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9th Circuit, En Banc, Reverses Navajo Nation v. USFS August 8, 2008

Posted by rezjudicata in 9th Circuit.
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Navajo Nation v. United States Forest Service

The en banc panel of the 9th Circuit says that the use of treated sewage effluent on the San Fransisco Peaks does not violate the Religious Freedom Restoration Act, reversing the 9th Circuit’s original opinion. The case is 2 volumes long and contains a lengthy dissent. Analysis to follow.

Western Shoshone Nat’l Council v. United States — Federal Circuit Court of Appeals May 27, 2008

Posted by rezjudicata in Federal Circuit, Federal Circuits.
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Federal Circuit refuses to vacate 24 year-old ICC judgment

Western Shoshone National Council v. United States, 2007-5020 (Fed. Cir. May 22, 2008)

Issue(s): Indian Claims Commission > Final Judgments >> Relief; Treaty Title > Intent to Convey

After Congress created the Indian Claims Commission, several Shoshone tribes filed claims alleging that the U.S. government took over 80 million acres of land. During the decades-long legal battle, the Te-Moak Band and the government agreed that historical events extinguished aboriginal title. In 1974, the Western Shoshone National Council attempted to intervene, alleging that the Te-Moak Band and United States had colluded to treat title as extinguished. Later, the Te-Moak Band itself attempted to reverse course and say that it still held title to the land. The Commission nixed both efforts and entered final judgment in 1979. Twenty-four years later, the Council and several Shoshone tribes sought a declaratory judgment that the judgment was void.

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10th Circuit Reinstates Prosecution in Eagle Killing Case May 11, 2008

Posted by rezjudicata in 10th Circuit, Federal Circuits.
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United States v. Friday, No. 06-8093 (10th Cir. May 8, 2008)

Issue(s): Religious Freedom Restoration Act > Substantial Burdens >> Compelling Interests; Bald and Golden Eagle Protection Act > Permit System >> Least Restrictive Means

The Bald & Golden Eagle Protection Act criminalizes taking eagles without a permit. Through an obscure procedure, members of federally recognized tribes can apply for a permit to take an eagle for religious purposes. Friday, a Sun Dance sponsor, shot a bald eagle for the ceremony without obtaining a permit. So the government prosecuted him. But does the Eagle Act unlawfully burden Friday’s free exercise under the Religious Freedom Restoration Act?

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Eighth Circuit Rejects Tribal Court Jurisdiction over Auto Crash Suit April 6, 2008

Posted by rezjudicata in 8th Circuit, Federal Circuits.
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Nord v. Kelly, No. 07-1564 (8th Cir. Apr. 4, 2008)

Issue(s): Tribal Courts > Civil Jurisdiction >> Non-members >>> Strate

While hauling timber off of the Red Lake Reservation under a contract with the Tribe, Nord collided with Kelly. The accident occurred inside the Reservation, but on a state highway. Kelly sued Nord in the Red Lake Tribal Court. The Tribe purportedly granted the State a right-of-way for the road and the State maintains the road. If Nord is not a member of the tribe, could the tribal court exercise jurisdiction over Kelly’s suit?

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Ninth Circuit Says HUD Breached No Actionable Trust Duty Concerning Blackfeet Housing March 27, 2008

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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Marceau v. Blackfeet Housing Authority, No. 04-35210, (9th Cir. March 19, 2008)

Issue(s): Tribal Immunity > Waiver; Federal Courts > Comity >> Tribal Court Exhaustion; Trust Relationship > Causes of Action >> Mitchell Doctrine; Administrative Law > APA Claims >> Required Agency Actions

In 1977, the Blackfeet Tribe created the Blackfeet Housing Authority to take advantage of HUD block grants. Adopting HUD-authored regulations and using HUD money, the Authority built 153 homes. According to Marceau, HUD directed the Authority to use chemical-laden wooden foundations for the home. As a result, many of the homes’ inhabitants became seriously ill and many of the homes became uninhabitable. Did the Authority enjoy immunity from suit as a tribal entity? If not, did the plaintiff’s need to exhaust their tribal court remedies? Did plaintiffs have a cause of action against HUD for violating a trust responsibility? And could plaintiffs state a claim against HUD based on the APA?

