June 19, 2013

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Tenth Circuit: Petition for Writ of Habeas Corpus Granted Because Murders Occurred in Indian Country

June 17, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Magnan v. Trammell on Friday, June 14, 2013.

On March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house.  McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims except Howard were enrolled members of the Seminole Nation of Oklahoma.

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue.

In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability.

The Tenth Circuit only addressed the status of the surface estate and agreed with Magnan that the location where the crimes occurred was “Indian country” pursuant to 18 U.S.C. § 1151. The location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met. As a result, the state trial court lacked jurisdiction over the crimes. The federal government had exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.

Consequently, the Tenth Circuit reversed the judgment of the district court and remanded with instructions to grant Magnan’s petition for writ of habeas corpus.

 

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Tenth Circuit: Tribal Exhaustion Rule Applies to 25 U.S.C. § 1303 Habeas Petitions

November 15, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Valenzuela v. Silversmith on Wednesday, November 14, 2012.

Alvin Valenzuela, an enrolled member of the Tohono O’odham Nation (the Nation) accepted a plea agreement in which he waived his right to appeal his conviction and sentences. He later filed a petition for writ of habeas corpus pursuant to 25 U.S.C. § 1303 seeking relief from tribal court convictions and his sentence. Section 1303 is part of the Indian Civil Rights Act. While Valenzuela’s petition was pending in federal district court, he completed his sentence and was released from prison. The district court concluded that Valenzuela’s claims were moot because of his release. Alternatively, it concluded that Valenzuela had failed to exhaust his tribal remedies before seeking habeas relief in federal court. Based on these alternative grounds, the district court dismissed Mr. Valenzuela’s § 1303 petition.

The Tenth Circuit chose to decide the appeal on the threshold, nonmerits issue of his failure to exhaust tribal remedies, rather than on the grounds of mootness. This allowed the court to avoid deciding whether it had subject matter jurisdiction and “difficult issues such as whether tribal court convictions are entitled to a presumption of collateral consequences and whether federal courts have authority under 25 U.S.C. § 1303 to vacate tribal court convictions.”

Valenzuela argued that § 1303 does not require exhaustion in the tribal courts. The court disagreed. While § 1303 does not explicitly state exhaustion is required, the tribal exhaustion rule applies to § 1303 petitions. The rule “provides that, absent exceptional circumstances, federal courts typically should abstain from hearing cases that challenge tribal court [authority] until tribal court remedies, including tribal appellate review, are exhausted.”

The court also found that because Valenzuela’s appeal waiver did not expressly waive his right to collaterally attack his conviction in tribal court, he had failed to exhaust his tribal court remedies by not filing a habeas petition in that court. The Tenth Circuit affirmed the district court’s dismissal and remanded for that court to dismiss it without prejudice.

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Tenth Circuit: Case Involving Tax Status of Land as Indian Country or Federal Land Should Have Been Dismissed Without Prejudice

October 19, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Northern Arapaho Tribe v. Harnsberger on Thursday, October 18, 2012.

Plaintiff-Appellant, the Northern Arapaho Tribe (“Appellant” or “Northern Arapaho”), sued various state and county officials in Wyoming, seeking an injunction against the state’s imposition of certain vehicle and excise taxes in an area that Appellant contends is Indian country. Appellant claimed that the state may not tax its members in Indian country, and that the Indian country status of the land was conclusively established by an earlier decision of the Wyoming Supreme Court. The district court dismissed the action with prejudice for failure to join a party under Federal Rule of Civil Procedure 12(b)(7) after determining that two absent entities—the Eastern Shoshone Tribe (“Eastern Shoshone”) and the United States—were necessary parties who could not feasibly be joined, and in whose absence the action could not proceed. The district court also concluded that the Indian country status of the land had not been conclusively determined by the earlier state litigation. Appellant appeals both determinations.

The Tenth Circuit agreed that the dismissal of the action was proper because the Eastern Shoshone was a necessary party  that could not feasibly be joined.  The Court explained that the Eastern Shoshone had an interest in the litigation that could be harmed by the proceeding in its absence, and proceeding in the absence of the Easter Shoshone would also place the State of Wyoming at a substantial risk of incurring multiple inconsistent obligations. The Eastern Shoshone was therefore required to be joined under Rule 19(a).  The Tenth Circuit also found that the district court correctly held that the Eastern Shoshone is a sovereign and is therefore immune from suit, so therefore could not be feasibly joined.

