Justia Government & Administrative Law Opinion Summaries

The Navajo Nation filed suit seeking immediate return of human remains and associated funerary objects taken from its reservation. Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation. In the mid-1990s, the Park Service decided to inventory the remains and objects pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, with the ultimate goal of repatriating the remains and objects to culturally-affiliated tribes. The district court dismissed the suit as barred by sovereign immunity. The court held that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the remains and objects was a final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. 704. By deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, has the present right to “possession and control” of the remains and objects. Accordingly, the court reversed and remanded for further proceedings. View "Navajo Nation v. USDOI" on Justia Law

Mother Kimberly L. appealed a trial court's orders terminating her parental rights to Albert A. (A.A.) and Veronica A. (V.A.). Mother argued: (1) the juvenile court’s jurisdictional orders finding the children were dependents within the meaning of Welfare and Institutions Code section 300, subdivision (b)(1), were not supported by substantial evidence; (2) the juvenile court abused its discretion by terminating reunification services and setting a section 366.26 permanency planning hearing; (3) the juvenile court abused its discretion by denying mother’s request to continue the permanency hearing to allow her time to file a petition under section 388 requesting additional reunification services; (4) the juvenile court’s orders finding the children were likely to be adopted were not supported by substantial evidence; and (5) the juvenile court erred by concluding legally sufficient notice was provided to relevant Indian tribes pursuant to the Indian Child Welfare Act. In the published portion of this opinion, the Court of Appeal concluded mother waived her claim of error regarding the jurisdictional orders by not appealing the dispositions. Mother was absent from the continued jurisdictional hearing and was not entitled to notice of her right to appeal under California Rules of Court, rule 5.590(a). Because the Court concluded the juvenile court did not provide mother with timely and adequate notice of her right to challenge the orders setting a permanency hearing, as mandated by rule 5.590(b), mother did not waive her claim of error respecting the termination of reunification services. In the unpublished portion of this opinion, the Court of Appeal concluded the juvenile court did not abuse its discretion by terminating reunification services or by denying a request to continue the permanency hearing because mother did not comply with her case plan and did not visit with the children. However, the Court agreed with mother that the juvenile court erred by not considering legal impediments to the children being adopted by their paternal grandmother when it found the children were likely to be adopted, and we agree with mother and CFS that the ICWA notice was inadequate. Therefore, the orders terminating parental rights was reversed and the case remanded for the juvenile court to consider legal impediments to the children being adopted, for CFS to provide new ICWA notice, and for the juvenile court to determine whether that notice was sufficient. View "In re Albert A." on Justia Law

Plaintiffs were descendants of the victims of the 1864 Sand Creek Massacre and brought suit for an accounting of the amounts they alleged the U.S. government held in trust for payment of reparations to their ancestors. Because the United States had not waived its sovereign immunity, the Tenth Circuit affirmed the district court’s dismissal of this case for lack of subject matter jurisdiction. View "Flute v. United States" on Justia Law

Several Indian tribes successfully challenged the imposition of state fuel taxes on tribal retailers. Since then, the State and various tribes signed agreements under which the tribes agreed to buy taxed fuel, and the State agreed to refund a portion of the fuel tax receipts to the tribes. An industry group unsuccessfully challenged the lawfulness of these agreements. The issue this case presented for the Washington Supreme Court's review reduced to whether those agreements violated article II, section 40 of the State Constitution. "Without passing judgment on whether the legislature successfully moved the legal incidence of the tax away from tribal retailers," the Supreme Court affirmed dismissal of the industry group's challenge. View "Auto. United Trades Org. v. Washington" on Justia Law

The federally recognized Indian Tribe is a successor to an 1864 Treaty between the United States and the Chippewa Indians, including an agreement by the United States to set aside property in Isabella County, Michigan as a reservation. The Treaty did not mention application of federal regulations to members of the Tribe or to the Tribe itself. The property reserved for the “exclusive use, ownership, and occupancy” of the Tribe became the Isabella Reservation. The Tribe has over 3,000 members, and is governed by an elected council. In 1993, under the Indian Gaming Regulatory Act, the Tribe and the state entered a compact, approved by the United States, allowing the Tribe to conduct gaming on the Isabella reservation. The Tribe opened the Casino; enacted a gaming code with licensing criteria for employees; and created a regulatory body. The council hires all Casino management-level employees, approves contracts, and decides how to distribute revenue. Of the Casino’s 3,000 employees, 7% are Tribe members, as are 30% of management-level employees. The Casino generates $250 million in gross annual revenues and attracts 20,000 customers per year, many of whom are not Tribe members. The Tribe discharged Lewis for violating an employee handbook policy that prohibited solicitation by employees, including solicitation related to union activities, on Casino property. The NLRB found that the policy violated the National Labor Relations Act, 29 U.S.C. 151. The Sixth Circuit affirmed and enforced the order, finding that the NLRB has jurisdiction over the Casino’s employment practices. View "Soaring Eagle Casino & Resort v. Nat'l Labor Relations Bd." on Justia Law

