*Synopsis: Native American nation brought action against Secretary of Interior under Administrative Procedure Act (APA) and National Environmental Policy Act (NEPA), challenging acquisition of land in trust for benefit of other Native American nation and seeking preliminary injunction against operation of casino. The United States District Court for the Western District of Oklahoma, Joe Heaton, Chief Judge, 2017 WL 6551298, denied motion for preliminary injunction. Nation appealed.
*Holdings: The Court of Appeals, Carlos F. Lucero, Circuit Judge, held that:
1) nation did not have substantial likelihood of success on merits of challenge to regulations governing trust acquisitions, and
2) nation did not have substantial likelihood of success on merits of NEPA claim.
Affirmed.
Related News: Comanche Nation asks Supreme Court to hear dispute over riral tribe's casio (Indianz) 4/8/19
*Synopsis: Indian tribe brought action against executive director of state department of revenue for injunctive and declaratory relief regarding state's imposition of tax on electricity delivered to tribe's reservations. The United States District Court for the Southern District of Florida, D.C. Docket No. 0:16-cv-62775-RNS, Robert N. Scola, Jr., 2017 WL 4570790, dismissed with prejudice based on claim preclusion and later, 2018 WL 1902838, denied tribe's motion for consideration. Tribe appealed.
*Holdings: The Court of Appeals held that action was barred, on claim preclusion grounds, by previous judgment that tax was not preempted by federal law.
Affirmed.
Related News: State gets win in tribe tax dispute (News Chief) 12/10/18
Legal Topics: Fiduciary Duty: Trust Funds
Legal Topics: Easements
*Synopsis: Tribe brought action against Environmental Protection Agency (EPA) and Army Corps of Engineers, seeking declaratory and injunctive relief under Clean Water Act (CWA) and Administrative Procedure Act (APA) in substantive challenge to refusal of EPA and Corps to exercise jurisdiction over CWA permit from state of Michigan for discharge of dredged or fill material into certain navigable waters. Tribe moved to amend complaint to add APA claims challenging EPA's withdrawal of its objections to permit and alleging that EPA and Corps had violated National Historic Preservation Act (NHPA) section, and EPA and Corps moved to dismiss.
*Holdings: The District Court, William C. Griesbach, Chief Judge, held that:
1) EPA's withdrawal of its objections to permit was not reviewable under APA;
2) allegedly violated NHPA section did not apply because no federally funded or federally licensed project was involved;
3) as matter of apparent first impression, CWA citizen suit provision did not waive sovereign immunity for suits against Army Corps of Engineers;
4) CWA could not be used for substantive challenge to EPA's refusal to exercise jurisdiction; and
5) letters from EPA and Corps to tribe explaining refusal to exercise jurisdiction were not final agency actions subject to APA review.
Plaintiff's motion denied; defendants' motion granted.
Related News: Tribe appeals mine ruling (The Shawano Leader) 1/18/19
*Synopsis: Tobacco reseller and cigarette manufacturer incorporated under Tribal law brought action against elected state officials, seeking injunctive relief regarding enforcement of Nebraska's statutes regulating tobacco product manufacturing and distribution. Officials filed motion to dismiss.
*Holdings: The District Court, John M. Gerrard, Chief Judge, held that:
1) reseller and manufacturer had standing;
2) officials were not shielded by Eleventh Amendment immunity;
3) reseller cigarette manufacturer plausibly alleged statutes infringed on right of reservation Indians to make own laws and to be ruled by them; and
4) reseller and manufacturer alleged Indian Commerce Clause and Indian tribal sovereign immunity required disparate treatment.
Motion granted in part and denied in part.
Related News: Winnebago Tribe wins round in lawsuit to defend its sovereignty (Indianz) 12/19/18
Legal Topics: Contracts
Legal Topics: Arrest - Reasonable Force
*Synopsis: Indian tribe brought action challenging county's ability to impose and collect ad valorem property taxes on parcels of real estate it owned. Parties filed cross-motions for summary judgment.
*Holdings: The District Court, Charles J. Siragusa, J., held that tribal sovereign immunity barred county from bringing suit against tribe.
Tribe's motion granted.
Related News: Federal judge rules for Cayuga Nation in tax foreclosure case (Olean Times Herald) 12/11/18
Legal Topics: Prisoner Rights
*Synopsis: Indian tribe member who was incarcerated based on tribal convictions filed petition for writ of habeas corpus against tribal detention center's acting warden, tribal court judge, and tribal governor, challenging his physical confinement due to alleged invalidity of the underlying convictions. Tribe member was subsequently released from custody, and he filed amended petition challenging his convictions and his banishment from tribal government.
*Holdings: The District Court, Babcock, J., held that:
1) immediate physical custodian rule no longer provided basis for district court to exercise jurisdiction over tribe member's amended petition;
2) district court lacked jurisdiction over the amended petition when tribal court judge, who allegedly had the authority to provide the relief requested, did not reside in the district; and
3) dismissal without prejudice, rather than transfer to another district, was appropriate.
Petition dismissed without prejudice.
Legal Topics: Indian Civil Rights Act
Legal Topics: Tribal Water Rights - Compacts
Legal Topics: Trust Funds - Allocation
Legal Topics: Exhaustion of Tribal Remedies
*Synopsis: Pueblo of Jemez Indian Tribe brought action under federal common law and the Quiet Title Act (QTA), seeking a judgment that the Tribe had exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing aboriginal title to such lands. United States objected to admission of hearsay contained in testimony of Tribe member and the Tribe's memorandum of law.
*Holdings: The District Court, James O. Browning, J., held that:
1) American Indian oral tradition evidence was inadmissible hearsay;
2) oral tradition evidence was admissible under enumerated exceptions to rule against hearsay; and
3) oral tradition evidence was inadmissible under residual hearsay exception.
Requests granted in part and denied in part.
*Synopsis: Natural gas pipeline company brought action against landowners to condemn easement across their properties. The United States District Court for the Western District of Oklahoma, No. 5:15-CV-01250-M, Vicki Miles-LaGrange, J., dismissed complaint, 2016 WL 4402061, and awarded attorney fees, 2017 WL 3431857. Company appealed.
*Holdings: The Court of Appeals, McKay, Circuit Judge, held that:
1) property in which Indian tribe held ownership interest was not subject to condemnation;
2) district court did not clearly err in using out-of-state rates to calculate landowners'attorney fee award.
Affirmed.
*Synopsis: New Mexico brought action against various property owners pursuant to its water adjudication statutes, seeking determination of rights to use water of particular river system. United States, on behalf of itself and several affected Native-American tribes, intervened. Proposed settlement was reached with respect to tribal water rights, and, following enactment of Aamodt Litigation Settlement Act, settlement parties revised their agreement to conform with Act. The United States District Court for the District of New Mexico, William P. Johnson, 171 F.Supp.3d 1171, issued a show cause order that provided opportunity for all water claimants to object, then overruled all objections, approved the settlement, and entered final judgment. Objectors appealed.
*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that non-settling objectors lacked standing to challenge settlement agreement.
Remanded.
*Synopsis: Non-profit corporation that provided services to Alaskan Native people brought action against Indian Health Service (IHS), Department of Health and Human Services, and agency officials, challenging decision declining proposed amendment to self-determination contract pursuant to the Indian Self-Determination and Education Assistance Act (ISDEAA) seeking increased funding for substance abuse programs to account for increased facility support costs. Parties filed cross-motions for summary judgment.
*Holdings: The District Court, Emmet G. Sullivan, J., held that:
1) funding provision in ISDEAA was ambiguous regarding whether facility support costs needed to be funded exclusively from the Secretarial amount;
2) facility support costs were eligible as contract support costs; and
3) remand to IHS was warranted to determine amount of increased funding non-profit corporation was entitled to under ISDEAA.
Plaintiff's motion granted in part; defendants' motion denied.
*Synopsis: Indian tribe brought action against National Indian Gaming Commission (NIGC), its acting chairman, and United States, alleging that NIGC's decision affirming prior determination that tribe was not federally recognized and thus that reservation lands were ineligible for gaming was arbitrary and capricious. Tribe moved to complete the record, or in the alternative, to supplement it, with solicitor's letter and certain other materials dealing with tribe's status and federal acknowledgment that had been submitted to Department of the Interior (DOI), through its counsel at the Department of Justice (DOJ), as it considered and drafted the solicitor's letter.
