Last updated: January 3, 2020
Legal Topics: Federal Recognition
*Synopsis: Defendant was convicted in the United States District Court for the Eastern District of Washington, Stanley A. Bastian, J., of assault of spouse by strangulation in Indian Country. Defendant appealed.
*Holding: The Court of Appeals, William A. Fletcher, Circuit Judge, held that application of three-level adjustment for strangulation to defendant's sentence did not constitute impermissable double counting. Affirmed.
Legal Topics: IGRA; Michigan Indian Land Claims Settlement Act
Legal Topics: Sovereign Immunity
Legal Topics: Indian Gaming; Rule 19
Legal Topics: Birthright Citizenship
Legal Topics: Sovereign Immunity
Legal Topics: Sovereign Immunity
Legal Topics: Banishment; Indian Civil Rights Act
Legal Topics: Sovereign Immunity; Trespassing
Legal Topics: Hazardous Waste Storage; Tribal Court Jurisdiction
Legal Topics: Tribal Jurisdiction
Legal Topics: Crab Fishing Regulations
*Synopsis: State of New York brought action against cigarette seller who shipped unstamped and untaxed cigarettes from Indian reservation in Washington State to Indian reservations in New York, alleging violations of state laws on cigarette sales, violations of the Contraband Cigarette Trafficking Act (CCTA) and the Prevent All Cigarette Trafficking Act (PACT). The United States District Court for the Eastern District of New York, Senior District Judge, 2016 WL 3962992, granted summary judgment, in part, in favor of seller, and granted summary judgment, in part, in favor of state. Parties cross-appealed.
*Holdings: The Court of Appeals, Jacobs, Circuit Judge, held that:
1) New York State's failure to universally enforce its tax laws did not violate dormant Commerce Clause;
2) Action was not barred by res judicata;
3) Cigarette seller violated New York tax law;
4) PACT applied to sales of cigarettes that originated and ended on Indian reservations located within the borders of different states; and
5) Seller was exempt as "Indian in Indian Country" under CCTA.
Affirmed in part, reversed in part, and remanded.
Legal Topics: Class III Gaming Compact; Indian Gaming
Legal Topics: Motions to Intervene
Legal Topics: Sovereign Immunity; Americans with Disabilities Act
Legal Topics: Jurisdiction; Federal Recognition
Legal Topics: Federal Recognition; Names
Legal Topics: Title VII
Legal Topics: Sexual Misconduct
Legal Topics: Fiduciary Trust
Caddo Nation of Oklahoma v. Witchita and Affiliated Tribes
Materials via Turtle Talk
2019 WL 4898669
No. 18-6142
United States Court of Appeals, Tenth Circuit.
October 4, 2019
Legal Topics: National Environmental Policy Act; National Historic Preservation Act
Legal Topics: Land in Dispute
Legal Topics: Boundary Dispute
Legal Topics: Interior Board of Indian Appeals
Legal Topics: Cultural Resources; Trust Relationship
Legal Topics: Trust Relationship; Indian Health Service
Legal Topics: Wind Energy; Bald and Golden Eagles Protection Act
*Synopsis: Indian tribe and environmental organizations brought actions alleging that Bureau of Land Management's (BLM) continuation of unproven geothermal leases violated Geothermal Steam Act (GSA), National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and federal government's fiduciary trust obligation to Indian tribes. After cases were consolidated, the United States District Court for the Eastern District of California, John A. Mendez, J., entered judgment on pleadings in BLM's favor, and plaintiffs appealed. The Court of Appeals, 793 F.3d 1147, reversed and remanded. On remand, the United States District Court for the Eastern District of California, John A. Mendez, J., 2017 WL 395479, entered summary judgment in plaintiffs' favor, and BLM appealed.
*Holdings: The Court of Appeals, Cristen, Circuit Judge, held that:
1) It had jurisdiction to review district court's order, and
2) Unproven geomthermal leases were not eligible for 40-year unit continuation based on single proven lease in unit.
Affirmed.
Legal Topics: Keystone XL Pipeline
Legal Topics: Housing and Community Development Act
Legal Topics: Indian Child Welfare Act
Legal Topics: Navajo-Hopi Land Settlement Act of 1974
Legal Topics: Indian Gaming and Regulatory Act
Legal Topics: Banishment; Tribal Sovereign Immunity
Legal Topics: Tribal-State Compacts
Legal Topics: Racketeer Influenced and Corrupt Organizations Act; Indian Country Payday Lenders
*Synopsis: Federally recognized Indian tribe that owned and operated casino, hotel, and store on reservation land brought action against Governor of State of South Dakota and state officials, alleging that state was not entitled to collect use tax on non-gaming purchases by individuals who were not tribe members, and was not entitled to deny tribe's renewals for alcoholic beverage licenses issued to the casino and the store. The United States District Court for the District of South Dakota, Lawrence L. Piersol, Senior District Judge, 269 F.Supp.3d 910, granted in part and denied in part parties' cross-motions for summary judgment. State appealed.
