2000-2001 FEDERAL CASE LAW

ON AMERICAN INDIANS

by Kyme Allison McGaw

Morisset, Schlosser, Homer, Jozwiak & McGaw

1115 Norton Building

801 Second Avenue

Seattle, WA 98104-1509

(206) 386-5200

k.mcgaw@msaj.com

KYME ALLISON McGAW. Ms. McGaw has a B.A. from the University of Montana and a J.D. from Seattle University School of Law (formerly University of Puget Sound School of Law). She is a director in the Seattle office of Morisset, Schlosser, Homer, Jozwiak & McGaw, where her practice emphasizes federal and tribal court litigation and issues relating to jurisdiction, tribal property and natural resources, personnel and employment, federal contracting, and tribal constitutional revision.

May 2001

UNITED STATES SUPREME COURT

This term, the Supreme Court will review five cases affecting Indian country. As of the date of submission of this paper, only one has been decided. Several may be decided in the interim.

Cert. Petitions Granted

1.                  C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, No. 00-292. No opinion available from Court of Civil Appeals of Oklahoma, Second Division Argued: March 19, 2001. The issue presented is whether an Indian tribe waived its sovereign immunity by entering into a construction contract that did not expressly address sovereign immunity but contained a clause agreeing to binding arbitration. The contract was executed off-reservation and concerns a construction project that is also off-reservation.

2.                  Nevada v. Hicks, No. 99-1994. Case below, 196 F.3d 1020 (9th Cir. 1999). Argued: March 21, 2001. For summary of opinion below, see paragraph 75.

3.                  Chickasaw Nation v. United States, No. 00-507. Case below, Chickasaw Nation v. United States, 208 F.3d 871 (10th Cir. 2000). Argument: unscheduled (as of April 16, 2001). For summary of opinion below, see paragraph 79.

4.                  United States v. Idaho, No. 00-189. Case below, 210 F.3d 1067 (9th Cir. 2000). Argued: April 23, 2001. For summary of opinion below, see paragraph 40.

5.                  Atkinson Trading Company, Inc. v. Shirley, No. 00-054. Case below, 210 F.3d 1247 (10th Cir. 2000). Argued: March 27, 2001. For summary of opinion below, see paragraph 69.

Cases Decided

6.                  Department of the Interior v. Klamath Water Users Protective Association, No. 99-1871, 121 S. Ct. 1060 (March 5, 2001). Nonprofit association of water users brought action against Department of the Interior under Freedom of Information Act seeking documents submitted by Indian tribes at request of Department in course of administrative and adjudicative proceedings regarding water rights allocation. The U.S. District Court for the District of Oregon granted Departments motion for summary judgment, and association appealed. The Ninth Circuit, 189 F.3d 1034, reversed. Certiorari was granted. The Supreme Court, Justice Souter, held that, without regard to whether Freedom of Information Act exemption for inter- or intra-agency memoranda or letters is broad enough to reach documents authored, not by employee of agency, but by independent contractor acting as consultant, exemption did not protect from disclosure documents that were submitted by Indian tribes at request of Department of Interior in course of administrative and adjudicative proceedings in which tribes had direct interest. Affirmed.

OTHER FEDERAL COURTS[1]

The federal courts have decided numerous cases affecting Indian Country in the years 2000 and 2001. The following is a summary of selected cases.

A.                 Administrative Law

1.                  Anderson v. Babbitt, No. 98-36150, 230 F. 3d 1158 (9th Cir. 2000). Will contestant appealed order of Interior Board of Indian Appeals affirming in part administrative law judges denial of her motion for summary judgment in probate proceeding. The U.S. District Court for the Western District of Washington dismissed action. Contestant appealed. The Ninth Circuit held that: (1) exhaustion requirement established by Interior regulation does not bar filing of colorable due process claim in federal court regarding pending Indian probate proceedings; (2) contestants claim was not colorable claim for due process; and (3) IBIA did not fail to act, so as to give rise to federal court jurisdiction in absence of final agency action. Affirmed.

2.                  Pueblo of Sandia v. Babbitt, Nos. 98-5428 and 98-5451, 231 F.3d 878 (D.C. Cir. 2000). Pueblo sought review of opinion issued by Solicitor of Interior denying request by Pueblo for corrected survey. The U.S. District Court for the District of Columbia vacated Solicitors opinion and remanded case to Interior Department for agency action consistent with courts opinion. On federal appellants motion to dismiss appeals, the D.C. Circuit held that district courts order did not end the litigation and was not appealable. Appeals dismissed.

3.                  Rosebud Sioux Tribe v. Gover, No. 99-3003, 104 F. Supp. 2d 1194 (D.S.D. 2000). Plaintiff developed plans to build and operate hog-production facility on tribal trust lands. Local Bureau of Indian Affairs officials approved the lease but other officials in the Department of the Interior voided it based on alleged violations of the National Environmental Policy Act and the National Historic Preservation Act. The district court found that decision to void the lease was arbitrary and capricious and granted plaintiffs motion for a preliminary injunction enjoining the Department of Interior from interfering with the project because the Department did not demonstrate that (1) the environmental assessment required by the National Environmental Policy Act failed to raise a substantial environmental issue, or (2) the local Bureau of Indian Affairs officials failed to take a hard look at the project.

