign states" ' and asserts that "[i]t has long been recognized that Indian tribes are not foreign states." Id. (citing Cherokee Nation v. State of Georgia, 30 U.S. 1 (1931)). Defendant also asserts that "[t]he [FSIA's] inapplicability to Indian tribes has been recognized by the federal courts."

*Holding: not available

Squaxin Island Tribe v. Stephens
400 F.Supp.2d 1250
No. C03-3951Z
United States District Court, W.D. Washington, November 22, 2005

Subjects: Motor fuels -- Taxation -- Washington (State); Sovereignty -- Squaxin Island Tribe of the Squaxin Island Reservation, Washington; Sovereignty -- Swinomish Indians of the Swinomish Reservation, Washington.

*Synopsis: Indian tribes brought action seeking declaratory and injunctive relief barring state from collecting taxes on fuel sold by tribes within their respective reservations. Parties filed cross-motions for summary judgment.

*Holding: The District Court, Zilly, J., held that state was barred from collecting fuel taxes for fuel sold on tribal land.
Tribes' motion granted.

United States v. Fiander
401 F.Supp.2d 1136
No. CR-05-2099-RHW-8
United States District Court, E.D. Washington, November 21, 2005

Subjects: Confederated Tribes and Bands of the Yakama Nation, Washington -- Members; Taxation -- Cigarettes -- Transportation -- Washington (State); United States. Contraband Cigarette Trafficking Act; Yakama Indians -- Treaties; Notice (Law) -- Washington (State); United States. Racketeer Influenced and Corrupt Organizations Act.

*Synopsis: Defendant moved to dismiss 28-count indictment that included alleged violations of the Contraband Cigarette Trafficking Act (CCTA).

*Holding: The District Court, Whaley, Chief Judge, held that:
(1) defendant committed predicate violation of Washington State cigarette tax laws to support the derivative charge of violating the CCTA, and
(2) defendant's right to travel, as established by Yakama Treaty of 1855, included the right to transport unstamped cigarettes within Washington without pre-notification, but did not include the right to deliver possession of unstamped cigarettes without pre-notification as required under Washington law.
Motion denied.

State of South Dakota v. United States Department of Interior
401 F.Supp.2d 1000
No. CIV 04-4073-KES
United States District Court, D. South Dakota, Southern Division, November 18, 2005

Subjects: South Dakota; United States. Dept. of the Interior; Trust lands -- Flandreau Santee Sioux Tribe of South Dakota; Moody County (S.D.); United States. Indian Reorganization Act.

*Synopsis: State of South Dakota and county brought action for declaratory and injunctive relief against decision of the Department of the Interior (DOI) to take purchased land into trust for Indian tribe. State and county moved for summary judgment.

*Holding: The District Court, Schreier, J., held that:
(1) section of Indian Reorganization Act (IRA) which authorized DOI to take land into trust for Indian tribe was not an unconstitutional delegation of Congressional power;
(2) DOI had rational basis for decision to take parcel of land into trust for Indian tribe;
(3) Bureau of Indian Affairs' (BIA) Regional Director was not biased due to structural bias of BIA in favor of Indians.
Motion denied, and judgment for defendants.

Attorney's Process and Investigation Services, Inc. v. Sac and Fox Tribe of the Mississippi in Iowa
401 F.Supp.2d 952
No. C-05-0168-LRR
United States District Court, N.D. Iowa, November 15, 2005

Subjects: Attorney's Process and Investigation Services; Theft -- Attorney's Process and Investigation Services; Tribal trust funds -- Sac & Fox Tribe of the Mississippi in Iowa; Jurisdiction -- Sac & Fox Tribe of the Mississippi in Iowa; Arbitration -- Sac & Fox Tribe of the Mississippi in Iowa; United States. United States Arbitration Act; Trespass -- Attorney's Process and Investigation Services; Breach of contract -- Sac & Fox Tribe of the Mississippi in Iowa; Trade secrets -- Sac & Fox Tribe of the Mississippi in Iowa

*Synopsis: Non-Indian contractor brought breach of contract action against Indian tribe. Contractor moved for injunction barring tribe from proceeding with suit against it in tribal court.

*Holding: The District Court, Reade, J., held that:
(1) provision in tribal code, that tribal court lacked jurisdiction over counterclaims, did not excuse requirement that contractor exhaust tribal remedies before commencing federal court suit;
(2) presence of arbitration provision in contract did not excuse requirement that tribal remedies be exhausted; and
(3) prospect that tribe might have sovereign immunity precluded assertion of jurisdiction.
Case dismissed for lack of jurisdiction.

State of New York v. The Shinnecock Indian Nation
400 F.Supp.2d 486
Nos. 03-CV-3243(TCP), 03-CV-3466(TCP)
United States District Court, E.D. New York, November 7, 2005

Subjects: Shinnecock Indian Nation, New York; New York; Federally recognized Indian tribes -- Defined; Indian gaming -- Shinnecock Indian Nation, New York; Casinos -- Design and construction -- New York; Environmental risk assessment; Gambling -- Law and legislation -- United States; Gambling -- Law and legislation -- New York; Federal recognition of Indian tribes -- Shinnecock Indian Nation, New York; Zoning law -- New York; Zoning law -- Southampton (N.Y. : Town); Indian property -- New York.

*Synopsis: State and municipality sued Shinnecock Nation, seeking to bar construction and operation of gaming casino on land allegedly owned by tribe. Following grant of preliminary injunction barring construction, 280 F. Supp.2d 1, parties moved and cross moved for summary judgment.

*Holding: The District Court, Platt, J., held that:
(1) Shinnecock Nation was tribe, for purpose of determining whether they could build and run casino, and
(2) fact issues precluded summary judgment regarding right of tribe to proceed with project.
Motions denied.

Related News Stories: Gaming bid still unclear. (Newsday.com) 11/09/05.

LaVallie v. United States
396 F.Supp.2d 1082
No. A1-04-075
United States District Court, D. North Dakota, November 2, 2005

Subjects: United States. Federal Tort Claims Act; Police brutality -- Standing Rock Sioux Tribe of North & South Dakota; United States. Bureau of Indian Affairs. Standing Rock Agency; Indian reservation police -- Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Arrestee filed action under Federal Tort Claims Act (FTCA) alleging that tribal law enforcement officer used excessive force when arresting him. Defendants moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that officer was not "federal law enforcement officer" within meaning of FTCA.
Motion granted.

Corliss v. City of Fall River
397 F.Supp.2d 260
No. CIV.A. 05-11406-DPW
United States District Court, D. Massachusetts, November 1, 2005

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

*Synopsis: Owner filed § 1983 action alleging that city violated his civil rights by having his truck towed from Indian reservation. City moved to dismiss complaint.

*Holding: The District Court, Woodlock, J., held that:
(1) Massachusetts renewal statute could not be invoked against defendants who were not served with notice in plaintiff's original action, and
(2) owner's § 1983 action was not "same cause" as owner's previous conversion action, for purposes of renewal statute.
Motion granted.

October

Osage Tribe of Indians of Oklahoma v. United States
68 Fed.Cl. 322
Nos. 99-550 L, 00-169 L
United States Court of Federal Claims, October 27, 2005

Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting -- United States; Mines and mineral resources -- Osage Tribe of Oklahoma; Revenue -- Osage Tribe of Oklahoma.

*Synopsis: Indian tribe brought suit against the United States seeking to recover damages for government's alleged failure to collect and invest revenues generated from the tribe's mineral estate. Defendant filed motion to dismiss in part.

*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) plain language of 1906 Act "for the division of the lands and funds of the Osage Indians in Oklahoma Territory" imposed on the government as trustee fiduciary duties which included specific duty to verify that "all moneys due" under terms of mineral leases were in fact paid to the government and deposited to the account of the Osage tribe as trust beneficiary;
(2) statutes and regulations imposing on the government fiduciary duty to ensure that mineral lessees met their contractual obligations to tribe as lessor by verifying the accuracy of royalty payments could fairly be interpreted as mandating compensation by the government for damages sustained from violation of its duty, for purposes of jurisdiction; and
(3) tribe's claims that government breached its fiduciary duty by failing to collect mineral royalty payments due tribe fell with ambit of act providing that statute of limitations on claims concerning losses or mismanagement of tribal trust funds does not commence to run until tribe has been furnished with an accounting.
Motion denied.

Oneida Indian Nation of New York v. Madison County
2005 WL 2810537
No. 5:00-CV-506
United States District Court, N.D. New York, October 27, 2005

Subjects: Foreclosure -- Madison County (N.Y.); Real property -- Oneida Nation of New York.

*Synopsis: (from the opinion) A district court should not permit the taking of a sovereign nation's land against its will by foreclosure or any other means, without the express approval of the United States Government. In this country such an extraordinary remedy-taking a sovereign nation's land against its will--has never been legally sanctioned.

*Holding: not available

United States v. Smiskin
2005 WL 2736562
Nos. CR-04-2107-EFS, CR-04-2108-EFS
United States District Court, E.D. Washington, October 24, 2005

Subjects: Yakama Indian Nation of the Yakama Reservation, Washington; Confederated Tribes and Bands of the -- Members; United States. Contraband Cigarette Trafficking Act; Treaty with the Yakima (1855).

*Synopsis: (from the opinion) Defendants Harry Smiskin and Kato Smiskin, both enrolled members of the Confederated Tribes and Bands of the Yakama Nation (the "Yakama Tribe"), were indicted on charges of violating the Contraband Cigarette Trafficking Act ("CCTA"), 18 U.S.C. § 2342(a). ....Defendants argued they could not be prosecuted under the CCTA for failure to pre-notify Washington State of their intent to transport unstamped cigarettes because the pre-notification requirement violated their right to travel under the Yakama Treaty of 1855 (the "1855 Treaty").

*Holding: not available

Cobell v. Norton
394 F.Supp.2d 164
No. CIV.A. 96-1285(RCL)
United States District Court, D. Columbia, October 20, 2005

*Synopsis: In class action in which Indian trust beneficiaries alleged that Department of Interior had insufficient computer security to adequately safeguard the electronically stored Individual Indian Trust Data of which it was a custodian, plaintiffs filed motion for preliminary injunction.

*Holding: The District Court, Lamberth, J., held that trust beneficiaries were entitled to preliminary injunctive relief requiring the Department of the Interior to disconnect all information technology systems that housed or provided access to the Indian trust data from the internet and from all intranet connections.
Motion granted.

Related News Stories: Appeals court considers bias charges in Cobell lawsuit (Indianz.com) 10/17/05

Farrow v. Stanley
2005 WL 2671541
No. Civ.02-567-PB
United States District Court, D. New Hampshire, October 20, 2005

Subjects: Indian prisoners -- New Hampshire; Freedom of religion -- United States; Sweat lodges; Religious articles.

*Synopsis: (from the opinion) Farrow, a practicing member of the Lakota Sioux Nation and the Native American Sacred Circle ("Sacred Circle"), is incarcerated at NCF, the Department of Corrections ("DOC") facility located in Berlin, New Hampshire. He claims that defendants are depriving him of his statutory and constitutional rights to practice his religion by: (1) preventing him from possessing tobacco for prayer and ceremonial use; (2) denying him access to medicines and herbs for ceremonial use; (3) prohibiting him from engaging in daily group prayer with other members of the Sacred Circle; (4) failing to supply him with Native American foods on religious holidays; (5 refusing to allow him to wear feathers at all times; (6) barring the various Native American nations represented within the Sacred Circle from meeting as subgroups; (7) failing to employ a Native American consultant to shape the DOC's religious policies; and (8) denying him access to a sweat lodge for ritual purification.

*Holding: not available

Guidiville Band of Pomo Indians v. NGV Gaming LTD.
2005 WL 5503031
No. C 04-3955-SC, C 05-1605-SC
United States District Court, N.D. California, October 19, 2005

Subjects: NGV Gaming, Ltd. (Fla.); Upstream Point Molate, LLC. (Calif.); Harrah's Operating Company, Inc.; Contracts; Indian gaming -- Guidiville Rancheria of California; Gambling on Indian reservations -- California; Guidiville Rancheria of California.

*Synopsis: (from the opinion) NGV contends that because no lands were acquired and transferred into trust, it is not necessary to obtain regulatory approval of the Agreements by the Secretary of the Interior, or his designee, pursuant to 25 U.S.C. § 81(b)(2000).

*Holding: not yet available

Sitton v. Native Village of Northway
2005 WL 2704992
No. A03-0134-CV (HRH)
United States District Court, D. Alaska, October 13, 2005

Subjects: Northway Village (AK); Federal recognition of Indian tribes -- Northway Village (AK); Trials (Custody of children) -- Alaska; Jurisdiction -- Northway Village (AK).

*Synopsis: (from the opinion) In their second amended complaint, plaintiffs seek a declaration that the Native Village of Northway was not lawfully recognized by the federal government and thus its court lacks authority to adjudicate the custody dispute between Sitton and Felix (plaintiffs' first and second claims for relief).

*Holding: not available

Quair v. Bega
232 F.R.D. 638
No. 1:02CV5891 REC DLB
United States District Court, E.D. California, October 12, 2005

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

*Synopsis: Petitioners brought habeas proceeding under the Indian Civil Rights Act (ICRA) challenging their disenrollment and banishment from Indian tribe. Respondents moved to compel and petitioners moved for protective order.

*Holding: The District Court, Beck, United States Magistrate Judge, held that petitioners failed to show there was good cause for outside-attorney eyes only protective order to protect the identities of trial witnesses who feared retaliation.
Ordered accordingly.

United States v. Keys
390 F.Supp.2d 875
No. C4-05-037
United States District Court, D. North Dakota, Northwestern Division, October 12, 2005

Subjects: Firearms -- Law and legislation; Searches and seizures -- United States; Evidence (Law) -- United States; Criminal actions arising on Indian reservations -- Turtle Mountain Indian Reservation (N.D.); Methamphetamine; Police -- United States. Bureau of Indian Affairs; Non-Indians -- On Indian reservations.

*Synopsis: Defendant who was charged with possession of firearm and ammunition by unlawful user of controlled substance moved to suppress evidence and dismiss indictment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) search of defendant's vehicle was not justified under inventory search exception to search warrant requirement;
(2) search was not justified under exception for searches incident to arrest;
(3) search was justified under automobile exception; and
(4) Bureau of Indian Affairs officers' continued detention of defendant after officers determined defendant was a non-Indian was unreasonable.
Motions granted in part and denied in part.

MacArthur v. San Juan County
391 F.Supp.2d 895
No. 2L00 CV 5841
United States District Court, D. Utah, October 12, 2005

Subjects: Clinics -- Officials and employees -- New Mexico -- San Juan County; Civil rights -- New Mexico -- San Juan County; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Non-Indians; Torts -- New Mexico -- San Juan County; Sovereign immunity -- New Mexico -- San Juan County.

*Synopsis: Employees of county health clinic, alleging torts and civil rights violations, sought enforcement of preliminary injunctive relief obtained from Navajo Nation district court. The United States District Court for the District of Utah, Dale A. Kimball, J., granted county's motion to dismiss, and employees appealed. The Court of Appeals, 309 F.3d 1216, affirmed in part, but remanded for consideration of whether tribal court had adjudicative jurisdiction.

*Holding: On remand, the District Court, Jenkins, Senior Judge, held that:
(1) tribal court lacked subject-matter jurisdiction over claims asserted by non-Indian spouse of tribal member against non-Indian defendants;
(2) there was no evidence that county defendants had engaged in any tortious conduct;
(3) tribal court had subject-matter jurisdiction over tribal members' claims against county health district;
(4) tribal court's interlocutory, non-final orders were not enforceable in federal court;
(5) county health district was immune from suit in tribal court; and
(6) district's immunity extended to all claims against district employees except for defamation claim.
Motion granted in part and denied in part.

Laverdure v. Sky Dancer Casino
2005 WL 2495824
No. A4-05-85
United States District Court, D. North Dakota, October 6, 2005

Subjects: Employees -- Drug testing; Sky Dancer Casino (N.D.); Constitutional law.

*Synopsis: (from the opinion) It appears that plaintiffs Steve Laverdure and Joe Turtle were former employees at the Sky Dancer Casino in Belcourt, North Dakota. In 2003, Laverdure was ordered to undergo drug testing as a part of his employment. Laverdure filed suit in tribal court for alleged constitutional violations stemming from the required drug testing. This present lawsuit arises out of that tribal court litigation.

*Holding: not available

Cayuga Indian Nation of New York v. Village of Union Springs
390 F.Supp.2d 203
No. 5:03-CV-1270
United States District Court, N.D. New York, October 5, 2005

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

*Synopsis: Indian tribe filed suit against local governments seeking declaratory and injunctive relief regarding the nature of use of property that it owned within defendants' municipal boundaries. Defendants filed a counterclaim seeking declaratory and injunctive relief against tribe. The District Court, 317 F.Supp.2d 128, enjoined defendants from applying or enforcing zoning and land use laws as to tribe's activities on property. The District Court, 317 F.Supp.2d 152, denied defendants' motion for stay of injunction pending appeal. The Court of Appeals issued mandate directing reconsideration of injunction order in light of United States Supreme Court's decision in City of Sherrill, New York v. Oneida Indian Nation of New York. Defendants moved to vacate injunction and for summary judgment

*Holding:The District Court, Hurd, J., held that tribe was not entitled to immunity from state and local zoning and land use laws.
Injunction vacated, summary judgment granted for defendants, and action dismissed.

September

Grand River Enterprises Six Nations, LTD. v. Pryor
425 F.3d 158
Docket No. 03-9179
United States Court of Appeals, Second Cir., September 28, 2005

Subjects: 3B Holdings (Wash.); Grand River Enterprises Six Nations (Canada); Nationwide Tobacco (Wash.); Tobacco -- Law and legislation -- United States -- States; Products liability -- Tobacco -- United States -- States; Structured settlements -- United States -- States; Tobacco industry -- Law and legislation -- United States -- States

*Synopsis: Cigarette manufacturers, importers, and wholesalers brought action against state attorneys-general regarding escrow statutes and certification statutes that were enacted as part of master settlement agreement (MSA) between states and certain other cigarette companies. The United States District Court for the Southern District of New York, John F. Keenan, J., dismissed action in part, 2003 WL 22232974 and 2004 WL 2480433, and granted certification for interlocutory appeal.

*Holding: The Court of Appeals, John M. Walker, Chief Circuit Judge, held that:
(1) district court did not abuse its discretion in certifying appeal;
(2) transacts-any-business requirement of New York long arm statute was satisfied;
(3) substantial nexus existed between instant lawsuit and prior negotiations between attorneys-general over statutes and MSA;
(4) dormant Commerce Clause was not violated by MSA;
(5) tobacco escrow statutes advanced significant public interests;
(6) tobacco escrow statutes and MSA controlled prices outside of enacting states;
(7) Indian Commerce Clause was not implicated; and
(8) due process clause was not implicated.
Affirmed in part, reversed in part, and remanded.

Johnson v. Choctaw Management/Services Enterprise
149 Fed.Appx. 800
Docket No. 04-7123
United States Court of Appeals, Tenth Cir., September 20, 2005

Subjects: Discrimination in employment; Choctaw Management/Services Enterprise (Okla.); Termation of employees -- Choctaw Management/Services Enterprise (Okla.); United States. Civil Rights Act of 1964 – Title 7; Jurisdiction -- United States.

*Synopsis: Former employee brought Title VII action against Indian-owned business enterprise, alleging race and gender discrimination. The United States District Court for the Eastern District of Oklahoma dismissed action for lack of subject matter jurisdiction. Employee appealed.

