The Tenth Circuit briefing in United States v. Wilgus is complete:
Tenth Circuit
Appellate Briefs in Osage Nation v. Kemp Tax/Reservation Disestablishment Case
Here:
Lower court materials are here.
Tenth Circuit Affirms Lower Court in Ute Partition and Termination Act Case
Here is the opinion in Ute Distribution Corp. v. Secretary of Interior. An excerpt:
Plaintiff Ute Distribution Corporation (UDC) appeals from a decision of the district court denying UDC’s claim for a declaration that the Secretary’s implementation of the 1954 Ute Partition and Termination Act, 25 U.S.C. §§ 677 et seq., did not provide for an equitable and practicable division and distribution of water rights between the “mixed-blood” and “full-blood” members of the Ute Indian Tribe, and that, consequently, such rights are currently held in trust by the Secretary for the mixed-blood members.FN1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that UDC’s action was untimely filed. Accordingly, we affirm the district court’s dismissal of UDC’s claim and remand only so that the district court may amend its judgment to reflect this as the basis for the judgment.
Here are the briefs:
LATs Article on Eagle Cases
From the LATs:
On Wyoming’s Wind River Indian Reservation, Winslow Friday is preparing to surrender in his long fight with the federal government.
The seeds of the conflict were planted four years ago when Friday shot a bald eagle out of a tree. His cousin needed a tail fan for an upcoming Sun Dance, the Northern Arapaho tribe’s most important religious ceremony, and Friday wanted to help.
So when Friday spotted the bird, he seized his chance.
Charged with killing a bald eagle in violation of federal law, Friday had argued that the law hinders the practice of his religion — a battle closely watched on the reservation.
“Some agreed with what he did, some didn’t,” said tribal spokesman Donovan Antelope. “But they all agree with the reason he did it — for the Sun Dance. We know he wasn’t doing it just to kill an eagle.”
Now, though, Friday is giving up. Having exhausted his legal options, he’s hoping for a plea agreement that will avoid a trial. “The attorneys say that [a trial] would be a losing battle,” said Friday, 25, a former oil field worker studying to be a civil engineer.
Friday’s case represents the latest and most high-profile fight in a string of battles over how to balance conservation with religious liberty.
ICT Article on the Wilgus Case
From ICT:
The time-honored and exclusive right of American Indians to use eagle feathers for religious purposes has been challenged by a Utah judge whose findings will be appealed in the Denver 10th Circuit Court.
If the challenge is upheld and implemented, non-Natives would be able to obtain eagle feathers and parts from the National Eagle Repository for religious purposes, according to a Utah District Court judge.
Allowing non-Indians to apply would end a situation in which they are “subject to criminal prosecution if they possess eagle feathers at all” even though they may be “adherents to the very same religions” as Indian practitioners, Judge Dee Benson said.
In fact, American Indian groups and individuals disagree over whether non-Natives should engage in traditional Native spiritual practices, the lower court said.
Tenth Circuit Affirms Conviction of Former Cheyenne-Arapahoe Tribes Official
The crime was theft from a tribal organization — United States v. Bullcoming. An excerpt:
Roy Dean Bullcoming was indicted in the United States District Court for
the Western District of Oklahoma on seven counts of embezzlement and theft
from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft
from gaming establishments on Indian lands, see id. § 1167. He entered into a
plea agreement in which he agreed to plead guilty to one count of embezzlement.
In exchange, the government dropped the other 14 counts and entered into several
stipulations relating to restitution and his offense level under the United States
Sentencing Guidelines (USSG). At sentencing, the government—without any
objection from Mr. Bullcoming—presented testimony from a witness who claimed
that Mr. Bullcoming had shown no remorse for his actions, and it also argued in
favor of an upward variance, suggesting that it could probably never prove the
full amount of money he took. The district court varied upward from the
guidelines range, sentencing him to 36 months’ imprisonment. On appeal
Mr. Bullcoming contends that the government breached the plea agreement and
that the court abused its discretion in varying upward. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
Roy Dean Bullcoming was indicted in the United States District Court for the Western District of Oklahoma on seven counts of embezzlement and theft from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft from gaming establishments on Indian lands, see id. § 1167. He entered into a plea agreement in which he agreed to plead guilty to one count of embezzlement. In exchange, the government dropped the other 14 counts and entered into several stipulations relating to restitution and his offense level under the United States Sentencing Guidelines (USSG). At sentencing, the government—without any objection from Mr. Bullcoming—presented testimony from a witness who claimed that Mr. Bullcoming had shown no remorse for his actions, and it also argued in favor of an upward variance, suggesting that it could probably never prove the full amount of money he took. The district court varied upward from the guidelines range, sentencing him to 36 months’ imprisonment. On appeal Mr. Bullcoming contends that the government breached the plea agreement and that the court abused its discretion in varying upward. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Tenth Circuit to Hear HRI v. EPA En Banc
Here is the order (CA10 Order Granting En Banc Review), the earlier materials (here), the news report from Indianz, and here are the en banc petition stage materials:
EPA Opposition to En Banc Petition
Government’s Opening Brief in Tenth Circuit Appeal of RFRA Eagle Case Involving Non-Indians
Here is the government’s opening brief in U.S. v. Wilgus (CA10) — US Opening Brief in Wilgus
Wilgus, you may recall, is a non-Indian who took eagle parts in violation of the Eagle Act, but avoided conviction by arguing under the Religious Freedom Restoration Act any application of the Eagle Act to him, as a non-Indian, would destroy his right to practice a “Native American” religion (lower court opinion is here). As we noted then, Indians like Winslow Friday get prosecuted because the Eagle Act theoretically allows them to use eagle parts, but non-Indians are immune because they can’t. Huh?
We’ll be watching to see how this plays out.
Tenth Circuit Affirms Conviction of Ute Juveniles for Church Burning
Here is the opinion in U.S. v. Doe. An excerpt:
Defendants’ appeals center on the definition of “person” in 18 U.S.C. § 1153(a)’s phrase: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses ….“ (emphasis added). First, defendants argue that context and statutory construction dictate that “person” is restricted to only living individuals. Second, and alternatively, defendants contend that at its broadest, “person” can only include living individuals or corporations, public and private. Under this definition, defendants argue that there was insufficient evidence to establish that the arson victim was a corporation. Third, defendants argue that the district court abused its discretion by permitting the prosecution to reopen its cases to present evidence related to the corporate status of the arson victim. Fourth, defendants argue that the charging information was insufficient because it failed to provide sufficient identification of the arson victim and its status.
The court actually split on what definition to use to define “person” — the Major Crimes Act or the Dictionary Act. either way, the entire panel reached the same result.
Tenth Circuit Affirms Dismissal of Employment Discrimination Claim against OK City Indian Health Clinic
Here is the opinion in Nettle v. Central Oklahoma Indian Health Council. An excerpt:
Moreover, even if Ms. Nettle’s EEOC charge could be interpreted as expansively as she now asks, her complaint in district court was expressly limited to “retaliation for filing a charge of discrimination.” R. 30. Whatever may be the reasons for liberal construction of an uncounseled EEOC charge, it is well established that claims not made in district court are waived. United States v. Rogers, 556 F.3d 1130, 1136 (10th Cir.2009). Accordingly, we affirm the district court in granting summary judgment to the Clinic on her retaliation claim.
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