*Holdings: The Court of Appeals, Loken, Circuit Judge, held that:
1) Imposition of South Dakota’s use tax on nonmember purchases of amenities at casino, hotel, and gift shop was preempted by federal law, and
2) Tribe failed to meet its burden to demonstrate that the South Dakota’s alcohol license requirement was not reasonably necessary to further its interest in collecting valid state taxes.
Affirmed in part, reversed in part, and remanded.
Colloton, Circuit Judge, filed opinion concurring in part and dissenting in part.
*Synopsis: Indian tribe brought action against Governor, State Treasurer, and State Secretary of Revenue, seeking declaration that federal law preempted imposition of statewide excise tax on gross receipts of nonmember contractor for services performed in renovating and expanding tribe's gaming casino located on reservation. The United States District Court for the District of South Dakota, Karen E. Schreier, J., 325 F.Supp.3d 995, entered summary judgment in tribe's favor, and state appealed.
*Holdings: The Court of Appeals, Loken, Circuit Judge, held that Indian Gaming Regulatory Act (IGRA) did not preempt tax on contractos's gross receipts.
Reversed and remanded.
Colloton, Circuit Judge, concurred in judgment and filed opinion.
Kelly, Circuit Judge, dissented and filed opinion.
*Synopsis: Indian tribe brought action against Department of the Interior and Bureau of Indian Affairs officials, in which another federally recognized tribe intervened, challenging Bureau's decision to grant intervenor's application asking that it take into trust parcel of land that sat entirely within boundaries of first tribe's former reservation to enable intervenor to develop it into tribal and cultural center. The United States District Court for the Eastern District of Oklahoma, No. 6:14-CV-00428-RAW, Ronald A. White, Chief Judge, 2017 WL 2352011, entered judgment in favor of first tribe and enjoined Bureau from accepting parcel into trust. Defendants and intervenor appealed.
*Holdings: The Court of Appeals, Eid, Circuit Judge, held that:
1) District Court's order was final and appealable, not an administrative remand;
2) Bureau was authorized under the Indian Reorganization Act (IRA) to take subject land into trust;
3) Bureau was not required to obtain consent of first tribe to take land into trust for other tribe;
4) Bureau's consideration of jurisdictional-conflicts criterion of regulation governing land-into-trust applications was not arbitrary and capricious; and
5) Bureau's consideration of administrative-burden criterion of regulation governing land-into-trust applications was not arbitrary and capricious.
Reversed in part and vacated in part.
Legal Topics: Trust Relationship; Indian Health Service
Legal Topics: Indian Pueblo Lands Act
Legal Topics: Navajo-Hopi Settlement Act
Legal Topics: False Claims Act; Tribal Sovereignty
Legal Topics: Tribal Court Jurisdiction
Legal Topics: Education; First Amendment
*Synopsis: Defendant was convicted, following a jury trial in the United States District Court for the District of Arizona, Neil V. Wake, J, of second-degree murder and discharging a firearm during a crime of violence in Indian country. He appealed.
*Holdings: The Court of Appeals, D.W. Nelson, Circuit Judge, held that:
1) District Court did not plainly err in failing to instruct jury on absence of heat of passion as an element of second-degree murder; but
2) Defendant's conviction for second-degree murder in Indian Country did not qualify as a categorical crime of violence.
Affirmed in part, reversed in part, and remanded for resentencing.
Smith, Circuit Judge, filed opinion dissenting in part.
*Synopsis: Indian tribe and four enrolled tribal members filed § 1983 action against county sheriff and deputies for allegedly contravening federal statutory and constitutional rights by deputies detaining and issuing citations to tribal members for violating California regulatory traffic laws. The United States District Court for the Central District of California, D.C. No. 5:15-cv-01538-DMG-FFM, Dolly M. Gee, J., granted defendants summary judgment and subsequently denied plaintiffs' motion to amend judgment. Plaintiffs appealed.
*Holdings: The Court of Appeals, Hurwitz, Circuit Judge, held that:
1) Deputies issued citations within Indian country;
2) Deputies lacked jurisdiction to enforce state regulatory traffic laws in Indian Country;
3) Enrolled members had cause of action under § 1983; but
4) Tribe lacked cause of action under § 1983.
Affirmed in part, vacated and remanded in part.
Legal Topics: Indian Water Rights; Federal Trust Relationship
Legal Topics: Tribal Jurisdiction
Legal Topics: Habeas Corpus; Indian Country Crimes Act
Legal Topics: Indian Country Crimes Act; Major Crimes Act
Legal Topics: Treaty Rights; Reservation Diminishment
Legal Topics: Trust Relationship; Indian Health Service
Legal Topics: Indian Taxation; California Tax Code
Legal Topics: Indian Child Welfare Act
*Synopsis: Indian tribe filed action seeking to enforce a tribal court judgment against nonmembers. The United States District Court for the District of Idaho, B. Lynn Winmill, Chief Judge, dismissed based on lack of subject matter jurisdiction. Tribe appealed.
