December

Artichoke Joe's California Grand Casino V. Norton
2003 WL 22998116
Docket No. 02-16508
United States Court of Appeals, Ninth Cir., Dec. 22, 2003

Subjects: Equality before the law; United States. Constitution. 5th Amendment. United States. Constitution. 14th Amendment; Charities; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Indian Country (California); California; Tribes -- Indian Country (California).

*Synopsis: California card clubs and charities which were prohibited under state law from offering class III gaming brought action challenging validity of tribal-state compacts allowing Indian tribes to conduct such gaming on Indian land. The United States District Court for the Eastern District of California, 216 F.Supp.2d 1084, David F. Levi, J., granted summary judgment for defendants, and plaintiffs appealed.

*Holding: The Court of Appeals, Graber, Circuit Judge, held that: (1) state law authorizing class III gaming only by Indian tribes on Indian reservations or trust lands complied with Indian Gaming Regulatory Act (IGRA), and (2) law did not violate equal protection. Affirmed.

Related News Stories: Indian Tribes' Monopoly on Gaming Upheld (Sacramento Bee) 12/23
http://www.sacbee.com/content/politics/story/7998153p-8934698c.html

United States V. Juvenile Male
2003 WL 21698005, Docket No. 01-10693
United States Court of Appeals, Ninth Circuit, Dec. 4, 2002

Subjects: Assault and battery; Indian reservation police -- Violence against -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Juvenile deliquents; Juvenile justice, Administration of -- United States.

*Synopsis: Juvenile arrested for assaulting tribal police officers appealed from order of the United States District Court for the District of Arizona, Mary H. Murguia, J., which granted government's motion to transfer juvenile to adult status.

*Holding: The Court of Appeals, Tashima, Circuit Judge, held that: (1) court did not receive prior juvenile court records prior to transfer, as required by statute; (2) juvenile did not waive challenge based on court's failure to receive prior records; and (3) court's error was not harmless. Reversed and remanded.

November

Gallegos V. Jicarilla Apache Nation
2003 WL 22854632, No. 02-2347 (D. Ct. No. CIV 02-1095 WPJ/DJS)
United States Court of Appeals, Tenth Circuit, November 28, 2003

Subjects: Indian reservation police -- Dismissal of -- Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation, New Mexico; United States. Indian Civil Rights Act.

*Synopsis: Former tribal police officer brought claims arising out of his termination against Indian tribe, tribal officials, and tribal employees under Indian Civil Rights Act (ICRA) and civil rights statutes. The United States District Court for the District of New Mexico dismissed action. Former police officer appealed.

*Holding: The Court of Appeals, Tacha, Chief Circuit Judge, held that:
(1) Dry Creek exception to tribal immunity did not apply to former employee's claims;
(2) tribe did not waive its sovereign immunity by including ICRA anti- discrimination language in its constitution;
(3) tribal police officer was not federal officer for purposes of claim under section of § 1985 prohibiting two or more persons from preventing federal officers from discharging their duties;
(4) allegation that police officer was fired to prevent him from testifying about his whistleblowing did not state claim under section of § 1985 involving efforts to deter party or witness from attending federal court;
(5) no viable predicate claims existed for claim under § 1985 conspiracy section;
(6) absent claim under § 1985, no claim existed under § 1986; and
(7) sanctions would be awarded against counsel for bringing frivolous appeal. Affirmed; motion for sanctions granted.

Anderson V. Evans
350 F.3d 815
Docket No. 02-35761
United States Court of Appeals, Ninth Cir., Nov. 26, 2003.

Subjects: Whaling rights -- Makah Indian Tribe of the Makah Indian Reservation, Washington; Animal rights activists; Animal welfare; Whaling -- Law and legislation; United States. National Environmental Policy Act of 1969; United States. Marine Mammal Protection Act of 1972; Whaling -- Environmental aspects -- Environmental impact statements.

*Synopsis: Animal advocacy groups challenged federal government's approval of quota for whale hunting by Makah Indian Tribe. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for government. Advocacy groups appealed.

*Holding: The Court of Appeals, Berzon and Gould, Circuit Judges, 314 F.3d 1006, held that: (1) government violated National Environmental Policy Act (NEPA) by failing to prepare environmental impact statement (EIS) prior to approving whaling quota, and (2) Marine Mammal Protection Act (MMPA) applied to tribe's proposed whale hunt.

City of Roseville V. Norton
348 F.3d 1020
Docket No. 02-5277
United States Court of Appeals, District of Columbia Circuit, Nov. 14, 2003

Subjects: Roseville (Calif.); United States. Dept. of the Interior; Trust or restricted lands; Casinos; Gambling on Indian reservations -- California; Indian gaming -- California; United Auburn Indian Community of the Auburn Rancheria of California; United States. Indian Gaming Regulatory Act; Auburn Indian Restoration Act.

*Synopsis: Municipalities and nonprofit organization brought action challenging the Secretary of Interior's decision to take a parcel of land into trust for Indian tribe for the purpose of operating a casino. The United States District Court for the District of Columbia, Emmett G. Sullivan, J., 219 F.Supp.2d 130, dismissed, and plaintiffs appealed.

*Holding: The Court of Appeals, Rogers, Circuit Judge, held that Government's taking into trust of land for terminated Indian tribe that had been restored to federally recognized status was "restoration of lands" within meaning of Indian Gaming Regulatory Act (IGRA). Affirmed.

United States v. Lulu Mae Hess
2003 WL 22664678
Docket No. 02-1212
United States Court of Appeals, Tenth Cir., Nov 12, 2003.

Subjects: Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; United States; Mines and mineral resources -- Defined; Gravel -- Defined; Trusts and trustees -- United States; Property -- Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.

*Synopsis: United States brought action on behalf of Southern Ute Tribe to determine ownership of gravel located on land acquired by landowners through exchange patent which reserved "all minerals" in trust for Tribe. On remand, 194 F.3d 1164, the United States District Court for the District of Colorado, Zita L. Weinshienk, J., held for United States. Landowners appealed.

*Holding: The Court of Appeals, Briscoe, Circuit Judge, held that exchange patent's reservation of "all minerals" for benefit of Indian tribe did not include gravel. Reversed and remanded.

Peltier V. Booker
2003 WL 22490095
Docket No. 02-3384
United States Court of Appeals, Tenth Circuit, Nov. 4, 2003

Subjects: Parole; Peltier, Leonard -- Imprisonment.

*Synopsis: Petitioner convicted of the murder of two Federal Bureau of Investigation (FBI) agents, affirmed at 585 F.2d 314, filed for habeas relief, seeking immediate release on parole. The United States District Court for the District of Kansas denied petition. Petitioner appealed.

*Holding: The Court of Appeals held that Parole Commission's decision, denying parole and delaying its reconsideration for 15 years, was not arbitrary and capricious, and was supported by rational basis.

October

Pounders V. Kempker
2003 WL 22462034
Docket No. 03-2054
United States Court of Appeals, Eighth Cir., October 31, 2003.

Subjects: Freedom of religion; Indians of North America -- Rites and ceremonies; Sweat lodges; United States. Constitution. 1st Amendment; United States. Religious Land Use and Institutionalized Persons Act of 2000; Missouri. Dept. of Corrections; Northeast Correctional Center (Mo.).

*Synopsis: State inmate filed action under § 1983 and Religious Land Use and Institutionalized Persons Act (RLUIPA) alleging that prison officials had substantially burdened his Native American religious practice by not permitting him to use sweat or purification lodge.

*Holding: The United States District Court for the Eastern District of Missouri dismissed complaint, and inmate appealed. The Court of Appeals held that fact issues remained as to whether prison officials' basis for denying inmate's requests for sweat lodge served compelling interest and was least restrictive means of advancing that interest. Reversed and remanded.

Related News Stories: Appeals court reinstates inmate's suit for sweat lodge (Missourian) 11/4/03

Navajo Nation V. United States
2003 WL 22417227
Docket No. 00-5086
United States Court of Appeals, Federal Cir., October 24, 2003.