*Holdings: The District Court, Rosemary M. Collyer, J., held that:
1) solicitor's letter qualified as legal advice, and thus attorney-client privilege precluded disclosure of letter, and
2) NIGC indirectly considered 39 documents submitted by tribe, and therefore 39 documents comprised part of the administrative record warranting production of documents to complete the administrative record.
Motion granted in part and denied in part.
*Holdings: The District Court, Brian Morris, J., held that:
1) Department's purpose and need statement satisfied NEPA;
2) Department's dismissal of alternatives satisfied NEPA;
3) Department's range of alternatives satisfied NEPA;
4) Department's no action alternatives satisfied NEPA;
5) Department's market analysis satisfied NEPA;
6) Department's analysis of change in oil markets did not satisfy NEPA;
7) Department's analysis of rate of transportation satisfied NEPA;
8) Department's analysis of greenhouse gas emissions did not satisfy NEPA;
9) Department's analysis of impacts in Canada satisfied NEPA;
10) Department's analysis of impacts on cultural resources did not satisfy NEPA;
11) Department's analysis of public comments satisfied NEPA;
12) Department's analysis of oil spills did not satisfy NEPA;
13) Department's change in course regarding climate change violated APA; and
14) Department inadequately considered oil spill impact on ESA listed species.
Motions granted in part and denied in part; remanded.
*Synopsis: Environmental groups and Indian tribe brought action challenging United States Forest Service's approval of resumption of uranium mining operation on federal land. Mining companies intervened. The United States District Court for the District of Arizona, No. 3:13-cv-08045-DGC, David G. Campbell, J., 98 F.Supp.3d 1044, entered summary judgment in government's favor, and plaintiffs appealed.
*Holdings: The Court of Appeals, Block, District Judge, sitting by designation, held that:
1) plaintiffs had Article III standing to assert claims under National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA);
2) Forest Service's conclusion that mining company had valid existing rights to mine uranium ore on public lands that were established prior to mineral withdrawal was “final agency decision”;
3) Forest Service's mineral report was not major federal action requiring preparation of environmental impact statement (EIS);
4) Forest Service's mineral report was not “undertaking” that triggered NHPA's consultation process;
5) groups' claim that Forest Service improperly determined that mining company had valid existing rights to mine uranium ore on public lands fell outside zone of interests protected by General Mining Act; and
6) groups' claim that Forest Service improperly determined that company had valid existing rights to mine uranium ore on public lands fell within zone of interests protected by Federal Land Policy and Management Act (FLPMA).
Affirmed in part, vacated in part, and remanded.
Related News: Court gives environmentalists new change to fight uranium mine (Cronkite News) 10/28/18
Legal Topics: Quiet Title; Tribal Sovereign Immunity
Related News: Tulalip Tribes worry about traffic, salmon in land sale case (Herald Net) 10/29/18
*Synopsis: Inter-tribal council representing Arizona Indian tribes sued United States, claiming breach of tribal trust obligations under Arizona-Florida Land Exchange Act (AFLEA) by failing to ensure sufficient security for full payments to be made by landowner for land exchange involving sale of land that was former site of Indian boarding school, by failing to collect and deposit or make up trust payments on which landowner defaulted, and by failing to prudently invest trust funds. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim.
*Holdings: The Court of Federal Claims, Firestone, Senior Judge, held that:
1) claim based on insufficient initial security requirements was time barred;
2) government fulfilled its trust obligation to ensure adequate security;
3) government was not required to make up defaulted payments;
4) portion of prudent investment claim was time barred; and
5) timely portion of prudent investment claim was sufficiently alleged.
Motion granted in part and denied in part.
*Synopsis: Truck owner brought action against tribal police officer and towing company alleging that towing company converted his truck by impounding it on reservation at state patrol's direction, towing it off of reservation, and releasing it to tribal police officer pursuant to tribal court order of forfeiture. United States substituted for officer. The United States District Court for the Western District of Washington, No. 2:15-cv-00629-JCC, John C. Coughenour, Senior Judge, 2016 WL 1221655, entered summary judgment in defendants' favor, and owner appealed.
*Holdings: The Court of Appeals, Pregerson, District Judge, sitting by designation, held that:
1) The Court of Appeals, Pregerson, District Judge, sitting by designation, held that:
2) officer was entitled under Westfall Act to immunity from truck owner's conversion claim.
Affirmed in part, vacated in part, and remanded.
*Synopsis: Indian tribe brought action against the United States, seeking to quiet its allegedly unextinguished and continuing aboriginal title to lands under the federal common law and the Quiet Title Act (QTA). The United States District Court for the District of New Mexico, Robert C. Brack, J., dismissed for lack of subject matter jurisdiction. Indian tribe appealed. The Court of Appeals, Seymour, Circuit Judge, 790 F.3d 1143, reversed and remanded. On remand, the tribe brought motion in limine.
*Holdings: The District Court, James O. Browning, J., held that:
1) evidence of land use after year when Indian tribe came under United States jurisdiction was relevant and, thus, admissible, and
2) expert report contained relevant evidence of multiple tribes' use of land after year when tribes came under United States jurisdiction and, thus, was admissible.
Motion denied.
Legal Topics: Rights-of-Way
Legal Topics: Tribal Sovereign Immunity
Legal Topics: Religious Land Use and Institutionalized Persons Act
*Synopsis: Indian tribe and municipality located on Indian reservation brought action against State of Washington, its governor, director of the Washington State Department of Revenue, county, county treasurer, and county assessor, seeking declaration and injunction prohibiting State and county from collecting retail sales and use tax, business and occupation tax, and personal property tax from non-Indian owned businesses located in the municipality, arguing that the collection of taxes imposed on tribal sovereignty and was preempted by operation of federal law.
*Holdings: The District Court, Barbara Jacobs Rothstein, J., held that:
1) State and county's collection of taxes from non-Indian owned businesses in municipality located on Indian reservation was not preempted by operation of federal law, and
2) State and county's collection of taxes did not infringe on Indian tribe's tribal sovereignty.
Ordered accordingly.
Related News: Tulalip Tribes appeal a loss in federal sales-tax case (Herald Net) 12/21/18
*Synopsis: Foster and adoptive parents and states of Texas, Louisiana, and Indiana brought action against United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA) and its Director, BIA Principal Assistant Secretary for Indian Affairs, Department of Health and Human Services (HHS) and its Secretary seeking declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians intervened as defendants. Plaintiffs moved for summary judgment.
*Holdings: The District Court, Reed O'Connor, J., held that:
1) ICWA's mandatory placement preferences violated equal protection;
2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine;
3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment;
4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA);
5) BIA regulations were not entitled to Chevron deference; and
6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care.
Motions granted in part and denied in part.
Related News: Indian Child Welfare Act likely headed to Supreme Court (Indianz) 3/19/19, 'They are not your children': Future of Indian Child Welfare Act in hands of appeals court (Indianz) 3/14/19,AUDIO: 5th Circuit Court of Appeals oral arguments in Brackeen v. Zinke (Indianz) 3/13/19, Tribes offer overwhelming support for Indian Child Welfare Act (Navajo-Hopi Observer) 1/22/19, Murkowski, Young file amicus brief in support of Indian Child Welfare Law (United States Senator Lisa Murkowski) 1/16/19, Attorney General Ferguson urges appeals court to preserve Indian Child Welfare Act (Washington State, Office of the Attorney General) 1/15/19, Kids, courts, and the Indian Child Welfare Act (CATO Institute) 12/17/18, U.S. to defend Indian Child Welfare Act (Indian Country Today) 12/3/18, South Dakota Supreme Court upholds constitutionality of Indian Child Welfare Act, contrary to October federal ruling (Prairie Business) 11/27/18, 'Intentional and direct attack': Tribes vow fight for Indian Child Welfare Act (Indianz) 10/25/18, ICWA decision brings push back from Tribe (Cherokee One Feather) 10/19/18, Federal judge strikes down ICWA (Rapid City Journal) 10/9/18
*Synopsis: Construction company brought action against non-profit corporation that was chartered under tribal law by a federally recognized Indian tribe, alleging breach of contract, arising from company's work on construction of apartment complex within Indian reservation boundaries. Corporation moved to dismiss.
