*Synopsis: Several Indian tribes separately brought action against Department of Housing and Urban Development (HUD), challenging HUD's attempt to recapture alleged overpayments made to tribes under an affordable housing program created by the Native American Housing Assistance and Self-Determination Act (NAHASDA) without providing the tribes with administrative hearings. The United States District Court for the District of Colorado, Nos. 1:05-CV-00018-RPM, 1:08-CV-00451-RPM, 1:08-CV-00826-RPM, 1:08-CV-02573-RPM, 1:08-CV-02577-RPM, 1:08-CV-02584-RPM, and 1:07-CV-01343-RPM, Richard P. Matsch, Senior Judge, 2015 WL 232098, 2014 WL 2936924, 2014 WL 2883456, and 2014 WL 2781728, entered judgment for tribes. HUD appealed and appeals were consolidated.
*Holdings: On petition for rehearing, the Court of Appeals, Moritz, Circuit Judge, held that:
1) HUD was not required under NAHASDA to conduct administrative hearings prior to attempting to recapture alleged overpayments;
2) HUD finding that tribes incorrectly received NAHASDA payments did not trigger provision requiring hearings before finding improper expenditures;
3) even assuming incorrect receipt of NAHASDA payments was covered under provision governing improper expenditures, incorrect receipt did not constitute substantial noncompliance;
4) HUD lacked the authority to recapture alleged overpayments via administrative offset; and
5) sovereign immunity precluded an award of money damages payable from NAHASDA grant funds carried over from prior years and funds that would be appropriated in future years.
Affirmed in part, reversed in part, and remanded.
Matheson, J., filed an opinion concurring in part and dissenting in part.
Bacharach, J., filed an opinion concurring in part and dissenting in part.
*Synopsis: Environmental groups and Havasupai Indian Tribe brought action under Administrative Procedure Act (APA) challenging Forest Service's conclusion that uranium mining company had valid existing rights to operate a uranium mine on land within a withdrawal area of public lands around Grand Canyon National Park that the Secretary of the Interior withdrew from new mining, seeking declaration that Forest Service was acting in violation of National Environmental Policy Act (NEPA). Mining companies intervened. The United States District Court for the District of Arizona, David G. Campbell, J., 98 F.Supp.3d 1044, entered summary judgment in favor of Forest Service. Groups and Tribe appealed.
*Holdings: The Court of Appeals, Frederic Block, J., sitting by designation, held that:
1) Tribe had standing to bring action challenging Forest Service's action;
2) environmental group had standing to bring action challenging Forest Service's action;;
3) Forest Service's conclusion that uranium mining company had valid existing rights to operate uranium mine constituted final agency action;
4) Environmental Impact Statement (EIS) was not required;
5) Forest Service's determination did not constitute undertaking under National Historic Preservation Act of 1966 (NHPA), and thus consultation was not required; and
6) environmental group lacked prudential standing to challenge merits of Forest Service's action under Mineral Act or FLPMA.
Affirmed.
*Synopsis: Miner and trade associations brought actions challenging Department of Interior's withdrawal of more than one million acres of National Forest System lands from mining location and entry. The United States District Court for the District of Arizona, David G. Campbell, J., 2014 WL 4904423 and 933 F.Supp.2d 1215, granted summary judgment for government. Miner and associations appealed.
*Holdings: The Court of Appeals, Berzon, Circuit Judge, held that:
1) provision of Federal Land Policy and Management Act (FLPMA) permitting Congress to block withdrawals of land from mining location and entry by concurrent resolution, rather than in conformity with express procedures of Constitution's prescription for legislative action, was unconstitutional;
2) issue of whether unconstitutional legislative veto embedded in FLPMA was severable from large-tract withdrawal authority delegated to Secretary of Department of Interior in that same subsection was properly before court even though statutory legislative veto was not exercised by Congress;
3) miner and trade associations had standing to raise issue of whether unconstitutional legislative veto embedded in FLPMA was severable;
4) unconstitutional legislative veto embedded FLPMA was severable from large-tract withdrawal authority delegated to Secretary in that same subsection, and therefore invalidating legislative veto provision did not affect Secretary's withdrawal authority;
5) Secretary's decision to withdraw large tract of land to protect water resources in Grand Canyon watershed and Colorado River from possible water contamination was not arbitrary, capricious, or not in accordance with the law;
6) Secretary could withdraw large tracts of land under FLPMA in interest of preserving cultural and tribal resources;
7) withdrawal to protect “other resources,” including visual resources and wildlife was not arbitrary, capricious; and
8) agency's findings regarding quantity of uranium in area to weigh economic impact of withdrawal were not arbitrary, capricious.
Affirmed
Related News Stories: Appeals Court upholds Grand Canyon Uranium Mining Ban (Center for Biological Diversity) 12/12/17
*Synopsis: In proceedings to adjudicate fishing rights reserved by 1855 Treaty of Point Elliott, Lower Elwha Band of S'Klallams, Jamestown Band of S'Klallams, Port Gamble Band of S'Klallams, and Skokomish Indian Tribe sought determination that Lummi Indian Tribe was violating 1974 District Court opinion in United States v. Washington, Boldt, J., 384 F.Supp. 312, by fishing in areas outside its adjudicated usual and accustomed grounds and stations. Following entry of summary judgment order in 1990 in favor of plaintiff tribes determining that 1974 opinion did not intend to include disputed areas within Lummi Tribe's usual and accustomed grounds and stations, the United States District Court for the Western District of Washington, Barbara Jacobs Rothstein, J., dismissed action. Plaintiff tribes appealed. The Court of Appeals, 235 F.3d 443, affirmed in part and reversed in part. On remand, the United States District Court for the Western District of Washington, Ricardo S. Martinez, J., 2012 WL 4846239, entered summary judgment on Klallam Tribes' request for determination that Lummi Tribe's usual and accustomed grounds did not include eastern portion of Strait of Juan de Fuca or waters west of Whidbey Island. The Court of Appeals, Bea, Circuit Judge, 763 F.3d 1180, reversed and remanded. On remand, the District Court, Ricardo S. Martinez, J., 2015 WL 4405591, entered summary judgment in favor of the Lower Elwha Klallam Tribe. Lummi Tribe appealed.
*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that:
1) District Court's finding in United States v. Washington, 384 F.Supp. 312, that the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, was ambiguous as to whether the usual and accustomed fishing places of the Lummi Indians included the waters west of Whidbey Island, and
2) waters west of Whidbey Island were encompassed in usual and accustomed fishing places of the Lummi Indians.
Reversed and remanded.
Legal Topics: Diversity Jurisdiction; Tribal Sovereign Immunity
Legal Topics: Gaming; Indian Reservation
*Synopsis: Indian tribe brought action seeking declaratory judgment that state court lacked subject matter jurisdiction to hear non-Indian's breach of contract case against it, and injunction to halt state court proceedings. The United States District Court for the District of Utah, No. 2:16-CV-00579-RJS, dismissed complaint, and tribe appealed.
*Holding: The Court of Appeals, Hartz, Circuit Judge, held that district court had subject matter jurisdiction over action.
Reversed and remanded.
Legal Topics: Exhaustion of Tribal Remedies; Sentencing
Legal Topics: Tribal Membership; Federal Recognition
*Synopsis: Indian tribe sought review of, inter alia, decision by Indian Health Service (IHS) rejecting tribe's application for reimbursement under federal catastrophic health emergency fund (CHEF) for health services benefits that were provisionally paid by tribally-funded self-insurance plan, but ultimately determined by tribe through coordination of benefits system to be eligible for coverage under contract health services (CHS) program operated by tribe under Indian Self-Determination and Education Assistance Act (ISDEAA) compact. Tribe and IHS moved for summary judgment.
*Holdings: The District Court, Rosemary M. Collyer, J., held that:
1) de novo standard of review, rather than Administrative Procedure Act's (APA) arbitrary and capricious standard, applied;
2) tribe's self-insured health services plan was not excluded from qualifying as payor of last resort under Indian Health Care Improvement Act (IHCIA);
3) plan's exclusionary clause did not prevent plan from qualifying as payor of last resort under IHS' policy exception to its regulation listing IHS as payor of last resort;
4) IHS' interpretation of its payor-of-last-resort regulation went beyond purpose of regulation;
5) IHCIA provision prohibiting contract remedies with respect to CHEF benefits did not preclude tribe's action; and
6) remand to IHS was warranted.
Tribe's motion granted in part and denied in part; IHS' motion denied; remanded to IHS.
Legal Topics: Tribal Taxation - Real Estate
*Synopsis: In litigation over fishing rights in Western Washington, Indian tribe commenced subproceeding to determine usual and accustomed (U & A) fishing grounds of two other tribes pursuant to Treaty of Olympia. Following bench trial, the United States District Court for the Western District of Washington, Nos. 2:09–sp–00001–RSM, 2:70–cv–09213–RSM, Ricardo S. Martinez, Chief Judge, determined tribes' rights and fishing boundaries, 129 F.Supp.3d 1069, and corrected scrivener's error, 2015 WL 10853926. Plaintiff and state appealed.
*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that:
1) district court did not clearly err in determining that word “fish,” as used in Treaty, encompassed sea mammals;
2) tribes were not required to provide evidence of specific locations that they regularly and customarily hunted whales or seals; and
3) district court incorrectly drew longitudinal boundaries of tribes' U & A fishing grounds.
Affirmed in part, reversed in part, and remanded.
*Synopsis: County brought action against Department of Interior (DOI), challenging record of decision announcing its intention to take land into trust for benefit of Indian Tribe and allowing Tribe to build a casino on land. Tribe intervened as defendant. The United States District Court for the Eastern District of California, Troy L. Nunley, J., 136 F.Supp.3d 1193, granted summary judgment to DOI and Tribe. County appealed.
*Holdings: The Court of Appeals, Susan P. Graber, Circuit Judge, held that:
1) as matter of first impression, phrase “recognized Indian tribe now under Federal jurisdiction,” in IRA includes all tribes that are “recognized” at the time of the relevant decision and that were “under Federal jurisdiction” at the time the IRA was passed;
2) DOI's interpretation of phrase “under Federal Jurisdiction” in provision of Indian Reorganization Act (IRA) defining an “Indian” entitled to IRA's benefits was best interpretation;
3)
DOI's determination that tribe was “under Federal jurisdiction” when IRA was passed was not arbitrary and capricious; and
4) grandfathering provision in DOI regulation implementing Indian Gaming Regulatory Act's (IGRA) “restored tribe” exception was in accordance with IGRA.
Affirmed.
Related News Stories: Second federal appeals court chimes in with decision favoring tribal homelands (Indianz) 10/12/17
*Synopsis: Hunter who sought to use hovercraft to reach moose hunting grounds brought action against National Park Service (NPS), challenging its application of regulation that prohibited use of hovercraft to National Preserve in Alaska. The United States District Court for the District of Alaska, H. Russel Holland, J., 2013 WL 5888230, granted summary judgment for NPS. Hunter appealed. The Court of Appeals, Nguyen, Circuit Judge, 768 F.3d 1066, affirmed in part, vacated in part, and remanded. The Supreme Court, Roberts, Chief Justice, 136 S.Ct. 1061, granted certiorari and vacated and remanded Court of Appeals' decision.