Subjects: Navajo Nation, Arizona, New Mexico & Utah -- Claims against the United States; United States. Dept. of the Interior; Coal leases. United States. Indian Mineral Leasing Act of 1938; Trusts and trustees; Breach of trust -- United States.

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

*Holding: On remand, the Court of Appeals, Schall, Circuit Judge, held that question whether Nation preserved, in the Court of Federal Claims, issue whether a network of statutes and regulations, outside of the Indian Mineral Leasing Act of 1938 (IMLA), imposed judicially enforceable duties upon the United States in connection with the lease at issue should be determined in the first instance by the Court of Federal Claims. Remanded.

Related News Stories: Peabody Continues Top-level Access at Interior (Indianz.com) 03/17

Warbelow's Air Ventures, Inc. v.Commissioner of Internal Revenue
2003 WL 22417080 (9th Cir.) Docket No. 02-73328 Tax Ct. No. 10351-00
United States Court of Appeals, Ninth Cir., Decided Oct. 22, 2003.

Subjects: Indian employment credit -- United States; Employment tax credit -- United States; Indian reservations -- Defined.

*Synopsis: Taxpayer petitioned for redetermination of deficiencies arising from denial of Indian employment credit (IEC).

*Holding: The Court of Appeals held that in statute permitting tax credit for wages paid to Indian tribal members, phrase "within an Indian reservation" referred to land on the village or regional corporation lands.

Garza V. Traditional Kickapoo Tribe of Texas
2003 WL 22391241
Docket No. 03-50209
United States Court of Appeals, Fifth Cir., October 21, 2003.

Subjects: Sovereign immunity -- Kickapoo Traditional Tribe of Texas; Kickapoo Lucky Eagle Casino (Tex.); Police brutality; United States. Constitution. 4th Amendment; False arrest; False imprisonment; Texas; Casinos.

*Synopsis: In § 1983 action, plaintiff appealed grant, by the United States District Court for the Western District of Texas, of summary judgment for Indian casino.

*Holding: The Court of Appeals held that: (1) Indian tribe was entitled to sovereign immunity; (2) plaintiff did not suffer any deprivation of a property or liberty interest; (3) defendants were not liable in claim for excessive force under Fourth Amendment; (4) defendants were not liable in claim for illegal arrest under Fourth Amendment, and for false imprisonment under Texas law; and (5) defendant who removed plaintiff from casino used reasonable force in doing so, and thus was not liable for assault under Texas law. Affirmed.

Mid States Coalition For Progress v. Surface Transportation Board
345 F.3d. 520
Docket Nos. 02-1359, 02-1481, 02-1482, 02-1767, 02-1785,
02-1792, 02-1794, 02-1804, 02-1863
United States Court of Appeals, Eighth Circuit., Oct. 2, 2003.

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: Petitioners challenged the decision of the Surface Transportation Board giving final approval to railroad's proposal to construct approximately 280 miles of new rail line and to upgrade nearly 600 miles of existing rail line.

*Holding: The Court of Appeals, Arnold, Circuit Judge, held that: (1) Board did not violate National Environmental Policy Act (NEPA) by refusing to limit the use of train horns; (2) Board's rejection of a proposed bypass around city was not arbitrary and capricious; (3) Board could not approve project without first examining the effects that may occur as a result of the reasonably foreseeable increase in coal consumption; and (4) Board could not approve project without either securing a programmatic agreement or completing the alternate National Historic Preservation Act (NHPA) process. Remanded. Heaney, Circuit Judge, filed concurring opinion.

September

City of Saint Paul v. Evans
2003 WL 22208787
Docket Nos. 02-35958
United States Court of Appeals, Ninth Circuit, September 15, 2003.

Subjects: Saint Paul Island (Alaska); United States. Dept. of Commerce; United States. National Oceanic and Atmospheric Administration; Tanadgusix Corporation; Alaska native corporations; Land tenure -- Disputes -- Alaska.

*Synopsis: City brought suit to invalidate settlement of land rights dispute with Native American corporation, and the Native American corporation responded by counterclaiming for enforcement of settlement agreement. The United States District Court for the District of Alaska, H. Russel Holland, Chief Judge, entered order dismissing city's claims on limitations grounds, but allowed it to assert identical claims in alleged defense to Native American corporation's counterclaim and rejected those defenses on merits. Appeal was taken.

*Holding: The Court of Appeals, McKeown, Circuit Judge, held that city which had brought time - barred claims to invalidate settlement of land rights dispute with Native American corporation was barred on timeliness grounds not only from pursuing its claims to invalidate settlement but, when Native American corporation responded to its suit by counterclaiming for enforcement of settlement agreement, from raising identic

Confederated Salish and Kootenai Tribes v. Secretary of the Department of Interior
343 F.3d 1193
Docket Nos. 02-35491
United States Court of Appeals, Ninth Cir., September 15, 2003.

Subjects: Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Trust lands; United States. Dept. of the Interior; United States. Flathead Act.

*Synopsis: The Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation (the "Tribes") appeal from the order granting summary judgment in favor of Secretary of the Interior, Gale Norton (the "Secretary"). The Tribes sought a declaration that, upon the Tribes' request, the Secretary is required to take certain land in trust for the Tribes or the tribal member to whom the land is sold pursuant to the Act of July 18, 1968, Pub.L. 90-402, 82 Stat. 356 (the "Flathead Act"). We affirm because we conclude that the Flathead Act authorizes the Secretary of the Interior to exercise his or her discretion in acting upon tribal requests for land acquisitions within the reservation boundaries.

*Holding: We affirm because we conclude that the Flathead Act authorizes the Secretary of the Interior to exercise his or her discretion in acting upon tribal requests for land acquisitions within the reservation boundaries.

Oti Kaga, Inc. v. South Dakota Housing Development Authority
2003 WL 22118954
Docket Nos. 02-1673
United States Court of Appeals, Eighth Cir., September 15, 2003.

Subjects: South Dakota Housing Development Authority; Oti Kaga (S.D.); Indian business enterprises; Race discrimination; Housing development -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Tax credits.

*Synopsis: Non-profit housing corporation established and operated by Native Americans brought action against state housing authority and members of its board, alleging racial discrimination, in connection with rejection of its applications for tax credits and state funding. The United States District Court for the District of South Dakota, 188 F.Supp.2d 1148, Charles B. Kornmann, J., granted summary judgment in favor of defendants. Non-profit corporation appealed.

*Holding: The Court of Appeals, Bye, Circuit Judge, held that: (1) corporation had Article III standing to assert discrimination action in connection with denial of application for tax credits; (2) corporation had prudential standing to assert racial discrimination claim, under the Fair Housing Act (FHA); (3) corporation failed to establish prima facie claim of disparate treatment based upon race, in connection with denial of funding; and (4) corporation's disparate impact claim was barred, under FHA. Affirmed.

Davis v. United States
343 F.3d 1282
Docket Nos. 02-6198.
United States Court of Appeals, Ninth Cir., September 10, 2003.

Subjects: Seminole Nation of Oklahoma; United States; Certificate of degree of Indian blood; Tribes -- Membership; Heredity; Africa; United States. Bureau of Indian Affairs.

*Synopsis: Two bands of Seminole Nation, consisting of Estelusti Seminoles descended from escaped African slaves who had resided among Seminoles, brought action against United States and various federal agencies and officials, challenging the Estelusti bands' exclusion from benefits and programs established with funds obtained from land claims judgment, and challenging government's refusal to issue Certificates of Degree of Indian Blood (CDIB) cards to Estelusti Seminoles. The District Court granted defendants' motion to dismiss for failure to join the tribe as an indispensable party, and the Court of Appeals, 192 F.3d 951, affirmed in part, reversed in part, and remanded. On remand, the United States District Court for the Western District of Oklahoma, 199 F.Supp.2d 1164, granted defendants' motion to dismiss for failure to exhaust administrative remedies. Estelusti bands appealed.

