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 Of note, the unpublished opinion offers this commentary about the potential conflict of interest demonstrated by the government: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.

Tyson Chicken Successfully Asserts Cherokee Treaty Rights in Environmental Defense

As we reported last fall here, poultry producers including Tyson Chicken asserted that many of the State of Oklahoma’s efforts to enforce state environmental laws against them must fail because the waterways at issue are owned at least in part by the Cherokee Nation. The Northern District of Oklahoma substantially agreed.

Here is the opinion (thanks to M.M.) — Tyson Opinion and Order

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

United Keetoowah Claim against IHS Dismissed on Rule 19 Grounds

Here are the materials over this dispute where the IHS transferred an Indian health facility to the Cherokee Nation, over United Keetoowah’s objections. The case is United Keetoowah Band v. Kempthorne (E.D. Okla.).

United States Motion to Dismiss

UKB Response Brief

United States Reply Brief

United Keetoowah v Kempthorne DCT Order

SCT Denies Cert in California Revenue Sharing Cases

The Supreme Court denied cert earlier this week in two of the cases that are part of a trilogy of California gaming cases (here is the Court’s order list). Those cases were docket nos. 08-931 (CACHIL DEHE BAND OF WINTUN) and 08-1030 (RINCON BAND OF LUISENO MISSION). A third petition is still pending, but one expects that one to be denied as well (no. 08-1208 — San Pasqual).

All of the petitions are available here.

Flandreau v. South Dakota IGRA Case

Here are the materials in Flandreau Sioux v. South Dakota, out of the District of South Dakota.

flandreau-v-south-dakota-dct-order

south-dakota-motion-to-dismiss

flandreau-response-brief

south-dakota-reply-brief

Here is the tribe’s claim:

Continue reading

California v. San Pasqual Cert Petition

This is the same kind of petition California filed a month ago in parallel cases involving Chachil Dehe Band and Rincon Band.

california-v-san-pasqual-band-cert-petition

Cert Petition in California v. Cachil Dehe Band of Wintun Indians

Ah, Rule 19! Here is California’s cert petition — california-petition-for-cert

Just so everyone knows, I called this YEARS ago! See my “The Comparative Rights of Indispensable Sovereigns.” 🙂

And here are the lower court materials (Rincon Band; Cachil Dehe; and San Pascqual).  And here is our post on Pimentel.

Questions Presented (from the cert petition):

In 1999, the State of California and sixty-one federally recognized tribes entered into virtually identical tribal-state class III gaming compacts (Compacts) under the authority of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (IGRA). The Compacts allow those tribes to operate slot machines if they have been issued licenses for those devices from a prioritized and limited license pool established by the Compacts, or if they have obtained a compact amendment allowing them to operate slot machines without reference to that license pool. The questions presented are:

1. In applying Federal Rule of Civil Procedure 19 (Rule 19), may a federal court, consistent with the rule of decision in Republic of the Philippines v. Pimentel, 128 S. Ct. 2180 (2008), utilize the authority it has under Rule 19(b) to safeguard (through the shaping of relief) the legally protected interest of an absent sovereign as a basis for finding that the absent sovereign is not a required party within the meaning of Rule 19(a)?

2. May the asserted ability of a court of appeals to resolve inconsistent district court decisions on the same claim for relief be relied upon to conclude that an absent person need not be joined under Rule 19(a)?

Tyson Foods Asserts Rights of Cherokee Nation as Defense to Environmental Suit

Here’s an interesting Rule 19 motion — the State of Oklahoma has sued Tyson Foods and other poultry producers over the pollution of the Illinois River (news article here). The defendants now claim that the Cherokee Nation owns the riverbed and are therefore indispensable parties to the suit, mandating the dismissal of the suit if the Nation refuses to be joined as a party. (H/T Todd)

oklahoma-v-tyson-foods-amended-complaint

tyson-foods-rule-19-motion

San Pasqual v. California Decision

As Indianz reports, the Ninth Circuit reversed the lower court decision dismissing the case on Rule 19(!) grounds. Here is the unpublished opinion.

And here is a link to the briefs.