Here are the materials:
CA9 Order Denying En Banc Petition + Opinions
Panel materials and commentary are here.
Ninth Circuit
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.
Ninth Circuit (Largely) Rejects Alaska Eskimo Whaling Commission Challenge to Oil & Gas Exploration Permits
Here is the opinion in Alaska Eskimo Whaling Commission v. EPA:
From the court’s syllabus:
The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.
The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of noncontact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because
of the effect of such discharge on bowhead whales, including deflection from their migratory paths.The panel denied the petition in all other respects because the EPA’s issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.
Guest Post by Bill Wood: Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California (Revised)
Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California
A few people emailed and texted me about this opinion and suggested I write something about it. So I’ve sketched out below some initial thoughts on certain of the court’s statements concerning the laws applicable to Indian lands and aboriginal title in California generally—which reflect and perpetuate legal and historical misunderstandings that permeate federal Indian law in California—and regarding the history of the Tejon Ranch and the Tejon Reservation (the lands at issue in the case, hereinafter “Tejon” for convenience). I’m not commenting here on the merits of the plaintiffs’ claims or the lawyering (I haven’t read the briefs or the district court’s opinion). And I didn’t intend to write something this long. But I felt like I needed to provide enough detail to support my points (there are some footnotes, mostly citing historical sources, that aren’t included in this post due to technological limitations), while hopefully not getting bogged down in the particulars of the statutes and cases addressing aboriginal title in California or the histories of the military reservations established here in the 1850s and 1860s. My apologies for where I fall short in that regard or otherwise, including where things may be oversimplified.
The court notes (slip op. at 10) that the lands at issue were the subject of four different Mexican land grants that were confirmed by a commission established under an 1851 law to determine the validity of Mexican (and Spanish) land grants: the Act to Ascertain and Settle the Private Land Claims in the State of California. Pub. L. No. 31-41, 9 Stat. 631 (1851) (emphasis added). (The court calls it the California Land Claims Act of 1851, or simply the Act of 1851, conveniently omitting and ignoring the “Private Land Claims” language in the law’s title.) As the court explains (slip op. at 12; see also at 5), this 1851 Act required that “each and every person claiming lands by virtue of any right derived from the Spanish or Mexican government” (my emphasis) to present that claim to the commission by March 3, 1853, when lands for which grants were not confirmed would go into the public domain. And the court, reinforcing a jurisprudential misunderstanding dating back to the late nineteenth century, stated that “the Tribe’s failure to present a claim to the Commission pursuant to the [1851 Act] extinguished its title” (slip op. at 12), because “the Act . . . fully extinguished any existing aboriginal title or unregistered land grants” (slip op. at 16).
Chippewa Cree Tribe Seeks Ninth Circuit Review of Whistleblower Matter
California Appellate Court Issues Slightly Modified Opinion in Cosentino v. Fuller
Ninth Circuit Rejects Nonrecognized Kawaiisu Tribe’s Claim to Tejon Ranch
Here is the opinion in Robinson v. Jewell.
From the court’s summary:
The panel affirmed the district court’s dismissal of the claims of the Kawaiisu, a non-federally recognized Native American group, and its elected chairperson, David Laughing Horse Robinson, asserting title to the Tejon Ranch, one of the largest continuous expanses of private land in California.
The panel held that the district court properly determined that the Tribe had no ownership interest in the Tejon Ranch and that no reservation was established. Specifically, the panel held that the district court correctly concluded that the Tribe’s failure to present a claim to the Board of Commissioners created by the California Land Claims Act of 1851 extinguished its title; that the Treaty with the Utah did not convey land rights to the signatory tribes or recognize aboriginal title; and that Treaty D was never ratified and conveyed no rights. The panel rejected the Tribe’s complaints of alleged forgery and deception in obtaining patents for the four Mexican land grants comprising Tejon Ranch because all of the alleged acts occurred prior to the submission of the claims to the Board of Commissioners, and the Tribe could not challenge the validity of land patents after more than a century of time had passed.
The panel held that the claims against Kern County were subsumed into the Tejon Ranch ownership determination. The panel further held that the Tribe’s claims originally asserted against the Secretary of the United States Department of the Interior, and Robinson’s individual claims, were waived for failure to assert them on appeal. The panel
declined to consider the Tribe’s new arguments on appeal.
Briefs:
Ninth Circuit Rejects Habeas Petition of Navajo Man Sentenced to Death
Here is the opinion in United States v. Mitchell.
Brief tk.
California Tribes Seek Rehearing Or Depublication Of Official Immunity Ruling
Here are the materials:
Cosentino – Application and Amicus Brief
Here’s a snippet from the petition:
The Opinion effectively holds that the Tribe’s Gaming Commission lacks authority to revoke a gaming license unless it cites to reasons for its actions that are expressly and affirmatively authorized to do so by codified law. That is incorrect as a matter of law. The Opinion also wrongly asserts that tribal sovereign immunity can be overcome by alleging that a tribal official acted in excess of his or her authority and that, upon such allegation, tribal official immunity is subject to an evidentiary weighing and balancing that involves shifting burdens of production and persuasion, similar to California’s law of qualified immunity. Tribal official immunity, however, is an absolute privilege, like the absolute immunity enjoyed by the Justices of this Court.
We previously covered this case here.
Turtle Talk 
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