4.                  Utah v. United States Department of The Interior, No. 99-4104, 210 F.3d 1193 (10th Cir. 2000). State of Utah brought action against Bureau of Indian Affairs challenging BIAs refusal to permit state to participate in process between Indian tribe and storage corporation for approving lease of tribal land for storage of nuclear waste. Storage corporation intervened. The district court concluded that State lacked standing and granted BIAs motion for summary judgment. State appealed. The Tenth Circuit held that action was not ripe for review since, inter alia, State would have opportunity to raise its environmental concerns during review and licensing process conducted by Nuclear Regulatory Commission. Affirmed.

B. Alaskan Native Claims Settlement Act

5.                  Bay View, Inc. v. United States, No. 99-456L, 46 Fed. Cl. 494 (2000). Native village corporation brought suit alleging that an amendment of the Alaska Native Claims Settlement Act constituted a taking of plaintiffs property, a breach of trust, and a breach of contract. On defendants motion to dismiss, the Court of Federal Claims held that: (1) amendment to the ANCSA that exempted net operating loss revenues from the Acts sharing requirement did not constitute a taking of village corporations property, as corporation had no property interest in those revenues; (2) any breach of trust claim based on ANCSA was not within jurisdiction of the Court of Federal Claims, as ANCSA is not a money-mandating statute; and (3) allegations that amendment constituted a breach of contract or amendment failed to state a claim. Motion granted.

6.                  Doyon, Ltd. v. United States, No. 97-5049, 214 F.3d 1309 (Fed. Cir. 2000). Regional corporation challenged imposition of alternative minimum tax on income realized by affiliating with other profitable corporations and using net operating losses to shelter profits of the other corporation. The Court of Federal Claims upheld the tax but the Federal Circuit reversed, holding that the special tax provision at issue prohibits the IRS from using any statute or principal of law to deny the benefit or use of losses incurred. The money received by the Regional Corporation was a congressionally recognized benefit.

C. Contracting

7.                  United States ex. rel. Crow Creek Sioux Tribe v. Hattum Family Farms, No. 00-1691, 237 F.3d 919 (8th Cir. 2000). Robert Hattum and Hattum Family Farms performed custom farmwork for the Crow Creek Sioux Tribe on tribal land. The Tribe brought a qui tam action against Hattum, seeking to set aside certain crop liens, to require an accounting of payments Hattum received from the Tribe, and to recover for damages to tribal land. In a counterclaim, Hattum sought damages for unpaid salaries, amounts due under the farming agreements, unjust enrichment, and breach of contract. The district court partially granted the Tribes motion for summary judgment, concluding the contracts were void under 25 U.S.C. ' 81 because the Secretary of the Interior had not approved them. See United States ex rel. Crow Creek Sioux Tribe v. Hattum Family Farms, 102 F. Supp. 2d 1154, 1163-64 (D.S.D. 2000). The district court also concluded the crop lien was void and found Hattums affirmative defenses of estoppel, waiver, unjust enrichment, and breach of contract without merit. On appeal, Hattum challenged the district courts application of 25 U.S.C. ' 81 to the contracts and the courts finding that Hattums affirmative defenses were meritless. Affirmed.

D. Employment

8.                  Dionne v. Shalala, No. 98-3510, 209 F.3d 705 (8th Cir. 2000). Plaintiff, a public health nurse with the Indian Health Service and a member of the Turtle Mountain Band of Chippewa, alleged Title VII race and national origin discrimination in the assignment of her classification grade. The district court granted summary judgement for the Secretary, finding that plaintiff presented a prima facie case of disparate treatment, but the Secretary articulated a nondiscriminatory reason for the grading assignment. The Eighth Circuit affirmed.

9.                  Yukon-Kuskokwim Health Corp. v. NLRB, No. 99-1440, 234 F.3d 714 (D.C. Cir. 2000). Nonprofit health corporation controlled by Alaska Native tribes petitioned for review of, and National Labor Relations Board cross-applied for enforcement of, NLRB order finding that hospital operated by corporation was not exempt from National Labor Relations Act. The D.C. Circuit held that: (1) NLRB did not act arbitrarily in determining that exemption from NLRA coverage for states or political subdivisions did not apply to Indian tribes with respect to activities conducted off reservations, and (2) NLRBs rejection of corporations argument, that it was exempt from NLRA because it operated federal hospital pursuant to government-to-government contract authorized by Indian Self-Determination Act (ISDA), ignored NLRBs obligation to address and to minimize conflict with any statutory regime other than NLRA with which disparity was claimed. Enforcement denied. Remanded.

E. Environmental Regulation

10.              Arizona Public Service Co. v. Environmental Protection Agency, Nos. 98-1196, 98-1203, 98-1206, 98-1207 and 98-1208, 211 F.3d 1280 (D.C. Cir. 2000). On petitions for review of an order of the Environmental Protection Agency. In 1990, Congress passed a compendium of amendments to the Clean Air Act. This case concerns amendments that specifically address the power of tribes to implement air quality regulations under the Act. Petitioners challenge the Environmental Protection Agencys regulations, promulgated in 1998, implementing the 1990 Amendments. See Indian Tribes: Air Quality Planning and Management, 63 Fed. Reg. 7254 (1998) (to be codified at 40 C.F.R. pts. 9, 35, 49, 50, and 81). EPA appropriately construed the CAA; petitioners dismissed. Note: on April 16, the Court denied certiorari in Michigan v. EPA, No. 00-746 (April 16, 2001), which effectively permits Arizona Public Service v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), to stand.