*Holding: The Court of Appeals, Tymkovich, Circuit Judge, held that enterprise was exempted by statute from action.
Affirmed.

Shawnee Tribe v. United States
423 F.3d 1204
Docket No. 04-3256
United States Court of Appeals, Tenth Cir., September 15, 2005

Subjects: United States. General Services Administration; Shawnee Tribe, Oklahoma; Indian land transfers; Sunflower Army Ammunition Plant (Kan.); United States. National Defense Authorization Act for Fiscal Year 2005; United States. Federal Property and Administrative Services Act of 1940; Jurisdiction -- United States; Indian termination policy; Tribes -- Termination; Treaties -- Shawnee Tribe, Oklahoma; Treaties -- United States.

*Synopsis: Shawnee Tribe sought judicial review of General Service Administration (GSA) finding that former military installation available for disposal under the federal Property Act, was not within boundaries of reservation. The United States District Court for the District of Kansas, Thomas G. Van Bebber, Senior District Judge, 311 F.Supp.2d 1181, granted summary judgment for government, and Tribe appealed. The Court of Appeals, 405 F.3d 1121, dismissed the appeal as moot, and petition for rehearing was granted in part.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that:
(1) enactment of 2005 National Defense Authorization Act provision giving Secretary of the Army discretion to convey former military installation in historic boundaries of Shawnee Indian reservation to entity selected by county board for economic development mooted Tribe's claims to the property under the Property Act, and
(2) 1854 Treaty between the Shawnee Tribe and the United States did not reserve or create a reservation for the Shawnee.
Affirmed in part, vacated in part, and remanded.

Lewis v. Norton
424 F.3d 959
Docket No. 03-17207
United States Court of Appeals, Ninth Cir., September 13, 2005

Subjects: Table Mountain Rancheria of California -- Members -- Defined; Profit-sharing -- Table Mountain Rancheria of California -- Members; United States; Casinos -- Table Mountain Rancheria of California; Indian gaming -- Table Mountain Rancheria of California.

*Synopsis: Rejected applicants for membership in Indian tribe sued federal agencies, seeking declarative and injunctive relief. The United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, dismissed for lack of subject matter jurisdiction, and appeal was taken.

*Holding: The Court of Appeals, Schroeder, Chief Judge, held that:
(1) tribe was immune from suit, and
(2) applicants could not avoid immunity issue by suing federal government.
Affirmed.

Related News Stories: • • Two Cobell v. Norton court hearings this week (Indianz.com) 9/13/05

Carcieri v. Norton
2005 WL 2216322
Docket No. 03-2647
United States Court of Appeals, First Cir., September 13, 2005

Subjects: Narragansett Indian Tribe of Rhode Island; United States. Dept. of the Interior; Trust lands -- Narragansett Indian Tribe of Rhode Island; Charlestown (R.I. : Town); Rhode Island; United States. Indian Reorganization Act; Rhode Island Indian Claims Settlement Act; United States. Administrative Procedure Act; United States. Constitution.

*Synopsis: State and town challenged Secretary of the Interior's decision to accept 31-acre parcel of land into trust for benefit of Indian tribe. The United States District Court for the District of Rhode Island, Mary M. Lisi, 290 F.Supp.2d 167, granted Secretary's motion for summary judgment, and appeal was taken.

*Holding: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) federally recognized tribe was entitled to benefits of Indian Reorganization Act (IRA), even if it was not recognized and under federal jurisdiction on date of Act's enactment;
(2) Rhode Island Indian Claims Settlement Act did not impair tribe's ability to seek trust acquisition of lands that it acquired by purchase with non-settlement funds;
(3) Settlement Act did not prohibit Secretary from removing lands taken into trust from State's civil and criminal jurisdiction; and
(4) Bureau of Indian Affairs (BIA) finding that parcel of land acquired by tribe qualified for trust acquisition was not arbitrary or capricious. Affirmed.

Related News Stories: • • Two Cobell v. Norton court hearings this week (Indianz.com) 9/13/05
• • Appeals court upholds legality of land-into-trust process (Indianz.com) 9/14/05

Alaska Department of Health and Social Services v. Centers for Medicare and Medicaid Services
424 F.3d 931
Docket No. 04-74204
United States Court of Appeals, Ninth Cir., September 12, 2005

Subjects: Alaska. Dept. of Health and Social Services; Centers for Medicare & Medicaid Services (U.S.) ; Medical care, Cost of -- Alaska; Medical care -- Cost control -- United States; Medicare; Medicaid; United States. Medicaid Act; United States. Indian Health Service; Health facilities -- Indian Country (Alaska).

*Synopsis: State of Alaska petitioned for judicial review of final determination by administrator of the Centers for Medicare and Medicaid Services (CMS) disapproving proposed amendment to Medicaid state plan that would alter rate at which federal government reimbursed state expenditures on behalf of patients at Indian tribal health facilities.

*Holding: The Court of Appeals, Brunetti, Circuit Judge, held that:
(1) Chevron framework for determining level of deference to be accorded to agency's interpretation of statute governed review of CMS's interpretation of statute under which plan amendment was disapproved;
(2) administrator could rely on statute requiring state plan to provide methods and procedures necessary to ensure that Medicaid payments were consistent with efficiency, economy, and quality of care as independent basis for disapproving amendment;
(3) administrator's determination that amendment did not comply with statutory requirement that state plan provide methods and procedures necessary to ensure that Medicaid payments were consistent with efficiency and economy was based on permissible construction of statute, warranting Chevron deference;
(4) disapproval of amendment was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law;
(5) state's methodology for calculating prevailing charges for tribal facilities in rural locality was inconsistent with governing regulation; and
(6) regulation supported administrator's construction of regulation's "comparable circumstances" language.
Petition for review denied.

Wilbur v. Locke
423 F.3d 1101
Docket No. 03-35911
Petition for Certiorari Filed (October 6, 2005)
United States Court of Appeals, Ninth Cir., September 9, 2005

Subjects: Salish Trust; Trading Post at March Point; Cigarettes -- Taxation -- Washington (State); United States. Tax Injunction Act; Cigarette vendors -- Swinomish Indians of the Swinomish Reservation; Contracts; Standing to sue; Parties to actions -- Swinomish Indians of the Swinomish Reservation.

*Synopsis: Indian retailers challenged state's authority to negotiate cigarette tax contract with tribe. The United States District Court for the Western District of Washington, Robert S. Lasnik, J., dismissed suit as barred by Tax Injunction Act, and retailers appealed.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) retailers had standing to sue;
(2) suit was not barred by Tax Injunction Act; but
(3) tribe was indispensable party to suit.

Hoevenaar v. Lazaroff
422 F.3d 366
Docket No. 03-4119
United States Court of Appeals, Sixth Cir., September 8, 2005

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: In Native American prison inmate's 1983 action alleging violations of his right to practice his religion, inmate moved for preliminary injunction to prevent corrections officials from cutting his hair. The United States District Court for the Southern District of Ohio, Algenon L. Marbley, J., 276 F.Supp.2d 811, granted limited relief under Religious Land Use and Institutionalized Persons Act (RLUIPA), allowing inmate to maintain a kouplock. The Court of Appeals, 108 Fed.Appx. 250, reversed, and the Supreme Court, 125 S.Ct. 2536, vacated and remanded.

*Holding: On Remand, the Court of Appeals, Reeves, District Judge, held that district court failed to give proper deference to expertise and experience of prison officials on issue of whether prison regulation was least restrictive means of furthering compelling governmental security interest.
Reversed and remitted.

State of South Dakota v. United States Department of the Interior
423 F.3d 790
Docket No. 04-2309
United States Court of Appeals, Eighth Cir., September 6, 2005

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

*Synopsis: State, city, and county brought action for declaratory and injunctive relief against the Department of Interior (DOI) and others, seeking to prevent the placement of a certain parcel of land into trust on behalf of Indian tribe. The United States District Court for the District of South Dakota, 314 F.Supp.2d 935, Richard H. Battey, J., upheld DOI's decision to take the land into trust. State appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge held that:
(1) Indian Reorganization Act (IRA) section granting DOI authority to place land in trust for benefit of Indians was not an unconstitutional delegation of legislative power;
(2) DOI reasonably and appropriately evaluated the relevant factors when determining to place certain lands in trust for tribe; and
(3) there was thus no need to supplement the record.
Affirmed.

Related News Stories: • • Appeals court upholds legality of land-into-trust process (Indianz.com) 9/14/05

Beams v. Norton
141 Fed Appx. 769
Nos. 04-3393
Petition for Certiorari Filed (November 29, 2005)
United States Court of Appeals, Tenth Cir., November 29, 2005

Subjects: Trusts and trustees -- United States; Indian preference in hiring -- United States; United States. Bureau of Indian Affairs; United States. Wheeler-Howard Act; Marijuana -- Law and legislation -- United States; Trust lands -- Indian Country (U.S.).; Indian reservations -- United States; United States. Civil Rights Act of 1964 – Title 7; United States. Age Discrimination in Employment Act of 1967; Jurisdiction -- United States.

*Synopsis: (from the opinion) Richard Lee Beams appeals from district court orders that dismissed his Indian Preference Act (IPA) claim for lack of subject matter jurisdiction and failure to state a claim, see 25 U.S.C. § 472, and entered summary judgment on his discrimination and retaliation claims, 29 U.S.C. § 633a; 42 U.S.C. § 2000e-16.

*Holding: not available

Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton
422 F.3d 490
Docket No. 04-3571
United States Court of Appeals, Seventh Cir., September 1, 2005

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Wisconsin; Intergovernmental agreements -- Tribes -- Wisconsin; Intergovernmental agreements -- Wisconsin; United States. Dept. of the Interior; Ho-Chunk Nation of Wisconsin (formerly known as the Wisconsin Winnebago Tribe); Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Wisconsin; Standing to sue; United States. Administrative Procedure Act.

*Synopsis: Two Indian tribes sought declaratory judgment voiding a paragraph in an amendment to a gaming compact between a third tribe and a State, which had been allowed to go into effect without final action by the Department of the Interior (DOI). Third tribe intervened, and DOI and intervenor moved to dismiss. The United States District Court for the Western District of Wisconsin, Barbara B. Crabb, J., 327 F.Supp.2d 995, granted motions.

*Holding: On appeal. the Court of Appeals, Flaum, Chief Circuit Judge, held that:
(1) plaintiff tribes had standing, but
(2) plaintiff tribes' failure to respond to defendant's argument that judicial review was precluded by the Administrative Procedure Act (APA) amounted to forfeiture of point.
Affirmed.

Green v. Cushman & Wakefield of Connecticut
2005 WL 2416115
No. 303CV00601AWT
United States District Court, D. Connecticut, September 30, 2005

Subjects: Burial sites -- Desecration -- Connecticut; Indian land transfers -- Wangunk Band Indian Tribe (Conn.).

*Synopsis: (from the opinion) The plaintiff, Running Deer Van Thomas Green, a Wangunk band Indian tribe member, brings this action pro se and in forma pauperis. The operative complaint appears to allege that Indian burial grounds in Glastonbury and Portland, Connecticut have been desecrated; that from 1799 to 2003 tribal lands were unlawfully transferred in violation of 25 U.S.C. § 177; and that agreements regarding 300 acres of land set aside for the native heirs of the Wangunk band of Indians were not honored.

*Holding: not available

Yankton Sioux Tribe v. United States Army Corps of Engineers
396 F.Supp.2d 1087
No. CIV. 02-4126
United States District Court, D. South Dakota, Southern Division, September 30, 2005

Subjects: United States. Native American Graves Protection and Repatriation Act; Human remains (Archaeology) -- South Dakota; Sacred space -- South Dakota; United States. Water Resources Development Act of 2000; Indian land transfers -- Yankton Sioux Tribe of South Dakota; Yankton Sioux Tribe of South Dakota; United States. Army. Corps of Engineers; Excavation -- South Dakota; North Point Recreation Area (S.D.); Recreation areas -- Design and construction.

*Synopsis: Indian tribe brought action for declaratory, mandamus, and injunctive relief against state and federal officials, alleging, inter alia, that transfer of lands from United States government to State of South Dakota violated Water Resources Development Act (WRDA). Federal and State governments moved to dismiss.

*Holding: The District Court, Piersol, Chief Judge, held that:
(1) allegations, that transfers included lands located within reservation, and caused injury to the tribe's interests, sufficiently stated a claim for relief under WRDA;
(2) Secretary of the Interior (DOI) was not divested of authority to complete transfers despite failure to carry out them out until 38 days after expiration of statutorily prescribed period;
(3) tribe lacked standing to allege that Corps of Engineers failed to take adequate steps to ensure continued enforcement, on the transferred lands, of provisions of Native American Graves Protection and Repatriation Act (NAGPRA), Archeological Resources Protection Act (ARPA), and the National Historic Preservation Act (NHPA); and
(4) tribe failed to exhaust its administrative remedies with regard to its claim that transfers violated NHPA by failing to locate, inventory, and nominate for inclusion on the National Register items and property within the transferred lands.
Motion granted in part and denied in part.

Native American Arts v. Specialty Merchendise Corporation
2005 WL 2420399
No. 05 C 952
United States District Court, N.D. Illinois, Eastern Division, September 29, 2005

Subjects: Native American Arts (U.S.); Specialty Merchandise Corp.; United States. Indian Arts and Crafts Enforcement Act of 2000; Indian craft -- Defined; Indian art -- Defined.

*Synopsis: (from the opinion) Plaintiff Native American Arts, Inc. ("NAA") alleges that Defendants advertised, marketed, offered and displayed for sale goods such as artwork, crafts, jewelry, dolls, and pottery on a website. NAA alleges that Defendants falsely suggested that the goods were made by Native Americans.

*Holding: not available

Shoshone-Bannock Tribes of the Fort Hall Reservation v. Norton
2005 WL 2387595
No. CV-02-009-E-BLW
United States District Court, D. Idaho, September 28, 2005

Subjects: Trust lands -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho -- Members; Transfer payments -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho -- Members; Trusts and trustees -- Accounting -- United States; Cobell v. Norton.

*Synopsis: (from the opinion) Plaintiffs moved to have a class certified on behalf of all persons owning an interest in land on the Fort Hall Reservation who received late lease income checks for the year 2001.

*Holding: not available

Quarles v. United States
2005 WL 2789211
No. 00CV0913CVEPJC
United States District Court, N.D. Oklahoma, September 28, 2005

Subjects: Water leakage; Factory and trade waste; Oil and gas production; Landowners -- Osage Tribe of Oklahoma; Exhaustion of administrative remedies; United States; United States. Osage Act (Indians); Environmental Conservation Foundation; Quarles, Don; United States. Bureau of Indian Affairs; Indian allotments; United States. Oil Pollution Act of 1990; United States. Federal Water Pollution Control Act; United States. Comprehensive Environmental Response, Compensation, and Liability Act; United States. Federal Tort Claims Act; United States. Administrative Procedure Act; Trusts and trustees -- United States.

*Synopsis: (from the opinion) Five of the twelve claims alleged by Quarles are against the United States: counts I-IV and X. The first claim is for breach of a non-discretionary duty to assess damages and restore natural resources under the OPA, CWA, and CERCLA. The second claim is for violation of the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701, 706 in the United States' remediation decisions. The third claim is for breach of the "Indian Trust Doctrine." The fourth claim is for breach of a non-discretionary duty to create an administrative record under CERCLA, 42 U.S.C. § 9613. The tenth claim is for negligence pursuant to the FTCA.

*Holding: not available

Thompson v. United States Department of the Interior
2005 WL 2367537
No. CV-05-44-E-BLW
United States District Court, D. Idaho, September 27, 2005

Subjects: Trusts and trustees -- United States; Trust lands -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Leases -- Cancellation; Subleases.

*Synopsis: (from the opinion) The Plaintiffs, Chris Thompson and Thompson Farms ("Thompson") have filed the instant action seeking judicial review of the Bureau of Indian Affairs's decision to cancel two leases of Indian trust land. The Bureau of Indian Affairs canceled the leases on the ground that Thompson illegally subleased portions of the leased land to G-R Farms. The Interior Board of Indian Appeals ("the Board") affirmed the Bureau of Indian Affairs's decision, concluding that the leases at issue and the pertinent regulations required Thompson to obtain the Secretary's written approval, i.e., that oral approval was insufficient. Thompson now challenges that decision under the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq.

*Holding: not available

States of Texas v. Ysleta Del Sur Pueblo
2005 WL 2367782
No. EP-99-CA-320-DB
United States District Court, W.D. Texas, El Paso Division, September 27, 2005

Subjects: Ysleta Del Sur Pueblo of Texas; Texas; Casinos -- Ysleta Del Sur Pueblo of Texas; Indian gaming -- Ysleta Del Sur Pueblo of Texas; Gambling on Indian reservations -- Law and legislation -- Texas; United States. Indian Gaming Regulatory Act; Sovereignty -- Ysleta Del Sur Pueblo of Texas; Nuisances; Economic development -- Ysleta Del Sur Pueblo of Texas; Texas.

*Synopsis: (from the opinion) On September 27, 1999, the State filed an action against Defendants seeking to enjoin the operation of the Casino. The State's action sought to shut down the casino as a nuisance in violation of Texas Penal Code § 47.01, et seq., and the Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of Texas Restoration Act, (the "Restoration Act" or the "Act"), 25 U.S.C.A. § 1300g-1, et seq.

*Holding: not available

United Keetowah Band of Cherokee Indians of Oklahoma v. United States
67 Fed.Cl. 695
No. 03-1433L
United States Court of Federal Claims, September 16, 2005

Subjects: United Keetowah Band of Cherokee Indians of Oklahoma -- Compensation for taking; Extinguishment of Indian title -- United Keetowah Band of Cherokee Indians of Oklahoma; Arkansas River; Trusts and trustees -- United States; Breach of trust -- United States; Treaties -- Cherokee Indians; Parties to actions -- Cherokee Nation, Oklahoma; Sovereign immunity -- Cherokee Nation, Oklahoma; Jurisdiction -- United States.

*Synopsis: Keetoowah Band of Cherokee Indians brought suit against the United States seeking compensation for the extinguishment of all right, title, and interest to Arkansas Riverbed Lands, and damages for breaches of government's fiduciary duties with respect to Arkansas Riverbed Lands and minerals therein. The Cherokee Nation intervened to file motion to dismiss for failure to join indispensable party and for lack of jurisdiction.

*Holding: The Court of Federal Claims, Firestone, J., held that:
(1) Cherokee Nation was a necessary party;
(2) Cherokee Nation could not be joined because it enjoyed sovereign immunity and did not give its consent to be sued; and
(3) Cherokee Nation was an indispensable party whose inability to be joined required dismissal of suit.
Motion granted.

Crownpoint Institute of Technology v. Norton
Westlaw citation not currently available
Civ. No. 04-531 JP/DJS
United States District Court, D. New Mexico, September 16, 2005

Subjects: Crownpoint Institute of Technology; Vocational education -- Navajo Nation, Arizona, New Mexico & Utah; Government aid to education -- United States; Contracts -- United States. Bureau of Indian Affairs; United States. Indian Self-Determination and Education Assistance Act; Overhead costs; Tribal self-determination -- Navajo Nation, Arizona, New Mexico & Utah.