*Holdings: On remand, the Court of Appeals, Jacqueline H. Nguyen, Circuit Judge, held that regulation preventing use of hovercraft in federally managed conservation areas applied to river in National Preserve.
Affirmed.
*Synopsis: Indian tribe alleging that another tribe's casino violated Indian Gaming Regulatory Act (IGRA) and gaming compact that other tribe negotiated with state, and that state and its governor violated compact by refusing to enforce its provisions. Tribe moved for preliminary injunction, and other tribe moved for judgment on pleadings.
*Holdings: The District Court, James D. Peterson, J., held that:
1) tribe's claims accrued when state approved of casino and other tribe began operating it, and
2) continuing violations doctrine did not extend statutory period.
Motion for judgment on pleadings granted.
Related News: Richard Peterson: Brettt Kavanaugh threatens tribal sovereignty (Indianz) 9/10/18
Legal Topics: Jurisdiction
Legal Topics: Tribal Sovereign Immunity
Legal Topics: Patents; Tribal Sovereign Immunity
Related News Stories: IP Subcommittee to hold hearing on sovereign immunity in patent cases (House of Representatives Judiciary Committee) 11/2/17, Mylan invalidates Allergan's patents on Restasis (Cision PR Newswire) 10/16/17
*Synopsis: Lessees, who had entered into five agricultural leases with Indian tribe, brought action against United States, alleging that government breached leases by terminating them and ordering lessees to vacate land, and that government's actions constituted taking without just compensation under Fifth Amendment. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim.
*Holdings: The Court of Federal Claims, Damich, Senior Judge, held that:
1) there was no privity of contract between United States and lessees;
2) conversation between lessees and government official could not have created implied in fact contract;
3) government lacked authority to enter into implied in fact contract to allow lessees to continue farming after their leases were cancelled; and
4) because lessees alleged that government violated a regulation, rather than acted lawfully pursuant to a regulation, in terminating leases, lessees could not state Fifth Amendment takings claim
Motion granted.
*Synopsis: Indian tribes brought action against Army Corps of Engineers alleging it failed to comply with National Environmental Policy Act (NEPA) in determining that crude-oil pipeline would not have a significant environmental impact. After finding three discrete deficiencies in Corps' NEPA analysis and remanding to Corps for further evaluation, 255 F.Supp.3d 101, District Court requested briefing on whether or not to vacate Corps' environmental assessment and easement granted for pipeline pending action on remand..
*Holdings: The District Court, James E. Boasberg, J., held that:
1) there was a serious possibility Corps would be able to substantiate its prior determination that pipeline's effects on quality of the human environment would not be highly controversial;
2) there was a serious possibility that Corps would be able to substantiate its prior determination that pipeline would not have significant impacts on tribes' hunting and fishing rights; and
3)
Corps' analysis of environmental justice impacts of chosen location for pipeline to cross river was not so lacking as to cast serious doubt on Corps' decision to issue EA rather than EIS.
Ordered accordingly.
*Synopsis: Defendant was convicted in the United States District Court for the District of Arizona, No. 3:11-cr-08130-GMS-1, G. Murray Snow, J., under the Major Crimes Act, for sexual assault on his mother-in-law. Defendant appealed.
*Holdings: The Court of Appeals held that:
1) admission of unauthenticated certificate of Indian blood was harmless;
2) evidence was sufficient to support the district court's jurisdiction over defendant's prosecution;
3) district court's error in failing to set forth two-pronged test for determining whether a defendant was an “Indian” within the meaning of the Major Crimes Act, in instructing the jury, was harmless;
4) defendant's question, “I have the lawyer or something?” was a question about the right to an attorney, rather than an affirmative request for an attorney, under Miranda;
5) district court did not fail to consider sanctions against the government for discovery violations;
6) application of a vulnerable victim enhancement was reasonable; and
7) district court's failure to explain its decision to impose a lifetime term of supervised release was not plain error, and the sentence was not unreasonable.
Affirmed.
*Synopsis: Upper Skagit Indian Tribe filed Request for Determination as to the geographic scope of the Suquamish Indian Tribe's usual and accustomed fishing grounds and stations as determined by the United States District Court for the Western District of Washington, Boldt, J., 384 F.Supp. 312., and 459 F.Supp. 1020, seeking determination that determination did not include Chuckanut Bay, Samish Bay, and a portion of Padilla Bay where the Upper Skagit has its own court-approved fishing grounds and stations determination. The United States District Court for the Western District of Washington, Ricardo S. Martinez, Chief District Judge, D.C. Nos. 2:14-sp-00001-RSM 2:70-cv-09213-RSM, entered summary judgment finding that the District Court did not intend to include the contested waters in its determination and entered summary judgment in Upper Skagit Tribe's favor. Suquamish Tribe appealed.
*Holdings: The Court of Appeals, Hawkins, Circuit Judge, held that Upper Skagit Indian Tribe sufficiently met its burden to establish that there was no evidence before district court judge that Suquamish Indian tribe fished or traveled through contested areas, and thus Upper Skagit Tribe's usual and accustomed fishing grounds and station determination did not include those areas.
Affirmed.
*Synopsis: Industry organization petitioned for Administrative Procedure Act (APA) review of Bureau of Land Management (BLM) regulation governing hydraulic fracturing on lands owned or held in trust by the United States, seeking preliminary injunction. States of Wyoming and Colorado filed separate petitions for review. Following consolidation of the cases, North Dakota, Utah, and Ute Indian Tribe intervened, opposing the regulation, and multiple citizen groups intervened, defending the regulation. The United States District Court for the District of Wyoming, No. 2:15-CV-00043-SWS, Scott W. Skavdahl, J., 2016 WL 3509415, entered order invalidating the regulation. BLM and citizen group intervenors appealed.
*Holdings: The Court of Appeals, Briscoe, Circuit Judge, held that:
1) appeal from district court's order was unfit for review;
2) withholding review of district court's order would not impose hardship on BLM or citizen group intervenors;
3) dismissal, rather than abatement, of appeal was warranted; and
4) acatur of district court's order invalidating regulation was warranted.
Appeals dismissed as prudentially unripe; vacated and remanded with instructions.
Hartz, Circuit Judge, concurred and dissented, and filed separate opinion.
*Synopsis: Federal government brought action against wind company that was building wind farm on Indian land, alleging that its excavation of soil, sand, and rock to place cement foundations to support wind turbines constituted “mining” that required a federally-approved mineral lease. The United States District Court for the Northern District of Oklahoma, James H. Payne, J., 2015 WL 5775378, granted summary judgment to wind company. Indian tribe sought to intervene and appeal.
*Holdings: The Court of Appeals, Ebel, Circuit Judge, held that:
1) Indian tribe was entitled to appeal district court's grant of summary judgment to wind company without having intervened in district court;
2) tribe's claim was not precluded under doctrine of res judicata;
3) de minimis exception in regulation requiring mineral leases on indian land did not apply to wind company's excavation;
4) definition of “mining” in regulation requiring mineral leases on Indian land is not limited to commercial extraction of minerals, but also includes acting upon the minerals to exploit the minerals themselves; and
5) wind company's excavation constituted mineral development.
Reversed and remanded.
Related News Stories: Another Indian law case in limbo as high court turns to Trump again (Indianz) 5/14/18, Court holds project construction constitutes 'mining' on tribal lands (JD Supra) 9/27/17, Appeals court reverses judge's decision allowing wind developers to dig on Osage land (Tulsa World) 9/18/17
*Synopsis: United States sued Truckee–Carson Irrigation District (TCID), which managed project controlling diversions from Truckee and Carson rivers, TCID's board members, and all water users in project as class, seeking to recoup more than one million acre-feet of water unlawfully diverted in excess of applicable operating criteria and procedures (OCAPs) and to detriment of Pyramid Lake Paiute Tribe. After intervention by tribe as plaintiff, the United States District Court for the District of Nevada, D.C. No. 3:95–cv–00757–HDM, Howard D. McKibben, J., awarded government approximately 200,000 acre-feet of water and postjudgment interest, and denied TCID attorney fees under Equal Access to Justice Act (EAJA). Appeals were taken. The Court of Appeals, Schroeder, Circuit Judge, 602 F.3d 1074, affirmed in part, vacated in part, and remanded. On remand, the District Court, McKibben, J., recalculated amount of excess diversions for four years. Appeals were taken. The Court of Appeals, Schroeder, Circuit Judge, 723 F.3d 1029, ruled that extraordinary remedy of correcting its prior mandate was warranted. On remand, the District Court, McKibben, J., 2015 WL 2185551, determined amount of water subject to recoupment for two years, and subsequently, 2016 WL 304309, denied government's and tribe's recoupment claims for those two years. Appeal was taken.
*Holdings: The Court of Appeals held that:
1) tribe's claims were not barred by doctrine of res judicata;
2) tribe's appellate arguments were not foreclosed by law of the case;
3) tribe did not waive appellate arguments supporting claims;
4) recoupment was available for excess diversions during portions of two years; and
5) tribe was entitled to equitable remedy of recouping 8,300 acre-feet of water for two years.
Vacated and remanded.
*Synopsis: Indian tribe and three tribal housing entities that qualified for and received Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) block grants brought suit under the Tucker Act and Indian Tucker Act, alleging that Department of Housing and Urban Development (HUD) improperly deprived them of grant funds to which they were entitled. The United States Court of Federal Claims, Wiese, J., 99 Fed.Cl. 584, dismissed Tribe's procedural claims. The Court of Federal Claims, 106 Fed.Cl. 623, Wiese, J., subsequently vacated its decision and subsequently, 112 Fed.Cl. 353, Wiese, J., entered partial summary judgment in Government's favor. The Court of Federal Claims, No. 1:08-cv-00848-EGB, Eric G. Bruggink, Senior Judge, subsequently reaffirmed its prior ruling that NAHASDA was money mandating, giving Claims Court jurisdiction over claims. Government filed interlocutory appeal.
*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
1) NAHASDA was not money-mandating statute, and
2) HUD's decision not to grant block grants to Tribe did not constitute illegal exaction.
Vacated and dismissed.
Legal Topics: Indian Water Rights
*Synopsis: Requester, an Indian tribe, brought action against Department of the Interior and its component agencies under Freedom of Information Act (FOIA), seeking response to FOIA requests it had filed regarding documents pertaining to another tribe that sought to open a competing gaming facility. Parties filed cross motions for summary judgment.
*Holdings: The District Court, Beryl A. Howell, Chief Judge, held that:
1) internal records of environmental contractor that worked on competing facility were “created or obtained” by agencies; but
2) agencies did not control contractor's internal records at time of FOIA request, which thus were not agency records under FOIA;
3) documents withheld were “commercial” within meaning of FOIA exemption applicable to privileged or confidential commercial documents;
4) disclosure of commercial documents did not pose serious risk to government's ability to receive such information in future, but
5) disclosure of documents created a substantial likelihood of competitive harm to applicant tribe, so documents were exempt from disclosure under FOIA; and
6) agencies did not engage in policy or practice of FOIA noncompliance.
Department and officers' motion granted in part and denied in part; requester's motion denied.