11.              Cantrell v. City of Long Beach, 2000 WL 33152061, 241 F.3d 674 (9th Cir. Feb. 5, 2001). The Ninth Circuit held that the appellants had standing to challenge the adequacy of the Navys Environmental Impact Statement under NEPA, but did not establish taxpayer standing sufficient to bring their state law claims in federal court.

12.              HRI, Inc. v. EPA, Nos. 97-9556, 97-9557, 198 F.3d 1224 (10th Cir. 2000). Mining company and New Mexico Environment Department petitioned for judicial review of Environmental Protection Agencys decision to implement, pursuant to Safe Drinking Water Act, direct federal underground injection control program on certain New Mexico lands. Department also challenged EPAs decision to implement direct federal UIC program on adjoining lands considered by EPA to be Indian country. The Tenth Circuit held that: (1) EPAs decision to treat lands jurisdictional status as "in dispute" was ripe for review; (2) EPAs reconsideration of prior determination that certain lands were Indian country for SDWA purposes was new decision triggering new limitations period; (3) EPA acted reasonably in asserting jurisdiction over disputed lands under regulations providing for non substantial UIC program revisions; (4) EPA could find that Indian country status of lands was disputed despite prior state adjudications to the contrary; and (5) one land parcel at issue qualified as Indian country. Petitions for review dismissed; issue remanded.

13.              Metcalf v. Daley, No. 98-36135, 214 F.3d 1135 (9th Cir. 2000). Appeal of summary judgment in favor of appellees and the Makah Indian Tribe. Appellants argued that in granting the Makah authorization to resume whaling, the federal defendants violated NEPA by preparing an Environmental Assessment that was both untimely and inadequate, and declining to prepare an EIS. In addition, appellants challenge the district courts denial of their motion to compel production of administrative record material, as well as their motion to supplement the administrative record. Reversed and remanded.

14.              Okanogan Highlands Alliance v. Williams, Nos. 99-35537, 99-35538, 236 F.3d 468 (9th Cir. 2000). Environmental groups and Indian tribes brought action challenging adequacy of final environmental impact statement and record of decision prepared by United States Forest Service in connection with proposed gold mine in national forest. The U.S. District Court for the District of Oregon 1999 upheld Forest Services decision, and plaintiffs appealed. The Ninth Circuit held that, inter alia, discussion of mitigating measures in EIS was adequate and Forest Service did not violate trust obligations to tribes. Affirmed.

F. Exhaustion of Tribal Court Remedies

15.              Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, No. 99-1828, 207 F.3d 21 (1st Cir. 2000). Non-Indian contractor brought contract, fraud, and conversion action against tribal housing authority arising from contract for work outside of reservation. The district court dismissed action. Contractor appealed. The First Circuit held that although district court lacked diversity jurisdiction, had federal question jurisdiction to determine extent of tribal courts jurisdiction over contractors claims. The First Circuit further held that defense predicated on tribal sovereign immunity was susceptible to direct adjudication in federal courts, without reference to the tribal exhaustion doctrine; tribe waived sovereign immunity with respect to contractors claims; and contractor would be required to exhaust tribal remedies. Vacated and remanded.

16.              Petrogulf Corporation v. ARCO Oil & Gas Company, No. CIV.A. 00-B-34, 92 F. Supp. 2d 1111 (D. Col. 2000). Owner of working interest in gas field sued mineral lessee on adjoining Indian trust land for mineral trespass and misrepresentations to state commission. On defendants motion to dismiss, the district court held that plaintiff was required to exhaust tribal remedies before suing in federal court. Motion granted.

G.                Fisheries, Water, FERC, BOR

17.              City of Tacoma v. FERC, No. 99-1192, 99-1193, 99-1143, 99-1218, 99-1229, 99-1341, 00-1001, 00-1032, 00-1040, 2000 WL 1683468 (D.C. Cir 2000) (unpublished opinion; only Westlaw cite available). Order remanding to FERC for consideration of ESA issues in hydroelectric project relicensing proceeding.

18.              Conservation Law Foundation v. Federal Energy Regulatory Commission, Nos. 99-1035, 99-1159, 99-1161 & 99-1162, 216 F.3d 41 (D.C. Cir. 2000). The Department of the Interior and the Environmental Protection Agency, conservation groups, and the Penobscot Indian Nation petition for review of the Federal Energy Regulatory Commissions relicensing of a hydroelectric project in north-central Maine. The issues presented go mainly to the adequacy of the Commissions consideration of the various factors governing license renewals. The Commission gave sufficient attention to these factors and carefully explained its conclusions. Petitions denied.