*Synopsis: (Provided by plaintiff's attorney) Crownpoint Institute of Technology, a tribal organization of the Navajo Nation, had been awarded BIA grants to run adult vocational training. Congress had directed that these grants be converted into Indian Self-Determination Act contracts but the BIA had resisted CIT's contract proposals, arguing that the program was not contractible because the BIA had not previously operated the program at Crownpoint. The Court held that the ISDA did not require previous BIA operation of the program, the program was contractible, there was no bona fide concern whether the Navajo tribe had properly authorized Crownpoint to apply for the contract, and the BIA had not complied with statutory and regulatory deadlines applicable to the proposals. The Court issued a writ of mandamus ordering the BIA to convert fiscal year 2003 and 2003 grants to ISDA contracts and to award an ISDA contract for fiscal year 2005, each with accompanying contract support costs.

*Holding: not available

United Keetowah Band of Cherokee Indians of Oklahoma v. United States
Westlaw citation not currently available
No. 03-1433L
United States Court of Federal Claims, September 16, 2005

Subjects: United Keetowah Band of Cherokee Indians of Oklahoma -- Compensation for taking; Treaties -- Cherokee Indians; Parties to actions -- Cherokee Nation, Oklahoma; Jurisdiction -- United States.

*Synopsis: (from the opinion) Pending before the court is a motion to dismiss by limited-intervenor Cherokee Nation of Oklahoma for failure to join an indispensible party pursuant to Rule 19 of the Rules of the United States Court of Federal Claims or for lack of subject matter jurisdiction pursuant to RCFR 12(b)(1). Both the plaintiff, the Keetoowah Band of Cherokee Indians of Oklahoma and the defendant, the United States oppose the Cherokee Nation's motion.

*Holding: not available

Donnell v. Red Lake Tribe
2005 WL 2250767
No. Civ. 04-5086JNEJGL
United States District Court, D. Minnesota, September 13, 2005

Subjects: Exhaustion of tribal remedies -- Red Lake Band of Chippewa Indians, Minnesota.

*Synopsis: (from the opinion) Based on the reasoning and legal authorities discussed above, the Court concludes that Petitioner's current habeas corpus petition cannot be entertained at this time, because he failed to exhaust his available Tribal Court remedies before seeking federal habeas review. The Court will therefore recommend that this action be summarily dismissed without reaching the merits of Petitioner's claims. It will be further recommended that this action be dismissed without prejudice, so that Petitioner can attempt to exhaust his Tribal Court remedies, by attempting to return to the Red Lake Court of Appeals and having his claims heard and decided on the merits there.

*Holding: not available

Keweenaw Bay Indian Community v. Rising
2005 WL 2207224
No. 2:03-CV-111
United States District Court, W.D. Michigan, Northern Division, September 12, 2005

Subjects: Keweenaw Bay Indian Community, Michigan; Cigarette vendors -- Keweenaw Bay Indian Community, Michigan; Casinos -- Keweenaw Bay Indian Community, Michigan; Cigarettes -- Taxation -- On Indian reservations -- Michigan.

*Synopsis: (from the opinion) In this action the Community challenges the State's efforts to collect state taxes on cigarettes sold by the Community at its two gaming facilities in Marquette and Baraga and at the Pines Convenience Center in Baraga. (LaFernier Aff. ¶ 6). These facilities are owned and operated by the Community and are located within the Reservation or on lands that have been taken into trust on behalf of the Community. (LaFernier Aff. ¶ 6). The facilities are all located within the area ceded by the 1842 Treaty. The Community's retail sales of cigarettes constitute an important and integral part of the Community's revenue-raising and economic development activities.

*Holding: not available

Larson v. Martin
386 F.Supp.2d 1083
No. A4-05-047
United States District Court, D. North Dakota, Northwest Division, September 9, 2005

Subjects: Jurisdiction -- United States; Exhaustion of tribal remedies; Turtle Mountain Band of Chippewa Indians of North Dakota; United States. Bureau of Indian Affairs; Roads -- Design and construction; Construction contracts -- Turtle Mountain Band of Chippewa Indians of North Dakota; Subcontractors.

*Synopsis: Subcontractor and equipment lessor brought suit against contractor, who was an enrolled member of Indian tribe, and surety on payment bond, alleging nonpayment in connection with highway project on Indian reservation. Contractor moved to dismiss.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) enrolled member of Indian tribe was citizen of State of North Dakota for purposes of establishing diversity jurisdiction, and
(2) subcontractor was not required to exhaust tribal remedies in light of forum selection clauses in payment bond and equipment lease.
Motion denied.

Blackmoon v. Charles Mix County
2005 WL 2217413
No. Civ. 05-4017
United States District Court, D. South Dakota, Southern Division, September 8, 2005

Subjects: Indians of North America -- South Dakota -- Charles Mix County; Election districts -- Charles Mix County (S.D.); Voting -- Charles Mix County (S.D.); Indians of North America -- Suffrage -- South Dakota; United States. Voting Rights Act of 1965; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment. Apportionment (Election law).

*Synopsis: Native American qualified voters and residents of county brought action against county, county commission members, and county auditor, alleging that county commission districts were malapportioned in violation of one-person-one-vote standard of the Equal Protection Clause, diluted Native American voting strength in violation of Voting Rights Act (VRA), and denied or abridged right of Native Americans to vote on account of race or color in violation of VRA and Fourteenth and Fifteenth Amendments. Voters moved for partial summary judgment, and defendants moved to amend answer and for summary judgment.

*Holding: The District Court, Piersol, Chief Judge, held that:
(1) commission districts' total deviation of 19.02 percent did not establish violation of equal protection's one-person-one-vote standard;
(2) defendants could conduct discovery to oppose voters' motion for summary judgment;
(3) doctrine of laches did not bar voters' claims; and
(4) statute of limitations did not bar voters' claims.
Ordered accordingly.

Related New Stories: Voting rights violated in South Dakota (Indian Country Today) 10/31/05

Quair v. Bega
2005 WL 2573464
No. 102CV5891RECDLB
United States District Court, E.D. California, September 2, 2005

*Synopsis: (from the opinion) This action arises out of the June 1, 2000, disenrollment and banishment of Petitioners Roselind Quair and Charlotte Berna ("Petitioners") from the Santa Rosa Rancheria Tachi-Yokut Tribe ("Tribe"). On February 3, 2003, Petitioners, pursuant to Section 1303 of the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., ("ICRA"), filed amended petitions for writ of habeas corpus. Petitioners allege that because the proceedings which resulted in their disenrollment as members of the Tribe and banishment from the Tribe's Rancheria were in violation of their rights guaranteed under ICRA, these actions constituted an unlawful detention and restraint of liberty.

*Holding: not available

In re Snell
2005 WL 2123722
Bankruptcy No. 04-14329-M, Adversary No. 04-01212-M
United States District Court, N.D. Oklahoma, September 2, 2005

Subjects: Law -- Members -- Cherokee Nation, Oklahoma; Liens -- Law and legislation -- Cherokee Nation, Oklahoma; Motor vehicles -- Law and legislation -- Cherokee Nation, Oklahoma.

*Synopsis: Chapter 7 trustee brought adversary proceeding against bank, asserting that bank's lien on pickup truck belonging to debtor, a member of the Cherokee Nation, a federally recognized Indian tribe, was not properly perfected because it was not noted on a vehicle title created by the State of Oklahoma.

*Holding: The Bankruptcy Court, Terrence L. Michael, Chief Judge, held that bank, which complied with the law of the Cherokee Nation in noting its lien upon the certificate of title issued by the Cherokee Nation, held a properly perfected lien upon the truck, which trustee could not avoid.
Proceeding dismissed.

August

Arakaki v. Lingle
423 F.3d 954
Docket No. 04-15306
United States Court of Appeals, Ninth Cir., August 31, 2005

Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States.

*Synopsis: Citizens of Hawaii sued United States, state officers, Department of Hawaiian Home Lands (DHHL), Hawaiian Homes Commission (HHC), and Office of Hawaiian Affairs (OHA), alleging that various state programs gave preferential treatment to persons of Hawaiian ancestry in violation of equal protection principles and terms of public lands trust. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., 198 F.Supp.2d 1165, denied temporary restraining order, then granted in part and denied in part motions to dismiss and denied motions for reconsideration, 299 F.Supp.2d 1090, 299 F.Supp.2d 1107, 299 F.Supp.2d 1114, 299 F.Supp.2d 1129, and, finally, dismissed entire action, 305 F.Supp.2d 1161. Citizens appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) citizens lacked standing to sue United States as beneficiaries of public lands trust;
(2) citizens lacked standing to sue state as trust beneficiaries;
(3) citizens lacked standing to challenge lease eligibility requirements of public lands trust in state taxpayer capacity;
(4) citizens' standing, as state taxpayers, to challenge OHA-administered programs was limited to those programs relying upon state tax appropriations;
(5) citizens' lack of standing to sue United States precluded challenge to OHA's expenditures of revenues derived from public lands trust; and
(6) claims that expenditure of state tax revenue on OHA programs violated equal protection did not present nonjusticiable political question.
Affirmed in part, reversed in part, and remanded.

Hoevenaar v. Lazaroff
2005 WL 2154948
Docket No. 03-35922, D.C. No. CV-99-0082-DWM
United States Court of Appeals, Sixth Cir., September 8, 2005

Subjects: Freedom of religion; Indian prisoners; Long hair; Madison Correctional Institute; United States. Religious Land Use and Institutionalized Persons Act of 2000.

Lee v. Tanner
141 Fed.Appx. 696
Docket No. 03-35922, D.C. No. CV-99-0082-DWM
United States Court of Appeals, Ninth Cir., August 25, 2005

Subjects: Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members.

*Synopsis: (from the opinion) Morris challenges the jurisdiction of the CSKT tribal court, which was confirmed by the 1990 amendments to the Indian Civil Rights Act (“ICRA”) to extend to “all Indians” in criminal cases. See Pub.L. No. 101-511, Title VIII, § 8077(b) -(c), 104 Stat. 1856, 1892 (1990) (amending 25 U.S.C. § 1301). He contends that the 1990 amendments violate principles of equal protection and due process. In our recent opinion in Means v. Navajo Nation, No. 01-17489, slip op. 11191 (Aug. 23, 2005), however, we squarely addressed and rejected both of these challenges to the 1990 amendments to the ICRA.

*Holding: not yet available

United States v. State of Michigan
2005 WL 2033321
Docket No. 04-1864
United States Court of Appeals, Sixth Cir., August 24, 2005

Subjects: Treaty of Washington (1836); Treaties -- United States; Treaties -- Ottawa Indians; Treaties -- Ojibwa Indians; Hunting rights; Fishing rights; Michigan; Michigan Fisheries Resource Conservation Coalition; Walloon Lake Trust and Conservancy.

*Synopsis: United States brought action against State of Michigan regarding interpretation and enforcement of 1836 Treaty of Washington. The United States District Court for the Western District of Michigan, Richard A. Enslen, J., denied motion of private property owners to intervene in phase of case directed toward determination of usufructuary rights of five Indian tribes under that Treaty. Owners appealed.

*Holding: The Court of Appeals, Ryan, Circuit Judge, held that:
(1) owners were not entitled to intervene as matter of right;
(2) owners' concerns about future management and regulatory issues did not provide basis for mandatory intervention; and
(3) district court did not abuse its discretion in denying motion of owners for permissive intervention.
Affirmed.

Means v. Navajo Nation
420 F.3d 1037
Docket No. 01-17489
United States Court of Appeals, Ninth Cir., August 23, 2005

Subjects: Criminal actions arising on Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Non-members of a tribe; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members.

*Synopsis: After being charged in the tribal court of an Indian reservation with various offenses, defendant, an enrolled member of a different Indian tribe, petitioned for a writ of habeas corpus enjoining the tribal court from proceeding with the case. The United States District Court for the District of Arizona, Earl H. Carroll, J., denied the petition. Defendant appealed.

*Holding: The Court of Appeals, Kleinfeld, Circuit Judge, held that non-member Indian was not deprived of equal protection or due process by statute which made him subject to the criminal jurisdiction of another tribe's courts for misdemeanors committed on that tribe's reservation.
Affirmed.

Related News Stories:
• • Appeals court opens Means to tribal prosecution (Indianz.com) 8/24/05
• • Federal courts try to decide who is legally Indian (Indianz.com) 8/24/05

Perez v. Ellington
421 F.3d 1128
Docket No. 04-2181
United States Court of Appeals, Tenth Cir., August 22, 2005

Subjects: Motor fuels -- Taxation -- New Mexico; Faction; Pueblo of Nambe, New Mexico -- Members; United States. Constitution. 1st Amendment; Freedom of association; Sovereign immunity -- Pueblo of Nambe, New Mexico

*Synopsis: Members of Indian tribe who had been subjected to New Mexico tax liens after contracting with a gasoline distribution corporation brought action against State officials, alleging various claims including a § 1983 claim for a First Amendment violation. The United States District Court for the District of New Mexico granted summary judgment for officials as to all claims except the Freedom of Association claim. Officials appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that
(1) issues of fact existed as to whether tax officials' imposition of tax liens on property of Indian tribal members was in retaliation for those members' business association with a non-tribal gasoline distributor, and
(2) officials were not entitled to absolute immunity.
Affirmed.

United States v. Looking Cloud
2005 WL 1993934
Docket No. 04-2173
United States Court of Appeals, Eighth Cir., August 19, 2005

Subjects: Trials (Murder) -- United States; Evidence (Law) -- United States; American Indian Movement -- Members; Testimony; Instructions to juries.

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Lawrence L. Pierson, Chief Judge, of first degree murder. Defendant appealed.

*Holding: The Court of Appeals, Gibson, Circuit Judge, held that:
(1) probative value of evidence of defendant's membership in an American Indian group and history of group's violent activities was not outweighed by danger of unfair prejudice;
(2) any error in admission of evidence of violent activities of American Indian group was harmless;
(3) testimony, that people within the American Indian group of which defendant was a member had accused murder victim of being an informant and that the victim spoke of fearing for her life because of the accusations, was not hearsay;
(4) Court of Appeals would review for plain error defendant's claim on appeal that district court erred by giving improper limiting jury instruction;
(5) limiting jury instruction was not plainly erroneous;
(6) Court of Appeals would not consider on direct appeal defendant's ineffective assistance of counsel claim; and
(7) evidence was sufficient to support murder conviction.
Affirmed.

Samish Indian Nation v. United States
419 F.3d 1355
Docket No. 04-5042
United States Court of Appeals, Federal Cir., August 19, 2005

Subjects: Samish Indian Tribe, Washington; Federal recognition of Indian tribes -- Samish Indian Tribe, Washington; Treaty of Point Elliott (1855); Treaty rights -- Samish Indian Tribe, Washington; Jurisdiction; United States. Indian Self-Determination and Education Assistance Act; Limitation of actions; United States. Tucker Act; United States. Snyder Act; United States. Administrative Procedure Act.

*Synopsis: Samish Indian Nation brought suit against United States under Tucker Act and Indian Tucker Act alleging that it should have been treated as federally recognized tribe during period from 1969 to 1996, government violated treaty promises, and it violated various laws after tribe was federally recognized in 1996. The United States Court of Federal Claims, Edward J. Damich, Chief Judge, dismissed action, 58 Fed.Cl. 114. Tribe appealed.

*Holding: The Court of Appeals, Gajarsa, Circuit Judge, held that:
(1) Indian Self-Determination and Education Assistance Act (ISDA) was not money-mandating, and thus Tucker Act and Indian Tucker Act jurisdiction did not exist;
(2) Nation did not have right to ISDA monies under fiduciary duty theory;
(3) Snyder Act did not provide private damage remedy;
(4) recognization of Nation was non-justiciable political act that tolled limitations period;
(5) limitations period was tolled until Nation, through its administrative challenges, obtained final ruling by district court under Administrative Procedures Act (APA);
(6) executive branch of government had to make recognition determination regarding Nation for purposes of statutory benefits; and
(7) claims for past benefits did not accrue when government accorded Nation federal recognition.
Affirmed in part, reversed in part, and remanded.

San Carlos Apache Tribe v. United States
417 F.3d 1091
Docket No. 03-16874
United States Court of Appeals, Ninth Cir., August 9, 2005

Subjects: San Carlos Apache Tribe of the San Carlos Reservation Arizona; United States; San Carlos Reservoir (Ariz.); Water levels; Reservoir drawdown; United States. Endangered Species Act of 1973; Bald eagle; Nuisances; United States. National Historic Preservation Act of 1966; United States. Archeological Resources Protection Act; United States. Native American Graves Protection and Repatriation Act; United States. National Environmental Policy Act of 1969; United States. Fish and Wildlife Coordination Act; Trusts and trustees -- United States; Breach of trust -- United States; Jurisdiction -- United States. District Court (Arizona); District courts.

*Synopsis: San Carlos Apache Tribe sued United States, seeking to enjoin release of water from San Carlos Reservoir, and asserting claims under, inter alia, National Historic Preservation Act (NHPA). The United States District Court for the District of Arizona, 272 F.Supp.2d 860, Bury, J., granted government's summary judgment motion, and Tribe appealed.

*Holding: As a matter of first impression, the Court of Appeals, McKeown, Circuit Judge, held that no private right of action exists under NHPA's provision requiring federal agency to "take into account the effect of [any] undertaking on" historic sites.
Affirmed.

Related News Stories: Court limits lawsuits under historic preservation act (Indianz.com) 8/10/05

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
416 F.3d 1025
Docket No. 04-15044
United States Court of Appeals, Ninth Cir., August 2, 2005

Subjects: Native Hawaiian students; Discrimination in education -- Hawaii; Kamehameha Schools -- Admission; Affirmative action programs; Private schools -- Hawaii; Equality before the law; Civil rights -- United States.

*Synopsis: Non-Native Hawaiian student brought suit against private school, charitable trust, and trustees under 1981, challenging race-conscious admissions policy of accepting only students of native Hawaiian ancestry. The United States District Court for the District of Hawai'i, Alan C. Kay, J., 295 F.Supp.2d 1141, entered summary judgment for school defendants, and student applicant appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) on issue of first impression in Ninth Circuit, suit under 1981 was subject to substantive standards applicable to race-based challenges under Title VII;
(2) race-based admissions policy did not constitute valid affirmative action plan that might supply legitimate nondiscriminatory reason for school's actions; and
(3) policy was unlawful under 1981.
Affirmed in part, reversed in part.

Related News Stories: Appeals court blocks Native Hawaiian school policy (Indianz.com) 8/3/05

Filesteel v. McConnel
143 Fed.Appx. 54
Docket No. 04-36111, D.C. No. CV-01-00115-SEH
United States Court of Appeals, Ninth Cir., August 1, 2005

Subjects: Contested elections -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Constitutional amendments -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Charters -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; Members -- Fort Belknap Indian Community of the Fort Belknap Reservation of Montana.

*Synopsis: (from the opinion) Levi Enemy Boy appeals pro se the district court's order dismissing the action filed by Enemy Boy and Edward Filesteel, members of the Assiniboine and Gros Ventre Tribes of the Fort Belknap Indian Reservation, challenging the validity of a secretarial election, which amended the constitution and charter of the Fort Belknap Indian Community. We have jurisdiction under 28 U.S .C. § 1291.

*Holding: not yet available

The Home Bingo Network v. Multimedia Games, Inc.
2005 WL 2098056
No. 1:05-CV-0608
United States District Court, N.D. New York, August 30, 2005

Subjects: Home Bingo Network; Miami Tribe of Oklahoma Business Development Authority; Patent infringement -- Home Bingo Network; Sovereign immunity -- Miami Tribe of Oklahoma Business Development Authority.

