Ninth Circuit

Te-Moak Shoshone Tribe Forces Reconsideration of BLM Approval of Cortez Gold Mines

Matthew L.M. Fletcher2 Comments

Here is the Ninth Circuit’s opinion in Te-Moak Tribe of Shoshone Indians v. DOI.

An excerpt:

Te-Moak Tribe of Western Shoshone of Nevada, a federally-recognized Indian tribe (“the Tribe”), the Western Shoshone Defense Project (“WSDP”), and Great Basin Mine Watch (“GBMW”) (collectively, “Plaintiffs”) appeal the district court’s denial of their motion for summary judgment, and the grant of summary judgment to the Department of the Interior (“DOI”), the Bureau of Land Management (“BLM”), several officers of the BLM, and intervenor Cortez Gold Mines, Inc. (“Cortez”) (collectively, “Defendants”). Plaintiffs contend that the BLM’s approval of Cortez’s amendment to a plan of operations for an existing mineral exploration project in Nevada violated the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), and the Federal Land Policy and Management Act (“FLPMA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court with respect to Plaintiffs’ NHPA and FLPMA claims, and we reverse and remand for further proceedings with respect to one of their NEPA claims.

Ninth Circuit Affirms Conviction and Rejects Efforts to Inquire into Tribal Court Judge’s “Neutral[ity] and Detach[ment]”

Matthew L.M. Fletcher

Here are the materials in United States v. Wahtomy, out of the Shoshone-Bannock reservation:

US v Wahtomy CA9 Opinion

Wahtomy Brief

US Brief in Wahtomy

An excerpt:

With regard to whether Judge Coby was “neutral and detached,” Wahtomy failed to proffer any description of Judge Coby’s testimony beyond stating that Judge Coby was his former wife’s daughter. He did not proffer even basic details of the relationship that were within his personal knowledge, such as whether Wahtomy and Judge Coby were personally acquainted or the extent and frequency of their interaction. He did not proffer any specific evidence of bias, nor why the relationship might have made Judge Coby biased against him in his case. Wahtomy also sought to inquire into Judge Coby’s relationship to law enforcement, but made no showing of any basis for so inquiring. Speculation based on the fact of a relationship or relationships alone is not sufficient to make out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose on an Indian reservation of several thousand people, where the likelihood that the on-call tribal judge has a relationship to the subject of a requested warrant is greater than in a more populous jurisdiction. In the absence of concrete evidence of partiality, we have expressed wariness to “disqualify small-town judges on demand” unless the appearance of partiality is “extreme.” Id.

Wahtomy also failed to proffer evidence of why Judge Coby might not have been competent to determine whether probable cause existed. Laypersons may properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983). Wahtomy acknowledged that he had no specific basis to question Judge Coby’s competency to make a “nontechnical, common-sense judgment[]” as to whether law enforcement had demonstrated probable cause. Id. In the absence of an appropriate proffer, the district court properly declined to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.

Judge Rawlinson concurred, but apparently refused to join this unpublished memorandum opinion.

Ninth Circuit Holds that Challengers to Graton Rancheria Casino Have No Standing

Matthew L.M. Fletcher

Here is the unpublished opinion in Stop the Casino 101 Coalition v. Salazar.

News coverage here, via Pechanga.

Ninth Circuit Decides Wenatchi and Yakama Fishing Rights at Wenatshapam Fishery

Matthew L.M. Fletcher

Here is the opinion in U.S. v. Colville, and an excerpt:

This appeal is the latest chapter in the saga of Pacific Northwest Native American treaty fishing rights; a saga that has spanned many generations and over forty years of federal litigation. If history is our guide, it will not be the last chapter written. After a 2006 remand from this court, the district court conducted a trial primarily based on expert anthropological opinions, century-old documents, and reliable hearsay. The Confederated Tribes and Bands of the Yakama Indian Nation (“Yakama”) appeal, and the Confederated Tribes of the Colville Indian Reservation (“Colville”) cross-appeal on behalf of theirWenatchi Constituent Tribe (“Wenatchi”), the district court’s finding that they share joint fishing rights at the “Wenatshapam Fishery” on Icicle Creek-a tributary to the Wenatchee River which flows into the Columbia River-under an 1894 agreement between the United States and the Yakama. We have jurisdiction pursuant to 28 U.S.C. § 1291.

For over a century-as the result of broken and forgotten promises-the Wenatchi’s fishing rights at their aboriginal home and fishing station have been in doubt. We hold that the district court’s ruling is supported by historical evidence establishing that it was the intent of the 1894 negotiators to grant theWenatchi fishing rights at Wenatshapam, that the Yakama did not sell all of their fishing rights at Wenatshapam, and that both tribes’ fishing rights are non-exclusive. We therefore affirm the judgment of the district court.