*Holdings: The District Court, Daniel L. Hovland, Chief Judge, held that corporation functioned as atribal agency, and thus corporation was not subject to diversity jurisdiction.
Motion granted.
Legal Topics: Comity; Enrollment; Elections
*Synopsis: Native Americans who were residents of North Dakota brought action against North Dakota Secretary of State alleging that North Dakota statute requiring that qualified elector must provide a valid form of identification to proper election official before receiving a ballot violated Equal Protection Clause of Fourteenth Amendment and Section 2 of the Voting Rights Acts. The United States District Court for the District of North Dakota granted residents' motion for preliminary injunction enjoining Secretary from enforcing statutory requirement that a voter produce identification or a supplemental document with a current residential street address, ordering the Secretary to accept another form of identification that included a current residential street address or a current mailing address in North Dakota, and ordering the Secretary to accept any form of tribal identification that set forth a name, date of birth, and current residential street address or mailing address. Secretary appealed, seeking to stay the district court's order that voters must be deemed qualified if they present identification or a supplemental document with a current mailing address rather than a current residential street address.
*Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
1) Native American resident of North Dakota had standing to raise facial challenge to North Dakota statute setting forth voter identification requirements;
2) North Dakota Secretary of State was likely to succeed on appeal from district court's order granting preliminary injunction;
3) State would be irreparably harmed without stay of preliminary injunction;
4) proximity to general election did not preclude entry of stay of preliminary injunction; and
5) stay of preliminary injunction was warranted.
Motion granted.
*Synopsis: Confederated tribes of Colville Reservation brought CERCLA action against State of Washington and Canadian company, seeking to hold them liable for dumping several million tons of industrial waste into Columbia River. After phase one of trifurcated bench trial, the United States District Court for the Eastern District of Washington, No. 2:04-cv-00256-LRS, Lonny R. Suko, J., found company was a liable party under CERCLA and, in phase two of trial, found company liable for more than $8.25 million of plaintiffs' response costs. After partial judgment was entered, company appealed.
*Holdings: The Court of Appeals, Gould, Circuit Judge, held that:
1) District Court did not abuse its discretion by directing entry of judgment on company's liability under CERCLA for response costs;
2) company “expressly aimed” waste it dumped into River at State of Washington, thereby establishing requisite effects in Washington for exercise of specific personal jurisdiction;
3) tribes were entitled to recover investigation costs, as recoverable costs of “removal”;
4) tribes were entitled to recover reasonable attorney fees for prevailing in their action;
5) company was not entitled to divisibility defense.
Affirmed.
Related News: Colville Tribes win big in effort to keep homelands safe (Indianz) 9/17/18
*Synopsis: Native American tribes and several tribe members brought § 1983 putative class action against state officials, alleging policies, practices, and procedures during 48–hour custody hearings relating to the removal of Native American children from their homes based on abuse and neglect allegations violated the Fourteenth Amendment's due process clause and the Indian Child Welfare Act (ICWA) by denying parents a meaningful post-deprivation hearing after their children were taken into temporary state custody. The United States District Court for the District of South Dakota, Jeffrey L. Viken, District Judge, 993 F.Supp.2d 1017, denied defendants' motion to dismiss, 100 F.Supp.3d 749 granted plaintiffs' partial summary judgment motion, and, 2016 WL 7324077, granted declaratory and injunctive relief. Defendants appealed.
*Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
1) Younger abstention was warranted, and
2) exception to Younger abstention for patently unconstitutional actions did not apply.
Vacated and remanded.
Related News: U.S. Appeals court declines to reconsider local ICWA case (Rapid City Journal) 12/15/18, ACLU will ask Eighth Circuit to reconsider opinion on ICWA, due process (SDPB Radio) 9/18/18, ICWA: 8th Circuit overturns federal ruling (SDPB Radio ) 9/17/18
*Synopsis: State and Indian tribe brought action against United States Department of the Interior (DOI) seeking to amend secretarial procedures authorizing tribe to conduct gaming under Indian Gaming Regulatory Act (IGRA), in order to enable tribes' joint venture, a non-tribal entity, to operate a commercial casino on state land. Multinational commercial casino operator moved to intervene, and DOI moved to dismiss
*Holdings: The District Court, Rudolph Contreras, J., held that:
1) casino operator satisfied injury-in-fact requirement for Article III standing;
2) casino operator had competitor standing;
3) casino operator had legally protected interest in action, as required to grant intervention as matter of right; and
4) casino operator satisfied inadequate representation requirement, as required to grant intervention as matter of right;
5) DOI's interpretation of IGRA was not entitled to Chevron deference;
6) Secretary of the Interior was under no obligation to approve amendments to secretarial procedures within 45 days of submission; and
7) state and tribe failed to identity a nondiscretionary duty imposed by IGRA, as required to state claim under Administrative Procedure Act.
Motions granted.
Legal Topics: Jurisdiction; Land Title
*Synopsis: Indian tribe filed suit on its own behalf and as parens patriae on behalf of its members against financial services company and national banking association that was company's primary subsidiary, asserting claims under federal, state, and tribal law arising out of unfair, deceptive, fraudulent, and illegal banking practices that allegedly harmed the tribe's sovereign and quasi-sovereign interests. Company and association moved to dismiss.
*Holdings: The District Court, James A. Parker, Senior District Judge, held that:
1) consent order between Consumer Financial Protection Bureau (CFPB) and association finding that association violated the Consumer Financial Protection Act (CFPA) operated as final judgment on the merits of CFPA claims against the association, as required for the order to bar under the res judicata doctrine tribe's CFPA claims;
2) company was in privity with association, as required for consent order to bar under the res judicata doctrine tribe's CFPA claims;
3) tribe's CFPA claims formed same cause of action as claims resolved by consent order, as required for the consent order to bar under the res judicata doctrine the tribe's claims;
4) tribe was in privity with CFPB for its CFPA claims, as required for consent order to bar under the res judicata doctrine tribe's CFPA claims; and
5) tribe did not allege injury to quasi-sovereign interest that was sufficiently concrete to create actual controversy, and thus, tribe lacked standing in its parens patriae capacity to maintain claims for violations of the Equal Credit Opportunity Act (ECOA), the Electronic Funds Transfer Act (EFTA), the Truth in Lending Act (TILA), and the Fair Credit Reporting Act (FCRA).
Motions granted.
Related News: Federal judge dismisses Navajo's lawsuit against Wells Fargo (U.S. News) 9/27/18
Legal Topics: Endangered Species Act - Grizzly Bears
*Synopsis: Indian tribes, environmental organizations, animal-welfare groups, and others brought actions alleging, inter alia, that the United States Fish and Wildlife Service violated the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) when it issued final rule “delisting” or removing grizzly bear population from threatened species list. Following consolidation of cases, the parties filed motions and cross-motions for summary judgment.
*Holdings: The District Court, Dana L. Christensen, Chief Judge, held that:
1) the court had subject matter jurisdiction over plaintiffs' claims, notwithstanding the Service's regulatory review of its final delisting rule;
2) the Service acted arbitrarily and capriciously in delisting the Greater Yellowstone Ecosystem grizzly bear without further consideration of the impact on the remaining members of the lower-48 grizzly designation;
3) the Service's failure to require a recalibration provision in the Conservation Strategy was arbitrary and capricious; and
4) the Service's determination that it was not required to provide for either natural connectivity or translocation was contrary to the best available science.
Plaintiffs' motions granted, defendants' cross-motions denied, and final rule vacated and remanded.
*Synopsis: Indian tribe brought action under Administrative Procedure Act (APA) against the United States, challenging Department of Interior's (DOI) decision not to approve an amendment to a gaming compact between the tribe and State of Wisconsin under Indian Gaming Regulatory Act (IGRA). After the United States District Court for the District of Columbia, Colleen Kollar-Kotelly, J., 317 F.R.D. 6, granted leave to intervene to nearby tribe that sought to develop competing gaming facility, tribe moved for summary judgment, while United States and nearby tribe cross-moved for summary judgment.
