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16 ILR [1] (1989)

handle is hein.amindian/indlr0016 and id is 1 raw text is: INDIAN LAW REPORTER A PUBLICATION OF THE AMERICAN INDIAN LAWYER TRAINING PROGRAM, INC. January 1989 Volume 16, No. 1 Month-in-Brief UNITED STATES COURTS OF APPEALS Alaska Native Claims Settlement Act: Land Selection and Rights Construing sections 1613(c)(1) and 1613(g) of the Alaska Native Claims Settlement Act, the Ninth Circuit reverses the district court's grant of summary judgment and remands to the trial court for findings as to whether holders of U.S. For- est Service special use permits were occupying the land claimed by an Alaska Native village corporation, Kavilco, as their primary places of residence on December 18, 1971. Buettner, et al., v. Kavilco, Inc., No. 87-4435, 16 Indian L. Rep. 2001 (9th Cir., Oct. 26, 1988). Alaska Native Claims Settlement Act: Land Selection and Rights Statute of Limitations and Laches The Ninth Circuit affirms the dismissal of appellants' quiet title claims holding that such claims are barred by the 12-year statute of limitations contained in the Quiet Title Act, 28 U.S.C. § 2409a(g). The court of appeals further holds that appellants' quiet title claims against Eklutna, Inc. are dis- missed because the United States is an indispensable party. Donnelly, et al. v. United States, et al., Nos. 86-4428 & 87- 3834, 16 Indian L. Rep. 2003 (9th Cir., June 27, 1988). Criminal Jurisdiction: Indian Country Tribal Courts: Jurisdiction A majority of the Ninth Circuit denies a petition for rehearing of the court's holding that the criminal jurisdiction of a tribal court extends to a crime committed on the tribe's land by a nonmember Indian against a nonmember Indian victim, and rejects the suggestion for a rehearing en banc. Circuit Judge Kozinski's dissent from the order denying rehearing en banc, with whom Circuit Judges Leavy and Trott join, is set forth herein. Duro v. Reina, et al., No. 85- 1718, 16 Indian L. Rep. 2007 (9th Cir., Nov. 2, 1988). Administrative Law and Procedure Water Rights The Ninth Circuit affirms the district court's dismissal of appellants' action for injunctive relief from the Bureau of Indian Affairs' operating procedures for the 1987 irrigation season for the Flathead Irrigation and Power Project on the grounds that appellants failed to exhaust administrative reme- dies and have not proved that a pursuit of administrative remedies would be futile. Joint Board of Control of the Flat- head, Mission & Jocko Irrigation Districts v. United States, et al., No. 87-4016, 16 Indian L. Rep. 2010 (9th Cir., Nov. 29, 1988). Hunting, Fishing, Trapping and Gathering Rights The Ninth Circuit holds that: (1) the state of Alaska's redefinition of the word rural does not comport with sec- tion 3113 of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3111-3126; (2) Alaska has failed to enforce the statute's subsistence priority; (3) the state is not in compliance with ANILCA; and (4) the Kenaitze Indian Tribe is entitled to a preliminary injunction to prevent the state from enforcing its existing statutory and regulatory definition of rural. Kenadtze Indian Tribe v. Alaska, No. 87-4110, 16 Indian L. Rep. 2013 (9th Cir., Jan. 4, 1989). Treaties with United States Treaties with United Stgtes: Construction Favoring Indians Construing the Articles of Confederation and contempora- neous writings, the Second Circuit concludes that the article IX(4) power of Congress to manage Indian Affairs, as limited by the legislative rights proviso contained in article IX(4), did not preclude the state of New York from making the 1785 and 1788 purchases of Oneida Indian land within the state's borders. The court also concludes that whether the state's purchases of Indian lands posed a sufficient threat to peace to warrant invalidation because of conflict with inherent national power arising from external sovereignty is an issue that is not justiciable. Further rejecting the appellants' claims under the 1784 Treaty of Fort Stanwix and the Proclamation 16 ILR 1 Copyright © 1988 by the American Indian Lawyer Raining Program, Inc. Rights of redistribution or reproduction belong to copyright owner. ISSN-0097-1154

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