19.              Klamath Water Users Protective Assoc.v. Patterson, No. 98-35708, 191 F.3d 1115 (9th Cir. 2000). Water users association and other irrigators sued United States Bureau of Reclamation and dam operators successor based on contract between Bureau and operator governing dams management. Successor filed counterclaim, seeking declaration of rights with respect to irrigators standing under contract. Parties cross-moved for summary judgment. The district court, 15 F. Supp. 2d 990, granted declaratory judgment to Bureau and successor. Irrigators appealed. On petition for rehearing and rehearing en banc, the Ninth Circuit held that: (1) irrigators were not third-party beneficiaries to contract; (2) government retained overall control over dam; (3) Bureau had authority to direct dam operations to comply with Endangered Species Act; and (4) Bureau had authority to direct dam operations to comply with Tribal rights. Affirmed; petitions for panel rehearing and for rehearing en banc denied.

20.              Lower Elwha Band of SKlallam v. Lummi Indian Tribe, No. 98-35964, 235 F.3d 443 (9th Cir. 2000). In proceedings to adjudicate fishing rights reserved by 1855 Treaty of Point Elliott, Lower Elwha Band of SKLALLAM, Jamestown Band of SKLALLAM, Port Gamble Band of SKLALLAM, and Skokomish Indian Tribe sought determination that Lummi Indian Tribe was violating 1974 opinion in United States v. Washington by fishing in areas outside its adjudicated usual and accustomed grounds and stations. Following entry of summary judgment order in 1990 determining that 1974 opinion did not intend to include disputed areas within Lummi Tribes usual and accustomed grounds and stations, the U.S. District Court for the Western District of Washington dismissed action. Plaintiff tribes appealed. The Ninth Circuit held that: (1) summary judgment order was not final order; (2) district courts determination that reconsideration of 1990 order was barred by law of the case doctrine did not insulate such order from review; (3) district court did not improperly rely on evidence that had not been before court at time of Washington decision; (4) Lummi Tribes usual and accustomed fishing grounds and stations did not include Strait of Juan de Fuca or mouth of Hood Canal; (5) Lummi Tribes usual and accustomed fishing grounds and stations included Admiralty Inlet; and (6) district court did not abuse its discretion in concluding that law of the case doctrine barred it from reconsidering its 1990 decision. Affirmed in part and reversed in part.

21.              Muckleshoot Indian Tribe v. Lummi Indian Nation, No. 99-36224, 234 F.3d 1099 (9th Cir. 2000). Following remand in Indian fishing rights case, 141 F.3d 1355, the U.S. District Court for the Western District of Washington entered order from which Lummi Nation appealed. The Ninth Circuit held that: (1) finding in a 1974 decision that Lummis fishing waters extended south "to the present environs of Seattle" meant that the fishing grounds ended where those environs began, and (2) there was no error in relying on a statement by a geography expert as to where the northern environs of Seattle were located at the time of the prior decision. Affirmed.

22.              United States v. Muckleshoot Indian Tribe, No. 99-35960, 235 F.3d 429 (9th Cir. 2000). The Puyallup, Suquamish, and Swinomish Indian Tribes sought determination regarding extent of Muckleshoot Indian Tribes saltwater usual and accustomed fishing area. The U.S. District Court for the Western District of Washington entered summary judgment in favor of Puyallup, Suquamish, and Swinomish Tribes. Muckleshoot Tribe appealed. The Ninth Circuit held that Muckleshoot Tribes saltwater usual and accustomed fishing area, as determined by 1974 decision in United States v. Washington, did not include any areas outside Elliott Bay. Affirmed.

23.              United States v. Washington, No. 99-35104, 235 F.3d 438 (9th Cir. 2000). State of Washington sought determination that fish caught by Chehalis Indian Tribe on its reservation should be attributed to Quinault Tribe and other Tribes that had signed 1859 Treaty of Olympia, rather than to State, for purposes of equitably allocating fishing rights between signatory Tribes and State under such Treaty. The U.S. District Court for the Western District of Washington entered summary judgment in favor of Quinault Tribe. State appealed. The Ninth Circuit held that fish caught by Chehalis Tribe would be attributed to State, notwithstanding that Chehalis Tribes reservation had been established by executive order rather than by treaty. Affirmed.

H. Gaming

24.              Casino Resource Corporation v. Harrahs Entertainment, Inc., No. 99-2822, 243 F.3d 435 (9th Cir. March 13, 2001). Consultant sued entertainment company after company and Indian tribe terminated their gaming development and management contracts, asserting claims for breach of contractual and fiduciary duties and tortious interference with contractual and prospective economic advantage. The U.S. District Court for the District of Minnesota dismissed on preemption grounds. Consultant appealed. The Ninth Circuit held that claims were not preempted by Indian Gaming Regulatory Act. Reversed and remanded.

25.              Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, No. Civ. A. 99-2517(JHG), 116 F. Supp. 2d 155 (D.D.C. 2000). Tribe sought judicial review of determination by Secretary of Interior that gaming was prohibited on particular parcel of land. On cross-motions for summary judgment, the district court held that: (1) exception to statutory prohibition against gaming on land acquired into trust after October 17, 1988, allowing gaming on adjacent parcels, was not applicable, but (2) exception for land taken into trust as part of restoration of federal recognition was not limited to land taken into trust at time of tribes restoration. Motions denied; case remanded.