*Holding: The Court of Appeals, Clifton, Circuit Judge, held that Indian tribe's action to enforce a tribal court judgment against a nonmember presented a substantial issue of federal law.
Reversed and remanded.
Legal Topics: National Historic Preservation Act
Legal Topics: Federal Recognition
Legal Topics: Trust Relationship; Sovereign Immunity
Legal Topics: Tribal Court Jurisdiction; Tribal Court Exhaustion Doctrine
*Synopsis: Native American state residents brought action against North Dakota Secretary of State, alleging that state's statutory voter identification requirements violated equal protection. The United States District Court for the District of North Dakota, Daniel L. Hovland, Chief Judge, 2018 WL 1612190, granted in part residents' motion for preliminary injunction. Secretary appealed.
Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
1) Residents lacked likelihood of success on merits of challenge to requiring presentation of document with current residential street address, and
2) Residents lacked likelihood of success on merits of challenge to enumerated forms of identification.
Vacated and remanded.
Kelly, Circuit Judge, filed a dissenting opinion.
*Synopsis: Coalition of tribal, regional, and national conservation organizations brought action against the United States Department of the Interior, its Secretary, and several bureaus within the agency, challenging a variety of agency actions that reauthorized coal mining activities on land reserved to Indian tribe. Tribal-owned corporation, which owned the mine in question, intervened for the limited purpose of moving to dismiss. The United States District Court for the District of Arizona, Steven P. Logan, J., 2017 WL 4277133, dismissed. Organizations appealed.
Holdings: The Court of Appeals, Friedland, J., held that:
1)
Corporation had legally protected interest in subject matter of the action, as required for corporation to be required party that had to be joined if feasible;
2) No existing party could adequately represent interest of corporation in the action, as required for corporation to be required party that had to be joined if feasible;
3) Corporation was an "arm" of Indian tribe that enjoyed tribe's sovereign immunity from suit, and thus could not feasibly be joined as required party to the action;
4) Organizations' action could not, in good conscience, continue without corporation, and thus, dismissal of action was warranted; and
5) Public rights exception to traditional joinder rules did not apply.
Affirmed.
Legal Topics: Land into Trust
*Synopsis: Lessees, who had entered into five agricultural leases with Indian tribe, brought action again 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. The United States Court of Federal Claims, No. 1:16-cv-00107-EJD, Edward J. Damich, Senior Judge, 135 Fed.Cl. 39, dismissed complaint, and lessees appealed.
*Holdings: The Court of Appeals, Dyk, Circuit Judge, held that:
1) United States was not party to leases;
2) United States' alleged revival of leases did not subject it to liability for breach of implied-in-fact contracts, and;
3) Bureau of Indian Affairs' (BIA) alleged violation of regulations in canceling leases did not give rise to takings claims.
Affirmed.
Legal Topics: Title VII of the Civil Rights Act of 1964
Legal Topics: Federal Torts Claims Act; Indian Health Services
Legal Topics: Federal Jurisdiction
Legal Topics: Voting Rights; Districts
Legal Topics: Indian Child Welfare Act
Legal Topics: Lands; Treaty Rights
Legal Topics: Lands into Trust; Federal Trust Responsibility; Gaming
Legal Topics: Land Status; Enrollment
*Synopsis: Borrowers brought putative class action against lending entity, and related defendants, alleging that payday loans carried unlawfully high interest rates. The United States District Court for the Eastern District of Virginia, No. 3:17–cv–00461–REP–RCY, Robert E. Payne, Senior District Judge, 329 F.Supp.3d 248, denied motion to dismiss for lack of subject matter jurisdiction. Defendants filed interlocutory appeal.
*Holdings: The Court of Appeals, Gregory, Chief Judge, held that: burden of proof to demonstrate tribal immunity as an arm of the tribe was on party seeking such immunity, and entities were entitled to sovereign tribal immunity. Reversed and remanded with instructions.
Legal Topics: Indian Health Care Improvement Act
Legal Topics: Unlawful Termination; Financial Fraud
Legal Topics: Sovereign Immunity, Ex parte Young
Legal Topics: Land into Trust; Under Federal Jurisdiction
Legal Topics: Hemp Production
Legal Topics: National Labor Relations Board
Legal Topics: Exhaustion of Tribal Court Remedies
Legal Topics: Assimilative Crimes Act; Indian Country Crimes Act
Legal Topics: Indian Tribe - Definition of
Legal Topics: Oil & Gas Pipelines; Documents for Administrative Record
*Synopsis: Environmental advocacy groups brought action alleging that Bureau of Land Management (BLM) violated National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) in granting applications for permits to drill (APD) horizontal, multi-stage hydraulically fracked wells on public lands. The United States District Court for the District of New Mexico, No. 1:15-CV-00209-JB-LF, James O. Browning, J., 312 F.Supp.3d 1031, entered judgment in BLM's favor, and groups appealed.
