Here is the opinion, per Judge Canby — En Banc Opinion
Thanks to A.S.
Ninth Circuit
Ninth Circuit Affirms Dismissal of Counterclaims against Kalispel Tribe
Here is the opinion in Kalispel Tribe v. Spokane Raceway Park (unpublished opinion).
An excerpt:
We need not decide whether the Tribe waived its immunity to Orville Moe’s counterclaim for contract damages as a third-party beneficiary, because Moe failed to present a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Neither the Joint Venture Agreement nor any other document specified the amount of compensation board members were to receive or how that amount was to be determined. Given the lack of details in the agreement, Moe had to produce evidence of what compensation was due and that the Tribe was responsible for that compensation. He failed to do so.
We need not decide whether the Tribe waived its immunity to Orville Moe’scounterclaim for contract damages as a third-party beneficiary, because Moe failedto present a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324(1986). Neither the Joint Venture Agreement nor any other document specified theamount of compensation board members were to receive or how that amount wasto be determined. Given the lack of details in the agreement, Moe had to produceevidence of what compensation was due and that the Tribe was responsible for thatcompensation. He failed to do so.
Ninth Circuit Decides QTA Case; Holds FTCA May Apply
The Ninth Circuit recently decided Robinson v. United States (Robinson v US CA9 Opinion), where the court held that the Quiet Title Act does not foreclose litigation over an easement running across Indian trust lands.
Here are the materials:
Ninth Circuit Decides Federal Common Law Indian Lands Case
Here is the opinion in U.S. v. Milner, which involves non-Indian shore defense structures interfering with the treaty rights of the Lummi Tribe. The U.S. charged the landowners with trespass.
Who is an Indian under the Major Crimes Act?
The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.
Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.
Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.
And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.
The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.
Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.
Ninth Circuit Affirms Injunction against Waste Disposal Facility on Indian Allotment
Not sure what tribe is involved, but this case (United States v. Tarlow Realty, Inc.) involves the government’s efforts to shut down a waste disposal unit on an Indian trust allotment. It succeeded. Of note, the unpublished opinion offers this commentary about the potential conflict of interest demonstrated by the government:
Finally, we note that the Government instigated this suit at the behest of two different federal agencies — the EPA and the BIA — and that it thus represents both the general public and the allottees, whose interests may diverge in some respects. Congress permits the Government to serve dual advocacy roles as environmental steward and allotment trustee, see Nevada, 463 U.S. at 128, 135 n.14, but the Government’s focus in this case on the former, with little evident regard for the latter, raises some concern. The statutory scheme governing third-party commercial use of allotted land places the Government, in its capacity as landowner and trustee, in the paternalistic position of sanctioning only those land uses which strike an appropriate balance between economic development for the allottees and the impact of that development on the environmental health and safety of the allotment property and surrounding community. See 25 U.S.C. §§ 348, 415(a); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987); Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1074-75 (9th Cir. 1983); United States v. S. Pac. Transp. Co., 543 F.2d 676, 698, 699 (9th Cir. 1976). In litigating this case, the Government has vigorously pursued its role as advocate for the environment and the general public, and admirably so, but it may have given shorter shrift to its role as representative of the economic interests of the allottees. In fact, nowhere in the record or the Government’s brief is there a discussion of how and whether this litigation serves the allottees’ welfare. We suspect that enjoining further operation of the waste disposal facility and redeveloping the property probably does serve their long-term economic interests, but the Government’s failure to so much as mention its obligation in this regard leaves the impression, right or wrong, that it may have eschewed this duty altogether. Nevertheless, while in different circumstances that might have affected the outcome, in this case we are satisfied that the Government did not act in excess of its authority.
Ninth Circuit Requires Alaska Courts to Provide Full Faith and Credit to Native Villages’ ICWA Judgments
Here is the opinion in Kaltag Tribal Council v. Jackson, unpublished. This is one the cases highlighted by NARF lawyers in their opposition to Sarah Palin (here). An excerpt:
Plaintiffs-Appellees Kaltag Tribal Council (“Kaltag”), Selina Sam and Hudson Sam (collectively, “Kaltag plaintiffs”) filed this case in district court against Karleen Jackson, Bill Hogan, and Phillip Mitchell, employees of the State of Alaska, Department of Health and Human Services. The Kaltag plaintiffs alleged that an adoption judgment issued by the Kaltag court is entitled to full faith and credit under § 1911(d) of the Indian Child Welfare Act (“ICWA”), and that the Alaska employees were required to grant the request for a new birth certificate. The district court granted the Kaltag plaintiffs’ motion for summary judgment and denied the Alaska employees’ summary judgment motion. The Alaska employees appeal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Seattle Weekly Profile of Judge Betty Fletcher
From the Seattle Weekly:
Judge Betty’s Revenge
Ten years ago, federal judge Betty Fletchersaid she would step aside. It was late in the Clinton administration, and Congressional Republicans, who’d long had it in for the left-leaning 9th Circuit Court of Appeals, where Fletcher presides, were refusing to confirm the President’s nomination of Fletcher’s son William to the same Circuit as his mother. They called it “nepotism.”
As a concession, Fletcher, then 76, agreed to take a form of quasi-retirement known as “senior status.” There are loose rules governing “senior” judges, who only have to work one-quarter time to receive full pay. Accordingly, most cut back dramatically and spend the extra time at country clubs or with their grandchildren.
“Let’s just say Betty Fletcher is having the last laugh,” says Nan Aron, president of the Alliance for Justice, a liberal Washington, D.C.–based group that monitors judicial nominations. Fletcher’s son was confirmed, but she never did reduce her caseload. Today, the white-haired, Seattle-based jurist—who over the course of her career was the first woman in the city to hold virtually every title she assumed—still hears some 620 cases a year, even as she uses a walker to get around her chambers. And she continues to be a thorn in the side of conservative interests. Last year, for example, she bucked President George W. Bush and the U.S. Navy by authoring the opinion of a three-judge panel upholding restrictions on sonar exercises said to harm marine life. The year before that, she tossed out the Bush administration’s proposed fuel-efficiency standards for SUVs and “light trucks” as too weak, writing that environmental laws required the administration to take into account greenhouse-gas emissions.
Ninth Circuit to Hear Samish Tribe’s Claim to Reenter U.S. v. Washington En Banc
In an unusual procedure, after oral argument before a three-judge panel including Judge Canby, the Ninth Circuit decided to hear the United States v. Washington subproceeding involving the Samish Indian Tribe’s treaty claims en banc.
Samish Indian Tribe Opening Brief
Ninth Circuit Affirms Puget Sound Chinook Plan that Does Not Allow for “Recovery” of Fish Population
Here is the Ninth Circuit’s unpublished opinion in Salmon Spawning & Recovery Alliance v. NOAA, and a partial dissent. Here is the tribal amicus brief (SSRA v NOAA — Tribal Amicus Brief). Judge Berzon writes in dissent:
I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.
Moreover,
Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.
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