Here is yesterday’s opinion in Evans v. Salazar.
Evans v. Salazar — CA9 Denies Snohomish Intervention in Samish Case
Here is yesterday’s opinion in Evans v. Salazar.
Ninth Circuit
Ninth Circuit Affirms Tribal Court Conviction
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.
[Appellant opening brief unavailable.]
2010 Supreme Court Candidates — Part III — Sidney Thomas
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.
Native Village of Kivalina Opening Appellate Brief in Climate Change Case
More News Coverage of Rincon Band Decision
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.
Ninth Circuit Rejects Truckee Carson Irrigation District’s Excessive Water Diversions
Here is the opinion, captioned United States v. Bell.
Rincon Band Wins Good Faith Negotiations Claim against California
Here is the Ninth Circuit’s opinion in Rincon Band v. Schwarzeneggar (over a dissent).
Only some of the materials are available (since this case is so old, and CA9 only recently joined the 21st century):
[Picayune Amicus Brief unavailable]
California Response to Picayune Amicus Brief
Here are the lower court briefs and materials.
Judge Canby Tribute to Judge Betty Fletcher: “The Concept of Equality in Indian Law”
Judge William Canby’s Indian law-related tribute to Judge Betty Fletcher appears in the Washington Law Review. Here is the article:
U.S. v. Maggi — Ninth Circuit Further Refines Who is an “Indian” under the Major Crimes Act
Here are the materials:
Government Brief in US v Maggi
An excerpt:
Gordon Mann and Shane Maggi appeal from unrelated convictions on the same basis, namely that they are not “Indians” for purposes of prosecution under the Major Crimes Act. Because there is no evidence that Mann has any blood from a federally recognized Indian tribe, his conviction must be vacated. Maggi’s documented blood from a federally recognized tribe is scant-1/64. However, we do not decide the novel question whether Maggi’s Indian blood degree is adequate; rather, because Maggi lacks sufficient government or tribal recognition as an Indian, his conviction must also be vacated. In light of this disposition, we need not consider Maggi’s additional challenges to the sufficiency of the indictment and the reasonableness of the sentence.
The real question here is whether the government thinks this is the right vehicle to test the Ninth Circuit on the means by which it defines “Indian” under the Major Crimes Act. I’d say definitely not Mann (with no Indian blood from a federally recognized tribe), but maybe Maggi (still only 1/64 blood from a federally recognized tribe). I bet they wait for another case (assuming they want one at all).
Doe v. Kamehameha Schools — Plaintiffs Must Reveal Identity
Here is the Ninth Circuit’s decision in this latest opinion in the long-running challenge to the school’s admissions preference toward Native Hawaiians.
Turtle Talk 
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