*Synopsis: Farmers filed class actions against United States, claiming that Bureau of Reclamation effected Fifth Amendment taking and violated their water rights under Klamath River Basin Compact between California and Oregon, by temporarily terminating water deliveries to farmers for irrigation in order to preserve habitat of three species of fish protected under Endangered Species Act (ESA) and to comply with government's tribal trust obligations to several Indian tribes. Following consolidation of actions and class certification, parties cross-moved for summary judgment.
*Holdings: The Court of Federal Claims, Marian Blank Horn, J., held that:
1) claims by shareholders in corporation that supplied irrigation water were barred;
2) claims by successors to signors of water rights applications were not barred;
3) claims by successors to signors of repayment contracts were not barred;
4) claims by some successors to signors of Warren Act contracts were barred;
5) claims by successors to leaseholders of land in wildlife refuges were barred;
6) termination of water deliveries did not effect taking or violate compact as farmers' water rights were subordinate to tribes' rights.
Defendant's motion granted.
Related News Stories: Trump official says government won't stand in the way of removing Klamath dams (The Sacramento Bee) 10/9/1, Judge denies irrigators special treatment, millions in drought payments (Earth Justice) 10/2/17
Legal Topics: Tribal Jurisdiction - Permit Fees
Related News Stories: Tribes claim victory in US District Court (Local News 8) 9/29/17
Legal Topics: Navajo-Hopi Settlement Act - Relocation Benefits
*Synopsis: Chapter 11 trustee brought adversarial proceeding against tribe, seeking to avoid and recover the value of certain allegedly fraudulent transfers. The bankruptcy court denied tribe's motion to dismiss. Tribe appealed.
*Holdings: The District Court, William B. Shubb, J., held that:
1) Bankruptcy Code provision abrogating the sovereignty of any governmental unit, abrogated tribe's sovereign immunity with regard to trustee's adversarial proceeding against tribe under provision allowing trustee to avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an allowable unsecured claim;
2) due to explicit abrogation of sovereign immunity in Bankruptcy Code provision abrogating the sovereignty of any governmental unit, in order to bring a claim against tribe under provision allowing trustee to avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an allowable unsecured claim, trustee needed only identify an unsecured creditor who, but for sovereign immunity, could have brought claim against tribe;
3) such interpretation in no way altered state law or created a new cause of action, and thus, trustee could bring such claim against tribe;
4) trustee's service of summons and complaint for adversarial proceeding against tribe, by mail, was effective; and
5) trustee demonstrated good cause for delay in service of first amended complaint against tribe, and thus, the bankruptcy court did not abuse its discretion in extending the time for service.
Affirmed.
Legal Topics: State Recognition of Tribes
Legal Topics: Right to Counsel; Right to Jury Trial
*Synopsis: Indian tribe brought action, alleging that state was not entitled to collect use tax non-gaming purchases by individuals that were not tribe members at casino that was subject of compact pursuant to the Indian Gaming Regulatory Act (IGRA), and related operations, as well as nearby convenience store. Tribe and state both moved for summary judgment.
*Holdings: The District Court, Lawrence L. Piersol, J., held that:
1) IGRA preempted state from imposing use tax on purchases made at casino and related operations that facilitated gaming activities;
2) IGRA did not preempt state's imposition of use tax on purchases at convenience store by nonmembers;
3) state's imposition of use tax on nonmembers for purchases at store was not preempted under White Mountain Apache Tribe v. Bracker, 100 S.Ct. 2578;;
4) state's imposition of use tax on purchases at store by nonmembers was not discriminatory;
5) burden upon tribe to collect and enforce use tax on nonmember purchases at store was not preempted by federal law, nor did it infringe upon tribal sovereignty; and
6) State was not entitled to condition issuance of liquor license to casino and related operations upon remittance of use tax for nonmember purchases at store.
Motions granted in part and denied in part.
Related News Stories: Flandreau Santee Sioux tribe receives partial victory in South Dakota tax case (JD Supra) 10/12/17, Flandreau tribe wins victory over state tax man (Argus Leader) 9/20/17
Legal Topics: Lands; Gaming
*Synopsis: Individuals and putative American Indian tribe to which individuals alleged they belonged brought action to compel various federal entities to acknowledge tribe's existence. Plaintiffs moved for a temporary restraining order, followed by a preliminary injunction, to stop an election to amend the constitution of a different tribe, which plaintiffs asserted would impair their rights.
*Holdings: The District Court, Rudolph Contreras, J., held that:
1) individuals and putative tribe failed to demonstrate irreparable injury, in the form of litigation costs, absent the issuance of a temporary restraining order of preliminary injunction enjoining a vote on proposed amendments to the constitution of a different tribe, as required to obtain preliminary injunctive relief;
2) individuals and putative tribe failed to demonstrate irreparable injury from loss of pre-election right to request or object to election to amend the constitution of a different tribe, as would warrant preliminary injunctive relief enjoining the election; and
3) individuals and putative tribe failed to demonstrate irreparable injury from proposed amendments to the constitution of a different tribe, as would warrant preliminary injunctive relief enjoining vote on the amendments.
Motion Denied.
*Synopsis: Defendant was convicted in the United States District Court for the District of South Dakota, Roberto A. Lange, J., of assault with a dangerous weapon, simple assault, being a prohibited person in possession of a firearm, and using a firearm during and in relation to a crime of violence. Defendant appealed.
*Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
1) defendant was represented by counsel in tribal-court prosecution, and thus, his tribal conviction qualified as a predicate offense to support conviction for being prohibited person in possession of firearm, and
2) government did not violate Brady by its disclosure, on the first day of trial, of police report containing statements of undisclosed witnesses.
Affirmed
*Synopsis: Nonmember former contractor brought action against Indian tribe to enjoin tribal court proceedings seeking declaratory judgment that its contract with him was invalid. Tribe filed counterclaims against contractor and third party complaint against judge presiding over contractor's state court action seeking injunction against state court proceedings. The United States District Court for the District of Utah, No. 2:16-CV-00958-CW, Clark Waddoups, J., granted contractor's motion for preliminary injunction, and dismissed tribe's counterclaims and third party claims. Tribe appealed.
*Holdings: The Court of Appeals, Hartz, Circuit Judge, held that:
1) contractor failed to establish substantial likelihood of success on merits of his claim that tribal-exhaustion rule did not bar his state court action, and
2) tribe was not acting as “person” within meaning of § 1983 when it sought to enjoin contractor's state court action.
Affirmed in part, reversed in part, and remanded.
*Synopsis: Developer and Indian tribe sued city for breach of land disposition agreement and for breach of implied covenant of good faith and fair dealing. The United States District Court for the Northern District of California, No. 4:12-cv-01326-YGR, Yvonne Gonzalez Rogers, J., 5 F.Supp.3d 1142, dismissed claims and awarded legal fees to city. Tribe and developer appealed.
*Holdings: The Court of Appeals held that:
1) tribe and developer stated actionable claim against city for violation of implied covenant of good faith and fair dealing, and
2) complaint plausibly alleged that city did not negotiate in good faith and thus breached agreement.
Affirmed in part, reversed in part, and remanded.
*Synopsis: Indian tribe brought action seeking declaratory judgment that state court lacked subject-matter jurisdiction over its former energy and mineral department manager's breach of contract action against it, that contract was void, and that there was no valid waiver of tribal immunity. The United States District Court for the District of Utah, No. 2:16-CV-00579-RJS, dismissed complaint, and tribe appealed.
*Holdings: The Court of Appeals, Hartz, Circuit Judge, held that district court had federal question jurisdiction over tribe's action.
Reversed and remanded.
Legal Topics: Double Jeapordy
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*Synopsis: After Oklahoma state prisoner's conviction for first-degree murder and death sentence were affirmed on appeal, 47 P.3d 876, he filed petition for writ of habeas corpus. The United States District Court for the Eastern District of Oklahoma, D.C. No. 6:03-CV-00443-RAW-KEW, White, J., 497 F.Supp.2d 1257, denied prisoner's petition, and, after prisoner filed second habeas petition, the District Court, D.C. No. 6:12-CV-00191-RAW-KEW, White, J., 2015 WL 2094548, denied prisoner's second petition. Prisoner appealed.
*Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
1) prisoner's claim was governed by clearly established federal law;
2) Oklahoma state appellate court rendered merits decision on prisoner's claim that state court lacked jurisdiction because crime occurred on Indian land;
3) Oklahoma state appellate court's decision was contrary to clearly established federal law; and
4 )Congress did not disestablish Indian reservation, and thus Oklahoma state court lacked jurisdiction to prosecute defendant for murder that occurred on reservation.
Reversed and remanded.
Related News Stories: Indian Country awaits busy season at Supreme Court amid big change (Indianz) 8/15/18, Muscogee Nation clashes with state in reservation boundary dispute (Indianz) 5/21/18, Appeals court won't revist historic decision in Muscogee Nation boundary case (Indianz) 11/9/17
Enerplus Resources Corporation v. Wilkinson
865 F.3d 1094
No. 16-3715
United States Court of Appeals,
Eighth Circuit.
August 2, 2017
*Synopsis: Oil and gas producer brought action against member of Indian tribe, and others, seeking return of mistakenly overpaid mineral royalties and a declaration that tribal court lacked jurisdiction over the dispute. The United States District Court for the District of North Dakota, Daniel L. Hovland, J., 2016 WL 8737869, preliminarily enjoined member from proceeding with his case in tribal court alleging underpayment and, 2016 WL 8737872, denied his motion to stay pending appeal. Member appealed.
*Holdings: The Court of Appeals, Smith, Chief Judge, held that:
1) District Court was within its discretion in preliminarily enjoining member from proceeding with his case in tribal court, and
2) producer had standing to enforce forum selection clause in settlement agreement.
Affirmed
*Synopsis: Cherokee tribe brought action seeking declaration that descendants of freed non-Indian slaves no longer had rights to citizenship in tribe. Department of Interior (DOI) and putative class of freed slaves intervened as defendants. DOI filed counterclaim for declaration that freed slaves retained tribal citizenship under treaty. Parties filed cross-motions for summary judgment.
*Holdings: The District Court, Thomas F. Hogan, Senior District Judge, held that:
1) term “all,” as used in treaty that guaranteed “all the rights of native Cherokees” to freed slaves of the tribe, was unambiguous in its scope and covered the entirety of rights with no limitation whatsoever;
2) treaty gave qualified free salves the right to citizenship in Cherokee Nation to same extent that native Cherokees had; and
3) extant descendants of freed slaves, whose ancestors had resided in Cherokee Territory within six months of ratification, were entitled to rights of Cherokee citizens, including citizenship.
Ordered accordingly.
Related News Stories: Freedmen, supports plan next steps in tribal recognition process (Tulsa World) 11/11/17, Cherokee Nation processing freedmen citizenship applications (Times Record) 9/8/17, Judge rules that Cherokee Freedmen have right to tribal citizenship (NPR) 8/31/17, Freedmen win landmark ruling confirming right to Cherokee Nation citzenship (Indianz) 8/30/17
Legal Topics: Civil Jurisdiction
Legal Topics: Gaming
*Synopsis: Indian Tribe brought action against county, sheriff, and county district attorney, following arrest of Tribal police officer, seeking declaration that Tribe had right to investigate violations of tribal, state, and federal law, and to detain and transport or deliver a non-Indian violator encountered on the reservation to the proper authorities, and seeking injunction prohibiting defendants from arresting, criminally charging, interfering with, or threatening tribal police department officers who exercised their lawful duties. The United States District Court for the Eastern District of California, No. 1:15-CV-00367-GEB-JLT, Garland E. Burrell, Jr., Senior District Judge, 2015 WL 4203986, dismissed. Tribe appealed.
