Tenth Circuit – Page 37

Tenth Circuit Dismisses Criminal Appellant’s Appeal

July 2, 2009Matthew L.M. Fletcher1 Comment

Here is the opinion in the long-running case Reber v. Steele. An excerpt:

Petitioner Colton Reber, a descendant of the Uintah Band Indians, was convicted in Utah state juvenile court of felony wanton destruction of wildlife, in violation of Utah Code § 23-20-4. Having exhausted his remedies through the state courts, Mr. Reber filed the present 28 U.S.C. § 2254 action in the United States District Court for the District of Utah. Mr. Reber’s § 2254 petition contends that because he is an Indian, and because the offense occurred on Indian land, the Indian tribe-not the State of Utah-is the victim of the offense. Thus, neither the Eighth District Juvenile Court, nor the State of Utah, possessed jurisdiction over the offense. The federal district court dismissed Mr. Reber’s habeas petition because “it plainly appear [ed] from the petition and any attached exhibits that the petitioner [wa]s not entitled to relief.” Aplt’s App. at 60.

We granted Mr. Reber a certificate of appealability on August 18, 2008, concluding that he had made the requisite “substantial showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). Upon further review, however, we find that the premature filing of Mr. Reber’s § 2254petition deprived the district court of jurisdiction, and thus precludes our review. Accordingly, we vacate the district court’s ruling on the merits of the petition, and remand to the district court with instructions to dismiss the petition without prejudice.

Tenth Circuit Affirms Conviction of Tribal Embezzler

June 11, 2009Matthew L.M. Fletcher

Here is the opinion in United States v. Oldbear, affirming the conviction of a tribal employee for embezzlement of tribal funds. An excerpt:

Louella Oldbear, a member of the Cheyenne-Arapaho Indian Tribes, used tribal funds to repair one of her personal vehicles and to purchase another. A federal jury convicted her of five counts of embezzling Indian tribal funds in violation of 18 U.S.C. § 1163 and one count of making a false statement to a government agent in violation of 18 U.S.C. § 1001(a)(2).

Tenth Circuit Judge McConnell Resigns Post to Take Chair at Stanford Law

May 5, 2009May 5, 2009Matthew L.M. Fletcher4 Comments

This is big news. Sitting on the Tenth Circuit, Judge McConnell wrote important opinions in many Indian law cases. He wrote the opinion in United States v. Friday, rejecting an Indian’s challenge to federal bald eagle statutes. His concurring opinion in Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015 (10th Cir. 2005), became the basis for holding that Kansas’s refusal to recognize motor vehicle licenses issued by the PBPN after the Supreme Court vacated the opinion in late 2005. 476 F.3d 818 (10th Cir. 2007). And in United States v. Arrieta, 436 F.3d 1246 (10th Cir. 2006), he wrote the majority opinion in a criminal jurisdiction case holding that a county-maintained road within the Pojoaque Pueblo was still Indian Country.

Incidentally, I would nominate Alex Skibine for the open seat…. 🙂

From Faculty Lounge:

From a press release from the Tenth Circuit today, comes this important news:

Circuit Judge Michael W. McConnell, 53, of Salt Lake City, Utah, has submitted his resignation from the bench, effective August 31, 2009. At that time, he will accept a position as Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center at Stanford Law School in Palo Alto, California.

Many congratulations to Stanford University on recruiting Judge McConnell. And to Judge McConnell on returning to the academy, where he can pursue the topics that interest him most.

* * *

Tenth Circuit Dismisses Southern Ute Appeal on Self-Determination Contract Terms

May 5, 2009May 5, 2009Matthew L.M. Fletcher

The Tenth Circuit dismissed an appeal by the Southern Ute Tribe of a court order “which found in favor of the HHS approach as to the start date of the contract and to specifics regarding funding of the self-determination contract’s ancillary costs.” Here is the opinion in Southern Ute Tribe v. Leavitt.

Riggs v. San Juan County — Appellate Brief

April 28, 2009Matthew L.M. Fletcher

Once again, this long-running case heads back to the Tenth Circuit. Here is the opening salvo — all 645 pages (about 8 MB) — riggs-ca10-brief

Counsel for appellants may be heading for trouble for filing a frivolous appeal (see my paper here). Who knows?

HRI, Inc. v. EPA — Dependent Indian Community Determination

April 19, 2009Matthew L.M. Fletcher1 Comment

A split panel of the Tenth Circuit concluded that the EPA was within its authority to find that a checkerboarded area of northwestern New Mexico was Indian Country for Safe Drinking Water Act purposes. Here is the opinion.

Here are just some of the many briefs filed in this case (I think I got all the important ones):

hri-appellant-brief

national-mining-assoc-amicus-brief

new-mexico-amicus-brief

navajo-nation-intervenor-brief

epa-brief

hri-reply-brief

interior-land-status-determination

CA10 Decides Clean Air Act Case re: Navajo Nation

April 15, 2009Matthew L.M. Fletcher

The case is Arizona Public Service Company v. EPA (opinion). An excerpt:

Arizona Public Service Company (“APS”), operator and majority owner of the Four Corners Power Plant (“Plant”), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively “Environmentalists”) challenge a regulation promulgated by the U.S. Environmental Protection Agency (“EPA”). The regulation at issue is known as a source-specific, federal implementation plan (“federal plan”) and was enacted pursuant to sections 301(a)and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The federal plan limits particular air emissions from the Plant. We have jurisdiction pursuant to section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1). Because all parties agreethat the federal plan provision pertaining to fugitive dust should be remanded, see infra Part II, we do not address this emissions limit in our discussion of the facts. We grant the EPA’s motion for voluntary remand and grant in part and deny in part the petitions for review.

Here are the materials:

Continue reading →

Barrett v. United States — Tribal Trust Funds Paid to Subject to Federal Income Tax

April 7, 2009Matthew L.M. Fletcher2 Comments

Here is the opinion from the Tenth Circuit. The lower court materials are here. An excerpt:

John A. Barrett, Jr. (“Barrett”) filed suit under 28 U.S.C. § 1346(a) against the United States seeking refund of the federal income taxes, penalties, and interest paid by him pursuant to an Internal Revenue Service (“IRS”) assessment for the tax year ending December 31, 2001. Barrett timely appeals the district court’s grant of summary judgment in favor of the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court’s ruling that the salary paid to Barrett as chairman of the Citizen Potawatomi Tribe (the “Tribe”) was not exempt from federal income tax. We also affirm the district court’s ruling on the accuracy-related penalty.

Tenth Circuit briefs are here:

barrett-appellant-brief

usa-appellee-brief

Tenth Circuit Briefing in Important Quiet Title Act Case

April 5, 2009Matthew L.M. Fletcher

The case is Sac and Fox Nation v. Salazar, and is in the Tenth Circuit. Since Carcieri v. Salazar, for a whole bunch of tribes, the Quiet Title Act (QTA) has become a terribly important statute. As readers will recall, the Act expressly preserves the federal government’s sovereign immunity in cases challenging title to Indian trust lands.

Sac and Fox, which involves the Secretary’s taking into trust of the so-called Shriner Tract in Kansas on behalf of the Oklahoma Wyandotte community, is perhaps one of the more ruthless applications of federal sovereign immunity, in that the parties and the courts in prior years had sought to avoid the application of the QTA by keeping open a case even after the land had been taken into trust. When the district court mistakenly closed the case, forcing the plaintiffs to refile, the QTA kicked in with a vengance, forcing the district court to dismiss (see lower court materials here).

Continue reading →