*Holdings: The District Court held that:
1) IGRA provision permitting tribal-state compact on any subjects directly related to operation of gaming activities was ambiguous, as would support Chevron deference;
2) interpretation of IGRA by Assistant Secretary of Indian Affairs was based upon a permissible construction of statute, as would entitle decision to Chevron deference;
3) Secretary's determination that exclusivity provision transferring responsibility for tribe's revenues onto another tribe violated IGRA was reasonable, entitling decision to Chevron deference;
4) Secretary's determination that proposed compact would have required another tribe to take responsibility for tribe's revenues was not arbitrary and capricious, as required to support tribe's APA claim;
5) Secretary's determination that compact's inclusion of loss of revenue from class II gaming and ancillary businesses violated IGRA was reasonable, and thus was entitled to Chevron deference; and
6) Secretary's determination that proposed compact calculated loss mitigation payments based on revenue from class II gaming and ancillary businesses was not arbitrary and capricious, as required to support tribe's APA claim.
Tribe's motion denied; United States and nearby tribe's motions granted.
*Synopsis: Federally recognized Indian tribe brought action against Secretary of the Interior and other federal officials, seeking declaratory and injunctive relief in its favor in connection with its claims that it was successor to Creek Nation, and as such, had treaty-protected rights of shared jurisdiction over land within the boundaries of the historic Creek Nation reservation. Defendants moved to dismiss for failure to state claim.
*Holdings: The District Court, Colleen Kollar-Kotelly, J., held that:
1) it court had subject-matter jurisdiction, but
2) tribe failed to adequately allege specific conduct by Secretary of Interior and other officials that violated Indian Reorganization Act (IRA), as required to state claim for declaratory and injunctive relief.
Motion granted.
Legal Topics: Huning and Fishing Rights
*Synopsis: Indian tribe brought action against federal and Rhode Island agencies, alleging breach of contract and seeking declaratory and injunctive relief regarding highway bridge reconstruction over historic tribal land. The United States District Court for the District of Rhode Island, William E. Smith, Chief District Judge, 2017 WL 4011149, granted defendants' motion to dismiss for lack of subject matter jurisdiction. Tribe appealed.
*Holdings: The Court of Appeals, Kayatta, Circuit Judge, held that:
1) National Historic Preservation Act (NHPA) did not expressly or implicitly waive federal government's sovereign immunity, and
2) tribe's breach of contract claim did not have any substantive basis in NHPA, and thus federal court lacked federal question jurisdiction over breach of contract claim against state agencies.
Affirmed.
*Synopsis: Tribe petitioned for review of order of Department of the Interior (DOI) requiring Tribe to provide back pay and other relief to former chairman of Tribe's governing committee after finding that chairman was removed from committee in retaliation for whistleblowing.
*Holdings: The Court of Appeals, Friedland, Circuit Judge, held that:
1) chairman performed services on behalf of Tribe, as required for whistleblower protections of American Recovery and Reinvestment Act (ARRA) to apply to chairman;
2) DOI's order did not infringe Tribe's sovereignty and powers of self-governance;
3) Congress acted within its spending power in conditioning the receipt by Tribe of ARRA funds on the waiver of the right to a hearing with cross-examination before the Tribe could be found to have violated ARRA's whistleblower protections;
4) six months between chairman's disclosure of misuse of federal funds and his removal from board was within time frame that could have led reasonable person to conclude that chairman's whistleblowing was a contributing factor in his removal; and
5) DOI's finding that Tribe's removal of chairman was retaliatory was not arbitrary or capricious.
Petition denied.
Related News Stories: Chippewa Cree Tribe loses bid to silence whistleblower (Indianz) 8/21/18
*Synopsis: Federally recognized Indian tribe brought action against United States, through Department of Interior (DOI), claiming Fifth Amendment taking of tribe's reserved water rights and alleged mismanagement of water rights, arising from federal government's diversion of water from river running along reservation's western boundary. The United States Court of Federal Claims, Robert H. Hodges, Jr., Senior Judge, 132 Fed.Cl. 408, granted United States' motion to dismiss. Tribe appealed.
*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that tribe lacked Article III standing.
Affirmed.
*Synopsis: Indian tribe and tribal health program brought action against Department of Veterans Affairs (VA) for failing to reimburse program for care it provided to veterans at tribal facilities. The United States District Court for the District of Arizona, No. 2:16-cv-00772-ROS, Roslyn O. Silver, Senior Judge, 2017 WL 2424721, dismissed complaint, and tribe appealed.
*Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that district court lacked subject matter jurisdiction over action under Veterans' Judicial Review Act (VJRA).
Affirmed.
Related News Stories: Gila River Indian Community denied funds for tribal veterans (Indianz) 8/17/18
*Synopsis: United States brought action against tribal manufacturer of tobacco products located on land held in trust by United States, seeking to recover for unpaid federal excise taxes, associated penalties and interest. The United States District Court for the Eastern District of Washington, No. 2:12-cv-03089-RMP, Rosanna Malouf Peterson, J., 2014 WL 4264803, entered summary judgment for government. Manufacturer appealed.
*Holdings: In matters of first impression, the Court of Appeals, McKeown, Circuit Judge, held that:
1) the General Allotment Act did not provide manufacturer an exemption from imposition of the federal excise tax, and
2) provisions of 1855 Yakama Treaty did not contain express exemptive language sufficient to relieve corporation of its liability for federal excise tax.
Affirmed.
*Synopsis: Indian tribe brought action against United States, Secretary and Associate Deputy Secretary of Interior Department, Treasury Secretary, and another tribe seeking declaratory judgment that property acquired pursuant to Oklahoma Indian Welfare Act (OIWA) was purchased for its benefit, and order compelling government to assign property to it and provide it with accounting of related trust funds and assets. The United States District Court for the Eastern District of Oklahoma, No. 6:06-CV-00558-RAW, Ronald A. White, J., granted government's motion for partial judgment on pleadings, 2008 WL 11389448, granted other tribe's motion to dismiss, 2016 WL 93848, and entered summary judgment in government's favor, 2016 WL 7495806. Tribe appealed.
*Holdings: The Court of Appeals, Lucero, Circuit Judge, held that:
1) other tribe was necessary party;
2) other tribe did not waive its tribal immunity; and
3) Interior Board of Indian Appeals' (IBIA) determination that other tribe was legal beneficiary of funds was supported by substantial evidence and was not arbitrary or capricious.
Affirmed.
*Synopsis: Indian children, their adoptive parents, and next friends brought action against the Bureau of Indian Affairs, the United States Secretary of the Interior, and Arizona Department of Child Safety, seeking declaratory and injunctive relief relating to the application of the allegedly unconstitutional Indian Child Welfare Act (ICWA) to their adoption proceedings. The United States District Court for the District of Arizona, Neil V. Wake, J., 2017 WL 1019685, dismissed for lack of standing. Plaintiffs appealed.
*Holdings: The Court of Appeals held that action was moot.
Vacated and remanded with instructions.
Related News Stories: Judge upholds Indian Child Welfare Act (Arizona Daily Sun) 8/7/18.
*Synopsis: State of California and United States brought action against federally recognized Indian tribe, seeking injunctive relief prohibiting tribe from continuing to operate a server-based bingo game that allowed patrons to play computerized bingo over the internet. The United States District Court for the Southern District of California, Anthony J. Battaglia, J., 2016 WL 10650810, granted plaintiffs' motion for summary judgment. Tribe appealed.
*Holdings: The Court of Appeals, Carlos T. Bea, Circuit Judge, held that:
1) patrons' act of placing a bet or wager on game constituted gaming activity that was not located on Indian lands, and
2) as a matter of first impression, tribe's operation of game violated the Unlawful Internet Gambling Enforcement Act.
Affirmed.
Related News: Ninth Circuit affirms illegality of tribe's online gambling site (JD Supra) 9/17/18
*Synopsis: Tribal inmate filed petition for writ of habeas corpus. Petitioner moved for immediate release.
*Holdings: The District Court, James O. Browning, J., held that:
1) petitioner was entitled to protections provided in Indian Civil Rights Act (ICRA);
2) petitioner's failure to exhaust his tribal court remedies precluded his immediate release; and
3) petitioner failed to demonstrate exceptional circumstances warranting his immediate release.
