Here:
Oral argument video and audio.
Lower court materials here.
Ninth Circuit
Ninth Circuit Affirms Dismissal of Challenge to Pala Disenrollments
Here is the unpublished opinion in Allen v. Smith:
031.1 – Memorandum Disposition(83952089_1)
Excerpt:
This relief sought by the Appellants clearly operates against the Tribe. The
requested relief would prevent the Tribe from disenrolling the Appellants and
compel it to reinstate their membership and tribal benefits. Even the request for
compensatory and punitive damages (to be paid by the Appellees, not the Tribe)
would interfere with the Tribe’s public administration, because the monetary
damages are predicated on this court’s determination that the disenrollment of the Appellants was improper. Thus, we conclude that Appellants’ suit should be
construed as a suit against the Tribe itself.
Briefs and lower court materials here.
Ninth Circuit Briefs in Consumer Financial Protection Board v. Great Plains Lending
Here:
Great Plains Lending Opening Brief
Great Plains Lending Reply Brief
Lower court materials here.
Materials on Makah Indian Tribe’s Request for Determination Re Quileute and Quinault Usual and Accustomed Fishing Grounds in the Pacific Ocean
There is the potential for an enormous amount of chaos for both US v. Washington and for any Indian tribe with extant treaty rights based on the arguments going on here now. Most notably, several tribes (Quinault, Quileute, and Hoh) are claiming that the Sherrill-based equitable defenses may apply in some way to Indian treaty claims.
I find this personally horrifying and disturbing — that any tribe would claim that Sherrill and its Second Circuit progeny apply to treaty rights. Sherrill is a statute-based claim, and so are the Second Circuit cases that purport to follow its reasoning. Treaty rights are an entirely different genre.
I sincerely hope the U.S. v. Washington tribes will opt-out of federal litigation — with its potential to undercut treaty rights for tribes all over the country — and move toward an inter-tribal treaty. There is at least one proposal on the table, and tribal leaders and tribal constituents should act quickly to adopt it. These inter-tribal disputes are doing nothing now but threatening to make bad law for everyone.
Luckily, Judge Martinez did not hold that equitable defenses apply here, but who knows what will happen in the Ninth Circuit and beyond.
Here are the new materials in subproceeding 09-01 of United States v. Washington (No. 70-9213) (W.D. Wash.):
248 Makah Motion for Summary J on Equitable Defenses
251 Quinault and Quileute Motion for Summary J
267 Quinault and Quileute Response to 248 Motion
274 Makah Reply in Support of 248 Motion
275 Interested Tribes Response to 251 – Equitable Defenses
279 Quileute and Quinault Reply in Support of 251
281 Quileute and Quinault Reply in Support of 251
283 Quileute and Quinault Motion to Define Burden of Proof
284 Interested Tribes Response to 283 — Burden of Proof
285 US Response to 283 — Burden of Proof
286 Upper Skagit Tribe Response to 283 — Burden of Proof
287 Makah Response to 283 — Burden of Proof
288 State of Washington Response to 283 — Burden of Proof
289 Quileute and Quinault Reply to 284 in Support of 283
290 Quileute and Quinault Reply in Support of 283
304 DCT on Motions for Summary J
Materials in a related pending Ninth Circuit matter in subproceeding 09-01 are here.
Confederated Tribes and Bands of the Yakama Indian Reservation v. McKenna Cert Petition
Here:
Question presented:
Whether federal courts called upon to enforce Indian treaty protections in tribal challenges to State regulation may enter judgment against the Indian Tribe without considering evidence and entering findings of fact on the Indians’ understanding of the United States’ treaty promises.
Lower court materials here.
Ninth Circuit Rules (Preliminarily) in Favor of Black Mesa Water Coalition in Attorney Fees Dispute
Here is the opinion in Black Mesa Water Coalition v. Jewell. From the court’s summary:
The panel reversed in part, and vacated in part, the district court’s judgment in an action for costs and expenses brought by a plaintiff group of environmental and community organizations against the federal Office of Surface Mining Reclamation and Enforcement after plaintiff participated in a successful challenge to OSM’s grant of a coal mining permit revision.
Plaintiff petitioned the agency under the Surface Mining Control and Reclamation Act’s administrative fee-award provision to recover costs and expenses from OSM. The administrative law judge dismissed the fee petition based on the conclusion that plaintiff was not “eligible,” and was not “entitled” to costs and expenses, under 43 C.F.R. § 4.1294(b).
The panel held that its review of the agency’s “eligibility” determination was de novo, and its review of the “entitlement” determination was for substantial evidence. The panel concluded that plaintiff was “eligible” for fees because it showed some degree of success on the merits, and the agency’s contrary conclusion was error as a matter of law. The panel vacated the portion of the district court’s decision as related to the question of entitlement. The panel declined to reach the issue whether plaintiff was “entitled” to fees, and remanded for the agency to consider the issue. Finally, the panel rejected plaintiff’s argument that the Secretary of the Interior had waived a challenge to the reasonableness of any award amount that the agency might grant on remand for costs and expenses reasonably incurred for plaintiff’s participation in the proceedings at the agency level.
And the briefs:
Black Mesa Supplemental Reply Brief
Oral argument audio here.
Ninth Circuit Decides Redding Rancheria v. Jewell (Affirming Section 20 Regulations)
Here is the opinion. The court’s summary:
The panel affirmed the district court’s judgment in favor of the federal government insofar as it upheld the Secretary of the Interior’s denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe’s proposal to close its existing Tribal gaming operation upon construction of a new facility.
The Secretary denied the Tribe’s request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe’s application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation.
The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary’s denial of the Tribe’s application was not inconsistent with prior agency practice, and was not arbitrary and capricious.
The panel held that the agency should have considered the Tribe’s alternative offer to move all gaming to the new casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address the issue.Judge Callahan concurred in parts I, II, and III of the majority’s opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.
Ninth Circuit Materials in Arce v. Huppenthal (Arizona’s Ethnic Studies Ban)
Here are the briefs:
Brief for Amici Curiae 48 Public School Teachers
Brief of Amicus Curiae Latina and Latino Critical Legal Theory, Inc.
Brief of Authors Rodolfo Acuña, Bill Bigelow, Richard Delgado, and Jean Stefancic as Amici Curiae
Brief of Chief Earl Warren Institute on Law and Social Policy
Brief of Freedom to Read Foundation
Brief of the National Education Association and Arizona Education Association as Amici Curiae
Brief Amicus Curiae of Pacific Legal Foundation in Support of Neither Party
Oral argument video here.
News coverage here.
Ninth Circuit Materials in Appeal Involving Insurance Cos. Defending Torts against Tribal Business
Here are the materials in McVay v. Allied World Ins. Co.:
Lower court materials are here:
33 McVay Supplemental Response
Federal court opinion: 16_F.Supp.3d_1202
From the West syllabus:
Background: Pedestrian who allegedly slipped and fell in a gas station convenience store owned by tribal development corporation, which was an entity of Indian tribe, brought action against, inter alia, insurer for the Indian tribe and insurer’s administrator, seeking to recover damages for injuries she sustained as a result of the slip-and-fall. Defendants filed motions to dismiss for failure to state a claim.
Holdings: The District Court, Howard D. McKibben, J., held that:
(1) pedestrian lacked standing to enforce the Indian tribe’s contract with insurer under Nevada law, and (2) pedestrian lacked standing to assert claim against insurer for breach of the implied covenant of good faith and fair dealing under Nevada law.
Motions granted.
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