Ninth Circuit Rejects Challenge to Nooksack Casino

Here is the opinion, with dissent, in North County Community Alliance v. Salazar.

Briefs:

North County Community Allliance Brief

Federal Appellee Brief

An excerpt from the majority:

We hold that the Alliance’s challenge to the NIGC’s 1993
approval of the Ordinance, insofar as it relates to the licensing
and construction of the Casino, is not time-barred. We hold on
the merits that the NIGC did not have a duty under IGRA to
make an Indian lands determination in 1993 before approving
the Nooksacks’ non-site-specific proposed gaming Ordinance.
We also hold that the NIGC did not have a duty under IGRA
to make an Indian lands determination in 2006 when the
Nooksacks licensed and began construction of the Casino pursuant
to the approved Ordinance. Finally, we hold that there
was no violation of NEPA.

We hold that the Alliance’s challenge to the NIGC’s 1993 approval of the Ordinance, insofar as it relates to the licensing and construction of the Casino, is not time-barred. We hold on the merits that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before approving the Nooksacks’ non-site-specific proposed gaming Ordinance. We also hold that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksacks licensed and began construction of the Casino pursuant to the approved Ordinance. Finally, we hold that there was no violation of NEPA.

And from the dissent:

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Ninth Circuit Rejects Skokomish Bid for Fishing Allocation in U.S. v. Wash. Subproceeding

Here is the opinion in United States v. Washington, though as the court points out, neither the U.S. nor the State of Washington were parties to this one. An excerpt:

The district court granted the Port Gamble and Jamestown Tribes’ motion to dismiss. The district court held that “[t]he dispute here does not arise from the Hood Canal Agreement, and it cannot be settled by looking to its terms. Instead, the Skokomish are asking the court to bypass the Agreement and create an allocation for the parties because they cannot agree among themselves as required by the Agreement.” The court noted that nothing in the agreement “empowers the court to allocate harvest shares in the absence of the agreement of the parties.” The provision in Judge Boldt’s decree retaining jurisdiction for “[d]isputes concerning the subject matter of this case which the parties have been unable to resolve among themselves,” did not apply because “[t]he subject matter of this case is treaty fishing rights, not the equitable rights of any one tribe to harvest a certain allocation of fish…. Nowhere in these decisions is there a finding that inter-tribal allocation (as opposed to allocation between treaty- and non-treaty fishermen) is the subject matter of this case.” As for the catch-all language in Judge Boldt’s order, “[s]uch other matters as the court may deem appropriate,” “[t]his is a discretionary section, and … the Court does not deem it appropriate to take jurisdiction of this matter.” Because the request for allocation did not fall within the purposes of enforcing the treaty or the Hood Canal Agreement, and neither provided for court allocation if the tribes could not agree among themselves, the court exercised its discretion to refrain from granting equitable relief. Though we do not reach, or rule upon, all the conclusions of the district court and the challenges to them, we conclude that dismissal was proper, and affirm.

Ninth Circuit Rejects Equal Protection Challenge to Indian Country Criminal Sentencing

Though one judge did strongly criticize the sentence, for a separate reason. Here is the opinion in U.S. v. Lamere (unpublished), and a separate concurrence.

Ninth Circuit Vacates Bivens-Style Action against Tribal Officials

Here is the opinion in Murgia v. Reed — Murgia v. Reed (9th 2009)

Our earlier post on this case is here (including lower court materials and appellate briefs).

Thanks to T.M.!

Indian Law Cases Dominate Rule 19 Jurisprudence in the Ninth Circuit

Ah, nerd that I am about Rule 19….

Here is a case that has nothing to do whatsoever, so far as I can tell, about Indian law, but every single case cited by the court is an Indian law case — Regence BlueShield DCT Order

CA9 Remands Nonmember Jurisdiction Case to Tribal Court

Here is the Ninth Circuit’s opinion in Elliott v. White Mountain Apache Tribal Court. An excerpt:

We are sympathetic to Plaintiff’s concerns about defending her actions in an unfamiliar court system. But, because tribal court jurisdiction is plausible, principles of comity require us to give the tribal courts a full opportunity to determine their own jurisdiction in the first instance.

Here are the materials:

Elliott Opening Brief

White Mountain Appellee Brief

Arizona Inter Tribal Council Amicus Brief

Elliott Reply Brief

Solis v. Matheson — FLSA Applies to On-Reservation, Tribal Member Owned Business

Here is the opinion from the Ninth Circuit. And the briefs:

matheson-appellant-brief

secretary-of-labor-brief

matheson-reply-brief

Cook v. Avi Casino Enterprises Cert Petitions — UPDATED

Apparently, there are two cert petitions in this, from the same petitioners but from different lower court judgments.

Ninth Circuit petition (08-929):

Lower court materials

Cert Petition 08-929

Cert Opposition 08-929

Arizona Court of Appeals petition (08-930):

Cert Petition 08-930

Cert Opp 08-930

Ninth Circuit Rejects Challenge to 2001 Crow Constitution

Here is the unpublished opinion in Harris v. Parisien.

And an excerpt from a local news article (Billings Gazette):

A federal appeals court has rejected a Billings woman’s claim that her rights were violated when the Crow Tribe of Indians adopted a new constitution in 2001.

Frances Harris is an enrolled member of the Crow Tribe. She sued in U.S. District Court, seeking to invalidate the 2001 tribal constitution because it eliminated a voting district for tribal members who do not live on the Crow Indian Reservation.

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Murgia v. Reed — CA9 Materials in Bivens Claim against Tribal Officers

Here are the materials in this case, in which the district court refused to dismiss a Bivens claim against tribal police. It was apparently argued on the same day last November as Bressi v. Ford (materials here):

D. Ariz. Order

appellants-opening-brief

appellees-response-brief

reply-brief

There seems to be a rash of federal civil rights cases against tribal police (see also Jeanlouis v. Vidallia) under a wide variety of theories — FTCA, Sections 1981, 1982, 1985, and now Bivens. The Bivens claim is most unpredictable, of course, given that it is unprecedented as against tribal police. I’m sure insurers should be aware of this kind of claim and may be watching carefully.