Motion denied.
*Synopsis: New York Native American tribe brought action against Department of the Interior under Administrative Procedure Act (APA) alleging abuse of discretion and violation of United States Code arising out of Assistant Secretary's decision to publish changed name of Wisconsin tribe to “Oneida Nation”, who filed petition to cancel New York tribe's trademark registration, in Federal Register, and approval of constitutional amendment in Department's regional office's secretarial election. Department filed motion to dismiss.
*Holdings: The District Court, Mae A. D'Agostino, J., held that:
1) alleged injury in fact arising out of ongoing trademark action was not redressable by New York tribe's action against Department;
2) confusion arising from Department's decisions was not sufficient injury in fact; and
3) confusion was not traceable Department of the Interior's decision.
Motion granted.
Legal Topics: Lands - Federal Trust Status
*Synopsis: Former employee brought action against employer, a tribal college that sat on tribal land, alleging sex-based discrimination claims under Title VII, and under the Montana Human Rights Act. College moved to dismiss for lack of subject matter jurisdiction on basis that college shared in Indian tribes' sovereign immunity.
*Holdings: The District Court, Dana L. Christensen, Chief Judge, held that:
1) method of college's creation weighed in favor of finding that college was an arm of tribes;
2) purpose of college's creation weighed in favor of finding that college was an arm of tribes;
3) structure, ownership, and management of college weighed in favor of finding that college was an arm of tribes;
4) tribe's intent to share it sovereignty with college weighed in favor of finding that college was an arm of tribes; and
5) financial relationship between tribes and college weighed in favor of finding that college was an arm of tribes.
Motion granted.
*Synopsis: Indian tribe and its wholly-owned government enterprise brought declaratory judgment action seeking determination that state court lacked jurisdiction over personal injury action brought by visitors to on-reservation gaming facility, on the basis that the Indian Gaming Regulatory Act (IGRA) did not permit shifting of jurisdiction to state court. The United States District Court for the District of New Mexico, Martha Vázquez, J., 2016 WL 9819590, granted visitors' and state court judge's motion for summary judgment. Tribe and enterprise appealed.
*Holdings: The Court of Appeals, Holmes, Circuit Judge, held that:
1) Court had subject matter jurisdiction;
2) IGRA provisions did not authorize tribe to allocate jurisdiction to state courts for visitors' tort claim;
3) “catch-all” provision in IGRA did not authorize tribe to allocate jurisdiction to state courts for visitors' tort claim; and
4) statutory-construction canon against surplusage construction of statutes was an independent and distinct ground for rejecting expansive reading of “catch-all” provision in IGRA.
Reversed and Remanded.
Related News Stories: Navajo Nation scores victory in dispute over slip and fall at casino (Indianz) 7/24/18
Legal Topics: Utilities; Rights-of-Way - Condemnation
Legal Topics: Jurisdiction; Racketeer Influenced and Corrupt Organizations Act
Related News Stories: Judge allows lawsuit against Crow nursing home to proceed (Great Falls Tribune) 7/28/18
*Synopsis: Tribe filed petition for review of decision of the United States Nuclear Regulatory Commission (NRC) leaving in effect license to construct a uranium mining project in the Black Hills of South Dakota, notwithstanding its determination that there was a significant deficiency in its compliance with the National Environmental Policy Act (NEPA).
*Holdings: The Court of Appeals, Garland, Chief Judge, held that:
1) NRC's order was not final, for purposes of jurisdiction under Hobbs Act;
2) NRC ruling was reviewable pursuant to collateral order doctrine;
3) NRC's ruling was contrary to NEPA;
4) harmless error doctrine did not justify NRC's ruling; and
5) remand to NRC was required.
Remanded.
*Synopsis: Challenger filed petition for inter partes review of patents related to treatment for alleviating symptoms of chronic dry eye. Following transfer of title of patents to tribe, tribe moved to terminate based on sovereign immunity and former owner of patents moved to withdraw. The United States Patent and Trademark Office, Patent Trial and Appeal Board, Nos. IPR2016-01127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, IPR2016-01132, IPR2017-00599, IPR2017-00576, IPR2017-00578, IPR2017-00579, IPR2017-00583, IPR2017-00585, IPR2017-00586, IPR2017-00594, IPR2017-00596, IPR2017-00598, IPR2017-00600, IPR2017-00601, 2018 WL 1100950, and 2018 WL 1055669, denied motions, and tribe and former owner appealed.
*Holdings: The Court of Appeals, Moore, Circuit Judge, held that tribal sovereign immunity could not be asserted in inter partes review proceedings.
Affirmed
Related News Stories: St. Regis Mohawk Tribe appeals loss in patent case to Supreme Court (Indianz) 1/16/19, Next stop for Tribe's PTAB sovergeign immunity case could be Supreme Court (BioCentury) 10/23/18, U.S. Court rejects Allergan bid to shield patents through tribe deal (New York Times) 7/20/18
*Synopsis: Tribal corporations brought action against United States Attorney General seeking declaration judgment that they were not subject to Contraband Cigarettes Trafficking Act's (CCTA) recordkeeping requirements. The United States District Court for the District of Columbia, No. 1:16-cv-01652, Christopher R. Cooper, J., 253 F.Supp.3d 303, entered summary judgment in government's favor, and corporations appealed.
*Holdings: The Court of Appeals, Randolph, Senior Circuit Judge, held that:
1) CCTA's recordkeeping requirements applied to tribal corporations, and
2) tribal corporations were “persons” subject to CCTA's recordkeeping requirements.
Affirmed
Related News Stories: Winnebago Tribe defends sovereignty in dispute with state officials (Indianz) 12/11/18
Legal Topics: Oil Pipeline; Racketeer Influenced and Corrupt Organizations Act
*Synopsis: Non-profit organization brought action against the Department of the Interior (DOI) and its Bureau of Indian Affairs (BIA), seeking to prevent class III gaming activity by the North Fork Rancheria of Mono Indians on a parcel of land in Madera, California, alleging that the Secretary of the Interior's decision to issue Secretarial Procedures regulating gaming violated the Johnson Act, the National Environmental Policy Act (NEPA), the Clean Air Act (CCA), and the Indian Gaming Regulatory Act (IGRA). North Fork Rancheria of Mono Indians tribe intervened. Parties filed cross-motions for summary judgment, and organization moved for stay of proceedings pending decision of California Supreme Court in organization's state court action contending that the Governor of California lacked the authority, under California law, to concur to the Secretary's determination.
*Holdings: The District Court, Anthony W. Ishii, Senior District Judge, held that:
1) Secretary's issuance of Secretarial Procedures did not violate Johnson Act;
2) under rule of reason, Secretary was not required to complete Environmental Assessment (EA) or Environmental Impact Statement (EIS) in issuing Secretarial Procedures;
3) Secretary's decision not to conduct conformity determination into whether emissions at proposed gaming site exceeded threshold amounts did not violate Clean Air Act (CAA);
4) State of California was indispensable party in organization’s claim that Secretarial Procedures were invalid because Governor of California lacked authority to concur in Secretary's determination; and
5) District Court would not stay result of organization's claim.
Organization's motion for summary judgment denied; defendants' motion for summary judgment granted; organization's motion to stay denied.
*Synopsis: Indian tribe brought action against Governor, State Treasurer, and State Secretary of Revenue, seeking declaration that under federal law, State lacked authority to impose State's excise tax in connection with services performed by non-Indian contractors for tribe's on-reservation construction project for renovation and expansion of casino. Parties filed cross-motions for summary judgment.
*Holdings: The District Court, Karen E. Schreier, J., held that:
1) Indian Gaming Regulatory Act (IGRA) preempted State's excise tax, to extent that State sought to apply the tax to services performed by non-Indian contractors for construction project to renovate and expand tribe's on-reservation casino;
2) contractor's activities fell within IGRA's catchall provision for tribal-State compacts, as basis for preemption;
3) excise tax infringed on tribe's ability to govern itself, as basis for preemption; but
4) in light of State's assertion of Eleventh Amendment immunity, district court lacked jurisdiction to grant tribe's claim for refund of State's excise tax.
Motions granted in part and denied in part; refund claim dismissed.