*Holdings: The Court of Appeals, Mary H. Murguia, Circuit Judge, held that:
1) district court's order dismissing Tribe's action for lack of jurisdiction was final appealable order;
2) Tribe adequately pleaded federal question;
3) Indian Law Enforcement Reform Act (ILERA) did not displace federal common law upon which Tribe's complaint relied;
4) Tribe had standing to bring action;
5) action was ripe; and
6) action was not mooted by Tribe's letter responding to county sheriff's cease and desist letter.
Reversed and remanded.
Related News Stories: Ninth Circuit sides with Paiute Tribe in disupte with Inyo County (Court House News Service) 7/20/17
*Synopsis: Organization of property owners brought action against Assistant Secretary of Bureau of Indian Affairs, among others, challenging BIA's decision that organization's members were trespassing on tribal lands by using purported rights-of-way to access their properties. The United States District Court for the District of New Mexico, James O. Browning, J., 161 F.Supp.3d 1020, dismissed the action. Organization appealed.
*Holdings: The Court of Appeals, Timothy M. Tymkovich, Chief Judge, held that:
1) APA claim was not ripe for review;
2) Fifth Amendment takings claim was premature; and
3) organization did not have private right of action to bring claim that BIA's actions violated equal protection rights granted to members through treaty.
Affirmed.
*Synopsis:Indian tribe brought action against state of New Mexico, Governor of New Mexico, and members of New Mexico Gaming Control Board, alleging that New Mexico failed to negotiate new gaming compact in good faith under Indian Gaming Regulatory Act (IGRA) and that state officials conspired to deprive tribe of federal right to be free of state jurisdiction over activities that occurred on tribal lands. The United States District Court for the District of New Mexico, Robert C. Brack, J., 2015 WL 10818855, granted Indian tribe's motion for temporary restraining order (TRO) and preliminary injunction barring defendants from taking regulatory enforcement actions against non-Indian, state-licensed gaming manufacturer vendors doing business with Indian tribe's gaming enterprises. While defendants' interlocutory appeal from order granting injunction was pending, the District Court, James O. Browning, J., 214 F.Supp.3d 1028, entered order staying preliminary injunction and dismissing action, and then denied motion by tribe to vacate district court's order, 221 F.Supp.3d 1289. The United States District Court for the District of New Mexico, No. 1:15-CV-00625-JB-GBW, James O. Browning, J., 2017 WL 2266857, denied tribe's motion to restore preliminary injunction pending appeal. Tribe appealed.
*Holdings: The Court of Appeals, Kelly, Circuit Judge, held that:
1) de novo review applied to issue on appeal of whether district court had jurisdiction to proceed to merits given interlocutory appeal of preliminary injunction and, even if it did, of whether it erred in concluding that IGRA did not preempt New Mexico's regulatory enforcement actions;
2) district court could reach merits of action even though preliminary injunction was pending on appeal;
3) traditional preemption analysis that looked to whether federal law expressly or implicitly preempted state law applied to New Mexico's regulatory enforcement actions;
4) IGRA did not expressly preempt New Mexico's regulatory enforcement actions against non-Indian, state-licensed gaming manufacturer vendors doing business with Indian tribe's gaming enterprises; and
5) IGRA did not implicitly field or conflict preempt New Mexico's off-reservation actions.
Affirmed.
*Synopsis: Nonmember police officers brought action against Indian tribe, its business committee, tribal court, acting chief judge of tribal court, and parents of person killed by officers, seeking to halt allegedly unlawful exercise of tribal court jurisdiction over underlying action that was brought against them by tribe, decedent's estate, and parents alleging wrongful death, trespass, and other torts. The United States District Court for the District of Utah, No. 2:15-CV-00300-DB, Dee Benson, J., denied defendants' motions to dismiss, and granted officers' motion for preliminary injunction. Defendants appealed.
*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
1) tribe's trespass claim fell within jurisdiction of tribal court under Montana v. United States exception to principle that tribe generally lacked authority to regulate nonmember conduct;
2) tribe's trespass claim fairly could be called catastrophic for tribal self-government, as required to fall within jurisdiction of tribal court under Montana v. United States exception;
3) tribal exhaustion was not required for claims against nonmember police officers alleging false imprisonment, false arrest, assault and battery, wrongful death, spoliation of evidence, and conspiracy;
4) state interest was not implicated by nonmember state police officers pursuing Indian tribe member on tribal land for on-reservation offense, and thus tribal jurisdiction was not barred over trespass claim against officers;
5) bad faith exception from exhaustion of available tribal court remedies was not available as to trespass claim against nonmember police officers;
6) Ex parte Young exception to sovereign immunity applied to tribal official, sued in his official capacity, in suit seeking to halt allegedly unlawful exercise of tribal court jurisdiction; and
7) tribe, its business committee, and tribal court were not subject to Ex parte Young exception, and thus were entitled to tribal sovereign immunity.
Vacated and remanded.
*Synopsis: Former employees filed qui tam action under False Claims Act (FCA) alleging that college located on Indian reservation, college foundation, and college's board members knowingly provided false progress reports on students in order to keep grant monies coming from Department of Health and Human Services and Indian Health Service. The United States District Court for the District of Montana, No. 9:12-cv-00181-BMM, Brian M. Morris, J., dismissed complaint, and employees appealed..
*Holdings: The Court of Appeals, Kozinski, Circuit Judge, held that:
1) Indian tribe was not "person" subject to suit under FCA, and
2) issue of whether college was arm of tribe was matter to be addressed in first instance by district court following jurisdictional discovery.;
Reversed and remanded.
Related News Stories: Ninth Circuit remands False Claims Act against tribal college for determinatin of sovereign status (The National Law Review) 7/21/17
*Synopsis: Provider of management and consulting services for Native American hospitality and gaming projects brought action against federally recognized Native American tribe located in California, and a wholly-owned unincorporated arm of tribe that operated tribe's casino, alleging state law claims, including breach of management contract, fraud, and intentional interference with prospective economic advantage, seeking an award of compensatory damages, restitutionary damages, punitive damages, and attorney fees and costs. Tribe moved to dismiss for lack of subject matter jurisdiction.
*Holdings: The District Court, Dale A. Drozd, J., held that:
1) state law claims were not completely preempted by the Indian Gaming Regulatory Act (IGRA), and thus claims did not support federal question jurisdiction, and
2) claims did not implicate a substantial question of federal law sufficient to trigger federal question jurisdiction.
Motion granted.
Legal Topics: Exhaustion of Tribal Remedies; Non-Indian Fee Simple Lands
Legal Topics: Federal Tort Claims Act; Personal Injuries
*Synopsis: Navajo Nation and individual tribal members brought action against county, alleging that the redistricting of county commission and school board voting districts was racially discriminatory in violation of Equal Protection Clause of Fourteenth Amendment. Summary judgment was granted in favor of Navajo Nation as to liability, 162 F.Supp.3d 1162, and parties submitted remedial plans.
*Holdings: The District Court, Robert J. Shelby, J., held that:
1) county adopted county-wide policy of prioritizing racial targets above all other traditional redistricting criteria;
2) race was predominant factor motivating county to place significant number of voters within or without school board election district;
3) race predominated in county's choice to put significant number of voters within or without county commission voting district based on race;
4) race predominated over traditional redistricting principles in county commission voting district;
5) evidence of county's overarching proportionality goal was not sufficient to show that race was predominant factor motivating county to place significant number of voters within or without county commission voting district;
6) county's consideration of race in redistricting on basis that it was permissible without identifying any governmental interest it sought to achieve was not narrow tailoring of its decision of allocating voters to various voting districts to achieve compelling government interest; and
7) county could not use race in order to satisfy Voting Rights Act.
Ordered accordingly.
Related News Stories: Settlement announced in Navajo Nation Human Rights Commission v. San Juan County (The Independent) 2/22/18, San Juan County election maps must be redrawn again, U.S. judge rules (The Salt Lake Tribune) 7/21/17
Legal Topics: Official Tribal Government
*Synopsis: American Indian tribe brought action against state of Maine and various state officials, in response to opinion of state attorney general regarding regulatory jurisdiction of tribe and state related to hunting and fishing on stretch of river, seeking declaratory judgment clarifying boundaries of tribe's reservation and tribal fishing rights on river. United States intervened on its own behalf and as a trustee for tribe, and private interests, towns and other political entities intervened in support of state defendants. The United States District Court for the District of Maine, George Z. Singal, J., 151 F.Supp.3d 181, ruled that tribe's reservation included river's islands but not its waters, and sustenance fishing rights provided in reservation's implementing statute allowed tribe to take fish for sustenance in entirety of relevant stretch of river, and issued declaratory relief as to both points. Parties cross-appealed.
*Holdings:The Court of Appeals, Lynch, Circuit Judge, held that:
1) under Maine Indian Claims Settlement Act (MICSA), Penobscot Indian Reservation included only islands in the main stem of the Penobscot River which were included in Maine Implementing Act (MIA), but did not include any of the waters of the River itself, any portion thereof, or the submerged lands underneath;
2) tribe lacked Article III standing to bring claim seeking declaratory judgment clarifying tribal fishing rights on river; and
3) tribe's claim against defendants, seeking declaratory judgment clarifying tribal fishing rights on stretch of river, was not ripe for adjudication.
Affirmed in part and vacated in part.
*Synopsis: Native American tribe and its individual members appealed from a decision of the United States District Court for the District of Montana, Susan P. Watters, J., 2015 WL 4041303, dismissing their claims against United States Bureau of Indian Affairs and other federal agencies on sovereign immunity grounds.
*Holdings: The Court of Appeals held that:
1) federal statutes governing allotments of land did not waive sovereign immunity;
2) United States did not have a fiduciary duty to provide tribe with private counsel when negotiating water rights and, thus, the resulting settlement act was not unconstitutional;
3) legislative process was only due process to which tribe was entitled when determining water rights; and
4) federal statute requiring United States attorney to represent reservations or allotted Indians in all suits did not require government to provide tribe with private legal counsel.
Affirmed
*Synopsis: Public school districts that operated schools on land leased from Indian tribe brought action seeking declaratory judgment that tribal labor commission lacked jurisdiction over their employment decisions and practices conducted on reservation, and injunction to bar prosecution of their employees' claims against them in tribal courts. The United States District Court for the District of Arizona, No. 3:12-cv-08059-PGR, Close Paul Gerhardt Rosenblatt See Full Profile Paul G. Rosenblatt, Senior Judge, 2013 WL 1149706, entered summary judgment in districts' favor, and commission and employees appealed.
*Holdings: The Court of Appeals, Friedland, Circuit Judge, held that districts were required to exhaust their tribal remedies before seeking relief in federal court.
