Ninth Circuit

Native Village of Eyak v. Blank Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Native Village of Eyak Cert Petition

Question presented:

The Ninth Circuit agreed with the district court’s findings that at the time of first contact with Europeans, the Chugach were a culturally, ethnically and linguistically related people who had made actual and continuous use and occupancy of an area of the Outer Continental Shelf for a long time. The courts also agreed there was no evidence that others used the area, except for the periphery. Based on these showings by the Chugach, did the Ninth Circuit err in concluding that the exclusive use required to establish aboriginal title was defeated by a failure to demonstrate an ability to expel a hypothetical invader, by other groups’ use of the periphery of the Chugach territory, and by the fact that the Chugach villages were politically independent?

Lower court materials here.

Ninth Circuit Affirms Conviction for Selling Eagle Parts

Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Wahchumwah:

CA9 Opinion

Wahchumwah Brief

Amicus Brief

US Brief

The court’s summary:

The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts. The panel held that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous. The panel rejected the defendant’s objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403. The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.

I found this portion of the opinion a little odd (not the opinion, but what it describes):

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

It just seems odd to use eagle parts for the purpose of entrapment….

Update: A related unpublished opinion in United States v. Jim is here.

Ninth Circuit Rejects Challenge to Colville Tribal Membership Determination

Matthew L.M. Fletcher1 Comment

Here are the materials in Desautel v. Dupris:

Desautel Opening Brief

Colville Answer Brief

CA9 Unpublished Opinion

Ninth Circuit Affirms Tribal Immunity from Antitrust Claims relating to Tribal Tax Agreement

Matthew L.M. Fletcher5 Comments

Here is the opinion and materials in Miller v. Wright.

The court’s syllabus:

Affirming the district court’s dismissal of an antitrust action brought by cigarette vendors challenging taxes imposed by virtue of the authority vested in an Indian tribe, the panel held that the district court lacked subject matter jurisdiction in light of the tribe’s sovereign immunity. The panel held that the tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures nor by ceding its authority to Washington State when entering into a cigarette tax contract. The panel also held that federal antitrust law did not explicitly abrogate tribal immunity, and the Sherman Antitrust Act was not a law of general applicability vis-a-vis the tribe. The panel held that tribal officials were protected by the tribe’s sovereign immunity because they acted pursuant to the tribe’s authority. The panel also affirmed the district court’s alternative ruling that the action was barred by res judicata in light of prior litigation in state and tribal courts.

Here are the briefs:

Miller Opening Brief

Puyallup Answer Brief

Miller Reply Brief

Lower court materials here.

Judge Nelson’s Comments on Judge Betty Fletcher

Matthew L.M. Fletcher

Here. H/t to How Appealing.

An excerpt:

Betty and I were on calendar together the week before she died. I could tell that she was not feeling well, but nonetheless, as we discussed the cases at our post-hearing conference, she was her usual brilliant self. She had what she termed a distinguished record of reversals by the U.S. Supreme Court, often joined by me. One such case was National Resources Defense Council v. Winter that we heard in 2008 together with Judge Stephen Reinhardt. This was an environmental case and if you knew Betty, you knew that she was a passionate environmentalist. She and her sisters were the first women to hike the Wonderland Trail, a rugged 93-mile trail that includes a complete loop around Mount Rainier, the highest mountain in Washington state. I understand that one of her eight grandchildren later followed in her footsteps.

The Natural Resources case was about mammals, especially whales. Environmental organizations were concerned about the Navy’s use of high-intensity, mid-frequency sonar exercises that would cause serious harm to various mammals in Southern California waters. Similar exercises around the world had caused the beaching and deaths of many whales. The environmentalists brought a motion for a preliminary injunction in the district court seeking to prevent this activity. The district court judge, while allowing the training activities to continue, imposed restrictive conditions on them. Betty, in a bold, thoughtful, level-headed, fearless and eloquent 45-page opinion, affirmed the district court. Judge Reinhardt and I concurred. I should mention that at oral argument, Betty was superb. When an attorney challenged the court’s right to tell the Navy what to do, Betty, never confrontational, simply smiled and said something to the effect that it was the court’s duty to protect the planet.