Ninth Circuit Dismisses ICRA Claim against Salt River

Matthew L.M. Fletcher

Here is the unpublished decision in Fields v. Salt River Pima Maricopa Indian Community.

Ninth Circuit Affirms Indian Country Capital Murder Conviction

Matthew L.M. Fletcher1 Comment

Kinda, somewhat interesting case arising on the Colville Reservation, where the defendant wasn’t indicted for more than 10 years after the crime — United States v. Gallaher. Here is the court’s take:

The Federal Death Penalty Act of 1994 conditionally eliminated the death penalty for Native American defendants prosecuted under the Major Crimes Act or the General Crimes Act, subject to the penalty being reinstated by a tribe’s governing body. See 18 U.S.C. § 3598. In 2005, a federal grand jury indicted defendant-appellant James H. Gallaher, Jr., for first degree murder, more than 14 years after he killed Edwin Pooler on the Colville Indian Reservation in eastern Washington. Because the Confederated Tribes of the Colville Reservation have not reinstated the death penalty, Gallaher argues that he is not subject to the death penalty and thus the five year federal statute of limitations for noncapital crimes applies to his offense. See id. §§ 3281-82. We disagree and hold that first degree murder remains a capital offense, regardless of whether capital punishment can be imposed in a particular case.

There was a dissenter (Judge Tashima), who argued:

In my view, the Federal Death Penalty Act removes first degree murder committed within the boundaries of “Indian country” from the realm of offenses punishable by death and delegates to the tribes the authority to determine the availability of the death penalty. See 18 U.S.C. § 3598. The Confederated Tribes of the Colville Reservation has not elected to make the death penalty available for first degree murder on the Colville Reservation. Thus, capital punishment has been clearly eliminated for the crime for which Gallaher was indicted. Because Gallaher has not been indicted for an “offense punishable by death,” see 18 U.S.C. § 3281, the five-year statute of limitations applies, see 18 U.S.C. § 3282.

Here are the materials:

Gallaher Opening Brief

US Appellee Brief in Gallaher

Gallaher Reply Brief

Opening Brief in Water Wheel v. LaRance

Matthew L.M. Fletcher

Very important case to watch.

Here: Tribal Court Brief

Lower and tribal court materials are here.

Evans v. Salazar — CA9 Denies Snohomish Intervention in Samish Case

Matthew L.M. Fletcher1 Comment

Here is yesterday’s opinion in Evans v. Salazar.

Ninth Circuit Affirms Tribal Court Conviction

Matthew L.M. Fletcher

The case is Eagle v. Yerington Paiute Tribe, and involves an interesting question: whether tribal prosecutors have to prove Indian status beyond a reasonable doubt. The answer appears to be no.

Opinion.

[Appellant opening brief unavailable.]

Yerington Paiute Brief

Eagle Reply Brief

2010 Supreme Court Candidates — Part III — Sidney Thomas

Matthew L.M. Fletcher1 Comment

6. Hon. Sidney Thomas — CA9 Judge.

Judge Thomas, a 1995 Clinton appointee and U of Montana Law School grad, sits on the Ninth Circuit and has an extensive Indian law track record. His record is very mixed, with several opinions from the 1990s that are very hostile to tribal interests; most especially Wilson v. Marchington. However, his track record is considerably better in the 2000s, with the highlight being his opinion in Midwater Trawlers v. Dept. of Commerce.

Rincon Band v. Schwarzeneggar (2010) — voted with Judge Smith in the majority, finding that California negotiated with bad faith in demanding revenue sharing with the Band.

Elliott v. White Mountain Apache (2009) — voted with majority requiring Wanda Jo Elliott to exhaust tribal court remedies.

BNSF v Ray (2007) — voted with majority in per curiam opinion finding no colorable tribal court jurisdiction

U.S. v. Benally (2006) — voted with majority in per curiam opinion affirming MCA conviction over claims that jury voir dire was tainted by race discrimination

U.S. v. Riggs (2006) — joined majority in per curiam opinion affirming MCA conviction over claims of witness tampering

Kalispel Tribe v. Spokane Raceway Track (2005) — joined majority in per curiam opinion affirming injunction favoring Indian tribe.

U.S. v. Birdinground (2004) — joined majority in per curiam opinion affirming MCA conviction over claims that district court invalidly excluded a Crow traditional law expert.

Kahawaiolaa v. Norton (2004) — wrote opinion holding that DOI may exclude Native Hawaiians from tribal recognition process

Navajo Nation v. HHS (2003) — joined unanimous majority in en banc opinion affirming HHS decision not to allow Nation to administer TANF funds.

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