Legal Topics: Tribal Sovereign Immunity
Legal Topics: Official Tribal Government
*Synopsis: Government brought action against Indian tribe member seeking to reduce income tax assessments on gaming revenue distributions to judgment. Tribe intervened as a defendant. The United States District Court for the Southern District of Florida, No. 1:14–cv–22441–CMA, Cecilia M. Altonaga, J., 2016 WL 7539132, granted in part government's motion for summary judgment on affirmative defense that distributions were exempt from taxation under Tribal General Welfare Exclusion Act, following bench trial, 2016 WL 6995455, issued findings of fact and conclusions of law and entered judgment against defendants, and denied tribe's motion to alter or amend judgment. Defendants appealed.
*Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that:
1) Indian general welfare benefits exemption did not apply to distributions;
2) distributions did not derive from tribal land, and, thus, were not exempt from federal taxation on such basis;
3) District Court did not abuse its discretion in denying tribe's motion to amend judgment entered against it.
Affirmed
Related News Stories: Florida Tribal casino revenues subject to Federal taxes, 11th Circuit says (Daily Report) 6/4/18
Legal Topics: Tribal Sovereign Immunity
*Synopsis: Chinook Indian Nation brought action against Department of the Interior (DOI) and the Bureau of Indian Affairs (BIA), seeking declaratory judgment that Chinook Indian Nation was federally recognized sovereign Indian nation, and directing Secretary of the Interior to place the Nation on the list of federally acknowledged Indian tribes, and challenging regulations promulgated by agencies prohibiting Nation from re-petitioning federal government for tribal acknowledgement. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
*Holdings: The District Court, Ronald B. Leighton, J., held that:
1) district court was barred, under political question doctrine, from declaring whether Nation was federally recognized tribe;
2) Nation had standing to challenge regulation prohibiting Nation from re-petitioning federal government for tribal acknowledgement; and
3) Nation sufficiently stated claim alleging that DOI violated due process.
Motion granted in part; denied in part.
Related News Stories: Chinook tribe a step closer to recognition as Judge advances claims (Herald and News) 6/21/18
*Synopsis: Walker River Paiute Tribe and United States brought action against River Irrigation District, seeking recognition of Tribe's right to a certain additional amount of water from river under decree adjudicating water rights in river basin. County intervened as plaintiff, requesting that decree court reopen and modify the final decree to recognize rights of county and public to have minimum levels of water to maintain viability of lake in the county. The United States District Court for the District of Nevada, Robert C. Jones, J., 2015 WL 3439122, dismissed action. County appealed.
*Holdings: The Court of Appeals, Jay S. Bybee, Circuit Judge, held that certification of question of whether, and to what extent, public trust doctrine applied to water rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent, was appropriate.
Question certified, proceedings stayed.
*Synopsis: Federal government brought action to establish water rights in river basin on behalf of tribe. The United States District Court for the District of Nevada, St. Sure, J., issued decision, 11 F.Supp. 158, and entered decree awarding water rights to various claimants. Federal government appealed. The United States Court of Appeals for the Ninth Circuit, 104 F.2d 334, reversed in part. On remand, the District Court amended and retained jurisdiction to modify decree. Later in same action, river irrigation district filed petition to enjoin state water resources control board from implementing restrictions on its water licenses. Tribe and federal government filed counterclaims asserting new water rights. The District Court, Robert Clive Jones, J., 2015 WL 3439106, granted irrigation district's motion to dismiss counterclaims for lack of subject matter jurisdiction, concluding that while continuing jurisdiction existed, counterclaims were new action barred by res judicata. Tribe and federal government appealed.
*Holdings: The Court of Appeals, A. Wallace Tashima, Circuit Judge, held that:
1) continuing jurisdiction existed;
2) counterclaims were not new action;
3) dismissal based on res judicata was improper; and
4) Court of Appeals would reassign case.
Reversed, remanded, and reassigned.
*Synopsis: Arrestees, who were lay advocates in tribe, brought action against tribal officials, alleging that officials had violated Fourth Amendment and Indian Civil Rights Act by incarcerating and searching them. The United States District Court for the District of Utah granted officials' motion to dismiss for lack of subject matter jurisdiction. Arrestees appealed.
*Holdings: The Court of Appeals, Robert E. Bacharach, Circuit Judge, held that:
1) Court of Appeals would exercise its discretion to deny appointment of United States Attorney as counsel for arrestees;
2) arrestees were not detained within meaning of Indian civil Rights Act when they brought action against tribal officials; and
3) arrestees' Fourth Amendment claims were frivolous.
Affirmed.
*Synopsis: Indian tribe with casino, citizens' groups, and individuals brought action to enjoin the Bureau of Indian Affairs (BIA) from taking parcel of land into trust for other Indian tribe so that it could build casino and hotel complex. The United States District Court for the Eastern District of California, Troy L. Nunley, J., No. 2:12-cv-03021-TLN-AC, 2015 WL 5648925, granted summary judgment to defendants and, 2017 WL 345220, denied reconsideration. Plaintiffs appealed.
*Holdings: The Court of Appeals, Bea, Circuit Judge, held that:
1) BIA had authority under Indian Reorganization Act (IRA) to take parcel of land into trust for tribe seeking to build casino;
2) BIA's decision under IRA, that Indian tribe seeking to build casino needed BIA to take parcel of land in trust for it for economic development, was not arbitrary and capricious;
3) BIA's misdescription of parcel of land in notice of final agency determination did not render its decision arbitrary and capricious;
4) BIA satisfied Indian Gaming Regulatory Act's (IGRA) requirement for consultation with tribe that owned casino;
5) regulatory definition of “nearby” Indian tribe, with which BIA was required to consult under IGRA, was not arbitrary and capricious;
6) district court did not abuse its discretion when it struck, as outside administrative record, expert declaration;
7) BIA's decision under IGRA, that mitigation measures would prevent detrimental harm to surrounding community from new Indian casino, was not arbitrary and capricious; and
8) BIA's final environmental impact statement (FEIS) satisfied National Environmental Policy Act (NEPA) requirements.
Affirmed.
Legal Topics: Tribal Colleges; Tribal Sovereign Immunity
Legal Topics: Indian Gaming; Diversity Jurisdiction
*Synopsis: Tribal employer that operated casino on Indian reservation filed petition for review of order of the National Labor Relations Board (NLRB), No. 21-CA-125450, 363 NLRB No. 60, 205 L.R.R.M. 1591, 2015 WL 7873631, which affirmed as modified administrative law judge's (ALJ) decision, 2015 WL 3526140, that employer committed unfair labor practices in violation of the National Labor Relations Act (NLRA) by trying to stop union literature distribution in guest areas at casino's front entrance and in non-working areas near its employees' time clock. NLRB filed petition for enforcement of its order, and union intervened in opposition to employer.
*Holdings: The Court of Appeals, Berzon, Circuit Judge, held that:
1) union could not raise collateral estoppel defense affirmatively waived by NLRB;
2) NLRB's determination that tribal employer was “employer” within meaning of the NLRA was entitled to Chevron deference;
3) federal Indian law did not preclude NLRB's determination that tribal employer was “employer” within meaning of the NLRA;
4) employer sufficiently exhausted its claim that it did not violate the NLRA;
5) substantial evidence supported NLRB's determination that tribal employer committed unfair labor practice by trying to stop employees' union literature distribution to customers outside casino's front entrance; and
6) substantial evidence supported NLRB's determination that tribal employer committed unfair labor practice by disciplining employee for distributing union literature near casino's time clock.
NLRB's petition granted and employer's petition denied.
Related News Stories: Tribes and sovereignty still don't mix when it comes to labor laws (Indianz) 5/4/18,Court says NLRA applies to tribes (Gaming Today) 5/1/18
*Synopsis: Indian tribe and its chairman brought action alleging that Corps of Engineers violated Administrative Procedure Act (APA), Clean Water Act (CWA), and National Historic Preservation Act (NHPA) in issuing permit and exemption determinations allowing adjacent landowner's construction of farm road across wetland adjacent to lake. The United States District Court for the District of South Dakota, Roberto A. Lange, J., ruled that Corps's determination letters constituted final agency actions, 918 F.Supp.2d 962, dismissed some claims as untimely, 2014 WL 4678052, denied tribe's request for equitable tolling, 124 F.Supp.3d 958, and denied plaintiffs' request for injunctive relief and remanded NHPA claims to Corps, 2016 WL 5478428. Plaintiffs appealed.