We were reversed, of course, by the U.S. Supreme Court, in a 5-4 opinion. As her son, Willie, now a judge on our court, later commented: “Damn the whales, full speed ahead.”

Materials in Ninth Circuit Challenge to Uranium Mine Permit by Havasupai Nation

Matthew L.M. Fletcher2 Comments

Here are the Ninth Circuit briefs in Center for Biological Diversity v. Salazar (Arizona 1 Mine):

CBD Opening Brief

Denison Mines Answer Brief

Federal Answer Brief

Oral argument audio here.

Lower court materials here.

Materials in prior appeal here.

Ninth Circuit Judge Betty Fletcher Walks On

Matthew L.M. Fletcher3 Comments

Sad, sad day.

News coverage from How Appealing here. Ninth Circuit press release here. From the ABA Journal site:

Betty Fletcher, a judge with the San Francisco-based 9th U.S. Circuit Court of Appeals, died Monday, the Associated Press reports.

Fletcher, 89, was appointed to the court by President Jimmy Carter, and has been on the bench since 1979. She graduated from University of Washington Law School in 1956, according to a 2009 Seattle Weekly profile of the jurist. Then 33, she had four young children and went to work at the firm that is now K&L Gates.

Two of her children, William and Susan, became lawyers, and William Fletcher is also now a 9th Circuit justice. Betty Fletcher is well-known for telling U.S. Senate Republicans, who according to the Associated Press delayed her son’s judicial appointment, that to ease his confirmation she would take senior status so they could appoint someone for her seat.

William Fletcher’s nomination was confirmed in 1998.

Judge Fletcher’s track record in Indian cases was simply amazing. Lots of well-known cases below:

Crow Tribe v State of Montana 1981

Cultee v US 1983

Puyallup Indian Tribe v Port of Tacoma 1983

White Mountain Apache v Williams (dissent) 1984

US v Adair 1984

Blackfeet Tribe v Montana 1984

National Farmers Union v Crow Tribe 1984

Andersen v BIA 1985

Chemehuevi Indian Tribe v Cal State Board of Equalization 1986

US ex rel Chunie v Ringrose 1986

Assiniboine & Sioux Tribes of Fort Peck v Board of Oil & Gas Conservation of Montana 1986

Yakima Indian Nation v Whiteside (Brendale) 1987

Sanders v Robinson 1988

McClendon v US 1989

Sisseton-Wahpeton Sioux Tribe v US 1990

US v Orr Water Ditch Co 1990

Gila River Indian Community v Waddell 1992

LaPier v McCormick 1993

Salt River Pima-Maricopa Indian Community v Yavapai County 1995

Salt River Pima-Maricopa Indian Community v Arizona 1995

Nevada v Hicks 1999

Owens Valley Indian Housing Authority v Turner 1999

US v Webb 2000

AT&T Corp. v Coeur d’Alene Tribe 2002

Native Village of Quinhagak v US 2002

US v Errol D Jr 2002

Boozer v Wilder 2004

US v Smith 2004

Ninth Circuit Vacates Condition of Indian Country Sex Offender’s Supervised Release

Matthew L.M. Fletcher

Here is the opinion in United States v. Wolf Child.

An excerpt:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

Ninth Circuit Decides Gaming Case — Blackjack Card Counters Beware!

Matthew L.M. Fletcher

Here is the opinion in LAURIE TSAO V. DESERT PALACE, INC.

Update in Ruby Pipeline Case

Matthew L.M. Fletcher

Guess the big win wasn’t all that big. Here are two unpublished opinions from the Ninth Circuit in related cases that are not so excellent for the tribes.

CENTER FOR BIOLOGICAL DIVERS. V. BLM

SUMMIT LAKE PAIUTE TRIBE V. BLM