Ninth Circuit Decides Chemeheuvi Indian Tribe v. Jewell

Here is the opinion.

The court’s syllabus:

The panel affirmed the district court’s summary judgment in favor of the Secretary of the United States Department of the Interior in an action brought by the Chemehuevi Indian Tribe alleging that the Secretary violated the Administrative Procedure Act by determining that the Department of the Interior was not authorized to approve the Tribe’s assignments of land to certain of its members.

The Tribe issued land assignment deeds to some of its members, which the Tribe submitted to the Bureau of Indian Affairs Western Regional Director, seeking approval under 25 U.S.C. § 81 (2000) (“Section 81”). The Interior Board of Indian Appeals concluded that the deeds could not be approved under Section 81 because doing so would violate 25 U.S.C. § 177 (“Section 177”).

The panel applied Chevron analysis, and at step one of the analysis, held that the plain language of Section 81 and Section 177 revealed that Congress did not intend for the Secretary of the Interior to approve agreements under Section 81 that would otherwise be prohibited by Section 177. The panel held that Section 177 prohibited the conveyance of land from an Indian Tribe unless approved by Congress, and Congress had not approved the transaction at issue here. The panel concluded that the Secretary of the Interior properly denied approval of the deeds under Section 81 because such conveyances would violate federal law.

Briefs and lower court materials here.

Ninth Circuit to Video Stream En banc Arguments in Big Lagoon Rancheria Gaming Matter (Sept. 17, 2014)

Here is the news release. An excerpt:

On Wednesday, September 17, 2014, beginning at 10 a.m., the court will hear oral arguments in Big Lagoon Rancheria v. State of California, in which the state appeals the summary judgment by the U.S. District Court for the Northern District of California in favor of Big Lagoon Rancheria, an Indian reservation near Eureka.  The lower court determined that the state violated the Indian Gaming Regulatory Act by failing to negotiate in good faith for a tribal-state gaming compact.

Here is the panel: Alex Kozinski, Harry Pregerson, Stephen Reinhardt, Diarmuid O’Scannlain, Susan Graber, William Fletcher, Richard Paez, Jay S. Bybee, Milan Smith, Morgan Christen, and Jacqueline Nguyen

En banc materials here.

Panel materials here.

Ninth Circuit Materials in King Mountain Tobacco v. McKenna

Here are the briefs:

King Mountain Opening Brief 

Washington Answer Brief

King Mtn Reply Brief

Oral argument link here.

Lower court materials here.

Ninth Circuit Briefs in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. Dept. of Interior

Here:

La Cuna de Aztlan Opening Brief

Interior Answer Brief

La Cuna de Aztlan Reply Brief

Oral argument audio here. Video here.

Lower court materials here.

US Prevails in Tax Assessments Dispute with King Mountain Tobacco

Here are the materials in United States v. King Mountain Tobacco Co. Inc. (E.D. Wash.):

48 US Motion to Summary J

62 DCT Order Granting Summary J in 11-3038

70 US Renewed Motion for Summary J

74 King Mountain Response

80 US Reply

87 DCT Order Granting Renewed Motion for Summary J

Related case here.

Ninth Circuit Briefs in Quechan Tribe v. United States — IHS Clinic Dispute

Here:

Quechan Opening Brief

US Appellee Brief

Reply TK

Lower court materials here.

Split Ninth Circuit Panel Affirms Dismissal of Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Here is the opinion in White v. University of California.

From the court’s syllabus:

The panel affirmed the district court’s dismissal of an action under the Native Graves Protection and Repatriation Act on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action.

The action concerned the “La Jolla remains,” two human skeletons discovered during an archaeological excavation on the property of the Chancellor’s official residence at the University of California-San Diego. The tribes claimed the right to compel repatriation of the La Jolla remains to one of the Kumeyaay Nation’s member tribes. Repatriation was opposed by the plaintiffs, University of California professors who wished to study the remains. The professors sought a declaration that the remains were not “Native American” within the meaning of NAGPRA, which provides a framework for establishing ownership and control of newly discovered Native American remains and funerary objects, as well as cultural items already held by certain federally funded museums and educational institutions.

The panel held that the plaintiffs had Article III standing to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly traceable to the challenged action. In addition, this injury was likely to be redressed by a favorable decision.

The panel held that NAGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. The panel held that the “Repatriation Committee,” a tribal organization, was entitled to tribal sovereign immunity as an “arm of the tribe.” In addition, the Repatriation Committee did not waive its sovereign immunity by filing a separate lawsuit against the University or by incorporating under California law.

The panel held that the tribes and the Repatriation Committee were necessary parties under Federal Rule of Civil Procedure 19(a)(1) and were indispensable under Rule 19(b). In addition, the “public rights” exception to Rule 19 did not apply. Accordingly, the district court properly dismissed the action.

Dissenting, Judge Murguia agreed with the majority that the plaintiffs had Article III standing, that NAGPRA did not abrogate the sovereign immunity of the tribes, and that the Repatriation Committee was entitled to sovereign immunity. She would hold, however, that the Committee was not a necessary and indispensable party because it was neither necessary nor indispensable to resolution of the question whether the University properly determined that the La Jolla remains were Native American within the meaning of NAGPRA.

Briefs are here.

Ninth Circuit to Re-Hear Big Lagoon Rancheria Appeal Sept. 17, 2014

Here:

Big Lagoon — CA9 Order Setting Oral Argument

En banc materials here.

Panel materials here.

Ninth Circuit Rules in Favor of Lummi Tribe in Treaty Fishing Dispute

Here is the court’s opinion in United States (Lower Elwha Klallam Indian Tribe) v. Lummi Tribe:

CA9 Opinion

The court’s syllabus:

The panel reversed the district court’s summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 “Boldt Decree” issued by the U.S. District Court for the Western District of Washington.

The panel held that the issue of whether the waters immediately to the west of northern Whidbey Island were part of the Lummi Tribe’s usual and accustomed fishing grounds had not yet been determined. The panel held, therefore, that the district court erred in concluding that the issue was controlled by law of the case. The panel remanded to the district court for further proceedings.

Judge Rawlinson dissented because she would hold that the district court properly applied the law of the case doctrine where the fishing rights issue was addressed in the prior opinion United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000).

Briefs and other materials here.

Ninth Circuit Briefs in Attempt to Arbitrate Pechange Tort Claims Statute under IGRA

Here are the briefs in Cosentino v. Pechanga Band of Luiseño Mission Indians:

Cosentino Opening Brief

Pechanga Answer Brief

Repky brief TK

Lower court materials (C.D. Cal.):

12-1 Pechanga Motion to Dismiss

13 Cosentino Response

20 DCT Amended Order