Ninth Circuit – Page 92

Ninth Circuit Reverses Dismissal of Civil Rights Claims against Tribal Officers

August 5, 2009Matthew L.M. Fletcher

Here is the opinion in Bressi v. Ford, authored by Judge Canby, which is a sort of companion case to Murgia v. Reed. The court did affirm the dismissal of a Bivens-type action against the officers. Here are the lower court materials in Bressi.

An excerpt detailing what tribal officers may do during a traffic stop of non-Indians:

We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.

And an excerpt recognizing the implications of the decision:

We recognize that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to constitutional standards in establishing roadblocks. That result is consistent with our prior decision inEvans v. McKay, 869 F.2d 1341, 1348(9th Cir.1989), which held that officers acting pursuant to both tribal and city authority in making arrests were subject to a § 1983 claim. This result also appears to us to be an inevitable consequence of the accommodation of tribal authority over rights-of-way within Indian country and the rights of non-Indians to travel those rights-of-way. If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.

Ninth Circuit Rejects Constitutional Challenge to Phoenix-Area “DUI Courts”

July 18, 2009Matthew L.M. Fletcher

Here is the opinion in Thomas v. Mundell, a case brought by the Maricopa County Attorney and others, challening the establishment of separate “DUI courts” in Phoenix for Spanish-speaking and American Indian people. The court tossed the challenge on standing grounds.

An excerpt:

With respect to the Native American DUI court, the amended complaint alleges that probationers here are generally required to appear on the same day. Probationers in the Native American DUI court also allegedly participate in “cultural programs, specially designed for them, such as being sent to sweat lodges and participating in talking circles.” Administrators of the DUI court program also allegedly treat participants in the Native American DUI court “as a separate group” for grant reporting purposes.

Ninth Circuit Rejects Challenge to Nooksack Casino

July 17, 2009July 17, 2009Matthew L.M. Fletcher1 Comment

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:

Continue reading →

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

July 15, 2009Matthew L.M. Fletcher1 Comment

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

July 2, 2009Matthew L.M. Fletcher

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

July 1, 2009Matthew L.M. Fletcher1 Comment

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

June 11, 2009Matthew L.M. Fletcher

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

May 15, 2009May 15, 2009Matthew L.M. Fletcher3 Comments

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