*Holding: The Court of Appeals, Hartz, Circuit Judge, held that: (1) the district court did not abuse its discretion in dismissing suit on ground that Indian tribe was an indispensable party, and (2) Estelusti bands failed to exhaust administrative remedies as to the CDIB claim, and thus, district court lacked subject matter jurisdiction to hear that claim. Affirmed.

APORPMA v. Members of the Suquamish Tribal Council
2003 WL 22098043
Docket No. 02-35522
United States Court of Appeals, Ninth Cir., September 9, 2003.

Subjects: Suquamish Indian Tribe of the Port Madison Reservation, Washington; Association of Property Owners and Residents in Port Madison Area (APORPMA) (Wash.); Illegality; Jurisdiction -- Suquamish Indian Tribe of the Port Madison Reservation; Illegal juristic acts.

*Synopsis: Property owners association brought action against Indian tribe. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., dismissed action for lack of subject matter jurisdiction, and association appealed.

*Holding: The Court of Appeals held that events did not establish imminent threat of injury creating case or controversy necessary for Article III standing.
Affirmed.

United States v. Bird
342 F.3d 1045
Docket Nos. 02-30246, 02-30282.
United States Court of Appeals, Ninth Cir., September 8, 2003.

Subjects: Trials (Burglary) -- Indian Country (U.S.); Race; Victims; Jurisdiction -- Criminal actions arising in Indian Country (U.S.); Jurisdiction -- United States.

*Synopsis: Native American defendants, indicted for burglaries occurring in Indian country, moved to dismiss the indictments. The United States District Court for the District of Montana; Sam E. Haddon, J., denied the motions, and defendants appealed.

*Holding: In consolidation of appeals the Court of Appeals, Alarcon, Circuit Judge, held that (1) Court of Appeals had jurisdiction to consider the merits of defendants' interlocutory appeal, and (2) indictments were not required to specify the race of the burglary victims. Affirmed.

United States County of Churchill v. Alpine Land & Reservoir Company
341 F.3d 1172
Docket Nos. 01-16694, 01-16789.
United States Court of Appeals, Ninth Cir., September 4, 2003.

Subjects: Fallon (Nev.); Churchill County (Nev.); Nevada. State Engineer; U.S. Fish and Wildlife Service; Water rights -- Nevada; Water transfer -- Nevada; Public interest; Citizen suits (Civil procedure); Stillwater National Wildlife Refuge (Nev.); Wetlands -- Nevada.

*Synopsis: City and county brought action alleging that state engineer's approval of applications of United States Fish and Wildlife Service (FWS) to transfer place of use of certain water rights to supply needed water to wetlands in national wildlife refuge conflicted with existing water rights and threatened public interest. The United States District Court for the District of Nevada, Lloyd D. George, J., entered judgment in favor of state engineer, and city and county appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) substantial evidence supported state engineer's finding that transfers would not conflict with existing water rights or be detrimental to public interest; (2) state engineer was not required to conduct cumulative study; and (3) state engineer's decision not to stay consideration of applications pending resolution of county's suit against FWS was not abuse of discretion.
Affirmed.

Carroll v. Nakatani
2003 WL 22038774
Docket Nos. 02-15483, 02-15565
United States Court of Appeals, Ninth Cir., September 2, 2003

Subjects: Hawaiians; Hawaii. Constitution (1950); Equality before the law -- Hawai'i; Native Hawaiians; Standing to sue; Rice v. Cayetano; Hawaiians -- Defined; Resource allocation.

*Synopsis: Non-native Hawai'ians brought separate actions challenging provision of Hawai'i Constitution that created agencies providing special benefits to natives as a violation of the equal protection clause.

*Holding: The United States District Court for the District of Hawai'i, 188 F.Supp.2d 1219 and 188 F.Supp.2d 1233, granted summary judgments for the state and state defendants, and plaintiffs appealed. The Court of Appeals, Hug, Circuit Judge, held that plaintiffs lacked standing to bring suit. Affirmed.

Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Administration
342 F.3d 924, Docket Nos. 01-71736, 01-71740
United States Court of Appeals, Ninth Cir., September 2, 2003

Subjects: Confederated Tribes of the Umatilla Reservation, Oregon; Nez Perce Tribe of Idaho; United States. Bonneville Power Administration; Equity; Abuse of administrative power; Fishes; Animals.

*Synopsis:Indian tribes and others petitioned for review of decisions of Bonneville Power Administration (BPA), a marketing authority for federally generated electric power, alleging that BPA both exceeded its legal authority and violated its statutory duty to treat fish and wildlife equitably with power.

*Holding: The Court of Appeals, Wallace, Senior Circuit Judge, held that: (1) BPA's alleged unreasonable delay in implementing mandate to provide equitable treatment for fish and wildlife was not reviewable under the Northwest Power Act; (2) alleged unreasonable delay was not reviewable under All Writs Act; (3) BPA followed adequate procedures before issuing decision announcing its intent to implement biological opinions issued by federal agencies; and (4) decision was not arbitrary and capricious.
Petitions denied.

Related news stories: Court Rejects Tribal, Environmental Lawsuit Claiming Bonneville Mismanaged Fish (Oregonian) 9/02

August

Winnebago Tribe of Nebraska v. Stovall
341 F.3d 1202, Docket Nos. 02-3301
United States Court of Appeals, Tenth Cir., August 28, 2003

Subjects: HCI Distribution; Winnebago Tribe of Nebraska; Sac and Fox Tribe of Missouri in Kansas and Nebraska; Iowa Tribe of Kansas and Nebraska; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kansas; Motor fuels -- Taxation; Distributors (Commerce); Indian business enterprises; United States. Constitution. 11th Amendment.

*Synopsis: (from the opinion) The State of Kansas attempted to assess fuel taxes on a corporation wholly owned by an Indian tribe. The district court in two published orders granted plaintiffs' motions for a temporary restraining order, Winnebago Tribe of Neb. v. Stovall, 205 F.Supp.2d 1217 (D.Kan.2002), and then for a preliminary injunction, Winnebago Tribe of Neb. v. Stovall, 216 F.Supp.2d 1226 (D.Kan.2002). The district court denied the defendants' application for a stay pending appeal of the preliminary injunction. Defendants appeal on three grounds: alleged error in the disrict court's failure to abstain from hearing the case under the Younger doctrine; abuse of discretion in granting injunctive relief; and error in granting the preliminary injunction over defendants' claims of Eleventh Amendment immunity.

*Holding: The Court of Appeals, Seymour, Circuit Judge, held that: (1) action did not implicate important state interest, and Younger abstention thus was not appropriate; (2) District Court did not abuse its discretion in granting TRO and preliminary injunction; and (3) Eleventh Amendment did not bar action. Affirmed.

In re: Sac & Fox Tribe of the Mississippi in Iowa / Meskwaki Casino Litigation
340 F.3d 749, Docket Nos. 03-2329, 03-2355, 03-2357, 03-2390, 03-2392, 03-2393
United States Court of Appeals, Eighth Cir., August 27, 2003

Subjects: Casinos -- Sac & Fox Tribe of the Mississippi in Iowa; Meskwaki Casino Bingo Hotel; Indian gaming -- Class III; Sovereignty; National Indian Gaming Commission (U.S.); Exhaustion of administrative remedies; Tribal councils.

*Synopsis: In separate actions, Indian tribe's elected tribal council sought declaratory and injunctive relief following appointment of rival council which had taken control of tribal facilities, and appointed council challenged National Indian Gaming Commission (NIGC) order closing casino. The United States District Court for the Northern District of Iowa, 258 F.Supp.2d 938 and 264 F.Supp.2d 830, denied relief to either council.

