Southern District of California – Page 6

In an appeal from the district court’s orders denying a motion to dissolve a preliminary injunction and denying motions to dismiss in an action concerning a dispute over membership in an Indian tribe, the panel affirmed in part, dismissed in part, and remanded. The San Pasqual Band of Mission Indians’ governing documents vested the United States Department of Interior, Bureau of Indian Affairs, with ultimate authority over membership. The panel held that the district court had jurisdiction to enjoin preliminarily the enforcement of the Bureau of Indian Affairs’ order upholding the Band’s decision to disenroll descendants of Marcus Alto, Sr. from the Band, and that the Band was not a required party, because the claims underlying the preliminary injunction concern solely the propriety of final agency action. Accordingly, the panel affirmed the district court’s denial of the Band’s motion to dismiss the claims on which the injunction rests and the district court’s consequent refusal to dissolve the preliminary injunction. The panel remanded to allow the district court to clarify its order. Finally, the panel held that it lacked jurisdiction to review on interlocutory appeal the Band’s motion to dismiss the Altos’ other claims, on which the district court expressly deferred ruling.

Lower court materials here and here.

Ninth Circuit Briefs in Pala Disenrollment Appeal — Allen v. Smith

November 11, 2013Matthew L.M. Fletcher1 Comment

Here:

(August 9 2013) Appellants_ Opening Brief

Answering Brief 11-8-13

Lower court materials here.

Environmentalist Groups Challenge to Ocotillo Wind Energy Project Fails

November 11, 2013Matthew L.M. Fletcher

Here are the materials in Protect our Communities Foundation v. Salazar (S.D. Cal.):

25-1 Protect Our Communities Motion for Summary J

28-1 Goverment Cross Motion

30-1 Ocotilla Cross Motion

41 DCT Order Granting Summary J for Government

Materials on the Quechan Tribe’s efforts are here.

Title VII Claim against Cherokee Nation-Owned Company Proceeds

October 30, 2013Matthew L.M. Fletcher

Here are the materials so far in Nepomuceno v. Cherokee Medical Services (S.D. Cal.):

4 CMS Motion to Dismiss

10 Nepomuceno Opposition

11 CMS Reply

16 DCT Order Denying Motion

An excerpt:

CMS has not come forward with any evidence of how CMS was formed, who owns CMS, how CMS is managed, and where profits from the business go. Therefore, CMS has not established that it is an arm of the Cherokee Nation entitled to tribal sovereign immunity from suit, and the Court denies CMS’s motion to dismiss for lack of subject matter jurisdiction. CMS may reassert tribal sovereign immunity in a motion for summary judgment. However, any such motion should not be filed until Plaintiff has had the opportunity to conduct adequate discovery on the issue.

Briefs in Quechan Challenge to Ocotollo Wind Energy Facility in S. California

September 14, 2013December 8, 2013Matthew L.M. Fletcher

Here are the briefs in Quechan Tribe of the Fort Yuma Indian Reservation v. Dept. of Interior:

Doc 11_1 Appellant’s Opening Brief 090413. wo Addendum

Doc 15 CRIT Amicus Brief

Federal Appellee Brief

Reply brief TK

Lower court materials here.

Ninth Circuit Holds Interior Does Not Violate ISDEAA When Denying Law Enforcement Funds to PL280 Tribes

September 4, 2013Matthew L.M. Fletcher

Here is the opinion in Los Coyotes Band of Cahuilla & Capuño v. Jewell.

From the court’s syllabus:

The panel reversed the district court’s summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians, and the court’s finding that the U.S. Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act, the Administrative Procedure Act, and the Fifth Amendment’s guarantee of equal protection when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.

The panel held that the Secretary properly rejected the Tribe’s contract request. The panel also held that the Tribe’s reliance on the Indian Self Determination and Education Assistance Act was misplaced because the Act allows the Tribe to take control of existing programs and obtain funds that the Bureau of Indian Affairs (“BIA”) would otherwise spend on those programs, but here there was no existing BIA program, and therefore nothing to transfer to the Tribe. The panel further held that the Administrative Procedure Act did not authorize the court to review the BIA’s allocation of law enforcement funding in Indian Country. Finally, the panel held that the BIA’s funding policy did not violate the Fifth Amendment’s equal protection guarantee.

And the briefs:

Interior Opening Brief

Los Coyotes brief

Interior Reply Brief

Lower court materials here.