Ninth Circuit

Ninth Circuit Remands Pauma Band Gaming Dispute to Trial Court in Light of Colusa Case

Matthew L.M. Fletcher1 Comment

Here is that unpublished order.

An excerpt:

This case is remanded to the district court for reconsideration of all four ofthe Winter factors (see Winter v. Natural Res. Def. Council, – U.S. –, 129 S.Ct.365, 374 (2008)), and to re-analyze them in light of our recent decisions inAlliance for Wild Rockies v. Cottrell, 09-35756, 2010 WL 3665149 (9th Cir. July28, 2010) (amended Sept. 22, 2010) (articulating a post-Winter “sliding-scale”test), and Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.California, No. 09-16942, 2010 WL 3274490 (9th Cir. Aug. 20, 2010) (altering theEastern District Court of California’s interpretation of the IGRA Compact formulafor determining the total number of Class III gaming licenses at issue). If uponreconsideration the district court determines injunctive relief is warranted, it mustjustify any alteration of the status quo. See Tanner Motor Livery, Ltd. v. Avis, Inc.,316 F.2d 804 (9th Cir. 1963).

Yet More Holiday Reading: Ninth Circuit Decides Lyon v. Gila River Indian Community

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

This appeal involves a dispute between an Indian tribe andthe trustee of a bankruptcy estate over the rights of access toand occupation of a parcel of land completely surrounded byIndian reservation land. The district court had jurisdictionpursuant to 28 U.S.C. §§ 1331 and 1334. We have jurisdictionto hear this appeal pursuant to 28 U.S.C. § 1291, and weaffirm in part and vacate in part.

Ninth Circuit Vacates Major Crimes Act Conviction on Sixth Amendment Grounds

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. War Club.

An excerpt:

We conclude that bylimiting cross-examination of Green’s brother, the district court precluded War Club from developing evidence that Green’s brother had a motive to commit the murder. The court thereby deprived War Club of the “meaningful opportunity to present a complete defense” guaranteed by the Constitution. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690(1986)). Because we cannot say that the error was “harmless beyond a reasonable doubt,” United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), we vacate the conviction and remand for a new trial.

Prisoner Response Brief in Miranda v. Nielson (Ninth Circuit)

Matthew L.M. Fletcher2 Comments

Here: Responsive Brief in Miranda 111010

Parties Agree that Bustamante v. Valenzuela Ninth Circuit Appeal is Moot

Matthew L.M. Fletcher

Here are the materials:

Pascua Motion to Dismiss

Bustamante Consent

Opening brief is here, and lower court materials here.

Details here, from the Bustamante filing:

Respondents argue that because Mr. Bustamante has completed his sentence and been released from custody, and because Mr. Bustamante’s habeas petition challenges only the length of his sentence, his appeal should be dismissed on grounds of mootness. Upon review of Respondents’ motion and pertinent authorities, including North Carolina v. Rice, 404 U.S. 244 (1971), Mr. Bustamante, by and through undersigned counsel, agrees with Respondents’ contention and does not oppose Respondents’ motion.

Ninth Circuit Declines to Review Panel Decision to Force Challengers to Native Hawaiian School Preferences to Disclose Their Names Publicly

Matthew L.M. Fletcher1 Comment

Here is today’s order — with dissents (filled with outrage) from both Chief Judge Kozinski and Judge Reinhardt, as well as a concurrence signed by the three panel judges — denying en banc review in Doe v. Kamehameha Schools.

Here is the panel decision.

Ninth Circuit Opinion in SEC v. Leonard/Indigenous Global Dev. Corp.

Matthew L.M. Fletcher

Here are the materials (unpublished opinion):

Leonard Opening Brief

SEC Answer Brief

Ninth Circuit Dismisses Challange to Mont. SCT Decision in Unauthorized Law Practice in Blackfeet Tribal Court

Matthew L.M. Fletcher

Here are the materials in O’Neil v. State of Montana (unpublished opinion):

O’Neil Opening Brief

Montana Answer Brief

O’Neil Late Reply Brief

 

Tribal Materials in Arizona Voter ID/Citizenship Case

Matthew L.M. Fletcher

Yesterday, a deeply divided panel of the Ninth Circuit (which included Justice O’Connor in the majority, and Chief Judge Kozinski the dissenter) struck down the Arizona statute requiring persons to provide documentary evidence of citizenship before registering to vote. Here is the opinion in Gonzalez v. State of Arizona.

And here are the tribal materials only (there were many, many briefs):

Inter Tribal Council Opening Brief

Inter Tribal Council Reply Brief

Ninth Circuit Panel Issues Amended Order in Colville Death Penalty Case

Matthew L.M. Fletcher

Well, it’s complicated. Colville has not reinstated the death penalty in accordance with the Federal Death Penalty Act, which removes capital murder from the Major Crimes Act unless the tribe “reinstates” it. But apparently a split panel of the Ninth Circuit held (and holds) that federal prosecutors can still pursue the crime of capital murder under the Major Crimes Act, they just can’t impose the death penalty. And the CA9 panel majority says that therefore the 5-year statute of limitations for capital crimes is therefore waived. Interesting. Here is the opinion (and the earlier opinion).

The majority panel writes:

If we were to limit the federal statute of limitations for murder to five years when a tribe has not opted to permit imposition of the death penalty against its members under the Federal Death Penalty Act, we would in fact be limiting sovereignty by burdening the choice created by the Act. “[T]here is typically no statute of limitations for first-degree murder — for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time . . . .” United States v. Quinones, 196 F. Supp. 2d 416, 418 (S.D.N.Y. 2002), rev’d on other  grounds, 313 F.3d 49 (2d Cir. 2002); see also Story v. State, 721 P.2d 1020, 1026-27 (Wyo. 1986) (stating that no state has adopted a limitations period for murder). If the statute of limitations for murder were to shorten so dramatically as a consequence of a tribe’s decision not to reinstate the death penalty, tribal governments would be forced to choose between capital punishment — to which they may have religious or political objections — and justice for the most heinous of crimes.

Judge Tashima disagreed:

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