However, the Court VACATED the judgment and remanded with instructions to dismiss without prejudice, since the district court’s disposition was not an adjudication on the merits. Finally, the Court also DENIED as moot Appellant’s Rule 27.2(A) motion for summary disposition or remand.

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Tenth Circuit: Dismissal for Failure to Exhaust Administrative Remedies Not Abuse of Discretion

September 6, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Gilmore v. Weatherford on Tuesday, September 4, 2012.

Mine tailings piles known as “chat” have value as fill and gravel. Two piles at issue in this case consist of comingled property because they are owned partially by unrestricted owners and partially by “restricted” owners. The restricted owners are descendants of Quapaw Tribe members who were deemed incompetent and so are unable to freely alienate their property under federal law. Three restricted owners sued Bingham Sand and Gravel for conversion and an accounting for allegedly removing chat without compensating the restricted owners, and Weatherford, as representative of an estate that allegedly sold chat to Bingham. The plaintiffs claimed Bureau of Indian Affairs (BIA) approval was required for any sale or removal of chat from the piles. The plaintiffs also sued the Secretary of the Interior and BIA officials under the Administrative Procedure Act (APA) seeking to compel agency action, and sought an accounting from the BIA.

The district court dismissed the claims against the federal defendants for failure to exhaust administrative remedies. Although the accounting claim was not governed by the APA, the district court exercised its judicial discretion to require exhaustion of that claim as well. The Tenth Circuit held that was not an abuse of discretion.

Once the district court dismissed the claims against the federal defendants, it dismissed the claims against the private defendants for lack of subject matter jurisdiction. The plaintiffs claimed that the removal of the restricted chat required approval of the Secretary of the Interior. The Tenth Circuit reversed the dismissal of all claims regarding the private defendants because the “conversion claim presents a substantial and disputed question of federal law sufficient to confer federal question jurisdiction under 28 U.S.C. § 1331.” With the federal question conversion claim reinstated, the district court could properly exercise supplemental jurisdiction over the accounting claim.

 

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Tenth Circuit: Misdiagnosis and Surgical Malpractice Claims Would Fail Under Both Arizona and Navajo Law

July 16, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Harvey v. United States on Friday, July 13, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner’s appeal stems from a Federal Tort Claims Act (FTCA) lawsuit that Petitioner brought against the United States government for complications arising from an injury to his hand. Petitioner “claims that government employees injured him by (1) misdiagnosing and delaying treatment of his hand fracture, and (2) performing negligent surgery on his hand. He argues that the district court erred in holding the misdiagnosis/delay-intreatment claim (‘misdiagnosis claim’) to be time-barred and in granting summary judgment on the negligent surgery claim for failure to produce expert evidence. Also, as a threshold matter, [Petitioner] contends that the district court should have granted his motion for default judgment. The district court agreed with [Petitioner] that Navajo law is the substantive law that should be applied to this case. But [Petitioner] argues on appeal that the district court failed to follow Navajo law in dismissing his negligent surgery claim.”

The Court held that the district court properly denied Petitioner’s motion for default judgment. Although the Court disagreed with the district court’s conclusion that the misdiagnosis claim was time-barred, it concluded that Petitioner’s “failure to provide expert evidence doomed both his misdiagnosis and surgical malpractice claims.” Finally, although the parties disagreed about whether Arizona law or Navajo law applies, the Court determined that it did not need to decide that issue because the outcome would be the same under both.

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Tenth Circuit: No Standing to Sue Judges of Court of Indian Offenses for Not Enjoining State Criminal Proceeding

June 21, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Turner v. McGee on Wednesday, June 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, “a member of the Kiowa Tribe, was charged by Oklahoma state authorities with instituting or encouraging cockfighting. The state court rejected [Petitioner]’s argument that the crime took place in Indian Country. While state prosecution was ongoing, [Petitioner] requested that the Court of Indian Offenses for the Kiowa Tribe enjoin the state proceeding. That court dismissed for lack of subject matter jurisdiction. [Petitioner] was subsequently convicted in state court. [Petitioner] then sued the judges of the Court of Indian Offenses in federal district court. The district court denied relief, concluding that the defendants were entitled to sovereign immunity as tribal officials.