*Synopsis: (from the opinion) Plaintiff The Home Bingo Network commenced the instant action against Defendants Multimedia Games, Inc. and Miami Tribe of Oklahoma Business Development Authority asserting a claim of patent infringement. Currently before the Court is Defendant Miami Tribe of Oklahoma Business Development Authority's (“MBDA”) motion to dismiss pursuant to Rule 12(b)(1) on the ground of lack of subject matter jurisdiction. More specifically, the MBDA claims that it is an arm of an Indian tribe and, therefore, is entitled to sovereign immunity.

*Holding: not available

Related New Stories: Court dismisses wrongful-death claim (AP) 8/31/05

Thomason v. Nez Perce Tribe
2005 WL 2077780
No. CV04-471-C-EJL
United States District Court, D. Idaho, August 29, 2005

Subjects: Wrongful death -- Nez Perce Tribe of Idaho; Minors; Firearms -- Nez Perce Tribe of Idaho; Hunting -- Safety measures; Treaties -- Nez Perce Tribe of Idaho.

*Synopsis: (from the opinion) On December 21, 2004, Plaintiffs, Dana S. Thomason and Deanna P. Thomason, filed this wrongful death action against the Nez Perce Tribe (“the Tribe”) seeking damages for the wrongful death of their son, an order prohibiting the Tribe from authorizing the use of firearms for hunting, and for costs and attorney fees. (Dkt. No. 1). The complaint argues the Tribe's authorization of the use of firearms for hunting runs contrary to the rights given to the Tribe by the Treaty with the Nez Perce, June 11, 1855, Art. III, Treaty with the Nez Perce, 12 Stat. 957 (June 11, 1855) (“the Treaty”); noting the hunting methods employed by Tribal ancestors did not include the use of firearms. The complaint also asserts the Tribe has a duty to citizens of the United States and the State of Idaho to properly educate and train Tribal members under the age of eighteen how to hunt safely; arguing the Tribe's failure to educate Mr. Rickman when he was a minor is a breach of this duty and contributed to the death of Colby Thomason.

*Holding: not available

Colorado River Indian Tribes v. National Indian Gaming Commission
383 F.Supp.2d 123
No. CIV.A. 04-0010(JDB)
United States District Court, District of Columbia, August 24, 2005

Subjects: National Indian Gaming Commission (U.S.) -- Auditing; National Indian Gaming Commission (U.S.) -- Powers and duties; Indian gaming -- Class III -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Gambling on Indian reservations -- Colorado.

*Synopsis: Indian tribe sued National Indian Gaming Commission (NIGC), claiming that NIGC exceeded its authority by issuing regulations imposing minimum internal control standards (MICS) governing operation of Class III gaming casinos. Tribe moved for summary judgment.

*Holding: The District Court, Bates, J., held that Indian Gaming Regulatory Act (IGRA) did not supply statutory support for issuance of MICS.
Judgment for tribe.

Bone Shirt v. Hazeltine
387 F.Supp.2d 1035
No. Civ. 01-3032-KES
United States District Court, D. South Dakota, Central Division, August 18, 2005

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

*Synopsis:Indian voters sued State of South Dakota, alleging that apportionment plan for state legislature violated Voting Rights Act. Following determination that plan violated § 5 of Voting Rights Act, 200 F.Supp.2d 1150, and determination that plan violated § 2 of Voting Rights Act, 336 F.Supp.2d 976, and answer to certified question by South Dakota Supreme Court, 700 N.W.2d 746, legislature declined to submit new plan.

*Holding: The District Court, Schreier, J., held that plan proposed by Indian voters was appropriate remedy.
Order accordingly.

Frazier v. Turning Stone Casino
2005 WL 2033483
No. 5:02 CV 131 FJS/GJD
United States District Court, N.D. New York, August 16, 2005

Subjects: Turning Stone Casino (N.Y.); Oneida Nation of New York ; Casinos -- Oneida Nation of New York; Advertising -- Casinos -- Law and legislation; Civil rights -- Law and legislation -- New York (State).

*Synopsis: (from the opinion) Plaintiffs' amended complaint asserts three causes of action, all of which are premised upon Defendants' alleged violation of New York Civil Rights Law §§ 50 and 51. The first cause of action, brought against all Defendants, asserts that Defendants injured Plaintiff Frazier by misappropriating his image and likeness for advertising and promotional purposes in violation of §§ 50 and 51 of New York Civil Rights Law. The second cause of action, brought against all Defendants, asserts that Defendants injured both Plaintiffs as a result of the same conduct charged in the first cause of action. The third cause of action, brought against Defendants Halbritter, Stitzer, and Brophy, asserts that they “acted in concert and by agreement to misappropriate the Plaintiff's image and likeness for commercial gain ··· [and that their] agreement to misappropriate Plaintiffs [sic] Smokin Joe's Image was outside of each respective Individuals' [sic] scope of tribal duties.”

*Holding: not available

United States v. Asarco Inc.
471 F.Supp.2d 1063
Nos. CV 96 9122 N EJL, CV 91 0342 N EJL
United States District Court, D. Idaho, August 9, 2005

Subjects: Express highways -- Idaho; Mines and mineral resources; Trusts and trustees -- United States; Jurisdiction -- United States.

*Synopsis: United States and Indian tribe brought actions alleging that mining companies had violated Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Parties filed various motions.

*Holding: The District Court, Lodge, J., held that:
(1) mining company was not required to respond to United States' interrogatories and requests for admissions;
(2) CERCLA did not limit district court's ability to appoint state as trustee over state-owned land; and
(3) United States and Indian tribe were ?trustees? for purposes of CERCLA over federal and tribal land.
Motions granted in part and denied in part.

July

Warsoldier v. Woodford
418 F.3d 989
Docket No. 04-55879
United States Court of Appeals, Ninth Cir., July 29, 2005

Subjects: California. Dept. of Corrections; Long hair; Indian prisoners; United States. Religious Land Use and Institutionalized Persons Act of 2000; Freedom of religion.

*Synopsis: Native American inmate sued officials of California Department of Corrections (CDC), challenging CDC's hair grooming policy as violating his rights under Religious Land Use and Institutionalized Persons Act (RLUIPA). The United States District Court for the Central District of California, Ronald S.W. Lew, J., denied inmate's request for preliminary injunction. Inmate appealed.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that:
(1) policy imposed substantial burden on inmate's religious practice;
(2) policy was not least restrictive alternative to achieve CDC's interest in prison security, and thus violated RLUIPA;
(3) inmate faced possibility of irreparable injury absent issuance of injunction; and
(4) balance of hardships favored inmate.
Reversed and remanded.

United States v. Green
2005 WL 1799823
Docket No. 04-5166
United States Court of Appeals, Tenth Cir., July 29, 2005

Subjects: Firearms; Searches and seizures; Evidence (Law); Creek Nation Casino Tulsa (Okla.); Indian reservation police -- Muscogee (Creek) Nation, Oklahoma; United States. Bureau of Indian Affairs; Police -- United States; Jurisdiction -- Muscogee (Creek) Nation, Oklahoma; Jurisdiction -- United States..

*Synopsis: Defendant pleaded guilty in the United States District Court for the Northern District of Oklahoma to possession of a firearm and ammunition after former conviction of a felony. Defendant appealed.

*Holding: The Court of Appeals, Kelly, Circuit Judge, held that:
(1) tribal law enforcement personnel had reasonable suspicion to investigate vehicle which was parked in casino parking lot as possible stolen vehicle, and
(2) cross-deputized tribal officer had probable cause to conclude that gun which was seen in plain view inside defendant's vehicle was evidence of a crime, justifying warrantless seizure of gun.
Affirmed.

Doe v. Mann
415 F.3d 1038
Docket No. 04-15477
Petition for Certiorari Filed (December 19, 2005)
United States Court of Appeals, Ninth Cir., July 19, 2005

Subjects: California -- Jurisdiction; United States. Public Law 280; Exclusive jurisdiction; Jurisdiction -- Tribes -- California; United States. Indian Child Welfare Act of 1978.

*Synopsis: Native American mother challenged state's authority to terminate her parental rights. The United States District Court for the Northern District of California, Marilyn H. Patel, Chief Judge, 285 F.Supp.2d 1229, held for state, and mother appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) Rooker-Feldman doctrine did not bar federal review of state decision, and
(2) tribe's jurisdiction over child dependency proceeding was not exclusive.
Affirmed.

Pro-Football, Inc. v. Harjo
2005 WL 1653048
Docket No. 03-7162
United States Court of Appeals, DC Cir., July 15, 2005

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

*Synopsis: Petition was brought seeking cancellation of professional football team's registered "Redskins" trademarks, on ground they disparaged Native Americans. The Trademark Trial and Appeal Board (TTAB) cancelled registrations, and team sought judicial review. The United States District Court for the District of Columbia, Kollar-Kotelly, J., 284 F.Supp.2d 96, granted summary judgment for team, and petitioners appealed.

*Holding: The Court of Appeals held that defense of laches had to be assessed as to one individual petitioner, and could not be assessed from time that first mark was registered, where that petitioner had not yet reached age of majority at time of first registration.
Remanded.

*Related News Stories: Appeals court keeps 'Redskins' lawsuit alive (Indianz.com) 7/18/05

United States v. Drapeau
414 F.3d 869
Docket No. 04-1202
United States Court of Appeals, Eighth Cir., July 12, 2005

Subjects: Suppression of evidence; Drugs; Testimony; Evidence (Law); Jurisdiction -- United States; Mandatory sentences.

*Synopsis: Following denial of his motion to suppress his statements to arresting agents, defendant was convicted after jury trial in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of distributing a controlled substance and possessing a controlled substance with intent to distribute. Defendant appealed his conviction and sentence.

*Holding: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) defendant did not effectively assert his right to remain silent;
(2) the district court did not abuse its discretion in permitting confidential informant's testimony regarding defendant's prior distribution of drugs;
(3) the district court did not abuse its discretion in disallowing defendant's cross-examination of confidential informant concerning her family connections to law enforcement;
(4) even if the district court's decision to exclude evidence of confidential informant's family connections to law enforcement was an abuse of discretion, any error was harmless;
(5) the evidence was sufficient to support the convictions;
(6) the 1868 Fort Laramie Treaty did not deprive the federal courts of jurisdiction over this criminal case; and
(7) the district court's application of the mandatory sentencing guidelines based on judicial findings concerning drug quantity and possession of a dangerous weapon violated the Sixth Amendment as applied in U.S. v. Booker.
Conviction affirmed; sentence vacated and remanded.

BNSF Railway Company v. Ray
2005 WL 1635310
Docket No. 05-15688, D.C. No. CV-05-00386-DGC
United States Court of Appeals, Ninth Cir., July 11, 2005

Subjects: Burlington Northern Santa Fe Railroad; Railroad accidents -- Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Liability for railroad accidents; Jurisdiction -- Hualapai Indian Tribe of the Hualapai Indian Reservation; Jurisdiction -- United States.

*Synopsis: Survivors of four Native American Indians killed in accident at railroad crossing on Indian reservation brought action against railroad in tribal court. The United States District Court for the District of Arizona, David G. Campbell, J., granted preliminary injunction to railroad ordering survivors to halt their prosecution of action in tribal court. Survivors appealed.

*Holding: The Court of Appeals held that railroad demonstrated probable success on merits of its claim that tribal jurisdiction was lacking.
Affirmed.

Hoopa Valley Indian Tribe v. Ryan
415 F.3d 986
Docket No. 03-16940
United States Court of Appeals, Ninth Cir., July 8, 2005

Subjects: Trinity River (Calif.); Hoopa Valley Tribe, California; Salmon; Steelhead (Fish); Fishes -- Conservation; United States. Indian Self-Determination and Education Assistance Act; Hoopa Valley Tribe, California -- Finance.

*Synopsis: Indian tribe brought action to compel Bureau of Reclamation to provide funding, under mandatory contracting provisions of the Indian Self-Determination and Education Assistance Act (ISDEAA), to implement projects aimed at restoration of salmon and steelhead populations in Trinity River basin. Parties cross-moved for summary judgment. The United States District Court for the Northern District of California, Samuel Conti, J., entered judgment for Bureau. Tribe appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that restoration programs were not eligible for mandatory contracting under ISDEAA.
Affirmed.

Northern Arapaho Tribe v. State of Wyoming
429 F.3d 934
Docket Nos. 02-8026, 02-8031
United States Court of Appeals, Tenth Cir., July 8, 2005

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

*Synopsis: (from the opinion) Having received the parties' briefs and heard their oral arguments, we determine that our order granting en banc consideration of this case was improvidently issued for the reasons set out below. We, therefore, vacate our order granting rehearing en banc. The Northern Arapaho Tribe brought an action seeking a declaration that the State of Wyoming failed to negotiate in good faith with the Tribe in violation of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq. Partially granting the Tribe's motion for judgment on the pleadings, the district court held that Wyoming failed to negotiate in good faith with regard to calcutta and parimutuel wagering and ordered the parties to complete a compact within sixty days. The court further held that casino-style gaming and slot machine wagering were against Wyoming public policy and thus not subject to negotiation. Both parties appealed. A panel of this court held that the State was required to negotiate a compact with the Tribe concerning calcutta and parimutuel wagering as well as the full gamut of casino-style Class III gambling because Wyoming permits and regulates "such gaming" for social and non-profit purposes pursuant to WYO. STAT. § 6-7-101(a)(iii)(E).

*Holding: not yet available

Narragansett Indian Tribe v. State of Rhode Island
415 F.3d 134
Docket No. 04-1155
United States Court of Appeals, First Cir., July 8, 2005

Subjects: Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Jurisdiction -- United States; District courts -- United States; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations.

*Synopsis: (from the opinion) A majority of the judges of this court in active service have voted to rehear en banc the questions of whether, to what extent, and in what manner Rhode Island may enforce its civil and criminal laws with respect to the operation of the Smoke Shop by the Narragansett Indian Tribe. Consequently, Parts II(D)(3) and (4) of the opinion of the panel in this case, Narragansett Indian Tribe v.. State of R.I., 407 F.3d 450, 463-66 (1st Cir.2005), are withdrawn, as are any other portions of the panel opinion that involve the enforcement questions. The judgment of this court dated May 12, 2005, is vacated.

*Holding: not yet available

Alvarado v. Table Mountain Rancheria
2005 WL 1806368
No. C 05-00093 MHP.
United States District Court, N.D. California, July 28, 2005

Subjects: Table Mountain Rancheria of California -- Membership.

*Synopsis: (from the opinion) In their complaint, plaintiffs seek to compel the Table Mountain Rancheria to recognize them as members and to provide them with the full benefits of tribal membership. Plaintiffs also pray for damages arising from the denial of the accrued membership benefits for which they otherwise would have been eligible.

*Holding: not available

United States v. Gregg
2005 WL 1806345
No. CR 04-30068.
United States District Court, D. South Dakota, Central Division, July 27, 2005

Subjects: Indians of North America -- Commerce; United States. Constitution; Commerce -- Law and legislation -- United States; Murder; Firearms.

*Synopsis: (from the opinion) The essence of defendant's motion is based on the claim that Congress had no authority under the Indian Commerce Clause of the United States Constitution (or any other authority) to charge the defendant with murder or the discharge of a firearm without alleging and proving that the charges had some connection, whether interstate, foreign, or Indian, with commerce. The defendant asks the court to declare the Indian General Crimes Act (“IGGA”), 18 U.S.C. § 1152, unconstitutional.

*Holding: not available

Governor of the State of Kansas v. Norton
2005 WL 1785275
No. 03-4140 JAR
United States District Court, D. Kansas, July 27, 2005

Subjects: Trust lands -- Wyandotte Tribe of Oklahoma; United States. Dept. of the Interior; Kansas.

*Synopsis: (from the opinion) This case concerns the decision of the Secretary of the Interior (the “Secretary”) to take .52 acres of land (the “Shriner Tract”) into trust on behalf of the Wyandotte Indian Tribe of Oklahoma (“the Tribe”), purportedly under the mandate of Pub. L. 98-602. Plaintiffs ask this Court to reverse the decision of the Secretary to take the Shriner Tract into trust for the Tribe, arguing that defendant acted in an arbitrary and capricious fashion by failing to scrutinize whether Pub. L. 98-602 funds were used to purchase the Shriner Tract.

*Holding: not available

Loudner v. United States
379 F.Supp.2d 1048
No. CIV 94-4294
United States District Court, D. South Dakota, July 26, 2005

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

*Synopsis: Following the entry of judgment in suit challenging distribution pursuant to Mississippi Sioux Tribes Judgment Fund Distribution Act, Native American trust beneficiaries filed a motion for attorney fees and expenses under the Equal Access to Justice Act (EAJA).

*Holding: The District Court, Piersol, Chief Judge, held that:
(1) trust beneficiaries were "prevailing parties";
(2) Secretary of Interior's requirement that all Native American trust beneficiaries submit their applications to share in judgment fund within five months of the promulgation of the regulations establishing the deadline was not substantially justified; and
(3) $75 cap that was applicable when the action was commenced, rather than $125 cap established by amendment to EAJA, was applicable for hours worked after the reinstatement of plaintiffs' injunctive relief following amendment.
Motion granted.

Jena Band of Choctaw Indians v. Tri-Millennium Corporation, Inc.
2005 WL 1719215
No. Civ.A. 98-CV-0829
United States District Court, W.D. Louisiana, July 22, 2005

Subjects: Contracts -- Jena Band of Choctaw Indians, Louisiana; Contracts -- Tri-Millennium Corp.; Contracts -- BBC Entertainment; Jurisdiction -- Louisiana; Casinos -- Design and construction -- Jena Band of Choctaw Indians, Louisiana; Indian gaming -- Jena Band of Choctaw Indians; Gambling on Indian reservations -- Louisiana.

*Synopsis:Indian tribe sued prospective developers of gaming casino, claiming that original development contracts, and settlement agreements purporting to resolve disputes, were management contracts, requiring approval of National Indian Gaming Commission (NIGC). Developers moved for summary judgment or dismissal.

*Holding: Holdings: The District Court, Little, Jr., J., held that:
(1) state court decision, that it had jurisdiction in suit involving breach of original contracts, was res judicata;
(2) one agreement settling dispute was management contract void without IGRA approval; and
(3) second contract involving release of claim by developer was also void without IGRA approval.
Ordered accordingly.

Machal, Inc. v. Jena Band of Choctaw Indians
2005 WL 1711983
No. Civ.A. 04-CV-1304
United States District Court, W.D. Louisiana, July 21, 2005

Subjects: Contracts -- Jena Band of Choctaw Indians, Louisiana; Contracts -- Tri-Millennium Corp.; Contracts -- BBC Entertainment; Jurisdiction -- Louisiana; Breach of contract; United States. Indian Gaming Regulatory Act; Casinos -- Design and construction -- Jena Band of Choctaw Indians, Louisiana; Indian gaming -- Jena Band of Choctaw Indians; Gambling on Indian reservations -- Louisiana.

*Synopsis: Prospective developer of Indian gaming casino brought declaratory judgment action against tribe and original prospective developers seeking determination that previous agreements regarding casino project were void. Developer moved for summary judgment.

*Holding: The District Court, Little, J., held that:
(1) state court determination that it had jurisdiction over earlier suit involving agreements was res judicata;
(2) later agreements providing for co-management of casinos by suing and original developers was management contract void unless approved by National Indian Gaming Commission (NIGC);
(3) settlement agreement under which developer had right to approve depository banks and received specified percent of revenue was management agreement subject to NIGC approval; and
(4) settlement agreement resolving initial dispute between parties was management agreement, requiring approval.
Judgment for developer.

United States v. State of Washington
2005 WL 1703093
No. CV 9213
United States District Court, W.D. Washington, July 20, 2005

Subjects: Fishing rights -- Jamestown S'Klallam Tribe of Washington; Fishing rights -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Harvest; Hood Canal (Wash.); Hood Canal Agreement (1982).