26.              Diamond Game Enterprises, Incorporated v.Reno, Nos. 98-5516 & 99-5345, 230 F.3d 365 (D.C. Cir.2000). Tribe and manufacturer of gaming device sought declaratory and injunctive relief against Attorney General and others relating to classification of device under Indian Gaming Regulation Act (IGRA). Other tribes and states intervened. On cross-motions for summary judgment, the district court, 9 F. Supp. 2d 13, held that device was Class III gaming apparatus, and plaintiffs appealed. The D.C. Circuit held that the device should be classified as a Class II "electronic aid" rather than as a Class III "facsimile." Reversed and remanded with instructions.

27.              Kansas ex rel. Graves v. United States, No. Civ.A. 99-2341-GTV, 86 F. Supp. 2d 1094 (D. Kan. 2000). State sought judicial review of determination by Department of the Interior that parcel was Indian land. On plaintiffs motion for preliminary injunction and defendants motion to dismiss, the district court held that: (1) Quiet Title Act did not apply, and (2) finding that parcel was Indian land, within meaning of Indian Gaming Regulation Act, was arbitrary and capricious. Plaintiffs motion granted; defendants motion denied.

28.              Melius v. National Indian Gaming Commission, 2000 WL 1174994 (D.D.C. 2000) (unpublished opinion; only Westlaw cite available). Plaintiff sued the National Indian Gaming Commission under the Freedom of Information Act, the Privacy Act, the Administrative Procedure Act, and the Fifth Amendment to the U.S. Constitution. Plaintiff moved for disclosure of certain documents, damages, a review of the National Indian Gaming Commission determination that he was an unsuitable candidate for a management contract, and declaratory and monetary relief. Defendant moved for summary judgment. The district court granted the motion for summary judgment on some counts and denied it on others.

29.              Sault Ste. Marie Tribe of Chippewa Indians v. Engler, No. 1:90-CV-611, 93 F. Supp. 2d 850 (W.D. Mich. 2000). State moved to compel compliance with consent judgment that had settled dispute between State and Indian tribes. The district court held that tribes exclusive right to operate electronic games of chance ended, and hence their obligation under consent decree to pay portion of net proceeds to State terminated, when compacts allowing non-party tribes to operate games in State became effective. Motion denied.

30. Sokaogon Chippewa Community v. Babbitt, No. 00-1137, 214 F.3d 941 (7th Cir. 2000). Appeal of St. Croix Chippewa Indians of Wisconsin, proposed intervenor appealed district courts refusal to permit intervention, either of right or by permission, in litigation between the Sokaogon Chippewa Community Mole Lake Band of Lake Superior Chippewa, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, and the Red Cliff Band of Lake Superior Chippewa Indians, and the U.S. Department of the Interior. Affirmed.

31.              World Touch Gaming, Inc. v. Massena Management, LLC, No. 99-CV-2214, 117 F. Supp. 2d 1249 (M.D. Ala 2000). Seller and lessor of gaming equipment sued Indian tribe, its casino, and casino management company for breach of contract. On defendants motion to dismiss, the district court held that: (1) tribe and casino were immune from suit, and (2) tribe and casino were indispensable parties. Motion granted.

I. Land Claims

32.              Alaska v. United States, 213 F.3d 1092 (9th Cir. 2000). State of Alaska brought quiet title action against United States, claiming title to riverbed of three remote wilderness rivers: the Kandik, the Nation, and the Black. Under the equal footing doctrine of the Submerged Lands Act of 1959, the riverbeds belong to the State if the rivers were navigable at statehood but to the United States if the rivers were unnavigable at statehood. District court held: (1) The U.S. asserted a claim to the navigability of the Kandik River and the Nation River but not the Black River, and (2) Native lands are excluded from this claim. The court of appeals affirmed that the U.S. asserted a claim to the Kandik and the Nation but reversed the district court with respect to the Black on the grounds that it had no jurisdiction to hear the claim. Affirmed in part and reversed and remanded in part.

33.              Banner v. United States, 238 F.3d 1348 (Fed. Cir. Jan. 29, 2001). Former lessees of portions of Allegany Reservation brought Fifth Amendment takings and due process action against United States, contending that Seneca Nation Land Claims Settlement Act extinguished their right to renew leases and their right to own improvements on leased land. The Court of Federal Claims, 44 Fed. Cl. 568, entered summary judgment in favor of United States. Former lessees appealed. The Federal Circuit held that: (1) lessees claims that Act extinguished their right to renew leases were barred under doctrine of collateral estoppel, and (2) lessees ownership interest in improvements reverted to Nation upon expiration of 99-year leases. Affirmed.

34.              Bay Mills Indian Community v. Western United Life Assurance Co., No. 99-1036 (6th Cir. 2000). Bay Mills Indian Community filed a complaint asserting an interest in a parcel of property within the county. Bay Mills alleged various federal constitutional and statutory violations in connection with the 1884 ouster from the property of its predecessors in interest, two aboriginal Chippewa bands, and sought either equitable title to the property or damages equal to its value and damages for the loss of the use and enjoyment of the land since 1884. The defendants, individuals and entities currently possessing various interests in the property, moved to dismiss the action under Federal Rules of Civil Procedure 12(b)(7) and 19 for failure to join an indispensable party, the Sault Ste. Marie Tribe of Chippewa Indians. The district court granted the defendants motion and dismissed the plaintiffs complaint. Affirmed.