*Holding: Consolidating appeals, the Court of Appeals, Melloy, Circuit Judge, held that: (1) council was required to exhaust administrative remedies before seeking judicial relief from temporary closing order; (2) grant of preliminary injunction enforcing closing order was not abuse of discretion; (3) elected council's gaming violation claims against appointed council were not moot; and (4) court lacked jurisdiction to resolve internal tribal leadership dispute.

Kaw Nation v. Springer
341 F.3d 1186, Docket No. 02-6169
United States Court of Appeals, Tenth Cir., August 25, 2003

Subjects: Kaw Indian Tribe of Oklahoma -- Officials and employees; Kaw Indian Tribe of Oklahoma -- Finance; Housing management -- Accounting; Housing management -- Corrupt practices.

*Synopsis: Indian tribe sought damages from former tribal officials and other individuals who had allegedly misused federal housing assistance funds. The United States District Court for the Western District of Oklahoma dismissed for lack of subject matter jurisdiction, and tribe appealed.

*Holding: The Court of Appeals, Ebel, Circuit Judge, held that no private civil cause of action existed for violation of criminal statute proscribing such misuse.

United States and Pyramid Lake Paiute Tribe of Indians V. Alpine Land and Resevoir Company
340 F.3d 903
Docket Nos. 02-35491
United States Court of Appeals, Ninth Cir., August 15, 2003.

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: United States and Pyramid Lake Paiute Tribe of Indians sought judicial review of decision of Nevada State Engineer that largely granted applications of landowners in Newlands Reclamation Project to transfer water rights between different parcels of property.

*Holding: The United States District Court for the District of Nevada, Howard D. McKibben, J., affirmed State Engineer's decision. United States and Tribe appealed. The Court of Appeals, Paez, Circuit Judge, held that: (1) owners were not entitled to blanket exemption from operation of Nevada's forfeiture and abandonment laws; (2) evidence supported finding that some owners had neither abandoned nor forfeited their water rights; and (3) water rights attached to parcels through which irrigation ditches passed only to extent water was applied to parcel to produce crops. Affirmed in part, reversed in part, and remanded. See also 291 F.3d 1062.

United States v. Pyramid Lake Paiute Tribe of Indians
2003 WL 21976617, Docket No. 02-4062
United States Court of Appeals, Ninth Cir., August 8, 2003

Subjects: Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; United States; Nevada. State Engineer; Newlands Project (U.S.); Water rights -- Nevada; Water transfer -- Nevada; Forfeiture; Water rights -- Abandonment.

*Synopsis: United States and Pyramid Lake Paiute Tribe of Indians sought judicial review of decision of Nevada State Engineer that largely granted applications of landowners in Newlands Reclamation Project to transfer water rights between different parcels of property. The United States District Court for the District of Nevada, Howard D. McKibben, J., affirmed State Engineer's decision. United States and Tribe appealed.

*Holding: The Court of Appeals, Paez, Circuit Judge, held that: (1) owners were not entitled to blanket exemption from operation of Nevada's forfeiture and abandonment laws; (2) evidence supported finding that some owners had neither abandoned nor forfeited their water rights; and (3) water rights attached to parcels through which irrigation ditches passed only to extent water was applied to parcel to produce crops. Affirmed in part, reversed in part, and remanded. See also 291 F.3d 1062.

Holz v. Nenana City Public School District
347 F.3d 1176, Docket No. 03-35179
United States Court of Appeals, Ninth Cir., August 18, 2003

Subjects: United States. Constitution. 11th Amendment; Indians of North America -- Alaska; Nenana City Public School District (Alaska); Public schools; Discrimination in employment -- Nenana (Alaska); Employee selection -- Nenana (Alaska).

*Synopsis: Native-American applicant for job of classroom aide sued school district for violation of federal and state civil rights laws. The United States District Court for the District of Alaska, James K. Singleton, Chief Judge, granted summary judgment for school district, and appeal was taken.

*Holding: The Court of Appeals, Pregerson, Circuit Judge, held that school district was not state agency, and thus not entitled to Eleventh Amendment immunity.

Nato Indian Nations v. State of Utah
2003 WL 21872551, Docket No. 02-4062
United States Court of Appeals, Tenth Cir., August 8, 2003

Subjects: Nato Indian Nation -- Claims; Minerals; Mineral rights; Public lands -- Utah. Trust lands -- Utah. School and Institutional Trust Lands Administration; Land use -- Utah -- Management.

*Synopsis: Purported Indian nation sued state for alleged mismanagement of school trust lands related to purported nation's claimed mineral interest on state land, and also asserted potential, unrelated claims on behalf of two Indian tribes. The United States District Court for the District of Utah granted state's motion to dismiss and denied purported nation's motion to alter or amend judgment. Purported nation appealed.

*Holding: The Court of Appeals, Terrence L. O'Brien, Circuit Judge, held that: (1) non-lawyer could not represent purported nation in federal court; (2) district court could inquire into purported nation's status after determining that federal question jurisdiction did not exist; and (3) allegations did not trigger federal question jurisdiction. Affirmed.

United States v. Morin
2003 WL 21995317, Docket No. 02-4071
United States Court of Appeals, Eighth Cir., August 1, 2003

Subjects: Murder; Due process of law; Fair trial; Jury; Indians of North America -- United States; Medicine.

*Synopsis: Defendant was convicted in the United States District Court for the District of North Dakota, Patrick A. Conmy, J., for murder and sentenced to life in prison. Defendant appealed.

*Holding: The Court of Appeals, Beam, Circuit Judge, held that: (1) defendant's due process rights were not violated by district court's failure to order a discontinuation of his anti-psychotic medication on date that he moved to request such discontinuation; (2) defendant failed to establish that Native Americans were systematically excluded from jury pools in the District of North Dakota; and (3) defendant's own testimony did not render evidence insufficient to support murder conviction. Affirmed.

Cobell v. Norton
334 F.3d 1128, Docket No. 02-5374
United States Court of Appeals, District of Columbia Circuit, July 18, 2003

Subjects: IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; Beneficiaries; Breach of trust -- United States; Trusts and trustees -- Accounting; Contempt of court -- United States.

*Synopsis: Beneficiaries of Individual Indian Money trust accounts, as class, sued Secretary of the Interior and other federal officials, in their official capacities, for breach of fiduciary duty in management of accounts. Following affirmance of holding that officials breached their fiduciary duties and remand, 240 F.3d 1081, and following bench trial, the United States District Court for the District of Columbia, Royce C. Lamberth, J., 226 F.Supp.2d 1, granted beneficiaries' motion to hold Secretary of Interior and Assistant Secretary of Interior for Indian Affairs in civil contempt. The District Court, 226 F.Supp.2d 163, denied officials' motion to revoke appointment of individual as Court Monitor. The District Court, 2002 WL 31059909, appointed same individual Special Master-Monitor. Secretary and Assistant Secretary appealed.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that: (1) Court of Appeals lacked jurisdiction over officials' claims of judicial overreaching; (2) writ of mandamus would be issued vacating orders appointing individual first as Court Monitor, and then as Special Master- Monitor; (3) Court of Appeals had jurisdiction over appeal from contempt order; (4) District Court clearly erred in reappointing Court Monitor; (5) District Court clearly erred in reappointing Court Monitor as Special Master- Monitor; (6) contempt proceeding was criminal in nature; (7) Secretary was not in criminal contempt of order requiring her to initiate historical accounting project; (8) Secretary did not commit fraud on court , so as to be in criminal contempt, with respect to quarterly status reports; and (9) Secretary did not commit fraud on court , so as to be in criminal contempt, with respect to her representations regarding computer security of trust data. Vacated and remanded.

Related Stories: Appeals Court to Hear Cobell Disqualification Dispute (Indianz.com) 03/01

The Mashpee Wampanoag Tribal Council, Inc v. Norton
336 F3d. 838, Docket No. 02-5139
United States Court of Appeals, District of Columbia Circuit, August, 1, 2003

Subjects: Mashpee Wampanoag Tribe of Massachusetts; United States. Dept. of the Interior; Federal recognition of Indian tribes -- Problems with Bureau of Indian Affairs acknowledgment process; Time frame; United States. Administrative Procedure Act.

