Here is the unpublished memorandum. An excerpt:
Appellants conceded at oral argument that the Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and this case is governed by Strate v. A-1 Contractors, 520 U.S. 438 (1997). See Strate, 520 U.S. at 455-56.
Briefs and oral argument materials here.
Federal district court materials here.
Tribal court materials here.
Here are the briefs:
Oral argument audio here.
Lower court materials here:
Here are the materials in Nasella v. Barona Valley Ranch Resort & Casino:
Here are the materials in Shirk v. United States:
From the court’s syllabus:
The panel vacated the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States after Jennifer Rose was injured in a traffic accident following a police pursuit involving two tribal police officers employed by the Gila River Indian Community.
Loren Shirk, along with his wife, Jennifer Rose, alleged negligence by the tribal officers and loss of consortium under the FTCA. Congress extended the FTCA’s waiver of the United States’ sovereign immunity to claims resulting from the performance of functions authorized by the Indian Self- Determination and Education Assistance Act of 1975, commonly referred to as § 314.
To decide whether the tribal officers’ conduct was covered by § 314, thereby subjecting the United States to potential tort liability, the panel held as an issue of first impression, that it was first necessary to set out the analysis that courts should undertake when confronted with a § 314 claim where the alleged tortfeasors are employees of a tribe, tribal organization, or Indian contractor. The panel held at the first step of the § 314 inquiry, courts must determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. At the second step, courts must decide whether the allegedly tortious action fell within the scope of the tortfeasor’s employment under state law. The panel held that if both of these prongs were met, the employee’s actions were covered by the FTCA; but a plaintiff’s failure at either step was sufficient to defeat subject matter jurisdiction. The panel remanded so that the parties could fully brief the issue and the district court could conduct a new analysis of its subject matter jurisdiction using this two-step framework.
Second Circuit Judge Sack concurred, and wrote only to register his doubts as to one of the district court’s conclusions which the panel’s opinion properly did not reach. If the panel were squarely presented with the issue, Judge Sack would conclude that the relevant agreements between the federal government and the tribe authorized the enforcement of Arizona state law by tribal police officers.
Judge Bea concurred in part, and dissented in part. Judge Bea agreed with the new two-part test articulated by the majority opinion, but he would not remand because there are no issues of fact that require remand.
Here are the materials in Alvarez v. Tracy:
From the court’s syllabus:
The panel affirmed the district court’s denial of a habeas corpus petition brought pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in which Fortino Alvarez challenged convictions and sentences imposed by the Gila River Indian Community tribal court.
The panel declined to exercise jurisdiction over Alvarez’s claims and affirmed the denial of the habeas petition because Alvarez failed to exhaust his claims by bringing them first to the tribal courts, and did not demonstrate that unavailability or futility of direct appeal excuses the exhaustion requirement or that the Community’s appeals process did not comply with the ICRA.Although the Community failed to raise Alvarez’s lack of direct appeal in its motion to dismiss, the panel considered the defense under Wood v. Milyard, 132 S. Ct. 1826 (2012), and Granberry v. Greer, 481 U.S. 129 (1987), and concluded that the strong comity and judicial efficiency interests at stake warrant federal abstention.
Dissenting, Judge Kozinski wrote that the majority does not live up to its solemn responsibility to appear impartial, when it forgives the Community, which was represented by counsel, for failing to raise an exhaustion defense in district court or on appeal, but holds Alvarez to his single oversight of failing, while unrepresented before the Community court, to raise his jury trial and confrontation claims by way of a direct appeal. On the merits, Judge Kozinski would find that the Community violated Alvarez’s right to a jury trial under ICRA by failing to inform him that he needed to request a jury, a structural error fatally undermining the conviction.
Judge Kozinski added:
I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.
Here is the opinion in Amador County v. Dept. of Interior.
An excerpt:
In 2005, Amador County, California brought suit against the Department of Interior challenging the Secretary’s approval of a gaming compact between the Buena Vista Rancheria of Me-Wuk Indians (the “Tribe”) and the State of California. After nearly six-and-a-half years of litigation, the Tribe sought to intervene for the limited purpose of moving to dismiss the amended complaint under Federal Rule of Civil Procedure 19. The district court denied the motion as untimely, and this appeal followed. Because we conclude that the district court did not abuse its discretion, we affirm.
Briefs and lower court materials here.
Here:
Friends of Amador County v. Jewell
14-340
Issue: Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.
We posted on this matter here.
Also, the petition was yesterday’s petition of the day.
Here. The amendment appears minor:
At Slip Op. 22, 768 F.3d at 974, the sentence beginning with <The Indian preference exemption> and ending with <does not extend to Indians.> is deleted and replaced with:
The Indian preference exemption contained in Section 703(i) is therefore necessary to clarify that Title VII’s prohibition against racial or national origin discrimination does not extend to preferential hiring of Indians living on or near reservations.
Panel materials here.
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