On different ground from the district court, the Court concluded that Petitioner “lacks standing because he cannot establish redressability. Given the procedural posture of this case, it is unclear what—if any—action the district court could take to undermine [Petitioner]’s conviction. Because the requested injunction would not redress [Petitioner]’s injury, he lacks standing to pursue his claims.”

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Tenth Circuit: Testimony of Victim’s Father Provided Sufficient Evidence to Conclude Victim Was Not an Indian for Purposes of Statute

May 9, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Diaz on Tuesday, May 8, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of knowingly leaving the scene of a car accident where she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian reservation. She was charged with committing a crime in Indian Country. On appeal, among other issues, Petitioner contended that the federal court lacked jurisdiction over the crime because the government failed to prove that the victim was not an Indian, a jurisdictional requirement.

The Court concluded that the government met its burden of proof. The testimony of the victim’s father provided enough evidence for a jury to conclude the victim was not an Indian for purposes of the statute. The Court also concluded that the district court did not err in its rulings on various other evidentiary and trial issues.

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Tenth Circuit: Tribe Failed to State a Claim that Oklahoma Cigarette Sale and Tax Laws Violate Federal Law or Tribal Sovereignty

February 29, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Muscogee (Creek) Nation v. Henry on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner Tribe sued the Oklahoma Tax Commission seeking declaratory and injunctive relief based on numerous claims challenging three Oklahoma statutes that tax and regulate the sale of cigarettes and other tobacco products. “In Oklahoma, cigarette and other tobacco product sales to tribal members in Indian country are exempt from state taxes. To prevent non-tribal members from avoiding taxes on their purchases of such products in Indian country, Oklahoma adopted a tax-stamp scheme to ensure that taxes are collected for those sales. Oklahoma also requires tobacco product manufacturers either to enter into and make payments under a Master Settlement Agreement with the State or to pay a certain percentage of each sale into an escrow fund. Any brand of cigarette produced by a manufacturer that does not comply with these requirements is deemed contraband.” Petitioners object to these requirements as violative of federal law and tribal sovereignty, claiming that they are preempted by the Indian Trader Statutes and violate violate their right to tribal self-government. The district court dismissed the claims “based on the State’s Eleventh Amendment immunity or, alternatively, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

The Court held that, based on Supreme Court precedent, the Tribe “has failed to state a plausible claim that the Excise Tax Statute is not valid and enforceable based either on preemption or on infringement of [their] right of tribal self-government.” The Tribe similarly failed to state a plausible claim that the Escrow Statute and the Complementary Act are invalid and unenforceable. While the district court erred in finding that immunity under the State’s Eleventh Amendment, it properly dismissed the claims for failure to state a claim.

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Tenth Circuit: Petitioner Was Principal in Theft from Indian Casino Involving Employee, which Was a Crime Against the United States

January 9, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Bryant on Thursday, January 5, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals her conviction for theft by an officer or employee of a gaming establishment on Indian lands. Petitioner “played a $1 slot machine at the Choctaw Casino and Resort, an Indian gaming establishment. She won 90 cents and took the ticket to her sister, who worked as a cashier. Her sister, and later codefendant, paid [Petitioner] $4,000.91. They later split the proceeds. The casino noticed the missing $4,000 and saw the transaction as recorded by cameras.” Petitioner was sentenced to a two-year term of supervised probation and restitution of $4,000 was ordered. On appeal, she contends that no federal law was violated.

The Court disagreed. Petitioner “participated in a theft that involved an employee, and, as an aider and abetter, the law declares her a principal. If her sister had not been a cashier at the casino, matters would have stood differently. The district court properly asserted jurisdiction under 18 U.S.C. § 1168.” Additionally, the crime against a gaming establishment licensed by the National Indian Gaming Association that sits on territory subject to the jurisdiction of the United States is a crime against the United States.