*Synopsis: Tribal council brought action against Secretary of Department of Interior and others, alleging unreasonable delay by the Bureau of Indian Affairs (BIA) in issuing decision regarding its petition for federal recognition completed almost six years earlier. Tribal council moved for writ of mandamus under Administrative Procedure Act (APA). The District Court, Robertson, J., 180 F.S.2d 130, granted motion, and appeal was taken.

*Holding: The Court of Appeals, Ginsburg, Chief Judge, held that district court should not have concluded that the Bureau of Indian Affairs (BIA) had delayed unreasonably, in violation of requirements of the Administrative Procedure Act, in processing putative tribe's petition for recognition, based upon number of years that petition had been before the BIA, without first considering the BIA's limited resources and effect of granting relief upon other equally-deserving petitioners for recognition. Reversed and remanded.

July

Nevada v. Te-Moak Tribe
339 F.3d 804
Docket Nos. 00-17146, 00-17172, 00-17173, 00-17175.
United States Court of Appeals, Ninth Cir., July 28, 2003.

Subjects: Te-Moak Tribes of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); Nevada; Water rights -- Nevada; Jurisdiction -- Nevada.

*Synopsis: After removal, by federal government, of State's action against Indian tribe to enforce state court water rights decree, the United States District Court for the District of Nevada, 114 F.Supp.2d 1046, Edward C. Reed, Jr., J., abstained and remanded. All parties appealed. The Court of Appeals, Kozinski, Circuit Judge, held that doctrine of prior exclusive jurisdiction applied, and thus district court lacked jurisdiction.

*Holding: The Court of Appeals, Kozinski, Circuit Judge, held that doctrine of prior exclusive jurisdiction applied, and thus district court lacked jurisdiction. Affirmed.

Oneida Indian Nation of New York v. City of Sherrill
337 F3d. 139, Docket No. 01-7795, 01-7797
United States Court of Appeals, Second Circuit, July 21, 2003

Subjects: Real property -- Oneida Nation of New York; Indian Country (U.S.); Tax exemption; Local taxation -- New York.

*Synopsis: Indian tribe brought actions against city and county, alleging that property owned by tribe was exempt from taxation. City brought actions for eviction against tribe and members of the tribal council. After cases were consolidated, the United States District Court for the Northern District of New York, David N. Hurd, J., 145 F.Supp.2d 226, 145 F.Supp.2d 268, determined that properties were not taxable, and city and county appealed.

*Holding: The Court of Appeals, Parker, Circuit Judge, held that: (1) property at issue was within Indian country; (2) treaty providing for potential removal of Indians from portion of state did not diminish or disestablish reservation land; (3) alleged lapse in tribal existence did not preclude tribe from asserting its rights pursuant to historic Indian title to land; (4) city was not entitled to additional discovery; (5) other bands originating from same tribe were not indispensable parties to action against county; and (6) judgment on the pleadings in action against county was improper.
Affirmed in part, vacated and remanded in part. Van Graafeiland, Senior Circuit Judge, filed dissenting opinion.

Related news stories: Word from Supreme Court Expected Monday (Oneida Dispatch) 02/21, Appeals Court Won't Stop Oneida Nation Evictions (Indianz.com) 04/05

United States v. Braren
2003 WL 21688618, Docket No. 02-35441, 02-35446
United States Court of Appeals, Ninth Circuit, July 21, 2003

Subjects: Water rights -- Klamath Basin (Or.); Administrative procedure -- Oregon; Water rights -- Standards; United States; Klamath Indian Tribe of Oregon; Oregon.

*Synopsis: Following State's announcement of a preliminary assessment, in its administrative adjudication of water rights, United States and Indian tribes brought action seeking declaration that tribes had a water right to support gathering of plants, as well as clarification of the nature and scope of tribal water rights announced in previous judicial decisions. The United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, provided clarification, and State and individual property owners appealed.

*Holding: The Court of Appeals, Tallman, Circuit Judge, held that dispute was not ripe for federal judicial determination.

Turley v. Eddy
2003 WL 21675511, Docket No. 02-56782, D.C. No. CV-02-04783-JFW
United States Court of Appeals, Ninth Circuit, July 16, 2003

Subjects: Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California -- Officials and employees; Eviction; Joinder of parties.

*Synopsis: Occupants brought suit against tribal officers to challenge their eviction from Western Boundary lands that Colorado River Indian Tribes (CRIT) claimed as part of reservation. The United States District Court for the Central District of California, John F. Walter, J., dismissed suit for failure to join indispensable party, and occupants appealed.

*Holding: The Court of Appeals held that: (1) both CRIT and United States were necessary indispensable parties, and (2) dismissal was appropriate due to inability to join CRIT because of its tribal sovereign immunity.
Affirmed.

Reno-Sparks Indian Colony v. United States Environmental Protection Agency
2003 WL 21659158, Docket No. 02-71503
Ninth Circuit, July 16, 2003

Subjects: Reno-Sparks Indian Colony, Nevada; United States. Environmental Protection Agency; Nevada. Clean Air Act; United States. Administrative Procedure Act; Air -- Pollution -- Control; Hydrographic areas -- Nevada -- Boundaries.

*Synopsis: Petition was filed for review of Environmental Protection Agency (EPA) rule purporting to clarify that, in table listing Nevada's Clean Air Act (CAA) designations for various airborne pollutants, terms "rest of state" and "entire state" referred not to single baseline area for CAA purposes but to more than 250 distinct hydrographic areas, each of them constituting its own separate area.

*Holding: The Court of Appeals, Canby, Circuit Judge, held that: (1) rule was not arbitrary, capricious or otherwise not in accordance with law, as would violate Administrative Procedure Act (APA), on basis that it mischaracterized agency's original 1978 boundary designations for Nevada or directly contradicted agency's 1991 regulation, direction to all listed states, stating that term "rest of state" should be assumed to constitute single baseline area, and (2) rule was interpretive rather than legislative and EPA thus did not violate APA by issuing it without allowing for notice and comment. Petition denied.

Frank v. Forest County
336 F.3d 570, Docket No. 02-2433
United States Court of Appeals, Seventh Circuit, July 15, 2003

Subjects: Apportionment (Election law); Equality before the law -- United States; United States. Voting Rights Act of 1965; Forest County (Wis.); Forest County Potawatomi Community of Wisconsin Potawatomi Indians, Wisconsin.

*Synopsis: Indian tribe brought action alleging that county's plan for redistricting its twenty-one supervisory districts deprived Native Americans of equal protection and violated Voting Rights Act. The United States District Court for the Eastern District of Wisconsin, 194 F.Supp.2d 867, Thomas J. Curran, J., granted summary judgment for county, and tribe appealed.

*Holding: The Court of Appeals, Posner, Circuit Judge, held that (1) deviations in sizes of districts did not violate equal protection, and (2) plan did not violate Voting Rights Act by depriving Native Americans and African-Americans of chance to elect some officials of their choice. Affirmed.

Penn v. United States
2003 WL 21543782, Docket No. 02-1731, 02-2267
8th Cir., July 10, 2003

Subjects: Indians of North America -- Non-members of a tribe; United States. Federal Tort Claims Act; Civil rights; Tort liability of Indian tribal governments; Indians of North America -- Tribal membership -- Exclusion and expulsion; Executions (Law); Sovereign immunity -- United States; Sovereign immunity -- North Dakota; United States -- Officials and employees; North Dakota -- Officials and employees.

*Synopsis: Plaintiff, who was not an enrolled member of any Indian tribe, brought action for damages against law enforcement officers involved in service and enforcement of tribal court order excluding her from Indian reservation. Defendants' motion for summary judgment was denied by the United States District Court for the District of North Dakota, Patrick Conmy, J., and defendants appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that officers were entitled to absolute quasi-judicial immunity. Reversed and remanded.