The Pueblo of Jemez brought suit against the United States under the federal common law and the Quiet Title Act (QTA), seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what was known as Valles Caldera National Preserve. The government filed a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court held it lacked subject matter jurisdiction as a matter of law and dismissed the action pursuant to Rule 12(b)(1). It reasoned that sovereign immunity barred the action based on its conclusion that the Jemez Pueblo’s title claim against the United States accrued in 1860 when the United States granted the lands in question to the heirs of Luis Maria Cabeza de Baca (the Baca heirs). The claim thus fell within the exclusive jurisdiction of the Indian Claims Commission Act (ICCA), which waived sovereign immunity and provided a cause of action to all Indian claims against the government that accrued before 1946 so long as they were filed within a five year statute of limitations period. Because the claim was not so filed, it became barred by sovereign immunity. The Pueblo appealed, arguing that its aboriginal title was not extinguished by the 1860 grant to the Baca heirs and that its claim for interference with its Indian title did not accrue until 2000, after the United States acquired an interest in the Valles Caldera and began interfering with the Jemez Pueblo’s access to the land. Upon careful consideration of the arguments made on appeal, the Tenth Circuit reversed and remanded for further proceedings: "This appeal is not about whether the Jemez Pueblo holds aboriginal title. On remand, the Jemez Pueblo will have to prove that it had, and still has, aboriginal title to the land at issue in the case. This appeal concerns whether the 1860 Baca grant extinguished the Jemez Pueblo’s alleged aboriginal title to the lands which are the subject of this action. We hold it did not and the district court erred in concluding, as a matter of law, the 1860 Baca grant itself provided a pre-1946 claim against the United States the Jemez Pueblo could have brought under the ICCA." View "Pueblo of Jemez v. United States" on Justia Law

Nearly forty years ago the Ute Tribe filed a lawsuit alleging that Utah and several local governments were unlawfully trying to displace tribal authority on tribal lands. After a decade of proceedings at the district court and on appeal, the Tenth Circuit agreed to hear the case en banc. In the decision that followed, "Ute III," the court ruled for the Tribe and rejected Utah's claim that congressional action had diminished three constituent parts of Ute tribal lands (the Uncompahgre Reservation, the Uintah Valley Reservation, and certain national forest areas. When the Supreme Court denied certiorari, that "should have been the end of the matter." State officials chose "to disregard the binding effect of the Tenth Circuit decision in order to attempt to relitigate the boundary dispute in a friendlier forum" by continuing to prosecute tribal members in state court for conduct within the boundaries recognized by Ute III. Utah argued to the Utah Supreme Court that Ute III did not diminish tribal territory did diminish at least a part of the Uintah Valley Reservation. The Court agreed, as did the U.S. Supreme Court (despite having denied certiorari to "Ute III"). The issue of what to do with the mandate of "Ute III" remained: keeping it in place could leave the United States Supreme Court's decision in Hagen to control only cases arising from Utah state courts and not federal district courts. In "Ute V," the Tenth Circuit elected to recall and modify Ute III's mandate. On appeal, Utah sought to diminish parts of the national forest and Uncompahgre lands. "Ute V" rejected this request. The Tribe filed suit in federal court, seeking a permanent injunction prohibiting the State and its counties from pursuing criminal prosecutions of Indians in state court for offenses arising in areas declared by Ute III and V to be Indian country, and prohibiting the State and its subdivisions from otherwise relitigating matters settled by those decisions. Before the Tenth Circuit in this matter were three interlocutory (but immediately appealable) collateral orders this latest litigation has spawned: (1) the Tribe's request for a preliminary injunction; (2) the Tribe's claim of immunity from the counterclaims; and (3) Uintah County's claim of immunity from the Tribe's suit. In all three decisions the district court denied the requested relief. But the Tenth Circuit found Tribe's arguments on all three points as "well taken." The district court should have issued a preliminary injunction; the Tribe was shielded by sovereign immunity; and Uintah County was not. View "Ute Indian Tribe v. Utah" on Justia Law

