Here (from the Viejas Band of Kumeyaay Indians):
Request for Depublication 07 14 15
Prior request for depublication here.
Ninth Circuit
Ninth Circuit Decides Pit River Tribe v. Bureau of Land Management re: Medicine Lake Highlands
Here is the opinion. An excerpt from the court’s syllabus:
The panel reversed the district court’s order granting judgment on the pleadings in an action brought by environmental organizations challenging the Bureau of Land Management’s continuation of 26 geothermal leases in northeastern California’s Medicine Lake Highlands.
The panel held that the district court incorrectly treated the environmental organizations’ claims as arising under only § 1005(a) of the Geothermal Steam Act. BLM’s 1998 decision to continue the 26 unproven leases in the Glass Mountain Unit under § 1005(a) was issued simultaneously with its decision to reverse and vacate its earlier decision to extend those leases on a lease-by-lease basis under § 1005(g). The panel held, thus, that the environmental organizations’ challenge to BLM’s decisions issued on May 18, 1998 implicated both § 1005(a) and § 1005(g).
Because BLM must conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act before granting lease extensions under § 1005(g), the panel held that the environmental organizations’ claim fell within § 1005(g)’s zone-of-interests, and the organizations had
stated a claim under § 1005(g).The panel declined the environmental organizations’ invitation to rule on the merits of its Geothermal Steam Act claims, and remanded for further proceedings.
Briefs:
California Tribes Seeking Depublication of Cosentino v. Fuller
Here is the request to the California Supreme Court for depublication of Cosentino v. Fuller (Cal. Ct. App.) submitted by thirteen California Indian tribes:
Cosentino Request for Depublication – File Endorsed
Here’s an excerpt:
Here, it is undisputed that Plaintiff’s suit rests entirely on the quintessentially sovereign action of the Pechanga Gaming Commission: revocation of Plaintiff’s gaming license. Opinion, pp. 6-7. That action cannot be effected by Gaming Commissioners in their personal capacity — only a properly constituted Gaming Commission can revoke a gaming license. Indeed, Congress has recognized that regulation of gaming on tribal lands is central to tribal self-governance. 25 U.S.C. § 2701.
Even though it was “the official action of the [Tribe], following [Defendants’] votes, that caused [Plaintiff]’s alleged injury” (Imperial Granite, 940 F.2d at 1271), the Opinion appears to condition an officer’s immunity on the additional showing that the sovereign’s action fell within its authority and was benignly motivated. Specifically, the Opinion evaluated whether the Tribe’s Commission acted with a retaliatory motive and whether it “revoked [Plaintiff’s] license on a ground identified in the IGRA, the Tribal-State Compact, or the Pechanga Ordinance.” Opinion, pp. 16-17. But where, as here, a plaintiff challenges official action of the tribe, the “tribe’s immunity is not defeated by an allegation that it acted beyond its powers.” Imperial Granite Co., 940 F.2d at 1271. The Opinion invites courts and litigants to disregard this firmly established protection of sovereign action under the guise of a “masked official capacity suit[].” Pistor, 2015 WL 3953448, at *5.
Here are previous TurtleTalk posts on this matter:
S’Klallam Tribes Prevail over Lummi in U.S. v. Washington U&A Subproceeding
Here are the materials in United States v. Washington subproceeding 11-2 (W.D. Wash.):
164 Jamestown and Port Gamble Motion
176 Jamestown and Port Gamble Response
186 Jamestown and Port Gamble Reply
This matter is on remand from the Ninth Circuit, materials here.
Jensen v. EXC Cert Petition
Here:
Questions presented:
1. Whether federal courts are free to ignore congressionally confirmed Indian treaty rights that impliedly reserve tribal jurisdiction over nonmember conduct within an Indian reservation, thereby effecting an impermissible judicial abrogation of those treaty rights.
2. Whether federal courts may disregard the Supreme Court’s multifactor analysis for determining the status of a roadway existing on tribal trust land when deciding if an Indian tribe has inherent sovereign jurisdiction to adjudicate a collision occurring on that roadway between a tribally regulated tour bus and a passenger vehicle carrying tribal members.3. Whether federal courts may decline to apply the consensual relationship exception of Montana v. United States, 450 U.S. 544 (1981), because nonmember conduct occurred on land deemed to be the equivalent of non-Indian fee land, where (a) the Supreme Court has indicated that Montana’s consensual relationship exception can justify tribal jurisdiction over nonmember conduct occurring on non-Indian fee land or its equivalent, and (b) there exists a consensual relationship of the qualifying kind between the tribe and the nonmembers.
4. Whether federal courts may deny that an Indian tribe has inherent civil jurisdiction, pursuant to the second Montana exception, over nonmembers’ commercial touring of tribal lands that results in a fatal tour bus/auto collision where (a) the nonmembers’ conduct implicates the tribe’s interests in governing itself, controlling internal relations, and superintending land use, and (b) the impact of the commercial touring activity, unconstrained by tribal regulatory authority, is demonstrably serious and imperils the tribe’s sovereign interests.
Lower court materials here.
Ninth Circuit Briefs in Pauma Band of Luiseno Mission v. State of California
Ninth Circuit Sitting En Banc Announced “Indian Status” Test under Major Crimes Act
Here is the opinion in United States v. Zepeda.
From the syllabus:
The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country.
The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes.The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence.
The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.
Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.
Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.
En banc materials here, here, and here. Panel materials and other materials here, here, and here.
Sharply Divided Ninth Circuit Denies En Banc Review in United States v. Bryant
Here are the materials:
CA9 Order Denying En Banc Petition + Opinions
Panel materials and commentary are here.
Torres v. Santa Ynez Band of Chumash Indians Cert Petition
Here:
Questions presented:
1. Was Petitioner denied due process of law when the Indian Tribal Chairman Armenta filed a false claim in Bankruptcy as part of a long pattern and campaign of harassment against Petitioner and the Bankruptcy Court refused to impose sanctions, simply because she believed she could not find grounds for sanctions because much of the pattern of the ultra vires conduct of Chairman Armenta did not occur in her court?
2. Has the recent decisions of this court in Bay Mills Indian Community, 572 U.S. ___, 134 S.Ct. 2024 and the Ninth Circuit court of appeals recent case in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribes sovereign immunity to evade liability?
3. Even though the sanction motion had to be brought on its face, against the tribe (who waived tribal immunity in the bankruptcy case), the court was authorized in its inherent jurisdiction to impose sanctions against the improper actions of chairman Armenta even though claimed to have been done on behalf of the tribe.
Ninth Circuit materials:
Ninth Circuit Allows Suit by “Advantage Gamblers” against Tribal Casino Officials under Maxwell Precedent
Here is the opinion in Pistor v. Garcia:
From the court’s syllabus:
The panel affirmed the district court’s denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants’ motion to dismiss the action.
The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court’s denial of defendants’ motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe.
The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.
Briefs and lower court materials here.
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