Malabed v. North Slope Borough
2003 WL 21524776, Docket No. 99-35684, 99-35750, 99-35773
9th Cir., July 8, 2003

Subjects: Employee selection -- Alaska Native preference in hiring; North Slope Borough (Alaska); Equality before the law -- Alaska; United States. Civil Rights Act of 1964.

*Synopsis: Former borough employees brought action challenging legality of borough's Native American employment preference ordinance. The United States District Court for the District of Alaska, 42 F.Supp.2d 927, John W. Sedwick, J., declared the ordinance invalid, and borough appealed. On appeal the Court of Appeals certified question to the Supreme Court of Alaska. The Alaska Supreme Court, 70 P.3d 416, answered, holding that ordinance violated state constitution's equal protection clause.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that (1) ordinance violated state constitution's equal protection clause, and (2) Civil Rights Act of 1964 did not preempt Alaska constitutional or other law prohibiting discrimination in employment preferences affirmatively favoring Native Americans over others. Affirmed.

Narragansett Indian Tribe v. Warwick Sewer Authority
2003 WL 21512228, Docket No. 02-2672
1st Circuit, July 3, 2003

Subjects: Sewerage -- Design and construction; Burial sites -- Desecration; United States. National Historic Preservation Act of 1966;

*Synopsis: Indian tribe sought preliminary injunction against sewer construction project, on basis of alleged desecration of ancestral burial sites in violation of National Historic Preservation Act (NHPA). The United States District Court for the District of Rhode Island, Ronald R. Lagueux, Senior District Judge, denied relief, and tribe appealed.

*Holding: The Court of Appeals, Lynch, Circuit Judge, held that: (1) tribe could not demand reversal of prior finding that sewer route would not affect significant Native American archaeological material; (2) NHPA provided no grounds for injunction requiring sewer construction project to use a bucket with a flat blade, rather than teeth, for digging; and (3) Sewer Authority had fulfilled its responsibilities to consult with tribe.

Thompson v. Cherokee Nation of Oklahoma
2003 WL 21511710, Docket No. 02-1286
United States Court of Appeals, Federal Circuit, July 3, 2003

Subjects: Cherokee Nation of Oklahoma; United States. Dept. of Health and Human Services; Breach of contract -- United States; United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Overhead costs; Self-determination.

*Synopsis: Tribal contractor under self-governance contracts entered pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA) appealed contracting officer's denial of its claim under Contract Disputes Act for full indirect contract support costs for past fiscal years, alleging that failure of Secretary of Health and Human Services (HHS) to pay full indirect costs was breach of contract and violated ISDEAA. The Department of Interior Board of Contract Appeals granted summary judgment on issue of entitlement in contractor's favor, and, after denying rehearing, ordered damages in tribal contractor's favor. Secretary appealed.

*Holding: The Court of Appeals, Dyk, Circuit Judge, held that: (1) Secretary lacked discretion to refuse to reprogram funds available from lump-sum appropriation to meet contractual obligation to pay tribal contractor full indirect contract support costs in accordance with ISDEAA; (2) appropriations acts did not contain statutory cap; (3) appropriations act did not apply retroactively to limit amount of funds available in earlier years for payment of tribal contractor's indirect contract support costs; (4) appropriations act could not be applied to clarify prior appropriations acts to establish congressional intent to set statutory cap on federal payments of indirect contract support costs; (5) tribal contractor's claim was not rendered moot because filed after close of relevant fiscal years; (6) Secretary was not excused from meeting contractual obligation to tribal contractor for full contract support costs under ISDEAA; and (7) award of damages to tribal contractor did not violate Appropriations Clause. Affirmed.

Related News Stories: Supreme Court to Resolve Self-determination Dispute (Indianz.com) 03/23, Supreme Court Weighs Self-determination Dispute (Indianz.com) 03/09

June

Curtis v. Sandia Casino
2003 WL 21349313, Docket No. 02-2274
10th Cir., June 17, 2003

Subjects: Casinos -- Pueblo of Sandia, New Mexico; Sandia Casino; Race discrimination; Age discrimination; People with disabilities; Discrimination in employment; United States. Civil Rights Act of 1964. Title 7; United States. Americans with Disabilities Act of 1990; United States. Age Discrimination in Employment Act of 1967; Jurisdiction -- United States; Jurisdiction -- Indian Country (U.S.); Sovereign immunity -- Pueblo of Sandia, New Mexico.

*Synopsis: (from the opinion) Ms. Curtis, a Hispanic woman with a history of physical disability was employed by the Sandia Casino ("Casino"). The Casino was owned and operated by the Pueblo of Sandia, a federally recognized Indian tribe located in New Mexico. On June 26, 2002, Ms. Curtis filed suit in federal court alleging the Casino, Casino officials, the Governor of the Pueblo of Sandia, and unnamed John Does forced her to resign her management position at the Casino in November 2001 because of her race, disability and age. (She was sixty-eight years old in November 2001.) She asserted federal and state law claims of employment discrimination [FN3] and sought damages and injunctive relief.

*Holding: (from the opinion) Ms. Curtis' Title VII claim fails because Title VII precludes jurisdiction over employment discrimination claims against Indian tribes. 42 U.S.C. § 2000e(b)(1); Morton v. Mancari, 417 U.S. 535, 545-46 (1974); Duke v. Absentee Shawnee Tribe of Okla. Hous. Auth., 199 F.3d 1123, 1126 (10th Cir.1999), cert. denied, 529 U.S. 1134 (2000). Her § 1981 claim mirrors her Title VII claim. It fails because the more specific statutory enactment of Title VII controls the subject matter. Mancari, 417 U.S. at 550-51; Wardle v. Ute Indian Tribe, 623 F.2d 670, 673 (10th Cir.1980). Her ADA claim fails because the ADA excludes Indian tribes as employers subject to suit. 42 U.S.C. § 12111(5)(B)(i). Finally, her ADEA claim fails because the ADEA does not apply to Indian tribes. EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir.1989).

Crow Creek Sioux Tribe v. Brownlee
2003 WL 21382907, Docket No. 02-5049
D.C. Cir., June 17, 2003

Subjects: Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Land titles -- Registration and transfer -- United States; South Dakota; United States. Water Resources Development Act of 2000. Title VI; United States. Dept. of the Army; United States. Army. Corps of Engineers; Land tenure; Culture; Landscape protection; Cultural property -- Protection.

*Synopsis: Tribe brought suit to enjoin implementation of Water Resources Development Act (WRDA), which called for transfer of federal Pick-Sloan lands from Army Corps of Engineers to State of South Dakota. The United States District of Columbia, Paul L. Friedman, J., denied preliminary injunction, and tribe appealed.

*Holding: The Court of Appeals, Sentelle, Circuit Judge, held that tribe did not show actual and imminent injury for Article III standing to challenge transfer under WRDA, which specifically preserved federal enforcement of cultural protection statutes.

Mayes V. Cherokee Nation
294 B.R. 145, BAP No. EO-02-067, Bankruptcy No. 02-70643.
United States Bankruptcy Appellate Panel, Tenth Circuit, June 11, 2003.

Subjects: Sovereign immunity -- Cherokee Nation of Oklahoma; State courts; Courts -- United States; Bankruptcy; Liens; Debtor and creditor.

*Synopsis: Chapter 7 debtor moved to avoid judgment lien possessed by Indian tribe, as allegedly impairing exemption to which he would otherwise be entitled, and tribe moved to dismiss on sovereign immunity grounds. The United States Bankruptcy Court for the Eastern District of Oklahoma granted motion, and appeal was taken.

*Holding: The Bankruptcy Appellate Panel, Nugent, J., held that: (1) contested matter brought by debtor to avoid state court judgment lien on exemption impairment grounds qualified as "suit" against tribe, of kind barred by tribe's sovereign immunity; and (2) tribe's waiver of its immunity from suit in state court, by commencing and obtaining judgment against Chapter 7 debtor in that forum, was not waiver of its immunity from suit in federal court.

