Ninth Circuit – Page 67

Federal Cert Opposition Brief in Native Village of Eyak Aboriginal Rights Case

July 8, 2013Matthew L.M. Fletcher

Here:

USA Cert Opp

The petition and links to other materials is here.

Ninth Circuit Partially Reverses Conviction for Theft from Fort Peck Tribe

July 8, 2013Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. White Eagle.

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case arising out of the involvement by the Bureau of Indian Affairs Superintendent at the Fort Peck Indian Reservation in a scheme to obtain money from a tribal credit program.

Reversing convictions on counts charging conspiracy to convert tribal credit program proceeds (18 U.S.C. § 371) and theft and conversion from an Indian Tribal Organization (18 U.S.C. §§ 1163, 2), the panel held that the government’s misapplication theory, predicated at best on an employer directive and a civil regulation, cannot support a conviction; and that the government’s embezzlement and conversion theories also fail because the defendant never controlled or had custody of the funds that she later borrowed.

Affirming a bribery conviction (18 U.S.C. § 201(b)(2)), the panel held that a jury could easily infer a quid pro quo and had ample evidence to conclude that the defendant’s actions were “corrupt.”

Because the government did not show that the defendant violated a specific duty to report credit program fraud, the panel reversed her conviction of concealment of public corruption (18 U.S.C. § 1001(a)(1)).

And the briefs:

White Eagle Opening Brief

US Answer Brief

White Eagle Reply Brief

Ninth Circuit Affirms Katie John Subsistence Rights Ruling

July 8, 2013Matthew L.M. Fletcher5 Comments

Here is the opinion.

And the court’s syllabus:

The panel affirmed the district court’s decisions upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary of Agriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights.

In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (“Katie John I”), the court held that, because Congress included subsistence fishing in Title VIII, the Act applied to some of Alaska’s navigable waters. The 1999 Rules identified which navigable waters within Alaska constituted “public lands” under Title VIII of the Act, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands.

As threshold issues, the panel held that the Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify whose waters are “public lands” for the purpose of determining the scope of the Act’s rural subsistence policy; and that in construing the term “public lands,” the Secretaries were entitled to “some deference.” The panel concluded that, in the 1999 Rules, the Secretaries applied Katie John I and the federal reserved water rights doctrine in a principled manner. The panel held that it was reasonable for the Secretaries to decide that: the “public lands” subject to the Act’s rural subsistence priority included the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments were best determined on a case-by-case basis.

Briefs are here.

Lower court materials are here.

Ninth Circuit Affirms Dismissal of Tort Claim against Alaska City for Actions of Tribal Police

July 2, 2013Matthew L.M. Fletcher

Here are the materials in M.J. v. United States:

CA9 Opinion

MJ Opening Brief

City of Quinhagak Answer Brief

MJ Reply Brief

The court’s syllabus:

The panel affirmed the district court’s summary judgment in this diversity action seeking to hold the Alaskan city of Quinhagak liable for injuries caused by the negligence of Derrick Johnson, a Native Village of Kwinhagak tribal police officer.

The panel noted that under Alaska state law, an employee’s immunity from tort liability precludes an employer from being held vicariously liable for the employee’s negligence. The panel held that Johnson was immune from individual liability for plaintiffs’ tort claims, both under the Federal Tort Claims Act and the tribe’s sovereign immunity. Accordingly, because plaintiffs sought to hold the City vicariously liable on a non-delegable duty theory for the negligent conduct of an immune independent contractor, plaintiffs’ claims against the City failed.