Reversed and remanded
Related News Stories: Appeals court ruling opens door for tribal jurisdiction over public schools (Indianz) 6/28/17
*Synopsis: State of Kansas and board of county commissioners brought action against National Indian Gaming Commission (NIGC), arguing that legal opinion letter regarding eligibility of Indian lands for gaming was arbitrary, capricious, and erroneous as a matter of law. The United States District Court for the District of Kansas, Daniel D. Crabtree, J., 2017 WL 2766292, dismissed action. State and county appealed.
*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
1) NIGC Acting General Counsel's legal opinion letter was not a reviewable final agency action under Indian Gaming Regulatory Act, and
2) NIGC Acting General Counsel's legal opinion letter did not constitute a reviewable final agency action under Administrative Procedure Act.
Affirmed.
*Synopsis: In a proceeding to adjudicate corporation's applications to sever water rights from its appurtenant lands, and transfer those rights to other lands, pursuant to consent decree governing distribution of water among Indian community, tribe, and other landowners, the United States District Court for the District of Arizona, Susan R. Bolton, J., D.C. Nos. 4:31-cv-00059-SRB and subdocket 4:31-cv-00061-SRB, denied applications, and entered final judgment on 419 applications to sever and transfer decree water rights. New sever and transfer applications were subsequently filed on the main docket, which the district court continued to adjudicate. Parties cross-appealed.
*Holdings: The Court of Appeals, O'Scannlain, Circuit Judge, held that:
1) Court of Appeals lacked jurisdiction over applications and associated objections that had been voluntarily withdrawn or dismissed without prejudice;
2) post-judgment order dismissing applications to sever and transfer decree water rights was not a final, appealable order;
3) Court of Appeals had jurisdiction to review district court's finding that corporation abandoned its water rights as to one application;
4) generalized assertions that proposed diversion would not change priorities, volumes of water use and acreage were insufficient to make a prima facie case of no harm;
5) district court did not abuse its discretion in rejecting corporation's attempts to amend its applications;
6) district court's improperly concluded that water rights vested prior to 1919 could not be lost through statutory forfeiture; and
7) corporation's payment of taxes and fees and its involvement in unrelated water rights litigation did not undermine district court's determination that corporation abandoned water rights as to 1.4 acres.
Dismissed in part, affirmed in part, reversed in part, and remanded.
Related News Stories: Major 9th Circuit Court ruling affirms Gila River Indian Community's water rights in upper valley of the Gila River (Native News Online) 6/18/17
*Synopsis: Indian tribe, which was not federally recognized tribe, brought action against United States, seeking money damages and full trust fund accountings arising from breach of trust and fiduciary obligation regarding treaty trust funds and trust land that the government allegedly held in trust for tribe. The Court of Federal Claims, No. 1:15-cv-00560-TCW, Thomas C. Wheeler, J., 124 Fed.Cl. 601, granted government's motion to dismiss. Tribe appealed.
*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that:
1) threshold question of whether Wyandot Nation was federally recognized Indian tribe was within primary jurisdiction of Department of Interior, and thus tribe's claims for accounting or monetary damages had to be dismissed without prejudice, and
2) tribe's claims for monetary damages from United States for failure to collect, account for, and manage Huron Cemetery lands and its revenues generated from easements by Kansas City had to be dismissed without prejudice.
Affirmed on other grounds.
*Synopsis:Consumer brought action against limited liability company (LLC) after it made numerous automated calls to his cell phone, alleging violation of the Telephone Consumer Protection Act (TCPA). Company, which had been formed by federally recognized Otoe-Missouria Tribe of Indians, moved to dismiss. The United States District Court for the Western District of Oklahoma, Vicki Miles-LaGrange, J., 2016 WL 6537986, denied consumer's request for jurisdictional discovery and dismissed based on tribal sovereign immunity. Consumer appealed.
*Holdings:The Court of Appeals, Carlos F. Lucero, Circuit Judge, held that the district court abused its discretion in denying consumer's request for jurisdictional discovery to resolve issue of tribal sovereign immunity.
Vacated and remanded.
Legal Topics: Tribal Jurisdiction; Eviction
Related News Stories: Supreme Court puts end to case challenging Colorado River Indian Tribes lease (Indianz) 10/10/17
*Synopsis: Indian tribe sued United States, through Department of Interior (DOI), claiming Fifth Amendment taking of tribe's reserved water rights and seeking $200 million in damages for federal government's diversion of water from river running along reservation's western boundary. Government moved to dismiss for lack of subject matter jurisdiction.
*Holdings: The Court of Federal Claims, Hodges, Senior Judge, held that tribe lacked standing to pursue taking claim.
Motion granted.
Legal Topics: State Taxation - Tobacco
Legal Topics: Tribal Sovereign Immunity
Legal Topics: Witnesses
Legal Topics: Tribal Water Rights - Groundwater
Related News Stories: Supreme Court won't hear California water agencies' appeal in tribe's goundwater case (Desert Sun.) 11/27/17
*Synopsis: Indian tribes brought action under Administrative Procedure Act (APA) against Army Corps of Engineers alleging, inter alia, that Corps' authorization of crude oil pipeline under federally regulated waterway bordering tribes' reservations violated National Environmental Policy Act (NEPA), Rivers and Harbors Act (RHA), and Mineral Leasing Act (MLA). Indian tribes moved for partial summary judgment and Corps cross-moved for partial summary judgment.
*Holdings: The District Court, James E. Boasberg, J., held that:
1) Corps took requisite "hard look" at risk of oil spill in its environmental assessment (EA) of pipeline;
2) Corps failed to take requisite "hard look" at methodological and data flaws in its assessment of oil spill risk identified in expert reports submitted to Corps;
3) Corps took requisite "hard look" at potential impact of construction of pipeline on tribe's water, fishing, and hunting treaty rights in its EA;
4) Corps failed to take requisite "hard look" at potential impact of oil spill on tribe's fishing and hunting treaty rights in its EA;
5) Corps adequately considered alternatives to proposed location of pipeline in its EA;
6) Corps' use of 0.5-mile buffer in environmental-justice analysis under NEPA was arbitrary and capricious;
7) grant of easement under MLA did not violate Corps' trust responsibility to protect tribe's treaty rights;
8) Corps' conclusion that pipeline would not impair waterway, as required for issuance of RHA permit, was not arbitrary and capricious; and
9) Corps imposed sufficient liability on pipeline operator, as required for easement under MLA.
Ordered accordingly.
Related News Stories: Judge announces Trump won't be defendent in Dakota Access Pipeline lawsuit (JWN Energy) 6/21/17, Ruling on pipeline surprises oil industry (Capital Journal) 6/16/17, Future of Dakota Access Pipeline in question again after judge orders review of permits (The Independent) 6/15/17, Third time's the charm in Dakota Access pipeline challenge (Courthouse News Service) 6/15/17, Breaking: DAPL approved illegal, Judge finds (Indian Country Today) 6/14/17
Legal Topics: Official Tribal Government; Tribal Membership
*Synopsis: Electricity provider brought condemnation action, seeking to condemn perpetual easement for electrical transmission lines over five allotted lands owned by Indian tribe and its members. Indian tribe moved to dismiss for lack of subject matter jurisdiction with respect to two allotments in which tribe held fractional interest. The United States District Court for the District of New Mexico, James A. Parker, Senior District Judge, 155 F.Supp.3d 1151, 1:15-CV-00501-JAP-CG, granted motion. Provider moved to alter or amend order. The District Court, Parker, Senior District Judge, 167 F.Supp.3d 1248, granted provider's request to certify four questions of law for interlocutory appeal, but denied provider's request to sever its claims against the two parcels in which tribe held fractional interest. Provider appealed.
*Holdings: The Court of Appeals, Phillips, Circuit Judge, held that:
1) as a matter of first impression, Indian General Allotment Act did not allow condemnation of allotted lands owned in any part by tribe, and
2) oil pipeline company was not entitled to intervene on appeal.
Affirmed.
Related News Stories: Supreme Court turns away utility company in closely-watch sovereignty case (Indianz) 4/30/18, Tenth Circuit Court of Appeals rules in favor of Navajo Nation (Navajo-Hopi Observer) 6/13/17, Navajo Nation welcomes vitory for 'sovereignty' in land dispute (Indianz) 5/30/17
This Case has been appealed to the U.S. Supreme Court. See the Supreme Court Bulletin for more information.
Legal Topics: Treaty Fishing RightsRelated News Stories: Indian Country awaits busy season at Supreme Court amid big change (Indianz) 8/15/18, Washington to restore salmon habitat blocked by culverts (High Country News) 6/5/17, Court: State must replace salmon-blocking culverts (Indian Country Today) 5/30/17, Treaty tribes celebrate after court refuses to rehear salmon dispute (Indianz) 5/22/17 (Turtle Talk Materials)
*Synopsis: Native American farmers and ranchers filed class action alleging that United States Department of Agriculture (USDA) discriminated against Native American applicants in their claims under farm credit and benefits programs. After parties entered into settlement agreement and settlement funds were distributed, parties reformed agreement's cy-près process to award supplemental payments to class members. The United States District Court for the District of Columbia, No. 1:99-cv-03119, approved modification, and class members appealed.
*Holdings: The Court of Appeals, Edwards, Senior Circuit Judge, held that:
1) consent decree did not require unanimous consent of class representatives for modification;
2) district court did not abuse its discretion in approving modification;
3) class member waived his challenges to validity of cy-près provision;
4) class member forfeited his challenges to validity of cy-près provision; and
5) class counsel did not breach its fiduciary duty by seeking modification.
Affirmed.
Related News Stories: Leftover Indian farmer settlement money plan left alone (The Washington Post) 10/2/17, Court decision supports release of $380M in Keepseagle settlement funds (Indianz) 5/16/17
*Synopsis: Borrower of "payday loan" charging interest rate of 440.18% brought putative class action against financial institution that facilitated loan, alleging it violated of Racketeer Influenced and Corrupt Organizations Act (RICO) by using its role within network of financial institutions to conduct and participate in collection of unlawful "payday loans." The United States District Court for the Middle District of North Carolina, Catherine C. Eagles, J., 2014 WL 3107295, denied financial institution's motion to compel arbitration. The Court of Appeals, Duncan, Circuit Judge, 787 F.3d 707, vacated and remanded. On remand, the District Court again denied the financial institution's motion to compel arbitration. Financial institution appealed.
*Holdings: The Court of Appeals, Keenan, Circuit Judge, held that:
1) choice of law provision in arbitration agreement rendered it unenforceable, and
2) choice of law provisions were not severable.
Affirmed.
Related News Stories: Fourth Circuit affirms finding that arbitration agreement in payday loan obtained over the internet is unenforceable (Reinsurance Focus) 5/31/17
Legal Topics: Land into Trust
Related News Stories: DOJ files appeal on UKB land-in-trust ruling (Tahlequah Daily Press) 12/15/17, Court rules in CN's favor on UKB trust land case (Cherokee Phoenix) 6/1/17
Legal Topics: Indian Civil Rights Act; Tribal Sovereign Immunity
*Synopsis: Tribal-owned corporations engaged in distribution of cigarettes brought action against the Attorney General of the United States, seeking declaration clarifying whether certain recordkeeping requirements of the Contraband Cigarettes Trafficking Act (CCTA) applied to Indian tribal entities. Defendant moved for summary judgment.