Coyote Valley Band v. State of California
331 F.3d 1094, Docket No. 01-16283
Ninth Circuit, June 11, 2003

Subjects: Intergovernmental agreements -- Coyote Valley Band of Pomo Indians of California; Intergovernmental agreements -- California; Indian gaming; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Special funds; Fund accounting; Revenue sharing.

*Synopsis: Indian tribe brought action alleging that State had refused to negotiate in good faith with the tribe to conclude a Tribal-State compact, as required by the Indian Gaming Regulatory Act (IGRA), and moved in the district court for an order that would require it to do so. The United States District Court for the Northern District of California, Claudia Wilken, J., 147 F.Supp2d. 1011, denied the motion and entered judgment for the State, and tribe appealed.

*Holding: The Court of Appeals, Fletcher, Circuit Judge, held that: (1) revenue sharing trust fund, which required that gaming tribes share gaming revenues with non-gaming tribes, was not impermissible under IGRA, and (2) state did not act in bad faith in violation of IGRA by insisting that tribe adopt special distribution fund provision as a precondition to entering a Tribal-State compact. Affirmed.

Related news stories: Supreme Court Won't Take on Calif. Compact Dispute (Indianz.com) 02/24

City of Tacoma, Washington, v. Federal Energy Regulatory Commission
331 F.3d 106, Docket No. 01-1375
District of Columbia Circuit, June 10, 2003

Subjects: Tacoma (Wash.); United States. Federal Energy Regulatory Commission; United States. Federal Power Act; Public utilities; Water-power -- Costs; Rebates; User charges.

*Synopsis: Group of hydroelectric utilities licensed under Federal Power Act (FPA) petitioned for judicial review of three orders, 2000 WL 1687183, 2001 WL 433484, and 2001 WL 726744, in which Federal Energy Regulatory Commission (FERC) denied utilities refunds of annual charges imposed pursuant to FPA.

*Holding: The Court of Appeals, Karen LeCraft Henderson, Circuit Judge, held that: (1) orders were final agency actions subject to judicial review, and (2) FERC, by failing to conduct required review of cost reports of other federal agencies on which annual charges were based, acted contrary to unambiguously expressed intent of Congress and contrary to law. Vacated and remanded.

Navajo Nation v. Norris
2003 WL 21308905. Docket Nos. 01-35039
9th Cir., June 9, 2003

Subjects: Adoption; Indian children; Domicile; United States. Indian Child Welfare Act of 1978 (25 USC 1901); Navajo Nation, Arizona, New Mexico & Utah; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington; Jurisdiction; State courts.

*Synopsis: Indian nations challenged off-reservation adoption of Indian child. The United States District Court for the Eastern District of Washington, 47 F.Supp.2d 1233, Edward F. Shea, J., granted summary judgment for adoptive parents. Nations appealed.

*Holding: The Court of Appeals, Rawlinson, Circuit Judge, held that Washington state court had jurisdiction over adoption proceedings. Affirmed.

American Federation of Government Employees, AFL-CIO, v. United States of America
330 F.3d 513. Docket Nos. 02-5142
District of Columbia Cir., June 6, 2003

Subjects: Equality before the law -- United States; Contracting out; Employee selection; United States -- Officials and employees; American Federation of Government Employees. United States. Defense Appropriations Act.

*Synopsis: Federal employees and their unions brought action challenging constitutionality of Defense Appropriations Act provision granting outsourcing preference for firms "under 51 percent Native American ownership." The United States District Court for the District of Columbia, Urbina, J., granted government's motion for summary judgment, 195 F.Supp.2d 4, and plaintiffs appealed.

*Holding: The Court of Appeals, Randolph, Circuit Judge, held that: (1) rational basis review, rather than strict scrutiny, applied in determining whether provision violated equal protection; (2) provision granting outsourcing preference for firms "under 51 percent Native American ownership" was rationally related to legitimate legislative purpose of promotion economic development of federally recognized Indian tribes and their members, as required by equal protection; (3) federal employees did not have a fundamental interest in public employment for purposes of substantive due process. Affirmed.

Related news stories: Court Rejects Union Claim Against Native Contract (Indianz.com) 6/09.

United States v. City of Tacoma
2003 WL 21276504. Docket Nos. 00-35070
9th Cir., June 4, 2003

Subjects: Indian land transfers -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Judgments, Declaratory; Eminent domain; Tacoma (Wash.).

*Synopsis: Government, acting on its own behalf and as trustee for Indian tribe, sought declaratory judgment to invalidate city's 1921 condemnation proceedings and void land transfers by tribe. Parties cross-moved for summary judgment. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for government. City appealed.

*Holding: The Court of Appeals, Gould, Circuit Judge, held that: (1) United States had standing; (2) condemnation proceedings were without effect and conveyed no interest to city; and (3) U.S. was not estopped, on basis of actions of federal officials, from bringing action. Affirmed.

Skokomish Tribe v. United States
2003 WL 21264168. Docket Nos. 01-35028, 01-35845
9th Cir., June 3, 2003

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; Tacoma (Wash.); Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams.

*Synopsis: Indian tribe brought action alleging that city's 1924 development of federally-licensed hydroelectric power project violated tribe's rights under Treaty, Federal Power Act (FPA), and state law. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., granted summary judgment for city, and tribe appealed.

*Holding: The Court of Appeals, Trott, Circuit Judge, held that: (1) judge's status as a customer of the electric utility did not require recusal; (2) U.S. was properly dismissed as a defendant; (3) district court lacked jurisdiction to grant summary judgment for city as to tribe's Treaty-based claims; and (4) statute of limitations barred claims under Washington law. Affirmed in part and vacated and remanded with instructions in part. Tashima, Circuit Judge, filed opinion concurring part and dissenting in part.

Related news stories: Court Rejects Tribe's $6 Billion Claim (Post-Intelligencer) 6/05.

May

Sharber v. Spirit Mountain Gaming
2003 WL 21147447. Docket No. 01-35500
9th Cir., May 15, 2003

Subjects: Jurisdiction -- Indian Country (U.S.); United States. Family and Medical Leave Act of 1993.

*Synopsis: Employee brought action against casino pursuant to Family and Medical Leave Act (FMLA). The United States District Court for the District of Oregon, Robert E. Jones, J., 2001 WL 34042621, granted casino's motion to dismiss. Employee appealed.

*Holding: The Court of Appeals held that: (1) tribal courts should have first opportunity to determine whether they have jurisdiction to hear actions based on FMLA; (2) tribal exhaustion requirement applies to issues of tribal sovereign immunity; and (3) stay, rather than dismissal, was warranted. Affirmed in part, reversed in part, and remanded.

Roe v. Keady
329 F.3d 1188, Docket No. 02-3167
10th Cir., May 15, 2003

Subjects: Equality before the law -- United States; Indian children -- Abuse of; United States. Bureau of Indian Affairs; Race discrimination; Kansas. Dept. of Social and Rehabilitation Services.

*Synopsis: Minor Native-American child, by and through his adoptive parents, sued state social workers pursuant to §§ 1981 and 1983, alleging discriminatory behavior in failure to protect child from abuse by his natural parents. On cross-motions for summary judgment, the United States District Court for the District of Kansas, Carlos Murguia, J., 2001 WL 238142, granted summary judgment for defendants, and plaintiffs appealed.

*Holding: The Court of Appeals, Lucero, Circuit Judge, held that: (1) any allegation that social workers misjudged danger to child, or erred in concluding that they had to defer to Bureau of Indian Affairs (BIA), did not violate child's equal protection rights or discriminate against him; (2) social workers' conduct did not evince impermissible discriminatory intent; and (3) district court did not abuse its discretion in rejecting evidence of one defendant's attitude toward minorities. Affirmed.

