American Indian Report

Courts

Court	Title	Date	Summary
U.S. Federal Circuit Court of Appeals	In re Shinnecock Smoke Shop	7/1/09	In June 2006, Jonathan K. Smith (Applicant), a U.S. citizen and member of the Shinnecock Indian Nation and sole proprietor of Shinnecock Smoke Shop, filed two trademark applications with the United States Patent and Trademark Office (USPTO), seeking to register the marks SHINNECOCK BRAND FULL FLAVOR and SHINNECOCK BRAND LIGHTS (Serial Nos. 78/918,061 and 78/918,500 respectively) for cigarettes. Both marks also included the wording "MADE UNDER SOVEREIGN AUTHORITY." The Trademark Examining Attorney (Examining Attorney) refused to register the proposed marks, citing Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), which generally protects against registering marks that falsely suggest a connection to a non- sponsoring entity. Applicant appealed to the Trademark Trial and Appeal Board (Board) which affirmed because it agreed that the marks falsely suggested a connection with the non-sponsoring Shinnecock Indian Nation. The Board also rejected Applicant's constitutional and treaty-based claims that pertained to his allegations of racial discrimination. The appeals court affirmed.
U.S. 6th Circuit Court of Appeals	Keweenaw Bay Indian Comm. v. Rising	6/26/09	The Keweenaw Bay Indian Community wanted (1) a broad declaration concerning its tax immunities under federal law, and (2) injunctive relief from Michigan’s policy of taxing transactions involving the Community and from Michigan’s reliance on an informal refund process to sort those immunities out on a case-by-case, transaction-bytransaction basis. The court remanded for further proceedings.
U.S. D.C. Circuit Court of Appeals	Oglala Sioux Tribe v. US Army Corps of Eng'rs.	6/26/09	The court ruled against the tribe in this case that deals with several federal government properties located along the Missouri River within the area of the former Great Sioux Reservation. The Oglala Sioux Tribe brought this action seeking a declaration that the 1889 Act of Congress dissolving the Great Sioux Reservation never took effect. In addition, the Tribe requested an injunction preventing the United States from transferring title to any land inside the former Reservation without the Tribe’s permission, and a writ of mandamus compelling the Army Corps of Engineers to evaluate the Missouri River properties for inclusion in the National Register of Historic Places.
U.S. 9th Circuit Court of Appeals	Philip Morris USA, Inc. v. King Mtn. Tobacco Co.	6/11/09	The court reversed and remanded a district court holding that there is colorable tribal court jurisdiction over a nonmember’s federal trademark and related state law claims against tribal defendants for alleged passing off of cigarettes on the Internet, on the reservation of another tribe, and elsewhere.
U.S. 10th Circuit Court of Appeals	US v. Oldbear	6/10/09	The court upheld the conviction of Louella Oldbear, a member of the Cheyenne-Arapaho Indian Tribes, who was convicted by a federal jury 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).
U.S. 10th Circuit Court of Appeals	United Keetoowah Band of Cherokee Indians v. US	6/5/09	The court ruled that HUD’s imposition of a court jurisdiction requirement as a threshold for need-based funding over the minimum allocation is contrary to Congress’s plainly expressed intent because it leads to funding allocations based on factors that do not reflect tribal housing needs.
U.S. 2nd Circuit Court of Appeals	Pyke v. Cuomo	5/27/09	Defendants were granted summary judgment on Plaintiffs’ Equal Protection claims. The Court held that Plaintiffs have shown neither an express racial classification or racially discriminatory intent and impact in Defendants’ response to a period of violent unrest on an Indian reservation.
U.S. 9th Circuit Court of Appeals	Elliott v. White Mtn. Apache Tribal Ct.	5/14/09	The court affirmed a district court ruling that exhaustion of tribal court remedies is required before a federal court entertains challenges to tribal court jurisdiction.
U.S. 8th Circuit Court of Appeals	Wilkinson v. US	5/6/09	The court upheld the conviction of Wilbur Dale Wilkinson guilty of embezzling, misapplying, and converting tribal funds from an Indian tribal organization in violation of 18 U.S.C. § 1163 (1994); misapplying funds under the care, custody, and control of an Indian tribal government receiving federal grants in excess of $10,000 in violation of 18 U.S.C. § 666(a)(1)(A) (1994); knowingly and willfully making false material statements in violation of 18 U.S.C. § 1001(1994); and aiding and abetting the above activities in violation of 18 U.S.C. § 2 (1994).
U.S. 10th Circuit Court of Appeals	Southern Ute Indian Tribe v. Leavitt	5/4/09	In litigation arising from the Secretary of Health and Human Services’ decision not to enter into a self-determination contract with the Southern Ute Indian Tribe, the district court issued two operative orders: the first order determined that the HHS decision was unlawful, granted summary judgment to the Tribe, and ordered the Tribe to prepare a form of an order for injunctive relief for HHS approval. The parties could not reach an agreement, which resulted in continued litigation and culminated in the district court’s second 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. The court said it did not have jurisdiction to hear the appeal because the second order is not a final judgment on the merits.