*Holdings: The District Court, Christopher R. Cooper, J., held that:
1) CCTA's recordkeeping requirements applied to Indian tribal entities, and
2) tribal governments, and thus tribal-owned entities, were "persons" within meaning of CCTA and fell within scope of the Act.
Motion granted.
Related News Stories: Federal Appellate Court to consider applicability of CCTA to Indian Tribes (Tobacco Law Blog) 1/17/18
Legal Topics: Native Hawaiians; Prisoners - Religious Rights
Legal Topics: Official Tribal Government; Jurisdiction
Related News Stories: Nooksack Tribe remains without recognized council as Trump administration digs in (Indianz) 5/12/17
*Synopsis: Cayuga Indian Nation brought action challenging county's ability to impose and collect ad valorem property taxes on parcels of real estate owned by the Nation, seeking declaratory judgment that subject properties were located on Indian reservation for purposes of New York property tax law and Indian Country under federal law, and seeking injunction prohibiting the county from making any further efforts to foreclose on, acquire, convey, or sell Nation-owned properties. The United States District Court for the Western District of New York, Charles J. Siragusa, J., 890 F.Supp.2d 240, granted Nations' motion for preliminary injunction. The Court of Appeals, 761 F.3d 218, affirmed. County filed counterclaim seeking declaration that property was not located on an Indian Reservation or Indian Country. Nation moved to dismiss counterclaim.
*Holdings: The District Court, Charles J. Siragusa, J., held that:
1) Cayuga Nation waived sovereign immunity from county's counterclaim;
2) county's counterclaim presented independent case or controversy;
3) counterclaim was not barred under doctrine of collateral estoppel;
4) New York's purchase of Cayuga Indian Nation's land in 1795 and 1807 did not disestablish Cayuga Reservation; and
5) The 1838 Treaty of Buffalo Creek did not disestablish the Cayuga Reservation.
Motion granted.
Related News Stories: Judge rules against Seneca County: Siragusa rejects claim against Cayuga Indian Nation over tax issue (Finger Lakes Times) 5/10/17
*Synopsis: State of New Mexico brought action against the Department of the Interior (DOI), challenging DOI's authority to promulgate regulations under the Indian Gaming Regulatory Act (IGRA) concerning the process under which Indian tribes and states negotiate compacts to allow gaming on Indian lands. Indian tribe intervened. The United States District Court for the District of New Mexico, No. 1:14-CV-00695-JAP-SCY, James A. Parker, Senior District Judge, 2014 WL 10298036, granted summary judgment to New Mexico. Indian tribe appealed.
*Holdings: The Court of Appeals, Holmes, Circuit Judge, held that:
1) State demonstrated it suffered a procedural injury from the IGRA regulations;
2) State demonstrated that it suffered a forced-choice injury from the IGRA regulations;
3) State's challenge to the regulations was ripe for judicial review;
4) DOI exceeded its authority under IGRA in promulgating regulations governing the negotiation of Indian gaming compacts; and
5) unconstitutional provision of the IGRA, which authorized Indian tribes to sue states, was severable.
Affirmed.
Related News Stories: Court rules that tribe must come to agreement on new gaming compact with state (Gaming Today) 4/27/17
*Synopsis: Tribal members brought class action against federal government, seeking an accounting to determine whether the federal government had fulfilled the fiduciary obligations it chose to assume as trustee to oversee the collection of royalty income from oil and gas reserves and its distribution to tribal members. The United States District Court for the Northern District of Oklahoma, 2012 WL 1109090, dismissed the tribal members' claims, and they appealed. The Court of Appeals, Gorsuch, Circuit Judge, 730 F.3d 1206, reversed and remanded. On remand, the United States District Court for the Northern District of Oklahoma, 153 F.Supp.3d 1354, D.C. No. 4:02-CV-00427-GKF-PJC, ordered government to provide an accounting. Tribal members appealed.
*Holdings: The Court of Appeals, Kelly, Circuit Judge, held that:
1) district court did not abuse its discretion in setting time period of accounting, and
2) district court did not abuse its discretion when it fashioned scope of accounting.
Affirmed.
Related News Stories: 10th Circuit upholds scope of accounting by lower court in Fletcher case (Osage News) 5/23/17
*Synopsis: Commonwealth of Massachusetts brought action in a Commonwealth court alleging that federally recognized Indian tribe's efforts to commence commercial gaming operations on tribal trust lands, pursuant to the Indian Gaming Regulatory Act (IGRA), without having obtained a license from the Commonwealth violated Indian Land Claims Settlement Act of 1987 (Massachusetts Settlement Act). Following removal, town and community association intervened and tribe filed counterclaim and third party claims against Commonwealth and Commonwealth officials. Parties and intervenors moved for summary judgment. The United States District Court for the District of Massachusetts, F. Dennis Saylor IV, J., 144 F.Supp.3d 152, entered summary judgment for Commonwealth and intervenors. Tribe appealed.
*Holdings: The Court of Appeals, Torruella, Circuit Judge. held that:
1) tribe made necessary threshold showing that it exercised jurisdiction over the Settlement Lands at issue;
2) tribe exercised sufficient governmental power to trigger application of IGRA to Settlement Lands; and
3) IGRA effected partial repeal of Settlement Act.
Reversed.
Related News Stories: Aquinnah Wampanaog Tribe scores major win in sovereignty case (Indianz) 4/11/17, Aquinnah Wampanoag Tribe defends right to use land for gaming (Indianz) 12/7/16, Aquinnah Wampanoag Tribe gets court date in gaming lawsuit (Indianz) 10/26/16, Aquinnah Wampanoag Tribe sees support for Class II gaming plan (Indianz) 6/6/16
*Synopsis: Indian tribe brought action alleging that Bureau of Indian Affairs (BIA), an agency within Department of the Interior (DOI), violated Indian Self-Determination and Education Assistance Act (ISDEAA) by failing to disperse certain funding. The United States District Court for the District of Columbia, No. 1:14-cv-01909, Tanya S. Chutkan, 174 F.Supp.3d 161, entered summary judgment in favor of DOI. Indian tribe appealed.
*Holdings: The Court of Appeals, Sentelle, Senior Circuit Judge, held that:
1) deadline for BIA to approve or reject tribe's proposal began to run on date tribe hand delivered proposal during partial government shutdown to exempted employee at BIA regional office, rather than date furloughed BIA employee who was responsible for such proposals returned to office;
2) tribe's silence, in face of repeated assertions by BIA concerning deadline, did not equitably estop tribe from disputing timeliness of BIA's response; and
3) partial government shutdown did not equitably toll deadline.
Reversed.
Related News Stories: Court rules for Navajo Nation in funding dispute with BIA (Sante Fe New Mexican) 4/5/17, Navajo Nation prevails in dispute over self-determination contract (Indianz) 4/4/17
*Synopsis:After his motion to dismiss the indictment was denied, defendant, an Indian, entered a conditional plea of guilty in the United States District Court for the District of Minnesota, Donovan W. Frank, J., 2011 WL 7395040, to assault with a dangerous weapon and discharging a firearm during commission of crime of violence. Defendant appealed. The Court of Appeals, 697 F.3d 670, vacated and remanded. On remand, the District Court entered final judgment sentencing defendant to 136 months in prison. Defendant appealed.
*Holdings: The Court of Appeals, Loken, Circuit Judge, held that evidence supported district court's determination that reservation on which alleged assault occurred was not diminished by 1905 Act.
Affirmed.
*Synopsis: Indian tribe petitioned for review of IRS determination that workers whom tribe had classified as contractors were employees for whom tribe owed withholding taxes. Tribe moved to compel discovery of workers' return information, which it contended would show that workers' had paid their income-tax liabilities, thereby absolving tribe of liability for withholding taxes.
*Holdings: In a matter of first impression, the Tax Court, Holmes, J., held that:
1) workers' tax return information was subject to disclosure, and
2) that tribe bore burden of proof did not bar its discovery of otherwise disclosable tax return information of its workers.
Decision for taxpayer.
Related News Stories: Employee or contractor? Double-tax case could help businesses challenge IRS (Morning Star) 5/9/17
*Synopsis: Following dismissal of damages claims in tribal court for lack of jurisdiction, store patron brought action against Indian tribe, seeking to vacate decision of tribal court of appeals denying her compensation for personal injuries, and alleging due process violations.
*Holdings: The District Court, Robert J. Jonker, Chief Judge, held that:
1) federal court lacked diversity jurisdiction over store patron's action, and
2) federal court lacked federal question jurisdiction over patron's action.
Appeal dismissed.
*Synopsis: Indian tribe brought action against Secretary and Assistant Secretary of Department of the Interior, asserting claims for breach of fiduciary duty and violations under the Administrative Procedure Act (APA) arising out of alleged improper termination of rancheria. The United States District Court for the Northern District of California, Edward J. Davila, J., 84 F.Supp.3d 930, granted defendants' summary judgment motion, and tribe appealed.
*Holdings: The Court of Appeals held that:
1) any continuing fiduciary duty owed to Indian tribe by United States did not preclude running of limitations period in tribe's lawsuit, and
2) equitable tolling of limitations period was not warranted.
Affirmed.
Related News Stories: Sonoma County tribe loses bid to regain federal status (Press Democrat) 5/12/17
*Synopsis: Indian tribe brought action for trespass and declaratory relief against individuals and corporations that drew from aquifer that fed creek that tribe relied on for drinking water, farming, and cultural and religious traditions, alleging that defendants' use constituted unlawful interference with tribe's rights to the water in creek. Defendants moved to dismiss.
*Holdings: The District Court, G. Murray Snow, J., held that:
1) United States was necessary party to action;
2) waiver of sovereign immunity in general water source adjudications provided by McCarran Amendment was inapplicable to tribe's private trespass suit; and
3) dismissal for failure to join United States as party was warranted.
Motion denied.
*Synopsis: Tribal conservation organizations and non-profit environmental organizations petitioned for review of United States Environmental Protection Agency's (EPA) source-specific federal implementation plan (FIP) under the Clean Air Act (CAA) for a coal-fired power plant on the Navajo Nation Reservation in Arizona.
*Holdings: The Court of Appeals, John B. Owens, Circuit Judge, held that:
1) federal government's partial ownership of power plant did not weigh against affording deference to EPA's interpretation of CAA and its implementing regulations;
2) EPA's determination that Tribal Authority Rule (TAR) applied to Navajo Nation was reasonable;
3) FIP was not subject to CAA regional haze program's requirement that all necessary emission reductions take place during the period of the first long-term strategy for regional haze;
4) EPA was not required to show by clear weight of the evidence that its FIP was better than best alternative retrofit technology (BART);
5) EPA's interpretation of phrase "distribution of emissions" as used in Regional Haze Regulation was reasonable; and
6) it was reasonable for EPA to give plant emission credit when evaluating whether FIP alternative resulted in greater emissions reductions than the BART.
Petition denied.
