Ninth Circuit Finds No Colorable Tribal Jurisdiction over Rincon Mushroom

Here are the materials in Rincon Mushroom Corp. v. Mazzetti:

CA9 Unpublished Opinion

Rincon Mushroom Opening Brief

Rincon Band Answering Brief

Rincon Band Motion to Take Judicial Notice

Rincon Mushroom Reply

Rincon Mushroom Motion to Take Judicial Notice

Lower court materials here.

An excerpt from the Ninth Circuit opinion:

The Tribe argues that the non-member fee land at issue could potentially contaminate the Tribe’s water supply, or exacerbate a future fire that might damage the Rincon Casino. However, these possibilities do not fall within Montana’s second exception, which requires actual actions that have significantly impacted the tribe. Compare id. at 341 (“The sale of formerly Indian-owned fee land to a third party . . . cannot fairly be called ‘catastrophic’ for tribal self-government. . . .”) (citation omitted); and Strate v. A-1 Contractors, 520 U.S. 438, 458-59 (1997) (ruling that tribal court jurisdiction over tort suits is not “needed to preserve the right of reservation Indians to make their own laws and be ruled by them”) (citation and internal quotation marks omitted), with Elliott, 566 F.3d at 844, 849-50 (holding that the tribal court had colorable jurisdiction where a non-Indian started a forest fire on reservation land).

To hold that the potential threats of harm presented on this record give rise to tribal jurisdiction under Montana’s second exception would allow the exception to swallow the rule; any property within the Rincon Reservation faces  similar potential threats. See Plains Commerce, 554 U.S. at 330. Because the potential threats did not create a plausible basis for tribal court jurisdiction, the district court erred when it dismissed RMCA’s Complaint for failure to exhaust tribal remedies.  See Elliott, 566 F.3d at 848.

Compare that language to the lower court’s description of the same allegation:

Defendants have submitted evidence indicating that conduct on Plaintiff’s property “pose direct threats to the Tribe’s groundwater resources.” (Minjares Decl. ¶ 29, Doc. # 52). Defendants also have submitted evidence that “[c]onditions on the Subject Property during the [2007] Poomacha Fire contributed to the spread of wildfire from that property to Tribal lands across the street on which the Casino is located.” (Mazzetti Decl. ¶ 15, Doc. # 17-2). Although Plaintiff disputes this evidence, Defendants have shown that conduct on Plaintiff’s property plausibly could threaten the Tribe’s groundwater resources and could contribute to the spread of wildfires on the reservation. This showing is sufficient to require exhaustion, given the relief requested by the first two counts of the Complaint.

Ninth Circuit Oral Argument Audio in City of Glendale v. US (Tohono O’odham Trust Acquisition)

Here.

Confederated Salish and Kootenai Tribes Seek to Register Sacred Site and Prevent Mining

The Confederated Salish and Kootenai Tribes are attempting to list a sacred site on the National Register of Historic Places in hopes of stopping plans to mine Chicago Peak. Stories are here and here.

Case material (unsuccessful efforts to stop the mining project) referenced in the articles:

U.S. Fish and Wildlife Review Material

District Court Opinion

Ninth Circuit Opinion

Ninth Circuit Rejects RFRA Money Claims in Hawaii-Based Native American Church Case Involving Marijuana

Here are the materials in today’s opinion in Oklevueha Native American Church v. Holder:

Oklevueha Opening Brief

US Appellee Brief

Oklevueha Reply Brief

CA9 Opinion

Lower court materials here.

Opening Ninth Circuit Briefs in Big Lagoon Rancheria v. State of California

Here:

California Brief

Big Lagoon Brief

Swinomish-Licensed Smokes Sellers Prevail (In Part) in the Ninth Circuit on CCTA Charges

Here are the materials in United States v. Wilbur:

CA9 Opinion (per Judge W. Fletcher, with partial dissent by Judge Rawlinson)

Wilbur Opening Brief

Federal Answering Brief

Wilbur Reply Brief

An excerpt:

For the reasons that follow, we agree with the Wilburs that during the period from 2003 to 2005, when they were licensed to sell tobacco by the Swinomish Tribe, there were no “applicable State or local cigarette taxes” under the CCTA. We also agree with the Wilburs that the five-year statute of limitations for CCTA violations bars any charges based on activity from 1999 to 2003. We conclude, however, that after their tribal tobacco license expired in 2005, the Wilburs’ activities ceased to be covered by the Swinomish cigarette tax contract (“CTC”), and that the state’s retrocession therefore ceased to apply. The unstamped cigarettes the Wilburs transported and sold during this period were thus “contraband” under the CCTA. We reject the Wilburs’ due process and treaty arguments.

Amicus Brief to Which NCAI Signed On To in SCt Case Challenging Arizona’s Immigration Law

Here:

NCAI Brief in Arizona v US

Lower court materials, and Tohono O’odham Nation’s Ninth Circuit amicus brief.

Ninth Circuit Rejects Challenge to Cal. Anti-Affirmative Action Statute

Here is the opinion.

Ninth Circuit Briefing in State Eminent Domain Case against Tohono O’odham Nation

Here are the materials in Tohono O’Odham Nation v. City of Glendale:

Arizona & Glendale Brief

TON Principal Brief

Arizona & Glendale Reply

TON Reply

Lower court materials are here.

Ninth Circuit Reverses Dismissal of Effort to Avoid Navajo Jurisdiction — UPDATED with Briefs

Here is the opinion in Salt River Project v. Lee.

Lower court materials here.

More materials later.

Update — here are the briefs:

Salt River Opening Brief

Navajo Response Brief

Salt River Reply Brief