U.S. 9th Circuit Court of Appeals	Solis v. Matheson	4/20/09	The court concluded that the overtime requirements of the FLSA apply to a retail business owned by a tribal member and located on an Indian reservation. Because the FLSA applies to the retail business, the court conclude that the Secretary had the authority to enter the Indian reservation to audit the books of the business, as she would regularly do with respect to any private business. However the court held that the district court was premature with respect to the automatic appointment of a receiver over the retail business in the event the overtime payments were not made.
U.S. 10th Circuit Court of Appeals	Hydro Resources, Inc. v. EPA	4/17/09	The court upheld the U.S. Environmental Protection agency’s determination that certain land owned by Hydro Resources Inc. in the “checkerboard” area of northwestern New Mexico—the so-called “Section 8” land—is “Indian Country.” Therefore HRI’s proposed uranium mine would be subject to EPA regulations under the Safe Drinking Water Act, rather than regulation by the New Mexico Environmental Department.
U.S. Supreme Court	US v. Navajo Nation	4/6/09	The Tribe failed in its claim for compensation for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease (Lease 8580) the Tribe executedin 1964.
U.S. 10th Circuit Court of Appeals	Barrett v. US	4/6/09	The court affirmed the district court’s ruling that the salary paid to John A. Barrett, Jr. as chairman of the Citizen Potawatomi Tribe (the “Tribe”)2 was not exempt from federal income tax.
U.S. Supreme Court	Hawaii v. Office of Hawaiian Affairs	3/31/09	The court reversed a Supreme Court of Hawaii ruling permanently enjoining the state from alienating certain of its lands, pending resolution of native Hawaiians’ land claims that the court described as “unrelinquished.” The court said, Congress did not s
U.S. 11th Circuit Court of Appeals	Freemanville Water Sys., Inc. v. Poarch Band of Cr	3/30/09	The court affirmed the district court’s decision dismissing this suit based on the tribe’s sovereign immunity. The Poarch Band of Creek Indians wanted to develop its own water facilities and distribution system, but a rural water authority already exists to serve parts of the county, including all of the tribe’s lands and members. Not wanting to lose any of its customer base, the local water authority claimed an exclusive right to continue serving those parts of the county based on the anti-curtailment provision of the Consolidated Farm and Rural Development Act of 1961, 7 U.S.C.§§ 1921–2009dd-7, which protects water authorities funded with federal loans from encroachment on their territories. The court found that the Rural Development Act did not make it clear that Congress intended to abrogate tribal sovereign immunity -- Indian tribes are explicitly included within the scope of seven provisions of the Rural Development Act, but are not mentioned in the anti-curtailment provision.
U.S. D.C. Circuit Court of Appeals	Cheyenne Arapaho Tribes of Okla. v. US	3/17/09	This appeal involves disputed rights to land originally designated as part of a reservation for the Cheyenne Arapaho Tribes of Oklahoma and later set apart by executive order as a U.S. military installation. The District Court dismissed the Tribes’ claim for quiet title to the land for lack of subject matter jurisdiction. The Tribes argued that the court erred in dismissing the case prematurely without allowing for jurisdictional discovery. The appeals court held that because the Tribes fail to specify what facts discovery could produce that would alter the jurisdictional analysis, the district court did not abuse its discretion in denying the Tribes’ discovery request.
U.S. Federal Circuit Court of Appeals	Tohono O'odham Nation v. US	3/16/09	This case concerns the application of 28 U.S.C. § 1500, the statute that divests the United States Court of Federal Claims of jurisdiction over “any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States.” Applying § 1500, the Court of Federal Claims dismissed an action brought by the Tohono O’odham Nation (the “Nation”) alleging that the United States breached certain fiduciary duties as trustee of funds and property owned by the Nation. Tohono O’odham Nation v. United States, 79 Fed. Cl. 645, 646 (2007). Because the appeals court concluded that the Nation’s complaint in the Court of Federal Claims seeks relief that is different from the relief sought in its earlier-filed district court action, it reversed.
U.S. Supreme Court	Carcieri v. Salazar	2/24/09	The secretary of the Interior cannot take land into trust for tribes that were not under the jurisdiction of the federal government when the Indian Reorganization Act was enacted in 1934
U.S. 9th Circuit Court of Appeals	US v. Cruz	2/10/09	The court concluded that the evidence adduced during Christopher Cruz’s trial did not satisfy any of the four factors outlined in the second prong of the Bruce test, and held that, even when viewed in the light most favorable to the government, his conviction cannot stand. The district court’s failure to grant Cruz’s motion for judgment of acquittal was plain error, and the court reversed.
U.S. 7th Circuit Court of Appeals	Wisconsin v. Stockbridge-Munsee Community	1/20/09	The court affirmed a district court ruling that Congress intended to diminish the size of the tribe’s original reservation as it was established in 1856. The decision impacts the tribe’s ability to offer slot machine gaming at a property it owns within the exterior boundaries of its original reservation, but not within the boundaries of the current reservation.
U.S. 9th Circuit Court of Appeals	Philip Morris USA, Inc. v. King Mountain Tobacco C	1/20/09	The court reversed and remanded a district court holding that there is colorable tribal court jurisdiction over a nonmember’s federal trademark and related state law claims against tribal defendants for alleged passing off of cigarettes on the Internet, on the reservation of another tribe, and elsewhere.