Shields and Wilson are Indians with interests on the Bakken Oil Shale Formation in the Fort Berthold Reservation in North Dakota, allotted to them under the Dawes Act of 1887. Such land is held in trust by the government, but may be leased by allottees. Shields and Wilson leased oil and gas mining rights on their allotments to companies and affiliated individuals who won a sealed bid auction conducted by the Board of Indian Affairs in 2007. After the auction, the women agreed to terms with the winning bidders, the BIA approved the leases, and the winning bidders sold them for a large profit. Shields and Wilson filed a putative class action, claiming that the government had breached its fiduciary duty by approving the leases for the oil and gas mining rights, and that the bidders aided, abetted, and induced the government to breach that duty. The district court concluded that the United States was a required party which could not be joined, but without which the action could not proceed in equity and good conscience, and dismissed. The Eighth Circuit affirmed. The United States enjoys sovereign immunity for the claims and can decide itself when and where it wants to intervene. View "Two Shields v. Wilkinson." on Justia Law

Plaintiff-appellant Benedict Cosentino appealed an order that dismissed his claims against defendants-respondents Stella Fuller, John R. Magee, Jason P. Maldonado, William R. Ramos, and Robert B. Vargas based on the sovereign immunity afforded to Indian tribes and their officials. Cosentino was a table games dealer at an Indian tribal casino and Defendants were the five members of the tribe’s gaming commission responsible for licensing individuals involved in the tribe’s gaming activities and overseeing those activities. Shortly after he began working at the casino, Cosentino observed ongoing criminal activity on the casino floor. Based on his observations, Cosentino became a informant for the California Department of Justice and the information he provided lead to several criminal convictions. Defendants later sought to learn what information Cosentino provided the Department of Justice, but he followed the Department’s instructions and declined to divulge the information. Defendants thereafter revoked his gaming license and the casino terminated his employment because he could not work at the casino without a valid license. Cosentino filed suit claiming Defendants revoked his gaming license without cause and in retaliation for acting as an informant. Defendants specially appeared to make a motion to quash and dismiss, arguing sovereign immunity deprived the court of subject matter jurisdiction because Cosentino based all of his claims on Defendants’ official actions as members of the tribe’s gaming commission. The trial court agreed and granted the motion. The Court of Appeal reversed: "[a]n official’s actions that exceed the scope of his or her authority are not protected. [. . .]Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause in retaliation against him. Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by using their official position to intentionally harm Cosentino." View "Cosentino v. Fuller" on Justia Law

Officer Glen Gutierrez, on duty as a full-time salaried police officer of the Pueblo of Pojoaque and also commissioned as a Santa Fe County deputy sheriff, was patrolling a portion of U.S. Highway 84/285 located within the exterior boundary of the Pojoaque Pueblo. Officer Gutierrez observed Jose Loya making a dangerous lane change and pulled Loya over. Once stopped, Officer Gutierrez asked Loya to step out of his vehicle and informed Loya that he was under arrest for reckless driving in violation of NMSA 1978, Section 66-8-113 (1987), a state law. Officer Gutierrez placed Loya in the back of his patrol vehicle and transported Loya to the Pojoaque Tribal Police Department for processing. Loya, a non-Indian, was not subject to prosecution for violation of tribal law, so he was transported from the Pueblo to the Santa Fe County Adult Detention Center where he was incarcerated. Ultimately, Officer Gutierrez prosecuted Loya for reckless driving in Santa Fe County Magistrate Court. The issue this case presented for the New Mexico Supreme Court's review centered on a a county’s legal obligation when a non-Indian, arrested by a tribal officer and prosecuted in state court for state traffic offenses, sues the arresting tribal officer for federal civil rights violations. Specifically, the issue the Court identified in this case was when the county has an obligation under the New Mexico Tort Claims Act, to provide that tribal police officer with a legal defense in the federal civil rights action. The district court as well as the Court of Appeals found no such legal duty, in part because it concluded that the tribal officer was not a state public employee as defined in the NMTCA. The Supreme Court held the opposite, finding clear evidence in the text and purpose of the NMTCA requiring the county to defend the tribal officer, duly commissioned to act as a deputy county sheriff, under these circumstances. View "Loya v. Gutierrez" on Justia Law