en banc petition – Page 7

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

Panel materials are here.

Materials on affected appeals are here.

Thurston County Files En Banc Petition in Ninth Circuit Appeal

August 28, 2013Matthew L.M. Fletcher2 Comments

Here:

Thurston Co en banc petn

Panel materials are here.

Ninth Circuit Withdraws Zepeda Opinion

August 20, 2013Matthew L.M. Fletcher

Here. The order:

The opinion in this case filed on January 18, 2013, and reported at 705 F.3d 1052 is hereby withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. The court will file a new opinion in due course. As the court’s opinion is withdrawn, the government’s petition for rehearing and rehearing en banc is moot.

Materials in this case and related cases are here.

Ninth Circuit, on Reconsideration, Orders Interior Review of Gila Bend Act in Tohono O’odham Gaming Lands Appeal

May 21, 2013May 20, 2013Matthew L.M. Fletcher5 Comments

Here are the materials in City of Glendale v. United States:

Superceding panel opinion

Arizona & Glendale En Banc Petition

Gila River En Banc Petition

Federal Response

TON Response

The court’s syllabus:

The panel withdrew its prior opinion and published a superseding opinion affirming in part, and reversing and remanding in part, the district court’s summary judgment in favor of federal defendants in an action by the City of Glendale seeking to set aside the United States Department of Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation, a 54-acre parcel of land known as Parcel 2 on which the Nation hoped to build a resort and casino.

The panel held the Gila Bend Indian Reservation Lands Replacement Act, read as a whole, was unambiguous and that § 6(c) of the Act created a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the Act. The panel held that § 6(d) of Act was ambiguous as to whether Parcel 2, located on a county island fully surrounded by city land, was within the City of Glendale’s corporate limits. The panel held further that the Secretary of the Interior was mistaken in concluding that the term has a plain meaning, and remanded for the agency to consider the question afresh in light of the ambiguity the panel saw. Finally, the panel held that passage of the Act was within congressional power under the Indian Commerce Clause and was not trumped by the Tenth Amendment

News coverage here.

Previous panel materials here.