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Tenth Circuit: HHS Required to Contract with Tribe for Self-Determination of Clinic with Full Support Costs

September 20, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Southern Ute Indian Tribe v. Sebelius on Monday, September 19, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. This is the second appeal in litigation arising from the Secretary of Health and Human Services’ decision not to enter into a self-determination contract with the Petitioner tribe, to allow them to assume control of a health clinic. In an initial order, the district court ruled that HHS’s decision was unlawful, granted summary judgment to the tribe, and directed the parties to prepare a proposed order for injunctive relief. On remand from the initial appeal, the district court issued a final order, directing the parties to enter a self-determination contract including HHS’s proposed language regarding the contract start date and contract support costs (CSCs), and denying the tribe’s request for damages.

The Court now determines that the Indian Self-Determination and Education Assistance Act (ISDA) “plainly does not authorize HHS to decline the tribe’s contract proposal on the basis that it lacked sufficient appropriations to cover the CSCs requested by the tribe, the amount of which HHS does not contend is unreasonable.” HHS was, therefore, required to contract with the tribe. The Court also found that the tribe “is entitled to a contract specifying the full statutory amount of CSCs . . . subject to the availability of appropriations”; a tribe cannot be forced to enter into a self-determination contract waiving its entitlement to full support costs funding. Lastly, the Court ruled that the ISDA’s model agreement “makes clear that the default start date for a contract is the date on which the contract is approved and executed by the parties“; the tribe in this case did not offer any persuasive authority or rationale to suggest a different rule should apply to their contract.

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Tenth Circuit: Water Compact Authorizes States to Regulate Apportionment and Prevents Challenge under Dormant Commerce Clause

September 8, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Tarrant Reg’l Water Dist. v. Herrmann on Wednesday, September 7, 2011.

The Tenth Circuit affirmed the district court’s decision and dismissal based on standing and ripeness issues. Petitioner sued the nine members of the Oklahoma Water Resources Board and sought a declaratory judgment to invalidate certain Oklahoma statutes that govern the appropriation and use of water and an injunction preventing the Board from enforcing them. Petitioner alleged that the Oklahoma statutes restrict interstate commerce in water and thereby violate the dormant Commerce Clause as discriminatory or unduly burdensome. After the district court granted summary judgement to the Board, Petitioner took steps to export Oklahoma water to Texas, which is not subject to the Compact. Petitioner negotiated a contract with property owners to export groundwater to Texas and also entered a memorandum of understanding with the Apache Tribe concerning the Tribe’s potential water rights. Then Petitioner reasserted its dormant Commerce Clause challenge based on these transactions.

The Court agreed with the district court that Petitioner’s challenges must once again fail. The Court concluded that the Compact authorizes the states to regulate the use of apportioned water and the broad language of key Compact provisions inoculates the Oklahoma statutes challenged here from dormant Commerce Clause attack. The Compact provisions that authorize broad state control of water support the Court’s holding that the Compact gives congressional consent to the states to adopt measures protecting their water apportionments that might otherwise violate the dormant Commerce Clause. Additionally, the district court was correct to dismiss the Apache Tribe issue as not ripe, as there was no confirmation that the tribe had water they were willing to sell to Petitioner.

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Tenth Circuit: Bureau of Indian Affairs Properly Denied Land Transfer Application to Protect Long-Range Interests of Reserve and Prevent Fractionation

August 31, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Miami Tribe of Oklahoma v. United States on Tuesday, August 30, 2011.

The Tenth Circuit vacated the district court’s decision and remanded for further proceedings. A member of the petitioner tribe wanted to transfer to Petitioners a portion of his property interest in the Maria Christiana Reserve No. 35, where the tribe has plans to develop gaming facilities. Federal law and restrictions on his fee interest required the Bureau of Indian Affairs (BIA) to approve any transfer. Citing concerns regarding fractionation of the land interests in the Reserve as well as the long-range best interests of Reserve landowners, the BIA denied the application to transfer the land. Petitioners challenge that decision.

The Court held that the BIA properly exercised its discretion in denying the application. The BIA’s denial of the land transfer application was a valid exercise of its administrative discretion. It was neither arbitrary nor capricious for the BIA to conclude the partial transfer of the property interest to the tribe was not in his or other Reserve landowners’ long-range best interests and would increase fractionation of the Reserve.

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