*Holdings: The Court of Appeals, Briscoe, Circuit Judge, held that:
1) groups had standing to bring action;
2) environmental assessments (EA) did not arbitrarily define area of potential effects (APE) for each APD in way that excluded cultural sites;
3) EAs adequately analyzed cumulative effects of developing new APDs;
4) BLM did not abuse its discretion under National Historic Preservation Act (NHPA) when it failed to consult with state historic preservation office (SHPO);
5) EAs were properly tiered to its previous environmental impact statement (EIS);
6) NEPA required BLM to consider cumulative impacts of reasonably foreseeable wells in EAs;
7) groups failed to carry their burden to show that BLM acted arbitrarily or capriciously in analyzing air pollution impacts; and
8) BLM abused its discretion by failing to consider cumulative water impacts.
Affirmed in part, reversed in part, and remanded.
Legal Topics: Exhaustion of Tribal Remedies
Related News: Freedman Citizenship Lawsuit Against Oklahoma Tribe Rejected (U.S. News) 5/10/19
Legal Topics: Gaming; Statute of Limitations; Sovereign Immunity
*Synopsis: Borrowers, who were Vermont residents, brought putative class action against individuals and companies involved in online lending operation owned by Indian tribe in Montana, alleging that “payday” loans offered by lender violated Vermont and federal law due to their usurious interest rates and other unlawful features, and seeking prospective declaratory and injunctive relief against tribal officers in charge of lender as well as award of money damages against other defendants. Some defendants moved to dismiss on the basis of tribal sovereign immunity, and all defendants moved to compel arbitration under terms of loan agreements. The United States District Court for the District of Vermont, Geoffrey W. Crawford, J., 2016 WL 2932163, denied both motions, and subsequently denied motion to clarify, 2016 WL 4442792. Defendants appealed.
*Holdings: The Court of Appeals, Hall, Circuit Judge, held that:
1) the court had jurisdiction over this interlocutory appeal;
2) addressing an issue of first impression for the court, tribal sovereign immunity did not bar the suit because plaintiffs could sue tribal officers in their official capacities under a theory analogous to Ex parte Young for prospective, injunctive relief based on violations of state and substantive federal law occurring off of tribal lands;
3) borrowers' Racketeer Influenced and Corrupt Organizations Act (RICO) claims could proceed; and
4) the arbitration clauses of the parties' loan agreements were unenforceable and unconscionable.
Affirmed.
Related News: Second Circuit Decision has Implications for Native American Sovereign Immunity and Predatory Lending Practices (JD Supra) 5/10/19
*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. The United States District Court for the Eastern District of California, William Horsley Orrick, J., 234 F.Supp.3d 1042, dismissed action. Former administrator appealed.
*Holdings: The Court of Appeals, Piersol, Senior Judge for the District of South Dakota, sitting by designation, held that:
1) tribal court had subject matter jurisdiction over tribe’s claims against administrator;
2) administrator reasonably should have anticipated that her conduct on tribal land would have fallen within tribe’s regulatory jurisdiction;
3) conduct of administrator threatened or had some direct effect on political integrity, economic security, or health or welfare of tribe; and
4) tribe’s adjudicatory authority did not exceed its regulatory authority over conduct of administrator during her employment.
Affirmed.
Legal Topics: Tribal Water Rights - Groundwater
*Synopsis: Defendant pled guilty in the United States District Court for the District of New Mexico, No. 1:17-CR-00699-MV-1, Martha Vazquez, J., of assimilative New Mexico crime of child abuse, and he appealed.
*Holdings: The Court of Appeals, McHugh, Circuit Judge, held that district court's mathematical error in calculating defendant's sentence was not harmless.
Vacated and remanded.
*Synopsis: Taxpayers, who were members of Native American tribe, petitioned for redetermination of income tax deficiencies arising from unreported taxable income received from tribal casino revenue during three taxable years at issue. Actions were consolidated.
*Holdings: The Tax Court, Pugh, J., held that:
1) taxpayers were not entitled to argue issues relating to the “general welfare doctrine” in deficiency proceeding;
2) it was not appropriate to reopen record to admit contract between tribe and developer to construct, manage and operate gaming facility for tribe, as well as letter from tribe to Bureau of Indian Affairs' acting director;
3) taxpayers were liable for federal income taxes owed on tribal gaming revenue distributions; bu
4) taxpayers were not liable for accuracy-related penalties due to substantial understatement of income tax.
Decision for IRS in part and for taxpayers in part.