*Synopsis: (from the opinion) The S'Klallam contend that the unilateral setting of harvest goals by the Skokomish constitutes an impermissible exercise of the Skokomish primary right, in violation of the Hood Canal Agreement. The Skokomish, in response, assert that their harvest plan was not an "exercise" of their primary right, because they did not either exclude the S'Klallam from Hood Canal, or regulate their fishing.

*Holding: not available

Klamath Tribes of Oregon v. United States
2005 WL 1661821
No. Civ. 04-644-CO
United States District Court, D. Oregon, July 13, 2005

Subjects: Fishing rights -- Klamath Indian Tribe of Oregon; Treaty rights -- Klamath Indian Tribe of Oregon; Klamath Indian Tribe of Oregon – History – Termination, 1961; Klamath Indian Tribe of Oregon – History – Restoration, 1986; Limitation of actions -- Oregon; United States.

*Synopsis: (from the opinion) Plaintiffs filed suit alleging trespass and violations of their fishing rights under the Treaty between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Bank of Snake Indians, Oct. 14, 1864 (Treaty of 1864), 16 Stat. 707. See United States v. Adair, 723 F.2d 1394, 1398 (9th Cir.1983). On February 10, 2005, defendant moved for summary judgment, arguing that the termination of the Klamath Tribe, effective 1961, rendered any claim asserted by plaintiffs subject to the Oregon statutes of limitations, and that the limitations period regarding plaintiffs' treaty and trespass claims against defendant or its predecessors expired prior to the restoration of the Tribe's status in 1986.

*Holding: not available

Cobell v. Norton
229 F.R.D. 5
No. 96-1285 (RCL)
United States District Court, District of Columbia, July 12, 2005

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

*Synopsis: In class action in which Indian trust beneficiaries alleged that Department of Interior's communications with Indian trust beneficiaries concerning sales of Indian trust land threatened to extinguish the class rights by facilitating the permanent alienation of trust corpus on the basis of inadequate or incorrect information from Interior, Indian plaintiffs filed motion to require defendants to give their beneficiaries notice of their continuing inability or refusal to discharge their fiduciary duties.

*Holding: The District Court, Lamberth, J., held that:
(1) court would order Interior to distribute class-wide notice designed to protect the rights of the class, and
(2) court would allocate costs of such notice to Interior.
Motion granted.

Maynor v. United States
2005 WL 1902907
No. Civ. 03CV1559(SBC)
United States District Court, District of Columbia, July 11, 2005

Subjects: Human remains (Archaeology) -- Tuscarora Indians -- Repatriation-- North Carolina; Injunctions; Excavations (Archaeology) -- North Carolina; Indian land transfers -- Tuscarora Indians -- North Carolina;

*Synopsis: (from the opinion) Maynor seeks: (1) the return of Tuscarora ancestral remains and artifacts held by North Carolina; (2) temporary and permanent injunctive relief prohibiting North Carolina from conducting archcological digs on Tuscarora sites; (3) the return of land set aside for the Tuscarora people or, alternatively, other suitable land; (4) declaratory relief acknowledging the right to live as Tuscarora people; (5) $500 million to rebuild the Tuscarora infrastructure; and (6) other appropriate relief.

*Holding: not available

The Osage Nation and/or Tribe of Indians of Oklahoma v. United States
66 Fed.Cl. 244
No. 00-169 L(SBC)
United States Court of Federal Claims, July 8, 2005

Subjects: Tribal trust funds -- Osage Tribe of Oklahoma; Fiduciary accountability -- United States; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting.

*Synopsis: Indian tribe brought suit against the United States seeking damages for breach of fiduciary duty in the mismanagement of tribal trust funds and for failure to account. Plaintiff filed objections to government's privilege claims.

*Holding: The Court of Federal Claims, Hewitt, J., held that:
(1) application of fiduciary exception to attorney-client privilege to communications between government as trustee of Indian tribe and its counsel concerning administration of trust was not precluded on ground that tribe was not the "real client" in interest of the legal advice;
(2) fiduciary exception to work product doctrine was applicable to government memorandum evaluating potential property claims that Indian tribe requested that the United States bring against the state of Kansas; and
(3) fiduciary exception applied to trust administration materials concerning other tribes and Indian trusts in general.
Objections sustained.

Oneida Indian Nation of New York v. Madison County
376 F.Supp.2d 280
No. 5:00-CV-506
United States District Court, N.D. New York, July 1, 2005

Subjects: Foreclosure -- Madison County (N.Y.); Real property -- Oneida Nation of New York.

*Synopsis: Indian tribe brought action against county, challenging county's initiation of state court foreclosure proceedings against tribal land. Tribe moved for preliminary injunction to stop foreclosure proceedings.

*Holding: The District Court, Hurd, J., held that tribe was entitled to preliminary injunction.
Motion granted.

June

Cayuga Indian Nation of New York v. Pataki
413 F.3d 266
Docket Nos. 02-6111(L), 02-6130(CON), 02-6140(CON), 02-6200(CON), 02-6211(CON), 02- 6219(CON), 02-6301(CON), 02-6131(XAP), 02-6151(XAP)
United States Court of Appeals, Second Cir., June 28, 2005

Subjects: Pataki, George E., 1945-; Cayuga Nation of New York; Eviction -- Cayuga Nation of New York; Trespass; New York (State).

*Synopsis: State, county, and private defendants appealed from a judgment of the United States District Court for the Northern District of New York, 165 F.Supp.2d 266, Neil P. McCurn, Senior District Judge, awarding tribal plaintiffs approximately $248 million in damages and prejudgment interest against the State for the late-eighteenth-century dispossession of their land, in violation of the Nonintercourse Act. Tribal plaintiffs cross-appealed from the award of prejudgment interest and the denial of the remedy of ejectment.

*Holding: The Court of Appeals, Cabranes, Circuit Judge, held that:
(1) tribe's possessory land claim sounding in ejectment was barred by laches;
(2) no basis existed for finding constructive possession or immediate right of possession as could support claim for trespass damages; and
(3) United States, as plaintiff-intervenor in Indian tribe's suit, was subject to defense of laches.
Reversed.

United States v. Nakai
413 F.3d 1019
Docket No. 03-10485
United States Court of Appeals, Ninth Cir., June 27, 2005

Subjects: Indian jurors; Fair trial; United States. Federal Bureau of Investigation; Trials (Murder); Testimony; Evidence (Hearsay).

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Frederick J. Martone, J., for premeditated first degree murder, robbery, felony murder-kidnapping, carjacking resulting in death, felony murder-robbery, and use of a firearm during the commission of crimes of violence, committed in an Indian reservation. Defendant appealed.

*Holding: The Court of Appeals, Noonan, Circuit Judge, held that:
(1) fact that only 6.1 percent of jurors who reported for jury trial were Native American did not deprive defendant of a fair representation of the community;
(2) FBI agent's purported testimony about statements by defendant to law enforcement investigators would be hearsay;
(3) submission of conspiracy jury instruction was harmless error; and
(4) evidence was sufficient to prove that shooting victim was alive before defendant shot him.
Affirmed.

United States v. Bedonie
413 F.3d 1126
Docket No. 04-4103
United States Court of Appeals, Tenth Cir., June 27, 2005

Subjects: Trials (Manslaughter); Manslaughter -- Navajo Nation, Arizona, New Mexico & Utah; Criminal actions arising in Indian Country (U.S.) -- Navajo Nation, Arizona, New Mexico & Utah; Drunk driving -- Navajo Nation, Arizona, New Mexico & Utah; Resitution.

*Synopsis: Following imposition of sentence, including order of restitution, in conviction for involuntary manslaughter within Indian Country, the District Court sua sponte revoked and amended its judgment, and made a new restitution order, which was held in abeyance pending consideration of additional evidence. Following an evidentiary hearing, the United States District Court for the District of Utah, Paul G. Cassell, J., 303 F.Supp.2d 1259, ordered defendant to pay restitution for the victim's lost income. Defendant appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that:
(1) District Court was not authorized, under the Mandatory Victims Restitution Act (MVRA), to sua sponte re-open restitution order, and
(2) District Court lacked jurisdiction to re-open restitution order, where court did not commit the requisite clear error in failing to award lost-income restitution at sentencing.
Reversed and remanded with instructions.

First American Kickapoo Operations, LLC v. Multimedia Games, Inc.
412 F.3d 1166
Docket No. 03-6283
United States Court of Appeals, Tenth Cir., June 22, 2005

Subjects: United States. Indian Gaming Regulatory Act; Kickapoo Tribe of Oklahoma; Indian gaming -- Class II -- Kickapoo Tribe of Oklahoma; Gambling on Indian reservations -- Oklahoma; Contracts -- Kickapoo Tribe of Oklahoma; Contracts -- First American Kickapoo Operations (Nev.); Casinos -- Design and construction; National Indian Gaming Commission (U.S.); Contracts -- Multimedia Games (Tex.).

*Synopsis: Former casino operator sued replacement operator for, inter alia, tortious interference with contract. The United States District Court for the Western District of Oklahoma, Stephen P. Friot, J., granted summary judgment for replacement operator, and former operator appealed.

*Holding: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) operating lease was void, as unapproved management contract;
(2) tortious interference claim required existence of valid underlying contract; and
(3) contract was not severable into valid and invalid provisions.
Affirmed.

Shobar v. State of California
134 Fed.Appx. 184
Docket No. 03-56995, D.C. No. CV-03-04530-R
Petition for Certiorari Filed (November 30, 2005)
United States Court of Appeals, Ninth Cir., June 14, 2005

Subjects: Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Indian gaming -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Gambling on Indian reservations -- California; Intergovernmental agreements -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Intergovernmental agreements -- California; Concerned Citizens of Santa Ynez Valley (Calif.); Parties to actions; United States. Indian Gaming Regulatory Act; California; Federal question; Jurisdiction -- United States.

*Synopsis: (from the opinion) James Shobar, Cathy Hodges, Kelly Gore, and Concerned Citizens of Santa Ynez Valley appeal from the district court's order dismissing their case for failure to state a claim and failure to join an indispensable party. Because appellants' claims raise questions of federal law under the Indian Gaming Regulatory Act (IGRA), we reject appellants' argument that the district court lacked federal question jurisdiction.

*Holding: not yet available

United States v. Plumman
409 F.3d 919
Docket No. 04-2206
United States Court of Appeals, Eighth Cir., June 3, 2005

Subjects: Sex crimes; United States. Federal Bureau of Investigation; United States. Constitution. 6th Amendment; Right to counsel; Indian jurors.

*Synopsis: Native American defendant was convicted in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., for the sexual abuse of two minor females, and he appealed.

*Holding: The Court of Appeals, Riley, Circuit Judge, held that:
(1) defendant was not in custody at time that he gave incriminating statements to FBI agents;
(2) noncustodial incriminating statements which defendant made to FBI agents were voluntary;
(3) defendant's Sixth Amendment right to counsel was not violated when FBI agents interviewed him the same day that tribal criminal charges were filed against him;
(4) prosecutor articulated multiple, non-discriminatory reasons for exercising peremptory challenges against Native American prospective jurors; and
(5) Booker error in applying the Sentencing Guidelines as mandatory warranted vacatur of defendant's mandatory life sentences.
Convictions affirmed; sentences vacated and remanded.

Skokomish Indian Tribe v. United States
410 F.3d 506
Docket Nos. 01-35028, 01-35845
Petition for Certiorari Filed (October 3, 2005)
United States Court of Appeals, Ninth Cir., June 3, 2005

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; United States. Federal Power Act; Law -- Washington (State); Tacoma (Wash.); Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Treaties; Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams.

*Synopsis: Indian tribe brought action alleging that federally-licensed hydroelectric power project violated tribe's rights under treaty, Federal Power Act (FPA), and state law. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., 161 F.Supp.2d 1178, dismissed United States and granted summary judgment for city. Tribe appealed. The Court of Appeals, 332 F.3d 551, affirmed in part and vacated and remanded in part. Petition for rehearing en banc was granted.

*Holding: The Court of Appeals, Kozinski, Circuit Judge, held that:
(1) complaint failed to state tort claim against United States;
(2) United States was exempt from any liability, under Federal Power Act (FPA);
(3) tribe could not recover monetary damages for city's alleged violations of U.S.-tribal treaty;
(4) tribe was not "person" entitled to bring 1983 action;
(5) tribe's state-law claims against city were time-barred;
(6) FPA did not create federal private right of action; and
(7) denial of recusal motion was not abuse of discretion.
Affirmed in part and transferred to Court of Federal Claims in part.

Ashley v. United States Department of Interior
408 F.3d 997
Docket No. 04-2066
United States Court of Appeals, Eighth Cir., June 1, 2005

Subjects: Tribal trust funds -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Standing to sue -- Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota.

*Synopsis: Members of Indian tribe sued government and private parties, alleging misuse of tribal trust fund money. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., dismissed claims, and appeal was taken.

*Holding: The Court of Appeals, Morris Shepard Arnold, Circuit Judge, held that plaintiffs lacked standing to sue, as judgment in their favor was not likely to remedy complained-of harms.
Affirmed.

Winnebago Tribe of Nebraska v. Kline
2005 WL 1683970
No. 02-4070-JTM
United States District Court, D. Kansas, June 30, 2005

Subjects: Kansas. Motor-Vehicle Fuel Tax Act; Motor fuels -- Taxation -- Kansas; Imports -- Kansas; Winnebago Tribe of Nebraska; Licenses -- HCI Distribution Corp. (Neb.); Service stations -- Sac & Fox Nation of Missouri in Kansas and Nebraska; Service stations -- Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas.

*Synopsis: (from the opinion) This matter is before the court on the motion for summary judgment of the plaintiffs. Plaintiffs are Indian Tribes and seek a determination that application of the Kansas Motor-Vehicle Fuel Tax Act (KMFTA) to their importation of fuel from Nebraska to Indian Reservations in Kansas is illegal.

*Holding: not available

Crawford Capital Corporation v. Bear Soldier District
374 F.Supp.2d 821
No. A1-05-78
United States District Court, D. North Dakota, Southwestern Division, June 29, 2005

Subjects: Fee lands -- Standing Rock Sioux Tribe of North & South Dakota; Crawford Capital Corp.; Bear Soldier District (Standing Rock Sioux Tribe of North & South Dakota); Repossession; Dwellings -- Standing Rock Sioux Tribe of North & South Dakota.

*Synopsis: Ex parte temporary restraining order (TRO) and preliminary injunction were sought to prohibit district and its citizens, residents, or agents from interfering with removal of house from fee land on Indian reservation.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) ruling would be reserved on motion for injunction until district had opportunity to submit response, and
(2) movant claiming ownership interest in house failed to establish irreparable injury or necessity of TRO.
TRO denied; ruling on injunction reserved.

United States v. State of Washington
375 F.Supp.2d 1050
No. C01-0047Z
United States District Court, W.D. Washington, June 23, 2005

Subjects: Treaty of Point Elliott (1855); Groundwater -- Lummi Tribe of the Lummi Reservation, Washington; Reserved water rights -- Lummi Tribe of the Lummi Reservation, Washington; Indian reservations -- Defined; Indian Country (U.S.) -- Defined; Reserved water rights -- Defined.

*Synopsis: United States sued State of Washington, fee landowners and water associations, seeking declaration that Treaty of Point Elliott impliedly reserved groundwater under Lummi Peninsula for use and benefit of Indian tribe. Tribe intervened. The District Court, 2005 WL 1244797, recognized limited reservation of water rights for tribe. State, tribe, and association moved for reconsideration.

*Holding: The District Court, Zilly, J., held that:
(1) Lummi Reservation was Indian reservation, and was "Indian Country";
(2) Lummi Reservation was permanent reservation;
(3) primary purpose of reservation was for agricultural and domestic uses;
(4) fact issue existed as to quantity of impliedly reserved water rights;
(5) quantity of impliedly reserved water for tribe's domestic use, to make reservation livable, could not be based solely upon agricultural award;
(6) members of Indian tribe could use their treaty-reserved water for any purpose once allotted; and
(7) preponderance of evidence was appropriate burden for proof as to what federal Indian reserved water rights were held by tribe and its members.
Motions granted.

Miami Tribe of Oklahoma v. United States
374 F.Supp.2d 934
No. CIV.A.03-2220-DJW
United States District Court, D. Kansas, June 22, 2005

Subjects: United States. Administrative Procedure Act; United States. Bureau of Indian Affairs; Restricted lands -- Miami Tribe of Oklahoma; Gifts; Miami Tribe of Oklahoma -- Members; Indian land transfers -- Miami Tribe of Oklahoma; Fractionated interests -- Miami Tribe of Oklahoma.

*Synopsis: Indian tribe brought action under Administrative Procedures Act seeking judicial review of Department of Interior's Bureau of Indian Affairs' (BIA) decision denying tribe member's application to gift portion of his interest in restricted land to tribe.

*Holding: The District Court, Waxse, United States Magistrate Judge, held that:
(1) BIA's holding that there were no "special circumstances" warranting approval of transfer was arbitrary, and
(2) denial of approval on ground that transfer would increase further fractionation of individually-owned Indian lands was arbitrary.
Reversed.

Wallette v. Thompson
373 F.Supp.2d 986
No. A4-04-68
United States District Court, D. North Dakota, Northwest Division, June 21, 2005

Subjects: Women employees; Sex discrimination; United States. Indian Health Service.

*Synopsis: Female employee brought Title VII action against Indian Health Service (IHS), alleging gender discrimination in hiring. Agency moved for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) agency articulated legitimate non-discriminatory reason for its hiring decision;
(2) employee failed to establish that agency's proffered reason for decision was pretextual.
Motion granted.

Wopsock v. Natchees
2005 WL 1503425
No. Civ. 204CV00675TS
United States District Court, D. Utah, Central Division, June 21, 2005

Subjects: Law -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah. Business Committee -- Membership; Jurisdiction -- United States; Jurisdiction -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Exile (Punishment) -- Ute Indian Tribe of the Uintah & Ouray Reservation; Tribal sovereignty -- Ute Indian Tribe of the Uintah & Ouray Reservation ; Exhaustion of tribal remedies -- Ute Indian Tribe of the Uintah & Ouray Reservation .

*Synopsis: (from the opinion) Defendants challenge all eight of the claims plaintiffs alleged in the first amended complaint on jurisdictional grounds. Defendants argue that each of these causes of action fail because this Court lacks jurisdiction to entertain an internal dispute between tribal members. In a recent preliminary injunction hearing, the Court heard arguments similar if not identical to those currently pending before the Court. Previously, the Court found that plaintiffs were not likely to prevail on the merits due to the Court's finding that this dispute boils down to an intra-tribal dispute that implicates the tribe's sovereignty, and further found that plaintiffs failed to exhaust their tribal remedies.

*Holding: not available

Aleck v. United States
2005 WL 1586939
No. CV 04-277 AS
United States District Court, D. Oregon, June 21, 2005

Subjects: Trespass; Indian allotments -- Confederated Tribes and Bands of the Yakama Nation, Washington; Columbia River Gorge (Or. and Wash.).

*Synopsis: (from the opinion) Plaintiffs are members of the Yakama Nation, and are the owners of Vancouver Allotment No. 162, an 80-acre parcel of property in the Columbia River Gorge, located in the state of Washington, approximately ten miles east of The Dalles, Oregon. Plaintiffs are all of the heirs of Edna Welch Alex, who was the sole heir of Minnie, the original owner of the Allotment. Plaintiffs assert claims for trespass, and seek declaratory and injunctive relief, an accounting and disgorgement of the benefits derived from the trespass, treble damages, fees and costs.

