Tenth Circuit – Page 38

Murphy v. Kickapoo Tribe — CA10 Affirms Dismissal of Employment Claims

January 28, 2009Matthew L.M. Fletcher

Here is the unpublished opinion. An excerpt:

Terry Murphy and Roger Lackey brought breach of contract, retaliatory discharge, and fraud claims against the Kickapoo Tribe of Oklahoma (“the Tribe”) in the United States District Court for the Western District of Oklahoma. Their claims were dismissed by the district court for lack of jurisdiction based on tribal sovereign immunity. We affirm the dismissal because the district court lacked subject matter jurisdiction to consider the plaintiffs’ claims, which arise solely under state law.

Cohen v. Winkelman — Tenth Circuit Affirms Dismissal of ICRA Claim against Tribal College

December 14, 2008December 14, 2008Matthew L.M. Fletcher

Here is the opinion, unpublished, from the Tenth Circuit. The court affirmed the dismissal of the claim, which was a claim of wrongful employment termination, on the basis of tribal sovereign immunity. The court specifically rejected the so-called Dry Creek Lodge exception.

Tenth Circuit Affirms Immunity for Tribal Business Arms

November 18, 2008Matthew L.M. Fletcher1 Comment

In Native American Distributing v. Seneca-Cayuga Tobacco Co., the Tenth Circuit affirmed a district court order dismissing a claim against the company, a wholly owned business of the Seneca-Cayuga Indian Tribe. A closer question was whether the tribe’s officers might be individually liable under Ex parte Young, but the plaintiffs did not properly plead a claim against them in their individual capacities.

Here are the briefs.

And the opinion: native-american-distributing-ca10-opinion

U.S. v. Benally — CA10 Reinstates Conviction after Juror Alleged Racial Bias against Indian

November 13, 2008Matthew L.M. Fletcher

In United States v. Benally, the Tenth Circuit reinstated a federal criminal conviction for assaulting a BIA officer against a Ute Mountain Ute tribal member. An excerpt:

On October 10, 2007, a jury convicted Kerry Dean Benally of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon, inviolation of 18 U.S.C. § 111(b). The next day one of the jurors came forward with a charge that the jury deliberations had been tainted by racial bias and other inappropriate considerations. The district court held that Federal Rule of Evidence 606(b)’s general rule against jurors testifying about jury deliberations did not apply and that the evidence of juror misconduct was sufficient to warrant a new trial. We disagree. Rule 606(b)’s prohibition covers juror testimony of racial bias in jury deliberations of the kind alleged in Mr. Benally’s trial, and the Sixth Amendment does not require an exception. The original conviction is reinstated.

Las Cruces Religious Freedom Case

September 16, 2008Matthew L.M. Fletcher1 Comment

In Weinbaum v. City of Las Cruces, the Tenth Circuit affirmed a DCT opinion rejecting a constitutional challenge to the placement of three crosses in the City of Las Cruces (The Crosses). In part, the court focused on the chamber of commerce’s argument that the three crosses had significance due to the history of the city and the joining of Indian, Latino/a, and Anglo cultures:

Other entities in Las Cruces have also adopted crosses as part of their trade dress. For example, the Chamber of Commerce adopted a symbol with three crosses in 1970, explaining: “The three crosses were joined at the ends of the transverse bars and at the top of the uprights to combine forever the three cultures basic to the area–Indian, Latin, and Anglo.” Many businesses in the area similarly include three crosses in their logos. [opinion at 10]

Here are the materials:

weinbaum-v-las-cruces-ca10-opinion

weinbaum-opening-brief

city-brief

Sac and Fox Nation v. DOI Materials

September 15, 2008Matthew L.M. Fletcher1 Comment

Here are the materials in the most recent order from the district court in this long-running case (H/T Indianz).

dct-order-on-motion-to-vacate-2001-decision

govt-motion-to-dismiss

sac-and-fox-opposition-brief

govt-reply-brief

DCT Opinion

Pelt v. Utah — Navajo Trust Fund Litigation

September 4, 2008Matthew L.M. Fletcher

The Tenth Circuit held that prior decisions involving the Navajo Trust Fund held by the State of Utah did not foreclose the current claim for an accounting of the fund by beneficiaries.

pelt-v-utah-ca10-opinion

opening-brief-pelt-v-utah

appellee-brief-pelt-v-utah

reply-brief-pelt-v-utah

Taylor v. Sturgell

Southern Ute v. Leavitt Materials

July 19, 2008Matthew L.M. Fletcher

Southern Ute Tribe, with NCAI as amicus, is appealing a district court order allowing the IHS to set the tribe’s self-determination contract award at zero. The case is pending in the Tenth Circuit. Here are the materials:

dct-order-6-16-2007

dct-order-10-18-2007

southern-ute-appellant-brief

ncai-amicus-brief

us-appellee-brief

[Southern Ute Reply brief not filed yet]

Kemp v. Osage Nation Cert Petition

June 9, 2008June 9, 2008Matthew L.M. Fletcher1 Comment

Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.

Here are the questions presented (from the petition):

1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?

2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?

3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?