Related News Stories: 9th Circuit affirms EPA's flexibility with BART alternative (Enviro BLR) 3/31/17, Cronkite News: Navajo Nation hails decision on aging power plant (Indianz) 3/27/17, Court rejects Navajo generating station cases (Indian Country Today) 3/27/17, Ninth Circuit rejects challenges to dirty power plant (Courthouse News Service) 3/21/17, Hopi Tribe and Native activists lose cases over aging power plant (Indianz) 3/20/17
*Synopsis: Indian tribe petitioned for review of Environmental Protection Agency's (EPA) federal implementation plan under the Clean Air Act (CAA) for reduction of emissions from a coal-fired generating station, which tribe contended would result in the plant's closure with resulting harm to tribe's economic interests.
*Holdings: The Court of Appeals, Schroeder, Circuit Judge, held that EPA did not violate any duty of the Government to consult with Indian tribe during rulemaking process.
Petition denied.
Related News Stories: 9th Circuit affirms EPA's flexibility with BART alternative (Enviro BLR) 3/31/17, Cronkite News: Navajo Nation hails decision on aging power plant (Indianz) 3/27/17, Court rejects Navajo generating station cases (Indian Country Today) 3/27/17, Ninth Circuit rejects challenges to dirty power plant (Courthouse News Service) 3/21/17, Hopi Tribe and Native activists lose cases over aging power plant (Indianz) 3/20/17
*Synopsis: Petitioners, who were members of Indian tribe and excluded from tribal lands and facilities for allegedly libeling and slandering tribe, sought writ of habeas corpus under Indian Civil Rights Act (ICRA). The United States District Court for the Eastern District of California, Troy L. Nunley, J., 2014 WL 1155798, dismissed petition. Petitioners appealed.
*Holdings: The Court of Appeals, M. Margaret McKeown, Circuit Judge, held that:
1) any disputes about per capita payments from an Indian tribe to a tribal member must be brought in a tribal forum, not through federal habeas proceedings;
2) temporary exclusion from Indian tribal land is not tantamount to a "detention," for purpose of detention requirement of habeas corpus provision of ICRA; and
3) exclusion of petitioners was not a "detention" within meaning of habeas provision of ICRA, as required for district court jurisdiction.
Affirmed.
Related News Stories: Federal appeals court rejects tribal land access lawsuit (Jurist Twenty) 3/15/17, Court rules for California tribe in suit over land access (Columbia Missourian) 3/14/17
*Synopsis: Indian tribe brought action against water district and desert water agency, seeking to have the court declare and quantify its federally reserved rights to groundwater underlying its reservation and enjoin district and agency from interfering with tribe's rights to groundwater. Federal government intervened as a plaintiff. The United States District Court for the Central District of California, Jesus G. Bernal, J., No. 5:13-cv-00883-JGB-SP, 2015 WL 1600065, entered partial summary judgment in favor of tribe and government. District and agency appealed.
*Holdings: The Court of Appeals, Tallman, Circuit Judge, held that:
1) federal government impliedly reserved general water right when it established Indian reservation in desert;
2) tribe's implied general reserved water right extended to groundwater; and
3) any state water entitlements that tribe had to groundwater did not limit tribe's federal implied water right.
Affirmed.
Related News Stories: California water districts ask U.S. Supreme Court to review groundwater rights case (The Groundwater Association) 8/31/17, Desert water agencies will appeal to Supreme Court in tribe's landmark groundwater case (The Desert Sun) 3/29/17, Tribes' federal water rights include groundwater—but how much? (JD Supra) 3/22/17, Ninth Circuit confirms tribe's water rights (Courthouse News Service) 3/8/17, Water agency dealt setback in challenge to Bureau of Indian Affairs rule (Indianz) 3/7/17
*Synopsis: Political subdivision of the State of California brought action under the Administrative Procedures Act (APA) against the United States Department of the Interior and its Bureau of Indian Affairs (BIA), challenging a federal regulation that the subdivision believed might preempt certain taxes and fees the subdivision assessed against non-Indians who leased lands within an Indian reservation. The United States District Court for the Central District of California, Dolly M. Gee, J., D.C. No. 5:13-cv-00606-DMG-OP, dismissed action for lack of standing. Subdivision appealed.
*Holdings: The Court of Appeals, Diarmuid F. O'Scannlain, Circuit Judge, held that federal regulation did not preempt taxes and fees that political subdivision assessed against non-Indians who leased lands within an Indian reservation, and thus subdivision lacked standing to challenge the regulation.
Affirmed.
Related News Stories: No standing to challenge BIA's Native American land lease tax reg (Constitutional Law Prof Blog) 3/9/17, Water agency dealt setback in challenge to Bureau of Indian Affairs rule (Indianz) 3/7/17
*Synopsis: United States brought action on behalf of Indian tribes alleging that State of Washington violated fishing clause of Stevens Treaties by building and maintaining barrier culverts that prevented mature salmon from returning from sea to their spawning grounds, prevented smolt from moving downstream and out to sea, and prevented very young salmon from moving freely to seek food and escape predators. The United States District Court for the Western District of Washington, Nos. 2:01-sp-00001-RSM, 2:70-cv-09213-RSM, Ricardo S. Martinez, Chief Judge, 2013 WL 1334391, issued injunction ordering state to correct offending culverts, and state appealed.
*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that:
1) treaties required that state ensure that fish would, in fact, be available;
2) state violated treaty as result of its construction of barrier culverts under its roads;
3) United States did not waive tribes' rights under treaties;
4) sovereign immunity barred state's cross-request for injunction;
5) injunction requiring state to correct most of its high-priority barrier culverts within 17 years was not overly broad;
6) district court did not clearly err in determining that correction of human-caused barriers was highest priority for restoring salmon habitat; and
7) injunction did not impermissibly and significantly intrude into state government operations.
Affirmed.
*Synopsis: Federal prisoner, as member of Sioux Indian Tribe and former plaintiff in class action to compel historical accounting of funds that Department of Interior held in trust for Native Americans, filed pro se suit against United States, claiming violation of his constitutional and statutory rights and breach of settlement agreement that was authorized by Claims Resolution Act to resolve class action. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim.
*Holdings:
The Court of Federal Claims, Braden, Chief Judge, held that:
1) jurisdiction was lacking for any wrongful conviction claim;
2) administrative remedies were not exhausted for treaty violation claim;
3) jurisdiction was lacking for wrongful civil commitment claim;
4) prisoner lacked property interest required to assert takings claim;
5) jurisdiction was lacking for claims sounding in tort;
6) breach of settlement agreement claim was sufficiently alleged.
Motion granted in part and denied in part
Legal Topics: Indian Health Care Improvement Act
Related News Stories: Judge rejects motion to throw out Indian hospital lawsuit (News & Observer) 3/31/17, The tribe that's suing the US government to keep its promises (Buzzfeed) 11/17/16
Legal Topics: Indian Gaming Compact, Breach of
*Synopsis: Native American landowners brought trespass action against owner and operator of network of natural gas transmission pipelines, seeking injunctive relief. Landowners moved for partial summary judgment and for permanent injunction requiring removal of pipeline across property.
*Holdings: The District Court, Vicki Miles–LaGrange, J., held that:
1) owner and operator were liable for trespass, and
2) landowners were entitled to permanent injunction.
Motion granted.
Legal Topics: Treaty Right to Hunt; Tribal Sovereign Immunity
Legal Topics: Tribal Sovereign Immunity
Legal Topics: Indian Child Welfare Act - Unconstitutional
Related News Stories: Indian Child Welfare Act survives attack from conservative groups (Indianz) 3/21/17 (Turtle Talk material), ICWA: Goldwater case thrown out of federal court (Indian Country Today) 3/21/17
*Synopsis: Self-governing dependent Indian community brought action against National Indian Gaming Commission (NIGC), Department of the Interior (DOI), and others, seeking injunctive and declaratory relief from administrative determination that community was not an Indian tribe within meaning of the Indian Gaming Regulatory Act (IGRA). Following grant, 202 F.Supp.3d 1204, of NIGC's motion to dismiss, community and DOI cross-moved for summary judgment.
*Holdings:The District Court, Benjamin H. Settle, J., held that:
1) Congress's express recognition of community as eligible for certain special programs and services was ambiguous, and
2) Interior Department acted reasonably in concluding that phrase “recognized as eligible by the Secretary,” as it appeared in IGRA, did not refer to community.
Plaintiff's motion denied and defendants' motion granted.
Legal Topics: Public Transportation Project - Sacred Places
Related News Stories: Feds must face claims over dozered sacred sites (Courthouse News Service) 3/15/17
Legal Topics: pro se action on behalf of Tribe
Related News Stories: Grass roots legal concepts intentionally forgotten in modern Indian law rulings (Indian Country Today) 3/28/17
*Synopsis: Railroad brought action against members of county board of commissioners and Columbia River Gorge Commission seeking declaration that Interstate Commerce Commission Termination Act (ICCTA) preempted permitting process imposed by county ordinance and that application of county ordinance to prohibit railroad's project to build new track violated commerce clause. Environmental organizations intervened as defendants. Indian tribes moved to dismiss with prejudice for failure to join tribes as required party.
*Holdings: The District Court, Aiken, J., held that:
1) tribes were necessary party;
2) tribes' interest in their treaty-reserved fishing rights related to subject matter of railroad's action, as required to be necessary party;
3) tribes' interest in their treaty-reserved fishing rights would not be adequately represented by defendants, as required to be necessary party;
4) joinder of tribes was not feasible;
5) tribes were indispensable party, warranting dismissal with prejudice; and
6) public rights exception did not apply to preclude dismissal.
Motion granted.
Legal Topics: Tribal-State Gaming Compacts
Legal Topics: Indian Health Service Hospital; Jurisdiction
*Synopsis: State of Wyoming and Wyoming Farm Bureau Federation petitioned for review of Environmental Protection Agency's (EPA) determination of Wind River Indian Reservation boundaries for purpose of Indian tribes' application for authority to administer portions of Clean Air Act on Reservation.
*Holdings: The Court of Appeals, Tymkovich, Chief Judge, held that Congress diminished boundaries of Wind River Indian Reservation through 1905 legislative Act.
Petition granted.
Related News Stories: Federal court won't re-hear tribal border case (Casper Star Tribune) 11/8/17, Northern Arapaho, feds move to settle in Wind River lawsuit (Casper Star Tribune) 3/21/17, Feds fear Wind River injunction that requires them to negotiate with both tribes, appeal states (Casper Star-Tribune) 3/5/17, Appellate Court rules against EPA in reservation dispute; split decision highlights poor treatment of Indians (K2 Radio) 2/22/17, Court rules Riverton not part of Indian Country (U.S. News) 2/22/17, Wyoming tribes lose major ruling in reservation boundary case (Indianz) 2/22/17
*Synopsis: Chapter 11 trustee brought adversary proceeding to recover allegedly preferential transfers made to tribal entity the operated casino for benefit of Indian tribe. In separate proceeding, another tribal entity brought adversary proceeding for determination that sums owed to it under its financial services agreement with debtor were not included in property of the estate, and trustee counterclaimed for recovery of prepetition preferential transfers. Tribal entities moved to dismiss trustee's complaint or counterclaims based on their alleged tribal sovereign immunity.