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2/22 Conference Update: Carcieri v. Kempthorne February 22, 2008

Posted by rezjudicata in 1st Circuit, SCOTUS.
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Carcieri v. Kempthorne

Basic Issues & Background

The origins of this case lie in a complex tangle of historical, political, and legal maneuvers. Its resolution, however, rests on two relatively narrow legal issues.

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D.C. Circuit Upholds Secretary’s Rejection of Tribal Constitution February 17, 2008

Posted by rezjudicata in DC Circuit, Federal Circuits.
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California Valley Miwok Tribe v. United States, No. 06-5203 (D.C. Cir. Feb 15, 2008)

Issue(s): Tribal Government > Organization >> Federal Benefits; Tribal Constitutions > Secretary Approval >> Indian Reorganization Act; Administrative Law > Approval Standards >> Chevron Deference

The Indian Reorganization Act requires the Secretary of the Interior to approve tribal constitutions adopted under the Act. During an internecine power struggle, Burley and a small cadre of supporters adopted a constitution and submitted the document for Secretary approval. The Secretary refused to approve the constitution. Though Burley’s faction represented a small minority of the California Valley Miwok Tribe’s membership, did the Secretary have to approve their constitution?

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Tenth Circuit Says Tribal Certificate of Title Not Valid to Perfect Security Interest January 29, 2008

Posted by rezjudicata in 10th Circuit, Federal Circuits.
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In re Harper, No. 07-5016 (10th Cir. Jan. 24, 2008)

Issue(s): Bankruptcy > Security Interests; UCC > Secured Transactions >> Perfection >>> Oklahoma Law; UCC > Secured Transactions >> Certificates of Title >>> Priority under Tribal Law

After purchasing a truck, Harper granted a security interest to the credit union for a loan to pay off the dealer’s financing loan. The credit union noted its interest on a Muscogee (Creek) Nation certificate of title. Bankruptcy ensued and the trustee claimed that the union’s security interest was unperfected and therefore not entitled to satisfaction in the bankruptcy. Did the Nation’s certificate of title perfect the credit union’s security interest?

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Ninth Circuit Tells Father To Exhaust Tribal Court Remedies January 19, 2008

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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Atwood v. Fort Peck Tribal Court, No. 06-35299 (9th Cir. Jan. 18, 2008)

Issue(s): Federal Jurisdiction > Subject Matter Jurisdiction >> § 1331 >>> Domestic Relations Exception; Federal Jurisdiction > Exhaustion of Tribal Remedies

Federal question jurisdiction exists for challenges to tribal court jurisdiction. As a prudential matter, however, an appellant must exhaust his tribal remedies before the federal court will exercise its jurisdiction. Linda Hanson sought custody of her niece in the Fort Peck Tribal Court. While this case was pending, Atwood sued to enjoin the tribal court action in federal court. Did the district court have jurisdiction over Atwood’s suit? Even so, did Atwood need to exhaust his tribal court remedies?

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Ninth Circuit Says Karuk Defendant Failed To Establish Individual Aboriginal Title January 19, 2008

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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United States v. Lowry, No. 06-10469 (9th Cir. Jan. 16, 2008).

Issue(s): Criminal Law > Criminal Procedure >> Burden of Proof >>> Elements; Criminal Law > Criminal Procedure >> Defenses >>> Individual Aboriginal Title

The Forest Service prohibits permanent human occupation of National Forest lands. The doctrine of individual aboriginal title, however, may prevent application of the regulation. Lowry, a Karuk Indian, and her family have lived on sections of the Klamath National Forest since at least the turn of the century. It is unclear, however, whether the family occupied Lowry’s parcel for an unbroken period of time. At Lowry’s trial for violating the regulation, did Lowry have to raise individual aboriginal title as an affirmative defense? If so, did she present enough evidence to establish title?

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