*Holding: not available

Malaterre v. Amerind Risk Management
373 F.Supp.2d 980
No. A4-04-088
United States District Court, D. North Dakota, June 20, 2005

Subjects: Amerind Risk Management; Dwellings -- Turtle Mountain Band of Chippewa Indians of North Dakota; Fires -- Turtle Mountain Band of Chippewa Indians of North Dakota; Liability (law); Exhaustion of tribal remedies -- Turtle Mountain Band of Chippewa Indians of North Dakota

*Synopsis: Mothers of guests killed in house being leased from tribal housing authority on reservation, and guest who survived the fire, brought action against housing authority's insurer, seeking declaratory judgment regarding whether insurance coverage existed under tribe's insurance policy. Insurer moved to dismiss.

*Holding: The District Court, Hovland, Chief Judge, held that tribal exhaustion doctrine barred District Court from considering the action.
Motion granted.

United States v. South Florida Water Management District
373 F.Supp.2d 1338
No. 88-1886 CIV MORENO
United States District Court, S.D. Florida, Miami Division, June 14, 2005

Subjects: United States; South Florida Water Management District (Fla.); Florida. Dept. of Environmental Protection; Everglades (Fla.); Loxahatchee National Wildlife Refuge (Fla.); Miccosukee Tribe of Indians of Florida; Environmental regulation -- United States; Water rights -- Miccosukee Tribe of Indians of Florida; Water quality -- Florida; United States. Federal Water Pollution Control Act .

*Synopsis: Federal government brought environmental action against local water district for alleged contamination of national wildlife refuge and national park. Following entry of agreement between government and water district as consent decree, 847 F.Supp. 1567, Indian tribe intervened and moved for declaration that parties had violated consent decree.

*Holding: The District Court, Moreno, J., held that:
(1) parties violated consent decree;
(2) violations were not excusable;
(3) modification of consent decree to amend deadlines for compliance was not warranted; and
(4) imposition of remedies proposed by intervenor was not warranted.
Ordered accordingly.

United States v. President R.C.--St. Regis Management Company
2005 WL 1397133
No. 702CV845
United States District Court, N.D. New York, June 13, 2005

Subjects: Contracts -- St. Regis Band of Mohawk Indians of New York; Contracts -- St. Regis Management Company; Contracts -- Anderson-Blake Construction Corp.; Casinos -- Design and construction -- St. Regis Band of Mohawk Indians of New York; Gambling on Indian reservations -- New York (State); Indian gaming -- St. Regis Band of Mohawk Indians of New York; United States. Constitution.

*Synopsis: (from the opinion) On June 26, 2002, the Saint Regis Mohawk Tribe ("the Tribe") filed this qui tam action pursuant to 25 U.S.C. § 81 seeking a declaration that a Construction Contract entered into between defendants President R.C.-St. Regis Management Company ("President") and Anderson-Blake Construction Corporation ("Anderson-Blake") in 1998 is void and unenforceable. Defendants brought counter claims in quantum meruit and under the United States Constitution.

*Holding: not available

State of Connecticut v. Russell
2005 WL 1757010
No. LLI18WCR040114452S
United States District Court, Superior Court of Connecticut, June 13, 2005

Subjects: Criminal actions arising in Indian Country (U.S.); Criminal jurisdiction -- Connecticut; United States. Indian Civil Rights Act.

*Synopsis: (from the opinion) Whether a state has criminal jurisdiction over crimes committed by the defendant on an Indian reservation is controlled by the federal Indian Civil Rights Act, 25 U.S.C. Sections 1301 through 1341. Specifically, the Act preempts any exercise of state authority over a federally acknowledged Indian tribe unless that tribe has consented to state jurisdiction by a majority vote. 25 U.S.C. Sections 1321(a) and 1326.

*Holding: not available

The Canadian St. Regis Band of Mohawk Indians v. State of New York
2005 WL 1396994
Nos. 5:82-CV-0783, 5:82-CV-1114, 5:89-CV-0829
United States District Court, N.D. New York, June 8, 2005

Subjects: Land tenure -- New York (State); Land tenure -- Canadian St. Regis Band of Mohawk Indians -- New York (State).

*Synopsis: Indian tribes and intervenor-United States brought action against state and municipal defendants seeking a declaration of ownership and the right to possess approximately 12,000 acres of land in northern New York, plus damages for almost 200 years of dispossession. Non-party filed motion to dismiss for lack of subject matter jurisdiction.

*Holding: Adopting the report and recommendation of George H. Lowe, United States Magistrate Judge, the District Court, McCurn, Senior Judge, held that:
(1) Court could exercise original subject matter jurisdiction over lawsuit under federal question statute, and
(2) consideration of movant's affidavit was not required.
Motion denied.

Runningbird v. Weber
2005 WL 1363927
No. Civ. 03-4018-RHB
United States District Court, D. South Dakota, Southern Division, June 8, 2005

Subjects: Indian prisoners -- South Dakota; Civil rights -- United States; Freedom of religion – United States; Religious articles; Sweat lodges; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: (from the opinion) Plaintiff, Harold Runningbird, brings this action under 42 U.S.C. § 1983. Plaintiff alleges in this action that defendants have violated his right to free exercise of religion.

*Holding: not available

Keweenaw Bay Indian Community v. Naftaly
370 F.Supp.2d 620
No. 2:03-CV-170
United States District Court, W.D. Michigan, June 1, 2005

Subjects: Keweenaw Bay Indian Community, Michigan; Fee lands -- Taxation -- Michigan.

*Synopsis: Indian tribe sought declaratory judgment prohibiting collection of property taxes on lands held in fee simple by the tribe or its members. Parties cross-moved for summary judgment.

*Holding: The District Court, McKeague, J., held that land was not subject to Michigan property tax.
Judgment for plaintiff.

May

United States v. Jarvison
409 F.3d 1221
Docket No. 04-2093
United States Court of Appeals, Tenth Cir., May 23, 2005.

Subjects: Testimony; Law -- Navajo Nation, Arizona, New Mexico & Utah; Sex crimes; Child abuse; Marriage.

*Synopsis: During pretrial stages of child sex abuse prosecution, the United States District Court for the District of New Mexico, C. LeRoy Hansen, J., denied government's motion to compel testimony of witness based on determination that she was validly married to defendant and thus entitled to assert spousal testimonial privilege. Government took interlocutory appeal.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that:
(1) Navajo law governed validity of marriage between two tribal members who lived on reservation;
(2) 1953 marriage in unlicensed traditional ceremony was valid;
(3) husband's subsequent relationship did not invalidate marriage; and
(4) court would not recognize exception to spousal testimonial privilege in child abuse cases.
Affirmed.

United States v. Roy
408 F.3d 484
Docket No. 04-2310
United States Court of Appeals, Eighth Cir., May 20, 2005.

Subjects: Flandreau Santee Sioux Tribal Police Department; Indian reservation police -- Assault and battery -- Flandreau Santee Sioux Tribe of South Dakota; Police -- Defined -- Flandreau Santee Sioux Tribe of South Dakota; Evidence (Law).

*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota of assault with a dangerous weapon, assault resulting in serious bodily injury, and assaulting a federal officer. Defendant appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) officer with city police department was also acting as member of tribal police department when he was assaulted;
(2) indictment charging defendant with assaulting a federal officer causing serious bodily injury and assaulting federal officer with deadly and dangerous weapon was multiplicitous;
(3) probative value of videotape of defendant's booking to show defendant's state of mind at time of incident outweighed potential prejudice to defendant; and
(4) application of five-level enhancement for serious injury was not unreasonable.
Affirmed in part and reversed in part.

Narragansett Indian Tribe of Rhode Island v. State of Rhode Island
407 F.3d 450
Docket No. 04-1155
United States Court of Appeals, First Cir., May 12, 2005.

*Synopsis: Federally recognized Indian tribe brought action for declaratory judgment against State of Rhode Island, seeking declaratory judgment that State could not enforce its cigarette sales and excise tax scheme against Tribe with respect to smoke shop located on tribal settlement lands. State brought action in state court against Tribe, seeking declaratory judgment that Tribe's failure to comply with state excise, retail, and sales taxes was unlawful. Tribe removed State's action to federal court. The United States District Court for the District of Rhode Island, William E. Smith, J., 296 F.Supp.2d 153, remanded state case and granted summary judgment to state in federal case brought by Tribe. Tribe appealed.

*Holding:The Court of Appeals, Torruella, Circuit Judge, held that:
(1) federal court lacked subject matter jurisdiction over state's complaint;
(2) legal incidence of the cigarette tax fell on the consumer of cigarettes, not the tribal distributor of the cigarettes;
(3) Settlement Act did not completely abrogate Indian tribe's sovereign immunity on the settlement lands; and
(4) state violated Indian Tribe's sovereign rights when it enforced the criminal provisions of its cigarette tax laws on settlement lands.
Affirmed in part, reversed in part, and remanded.

Brunskill v. Boyd
2005 WL 1208632
Docket No. 04-15152, D.C. Docket No. 02-00403-CV-4-RH-WCS
United States Court of Appeals, Eleventh Cir., May 10, 2005

Subjects: United States. Religious Freedom Restoration Act of 1993; United States. Religious Land Use and Institutionalized Persons Act of 2000; Indian prisoners; Long hair; United States. Constitution. 1st Amendment; Freedom of religion.

*Synopsis: State prisoner, a Native American who practiced the Tobacco Indian religion, brought civil rights action under § 1983 against the Secretary of the Florida Department of Corrections (FDOC) and head chaplain of the FDOC, alleging violations of the First Amendment Free Exercise and Establishment Clauses, the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Equal Protection Clause of the Fourteenth Amendment. The United States District Court for the Northern District of Florida, No. 02-00403-CV-4-RH-WCS, granted summary judgment in favor of defendants, and plaintiff appealed.

*Holding: The Court of Appeals held that:
(1) policies of the FDOC which required inmate to cut his hair and denied him ability to possess certain materials used for practice of his religion did not violate First Amendment or the RFRA;
(2) FDOC's policies did not violate the Establishment Clause;
(3) FDOC's policies did not violate RLUIPA;
(4) inmate failed to show that other similarly situated prisoners were treated more favorably, as would support his Equal Protection claims;
(5) prisoner failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA) to bring suit under federal law; and
(6) District Court was within its discretion in declining to exercise supplemental jurisdiction over state prisoner's state law claims.
Affirmed.

Shawnee Tribe v. United Sates
405 F.3d 1121
Docket No. 04-3256
United States Court of Appeals, Tenth Cir., May 3, 2005.

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

*Synopsis: Indian tribe sought judicial review of General Service Administration (GSA) finding that "excess property," available for disposal under Federal Property and Administrative Services Act, was not within boundaries of reservation. The United States District Court for the District of Kansas, Thomas G. Van Bebber, Senior District Judge, 311 F.Supp.2d 1181, granted summary judgment for government, and tribe appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that government's sale of property under new statutory authority rendered appeal moot.
Dismissed.

Kaw Nation v. Norton
405 F.3d 1317
Docket No. 04-1029
United States Court of Appeals, Federal Cir., May 2, 2005.

Subjects: Retrocession of jurisdiction -- Kaw Nation, Oklahoma; Tribal courts -- Kaw Nation, Oklahoma; United States. Dept. of the Interior. Board of Contract Appeals.

*Synopsis: United States appealed decision of Department of Interior Board of Contract Appeals, Parrette, Administrative Judge, 2003 WL 21779057, which nullified government's acceptance of Indian tribe's attempted retrocession of its tribal court system.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that:
(1) appeal was moot, and
(2) vacatur of decision was warranted.
Vacated.

Comanche Nation, Oklahoma v. United States
2005 WL 1322994
No. Civ-05-328-F
United States District Court, W.D. Oklahoma, May 27, 2005

Subjects: Indian allotments -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Kiowa Indian Tribe of Oklahoma -- Members; Indian land transfers -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Bingo -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); Licenses -- Comanche Nation, Oklahoma (formerly the Comanche Indian Tribe); United States. Bureau of Indian Affairs; United States. Indian Gaming Regulatory Act.

*Synopsis: (from the opinion) A Comanche Nation member, Charlie Kerchee, was allotted a parcel of land from the KCA Reservation, identified as the Comanche Allotment 2329. On December 4, 1986, Robert Rowell, a member of the Kiowa tribe, purchased 0.53 acres of the allotment from an heir of Mr. Kerchee. The parcel continued to be held in trust by the United States on behalf of Robert Rowell. Mr. Rowell began operating a bingo hall on the 0.53 acres of the Comanche Allotment 2329 without obtaining a license from the Comanche Nation. The Bureau of Indian Affairs ("BIA") informed Mr. Rowell that his unlicensed activity violated the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701, et seq.

*Holding: not available

Allen v. Commissioner of Internal Revenue
T.C. Memo.2005-112
No. 20457-03
United States Tax Court, May 23, 2005. Added 5/25/06

Subjects: Public officers -- Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin -- Salaries -- Taxation -- United States; Income tax -- United States.

*Synopsis: Taxpayer filed petition, seeking review of deficiency and penalty.

*Holding: The Tax Court, Swift, J., held that:
(1) payments taxpayer received from Indian tribe constituted taxable income;
(2) taxpayer was liable for Federal self-employment tax for payments for her work as secretary or executive assistant to tribal president; and
(3) taxpayer was liable for accuracy-related penalty.
Judgment for respondent.

Skenandore v. Endicott
2005 WL 1262952
No. 05-C-0234
United States District Court, E.D. Wisconsin, May 20, 2005

Subjects: Indian prisoners -- Wisconsin; Civil rights -- United States; United States. Constitution. 1st Amendment; Freedom of religion – United States; Religious articles; Sacred sites; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: (from the opinion) The plaintiff alleges that defendant Jeffrey P. Endicott, Warden of Redgranite Correctional Institution, has denied the plaintiff and other similarly situated Native American Indian prisoners their right to free exercise of religion in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), while allowing other religious groups to possess their own religious articles. (Complaint IV. A-B.). Specifically, the plaintiff states that he and other Native American Indian prisoners are limited in the religious objects they may possess and use, including by a ban on smoking and on ignition devices. (Complaint at IV. A.). He states that certain sacred ceremonies are impeded by restrictions on objects that may be used and time-restrictions. Id. The plaintiff also claims that prison officials, including the prison chaplain, desecrated the sacred site of one ceremony.

*Holding: not available

United States, Lummi Indian Nation v. State of Washington, Dept. of Ecology
2005 WL 1244797
No. 2:01 CV 00047-TSZ
United States District Court, W.D. Washington, May 20, 2005

Subjects: United States; Washington (State). Dept. of Ecology; Treaty of Point Elliott (1855); Groundwater -- Lummi Tribe of the Lummi Reservation, Washington; Reserved water rights -- Lummi Tribe of the Lummi Reservation, Washington; Indian reservations -- Defined; Indian Country (U.S.) -- Defined; Reserved water rights -- Defined.

*Synopsis: United States brought action in its own right and on behalf of Lummi Indian Nation against State of Washington and fee landowners and water associations seeking declaratory judgment that Treaty of Point Elliott impliedly reserved groundwater under Lummi Peninsula for use and benefit of those Indians. Lummi Indian Nation intervened. Parties brought motions for summary judgment.

*Holding: The District Court, Zilly, J., held that:
(1) Lummi Reservation was Indian reservation, and was "Indian Country";
(2) Lummi Reservation was permanent reservation;
(3) Treaty of Point Elliott did not reserve water for additional community or "homeland" purposes as primary purpose of reservation;
(4) fact issue existed as to quantity of impliedly reserved water for practicably irrigable acreage (PIA) on reservation;
(5) quantity of impliedly reserved water for tribe's domestic use, to make reservation livable, could not be based solely upon agricultural award;
(6) evidence of water sources outside Lummi Peninsula had to be excluded, except as those sources relate to determination of PIA within that area;
(7) members of Indian tribe could use their treaty-reserved water for any purpose once allotted; and
(8) preponderance of evidence was appropriate burden for proof of what federal Indian reserved water rights were held by tribe and its members.
Motion granted and denied in part.

May

Quair v. Bega
2005 WL 1221820
No. CV F 02 5891 REC DLB
United States District Court, E.D. California, May 19, 2005

*Synopsis: Former tribal members filed petitions for writ of habeas corpus under Indian Civil Rights Act (ICRA) against Native American tribe, stemming from their disenrollment and banishment from tribe. After discovery was reopened, tribe moved to quash subpoenas for deposition and production of documents.

*Holding: The District Court, Beck, J., held that tribe's sovereign immunity shielded it from discovery process.
Motion granted.

Doxtator v. Commissioner of Internal Revenue
T.C. Memo.2005-112
No. 1508-03
United States Tax Court, May 18, 2005. Added 5/25/06

Subjects: Income tax -- Law and legislation -- United States -- Application; Revenue -- Taxation -- United States; Stocks -- Taxation -- United States.

*Synopsis: Taxpayers petitioned for review of income tax deficiencies and penalties.

*Holding: The Tax Court, Gale, J., held that:
(1) Tax Court had jurisdiction;
(2) amounts taxpayer wife received as compensation for her services as judicial officer for tribe were subject to tax;
(3) taxpayer husband was not entitled to trade or business deductions;
(4) taxpayers received dividends and capital gains from stock;
(5) payments representing profits from tribal casino were taxable;
(6) taxpayers were not entitled to charitable deductions;
(7) taxpayers were not entitled to casualty losses; and
(8) accuracy-related penalty was warranted.
Ordered accordingly.

Inmates at the North Dakota State Prison v. Schuetzle
368 F.Supp.2d 1009
No. A1-03-127
United States District Court, D. North Dakota, May 4, 2005

Subjects: Indian prisoners -- North Dakota; North Dakota; Civil rights -- United States; United States. Constitution. 14th Amendment; Freedom of religion – United States; Sweat lodges; United States. Religious Land Use and Institutionalized Persons Act of 2000.

*Synopsis: Native American inmates at state penitentiary brought civil rights action against corrections defendants, alleging that they were being deprived of their right to freely exercise their religion. Defendants filed motion to dismiss or, in the alternative for summary judgment.

*Holding: The District Court, Hovland, Chief Judge, held that:
(1) state penitentiary's failure to hire or appoint an individual that met chief's requirements for conducting sacred sweat lodge ceremonies did not constitute a violation of Native American inmates' civil rights under the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA), and
(2) First Amendment prohibited state penitentiary from adopting a policy that prevented the attendance of non-Native Americans at sweat lodge ceremonies in accordance with chief's statement of protocols for the seven sacred rites.
Motion granted.

April

The Rincon San Luiseño Band of Misison Indians v. Norton
2005 WL 957517
Docket No. 03-56893
D.C. No. CV-02-00253-BTM
United States Court of Appeals, Ninth Cir., April 27, 2005

Subjects: Rincon Band of Luiseno Mission Indians of the Rincon Reservation, California -- Membership; United States. Dept. of the Interior; United States. Bureau of Indian Affairs.

*Synopsis: Action was brought against Secretary of the Interior and officials of the Bureau of Indian Affairs (BIA), alleging that individuals who were not eligible for membership in Indian band were enrolled members because of improper actions and omissions of BIA officials. The United States District Court for the Southern District of California, Barry T. Moskowitz, J., vacated judgment entered on basis of parties' settlement and dismissed suit, finding that Band was a necessary and indispensable party. Plaintiffs appealed.