*Holdings: The Bankruptcy Court, Sontchi, J., held that:
1) Entities which operated casinos for benefit of Indian tribes had sufficiently close relationship to tribes to share in tribes' sovereign immunity;
2) Congress did not unequivocally express its intent to abrogate sovereign immunity of Indian tribes, such that Indian tribes, or closely-affiliated entities that operated casinos on tribes' behalf, could not be object of preference avoidance proceedings absent a waiver of their tribal sovereign immunity;
3) waiver issue could not be determined on motion to dismiss;
4) bankruptcy statute that barred creditor that was recipient of avoidable transfer from recovering on its claim until transfer was repaid was not operative as to tribal entity; and
5) tribes and tribal entities were not "governmental units," under statute providing that "governmental unit" that had filed a proof of claim was deemed to have waived its sovereign immunity with respect to a claim against that governmental unit which was property of the estate, and which arose out of the same transaction or occurrence.
Motion granted in part and denied in part.
Related News Stories: Courts continue trend of recognizing tribal immunity in bankruptcy proceedings (Holland & Knight) 3/21/17
*Synopsis: Employees brought action against Indian tribe, former president of tribal council, and business development corporation established by tribe, alleging that defendants wrongfully terminated their employment and otherwise violated their rights on account of their political activities, in violation of Title VII and state law. Defendants moved to dismiss.
*Holdings: The District Court, James D. Peterson, J., held that:
1) "sue and be sued" clause in tribal corporate charter did not waive sovereign immunity as to tribe itself;
2) tribal code incorporating various federal labor laws did not waive tribe's sovereign immunity;
3) tribe was not an "employer" subject to Title VII;
4) employee failed to allege that tribe's business development corporation harmed her or was her employer under Title VII; and
5) business development corporation was governmental subdivision of tribe, and, as such, was entitled to sovereign immunity.
Motion granted.
Related News Stories: Lac du Flambeau Band of Lake Superior Chippewa reaches settlement (Gaming Today) 2/20/17
*Synopsis: Indian tribe brought action under Administrative Procedure Act (ADA) to compel National Indian Gaming Commission (NIGC) to issue decision on tribe's appeal of notice of violation issued by NIGC's chairman alleging that tribe had violated Indian Gaming Regulatory Act (IGRA) by gaming on Indian lands ineligible for gaming. Tribe filed motion for order to show cause why NIGC should not be held in contempt.
*Holdings: The District Court, Rosemary M. Collyer, J., held that NIGC did not violate court's order that it review its initial determination in light of letter from Interior Department.
Motion denied.
*Synopsis: Former Tribal Administrator sought declaratory and injunctive relief against tribe, tribal court, and tribal court judge to avoid tribal court jurisdiction over claims that she defrauded tribe and breached her fiduciary duties to it. Defendants moved to dismiss.
*Holdings: The United States District Court for the Eastern District of California, William H. Orrick, J., held that:
1) exceptions to tribe's general lack of jurisdiction over nonmembers' actions did not apply;
2) tribe had regulatory jurisdiction over Administrator; and
3) tribe had adjudicative authority over Administrator.
Motion granted.
*Synopsis: Indian tribe brought action against State of New Mexico, Governor of New Mexico, and members of New Mexico Gaming Control Board, alleging that New Mexico failed to negotiate new gaming compact in good faith under Indian Gaming Regulatory Act (IGRA) and that state officials conspired to deprive tribe of federal right to be free of state jurisdiction over activities that occurred on tribal lands. Preliminary injunction, 2015 WL 10818855, was granted to protect tribe's relationships with casino vendors, and then State's motion to dismiss, to stay, or suspend the preliminary injunction, and to stay discovery was granted in part, 214 F.Supp.3d 1028. Tribe moved to restore the preliminary injunction pending appeal.
*Holdings: The District Court, James O. Browning, J., held that:
1) supplementation regarding letters from Interior Secretary to Indian tribes explaining that each compact was "deemed approved," i.e., that agreements were approved by operation of law, was appropriate after Indian tribe filed motion to stay;
2) interlocutory appeal of preliminary injunction did not divest district court of jurisdiction to proceed to determine action on merits in stay pending appeal of preliminary injunction;
3) New Mexico's off-reservation regulatory enforcement actions against non–Indian, state–licensed gaming vendors to prevent them from doing business with tribe that did not have valid compact with State likely did not violate tribe's federal rights;
4) IGRA likely did not impliedly preempt off-reservation regulatory enforcement actions;
5) regulatory enforcement actions likely did not conflict with IGRA, either expressly or in field of Indian gaming;
6) IGRA's express severability clause plainly evinced Congressional intent that IGRA's remaining provisions stand if jurisdiction-granting provision were held invalid;
7) enforcement actions likely did not violate prohibition against conspiracies that interfere with civil rights or § 1983; and
8) prudential factors did not support stay pending appeal.
Motion denied.
Legal Topics: Indian Civil Rights Act; Tribal Criminal Jursidiction
*Synopsis: While their appeal from grant of summary judgment to county, city, and law enforcement officers in separate action was pending, estate and parents of decedent, who was member of Ute Tribe, brought action against United States, alleging, inter alia, that United States violated 1868 Ute Treaty when it engaged in coverup of events surrounding decedent's death on Ute Tribe's Reservation following shootout with officers. After grant of summary judgment in separate action was affirmed, the United States Court of Federal Claims, Marian Blank Horn, J., 122 Fed.Cl. 490, granted United States' motion to dismiss for failure to state claim. Plaintiffs appealed.
*Holdings: The Court of Appeals, O'Malley, Circuit Judge, held that:
1) only acts that could be prosecutable as criminal wrongdoing are cognizable under the bad men provision of the 1868 Ute Treaty;
2) a wrong committed on reservation land and continuing off-reservation land is cognizable under the bad man provision of the 1868 Ute Treaty; and
3) issue of whether federal officers had spoliated evidence related to death of decedent was not actually litigated in separate action against local police officers.
Vacated and remanded.
Related News Stories: Ute tribe proceeds with suit against U.S. for tribal member's death (UBMedia) 2/6/17, Appeals court reinstates Ute Tribe's wrongful death lawsuit (McClatchyDC) 2/6/17, Court reinstates Ute Tribe's wrongful death suit in 2007 reservation shooting (Salt Lake Tribune)2/4/17
*Synopsis: After defendant's motion to dismiss indictment was denied, he was convicted pursuant to conditional guilty plea in the United States District Court for the Western District of Michigan of manufacturing more than fifty marijuana plants, and he appealed.
*Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that:
1) Controlled Substances Act's (CSA) prohibition on manufacture of marijuana did not substantially burden defendant's practice of religion, and
2) defendant waived his sentencing argument by entry of his conditional guilty plea.
Affirmed.
*Synopsis: Suspect brought § 1983 action against tribal police officer and county, alleging that his arrest was unlawful. The United States District Court for the District of New Mexico granted summary judgment for defendants. Suspect appealed.
*Holdings: The Court of Appeals, Mary Beck Briscoe, Circuit Judge, held that:
1) officer was public employee entitled to immunity under New Mexico Tort Claims Act (NMTCA);
2) officer had probable cause to arrest suspect; and
3) an arrest supported by probable cause cannot be the basis for a claim of false imprisonment or malicious prosecution.
Affirmed.
*Synopsis: Consumer Financial Protection Bureau (CFPB) brought action against several for-profit tribal lending entities, seeking enforcement of investigative demands it served on entities. After issuing order to show cause as to why entities should not comply with demands, the United States District Court for the Central District of California, Michael W. Fitzgerald, J., denied entities' petition to set aside demands. Entities appealed.
*Holding: The Court of Appeals, Rawlinson, Circuit Judge, held that CFPB did not plainly lack jurisdiction to issue demands against entities.
Related News Stories: Court enforces CFPB civil investigative demand against tribal lending entity; rejects argument that tribal sovereignty precludes such demands (JD Supra) 2/2/17, Ninth Circuit affirms CFPB authority to investigate tribal lenders (Consumer Financial Services Review) 1/26/17
*Synopsis: Driver who alleged that he was an Indian within the meaning of the relevant federal statutes filed motion seeking to enjoin state from prosecuting him for traffic offenses, contending that he was an Indian and the offenses occurred on tribal land. The United States District Court for the District of Utah, Bruce S. Jenkins, J., 2015 WL 4717639, denied the motion. Driver appealed.
*Holding: The Court of Appeals, Seymour, Circuit Judge, held that driver's traffic offenses did not occur on tribal land.
Affirmed.
*Synopsis: State prisoner brought § 1983 action against various prison officials, alleging that officials prevented him from exercising his Native American religious beliefs, that prisoners of non-Christian faiths were provided disparate treatment, that prison staff tampered with his legal correspondence, and that prison grievance system was inadequate. The United States District Court for the Middle District of Pennsylvania, No. 3-12-cv-01057, Richard P. Conaboy, J., 2016 WL 4611545, granted in part and denied in part officials' motion to dismiss, granted in part and denied in part prisoner's motion for reconsideration, and granted officials' motions for summary judgment. Prisoner appealed..
*Holdings: The Court of Appeals held that:
1) officials did not deprive prisoner of his First Amendment right to practice his religion, and
2) officials did not interfere with prisoner's exercise of his Native American religious beliefs or violate the Establishment Clause.
Affirmed.
Legal Topics: Public Transportation Project - Sacred Places
Related News Stories: Feds must face claims over dozered sacred sites (Courthouse News Service) 3/15/17
*Synopsis: Indian tribe brought action against railway company, asserting claims for breach of contract and trespass regarding right-of-way easement agreement for railroad constructed across tribal land, and seeking damages, declaratory judgment, and injunctive relief. Parties cross-moved for summary judgment.
*Holdings: The District Court, Robert S. Lasnik, J., held that:
1) company breached easement agreement;
2) tribe's state law claims seeking damages for breach of easement agreement, to compel disclosures, and an adjustment in rent were not preempted by the Interstate Commerce Commission Termination Act (ICCTA);
3) tribe's state law claims for injunctive relief were preempted by the ICCTA;
4) ICCTA does not preempt or repeal the Indian Right of Way Act (IRWA); and
5) Hazardous Materials Act does not preempt the IRWA.
Motions granted in part and denied in part.
Related News Stories: Court says tribe's suit against BNSF can proceed (Goanacortes) 1/18/17
*Synopsis: Defeated tribal mayoral candidate petitioned for writ of habeas corpus pursuant to the Indian Civil Rights Act (ICRA) seeking relief from a motion filed in tribal court by the tribal community council that sought to impose on candidate the costs incurred by the council arising from his unsuccessful challenge to the election results. Council moved to dismiss for lack of subject matter jurisdiction.
*Holdings: The District Court, John W. Sedwick, Senior District Judge, held that:
1) candidate did not suffer a severe restraint on liberty, as required to warrant the district court's jurisdiction
2) the potential loss of the right to vote in tribal community elections for non-payment of tribal court-ordered costs did not provide the district court with jurisdiction; and
3) candidate was not subject to a fine without due process, as would warrant the district court's jurisdiction.
Motion granted.
Legal Topics: Indian Commerce Clause
Related News Stories: Millions at stake in Tulalip lawsuit over sales tax revenue (Herald Net) 3/12/18, Native Americans and taxes: Tulalip Tribes challenge state taxation on tribal lands (Indian Country Today) 1/09/17
Legal Topics: Tribal Exhaustion Doctrine
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