Legal Topics: Tribal Sales Tax
Legal Topics: Tribal Colleges - Arm-of-the-Tribe
Legal Topics: Jurisdiction
Related News: Ethel Branch, former Navajo Nation Attorney General, to return to Kanji & Katzen and Lead Flagstaff office. (Turtle Talk) 4/9/19
*Synopsis: Indian tribes brought action against state seeking declaratory judgment that duration provision of tribal-state gaming compacts violated Indian Gaming Regulatory Act (IGRA). The United States District Court for the Central District of California, No. 5:16-cv-01347-JFW-MRW, John F. Walter, J., 2017 WL 2971864, entered summary judgment in state's favor, and tribes appealed.
*Holdings: The Court of Appeals, Gilliam, District Judge, sitting by designation, held that as matter of first impression, duration provisions were permitted by IGRA.
Affirmed.
*Synopsis: Motorist charged with narcotics offenses, as result of evidence discovered by tribal officer after seizing motorist on public highway that ran across reservation, filed motion to suppress this evidence. The United States District Court for the District of Montana, No. 1:16-cr-00042-SPW-1, Susan P. Watters, J., 2017 WL 499896, granted motion, and government appealed.
*Holdings: The Court of Appeals, Berzon, Circuit Judge, held that:
1) as matter of first impression, exclusionary rule applies in federal court prosecutions to evidence obtained in violation, not of the Fourth Amendment itself, but of the Indian Civil Rights Act's (ICRA’s) Fourth Amendment counterpart, and
2) tribal officer's extra-jurisdictional acts violated the ICRA’s Fourth Amendment counterpart and required suppression of evidence.
Affirmed.
*Synopsis: Indian tribe brought action against state seeking declaratory judgment that its gaming activities on tribal lands were permitted under Indian Gaming Regulatory Act (IGRA). State filed counterclaim to enjoin tribe from conducting gaming activities based on Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act. After state's motion for permanent injunction was granted, state moved to realign parties, moved for contempt, and sought declaration that IGRA did not apply, and tribe moved for relief from injunction. The United States District Court for the Eastern District of Texas, Keith F. Giblin, United States Magistrate Judge, entered summary judgment in state's favor, 208 F.Supp.2d 670, and denied tribe's motion for relief from injunction, 298 F.Supp.3d 909. Tribe appealed.
*Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that National Indian Gaming Commission's (NIGC) determination that IGRA governed question of whether tribe could conduct class II gaming on tribal lands was not entitled to Chevron deference.
Affirmed.
*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. The United States District Court for the Eastern District of California, William Horsley Orrick, J., 234 F.Supp.3d 1042, dismissed action. Former administrator appealed.
*Holdings: The Court of Appeals, Piersol, Senior Judge for the District of South Dakota, sitting by designation, held that:
1) tribal court had subject matter jurisdiction over tribe’s claims against administrator;
2) administrator reasonably should have anticipated that her conduct on tribal land would have fallen within tribe’s regulatory jurisdiction;
3) conduct of administrator threatened or had some direct effect on political integrity, economic security, or health or welfare of tribe; and
4) tribe’s adjudicatory authority did not exceed its regulatory authority over conduct of administrator during her employment.
Affirmed.
Legal Topics: Federal Recognition
*Synopsis: Indian community brought action against Department of Interior and National Indian Gaming Commission, challenging Interior's determination that tribe was ineligible for gaming for purposes of Indian Gaming Regulatory Act (IGRA). The United States District Court for the Western District of Washington, Benjamin H. Settle, J., 242 F.Supp.3d 1156, granted summary judgment in favor of Department of Interior. Tribe appealed.
*Holdings: The Court of Appeals, Morgan Christen, Circuit Judge, held that:
1) a tribe must appear on the Secretary's annual list of federally recognized tribes in order to be eligible to engage in class II gaming, and
2) Franks Landing Act did not grant Community permission to engage in class II gaming.
Affirmed.
Related News: Frank's Landing Indian Community loses decision in sovereignty case (Indianz) 3/13/19
*Synopsis: Native American farmer filed an action against government, alleging that the government breached a settlement agreement of a class action discrimination suit brought by Native American farmers against the Department of Agriculture and breached its duty of good faith and fair dealing, when government directed farmer's two witnesses, who were employees of the Bureau of Indian Affairs (BIA) to refrain from testifying and providing evidence on behalf of the farmer in support of his claim for settlement funds. The United States Court of Federal Claims, No. 1:16-cv-00798-BAF, Bohdan A. Futey, J., dismissed the action. Farmer appealed. The Court of Appeals, Dyk, Circuit Judge, 899 F.3d 1373, reversed and remanded. On remand, government renewed its motion to dismiss.
*Holdings: The Court of Federal Claims, Sweeney, Chief Judge, held that:
1) Department of Agriculture had no duty to respond to farmer's notice of violation of agreement and, thus, farmer failed to state breach of contract claim against government, and
2) farmer had received remedy contemplated by agreement's enforcement provision by bringing action in district court and, thus, farmer failed to state requisite damages to support breach of contract claim.
Motion granted.