Arakaki v. Cayetano
324 F.3d 1078. Docket No. 02-16269
9th Cir., May 13, 2003

Subjects: Intervention (Civil procedure); Native Hawaiians; Office of Hawaiian Affairs; Department of Hawaiian Home Lands; Hawaiian Homes Commission; Land use; Homestead law; Leases.

*Synopsis: Hawaiians, and native Hawaiians who either leased Hawaiian homestead lands or applied for such leases moved to intervene as of right. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., denied motion, and proposed intervenors appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that: (1) intervention as of right with regard to claim that was dismissed by district court and not subsequently appealed was not appropriate; (2) proposed intervenors had significant protectable interest in continued receipt of benefits given to Native Hawaiians, as required to intervene as of right; but (3) proposed intervenors did not overcome presumption that existing parties would adequately represent their interests. Affirmed.

April

Seneca Cayuga Tribe of Oklahoma v. National Indian Gaming Commission
327 F.3d 1019. Docket No. 01-5066
10th Cir., April 17, 2003

Subjects: Indian gaming -- Class II; Gaming -- Equipment and supplies; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Northern Arapaho Tribe of Wyoming; Diamond Gaming Corporation; National Indian Gaming seq.); United States. Johnson Act (15 USC 1171-1178); Seneca-Cayuga Commission (U.S.).

*Synopsis: Three Indian tribes, authorized to conduct gaming operations on their reservations, and gaming device manufacturer sought declaratory and injunctive relief, alleging that particular variety of gaming machine qualified as a Class II game of pull-tabs under Indian Gaming Regulatory Act (IGRA). The United States District Court for the Northern District of Oklahoma, Michael Burrage, J., held that machine was a permissible Class II aid and not an illegal gambling device under Johnson Act. Government appealed. Plaintiffs moved to dismiss as moot.

*Holding: The Court of Appeals, Henry, Circuit Judge, held that: (1) appeal was not moot; (2) collateral estoppel argument was waived; (3) Johnson Act proscription of gambling devices did not apply to IGRA Class II technologic aids; and (4) machine was a Class II technologic aid to game of pull-tabs. Affirmed.

Related news stories: Appeals Court Says Game Is Legal Class II (Indianz.com) 4/21.

Navajo Nation v. Department of Health and Human Services
2003 WL 1806130. Docket No. 99-16129
9th Cir., April 8, 2003

Subjects: Temporary Assistance for Needy Families (Program) (TANF) -- Administration; United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Contracts; Tribes -- Self-determination; Alaska native corporations -- Self-determination.

*Synopsis: Navajo Nation sued Department of Health and Human Services (HHS), seeking order requiring HHS Secretary to enter into self-determination contract with Nation, pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA), for Temporary Assistance to Needy Families (TANF) funds.

*Holding: The United States District Court for the District of Arizona, Roger G. Strand, J., dismissed action for failure to state claim. Nation appealed. On rehearing en banc, the Court of Appeals, McKeown, Circuit Judge, held that ISDEAA was not available as route for Nation's administration of TANF funds. Affirmed.

Greene v. Assistant Secretary Indian Affairs (BIA) Neal McCaleb
61 Fed. Appx. 445 Docket No. 02-17054., D.C. No. CV-02-06157-REC
9th Cir., April 7, 2003

Subjects: Choctaw Nation of Oklahoma -- Tribal membership; United States. Bureau of Indian Affairs; Intervention (Civil procedure) -- United States.

*Synopsis: (from the opinion) Charles Anthony Greene appeals pro se the district court's judgment dismissing his action alleging that the Bureau of Indian Affairs ("BIA") wrongfully failed to intervene when the Choctaw Nation of Oklahoma denied Greene tribal membership.

*Holding: The district court properly dismissed Greene's action because only the Choctaw Nation may grant him tribal membership, not the BIA.

Penn v. United States
2003 WL 1740500. Docket No. 02-1731, 02-2267
8th Cir., April 3, 2003

Subjects: Indians of North America -- Non-members of a tribe; United States. Federal Tort Claims Act; Civil rights; Tort liability of Indian tribal governments; Indians of North America -- Tribal membership -- Exclusion and expulsion; Executions (Law); Sovereign immunity -- United States; Sovereign immunity -- North Dakota; United States -- Officials and employees; North Dakota -- Officials and employees.

*Synopsis: Nonmember of Indian tribe sued United States, county sheriff, and others under Federal Tort Claims Act (FTCA), alleging constitutional violations in connection with service and execution of tribal court order excluding her from reservation. The United States District Court for the District of North Dakota, denied certain defendants' motion for summary judgment based upon claim of absolute and qualified immunity, and they appealed.

*Holding: The Court of Appeals, Wollman, Circuit Judge, held that order was not issued in clear absence of all jurisdiction, and federal and state officials thus were entitled to absolute quasi-judicial immunity for their roles in serving and executing order. Reversed and remanded with directions.

Court of Appeals Pleadings and Briefs: Retrieve briefs from the 8th. Cir. web site

March

Arakaki v. Cayetano
2003 WL 1635184. Docket No. 02-16269
9th Cir., March 31, 2003

Subjects: Hawaii; Administrative agencies -- Hawaii; Native Hawaiians; Leases; Homestead law; Land tenure; Intervention.

*Synopsis: Action was brought against State of Hawaii and state agencies, challenging constitutionality of provision of exclusive benefits to native Hawaiians and Hawaiians, and native Hawaiians who either leased Hawaiian homestead lands or applied for such leases moved to intervene as of right. The United States District Court for the District of Hawaii, Susan Oki Mollway, J., denied motion, and proposed intervenors appealed.

*Holding: The Court of Appeals, Hug, Circuit Judge, held that: (1) intervention as of right with regard to claim that was dismissed by district court and not subsequently appealed was not appropriate; (2) proposed intervenors had significant protectable interest in continued receipt of benefits given to Native Hawaiians, as required to intervene as of right; but (3) proposed intervenors did not overcome presumption that existing parties would adequately represent their interests. Affirmed.

United States v. Lara
2003 WL 1452003, Docket No. 01-3695
8th. Cir., March 24, 2003

Subjects: Assault and battery -- Indian Country; United States -- Officials and employees; Jurisdiction -- Criminal actions arising in Indian Country; Jurisdiction -- Indian Country -- Over non-members of a tribe; Jurisdiction -- United States; Indians of North America -- Non-members of a tribe; Double jeopardy.

*Synopsis: Following denial of his motion to dismiss on basis of prior tribal court conviction, defendant, an Indian nonmember of the tribe, pleaded guilty in the United States District Court for the District of North Dakota, Alice R. Senechal, United States Magistrate Judge, to assault on a federal officer occurring in Indian country. Defendant appealed. A panel of the Court of Appeals affirmed, 294 F.3d 1004.

*Holding: On rehearing en banc, the Court of Appeals, Wollman, Circuit Judge, held that tribal court prosecution occurring pursuant to delegation of Congressional power, rather than tribe's inherent sovereign powers, barred federal prosecution on Double Jeopardy grounds. Reversed and remanded with instructions. Morris Sheppard Arnold, Circuit Judge, filed dissenting opinion, in which Bowman, Murphy, and Smith, Circuit Judges, joined.

Court of Appeals Pleadings and Briefs: Retrieve briefs from the 8th Cir. web site

Milios v. Mashantucket Pequot Tribal Nation
2003 WL 1412414 (Unpublished), Docket No. 02-2162
1st Cir., March 21, 2003

Subjects: Civil rights; United States. Indian Civil Rights Act (25 USC 70 et seq.); Mashantucket Pequot Gaming Enterprise; Indian gaming -- Law and legislation; Common law; Wagers; Poker.

*Synopsis: Gambler brought action alleging that tribe's failure to pay jackpot at tribal casino violated his civil rights under Indian Civil Rights Act (ICRA) and § 1985.

*Holding: The United States District Court for the District of Massachusetts, Nancy Gertner, J., dismissed complaint, and