*Holdings: The Court of Appeals, Tunheim, District Judge, sitting by designation, held that:
1) Corps' letter to tribe indicating that roadways met requirements for CWA's farm-road exemption and each constituted single and complete project did not constitute “final agency action”;
2) tribe's claim that Corps' determination that roadway had not been recaptured was nonjusticiable challenge to enforcement decision;
3) tribe was not entitled to equitably toll statute of limitations;
4) Corps did not unlawfully stack permit and exemption verifications; and
5) district court's determination that Corps did not unlawfully stack permit and exemption verifications was final appealable decision.
Affirmed.
*Synopsis: County in which parcel of land was located that Indian tribe sought to have taken into trust to operate a casino on brought action against National Indian Gaming Commission (NIGC) challenging Secretary of Interior's decision to take land into trust. The United States District Court for the District of Columbia, Scullin, Senior Judge, 197 F.Supp.3d 82, granted summary judgment to NIGC. County appealed.
*Holdings: The Court of Appeals, Srinivasan, Circuit Judge, held that:
1) Secretary did not abuse her discretion in reopening administrative record on remand;
2) Secretary's grant of 15-day extension to tribe to submit its response to county's submission of new evidence was not improper;
3) Secretary acted within her authority in setting a 20-day deadline for county to respond to tribe's expert's rebuttal report; and
4) Secretary's determination that members of modern-day tribe were biological descendants of members of pre-1850 tribe was not arbitrary and capricious
Affirmed.
*Synopsis: Non-Indian brought action against Indian tribe seeking declaratory judgment regarding tribal court's subject matter jurisdiction over breach of contract claims. Non-Indian moved for preliminary injunction to enjoin Indian tribe from proceeding in tribal court, and tribe moved for preliminary injunction to enjoin parties from proceeding in non-Indian's state court breach of contract action.
*Holdings: The District Court, Clark Waddoups, J., held that:
1) it was substantially likely that Utah state court had subject matter jurisdiction over breach of contract claims, and thus non-Indian had likelihood of success on merits of position that tribal court did not have subject matter jurisdiction over claims, such that grant of a preliminary injunction in favor of non-Indian was warranted;
2) tribal parties did not have likelihood of success on merits of position that tribal court had subject matter jurisdiction over claims, and thus grant of a preliminary injunction in favor of tribe was unwarranted; and
3) tribal court's determination that tribal court had subject matter jurisdiction over breach of contract action was not entitled to preclusive effect or comity.
Non-Indian's motion granted, and tribe's motion denied.
Legal Topics: Indian Self-Determination and Education Assistance Act - Health Services
Legal Topics: Indian Civil Rights Act - Due Process
Legal Topics: Usual and Accustomed Fishing Areas
Legal Topics: Voting Rights
*Synopsis: Native American group brought action against, inter alia, Department of the Interior (DOI) challenging decision declining to grant federal recognition to group as Native American tribe. Parties cross-moved for summary judgment.
*Holdings: The District Court, Hillman, J., held that:
1) final determination by DOI that Native American group did not fulfill criteria for federal recognition as Native American tribe was not arbitrary and capricious, and
2) final determination by DOI did not violate group's procedural due process rights byrefusing to publish original positive proposed finding in favor of federal acknowledgment in the Federal Register.
Defendants' motion granted.
Related News Stories: Tribes denied federal recognition see mixed decisions in court system (Indianz) 4/3/18
*Synopsis: Band of Ottawa and Chippewa American Indians brought action against Secretary of the Interior, the Acting Assistant Secretary for Indian Affairs for the Department of the Interior (DOI), and the DOI itself, asserting violations of the due process and equal protection clauses of the Fifth Amendment, the Administrative Procedure Act (APA), and the Federally Recognized Indian Tribe List Act in connection with the DOI's failure to issue a decision on band's petition for recognition that was filed over 80 years prior and DOI's promulgation of regulations precluding band from re-petitioning for recognition. Defendants moved to dismiss.
*Holdings: The District Court, Amy Berman Jackson, J., held that band had Article III standing to pursue claims challenging the DOI's new regulations under the APA and Fifth Amendment.
Motion granted in part and denied in part.
Related News Stories: Tribes denied federal recognition see mixed decisions in court system (Indianz) 4/3/18
Legal Topics: Indian Arts and Crafts Act; Conterfeit Jewlery
Related News Stories: Fake turquoise jewelry is hurting Native Americans economically (Vox) 10/24/18
Legal Topics: Gaming - Authorization
*Synopsis: Indian band brought action alleging that Bureau of Land Management (BLM) and its district manager violated the National Historic Preservation Act (NHPA) by failing to reconsider their decision to allow mining project to proceed on land identified by band as traditional cultural property (TCP) and deemed eligible for inclusion on National Register of Historic Places by BLM. Project's operator intervened and filed cross-claims alleging that BLM's determination that land was eligible for inclusion on National Register violated National Historic Preservation Act (NHPA) and Administrative Procedure Act (APA). BLM and manager moved to dismiss operator's cross-claims.
*Holdings: The District Court, Larry R. Hicks, J., held that:
1) programmatic agreement gave operator ongoing consultation right with respect to National Register eligibility determinations for project land;
2) operator adequately alleged an injury in fact; and
3) operator had prudential standing to bring NHPA claims.
Motion denied.
Legal Topics: Tribal Sovereign Immunity
*Synopsis: Oil and gas company brought declaratory judgment action against four members of an Indian tribe and the Chief Judge of a tribal court, seeking a declaration that the tribal court lacked jurisdiction over a breach of contract action filed by the four individual defendants which sought to recover royalties pursuant to an oil and gas mining lease. Similarly, a resources company which was a defendant in the same tribal court lawsuit also filed a declaratory judgment action against the same defendants, as well as against the Court Clerk/Consultant of the tribal court. Both federal court actions were stayed pending resolution of the tribal court action, but after tribal supreme court ruled that the tribal district court had jurisdiction over the matter, the federal plaintiffs filed motions for preliminary injunction preventing defendants from proceeding further with the underlying tribal court action. Tribal court judge and clerk moved to dismiss. A third energy company that was also a defendant in the underlying tribal court action moved to intervene, and after the motion was granted, it filed its own complaint against the same tribal defendants and moved for preliminary injunctive relief. Thereafter the District Court consolidated the first two federal lawsuits.
*Holdings: The District Court, Daniel L. Hovland, J., held that:
1) Chief Judge and Court Clerk of tribal court were not entitled to sovereign immunity in federal court lawsuit;
2) plaintiffs were not required to exhaust their tribal remedies; and
3) factors weighed in favor of issuance of a preliminary injunction against any tribal court exercise of jurisdiction in the case.
Motions granted in part and denied in part.
Legal Topics: Divorce and Custody
*Synopsis: Indian tribe brought action under Administrative Procedure Act (APA) alleging that Army Corps of Engineers' authorization of crude oil pipeline under federally regulated waterway bordering tribes' reservations violated National Historic Preservation Act (NHPA), National Environmental Policy Act (NEPA), Treaty of Fort Laramie, federal government's trust responsibilities, and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). After case was consolidated with similar cases, parties filed cross-motions for summary judgment.
*Holdings: The District Court, James E. Boasberg, J., held that:
1) tribe had standing to bring action;
2) tribe's claim that Corps' authorization of pipeline violated NHPA was moot;
3) agencies' decision to issue three environmental assessments (EA), three findings of no significant impact (FONSI), and one categorical exclusion classification did not violate NEPA's anti-segmentation principle;
4) tribe forfeited argument that authorizations were “similar actions” for purposes of NEPA's anti-segmentation principle;
5) EAs and FONSIs were not “similar actions”; and
6) any violation of anti-segmentation principle was harmless error.
United States' motion granted.
Legal Topics: Rights-of-Way; Trespass
*Synopsis: Married taxpayers petitioned for redetermination of income-tax deficiency arising from disallowance of exemption for income earned from selling gravel mined from land of Seneca Nation of Indians, of which wife was enrolled member. IRS moved for summary judgment.