Legal Topics: Gaming - Revenue Sharing
Related News: Judge rules for pueblos in revenue dispute with state (Santa Fe New Mexican) 4/1/19
Legal Topics: Oklahoma’s American Indian Arts and Crafts Sales Act
Related News: Cherokee Nation not happy with ruling on 'Native American' art (Tahlequah Daily Press) 4/4/19, Judge rejects state's effort to restrict Native art (Muskogee Phoenix) 4/1/19
*Synopsis: City in state of Iowa filed suit against Department of Interior and National Indian Gaming Commission (NIGC), asserting claims under Administrative Procedure Act (APA) and seeking declaratory judgment invalidating NIGC's amended final order approving site-specific gaming ordinance enacted by Ponca Tribe of Nebraska that allowed tribe to conduct Class II gaming, under Indian Gaming Regulation Act (IGRA), on 4.8-acre tract of land in Iowa that was within tribe's service area, designated pursuant to Ponca Restoration Act (PRA) that restored tribe's government-to-government relationship with United States, and that was subsequently placed into trust by Bureau of Indian Affairs (BIA), as authorized by Indian Reorganization Act (IRA). State of Nebraska and State of Iowa intervened as intervenor-plaintiffs. Parties cross-moved for summary judgment.
*Holdings: The District Court, Stephanie M. Rose, J., held that:
1) NIGC appropriately found tribe was not estopped from asserting that parcel qualified for IGRA's restored lands exception;
2) NIGC reasonably interpreted PRA;
3) NIGC was not required to consider new IGRA regulations in interpreting PRA;
4) NIGC reasonably determined that new IGRA regulations did not apply; but
5) NIGC unreasonably failed to consider purported verbal agreement between tribe and Iowa.
Plaintiffs' motion granted in part and denied in part; defendants' motion denied.
Related News: Ponca Tribe wins crucial backing for Prairie Flower Casino in 12-year legal battle with Iowa, Nebraska (Casino.org) 5/3/19
Legal Topics: Tribal Real Property
*Synopsis: Borrowers who entered into loan agreements with two lending companies owned by two Native American tribes brought putative class action against two investment companies and their owner, alleging that although the tribes nominally owned the lending companies, they were actually funded and operated by the defendants, who used the tribe's ownership status to make usurious loans, in violation of Virginia laws and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Defendants filed motion to transfer or to stay proceedings, motion to compel arbitration, and motion to dismiss.
*Holdings: The District Court, M. Hannah Lauck, J., held that:
1) first-to-file rule did not apply to warrant transfer to federal court in Vermont, where a similar action had previously been filed;
2) even if the rule applied, special circumstances existed to warrant allowing the case to proceed in Virginia;
3) arbitration agreements within the loan agreements sought to prospectively exclude the application of federal law, and therefore, were unenforceable under the Federal Arbitration Act (FAA);
4) borrowers stated a claim against defendants for violation of Virginia's usury laws;
5) borrowers stated claims under RICO; and
6) borrowers stated unjust enrichment claim under Virginia law.
Motions denied.
Legal Topics: Fishing Rights - Usual and Customary Areas
*Synopsis: Faction of Indian nation sought review of decision of Bureau of Indian Affairs (BIA) and Department of the Interior (DOI) recognizing another faction as nation's governing body. Parties moved for summary judgment.
*Holdings: The District Court, Colleen Kollar-Kotelly, J., held that:
1) review by Assistant Secretary of Indian Affairs was adequate;
2) determination that statement of support (SOS) was a valid mechanism for selecting members of governing council was not contrary to nation's law;
3) BIA and DOI adequately explained their change in policy relating to use of SOS campaign to select members of council;
4) BIA and DOI adequately accounted for expert evidence; and
5) challengers were not deprived of neutral decision maker.
Plaintiffs' motion for summary judgment denied; defendants' motions for summary judgment granted.
Legal Topics: Aboriginal Title
*Synopsis: Corporation of federally recognized Indian Tribe, and corporation's division, petitioned separately for review of IRS determinations to proceed with liens to collect unpaid employment taxes arising from division's business operations. Actions were consolidated.
*Holdings: The Tax Court, Goeke, J., held that:
1) IRS notices of determination to sustain tax liens were sufficient to provide Tax Court with jurisdiction;
2) state law did not restrict Indian tribal corporation's power, pursuant to charter issued by Department of Interior (DOI) under Indian Reorganization Act (IRA), to create legally distinct corporate division whose federal employment tax liabilities were not collectible from corporation by IRS;
3) Indian tribal corporation's power to create legally distinct corporate division was within scope of Indian Reorganization Act (IRA); and
4) Indian tribal corporation's division acted as legally distinct entity, and thus IRS could not collect division's employment tax liabilities from corporation.
Ordered accordingly.
*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. The District Court, Borman, J., 584 B.R. 706, affirmed. Appeal was taken.