35.              Cayuga Indian Nation of New York v. Pataki, Nos. 80-CV-930, 80-CV-960, 83 F. Supp. 2d 318 (N.D.N.Y. 2000). Indian tribe sought compensation for the fact that, through two separate transactions with the State, they were dispossessed of their ancestral land in violation of the Indian Trade and Intercourse Act and had remained out of possession of that land for the past 204 years. Upon parties motions to exclude expert testimony on damages issue, the district court held that: (1) expert testimony of real estate appraiser proffered by tribal plaintiffs was not admissible since his proffered testimony did not satisfy the reliability and relevancy considerations identified in Daubert, and (2) although real estate appraisers proffered by state and federal governments admitted to developing their respective valuation methodologies for first-time use in the case, their expert testimony satisfied the reliability and relevancy considerations of Daubert, and thus, was admissible. Order in accordance with opinion.

36.              Cermak v. Babbitt, No. 00-1098, 234 F.3d 1356 (Fed. Cir. 2000). Descendants of member of Mdewakanton Band of Sioux Indians sued Department of the Interior, claiming that Department had wrongfully deprived them of their rights in parcels of land that had been assigned to member in 1944 through issuance of Indian Land Certificates. The U.S. District Court for the District of Minnesota determined that it lacked jurisdiction and transferred case to United States Court of Federal Claims. Descendants appealed to the Eighth Circuit, which transferred appeal. The Federal Circuit held that: (1) jurisdictional statute for Court of Federal Claims, and statute providing that district courts had subject matter jurisdiction over certain claims against United States, constituted waivers of sovereign immunity with respect to claim for damages, but not with respect to claim for injunctive relief; (2) statute conferring on district courts jurisdiction over actions involving Indians rights to allotments did not provide district court with jurisdiction; and (3) Court of Federal Claims lack of jurisdiction to order equitable relief for descendants did not preclude transfer of action to Court of Federal Claims, absent basis for district court jurisdiction over equitable claim. Affirmed.

37.              Harrington v. Babbitt, No. 99-36121, 2000 WL 1599095 (9th Cir. 2000) (unpublished opinion; only Westlaw cite available). Appeal from the U.S. District Court for the District of Oregon. Pro se litigant appealed the district court's dismissal of his ' 1983 action alleging entitlement to mineral rights as frivolous. The comprehensible portion of Harrison's complaint, which the court construed liberally, alleged that the Klamath Tribe, of which Harrison is a member, is entitled to mineral rights to most of southern Oregon and northern California based on an 1864 treaty; that the Department of the Interior is keeping this entitlement secret; that the tribe itself refuses to pursue these rights; and that therefore, Harrington is entitled to them. Affirmed.

38.              Karuk Tribe of California v. United States, Nos. 99-5002, 99-5003, 99-5006, 209 F.3d 1366 (Fed. Cir. 2000). Karuk Tribe of California, Yurok Indian Tribe, and individual Indians brought actions against United States, claiming that 1988 Hoopa-Yurok Settlement Act that partitioned Hoopa Valley Reservation effected Fifth Amendment taking of their property interests. Hoopa Valley Tribe was permitted to intervene on side of United States. The Court of Federal Claims entered summary judgment in favor of United States and Hoopa Tribe, and plaintiffs appealed. The Federal Circuit held that plaintiffs did not possess compensable vested property interest in reservation and partition of Reservation thus was not unconstitutional taking. Affirmed.

39.              San Xavier Development Auth. v. Charles, No. 99-16158, 237 F.3d 1149 (9th Cir. Jan. 29, 2001). As lessee of allotted Indian land, nonprofit development corporation chartered by Tohono Dodham Indian Nation sued trailer home sales company to terminate sublease. The U.S. District Court for the District of Arizona dismissed action. Lessee appealed. The Ninth Circuit held that subleased land was not subject to Nonintercourse Acts requirement that purchase of lands from Indian tribe be made by treaty or convention and that corporation lacked standing under various statutes. Affirmed.

40.              United States v. Idaho, Nos. 98-35831, 98-35847, 210 F.3d 1067 (9th Cir. 2000). United States, in its own capacity and as trustee for Coeur dAlene Indian Tribe, brought action against State of Idaho seeking to quiet title to lands submerged by Coeur dAlene Lake and St. Joe River within exterior boundaries of Coeur dAlene Indian Reservation. Tribe intervened as plaintiff. The district court quieted title in favor of United States, as trustee, and Tribe, as beneficially interested party, but refused to adjudicate ownership of submerged lands within Heyburn State Park. State and Tribe appealed. The Ninth Circuit held that: (1) Congress intended to defeat states title to lands submerged by Coeur dAlene Lake and St. Joe River, and (2) district court properly declined to adjudicate ownership of submerged lands within Heyburn State Park. Affirmed.