*Holdings: The Tax Court, Holmes, J., held that:
1) General Allotment Act of 1887 did not exempt married taxpayers' income from gravel sales;
2) Canandaigua Treaty between federal government and Seneca Nation did not create income-tax exemption for individual member of Seneca Nation, at least insofar as income was not derived from land allotted to such member;
3) taxpayers were liable for additions to tax for failure to timely file returns;
4) IRS failed to meet its burden of production with respect to taxpayers' liability for accuracy-related penalties; and
5) in opinion by Lauber and Pugh, JJ., federal government's Treaty with the Seneca conferred rights on Seneca Nation of Indians, not its constituent members, and it covered only taxes imposed by State of New York.
Motion granted in part and denied in part.
Related News Stories: Gravel mining income not exempt under Native American treaties (Journal of Accountancy) 6/1/18, Indian tribes and income taxes (Norton Rose Fulbright) 4/10/15
*Synopsis: Personal representative of estate of owner of restricted Indian land appealed decision of the Interior Board of Indian Appeals (IBIA) upholding denial of application to complete transfer of land to Bureau of Indian Affairs (BIA). The United States District Court for the Northern District of Oklahoma, No. 4:15-CV-00166-CVE-TLW, Claire V. Eagan, 2016 WL 5390890, affirmed. Personal representative appealed.
*Holdings: The Court of Appeals, Scott M. Matheson, Jr., Circuit Judge, held that:
1) BIA had not made final decision to acquire property;
2) Secretary of the Interior acted reasonably in interpreting applicable statute and regulation to require that applicant be living at time of agency's decision regarding whether to take restricted Indian land into trust; and
3) remand was warranted for district court to determine whether personal representative was entitled to exception to exhaustion requirement.
Affirmed in part, reversed in part, and remanded.
*Synopsis: Native American nation brought action against state of Oklahoma, seeking to enforce arbitration award obtained in connection with dispute under tribal-state gaming compact. The United States District Court for the Western District of Oklahoma, Robin J. Cauthron, J., 2016 WL 3461538, entered order enforcing award. State appealed.
*Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
1) de novo review provision of binding arbitration clause in tribal-state gaming compact was legally invalid, and
2) district court erred in failing to sever binding arbitration clause from tribal-state gaming compact.
Remanded with instructions to vacate arbitration award.
*Synopsis: Nonprofit organization and individuals brought action challenging decision of the United States Department of the Interior, its Secretary of the Interior and Acting Assistant Secretary–Indian Affairs in their official capacities, and the Bureau of Indian Affairs (BIA) to acquire land in trust for tribe, alleging that actions taken by Department employees in lieu of Assistant Secretary–Indian Affairs, a vacant office at the time, violated department regulations and the Federal Vacancies Reform Act (FVRA). Parties cross-moved for summary judgment.
*Holdings: The District Court, Trevor N. McFadden, J., held that:
1) Secretary of Interior and Assistant Secretary–Indian Affairs could delegate non-exclusive authority to make final decision to acquire land in trust for Indian tribe, and
2) non-exclusive authority of the Assistant Secretary–Indian Affairs to make final decision to acquire land in trust for Indian tribe was properly delegated to Principal Deputy Assistant Secretary and did not violate FVRA.
Ordered accordingly.
*Synopsis: Faction within federally recognized Indian nation brought action challenging decisions by Bureau of Indian Affairs (BIA) and Interior Department's Assistant Secretary for Indian Affairs that recognized rival faction as nation's governing body for purposes of certain contractual relationships between nation and United States. Rival faction moved to intervene.
*Holdings: The District Court, Colleen Kollar–Kotelly, J., held that:
1) rival faction had standing to intervene, and
2) rival faction was entitled to intervene as of right.
Motion granted.
*Synopsis: Indian Tribe brought action against State of Texas and state officials, seeking injunctive and declaratory relief under Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act and the Indian Gaming Regulatory Act (IGRA) to allow Tribe to govern gaming activities on Tribal lands. Texas filed competing motion for injunctive relief. The United States District Court for the Eastern District of Texas, John Hannah, Jr., 208 F.Supp.2d 670, granted Texas a permanent injunction enjoining Tribe from operating casino. After Tribe notified Texas of its intent to open Class II gaming facility, State moved to hold Tribe in contempt and moved for declaration finding that IGRA did not apply to Tribe, Tribe moved for relief from judgment ordering permanent injunction, and both parties moved for summary judgment.
*Holdings: The District Court, Keith F. Giblin, United States Magistrate Judge, held that:
1) National Indian Gaming Commission's (NIGC) letter to Indian Tribe advising that Tribe's lands were eligible for gaming was not entitled to Chevron deference, and
2) Restoration Act, which applied State of Texas's gaming laws to Indian Tribe in Texas, applied to Tribe's action, rather than IGRA.
Ordered accordingly.
Legal Topics: Trademarks
*Synopsis: Community groups and Indian tribe with competing casino brought action challenging Department of Interior's decision to take a tract of land into trust for Indian tribe and authorize it to operate a casino there. The United States District Court for the District of Columbia, Beryl A. Howell, Chief Judge, 204 F.Supp.3d 212, granted partial summary judgment to Department and dismissed remaining claims. Plaintiffs appealed.
*Holdings: The Court of Appeals, Tatel, Circuit Judge, held that:
1) Indian tribe constituted a “recognized Indian tribe” at time that Indian Reorganization Act (IRA) was passed;
2) substantial evidence supported Department's conclusion that Indian tribe, as it currently existed, could trace its roots to Indians who lived on tribe's reservation at time that IRA was passed;
3) court would defer to Department's reasonable interpretation of provision of Indian Gaming Regulatory Act (IGRA) that required an Indian casino to not be a detriment to the surrounding community;
4) substantial evidence supported Department's determination that permitting Indian tribe to operate a casino on its newly acquired lands would not be detrimental to the surrounding community; and
5) relevant date for Department's analysis of whether proposed casino would comply with Clean Air Act (CAA) requirements was when the Department initially made its determination, rather than when it reissued its determination on remand.
Affirmed.
*Synopsis: Indian tribe brought action against state judge and non-Indian independent contractor, seeking temporary restraining order and preliminary injunction preventing state court from trying breach-of-contract claims.
*Holdings: The District Court, Clark Waddoups, J., held that:
1) District Court would decline to exercise supplemental jurisdiction over state law contract dispute;
2) doctrine of Younger abstention supported District Court's decision to decline to exercise supplemental jurisdiction; and
3) Anti-Injunction Act supported District Court's decision to decline to exercise supplemental jurisdiction.
Matter stayed pending resolution in state court.
Legal Topics: Fishing Rigts; Tribal Sovereign Immunity
*Synopsis: Litigation trustee brought strong-arm proceeding to avoid allegedly fraudulent transfers, and Indian tribe named as defendant moved to dismiss on sovereign immunity grounds. The United States Bankruptcy Court for the Eastern District of Michigan, Walter Shapero, J., 516 B.R. 462, denied the motion, and indian tribe appealed. The District Court, Paul D. Borman, J., 532 B.R. 680, reversed and remanded. On remand, the Bankruptcy Court, Shapero, J., 559 B.R. 842, granted motion to dismiss, and litigation trustee appealed.
*Holdings: The District Court, Borman, J., held that:
1) allegedly unauthorized acts of tribal officials could not result in waiver of Indian tribe's immunity from suit on state law fraudulent transfer claims asserted, in strong-arm capacity, by litigation trustee of trust established under debtor's confirmed Chapter 11 plan;
2) any waiver of tribe's immunity by its acts in filing proofs of claim and participating in bankruptcy case would be limited to adjudication of matters raised by tribe's proofs of claim;
3) trustee could not rely on equitable alter ego or veil-piercing doctrine in order to make required showing of express, unequivocal, unmistakable and unambiguous waiver of Indian tribe's sovereign immunity.
Affirmed.
Legal Topics: Tribal Water Rights; Sovereign Immunity
Legal Topics: Civil Rights of Prisoners
Legal Topics: Tribal Jurisdiction
Legal Topics: Tribal Jurisdiction; Opioids
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