*Holdings: The Court of Appeals, Clay, Circuit Judge, held that:
1) Congress did not unequivocally express intent to abrogate Indian tribe's sovereign immunity from cause of action by litigation trustee in strong-arm capacity to set aside allegedly fraudulent prepetition transfers made by Chapter 11 debtor to tribe;
2) while tribal sovereign immunity could be waived by litigation conduct, it could not be waived by the litigation conduct, not of tribe, but of tribe’s alleged alter ego or agent; and
3) litigation conduct of filing bankruptcy petition does not waive tribal sovereign immunity as to a separate, adversarial fraudulent transfer avoidance claim.
Affirmed.
Related News: Federal Appeals Court Affirms Tribal Immunity from Bankruptcy Code (JDSupra) 3/1/19
*Synopsis: An arrestee who was not a member of an Indian tribe brought § 1983 action against a federally recognized tribe, the Oglala Sioux Tribe, and various tribal officers, seeking damages for violation of the plaintiff's constitutional and civil rights in connection with allegations that the arrestee was traveling on a federally-maintained highway on reservation land was when he was arrested, detained, assaulted, battered, and robbed. The United States District Court for the District of South Dakota, Jeffrey L. Viken, Chief District Judge, 2017 WL 4217113, granted defendants' motion to dismiss for failure to state a claim. Arrestee appealed.
*Holdings: The Court of Appeals, Loken, Circuit Judge, held that:
1) arrestee did not state an Indian Civil Rights Act (ICRA) claim, and
2) arrestee failed to exhaust available tribal court remedies.
Affirmed.
*Synopsis: Petitions for review were filed challenging Federal Communications Commission (FCC) order limiting enhanced tribal telecommunications support to service provided using tribal facilities, and to low-income consumers living on rural areas of tribal lands.
*Holdings: The Court of Appeals, Rogers, Circuit Judge, held that:
1) FCC action in changing its policy to limit enhanced tribal telecommunications subsidy to service provided using tribal facilities was arbitrary and capricious;
2) FCC action in changing its policy to limit enhanced tribal telecommunications subsidy to service provided to low-income consumers living on rural areas of tribal lands was arbitrary and capricious;
3) FCC's notice was insufficient under Administrative Procedure Act's (APA) requirements for notice-and-comment rulemaking; and
4) FCC improperly made substantive changes to its former policy without commencing new notice-and-comment-rulemaking proceeding.
Petitions granted, order vacated, and matter remanded.
*Synopsis: Property owner filed suit against United States, seeking determination as to property rights of non-tribal property owners abutting shore of lake that was within national park and was navigable waterway abutting Quinault Indian Reservation and determination of public's right to access lake, its shore, and lake bed. Quinault Indian Nation moved for leave to appear as amicus curiae.
*Holdings: The Court of Federal Claims, Campbell-Smith, J., held that amicus brief would not be useful at motion to dismiss stage of proceeding.
Legal Topics: Indian Civil Rights Act; Writ of Habeas Corpus Motion denied.
Legal Topics: Tribal Gaming - State Regulation
Legal Topics: Clean Water Act
Legal Topics: Eelgrass Beds; Sustainable Fisheries and Shellfish
*Synopsis: Indian tribe brought action under the Administrative Procedure Act (APA) against United States Department of the Interior and its secretary, challenging Bureau of Land Management's (BLM) approval of permits to drill horizontal oil and gas wells underneath lake on well pad located on non-Indian privately-owned fee land within Indian reservation. After exploration company intervened, defendants and company moved to transfer venue.
*Holdings: The District Court, Christopher R. Cooper, J., held that:
1) public interest in having local controversies decided locally weighed in favor of transfer;
2) transferee forum's familiarity with governing law weighed in favor of transfer;
3) relative congestion of court dockets weighed slightly against transfer;
4) tribe's choice of forum was entitled to less deference; and
5) exploration company's choice of forum weighed in favor of transfer.
Motion granted.
*Synopsis: Defendant, a member of the Seminole Tribe of Florida who lived on a Seminole Indian reservation, was charged with selling American alligator eggs in violation of Lacey Act, predicated on the Endangered Species Act (ESA). Defendant moved to dismiss.
*Holdings: The District Court, Sheri Polster Chappell, J., held that:
1) the Tribe's usufructuary rights included the right to sell alligator eggs gathered from the reservation;
2) ESA did not abrogate the Tribe's usufructuary right to sell alligator eggs; but
3) Congress could regulate the Tribe's usufructuary rights with reasonable and necessary conservation measures.
Motion denied.
Legal Topics: Indian Trust Lands - Possessory Interest Tax
*Synopsis: Stillaguamish Tribe of Indians brought action against State of Washington and the Attorney General of Washington, seeking a declaration that its tribal sovereign immunity barred any lawsuit for indemnification arising from a contract with the State of Washington concerning construction of a revetment to protect salmon populations in a river on tribal lands following a landslide near the river. The United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, 2017 WL 3424942, granted tribe's summary judgment motion. Defendants appealed.