41.              Virgin v. County of San Luis Obispo, No. 98-55557, 201 F.3d 1141 (9th Cir. 2000). Landowners challenged countys denial of their application for a lot line adjustment. The district court dismissed for lack of jurisdiction, and landowners appealed. The Ninth Circuit held that mere fact that landowners predecessors had received title via federal land patents did not create federal-question jurisdiction. Affirmed.

42.              Ysleta Del Sur Pueblo v. Laney, No. 98-50575, 199 F.3d 281 (5th Cir. 2000). Tribe filed suit seeking to eject officials of State of Texas from a piece of real property. Motion to dismiss the suit as barred by the Eleventh Amendment was denied by the district court and defendants appealed. The Fifth Circuit held that: (1) State was the true party in interest for purposes of Eleventh Amendment immunity, though state officials were named in their individual capacities; (2) the Nonintercourse Act does not abrogate states sovereign immunity under the Eleventh Amendment; and (3) suit could not proceed under the Ex parte Halios doctrine. Reversed.

J. Misappropriation

43.              Lebeau v. United States, No. Civ. 99-4106, 115 F. Supp. 2d 1172 (D.S.D. 2000). Individual Indians sued United States, challenging constitutionality of statute giving tribes portion of individuals share of settlement fund. On tribes motions to intervene and dismiss, the district court held that tribes were not necessary parties to suit. Motion granted in part and denied in part.

K. Federal and Tribal Civil Rights

44.              McElhaney v. Elo, No. 98-1832, 2000 WL 32036 (6th Cir. 2000) (unpublished opinion; only Westlaw cite available). Plaintiff is an inmate in the prison system of the state of Michigan who practices an Indian religion. He alleges that the Michigan Department of Corrections violated his first amendment rights to practice his religion by denying him (1) access to a sweat lodge, (2) access to a ceremonial pipe, (3) an ash tray for ceremonial in-cell smudging, (4) denial of materials to make a medicine bag, and (5) participation in communal worship while on detention sanctions. The district court granted summary judgment for the defendants because the prison officials articulated reasons for limiting the expression of his first amendment rights that were reasonably related to legitimate penological interests and there was no genuine issue of material fact that needed to be resolved at trial. The Sixth Circuit affirmed.

45.              Old Person v. Cooney, No. 98-36157, 230 F.3d 1113 (9th Cir. 2000). Individual Indian voters sued Governor and Secretary of State of Montana, alleging that 1992 redistricting plan for State House of Representatives and Senate diluted voting strength of Indians and was adopted with discriminatory purpose, violating Voting Rights Act. Following bench trial, the U.S. District Court for the District of Montana entered judgment for Governor and Secretary. Voters appealed. The Ninth Circuit held that: (1) white majority voted sufficiently as bloc to enable it usually to defeat Indians preferred candidates for Montana House of Representatives and Senate, thus satisfying third Gingles factor for determining whether plan diluted Indians votes; (2) no proportionality existed that would weigh against finding that plan diluted votes of Indians; and (3) district court did not clearly err in finding that plan was not adopted with discriminatory purpose. Reversed and remanded.

46.              Sinajini v. Board of Education of San Juan School District, No. 99-4130, 233 F.3d 1236 (10th Cir. 2000). Parents and Chapters of Navajo Tribe sued school district, alleging that it denied equal educational activities to Native Americans on basis of race. Following approval of consent decree, 964 F. Supp. 319, the U.S. District Court for the District of Utah, 47 F. Supp. 2d 1316, determined that parents and Chapters had partially prevailed and awarded them reduced amount of attorney fees. Parents and Chapters appealed. The Tenth Circuit held that: (1) Court erred in limiting attorney fees award to issues pled, since courts judgment on negotiated settlement was larger in scope than pleadings had been; (2) catalyst test did not apply to question whether parents and chapters prevailed for purposes of attorney fees; and (3) district court erred in determining that parents achieved only limited success because they prevailed on a significant claim but such claim was only one of approximately 21 claims for relief. Reversed and remanded.

47.              United States v. Gotchnik, No. 99-4288, 222 F.3d 506 (8th Cir. 2000). Indians filed motions for acquittal following their convictions for use of motorized equipment in federally held wilderness area. The district court held that treaty did not give Indian band right of unrestricted travel to fishing grounds and regulations prohibiting use of motorized vehicles in area preempted conflicting treaty rights. Motions granted in part, and denied in part. Affirmed.

48.              Western Mohegan Tribe and Nation of New York v. New York, No. 99-CV-2140 LEK/DRH, 100 F. Supp. 2d 122 (N.D.N.Y. 2000). In a previous suit plaintiffs sought a preliminary injunction and alleged violations of the Native American Graves Protection and Repatriation Act and their Free Exercise rights under the First Amendment with respect to the construction of a bridge connecting the mainland to the island. The district court held that it lacked jurisdiction under NAGPRA and found the Free Exercise claim too vague to meet the demanding standard required for a preliminary injunction. Plaintiffs commenced a second suit, again alleging claims under those statutes as well as under the National Historic Preservation Act. The court denied the motion and dismissed sua sponte.