*Holding: The Court of Appeals held that district court had no authority to order any relief that would impermissibly impair Indian band's sovereign right to determine its membership and, thus, plaintiffs did not have standing to maintain action.
Affirmed.

United States v. Pemberton
405 F.3d 656
Docket No. 03-1302
United States Court of Appeals, Eighth Cir., April 22, 2005.

Subjects: Assault and battery -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota; Firearms; Indians of North America -- Legal status, laws, etc.; Status (Law) -- United States.

*Synopsis: Defendant was convicted, on his guilty plea, of being Indian who, in Indian country, had committed assault with dangerous weapon by discharging firearm at other parties by the United States District Court for the District of Minnesota, and he appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that:
(1) dispute regarding defendant's status as Indian, while relevant to matter of proof at trial, did not deprive district court of jurisdiction;
(2) facts admitted by defendant, that he identified himself as an Indian, that he was born of Indian parents, that he lived for long periods of time on reservation and attended grade and high school on reservation, and that he had child and lived together with mother and child on reservation, were sufficient to establish his status as Indian; and
(3) defendant who admitted that victims had sustained permanent, life-threatening or serious bodily injuries was bound by his admission and could not successfully challenge four-level enhancement imposed based on nature of victims' injuries.
Affirmed.

Cherokee Nation of Oklahoma v. Leavitt
404 F.3d 1263
Docket No. 01-7106
United States Court of Appeals, Tenth Cir., April 20, 2005.

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

*Synopsis: (from the opinion) This matter is before us upon remand from the United States Supreme Court. The Court reversed our decision, Cherokee Nation v. Thompson, 311 F.3d 1054 (10th Cir. 2002), rev'd, 125 S. Ct. 1172 (2005), which affirmed the lower court's decision, Cherokee Nation v. United States, 190 F. Supp. 2d 1248 (E.D. Okla. 2001), aff'd, 311 F.3d 1054 (2002), rev'd, 125 S. Ct. 1172 (2005), and remanded the case to us for further proceedings consistent with its opinion.

*Holding: not yet available

United States v. Schmidt
403 F.3d 1009
Docket No. 04-2724
United States Court of Appeals, Eighth Cir., April 13, 2005.

Subjects: Rosebud Sioux Tribal Police; Indian reservation police -- Assault and battery -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Suppression of evidence; Warrants (Law); Searches and seizures -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Police pursuit driving -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.

*Synopsis: Following his indictment on various charges relating to assault of a federal officer, defendant filed motion to suppress all evidence obtained after tribal police officer entered his home without a warrant. The United States District Court for the District of South Dakota, Charles B. Kornmann, J., granted the motion, and the government appealed.

*Holding: The Court of Appeals, Morris Sheppard Arnold, Circuit Judge, held that:
(1) officer's warrantless entry into defendant's home was justified by exigent circumstances, namely, the hot pursuit of a fleeing suspect, and
(2) defendant's resistance inside the house provided an independent ground for his arrest that thereafter furnished an independent justification for officer's presence in the house.
Reversed and remanded.

Aroostook Band of Micmacs v. Ryan
404 F.3d 48
Docket No. 04-1517
United States Court of Appeals, First Cir., April 13, 2005.

*Synopsis: Indian tribe challenged state's authority to enforce state employment discrimination laws against it. The United States District Court for the District of Maine, Margaret J. Kravchuk, United States Magistrate Judge, 307 F.Supp.2d 95, dismissed for lack of subject matter jurisdiction, and tribe appealed.

*Holding: The Court of Appeals, Lipez, Circuit Judge, held that:
(1) court had federal question jurisdiction over tribe's claim that state's conduct violated tribe's federal rights;
(2) tribe's challenge to state's attempted application of Title VII to tribe was not rendered moot by state's concession that tribe was exempt; and
(3) Pullman abstention was not warranted.
Reversed in part, vacated in part, and remanded.

Related News Stories: Micmacs' case sent to federal court (Bangor Daily News) 4/15/05

State of North Dakota v. Centers for Medicare and Medicaid Services
403 F.3d 537
Docket No. 03-3954
United States Court of Appeals, Eighth Circuit, April 6, 2005.

Subjects: North Dakota; South Dakota; Centers for Medicare & Medicaid Services (U.S.); Indians of North America -- Medical care; Medical care, Cost of.

*Synopsis: In separate actions, North and South Dakota challenged United States Department of Health and Human Services (HHS) denial of full reimbursement for Medicaid services provided to Native Americans by non-Indian Health Service facilities. The United States District Court for the District of North Dakota, Daniel Hovland, Chief Judge, 286 F.Supp.2d 1080, and the United States District Court for the District of South Dakota, Kornmann, J., 335 F.Supp.2d 999, granted summary judgments for states. Appeals were consolidated.

*Holding: The Court of Appeals, Morris Sheppard Arnold, Circuit Judge, held that full reimbursement was not available where services were provided by non-Indian Health Service facilities.
Reversed and remanded.

In re the Sonoma County Fire Chief's Application
2005 WL 1005079
No. C 02-04873 JSW
United States District Court, N.D. California, April 29, 2005

Subjects: Dry Creek Rancheria of Pomo Indians of California; Jurisdiction -- Sonoma County (Calif.); Fire departments -- Sonoma County (Calif.); Casinos -- Dry Creek Rancheria of Pomo Indians of California.

*Synopsis: (from the opinion) The only remaining question is whether the Court should permit the County to assert jurisdiction over the on-reservation activities of tribal members because of the existence of sufficient "exceptional circumstances" to warrant the assertion. See California v. Cabazon Band, 480 U.S. 202, 214-15, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983)).

*Holding: not available

Tunica-Biloxi Tribe of Indians v. Bridges
2005 WL 925668
No. CIV.A. 03-881-A
United States District Court, M.D. Louisiana, April 15, 2005

Subjects: Automobiles -- Purchasing -- Taxation -- Louisiana; Constitutional law; Casinos -- Tunica-Biloxi Indian Tribe of Louisiana; Taxation -- Louisiana; Tax collection -- Tunica-Biloxi Indian Tribe of Louisiana.

*Synopsis: In Indian tribe's action seeking an injunction to prevent State of Louisiana from levying sales taxes on tribe members, tribe moved for preliminary injunction and for leave to amend that motion, and parish and school board moved to dismiss the motion to amend

*Holding: The District Court, Parker, J., held that
(1) tribe would be permitted to amend its complaint to include alleged illegal taxation on tribe's purchase of a van, and
(2) van was not excludable from State sales tax.
Motions granted in part and denied in part.

Welch v. North Slope Borough
364 F.Supp.2d 1074
No. A98-398 CV JWS
United States District Court, D. Alaska, April 5, 2005

Subjects: Indian preference in hiring -- North Slope Borough (Alaska); Sovereign immunity -- North Slope Borough (Alaska). Mayors -- North Slope Borough (Alaska).

*Synopsis: Applicant who unsuccessfully sought employment with borough at time hiring ordinance that gave preference to Native Americans was in effect brought civil rights action against borough's mayor. Mayor moved for summary judgment.

*Holding: The District Court, Sedwick, J., held that:
(1) mayor was entitled to immunity from liability for his decision to sign, rather than veto, borough's hiring ordinance, and
(2) neither mayor's failure to file a declaratory judgment action challenging the ordinance nor his authorization of hiring under the ordinance demonstrate that he participated in hiring applicant.
Motion granted.

March

Prairie Band Potawatomi Nation v. Wagnon
2005 WL 681785
Docket No. 03-3322
United States Court of Appeals, Tenth Cir., March 25, 2005.

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Synopsis: Indian tribe sought order requiring State officials to grant recognition to motor vehicle registrations and titles issued by tribe. The United States District Court for the District of Kansas, 276 F.Supp.2d.1168, Robinson, J., granted summary judgment for tribe. State appealed.

*Holding: The Court of Appeals, McKay, Circuit Judge, held that Kansas officials were properly enjoined from refusing to recognize tribe's motor vehicle registrations and titles and enforcing State's own requirements on vehicles registered by tribe.
Affirmed.

Related News Stories: Tribal license plates are valid, court rules (Topeka-Capital Journal) 3/26/05.

Equal Employment Opportunity Commission v. Peabody Western Coal Company
400 F.3d 774
Docket No. 02-17305
Petition for Certiorari Filed (September 15, 2005)
United States Court of Appeals, Ninth Cir., March 10, 2005.

Subjects: United States. Equal Employment Opportunity Commission; United States. Civil Rights Act of 1964; Discrimination in employment; Indian preference in hiring; Navajo Nation, Arizona, New Mexico & Utah -- Members; Peabody Western Coal Company.

*Synopsis: Equal Employment Opportunity Commission (EEOC) filed Title VII complaint against coal company, claiming it engaged in prohibited national origin discrimination by giving hiring preference to members of Navajo tribe over job applicants from other tribes. The United States District Court for the District of Arizona Mary H. Murguia, J., 214 F.R.D. 549, granted summary judgment for company, and EEOC appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that:
(1) it was feasible to join tribe as party, and
(2) EEOC's claim did not present nonjusticiable political question.
Reversed and remanded.

Skokomish Indian Tribe v. Tacoma Public Utilities
2005 WL 546637
Docket Nos. 01-35028, 01-35845
United States Court of Appeals, Ninth Cir., March 9, 2005.

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; Tacoma (Wash.); Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Flood damage -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Liability for environmental damages; Dams.

*Synopsis: Indian tribe brought action alleging that city's 1924 development of federally-licensed hydroelectric power project violated tribe's rights under Treaty, Federal Power Act (FPA), and state law. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., 161 F.Supp.2d 1178, granted summary judgment for city, and tribe appealed. The Court of Appeals, 332 F.3d 551, affirmed in part and vacated and remanded in part.

*Holdings: On rehearing en banc, The Court of Appeals, Kozinski, Circuit Judge, held that:
(1) complaint failed to state tort claim against United States;
(2) United States was exempt from any liability, under Federal Power Act (FPA);
(3) tribe could not recover monetary damages for city's alleged violations of U.S.-tribal treaty;
(4) tribe was not "person" entitled to bring § 1983 action;
(5) waters necessary for fishing were not impliedly reserved to tribe;
(6) tribe's state-law claims against city were time-barred;
(7) FPA did not create federal private right of action; and
(8) denial of recusal motion was not abuse of discretion. Affirmed in part and transferred to Court of Federal Claims in part. Graber, Circuit Judge, concurred in part, dissented in part, and filed opinion in which Pregerson, Paez, and Berzon, Circuit Judges, joined. Berzon, Circuit Judge, dissented in part, and filed opinion in which Pregerson, Paez, and Rawlinson, Circuit Judges, joined.

Longie v. Spirit Lake Tribe
2005 WL 517014
Docket No. 04-1578
United States Court of Appeals, Eighth Cir., March 7, 2005.

Subjects: Quiet title actions; Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe) -- Members; Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Federal question; Jurisdiction -- United States; Mandamus.

*Synopsis: Member of Indian tribe brought quiet title action against tribe. The United States District Court for the District of North Dakota, Ralph R. Erickson, J., dismissed, and appeal was taken.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) court lack federal question jurisdiction, and
(2) court lacked mandamus jurisdiction.
Affirmed.

Native American Arts, Inc. v. The Waldron Corporation
399 F.3d 871
Docket No. 04-3182
United States Court of Appeals, Seventh Circuit, March 2, 2005.

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

*Synopsis: Seller of Indian-manufactured arts and crafts sued non-Indian jewelry manufacturer for violation of Indian Arts and Crafts Act. The United States District Court for the Northern District of Illinois, Samuel Der-Yeghiayan, J., 2004 WL 1687184, entered judgment for manufacturer, and seller appealed.

*Holding: The Court of Appeals, Posner, Circuit Judge, held that:
(1) regulation interpreting unqualified use of term "Indian" was not meant to govern issue of liability, and
(2) any failure to instruct on regulation was harmless.
Affirmed.

Pueblo v. Oglebay Norton Company
228 F.R.D. 665
No. CIV 04-0475 RB/DJS
United States District Court, D. New Mexico, March 31, 2005

Subjects: Pueblo of Picuris, New Mexico; Oglebay Norton Company; Mica mines and mining -- New Mexico; Indian title -- Pueblo of Picuris, New Mexico; Parties to actions -- United States.

*Synopsis: Indian tribe brought ejectment and trespass action against operators of mica mine, based on tribe's alleged aboriginal title to the land on which the mine was located. Operator moved to dismiss for failure to join the United States as a necessary and indispensable party.

*Holding: The District Court, Brack, J., held that even assuming that government's reservation of certain easements in original mineral patent made United States a necessary party, it was not an indispensable party.

Carruthers v. Flaum
2005 WL 767875
No. 03 CIV.7768(CM)
United States District Court, S.D. New York, March 31, 2005

Subjects: Indian gaming -- Sullivan County (N.Y.); State recognized Indian tribes -- Unkechaug Indian Nation (N.Y.); Indian gaming -- Unkechaug Indian Nation (N.Y.).

*Synopsis: Limited liability companies, which had contract with Indian tribe for casino development of property tribe was to purchase as ancestral land, and one member of companies, brought state court action against other members, prospective vendor and other developers, after property was sold to others upon foreclosure of mortgage prospective vendor had allegedly agreed to settle. Defendants removed and moved for summary judgment.

*Holding: The District Court, McMahon, J., held that:
(1) all claims of tortious interference with contracts were to be dismissed, to extent that contracts involved development of gaming facilities, which tribe was precluded from operating due to lack of federal recognition as sovereign nation;
(2) allegations that vendor was acting as agent for undisclosed real estate developers was sufficient to preclude dismissal of claim of liability for vendor's breach of commitment to settle mortgage;
(3) allegation of agent status precluded nonliability of developers for alleged misrepresentations of lien status of mortgage;
(4) agency claim precluded nonliability for breaches of contract to sell land;
(5) there was no basis for imposition of constructive trust; and
(6) there was no basis for imposition of resulting trust.
Motions granted in part, denied in part.

Peltier v. Federal Bureau of Investigation
2005 WL 735964
No. 03-CV-905S
United States District Court, W.D. New York, March 31, 2005

Subjects: Peltier, Leonard; United States. Freedom of Information Act; United States. Federal Bureau of Investigation.

*Synopsis: (from the opinion) In this action, Plaintiff Leonard Peltier challenges Defendant Federal Bureau of Investigation's ("FBI") response to his request for release of records pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Plaintiff believes that full disclosure of the requested records will reveal exculpatory evidence, and ultimately lead to his release from the federal penitentiary in Leavenworth, Kansas, where he is serving consecutive life sentences for murdering two FBI agents.

*Holding: not available

Spears v. Red Lake Band of Chippewa Indians
2005 WL 742301
No. 03-CV-2434JMRJSM
United States District Court, D. Minnesota, March 30, 2005

Subjects: Law -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota; Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota; United States. Indian Civil Rights Act; Prison sentences -- Red Lake Band of Chippewa Indians of the Red Lake Reservation, Minnesota; Traffic violations; Traffic fatalities.

*Synopsis: Member of Indian tribe, convicted of multiple violations of tribal code due to his involvement in fatal automobile accident, petitioned for writ of habeas corpus.

*Holding: The District Court, Rosenbaum, Chief Judge, held that accident constituted "single offense," within meaning of statutory limit on tribal prison sentences.
Petition granted.

Fort Berthold Land and Livestock Association v. Anderson
361 F.Supp.2d 1045
No. A4-04-109
United States District Court, D. North Dakota, March 22, 2005

Subjects: Fort Berthold Land and Livestock Association (N.D.); United States. Dept. of the Interior; United States. Bureau of Indian Affairs; United States. Office of Indian Affairs. Fort Berthold Agency; Grazing rights -- Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota -- Members; Grazing -- Cost of operation.

*Synopsis: Ranchers holding grazing permits on Indian reservation brought action, under the Administrative Procedure Act (APA), for review of decision of the Bureau of Indian Affairs (BIA) which sought to impose a retroactive grazing rate increase. Ranchers moved for summary judgment, and BIA moved to dismiss.

*Holding: The District Court, Hovland, Chief District Judge, held that dismissal was required.
Dismissed.

Federal Election Commission Advisory Opinion Number 2005-1
Westlaw citation not currently available
Federal Election Commission, Washington, DC, March 14, 2005

Subjects: United States. Federal Election Commission; Political campaigns; Campaign funds; Mississippi Band of Choctaw Indians, Mississippi; Public contracts -- United States.

*Synopsis: The Federal Election Commission March 14 issued an advisory opinion allowing the Mississippi Band of Choctaw Indians to continue making campaign contributions even through the tribe established, owns, and indemnifies a corporation seeking federal government contracts (FEC AO 2005-1, 3/10/05).

*Holding: not available

Tunica-Biloxi Indians of Louisiana v. Pecot
227 F.R.D. 271
No. CIV.A. 02-1512
United States District Court, W.D. Louisiana, March 9, 2005

Subjects: Paragon Casino Resort; Indian business enterprises -- Tunica-Biloxi Indian Tribe of Louisiana; Molds (Fungi); Hotels -- Design and construction -- Tunica-Biloxi Indian Tribe of Louisiana; Microbial contamination; Subcontractors.

*Synopsis: Following discovery of mold contamination in hotel addition to casino, Indian tribe brought state court and tribal court actions against subcontractors and vinyl wallpaper supplier. After removal, supplier filed third party complaint against wallpaper manufacturer. Manufacturer moved to dismiss.

*Holding: The District Court, Little, J., held that supplier failed to establish good cause for filing third party complaint after expiration of scheduling order's deadline for adding parties.
Motion granted.

Safari Club International v. Demientieff
F.R.D. 300
No. A98-0414-CV (HRH)
United States District Court, D. Alaska, March 9, 2005

Subjects: Public Lands -- United States; Hunting rights -- Alaska; Fishing rights -- Alaska; Subsistence rights -- Alaska; Subsistence economy -- Alaska; Safari Club International; Venetie Tribal Government (Arctic Village and Village of Venetie), Native Village of (AK); Alaska; United States. Administrative Procedure Act.

*Synopsis: Non-subsistence user of federal lands in Alaska challenged makeup of regional advisory councils reporting to Federal Subsistence Board. Tribal government intervened to challenge proposed regulation implementing adjustments to councils' makeup. The District Court, Holland, J., entered judgment in favor of intervenors, enjoining proposed regulation, on grounds of failure to follow statutory rulemaking procedures under Administrative Procedure Act (APA). Following adoption of final regulation according to APA procedures, intervenors moved to amend their pleadings to challenge final regulation.

*Holding: The District Court held that:
(1) tribal government could amend, and
(2) Court's substantive rulings made prior to promulgation of final rule were law of the case.
Motion granted.

Crow Dog v. City of Indianapolis
2005 WL 643363
No. 1:03-CV-0849-SEB-VSS
United States District Court, S.D. Indiana, March 18, 2005

Subjects: Discrimination in employment -- Indiana -- Indianapolis; Indianapolis (Ind.) -- Race relations; Indians of North America -- Civil rights -- Indiana -- Indianapolis.

*Synopsis: (from the opinion) Chief John Crow Dog alleges that his employer, the City of Indianapolis pays him less and has disciplined him unfairly on the impermissible basis of his national origin and religion. The Complaint also alleges the City discriminated against him when it cited him for zoning violations in 1994 and denied him improved working conditions.

*Holding: not available

Mentz v. United States
2005 WL 503732
No. A1-03-123
United States District Court, D. North Dakota, March 4, 2005

Subjects: United States. Federal Tort Claims Act; Snowmobiles -- Accidents.