*Holdings: The Court of Appeals, McKeown, Circuit Judge, held that under the well-pleaded complaint rule, district court lacked federal question jurisdiction over declaratory judgment action that was based on existence of a tribal immunity defense.
Vacated and remanded.
*Synopsis: Native American landowners brought trespass action against owner and operator of network of natural gas transmission pipelines The United States District Court for the Western District of Oklahoma, No. 5:15-CV-01262-M, Vicki Miles–LaGrange, J., 247 F.Supp.3d 1233, granted summary judgment to plaintiffs and entered permanent injunction requiring removal of pipeline. Defendant appealed.
*Holdings: The Court of Appeals, Tymkovich, Chief Judge, held that:
1) consent of minority of allottees did not form complete defense to remaining allottees' federal trespass claim;
2) expiration of easement permitting natural gas pipeline across allotted tribal land created duty on part of pipeline's owner to remove pipeline; and
3)district court was required to apply federal courts' traditional equity jurisprudence, rather than simplified injunction rule from Oklahoma law, in determining whether to grant injunctive relief.
Affirmed in part, reversed in part, and remanded.
*Synopsis: Defendant was convicted following guilty plea in the United States District Court for the District of South Dakota, Charles B. Kornmann, J., of domestic assault by an habitual offender, and was sentenced to 45 months' imprisonment. Defendant appealed.
*Holdings: The Court of Appeals, Loken, Circuit Judge, held that:
1) upward departure from sentencing guidelines was warranted to account for tribal offenses, and
2) sentence of 45 months' imprisonment, which included upward departure for underrepresented criminal history, was not procedurally unreasonable.
Affirmed.
*Synopsis: American Indian tribe brought action against Michigan state and municipal officials for failure to recognize reservation land. Government moved for judgment on the pleadings.
*Holdings: The District Court, Paul L. Maloney, J., held that:
1) tribe was not judicially estopped from claiming interest in reservation land;
2) prior proceeding before Indian Claims Commission did not collaterally estop tribe from claiming interest in reservation land; and
3) tribe's claims were not barred by Indian Claims Commission Act.
Motion denied.
Legal Topics: Attorneys' Fees; Equal Access to Justice Act
Legal Topics: Double Jeopardy
*Synopsis: The Koi Nation of Northern California, which was a landless federally recognized Indian tribe, brought action alleging that United States Department of the Interior's (DOI) decision concluding that the tribe was not eligible to game on lands under the Indian Gaming Regulatory Act (IGRA) restored lands exception violated the Administrative Procedure Act (APA), IGRA, and Indian Reorganization Act (IRA), and challenging the subsection of the regulation on which the DOI's decision relied, seeking declaration that tribe qualified as an Indian tribe restored to federal recognition under IGRA, and injunction invalidating subsection of implementing regulation to extent it excluded from eligibility for IGRA's restored lands exception tribes administratively determined to be recognized outside the formal Part 83 Federal acknowledgement process. Koi Nation and DOI cross-moved for summary judgment.
*Holdings: The District Court, Beryl A. Howell, Chief Judge, held that:
1) tribe's claim was ripe for judicial review;
2) statutory six-year limitations period for challenging agency regulation did not apply to tribe's claim challenging DOI regulation;
3) tribe was “restored to Federal recognition,” within meaning of IGRA's restored lands exception;
4) even if IGRA's restored lands exception was ambiguous, Indian canon of construction would resolve the ambiguity in tribe's favor;
5) DOI decision violated statute prohibiting classifying, enhancing, or diminishing privileges and immunities available to Indian tribe relative to other federally recognized tribes; and
6) DOI failed to adequately explain its change in policy.
Koi Nation's motion granted; DOI's motion denied.
Legal Topics: Tribal Membership
*Synopsis: Former employee brought § 1981 action in state court against employer, an Alaska Native tribal health consortium, alleging disparate treatment and retaliation on the basis of race. After removal, employer moved to dismiss for lack of subject matter jurisdiction.
*Holdings: The District Court, Sharon L. Gleason, J., held that:
1) employer was an arm of Alaska's tribes with tribal sovereign immunity, and
2) as a matter of first impression, Congress did not abrogate tribal sovereign immunity as to § 1981 claims.
Motion granted.
January | February | March | April | May | June | July | August | September | October | November | December
Visit the Archives for the Indian Law Bulletins to see cases from previous years.
Indian Law Bulletins are a current awareness service of the National Indian Law Library. The purpose of the Indian Law Bulletins is to provide succinct and timely information about new developments in Indian Law. See the About page for more information.
A note about links used in this document
Blue links on this page go to information available for free on the Internet. Green links go to information available on Westlaw which require a Westlaw account. The library is not affiliated with Thomson Reuters or Westlaw.
* Synopsis and holding provided under an agreement with Westlaw.