49.              Yankton Sioux Tribe v. United States Army Corps of Engineers, No. Civ. 99-4228, 83 F. Supp. 2d 1047 (D.S.D. 2000). Indian tribe sought preliminary injunction protecting inadvertently discovered grave sites. The district court held that Tribe was entitled to preliminary injunction preventing Corps of Engineers from raising water level until expiration of statutory thirty-day period following inadvertent discovery of lakeshore grave sites, during which time exposed remains would be removed.

L Sovereign Immunity and Federal Jurisdiction

50.              Barker-Hatch v. Viejas Group Baron Long Capitan Grande Band of Digueno Mission Indians of the Viejas Group Reservation, California, No. 99 CV 1730BTM(LSP), 83 F. Supp. 2d 1155 (S.D. Cal. 2000). Action was brought against Indian tribe to recover for injuries suffered in slip and fall. On defendants motion to dismiss, the district court held that court lacked diversity jurisdiction. Motion granted.

51.              Bassett v. Mashantucket Pequot Tribe, No. 98-9162, 204 F.3d 343 (2nd Cir. 2000). Film producer sued Indian tribe, museum, and related defendants, alleging copyright infringement, breach of contract, and various state-law torts. The district court dismissed claims, and producer appealed. The Second Circuit held that: (1) whether a complaint asserting claims of copyright infringement arising from, or in the context of, an alleged contractual breach "arises under" the federal copyright laws for the purposes of jurisdiction of federal district court is determined under the T.B. Harms test, abrogating Schoenberg; (2) producers copyright claims "arose under" the Copyright Act; (3) tribe was immune from suit on copyright claims; and (4) tribe was not an "indispensable party" in action to enjoin museum from further infringing copyrights. Affirmed in part, vacated in part, and remanded.

52.              Dry v. City of Durant, No. 99-7137, 242 F.3d 388 (10th Cir. 2000) (unpublished opinion; only Westlaw cite available). Choctaw Nation hired off-duty police officers from the City of Durant, Oklahoma, to work as security officers at the Choctaw Nation's annual Labor Day festival. Tribal ordinance prohibited dissemination of political literature outside of designated area at fair. After Dry left the designated area, he was approached by one of these police officers and a physical altercation ensued. Dry filed an action under 42 U.S.C. ' 1983 and the Oklahoma Governmental Torts Claims Act and sought compensatory damages, attorneys fees and costs, and punitive damages. The district court granted summary judgment for the defendant, holding that neither the police officers nor the City of Durant were liable because the police officers were operating under the color of tribal, not state, law. Affirmed.

53.              Dry v. United States, No. 99-7110, 235 F.3d 1249 (10th Cir. 2000). Tribal members brought ' 1983 and Federal Tort Claims Act claims against tribal law enforcement officers, who allegedly committed torts when arresting members, and cities where members were detained following their arrests. The U.S. District Court for the Eastern District of Oklahoma dismissed claims, and members appealed. The Tenth Circuit held that: (1) officers were acting pursuant to tribal rather than federal authority, and thus could not be held liable under Bivens or FTCA for alleged torts; (2) provision of 1855 Treaty between United States and Choctaw Nation, providing for indemnification from United States for injuries caused by non-tribal members, was not applicable to members allegedly injured by tribal officers; and (3) city jailers did not violate constitutional rights of members by detaining them, in accordance with cross-deputization agreements with tribe, based upon representations of tribal officers that offenses had been committed. Affirmed.

54.              Hagen v. Sisseton-Wahpeton Community College, No. 99-2124, 205 F.3d 1040 (8th Cir. 2000). Former employees filed race discrimination actions against community college chartered by Indian tribe. Following entry of default judgment in favor of former employees, college moved to set aside default on grounds of lack of subject matter jurisdiction and sovereign immunity. The district court denied motion. College appealed. The Eighth Circuit held that: (1) college was arm of tribe entitled to sovereign immunity; (2) college did not waive its immunity by failing to answer employees discrimination complaints; and (3) colleges charter did not waive its immunity. Reversed and remanded.

55.              Hein v. Capitan Grande Band of Diegueno Mission Indians, No. 98-56182, 201 F.3d 1256 (9th Cir. 2000). Members of splinter group of Capitan Grande Band of Diegueno Mission Indians brought action against Barona Group of same Band, and against Secretary of the Interior, asserting rights to portion of Barona Groups gaming revenues. The district court dismissed on basis of lack of subject matter jurisdiction and tribal sovereign immunity. Members appealed. The Ninth Circuit held that: (1) members did not have cause of action under Indian Civil Rights Act; (2) Indian Gaming Regulatory Act did not provide members with direct cause of action; (3) Administrative Procedure Act provided district court with subject matter jurisdiction over members claims against Secretary; and (4) Barona Group was not indispensable party with respect to claims against Secretary. Affirmed in part, reversed in part, and remanded.

56.              Iowa Management & Consultants, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, No. 99-2538, 207 F.3d 488 (8th Cir. 2000). Corporation brought action against Indian tribe alleging breach of contract for provision of gaming-related services and seeking order compelling arbitration. The district court dismissed complaint. Corporation appealed. The Eighth Circuit held that: (1) district court did not have federal question jurisdiction over claim for breach of contract, and (2) corporations claim that it was entitled to arbitration under Federal Arbitration Act did not confer federal question jurisdiction on district court. Affirmed.