Ninth Circuit – Page 88

Ninth Circuit Decides Wenatchi and Yakama Fishing Rights at Wenatshapam Fishery

May 28, 2010Matthew 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 their Wenatchi 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 the Wenatchi 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

May 21, 2010Matthew 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Here is the unpublished decision in Fields v. Salt River Pima Maricopa Indian Community.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

May 20, 2010Matthew 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

May 17, 2010Matthew 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

May 14, 2010Matthew L.M. Fletcher1 Comment

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

Ninth Circuit Affirms Tribal Court Conviction

May 8, 2010Matthew 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

May 5, 2010Matthew 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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Native Village of Kivalina Opening Appellate Brief in Climate Change Case

May 2, 2010Matthew L.M. Fletcher2 Comments

Here:

Kivalina Opening Brief

And:

Law Professors Amicus Brief

More News Coverage of Rincon Band Decision

April 21, 2010Matthew L.M. Fletcher

From the San Diego Union-Tribune:

California can’t force Indian tribes to share gambling profits to repair the state’s budget problems, the 9th U.S. Circuit Court of Appeals said Tuesday.

In a stunning blow to Gov. Arnold Schwarzenegger’s tactics when dealing with tribes wanting casinos, a divided, three-judge panel of the appeals court said the governor can’t ask for money for the state’s general fund without offering something of value in return because that amounts to an illegal tax.

The court upheld a 2008 ruling by a federal judge in San Diego that the governor was playing dirty in his negotiations with North County’s Rincon Indian band.

“This is a great, big message to the state,” Rincon Chairman Bo Mazzetti said. “Your days of trying to bully tribes around … those days are over.”

In the decision, Pasadena-based Judge Milan Smith Jr. compared the state’s efforts to those of the federal government when it took land from the Sioux after Lt. Col. George Custer reported finding gold in the Black Hills of South Dakota.

“Today, many tribes have struck figurative gold with casino gaming, and again, some state governments, just like their predecessors, are maneuvering to take, or at least share in, some of that figurative gold,” Smith wrote for a two-judge majority.

In his dissent, Judge Jay Bybee said tribes with casinos here and around the country have agreed for years to share revenue with state governments, just as Schwarzenegger was seeking.

“The holding … does not just upset the apple cart — it derails the whole train,” Bybee wrote. “If the majority is correct, then there is nothing for California to do but to authorize whatever (slot machines) the band wants. The band wins. Everything.”

The state will seek to have Tuesday’s decision reviewed by a larger panel of 9th Circuit judges, said Jeff Macedo, a spokesman for Schwarzenegger.

Legal experts disagreed on whether the case would be reviewed by a larger panel, or by the U.S. Supreme Court, should it be asked.

Macedo said the governor sees this as federal meddling.

“We still believe we were negotiating in good faith,” Macedo said. “This amounts to the federal courts again telling the state what it can and can’t do, and it’s not allowing the state the ability to negotiate these compacts.”

The ruling has big implications for Schwarzenegger, who campaigned on a promise to make tribes “pay their fair share” for casino expansions.

“It’s about millions and millions of dollars to the state of California,” said Matthew L.M. Fletcher, a law professor at Michigan State University who follows Indian legal issues nationally.

The ruling could affect other casino negotiations, he said.

The issue comes down to the kind of bargain that tribes and states can strike. The federal 1988 Indian Gaming Regulatory Act, known as IGRA, laid out how tribes can set up Las Vegas-style casinos. It said such gambling requires state approval, but that states can’t tax the profits.

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