*Synopsis: Injured purchaser of snowmobile from instructor at tribally controlled school brought Federal Tort Claims Act (FTCA) suit, seeking damages. Government moved to dismiss.

*Holding: The District Court, Hovland, Chief Judge, held that instructor was not acting within scope of his employment at time of accident.
Motion granted.

Round Valley Indian Tribes v. McKay
2005 WL 552545
No. C 04-02320 JSW
United States District Court, N.D. California, March 8, 2005

Subjects: Round Valley Indian Tribes of the Round Valley Reservation, California (formerly known as the Covelo Indian Community); Trust lands -- Round Valley Indian Tribes of the Round Valley Reservation, California (formerly known as the Covelo Indian Community); Servitudes; Quiet title actions; Trespass.

*Synopsis: (from the opinion) The Tribes brought this action relating to property that the United States holds legal title to in trust for the Tribes. The Tribes seek declaratory and injunctive relief confirming the existence of a deeded casement, or in the alternative a proscriptive easement, across the McKays' property for the benefit of the Tribes' reservation. The Tribes further seeks damages for the McKays' alleged interference with its use of the easement over the McKays' property and for damages allegedly caused by the McKays when they expanded an easement the McKays hold over the Tribes' land. The McKays then filed a counterclaims against the Tribes seeking: (1) a decree of quiet title to establish ownership of the McKays' property free and clear of any easements claimed by the Tribes; (2) damages for trespass over the McKays' property; and (3) for an injunction against the Tribes and its members enjoining the them from trespassing on the McKays' property.

*Holding: not available

Alvarez v. Hill
2005 WL 552350
No. CV 04-884-BR
United States District Court, D. Oregon, March 7, 2005

Subjects: Prisoners; Oregon State Penitentiary; Snake River Correctional Institution (Or.); United States. Constitution. 1st Amendment; United States. Constitution. 14th Amendment; United States. Constitution. 8th Amendment; United States. Constitution. 6th Amendment; Freedom of religion; Due process of law.

*Synopsis: (from the opinion) Plaintiff's Complaint alleges three claims for relief against various correctional officials at SRCI: (1) Plaintiff alleges Defendants violated his rights under the First and Fourteenth Amendments by substantially burdening his religious freedoms, causing Plaintiff to suffer severe mental anguish in violation of his Eighth Amendment right to be free from cruel and unusual punishment; (2) Plaintiff alleges Defendants violated his Fourteenth Amendment right to due process because Plaintiff was not given a full opportunity to participate in a hearing in connection with a misconduct report; and (3) Plaintiff alleges Defendants violated his rights under the First, Sixth, and Eighth Amendments by denying Plaintiff religious freedom, by denying Plaintiff due process, and by hindering Plaintiff's access to legal materials.

*Holding: not available

Quair v. Bega
2005 WL 552537
No. CV F 02 5891 REC DLB
United States District Court, E.D. California, March 7, 2005

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

*Holding: not available

Sac & Fox Tribe of the Mississippi in Iowa Election Board v. Bureau of Indian Affairs
360 F.Supp.2d 986
No. C 04-1-LRR
United States District Court, N.D. Iowa, March 2, 2005

Subjects: Recall; Sac & Fox Tribe of the Mississippi in Iowa; Sac & Fox Tribe of the Mississippi in Iowa. Election Board; United States. Bureau of Indian Affairs; Sac & Fox Tribe of the Mississippi in Iowa. Council; Tribal councils -- Sac & Fox Tribe of the Mississippi in Iowa; Law -- Sac & Fox Tribe of the Mississippi in Iowa; Constitutions; Tribes; Leadership disputes -- Sac & Fox Tribe of the Mississippi in Iowa.

*Synopsis: The District Court, Reade, J., held that court lacked jurisdiction to resolve intra-tribal dispute requiring interpretation of tribal constitution.
Motion granted.

*Holding: The District Court, Reade, J., held that court lacked jurisdiction to resolve intra-tribal dispute requiring interpretation of tribal constitution.
Motion granted.
See also 321 F.Supp.2d 1055.

February

United States of America v. Morin
2005 WL 450106
Docket No. 03-1781
United States Court of Appeals, Eighth Circuit, February 28, 2005.

Subjects: Sentences (Criminal procedure); Trials (Conspiracy); Theft; Accomplices; Turtle Mountain Band of Chippewa Indians of North Dakota -- Members.

*Synopsis: Defendant was convicted, after jury trial, in the United States District Court for the District of North Dakota, of conspiracy to violate, and substantive violations of, statutes prohibiting theft and embezzlement from Indian tribal organizations (ITO), and theft from programs receiving federal funds. Defendant appealed. /p>

*Holding:The Court of Appeals, Bye, Circuit Judge, held that:
(1) defendant was not required to occupy position of trust in ITO in order to be found guilty of embezzlement and theft from ITO, where he aided and abetted co-defendant while he occupied position of trust in ITO, and
(2) defendant was entitled to new sentencing in light of United States v. Booker.

United States v. Garrett
2005 WL 354116
Docket No. 03-4569
United States Court of Appeals, Fourth Cir., February 15, 2005.

Subjects: Cape Fear Music Co. (N.C.); Gambling -- Law and legislation -- North Carolina; Equality before the law -- North Carolina; Discrimination -- North Carolina.

*Synopsis: Following denial of his motions to dismiss, defendant was convicted, upon conditional plea of guilty, in the United States District Court for the Eastern District of North Carolina, at Wilmington, Terrence W. Boyle, Chief District Judge, for offense relating to conducting gambling business. Defendant appealed, challenging denial of motions to dismiss.

*Holding: The Court of Appeals, Titus, United States District Judge for the District of Maryland, sitting by designation, held that:
(1) North Carolina did not violate defendant's equal protection rights by prosecuting him for same activities in which Native American tribes were permitted to engage, and
(2) alleged discrimination by gaming laws of North Carolina against those who conducted gaming outside tribal land failed to state claim under dormant commerce clause.
Affirmed.

Greene v. State of Rhode Island
2005 WL 330615
Docket No. 03-2670
United States Court of Appeals, First Cir., February 11, 2005.

Subjects: Seaconke Wampanoag Tribe, Wampanoag Nation -- Land tenure; Rhode Island Indian Claims Settlement Act.

*Synopsis: Indian tribe sought declaration that it owned land tract. The United States District Court for the District of Rhode Island, William E. Smith, J., 289 F.Supp.2d 5, dismissed, and tribe appealed.

*Holding: The Court of Appeals, Torruella, Circuit Judge, held that claim was barred by Rhode Island Indian Claims Settlement Act. Affirmed.

Carcieri v. Norton
2005 WL 307676
Docket No. 03-2647
Briefs
United States Court of Appeals, First Cir., February 9, 2005.

*Synopsis: State and town challenged Interior Department decision to accept 31-acre parcel of land into trust for benefit of Indian tribe. The United States District Court for the District of Rhode Island, Mary M. Lisi, 290 F.Supp.2d 167, granted summary judgment for Interior, and appeal was taken.

*Holding: The Court of Appeals, Torruella, Circuit Judge, held that:
(1) federally recognized tribe was entitled to benefits of Indian Reorganization Act (IRA), even if it was not recognized and under federal jurisdiction on date of Act's enactment;
(2) Rhode Island Indian Claims Settlement Act did not impair tribe's ability to seek trust acquisition of lands that it acquired by purchase with non-settlement funds; and
(3) Bureau of Indian Affairs' (BIA's) finding that parcel of land acquired by tribe qualified for trust acquisition was not arbitrary or capricious. Affirmed.

United States v. Charley
396 F.3d 1074
Docket No. 03-10579
United States Court of Appeals, Ninth Cir., February 3, 2005.

Subjects: Trials (Murder); Firearms; Arrest -- Defined; United States. Constitution. 5th Amendment; United States. Constitution. 6th Amendment; Right to counsel.

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Earl H. Carroll, J., for three counts of first degree murder, and three counts of using a firearm during and in relation to a crime of violence. Defendant appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that:
(1) police officer's conduct in placing defendant in his car and escorting her to her house from the home of her relatives did not amount to an "arrest,";
(2) interrogation by FBI agent following defendant's request at tribal court arraignment for an attorney did not violate defendant's Fifth Amendment Miranda right to counsel; and
(3) defendant's Sixth Amendment right to counsel was not triggered by tribal court arraignment.
Affirmed.

United States v. Becerra-Garcia
2005 WL 237647
Docket No. No. 03-10654
United States Court of Appeals, Ninth Cir., Feb. 2, 2005.

Subjects: Tohono O'odham Nation of Arizona. Police Dept. -- Officials and employees; Authority; Illegal aliens -- Transportation -- On Indian reservations; Human smuggling -- On Indian reservations.

*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, Raner C. Collins, J., of conspiring to transport illegal aliens and with transporting illegal aliens. Defendant appealed.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that:
(1) tribal rangers were "government agents," and
(2) minimally intrusive investigatory stop of vehicle conducted by tribal rangers was reasonable.
Affirmed.

Cobell v. Norton
357 F.Supp.2d 298
Civil Action No. 96-1285
United States District Court, District of Columbia, February 23, 2005

*Synopsis: Members of Indian tribes and present or past beneficiaries of individual Indian money (IIM) accounts filed class action, alleging that Secretaries of Interior and Treasury and Assistant Secretary of Interior for Indian Affairs had grossly mismanaged those accounts. The district court issued injunction for complete historical accounting of trust fund assets and comprehensive statement of manner in which trust management would be conducted after Interior's proposed internal changes, 283 F.Supp.2d 66. Defendants appealed. The Court of Appeals, Stephen F. Williams, Senior Circuit Judge, vacated in part and remanded, 392 F.3d 461.

*Holding: The District Court, Royce C. Lamberth, J., held that:
(1) structural injunction was warranted under court's equitable authority, and
(2) stay of injunction pending appeal was not warranted.
Ordered accordingly.

Cobell v. Norton
226 F.R.D. 67
Civil Action No. 96-1285 (RCL)
United States District Court, District of Columbia, February 8, 2005

*Synopsis: Beneficiaries of individual Indian money (IIM) trust accounts brought suit against the Secretary of the Interior and other federal officials seeking declaratory and injunctive relief for breach of statutory duty to provide an accounting under Indian Trust Fund Management Reform Act. Plaintiffs filed motion to compel, and defendants filed motions for protective orders.

*Holding: The District Court, Royce C. Lamberth, J., held that:
(1) general discovery would be limited to matters relevant to plaintiffs' statutory claim that government defendants breached their statutory duty to provide an accurate accounting of all money in the IIM trust;
(2) award of sanctions was not appropriate under rule authorizing award of expenses upon granting motion to compel disclosure; and
(3) government did not establish good cause for protective orders precluding depositions of officials of the Department of Interior.
Plaintiffs' motion granted in part and denied in part; defendants' motions denied.

Cobell v. Norton
355 F.Supp.2d 531
No. CIV.A.96-1285(RCL)
United States District Court, District of Columbia, February 7, 2005

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

*Synopsis: Interior and Treasury Departments, whose statements of account to beneficiaries of Individual Indian Money (IIM) trust accounts had been found to be deficient, 212 F.R.D. 14, sought reconsideration of order, 224 F.R.D. 266, conditionally approving amended statements and related communications.

*Holding: The District Court, Lamberth, J., held that reconsideration was not warranted.
Motion conditionally denied.

Related News Stories: Bush administration won't give up fight on Cobell (Indianz.com) 03/18/05

January

United States v. Bruce
2005 WL 79051
Docket No. 03-30171
United States Court of Appeals, Ninth Cir., Jan. 13, 2005.

Subjects: Indian children -- Violence against -- On Indian reservations; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Indians of North America -- Defined; Criminal actions arising in Indian Country (U.S.).

*Synopsis: Defendant was convicted, in the United States District Court for the District of Montana, Sam E. Haddon, J., of simple assault on Indian child on reservation. She appealed.

*Holding: The Court of Appeals, Bybee, Circuit Judge, held that:
(1) defendant satisfied burden of production on her affirmative defense that she was Indian, and
(2) trial court's failure to let jury consider defense was not harmless error.
Reversed and remanded.

Ford Motor Company v. Todecheene
2005 WL 53326
Docket Nos. 02-17048, 02-17165.
United States Court of Appeals, Ninth Cir., Jan. 11, 2005.

Subjects: Ford Motor Company; Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah; Exhaustion of tribal remedies; Sovereign immunity -- Navajo Nation, Arizona, New Mexico & Utah;Torts; Products liability; Vehicles.

*Synopsis: Parents of tribal member who was killed in one-vehicle accident on reservation filed product liability action in Indian tribal court against non-member vehicle manufacturer. Manufacturer brought action in federal court for declaratory judgment and preliminary injunction. The United States District Court for the District of Arizona, Paul G. Rosenblatt, J., granted preliminary injunction, 221 F.Supp.2d 1070. Parents appealed.

*Holding: The Court of Appeals, Rawlinson, Circuit Judge, held that:
(1) existence of financing agreement between tribe and manufacturer did not provide sufficient basis to subject vehicle manufacturer to tribal court's jurisdiction on basis of consensual relations;
(2) tribe's interest in protecting lives of its member police officers on tribal roads did not provide sufficient basis to subject manufacturer to tribal court's jurisdiction under tribal self-government power; and
(3) exhaustion requirement on issue of tribal sovereign immunity was satisfied.
Affirmed.

Samish Indian Tribe v. State of Washington
394 F.3d 1152, Docket No. 03-35145
Petition for Certiorari Filed (October 3, 2005)
United States Court of Appeals, Ninth Cir., January 6, 2005.

Subjects: Samish Indian Tribe, Washington; Treaty rights -- Samish Indian Tribe, Washington; Fishing rights -- Samish Indian Tribe, Washington; Washington (State); Federal recognition of Indian tribes -- Samish Indian Tribe, Washington.

*Synopsis: Indian tribe moved to reopen judgment, 476 F.Supp. 1101, that had denied tribal members treaty fishing rights on ground that tribe had not maintained organized tribal structure. The United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., denied relief, and tribe appealed.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that:
(1) federal recognition of tribe was extraordinary circumstance warranting relief from judgment, and
(2) finality concerns did not justify denial of relief.
Reversed.

Related News Stories: 9th Circuit panel rules Samish should have treaty fishing rights (Seattle Times) 1/06/05.

NGV Gaming, LTD v. Upstream Point Molate, LLC
2005 WL 318646
No. C 04-3955-SC
United States District Court, N.D. California, January 31, 2005

*Synopsis: Casino development group sued competitors for tortious interference with contract. Competitors moved to dismiss.

*Holding: The District Court, Conti, J., held that:
(1) development agreement was valid;
(2) group's damages were not too speculative to provide basis for recovery; and
(3) claim was not preempted by federal law.
Motion denied.

Allender v. Scott
379 F.Supp.2d 1206
No. CIV-04-0935 BB/RLP
United States District Court, D. New Mexico, January 27, 2005

Subjects: Non-Indians; Indian reservation police -- Ramah Navajo Community; Traffic violations -- New Mexico; Civil rights; United States. Indian Law Enforcement Reform Act; United States. Indian Self-Determination and Education Assistance Act; United States. Federal Tort Claims Act.

*Synopsis: Non-Indian individual who was arrested by tribal police officer for refusing to give his Social Security number during traffic stop brought action in state court against, inter alia, tribal police officer and his supervisor, alleging negligent and intentional torts and violations of his civil rights. Following removal, officer and supervisor moved for certification as federal employees acting within scope of their employment at time of incident giving rise to arrestee's tort claims.

*Holding: The District Court, Black, J., held that:
(1) supervisor and officer were "requested" to assist in the enforcement of state law by the New Mexico State Police, for purposes of authority granted by section of the Indian Law Enforcement Reform Act (ILERA) which authorized federal employees to assist with enforcement of state law "when requested" by a state or local law enforcement official;
(2) supervisor and officer acted as federal officers when they enforced state law pursuant to a cooperative agreement under cross-commissioning contract authorized by the Indian Self-Determination and Education Act (ISDEA);
(3) supervisor and officer were acting within scope of their employment at time of incident giving rise to arrestee's tort claims; and
(4) supervisor and officer were entitled to protections of the Federal Tort Claims Act (FTCA).
Motion granted.

Yashenko v. Harrah's NC Casino Company, LLC
2005 WL 137183
No. CIV.2:03 CV 226
United States District Court, W.D. North Carolina, January 20, 2005

Subjects: Harrah's Kansas Casino Corp. -- Officals and Employees; Prairie Band of Potawatomi Indians, Kansas; Employees, Dismissal of; Race discrimination; United States. Family and Medical Leave Act of 1993; Indian preference in hiring; Discrimination in employment.

*Synopsis: Terminated casino employee sued casino management company for violation of Family and Medical Leave Act (FMLA) and racial discrimination. Parties cross-moved for summary judgment.

*Holding: The District Court, Thornburg, J., held that:
(1) company did not violate FMLA by failing to retain employee whose position had been eliminated while he was on protected leave;
(2) company did not retaliate against employee; and
(3) company could not be held liable under § 1981 for its use of tribal hiring preferences.
Plaintiff's motion denied; defendant's motion granted.

United States v. American Horse
2005 WL 81922
No. A-1-04-73
United States District Court, D. North Dakota, January 11, 2005

Subjects: Foreclosure -- United States; Real property -- On Indian reservations -- Standing Rock Sioux Tribe of North & South Dakota; Trust lands -- On Indian reservations -- Standing Rock Sioux Tribe of North & South Dakota; Exhaustion of tribal remedies.

*Synopsis: Government brought action to foreclose leasehold mortgage on leased residence located on land in trust status within boundaries of an Indian reservation. Mortgagor moved to dismiss.

*Holding: The District Court, Hovland, Chief District Judge, held that:
(1) complaint's factual allegations satisfied government's obligation to make a short and plain statement of its claim, and
(2) tribal exhaustion doctrine did not apply.
Motion denied.

Secretary of Labor v. Akwesasne Mohawk Casino
2005 WL 44019
No. 01-1424
Occupational Safety Health Review Commission, January 6, 2005

Subjects: United States. Occupational Safety and Health Act of 1970; Akwesasne Mohawk Casino (N.Y.); Industrial safety -- New York (State); St. Regis Band of Mohawk Indians of New York; United States. Occupational Safety and Health Administration; Jurisdiction -- United States; Treaties -- Abrogation -- United States.

*Synopsis: (from the opinion) Akwesasne Mohawk Casino ("AMC") is located in Hogansburg, New York, on the St. Regis Indian Reservation. The St. Regis Reservation straddles the St. Lawrence River and includes land in northern New York and in the Canadian provinces of Ontario and Quebec. AMC employs approximately 170 people, about half of whom are American Indian. Pursuant to a warrant approved by the United States District Court for the Northern District of New York, the Occupational Safety and Health Administration ("OSHA") inspected AMC and a warehouse used by AMC on March 26, 2001. As a result of the inspection, the Secretary of Labor ("the Secretary") issued two citations to AMC. AMC timely contested the citations, and on August 9, 2001 the Secretary filed a complaint with the Commission. On September 4, 2001, AMC filed a motion to dismiss the citations and complaint, alleging that OSHA lacks subject matter jurisdiction over its operations. Before us on review is an order of Commission Administrative Law Judge Michael Schoenfeld in which he granted AMC's motion to dismiss the citations. The judge based his order on a finding that application of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 ("OSH Act"), to the working conditions at AMC would abrogate rights guaranteed by treaties between the United States and Indian tribes, concluding that AMC qualified for an exception to the rule that "... a general statute in terms applying to all persons includes Indians and their property interests." Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).

*Holding: not available

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